               IN THE SUPREME COURT OF IOWA
                               No. 08–0412

                        Filed December 17, 2010


STATE OF IOWA,

      Appellant,

vs.

JAMES MAXIMILIANO OCHOA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Christine

Dalton Ploof, District Associate Judge.



      State appeals district court order suppressing evidence obtained

during a warrantless, suspicionless search of a parolee. DECISION OF

THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

AFFIRMED.


      Thomas J. Miller, Attorney General, Mary E. Tabor (until

withdrawal), Cristen O. Douglass (until withdrawal), and then Thomas S.

Tauber, Assistant Attorneys General, Karla J. Baumler, Student Legal

Extern, Michael J. Walton, County Attorney, and Alan R. Havercamp,

Assistant County Attorney, for appellant.



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

Japuntich, Assistant Appellate Defender, for appellee.
                                    2

APPEL, Justice.

      In this case, we are called upon to determine the extent to which

persons on parole are entitled to constitutional protections against

unreasonable searches and seizures under the Iowa Constitution. Here,

a police officer conducted a warrantless, suspicionless search of a

parolee’s motel room. The police officer conducting the search believed

that standard “search condition” language in Iowa parole agreements

authorized law enforcement officials to search the residence of a parolee

at any time and for any reason.     After the warrantless, suspicionless

search produced drugs and drug paraphernalia, the parolee was arrested

and charged with various drug-related crimes. The district court granted

the parolee’s motion to suppress the evidence. On discretionary review,

the court of appeals reversed.    For the reasons expressed below, we

vacate the decision of the court of appeals and affirm the judgment of the

district court.

      I. Factual and Procedural History.

      Bettendorf police officer Jereme Hatler was conducting a routine

business check at The Traveler, a motel located in a high-crime area in

Bettendorf, Iowa. Hatler learned from the desk clerk that the defendant

James Ochoa was staying in room 32.        After conducting a computer

check, Hatler determined that Ochoa was on parole arising from his

conviction for conspiracy to commit a forcible felony. Hatler understood

that persons on parole in Iowa were required to agree to be subject to

search at any time, for any reason. Operating on this understanding,

Hatler called Ochoa’s room and asked Ochoa to step out. After a brief

conversation, Hatler patted down Ochoa and asked if he could search

Ochoa’s motel room. According to Hatler:
                                    3
      [Ochoa] initially said no and so I went ahead and patted him
      down and asked him if I could go ahead and search the room
      and he kind of—he said to me, well, you’re going to anyway
      and I said, yes, I am and I proceeded to.

      Hatler then entered the room and discovered a crack pipe, drug

paraphernalia, a rocklike substance testing positive for cocaine, and

prescription drugs not prescribed for Ochoa.

      The State charged Ochoa with possession of a controlled substance

and unlawful possession of a prescription drug. Ochoa filed a motion to

suppress the evidence found in his motel room on both state and federal
constitutional grounds. At the hearing on the motion to suppress, Hatler

testified that he had no particular reason or cause for suspicion that

illegal activity was occurring at the motel other than its location in a

high-crime neighborhood, he had no particularized suspicion of unlawful

activity with regard to Ochoa or room 32, and he would not have

conducted the search “had we not been given the training we were given”

(indicating that a parolee was subject to search at any time for any
reason).

      The State also introduced into evidence Ochoa’s parole agreement.

The parole agreement warned that “[f]ailure to comply with the terms and

conditions may result in the revocation of your parole.”       The parole

agreement then stated that “[t]he following are the standard terms and

conditions that you agree to comply with while you are on parole.” Listed

as a standard term and condition of parole was:
      I will submit my person, property, place of residence, vehicle,
      personal effects to search at any time, with or without a
      search warrant, warrant of arrest or reasonable cause by any
      parole officer or law enforcement officer.

      The following colloquy thereafter occurred between the court and

counsel for the State:
                                    4
             Q: [W]hen I read these parole agreements, it doesn’t
      take away his right to refuse, but he’s being put on notice if
      he refuses a search or refuses to consent to a search, it
      could be a parole violation. Is that how you are reading it or
      am I way off the mark to read it that way? A: No, that’s
      right.
             Q: And you’re arguing he consented, if that is true, or
      do you believe that he did consent in this situation?
      Because if I go in that direction, that answer is going to be
      important to me. I’m not asking for further argument, I am
      just asking the question. A: I think when faced with the
      realization that the officer knew the contents of the parole
      agreement, that he did not refuse or protest either the search
      of his person or his room.

