                IN THE SUPREME COURT OF IOWA
                                No. 11–0525

                             Filed May 11, 2012


STATE OF IOWA,

      Appellee,

vs.

JEFFREY DANA KURTH,

      Appellant.



      Appeal from the Iowa District Court for Polk County, William A.

Price, Judge.



      The defendant appeals his conviction for operating a motor vehicle

while under the influence of alcohol, arguing the district court erred in

denying his motion to suppress.         DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED.



      Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C.,

Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant

Attorney General, John P. Sarcone, County Attorney, and David M.

Porter, Assistant County Attorney, for appellee.
                                     2

MANSFIELD, Justice.

        This case presents the question whether an officer is justified in

activating his emergency lights and blocking a driver into a parking

space under the “community caretaking function” exception to the

warrant requirement of the Fourth Amendment based solely upon his

knowledge that the vehicle has just struck an object in the roadway and

suffered minor damage not affecting the drivability of the car.        We

conclude that under these circumstances, the community caretaking

exception is inapplicable, and the seizure was impermissible. For this

reason, we reverse the judgment of the district court and remand this

case.

        I. Factual Background and Procedural History.

        On November 28, 2010, at about 2:00 a.m., Officer Adam Jones

and Officer Trent Weiler of the Clive Police Department had parked their

vehicles and were talking in the lot of a grocery store near 8700 Hickman

Road in Clive. Officer Jones was working a special traffic enforcement

detail funded by the Governor’s Traffic Safety Bureau.      Officer Jones

heard a loud crash, which sounded like metal-on-metal contact, coming

from nearby on Hickman Road. He testified at the suppression hearing

that when he looked over toward the direction of the sound he saw an

Infiniti sedan approximately 50 yards away, traveling east, and

“enveloped in a cloud of dust or smoke.” The defendant, Jeremy Kurth,

was driving the vehicle.

        Believing that the vehicle might have struck a road sign, Officer

Jones proceeded after the vehicle and observed a road sign down in the

left eastbound lane of Hickman Road. He then pulled behind the vehicle,

which was stopped at a red light in the left-turn lane and waiting to turn

north onto 86th Street. Officer Jones testified that at this time he was
                                        3

still unsure whether the vehicle had knocked down the sign or if the sign

had already been down in the roadway when the vehicle struck it.

However, he also stated that Kurth’s vehicle could not have knocked the

sign down from the median because his car was at all times in its own

lane. Officer Jones further testified that at this time, traffic was light,

and no other cars were in the vicinity. The vehicle turned left onto 86th

Street, circled around a strip mall, and entered the parking lot of a

restaurant.     While Officer Jones followed the vehicle, the following

conversation took place between him and Officer Weiler over their radios:

              Officer 73 (Jones): Did he just hit a sign or something?

              Officer 78 (Weiler): Don’t know, he was just in the
      lane.

              Officer 78 (Weiler): Yeah, he did.

            Officer 73 (Jones): Well, there’s a sign down here, I
      don’t know if he knocked it down, but he hit it.

            Officer 78 (Weiler): I don’t think he hit it, I think it was
      already there, in the roadway.

              Officer 73 (Jones): 78?

              Dispatch: Go 73.

            Officer 73 (Jones): I’m still behind that guy, what do
      you think?

            Officer 78 (Weiler): I would say it’s your call depending
      on how he’s driving. He was driving down Hickman, and it
      was like he was just in his lane, then he just hit the sign
      laying there.

            Officer 73 (Jones): Copy.      Yeah, he’s going into
      Perkin’s. Westcom copy a plate traffic stop.

              Dispatch: Go ahead.

            Officer 73 (Jones): [Reading the license plate number
      aloud], he has damage to his front end from hitting the
      sign—I don’t know if he’s aware of it.

              Dispatch: 10–4.
                                     4

      Kurth pulled into a parking space at the restaurant and lawfully

parked the vehicle of his own volition; Officer Jones did not attempt to

stop the vehicle.   Officer Jones testified that he never observed Kurth

commit any traffic violations and that he had no reason to suspect that

any occupant of the vehicle (including its female passenger) was engaged

in any type of criminal activity. Officer Jones confirmed that the vehicle

was drivable at all times.

      Once the vehicle was parked, Officer Jones pulled around Kurth

and saw that the vehicle had sustained damage to the front fascia which

he characterized as not significant.      At that point he activated his

emergency lights and blocked in Kurth’s vehicle. Officer Jones testified

that from this time forward the vehicle and its occupants were not free to

go.    Officer Jones approached Kurth and proceeded to have a

conversation with him about the damage to the front of his vehicle.

According to Officer Jones, when he showed Kurth the damage, Kurth

became very upset and said he did not know how the damage had

occurred.

      During this conversation, Officer Jones detected an odor of an

alcoholic beverage, Kurth’s speech was slurred, and his eyes were glossy

and bloodshot. Kurth admitted that he was driving from a bar where he

had consumed alcohol. Kurth agreed to participate in standardized field

sobriety testing.    Three field sobriety tests indicated Kurth was

intoxicated, as did a preliminary breath test. Officer Jones placed Kurth

under arrest.   A subsequent Datamaster breath test showed a blood

alcohol content of .222%, nearly three times the legal limit.

