               IN THE SUPREME COURT OF IOWA
                              No. 13–1915

                           Filed June 30, 2015


STATE OF IOWA,

      Appellee,

vs.

JESSE MICHAEL GASKINS,

      Appellant.


      Appeal from the Iowa District Court for Scott County, Henry W.

Latham II (motion to suppress), and John D. Telleen, Judges.



      A criminal defendant appeals his convictions for possession of

marijuana with intent to deliver, failure to affix a drug tax stamp, and

knowingly transporting a revolver in a vehicle. He contends the district

court erred in denying his motion to suppress evidence discovered after

officers opened a locked safe they found inside the defendant’s vehicle

during a warrantless search incident to arrest.       REVERSED AND
REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Michael Walton, County Attorney, and Patrick A.

McElyea, Assistant County Attorney, for appellee.
                                    2

HECHT, Justice.

      After making a routine traffic stop for an expired license plate, a

police officer smelled marijuana and confiscated one marijuana blunt

from the motorist. The officer ordered the motorist from the vehicle and

arrested him for possession of marijuana.     After the motorist and his

passenger were placed in a squad car, a search of the passenger

compartment at the scene of the arrest revealed a small portable locked

safe. A police officer opened the safe without obtaining a search warrant

and discovered additional marijuana, drug paraphernalia, and a gun.

The motorist was charged with possession of marijuana with intent to

deliver, failure to affix a drug tax stamp, and knowingly transporting a

revolver in a vehicle. The district court denied the motorist’s motion to

suppress the contents of the locked container under the Federal and

State Constitutions and convicted the motorist of the charges. Upon our

review, we conclude the warrantless search of the container incident to

the motorist’s arrest violated his rights under article I, section 8 of the

Iowa Constitution.

      I. Background Facts and Proceedings.

      On December 18, 2012, while on second shift patrol, a Davenport

police officer observed a van moving on the roadway with expired Iowa

license plates. The officer initiated a traffic stop. As he approached the

van, the officer noticed a very strong odor of burnt marijuana emanating

from the vehicle.    The driver of the van identified himself as Jesse

Gaskins, and a passenger in the front seat of the vehicle could not

produce identification.

      The officer asked Gaskins about the odor of burnt marijuana.

Gaskins denied there was any marijuana in the vehicle.         Suspecting

Gaskins’s answer was untrue, the officer replied that a drug detection
                                           3

dog was on duty that night and that if it were brought to the scene it

would detect that the vehicle did contain marijuana.                   Upon hearing

about the prospect of summoning a drug dog, Gaskins said, “Okay, I’ll be

honest with you, I got a blunt.”               He retrieved a partially-smoked

marijuana blunt from the van’s ashtray and gave it to the officer.

Because there were two van occupants, the officer requested a second

police unit be dispatched to the scene. When a second officer arrived,

the officers directed Gaskins and his passenger to exit the van.                   The

officer who initially made the stop immediately arrested Gaskins and

secured him inside a police car with his passenger.

       Based on his interactions with Gaskins—particularly the fact that

Gaskins had initially lied about whether there was marijuana in the

vehicle—the arresting officer believed the vehicle contained more

marijuana than the blunt Gaskins had retrieved. He therefore directed

the second officer to conduct a search of the van to look for additional

drugs, paraphernalia, drug packaging materials, weapons, or “[a]nything

that was illegal.”

       The second officer began conducting the search of the van and

discovered a small black portable safe between the driver’s seat and the

rear passenger seats. The safe was locked. The officer found a key to the

safe’s lock on the keyring in the van’s ignition and used it to open the

safe. He did not think about getting a warrant before opening the safe,

and later testified he considered it the same as if he had found a zipped

duffel bag or any other closed container while searching the van. 1 Inside

the safe, he found a loaded handgun with a defaced serial number,

       1The  searching officer testified he only opened the safe because he found the
key. If he had not found the key, he stated he would have informed the arresting officer
and “discussed it with him to see what [they] would have to [do].”
                                      4

several baggies of raw marijuana, several pipes, and some large plastic

freezer bags that smelled of marijuana.        The vehicle was inventoried,

towed, and impounded.

      On April 3, 2013, the State charged Gaskins by trial information

with three counts: possessing marijuana with intent to deliver, knowingly

transporting a revolver in a vehicle, and failing to affix a drug tax stamp. 2

See Iowa Code § 124.401(1)(d); id. § 453B.12; id. § 724.4(1) (2011).

Gaskins filed a motion to suppress the contents of the safe, asserting

“[t]here existed no reason to proceed with the search . . . without a

warrant.” More specifically, he contended the search was not justified by

any threat to the officers’ safety or danger that evidence would be

destroyed because both occupants of the van had been placed in custody

and secured in a squad car away from the van. Gaskins requested the

court suppress all evidence removed from the safe because, under both

the United States      Constitution and      the Iowa Constitution, “the

[warrantless] search . . . violated his right to privacy in a locked safe.”

      The State resisted the motion, asserting the warrantless search

was a permissible search incident to arrest because it was reasonable to

believe the van’s passenger compartment contained evidence of the

offense—marijuana possession—for which Gaskins was arrested.                  See

Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723–24, 173 L. Ed.

2d 485, 501 (2009) (“Police may search a vehicle incident to a recent

occupant’s arrest only if the arrestee is within reaching distance of the

passenger compartment at the time of the search or it is reasonable to

believe the vehicle contains evidence of the offense of arrest.”). The State


       2Gaskins’s passenger—a minor—was released to his mother and was not

charged as a consequence of the incident.
                                            5

did not assert that any other theory or exception to the warrant

requirement justified the warrantless search the officers performed.

       At the suppression hearing, the State contended the locked safe

was no different from a duffel bag, a backpack, or any other kind of

container encountered during the search of a vehicle. Further, the State

asserted the fact the key was on Gaskins’s keyring indicated he had

access to the safe.       Gaskins responded that the locked safe was quite

different from duffel bags or backpacks because it was locked, not merely

closed, clearly manifesting his expectation of privacy in its contents. The

district court denied Gaskins’s motion, concluding the search was a valid

search incident to arrest. The district court did not decide whether any

other exceptions to the warrant requirement supported the search

because the State expressly argued only that the search was valid

because it was incident to arrest. 3

       Gaskins was convicted on all three counts following a bench trial

on the minutes of testimony.           Gaskins appealed, and we retained the

appeal.

         3The officers’ testimony and the county attorney’s legal argument presented at

the suppression hearing confirm the focus on the search-incident-to-arrest exception to
the warrant requirement. The arresting officer testified about the nature of the van’s
passenger compartment, stating the vehicle had no separate trunk compartment.
Further, the searching officer testified the safe was possibly within the reach of anyone
sitting in the driver’s seat. The scope of the passenger compartment and the question
whether an object was within reaching distance of an arrestee are key factors in
analyzing challenges to warrantless searches made incident to arrest. See Gant, 556
U.S. at 339, 129 S. Ct. at 1716, 173 L. Ed. 2d at 493 (“If there is no possibility that an
arrestee could reach into the area that law enforcement officers seek to search, both
justifications for the search-incident-to-arrest exception are absent and the rule does
not apply.”); State v. Olsen, 315 N.W.2d 1, 5 (Iowa 1982) (concluding the search-
incident-to-arrest exception cannot authorize officers to search a vehicle’s trunk
because the trunk is neither the passenger compartment nor within reaching distance
of any occupant). Additionally, while presenting legal argument after all testimony had
been submitted, the county attorney twice stated, unequivocally, that the search clearly
fell into the search-incident-to-arrest exception and did not assert any other exception
to the warrant requirement justified the search in this case.
                                       6

        II. The Parties’ Positions.

        Gaskins asserts the warrantless search of his locked safe violated

his constitutional rights under the Fourth Amendment to the United

States Constitution and under article I, section 8 of the Iowa

Constitution.     In particular, Gaskins contends the search was not

justified by officer safety concerns or by a danger that the safe or its

contents could be destroyed under the circumstances presented here

because the van’s occupants had been removed from the vehicle and

secured in a squad car.

        Alternatively, Gaskins contends trial counsel was ineffective.

Specifically, he asserts trial counsel breached an essential duty by not

discovering criticism and debate about the soundness of the Supreme

Court’s holdings in Gant and New York v. Belton, 453 U.S. 454, 101 S.

Ct. 2860, 69 L. Ed. 2d 768 (1981), which delineate the circumstances

under which—consistent with the Fourth Amendment—officers may

conduct a warrantless search of an automobile and its contents incident

to the arrest of an occupant. Gaskins asserts that if trial counsel had

uncovered the substantial debate about those cases, he could have

crafted a much stronger motion to suppress.

        The State asserts that existing federal and state court decisions

provide sufficient grounds to affirm the district court’s conclusion that

the warrantless search in this case was a valid search incident to arrest.

        III. Scope of Review.

        “Because this case concerns the constitutional right to be free from

unreasonable searches and seizures, our review of the district court’s

suppression ruling is de novo.”       State v. Watts, 801 N.W.2d 845, 850

(Iowa    2011).     “We   independently    evaluate   the   totality   of   the

circumstances found in the record, including the evidence introduced at
                                     7

both the suppression hearing and at trial.” State v. Vance, 790 N.W.2d

775, 780 (Iowa 2010).

      We    ordinarily    consider    ineffective-assistance   claims   in

postconviction-relief proceedings. Id. at 785. We only resolve them on

direct appeal if the record is adequate to address the claim. Id. If the

record is adequate, we review ineffective-assistance claims de novo.

State v. Halverson, 857 N.W.2d 632, 634 (Iowa 2015). When evaluating

ineffective-assistance claims, we apply a two-pronged test: we ask

whether trial counsel breached an essential duty and whether prejudice

resulted from any such breach.           Vance, 790 N.W.2d at 785; see

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984); Halverson, 857 N.W.2d at 635.

      IV. Analysis.

      We conclude the search in this case was not a valid search

incident to arrest.   Accordingly, we do not reach Gaskins’s alternative

claim that he received ineffective assistance of counsel.

      A. Error Preservation. Gaskins’s motion to suppress raised both

the Fourth Amendment of the United States Constitution and article I,

section 8 of the Iowa Constitution.         At the suppression hearing,

Gaskins’s counsel spoke generally about exceptions to the warrant

requirement, without specifying whether he was referring to the United

States Constitution or the Iowa Constitution. The district court’s ruling

only discusses caselaw—from both this court and the United States

Supreme Court—and does not cite either constitution.

      The State asserts Gaskins’s mere citation to article I, section 8 in

the motion did not preserve error based on that provision of the Iowa

Constitution because the district court did not rule on it. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
                                     8

doctrine of appellate review that issues must ordinarily be raised and

decided by the district court before we will decide them on appeal.”

(Emphasis added.)). However, we have said:

      When there are parallel constitutional provisions in the
      federal and state constitutions and a party does not indicate
      the specific constitutional basis, we regard both federal and
      state constitutional claims as preserved . . . . Even in these
      cases in which no substantive distinction had been made
      between state and federal constitutional provisions, we
      reserve the right to apply the principles differently under the
      state constitution compared to its federal counterpart.

King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (citations omitted). We

conclude Gaskins preserved his arguments under the Iowa Constitution.

See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (“If the court’s

ruling indicates that the court considered the issue and necessarily ruled

on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has

been preserved.” (quoting Meier, 641 N.W.2d at 540)); cf. Vance, 790

N.W.2d at 780 (confining analysis to the Fourth Amendment because the

defendant never raised the Iowa Constitution, even perfunctorily).

      B. Constitutional     Provisions    and    Interpretive    Authority.

Article I, section 8 of the Iowa Constitution provides:

      The right of the people to be secure in their persons, houses,
      papers and effects, against unreasonable seizures and
      searches shall not be violated; and no warrant shall issue
      but on probable cause, supported by oath or affirmation,
      particularly describing the place to be searched, and the
      persons and things to be seized.

Iowa Const. art. I, § 8. This provision “is, of course, nearly identical to

the Fourth Amendment to the United States Constitution . . . . [U]nlike

accepted versions of the Fourth Amendment, article I, section 8 utilizes a

semicolon between the reasonableness clause and the warrant clause.”

State v. Short, 851 N.W.2d 474, 500–01 (Iowa 2014). Members of this

court have disagreed about the semicolon’s significance. On one hand,
                                    9

some have suggested “[t]he semicolon suggests the framers believed that

there was a relationship between the reasonableness clause and the

warrant clause.”    Id. at 483.    Others believe it may simply be an

“inconsequential punctuation difference.”     Id. at 522 (Mansfield, J.,

dissenting).

      We do not revisit that debate here. Even “in . . . cases in which no

substantive distinction [appears] between state and federal constitutional

provisions, we reserve the right to apply the principles differently under

the state constitution compared to its federal counterpart.”    King, 797

N.W.2d at 571 (emphasis added); accord Short, 851 N.W.2d at 491

(majority opinion); State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013);

see also State v. Roth, 305 N.W.2d 501, 510–11 (Iowa 1981) (McCormick,

J., dissenting) (“Iowa has a proud tradition of concern for individual

rights.   We should not be reluctant to show greater sensitivity to the

rights of Iowans under our constitution than the Supreme Court accords

to their rights under the Federal Constitution.”); State v. Eckel, 888 A.2d

1266, 1275 (N.J. 2006) (“Although [Article I, Paragraph 7 of the New

Jersey Constitution] is almost identical to the text of the Fourth

Amendment to the Federal Constitution, we have not hesitated . . . to

afford our citizens greater protection against unreasonable searches and

seizures under Article I, Paragraph 7 than would be the case under its

federal counterpart.”).

      Of course, “our independent authority to construe the Iowa

Constitution does not mean that we generally refuse to follow the United

States Supreme Court decisions.” Short, 851 N.W.2d at 490. Rather, it

merely assures that we “exercise . . . our best, independent judgment of

the proper parameters of state constitutional commands,” as we are

constitutionally required to do. Id.; see also State v. James, 393 N.W.2d
                                          10

465, 468 (Iowa 1986) (Lavorato, J., dissenting) (“We push aside our

constitutional responsibilities when we merely look to the Supreme Court

for answers in examining the state constitution.”). 4 As the New Jersey

Supreme Court has explained:

       [A]lthough th[e Supreme] Court may be a polestar that
       guides us as we navigate the New Jersey Constitution, we
       bear ultimate responsibility for the safe passage of our ship.
       Our eyes must not be so fixed on that star that we risk the
       welfare of our passengers on the shoals of constitutional
       doctrine. In interpreting the New Jersey Constitution, we
       must look in front of us as well as above us.

State v. Hempele, 576 A.2d 793, 800 (N.J. 1990); accord State v.

Hernandez, 410 So. 2d 1381, 1385 (La. 1982) (“We . . . give careful

consideration to the United States Supreme Court interpretations of

relevant provisions of the federal constitution, but we cannot and should

not allow those decisions to replace our independent judgment in

construing the constitution adopted by the people of Louisana.”); State v.

Rowell, 188 P.3d 95, 99–100 (N.M. 2008) (“We are careful to consider the

reasoning     underlying      federal   constitutional      interpretations     when

construing our own New Mexico Constitution, but we have declined to

adopt federal constitutional analysis where we found it unpersuasive or

flawed.”); see also Parker v. Commonwealth, 440 S.W.3d 381, 388 (Ky.

2014) (stressing that, although the state rule and federal rule were

coterminous, “when interpreting our own Kentucky Constitution, th[e]

Court is not tethered to the decisions of the U.S. Supreme Court or the

reasoning upon which those decisions are founded”).



       4The   State urges adoption of “neutral interpretive principles” or “divergence
criteria” for deciding when this court will rely on independent state grounds for its
decisions. We recently addressed and rejected the notion of such criteria in Short, and
do so again here. See Short, 851 N.W.2d at 490–91.
                                    11

      C. The Search in This Case. Police searched Gaskins’s vehicle

and opened the safe without a warrant.         “A warrantless search is

presumed unreasonable” unless an exception applies. State v. Moriarty,

566 N.W.2d 866, 868 (Iowa 1997); accord State v. Allensworth, 748

N.W.2d 789, 792 (Iowa 2008); State v. Tolsdorf, 574 N.W.2d 290, 292

(Iowa 1998). The only exception to the warrant requirement litigated in

the district court—and thus the only one at issue in this appeal—is

search incident to arrest (SITA). See Vance, 790 N.W.2d at 786–87. “The

[SITA] exception derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations.” Gant, 556

U.S. at 338, 129 S. Ct. at 1716, 173 L. Ed. 2d at 493.        Importantly,

however, “[t]he [SITA] exception to the warrant requirement must be

narrowly construed and limited to accommodating only those interests it

was created to serve.”   State v. McGrane, 733 N.W.2d 671, 677 (Iowa

2007); accord Vance, 790 N.W.2d at 786–87; State v. Sterndale, 656 A.2d

409, 410 (N.H. 1995) (noting the proper scope of a SITA “is limited by the

exception’s very specific justifications”); State v. Valdez, 224 P.3d 751,

758–59 (Wash. 2009) (“The [SITA] exception . . . arises from the necessity

to provide for officer safety and the preservation of evidence of the crime

of arrest, and the application and scope of that exception must be so

grounded and so limited.”).

      The seminal decision exploring the SITA exception to the warrant

requirement is Chimel v. California, 395 U.S. 752, 762–63, 89 S. Ct.

2034, 2040, 23 L. Ed. 2d 685, 693–94 (1969). Chimel did not involve the

search of a vehicle; rather, police arrested the defendant in his home and

“then looked through the entire three-bedroom house, including the

attic, the garage, and a small workshop.” Id. at 754, 89 S. Ct. at 2035,
                                         12

23 L. Ed. 2d at 688. The Supreme Court explained the search’s wide

sweep rendered it constitutionally invalid:

      There is ample justification . . . for a search of the arrestee’s
      person and the area “within his immediate control”—
      construing that phrase to mean the area from which he
      might gain possession of a weapon or destructible evidence.

            There is no comparable justification, however, for
      routinely searching any room other than that in which an
      arrest occurs—or, for that matter, for searching through all
      the desk drawers or other closed or concealed areas in that
      room itself. Such searches, in the absence of well-recognized
      exceptions, may be made only under the authority of a
      search warrant.

Id. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. In short, the Court

confirmed that allowing officers to perform a SITA of a limited area

“serve[s]   the   dual   purposes   of    protecting   arresting   officers   and

safeguarding any evidence the arrestee may seek to conceal or destroy.”

Vance, 790 N.W.2d at 786; see Chimel, 395 U.S. at 768, 89 S. Ct. at

2043, 23 L. Ed. 2d at 697.

      In Belton, the Supreme Court confronted the question of the extent

to which the Chimel principles should apply in adjudicating a Fourth

Amendment challenge to the search of an automobile conducted incident

to the arrest of an occupant. See Belton, 453 U.S. at 459, 101 S. Ct. at

2863, 69 L. Ed. 2d at 774 (stating the question in that case was “the

proper scope of a search of the interior of an automobile incident to a

lawful custodial arrest of its occupants”). An officer pulled a car over for

speeding and Belton was a passenger in the car. Id. at 455, 101 S. Ct. at

2861, 69 L. Ed. 2d at 772.      When the officer approached the car, he

“smelled burnt marihuana and [saw] on the floor of the car an envelope

marked ‘Supergold’ that he associated with marihuana.” Id. at 455–56,

101 S. Ct. at 2862, 69 L. Ed. 2d at 772. He arrested the car’s occupants
                                         13

for   possession   of    marijuana      and    “then     searched   the   passenger

compartment of the car.        On the back seat he found a black leather

jacket belonging to Belton,” and upon opening a zipped jacket pocket he

discovered cocaine. Id. at 456, 101 S. Ct. at 2862, 69 L. Ed. 2d at 772.

Belton moved to suppress the cocaine on the ground that the warrantless

search violated his rights under the Fourth Amendment. Id.

       The Court held that “when a policeman has made a lawful

custodial arrest of the occupant of an automobile, he may, as a

contemporaneous         incident   of   that   arrest,    search    the   passenger

compartment of that automobile.” Id. at 460, 101 S. Ct. at 2864, 69 L.

Ed. 2d at 775. The Court based its conclusion on the notion that the

entire passenger compartment is “generally, even if not inevitably, within

‘the area into which an arrestee might reach.’ ” Id. (quoting Chimel, 395

U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694). But see id. at 466,

101 S. Ct. at 2867, 69 L. Ed. 2d at 779 (Brennan, J., dissenting)

(characterizing this assumption as “fiction”).               Further, the Court

concluded that incident to a lawful arrest “the police may also examine

the   contents     of    any   containers      found      within    the   passenger

compartment.”      Id. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775

(majority opinion).

       We adopted Belton in 1981.         State v. Sanders, 312 N.W.2d 534,

539 (Iowa 1981) (“[W]e believe Belton strikes a reasonably fair balance

between the rights of the individual and those of society. We adopt it

now as our rule.”).         However, Belton soon became the subject of

significant criticism.      See Vance, 790 N.W.2d at 787–88 (collecting

commentary along with caselaw from multiple states rejecting Belton);

Eckel, 888 A.2d at 1272–73 (“[T]he drumbeat of scholarly opposition to

Belton has remained constant.”); see also, e.g., Wayne R. LaFave, The
                                    14

Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and

“Good Faith”, 43 U. Pitt. L. Rev. 307, 332 (1982) (“[T]here is good reason

to be critical of the Court’s work in Belton); Eugene L. Shapiro, New York

v. Belton and State Constitutional Doctrine, 105 W. Va. L. Rev. 131, 137

(2002) (“Criticism of Belton has been vigorous and sustained.”).        So,

“[a]lthough Sanders held Iowa’s constitutional doctrine was the same as

Belton, Sanders was decided before the criticism of Belton began.”

Vance, 790 N.W.2d at 789.

       Some members of the Supreme Court became wary of Belton’s

breadth. In 2004, Justice Sandra Day O’Connor expressed concern that,

after Belton, “lower court decisions seem[ed] . . . to treat the ability to

search a vehicle incident to the arrest of a recent occupant as a police

entitlement rather than as an exception [to the warrant requirement].”

Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 2133, 158

L. Ed. 2d 905, 915 (2004) (O’Connor, J., concurring in part).       Justice

Antonin Scalia echoed that concern. Id. at 627, 124 S. Ct. at 2134, 158

L. Ed. 2d at 917 (Scalia, J., concurring in the judgment) (“[C]onducting a

[SITA] is not the Government’s right; it is an exception—justified by

necessity—to a rule that would otherwise render the search unlawful.”).

Justice Scalia also noted the justification for a warrantless SITA—“to find

weapons the arrestee might use or evidence he might conceal or

destroy”—is much weaker when a defendant is “handcuffed and secured

in the back of the officer’s squad car.” Id. at 625, 124 S. Ct. at 2133, 158

L. Ed. 2d at 915–16.

       Critical commentary on Belton culminated at the Supreme Court in

2009. Gant, 556 U.S. at 350–51, 129 S. Ct. at 1723–24, 173 L. Ed. 2d at

501.    In Gant, officers arrested the defendant for driving with a

suspended license, and while he was handcuffed in a patrol car, the
                                     15

officers “searched his car and discovered cocaine in the pocket of a jacket

on the backseat.” Id. at 335, 129 S. Ct. at 1714, 173 L. Ed. 2d at 491.

The Gant Court acknowledged that its decision in Belton had produced

untoward consequences, noting:

             The experience of the 28 years since we decided Belton
      has shown that the generalization underpinning the broad
      reading of that decision is unfounded. We now know that
      articles inside the passenger compartment are rarely within
      the area into which an arrestee might reach, and blind
      adherence to Belton’s faulty assumption would authorize
      myriad unconstitutional searches.

Id. at 350–51, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501 (citations omitted)

(internal quotation marks omitted).        Further, the Court noted the

testimony of the officer who conducted the warrantless search in Gant

manifested the very concern several justices had raised in Thornton: that

police had come to view vehicle searches as an entitlement, not an

exception.   Id. at 336–37, 129 S. Ct. at 1715, 173 L. Ed. 2d at 492

(“When asked . . . why the search was conducted, [the officer] responded:

‘Because the law says we can do it.’ ”).

      Gant limited, but did not completely disavow, Belton.       See id. at

345–46, 129 S. Ct. at 1720–21, 173 L. Ed. 2d at 497–98 (rejecting a
reading of Belton, not Belton itself). In particular, the Court limited the

circumstances in which a warrantless search of a vehicle incident to

arrest is permitted, because holding otherwise would fail to address “the

concern about giving police officers unbridled discretion to rummage at

will among a person’s private effects.” Id. at 345, 129 S. Ct. at 1720, 173

L. Ed. 2d at 497. Thus, the holding in Gant authorizes officers to search

a suspect’s vehicle incident to the suspect’s arrest “only if the arrestee is

within reaching distance of the passenger compartment at the time of the

search or it is reasonable to believe the vehicle contains evidence of the
                                      16

offense of arrest.” Id. at 351, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501

(emphasis added). In effect, Gant added a third justification under the

Fourth Amendment for searching an automobile incident to the arrest of

a recent occupant: a “more general sort of evidence-gathering” pertaining

to the crime of arrest. Thornton, 541 U.S. at 629, 124 S. Ct. at 2135, 158

L. Ed. 2d at 918; see Gant, 556 U.S. at 343, 129 S. Ct. at 1719, 173 L.

Ed. 2d at 496 (noting the evidence-gathering rationale “does not follow

from Chimel”).