      The district court granted Ochoa’s motion to suppress. The court

observed that the search was based on an inaccurate understanding of

the parole agreement and its relationship to constitutional protections

against unreasonable searches and seizures. As conceded by the State,

the district court stated that the parole agreement did not amount to a

broad blanket waiver of constitutional rights but instead only a condition

that, if violated, could give rise to a parole violation.              While

acknowledging recent United States Supreme Court Fourth Amendment

cases allowing warrantless searches of parolees and probationers, the

district court distinguished these cases because they involved reasonable

suspicion or a statute that explicitly curtailed a parolee’s Fourth

Amendment rights. See Samson v. California, 547 U.S. 843, 126 S. Ct.

2193, 165 L. Ed. 2d 250 (2006) (permitting warrantless searches of

parolees); United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151

L. Ed. 2d 497 (2001) (permitting warrantless searches of probationers).

Instead, the district court relied upon this court’s decision in State v.

Cullison, 173 N.W.2d 533, 538–39 (Iowa 1970), which held that a parolee

did not surrender his Fourth Amendment rights by virtue of his status as
                                       5

a parolee.      The district court further found that Ochoa had not

voluntarily consented to the search.

         This court granted the State’s application for interlocutory appeal

and transferred the case to the court of appeals. On appeal, the State

did not contend that Ochoa consented to the search at the doorway of his

motel room. Instead, the State shifted positions and asserted that Ochoa

consented in advance to the search by executing the parole agreement, a

position abandoned by the State at the suppression hearing.

         The court of appeals reversed the district court. Citing Samson,

the court of appeals noted that parolees generally have a lower

expectation of privacy than members of society at large.          The court

further emphasized that by signing his parole agreement, Ochoa was

aware of his diminished Fourth Amendment protections. The court of

appeals further held that in signing the parole agreement, Ochoa

consented to the search. We granted further review and now vacate the

decision of the court of appeals and affirm the judgment of the district

court.

         II. Standard of Review.

         Because the motion to suppress was based on a deprivation of the

defendant’s constitutional right against unlawful searches, this court’s

review is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002). In

conducting the de novo review, the court “make[s] an independent

evaluation [based on] the totality of the circumstances as shown by the

entire record.” State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).

     III. Relationship Between Federal and State Search and
Seizure Law.
         As the United States Supreme Court has emphasized, “It is

fundamental that state courts be left free and unfettered by us in
                                             6

interpreting their state constitutions.” Minnesota v. Nat’l Tea Co., 309

U.S. 551, 557, 60 S. Ct. 676, 679, 84 L. Ed. 920, 924 (1940).                          The

independence of state courts in interpreting their own state constitutions

in a fashion different than federal law has taken a firm root in state

courts generally. 1 See, e.g., State v. Lowry, 667 P.2d 996, 999–1001 (Or.

1983); Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa. Super. Ct.

1998); State v. Jewett, 500 A.2d 233, 238–39 (Vt. 1985). In addition to

the growing body of state court opinions, there is a large body of

literature exploring independent approaches employed by state courts to

constitutional provisions that includes a vast number of law review

articles 2 and a number of treatises and monographs. 3



       1The    power to independently interpret state constitutional provisions extends to
those provisions identical to the federal model. See, e.g., Wallace v. State, 905 N.E.2d
371, 378 (Ind. 2009) (explaining that its state constitution has “unique vitality, even
where its words parallel federal language”); State v. McClendon, 517 S.E.2d 128, 132
(N.C. 1999) (noting that a state court is not bound by federal precedent even when
construing an identical provision in state constitution); State v. Oliveira, 961 A.2d 299,
308 n.12 (R.I. 2008) (stating that states are free to impose greater restrictions to protect
its citizens, even though language is similar).
       2There  have been numerous law review symposia relating to the development of
state constitutional law.      See generally Symposium, Emerging Issues in State
Constitutional Law, 73 Temp. L. Rev. 905 (2000); Robert F. Williams, Twentieth Annual
Issue on State Constitutional Law, 39 Rutgers L.J. 799 (2008). A significant number of
distinguished state supreme court justices have written law review articles on the topic.
See generally Shirley S. Abrahamson, Reincarnation of State Courts, 36 Sw. L.J. 951
(1982); Joseph R. Grodin, Some Reflections on State Constitutions, 15 Hastings Const.
L.Q. 391 (1988); Judith S. Kaye, Contributions of State Constitutional Law to the Third
Century of American Federalism, 13 Vt. L. Rev. 49 (1988); Hans A. Linde, E Pluribus—
Constitutional Theory and State Courts, 18 Ga. L. Rev. 165 (1984); Stewart G. Pollock,
State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L. Rev. 707
(1983); Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on
Federal Constitutional Issues When Disposing of Cases on State Constitutional Grounds,
63 Tex. L. Rev. 1025 (1985).
       3See  generally Jennifer Friesen, State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses (3d ed. 2000); James A. Gardner, Interpreting State
Constitutions: A Jurisprudence of Function in a Federal System (2005); Robert A.
Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights (2009);
Robert F. Williams, The Law of American State Constitutions (2009).
                                    7

