               IN THE SUPREME COURT OF IOWA
                                  No. 16–0736

                           Filed June 29, 2018


STATE OF IOWA,

      Appellee,

vs.

BION BLAKE INGRAM,

      Appellant.


      Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, Judge.



      Defendant     appeals       his   conviction   for   possession   of

methamphetamine. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy,

Assistant Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant

Attorney General, for appellee.
                                      2

APPEL, Justice.
      In this case, a driver challenges the constitutionality of an
inventory search of his vehicle, which was to be towed after police
discovered it was not lawfully registered. After conducting a search, the
police found a controlled substance.      The district court denied the
driver’s motion to suppress, and he was convicted of possession.      The
driver argues this search was unconstitutional under the Fourth
Amendment of the United States Constitution. Alternatively, even if the
Federal Constitution does not prohibit warrantless inventory searches
under these particular circumstances, the driver argues article I, section
8 of the Iowa Constitution provides greater protections.
      We accept the invitation to restore the balance between citizens
and law enforcement by adopting a tighter legal framework for
warrantless inventory searches and seizures of automobiles under article
I, section 8 of the Iowa Constitution than provided under the recent
precedents of the United States Supreme Court.             In doing so, we
encourage stability and finality in law by decoupling Iowa law from the
winding and often surprising decisions of the United States Supreme
Court. In the words of another state supreme court, we do not allow the
words of our Iowa Constitution to be “balloons to be blown up or deflated
every time, and precisely in accord with the interpretation of the U.S.
Supreme Court, following some tortious trail.”      Penick v. State, 440
So. 2d 547, 552 (Miss. 1983).     We take the opportunity to stake out
higher constitutional ground today.
      I. Facts and Procedural Background.

      At about 6:39 a.m. on October 30, 2015, a police officer pulled over

Bion Ingram, who was driving on Highway 14 in Newton, Iowa.           The

officer had noticed the vehicle’s license plate was not illuminated as

required.   After speaking with Ingram, the officer also noticed the
                                       3

vehicle’s registration sticker did not match its license plate—the vehicle’s

actual registration had expired in 2013.        Because of the registration

violation, the officer decided to impound the vehicle and told Ingram it

would be towed.

      The officer did not arrest Ingram at that point but had him sit in

the patrol vehicle while the officer wrote citations for the traffic

violations. Ingram told the officer he was going to work, and the officer

agreed to drive Ingram to a nearby gas station for Ingram’s friend to pick

him up and take him to work. Ingram asked to be able to retrieve his

work items from the vehicle, but the officer did not allow Ingram to do

this until the officer finished writing the citations.

      The officer told Ingram the contents of the vehicle would be

inventoried before towing and asked Ingram if there was anything of

value in the vehicle.    Ingram said there was nothing of value in the

vehicle.   Another officer arrived and inventoried the contents of the

vehicle. The officers did not obtain a warrant to search the vehicle.

      During the inventory, the second officer discovered a black cloth

bag on the floor next to the gas pedal. When the officer opened the bag,

the officer discovered a glass pipe and what field tests revealed to be

almost a gram of methamphetamine. Ingram was arrested.

      Ingram was charged by trial information with possession of

methamphetamine, second offense, and charged by citation with

possession of drug paraphernalia. Ingram filed a motion to suppress the

results of the search based on the Fourth Amendment of the United

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

Ingram argued the search violated his rights under the Fourth

Amendment and article I, section 8.        Ingram contended the inventory

search should not have been conducted and the vehicle impoundment
                                     4

was a pretext to search the vehicle.     The State resisted.   The district

court held a hearing on the motion to suppress and denied the motion on

the ground that inventory searches are an exception to the warrant

requirement.

      Ingram was tried on the minutes on March 30, 2016. The judge

found Ingram guilty of both charges on April 4. Ingram appealed and we

retained the appeal.

      On appeal, Ingram argues the district court erred by (1) denying

his motion to suppress because the inventory searched violated the

United States and Iowa Constitutions and (2) finding there was sufficient

evidence that he knowingly possessed a controlled substance.       Ingram

also argues he received ineffective assistance of counsel when his trial

counsel failed to challenge the admissibility of the results of the field

drug test.   Because we hold that Ingram’s motion to suppress should

have been granted, we do not reach the other issues.

      II. Standard of Review.

      We review the denial of a motion to suppress on constitutional

grounds de novo.       State v. Wilkes, 756 N.W.2d 838, 841 (Iowa 2008);

State v. Heuser, 661 N.W.2d 157, 161 (Iowa 2003).

      III. Iowa vs. United States Constitution.

      This case involves a challenge to a warrantless inventory search

and seizure of an automobile under the search and seizure provisions of

the Iowa and United States Constitutions. At the outset, it is important

to emphasize that this court is the ultimate arbiter of the meaning of the

search and seizure clause of article I, section 8 of the Iowa Constitution,

while the United States Supreme Court has the final say in interpreting

the search and seizure provision of the Fourth Amendment to the United

States Constitution.
                                        5

       The Fourth Amendment provides, “The right of the people to be

secure    in    their   persons,    houses,   papers,   and   effects,   against

unreasonable searches and seizures, shall not be violated.” U.S. Const.

Amend. IV.      Article I, section 8 of the Iowa Constitution requires that

“[t]he right of the people to be secure in their persons, houses, papers

and effects, against unreasonable seizures and searches shall not be

violated.” Iowa Const. art. I, § 8.

       Although the Iowa and United States Constitutions have similarly

worded search and seizure provisions, that does not mean the two

regimes and the cases under them may be conflated.               We jealously

reserve the right under our state constitutional provisions to reach

results different from current United States Supreme Court precedent

under parallel provisions.         See, e.g., Zaber v. City of Dubuque, 789

N.W.2d 634, 654 (Iowa 2010); Wilkes, 756 N.W.2d at 842 n.1; Kingsway

Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 9 (Iowa 2006). As has

been noted by other state courts before us, it would amount to

malpractice for lawyers not to understand the potential for an

independent state court interpretation under the state constitution that

is more protective of individual rights.      State v. Lowry, 667 P.2d 996,

1013     (Or.   1983)    (en   banc)    (Jones,   J.,   concurring   specially);

Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa. Super. Ct. 1998); State

v. Jewett, 500 A.2d 233, 234 (Vt. 1985); see also State v. Baldon, 829

N.W.2d 785, 816 (Iowa 2013) (Appel, J., concurring specially).              The

caselaw and law commentaries now groan with the volume and weight of

ample materials for lawyers to construct independent state constitutional

law varying from applicable federal precedent. See State v. Short, 851

N.W.2d 474, 489–91 (Iowa 2014); State v. Ochoa, 792 N.W.2d 260, 264–

65 & nn.2–3 (Iowa 2010).
                                   6

      The growth of independent state constitutional law is important in

the search and seizure context. Unlike the decisions of the United States

Supreme Court in recent years, which generally have sought to minimize

the scope of individual protection under the Fourth Amendment, our

recent caselaw under the search and seizure provision of the Iowa

Constitution has emphasized the robust character of its protections.

See, e.g., State v. Coleman, 890 N.W.2d 284, 299 (Iowa 2017); State v.

Gaskins, 866 N.W.2d 1, 6–7 (Iowa 2015); Short, 851 N.W.2d at 482–85;

Baldon, 829 N.W.2d at 833–34; Ochoa, 792 N.W.2d at 274.         We have

repeatedly declined to follow the approach of the United States Supreme

Court in its interpretation of what one commentator has referred to as an

ever-shrinking Fourth Amendment. See Gaskins, 866 N.W.2d at 12–13;

Short, 851 N.W.2d at 506; Baldon, 829 N.W.2d at 803 (majority opinion);

Ochoa, 792 N.W.2d at 291; see generally Silas J. Wasserstrom, The

Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257 (1984).

      In this case, Ingram raises his challenge under the search and

seizure provisions of both the Fourth Amendment of the United States

Constitution and article I, section 8 of the Iowa Constitution. Ingram’s

argument under the United States Constitution cites to federal cases that

generally provide warrantless inventory searches of automobiles are

permissible, if they are conducted pursuant to policies adopted by law

enforcement which govern the decision to impound the vehicle and the

nature and scope of any subsequent search. See Florida v. Wells, 495

U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990); United States v. Kennedy, 427

F.3d 1136, 1144 (8th Cir. 2005).

      The challenge raised by Ingram under the search and seizure

provision of article I, section 8 of the Iowa Constitution has different

dimensions.   Ingram notes a number of state courts have rejected the
                                      7

two-pronged policy approach of the United States Supreme Court in favor

of a more restrictive approach that sharply limits warrantless searches

and seizures of automobiles.      See, e.g., State v. Daniel, 589 P.2d 408,

417–18 (Alaska 1979); State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct.

App. 2007); State v. Mangold, 414 A.2d 1312, 1318 (N.J. 1980); State v.

Hite, 338 P.3d 803, 809 (Or. Ct. App. 2014).

      When a party raises claims under both the Federal and State

Constitutions, this court has generally held we retain the discretion

whether to proceed to analyze the case in the first instance under the

State or Federal Constitution. State v. Pals, 805 N.W.2d 767, 772 (Iowa

2011). In contrast, some states adopt a primary-state-law approach to

dual constitutional claims, where the court will almost or mostly always

consider state constitutional claims before moving on to consider federal

constitutional claims. See State v. Kono, 152 A.3d 1, 27 (Conn. 2016)

(explaining when federal law is unclear or defendant not entitled to relief

thereunder, court will consider state constitutional claim first); Malyon v.

Pierce County, 935 P.2d 1272, 1277 (Wash. 1997) (en banc) (stating when

the issue is adequately briefed, court will analyze the state constitutional

issue first); see generally Eric M. Hartmann, Note, Preservation, Primacy,

and Process: A More Consistent Approach to State Constitutional Law, 102

Iowa L. Rev. 2265, 2282 (2017).

      Although the primary approach has attractive features, it also has

problems.   Notwithstanding the caselaw developing independent state

constitutional law, trial court records often reveal counsel had not raised

an independent state constitutional argument at all. When this occurs,

appellate counsel must advance an ineffective-assistance-of-counsel

claim to preserve the issue.        When a double-barreled preservation

problem occurs, namely, where the state constitutional issue is not
                                       8

raised in the district court and the failure to do so is not presented as an

ineffective-assistance-of-counsel claim on appeal, we decline to reach the

state constitutional issues. See State v. Prusha, 874 N.W.2d 627, 629–30

(Iowa 2016).

      Minimally better, counsel sometimes have merely added a citation

to article I, section 8 of the Iowa Constitution but then generally adopted

federal caselaw in describing the claim. Where state constitutional law

claims have been minimally preserved in this fashion, we may, in our

discretion, decide the case based on potentially dispositive federal

constitutional grounds and save our state constitutional interpretation

for another day. In the alternative, we may apply the federal standards

in a fashion more stringent than under federal caselaw. See Pals, 805

N.W.2d   at    772.      Given   the   inconsistent   presentation   of   state

constitutional claims in our cases, we have so far declined to adopt a

primary approach that requires us to consider and resolve state

constitutional claims prior to addressing federal constitutional claims.

Baldon, 829 N.W.2d at 821–22 (Appel, J., concurring specially).

      In this case, however, Ingram raised the Iowa constitutional issue

in the district court.   In his appellate briefing, Ingram has specifically

urged us to follow a different approach to warrantless inventory searches

under the Iowa Constitution than has been employed by recent cases of

the United States Supreme Court and, to the extent the claim was not

preserved in the district court, has raised an ineffective-assistance claim.

We will proceed to consider the state constitutional issues.

     IV. Warrantless   Inventory     Searches    and   Seizures             of
Automobiles Under Article I, Section 8 of the Iowa Constitution.

      A. Overview of Constitutional Choices.
                                     9

      1. Introduction.    Constitutional interpretation of open-textured

provisions of a state constitution is always about choice. See Todd E.

Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123, 124

(2011). Judicial development of open-textured constitutional provisions

is not a mathematical exercise, inexorably leading to a provable answer.

See Gompers v. United States, 233 U.S. 604, 610, 34 S. Ct. 693, 695

(1914) (“But the provisions of the Constitution are not mathematical

formulas having their essence in their form; they are organic, living

institutions transplanted from English soil.”), disapproved of on other

grounds by Bloom v. Illinois, 391 U.S. 194, 211, 88 S. Ct. 1477, 1487

(1968). As judges, in interpreting open-textured provisions of the Iowa

Constitution, it is our duty to select from possible plausible alternative

approaches the best approach to reflect the important constitutional

values underlying the text. State constitutional law is not about proofs,

but about informed choices.