      Although the Supreme Court heard numerous calls to revisit

Belton, it did not do so until the Gant decision in 2009. See Vance, 790

N.W.2d at 787–88 (tracing the history of criticism); see also Gant, 556

U.S. at 350–51, 129 S. Ct. at 1723–24, 173 L. Ed. 2d at 501. Similarly,

since the Supreme Court decided Gant in 2009, we have not had

occasion until today to decide whether the protection against warrantless

searches and seizures incident to arrest offered by article I, section 8 of

the Iowa Constitution conforms to the rule announced in Gant. Indeed,

our decisions have cited Gant only twice, and in those cases, it was

tangential to the resolution of the issue before us. Vance, 790 N.W.2d at

789–90 (acknowledging Gant limited Belton and mentioning Gant in the

context of a defendant’s claim that his counsel was ineffective for failing

to research or discover criticism of Belton, but ultimately declining to

rule on the ineffective-assistance claim); see also State v. Baldon, 829

N.W.2d 785, 819 (Iowa 2013) (Appel, J., specially concurring) (citing Gant

as an example of the United States Supreme Court recognizing and

adopting principles from state constitutional jurisprudence). And just as

the Supreme Court revisited the rule previously announced in Belton, we

are free to revisit our prior decisions and determine whether the Iowa

Constitution     demands   a   different   standard   of   protection   against
                                    17

warrantless searches incident to arrest.        This case presents that

opportunity.

      Applying the rule in Belton, we concluded the dual purposes of

promoting officer safety and preventing evidence destruction justified a

warrantless search even when it occurred “after the arrestee ha[d] been

handcuffed and restrained outside the vehicle.” State v. Edgington, 487

N.W.2d 675, 677 (Iowa 1992); see Sanders, 312 N.W.2d at 537, 539.

Courts in some other states reached the same conclusion in lockstep

with Belton.   See, e.g., Stout v. State, 898 S.W.2d 457, 459–60 (Ark.

1995) (adopting Belton under the Arkansas Constitution and upholding a

warrantless search of an automobile incident to the arrest conducted

after the defendant was handcuffed and standing on the side of the

highway); State v. Delossantos, 559 A.2d 164, 168 (Conn. 1989) (“We

hold that when police make a lawful custodial arrest of an occupant of

an automobile, and the arrestee is detained at the scene, police may

contemporaneously search without a warrant the interior passenger

compartment of the automobile.”); State v. Charpentier, 962 P.2d 1033,

1034–35,   1037   (Idaho   1998)   (adopting   Belton   under   the   Idaho

Constitution and applying it in upholding a warrantless search of an

automobile conducted after the defendant was handcuffed and placed in

the patrol car); State v. Rice, 327 N.W.2d 128, 130–31 (S.D. 1982)

(applying Belton and upholding a search even though the defendant “was

not in a position to . . . reach a weapon or remove evidence at the time of

the search”). But all these state court decisions—including our own—

relied on Belton’s “faulty assumption” that the entire passenger

compartment of a vehicle is always within an occupant’s reach. Gant,

556 U.S. at 350–51, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501; see Belton,

453 U.S. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775. And in Gant,
                                     18

the Court specifically repudiated that assumption, calling it an

unfounded generalization that might “authorize myriad unconstitutional

searches.” Gant, 556 U.S. at 350–51, 129 S. Ct. at 1723, 173 L. Ed. 2d

at 501.

      In contrast to the group of states that adopted and followed Belton

in interpreting their state constitutions, several others have departed

from Belton, focusing on the specific and narrow Chimel considerations

underpinning the SITA exception to the warrant requirement.              For

example, in Eckel, the New Jersey Supreme Court stated:

      Because the [SITA] exception to the warrant requirement was
      lim[it]ed for two specific purposes—the protection of the
      police and the preservation of evidence—and because neither
      purpose can be advanced by searching the vehicle of a
      person who effectively is incapacitated, we hold that such a
      search is incompatible with . . . the New Jersey Constitution.
      To the extent [Belton] has concluded otherwise in
      [interpreting] the Federal Constitution, we respectfully part
      company with the United States Supreme Court.

Eckel, 888 A.2d at 1266. The New Jersey court rejected Belton because

Belton wrote “out of the [SITA] exception the two Chimel justifications . . .

[and] reached a result that is detached from established Fourth

Amendment jurisprudence.”       Id. at 1277.   Accordingly, the court held

that “[o]nce the occupant of a vehicle has been arrested, removed and

secured elsewhere, the considerations informing the search incident to

arrest exception are absent and the exception is inapplicable.” Id.

      Similarly, the Washington Supreme Court has held that a

warrantless search of a locked container found in an automobile incident

to the arrest of an occupant is only permissible under that state’s

constitution to “preserve officer safety or prevent destruction or

concealment of evidence of the crime of arrest.” Valdez, 224 P.3d at 759.

In other words, warrantless searches of locked containers incident to the
                                     19

arrest of an occupant of a vehicle are permitted under the Washington

Constitution only where Chimel would allow them.          Compare id., with

Chimel, 395 U.S. at 768, 89 S. Ct. at 2043, 23 L. Ed. 2d at 697.          If

“officers have the opportunity to prevent the individual’s access to the

contents of [a] container so that officer safety or the preservation of

evidence of the crime of arrest is not at risk, there is no justification

under the [SITA] exception to permit a warrantless search of [a] locked

container.” Valdez, 224 P.3d at 759. As the defendant in Valdez had no

access to his vehicle at the time of the search of his locked container

because he was handcuffed and secured in a patrol car, the “evidence

gathered during that search [wa]s therefore inadmissible.”       Id. at 753,

760.

       The New Hampshire Supreme Court has also departed from Belton

in interpreting that state’s constitution. See Sterndale, 656 A.2d at 409–

10. After an officer stopped Sterndale for speeding, the officer detected

the smell of burnt marijuana emanating from the vehicle.           Sterndale

“admitted that she had just smoked a ‘joint,’ or marijuana cigarette.” Id.

at 410. The officer handcuffed the defendant, placed her in his cruiser,

returned to her car, and opened a brown paper bag, in which he found

additional marijuana. Id. The court held the search was not a valid SITA

under the New Hampshire Constitution:

       In the instant case, the defendant was secured, in handcuffs,
       in the rear of a police cruiser, with two Nashua Police officers
       on the scene. . . . [T]he legitimate law-enforcement concerns
       underlying the [SITA] exception plainly were not present in
       this case.     Since the search was made only after the
       defendant was securely in custody and unable to gain access
       to the vehicle, it was not justifiable as a search incident to
       arrest.

Id.
                                    20

      Several other courts have focused on the Chimel considerations in

declining to follow Belton when interpreting their states’ constitutions.

See, e.g., Hernandez, 410 So. 2d at 1385 (“[T]he Belton rule can have no

application after an arrestee has been handcuffed and removed from the

scene, foreclosing even the slightest possibility that he could reach for an

article within the vehicle.”); Rowell, 188 P.3d at 101 (“There simply was

no reasonable basis for concluding that this handcuffed defendant locked

inside a patrol car was in any position to escape and get to the contents

of his own car to gain access to any weapons or evidence.”); State v.

Pittman, 127 P.3d 1116, 1121 (N.M. Ct. App. 2005) (“[W]e hold that even

after a valid arrest, one of Chimel’s two rationales must be present before

an officer may search a vehicle without a warrant.”), cert. quashed, 152

P.3d 152 (N.M. 2007); Commonwealth v. White, 669 A.2d 896, 902 & n.6

(Pa. 1995); State v. Bauder, 924 A.2d 38, 47 (Vt. 2007) (rejecting Belton

“in favor of the traditional rule” because “no persuasive evidence or

argument [wa]s offered to demonstrate how defendant—handcuffed in

the back seat of the police cruiser—or his passenger who had left the

scene, presented any form of threat”).

      We now agree with the approach taken by the courts that have

rejected the Belton rule that authorized warrantless searches of

containers without regard to the Chimel considerations of officer safety

and protecting evidence. “When lines need to be drawn in creating rules,

they should be drawn thoughtfully along the logical contours of the

rationales giving rise to the rules, and not as artificial lines drawn

elsewhere that are unrelated to those rationales.” Rowell, 188 P.3d at

101; see also Valdez, 224 P.3d at 758 (reminding readers of “the danger

of wandering from the narrow principled justifications of the [SITA]

exception, even if such wandering is done an inch at a time”).
                                    21

      Ostensibly, Gant is a limitation on Belton. See Vance, 790 N.W.2d

at 788 (“[Gant] rejected the broad interpretation of Belton and tethered

Belton’s bright-line rule to the dual purposes underlying the search-

incident-to-arrest exception as recognized in Chimel.”).    But Gant also

recognized an additional purpose authorizing officers to invoke the SITA

exception and conduct a warrantless search of the auto and containers

within it under the Fourth Amendment if “it is reasonable to believe the

vehicle contains evidence of the offense of arrest.” Gant, 556 U.S. at 351,

129 S. Ct. at 1723, 173 L. Ed. 2d at 501. This additional purpose stands

wholly separate from the justifications originally underlying the SITA

exception. See id. at 343, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496.

      We approve Gant’s “reaching distance” rationale as an appropriate

limitation on the scope of searches incident to arrest under article I,

section 8 of the Iowa Constitution because that limitation is faithful to

the underlying justifications for warrantless searches incident to arrest.

However, we decline to adopt Gant’s alternative evidence-gathering

rationale for warrantless searches incident to arrest under the Iowa

Constitution because it would permit the SITA exception to swallow

completely the fundamental textual rule in article I, section 8 that

searches and seizures should be supported by a warrant.           In other

words, “use of a [SITA] rationale to sanction a warrantless search that

has nothing to do with its underlying justification—preventing the

arrestee from gaining access to weapons or evidence—is an anomaly.”

Rowell, 188 P.3d at 100; see also State v. Snapp, 275 P.3d 289, 301

(Wash. 2012) (declining to adopt the evidence-gathering rationale under

the state constitution).    Although the evidence-gathering rationale

announced in Gant limits the propriety of a warrantless search of an

automobile and containers found within it incident to arrest to those
                                    22

instances when it is reasonable to believe the vehicle contains evidence of

the crime of arrest, construing the exception this broadly “would serve no

purpose except to provide a police entitlement.” Gant, 556 U.S. at 347,

129 S. Ct. at 1721, 173 L. Ed. 2d at 499.         Police entitlements are

incompatible with Iowans’ robust privacy rights.       See, e.g., Short, 851

N.W.2d at 507 (Cady, C.J., concurring specially) (“[W]e cannot ignore that

our history of robust protection of human rights owes in no small part to

our authority within America’s federalist system to independently

interpret our constitution.”); Baldon, 829 N.W.2d at 803 (holding a

consent provision in a parole agreement does not voluntarily waive

constitutional   search   and   seizure   protection     under   the   Iowa

Constitution); State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011)

(concluding consent to search obtained during a traffic stop was invalid

because traffic stops are inherently coercive); State v. Ochoa, 792 N.W.2d

260, 291 (Iowa 2010) (finding invalid a search that “too closely

resemble[d] authority pursuant to a general warrant”).

      In declining to adopt Gant’s broad evidence-gathering purpose as a

rationale for warrantless searches of automobiles and their contents

incident to arrest under article I, section 8 of the Iowa Constitution, we

note the historical precedent upon which that rationale relies was

specifically rejected in Chimel. See Chimel, 395 U.S. at 768, 89 S. Ct. at

2042–43, 23 L. Ed. 2d at 696–97; see also Gant, 556 U.S. at 343–44, 129

S. Ct. at 1719, 173 L. Ed. 2d at 496 (relying on Justice Scalia’s

concurrence in Thornton in formulating the evidence-gathering rationale);

Thornton, 541 U.S. at 629, 124 S. Ct. at 2135–36, 158 L. Ed. 2d at 918

(Scalia, J., concurring in the judgment) (collecting cases). We conclude

the SITA exception to the warrant requirement under article I, section 8

of the Iowa Constitution is justified by the State’s interest in preserving
                                        23

evidence from destruction, not merely collecting it expediently. Cf. State

v. Tibbles, 236 P.3d 885, 889 (Wash. 2010) (en banc) (“[W]hatever relative

convenience to law enforcement may obtain from forgoing the burden of

seeking a warrant . . . , we adhere to the view that ‘mere convenience is

simply not enough.’ ” (quoting State v. Patterson, 774 P.2d 10, 12 (Wash.

1989))).

      Indeed,     the   important   distinction   between    the   purpose    of

preserving evidence and the purpose of collecting evidence in SITA

analysis was evident even before Chimel as the Supreme Court

demonstrated a desire to constrain the scope of the SITA exception under

the Fourth Amendment. Preston v. United States, 376 U.S. 364, 367–68,

84 S. Ct. 881, 883–84, 11 L. Ed. 2d 777, 780–81 (1964).                 While

recognizing the general parameters of the SITA exception, the Court

noted “these justifications are absent where a search is remote in time or

place from the arrest.” Id. at 367, 84 S. Ct. at 883, 11 L. Ed. 2d at 780.

When a vehicle search “was not undertaken until [defendant] . . . had

been arrested and taken in custody,” there “was no danger that [he]

could have used any weapons in the car or could have destroyed any

evidence of a crime.” Id. at 368, 84 S. Ct. at 883, 11 L. Ed. 2d at 781.

The search performed without a warrant was “simply not incident to the

arrest.”   Id. at 367, 84 S. Ct. at 883, 11 L. Ed. 2d at 780–81.             We

conclude    the   Court’s   rationale   in   Preston   further   supports    our

determination that the Gant evidence-gathering rationale is divorced

from the underlying SITA justifications and is repugnant to article I,

section 8 of the Iowa Constitution.

      Applying these principles to the facts of this case, we conclude the

search of Gaskins’s locked safe was not a valid SITA under article I,

section 8. Two police officers were on the scene. Although the van had
                                    24

two occupants, both Gaskins and his passenger were secured in a squad

car before the search of the vehicle and the safe were undertaken. The

officer who performed the search testified there was no way Gaskins

could have retrieved anything from the locked safe while in custody in

the squad car. See Pittman, 127 P.3d at 1122 (“Handcuffed and secured

in the patrol car, Defendant had no realistic opportunity to escape,

wrestle the car keys from the officer, rush over to his locked car, unlock

the door, and seize the weapon from under the seat.”); see also Rose v.

Commonwealth, 322 S.W.3d 76, 80 (Ky. 2010) (finding a search of a

vehicle incident to the occupant’s arrest unreasonable when the

occupant was secured in a police cruiser because “there was no

possibility [the occupant] could have gained access to the vehicle to

destroy evidence or access a weapon”); Camacho v. State, 75 P.3d 370,

400–01 (Nev. 2003) (concluding when a defendant was arrested and

placed in handcuffs, it was “extremely unlikely” he could have “reached a

weapon in his vehicle or destroyed or concealed evidence in his vehicle”).

The officers’ safety was not endangered, and Gaskins could only have

reached the vehicle to destroy evidence if he had “the skill of Houdini and

the strength of Hercules.” United States v. Frick, 490 F.2d 666, 673 (5th

Cir. 1973) (Goldberg, J., concurring in part and dissenting in part). We

decline to attribute these mythical qualities to Gaskins.

      Because we conclude the search was not a valid SITA under article

I, section 8 of the Iowa Constitution, the safe’s locked status does not

control our decision. See Perez v. People, 231 P.3d 957, 962 (Colo. 2010)

(“[A] container cannot be accessed if the vehicle containing it cannot be

searched . . . .”).    We acknowledge that some other courts have

concluded officers can open locked containers during a SITA. See, e.g.,

United States v. Vinton, 594 F.3d 14, 26 (D.C. Cir. 2010) (briefcase);
                                    25

United States v. Thomas, 11 F.3d 620, 624–25, 628 (6th Cir. 1993) (safe);

United States v. McCrady, 774 F.2d 868, 871–72 (8th Cir. 1985) (glove

compartment); People v. Tripp, 715 N.E.2d 689, 698 (Ill. App. Ct. 1999)

(footlocker); Pack v. Commonwealth, 368 S.E.2d 921, 923 (Va. Ct. App.

1988) (luggage). But if we focused here on the fact the safe was locked,

we would be considering only a very narrow spatial question while

presuming the officers could permissibly search the van under the SITA

exception to article I, section 8 once Gaskins and his passenger were

secured. This we decline to do.

      Although   we   reject   Gant’s    evidence-gathering   rationale   for

warrantless searches incident to arrest under the Iowa Constitution, we

of course do not reject the SITA exception entirely. Our decision today

does not preclude a warrantless SITA under circumstances in which the

security of an arresting officer is implicated, see Tolsdorf, 574 N.W.2d at

291, or when the vehicle may reasonably be suspected to contain volatile

chemicals, see State v. Ferguson, 128 P.3d 1271, 1275 (Wash. Ct. App.

2006), or when the arrested person is within reach of contraband and

thus able to attempt to destroy or conceal it. We leave for another day

any questions related to these or similar scenarios in which the dual

purposes of the SITA exception are supported in the record.

      We are sensitive to the State’s policy concerns, but we conclude

they do not justify the warrantless search incident to arrest in this case.

For example, the State contends obtaining a warrant in the field is not an

instantaneous proposition, especially when—as in this case—a traffic

stop occurs at a late hour, making it less convenient to approach a

magistrate and request a warrant immediately.        We acknowledge the

officers likely would not have obtained a search warrant instantaneously,

had they requested one. Yet, any inconvenience resulting from the need
                                     26

to request and obtain a search warrant at the late hour does not defeat

the protection offered by article I, section 8 because

      constitutional protections do not simply fade away with the
      setting of the sun. The prohibition against unreasonable
      searches safeguards people . . . at all times. We cannot
      conclude that the validity of a warrantless search could turn
      solely on the time of day that search was conducted.

State v. Elison, 14 P.3d 456, 471 (Mont. 2000).

      Nonetheless, the State continues, a child could have gained access

to the drugs and the gun in Gaskins’s vehicle had it been left unattended

on a Davenport street while officers obtained a warrant.     Further, the

State asserts a warrant requirement in this instance puts a strain on

police resources, because one officer would have to stay with the vehicle

while another traveled to get the magistrate’s approval. However, these

concerns are premised on the notion the vehicle would remain on the

street.   Because it was impounded, both of these dangers are more

imaginary than real.

      Lastly, the State contends, the public sees no benefit in exchanging

an immediate warrantless search for an impoundment and later search

authorized by warrant.     We conclude this assertion misses the mark.

The protections of article I, section 8 against warrantless searches are

not meant to benefit the public generally.      They are meant to protect

individual citizens and their reasonable expectations of privacy.     See

Ochoa, 792 N.W.2d at 274–75 (“[I]t is clear that the Iowa framers placed

considerable value on the sanctity of private property.”); cf. McClurg v.

Brenton, 123 Iowa 368, 371, 98 N.W. 881, 882 (1904) (“The right of the

citizen to occupy and enjoy his home . . . is embodied in every bill of

rights defining the limits of government power in our own republic.”

(Emphasis added.)). As we explained exactly one hundred years ago:
                                        27
      [T]he Constitution [is not] a public enemy whom judges are
      charged to disarm whenever possible. It is the protector of
      the people, placed on guard by them to save the rights of the
      people against injury . . . . To hold that attack upon it is for
      the public good is to commend the soldier for tearing down
      the rampart which enables him to sleep in safety.

Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 272, 154 N.W. 1037,

1047 (1915).

      In sum, we overrule Sanders because we conclude Belton no longer

sets forth the proper scope of the SITA exception under the Iowa

Constitution.     Instead, the SITA exception to the warrant requirement

under article I, section 8 is tethered to its original underlying dual

justifications.    When we apply those justifications in this case, we

conclude the search of Gaskins’s van and safe was not a valid

warrantless SITA under the Iowa Constitution because at the time the

police officer conducted it there was no danger to the officer or likelihood

that Gaskins could access the vehicle to obtain a weapon or destroy

evidence. Of course, our holding that the warrantless search of the van

was not justified under article I, section 8 as a SITA does not mean the

van was immune from search; our holding “is instead that a warrant is

generally required before such a search.” Riley v. California, ___ U.S. ___,

___, 134 S. Ct. 2473, 2493, 189 L. Ed. 2d 430, 451 (2014).

      V. Conclusion.

      “The word ‘automobile’ is not a talisman in whose presence the

[constitutional protection against warrantless searches and seizures]

fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443,

461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971). That sentiment

applies with equal force to article I, section 8 of the Iowa Constitution.5


      5We   are mindful that our recent article I, section 8 decisions have received
criticism because they diverge from the Supreme Court’s interpretation of the Fourth
                                         28

Because Gaskins could not access anything inside the vehicle or the

locked safe when the search occurred, the search of the safe was not a

valid SITA.     Accordingly, the State was required to obtain a warrant

before searching the van and the safe.            Because it did not do so, the

district court should have granted Gaskins’s motion to suppress.                   We

reverse Gaskins’s conviction and remand for proceedings consistent with

this opinion.

       REVERSED AND REMANDED.

       Cady, C.J., and Wiggins and Appel, JJ., join this opinion. Cady,

C.J., files a separate concurring opinion in which Wiggins, J., joins.

Appel, J., files a separate concurring opinion in which Cady, C.J., and

Wiggins, J., join.      Waterman, J., files a dissenting opinion in which

Mansfield and Zager, JJ., join. Zager, J., files a dissenting opinion in

which Waterman and Mansfield, JJ., join.




___________________
Amendment. See, e.g., Short, 851 N.W.2d at 515 (Waterman, J., dissenting) (“Revisiting
settled precedent whenever four justices of this court find prior cases ‘unpersuasive’
leads to serious and troubling repercussions.”); Baldon, 829 N.W.2d at 837 (Mansfield,
J., dissenting) (“I have serious concerns about an approach that treats a United States
Supreme Court decision as just another dish on the menu.”). However, the notion that
any departure from precedent is problematic is a non sequitur. The Supreme Court has
revised its understanding of the SITA exception over time. Compare Preston, 376 U.S.
at 367–68, 84 S. Ct. at 883–84, 11 L. Ed. 2d at 781, with Gant, 556 U.S. at 350–51, 129
S. Ct. at 1723, 173 L. Ed. 2d at 500–01. Today, we merely do the same. We are not
forever confined to the analysis our predecessors undertook, because no supreme court
is—nor should it be.
                                     29
                                                 #13–1915, State v. Gaskins

CADY, Chief Justice (concurring specially).
      I concur in the opinion of the majority.        All searches must be

reasonable, and reasonableness must both justify the search and

constrain its scope. See State v. King, ___ N.W.2d ___, ___ (Iowa 2015).

Under the facts of this case, the justification for permitting a warrantless

search incident to arrest does not apply to a locked safe inside an

unoccupied vehicle.

      Additionally, a recognized exception to the warrant requirement

cannot live beyond the life of the justification responsible for its

existence.    The automobile exception to the warrant requirement was

created by the United States Supreme Court ninety years ago during

Prohibition. See Carroll v. United States, 267 U.S. 132, 153–54, 45 S. Ct.

280, 285, 69 L. Ed. 543, 551 (1925). The justification for the warrantless

search was grounded in the practical problems for police of obtaining a

search warrant presented by the mobility of a vehicle. Id. at 267 U.S. at

153, 45 S. Ct. at 285, 69 L. Ed. at 551 (noting the vehicle could be

moved out of the jurisdiction while the warrant was being sought). The

need for the automatic nature of this exigency justification, however, may

be affected by the changing technology that is speeding up the warrant

process. While a vehicle remains mobile, the Iowa court system is now

the first court system in the nation to be totally electronic for all users at

all levels.   Court users can electronically access courts, and a police

officer now has the capability to access the court system from the

computer in a police vehicle to request a search warrant based on

probable cause at all times of the day and night. In the future, warrants

will likely be received within a short period of time during the course of a

roadside encounter.
                                   30

     An automatic exception to the warrant requirement, particularly

one based on exigency, must account for the new world of technology,

and must not continue to exist simply because it existed in the past. In

some instances, this new world may require movement from an

automatic exigency to the standard exigent-circumstances requirement

in which the rapid nature of occurrences precluding the wait for a

warrant must be explained on a case-by-case basis.

     Wiggins, J., joins this special concurrence.
                                           31

                                                        #13–1915, State v. Gaskins

APPEL, Justice (concurring specially).

       I join the court’s opinion in this very sensitive area of state

constitutional law involving a traffic stop and a subsequent search. 6 I

write separately to explore some of the issues raised in the dissent.

       First, I briefly review the merits of the court’s opinion regarding the

search-incident-to-arrest issue raised in this case. Second, I review the

merits of the State’s “neutral criteria” approach to state constitutional

law proposed by the dissent.           Third, in light of the discussion of the

neutral criteria, I examine the dissent’s treatment of the automobile

exception under the Iowa Constitution.              Along the way, I contrast the

dissent’s approach to the state constitutional issue, which I assume

applies its neutral criteria, with an approach based on analysis of the

fidelity of the automobile exception to the constitutional underpinnings

of article I, section 8 of the Iowa Constitution.




       6The   consistency of traffic stops with constitutional requirements has been the
subject of much contemporary debate in light of the United States Supreme Court’s
evolving approach. In Whren v. United States, the United States Supreme Court held
that a citizen could not challenge a traffic stop based upon the subjective views of a
police officer. 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 97–98
(1996). Then, in Atwater v. City of Lago Vista, the United States Supreme Court held
that a citizen could be arrested for a minor traffic violation. 532 U.S. 318, 354, 121 S.
Ct. 1536, 1557, 149 L. Ed. 2d 549, 577 (2001). Because of the scope of arrest power
and the difficulty in challenging the validity of an arrest, the search-incident-to-arrest
doctrine has become a controversial issue. See State v. Pals, 805 N.W.2d 767, 772–73,
775–77 (Iowa 2011); David A. Harris, The Stories, the Statistics, and the Law: Why
“Driving While Black” Matters, 84 Minn. L. Rev. 265, 312–19 (1999). See generally
Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998). The
importance of the issues surrounding searches incident to arrest in the context of
automobile stops is highlighted by Justice Scalia in Thornton v. United States, who
observed that such searches are “legion.” 541 U.S. 615, 628, 124 S. Ct. 2127, 2135,
158 L. Ed. 2d 905, 917 (2004) (Scalia, J., concurring in the judgment).
                                     32

      I. Arguments on the Merits of Search Incident to Arrest.

      The court’s opinion addresses the search-incident-to-arrest issue

under article I, section 8 of the Iowa Constitution with thoroughness and

precision.    It is a model of scholarship and clear writing.    And, it is

wholly loyal to basic principles of search and seizure law under article I,

section 8 of the Iowa Constitution.       I write separately on the search-

incident-to-arrest issue only to make a few points.