      Although many state constitutions have search and seizure

language that is virtually identical to the Fourth Amendment, the

movement toward independent state constitutional adjudication has had

dramatic impact on the law of search and seizure. As of 2007, at least

thirty-three state supreme courts have found greater protections for

individual rights in the search and seizure context under state

constitutional provisions than under the Fourth Amendment, and an

additional seven states recognize their power to do so. See Michael J.

Gorman, Survey: State Search and Seizure Analogs, 77 Miss. L.J. 417,

418–64 (2007); see also 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, 393–412 (2006).

      This court has to date generally developed a body of independent

state constitutional law in the search and seizure area slowly and

cautiously. In some cases, the court has simply treated the claim as a

“search and seizure” claim without identifying whether an argument has

been presented under the Fourth Amendment or article I, section 8. See,

e.g., State v. Blackman, 346 N.W.2d 12, 14–15 (Iowa 1984); State v.

Luloff, 325 N.W.2d 103, 105–06 (Iowa 1982). In other cases, it appears

that the parties raised only a Fourth Amendment claim and not a claim

under the Iowa Constitution. See, e.g., State v. Washburne, 574 N.W.2d

261, 267 (Iowa 1997); State v. Folkens, 281 N.W.2d 1, 3 (Iowa 1979);

State v. King, 191 N.W.2d 650, 654–57 (Iowa 1971). In addition, there

are cases where search and seizure claims are made, but the court does

not   engage   in   any   independent   analysis   of   the   parallel   state

constitutional provision, perhaps because the parties did not make an

independent argument under the state constitution. See, e.g., State v.
                                            8

Howard, 509 N.W.2d 764, 766–68 (Iowa 1993); State v. Keehner, 425

N.W.2d 41, 42–45 (Iowa 1988).

       There are a few cases that directly deal with the relationship

between the state and federal constitutional provisions.                     Relying on

contract cases dating back to the 1930s, we stated that the Fourth

Amendment and article I, section 8 are “identical in scope, import, and

purpose” and that           “ ‘[w]e have an        interest in harmonizing our

constitutional decisions . . . when reasonably possible.’ ” State v. Groff,

323 N.W.2d 204, 207–08 (Iowa 1982) (quoting State v. Olsen, 293 N.W.2d

216, 219–20 (Iowa 1980)).           We have also stated that decisions of the

United States Supreme Court are entitled to “special respect.” State v.

Davis, 304 N.W.2d 432, 434 (Iowa 1981). In 1985, we declared that “our

interpretation of article I, section 8 has quite consistently tracked with

prevailing federal interpretations” in deciding search and seizure issues.

Kain v. State, 378 N.W.2d 900, 902 (Iowa 1985); accord State v.

Showalter, 427 N.W.2d 166, 168 (Iowa 1988).

       Cumulatively, these older cases embrace what has been called a

“lockstep” approach to interpretation of state constitutional provisions.

See Robert F. Williams, A “Row of Shadows”: Pennsylvania’s Misguided

Lockstep Approach to Its State Constitutional Equality Doctrine, 3 Widener

J. Pub. L. 343, 344–48 (1993).            Under the lockstep approach, a state

court adopts prevailing federal authority in its interpretation of parallel

state constitutional provisions, even though theoretically recognizing

their independent nature. 4

       4Advocates of lockstep argue that it has the virtue of clarity because it eliminates

the prospect that state constitutional law is different than federal constitutional law.
See Paul S. Hudnut, State Constitutions and Individual Rights: The Case for Judicial
Restraint, 63 Denv. U. L. Rev. 85, 90–98 (1985). The benefit of uniformity, however, has
been sharply questioned. See Akhil Reed Amar, A Neo-Federalist View of Article III:
Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 220–21 (1985)
                                           9

       The lockstep approach has resulted in instances of whipsawing

where this court was in the awkward position of reversing recent

precedent in response to Supreme Court cases. For example, in Groff we

reversed prior precedent involving good faith mistakes in affidavits

supporting search warrants in light of the subsequent Supreme Court

decision in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.

2d 667 (1978). Groff, 323 N.W.2d at 207–08. The only intervening event

that affected the reasoning of prior precedent was the Franks opinion.