      In order to consider the proper framework for analyzing the validity

of warrantless inventory searches and seizures involving automobiles

under article I, section 8 of the Iowa Constitution, it is helpful to lay out

the various constitutional choices made by the United States Supreme

Court and the courts of other states under state constitutional search

and seizure provisions. The constitutional choices made by the United

States Supreme Court and other state courts are, of course, not binding

upon us, but they may broaden our constitutional perspectives, may

provide us with helpful insights, and may help guide the ultimate

resolution of the Iowa constitutional issue before us. With respect to the

cases of the United States Supreme Court, we must be attentive to

Justice Harlan’s often-quoted observation that because of federalism

concerns, the Supreme Court may underenforce constitutional norms in
                                    10

its interpretation of federal constitutional provisions when they are

applied against the states, Ker v. California, 374 U.S. 23, 44, 83 S. Ct.

1623, 1645–46 (1963) (Harlan, J., concurring), and to the equally often-

quoted and somewhat sheepish observation by the Supreme Court that

states are free to adopt approaches more protective of liberty under their

state constitutions, Bustop, Inc. v. Board of Education of Los Angeles, 439

U.S. 1380, 1382, 99 S. Ct. 40, 41 (1978).       In short, we look to the

decisions of other courts, including the decisions of the United States

Supreme Court, not because they are authoritative, but in the hope their

logic and rationales may be persuasive.      Ochoa, 792 N.W.2d at 267;

Kingsway Cathedral, 711 N.W.2d at 9.

      2. Approach to warrantless inventory searches and seizures

involving automobiles prior to recent United States Supreme Court cases.

We begin with a brief review of state and federal cases prior to recent

United States Supreme Court cases related to warrantless inventory

searches and seizures of automobiles. As will be seen below, the cases

are rich and varied.

      For example, a leading early state court case is Mozzetti v. Superior

Court, 484 P.2d 84 (Cal. 1971) (en banc). The Mozzetti court began by

discussing the privacy interests involved in searches of automobiles. Id.

at 88. According to the court,

             It seems undeniable that a routine police inventory of
      the contents of an automobile involves a substantial invasion
      into the privacy of the vehicle owner.           Regardless of
      professed benevolent purposes and euphemistic explication,
      an inventory search involves a thorough exploration by the
      police into the private property of an individual.

Id.

      In analyzing the government’s interest in a warrantless inventory

search of an automobile, the Mozzetti court observed, “[I]tems of value
                                    11

left in an automobile to be stored by the police may be adequately

protected merely by rolling up the windows, locking the vehicle doors and

returning the keys to the owner.”     Id. at 89.   Turning to the issue of

protecting the defendant or the police against theft or tort claims, the

court noted if the article was either stolen before the inventory or

perhaps innocently omitted when the inventory was taken, the inventory

documentation would be of little use.     Id. at 89–90; see also People v.

Nagel, 95 Cal. Rptr. 129, 133 (Ct. App. 1971) (holding warrantless

inventory search of impounded car after red light violation invalid, as

there was no apparent reason why driver could not have driven vehicle to

nearby place for safekeeping); Virgil v. Super. Ct., 73 Cal. Rptr. 793, 795

(Ct. App. 1968) (holding warrantless inventory search of impounded car

invalid since there was no reason why passengers in the car could not

have taken charge of the vehicle and driver was not consulted with

respect to his automobile); Charles E. Moylan, Jr., The Inventory Search

of an Automobile: A Willing Suspension of Disbelief, 5 U. Balt. L. Rev. 203,

216–20 (1976) [hereinafter Moylan].

      The Mozzetti court’s skepticism about the efficacy of an inventory

search protecting police against false claims was repeated by an Arizona

court of appeals in In re One 1965 Econoline, 495 P.2d 504, 508 (Ariz. Ct.

App. 1972), rev’d, 511 P.2d 168 (Ariz. 1973) (en banc).        The Arizona

appellate court observed,

             We fail to see how the taking of an inventory will
      insulate the police against false accusations of theft and
      assure the property owner that his property will not be
      taken. Unscrupulous persons who desire to steal articles
      will simply not list them on the inventory. Owners who wish
      to assert spurious claims against law enforcement officers or
      the garage owners can simply claim that the officers did not
      list them on the inventory.

Id. at 508–09; see Moylan, 5 Balt. L. Rev. at 217–18.
                                   12

      Some early state court cases held law enforcement must explore

the possibility of making alternate arrangements for a vehicle with an

owner or driver before impoundment occurs. See, e.g., Miller v. State,

403 So. 2d 1307, 1314 (Fla. 1981) (analyzing search under Fourth

Amendment and search and seizure provisions of Florida Constitution),

overruled by State v. Wells, 539 So. 2d 464, 469 (Fla. 1989); Strobhert v.

State, 301 S.E.2d 681, 682 (Ga. 1983) (discussing search and seizure

generally, not indicating specific constitutional provisions); State v.

Fortune, 689 P.2d 1196, 1203 (Kan. 1984) (ruling under Fourth

Amendment and search and seizure provisions of Kansas Constitution).

      There are also a number of early state court cases holding

containers may not be opened pursuant to a warrantless inventory

search.   For example, the Alaska Supreme Court held a warrantless

search of luggage, containers, or packages in an automobile violated the

search and seizure provisions of the Alaska Constitution.     Daniel, 589

P.2d at 417–18. Similarly, the Alaska Supreme Court also held closed

containers taken from a person before incarceration may not be further

opened or searched except pursuant to a warrant unless there is a

recognized exception to the warrant requirement. Reeves v. State, 599

P.2d 727, 735–36 (Alaska 1979). A number of other state cases similarly

held warrantless inventory searches of closed containers invalid under

the Fourth Amendment and/or state constitutional search and seizure

provisions. See State v. Gwinn, 301 A.2d 291, 296 (Del. 1972) (finding

search of satchel during warrantless inventory of automobile not

necessary for protection of owner and risk satchel might contain

explosives or dangerous substance too conjectural to justify search

under Fourth Amendment); People v. Dennison, 378 N.E.2d 220, 224 (Ill.

App. Ct. 1978) (holding warrantless inventory search may not extend to
                                    13

toolbox under Fourth Amendment); State v. Jewell, 338 So. 2d 633, 639–

40 (La. 1976) (holding under Fourth Amendment and search and seizure

provisions of Louisiana Constitution, warrantless search of an over-the-

counter pill bottle was not conducted pursuant to a legitimate inventory

search, but even if it had been, a true inventory search would never

involve examining contents of a pill bottle); State v. Downes, 591 P.2d

1352, 1354 (Or. 1979) (en banc) (holding exigent circumstances must

exist to justify warrantless inventory search of closed container under

Fourth Amendment); State v. Prober, 297 N.W.2d 1, 12 (Wis. 1980)

(search of purse pursuant to warrantless inventory search unlawful

under Fourth Amendment and search and seizure provisions of

Wisconsin Constitution), overruled by State v. Weide, 455 N.W.2d 899,

904 (Wis. 1990) (holding Colorado v. Bertine, 479 U.S. 367, 107 S. Ct.

738 (1987), requires rejection of Prober in Fourth Amendment analysis

and   declining   to   adopt   independent   standard   under   Wisconsin

Constitution).

      There are early warrantless inventory search and seizure cases,

however, that provided more leeway to law enforcement. For example, in

Cabbler v. Commonwealth, the Virginia Supreme Court upheld a

warrantless inventory search of an automobile under the Fourth

Amendment pursuant to a police department policy to protect the

property of an arrested citizen.   184 S.E.2d 781, 783 (Va. 1971).     In

Warrix v. State, the Wisconsin Supreme Court held a warrantless

inventory search of a car in police custody was proper under the Fourth

Amendment in order to protect police from claims of theft of personal

property. 184 N.W.2d 189, 194 (Wis. 1971). The Minnesota Supreme

Court held a warrantless inventory search pursuant to a standard

procedure was a reasonable measure under the Fourth Amendment to
                                       14

protect the car and its contents after it was impounded by the police.

City of St. Paul v. Myles, 218 N.W.2d 697, 699, 701 (Minn. 1974); see

also State v. Tully, 348 A.2d 603, 609–10 (Conn. 1974) (holding

warrantless search of motor vehicle was acceptable under the Fourth

Amendment); People v. Sullivan, 272 N.E.2d 464, 469 (N.Y. 1971)

(holding   warrantless   search   was       reasonable   within    the   Fourth

Amendment); State v. Criscola, 444 P.2d 517, 519–20 (Utah 1968)

(upholding warrantless search under the Fourth Amendment). As will be

seen below, cases like Cabbler foreshadowed the later approach of the

United States Supreme Court to warrantless inventory search and

seizure involving automobiles.

      3. Approach to warrantless inventory searches and seizures

involving automobiles in recent cases of the United States Supreme Court.

In recent years, the United States Supreme Court has narrowly

construed the search and seizure protections contained in the Fourth

Amendment. In particular, it has placed less emphasis on the warrant

requirement   and   embarked      on    an    ever-increasing     expansion   of

exceptions to the warrant requirement. While the traditional touchstone

of Fourth Amendment law under prior Supreme Court cases was the

warrant requirement, see, e.g., Coolidge v. New Hampshire, 403 U.S. 443,

454–55, 91 S. Ct. 2022, 2032 (1971); Katz v. United States, 389 U.S. 347,

356–57, 88 S. Ct. 507, 514 (1967); Jones v. United States, 357 U.S. 493,

499, 78 S. Ct. 1253, 1257 (1958), the new innovative touchstone under

the more recent Supreme Court cases is a free-floating and open-ended

concept of “reasonableness” that is unhinged from the warrant

requirement expressly contained in the Fourth Amendment, see, e.g.,

Maryland v. King, 569 U.S. 435, 448, 133 S. Ct. 1958, 1970 (2013);
                                    15

Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct. 1914, 1916 (1995);

O’Connor v. Ortega, 480 U.S. 709, 728–29, 107 S. Ct. 1492, 1503 (1987).

      The field of warrantless inventory search and seizure has been no

exception to this general revisionist trend away from the traditional

Fourth Amendment warrant requirement. See Silas J. Wasserstrom, The

Court’s Turn Toward a General Reasonableness Interpretation of the

Fourth Amendment, 27 Am. Crim. L. Rev. 119, 127, 148 (1989).        The

recent approach of the United States Supreme Court is to allow

warrantless inventory searches and seizures of automobiles by law

enforcement authorities, provided they are conducted pursuant to

generally applicable local policy requirements that are “reasonable.”

Bertine, 479 U.S. at 371–72, 107 S. Ct. at 741.

      Under the United States Supreme Court cases, the nature and

scope of the warrantless search must be conducted pursuant to a

standardized local policy. See Wells, 495 U.S. at 4, 110 S. Ct. at 1635;

Bertine, 479 U.S. at 376, 107 S. Ct. at 743 (Blackmun, J., concurring);

South Dakota v. Opperman, 428 U.S. 364, 383, 96 S. Ct. 3092, 3104

(1976) (Powell, concurring).    If the warrantless impoundment of the

vehicle and the warrantless search of the vehicle are authorized by

reasonable local policy, the warrantless inventory search passes

constitutional muster.   See Wells, 495 U.S. at 4, 110 S. Ct. at 1635.

Under the Supreme Court approach, there is no requirement that local

police inventory policies use the least intrusive means to advance the

goals of law enforcement. Illinois v. Lafayette, 462 U.S. 640, 647, 103

S. Ct. 2605, 2610 (1983).    A warrantless inventory search and seizure

might be invalid if the accused can show the government action was “in

bad faith or for the sole purpose of investigation,” a very high bar.

Bertine, 479 U.S. at 372, 107 S. Ct. at 741 (majority opinion).
                                   16

      Because of its emphasis on local policy determined by law

enforcement, constitutionally permissive warrantless searches pursuant

to an inventory process may vary from jurisdiction to jurisdiction.        It

allows local law enforcement culture to be brought to bear in expanding

or contracting the scope of Fourth Amendment rights through adoption

of broad or narrow warrantless inventory search and seizure policies.

Thus, under the Fourth Amendment, whether a container may be

searched as part of a warrantless inventory process may turn on the

policies of the jurisdiction where the search occurred.          Plainly, the

Supreme Court’s approach accommodates, and was no doubt animated

by, federalism concerns.