      On January 5, 2011, the State filed a trial information charging

Kurth with operating a motor vehicle under the influence of alcohol

(OWI), a serious misdemeanor in violation of Iowa Code section 321J.2
                                    5

(2011). Kurth filed a timely motion to suppress asserting the stop of his

vehicle had been unlawful. The State resisted the motion to suppress on

the grounds that the warrantless seizure of Kurth’s vehicle was justified

under the community caretaking exception to the warrant requirement.

Following a hearing at which Officer Jones testified and the recording of

his conversation with Officer Weiler was played, the district court denied

Kurth’s motion to suppress.      The matter proceeded to trial on the

minutes of testimony the same day, and the district court found Kurth

guilty of OWI. Kurth was sentenced to one year in jail with all but two

days suspended, probation, and a fine. Kurth now appeals, urging the

district court erred in denying his motion to suppress.

      II. Standard of Review.

      Kurth argues the stop of his vehicle violated his constitutional

rights under both the Fourth Amendment to the United States

Constitution and article I, section 8 of the Iowa Constitution.        “In

considering alleged violations of constitutional rights, our standard of

review is de novo.” State v. Krogmann, 804 N.W.2d 518, 522 (Iowa 2011)

(citing State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010)). “ ‘[W]e make

an independent evaluation [based on] the totality of the circumstances as

shown by the entire record.’ ” Id. at 522–23 (quoting State v. Brooks, 760

N.W.2d 197, 204 (Iowa 2009)). “ ‘Each case must be evaluated in light of

its unique circumstances.’ ” Id. at 523.

      III. Analysis.

      Kurth challenges the warrantless stop of his vehicle. He maintains

there was no reason to believe he had violated any traffic regulation or

any other law at the time of the stop and, accordingly, his constitutional

rights were violated. The State responds that the stop of Kurth’s vehicle
                                     6

was justified under the community caretaking exception to the warrant

requirement of the Fourth Amendment.

      The community caretaking exception can be traced to the United

States Supreme Court’s decision in Cady v. Dombrowski, 413 U.S. 433,

441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714–15 (1973). That case

involved a warrantless search of the trunk of a damaged car that had

been towed from the scene of an accident to a private facility. Cady, 413

U.S. at 442–43, 93 S. Ct. at 2528–29, 37 L. Ed. 2d at 715.            Local

Wisconsin law enforcement believed that the intoxicated and comatose

driver, a Chicago police officer, was required to carry his service revolver

at all times, and they had not found the revolver on his person. Id. at

436–37, 93 S. Ct. at 2525–26, 37 L. Ed. 2d at 711–12.            Therefore,

following a standard procedure, they searched the trunk of the

impounded vehicle to protect the public from the possibility that the

revolver would fall into someone else’s hands. Id. at 443, 93 S. Ct. at

2529, 37 L. Ed. 2d at 716. During that search, local police did not find

the revolver, but obtained other evidence that was later used to convict

the driver of first-degree murder.   Id. at 434, 437, 93 S. Ct. at 2525,

2526, 37 L. Ed. 2d at 710, 712.

      The Supreme Court held the warrantless search in Cady was

lawful as a “caretaking” search based upon “concern for the safety of the

general public who might be endangered if an intruder removed a

revolver from the trunk of a vehicle.” Id. at 447, 93 S. Ct. at 2531, 37

L. Ed. 2d at 718. The Court explained that local police officers frequently

“engage in what, for want of a better term, may be described as

community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a

criminal statute.” Id. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 714–15.
                                      7

The Court concluded that searches made in the performance of

community caretaking functions do not require warrants and are subject

to “only the general standard of ‘unreasonableness’ as a guide in

determining” constitutionality. Id. at 448, 93 S. Ct. at 2531, 37 L. Ed. 2d

at 718. The Court also stated that “[t]he fact that the protection of the

public might, in the abstract, have been accomplished by ‘less intrusive’

means does not, by itself, render the search unreasonable.” Id. at 447,

93 S. Ct. at 2531, 37 L. Ed. 2d at 718 (citing Chambers v. Maroney, 399

U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970)).

       Since Cady was decided nearly forty years ago, the Supreme Court

has continued to address warrantless seizures and searches in

numerous contexts but has said relatively little to clarify the scope of the

community caretaking exception.        As one commentator has observed,

“The core of the community-caretaking doctrine . . . —where police act to

protect or assist the public—has been left with little doctrinal guidance

from   the    Supreme    Court    other   than   the   vague    command     of

reasonableness.”    Michael R. Dimino, Police Paternalism: Community

Caretaking,     Assistance       Searches,    and      Fourth    Amendment

Reasonableness, 66 Wash. & Lee L. Rev. 1485, 1490 (2009); see also

Tinius v. Carroll Cnty. Sheriff Dep’t, 321 F. Supp. 2d 1064, 1075 (N.D.

Iowa 2004) (observing that “[i]n community caretaking cases, as

elsewhere, reasonableness has a fluid quality”).         Elaboration of the

doctrine has been left to other courts, especially state courts. This latter

development is not surprising in light of the fact that community

caretaking is generally the role of local police rather than federal officers.

See Cady, 413 U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 714.