Similarly, in State v. Baych, 169 N.W.2d 578 (Iowa 1969), we held that

the State had the burden of showing consent in search and seizure cases

by “clear and convincing” evidence. Baych, 169 N.W.2d at 583, overruled

on other grounds by State v. Erickson, 362 N.W.2d 528, 530 (Iowa 1985).

We sub silentio reversed our position in Bettuo v. Pelton, 260 N.W.2d 423,

425 (Iowa 1977), in light of the Supreme Court’s intervening footnote in

United States v. Matlock, 415 U.S. 164, 177 n.14, 94 S. Ct. 988, 996

n.14, 39 L. Ed. 2d 242, 253 n.14 (1974).

       The lockstep approach has not been universally accepted, even in

its heyday. For instance, in State v. Roth, 305 N.W.2d 501, 508–11 (Iowa

1981) (McCormick, J., dissenting), the dissent urged that the court

depart from South Dakota v. Opperman, 428 U.S. 364, 375–76, 96 S. Ct.

3092, 3100, 49 L. Ed. 2d 1000, 1009 (1976), a case where the United

States Supreme Court allowed the warrantless search of a closed paper

bag as part of an inventory search of a car.                Noting that the South

Dakota Supreme Court on remand departed from the Supreme Court

__________________________
(noting that it is not at all clear that uniformity is a value inherent in constitutional
structure); Ronald K.L. Collins, Foreword: The Once ‘New Judicial Federalism’ and Its
Critics, 64 Wash. L. Rev. 5, 15–17 (1989) (arguing that independent state constitutional
rules are no different than different definitions of crimes or different state procedural
rules).
                                      10

under its state constitution, the minority emphasized that Iowa had a

proud tradition of concern for individual rights and that this court

“should not be reluctant to show greater sensitivity to the rights of

Iowans under our constitution than the Supreme Court accords to their

rights under the Federal Constitution.” Roth, 305 N.W.2d at 510–11.

      More     recently,   however,   we   have   tended    to   emphasize

independence from the federal model. In particular, in State v. Cline, 617

N.W.2d 277 (Iowa 2000), we rejected the good faith exception to the

exclusionary rule that had been adopted by the United States Supreme

Court. Cline, 617 N.W.2d at 293, abrogated on other grounds by State v.

Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). In Cline, we cited past

cases suggesting that interpretations of state constitutional law should

be consistent with federal law when possible, but we emphasized that “if

precedent is to have any value it must be based on a convincing

rationale.”   Id. at 285 (quoting State v. James, 393 N.W.2d 465, 472

(Iowa 1986) (Lavorato, J., dissenting)). We further stated that the court

would “abdicate its constitutional role in state government were it to

blindly follow federal precedent on an issue of state constitutional law.”

Id. We have subsequently emphasized that while we recognize opinions

of the United States Supreme Court as “persuasive,” we “jealously”

protect our authority to follow our own independent approach. See Zaber

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

711 N.W.2d 720, 725 (Iowa 2006). This Iowa case law shows a slow but

perceptible shift away from a lockstep or lockstep-lite approach toward a

greater recognition of the independent nature of our state constitutional

provisions.

      There is of course little doubt that, in light of the nearly identical

language in article I, section 8 and the Fourth Amendment, they were
                                          11

generally designed with the same scope, import, and purpose. See, e.g.,

Kreps, 650 N.W.2d at 640–41. But this generality does nothing to aid us

in resolving concrete cases. Further, we agree with the commentators

and developing case law in other states that a state supreme court

cannot delegate to any other court the power to engage in authoritative

constitutional interpretation under the state constitution. See Dorothy

T. Beasley, The Georgia Bill of Rights: Dead or Alive?, 34 Emory L.J. 341,

415–19 (1985); Robert A. Schapiro, Identity and Interpretation in State

Constitutional Law, 84 Va. L. Rev. 389, 391–96 (1998).

