               IN THE SUPREME COURT OF IOWA
                            No. 68 / 06–0256

                        Filed September 12, 2008


STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER LEON CHRISTOPHER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Glenn E. Pille

(suppression ruling) and Robert J. Blink (trial), Judges.



      Defendant appeals district court decision overruling his motion to

suppress.   DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J.

Japuntich, Assistant State Appellate Defender, until withdrawal, and

then Benjamin D. Bergmann of Parrish Kruidenier Dunn Boles Gribble

Cook Parrish Gentry & Fisher, L.L.P., Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Karen Doland, Assistant

Attorney General, John P. Sarcone, County Attorney and Celene Gogerty,

Assistant County Attorney, for appellee.
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STREIT, Justice.

      An off-duty police officer observed Christopher L. Christopher

driving while barred. Five weeks later, the officer arrested Christopher

for the offense. The officer did not have a warrant. Drugs were found in

Christopher’s pockets. The district court denied Christopher’s motion to

suppress. Because neither the state nor federal constitution requires a

warrantless arrest be made with reasonable promptness after an offense
is committed in the officer’s presence, we affirm.

      I.      Facts and Prior Proceedings.

      James Butler, a Des Moines police officer, was driving home on the

evening of August 9, 2005 after moonlighting at Wal-Mart. While driving

in Des Moines, he saw the car in front of him strike the curb. Butler

caught up with the car, pulled up alongside, and recognized Christopher,

the driver.    Butler yelled through his passenger window and asked

Christopher if he was supposed to be driving. Christopher replied he had

a driver’s license and then drove off. Butler did not follow Christopher

nor did he notify the police department of his observations.

      The next day, Butler checked Christopher’s driving status and

learned he was barred from driving. Instead of filing a police report or
obtaining an arrest warrant, Butler decided he would simply arrest

Christopher the next time he saw him.

      Approximately five weeks later, on September 14, Butler was on

duty when he saw Christopher sitting on some steps in front of a house

in Des Moines.      After Butler arrested Christopher for driving while

barred, he searched Christopher and found marijuana and crack cocaine

in his pants pockets.

      Christopher was charged with two counts of possession of a

controlled substance, third offense, in violation of Iowa Code section
                                              3

124.401(5) (2005) and driving while barred as a habitual offender in

violation of Iowa Code section 321.561.               Christopher filed a motion to

suppress the drug evidence. He claimed the evidence was obtained in

violation of the United States and Iowa Constitutions.                Specifically, he

argued Butler’s failure to obtain a warrant violated due process and his

right to be free from unreasonable searches and seizures. The district

court denied Christopher’s motion.                   Thereafter, a jury convicted
Christopher on all three counts.

      Christopher appealed, claiming the district court erred by not

granting his motion to suppress.              The court of appeals affirmed.       On

further review, Christopher claims the court of appeals failed to properly

consider his rights under the Fourth Amendment and article 1, section 8

of the Iowa Constitution. We affirm.

      II.    Scope of Review.

      We review constitutional claims de novo.                 State v. Morgan, 559

N.W.2d 603, 606 (Iowa 1997).

      III.   Merits.

      The issue before us is whether Butler’s search of Christopher’s

person violated Christopher’s constitutional right to be free from
unreasonable searches and seizures. See U.S. Const. amend. IV; Iowa

Const. art. I, § 8. Because the search and seizure clause of the Iowa

Constitution        is    nearly   verbatim   to    the   language   of   the   Fourth

Amendment, cases interpreting the Fourth Amendment are persuasive—

but not binding—on our interpretation of the Iowa Constitution. State v.

Hoskins, 711 N.W.2d 720, 725 (Iowa 2006).                  We usually interpret the

scope and purpose of the Iowa Constitution’s search and seizure

provisions     to        track   with   federal    interpretations   of   the   Fourth

Amendment. State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003).
                                      4

      We begin with the rule that “[a] search conducted without a valid

search warrant is per se unreasonable unless one of the well-known

exceptions to the warrant requirement applies.” State v. McGrane, 733

N.W.2d 671, 676 (Iowa 2007). “Those exceptions include: (1) consent

search; (2) search based on probable cause and exigent circumstances;

(3) search of items in plain view; and (4) search incident to a lawful

arrest.” State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). The State
has the burden of proving by a preponderance of the evidence the

applicability of an exception.      Id. at 107–08.   Evidence obtained in

violation of the federal and state constitutional provisions against

unreasonable searches and seizures “is inadmissible, regardless of its

relevancy or probative value.” State v. McCoy, 692 N.W.2d 6, 15 (Iowa

2005).

      In the present case, the State claims Butler’s search was a valid

search incident to arrest. This exception allows a police officer “to search

a lawfully arrested individual’s person and the immediately surrounding

area without a warrant.”       United States v. O’Connell, 408 F. Supp. 2d

712, 723 (N.D. Iowa 2005).       A search incident to arrest is justified in

order to remove any weapons and to prevent the concealment or
destruction of evidence. Id.