       In a number of decisions, our court has also recognized the

community caretaking function as a valid exception to the Fourth
                                     8

Amendment’s warrant requirement. See, e.g., State v. Moore, 609 N.W.2d

502, 503–04 (Iowa 2000) (holding that a park ranger properly exercised a

public safety function when he stopped the defendant’s vehicle to warn

him that his speed posed a danger to park campers even in the absence

of a criminal violation); State v. Carlson, 548 N.W.2d 138, 139–40, 143

(Iowa 1996) (holding that the warrantless entry of an officer into a home

to investigate a missing person’s report was justified under the “totality

of the circumstances” based on the related emergency aid exception

where the defendant gave conflicting stories about the disappearance of

his live-in girlfriend and had a history of domestic abuse); State v.

Mitchell, 498 N.W.2d 691, 693–94 (Iowa 1993) (holding that a trooper had

a legitimate public safety responsibility to stop defendant to inform him

of burned-out taillight even though it was not a traffic violation at the

time). As we said recently in State v. Wilkes:

             In the event evidence was obtained pursuant to a
      seizure prior to reasonable suspicion that a criminal offense
      may have been committed, the police may have acted
      properly if the seizure amounted to a “community caretaking
      activity.” Such seizures have been held not to violate the
      Fourth Amendment if the interest in community welfare
      outweighs any invasion of privacy that accompanies the
      seizure. If, however, the conduct of Wood and the reserve
      officer amounted to a seizure and their actions do not
      amount to a valid community welfare check, a violation of
      the Fourth Amendment is present and the evidence obtained
      pursuant to the unlawful conduct must be suppressed.

756 N.W.2d 838, 842 (Iowa 2008) (citations omitted).

      Our most extensive discussion of the community caretaking

exception appears in State v. Crawford, 659 N.W.2d 537 (Iowa 2003).

There we upheld a stop under that exception, finding that an officer’s

decision to pull over the defendant’s truck in the interest of public safety
                                         9

and emergency aid was justified. Crawford, 659 N.W.2d at 543–44. The

officer in that instance had received a report informing him that a man

       had taken “some pills” either before going to sleep or after
       waking up. When he awoke he was agitated and was
       “physically aggressive” to a woman in her apartment. The
       man was confused, stating that he did not know where he
       was and that he wanted the police to take him home. The
       man abruptly left in a Ford flatbed truck.

Id. at 543. The officer also knew that the man might have been driving

the truck.     Id.   Under these circumstances, we concluded that the

officer’s action “was model police conduct, deserving of commendation,

and not condemnation.” Id. (quoting Carlson, 548 N.W.2d at 143). We

also noted “that the community caretaking exception encompasses three

separate doctrines: (1) the emergency aid doctrine, (2) the automobile

impoundment/inventory doctrine, and (3) the ‘public servant’ exception

noted in Cady.” Id. at 541.

       Crawford was decided under the Fourth Amendment. Id. at 543.

In State v. Tague, on the other hand, we found a violation of article I,

section 8 of the Iowa Constitution where a 2 a.m. traffic stop was based

only on an “isolated incident of [the driver] briefly crossing an edge line of

a divided roadway.” 676 N.W.2d 197, 205–06 (Iowa 2004). 1 The State

argued that the stop was justified because of reasonable suspicion the

driver was intoxicated or, alternatively, as a community caretaking effort

to assist a potentially fatigued driver. Id. at 204. We acknowledged that

the “State charges local police officers with duties that go beyond

investigating and enforcing the criminal laws.” Id. (citing Cady, 413 U.S.

at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 714–15).                  However, we

        1Although we based our decision in Tague on the Iowa Constitution, we cited

considerable precedent under the United States Constitution. We also did not explain
how, if at all, the analysis would have differed under the Fourth Amendment. Tague,
676 N.W.2d at 204–05.
                                      10

concluded that under the totality of the circumstances the warrantless

stop of the driver could not be justified by the community caretaking

function. Id. at 205–06. We noted that many circumstances could lead

to a vehicle momentarily crossing the center line other than intoxication

or fatigue. Id. at 205.

         The United States Court of Appeals for the Eighth Circuit has also

applied the community caretaking exception in cases involving vehicle

stops.      In Winters v. Adams, a civil claim was brought alleging

unreasonable seizure and excessive use of force in violation of Fourth

Amendment rights.         254 F.3d 758, 760 (8th Cir. 2001).   The officers

there had responded to a report that an unknown person “was possibly

intoxicated and was observed exiting and reentering a vehicle that was

parked on a dead-end street” in a residential area. Id. When the officers

arrived to investigate, they observed Winters “seated behind the wheel of

a car parked in the location matching the described location of the

vehicle.”    Id.   As they approached the vehicle, Winters “raised the car

window, locked the door and stated that he wished to be left alone.” Id.

Winters appeared “agitated” and “extremely hyper.”             Id. at 761.

Thereafter, he “began moving ‘wildly’ about the car” and yelled at the

officers. Id.

         Although the officers had not observed any criminal activity, they

“began to suspect that [Winters had] ‘ingested or used some type of

illegal drug and maybe used too much and was overdosing.’ ”              Id.

Eventually, the officers broke a window to gain access to the vehicle and,

after a struggle, took Winters into custody. Id. at 761–62. The Eighth

Circuit held that the officers’ conduct in forcibly seizing Winters was

justifiable because the “ ‘officers [we]re not only permitted, but expected,

to exercise what the Supreme Court has termed “community caretaking
                                     11

functions.” ’ ” Id. at 763 (citations omitted). The court explained that the

officers “would have been derelict in their duties had they not detained”

Winters. Id. at 764 (citation and internal quotation marks omitted).