      Under the federal approach, local law enforcement, and not

independent and impartial judges, may set the contours of the

substantive protections for liberty under the Fourth Amendment in the

field of warrantless inventory searches through the crafting of local

policy.   This empowerment of local law enforcement to determine the

substance    of   Fourth   Amendment    protections   in   the   context   of

warrantless inventory searches and seizures of automobiles is rich with

irony, as the Fourth Amendment was explicitly designed as a bulwark to

restrain law enforcement in the context of searches and seizures. Under

the United States Supreme Court precedent, local law enforcement is

authorized to restrict itself, a process unlikely to provide robust

protections to persons drawn into the warrantless inventory search and

seizure net and more likely to reflect law enforcement convenience.

      The United States Supreme Court also has not required a

warrantless inventory search and seizure policy be in writing, but instead

the policy may be established by custom and practice. See Bertine, 479

U.S. at 373 n.5, 107 S. Ct. at 742 n.5 (discussing testimony of other
                                      17

police officer regarding the vehicle inventory procedures); United States v.

Betterton, 417 F.3d 826, 830 (8th Cir. 2005) (“While a written policy may

be   preferable,   testimony   can       be   sufficient    to   establish   police

impoundment procedures.”). When policies are not in writing, there may

be evidentiary difficulties regarding whether a policy is, in fact, in place,

and if so, what exactly is the policy.

      There is irony here, too, in the lack of a requirement that the

warrantless inventory search policy be in writing.                    One of the

requirements of a traditional Fourth Amendment law is that a warrant be

in writing.    The writing requirement ensures there is no dispute

regarding the showing of probable cause made by law enforcement

officers or regarding the scope of the warrant itself. It prevents after-the-

fact justifications by law enforcement. The notion that an ex ante writing

prevents post hoc judgments has been an important part of search and

seizure law for a long time. See, e.g., United States v. Sharpe, 470 U.S.

675, 694, 105 S. Ct. 1568, 1580 (1985); United States v. Martinez-Fuerte,

428 U.S. 543, 565, 96 S. Ct. 3074, 3086 (1976); Opperman, 428 U.S. at

383, 96 S. Ct. at 3104; United States v. Cazares-Olivas, 515 F.3d 726,

729 (7th Cir. 2008).     The United States Supreme Court’s approach to

unwritten policies in the field of warrantless inventory searches lacks

these important disciplining features.

      In   considering   whether     to    adopt   the     evolving   enabling   of

warrantless inventory searches and seizures of automobiles espoused by

the United States Supreme Court into our interpretation of article I,

section 8 of the Iowa Constitution, it is important to recognize the United

States Supreme Court’s approach in its warrantless inventory search and

seizure caselaw has been highly contested. The nature and scope of the

disputed law may be seen in an overview of the majorities and dissents in
                                     18

the warrantless inventory search and seizure cases.        In several of the

United States Supreme Court warrantless inventory search cases, the

Court reversed decisions of state supreme courts limiting and regulating

warrantless inventory searches under the Fourth Amendment.              See

Bertine, 479 U.S. at 376, 107 S. Ct. at 743; Lafayette, 462 U.S. at 648,

103 S. Ct. at 2610; Opperman, 428 U.S. at 376, 96 S. Ct. at 3100

(majority opinion). A more detailed look at the United States Supreme

Court opinions in the warrantless inventory search and seizure cases

illustrates some of the constitutional choices available to us in the

interpretation of article I, section 8 of the Iowa Constitution.

      The first case laying the foundations for warrantless inventory

search and seizure, Cady v. Dombrowski, was a 5–4 decision. 413 U.S.

433, 450, 93 S. Ct. 2523, 2532 (1973). The owner of the vehicle, a police

officer, was unable to arrange to have the vehicle towed and stored, and

as a result, the police had it towed to a private garage. Id. at 446, 93

S. Ct. at 2530.      The police searched the vehicle without a warrant

pursuant to standard police department procedure, apparently to retrieve

Dombrowski’s service revolver, which was believed to be within the

vehicle. Id. at 437, 93 S. Ct. at 2526. When searching for the weapon,

police uncovered evidence in the vehicle incriminating Dombrowski in a

murder. Id. The district court denied the motion to suppress, but the

Seventh Circuit reversed. Id. at 434, 93 S. Ct. at 2525. A majority of the

United States Supreme Court upheld the warrantless search as

“reasonable” under the Fourth Amendment because the search was not

part of a criminal investigation but was conducted pursuant to local

police procedures for “community caretaking purposes.” Id. at 447–48,

93 S. Ct. at 2531.
                                    19

      Writing for four justices, Justice Brennan dissented. Id. at 450, 93

S. Ct. at 2532 (Brennan, J., dissenting). He noted the “reasonableness”

clause of the Fourth Amendment is “shaped by the warrant clause.” Id.

He rejected the majority’s “fine-line” distinction between police intrusions

for criminal and investigative functions. Id. at 453, 93 S. Ct. at 2534.

Justice Brennan noted, “[T]he fact that the professed purpose of the

contested search was to protect the public safety rather than to gain

incriminating evidence does not of itself eliminate the necessity for

compliance with the warrant requirement.” Id. at 453–54, 93 S. Ct. at

2534. For Justice Brennan and the other dissenters, the formal labeling

of a search and seizure as a criminal investigation or something else was

of little significance: the resulting government intrusion into the privacy

interests is the same. See id.

      The United States Supreme Court was also highly divided in the

next warrantless inventory search and seizure case. Opperman, 428 U.S.

364, 96 S. Ct. 3092. In Opperman, the majority of the court upheld a

warrantless inventory search of a locked automobile that had been

lawfully impounded for failure to pay parking tickets. Id. at 375–76, 96

S. Ct. at 3100. The car in question was towed to the city impound lot for

parking violations.   Id. at 366, 96 S. Ct. at 3095.   A watch and other

personal items were in the interior of the locked car but in plain view. Id.

The police unlocked the car and conducted a warrantless inventory

search, including opening an unlocked glove compartment where

marijuana was discovered. Id. The owner of the car was subsequently

charged with possession of marijuana and sought to suppress the

evidence obtained by police in the search of the vehicle. Id. at 366, 96

S. Ct. at 3095–96.    The South Dakota Supreme Court had found the

search invalid under the Fourth Amendment because the warrantless
                                    20

search was not incident to a lawful arrest, based on probable cause to

believe the vehicle contained contraband, justified by the nature of the

police custody of the vehicle, or based on exigent circumstances. State v.

Opperman, 228 N.W.2d 152, 158 (S.D. 1975), rev’d, 428 U.S. 364, 96

S. Ct. 3092.

      A five-member majority of the United States Supreme Court upheld

the warrantless inventory search under the Fourth Amendment.

Opperman, 428 U.S. at 376, 96 S. Ct. at 3100. The majority opinion by

Chief Justice Burger emphasized automobiles are entitled to less

protection than the home under the Fourth Amendment because of the

mobility of a car, the lessened expectation of privacy in a car compared to

the home, and the pervasive and continuing government regulation and

control of cars. Id. at 367–68, 96 S. Ct. at 3096. The majority explained

that conducting a routine inventory after impoundment promoted three

distinct needs: protecting the owner’s property, protecting the police

against claims or disputes over lost or stolen property, and protecting the

police from potential danger. Id. at 369–70, 96 S. Ct. at 3097. In light of

these purposes, the majority concluded, inventories pursuant to

standard   police   procedures   are     “reasonable”   under   the   Fourth

Amendment. Id. at 372, 96 S. Ct. at 3098–99.

      Writing for three justices, Justice Marshall dissented. Id. at 384,

96 S. Ct. at 3105 (Marshall, J., dissenting); see also id. at 396, 96 S. Ct.

at 3110 (White, J., dissenting). The dissent emphasized the warrantless

inventory search was conducted of a closed glove compartment in a

locked vehicle. Id. at 384–85, 96 S. Ct. at 3105 (Marshall, J., dissenting).

While the dissent noted the court had occasionally distinguished

automobiles from homes for search and seizure purposes, the distinction

was based in part on the mobility of the car, a consideration not present
                                     21

when the car is locked and impounded. Id. at 386, 96 S. Ct. at 3105–06.

Further, the state’s regulatory interest in the operation of automobiles is

not implicated when the vehicle is immobilized in a police impoundment.

Id. at 387, 96 S. Ct. at 3106.

      The minority then considered the three justifications of the

warrantless search presented in the majority opinion.        Id. at 389, 96

S. Ct. at 3106–07.      With respect to safety, the minority, citing a

concurrence of Justice Powell, noted ordinarily “there is little danger

associated with impounding unsearched automobiles,” and in that case,

there was no particularized concern over safety such as in Terry v. Ohio,

392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). Opperman, 428 U.S. at 390,

96 S. Ct. at 3107 (quoting id. at 377, 96 S. Ct. at 3101 (Powell, J.,

concurring)). On protecting the police from lost property claims, Justice

Marshall noted the majority ignored the South Dakota Supreme Court

state law interpretation that police, as “gratuitous depositors,” are

absolved “from any obligation beyond inventorying objects in plain view

and locking the car.”     Id. at 391, 96 S. Ct. at 3108 (Marshall, J.,

dissenting).   Further, again citing Justice Powell’s concurring opinion,

the minority doubted that an inventory would “work significantly to

minimize the frustrations of false claims.” Id. Finally, with respect to

conducting an inventory for the owner’s benefit, Justice Marshall noted

law enforcement cannot assume consent. Id. at 392, 96 S. Ct. at 3108.

According to Justice Marshall, a warrantless inventory search without

consent may be conducted only upon a showing of a specific reason for

the search and only after “the exhaustion and failure of reasonable

efforts . . . to identity and reach the owner of the property in order to

facilitate alternative means of security.” Id. at 394, 96 S. Ct. at 3109.
                                     22

        Seven years after Opperman, the United States Supreme Court

considered the validity of a warrantless preincarceration inventory search

of a shoulder bag in Lafayette, 462 U.S. at 641–42, 103 S. Ct. at 2607.

In Lafayette, police arrested the accused for disturbing the peace. Id. at

641, 103 S. Ct. at 2607. The Lafayette Court emphasized the practical

necessities of jailhouse administration as supporting the search. Id. at

643–44, 103 S. Ct. at 2608.      The Court emphasized the government’s

interest in preventing theft and false claims against employees and

preserving the security of the stationhouse.     Id. at 648, 103 S. Ct. at

2610.    While the Illinois court found the search invalid because the

government interest could have been advanced by the less intrusive

means of sealing the container within another container and storing it in

a secure locker, People v. Lafayette, 425 N.E.2d 1383, 1386 (Ill. Ct. App.

1981), the Court rejected the less-intrusive-means rationale. Lafayette,

462 U.S. at 648, 103 S. Ct. at 2610. The Lafayette Court emphasized

the need for a “single familiar standard” in determining what may be

searched and, to the Lafayette Court, that meant containers, bags,

wallets—indeed everything. Id. at 648, 103 S. Ct. at 2610–11 (quoting

New York v. Belton, 453 U.S. 454, 458, 101 S. Ct. 2860, 2863 (1981)).

Justices    Marshall   and    Brennan     concurred,   but   stressed   the

government’s strong interest in jailhouse security when a person is being

admitted to the facility.    Id. at 649, 103 S. Ct. at 2611 (Marshall, J.,

concurring).

        The United States Supreme Court next considered a warrantless

inventory search of an automobile in Bertine, 479 U.S. at 369–70, 107

S. Ct. at 740.    The Bertine Court considered a police search of a

backpack after the defendant was arrested for driving under the

influence of alcohol and a tow truck was called to impound the vehicle.
                                        23

Id. at 368–69, 107 S. Ct. at 739. The search of the backpack revealed

controlled substances, cocaine paraphernalia, and a large amount of

cash. Id. at 369, 107 S. Ct. at 739. The Colorado Supreme Court upheld

a district court decision granting the motion to suppress. Id. at 370, 107

S. Ct. at 740.

      The majority in Bertine reversed the Colorado Supreme Court and

upheld the warrantless inventory search. Id. at 376, 107 S. Ct. at 743.

The main opinion by Chief Justice Rehnquist recited the three rationales

of warrantless inventory searches from Opperman.             Id. at 372–73, 107

S. Ct. at 741–42.     The majority rejected the approach of the Colorado

Supreme Court, which held the search “was unreasonable because [the

vehicle] was towed to a secured, lighted facility and because Bertine

himself could have been offered the opportunity to make other

arrangements for [the vehicle].” Id. at 373–74, 107 S. Ct. at 742. The

Bertine Court also rejected the Colorado Supreme Court’s balancing of

the individual’s privacy interest against the needs of law enforcement.