      To the extent the dissent relies on “inconvenience,” there is, of

course, a degree of inconvenience in requiring a warrant in this case.

That much must be conceded.         In fact, the warrant requirements of

article I, section 8 of the Iowa Constitution generally are inconvenient

provisions.    If inconvenience were enough to defeat the assertion of

constitutional rights, however, the warrant requirement would be

meaningless, as would all the other inconvenient provisions in article I of

the Iowa Constitution, such as the right to speedy trial, the right to be

informed of the accusation, the right to confront witnesses, the right to

compulsory process, and the right to have the assistance of counsel.

Iowa Const. art. I, § 10.

      The very purpose of constitutional provisions, however, is to

prevent current practical considerations from eviscerating “inalienable”

constitutional rights. Id. art. I, § 1. History does, of course, have models

in which current practical considerations proceed without inconvenient

individual protections.     “[T]he mere fact that law enforcement may be

made more efficient can never by itself justify disregard” of constitutional

search and seizure requirements. Mincey v. Arizona, 437 U.S. 385, 393,

98 S. Ct. 2408, 2414, 57 L. Ed. 2d 290, 301 (1978).

      In any event, even on a pragmatic level, while it may be somewhat

inconvenient, the notion that obtaining a warrant is burdensome is no
                                    33

longer sustainable. At the time Carroll v. United States was decided, it

might have taken several hours or even days to obtain a warrant. 267

U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (establishing the

automobile exception, creating a rule that presumes exigency based

upon the mobility of an automobile suspected to contain evidence of

criminal activity or contraband); see Carol A. Chase, Privacy Takes a

Back Seat: Putting the Automobile Exception Back on Track After Several

Wrong Turns, 41 B.C. L. Rev. 71, 87–89 (1999) [hereinafter Chase]. But,

things have changed. As early as 1972, police in California obtained a

warrant to search a home in twelve minutes. People v. Aguirre, 103 Cal.

Rptr. 153, 155 (App. Dep’t Super. Ct. 1972). In 1998, an Arizona state

court noted that a police department was able to get a warrant in as little

as fifteen minutes. State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App.

1998). Closer to home, a federal trial court in the southern district of

Iowa noted that it takes as little as twenty minutes to obtain a telephonic

search warrant. United States v. Baker, 520 F. Supp. 1080, 1084 (S.D.

Iowa 1981). I agree with Chief Justice Cady’s special concurrence that in

this day and age, with all of our marvelous technology, there is no reason

why police officers with probable cause cannot obtain a search warrant

with expedition.   If a warrant cannot be expeditiously obtained, the

problem is not with the warrant requirements of article I, section 8, but

is likely an administrative problem that needs to be resolved by local

authorities.

      The dissent stresses the need for a bright-line rule in this case.

The need for “bright-lines” is a good slogan, but the question of a bright-

line poses a number of difficult problems. At the outset, some problems,

including those of constitutional dimension, may not be amenable to a

bright-line approach. For instance, the question of probable cause must
                                     34

be based on the totality of the circumstances and all legitimate

inferences. A set of bright-line rules would be of no help and would do

some harm. Similarly, in a civil context, the Restatement (Third) of Torts

rejects bright-line rules in negligence cases with respect to duty and

scope of duty because of the tremendous factual variation in negligence

cases that defy rational categorization. See Thompson v. Kaczinski, 774

N.W.2d 829, 834–35 (Iowa 2009) (citing Restatement (Third) of Torts:

Liab. for Physical Harm §§ 6, 7 (Proposed Final Draft No. 1, 2005)). A

bright-line rule favoring bright-lines is a bad rule.

      In addition, even if the subject matter appears amenable to a

bright-line rule, the rule must be properly constructed and placed.     A

bright-line rule that tramples on constitutional rights may be crystal

clear and plainly unlawful. In constitutional law, crafting an appropriate

bright-line rule and putting it in the right place is a delicate matter.

While a bright-line rule may be promoted on grounds of clarity, one must

be alert to the possibility that the placement of the bright-line—where

you draw the line, to use a colloquial phrase—may effectuate a

significant and even dramatic shift in substantive law.

      The Supreme Court’s effort to establish bright-line rules in the

area of search-incident-to-arrest cases illustrates the difficulty.   The

Supreme Court attempted to draw and place a bright-line in Marron v.

United States, 275 U.S 192, 199, 48 S. Ct. 74, 77, 72 L. Ed. 231, 238

(1927), then moved it four years later in Go-Bart Importing Co. v. United

States, 282 U.S. 344, 358, 51 S. Ct. 153, 158, 75 L. Ed. 374, 383 (1931),

then modified it again in Harris v. United States, 331 U.S. 145, 169, 67

S. Ct. 1098, 1110, 91 L. Ed. 1399, 1415–16 (1947), and revised it again

in United States v. Rabinowitz, 339 U.S. 56, 62–63, 70 S. Ct. 430, 434,

94 L. Ed. 653, 658–59 (1950), which was then overruled in part by
                                    35

Chimel v. California, 395 U.S. 752, 768, 89 S. Ct. 2034, 2042–43, 23 L.

Ed. 2d 685, 696–97 (1969), which was itself modified in New York v.

Belton, 453 U.S. 454, 459–60, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768,

774–75 (1981), which was undercut in Thornton v. United States, 541

U.S. 615, 621–22, 124 S. Ct. 2127, 2131–32, 158 L. Ed. 2d 905, 913–14

(2004), and finally revised again in Arizona v. Gant, 556 U.S. 332, 343–

44, 129 S. Ct. 1710, 1719, 173 L. Ed. 2d 485, 496–97 (2009). As one of

the leading constitutional scholars has observed, “What renders

substantive fourth amendment law incomprehensible, however, is not

the lack of categorical rules but too many of them.” Albert W. Alschuler,

Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 287

(1984).

      In any event, this case has a rule that strikes me as pretty bright:

namely, that when a locked container in an automobile is plainly out of

the reach of an arrested person, who is handcuffed and sitting in the

back of a police car, and the person’s confederates are similarly removed

from the proximity of the locked container, the police may not conduct a

search incident to arrest without a warrant.

      Importantly, the rule in this case is drawn in the right place. The

placement of the line in the court’s opinion is required by the principle of

the proportionality rule, which is a central component of search and

seizure law under article I, section 8. The theory of the search-incident-

to-arrest exception to the warrant requirement, which is not challenged

in this case, generally allows police to search an arrested person and

areas within the arrested person’s reach in order to prevent the arrestee

from seizing a weapon or destroying evidence. See State v. McGrane, 733

N.W.2d 671, 677 (Iowa 2007). The scope of the exception to the warrant

requirement, therefore, must be limited to those situations in which an
                                    36

arrestee might seize a weapon or destroy evidence.       See id.   However,

when the suspect is handcuffed in the police car and his confederates

are also removed from the area or thing to be searched, the search-

incident-to-arrest exception simply does not apply.       To allow such a

search would violate the proportionality requirement of search and

seizure law. On the merits, the court’s opinion is spot on.

      While the dissent claims to advocate bright-line rules, such

advocacy is, to some extent, inconsistent with its strong preference for

federal authority, which seems to be implicit in the neutral criteria

argument it advances. For instance, in Schneckloth v. Bustamonte, the

United States Supreme Court rejected a bright-line requirement of

knowing consent in favor of a “blender” method of constitutional

adjudication in which all the circumstances present are thrown into a

blender like fruits and vegetables, the blender is turned on high, and

judges rule based upon a judicial taste test. 412 U.S. 218, 225–26, 93

S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 861–62 (1973). Some like it sweet,

some like it sour, some like it bitter. With the application of Schneckloth,

you are likely to learn more about the world view of the judge—

specifically, the judge’s philosophy of language and knowledge, and

acceptance (or rejection) of principles of social psychology—than the true

nature of the consent.     Under the theory of the dissent, the neutral

criteria would be employed as a barrier to prevent the court from

adopting a different, more predictable, and at least arguably better,

approach to the problem.     As will be seen below, however, the central

criteria to determine the proper approach under the Iowa Constitution

should not be compliance with some kind of artificial checklist or neutral

criteria designed to inhibit this court’s range of constitutional options

under the Iowa Constitution.     Instead, the court should use ordinary
                                     37

tools of constitutional interpretation, well known to lawyers and taught

at every law school, to determine which approach to a particular

constitutional issue is more persuasive and demonstrates overall fidelity

to the underlying constitutional values.

        Another issue in the case is officer safety.    The United States

Supreme Court has traditionally been extremely attentive to issues of

officer safety. The high court has recognized the lack-of-safety concern

in cases like this one. See, e.g., Chimel, 395 U.S. at 753–54, 763, 89

S. Ct. 2035, 2040, 23 L. Ed. 2d at 688, 694 (finding risk that handcuffed

suspect in his residence might escape and seize a weapon in next room

was insufficient to justify search). In Thornton, Justice Scalia declared

that for an arrested person in a squad car to be a threat, he or she must

have “ ‘the skill of Houdini and the strength of Hercules.’ ” 541 U.S. at

626, 124 S. Ct. at 2134, 158 L. Ed. 2d at 916 (Scalia, J., concurring in

the judgment) (quoting United States v. Frick, 490 F.2d 666, 673 (5th Cir.

1973) (Goldberg, J., concurring in part and dissenting in part)). Further,

Justice Scalia noted the government was unable to produce even a single

example between 1990 and 2003 of a handcuffed arrestee retrieving

weapons or evidence from his nearby vehicle. Id. In Gant, Justice Scalia

referred to Belton’s reasoning as “fanciful reliance upon officer safety.”

556 U.S. at 353, 129 S. Ct. at 1725, 173 L. Ed. 2d at 502 (Scalia, J.,

concurring).   I think these observations are equally applicable in this

case.

     II. Analysis     of   Neutral   Criteria   in   State   Constitutional
Adjudication.

        A. Current Status of Iowa Law. In State v. Ochoa, we stated that

in considering search and seizure issues under article I, section 8 of the

Iowa Constitution, “The degree to which we follow United States Supreme
                                         38

Court precedent, or any other precedent, depends solely upon its ability

to persuade us with the reasoning of the decision.” 792 N.W.2d 260, 267

(Iowa 2010). The principle that United States Supreme Court opinions

provide guidance only based upon their persuasive power was endorsed

in State v. Baldon, 829 N.W.2d 785, 790 (Iowa 2013). In that case, we

cited Ochoa with approval in addition to citing an early search and

seizure case rejecting the exclusionary rule adopted by the United States

Supreme Court.        Id. (citing Ochoa, 792 N.W.2d at 281–86, 287 n.91;

State v. Tonn, 195 Iowa 94, 104–05, 191 N.W. 530, 535–36 (1923)

abrogated on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81

S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1089–90 (1961)). 7

       In State v. Short, we again discussed at length the rationale for

independent state constitutional adjudication under article I, section 8.

851 N.W.2d 474, 481–92 (Iowa 2014).              We reaffirmed the approach of

Ochoa and Baldon, and rejected the notion that a departure from federal

precedent could occur only if certain criteria were met. Id. at 490–92.

       In Short, we recognized that historically the development of

independent state constitutional law has not been universally celebrated

and has occasionally drawn “bitter, accusatorial dissent[s].” Id. at 486
(internal quotation marks omitted).           Citing a New Hampshire case, we

noted that “ ‘heightened rhetoric adds nothing to the jurisprudence of



       7In Tonn, this court embraced a stricter approach to search and seizure under
the Iowa Constitution than federal law at the time of the decision. 195 Iowa at 104–07,
191 N.W. at 535–36. This case makes the powerful point that independent state
constitutional law is neither conservative nor liberal. It simply preserves what the
United States Supreme Court has referred to as our “free and unfettered” authority in
interpreting our state constitution. Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60
S. Ct. 676, 679, 84 L. Ed. 920, 924 (1940). The Tonn court did not use criteria to
depart from federal precedent, but found its approach more persuasive. 195 Iowa at
100–07, 191 N.W. at 533–36.
                                          39

our State.’ ”      Id. (quoting State v. Canelo, 653 A.2d 1097, 1106 (N.H.

1995) (Johnson, J., concurring specially)).            We further cited a former

president     of    the   American      Bar     Association,     who     noted     that

“ ‘[i]ntemperate, inaccurate, and emotional criticism . . . undermines

public confidence in the impartiality of the judiciary and hence its

independence.’ ”       Id. at 506 (alteration in original) (quoting Alfred P.

Carlton Jr., Preserving Judicial Independence—An Exegesis, 29 Fordham

Urb. L.J. 835, 841 (2002)).           Notwithstanding the dissents, we cited

G. Alan Tarr, a leading scholar in the field, who, after a comprehensive

review of the authorities, declared, “the concern about the legitimacy of

relying on state constitutional guarantees ‘has largely been put to rest.’ ”

Id. at 486 (quoting G. Alan Tarr, Understanding State Constitutions 169

(1998) [hereinafter Tarr]). 8

       Our approach to independent state constitutional law is similar to

that adopted in a number of jurisdictions. See, e.g., Gerawan Farming,

Inc. v. Lyons, 12 P.3d 720, 751–52 (Cal. 2000) (noting Supreme Court

decisions are given voluntary respectful consideration); State v. Campbell,

759 P.2d 1040, 1044 n.7 (Or. 1988) (noting there is no presumption that

interpretations of the United States Supreme Court are correct under the
state constitution); State v. Tiedmann, 169 P.3d 1106, 1114 (Utah 2007)

(“There is no presumption that federal construction of similar language is

correct.”).   As noted by Tarr, rulings by the Supreme Court “do not

constitute authoritative pronouncements but are merely accounts of

constitutional provisions entitled to respectful consideration by state



       8The  dissent quotes Tarr who summarizes arguments about legitimacy that have
been raised in the past, but omits his conclusion that the concern “has largely been put
to rest.” Tarr at 169.
                                          40

judges independently seeking the meaning of their state constitutions.”

Tarr at 207.

       As noted by Robert Williams, calls for neutral criteria rest on a

faulty premise.        Robert F. Williams, The Law of American State

Constitutions 148 (2009) [hereinafter Williams]. The premise is that the

constitutional decisions of the United States Supreme Court are

somehow presumptively correct and should generally be adopted by state

supreme courts.        See id.    This premise is nowhere supported in the

history or text of the Iowa or Federal Constitutions or in the structure of

the federal system.       As noted by Justice Stevens, the presumption of

correctness of United States Supreme Court decisions with respect to

state constitutional issues arises from a “misplaced sense of duty.”

Delaware v. Van Arsdall, 475 U.S. 673, 699, 106 S. Ct. 1431, 1445, 89

L. Ed. 2d 674, 696 (1986) (Stevens, J., dissenting). In Short, we cited

Williams in supporting the Ochoa holding that in the development of

independent state constitutional law, the value of federal precedent

depended solely upon its persuasive force. 851 N.W.2d at 481, 490; see

State v. Briggs, 199 P.3d 935, 942 (Utah 2008) (noting a state court does

not presume a federal interpretation is correct); see also Campbell, 759

P.2d at 1044 n.7 (same); Tiedmann, 169 P.3d at 1114 (same).

       The dissent does not believe the approach in Ochoa, Baldon, and

Short is entitled to stare decisis, nor does it think the approach in this

case is entitled to stare decisis. 9 The operative rule, apparently, is that

       9There  is a substantial debate in the literature as to whether and the degree to
which stare decisis applies to constitutional interpretation. See Jack L. Landau, Some
Thoughts About State Constitutional Interpretation, 115 Penn St. L. Rev. 837, 867–68
(2011) [hereinafter Landau]. As noted by Landau, some scholars say the doctrine has
no application to constitutional questions, others say it has less application, and still
others say it is fully applicable. Id. & nn. 113–15. Compare Gary Lawson, The
Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol’y 23, 24 (1994) (noting
                                            41

cases the dissent agrees with are entitled to stare decisis, but cases that

it disagrees with are not. Although the dissent seeks to appropriate the

term stare decisis for its own use, the dissent in this case does not honor

its principles.     Even though the court has, once again in this case,

rejected the neutral-criteria doctrine the State seeks to advance, the

dissent does not take note of that. It chooses to give legal advice to the

State, encouraging it to relitigate the losing issue again and again.                     A

reading of the four dissents in Pals, Baldon, Short, and this case

demonstrates the doctrine of stare decisis is not at work. 10 Instead, we

see its antithesis, the doctrine of perpetual dissent.

___________________
that “the practice of following precedent is not merely nonobligatory, or a bad idea,” it is
unconstitutional), with Richard H. Fallon, Jr., Stare Decisis and the Constitution: An
Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 572 (2001) [hereinafter
Fallon] (emphasizing stare decisis “is a doctrine of constitutional magnitude”). Landau
asserts “in the case of state constitutional interpretation, the pull of stare decisis may
not be as strong as it is in other contexts.” Landau, 115 Penn St. L. Rev. at 838. In
addition, the doctrine of stare decisis is fairly complex, with a variety of theories
including a “mistake approach,” a “prudential approach,” and a “special justification
approach.” Steven J. Burton, The Conflict Between Stare Decisis and Overruling in
Constitutional Adjudication, 35 Cardozo L. Rev. 1687, 1690 (2014) (internal quotation
marks omitted). Or, as noted by Professor Fallon, “stare decisis presents constitutional
puzzles.” Fallon, 76 N.Y.U. L. Rev. at 596.
       10To   the extent the dissent claims to prefer a strong stare decisis doctrine, such
an approach would be inconsistent with the weak stare decisis employed by the United
States Supreme Court in Citizens United v. Federal Election Commission. Compare 558
U.S. 310, 362–65, 130 S. Ct. 876, 912–13, 175 L. Ed. 2d 753, 797–99 (2010) (overruling
twenty-year-old precedent finding it was “not well reasoned”), with id. at 408–14, 130 S.
Ct. at 938–42, 175 L. Ed. 2d at 826–29 (Stevens, J., concurring in part and dissenting
in part) (noting majority’s weak reliance on claims of stare decisis). The United States
Supreme Court similarly employed weak stare decisis adherence in National Federation
of Independent Business v. Sebelius. Compare 567 U.S. ___, ___, 132 S. Ct. 2566, 2586–
91, 183 L. Ed. 2d 450, 474–80 (2012) (holding the Commerce Clause does not support
the individual mandate, as the Court’s precedents describe the power as reaching only
“activity,” and the individual mandate “does not regulate existing commercial activity”),
with id. at ___, 132 S. Ct. at 2609, 183 L. Ed. 2d at 499–500 (Ginsburg, J., concurring
in part, concurring in the judgment in part, and dissenting in part) (noting the
majority’s “crabbed reading of the Commerce Clause . . . should not have staying
power”). If one were consistent, the dissent would need to apply its own criteria
approach to justify its departure from these precedents.
                                    42

      B. Criteria in State Constitutional Interpretations. A number

of state supreme courts have announced they may use certain criteria in

evaluating claims under state constitutional law. The three leading cases

describing criteria are State v. Hunt, 450 A.2d 952 (N.J. 1982),

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), and State v.

Gunwall, 720 P.2d 808 (Wash. 1986) (en banc).          A number of other

states, often citing these cases, have indicated the usefulness of criteria

in state constitutional adjudication.     A number of these cases are

collected in the dissent.

      The criteria in these states vary somewhat but have some things in

common. In particular, the criteria usually include constitutional text,

constitutional history, and precedents in other state courts, as among

the factors that may be considered in independent state constitutional

analysis. See, e.g., Hunt, 450 A.2d at 955; id. at 965–67 (Handler, J.,

concurring); Edmunds, 586 A.2d at 895; Gunwall, 720 P.2d at 811.

      State supreme courts that have ventured into announcing criteria

have often subsequently faced battles over what the criteria mean. See

Williams at 150–62 (citing examples of state experiences with criteria

approaches).    A critical question is whether the criteria are hard

substantive criteria or soft advocacy criteria. Hard substantive criteria

are criteria designed to erect a barrier to independent state constitutional

adjudication and give rise to a presumption that the federal approach

should be adopted absent a demonstration by the proponent of a

divergent state constitutional rule that most or all of the criteria have

been met. In other words, state constitutional law independent of federal

precedent is governed by an “ironclad checklist,” and when the United

States Supreme Court changes course, the state court must follow

unless the requirements of a thread-the-needle checklist have been met.
                                     43

See People v. Scott, 593 N.E.2d 1328, 1347 (N.Y. 1992) (Kaye, J.,

concurring).

      Soft advocacy criteria, however, are merely designed to improve the

quality of advocacy by encouraging the parties to consider constitutional

questions from a number of different points of view. Many state courts

and state supreme court justices have bemoaned the lack of thorough

briefing of state constitutional issues and have sought to use criteria to

enhance the quality of advocacy. See, e.g., State v. Morales, 657 A.2d

585, 589 & n.10 (Conn. 1995) (requiring counsel to use stated

nonexclusive criteria when raising state constitutional claims).

      The battle over whether criteria should be considered hard

substantive criteria or soft advocacy criteria may be seen in two of the

leading criteria states, New Jersey and Washington. In New Jersey, for

instance, the meaning of the Hunt factors was a matter of contest from

the very beginning. Justice Handler and Justice Pashman battled from

the get-go over whether the criteria created a presumption of the

correctness of federal law. Hunt, 450 A.2d at 960 & n.1 (Pashman, J.,

concurring). In Washington, the battle over the meaning of the Gunwall

criteria extended over a period of many years. See Hugh D. Spitzer, New

Life for the “Criteria Tests” in State Constitutional Jurisprudence: “Gunwall

is Dead—Long Live Gunwall,” 37 Rutgers L.J. 1169, 1199 (2006)

[hereinafter Spitzer] (suggesting the Gunwall criteria as a barrier are

“dead” and the Gunwall criteria as nonexclusive suggestions for advocacy

“live”). If we were to adopt criteria for state constitutional interpretation,

does anyone doubt there would be a battle royale over their meaning and

application?

      In the end, however, many of the states have clearly embraced a

soft advocacy approach to their criteria. An indication of the dominance
                                    44

towards this approach is the increasing reference to the criteria as

“nonexclusive.” See, e.g., Gunwall, 720 P.2d at 811 (noting the factors

are “nonexclusive”).    Listing criteria as nonexclusive does seem to

indicate they are suggestions rather than mandatory requirements.

      Further, the Pennsylvania Supreme Court has declared the

Edmunds factors are not a mandate that a decision recognizing

heightened protections utilize the criteria but instead are intended as a

guide for litigants. Commonwealth v. Shaw, 770 A.2d 295, 298 n.2 (Pa.

2001). In the state of Washington, after several decades of litigation, a

commentator has concluded that the Gunwall factors have been made so

flexible and so encompassing that they have simply merged with the

ordinary principles of constitutional litigation. See Spitzer, 37 Rutgers

L.J. at 1184–87.

      Hard or soft, other states have used criteria so open-endedly they

approach normal rules of constitutional adjudication. For example, in

State v. McMurray, a case cited by the dissent, the Minnesota Supreme

Court noted that under circumstances when the state and federal

constitutions use substantially the same language, additional state

protection may be afforded,

      (1) when the United States Supreme Court has made a sharp
      or radical departure from its previous decisions and we
      discern no persuasive reason to follow such a departure; (2)
      when the Court has retrenched on a Bill of Rights issue; or
      (3) when the Court precedent does not adequately protect
      our citizens’ basic rights and liberties.

860 N.W.2d 686, 690 (Minn. 2015) (internal quotation marks omitted).

These open-ended criteria give the Minnesota Supreme Court ample

room to develop independent state constitutional law according to

ordinary principles of constitutional interpretation.
                                    45

      A number of cases under article I, section 10 of the Minnesota

Constitution, which is a search and seizure provision parallel to article I,

section 8 of the Iowa Constitution, demonstrate the flexibility.        For

example, in State v. Carter, the Minnesota Supreme Court held that a

sniff by a drug detection dog outside a storage unit was a “search,”

contrary to prevailing federal precedent. 697 N.W.2d 199, 208, 210–11

(Minn. 2005) (en banc). In State v. Askerooth, the court declared that the

approach of the United States Supreme Court in Atwater v. City of Lago

Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549, 577

(2001), which allowed full arrests for minor criminal violations, would not

be followed under the Minnesota Constitution.       681 N.W.2d 353, 363

(Minn. 2004) (en banc). In State v. Fort, the Minnesota court held that a

consent search of a passenger in a vehicle stopped for routine traffic

violations exceeded the scope of the search and was invalid under the

Minnesota Constitution regardless of what federal law might allow. 660

N.W.2d 415, 418–19 (Minn. 2003) (en banc). In Ascher v. Commissioner

of Public Safety, the court refused to follow Michigan Department of State

Police v. Sitz, 496 U.S. 444, 455, 110 S. Ct. 2481, 2488, 110 L. Ed. 2d

412, 423 (1990), holding that random police roadblocks for intoxicated

drivers without reasonable suspicion violated article I, section 10 of the

Minnesota Constitution. 519 N.W.2d 183, 187 (Minn. 1994) (en banc).

In In re Welfare of E.D.J., the Minnesota Supreme Court rejected

California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1550, 113

L. Ed. 2d 690, 697 (1991), holding that a person facing contact with a

police officer is “seized” when he reasonably concludes that he is not free

to leave, noting that it was not “persuaded” by the United States

Supreme Court’s departure from its earlier cases. 502 N.W.2d 779, 781–

83 (Minn. 1993) (en banc). Nothing in the case of Kahn v. Griffin, which
                                          46

suggests factors that parties may choose to brief with respect to

constitutional issues based on prior caselaw, indicates these cases were

wrongly decided.           701 N.W.2d 815, 829 (Minn. 2005) (en banc)

(suggesting, as a “general” rule, seven nonexclusive factors).