      In reaching its conclusion in Winters, the Eighth Circuit relied on

the reasoning set forth in United States v. King, 990 F.2d 1552, 1560

(10th Cir. 1993), and United States v. Rideau, 969 F.2d 1572, 1574 (5th

Cir. 1992). In King, an officer responded to the scene of a traffic accident

to find a driver in the resulting traffic jam honking incessantly. 990 F.2d

at 1555. The Tenth Circuit held that the officer was “clearly exercising

her ‘community caretaking function’ when she approached Defendants’

car during the course of her investigation” because the driver’s conduct

“created [a] specific, articulable basis for [the officer] to believe that he

might cause a second accident.” Id. at 1560–61.

      The King court elaborated:

      In the course of exercising [the community caretaking,]
      noninvestigatory function, a police officer may have occasion
      to seize a person, as the Supreme Court has defined the
      term for Fourth Amendment purposes, in order to ensure the
      safety of the public and/or the individual, regardless of any
      suspected criminal activity.

Id. at 1560. However, the court went on to note that there are limits to

an officer’s authority under the community caretaking function. Id. “[A]

person’s Fourth Amendment rights are not eviscerated simply because a

police officer may be acting in a noninvestigatory capacity . . . .” Id.

      Whether the seizure of a person by a police officer acting in
      his or her noninvestigatory capacity is reasonable depends
      on whether it is based on specific articulable facts and
      requires a reviewing court to balance the governmental
      interest in the police officer’s exercise of his or her
      “community caretaking function” and the individual’s
      interest in being free from arbitrary government interference.
                                      12

Id. (citing United States v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S. Ct.

2574, 2578, 45 L. Ed. 2d 607, 614–15 (1975); Terry v. Ohio, 392 U.S. 1,

21, 88 S. Ct. 1868, 1879–80, 20 L. Ed. 2d 889, 905–06 (1968)).

      In Rideau, the Fifth Circuit upheld the stop of a pedestrian, who

was possibly drunk, wearing dark clothing, and stumbling in the road at

night in a high-crime area, on the grounds he presented a potential

hazard to himself and others. 969 F.2d at 1573. In concluding that the

officers were justified in detaining the individual, the Fifth Circuit relied

on the ABA Standards for Criminal Justice, Standard § 1–2.2, at 31–32

(2d ed. 1980), which states that “officers must ‘aid individuals who are in

danger of physical harm,’ ‘assist those who cannot care for themselves,’

and ‘provide other services on an emergency basis.’ ” U.S. v. Rideau, 949

F.2d 718, 720 (5th Cir. 1991), reversed on other grounds by Rideau, 969

F.2d at 1575.

      In United States v. Collins, the Eighth Circuit again found that

police conduct to protect the community did not violate the Fourth

Amendment.      321 F.3d 693, 695 (8th Cir. 2003).         There, two police

officers responding to a “shots fired” call came upon a parked car in the

area where the shots had been heard. Id. at 693. The officers observed

two men slumped over in the front seat and leaned into the vehicle to

determine whether it “was a crime scene or if [anyone] had been shot.”

Id.   At that point, one officer observed a firearm and arrested the

suspect. Id. The Eighth Circuit held that under the circumstances, “it

was entirely reasonable for [an officer] to lean into the vehicle to confirm

that the men were not injured.” Id. at 695. The court explained that a

failure by the officers to find out whether one of the men was in need of

immediate aid “would have been irresponsible and, quite possibly, a

basis for civil liability had the individuals in fact been injured.” Id.
                                       13

      While the court in Collins did not explicitly state that it was relying

on the community caretaking function exception, the court’s reasoning

was based on a recognition that one of a police officer’s responsibilities is

“to respond to emergency situations.” Id. at 694–95. Furthermore, the

Eighth Circuit’s opinion acknowledged the community caretaking

function exception and cited applicable precedents under it. Id. (citing

United States v. Cervantes, 219 F.3d 882, 889 (9th Cir. 2000), overruled

by Brigham City v. Stuart, 547 U.S. 398, 403–04, 126 S. Ct. 1943, 1947–

48, 164 L. Ed. 2d 650, 657–58 (2006); United States v. Selberg, 630 F.2d

1292, 1295 (8th Cir. 1980)).

      In another Eighth Circuit case, United States v. Smith, an officer’s

conduct was again found not to violate the Fourth Amendment.             162

F.3d 1226, 1226–27 (8th Cir. 1998).           There, the officer had been

dispatched to the scene of a single car accident around midnight. Id. at

1226. When the officer arrived, the defendant “was standing beside his

car, which was partially in a ditch and partially in the roadway.”        Id.

While the defendant was retrieving the papers needed by the officer to

prepare an accident report, the officer observed a gun pouch on the floor

of the car.     Id.    The officer searched the car and seized the gun; the

defendant was then charged with being a “felon in possession of a

firearm.”     Id.     The court cited King and Cady in concluding that the

“officer lawfully approached [the defendant’s] vehicle to investigate the

traffic accident in the officer’s community caretaking capacity.”         Id.