Id. at 374–75, 107 S. Ct. at 742–43. According to the Court, there was a

need for a single, familiar standard for police making the decision with

limited time and expertise.      Id. at 375, 107 S. Ct. at 743.        The Court

noted, however, a warrantless inventory search or seizure might be

invalid if the owner or driver could show that the action was “in bad faith

or for the sole purpose of investigation.” Id. at 372, 107 S. Ct. at 742. 1

      A concurring opinion by Justice Blackmun, joined by Justices

Powell and O’Connor, emphasized the opening of closed containers in a

warrantless inventory search is acceptable only if conducted pursuant to

      1But   see United States v. Judge, 864 F.2d 1144, 1147 n.5 (5th Cir. 1989)
(observing there are “mixed motives in the vast majority of inventory searches” and
noting the difficulty of establishing bad faith).
                                     24

standardized police procedures. Id. at 376, 107 S. Ct. at 743 (Blackmun,

J., concurring).    According to the concurring opinion, standardized

procedures are required because police should not be vested “with

discretion to determine the scope of the inventory search.” Id.

      Justice Marshall, joined by Justice Brennan, dissented. Id. at 377,

107 S. Ct. at 744 (Marshall, J., dissenting).            While the majority

emphasized the lack of discretion in implementing the inventory

procedures, Justice Marshall noted the procedures themselves, in fact,

vested substantial discretion in the officers to choose whether to park

and lock the vehicle or impound it. Id. at 378–79, 107 S. Ct. at 744–45.

Justice Marshall reprised the argument from earlier dissents that the

alleged interests supporting warrantless inventory searches were not

substantial. Id. at 382–85, 107 S. Ct. at 746–48. As to preservation of

the owner’s property, Justice Marshall emphasized in this case the owner

was available to make other arrangements, yet the police made no effort

to determine whether he wanted them to “safeguard” his property. Id. at

385, 107 S. Ct. at 748. Justice Marshall recognized Lafayette upheld a

stationhouse inventory of a bag, but the case was justified by the

compelling    government     interests    unique   to     the   stationhouse,

preincarceration context where jail security is paramount. Id. at 385–86,

107 S. Ct. at 748–49.

      The final warrantless inventory search and seizure case in the line

of cases is Wells, 495 U.S. 1, 110 S. Ct. 1632.         In Wells, a splintered

Court considered a case in which police searched the trunk and a

suitcase within it, after arresting the driver for driving while intoxicated.

Id. at 2, 110 S. Ct. at 1634. The majority of the Supreme Court held the

search offended the Fourth Amendment because law enforcement

involved in the search had no policy whatsoever “with respect to the
                                    25

opening of closed containers encountered during an inventory search.”

Id. at 4–5, 110 S. Ct. at 1635. In dicta, however, the majority opinion

suggested a law enforcement policy might allow law enforcement the

discretion to determine whether to open closed containers in seized

automobiles. Id. at 4, 110 S. Ct. at 1635.

        Justice Brennan, joined by Justice Marshall, concurred. Id. at 5,

110 S. Ct. at 1635 (Brennan, J., concurring).           Justice Brennan

emphasized that under Opperman the procedures of law enforcement

must limit the discretion of police. Wells, 495 U.S. at 8, 110 S. Ct. at

1637.    Justice Brennan stressed that opening a closed container is a

great intrusion into the privacy of the owner when the container is found

in an automobile. Id. at 9, 110 S. Ct. at 1638. Justice Brennan repeated

his view espoused in Bertine that absent consent or an emergency, police

may not open a closed container found during an inventory search of an

automobile. Id. at 8–9, 110 S. Ct. at 1637–38.

        The United States Supreme Court has not revisited the issue of

inventory searches since Wells.    There is reason to think some of the

rationale for the Supreme Court’s inventory search approach has been

undermined by later decisions. In Arizona v. Gant, the Court held where

suspects are detained and away from a motor vehicle, officer safety is not

a realistic basis for a warrantless search of the passenger compartment

of an automobile. 556 U.S. 332, 344, 129 S. Ct. 1710, 1719 (2009). In

light of Gant, it is unclear whether the Supreme Court would continue to

find safety supports a warrantless search of a car that is securely

impounded.     See Jennifer Kirby-McLemore, Comment, Finishing What

Gant Started: Protecting Motorists’ Privacy Rights by Restricting Vehicle

Impoundments and Inventory Searches, 84 Miss. L.J. 179, 196–97 (2014).
                                    26

      As can been seen by the above cases, the question of the nature

and scope of permitted warrantless inventory searches and seizures

involving automobiles has been a highly contested issue. In three of the

cases, the United States Supreme Court reversed state appellate

decisions from Colorado, Illinois, and South Dakota. Bertine, 479 U.S. at

376, 107 S. Ct. at 743 (majority opinion); Lafayette, 462 U.S. at 649, 103

S. Ct. at 2611 (majority opinion); Opperman, 428 U.S. at 376, 96 S. Ct. at

3100–01 (majority opinion).      The majority opinions in Bertine and

Opperman were highly contested and provoked vigorous dissents.         In

construing our state constitutional provisions relating to search and

seizure, we are free to consider the persuasive power of the prior state

court opinions and the majority, concurring, and dissenting opinions in

the United States Supreme Court cases.

      4. Post-Bertine alternative approaches of state supreme courts to

inventory searches.    After Bertine, some state courts have followed

lockstep with the United States Supreme Court precedent in considering

warrantless inventory searches and seizures involving automobiles under

their state constitutions. See, e.g., People v. Parks, 370 P.3d 346, 351

(Colo. App. 2015) (“[T]he State and Federal constitutions are coextensive

in the context of inventory searches.”); Weide, 455 N.W.2d at 904 (“In

light of Bertine [prior caselaw rejecting inventory searches of closed

containers] is no longer a correct interpretation of state or federal

constitutional law, and we overrule [prior caselaw] to the extent that it

conflicts with Bertine.”); Johnson v. State, 137 P.3d 903, 908–09 (Wyo.

2006) (“Consonant with the Fourth Amendment, the opening of closed

containers during an inventory search is permissible if conducted in good

faith, pursuant to a standardized police policy, and as long as the search

is not a ruse for general rummaging for evidence of a crime.”).
                                    27

      Other state supreme courts, however, have chosen alternative

approaches reminiscent of state court cases prior to Bertine. Indeed, on

remand from the United States Supreme Court, the South Dakota

Supreme Court dug in its heels and adhered to its prior view that the

inventory search was unlawful under the South Dakota Constitution.

State v. Opperman, 247 N.W.2d 673, 675 (S.D. 1976). The South Dakota

Supreme Court noted “logic and a sound regard for the purposes of the

protection” of the search and seizure provision of the South Dakota

Constitution “warrant a higher standard of protection for the individual

. . . than the United States Supreme Court found necessary under the

Fourth Amendment.”      Id.   The South Dakota Supreme Court observed

that for a warrantless inventory search to be reasonable under the South

Dakota Constitution there must be “minimal interference” with the

individual’s protected rights. Id. (quoting United States v. Lawson, 487

F.2d 468, 475 (8th Cir. 1973)).      The South Dakota Supreme Court

limited the warrantless inventory search under the search and seizure

provision of article VI, section 11 of the South Dakota Constitution to

articles within plain view. Id.

      Appellate courts in the state of Washington have developed their

own independent state constitutional analysis of the validity of

warrantless inventory searches and seizures. In a pre-Bertine case, the

Washington Supreme Court held before warrantless impoundment

occurs pursuant to the police’s community caretaking function, the

police must first make an inquiry as to the availability of the owner or

the owner’s spouse or friends to move the vehicle under the Fourth

Amendment. State v. Williams, 689 P.2d 1065, 1070–71 (Wash. 1984)

(en banc). The Williams court also noted, “[I]t is doubtful that the police

could have conducted a routine inventory search without asking [the
                                    28

defendant] if he wanted one done.” Id. at 1071. In another pre-Bertine

case, the Washington Supreme Court held a closed container could not

be opened pursuant to an inventory search, this time invoking both the

Fourth Amendment and the search and seizure provisions of the

Washington Constitution. State v. Houser, 622 P.2d 1218, 1226 (Wash.

1980) (en banc). After Bertine, the Washington courts have continued to

limit the scope of warrantless inventory searches and seizures under the

search and seizure provisions of the Washington Constitution, holding

when conducting an inventory, no closed, opaque containers should be

opened unless the container is designed to or likely to contain valuables.

State v. Wisdom, 349 P.3d 953, 965 (Wash. Ct. App. 2015).           While

Washington state courts recognize warrantless inventory searches may

serve legitimate government interests, the courts have emphasized that

warrantless searches are not limitless and do not outweigh the privacy

interests of Washington citizens under the search and seizure provisions

of the Washington Constitution.      State v. White, 958 P.2d 982, 987

(Wash. 1998). Further, the post-Bertine Washington Supreme Court has

suggested warrantless inventory searches should be consent-based with

the owner or driver able to refuse. Id. at 987 n.11.

      Another post-Bertine state court approach to warrantless inventory

searches may be found in the Oregon case of Hite, 338 P.3d 803. Under

the Oregon court’s approach, property is to be listed in an inventory only

by its outward appearance. Id. at 809. Under the search and seizure

provisions of the Oregon Constitution, closed, opaque containers may not

be opened unless the container is designed or likely to contain valuables.

Id. Similarly, in State v. Atkinson, an Oregon appellate court expressly

departed from Opperman under the search and seizure provisions of the

Oregon Constitution in holding there was no need for a warrantless
                                     29

inventory search of a vehicle that was in a locked shed where there was

no evidence of past thefts. 669 P.2d 343, 345–46 (Or. Ct. App. 1983) (en

banc), aff’d on other grounds, 668 P.2d 832, 838 (Or. 1984) (en banc).

      The caselaw from Indiana is also instructive. Like Iowa precedent,

Indiana precedent requires the search and seizure provision of the

Indiana Constitution “be liberally construed in its application to

guarantee that people will not be subjected to unreasonable search and

seizure.” Lucas, 859 N.E.2d at 1251; see State v. Height, 117 Iowa 650,

657, 91 N.W. 935, 937 (1902) (stating Iowa constitutional rights should

be applied “in a broad and liberal spirit”). The Indiana appellate court

applied a “totality of the circumstances” test under its state constitution

to determine if the search was reasonable, an approach the United States

Supreme Court expressly declined to follow in Bertine. Compare Lucas,

859 N.E.2d at 1251, with Bertine, 479 U.S. at 375, 107 S. Ct. at 743

(majority opinion) (emphasizing when a search is underway, a “single

familiar standard is essential” as opposed to one that balances individual

interests in specific circumstances).      The Indiana Supreme Court

determined opening a locked toolbox as part of an inventory search was

unreasonable under article I, section 11 of the Indiana Constitution.

Lucas, 859 N.E.2d at 1251.

      There is authority in Texas that departs from the United States

Supreme    Court’s   approach   to   warrantless   inventory   searches   of

automobiles.   In Gords v. State, a post-Bertine Texas court of appeals

held there was no basis for impounding a vehicle that was parked in a

private lot and locked, where there were other people at the arrest site

who could have taken care of the vehicle and no contraband or visible

evidence of crime was in plain view. 824 S.W.2d 785, 788 (Tex. Crim.

App. 1992).    The Texas court explicitly noted that Bertine was not
                                    30

binding authority in the interpretation of the search and seizure

provisions of the Texas Constitution. Id. at 787.

      Similarly, in Autran v. State, the Texas Court of Criminal Appeals

concluded a warrantless inventory of contents of a vehicle, including a

closed ice chest, a cardboard box, a shopping bag, and a closed plastic

key box, did not violate the Fourth Amendment. 887 S.W.2d 31, 35–36

(Tex. Crim. App. 1994) (en banc).     Noting it was imperative the court

engage in an independent analysis under the search and seizure

provisions of the Texas Constitution, the Autran court concluded under

the Texas Constitution the owner or driver’s privacy interest in closed

containers is not overcome by the general policy considerations

underlying a warrantless inventory search of closed containers in an

automobile.   Id. at 41–42.   According to the Autran court, the state’s

interest in protecting the owner or driver’s property, as well as protecting

the police from danger and false claims of theft, may be satisfied by

recording the existence of, or describing and or photographing the

existence of, the closed or locked container. Id. at 42. The Autran court

refused to “presume the search of a closed container reasonable” under

the search and seizure provisions of the Texas Constitution “simply

because an officer followed established departmental policy.” Id.