       Indeed, the notion that criteria are usually only suggestions for

advocacy       and   not    designed     as    barriers    to    independent       state

constitutional law can be demonstrated in the context of automobile

searches and seizures. The dissent declares that if we adopted a neutral-

criteria approach, the result would be different in this case. However,

that assumes we adopt a hard substantive approach or ironclad-

checklist approach. An examination of the vibrant independent state law

in leading criteria jurisdictions shows the criteria have not been

employed as a major barrier to the development of independent state

constitutional law. For example, the Pennsylvania Supreme Court has

declined to follow the Carroll doctrine. Commonwealth v. Brown, 23 A.3d

544, 553 (Pa. Super. Ct. 2011). The Washington Supreme Court has also

declined to follow Carroll.       State v. Snapp, 275 P.3d 289, 296 (Wash.

2012) (en banc). The New Jersey Supreme Court rejected Belton in the

court’s opinion in State v. Eckel, 888 A.2d 1266, 1277 (N.J. 2006). See

Paul Stern, Revamping Search-and-Seizure Jurisprudence Along the

Garden State Parkway, 41 Rutgers L.J. 657, 688–92 (2010). Similarly,

Wyoming, another criteria state, declined to follow Belton.                Vasquez v.

State, 990 P.2d 476, 489 (Wyo. 1999). 11

       11The  dissent cites a footnote in a recent Utah case supporting its argument that
we should adhere to federal precedent in interpreting parallel provisions of the Iowa
Constitution. See State v. Houston, ___ P.3d ___, ___ n.133, 2015 WL 773718, at *14
n.133 (Utah Mar. 13, 2015). However, the citation is incomplete and gives the wrong
impression. The position of the Utah court is more balanced, noting, “While we are
certainly not required to adopt a federal interpretation for our state provision, we
likewise are not forbidden from doing so.” Id. I agree with that statement. Cf. State v.
                                           47

       The above experience demonstrates two things.                    First, in most

states, criteria have not served as a barrier to independent state

constitutional adjudication as advocated by the dissent.                     Second, a

significant downside to criteria is that they generate satellite litigation

over their substance and proper application.               See Williams at 151–52

(noting in criteria states, the criteria themselves become the focus of

___________________
Breuer, 808 N.W.2d 195, 197–99, 199, 201 (Iowa 2012) (declining to adopt
Massachusetts approach to requirement that warrant be physically present at time of
search and following approach of federal precedent). Additionally, the Utah court
rejected conclusory opinions that simply adopt a different state constitutional standard
without explanation or rationale. See Houston, ___ P.3d at ___ n.133, 2015 WL 773718,
at *14 n.133. I agree with that, too. Indeed, our cases have laid out, sometimes in
thorough (or excessive?) detail, why we have departed from federal precedent. See
Short, 851 N.W.2d at 481–92; Baldon, 829 N.W.2d at 791–803; Pals, 805 N.W.2d at
777–84; Ochoa, 792 N.W.2d at 268–91. I also agree with the declaration by the Utah
Supreme Court in State v. Tiedemann, rejecting “a formula of some kind” for
adjudication of state constitutional issues. 162 P.3d 1106, 1114 (Utah 2007). As the
Utah court stated:
       In theory, a claimant could rely on nothing more than plain language to
       make an argument for a construction of a Utah provision that would be
       different from the interpretation the federal courts have given similar
       language. Independent analysis must begin with the constitutional text
       and rely on whatever assistance legitimate sources may provide in the
       interpretive process. There is no presumption that federal construction
       of similar language is correct.
Id. at 1115. Additionally, the dissent cites State v. Anderson, for the notion that Utah’s
preference is to interpret the search and seizure provision of the Utah Constitution in
“accord with the Fourth Amendment.” 910 P.2d 1229, 1238 (Utah 1996). The
Anderson case in turn cites State v. Watts for this proposition; however, the Watts case
notes the more nuanced approach of the Utah Supreme Court:
       In declining to depart in this case from our consistent refusal heretofore
       to interpret article I, section 14 of our constitution in a manner different
       from the fourth amendment to the federal constitution, we have by no
       means ruled out the possibility of doing so in some future case. Indeed,
       choosing to give the Utah Constitution a somewhat different construction
       may prove to be an appropriate method for insulating this state’s citizens
       from the vagaries of inconsistent interpretations given to the fourth
       amendment by the federal courts.
750 P.2d 1219, 1221 n.8 (Utah 1988); see Baldon, 829 N.W.2d at 830–31 (Appel, J.,
specially concurring) (citing inconsistencies “on the proper application of Fourth
Amendment law among the Justices”).
                                    48

litigation rather than the underlying state constitutional question).    In

reality, there is no mechanical checklist that can be applied to determine

each and every question of state constitutional law. The court is thus

correct in reaffirming the Tonn–Ochoa approach, reiterated in Short and

Baldon, and in rejecting appeals to establish artificial criteria for

independent state constitutional adjudication. Short, 851 N.W.2d at 487;

Baldon, 829 N.W.2d at 790–91.

      C. The State’s Neutral Criteria.       While we have rejected the

criteria approach for state constitutional adjudication, the State’s neutral

criteria suggest several potential approaches to independent state

constitutional law. Subject to ethical constraints and procedural rules,

we do not limit the substantive advocacy of parties who appear before us.

Any party may make what it considers its most persuasive state

constitutional arguments.     As will be seen below, we have already

explored all of the State’s neutral criteria in our cases, and the State’s

effort in this case is essentially a repackaging and relabeling of concepts

rejected in our caselaw.      While we have resisted any formula for

constitutional adjudication, our caselaw amply illuminates the manner

in which various authorities may contribute to the development of

independent state constitutional law.

      1. Development of the claim in lower courts.      The first criterion

proposed by the State is development of the claim in lower courts. This

factor has not generally been cited by other criteria states: it is missing

in Hunt, Edmunds, Gunwall, and other criteria cases.         See generally,

Williams at 146–62. The thrust of the State’s position here, however, can

best be understood as one of issue preservation.       The State in effect

presses the view that if a party has not presented an argument based on
                                    49

its neutral criteria, any claim based upon an independent state

constitutional theory is waived.

      Even in criteria states, such an approach may not be followed. For

example, in Pennsylvania, the court has emphasized that while briefing

on its factors is certainly helpful, the failure to do so is not fatal to a

state constitutional claim.   See Commonwealth v. Swinehart, 664 A.2d

957, 961 n.6 (Pa. 1995); Phyllis W. Beck, Foreword: Stepping Over the

Procedural Threshold in the Presentation of State Constitutional Claims, 68

Temp. L. Rev. 1035, 1038–39 (1995) (emphasizing that a litigant seeking

to assert rights under state constitutions should be “free from a technical

procedure that may not always serve to advance the inquiry at hand”).

      In any event, we have established our approach to issue

preservation regarding independent state constitutional law in a number

of cases. When a constitutional claim is made but neither the State nor

Federal Constitution is specifically identified, we consider the claim

preserved under both the State and Federal Constitutions.        See, e.g.,

State v. Harrington, 805 N.W.2d 391, 393 n.3 (Iowa 2011); King v. State,

797 N.W.2d 565, 571 (Iowa 2011). On the other hand, when a claim is

expressly made citing the Fourth Amendment but no mention is made of

the state constitution, we consider the claim waived. See, e.g., State v.

Vance, 790 N.W.2d 775, 780 (Iowa 2010); State v. Allensworth, 748

N.W.2d 789, 791 n.2 (Iowa 2008).         When both the State and Federal

Constitutions are cited but a party relies solely on the applicable federal

constitutional standard, we apply the federal constitutional standard but

reserve the right to apply it in a more stringent manner. See, e.g., State

v. Breuer, 808 N.W.2d 195, 200 (Iowa 2012); State v. Pals, 805 N.W.2d

767, 771–72 (Iowa 2011); King, 797 N.W.2d at 571; State v. Bruegger,
                                       50

773 N.W.2d 862, 883 (Iowa 2009). We have thus already addressed the

issues raised in the State’s first criteria.

      2. Constitutional text. The second criterion offered by the State is

constitutional text.    This is a common factor cited by many criteria

states.   See, e.g., Hunt, 450 A.2d at 965 (Handler, J., concurring);

Edmunds, 586 A.2d at 895; Gunwall, 720 P.2d at 811.           As one state

supreme court has stated, an independent state constitutional argument

may be made on the basis of text alone. See Tiedemann, 162 P.3d at

1115. We have considered the role played by text in a number of our

prior cases. See, e.g., Short, 851 N.W.2d at 500–01; Baldon, 829 N.W.2d

at 823–24 (Appel, J., specially concurring); Ochoa, 792 N.W.2d at 268–

69. I stand by the discussion in those cases.

      The text of a constitutional provision is the starting point of

analysis even in ambiguous and open-ended constitutional provisions

like article I, section 8 of the Iowa Constitution. In the context of search

and seizure law, however, textual analysis is often very challenging, so

challenging that some preeminent authorities have concluded that the

text itself offers no meaningful guidance on a number of key interpretive

issues.    See Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 353–54 (1974).                Particularly

challenging has been the relationship between the reasonableness clause

and the warrant clause, an issue addressed at length in Short, 851

N.W.2d at 483–85.

      To the extent the state constitution has text not included in the

Federal Constitution, like the language in article I, section 1 based on the

Virginia Declaration of Rights, federal authority, of course, has little

value. See City of Sioux City v. Jacobsma, 862 N.W.2d 335, 348–49 (Iowa

2015); Bruce Kempkes, The Natural Rights Clause of               the Iowa
                                     51

Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593, 634–35

(1993). Further, to the extent there are differences in language in texts

related to the same subject matter, any difference in language between

the Iowa Constitution and its federal counterpart is worth a hard look.

For example, the right to counsel provision in article I, section 10 of the

Iowa Constitution extending the right to “all criminal prosecutions, and

in all cases involving the life, or liberty of an individual” differs from its

federal counterpart.   Iowa Const. art I, § 10; see State v. Young, 863

N.W.2d 249, 256–57 (Iowa 2015).        Such differences in text should be

carefully studied and may help support a different interpretation under

the state constitution than under prevailing federal authority. See, e.g.,

Young, 863 N.W.2d at 258, 281.

      It is also true, as an abstract matter, that a case from another

jurisdiction relying on a differently phrased state constitutional provision

may be less authoritative than one decided under a similar state

constitutional provision. This is not, however, to use the vernacular of

the dissent, a bright-line rule. The underlying state court decision may

not turn on distinctive language but may be based upon an analysis that

applies with equal force to an Iowa constitutional provision covering the

same subject matter. Different language in state constitutions may still

have much in common, like the proverbial overlapping Venn diagram.

Nonetheless, it is undeniable that a state court decision decided under a

differently worded constitutional provision may be less persuasive or not

persuasive at all, if the decision is based largely or exclusively on

language absent from the counterpart in the Iowa Constitution.

      One suspects, however, that in the hands of the dissenters, this

factor is designed to be an ironclad, hard substantive criterion such that

if the text of an Iowa constitutional provision is similarly worded to the
                                      52

federal counterpart, the federal interpretation is presumptively (or maybe

even definitely) correct. If so, this is, of course, the polar opposite of a

neutral criterion.    It would ironically impede the development of state

constitutional law where there are parallel federal and state provisions,

even though all the federal rights language was derived from previous

state constitutional models. See Baldon, 829 N.W.2d at 804–05 (noting

the United States Constitution “was the outgrowth of colonial experience

and state constitutional precedents”); see also Willi Paul Adams, The

First American Constitutions: Republican Ideology and the Making of the

State Constitutions in the Revolutionary Era 55–56 (Rita & Robert Kimber

trans.,   expanded    ed.   2001)   (noting     John   Adams’s   reasoning   in

recommending that New Hampshire form its own government); Robert F.

Williams, The State Constitutions of the Founding Decade: Pennsylvania’s

Radical    1776      Constitution   and       Its   Influences   on   American

Constitutionalism, 62 Temp. L. Rev. 541, 579–80 (1989) (citing the

emerging consensus that the Federal Bill of Rights originated in state

and colonial rights guarantees). An approach that strongly presumes the

correctness of federal authority under similarly phrased constitutional

provisions is not a neutral criterion that requires careful textual analysis,

but an unbalanced criterion that seeks to prevent the development of

state constitutional law. We have repeatedly and unequivocally rejected

this contention, and by now it should have been put to rest. See, e.g.,

Short, 851 N.W.2d at 486–87; Baldon, 829 N.W.2d at 790–91 (majority

opinion) (recognizing Tonn–Ochoa analysis in interpreting nearly identical

search and seizure language of the Iowa Constitution differently than its

federal counterpart); id. at 824 (Appel, J., specially concurring) (citing

various state supreme court cases supporting independent interpretation

of provisions of state constitutions with parallel federal counterparts);
                                    53

Ochoa, 792 N.W.2d at 267 (holding the degree to which we follow United

States Supreme Court precedent, or any other precedent, “depends solely

upon its ability to persuade us with the reasoning of the decision”).

Indeed, the notion that state search and seizure provisions nearly

identical to the federal language should be interpreted identically to their

federal counterpart in connection with automobile stops has been

rejected in leading criteria jurisdictions. See Vance, 790 N.W.2d at 788

(citing examples); see, e.g., Eckel, 888 A.2d at 1277; Commonwealth v.

White, 669 A.2d 896, 901–02 (Pa. 1995); Vasquez, 990 P.2d at 488–89.

      To the extent the State argues that text should be considered in

state constitutional adjudication, there can be no quarrel. Text is always

a starting point in constitutional adjudication.      It would be wrong,

however, to suggest that the text of article I, section 8 provides a

definitive answer to many complex search and seizure questions.

Consistent with the above cited authorities, however, there is no

implication that the mere fact article I, section 8 of the Iowa Constitution

has language similar to the Fourth Amendment gives rise to a

presumption that the federal interpretation should be adopted.          The

power of federal precedent turns “solely” on its persuasive power. See

Ochoa, 792 N.W.2d at 267.

      3. Constitutional history, including reports of state constitutional

debates and state precedent.    The third criterion listed by the State is

constitutional history, including reports of state constitutional debates

and state precedent.    Similar factors are cited in a number of criteria

states.   See, e.g., Hunt, 450 A.2d at 965; Edmunds, 586 A.2d at 895;

Gunwall, 720 P.2d at 811.        We have canvassed state and federal

constitutional history in a number of our recent search and seizure
                                     54

cases. See, e.g., Short, 851 N.W.2d at 481–506; Ochoa, 792 N.W.2d at

269–75.

      We reviewed the historical background of the Fourth Amendment

extensively in Ochoa, 792 N.W.2d at 269–73. The meaning of its history

is, of course, subject to debate, and the historical record often does not

provide   much    guidance   on     highly-focused,    concrete   interpretive

questions in the area of search and seizure.          In Ochoa, however, we

concluded the Fourth Amendment history generally supported the view

that the search provisions were a limitation on government power, that

general warrants and writs of assistance were anathema to the founders,

and that requiring particular facts to support a search is a limitation

consistent with that history. Id.

      While we should be cautious of drawing overbroad conclusions

from historical study, I agree with the State that historical study of the

origins of the Fourth Amendment may be relevant to state constitutional

analysis. In Short, for instance, we cited the work of Thomas Y. Davies,

who has encouraged state supreme courts to engage in authentic search

and seizure historical analysis to avoid unoriginal use of reasonableness

that engages in relativistic balancing. 851 N.W.2d at 501 (citing Thomas

Y. Davies, Correcting Search-And-Seizure History: Now-Forgotten Common-

Law Warrantless Arrest Standards and the Original Understanding of

“Due Process of Law,” 77 Miss. L.J. 1, 118, 223–24 (2007)).         We have

attempted to follow Davies’s suggestion. See Ochoa, 792 N.W.2d at 274–

75.   Additionally, William Cuddihy, in his magisterial volume on the

history of the Fourth Amendment, concluded that the “warrant

preference” approach to the text—the approach we embraced in Short—

was the most consistent with the founders’ intentions.            William J.

Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602–
                                    55

1791 602, 633–37, 734–42 (2009); see also Short, 851 N.W.2d at 497,

501; Tracey Maclin, The Complexity of the Fourth Amendment: A Historical

Review, 77 B.U. L. Rev. 925, 928 (1997) (“[T]he ‘warrant preference rule’

. . . requires that the safeguards of the Warrant Clause define the

reasonableness of a given search or seizure.”).

      With respect to article I, section 8 of the Iowa Constitution, we

surveyed the history in Ochoa and did not discover materials having a

direct bearing on search and seizure law. 792 N.W.2d at 274–75. This is

not unusual. As noted by one scholar, state historical sources are “thin

at best and wholly indeterminate at worst.”       Douglas S. Reed, Popular

Constitutionalism: Toward a Theory of State Constitutional Meanings, 30

Rutgers L.J. 871, 873 (1999); see also Paul W. Kahn, Interpretation and

Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1153 (1993)

(noting that state sources are “meager”).

      While the dissent in announcing its so-called neutral criteria

embraces historical exploration, it avoids engaging in any historical

consideration regarding what the Iowa founders would have thought of

the proposed so-called neutral criteria. There is, of course, nothing in

the debates about so-called neutral criteria.      We do, however, know

something about the founders’ view of federal law and the United States

Supreme Court’s interpretation of it.

      For example, George Ells, one of the leading Iowa founders,

believed the Fugitive Slave Act of 1850 was an unconstitutional violation

of due process.   He stated that the Due Process Clause was “violated

again and again by the dominant party in the land, which rides rough-

shod ove[r] the necks of freemen.” 1 The Debates of the Constitutional

Convention of the State of Iowa 102 (W. Blair Lord rep., 1857) [hereinafter

The Debates]. Further, he declared that “[i]f the words ‘due process of
                                         56

law,’ shall in time be recognized by our judicial tribunals to mean what

they really do mean, . . . then, [t]hat infamous Fugitive Slave Law will

become a nul[l]ity.” Id. 12

       William Penn Clarke, another of the leading players in the

constitutional convention, was a supporter of John Brown, and actively

helped Brown smuggle fugitive slaves out of Iowa to their eventual

freedom in direct defiance of federal law. See Lowell J. Soike, Necessary

Courage: Iowa’s Underground Railroad in the Struggle Against Slavery

153–57 (2013) [hereinafter Soike]. Ells and Clarke do not seem to be the

kind of persons who would write into the Iowa Constitution some

principle of deference to federal judicial authority. And, of course, they

did not.

       However, the Iowa Constitution of 1857 contains provisions that

were contrary to the Fugitive Slave Act of 1850, including the right to

jury trials in cases involving liberty. See Short, 851 N.W.2d at 521 (citing

The Debates 101–02); Ben. F. Shambaugh, The Constitutions of Iowa

270–71 (1934) (noting some opposition to the jury trial provision on the

ground that it would “nullify[] the Fugitive Slave Law”).             The jury trial

provision appears contrary to the United States Supreme Court decision

in Prigg v. Commonwealth, where the Court held a state could not impose

protective procedures on the enforcement of the Fugitive Slave Act of

1793. 41 U.S. (16 Pet.) 539, 625–26 (1842). James F. Wilson, a delegate

to the Iowa constitutional convention who later gained fame as chairman

of the United States House Committee on the Judiciary, declared that “he

       12Ellswas taking the position announced by the Wisconsin Supreme Court in In
Re Booth, which found that the Fugitive Slave Act violated due process under the United
States Constitution. 3 Wis. 1, 41–43, 70 (1854). This outlier was overturned by the
United States Supreme Court in Ableman v. Booth, 62 U.S. (21 How.) 506, 514, 526
(1858).
                                      57

did not care if the provision under consideration should conflict with

federal law” because the Fugitive Slave Act was unconstitutional. Robert

Cook, Baptism of Fire: The Republican Party in Iowa, 1838–1878 81

(1994) [hereinafter Cook].

       Further, throughout the 1850s, there was a battle in Iowa over

enforcement of laws related to slaves or former slaves where state courts

were the forum of choice because of the inhospitable climate in federal

court on these issues. In the case of In re Jim (1848), a state court judge

discharged a claimed slave and fined the detective who had detained

him.   See Robert R. Dykstra, Bright Radical Star: Black Freedom and

White Supremacy on the Hawkeye Frontier 17–18 (1993). The detective

did not give up, but convinced a federal judge in Dubuque to order a

precept for arrest for Jim, the claimed fugitive slave.    See id. at 18.

Supporters of Jim, however, countered by obtaining a writ of habeas

corpus in Muscatine from the acting Chief Justice of the Iowa Supreme

Court who, after a hearing, held that the arrest was improper, released

the defendant, and declared to bystanders, “here is a free man.”        Id.

(internal quotation marks omitted).

       In another case involving a claimed fugitive slave in 1855,

Governor James W. Grimes declared “if not in office, I am inclined to

think that I should be a law-breaker.” Cook at 65 (internal quotation

marks omitted).    He sent his associates to pack the trial which was

before a commissioner for the federal district court in Burlington. Id.;

see also Outside In African-American History in Iowa 1838–2000 68 (Bill

Silog ed. 2001) [hereinafter Outside In]. Grimes sent for a state court

judge to prepare a writ of habeas corpus in the event of an adverse result

in the federal forum. Outside In at 68. When the alleged fugitive slave

was freed for lack of evidence, Governor Grimes declared that “a slave
                                          58

could not be returned from Des Moines County into slavery.” Cook at

65–66 (internal quotation marks omitted). The alleged fugitive was soon

on his way to Canada. Outside In at 68.

       The case of In re Ralph, of course, employed an approach to African

Americans that was nowhere found in the federal caselaw. 1 Morris 1

(Iowa 1839). Not surprisingly, the reaction of the founding generation to

Dred Scott was one of bitter denunciation, including a joint resolution of

the general assembly that “ ‘Dred Scott [] is not binding in law.’ ”              See

Short, 851 N.W.2d at 484 (quoting 1858 Iowa Acts Res. 12, at 433). At

the time of the 1857 Iowa Constitution, the United States Supreme Court

was in the hands of judges sympathetic with the southern cause: the

opposite was true in Iowa. Indeed, one of the causes of the civil war was

the refusal of states like Iowa to conform with federal law with respect to

slavery.     See Confederate States of America – Declaration of the

Immediate Causes Which Induce and Justify the Secession of South

Carolina from the Federal Union (adopted Dec. 24, 1860), available at

http://avalon.law.yale.edu/19th_century/csa_scarsec.asp                  [hereinafter

Declaration of the Immediate Causes] (specifically citing the failure of

northern states, including Iowa, to enforce federal law). 13             To my eye,
these events, contemporaneous with the Iowa Constitution of 1857,

provide barren soil for those that seek to impose federal lockstep directly

or indirectly on Iowa courts in the name of history. See generally Mark

S. Cady, The Vanguard of Equality: The Iowa Supreme Court’s Journey to


        13The South Carolina Declaration also references the refusal of Iowa to forward

murderers for prosecution, an apparent reference to the efforts of Governor Samuel
Kirkwood to avoid the arrest and extradition of Barclay Coppoc, one of the participants
in John Brown’s raid. See Declaration of the Immediate Causes. Governor Kirkwood
stalled representatives of Virginia with technicalities long enough to allow Coppoc to
escape. See Soike at 165–171.
                                            59

Stay Ahead of the Curve on an Arc Bending Towards Justice, 76 Alb. L.

Rev. 1991 (2013); Mark S. Cady, A Pioneer’s Constitution: How Iowa’s

Constitutional History Uniquely Shapes Our Pioneering Tradition in

Recognizing Civil Rights and Civil Liberties, 60 Drake L. Rev. 1133 (2012).

       The important point, however, with respect to search and seizure

law specifically, is that the lack of direct historical materials related to

article I, section 8 should not be charged as a factor against an

independent interpretation of state law. The lack of historical materials

neither supports nor opposes a state constitutional interpretation

different from prevailing federal law. 14         This is particularly true in the

area of search and seizure, where current cases often involve modern

developments such as cell phones, GPS devices, computerized records,

and even automobiles, which the Iowa founders could not possibly have

anticipated.        Under the circumstances, to attribute lack of a historical

record as a strike against thoughtful independent state constitutional

adjudication is hardly a neutral criterion but is simply an artificial

barrier designed to yield desired results and prevent consideration of the

underlying merits of a state constitutional claim.

       4. Decisions of sister states, particularly when interpreting similar
constitutional text.         The fourth criterion proposed by the State is the

decisions      of    other    states,   particularly   when     interpreting     similar

constitutional provisions. In general, review of authority in other states



       14The    Iowa state historical materials may be thin in the sense that they do not
directly address search and seizure issues but they are rich in another, more general
sense. We know the 1857 framers, by putting the individual liberties in the first article
of the Iowa Constitution, regarded them as having great importance. In addition,
George Ells, Chair of the Committee on the Preamble and the Bill of Rights, declared
“ ‘the Bill of Rights is of more importance than all the other clauses in the Constitution
put together.’ ” Short, 851 N.W.2d at 482–83 (quoting The Debates 103).
                                     60

is a criteria almost universally found in criteria jurisdictions. See, e.g.,

Hunt, 450 A.2d at 956–57; Edmunds, 586 A.2d at 895; Gunwall, 720

P.2d at 815–16. In our independent state constitutional cases, we have

often looked at authority from other states for their persuasive power.

See, e.g., Short, 851 N.W.2d at 481; Baldon, 829 N.W.2d at 818; Ochoa,

792 N.W.2d at 267.

      Of course, there is no requirement authority exist in other states

for a particular constitutional approach.    Otherwise, the law would be

the proverbial “fly frozen in amber.” By definition, there always has to be

a first jurisdiction that moves when the law changes. No one explicitly

suggests, even the dissent, that the law should never change. Further,

some questions of state constitutional law may be of first impression,

even among the various state jurisdictions.          Certainly, as a general

matter, the caselaw of other states may be the source of persuasive

authorities to aid in the interpretation of Iowa constitutional law.

      In order to be persuasive authority, however, a “me too” case in a

lockstep jurisdiction that simply incorporates federal law without an

evaluation of its persuasive reasoning is of little value. Such precedent is

not part of the body of considered reasoning of constitutional principles.