(citing Cady, 413 U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 715;

King, 990 F.2d at 1560–61).

      Our court has employed a three-step analysis in evaluating

community caretaking cases:
                                    14
      (1) was there a seizure within the meaning of the Fourth
      Amendment?; (2) if so, was the police conduct bona fide
      community caretaker activity?; and (3) if so, did the public
      need and interest outweigh the intrusion upon the privacy of
      the citizen?

Crawford, 659 N.W.2d at 543 (citing State v. Anderson, 417 N.W.2d 411,

414 (Wis. Ct. App. 1987)).

      Every community caretaking case must be assessed according to

its own unique set of facts and circumstances because reasonableness is

not a term that can be usefully refined “in order to evolve some detailed
formula for judging cases.” Cady, 413 U.S. at 448, 93 S. Ct. at 2531, 37

L. Ed. 2d at 718; accord United States v. LaFrance, 879 F.2d 1, 6 (1st Cir.

1989) (stating that “what is reasonable in one type of situation may not

be reasonable in [an]other”). “To establish ‘reasonableness,’ the state has

the burden of ‘showing specific and articulable facts that indicate their

actions were proper.’ ” Crawford, 659 N.W.2d at 542 (quoting Carlson,

548 N.W.2d at 142).      We have previously stated that we apply an

objective standard considering “the circumstances confronting the police

officer.” Id.; see also Tague, 676 N.W.2d at 204; Carlson, 548 N.W.2d at

142; Mitchell, 498 N.W.2d at 693.

      We now turn to the three-part analysis.

      A. Seizure. “Implicit in any community caretaking case is the fact

that there has been a seizure within the meaning of the Fourth

Amendment. Otherwise there would be no need to apply a community

caretaking exception.” Crawford, 659 N.W.2d at 543. Here, once Kurth

parked his vehicle, Officer Jones pulled in behind, blocked him in, and

activated his emergency lights. Officer Jones testified that at this time

the driver was not free to go. The State does not dispute that there was a

seizure.
                                    15

      B. Bona Fide Community Caretaking Activity. Next we turn to

the question whether Officer Jones’s conduct constituted bona fide

community caretaking activity. As noted, we have previously recognized

three categories of such conduct: “(1) the emergency aid doctrine, (2) the

automobile impoundment/inventory doctrine, and (3) the ‘public servant’

exception noted in Cady.” Crawford, 659 N.W.2d at 541.

      This case did not involve an automobile impoundment or

inventory.   Therefore, only the emergency aid or the public servant

doctrine could conceivably apply.    “The two doctrines . . . are closely

related.” Id. As we noted in Crawford, assisting a motorist with a flat

tire might be an example of the public servant doctrine, whereas

“providing first aid to a person slumped over the steering wheel with a

bleeding” head gash would fall under the emergency aid doctrine. Id. at

541–42 (citation and internal quotation marks omitted).

      At the suppression hearing, Officer Jones testified that he heard a

loud crash suggesting metal-on-metal contact and saw the vehicle driven

by Kurth “enveloped in a cloud of dust or smoke.”      Believing that the

vehicle might have struck a road sign, Officer Jones proceeded after the

vehicle and noticed that a road sign was down in the left eastbound lane

of Hickman Road. However, by the time Officer Jones decided to stop the

vehicle, he and his fellow officer had concluded that the sign had been in

the road before the driver struck it. Furthermore, Officer Jones testified

that he never observed Kurth commit any traffic violations and that he

had no reason to suspect any type of criminal activity. Additionally, the

vehicle was completely drivable the entire time, and Officer Jones

described the damage to the front end of the vehicle as not significant.

By the time Officer Jones activated his emergency lights and blocked in
                                    16

Kurth’s car, Kurth had already driven the vehicle into the restaurant

parking lot without incident and lawfully parked it in a parking space.

        Upon our review, we find that Officer Jones’s decision to activate

his emergency lights and block in Kurth’s parked vehicle exceeded the

scope of bona fide community caretaking activity. We have previously

emphasized that actions under that exception “ ‘must be limited to the

justification thereof, and the officer may not do more than is reasonably

necessary to determine whether a person is in need of assistance, and to

provide that assistance.’ ” Id. at 542–43 (quoting Carlson, 548 N.W.2d at

142).

        While Officer Jones might have been justified in stopping Kurth’s

moving vehicle immediately after the incident to advise him that he had

struck a road sign and needed to inspect his car for damage, that is not

what happened here. See Mitchell, 498 N.W.2d at 694 (holding that an

officer was justified in stopping a vehicle under the community

caretaking exception to advise the driver that his taillight was out); see

also State v. Harrison, 533 P.2d 1143, 1144 (Ariz. 1975) (holding a state

patrol officer could properly stop a vehicle in the exercise of his public

safety duties when the vehicle was weaving somewhat on the highway

and the left rear tire was “bouncing”); State v. Fuller, 556 A.2d 224, 224

(Me. 1989) (upholding a stop of a moving motor vehicle to advise the

driver “to fix the headlights before getting stranded in the dark” where

the vehicle approached the officer with its headlights blinking on and off,

and the officer “reasonably suspected that [the defendant] may have been

in trouble”).