      Finally, cases from New Jersey also go in a different direction than

the United States Supreme Court.         In State v. Slockbower, the New

Jersey Supreme Court held that before police impounded a vehicle, the

driver either must consent or be given a reasonable opportunity to make

other arrangements for custody of the vehicle.      397 A.2d 1050, 1051

(N.J. 1979). The approach in Slockbower was affirmed in Mangold, 414

A.2d at 1318.    In Mangold, the New Jersey Supreme Court held that

before impounding a vehicle, the driver is entitled to an opportunity to
                                   31

utilize available alternative means to safeguard his or her property. Id.

The Slockbower–Mangold reasoning has been applied in post-Bertine

cases in State v. One 1994 Ford Thunderbird, 793 A.2d 792, 801 (N.J.

Super. Ct. App. Div. 2002), and Blacknall v. Simonetti, 2010 WL 2089773

at *3 (N.J. Super. Ct. App. Div. 2010). See also State v. Robinson, 159

A.3d 373, 387 (N.J. 2017) (citing Slockbower and Mangold for the

standard of when an inventory search may be conducted under the New

Jersey Constitution).

      Many of the cases departing from federal precedent cite or are

generally consistent with the Police Foundation’s Rule 603B of the 1974

Model Rules[:] Searches Seizures and Inventories of Motor Vehicles. Rule

603B provides the arresting officer should be required to advise the

arrested operator “that his vehicle will be taken to a police facility or

private storage facility for safekeeping unless he directs the officer to

dispose of it in some other lawful manner” and to tell the arrested

operator that the arresting officer will “comply with any reasonable

alternative disposition requested.” See 3 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 7.3(c), at 820 (5th ed.

2012) [hereinafter LaFave, Search and Seizure] (quoting Model Rules[:]

Searches Seizures and Inventories of Motor Vehicles (Project on Law Enf’t

Policy & Rulemaking 1974)).

      5. Iowa Supreme Court’s approach to inventory searches.        The

question of warrantless inventory searches and seizures involving

automobiles was considered thirty-five years ago in State v. Roth, 305

N.W.2d 501, 502 (Iowa 1981). In a divided opinion, the court in Roth

held that under the Fourth Amendment and article I, section 8 of the

Iowa Constitution, police may open a closed container such as a paper

bag but not a purse, suitcase, or briefcase that could be removed from
                                     32

the vehicle and inventoried as a unit.     Id. at 507–08.     In a dissenting

opinion, Justice McCormick would have held the search of a paper bag

found in the truck was invalid under both the Fourth Amendment and

the Iowa Constitution. Id. at 510 (McCormick, J., dissenting). Notably,

the privacy protections in Roth went considerably further than the United

States Supreme Court ultimately afforded owners and drivers in Bertine.

Id. at 508 (majority opinion); Bertine, 479 U.S. at 375, 107 S. Ct. at 743.

The difference between a searchable paper bag and a closed container

not subject to search was not explored in depth. Id. at 508.

      Three years later, another warrantless inventory case reached us

in State v. Kuster, 353 N.W.2d 428, 430 (Iowa 1984), overruled by State v.

Huisman, 544 N.W.2d 433, 440 (Iowa 1996).            In Kuster, a Fourth

Amendment case, we held there must be a “showing [of] some reasonable

necessity” for the warrantless impoundment of an automobile. Id. at 432

(quoting State v. McDaniel, 383 A.2d 1174, 1179 (N.J. Super. Ct. App.

Div. 1978)).   We noted “the vehicle was locked, legally parked, and it

presented no danger to the public.” Id. Further, we emphasized there

was no attempt “by the police to allow the defendant to provide for the

care of the vehicle and apparently no inquiry was made of him as to what

he wanted to have done with the vehicle.” Id. In short, prior to Bertine,

we adopted the view of a number of state courts, namely, that before a

warrantless    impoundment      occurs,   there   must   be   some   risk   if

impoundment does not occur and the driver or owner of the vehicle must

be given a chance to make other arrangements.

      After the United States Supreme Court decided Bertine, we

considered a warrantless inventory search in Huisman, 544 N.W.2d 435.

In this case, police conducted a warrantless inventory search of a vehicle

in a motel parking lot.   Id.   The defendant challenged the warrantless
                                        33

search under the Fourth Amendment.             Id. at 436.       In Huisman, we

recognized the United States Supreme Court in Bertine rejected a case-

by-case analysis of reasonable necessity of impoundment in favor of a

broader approach that a warrantless inventory search and seizure may

be conducted pursuant to generally applicable police policy. Id. at 437.

Although our view in Kuster of the requirements of the Fourth

Amendment was different from the Bertine decision, we were obliged to

abandon Kuster and follow Bertine by operation of the Supremacy Clause

of the United States Constitution. Id. at 438–39. While we might have

stood our ground as enunciated in Kuster under article I, section 8 of the

Iowa Constitution, no state constitutional claim was raised in Huisman.

Id. at 435.

      Similarly,   in   State   v.    Aderholdt,   we    considered   a    Fourth

Amendment challenge to a warrantless inventory search where the initial

stop was made because of a seatbelt violation and excessively tinted

windows. 545 N.W.2d 559, 563 (Iowa 1996). Citing Bertine, we upheld

the search as being conducted according to standardize procedures and

not in bad faith. Id. at 564–66. As with Huisman, no state constitutional

claim was presented in the case, and we were thus obliged by the

Supremacy     Clause    to   follow    the   United     States   Supreme    Court

warrantless inventory search and seizure precedents. See id. at 565.

      B. Discussion.

      1. The convergence of search and seizure cases geometrically

undermines privacy in automobile searches.                 This case must be

considered in the context of a disturbing trend related to traffic stops in

the federal caselaw.    At the outset, as noted by Justice Kennedy, just

about anyone if followed for a few blocks may be arrested for traffic

infractions. Maryland v. Wilson, 519 U.S. 408, 423, 117 S. Ct. 882, 890
                                          34

(1997) (Kennedy, J., dissenting). The United States Supreme Court has

held that in making the discretionary choice to make a traffic stop, law

enforcement’s subjective motivation is not subject to review. Whren v.

United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996). Once

the police have made the virtually unreviewable discretionary decision to

stop a vehicle, the driver may be arrested for a minor traffic violation,

even if the violation is not punishable by a jail term. Atwater v. City of

Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001).                     Then,

pursuant to an impoundment under a written or even unwritten policy,

law enforcement may engage in a thorough search of the vehicle,

including opening closed containers. Bertine, 479 U.S. at 375, 107 S. Ct.

at 743.

       The end result of Whren, Atwater, and Bertine is law enforcement

has virtually unlimited discretion to stop arbitrarily whomever they

choose, arrest the driver for a minor offense that might not even be

subject to jail penalties, and then obtain a broad inventory search of the

vehicle—all without a warrant.              When considered in context, the

inventory search does not emerge as something for the benefit of the

owner or driver, but instead is a powerful unregulated tool in crime

control. 2 See David A. Harris, “Driving While Black” and All Other Traffic


        2There is empirical evidence police disproportionately focus on minorities in

street encounters and traffic stops. See Charles R. Epp, et al., Pulled Over: How Police
Stops Define Race and Citizenship 155, 167 (2014) (surveying random sampling of adult
drivers in Kansas City metro area, finding African-Americans more than three times as
likely to be stopped in investigatory, as opposed to safety enforcement, police stops);
Frank R. Baumgartner, et al., Racial Disparities in Traffic Stop Outcomes, 9 Duke Forum
for L. & Soc. Change 21, 34 (2017) (using publicly available information from 132 police
agencies across sixteen states, finding nationally, on average, Hispanic and African-
American drivers were searched at more than double the rate of white drivers during
routine traffic stops); Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. Miami L.
Rev. 425, 431–32 (1997) (citing statistics from New Jersey, Maryland, and Florida
indicating approximately 70% of the motorists stopped were African-American, and, in
                                          35

Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L.

& Criminology 544, 559 (1997); Wayne R. LaFave, The “Routine Traffic

Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth

Amendment, 102 Mich. L. Rev. 1843, 1902–05 (2004); Arnold H. Loewy,

Cops, Cars, and Citizens: Fixing the Broken Balance, 76 St. John’s L. Rev.

535, 544–45 (2002) [hereinafter Loewy] (noting an inventory search,

“[w]hen coupled with an unchanneled power to arrest for traffic offenses,

. . . powerfully contributes to the broken balance between police and

citizens” (footnote omitted)); William J. Mertens, The Fourth Amendment

and the Control of Police Discretion, 17 U. Mich. J.L. Reform 551, 564

(1984). 3 A warrantless inventory search and seizure seems more like a

law enforcement weapon than a benign service to citizens.

       An essentially unregulated legal framework allowing wide police

discretion in stopping, arresting, and conducting warrantless inventory

searches of the driver’s automobile amounts to a general warrant regime

that is anathema to search and seizure law. See Vernonia Sch. Dist. 47J

v. Acton, 515 U.S. 646, 669, 115 S. Ct. 2386, 2398 (1995) (O’Connor, J.,

dissenting) (explaining how the warrant requirement was chosen by the

framers of the Constitution to curb the abuses of the general warrant);
Ochoa, 792 N.W.2d at 271–72 (describing the hated general warrants in

the case of Florida, African-American or Hispanic); Peter Hanink, Don’t Trust the Police:
Stop Question Frisk, COMPSTAT, and the High Cost of Statistical Over-Reliance in the
NYPD, 2013 J. Inst. Just. Int’l Stud. 99, 102–03 (2013) (examining data collected by
NYPD, finding racial minorities are stopped at a disproportional rate).
       3There  is good reason to believe law enforcement may see warrantless inventory
searches as an end run around usual warrant requirements. For example, after Gant,
the Federal Law Enforcement Training Center issued a ten-page report that, among
other things, emphasized while the entire passenger compartment could no longer be
searched under the previous Belton rule, a full search of the interior may be
accomplished through an inventory search. See Jennifer G. Solari, The United States
Supreme Court’s Ruling in Arizona v. Gant: Implications for Law Enforcement Officers,
May 2009 Fed. L. Enf’t Informer 3, 8 (2009).
                                       36

England and the American colonies); Barbara C. Salken, The General

Warrant of the Twentieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221,

256–58 (1989) (comparing unfettered discretion to arrest for traffic

violations   to   general   warrants   and   writs   of   assistance   in   the

revolutionary era). Such an unregulated atmosphere leads to a real risk

that persons subject to stops, arrest, and searches may be selected

arbitrarily or based upon impermissible criteria such as racial profiling.

See State v. Tyler, 830 N.W.2d 288, 297 n.4 (Iowa 2013) (noting “the

possibility for racial profiling requires us to carefully review the objective

basis for asserted justifications behind traffic stops”); Pals, 805 N.W.2d

at 772 & n.5 (discussing racial profiling claims in traffic stops).

      2. Independent interpretation of search and seizure cases under

article I, section 8 of the Iowa Constitution.   The warrantless inventory

search and seizure cases involving automobiles are consistent with a

recent departure of the United States Supreme Court from the traditional

warrant preference to an open-ended and free-floating “reasonableness

requirement.”     See Illinois v. Rodriguez, 497 U.S. 177, 198, 110 S. Ct.

2793, 2806–07 (1990) (Marshall, J., dissenting) (“Where this free-floating

creation of ‘reasonable’ exceptions to the warrant requirement will end,

now that the Court has departed from the balancing approach that has

long been part of our Fourth Amendment jurisprudence, is unclear.”);

Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating

the Fourth Amendment, 44 Vand. L. Rev. 473, 474–80 (1991).                  The

Supreme Court used to say that the touchstone to the Fourth

Amendment was the warrant requirement, subject to very limited

exceptions. See Katz, 389 U.S. at 356–57, 88 S. Ct. at 514; Johnson v.

United States, 333 U.S. 10, 14–15, 68 S. Ct. 367, 369 (1948). Under the
                                           37

innovations introduced in recent years, the United States Supreme Court

has now downgraded and demoted the warrant requirement and declared

the touchstone to Fourth Amendment analysis is a general, free-floating

reasonableness standard which has no relationship to the warrant

requirement of the Fourth Amendment and may, in fact, override it.

Rodriguez, 497 U.S. at 198, 110 S. Ct. at 2806; Jack Wade Nowlin, The

Warren Court’s House Built on Sand: From Security in Persons, Houses,

Papers, and Effects to Mere Reasonableness in Fourth Amendment

Doctrine, 81 Miss. L.J. 1017, 1057–60 (2012). As a result, litigants have

looked to state supreme courts to adjust the balance, with some notable

success. 4 See Loewy, 76 St. John’s L. Rev. at 579; see generally Stephen

E. Henderson, Learning from All Fifty States: How to Apply the Fourth

Amendment and Its State Analogs to Protect Third Party Information from

Unreasonable Search, 55 Cath. U.L. Rev. 373 (2006).