Instead, we look to the persuasive power of the reasoning of other state

supreme courts which, using their independent judgment, have sought

to develop what they consider the best and soundest approach to state

constitutional law.    In looking at the competing approaches in state

precedents, we do not make our determination by a majoritarian

numbers game that assumes resolution of sensitive issues of state

constitutional   law   may   be   determined    on    some   kind   of   state

constitutional abacus.       What is critical with state constitutional

precedents in other states, as with all cited authority, is the underlying
                                     61

persuasive power of the reasoning.         See Ochoa, 792 N.W.2d at 267

(emphasizing we are influenced by cases from other jurisdictions solely

on the basis of their persuasive power).

      Thus, the independent work of other state supreme courts that

present persuasive arguments may be of considerable value. There is a

rich body of state constitutional authority on search and seizure law

when state courts grapple with the challenging issues under their state

constitutions. Such authority is readily available for Iowa practitioners

in the pages of the various law reviews, easily accessible electronic

databases, and in the works of Robert F. Williams, G. Alan Tarr, Jennifer

Friesen, and others. See generally Baldon, 829 N.W.2d at 814–20.

      Further demonstration of the potential importance of developments

in state constitutional law is revealed in Vance, 790 N.W.2d at 786–88.

In that case, we faced the question of whether counsel was ineffective in

failing to recognize Belton was under substantial attack in state courts

and might no longer be good law for purposes of state constitutional

analysis. Id. at 787–88. While we were not in a position to determine the

question of ineffective assistance on the record before us, Vance clearly

stands for the proposition that defense counsel should have a working

knowledge of the larger state constitutional trends around the country.

Id. at 789–90.

      5. Practical   consequences,   including   the   need   for   national

uniformity. The last criterion proposed by the State is consideration of

practical consequences, including the need for national uniformity.
                                          62

Interestingly, none of the cases cited by the dissent has a similar

criterion with emphasis on national uniformity. 15

       In Short, we canvassed reasons why we rejected the argument that

national uniformity should be an inhibiting factor in the development of

independent state constitutional law.             851 N.W.2d at 487–89.            The

reasons need not be repeated at length here. Suffice it to say we have

generally rejected calls for uniformity on the ground that such calls were

inconsistent with the federalist system, would require adoption of

constitutional norms diluted by federalist considerations in a context in

which federalism concerns were wholly absent, 16 would ironically convert

the federal floor into a federal ceiling with respect to individual liberties,

and would be inconsistent with our state’s history of independent

adjudication.      See id.; Baldon, 829 N.W.2d at 825–27; Ochoa, 792

N.W.2d at 266 n.4.         On this question of whether national uniformity

should be an important consideration, our past cases have provided the

State with the answer. See, e.g., Short; 851 N.W.2d at 487–89; Baldon,

829 N.W.2d at 825–27; Ochoa, 792 N.W.2d at 266 n.4.

       6. Missing considerations.         A striking feature about the State’s

neutral criteria is what is not included.                  Fidelity to underlying
constitutional values, for instance, is not a criterion, nor is analytical

soundness, nor the right sizing of any rule that might be adopted. These


       15More  than thirty years ago, a frequently cited commentary in the Harvard Law
Review noted that in considering the development of independent state constitutional
law, the interests in uniformity “should seldom be a decisive factor.” Developments in
the Law—The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1395
(1982).
       16See  Williams v. Florida, 399 U.S. 117, 136, 90 S. Ct. 1914, 1925, 26 L. Ed. 2d
446, 474 (1970) (Harlan, J., dissenting) (stating that United States Supreme Court
interpretations of incorporated rights “simply reflects the lowest common denominator
in the scope and function [of the Bill of Rights]”).
                                          63

concepts,     however,   are   at   the    heart    of   our   independent   state

constitutional adjudication.

       In addition, the State does not mention the potential persuasive

power of minority opinions of the Supreme Court. Majority opinions of

the Supreme Court may be persuasive, but so too may concurring and

dissenting opinions of that Court.             Indeed, in Ochoa, we relied to a

significant extent on Justice Stevens’s cogent dissent in Samson v.

California, 547 U.S. 843, 857, 126 S. Ct. 2193, 2202, 165 L. Ed. 2d 250,

262 (2006) (Stevens, J., dissenting).           Ochoa, 792 N.W.2d at 282–83.

Similarly, in Callender v. Skiles, we held a father’s liberty interest was

given greater protection under the Iowa Constitution than the United

States Constitution, citing a dissenting position of Justice Brennan in

Michael H. v. Gerald D., 491 U.S. 110, 141, 109 S. Ct. 2333, 2351, 105 L.

Ed. 2d 91, 117 (1989) (Brennan, J., dissenting). Callender, 591 N.W.2d

182, 191 (Iowa 1999). And, of course, when relying upon dissents, what

must be persuasive is the reasoning, not the fact that an opinion reached

a particular result. See Campbell, 759 P.2d at 1044 n.7.

       7. Summary. Our caselaw has clearly addressed the significance

of the neutral criteria proposed by the State in this case. While we have

often considered text, history, and state and federal court precedents, we

have refused to create a checklist that would erect a barrier to state

constitutional development or provide a basis for unproductive satellite

litigation.

       Thus, the real problem for the State, and the dissent, is not lack of

guidance, but disagreement with the guidance that has been provided.

The dissent wants to erect artificial barriers to the development of

independent state constitutional law. I reject them. The dissent believes

that when the texts of state and federal constitutional provisions are
                                    64

similar, we should follow the federal model regardless of its lack of

persuasive power.     I reject that too.    The dissent wants a strong

presumption that federal law is correct. I say no. The dissent seeks to

incorporate wholesale the substantive results of the recent trends in

United States Supreme Court caselaw, results that it likes.       We have

rejected wholesale importation of federal law. We do, however, consider

the merits of each case before us and carefully study United States

Supreme Court cases, like other authorities, for persuasive power.         I

reiterate, the problem is not lack of guidance, but only disagreement with

the guidance that has been provided.

       III. Arguments on Merits of Automobile Exception.

       The dissent takes a position on the merits of the application of the

automobile exception under article I, section 8 of the Iowa Constitution

to this case. Having urged this court to adopt the State’s neutral criteria,

I assume the dissent represents the criteria in action.        The dissent

provides a bulk cite of state authorities that follow the federal approach

to the automobile exception in their interpretation of state constitutional

law.   It does not summarize or address the reasoning of caselaw that

comes to a different conclusion because it is not relevant. Unstated, but

certainly implied in the criteria embraced by the dissent, is the notion

that uniformity is important and the result is justified because the

language of the Iowa constitutional provision related to search and

seizure is similar to the Fourth Amendment. The opinion is consistent

with the dissent’s approach to criteria, which is designed to prevent

development of independent state constitutional law.

       Our cases require a different methodology. Unlike the dissent, I

would begin with the text of article I, section 8. From the text, we know

the provision states people should be “secure” in their “papers and
                                      65

effects.”   Iowa Const. art I, § 8.    The search of a locked safe in an

automobile at least raises my constitutional eyebrows in light of the

language of the text.    Certainly, the constitutional values underlying

article I, section 8 are at least potentially implicated by the search of a

locked safe in an automobile. We must inquire further.

       Unlike the dissent, I would also identify a general framework for

consideration of the issues. We have recognized we should apply article

I, section 8 “in a broad and liberal spirit.” State v. Height, 117 Iowa 650,

657, 91 N.W. 935, 937 (1902). We should also recognize that under Iowa

law, the warrant requirement is “ ‘subject only to a few specifically

established and well-delineated exceptions.’ ”     Baldon, 829 N.W.2d at

791 (majority opinion) (quoting Schneckloth, 412 U.S. at 219, 93 S. Ct. at

2043, 36 L. Ed. 2d at 858).

       Recognizing the potential implications of article I, section 8 on the

search that occurred in this case, I next turn to the underlying rationale

of the automobile exception as it has been developed by the United

States Supreme Court.     Generally, there are two rationales supporting

the automobile exception. First, the automobile exception is based upon

the view that automobiles are inherently mobile and, as a result, a
warrant to search the vehicle should not be required. See Carroll, 267

U.S. at 153, 45 S. Ct. at 287, 69 L. Ed. at 551. Second, the automobile

exception has been justified on the ground that the owner or occupant of

an automobile has a reduced expectation of privacy compared to the

privacy ordinarily associated with a home or residence. United States v.

Chadwick, 433 U.S. 1, 12–13, 97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538,

549 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S.

565, 579, 111 S. Ct. 1982, 1991, 114 L. Ed. 2d 619, 633–34 (1991).
                                       66

      This reduced expectation of privacy is based on two theories. First,

it is contended that automobiles are used for transportation purposes on

the open highway and thus no reasonable expectation of privacy should

arise with respect to papers and effects found in automobiles. Id. at 12,

97 S. Ct. at 2484, 53 L. Ed. 2d at 549 (citing Cardwell v. Lewis, 417 U.S.

583, 590, 94 S. Ct. 2464, 2469, 41 L. Ed. 2d 325, 335 (1974) (plurality

opinion)). Second, it is asserted that an owner has a reduced expectation

of privacy based on the fact an automobile is subject to substantial

regulatory     control,    including   licensure,   registration,   equipment

regulation, and rules of the road. Id. at 12–13, 97 S. Ct. at 2484, 53 L.

Ed. 2d at 549; see also California v. Carney, 471 U.S. 386, 392–93, 105

S. Ct. 2066, 2069–70, 85 L. Ed. 2d 406, 413–14 (1985) (noting pervasive

regulation).

      Next, I explore the validity of the rationales in light of the purposes

of article I, section 8.     A review of the literature quickly reveals the

rationales behind the automobile exception have been roundly criticized.

For instance, Professor Adams has analyzed the automobile exception in

detail and found it wanting.      James A. Adams, Search and Seizure As

Seen by Supreme Court Justices: Are They Serious or Is This Just Judicial

Humor?, 12 St. Louis U. Pub. L. Rev. 413 (1993) [hereinafter Adams].

According to Professor Adams, the mobility argument in support of the

automobile exception “has no basic integrity” when the automobile has

been immobilized through impoundment. Id. at 424. It has also been

argued that while it might have taken hours or days to obtain a warrant

when Carroll was decided, and therefore a warrant was impractical in the

context of an automobile stop, such a rationale no longer applies in

today’s technological world when warrants may be obtained in minutes

rather than hours or days. See Chase, 41 B.C. L. Rev. at 87–89.
                                                 67

      The rationale supporting the automobile exception based upon a

reduced expectation of privacy has also been questioned. For instance,

as cited by Professor LaFave, “ ‘personal effects so stored’ ” in

automobiles are entitled to constitutional protections and that most

Americans regard their automobiles as “ ‘more than merely a method of

transportation.’ ” 3 Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 7.2(b), at 735 (5th ed. 2012) [hereinafter LaFave]

(quoting Lewis R. Katz, Automobile Searches and Diminished Expectations

in the Warrant Clause, 19 Am. Crim. L. Rev. 557, 571 (1982) [hereinafter

Katz]).     Professor Adams agrees decreased expectation of privacy

embraced by the Supreme Court “has little to support it” and “merely

stating that there is a diminished expectation of privacy in an automobile

is not a valid basis for excluding automobiles from the warrant

requirement.” Adams, 12 St. Louis U. Pub. L. Rev. at 430, 432. Further,

Professor    LaFave      has        criticized    suggestions        that   the   degree    of

government regulation justifies vehicle searches. LaFave § 7.2(b), at 735

(citing Katz, 19 Am. Crim. L. Rev. at 571).                     What relationship does

regulation of licensure, tail pipes, and headlamps have with the

government’s      ability      to     search      the    interior      of   the    passenger

compartment?       One might reasonably expect to be stopped by law

enforcement for a noisy muffler, broken tail light, or driving without a

license, but does that mean a briefcase in the back of the car may be

searched by police officers who make a regulatory stop? Should we not

interpret article I, section 8 so that it “protects people, not places?” Katz

v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576,

582 (1967).

      Certainly    the      Adams–LaFave              points   are    worthy      of   serious

consideration. Americans take great pride in their automobiles and their
                                      68

use is a basic feature of modern American life. They are not used simply

for transportation. Automobiles are used as temporary homes or even a

place to take a snooze after a long (or not so long) drive.              Bank

statements, recent mail, credit card invoices, love notes, and medical

information may be stored in automobiles.          Glove compartments and

consoles    are   pretty   good   places   to   keep   “papers   and   effects.”

Professionals driving home from work take bundles of documents with

them in both hard and electronic formats that are often placed on the

back seat. In an interesting case, a judge noted he frequently takes work

home in his automobile and observed that his vehicle was thus a usual

mode for transporting “drafts of opinions, notations indicating the

probable outcome of submitted cases, and confidential messages from

other judges.” United States v. Edwards, 554 F.2d 1331, 1338 (5th Cir.

1977), vacated on other grounds 577 F.2d 883 (5th Cir. 1978). Today,

with new electronic devices and wireless networks, it is not unusual for

an automobile to serve as a virtual office for the conduct of private

business.

      It is true of course, as a matter of fact, that automobiles are highly

regulated. So are homes. Residents in the city have to comply with all

manner of regulations.      Do not burn the leaves.      Take out the trash.

Comply with building codes. No driveway here. Mow the lawn. Repair

the sidewalk.     Pipe down, for crying out loud, its 2 a.m.!      Yet, these

regulatory requirements do not serve as a categorical basis to defeat the

warrant requirement as to the bedrooms, offices, and studies in all

houses.     Similarly, when an automobile is subject to registration and

various regulatory requirements, these requirements at least arguably

have nothing to do with your right to be “secure” in your “papers and
                                     69

effects” stored in the passenger compartment of the vehicle. So, maybe

the regulation theory is at least subject to question.

      Then, even assuming there is an automobile exception of some

kind, the question arises regarding its scope.         In other words, do the

facts matter?     Does it matter that the vehicle in this case was

impounded? Which way does that cut? See, e.g., Jones v. State, 856

N.E.2d 758, 762 (Ind. Ct. App. 2006) (discussing impoundment). What

about a parked car when the driver is arrested? Does the state have the

burden to show, under all the facts and circumstances, that obtaining a

warrant was impractical? See, e.g., State v. Elison, 14 P.3d 456, 467–68,

471   (Mont.    2000)   (requiring   individualized       showing   of     exigent

circumstances    when    driver,    who   was    alone,     was   arrested      and

handcuffed); State v. Cooke, 751 A.2d 92, 100 (N.J. 2000) (holding state

had burden of showing both probable cause and exigent circumstances).

Or, do we need a bright-line rule so bright that all automobiles are the

same regardless of their use or present mobility or lack thereof?               See,

e.g., Moore v. State, 787 So. 2d 1282, 1288 (Miss. 2001) (en banc)

(holding   automobile   exception    applies    even   to   vehicles     that   are

immobilized or unmovable). Or, does the bright-line cut the other way,

in favor of no automobile exception? See, e.g., State v. Sterndale, 656

A.2d 409, 412 (N.H. 1995) (holding there was no automobile exception

under New Hampshire Constitution, thereby avoiding the “constitutional

quagmire”).

      Among state courts, there is a split of authority on the question of

whether there is a broad automobile exception under state constitutions.

See 2 Jennifer Friesen, State Constitutional Law: Litigating Individual

Rights, Claims and Defenses § 11.08, at 11-101 & n.441 (4th ed. 2006).

The interesting questions regarding the validity of the automobile
                                     70

exception and its scope should not be resolved by a declaration that the

Iowa Constitution is worded similarly to the Federal Constitution and

that federal law must be followed, not with a declaration that we must

follow federal law to establish uniformity, and not with a bulk citation of

caselaw that supports the automobile exception.         Through its neutral

criteria, the dissent seeks to prevent consideration of the underlying

issues described above. It is our constitutional obligation, however, to do

the nitty-gritty work of examining the available authorities and

precedents—both state and federal—and determining which approach

makes the most sense under article I, section 8 of the Iowa Constitution.

In light of the court’s disposition, that analysis will await another day.

      Cady, C.J., and Wiggins, J., join this special concurrence.
                                         71
                                                       #13–1915, State v. Gaskins
WATERMAN, Justice (dissenting).

         I respectfully dissent and join the separate dissent of Justice

Zager. The majority correctly concludes this traffic stop and arrest were

lawful, but then effectively overrules our precedent by requiring

suppression of the firearm and narcotics found in the search of the safe

behind the driver’s seat. In my opinion, this was a lawful search based

on either of two exceptions to the warrant requirement: the automobile

exception or the search-incident-to-arrest exception.              Today’s opinion

unduly     restricts    police   searches     and   creates    practical     problems

undermining public safety. I would affirm the district court’s evidentiary

ruling      that   applied       precedent     allowing       police    to     search

contemporaneously         the    vehicle’s    entire    passenger      compartment

(including containers) at the scene when probable cause supports the

arrest of the driver.

         The majority disregards how the parties framed the issues and

briefed the appeal. Both parties recognized the automobile exception is

at issue, yet the majority fails to address that alternative ground for

upholding the search. The parties’ briefs and the majority opinion are

two ships passing in the night.         The bench and bar will have to read

today’s tea leaves to guess the fate of the automobile exception in the

next appeal. In my view, that exception should remain good law. The

majority also disregards the State’s extensive survey of courts and

commentators supporting use of neutral interpretive principles to guide

departures from federal precedent when we interpret identical provisions

of the state constitution. The majority’s standardless approach appears

result-oriented and provides no guidance.              I reiterate my call for our

court to adopt neutral interpretive criteria. Applying such criteria here, I
                                     72

would give the same words the same meaning in the Iowa and federal

search and seizure provisions, apply existing precedent, and thereby

affirm Gaskins’s convictions.

      I. Additional Relevant Facts.

      The reader should know some additional relevant facts missing

from the majority opinion. The majority minimizes the drugs found in

the search of the van as “several” small plastic bags of marijuana and

pipes. The district court’s ruling is more informative:

      The safe contained: “The Regent” 22 caliber revolver with a
      scratched off serial number loaded with eight bullets, a scale
      with marijuana residue, one larger sandwich bag[]
      containing eleven smaller sandwich bag[s] filled with . . .
      marijuana, one plastic sandwich bag[] with a larger ball of
      . . . marijuana, one box of sandwich bag[s], several larger . . .
      freezer bags with an odor of “raw” marijuana, and various
      pipes and “one hitter” pipes.

             . . . Ultimately, there [were] over forty-two grams of
      marijuana inside of Gaskins’[s] vehicle. Officers testified
      that the weight and the bag[s] were indicative of resale and
      distribution of narcotics. Additionally, persons who engage
      in resale of marijuana typically carry weapons, like the one
      found in the safe, for protection.

All of the empty plastic bags tested positive for the presence of

marijuana, as did the residue on the scale.         The revolver contained

Gaskins’s fingerprints. The officer who conducted the search of the van

testified at the suppression hearing that the safe was within the reach of

both Gaskins and his passenger at the time of the stop.

      The majority also gives short shrift to relevant testimony at the

suppression hearing.     Officer Tatum, who initially arrested Gaskins,

testified, “People that purchase drugs or sell drugs, they have a tendency

not to carry them on their person, they usually hide them in specific

places.” Officer Tatum further testified that he thought a search of the

van would find more drugs in the vehicle, for several reasons. First, he
                                    73

smelled marijuana from within the van; second, Gaskins initially lied to

him by denying that he had any drugs; and third, Gaskins then handed

over the single, partially smoked blunt. As Officer Tatum testified, “Most

people that use drugs or sell drugs, . . . have a tendency to carry

weapons.” Therefore, he was concerned that Gaskins had a weapon in

the van, as well as items related to drug offenses. These facts further

support the district court’s findings that the police had probable cause to

search the van at the scene, including the safe within Gaskins’s reach at

the time of the stop.

     II. The District Court Should Be Affirmed Under Existing Iowa
and Federal Precedent.

      The search of Gaskins’s van was constitutional under our court’s

precedent and the Fourth Amendment decisions of the United States

Supreme Court. The majority not only departs from federal decisions, it

overturns our own caselaw adopting those decisions, violating the

principle of stare decisis. Our court in a unanimous decision recently

stated, “Stare decisis alone dictates continued adherence to our

precedent absent a compelling reason to change the law.”          Book v.

Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015); see also

Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013)

(“We are slow to depart from stare decisis and only do so under the most

cogent circumstances.”).       Indeed, it is difficult to overstate the

importance of stare decisis:

            It nearly goes without saying that the doctrine of
      stare decisis is one of the bedrock principles on which this
      court is built. It is an important restraint on judicial
      authority and provides needed stability in and respect for the
      law. The majority acknowledges the importance of this
      principle but fails to follow the standards we have developed
      to ensure its protection. While we would abdicate our role as
      a court of last resort if we failed to occasionally reexamine
                                     74
      our prior decisions, we must undertake this weighty task
      only for the most cogent reasons and with the greatest
      caution.

Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) (Cady, J., dissenting).

A   commentator     recently   recaptitulated   the   values   fostered   by

stare decisis:

      First, as in other contexts, stare decisis fosters Rule of Law
      values. These include consistency and equal treatment,
      stability, and predictability at any one time and over time.
      Following precedent, moreover, saves lawyers and judges
      from having to rethink every legal question from the ground
      up whenever a question arises.        And precedent affords
      lawyers and lower court judges common points of reference
      from which to engage productively.
            Second, in the present context, stare decisis fosters
      constitutionalism. It constrains the exercise of arbitrary
      power by the Court. It denies the Court freedom to pick and
      choose the precedents it will follow. It also tends to bring
      unity to the Constitution as it is practiced over time, and the
      Court’s composition changes.
             Third, stare decisis fosters legitimacy, which requires
      the Court to have, and be perceived as having, adequate
      legal justifications for its decisions. Justifications flowing
      from the Court’s precedents tend, at the least, to be so
      perceived.       Even when the Justices disagree, the
      disagreement will be perceived to be one about the law when
      all of them reason from the same starting points. To the
      extent possible, the Constitution and precedents interpreting
      it should form a coherent corpus of law, widely perceived
      and practiced as such.
             ....
             Both stare decisis and overruling are constitutionally
      vital. For the reasons to be given below, the Constitution
      requires the Court to practice stare decisis. It is necessary
      to the Court’s unifying mission, and it is a stabilizing force in
      a constitutional system under the Rule of Law. In addition,
      the Rule of Law entails the Court’s duty to follow its
      constitutional precedents: The Court has a duty to follow the
      law; such precedents are parts of the law; therefore, the
      Court has a duty to follow such precedents.
            At the same time, the Court’s power to overrule is vital
      for maintaining constitutionalism by correcting mistakes and
      updating the law. Overruling, moreover, is the only effective
      check on the Court’s exercise of its power to interpret the
                                          75
      Constitution. The Court’s power to overrule also is essential
      to the constitutional system’s continuing legitimacy.

Steven J. Burton, The Conflict Between Stare Decisis and Overruling in
Constitutional Adjudication, 35 Cardozo L. Rev. 1687, 1696–97 (2014)

(footnotes omitted).   Professor Burton also aptly observed, “A Supreme

Court not bound by its precedents likely would vacillate over time as its

composition changes, yielding unacceptable discontinuity and instability,

and deflating the Court’s legitimacy.” Id. at 1710.

      I agree with the majority that we should reexamine our search and

seizure   precedent    in    light   of    changes    in   Fourth   Amendment

jurisprudence and that Gant narrowed Belton. See Arizona v. Gant, 556

U.S. 332, 345–47, 129 S. Ct. 1710, 1720–21, 173 L. Ed. 2d 485, 496–99

(2009); New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69

L. Ed. 2d 768, 775 (1981). It therefore makes sense to reexamine our

Iowa precedent, which adopted the Belton rule in 1981. State v. Sanders,

312 N.W.2d 534 (Iowa 1981).           But, today’s departure from Gant is

unnecessary and ill-advised.         For the reasons developed in Justice

Zager’s dissent, I too would follow Gant under article I, section 8 of the

Iowa Constitution.

      The special concurrence today throws stones from a glass house by

accusing the dissenters of infidelity to stare decisis. See State v. Young,

863 N.W.2d 249, 277, 281 (Iowa 2015).                Young, decided this term,

overruled State v. Allen, 690 N.W.2d 684 (Iowa 2005), a unanimous 2005

decision of our court.      Young, 863 N.W.2d at 281.         Our approach as

dissenters consistently honors the half century of precedent of our court

following decisions of the United States Supreme Court interpreting

identical search and seizure provisions, instead of accepting several

recent departures from that body of law beginning with State v. Ochoa,
                                            76

792 N.W.2d 260 (Iowa 2010). See State v. Baldon, 829 N.W.2d 785, 837–

43 (Mansfield, J., dissenting) (explaining the dissenters’ disagreement

with Ochoa). 17 The majority opinion’s reasoning also casts doubt on the

continued      validity    of   the   automobile       exception      under     the    Iowa

Constitution, which further undermines the goals served by stare decisis.

The majority fails to reach the automobile exception, based on its myopic

assertion that only the search-incident-to-arrest exception is in play in

this appeal. I would not shrink from reaching the automobile exception

in this appeal.       As both parties recognized, the automobile exception

provides an alternative ground to uphold the search of Gaskins’s van.