       In order to resolve any inconsistency in our prior cases, we now

hold that, while United States Supreme Court cases are entitled to

respectful consideration, we will engage in independent analysis of the

content of our state search and seizure provisions. A Fourth Amendment

opinion of the United States Supreme Court, the Eighth Circuit Court of

Appeals, or any other federal court is no more binding upon our

interpretation of article I, section 8 of the Iowa Constitution than is a

case decided by another state supreme court under a search and seizure

provision of that state’s constitution.          The degree to which we follow

United States Supreme Court precedent, or any other precedent,

depends solely upon its ability to persuade us with the reasoning of the

decision. When both federal and state constitutional claims are raised,

we may, in our discretion, choose to consider either claim first in order to

dispose of the case, or we may consider both claims simultaneously. 5

       5There  is nothing unusual about the evolution of our case law. For instance, the
Oregon Supreme Court in State v. Florance, 527 P.2d 1202, 1209 (Or. 1974), embraced
the lockstep approach, noting that “the law of search and seizure is badly in need of
simplification for law enforcement personnel, lawyers, and judges.” In State v. Caraher,
653 P.2d 942, 946–48 (Or. 1982), however, the court abandoned the lockstep approach
in favor of independent constitutional analysis. See generally Jack L. Landau, Should
State Courts Depart from the Fourth Amendment? Search and Seizure, State
Constitutions, and the Oregon Experience, 77 Miss. L.J. 369 (2007) (explaining that state
constitutions have significance independent of the Federal Constitution).
                                           12
      IV. Validity of a Search of a Parolee by a Law Enforcement
Officer Without Individualized Suspicion.
       A. Textual Analysis of Article I, Section 8.                 We begin our
analysis with a review of the text of article I, section 8 of the Iowa

Constitution. Article I, section 8 of the Iowa Constitution provides:
             The right of the people to be secure in their persons,
       houses, papers and effects, against unreasonable seizures
       and searches shall not be violated; and no warrant shall
       issue but on probable cause, supported by oath or
       affirmation, particularly describing the place to be searched,
       and the persons and things to be seized. 6
       As with the Fourth Amendment, the text of article I, section 8
presents a number of ambiguities and interpretive issues. To start with,

the relationship between the first clause, the Reasonableness Clause,

and the second clause, the Warrant Clause, is not entirely clear.                For

instance, it could be argued that the Warrant Clause demonstrates that

a search without particularity and probable cause was a type of

unreasonable search.        Or, the clauses could be considered completely

independent of each other, namely, that for warrantless searches the
only requirement was “reasonableness,” and that the particularity and

probable cause requirements related only to searches by means of a

warrant.       See Silas J. Wasserstrom, The Fourth Amendment’s Two
Clauses, 26 Am. Crim. L. Rev. 1389, 1389–90 (1989). 7

       6The   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, and no Warrants shall issue, but upon probable cause,
       supported by Oath or affirmation, and particularly describing the place
       to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.
       7Interestingly,   Article XIV of the Massachusetts Constitution of 1780, which
served as a basis of the Fourth Amendment, has a somewhat different formulation.
Specifically, Article XIV provides:
              Every subject has a right to be secure from all unreasonable
       searches and seizures of his person, his house, his papers, and all his
                                         13

       There is one linguistic difference between article I, section 8 and

the Fourth Amendment.            Article I, section 8 utilizes a semicolon to

separate the Reasonableness Clause from the Warrant Clause, while the

Fourth Amendment uses a comma. Ordinarily, a semicolon is used to

emphasize the relationship between the two clauses of a sentence.

William Strunk, Jr. & E. B. White, The Elements of Style 6 (4th ed. 2000)

(stating that the semicolon suggests a “close relationship between the

two statements” and that the relationship is “commonly one of cause and

consequence”). We have found no contemporaneous explanation of the

use of the semicolon.

       It is clear, however, that the Reasonableness Clause cannot be

used to override the Warrant Clause.            Otherwise, the Warrant Clause

would be mere surplusage. Yet, if the Reasonableness Clause and the

Warrant Clause are related, the precise contours of that relationship are

not self-evident from the language.           Further, the term “unreasonable,”



__________________________
       possessions. All warrants, therefore, are contrary to this right, if the
       cause or foundation of them be not previously supported by oath or
       affirmation, and if the order in the warrant to a civil officer, to make
       search in suspected places, or to arrest one or more suspected persons,
       or to seize their property, be not accompanied with a special designation
       of the person or objects of search, arrest, or seizure; and no warrant
       ought to be issued, but in cases, and with the formalities prescribed by
       the laws.
Mass. Const. of 1780 art. XIV (emphasis added); see also Nelson B. Lasson, The History
and Development of the Fourth Amendment to the United States Constitution 82 (1937).
Plainly, the use of the phrase “therefore” demonstrates that under the Massachusetts
version of search and seizure, the general reasonableness requirement is implemented
by requiring that warrants be particular rather than general.
       Also, James Madison’s draft of the Fourth Amendment did not contain the
“unreasonable searches and seizures” language.          Samuel Dash, The Intruders:
Unreasonable Searches and Seizures From King John to John Ashcroft 43–44 (2004).
The legislative history behind the addition of the Reasonableness Clause is sparse and
inconclusive.    William J. Cuddihy, The Fourth Amendment: Origins and Original
Meaning, 602–1791, at 729 (2009).
                                     14

considered alone, is highly ambiguous. As a result, this case cannot be

decided based on the clear linguistic dictates of article I, section 8.