      Christopher claims the search incident to arrest exception is not

applicable because his arrest was not lawful. See State v. Thornton, 300

N.W.2d 94, 95 (Iowa 1981) (stating “an illegal arrest will generally require

suppression of any evidence seized pursuant to the arrest”). Christopher

contends a warrantless arrest is lawful only if the officer arrests the

individual within a reasonable amount of time after the officer observes

the individual committing the offense. Because Butler had time to obtain
                                     5

an arrest warrant, Christopher claims his warrantless arrest was

unlawful.

      However, whether the police officer had time to obtain an arrest

warrant is irrelevant under the Fourth Amendment.         United States v.

Watson, 423 U.S. 411, 423–24, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598, 609

(1976). The proper inquiry is whether the officer had probable cause to

arrest:   “[a] warrantless arrest of an individual in a public place for a
felony, or a misdemeanor committed in the officer’s presence, is

consistent with the Fourth Amendment if the arrest is supported by

probable cause.” Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795,

799, 157 L. Ed. 2d 769, 774 (2003). Similarly, we have said “ ‘[p]robable

cause for a warrantless arrest is the constitutional criterion by which its

legality is measured.’ ”   State v. Harvey, 242 N.W.2d 330, 340 (Iowa

1976) (quoting Pendergrast v. United States, 416 F.2d 776, 783 (D.C. Cir.

1969)).     We have never interpreted article I, section 8 of the Iowa

Constitution to require anything more than probable cause to arrest in a

public place and decline to do so here. A reasonable time requirement

between the time the officer observed the offense and the warrantless

arrest would require a case-by-case determination.      See Watson, 423
U.S. at 423–24, 96 S. Ct. at 828, 46 L. Ed. 2d at 609. We do not find

such a determination necessary to protect the rights of the accused. The

primary purpose of an arrest “is to bring a suspect before a magistrate to

answer a charge.” United States v. Moore, 215 F.3d 681, 685 (7th Cir.

2000).    Christopher’s constitutional rights are adequately protected by

the requirement that he be taken “without unnecessary delay” to the

“nearest or most accessible magistrate.” Iowa Code § 804.22. Thus, “[i]f

there is probable cause to arrest a person, then a search of the person

arrested and the area within the person’s immediate control is lawful.”
                                     6

State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005); see also Thornton,

300 N.W.2d at 96–97 (holding arrest valid even though arrest warrant

was invalid because there was probable cause for warrantless arrest).

      Christopher does not deny the existence of probable cause to

arrest him for driving while barred. See Freeman, 705 N.W.2d at 298

(stating probable cause exists “ ‘if the totality of the circumstances as

viewed by a reasonable and prudent person would lead that person to
believe that a crime has been or is being committed and that the arrestee

committed or is committing it’ ” (quoting State v. Bumpus, 459 N.W.2d

619, 624 (Iowa 1990))).      Instead, he focuses on several state court

decisions interpreting warrantless arrest statutes to preclude any delay

between witnessing the offense and the arrest. See, e.g., Smith v. State,

87 So. 2d 917 (Miss. 1956); Oleson v. Pincock, 251 P. 23 (Utah 1926).

However, none of these cases are based on constitutional grounds.

Moreover, our own statute does not require a warrantless arrest be made

with reasonable promptness after the offense has been committed in the

officer’s presence. See Iowa Code § 804.7(1) (allowing an officer to make

an arrest with or without a warrant “[f]or a public offense committed or

attempted in the peace officer’s presence”). Under our rules of statutory
construction, we are obligated to apply the law as written. In re Name

Change of Reindl, 671 N.W.2d 466, 469 (Iowa 2003). “We may not, under

the guise of judicial construction, add modifying words to a statute or

change its terms absent ‘inadvertent clerical errors or omissions which

frustrate the obvious legislative intent.’ ” City of Asbury v. Iowa City Dev.

Bd., 723 N.W.2d 188, 197 (Iowa 2006) (quoting Schultze v. Landmark

Hotel Corp., 463 N.W.2d 47, 49 (Iowa 1990)). There is nothing to suggest

the legislature intended to restrict the authority of an officer making a

warrantless arrest to a limited time frame.
                                      7

      Christopher argues officers should not be allowed to “save up an

arrest” in order to “conduct an otherwise illegal search under the guise of

search incident to arrest.”    There is nothing in the record to suggest

Butler arrested Christopher under pretext—i.e., there is no suggestion

Butler had ulterior motives for making the arrest when he did. In any

event, whether a Fourth Amendment violation has occurred does not

turn on the officer’s actual state of mind or subjective motives. See State
v. Kubit, 627 N.W.2d 914, 918-19 (Iowa 2001) (citing Maryland v. Macon,

472 U.S. 463, 470, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985)).

Moreover, pretext is more appropriately addressed under due process.

“[I]f the government delays filing charges to intentionally ‘gain [a] tactical

advantage over the accused,’ the defendant’s due process rights under

the Fifth Amendment are implicated.”        State v. Edwards, 571 N.W.2d

497, 501 (Iowa Ct. App. 1997) (quoting State v. Trompeter, 555 N.W.2d

468, 470 (Iowa 1996)).     Christopher does not contend the government

acted intentionally to gain such tactical advantage.

      IV.   Conclusion.

      Christopher’s warrantless arrest five weeks after an off-duty police

officer observed him driving while barred did not offend the Fourth
Amendment of the United States Constitution or article I, section 8 of the

Iowa Constitution.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur except Baker, J., who takes no part.