       While the United States Supreme Court has departed from the

traditional warrant preference approach under the Fourth Amendment,

we have declined to do so under the search and seizure provision of

article I, section 8 of the Iowa Constitution. Our recent cases repeatedly

embrace what can only be characterized as a strong warrant preference
interpretation of article I, section 8.           Gaskins, 866 N.W.2d at 9 (“ ‘A

warrantless search is presumed unreasonable’ unless an exception

applies.” (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997));



       4See,  e.g., State v. Sullivan, 74 S.W.3d 215, 222 (Ark. 2002) (declining to follow
United States Supreme Court approach on remand from Arkansas v. Sullivan, 532 U.S.
769, 121 S. Ct. 1876 (2001)); Sitz v. Dep’t of State Police, 506 N.W.2d 209, 224–25
(Mich. 1993) (declining to follow Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110
S. Ct. 2481 (1990)); State v. Robinette, 685 N.E.2d 762, 771–72 (Ohio 1997) (declining
to follow Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996)); Opperman, 247 N.W.2d
at 675 (declining to follow Opperman, 428 U.S. 364, 96 S. Ct. 3092).
                                   38

Short, 851 N.W.2d at 502 (“We have little interest in allowing the

reasonableness clause to be a generalized trump card to override the

warrant clause in the context of home searches.”); Baldon, 829 N.W.2d at

791 (“It is well-settled that warrantless searches are virtually ‘per se

unreasonable . . . .’ ”); Ochoa, 792 N.W.2d at 269 (“[T]he Reasonableness

Clause cannot be used to override the Warrant Clause.”). Thus, while

the United States Supreme Court in recent years has relaxed the grip of

the traditional warrant requirement to advance the claimed interests of

law enforcement, we have held firm in protecting privacy interests

through a robust warrant requirement.

      Further, to the extent open-ended standards like reasonableness

are applicable to search and seizure law, we have tended to apply open-

ended standards more stringently than federal caselaw. This principle is

illustrated in Pals, 805 N.W.2d at 767. In that case, Pals was stopped for

a minor civil infraction. Id. at 769. When Pals was in the squad car

awaiting an uncertain fate after being subjected to a Terry-type pat-

down, the officer extracted consent to conduct a warrantless search of

Pals’ truck, which yielded drugs. Id. at 770. On the issue of consent, we

reserved for another day the issue of whether we should abandon the

fuzzy, multifactored approach to consent endorsed by the United States

Supreme Court in Schneckcloth v. Bustamonte, 412 U.S. 218, 227, 93

S. Ct. 2041, 2047–48 (1973), in favor of a bright-line rule that police

must advise an individual of his right to refuse a search in order for the

consent to be knowing and voluntary.      Pals, 805 N.W.2d at 782; see

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)

(advocating a bright-line consent rule).       Instead, we applied the

Schneckcloth factors stringently and found the consent could not be

considered voluntary. Pals, 805 N.W.2d at 782–83.
                                     39

      3. Evaluation of privacy interest in closed containers in automobiles.

In addition to emphasizing the traditional warrant requirement and more

stringently applying open-ended reasonableness concepts in search and

seizure law, we have also departed from federal precedent in the

evaluation of the strength of competing interests involved in warrantless

inventory searches of automobiles.        Federal caselaw has tended to

minimize the strength of the privacy interest in the interior of

automobiles, but in Gaskins, we took a different approach. 866 N.W.2d

13–14.   In Gaskins, we held a warrantless search of a container in a

validly stopped automobile was not a search incident to arrest and

therefore violated article I, section 8 of the Iowa Constitution. Id. at 16–

17.   We noted in that context article I, section 8 protected reasonable

expectations of privacy and that the Iowa framers placed considerable

value on the sanctity of private property. Id. at 16.

      As noted by a special concurrence in Gaskins, “there is a split of

authority on the question of whether there is a broad automobile

exception” to search and seizure provisions under state constitutions.

Id. at 38 (Appel, J., concurring specially).    The Gaskins concurrence

explained that automobiles are used for more than mere transportation.

Id. at 37. The concurring opinion noted that “[g]love compartments and

consoles are pretty good places to keep ‘papers and effects.’ ” Id. The

concurrence pointed out that automobiles are often used as mobile

offices and may contain all manner of private materials. Id. Professor

LaFave has emphasized that a party’s personal effects stored in an

automobile are entitled to constitutional protection. LaFave, Search and

Seizure § 7(2)(b), at 734–38. While it may be that the home is entitled to

greater protection because of enhanced privacy concerns, we think that

owners and drivers have a substantial privacy interest in “papers and
                                     40

effects” that may be found within the passenger compartment, glove

compartment, or trunk of an automobile.

      4. Evaluation of law enforcement interests supporting warrantless

inventory searches and seizures of automobiles.      We have not recently

examined the weight of the state’s interest in protecting the property in

impounded vehicles or of protecting the police from false claims.       Cf.

Lafayette, 462 U.S. at 646, 103 S. Ct. at 2609 (suggesting that arrested

persons “have been known” to make false claims of theft).        It may be

true, as stated in Lafayette, that “[i]t is not unheard of for persons

employed in police activities to steal property taken from arrested

persons,” id., but the remote possibility by itself does not establish a

strong government interest.      We think the interest is insubstantial for

several reasons.

      First, the risk of a false-claim loss is not very great.   Any false

claim would have to overcome difficult facts if the automobile is locked

and stored in a secure impoundment facility. See Hite, 669 P.2d at 345–

46 (noting shed where police placed impounded vehicles was locked and

there was no evidence of past thefts at the location). The State has not

cited, and we have not found, any empirical evidence that false claims

are a serious problem. Indeed, in Lafayette, the minimal and not very

convincing observation was made that such claims “were not unheard

of.” 462 U.S. at 646, 103 S. Ct. at 2609. The mere theoretical possibility

of a rare and in almost all cases unsuccessful claim of theft cannot

overcome the substantial expectation of privacy an owner or driver has in

the contents of an automobile.

      Second, to the extent there is a minimal false-claim problem, a

written inventory of property by police is not a very effective way of

dealing with it.   See Opperman, 428 U.S. at 391, 96 S. Ct. at 3108
                                     41

(Marshall, J., dissenting) (“[I]t may well be doubted than an inventory

procedure would in any event work significantly to minimize the

frustrations of false claims.”). A party determined to make a false claim

may simply allege that the valuables were not included in the written

inventory, either through mistake or design.       Or, as Justice Powell

pointed out in his Opperman concurrence, claimants could allege that

the missing items were stolen prior to the inventory. Id. at 378–79, 96

S. Ct. at 3102 (Powell, J., concurring).

      Third, there are other equally or more effective methods in securing

property other than a warrantless inventory search. Containers inside

the vehicle may simply be sealed and stored. Mozzetti, 484 P.2d at 89.

Such a process would provide at least as much protection to the remote

threat as a warrantless inventory search of containers. United States v.

Bloomfield, 594 F.2d 1200, 1203 (8th Cir. 1979).

      Finally, under Iowa law, involuntary or gratuitous bailees of

another’s property are not responsible for its loss unless guilty of gross

negligence in its keeping. Siesseger v. Puth, 213 Iowa 164, 177–78, 239

N.W. 46, 52 (1934); Sherwood v. Home Sav. Bank, 131 Iowa 528, 536,

109 N.W. 9, 12 (1906); Estate of Martin, No. 11–0690, 2012 WL 1431490

at *4–5 (Iowa Ct. App. 2012); Khan v. Heritage Prop. Mgmt., 584 N.W.2d

725, 730 n.4 (Iowa Ct. App. 1998). It is striking that while the South

Dakota Supreme Court emphasized the limited exposure of law

enforcement to theft claims as a gratuitous bailee, Opperman, 228

N.W.2d at 159, the majority of the United States Supreme Court in

Opperman ignored the limitation, see 428 U.S. at 369, 96 S. Ct. at 3097

(majority opinion). The very limited exposure of police when serving as

an involuntary or gratuitous bailee has been cited as undercutting the

liability rationale for a warrantless inventory search.   See, e.g., United
                                    42

States v. Lyons, 706 F.2d 321, 334 n.21 (D.C. Cir. 1983) (questioning in

dicta the reliance in Opperman on the rationale of protecting the police

from false claims because the police would be involuntary bailees of the

automobile who would have a slight duty of care); Reeves v. State, 599

P.2d 727, 736–37 (Alaska 1979) (“[T]he state, as an involuntary bailee,

has ‘only a slight duty of care’ with respect to property in its possession

because of the arrest of the property owner and this ‘duty could easily be

met without extensive inventory.’ ” (quoting Daniel, 589 P.2d at 415));

Mozzetti, 484 P.2d at 89–90 (holding police as involuntary bailees are not

liable for ordinary negligence and have a duty to use only slight care in

protecting the bailment); State v. Ching, 678 P.2d 1088, 1093 (Haw.

1984) (holding in evaluating constitutionality of inventory search, it is

important that gratuitous bailee is liable only for gross negligence or bad-

faith loss); Herring v. State, 404 A.2d 1087, 1091–92 (Md. Ct. App. 1979)

(discussing the duty owed by the police to safeguard the contents of an

impounded vehicle and rejecting the argument that an inventory search

was necessary to protect the contents of the car because the police are

gratuitous or involuntary bailees); White, 958 P.2d at 986 n.9 (“When the

police impound a vehicle they become involuntary bailees.”); State v.

Singleton, 511 P.2d 1396, 1400 (Wash. Ct. App. 1973) (holding that when

the police impound a car, they thereby become involuntary bailees); see

also 3 LaFave, Search and Seizure § 7.4(a), at 842 & n.47 (noting “[a]s for

the protection-against-claims argument, certainly security measures

short of inventory will suffice to protect against tort claims” and citing

Mozzetti, 484 P.2d 84, for the proposition that as involuntary bailees,

police adequately fulfill their duty by rolling up the windows and locking

the doors of impounded vehicles). The fact that state law minimized the

liability exposure of involuntary or gratuitous bailees was a factor when
                                         43

the South Dakota Supreme Court declined to follow the United States

Supreme Court on remand in the Opperman case. See Opperman, 247

N.W.2d at 675 (rejecting search under South Dakota Constitution);

Opperman, 228 N.W.2d at 159 (explaining that police act as “gratuitous

depositors” when in possession of impounded car and state law requires

“slight care for the preservation of the thing deposited”).

       Based on the above reasons—the minimal risk, the limited

effectiveness of inventories, the availability of other equally effective but

less intrusive options, and the limited exposure of gratuitous bailees—

the State’s interest in protecting itself from false claims is at best

insubstantial.

       We now turn to an examination of the second justification of

inventory searches, police safety. 5           Where the driver or owner is

separated from the vehicle, and the vehicle is securely impounded, there

is little risk.   In Gant, the United States Supreme Court clarified that

when an automobile is stopped, the risk of harm is not a basis for search

of the passenger compartment when the driver is secure in the backseat

of a police vehicle. 556 U.S. at 344, 129 S. Ct. at 1719. Justice Scalia

characterized the assertion of officer safety supporting automatic
searches of automobiles regardless of the proximity of the driver and

others to the interior of the car was a “charade of officer safety.” 556

U.S. at 353, 129 S. Ct. at 1725 (Scalia, J., concurring).

       In Gaskins, we applied the Gant principles in the context of an

automobile search, rejecting a safety rationale when the driver was

separated from the vehicle.         Gaskins, 866 N.W.2d at 16–17 (majority

        5In Opperman, the safety rational was advanced in Justice Burger’s plurality

opinion. 428 U.S. at 370, 96 S. Ct. at 3097. The dissenters, as well as Justice Powell
in concurrence, did not agree with the rationale. Id. at 378, 96 S. Ct. at 3101–02
(Powell, J., concurring); id. at 389, 96 S. Ct. at 3107–08 (Marshall, J., dissenting).
                                     44

opinion). An impounded vehicle is similarly remote from the owner or

driver. If the police may engage in warrantless searches of automobiles

in inventory to protect the police, the same reasoning would allow a

warrantless search of any locked and parked automobile to protect the

public. See 3 LaFave, Search and Seizure § 7(a), at 843. A search of all

cars that happen to be impounded without any showing at all regarding

potential safety issues is akin to a general warrant.         See Gerald S.