        Rather, after Kurth had already parked his drivable vehicle, and

after Officer Jones had ascertained that the damage was not significant,

Officer Jones activated his emergency lights and blocked him in.          We
                                         17

believe the detention of Kurth, his passenger, and his vehicle at that

point exceeded the scope of reasonably necessary community caretaking

activity. Even if the officer wanted to tell Kurth to examine his parked

vehicle for damage, it was not necessary to block in the vehicle to do so.

All he needed to do was to park next to him and approach him. Compare

United States v. Gross, 662 F.3d 393, 396, 401 (6th Cir. 2011) (holding

that the community caretaking exception did not justify an officer’s

decision to park his squad car directly behind a legally parked vehicle

and activate his spotlights when that car was in the parking lot of a

housing complex, with the engine running, no apparent driver, and a

barely-visible individual slumped down in the passenger seat, and

further noting that “any purported community-caretaking function in

this instance could have been accomplished through a consensual

encounter rather than an investigative stop”), with Crawford, 659 N.W.2d

at 543 (upholding a stop after noting that the officer “did no more than

was reasonably necessary”). 2

       The absence of sufficient facts to support the detention of Kurth

and his vehicle is further demonstrated by Officer Weiler’s recorded

advice to Officer Jones. Officer Weiler told Officer Jones he should make
the call on whether to initiate a traffic stop depending on how Kurth was

driving: “[I]t’s your call depending on how he’s driving.” But Kurth was

driving appropriately. It thus appears that Officer Weiler did not perceive

any danger to public safety.         Additionally, according to the recording,

         2The Supreme Court said in Cady, “The fact that the protection of the public

might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by
itself, render the search unreasonable.” 413 U.S. at 447, 93 S. Ct. at 2531, 37 L. Ed.
2d at 718. However, this is not the same as saying that less intrusive alternatives are
irrelevant. In Cady, the only alternative that was mentioned would have required “the
posting of a police guard during the night”—i.e., something that was costly and
impractical. Id. Here the State does not dispute that Officer Jones could have just as
effectively approached Kurth’s vehicle without seizing it.
                                             18

Officer Jones called in the license plate on Kurth’s vehicle before making

the stop. That action seems inconsistent with a public safety purpose

but is certainly consistent with an investigative purpose.

       The State argues that the officers’ subjective intent was irrelevant,

i.e., that it matters not whether their motive for stopping Kurth was to

check on whether he had been drinking rather than to see if he needed

their help. However, these officers’ perceptions as to the possible need

for a stop as reflected in their radio communications are certainly

evidence of what a reasonable officer would have thought was

necessary. 3

       3We    have previously maintained that the availability of the community
caretaking exception “requires an objective analysis of the circumstances confronting
the police officer.” Crawford, 659 N.W.2d at 542; see also Tague, 676 N.W.2d at 204
(referring to “an objective standard”); Carlson, 548 N.W.2d at 141–42 (stating that “the
subjective part of the analysis should now be abandoned when applying the emergency-
aid doctrine” and that reasonableness should be tested “only on the basis of the
objective circumstances”). At first glance, the term “bona fide” could be read as
implying that law enforcement must have made the stop or seizure for actual
community caretaking purposes. Indeed, the Wisconsin case from which we borrowed
that term indicates that a stop will not be sustained under the community caretaking
exception if the alleged community caretaking function was a “subterfuge.” Anderson,
417 N.W.2d at 414. In Cady, the Supreme Court apparently deemed it significant that
protection of the community was the actual motive for the police officer’s actions. 413
U.S. at 443, 93 S. Ct. at 2528, 37 L. Ed. 2d at 716 (noting “the findings with respect to
Officer Weiss’ specific motivation and the fact that the procedure he followed was
‘standard’ ”). As one commentator has pointed out, there is some logic to applying a
purely objective test when the issue is whether probable cause or reasonable suspicion
exists to believe a crime has been committed, but not when the community caretaking
exception is involved. Mary Elisabeth Naumann, The Community Caretaking Doctrine:
Yet Another Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 359–60 (1999). In
the former instance, the probable cause (or reasonable suspicion) itself is the legal
justification for the officer’s actions, so the subjective motivation of the officer is
irrelevant. Id. However, in the latter example, it is the officer’s activity (i.e., his or her
engagement in community caretaking) that justifies the actions, so it may be
appropriate to require both objective reasonableness and subjective good faith. Id. at
365. One can also argue that a subjective good faith component is needed to keep the
community caretaking exception within its own confines and prevent it from becoming a
way to expand other types of warrantless searches and seizures. After all, the Supreme
Court suggested in Cady that legitimate community caretaking activity should be
“totally divorced from the detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute.” 413 U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at
715.      However, subsequent Supreme Court precedent has clarified that the
                                            19

       In sum, even based upon a purely objective appraisal of the

evidence, we cannot sustain Officer Jones’s seizure of Kurth after Kurth

parked his car as “bona fide community caretaking activity” within the

meaning of our precedents.

       C. Balancing. Because we have concluded that the detention of

Kurth and his vehicle does not qualify as community caretaking activity,

we are not required to reach the third prong of this analysis, that is, to

consider whether “the public need and interest outweigh the intrusion

upon the privacy of the citizen.”                Crawford, 659 N.W.2d at 543.

Nonetheless, we believe some discussion of this element would be

appropriate.