      B. Historical      Context     of   Enactment       of   the    Fourth

Amendment.

      1. Introduction.     The history of the circumstances prior to

enactment of the Fourth Amendment has been thoroughly explored by

scholars. See generally Thomas K. Clancy, The Fourth Amendment: Its

History and Interpretation 23–43 (2008) [hereinafter Clancy, Fourth

Amendment]; William J. Cuddihy, The Fourth Amendment: Origins and

Original Meaning, 602–1791, at 1–597 (2009) [hereinafter Cuddihy];

Phillip A. Hubbart, Making Sense of Search and Seizure Law: A Fourth

Amendment Handbook 21–75 (2005) [hereinafter Hubbart]; Jacob W.

Landynski, Search and Seizure and the Supreme Court: A Study in

Constitutional Interpretation 19–49 (1966) [hereinafter Landynski]; Nelson

B. Lasson, The History and Development of the Fourth Amendment to the

United States Constitution 13–105 (1937) [hereinafter Lasson]; Andrew E.

Taslitz, Reconstructing the Fourth Amendment: A History of Search and

Seizure, 1789–1868, at 1–68 (2006) [hereinafter Taslitz]; Telford Taylor,

Two Studies in Constitutional Interpretation: Search, Seizure, and

Surveillance and Fair Trial and Free Press 19–44 (1969).                  These

authorities are in general agreement that the Fourth Amendment arose

against a background of developing English law and in the specific

context of colonial frustration over the execution of searches of homes by

British authorities pursuant to general warrants or writs of assistance.

      2. English antecedents.      In seventeenth century England, the

Crown resorted to general warrants to search for books and pamphlets

considered libelous or seditious and to enforce customs laws. Lasson at

30–31. These warrants were open-ended as to time, place, and duration.
                                     15

Id. at 32. The power to search and seize generally was based upon the

police power of the Crown and not upon actions of Parliament. Clancy,

Fourth Amendment at 28.

          In light of the lack of limitation on executive power, it is not

surprising that abuses arose.      Sir Edward Coke, who opposed general

warrants as “against reason” and based on “mere surmise,” was one of

the Crown’s most influential opponents. Taslitz at 18, 37, 41. Coke was

infamously searched by agents of the Crown in 1634 for seditious and

libelous papers while Coke lay on his death bed. Id. at 18. The agents

seized, among other things, a poem addressed to his children and his

will.     Lasson at 31; Leonard W. Levy, Origins of the Bill of Rights 153

(2001). It seems fair to say that political motivation was at work in this

affair.

          More than a century later, Lord Halifax sought to suppress and

punish the sedition contained in Number 45 of a publication known as

the North Briton, which attacked the King’s speech given at the opening of

Parliament.      Hubbart at 41.   Halifax issued general warrants to four

agents, ordering them to “make strict and diligent search for the authors,

printers, and publishers of . . . The North Briton, No. 45 . . . and them, or

any of them, having found, to apprehend and seize, together with their

papers.” Lasson at 43. Forty-nine persons were arrested in three days of

dragnet. Clancy, Fourth Amendment at 36; Hubbart at 41. When the

messengers located the printers and learned that Wilkes was the author

of the North Briton material, Wilkes and his private papers were seized,

including the uninventoried papers in the drawers of his bureau.

Clancy, Fourth Amendment at 36; Lasson at 44; Taslitz at 20.          Wilkes

denounced the warrant as “a ridiculous warrant against the whole

English nation,” refused to leave his premises upon his arrest, and had
                                    16

to be carried to London Tower, from which he was eventually released

because of his status as a member of Parliament.        Landynski at 28.

Ultimately, however, the House of Commons voted Number 45 a

seditious libel and expelled Wilkes, who eventually served a jail term for

his offense. Taslitz at 20.

      Wilkes sued the overseer of the warrant and obtained a judgment

in the famous case of Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (C.P.).

The matter was tried by Chief Judge Pratt, who in an earlier case arising

out of the North Briton incident had declared that “[t]o enter a man’s

house by virtue of a nameless warrant, in order to procure evidence, is

worse than the Spanish Inquisition, a law under which no Englishman

would wish to live an hour.” Taslitz at 20.

      In the Wilkes case, Chief Judge Pratt questioned the warrants for

“failing to specify the offenders’ names in the warrant and for giving the

messengers the discretionary power to search wherever their suspicions

chanced to fall.”   Clancy, Fourth Amendment at 36.     Wilkes ultimately

obtained a judgment against Wood and, later, against Lord Halifax

himself on the ground that the warrant was illegal and that Halifax’s

agents engaged in trespass. Hubbart at 42; Lasson at 45.