Reamy, Michael H.J. Bassett, & John A. Molchan, The Permissible Scope

of Texas Automobile Inventory Searches in the Aftermath of Colorado v.

Bertine: A Talisman Is Created, 18 Texas Tech. L. Rev. 1165, 1183

(1987).   Further, where containers are involved, it is difficult to see

danger arising by a requirement that containers not be searched but

stored as a unit without specific knowledge of their contents for

safekeeping. Bloomfield, 594 F.2d at 1203. With respect to the danger

justification for inventory searches, Professor LaFave has observed that

“it is difficult to take this contention seriously.” 3 LaFave, Search and

Seizure § 7.4(a) n.18, at 835.     We agree with Professor LaFave and

decline to put much weight in the alleged safety rationale.

      The remaining interest cited by the United States Supreme Court

for warrantless inventory searches is the benign purpose of assisting the

owner in the protection of variables. See Opperman, 428 U.S. at 369–70,

96 S. Ct. 3097.    According to this rationale, the police inventory the

contents of a vehicle for the benefit of the owner or operator of the vehicle

to protect the owner’s property. See id. Of course, if the risk of theft is

at best insubstantial, the benefit to the owner is also at best

insubstantial.   Further, we doubt that many motorists would regard a

thorough inventory search as something helpful.          If the warrantless

inventory search is really for the benefit of the owner or driver, law
                                      45

enforcement should not object to allowing an owner the option to opt out

of the state’s beneficence.     See, e.g., Virgil, 268 Cal. App. 2d at 132;

Miller, 403 So. 2d at 1314; Fortune, 689 P.2d at 1203. Further, if the

warrantless inventory search is for the benefit of the owner, there should

be no difficulty with the notion that the owner or driver should have the

option to make alternate arrangements to protect property in the vehicle

or consent to the warrantless search. See Williams, 689 P.2d at 1071.

      5. Status of warrantless inventory searches under article I, section

8 of the Iowa Constitution.      With respect to the decision to impound,

there is merit to the notion that the police should explore alternative

arrangements short of impoundment. This was our approach in Kuster,

353 N.W.2d 428. If the police goal is truly not investigative but to protect

property and avoid false claims, the owner or driver of the vehicle should

have the ability to opt for alternatives that do not interfere with public

safety other than police impoundment.         These options could include

park-and-lock options on nearby streets or parking lots or calling a

friend or third party to drive the vehicle away. Impoundment of a vehicle

should be permitted only if these options have been adequately explored.

This is the view endorsed by Professor LaFave.       3 LaFave, Search and

Seizure § 7.3(c), at 820.

      In addition, where impoundment is necessary, the next question is

whether the police may conduct an inventory search of the vehicle and, if

so, what is its scope.      First, when impoundment is contemplated, law

enforcement should ask the driver whether there is any property in the

vehicle the driver wishes to retain. If so, the driver should be allowed to

retrieve it. Second, with respect to property left behind, law enforcement

may ask the driver whether there is anything of value requiring
                                    46

safekeeping and make a record of the response in order to protect law

enforcement from a later claim of theft of valuables.

        Absent specific consent to search them, however, police must

inventory closed containers left behind in the vehicle as a unit, an

approach that vindicates the policies of protecting property and avoiding

false claims. See Hite, 338 P.3d at 809; Wisdom, 349 P.3d at 965. It is

important to note, however, that to the extent that consent is a factor, it

should not be pursuant to an open-ended, multifactored Schneckcloth

test.   See 412 U.S. at 227, 93 S. Ct. at 2047–48.      Such an approach

should be anathema to those who favor “bright line” approaches.

Instead, any consent must follow Zerbst to be knowing and voluntary.

304 U.S. at 464, 58 S. Ct. at 1023. Specifically, the police should advise

the owner or operator of the options to impoundment; personal items

may be retrieved from the vehicle; and if the vehicle is impounded,

containers found within the vehicle will not be opened but stored for

safekeeping as a unit unless the owner or operator directs otherwise.

        None of these requirements for warrantless inventory search and

seizure occurred in this case. Even if it could be argued that in light of

the registration problems, the police were entitled to seize the car, the

scope of the search, however, which included a search of the black bag—

a closed container—was impermissible under the principles outlined

above absent a knowing and voluntary consent. As a result, the motion

to suppress in this case should have been granted because the

warrantless inventory search violated article I, section 8 of the Iowa

Constitution.

        We note that our holding in this case does not mean that a

warrantless impoundment of a vehicle is never appropriate. The state

may develop a policy on impoundment and inventory searches consistent
                                     47

with the constitutional requirements embraced in this opinion.            For

example, a policy might provide that the police may impound a vehicle

when the motorist agrees to such impoundment and has had an

opportunity to retrieve his or her belongings. And a policy might provide

for impoundment of vehicles when the motorist is not present to give

consent. Under these circumstances, law enforcement may implement a

policy that allows officers to properly secure closed containers found in

plain view at the police station. The impoundment and search in this

case,    however,   was   outside   the   bounds   of   any   constitutionally

permissible local impoundment and inventory policy.

         V. Conclusion.

         For the above reasons, we reverse the ruling of the district court

denying the motion to suppress and remand the matter to the district

court.

         REVERSED AND REMANDED.

         Cady, C.J., Wiggins and Hecht, JJ., concur.      Cady, C.J., files a

separate concurring opinion. Mansfield, J., files a separate concurring

opinion in which Waterman and Zager, JJ., join.
                                           48
                                                          #16–0736, State v. Ingram
CADY, Chief Justice (concurring specially).

      I concur in the majority opinion and the holding that closed

containers located in an impounded vehicle may not be opened by police

solely for the purpose of inventorying the contents, absent consent by the

owner or operator.

      As this case illustrates, the problem with the inventory search

doctrine is it gives law enforcement officers free rein to conduct a

warrantless investigatory search and to seize incriminating property,

despite the doctrine’s genesis as a means of protecting private property,

guarding against false theft claims, and protecting officers from potential

harm. See South Dakota v. Opperman, 428 U.S. 364, 369–70, 96 S. Ct.

3092, 3097 (1976). Yet, the three rationales that have allowed police to

inventory the personal property located in an impounded vehicle may

also be upheld by applying the more balanced doctrines of consent, plain

view, Terry, 6 and probable cause.           Indeed, officers may protect private

property by invoking the consent exception, and officers concerned about

safety when handling requested items within a vehicle may apply the

existing doctrines of plain view, Terry, and probable cause that currently

exist to protect police in all encounters with citizens.                   This approach

strikes a better balance between the interests of citizens and the needs of

government.




      6See   Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1808, 1883 (1968).
                                      49

                                                  #16–0736, State v. Ingram

MANSFIELD, Justice (concurring specially).

      I concur in the result only.         I would decide this case under

established    Fourth   Amendment      law    rather   than   under      a   new

interpretation of article I, section 8 of the Iowa Constitution.

      In the present case, law enforcement conducted a roadside

inventory search of an impounded vehicle and found methamphetamine

and a glass pipe inside a drawstring cloth bag on the floorboard by the

gas pedal.     I would find this search did not comply with Fourth

Amendment standards.         The State failed to offer any evidence of an

inventory search policy regarding closed containers and thus fell short of

what the United States Supreme Court required, unanimously, in Florida

v. Wells, 495 U.S. 1, 4–5, 110 S. Ct. 1632, 1635 (1990).

      I. The Inventory Search Violated the Fourth Amendment.

      In Wells, the Court found the opening of a locked suitcase stored in

a   trunk    pursuant   to   an   inventory   search   violated    the   Fourth

Amendment. Id. at 2, 5, 110 S. Ct. at 1634–35. Critically, “the record

contained no evidence of any Highway Patrol policy on the opening of

closed containers found during inventory searches.” Id. at 3, 110 S. Ct.

at 1634. The Court went on,

             Our view that standardized criteria, or established
      routine, must regulate the opening of containers found
      during inventory searches is based on the principle that an
      inventory search must not be a ruse for a general
      rummaging in order to discover incriminating evidence. The
      policy or practice governing inventory searches should be
      designed to produce an inventory. The individual police
      officer must not be allowed so much latitude that inventory
      searches are turned into “a purposeful and general means of
      discovering evidence of crime.”
                                         50

Id. at 4, 110 S. Ct. at 1635 (citations omitted) (quoting Colorado v.

Bertine, 479 U.S. 367, 376, 107 S. Ct. 738, 743 (1987) (Blackmun, J.,

concurring)).

        We have not had difficulty applying Wells in the past. See, e.g.,

State v. Huisman, 544 N.W.2d 433, 440–41 (Iowa 1996) (upholding an

inventory search conducted under a standard policy which stated that

“[a]ll vehicles impounded at the direction of a member of the Department

will be fully inventoried, and the proper Impound Form will be prepared.

This includes all containers which may hold valuables or other personal

property, even if closed”); State v. Jackson, 542 N.W.2d 842, 845–46

(Iowa    1996)     (upholding    an    inventory     search   under   the   Fourth

Amendment where there was “ample, uncontroverted testimony that the

patrol department in the present case had standardized inventory criteria

that    included     opening    all   locked   and    unlocked   containers   and

inventorying the containers’ contents”). We can apply Wells today.

        The majority recites the facts correctly, though with insufficient

detail for my purposes. On October 30, 2015, around 6:30 a.m., Jasper

County Deputy John Burdt was stationed in his patrol car along

Highway 14 in Newton.           He had received a report of a vehicle being

driven recklessly. As the vehicle passed, Deputy Burdt noticed its rear

license plate was not illuminated. Deputy Burdt initiated a stop for this

traffic violation.

        While making the stop, Deputy Burdt determined the vehicle’s

registration sticker did not match its license plate and the plate had

expired in 2013. The driver, Bion Ingram, was also unable to produce a

copy of the registration or proof of insurance for the vehicle.             Deputy

Burdt informed Ingram, who was on his way to work, that the vehicle
                                           51

was going to be impounded and towed due to the improper use of a

registration.

      Deputy Burdt did not arrest Ingram.                Instead, he offered to give

him a ride to the nearest gas station so he could be picked up and taken

to work. Ingram accepted this arrangement and called for a ride on his

cell phone. Ingram asked about getting his work tools out of the vehicle.

Deputy Burdt informed Ingram this could be done after the citations

were completed.

      Meanwhile, Newton Police Officer Bernard Eckert had arrived on

the scene. Deputy Burdt informed Ingram that the vehicle was going to

be inventoried and inquired if there was anything in it of high value “as a

protection to all individuals involved.” Ingram said there wasn’t.

      Because Deputy Burdt wanted Ingram to be able to get to work as

quickly as possible, Deputy Burdt asked Officer Eckert to remove the

license plates and perform an inventory of the vehicle while Deputy

Burdt worked on the citations.

      Officer Eckert completed his inventory on a Newton Police

Department form. The form had spaces to fill in the name of the officer

performing the inventory; the date, place, and time of the inventory;

descriptive information on the vehicle; the names and addresses of the

owner and the driver; 7 and the locations where the vehicle was being

secured and where the keys would be.                The inventory form also had

spaces for listing “items of value.” Additionally, there were spaces to list

“criminal evidence found,” the “location” where each item of such

evidence had been found, and where the evidence had been subsequently

“placed.”

      7The   vehicle was owned by Ingram’s girlfriend.
                                      52

      In the course of the inventory, Officer Eckert found a drawstring

cloth bag on the floorboard of the driver’s seat by the gas pedal. The bag

was of a size that could have contained a small gun or valuables.

Instead, it held a glass pipe and what a field test determined to be

approximately one gram of methamphetamine.           Officer Eckert wrote

down these items under “criminal evidence found.”       On the inventory

form, he also identified a “power converter” and “various tools” as “items

of value.”

      Deputy Burdt testified at the suppression hearing. His testimony

indicated the Jasper County Sheriff’s Office has “an actual manual or

policy on inventorying towed vehicles.” However, the policy itself was not

introduced into evidence. Instead, Deputy Burdt explained,

      It’s common policy—or common any time a vehicle is towed
      that we do a vehicle inventory for documentation of the
      vehicle being towed, where it’s going, what’s the contents of
      the vehicle, and where—where is it being towed to.

Notably, no evidence was presented that the sheriff’s office policy

addressed closed containers either directly or by implication.
      Furthermore, Officer Eckert of the Newton Police Department was

the one who actually performed the inventory using the police

department’s form.    Officer Eckert did not testify at the suppression

hearing. No evidence was presented at the suppression hearing as to the

Newton Police Department’s inventory search policy, let alone as to a

policy regarding closed containers.