       We agree with the State that the intrusion upon Kurth’s privacy

was somewhat diminished because he was not being pulled over; his

vehicle was already at a standstill. Nonetheless, the fundamental point

remains that it was a seizure. And for reasons already discussed, the

State’s public safety concern based on the damage to Kurth’s vehicle

seems marginal at best.             The car was drivable; Officer Jones had

inspected the front of the car and determined the damage was “not

significant”; and Kurth, having parked at a restaurant, was in a position

to address that damage.              Assuming that Kurth needed a friendly
____________________________
constitutional reasonableness of a traffic stop or an emergency aid entry does not
depend on the actual motivations of the individual officers involved. See, e.g., Brigham
City v. Stuart, 547 U.S. 398, 404–05, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658–59
(2006) (noting, however, that an inquiry into programmatic purpose is sometimes
appropriate); Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135
L. Ed. 2d 89, 98 (1996); cf. City of Ontario v. Quon, __ U.S. __, __, 130 S. Ct. 2619, 2623,
177 L. Ed. 2d 216, 220 (2010) (finding a warrantless search of a public employee’s
pager to be reasonable because it was “motivated by a legitimate work-related purpose”
and “was not excessive in scope”). In light of the United States Supreme Court’s
precedents, and our own, we reiterate that the relevant test for determining whether the
community caretaking exception applies is an objective one based on the information
available at the time of the stop and does not depend upon the subjective motivations of
the individual officers involved.
                                          20

reminder to take a look at the front end of his vehicle, this could have

been provided without activating the patrol car’s emergency lights and

blocking    him    in.     A   balancing       of   public   interest   and    privacy

considerations does not favor the State. 4

       We acknowledge some similarities between the present case and

People v. Laake, 809 N.E.2d 769 (Ill. App. Ct. 2004), where a driving-

under-the-influence arrest and subsequent conviction were upheld.

There, a sheriff’s deputy, who had received a report of a possible

intoxicated driver, came upon a vehicle parked on the side of the road

around 3 a.m. with its brake lights on. Laake, 809 N.E.2d at 770–71.

The deputy pulled in behind the vehicle and activated his patrol car’s

overhead emergency lights, later testifying that his purpose in stopping

behind the vehicle was to check on the welfare of its driver and that the

lights were activated “as a precaution to alert other motorists of his

squad car” in an area that was not well lighted. Id. at 771. It turned out

that the motorist had a flat tire and was intoxicated, although neither

fact was previously known to the deputy.                     Id.   Also, the court

acknowledged that once the emergency lights were activated, “a

reasonable person in [the defendant’s position] would have felt compelled

to stay put.” Id. at 772. Nonetheless, after accepting the trial judge’s

finding that the deputy’s purpose was to check on the driver’s welfare

and not to conduct an investigation, the appellate court found the



        4The United States Supreme Court has cautioned in a somewhat different

context that “the balancing of interests must be conducted with an eye to the generality
of cases.” Wyoming v. Houghton, 526 U.S. 295, 305, 119 S. Ct. 1297, 1303, 143 L. Ed.
2d 408, 418 (1999). But even viewed from a broader perspective, this case involves a
seizure of the driver of a parked car based on the fact that the vehicle had sustained
limited property damage with no indications of improper (or even unusual) driving. The
State cites no example to us of a seizure in comparable circumstances being upheld
under the community caretaking exception.
                                     21

community caretaking exception applicable and sustained what it viewed

as a “technical detention.” Id. at 773.
      We think Laake is distinguishable, although the differences are not
great. Here, Kurth was not on the shoulder of the road, but in the safer
territory of a parking lot of an open restaurant.   Also, here the officer
could not and did not argue that he activated his emergency lights for his
own protection; this was an actual seizure, not merely a “technical” one.
While the officer here had specific knowledge that Kurth had hit a sign
that had fallen into the road, he also had specific knowledge that the
damage was “not significant” and that the car remained drivable.       Cf.
State v. Montgomery, Nos. A–0705–06T4, A–1926–06T4, 2009 WL
2365336, *3 (N.J. Super. Ct. App. Div. August 3, 2009) (holding that an
officer who had received a report about a disabled van and then stopped
that van when he saw it start moving could not rely on the community
caretaking exception, despite his claim that “it is not uncommon for a
vehicle to break down again after it has malfunctioned”); State v.
DeArman, 774 P.2d 1247, 1249–50 (Wash. Ct. App. 1989) (rejecting
community caretaking grounds for a stop where the vehicle initially
stopped for 45–60 seconds at a stop sign but then moved forward and
further noting that the officer “himself testified that he realized the
vehicle was not disabled but proceeded with the stop because he had
become ‘suspicious’ ”).
      Finally, because we have concluded that Officer Jones’s conduct
violated Kurth’s rights under the Fourth Amendment to the United States
Constitution, it is unnecessary for us to reach Kurth’s arguments under
article I, section 8 of the Iowa Constitution.
                                  22

     IV. Conclusion.
     For the reasons stated, we reverse the denial of Kurth’s motion to
suppress as well his conviction and sentence and remand for further
proceedings.
     DISTRICT     COURT      JUDGMENT        REVERSED       AND     CASE
REMANDED.
     All justices concur except Appel, J., who concurs specially.
                                    23

                                                  #11–0525, State v. Kurth

APPEL, Justice (concurring specially).