       A. Error Preservation.             The majority implicitly concludes the

State waived error as to the automobile exception.                    Yet, the majority

generously concludes Gaskins preserved error for his claims under the

Iowa Constitution with a cryptic citation in district court. Gaskins never

argued in district court that Iowa should depart from precedent to



       17The  majority’s practice of finding greater rights under article I, section 8 of the
Iowa Constitution did not begin with State v. Tonn, 195 Iowa 94, 104–07, 191 N.W. 530,
535–36 (1923), abrogated on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81
S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1089–90 (1961). Tonn declined to follow the
federal exclusionary rule while acknowledging the warrantless search was illegal. Id. It
thus provided less protection under the Iowa provision. Moreover, Tonn addressed
judge-made remedies, rather than the scope of permissible warrantless searches. The
same is true of State v. Cline, 617 N.W.2d 277 (Iowa 2000), abrogated on other grounds
by State v. Turner, 630 N.W.2d 601, 602 n.2 (Iowa 2001). See Baldon, 829 N.W.2d at
838–39 (Mansfield, J., dissenting). Tonn is at best weak support for the view that our
court has a history of departing from Fourth Amendment interpretations. First, the
Fourth Amendment was not applied to the states until 1961, well after Tonn. See Mapp,
367 U.S. at 655–57, 81 S. Ct. at 1691–92, 6 L. Ed. 2d at 1090–91. Second, our court’s
next departure from Fourth Amendment precedent was not until Cline, nearly eight
decades after Tonn. Before and after Cline, our court repeatedly adhered to federal
search and seizure precedent. See Baldon, 829 N.W.2d at 837–89 (Mansfield, J.,
dissenting) (collecting cases). In any event, Tonn belies the majority’s view that the Iowa
search and seizure provision provides greater protection than the Fourth Amendment.
Perhaps for that reason, the Ochoa court did not cite Tonn to justify its departure from
federal precedent in 2010.
                                           77

abandon the “evidence” prong of Gant under our state constitution. Yet,

the majority vacates Gaskins’s conviction based on that very argument,

first made on appeal. The majority thereby reverses the district court for

failing to credit an argument the defendant never made at trial. Is it fair

to our trial judges and to the State to reverse suppression rulings based

on arguments the defendant failed to make in district court?                     Are we

asking our trial judges to foresee changes in the law by our court when

the party did not first argue for the change in district court? Are we now

expecting trial judges to consider arguments that counsel, lulled by

settled precedent, fails to make? Is it not reversible error for the district

court to assume the role of partisan advocate? See Hyler v. Garner, 548

N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the arguments

[the parties] might have made and then search for legal authority and

comb the record for facts to support such arguments.”); see also State v.

Hicks, 791 N.W.2d 89, 97–98 (Iowa 2010) (same); In re S.P., 719 N.W.2d

535, 539–40 (Iowa 2006) (stating “the court is prohibited from assuming

the role of an advocate” and calling for “what Edmund Burke described

as the ‘cold neutrality of an impartial judge’ ” (quoting State v. Glanton,

231 N.W.2d 31, 35 (Iowa 1975))); State v. Biddle, 652 N.W.2d 191, 198

(Iowa 2002) (noting the “constitutional right to have a neutral and

detached judge”); 18 Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239,

       18Given   our court’s long-standing practice of following Federal Fourth
Amendment decisions, it was foreseeable to the parties and district court that in light of
Gant, we would revisit our search-incident-to-arrest precedent that had relied on
Belton. See State v. Vance, 790 N.W.2d 775, 786–89 (Iowa 2010). It is one thing to
expect the bench and bar to foresee our court would apply the new United States
Supreme Court decision in Gant. A greater degree of prescience is required to foresee
the majority’s departure today from Gant without affirming the suppression ruling
under the automobile exception. See id. at 790 (affirming the defendant’s conviction
without deciding the ineffective-assistance claim and stating, “In Gant, the Supreme
Court noted that even if the Belton analysis, as limited by Gant, does not uphold the
constitutionality of a search, other exceptions to the warrant requirement authorizing
                                            78

240 (Iowa 1974) (noting that we do not “assume a partisan role and

undertake [a party’s] research and advocacy”);

       The majority repeats a result-oriented approach of playing “gotcha”

with the State to avoid alternative grounds to uphold a police search,

while forgivingly considering a defendant’s bare mention of the Iowa

Constitution in district court to be sufficient for our court to make new

state constitutional law. 19 I instead favor a level playing field, with the

same error preservation rules applied to the State and the defense.
___________________
an officer to search a vehicle might be applicable to uphold the search”); id. at 790–91
(Cady, J., dissenting) (“[T]he search [of Vance’s vehicle] was clearly permitted under the
well-recognized automobile exception to the warrant requirement. The majority’s own
opinion bears this out.”).
       19For  example, in Ochoa, this court concluded the State waived several grounds
for upholding a warrantless search of a parolee’s motel room based on consent. 792
N.W.2d at 291–92. We reversed the court of appeals decision that had relied on Fourth
Amendment precedent. Id. at 292. The Ochoa court decided the case under the Iowa
Constitution, even though the defendant had failed to argue the Iowa Constitution in
district court or on appeal. See Baldon, 829 N.W.2d at 837 & n.46 (Mansfield, J.,
dissenting) (discussing Ochoa).
        Similarly, in State v. Pals, our court considered the constitutionality of a consent
search following a traffic stop. 805 N.W.2d 767, 770–71 (Iowa 2011). The district court
and court of appeals upheld the search under Fourth Amendment precedent. See id. at
771.    The defendant made no argument for broader protection under the Iowa
Constitution in district court or on appeal. Id. at 784–85 (Waterman, J., dissenting).
Nevertheless, the Pals majority reversed on state constitutional grounds it raised
sua sponte. Id. at 779–84. In Baldon, our court invalidated a search of a parolee on a
state constitutional ground never briefed by defendant. 829 N.W.2d at 837 n.46
(Mansfield, J., dissenting). Yet, the majority refused to consider the State’s alternative
argument to uphold the search under the special-needs doctrine. Id. at 789 (majority
opinion). In State v. Short, the majority held the State waived an alternative ground to
support the search of a probationer’s home (a consent-to-search provision in the
probation agreement) even though the district court specifically found “the police had
the right to search Short’s residence under the terms of his probation.” 851 N.W.2d
474, 479 (Iowa 2014) (internal quotation marks omitted). Yet, the majority departed
from federal precedent to invalidate the search, even though the defendant never argued
in district court that the Iowa Constitution provided greater restrictions on police
searches than the Fourth Amendment. See id. at 509 & n.12 (Waterman, J., dissenting)
(protesting the majority’s inconsistent approach to error preservation). In each of these
cases, the majority took a hypertechnical approach to error preservation against the
State to avoid alternative grounds to uphold a search, and blindsided the State by
departing from federal precedent in a manner the defendant never argued in district
court.
                                      79

      The State put the automobile exception in play at the suppression

hearing, arguing, “Clearly we have exigent circumstances. We have got a

vehicle. We are not looking at the same type of threshold as a home or

something along those lines . . . .”    Exigent circumstances (specifically

mobility) and the diminished expectation of privacy in a vehicle are

rationales supporting the automobile exception, not the search-incident-

to-arrest exception. Compare Gant, 556 U.S. at 338, 129 S. Ct. at 1716,

173 L. Ed. 2d at 493 (“The [search-incident-to-arrest] exception derives

from interests in officer safety and evidence preservation that are

typically implicated in arrest situations.”), with United States v. Ross, 456

U.S. 798, 805–06, 102 S. Ct. 2157, 2163, 72 L. Ed. 2d 572, 582 (1982)

(contrasting the search of a structure with the search of an inherently

mobile vehicle). The district court’s ruling expressly relied on Ross as

well as Robbins v. California, cases adjudicating the automobile exception

rather   than    the   search-incident-to-arrest   exception.   Robbins    v.

California, 453 U.S. 420, 423, 101 S. Ct. 2841, 2844, 69 L. Ed. 2d 744,

749 (1981), overruled by Ross, 456 U.S. 798, 102 S. Ct. 2157, 72

L. Ed. 2d 572. The district court necessarily considered the automobile

exception in its ruling, and for this reason alone, the automobile

exception should be preserved for our review. See Lamasters v. State,

821 N.W.2d 856, 864 (Iowa 2012) (“If the court’s ruling indicates that the

court considered the issue and necessarily ruled on it, even if the court’s

reasoning is ‘incomplete or sparse,’ the issue has been preserved.”

(quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002))).

      Nor did the State abandon the automobile exception on appeal. To

the contrary, both parties focused their appellate arguments on that

exception.      Gaskins’s appellate brief specifically urged our court to

abandon the automobile exception under the Iowa Constitution and
                                           80

devoted fifteen pages to arguing the automobile exception should be

found incompatible with the Iowa Constitution.                        Gaskins never

contended the State waived error on the automobile exception.                        The

State’s appellate brief in turn argued the search was valid under the

automobile exception and urged our court to adhere to our precedent.

The State’s appellate brief devoted thirty pages to arguing the automobile

exception should remain good law under the Iowa Constitution.                        The

issue is preserved for our review. See State v. Howard, 509 N.W.2d 764,

768 (Iowa 1993).20

       When my colleague sua sponte raised error preservation at oral

argument, Gaskins’s appellate counsel pushed back:

              JUSTICE HECHT: Counsel, to what extent is the
       automobile exception even really before us? As I read the
       record on the motion to suppress, the only thing asserted as
       a justification for no warrant was the search was incident to
       an arrest and that appears to me to be the only exception
       that the district court addressed and so why do—why are we
       even looking beyond that in this case?

             MS. LUCEY: I think if you find that it’s not a search
       incident to arrest, then you need to go to that next step, is
       there another exception that would uphold this ruling.

             JUSTICE HECHT: Even if it’s not asserted by the
       State?

              MS. LUCEY: I think in prior cases they certainly say
       that, yes. In State v. Vance, there is a dissent that indicated,
       well, why are we preserving this for postconviction relief if
       there is this other viable, potential exception.


       20The State argued that Gaskins waived error by failing to assert in district court
that the automobile exception should be abandoned. The State observes that if Gaskins
had done so, it could have developed the record at the suppression hearing on that
issue. A remand would allow the district court to decide the Iowa constitutional claims
based on a more fully developed record. Cf. State v. Hoeck, 843 N.W.2d 67, 72 (Iowa
2014). But, in my opinion, the record is adequately developed to uphold the search
under the automobile exception as well as under the Gant search-incident-to-arrest
exception.
                                   81

Later in the argument, Gaskins’s counsel again declined my colleague’s

invitation to argue the State waived the automobile exception:

             To answer your question earlier about preservation,
      when you look at what the State argued, what the defense
      argued and what the Judge ultimately decided, it seems like
      they are talking about search incident to arrest but they use
      probable cause on occasion. So, [it is] sort of both decided
      and if there is no justification for the search incident to
      arrest under Gant . . . . None of that was introduced but a
      fair reading may actually show probable cause in exigent
      circumstances and that’s why I briefed it. Does that help?

      The State’s counsel, in turn, stated unequivocally at oral argument

that “[w]e are talking about the automobile exception.”     We normally

decide appeals based on the issues as framed by the parties. See Feld v.

Borkowski, 790 N.W.2d 72, 78 (Iowa 2010) (“Our obligation on appeal is

to decide the case within the framework of the issues raised by the

parties. Consequently, we do no more and no less.” (Citation omitted.)).

We should follow that approach today and decide whether this search

was valid under the automobile exception.

      Even if the majority were correct in concluding that the automobile

exception was not adequately raised below, we “will uphold a ruling of

the court on the admissibility of evidence on any ground appearing in the

record, whether urged below or not.” State v. Parker, 747 N.W.2d 196,

208 (Iowa 2008) (quoting State v. McCowen, 297 N.W.2d 226, 227 (Iowa

1980)).   While our general rule of error preservation requires that a

proper ground be “urged in the district court,” there is an exception for

evidentiary rulings that we have consistently applied. DeVoss v. State,

648 N.W.2d 56, 62 (Iowa 2002). A motion to suppress on constitutional

grounds is a challenge to the admissibility of evidence seized from a

defendant. Therefore, we may affirm the district court’s suppression

ruling on any ground appearing in the record, whether urged by the
                                          82

parties or not. DeVoss, 648 N.W.2d at 62; see also State v. Newell, 710

N.W.2d 6, 23–24 (Iowa 2006) (indicating appellate court can affirm

evidentiary ruling on any ground raised on appeal). I would affirm the

suppression ruling based on the automobile exception, which is

supported by the record.

       B. The Search Is Valid Under the Automobile Exception.                         In

State v. Olsen, we unanimously adopted the federal standards for the

automobile exception. 293 N.W.2d 216, 220 (Iowa 1980) (“In this case

we are persuaded that the state constitution should be given the same

interpretation as the Federal.”). Since then, we have consistently applied

the federal interpretation of the automobile exception. See, e.g., State v.

Allensworth, 748 N.W.2d 789, 792–96 (Iowa 2008) (collecting federal

cases); State v. Maddox, 670 N.W.2d 168, 174 (Iowa 2003) (applying the

automobile exception). 21

       The federal automobile exception, also known as the Carroll–

Chambers doctrine, is clear, well-settled, and takes a broad view of the

exigency created by the mobility of a vehicle. The seminal case of Carroll

v. United States outlined the doctrine and its reasoning:

             We have made a somewhat extended reference to these
       statutes to show that the guaranty of freedom from
       unreasonable searches and seizures by the Fourth
       Amendment has been construed, practically since the
       beginning of the government, as recognizing a necessary

        21The separate special concurrence of Chief Justice Cady predicts that EDMS

technology will eliminate the need for the automobile exception because officers can
obtain warrants electronically from the field. This is not the time to address the impact
of EDMS. EDMS was not available statewide at the time of the incident, and Officer
Tatum did not have EDMS in his squad car for the search at issue today. Accordingly,
neither party briefed the impact of EDMS, and no factual record was made regarding
use of EDMS. See State v. Ritz, 347 P.3d 1052, 1054, 1060 (Or. Ct. App. 2015)
(affirming DUI conviction and warrantless entry to home to apprehend suspect for time-
sensitive blood alcohol test, relying on evidence it would have taken officer ninety
minutes to obtain warrant using “in-car computer” (internal quotation marks omitted)).
                                    83
      difference between a search of a store, dwelling house, or
      other structure in respect of which a proper official warrant
      readily may be obtained and a search of a ship, motor boat,
      wagon, or automobile for contraband goods, where it is not
      practicable to secure a warrant, because the vehicle can be
      quickly moved out of the locality or jurisdiction in which the
      warrant must be sought.

267 U.S. 132, 153, 45 S. Ct. 280, 285, 69 L. Ed. 543, 551 (1925).

Therefore, the Court concluded, a search would be legal if “the seizing

officer shall have reasonable or probable cause for believing that the

automobile which he stops and seizes has contraband.” Id. at 156, 45

S. Ct. at 286, 69 L. Ed. at 552.    In Chambers v. Maroney, the Court

considered a case in which a car was impounded as a result of an arrest

and then later searched at a police station. 399 U.S. 42, 44, 90 S. Ct.

1975, 1977, 26 L. Ed. 2d 419, 424 (1970). First, the Chambers Court

noted that the automobile exception was “wholly different” from the

search incident to arrest. Id. at 49, 90 S. Ct. at 1980, 26 L. Ed. 2d at

427. Then the Court held:

      For constitutional purposes, we see no difference between on
      the one hand seizing and holding a car before presenting the
      probable cause issue to a magistrate and on the other hand
      carrying out an immediate search without a warrant. Given
      probable cause to search, either course is reasonable under
      the Fourth Amendment.

Id. at 52, 90 S. Ct. at 1981, 26 L. Ed. 2d at 428. Next, in Ross, the Court

faced a new question: “[W]hether, in the course of a legitimate

warrantless search of an automobile, police are entitled to open

containers found within the vehicle.”    456 U.S. at 817, 102 S. Ct. at

2169, 72 L. Ed. 2d at 589.     The Court held that police with probable

cause to search a vehicle may also search any container within it. Id. at

821, 102 S. Ct. at 2171, 72 L. Ed. 2d at 591. The Court explained:

      It is therefore significant that the practical consequences of
      the Carroll decision would be largely nullified if the
      permissible scope of a warrantless search of an automobile
                                          84
       did not include containers and packages found inside the
       vehicle. Contraband goods rarely are strewn across the
       trunk or floor of a car; since by their very nature such goods
       must be withheld from public view, they rarely can be placed
       in an automobile unless they are enclosed within some form
       of container.

Id. at 820, 102 S. Ct. at 2170, 72 L. Ed. 2d at 590–91. The Court further

stated, “This rule applies equally to all containers, as indeed we believe it

must.” Id. at 822, 102 S. Ct. at 2171, 72 L. Ed. 2d at 592. Finally, in

California v. Acevedo, the Court reiterated that any container in an

automobile may be searched under the automobile exception if law

enforcement has probable cause to search the vehicle.                500 U.S. 565,

580, 111 S. Ct. 1982, 1991, 114 L. Ed. 2d 619, 634 (1991) (“We therefore

interpret Carroll as providing one rule to govern all automobile searches.

The police may search an automobile and the containers within it where

they have probable cause to believe contraband or evidence is

contained.”).

       Our court has consistently applied the automobile exception:

             We have repeatedly held that where there is probable
       cause and exigent circumstances, a warrantless search does
       not violate a defendant’s constitutional rights against
       unreasonable searches and seizures. A trailerless semi-
       truck, because of its inherent mobility, presents an exigent
       circumstance. This is the so-called “automobile exception”
       to the well-established legal maxim that warrantless
       searches are per se unreasonable. Even if police lack a valid
       warrant, they may search a vehicle if they have probable
       cause to believe a crime, or evidence thereof, may be found
       within it.

Maddox, 670 N.W.2d at 171 (citations omitted).               It is undisputed that

Gaskins’s van was mobile. 22 Accordingly, this search is valid under the


       22Gaskins was lawfully stopped by the police while driving his van on a public
highway. He does not claim he was living in his van. Accordingly, there is no basis for
extending the heightened privacy rights for a home to this case. Gaskins’s van is not
his castle.
                                   85

automobile exception if the police had probable cause to believe the safe

contained evidence.

      I agree that the district court correctly found probable cause to

search the safe. The majority does not contend otherwise. When Officer

Tatum first pulled Gaskins over, he detected a strong odor of marijuana

wafting from the van. That alone is probable cause to search the van.

See State v. Watts, 801 N.W.2d 845, 854–55 (Iowa 2011) (collecting cases

and stating that “notably, many other courts have found that the odor of

raw or growing marijuana by itself can provide sufficient probable cause

for a search”); State v. Moriarty, 566 N.W.2d 866, 869 (Iowa 1997)

(holding that marijuana odor was part of the basis for probable cause);

State v. Merrill, 538 N.W.2d 300, 301 (Iowa 1995) (same); State v.

Eubanks, 355 N.W.2d 57, 59 (Iowa 1984) (holding marijuana odor alone

supported probable cause).

      Moreover, Gaskins initially lied about possessing marijuana then

voluntarily turned over a partially smoked blunt. Officer Tatum testified

that drug users frequently keep their drugs hidden nearby and believed,

based on his training and experience, that he would find additional

drugs in the vehicle.    Officer Tatum also testified that drug users

frequently carry weapons. Based on the strong odor of marijuana, the

admitted presence of the blunt, and Gaskins’s initial dishonesty, there

was probable cause to search Gaskins’s van for additional evidence of

drug-related offenses.   Nor is the result any different because the

contraband was found in a safe:

            The scope of a warrantless search of an automobile
      thus is not defined by the nature of the container in which
      the contraband is secreted. Rather, it is defined by the
      object of the search and the places in which there is
      probable cause to believe that it may be found.
                                   86

Ross, 456 U.S. at 824, 102 S. Ct. at 2172, 72 L. Ed. 2d at 593.

Therefore, the search was proper under the automobile exception.

      Gaskins’s appellate brief asks us to abandon the automobile

exception as inconsistent with the Iowa Constitution. This would be a

significant departure from well-established state and federal law,

requiring us to overturn Olsen and its progeny, including Maddox, and to

diverge from federal precedent. There is no basis for this departure in

our constitutional text or history. See State v. Short, 851 N.W.2d 474,

510–12    (Iowa   2014)   (Waterman,    J.,   dissenting).   Moreover,   the

automobile exception remains well-recognized in a majority of our sister

states:

      To provide greater uniformity in the assessment of individual
      cases and more consistency with regard to the admissibility
      of the fruits of vehicular searches based on probable cause,
      a more easily applied rule—such as that of the federal
      automobile exception—is called for.
            This position is supported by the fact that we, in
      agreement with the U.S. Supreme Court, have long
      considered the immobilization of a motor vehicle while
      securing a search warrant to be an alternative to the
      immediate search of the vehicle because it is far from clear
      which course constitutes the greater intrusion.

Commonwealth v. Gary, 91 A.3d 102, 137 (Pa. 2014); see also Acevedo,

500 U.S. at 577, 111 S. Ct. at 1990, 114 L. Ed. 2d at 632 (promulgating

a rule for the warrantless search of vehicles and containers, reiterating

“the virtue of providing clear and unequivocal guidelines to the law

enforcement profession” (internal quotation marks omitted)). E.g., State

v. Winfrey, 24 A.3d 1218, 1224 (Conn. 2011) (allowing warrantless

search of vehicle on probable cause); State v. Charpentier, 962 P.2d

1033, 1036 (Idaho 1998) (concluding the Idaho Constitution provided no

greater protection than the Fourth Amendment); People v. Smith, 447

N.E.2d 809, 813 (Ill. 1983) (“We believe that the Supreme Court’s
                                         87

interpretation of the automobile exception, announced in Ross, achieves

a fair balance between these competing objectives, and we see no reason

at this time to adopt a different standard in applying Illinois

constitutional provisions.”); Chavies v. Commonwealth, 354 S.W.3d 103,

110–12 (Ky. 2011); State v. Ireland, 706 A.2d 597, 599 (Me. 1998);

Commonwealth v. Motta, 676 N.E.2d 795, 800 (Mass. 1997) (“[W]e have

also followed the Supreme Court in the area of the automobile

exception.”); Moore v. State, 787 So. 2d 1282, 1288–89 (Miss. 2001);

State v. Zwicke, 767 N.W.2d 869, 873 (N.D. 2009) (bringing state doctrine

in line with federal caselaw); State v. Brown, 721 P.2d 1357, 1361 (Or.

1986) (“We agree with the proposition that if police have probable cause

to believe that a person’s automobile, which is mobile when stopped by

police, contains contraband or crime evidence, the privacy rights of our

citizens are subjected to no greater governmental intrusion if the police

are authorized to conduct an immediate on-the-scene search of the

vehicle than to seize the vehicle and hold it until a warrant is obtained.”);

State v. Werner, 615 A.2d 1010, 1014 (R.I. 1992) (“Now that the Supreme

Court    has   dissipated   the   gray    cloud    of   uncertainty    that   once

encompassed the issue of exigency, we have decided to bring ourselves

into    conformity   with   Supreme      Court    precedent   and     the   Fourth

Amendment.”); State v. Anderson, 910 P.2d 1229, 1238 (Utah 1996)

(“Following this court’s preference to interpret article I, section 14 [of the

Utah Constitution] in accord with the Fourth Amendment, we adopt the

rule articulated in Chambers and its progeny.” (Citation omitted.)); State

v. Tompkins, 423 N.W.2d 823, 832 (Wis. 1988) (“In that regard, art. I,

sec. 11 of the Wisconsin Constitution provides no greater rights than

[amend.] IV of the United States Constitution as interpreted by the

United States Supreme Court.”).          These decisions are persuasive and
                                    88

should be followed to decline Gaskins’s invitation to abandon the

automobile exception under article I, section 8 of the Iowa Constitution.

      C. The Search Incident to Arrest. Just one year after adopting

the federal standard for the automobile exception in Olsen, we did the

same for the federal standard of vehicle searches incident to arrest.

      We can, if we choose, impose stricter standards in applying
      our own constitutional provisions than the United States
      Supreme Court did in Belton. However, we believe Belton
      strikes a reasonably fair balance between the rights of the
      individual and those of society. We adopt it now as our rule.

Sanders, 312 N.W.2d at 539. Belton allowed the search of a passenger

compartment of a vehicle incident to lawful custodial arrest.      Id.   We

have continued to apply this rule since we adopted it. See, e.g., State v.

Garcia, 461 N.W.2d 460, 463 (Iowa 1990).

      As the majority notes, Chimel v. California, a case involving the

warrantless search of a house after an arrest, is the leading case for the

search-incident-to-arrest exception.     395 U.S. 752, 753–54, 89 S. Ct.

2034, 2035, 23 L. Ed. 2d 685, 688 (1969). The Chimel Court concluded,

“There is ample justification, therefore, for a search of the arrestee’s

person and the area ‘within his immediate control’—construing that

phrase to mean the area from within which he might gain possession of a

weapon or destructible evidence.”      Id. at 763, 89 S. Ct. at 2040, 23

L. Ed. 2d at 694.     Belton applied the Chimel rule to a passenger,

concluding “we hold that when a policeman has made a lawful custodial

arrest of the occupant of an automobile, he may, as a contemporaneous

incident of that arrest, search the passenger compartment of that

automobile.” Belton, 453 U.S. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at

775 (footnote omitted). The Belton Court continued:

           It follows from this conclusion that the police may also
      examine the contents of any containers found within the
                                    89
      passenger compartment, for if the passenger compartment is
      within reach of the arrestee, so also will containers in it be
      within his reach.

Id.   Most recently, in Gant, a man was arrested for driving with a

suspended license, handcuffed, and placed in the back of a patrol car.

556 U.S. at 335, 129 S. Ct. at 1714, 173 L. Ed. 2d at 491. The arresting

officers searched the car and found drugs in a jacket in the backseat. Id.

The Gant Court limited Belton:

            Police may search a vehicle incident to a recent
      occupant’s arrest only if the arrestee is within reaching
      distance of the passenger compartment at the time of the
      search or it is reasonable to believe the vehicle contains
      evidence of the offense of arrest.

Id. at 351, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501.

      This appeal presents our first opportunity to apply Gant. Under

Gant, the search of Gaskins’s van and the safe within it was a valid

search to look for evidence of the offense of arrest. See id. The majority

nevertheless reaches a different result under article 1, section 8 of the

Iowa Constitution.    Neither the text of that provision nor its history

supports the conclusion that greater restrictions on law enforcement are

required. See Short, 851 N.W.2d at 510–12 (Waterman, J., dissenting).

For the reasons explained below and in Justice Zager’s dissent, I would

follow Gant under article I, section 8 of the Iowa Constitution.