      In Wells, the Court emphasized there had to be an actual policy on

closed containers. 495 U.S. at 4–5, 110 S. Ct. at 1635. The search there

was invalid because the policy manual that had been introduced into

evidence “fail[ed] to address the question.”   State v. Wells, 539 So. 2d

464, 469 (Fla. 1989) (discussing the contents of the policy manual that
                                       53

made “no mention of opening closed containers”); see also Wells, 495

U.S. 5, 110 S. Ct. at 1635 (indicating “absent such a policy, the instant

search was not sufficiently regulated”). 8

      The State has the burden of proving that a warrantless search falls

within a recognized exception.       State v. Watts, 801 N.W.2d 845, 850

(Iowa 2011). What the State presented here fell substantially short of the

level of proof required in Wells.        Deputy Burdt’s testimony was—if

anything—less specific than the manual provision deemed unsatisfactory

in Wells. See Wells, 539 So. 2d at 469 (noting the manual required “an

[i]nventory of all articles in the vehicle . . . such as articles of clothing,

equipment and tools” (second alteration in original)).         Deputy Burdt’s

testimony established only that the inventory covered “the contents of

the vehicle.”   This simply restates what an “inventory” is and neither

states nor implies anything about closed containers.             Moreover, the

inventory was actually conducted by an officer belonging to a different

law enforcement agency, and there was no evidence as to the policy he

followed.

      Thus, I would simply find the opening of the cloth bag as part of

the inventory search of the vehicle violated the Fourth Amendment. See

Tyler v. State, 185 So. 3d 659, 661, 663–64 (Fla. Dist. Ct. App. 2016)

(invalidating the search of a suitcase in a trunk during an inventory

search where “the state provided no evidence of the department’s

inventory policy, other than the officer’s testimony that one existed and

that the contents of the impounded vehicle were required to be

inventoried and logged for liability purposes”); Sams v. State, 71 N.E.3d


       8The Florida Supreme Court’s decision was affirmed on appeal by the United

States Supreme Court in Wells, 495 U.S. 1, 110 S. Ct. 1632.
                                      54

372, 375, 378–79, 383 (Ind. Ct. App. 2017) (overturning an inventory

search of a fast-food bag and a hamburger box where the written policy

was to “list all personal property” whereas the practice in the field was to

look for anything “valuable,” thus resulting in too much discretion); State

v. Baker, 395 P.3d 422, 428 (Kan. 2017) (“The failure to present any

evidence of standardized criteria or an established routine governing the

opening of closed containers during inventory searches is fatal to the

State’s inevitable discovery claim.”); People v. Mead, 908 N.W.2d 555,

563–64 (Mich. Ct. App. 2017) (noting the search of a backpack in a

vehicle was not justified as an inventory search because the officer

merely “testified that he searches vehicles to ‘check for valuables or any

damage to the vehicle, anything that may be in there’ ” but “offered no

further explanation of police department policies, did not explain

department policy for the search of a container, and did not explain how

his search complied with department policy”); Commonwealth v. West,

937 A.2d 516, 529 (Pa. Super. Ct. 2007) (determining an inventory

search that uncovered cocaine in a motorcycle seat was invalid because

“the suppression transcript simply [did] not contain testimony showing

the department had in place and employed a standard, reasonable policy

when searching the vehicle” and when “[t]he Commonwealth had the

burden to demonstrate the particulars of that policy and to show the

search was done in accordance therewith”); State v. Molder, 337 S.W.3d

403, 410 (Tex. Ct. App. 2011) (finding the search results should be

suppressed where the state failed to introduce the actual inventory policy

and   “Trooper   Gillum’s   concise   testimony   establishe[d]   that   [the

department of public safety] ha[d] a general policy to inventory vehicles

associated with defendants’ arrests, but the testimony relate[d] nothing
                                    55

about the scope of the policy or how it affect[ed] closed containers such

as appellee’s roped blue bag”). I would end the opinion at this point.

      II. The Majority’s Iowa Constitutional Analysis Is Flawed.

      Instead of following the foregoing path, which seems to me not in

the least difficult to follow, the majority decides to “stake out higher

constitutional ground” and “restore the balance between citizens and law

enforcement.”   As it is the end of our term, I will not debate these

broader themes with the majority.     But I will explain where I disagree

with the substance of the majority’s ruling.

      First, I do not believe the majority’s ruling will promote “stability

and finality in law.”   Instead, it will create uncertainty and unneeded

burdens.

      Take Deputy Burdt’s decision to impound the vehicle. I thought

that was an easy call in this case. The vehicle had no valid registration

and could not be legally driven. Nor could it be left where it was on the

side of the highway. However, the majority now requires that “the owner

or driver . . . have the ability to opt for alternatives other than police

impoundment that do not interfere with public safety.” So the first thing

law enforcement must do is develop a list of options and provide it to the

motorist. What options? For example, must the motorist be offered the

chance to arrange his or her own tow? Does law enforcement need to

wait around while this is happening? Suppose the motorist says, “I don’t

know what to do about the vehicle. You should check with the owner.”

What if the motorist is being arrested? What if law enforcement wants to

impound the vehicle and consult with the county attorney’s office on

whether a warrant is appropriate? What if no driver is present?

      Next, the contents of the vehicle.       The majority says the driver

should have the opportunity to retrieve items from the vehicle.          This
                                   56

means, of course, the officer must wait while items are retrieved. But

again, what if the driver is being arrested or asks to check with the

owner? Can the officer watch while items are being retrieved? If not,

what about the officer’s safety?

      Regarding closed containers, the majority indicates not only that

they may not be opened, but also that the motorist must be told they

won’t be opened “but stored for safekeeping as a unit unless the owner or

operator directs otherwise.” Does this mandatory disclaimer prevent law

enforcement from getting a warrant?

      Law enforcement needs clear rules, not elaborate, partly developed

decision trees. We should not be converting roadside stops into episodes

from Plato’s Dialogues. Respectfully, I believe the Wells standard works

better than the majority’s approach.

      Second, despite what the majority may suggest, its approach is not

supported by constitutional precedents from other states. The majority

directs us to precedents from Indiana, New Jersey, Oregon, South

Dakota, Texas, and Washington.

      In reality, three of those six states do not now limit closed

container searches when conducted pursuant to a bona fide inventory

search policy. The majority has this caselaw wrong.

      The Indiana Court of Appeals in State v. Lucas did invalidate the

search of a locked box under both the state and federal constitutions.

859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007). However, this ruling was

not based on a blanket prohibition against opening closed containers but

instead on the fact that the inventory policy was silent on the issue of

locked boxes. Id. at 1250–51. In George v. State, the court concluded

that a search of the contents of a pill bottle found in a lidless condom

box was permissible. 901 N.E.2d 590, 592, 597 (Ind. Ct. App. 2009).
                                      57

      Also, South Dakota has backed down from its earlier views on

inventory searches. Under the South Dakota Constitution, “so long as

there is a good faith, noninvestigatory inventory search conducted

pursuant to reasonable, standardized and uniform policies, it need not

be restricted to articles which are within the plain view of the officers’

vision.” State v. Flittie, 425 N.W.2d 1, 5–6 (S.D. 1988); see also State v.

Hejhal, 438 N.W.2d 820, 821–22 (S.D. 1989) (holding the inventory

search   of   the   wallet   was   conducted   according   to   “reasonable[,]

standardized[,] and uniform policies”).

      In Autran v. State, a plurality of the Texas Court of Criminal

Appeals found that the inventory search of the contents of a vehicle’s

trunk—including a box containing large sums of money and drug

residue—violated the Texas Constitution but not the Fourth Amendment.

887 S.W.2d 31, 33, 36, 42 (Tex. Crim. App. 1994) (en banc) (plurality

opinion). The plurality noted its decision was “not to say that officers

may never search a closed or locked container, only that the officers may

not rely upon the inventory exception to conduct such a warrantless

search.” Id. at 42.

      Only two years later, though, another Texas appellate court

“decline[d] . . . to follow the plurality opinion in Autran because [it did]

not believe that Autran constitutes either binding precedent or sound

law.” Hatcher v. State, 916 S.W.2d 643, 645 (Tex. Ct. App. 1996). The

court thus concluded that the state constitution does not afford greater

rights than the Fourth Amendment in this area and therefore determined

that the inventory search of the defendant’s closed container—in this

instance, her purse—did not violate her constitutional rights. Id. at 644,

646; see also Hankston v. State, 517 S.W.3d 112, 120 (Tex. Crim. App.

2017) (rejecting the reasoning of the Autran plurality and instead finding
                                   58

the court was “free to adopt the Supreme Court’s interpretation of the

Fourth Amendment, and apply it in this case, simply because it ‘makes

more sense’ ” (quoting Crittenden v. State, 899 S.W.2d 668, 673 (Tex.

Crim. App. 1995) (en banc))).

      Two other states cited by the majority appear not to forbid all

opening of closed containers but focus on the type of container. In State

v. Hite, the Oregon Court of Appeals overturned an inventory search of a

backpack, not because of a strict rule against searches of closed

containers, but because the backpack was “not designed to contain or

objectively likely to contain valuables or even dangerous items.”      338

P.3d 803, 811 (Or. Ct. App. 2014). Later, in State v. Cleland, the same

court upheld an inventory search of a black nylon case that appeared to

be designed for holding small electronics. 410 P.3d 386, 387–88 (Or. Ct.

App. 2017).

      In State v. Wisdom, the Washington Court of Appeals found that

the opening of a defendant’s shaving kit under an inventory search was a

violation of the defendant’s state constitutional rights.   349 P.3d 953,

955, 965 (Wash. Ct. App. 2015). The court’s focus, though, was on the

nature of the container and not whether it was open or closed:

      A person does not rummage through a woman’s purse,
      because of secrets obtained therein. A man’s shaving kit bag
      can be likened to a woman’s purse. The kit bag could obtain
      prescription drugs, condoms, or other items the owner
      wishes shielded from the public. The bag is intended to
      safeguard the privacy of personal effects.         Literature,
      medicines, and other things found inside a bag may reveal
      much about a person’s activities, associations, and beliefs.

Id. at 961.

      A cloth drawstring bag is the type of container that often does

contain valuables, such as jewelry or money, but usually does not

contain personal or health information.       I am not persuaded that
                                    59

Oregon—or perhaps Washington—would forbid inventorying the contents

of such a bag pursuant to an otherwise valid inventory search policy.

      This leaves New Jersey as the remaining jurisdiction discussed by

the majority.     New Jersey departs from federal precedent but uses a

balancing test under the state constitution that considers “the scope of

the search, the procedure used, and the availability of less intrusive

alternatives.” State v. Hummel, 179 A.3d 366, 373 (N.J. 2018) (quoting

State v. Mangold, 414 A.2d 1312, 1317 (N.J. 1980)). Whatever the merits

of this approach, it differs considerably from the approach taken by the

majority today.

      Nor can the majority find nourishment in pre-Wells Iowa caselaw.

State v. Roth upheld the inventory search that included the opening and

examination of the contents of a bag.     305 N.W.2d 501, 507–08 (Iowa

1981). In State v. Kuster, our court struck down the impoundment of a

vehicle that had been locked and legally parked. 353 N.W.2d 428, 432

(Iowa 1984), overruled by Huisman, 544 N.W.2d at 440. Here, however,

the vehicle was not legally parked and could not have been legally driven.

      Inventory searches are subject to abuse. Thus, it is important to

limit law enforcement discretion in this area. Everyone agrees on this

point. The relevant question, though, is how to limit that discretion. I

think Wells is a sounder approach than the majority’s.        It allows law

enforcement to develop the policy, so long as it an actual policy, rather

than having nonexpert judges develop the policy. I’ve already discussed

what I believe to be the practical flaws in the majority’s approach.

      Overall, I think the majority understates the legitimate need for

inventory searches, understates the willingness of defendants to make

false claims of missing property, and understates the potential risk to
                                           60

law enforcement of transforming vehicle impoundments into lengthy,

interactive Q-and-A sessions.

       III. Conclusion.

       I would reverse the denial of Ingram’s motion to suppress without

embarking on a novel interpretation of article I, section 8 of the Iowa

Constitution. 9

       Waterman and Zager, JJ., join this special concurrence.




        9I do not follow why the majority believes it need not reach the sufficiency of the

evidence to sustain Ingram’s conviction. In my view, the evidence of guilt was
sufficient, although as a practical matter the reversal of the ruling on the motion to
suppress may end this case.