      The result in this case is based solely on the Fourth Amendment to

the United States Constitution. It is not based upon article I, section 8 of

the Iowa Constitution.       The sole reliance on federal law is not

unreasonable because, as is demonstrated by the majority opinion, there

is a large body of federal law that provides a clear path to deciding this

case. When a party raises both federal and state constitutional issues,

we have held that this court has the discretion to proceed first with

either the federal or state issue. See State v. Pals, 805 N.W.2d 767, 772

(Iowa 2011); State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010).

      I note, however, the community caretaking exception embraced by

a majority of the United States Supreme Court in Cady v. Dombrowski,

413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), is an amorphous

doctrine. When the term “reasonable” is coupled with a balancing test to

determine the scope of the exception, there is little basis for principled

decision making and a substantial risk that the exception may engulf

search and seizure law. See New Jersey v. T.L.O., 469 U.S. 325, 370,

105 S. Ct. 733, 757–58, 83 L. Ed. 2d 720, 753 (1985) (Brennan, J.,

dissenting) (noting that the Court has an obligation to provide a

framework to resolve cases beyond conclusory recitation of the results of

a balancing test); United States v. Rabinowitz, 339 U.S. 56, 83, 70 S. Ct.

430, 443, 94 L. Ed. 653, 669 (1950) (Frankfurter, J., dissenting) (“It is no

criterion of reason to say that the district court must find [a search]

reasonable.”), overruled on other grounds by Chimel v. California, 395

U.S. 752, 768, 89 S. Ct. 2034, 2042–43, 23 L. Ed. 2d 685, 696–97

(1969).
                                    24

      It has been suggested that, in light of the risk of abuse inherent in

the community caretaking exception, the exclusionary rule should apply

to evidence seized that is unrelated to the community caretaking purpose

of the stop. See Michael R. Dimino, Sr., Police Paternalism: Community

Caretaking,    Assistance     Searches,     and     Fourth     Amendment

Reasonableness, 66 Wash. & Lee L. Rev. 1485, 1557–58 (2009) (citing 5

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 10.1(c), at 20 n.67 (4th ed. 2004)). At least one court in

Utah has adopted a slightly different approach, namely, that in

nonemergency community caretaking searches, the exclusionary rule

would apply. Provo City v. Warden, 844 P.2d 360, 364 (Utah Ct. App.

1992), aff’d 875 P.2d 557 (Utah 1994). We are, however, not required

today to decide any questions that may be posed regarding the existence

of or scope of any community caretaking exception under article I,

section 8 of the Iowa Constitution.         We decide only the federal

constitutional question under the Fourth Amendment.

      Nothing in the majority opinion should be misconstrued to suggest

that we have affirmatively adopted the federal framework as the proper

search and seizure framework under the Iowa Constitution in all cases.

In State v. Tague, 676 N.W.2d 197, 205–06 (2004), this court, as

correctly noted by the majority, cited Fourth Amendment cases in

resolving a case involving “community caretaking” under the Iowa

Constitution, article I, section 8. The parties in Tague, however, did not

suggest that the Iowa constitutional provision required a standard

different than the federal approach. Indeed, the parties did not cite the

Iowa Constitution.     When the parties do not advocate a different

standard under the Iowa Constitution, we ordinarily adopt the federal

standard, but reserve the right to apply it in a different manner, or “with
                                    25

teeth.” See State v. Oliver, 812 N.W.2d 636, 649–50 (Iowa 2012) (citing

with approval State v. Breugger, 773 N.W.2d 862, 880, 883 (Iowa 2009));

Pals, 805 N.W.2d at 771–72; Racing Ass’n of Cent. Iowa v. Fitzgerald, 675

N.W.2d 1, 6–7 (Iowa 2004). Of course, when the parties suggest that we

depart from the federal approach to search and seizure issues under the

Iowa Constitution, we are free to do so.     Ochoa, 792 N.W.2d at 291

(rejecting under article I, section 8 of the Iowa Constitution the approach

of Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d

250 (2006), which authorized suspicionless searches of homes of

parolees under the Fourth Amendment); State v. Cline, 617 N.W.2d 277,

292 (Iowa 2000) (rejecting under article I, section 8 of the Iowa

Constitution the holding of United States v. Leon, 468 U.S. 897, 104 S.

Ct. 3405, 82 L. Ed. 2d 677 (1984), which recognized a good faith

exception to the exclusionary rule under the Fourth Amendment),

overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 & n.2

(Iowa 2001).     Indeed, we “jealously” guard our right to take an

independent approach under the provisions of the Iowa Constitution.

Zaber v. City of Dubuque, 789 N.W.2d 634, 654 (Iowa 2010); State v.

Hoskins, 711 N.W.2d 720, 725 (Iowa 2006).

      Under the circumstances of Tague, where the parties did not

advocate an independent standard, we cited cases using the federal

standard under our state constitution not to make a deliberate choice

between Fourth Amendment and other potential state constitutional

approaches but because of the limited advocacy of the parties. See In re

Det. of Hennings, 744 N.W.2d 333, 338–39 (Iowa 2008) (declining to

consider substantive independent state standards when parties did not

suggest how state standard should be different from federal model).

Whether we would develop different doctrine under the Iowa Constitution
                                 26

for the community caretaking exception when presented with a

persuasive argument is an open question that has not been addressed by

the court.