      III. Practical Problems.

      The majority’s decision will lead to practical problems and

undermine public safety.     Under the new rule created today, Officer

Tatum could search the safe only while it was within Gaskins’s reach,

i.e., while Gaskins remained in the driver’s seat. Officer Tatum could no

longer search the van or safe without a warrant once he removed

Gaskins from the van. Why place Iowa peace officers in the position of
                                          90

choosing whether to search for a weapon while it remains in the

suspect’s reach, risking a deadly encounter?             Why not continue using

existing precedent, allowing the officer to take the safer approach of

locking the suspect in the squad car before searching containers in the

vehicle that had been within the suspect’s reach? 23

       Moreover, why force officers to impound vehicles pending a

warrant to conduct a search instead of permitting a quick search at the

scene under existing precedent? Officers who forego the search may lose

evidence supporting the arrest.         Officers who impound the vehicle will

increase the inconvenience for the driver and occupants. 24                     These

encounters will occur under myriad circumstances, including a lone

officer who stops a van full of people in a remote area in subzero

temperatures.       The majority opinion does not permit the officer to

confiscate a container without a warrant.              So, does the officer keep

everyone waiting by the side of the road pending delivery of a warrant?

Does the officer instead impound the vehicle and leave the passengers

stranded?      Or, does the officer forego the search and potentially leave

guns and drugs undetected?

       The majority replaces a clear rule allowing a search of the entire
passenger compartment upon the arrest of an occupant with a vague,

fact-specific rule under which the admissibility into evidence depends on

       23The special concurrence refers to several concurring opinions suggesting the
concern for officer safety no longer justifies a warrantless search once a suspect is
handcuffed. Just this month, however, a police officer in New Orleans, Daryl Halloway,
was reportedly shot dead by a handcuffed arrestee. Suspect sought in killing of
New Orleans police officer, USA Today, June 20, 2015, available at:
http://www.usatoday.com/story/news/nation/2015/06/20/suspect-sought-slaying-
new-orleans-police-officer/29036471/.
       24The  special concurrence argues inconvenience to law enforcement does not
justify departures from the warrant requirement, but fails to address the inconvenience
to motorists and their passengers that will result from today’s decision.
                                    91

what was within the suspect’s reach at the time of the search. We have

observed that

      a bright-line rule has the advantage of providing clear
      guidance to law enforcement personnel. Clarity as to what
      the law requires is generally a good thing. It is especially
      beneficial when the law governs interactions between the
      police and citizens. Law enforcement officials have to make
      many quick decisions as to what the law requires where the
      stakes are high, involving public safety on one side of the
      ledger and individual rights on the other.

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 601 (Iowa 2011). Going

forward, our district courts will have to decide many more factual issues

at suppression hearings to resolve what was or was not within the

suspect’s reach. And, suspects could simply toss the object of the search

out of reach in the back of the van or backseat of the car as the officer

approaches, and thereby thwart the search.

      Finally, today’s decision creates two different rules for state and

federal proceedings.      “We have an interest in harmonizing our
constitutional decisions with those of the Supreme Court when

reasonably possible . . . .” Olsen, 293 N.W.2d at 219–20. As the State

argued in its appellate brief:

            Uniformity also fosters equality under the law, the first
      core value in the Iowa Judicial Branch’s Mission Statement.
      Unnecessary departures from federal law cause inequity and
      unfairness.     The public is rightly confounded when
      prosecutions on identical facts face a different fate in
      Nebraska or Illinois than Iowa. Even more difficult to
      rationalize is the defendant arrested in Des Moines who
      cannot be prosecuted in the Polk County District Court, but
      can be prosecuted up the street in the United States District
      Court for the Southern District of Iowa.

(Footnote omitted.)    All these problems are avoided by adhering to

existing precedent.
                                           92
      IV. The Need for Neutral Interpretive Principles or Divergence
Criteria.

       Our court lacks consensus on the value of neutral interpretive
criteria to guide departures from settled federal precedent construing a

nearly identically worded search and seizure provision.                  This appeal,

however, is the first time the State has weighed in specifically advocating

for the adoption of such criteria. In our prior cases debating the use of

such criteria, the State had been blindsided by the majority’s departure

from settled federal precedent and thus had no reason to urge divergence

criteria. Our court’s prior decisions lacked the benefit of advocacy by the

parties on divergence criteria.         The majority today simply rejects in a

footnote the State’s request to adopt such criteria without confronting

the extensive authorities marshaled by the State. 25
       I will strive to avoid repeating what we have said before, but need

to set the stage for this discussion today. In State v. Pals, I argued that

our   court    “should     not   diverge    from     well-settled    Federal    Fourth

Amendment precedent unless doing so is required by differences in the

text, structure, or history of the Iowa provision.” 805 N.W.2d 767, 789

(Iowa 2011) (Waterman, J., dissenting) (citing State v. Schwartz, 689
N.W.2d 430, 438–45 (S.D. 2004) (Konenkamp, J., concurring in result)).



       25The  special concurrence accuses the dissenters in this case of being engaged
in “perpetual dissent” because Ochoa, Pals, Baldon, and Short previously rejected the
adoption of neutral criteria for deviating from federal interpretation of the Fourth
Amendment. This accusation disregards a couple of points.
        First, is a “perpetuity” four days? On June 26, 2015, we concurred in the
court’s opinion in State v. King, ___ N.W.2d ___ (Iowa 2015), notwithstanding the court’s
extensive reliance on Ochoa, Baldon, and Short.
       Second, the court has never before confronted a party’s request (in this case, the
State of Iowa) to adopt specific neutral criteria—and still has not confronted that
argument today. The lengthy rejection of neutral criteria comes today in a special
concurrence, not in the opinion of the court.
                                           93

In Baldon, Justice Appel’s special concurrence devoted over thirty pages

to trumpeting this court’s right to depart from federal precedent without

endorsing any interpretive criteria to guide such departures. 829 N.W.2d

at 803–35 (Appel, J., concurring).           I joined Justice Mansfield’s dissent

that noted the value of giving deference to federal cases. Id. at 836–46

(Mansfield, J., dissenting).       The debate continued the next term.               See

Short, 851 N.W.2d at 481–92 (setting forth ten “principles of independent

state constitutional law”).         The majority specifically rejected use of

divergence “criteria” as “a solution in search of a problem.” Id. at 490.

Rather, the majority reiterated that it decides what federal precedent to

follow based simply on its own determination of “persuasiveness.” Id. at

481; see also Ochoa, 792 N.W.2d at 267 (“The degree to which we follow

United States Supreme Court precedent, or any other precedent,

depends solely upon its ability to persuade us with the reasoning of the

decision.”). 26

       The dissenters in Short took issue with the majority’s divergence

from a unanimous United States Supreme Court decision that has been

followed by nearly every other state supreme court without academic

criticism. See id. at 507–19 (Waterman, J., dissenting) (calling for use of

        26I do not share the majority’s self-confidence. I see a difference, for example,

between the four-three decision of our court in Short finding broader rights for a
probationer under the Iowa Constitution, decided without the benefit of adversarial
briefing on that issue, and the unanimous decision of the United States Supreme Court
in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001),
which the Short majority, nearly alone among the fifty states, declined to follow. Only
one other state supreme court has declined to follow Knights on state constitutional
grounds. York v. Wahkiakum Sch. Dist. No. 200, 178 P.3d 995 (Wash. 2008) (en banc).
Before the United States Supreme Court weighs in, Fourth Amendment issues are
typically thoroughly vetted in the lower courts and comprehensively briefed by the best
legal minds in the nation. We may disagree with the outcome and reach a different
result under article I, section 8 of the Iowa Constitution, but should do so only for good
reasons that are lacking in this case. The reader can decide whether Knights or Short
should enjoy greater respect and legitimacy.
                                       94

criteria); id. at 519–27 (Mansfield, J., dissenting) (responding to the

majority’s ten principles); id. at 527–45 (Zager, J., dissenting).         In

response to Short, the State in this appeal has called for the adoption of

neutral criteria because “Short has left the bench and bar without

guidance for litigating state-constitution claims.”        The State aptly

observed:

      Our system of constitutional governance makes the bargain
      with unelected judges that they may invalidate the popular
      will of the people’s elected branches, so long as they remain
      faithful to constitutional principles and respect the
      distinction between jurist and legislator. One gauge of
      faithfulness and judicial legitimacy involves consisten[cy] or
      divergence between state and federal constitutional law.

(Citations omitted.) Accordingly, the State asks our court to adopt the

following “five criteria to guide state constitutional advocacy”:

             1. Development of the claim in lower courts;
             2. constitutional text;
            3. constitutional history, including reports of state
      constitutional debates and state precedent;
            4. decisions of sister states, particularly             when
      interpreting similar constitutional text; and
            5. practical consequences, including the need for
      national uniformity.

The State cites an empirical study showing that Washington’s adoption of

criteria improved advocacy and reduced illegitimate pleas for result-

oriented departures from federal law: Richard S. Price, Arguing Gunwall:

The Effect of the Criteria Test on Constitutional Rights Claims, 1 J. Law &

Cts., 331, 355–58 (2013). I believe we would see the same benefits from

adopting neutral divergence criteria in Iowa.

      The Wyoming Supreme Court reaffirmed its use of divergence

criteria last year:
                                         95
             Recourse to our state constitution as an independent
       source for recognizing and protecting the individual rights of
       our citizens must spring not from pure intuition, but from a
       process that is at once articulable, reasonable and reasoned.
       The analysis required to establish greater protection under
       the state constitution involves a systematic review of
       applicable criteria, which may include the six non-exclusive
       neutral criteria recognized in [Saldana v. State, 846 P.2d
       604, 622 (Wyo. 1993)]: 1) the textual language of the
       provisions; 2) differences in the texts; 3) constitutional
       history; 4) preexisting state law; 5) structural differences;
       and 6) matters of particular state or local concern.

Norgaard v. State, 339 P.3d 267, 275 (Wyo. 2014) (citations omitted)

(internal quotation marks omitted).

       Such criteria provide guidance for the bench and bar, which is

missing from the majority’s approach of simply diverging when it finds

federal precedent unpersuasive. Today’s departure from Gant cannot be

justified under the Norgaard criteria or the criteria proposed by the State.

Neither the majority nor the special concurrences cite any textual

difference, 27 relevant constitutional history, or policy concerns unique to

Iowa to justify the departure under our state constitution. Indeed, there

simply is no historical evidence the drafters of the Iowa Constitution

intended article I, section 8 to provide greater protection than the Fourth

Amendment.        To the contrary, the fact the framers of the Iowa
Constitution used the same search and seizure language shows they



        27The difference between a semicolon and a comma is inconsequential.      See
Short, 851 N.W.2d at 522 (Mansfield, J., dissenting). As the State noted:
       One expects that, if the semicolon in Article I, section 8 fundamentally
       altered the meaning of that provision, this argument would have emerged
       at some point within the first 150 years this Court interpreted the Iowa
       Constitution—not for the first time in 2010.
Neither the wide-ranging special concurrence nor the majority today mentions the
semicolon argument as a reason to find broader search and seizure restrictions on law
enforcement under the Iowa Constitution. The majority previously relied on that
argument. See Short, 851 N.W.2d at 501; Ochoa, 792 N.W.2d at 268–69.
                                           96

intended the same protection. 28 The special concurrence acknowledges

that textual differences may justify different meanings, but refuses to

acknowledge that use of identical wording suggests the same meaning

was intended.

       The special concurrence—based on its selective view of Iowa

history—maintains that two of the framers of the 1857 Constitution “do

not seem to be the kind of persons” who would favor judicial deference to

United    States     Supreme       Court     interpretations      of   identical    Iowa

constitutional provisions.        This argument based on character evidence

would not be credited in a court of law and is unpersuasive to me. The

constitutional debates actually show that because some of our framers

objected to the 1850 Fugitive Slave Act, they inserted special language in

the Iowa Constitution to assure the right to a jury trial for fugitive slaves.

See Young, 863 N.W.2d at 278–79. They did not rely on or anticipate the

possibility that our supreme court would devise its own unique

interpretations of what was then common constitutional language.

       To a large extent, the special concurrence repeats arguments made

before, and I refer the reader to past responses to those arguments. See,

e.g., Short, 851 N.W.2d at 519–27 (Mansfield, J., dissenting). Obviously,

as has been noted before, there is a wide spectrum of possibilities

between (a) automatically following the United States Supreme Court’s



       28The special concurrence cites our court’s storied decision, In re Ralph, 1 Morris
1 (Iowa 1839). See also Short, 851 N.W.2d at 483–84 (citing In re Ralph). Justice
Mansfield’s dissent in Short put In re Ralph in proper legal and historical context.
Short, 851 N.W.2d at 523–24 (Mansfield, J., dissenting). In re Ralph is not an example
of our court choosing to diverge from a United States Supreme Court decision
interpreting an identically worded provision found in both the Federal and Iowa
Constitutions.   In re Ralph preceded Dred Scott and the adoption of our state
constitution and was based on an interpretation of federal law. See Short, 851 N.W.2d
at 523–24 (Mansfield, J., dissenting).
                                           97

interpretations in all cases and (b) giving no deference at all to those

interpretations.      I stand somewhere in the middle, recognizing our

independent duty and authority to interpret our own constitution (when

the parties argue for such an interpretation), but also our limited wisdom

and our limited capacity to improve on the wisdom of others.                          By

contrast, I believe the views advocated by the special concurrence’s

author, that United States Supreme Court interpretations of identical

federal constitutional provisions are entitled to no weight and that we

may devise our own rules of Iowa constitutional law even when no one in

the case asks us to do so, fall far outside the mainstream of what state

supreme courts are doing. 29

       I agree with this statement by the Utah Supreme Court: “Our

jurisprudence does not garner precedential weight if, and only if, we

adopt a standard that diverges from federal practice.                    Such a view

contradicts our long-standing practice of looking to federal interpretation

for guidance.” State v. Houston, ___ P.3d ___, ___, 2015 WL 773718, *14

n.133 (Utah Mar. 13, 2015).            Adherence to settled federal precedent

provides predictability, stability, uniformity, and legitimacy. Without the

use of any divergence criteria, the majority’s ad hoc approach seems
result-oriented and unprincipled.               “[T]he concern underlying the

legitimacy controversy in both federal and state constitutional law is the

same: to ensure that judgments are grounded in law rather than in the


       29In my view, it is the majority’s combination of (1) failing to give any deference
to established Fourth Amendment interpretations while (2) devising its own
interpretations without a proper adversarial process that has been so harmful to
jurisprudence. While there are examples of other state supreme courts not following
federal constitutional precedent, I am unaware of any other state supreme court that
has been so willing to do so sua sponte. Cf. State v. Tiedemann, 162 P.3d 1106, 1105
(Utah 2007) (noting that “Tiedemann clearly raised the state constitutional question and
submitted arguments, albeit ones the trial court found unpersuasive, below”).
                                          98

judges’    policy     preferences.”       G. Alan Tarr,      Understanding       State

Constitutions 175 (1998). If identical or nearly identical provisions are

interpreted the same, the public will have increased confidence that the

decision is “rooted in law rather than in will.” Id. at 176. The concern of

those who believe in judicial restraint is that a diverging court is applying

“illegitimate judicial policy preferences.” Id. Point well taken.

       It is therefore unsurprising that many state supreme courts use

neutral    criteria    to   determine     whether      to   diverge    from    federal

interpretations of the same or similar language.                 See, e.g., State v.

Harmon, 113 S.W.3d 75, 78–79 & n.1 (Ark. 2003); Kerrigan v. Comm’r of

Pub. Health, 957 A.2d 407, 421 (Conn. 2008); Gannon v. State, 704 A.2d

272, 276 & n.4 (Del. 1998); People v. Tisler, 469 N.E.2d 147, 157 (Ill.

1984) (requiring “substantial grounds” for departure, including text or

history); People v. Nash, 341 N.W.2d 439, 446 (Mich. 1983) (requiring a

“compelling reason” to depart); State v. McMurray, 860 N.W.2d 686, 690

(Minn. 2015); 30 State v. Muhammad, 678 A.2d 164, 173 (N.J. 1996)

(citing State v. Hunt, 450 A.2d 952, 965–66 (N.J. 1982) (Handler, J.,

concurring)); Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991);

State v. Jewett, 500 A.2d 233, 235 (Vt. 1985) (“It would be a serious
mistake for this Court to use its state constitution chiefly to evade the

impact of the decisions of the United States Supreme Court.                        Our

       30The special concurrence cites several Minnesota Supreme Court search and

seizure decisions departing from federal precedent. The cited decisions predated that
court’s use of a nonexclusive list of factors for departing from federal precedent
beginning in Kahn v. Griffin, 701 N.W.2d 815, 829 (Minn. 2005). In McMurray, the
Minnesota Supreme Court noted it may decline to follow a decision of the United States
Supreme Court that (1) makes a “radical departure” from precedent with no persuasive
explanation, (2) has “retrenched on a Bill of Rights issue,” or (3) fails to adequately
protect our citizens’ basic rights and liberties.” 860 N.W.2d at 690. None of those
reasons for diverging apply to Gant, which, as noted above, narrowed Belton and
thereby provides motorists with greater protection against warrantless vehicle searches.
                                       99

decisions must be principled, not result-oriented.”); State v. Gunwall, 720

P.2d 808, 813 (Wash. 1986) (en banc) (noting the court uses “criteria to

the end that [its] decision will be made for well founded legal reasons and

not by merely substituting our notion of justice for that of duly elected

legislative bodies or the United States Supreme Court.”); Norgaard, 339

P.3d at 275 (discussing criteria).

      When courts like ours diverge from federal precedent without using

divergence criteria, dissenting justices are quick to protest. E.g., People

v. Ramey, 545 P.2d 1333, 1341, 1342 (Cal. 1976) (Clark, J., dissenting)

(“Our deference toward the United States Supreme Court is fast

becoming a shell game. . . . Today, because it happens to coincide with

their own view, the majority resort to mere dictum in the plurality

opinion . . . .”); People v. Disbrow, 545 P.2d 272, 284 (Cal. 1976)

(Richardson, J., dissenting) (“[O]n what basis do[es] the majority hold

that the language of our state Constitution should be construed in a

different manner than the substantially identical language of the Fifth

Amendment privilege as construed in Harris?              What circumstance

peculiar to California requires that we do so? I can think of none. The

majority   ha[s]   suggested     none.”),   superseded    by   constitutional

amendment, Cal. Const. art. I, § 28, subdiv. (d), as recognized in People v.

May, 748 P.2d 307 (Cal. 1988); State v. Hempele, 576 A.2d 793, 817 (N.J.

1990) (Garibaldi, J., dissenting) (“[T]here are no independent state-

constitutional grounds to justify our divergence from federal law in this

area. The textual language, phrasing, and structures of the [provisions]

are virtually identical. There is no state statute on this issue and hence

no legislative history that would support interpreting the provision

independently of federal law.        Unlike those cases in which we have

departed   from    federal   search-and-seizure   jurisprudence   the   most
                                   100

analogous pre-existing state law supports uniform interpretation.”

(Citations omitted.)).

      Many commentators advocate that divergence criteria should be

utilized when interpreting state constitutions. See, e.g., Paul G. Cassell,

The Mysterious Creation of Search and Seizure Exclusionary Rules Under

State Constitutions: The Utah Example, 1993 Utah L. Rev. 751, 796

(1993) (identifying four criteria and criticizing unprincipled state

constitution decisions); George Deukmejian & Clifford K. Thompson Jr.,

All Sail and No Anchor—Judicial Review Under the California Constitution,

6 Hastings Const. L.Q. 975, 987–96 (1979) (noting commentators

consider state constitution departures without criteria to be “result-

oriented” and advocating for analysis based on constitutional text,

history, and a need for uniformity); Paul S. Hudnut, State Constitutions

and Individual Rights: The Case for Judicial Restraint, 63 Denv. U. L. Rev.

85, 103–05 (1985) (suggesting criteria are necessary for a principled body

of state constitutional law, arguing courts should also consider whether

the issue presented concerns national or purely local interests); Steven J.

Twist & Len L. Munsil, The Double Threat of Judicial Activism: Inventing

New “Rights” in State Constitutions, 21 Ariz. St. L.J. 1005, 1065 (1989)
(advocating for state constitution decisions “firmly grounded in text and

original meaning”); Robin B. Johansen, Note, The New Federalism:

Toward A Principled Interpretation of the State Constitution, 29 Stan. L.

Rev. 297, 318–19 (1977) (setting forth factors).      See generally Hans

Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U.

Balt. L. Rev. 379, 392 (1980) (“[T]o make an independent argument

under the state clause takes homework — in texts, in history, in

alternative approaches to analysis.    It is not enough to ask the state

court to reject a Supreme Court opinion on the comparable federal
                                    101

clause merely because one prefers the opposite result.”); Earl M. Maltz,

The Dark Side of State Court Activism, 63 Tex. L. Rev. 995 (1985)

(criticizing the “noninterpretive” approach, noting approaches based on

criteria are more legitimate); Robert F. Utter, The Practice of Principled

Decision-Making in State Constitutionalism: Washington’s Experience, 65

Temp. L. Rev. 1153, 1157 (1992) (“Without neutral criteria to aid in

developing or selecting a state constitutional standard, courts relying on

the state constitution . . . create the impression that reliance on the state

constitution is merely result-oriented—that is, not dictated by sound

reasoning.”).   A recent student note aptly focused on our court’s

standardless divergence from federal precedent in juvenile sentencing

cases and called for our court to adopt principled interpretation

standards for adjudicating state constitutional claims.        Elisabeth A.

Archer, Note, Establishing Principled Interpretation Standards in Iowa’s

Cruel and Unusual Punishment Jurisprudence, 100 Iowa L. Rev. 323, 360

(2014).

      The State’s appellate brief summarizes the lessons of these

authorities as follows:

            State-constitution decisions made without neutral
      principles or criteria risk being seen as—or actually are—
      result oriented.    Regardless of ideological bent, result-
      oriented judicial outcomes should be avoided. Today’s court
      may favor expansive protection for criminal offenders, while
      tomorrow’s favors the property rights of the ultra-rich or
      elevates capitalist concerns above environmental interests.
      The “persuasiveness” approach taken by this Court in Short
      will allow judges to “mistake personal preferences for
      constitutional compulsion” and should be abandoned.
            ....
             The problem is this: interpreting the state constitution
      without reference to federal decisions or any interpretive
      criteria is like playing a sport where only the referee knows
      the rules. The players can walk onto the field with a bat and
      ball, but they don’t have any idea how the equipment is to be
                                   102
      used, which points count and which don’t, or even how to
      win. At the end of the game, the referee declares a winner,
      but the players are left unsatisfied and spectators question
      the game’s legitimacy. So too for this Court after Short.
             Short’s “persuasiveness” rule turns constitutional law
      into a guessing game—and neither the State nor a defense
      attorney can fairly guess what will be found most
      “persuasive” to this Court or predict what constitutional
      rules will result from litigation. No doubt this will be
      reflected in briefing that comes before this Court, where
      state-constitution claims will continue to be inadequately
      briefed and underdeveloped.

(Footnote and citation omitted.)

      I agree with the State’s criticism of Short.   I also agree with the

State’s criticism of the majority’s practice, repeated today, of diverging

from federal precedent to decide a state constitutional question without

using criteria:

             Proceeding down the road of state-constitution
      divergence without clear criteria or guideposts will mean that
      all that is required for constitutional change is a change in
      appellate-court membership. This is inconsistent with the
      American separation of law and politics, eliminates any
      distinction between the courts and the elected branches, and
      injects     substantial    uncertainty    that    undermines
      stare decisis. Like a boat without a rudder, the lack of clear
      interpretive criteria will leave this Court’s jurisprudence
      subject to shifting winds and changing tides, rather than
      providing the measured stability contemplated by our
      constitutional framers.

      I would encourage the bench and bar to brief and argue divergence

criteria to guide our state constitutional adjudication, notwithstanding

the majority’s failure to acknowledge the value of doing so. None of the

various divergence criteria supports the majority’s divergence from Gant

today.

      V. Conclusion.

      For these reasons, I would affirm the district court decision.

      Mansfield and Zager, JJ., join this dissent.
                                    103
                                                #13–1915, State v. Gaskins
ZAGER, Justice (dissenting).

       I join Justice Waterman’s dissent. I write separately because I am

not persuaded that there are sufficient reasons to justify our departure

from Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485

(2009). Unlike the majority, I would adopt Gant’s second prong and hold

that “[p]olice may search a vehicle incident to a recent occupant’s arrest”

when: (1) “the arrestee is within reaching distance of the passenger

compartment at the time of the search,” or (2) “it is reasonable to believe

the vehicle contains evidence of the offense of arrest.” Id. at 351, 129

S. Ct. at 1723, 173 L. Ed. 2d at 501. This standard places reasonable

limits on police authority to search a vehicle incident to an arrest and

strikes a proper balance between the individual privacy interests at stake

and the State’s interest in officer safety and evidentiary objectives.

       In Chimel v. California, 395 U.S. 752, 753–54, 89 S. Ct. 2034,

2035, 23 L. Ed. 2d 685, 688 (1969), police arrested the defendant in his

home and “then looked through the entire three-bedroom house,

including the attic, the garage, and a small workshop.”        The Supreme

Court of the United States concluded this broad-sweeping search violated

the Fourth Amendment. Id. at 768, 89 S. Ct. at 2043, 23 L. Ed. 2d at

697.    In so concluding, however, the Court recognized that it is

reasonable for an arresting officer to search an arrestee’s person both for

weapons the arrestee could use to escape or resist arrest and to prevent

the concealment or destruction of evidence. Id. at 762–63, 89 S. Ct. at

2040, 23 L. Ed. 2d at 694.          By logical extension, the Court also

concluded an arresting officer may search “the area into which an

arrestee might reach in order to grab a weapon or evidentiary items.” Id.

at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. Accordingly, the Court
                                    104

held that, incident to an arrest, an officer may search “the arrestee’s

person and the area ‘within his immediate control.’ ” Id.