      After the Wilkes case, Pitt the Elder gave his much quoted speech

in Parliament, where he declared:
      The poorest man may, in his cottage, bid defiance to all the
      forces of the Crown. It may be frail; its roof may shake; the
      wind may blow through it; the storm may enter; the rain
      may enter; but the King of England may not enter; all his
      force dares not cross the threshold of the ruined tenement.

Lasson at 49–50.

      A similar result occurred in Entick v. Carrington, (1765) 95 Eng.

Rep. 807 (C.P.), after John Entick’s books were seized by Halifax’s
                                   17

agents. Lasson at 47. In this case, Entick was named in the warrant,

which generally authorized seizure of his papers. Taslitz at 21; Clancy,

Fourth Amendment at 48. The case was tried by Judge Pratt, now Lord

Camden, who issued a strongly worded opinion which, among other

things, rejected arguments that general warrants were necessary to

advance the ends of government in preventing libelous publications.

Hubbart at 45. Lord Camden noted: “[I]f suspicion at large should be a

ground of search, especially in the case of libels, whose home would be

safe?” Id.

      The Wilkes and Entick cases were well-known in the American

colonies.    Paul Revere made a silver punch bowl with engraving “No

General Warrants,” “Wilkes and Liberty,” and “No. 45.” Id. at 47. Wilkes

received letters of support from John Adams and Joseph Warren.         Id.

Wilkes became a popular figure in America. Taslitz at 21.

      3. Colonial experience. Nearly simultaneously with the Wilkes and

Entick matters in England, controversy arose in the American colonies

regarding writs of assistance, which allowed general searches for

customs violations. Clancy, Fourth Amendment at 31. Unlike the general

warrant cases, which involved government efforts to stamp out seditious

libel, the writs of assistance focused on Britain’s mercantile policy and

the imposition of customs duties to protect British interests. Hubbart at

21.   The writs were separately issued by colonial courts to individual

customs officials in port cities. Id.   The writs of assistance were even

broader than the general warrants arising from the North Briton episode,

which at least arose out of a specific incident, namely, the publishing of

the North Briton, No. 45.   The writs of assistance were not returnable

after execution, but continued to authorize general searches during the

life of the sovereign. Lasson at 54. The writs of assistance were akin to
                                     18

“permanent search warrants placed in the hands of customs officials:

they might be used with unlimited discretion.” Landynski at 31.

      As early as 1696, Parliament had enacted legislation that was

thought to allow writs of assistance in the American colonies. Clancy,

Fourth Amendment at 32. The writs of assistance expired with the death

of King George II in 1760, and the question arose whether new writs of

assistance would be issued. Id.

      Boston merchants banded together and fought the issuance of new

writs of assistance.     Tracey Maclin, The Complexity of the Fourth

Amendment: A Historical Review, 77 B.U. L. Rev. 925, 946 (1997)

[hereinafter Maclin].   In Paxton’s Case, James Otis protested against

judicial grants of writs of assistance, which gave customs officers open-

ended authority to search homes for evidence of customs violations. Id.

In place of the open-ended authority of the writs of assistance, Otis urged

specific warrants based on oath or affirmation. Id.; Cuddihy at 377–78.

      Otis’s attack on the writs of assistance focused on the arbitrary

invasion of houses. In his brief, Otis insisted that only specific warrants

were reasonable and that “the freedom of one’s house” was among “the

most essential branches of English liberty.”          Cuddihy at 377–78.

According to John Adams, Otis argued that “ ‘[t]his writ is against the

fundamental principles of law, the privilege of house.’ ” Landynski at 34

(quoting 2 John Adams, Life and Works of John Adams 523 (1856)).

      When Otis lost his case, the Massachusetts General Court

attempted to enact a measure requiring particularity in writs of

assistance and limiting their life, only to be vetoed by the governor. Id. at

35.   Over the next fifteen years, however, opposition to writs of

assistance persisted as Britain attempted to extend its control over the

colonies through the Stamp and Townshend Acts, which were potentially
                                             19

enforceable through writs of assistance. Id. at 36; M.H. Smith, The Writs

of Assistance Case 2 (1978) [hereinafter Smith]. The Townshend Act, for

instance, vested the power to issue writs of assistance in American

judges. Smith at 2. Many of them balked, with some judges refusing to

issue the writs except for a single location supported by sworn

affirmation.        See id.     American judicial intransigence was sufficiently

strong that local customs officials in several states did not even bother to

apply for the writs. Id. at 3–5.