      In New York v. Belton, 453 U.S. 454, 457–59, 101 S. Ct. 2860,

2862–63, 69 L. Ed. 2d 768, 773–74 (1981), the Court applied Chimel in

the automobile context. There, an officer stopped a car for speeding. Id.

at 455, 101 S. Ct. at 2861, 69 L. Ed. 2d at 772. Four men were in the

car. Id. During the officer’s initial encounter with the men, he “smelled

burnt marihuana and [saw] on the floor of the car an envelope marked

‘Supergold’ that he associated with marihuana.”          Id. at 455–56, 101

S. Ct. at 2861–62, 69 L. Ed. 2d at 772. He ordered the men out of the

car, placed them under arrest, and separated them on the street so “they

would not be in physical touching area of each other.” Id. at 456, 101

S. Ct. at 2862, 69 L. Ed. 2d at 772 (internal quotation marks omitted).

“He then searched the passenger compartment of the car.” Id. “On the

back seat he found a black leather jacket belonging to [the defendant].”

Id. He unzipped one of the jacket’s pockets and found cocaine. Id. The

defendant moved to suppress the cocaine, asserting the officer’s

warrantless search of the car violated his Fourth Amendment rights. Id.

      The Court broadly held that “when a policeman has made a lawful

custodial arrest of the occupant of an automobile, he may, as a

contemporaneous     incident   of   that    arrest,   search   the   passenger

compartment of that automobile.”      Id. at 460, 101 S. Ct. at 2864, 69

L. Ed. 2d at 775 (footnote omitted).       While acknowledging the specific

search incident to arrest justifications identified in Chimel, the Court

opted for a workable, bright-line rule based on the generalization that the

entire passenger compartment of an automobile is “generally, even if not

inevitably, within ‘the area into which an arrestee might reach.’ ”

Id. at 457–58, 460, 101 S. Ct. at 2862–63, 2864, 69 L. Ed. 2d at 773–75
                                    105

(quoting Chimel, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694).

Following from this generalization, the Court also concluded that,

incident to a lawful arrest, “police may . . . examine the contents of any

containers found within the passenger compartment.” Id. at 460, 101

S. Ct. at 2864, 69 L. Ed. 2d at 775. The Court recognized this rule would

result in searches where the likelihood police would discover a weapon or

evidence of the crime of arrest was relatively low. See id. at 461, 101

S. Ct. at 2864, 69 L. Ed. 2d at 775. However, the Court explained:

      “The authority to search the person incident to a lawful
      custodial arrest, while based upon the need to disarm and to
      discover evidence, does not depend on what a court may
      later decide was the probability in a particular arrest
      situation that weapons or evidence would in fact be found
      upon the person of the suspect. A custodial arrest of a
      suspect based on probable cause is a reasonable intrusion
      under the Fourth Amendment; that intrusion being lawful, a
      search incident to the arrest requires no additional
      justification.”

Id. at 461, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775–76 (quoting United

States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L. Ed. 2d

427, 440–41 (1973)).

      As recognized by the majority, after Belton was decided it became
the subject of significant criticism by legal scholars, lower courts, and

eventually members of the Supreme Court.            See Thornton v. United

States, 541 U.S. 615, 624, 124 S. Ct. 2127, 2133, 158 L. Ed. 2d 905,

915 (2004) (O’Connor, J., concurring in part) (noting that, after Belton,

“lower court decisions seem[ed] . . . to treat the ability to search a vehicle

incident to the arrest of a recent occupant as a police entitlement rather

than as an exception” to the warrant requirement); id. at 627, 124 S. Ct.

at 2134, 158 L. Ed. 2d at 917 (Scalia, J., concurring in the judgment)

(“[C]onducting a Chimel search is not the Government’s right; it is an

exception—justified by necessity—to a rule that would otherwise render
                                    106

the search unlawful.”); State v. Vance, 790 N.W.2d 775, 787–88 (Iowa

2010) (collecting commentary criticizing and caselaw rejecting Belton). In

2009, this criticism came to a head in Gant. See 556 U.S. at 337–38,

129 S. Ct. at 1715–16, 173 L. Ed. 2d at 492–93.

      In Gant, the defendant pulled into the driveway of a house where

police were already present. Id. at 336, 129 S. Ct. at 1715, 173 L. Ed. 2d

at 492. After the defendant exited the vehicle, police placed him under

arrest for driving with a suspended license. See id. at 336, 129 S. Ct. at

1715, 173 L. Ed. 2d at 491–92. They then secured him in the back of a

police vehicle and proceeded to search his car. Id. at 336, 129 S. Ct. at

1715, 173 L. Ed. 2d at 492. During the search, police discovered “a gun

. . . [and] a bag of cocaine in the pocket of a jacket on the backseat.” Id.

      The Court began its analysis by recognizing that many lower

courts understood Belton as authorizing “a vehicle search . . . incident to

every arrest.” Id. at 342–43, 129 S. Ct. at 1718–19, 173 L. Ed. 2d at

495–96 (emphasis added).       Put another way, lower courts had read

Belton as giving police carte blanche to search a vehicle incident to an

arrest. See id. Concerned with the potential for police abuse, the Court

narrowly construed Belton, declined to grant police the right to go on

baseless fishing expeditions in the automobile context, and placed

reasonable limits on when police may search a vehicle incident to a

lawful arrest. See id. at 347, 129 S. Ct. at 1721, 173 L. Ed. 2d at 498–99

(“Construing Belton broadly to allow vehicle searches incident to any

arrest would serve no purpose except to provide a police entitlement, and

it is anathema to the Fourth Amendment to permit a warrantless search

on that basis.”). Specifically, the Court held that “[p]olice may search a

vehicle incident to a recent occupant’s arrest” when: (1) “the arrestee is

within reaching distance of the passenger compartment at the time of the
                                    107

search,” or (2) “it is reasonable to believe the vehicle contains evidence of

the offense of arrest.” Id. at 351, 129 S. Ct. at 1723, 173 L. Ed. 2d at

501.

       The majority criticizes Gant’s second prong as being divorced from

Chimel’s underlying rationales. I do not necessarily disagree with this

assertion.    But Chimel applied to a residence and not an automobile.

Thus, Chimel’s rationales aside, there are sound reasons for this court to

adopt Gant’s second prong.

       First, as recognized by the majority, Gant did not overrule Belton,

which applies in the automobile context.       Instead, it identified a very

specific problem with lower courts’ interpretations of Belton that

permitted police searches of automobiles upon an arrest without

limitation.   Other decisions of the Court authorized police to arrest

individuals for minor infractions, see Atwater v. City of Lago Vista, 532

U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549, 577 (2001),

and to seize individuals for traffic violations irrespective of the “actual

motivations of the individual officers involved,” Whren v. United States,

517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 98 (1996).

This created a so-called “ ‘Iron Triangle’ by virtue of which police could

make a full search of any vehicle on a mere whim by simply being patient

enough to await the driver’s minor traffic violation.” 3 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 7.1(c), at 698–

99 (5th ed. 2012) (quoting Donald A. Dripps, The Fourth Amendment and

the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of

Bright-Line Rules, 74 Miss. L.J. 341, 392 (2004)); see also Gant, 556 U.S.

at 345, 129 S. Ct. at 1720, 173 L. Ed. 2d at 497 (“A rule that gives police

the power to conduct such a search whenever an individual is caught

committing a traffic offense, when there is no basis for believing evidence
                                   108

of the offense might be found in the vehicle, creates a serious and

recurring threat to the privacy of countless individuals.”). Gant rightly

curbs discretionless automobile searches, otherwise permitted by Belton,

Atwater, and Whren, by requiring that police have some basis for the

search: for their own safety or to prevent the destruction of evidence; or

that the nature of the underlying offense of arrest renders it likely

evidence of the crime will be found in the place to be searched, the

passenger compartment. That was the narrow issue addressed by the

Court in Gant; the Court wisely made a conservative change in the law to

remedy that specific problem and quell criticism.     Presented with the

same problem, the majority uses a sledgehammer when a tack hammer

will do.

      Second, under the Fourth Amendment, automobiles are “a

category of ‘effects’ which give rise to a reduced expectation of privacy,”

and which possess an inherent exigency—mobility. Thornton, 541 U.S.

at 631, 124 S. Ct. at 2137, 158 L. Ed. 2d at 920 (Scalia, J., concurring in

the result); see also Wyoming v. Houghton, 526 U.S. 295, 304, 119 S. Ct.

1297, 1302, 143 L. Ed. 2d 408, 417 (1999) (identifying an automobile’s

mobile nature as justifying a lesser degree of protection under the Fourth

Amendment). This is the doctrinal basis for Gant’s second prong. See

Gant, 556 U.S. at 343, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496

(identifying “circumstances unique to the vehicle context” as justifying

departure from Chimel’s underlying rationales and citing Justice Scalia’s

Thornton concurrence). We have recognized similar principles under the

Iowa Constitution. See State v. Olsen, 293 N.W.2d 216, 218, 220 (Iowa

1980) (outlining reasons for treating automobiles differently than other

private property under the Federal Constitution—reduced expectation of

privacy and inherent mobility—and adopting federal standards for the
                                    109

automobile   exception    under   the   Iowa   Constitution).     Given   the

constitutionally relevant considerations unique to automobiles, and

considering the harm to be remedied—unbridled police discretion—the

test articulated by the Supreme Court in Gant strikes the proper balance

between the individual privacy interests at stake and the State’s interest

in officer safety and evidentiary objectives. The Gant test ensures that

police do not stop individuals for minor traffic violations and arrest them

for the sole purpose of searching their vehicles.      In my opinion, when

police arrest the recent occupant of a vehicle based on probable cause,

and it is reasonable to believe the vehicle contains evidence related to the

offense of arrest, it is not unreasonable for police to search the vehicle for

that evidence. Interestingly, this case demonstrates Gant’s second prong

works. Based on the nature of the underlying offense of arrest, police

discovered additional drugs and a weapon.

      Third, the rule adopted by the majority unwisely forces an officer to

choose between securing an individual early on during a roadside

encounter and leaving the individual unsecured so the officer can search

the vehicle’s passenger compartment.       This compromises officer safety

and creates an additional opportunity for the destruction or concealment

of evidence. See Thornton, 541 U.S. at 621–22, 124 S. Ct. at 2131, 158

L. Ed. 2d at 913 (majority opinion) (considering how proposed rule would

affect officer behavior and rejecting rule, in part, because it incentivized

officers to take unnecessary risks in order to conduct automobile

searches). The better rule is one that creates adequate disincentives for

an officer to search an automobile when he or she truly has no basis for

doing so, without compromising safety and evidentiary objectives. Gant’s

second prong achieves this objective.
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      Fourth, as noted by the majority, we had previously adopted the

Belton rule under the Iowa Constitution. State v. Sanders, 312 N.W.2d

534, 539 (Iowa 1981); see also Vance, 790 N.W.2d at 786 (“[I]n 1981 the

Iowa Supreme Court adopted the Belton rule as the proper analysis

under the Iowa Constitution.”).     As discussed above, the Gant Court

carefully narrowed Belton and in so doing preserved police authority to

conduct automobile searches incident to an arrest, except in cases where

police abuse is most likely. By rejecting Gant’s second prong, overruling

our prior precedent, and taking a more drastic step than the United

States Supreme Court, the majority raises serious stare decisis concerns.

See Gant, 556 U.S. at 358, 129 S. Ct. at 1727–28, 173 L. Ed. 2d at 505–

06 (Alito, J., dissenting) (arguing the Court’s de facto overruling of Belton

violates stare decisis).   These concerns go largely unaddressed by the

majority.

      Finally, the authority cited by the majority in support of rejecting

Gant’s second prong under the Iowa Constitution is unpersuasive. For

example, the majority asserts the Chimel Court specifically rejected the

historical precedent the Gant Court relied on in support of its second

prong.   Was the Gant Court not aware the Chimel Court rejected this

precedent?   In fact, as evidenced by the opinion, the Gant Court was

aware the Chimel Court rejected this precedent. It distinguished Chimel

by implicitly recognizing that Chimel involved a search incident to an

arrest in a home as opposed to an automobile. See Gant, 556 U.S. at

343, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496 (majority opinion);

Geoffrey S. Corn, Arizona v. Gant: The Good, the Bad, and the Meaning of

“Reasonable Belief,” 45 Conn. L. Rev. 177, 208–09 (2012) (“[I]t seems

significant that the Court limited the scope of a ‘reasonable belief’ search

to the automobile, and did not extend it to any area within the arrestee’s
                                       111

possession . . . .      While the Court is obviously willing to tolerate an

expanded search authority in relation to a recent arrestee’s automobile,

the opinion does not (at least explicitly) indicate an analogous tolerance

for other areas within an arrestee’s possession, such as her home.”

(Footnote omitted.)).     This distinction is constitutionally significant for

the reasons noted above.         If the majority believes the Supreme Court

incorrectly concluded circumstances unique to the automobile context

justify a rule different from Chimel’s, the more cogent approach would be

to say so and explain why.

       Further, many of the out-of-state cases cited by the majority in

support of its position that we should diverge from the Supreme Court’s

interpretation of the Fourth Amendment are unpersuasive.                  In most

cases, they are unpersuasive because of the timing of the decisions or

differences in the state constitutional provisions at play. First, most of

the out-of-state cases cited by the majority were decided before the Gant

decision in 2009. See State v. Hernandez, 410 So. 2d 1381 (La. 1982);

State v. Sterndale, 656 A.2d 409 (N.H. 1995); State v. Eckel, 888 A.2d

1266   (N.J.   2006);    State   v.   Rowell,   188   P.3d   95   (N.M.    2008);

Commonwealth v. White, 669 A.2d 896 (Pa. 1995); State v. Bauder, 924

A.2d 38 (Vt. 2007). None of these decisions considered the propriety of

Gant’s second prong. This is significant because “[t]he decisions of [the

Supreme] Court are rendered by nine legal scholars of exceptional

distinction.   They come only after each case has been the subject of

extensive adversarial briefing, argument, and attention.” State v. Baldon,

829 N.W.2d 785, 837 (Iowa 2013) (Mansfield, J., dissenting). Moreover,

the Court is typically aware of diverging state law precedent when it

makes its decisions. See, e.g., Gant, 556 U.S. at 337–38, 129 S. Ct. at

1715–16, 173 L. Ed. 2d at 492–93 (discussing underlying Supreme Court
                                    112

of Arizona decision in Gant, which adopted Gant’s first but not second

prong). Thus, when the Court articulated the test in Gant, it was aware

of state law decisions declining to follow Belton, but not conceiving of or

adopting a “reasonable to believe” prong. Aware of the available options,

five of the Justices concluded the two-prong test best resolved the

conflicting principles at play. Id. at 354, 129 S. Ct. at 1725, 173 L. Ed.

2d at 503 (Scalia, J., concurring). Four of the Justices would not have

gone that far and would have affirmed Belton in its entirety. Id. at 334,

356, 129 S. Ct. at 1713–14, 1727, 173 L. Ed. 2d at 491, 504 (Alito, J.,

dissenting).   In my opinion, those pre-Gant decisions have little

persuasive value and are substantially undermined by the Court’s

subsequent resolution of the issue.

      Several of the cases cited by the majority are distinguishable on

other grounds. For example, the majority cites a Louisiana case. See

Hernandez, 410 So. 2d at 1381. But the Louisiana Constitution’s search

and seizure provision, as a textual matter, is distinguishable from the

search and seizure provisions of both the United States Constitution and

the Iowa Constitution. Compare U.S. Const. amend. IV (“The right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.”), and Iowa Const. art. I, § 8 (“The right of

the people to be secure in their persons, houses, papers and effects,

against unreasonable seizures and searches shall not be violated; and no

warrant shall issue but on probable cause, supported by oath or

affirmation, particularly describing the place to be searched, and the

persons and things to be seized.”), with La. Const. art. I, § 5 (West,
                                     113

Westlaw through Jan. 1, 2015, amendments) (“Every person shall be

secure in his person, property, communications, houses, papers, and

effects against unreasonable searches, seizures, or invasions of privacy.

No warrant shall issue without probable cause supported by oath or

affirmation, and particularly describing the place to be searched, the

persons or things to be seized, and the lawful purpose or reason for the

search. Any person adversely affected by a search or seizure conducted

in violation of this Section shall have standing to raise its illegality in the

appropriate court.”).    As the Supreme Court of Louisiana explained in

Hernandez:

      Our state constitution’s declaration of the right to privacy
      contains an affirmative establishment of a right of privacy,
      explicit protections against unreasonable searches, seizures
      or invasions of property and communications, as well as
      houses, papers and effects, and gives standing to any person
      adversely affected by a violation of these safeguards to raise
      the illegality in the courts. This constitutional declaration of
      right is not a duplicate of the Fourth Amendment or merely
      coextensive with it; it is one of the most conspicuous
      instances in which our citizens have chosen a higher
      standard of individual liberty than that afforded by the
      jurisprudence interpreting the federal constitution.

410 So. 2d at 1385 (citation omitted).

      Of the two out-of-state cases cited by the majority decided after

Gant, only one rejects Gant’s second prong under its state constitution.

Compare Rose v. Commonwealth, 322 S.W.3d 76, 79–80 (Ky. 2010)

(applying Gant), with State v. Snapp, 275 P.3d 289, 298 (Wash. 2012)

(en banc)   (rejecting   Gant’s   second   prong   under    the   Washington

Constitution). Snapp, however, is not persuasive for two reasons. First,

the Washington Constitution’s search and seizure provision, as a textual

matter, differs substantially from both the Fourth Amendment and

article I, section 8 of the Iowa Constitution. Compare U.S. Const. amend.
                                       114

IV, and Iowa Const. art. I, § 8, with Wash. Const. art. I, § 7 (West,

Westlaw through amendments approved Nov. 4, 2014) (“No person shall

be disturbed in his private affairs, or his home invaded, without

authority of law.”). As the Washington Supreme Court has recognized,

“[A]rticle I, section 7 is not grounded in notions of reasonableness.

Rather, it prohibits any disturbance of an individual’s private affairs

without authority of law.”        Snapp, 275 P.3d at 297.         Second, as

discussed above, Gant’s second prong is premised on circumstances

unique to automobiles that the Fourth Amendment deems significant.

However, these differences are less significant under the Washington

Constitution than the Federal Constitution, which is, in part, why the

Washington Supreme Court rejected Gant’s second prong. Id. at 296–97

(noting that an individual’s reduced expectation of privacy in an

automobile and increased law enforcement needs due to the automobile’s

inherent   mobility   are   not   as   persuasive   under   the   Washington

Constitution as they are under the Federal Constitution); see also State

v. Tibbles, 236 P.3d 885, 887–89 (Wash. 2010) (en banc) (considering the

mobile nature of a vehicle as a nondispositive factor in determining

whether exigent circumstances justified a warrantless automobile

search); State v. Patton, 219 P.3d 651, 654 n.4 (Wash. 2009) (en banc)

(noting the automobile exception is not recognized under the Washington

Constitution). Clearly, this is not true under the Iowa Constitution. See

Olsen, 293 N.W.2d at 218, 220.           The Washington Supreme Court’s

reasons for rejecting Gant’s second prong under its constitution are

neither applicable under the Iowa Constitution nor persuasive.

      Finally, the majority does not consider at least one state court

decision adopting Gant’s second prong under its state constitution. See

State v. Dearborn, 786 N.W.2d 97, 105 (Wis. 2010) (“[W]e hereby adopt
                                   115

the reasoning in Gant as the proper reading of Article 1, Section 11 of the

Wisconsin Constitution . . . .”). Dearborn demonstrates how Gant applies

in a real-world situation. In that case, an officer pulled the defendant

over, placed him under arrest for driving with a revoked license, and

secured him in the back of a squad car.        Id. at 101.   Officers then

searched the defendant’s truck and discovered marijuana and related

paraphernalia. Id. The Supreme Court of Wisconsin properly held “[the

defendant’s] search cannot be upheld under Gant on the grounds that

relevant evidence might be found in the truck, because the warden could

not have reasonably expected to find evidence in the vehicle regarding

[the defendant’s] revoked license.”   Id. at 106.   This is a reasonable,

common-sense application of Gant.

      The majority implies, and the special concurrences expressly

assert, that modern technology, including our first-in-the-nation EDMS

system, makes obtaining a roadside search warrant quick, easy, and

efficient for law enforcement. Accordingly, no exigency justifies relaxing

the warrant requirement in this context such that law enforcement

should now be required to obtain a search warrant in effectively all

roadside-stop cases.    Not too much to ask, right?     It then chides law

enforcement: “[I]f a warrant cannot be expeditiously obtained, the

problem is not with the warrant requirement of article I, section 8, but is

likely an administrative problem that needs to be resolved by local

authorities.”   These assertions are neither grounded in logic or reality

here in Iowa nor are they supported by any authority.

      As the special concurrence notes, a federal trial court in the

southern district of Iowa has noted that it may take police as little as

twenty minutes to obtain a search warrant by telephone. United States v.

Baker, 520 F. Supp. 1080, 1084 (S.D. Iowa 1981). Of course, the Federal
                                   116

Rules of Criminal Procedure contain detailed procedures governing

warrant requests by telephone or other electronic means. Fed. R. Crim.

P. 41(d)(3) (authorizing federal magistrates to issue warrants “based on

information communicated by telephone or other reliable electronic

means”); id. r. 4.1(b) (outlining procedures a federal magistrate must

follow when determining whether to issue a warrant based on

information communicated by telephone or other electronic means).

Similarly, as early as 1972, police in California obtained a warrant to

search a home in twelve minutes. People v. Aguirre, 103 Cal. Rptr. 153,

155 (App. Dep’t Super. Ct. 1972). Not surprisingly, California also has a

statute authorizing telephonic search warrants.        Cal. Penal Code

§ 1526(b) (West, Westlaw current with urgency legislation through ch. 9

of 2015 Reg. Sess.); accord Aguirre, 103 Cal. Rptr. at 155 (“Nowhere in

the language of the section does it appear that the Legislature intended

to provide only for oral statements taken in the physical presence of the

magistrate. Oral communications may be had by means of telephones,

two-way radios or face-to-face communication.”).    In 1998, an Arizona

state court noted that a police department “might” be able to (not that it

was actually able to like the special concurrence maintains) obtain a

warrant in as little as fifteen minutes. State v. Flannigan, 978 P.2d 127,

131 (Ariz. Ct. App. 1998).     But, in Flannigan, police never actually

applied for a search warrant, despite the fact that they were required to

do so prior to obtaining a blood sample without an individual’s consent,

and the court indicated that it may have allowed the warrantless search

(for a blood sample) had law enforcement had sufficient problems or

delay in obtaining the warrant.      Id.   More importantly, the court’s

statement regarding law enforcement’s ability to obtain a warrant was
                                        117

nothing more than a summary of the record before it, not a global

generalization of the speed of the warrant process in Arizona. Id.

       No one disputes that the prohibition against unreasonable

searches safeguards people at all times and in all Iowa counties. But,

based on nothing more than the three cases noted above and aspirations

surrounding EDMS, the majority seems to believe an officer can simply

type up a search warrant application, contact a judicial officer, and get

permission to search a vehicle irrespective of the time of day or whether

the stop occurs in a rural or urban setting. This factual assumption is

simply not true. EDMS is not, and in all likelihood will not be, a 24/7

virtual magistrate.      And, unlike under the Federal Rules of Criminal

Procedure and the California Penal Code, there is no provision under

Iowa’s search warrant statute authorizing telephonic or electronic

warrants. See generally Iowa Code §§ 808.1–.15. In fact, the Iowa Code

specifically requires that all applications for search warrant be in writing.

See Iowa Code § 808.3. 31        Further, no party in this case developed a

factual record on the speed of the warrant process in Iowa.

       How many roadside stops occur after five o’clock? How many on

the weekends? What about state holidays such as Memorial Day, the
Fourth of July, and Labor Day?             The point is, judges are often not

available, and finding one may take significant time. Does the majority’s

get-a-warrant-because-it’s-quick-and-easy rule apply at all times? In all

places?       Is the majority prepared to accept and support telephone

applications for search warrants or search warrants by other electronic

       31In very limited circumstances, the Iowa Code authorizes a judge or magistrate
to issue a search warrant based on information communicated by telephone. See, e.g.,
Iowa Code § 321J.10(3) (authorizing a blood test pursuant to a search warrant obtained
via telephone under certain, exigent circumstances); id. § 462A.14D(3) (same). None of
these sections apply in this case.
                                    118

means? If it is, it has cited to no Iowa case supporting a telephonic or

electronic search warrant, and I am likewise unable to find any such

authority. Are we really prepared to change our present-day search and

seizure jurisprudence based on future technology? Getting a warrant in

this context is not simply a matter of inconvenience for law enforcement.

In many cases, given the lack of current infrastructure, obtaining a

warrant is both impractical and unrealistic.

      If, as the majority maintains, it is really so important that police

obtain a search warrant in this context, then it should truly be quick and

easy for them to do so. But, even if it were truly that quick and easy, is

it really necessary to require a search warrant under most circumstances

in this context? Gant’s well-reasoned, bright-line analysis provides the

answer: No.    The majority’s holding—“a warrant is generally required

before such a search”—is overgeneralized, divorced from reality, and

adds little guidance to our search and seizure law.

      The majority effectively eliminates searches incident to arrest in

the automobile context. Under its new rule, when police make an arrest

and remove the arrestee from the automobile, in most cases, they can no

longer search the automobile’s passenger compartment absent a search

warrant. This is not only unreasonable, but leads to absurd results. In

my opinion, Gant establishes reasonable parameters for when police may

search a motor vehicle incident to a lawful arrest. Thus, I would adopt

Gant’s second prong and hold that “[p]olice may search a vehicle incident

to a recent occupant’s arrest” when: (1) “the arrestee is within reaching

distance of the passenger compartment at the time of the search,” or

(2) “it is reasonable to believe the vehicle contains evidence of the offense

of arrest.” 556 U.S. at 351, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501.

This standard places reasonable limits on police authority to search a
                                  119

vehicle incident to an arrest, and strikes the proper balance between the

individual privacy interests at stake and the State’s interest in officer

safety and evidentiary objectives.      Unfortunately, the majority has

charted a different course under the Iowa Constitution. This is not the

course this court should take.

      Waterman and Mansfield, JJ., join this dissent.