       Paxton’s Case            and   its   aftermath   suggest that           the   Fourth

Amendment was enacted against a backdrop of controversy over the

appropriateness of general search authorizations as reflected in the writs

of assistance.        Commenting on Otis’s performance many years later,

John Adams observed “ ‘[t]hen and there the Child Independence was

born.’ ”    Landynski at 37 (quoting 10 John Adams, Life and Works of

John Adams 247–48 (1856)).

       4. Scholarly        interpretation    of   historical        context.    Nearly    all

contemporary scholars and most courts accept the general contours of

the Fourth Amendment historical narrative presented above.                               The

scholars, however, sharply disagree on the proper interpretation arising

from the historical record and from the Fourth Amendment’s language.

Professor Maclin argues that the history supports a warrant-preference

rule. Maclin, 77 B.U. L. Rev. at 950–59; see also Silas J. Wasserstrom,

The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257,

295–304 (1984).           In contrast, Professor Amar has suggested that the

main       thrust    of   the    Fourth     Amendment          is     the   reasonableness

requirement. Akhil Reed Amar, Fourth Amendment First Principles, 107

Harv. L. Rev. 757, 762–81 (1994). Other scholars have joined the fray.

See, e.g., Thomas Y. Davies, Recovering the Original Fourth Amendment,
                                     20

98 Mich. L. Rev. 547, 601–619 (1999) [hereinafter Davies, Recovering]

(arguing that warrantless searches and seizures were virtually unheard

of and not addressed by the Fourth Amendment); David E. Steinberg,

The Uses and Misuses of Fourth Amendment History, 10 U. Pa. J. Const.

L. 581, 583 (2008) (arguing that although warrantless searches were

relatively common, the Fourth Amendment intended to focus on a single,

narrow problem, namely, physical trespass into houses by government

agents).

      The bottom line, however, is that there is no overarching

consensus in the secondary historical scholarship regarding the meaning

of the Fourth Amendment that would inexorably dictate an outcome in

this concrete case. Aside from the different perspectives on the meaning

of the historical record, two additional realities limit the usefulness of

any effort to uncover the intent of the framers through historical

analysis. First, as noted by Professor Davies, the modern police officer

bears little resemblance to the framing era constable working under the

direction of a justice of the peace. Davies, Recovering, 98 Mich. L. Rev. at

620–24. Second, parole systems in the United States were introduced by

Zebulon    Brockway    about    eighty    years   after   the   Constitutional

Convention.    See Joan Petersilia, Parole and Prisoner Reentry in the

United States, 26 Crime & Just. 479, 488 (1999). These difficulties do

not render consideration of historical circumstances irrelevant in this

case, but they do require a necessarily imprecise extrapolation process

where the emphasis is on application of constitutional values to the

modern problem.

      5. Summary. The linguistic and historical materials suggest the

framers of the Fourth Amendment, and by implication the framers of

article I, section 8 of the Iowa Constitution, intended to provide a limit on
                                    21

arbitrary searches and seizures, particularly those involving the home.

Specifically, the drafters rejected general warrants without probable

cause and without particularity as reflected in pre-Revolutionary

practice.   The evidence tends to support the conclusion of Phillip

Hubbart, who in his treatise declares that:
      [T]he Framers of the Fourth Amendment, along with the
      colonial leadership of the period, intended to prohibit all
      general warrants of search and arrest by requiring special
      warrants based on sworn proof of criminal wrongdoing that
      particularly described the place to be searched and the
      things or persons to be seized, as the usual method for the
      search of private premises by government agents . . . .

Hubbart at 77.

      There is a debate regarding whether warrantless searches were

accepted by the framers and, if they were, what legal standard should

apply to them.     It is doubtful, however, that the framers intended

warrantless searches to provide a broad avenue to avoid the particularity

and probable cause requirements of the Warrant Clause in cases

involving searches of private premises.       It would make no sense to

restrict general warrants and yet allow the same type of broad, unlimited

search without a warrant. The framers were likely most concerned with

the substance of the right, not with procedural distinctions. Maclin, 77

B.U. L. Rev. at 959. In short, all other things being equal, the historical

context of the Fourth Amendment suggests a preference for particularity

as a tool to cabin police power along with a recognition of the need to

provide private premises with a high degree of protection against

arbitrary government intrusion.
                                         22

      C. Contemporaneous              Discussions                Regarding        Search        and

Seizure Provisions.

      1. Contemporaneous discussions regarding the Fourth Amendment.

Because of the similarity of language between the state and federal

search   and     seizure    provisions,       it       is        appropriate      to     look    to

contemporaneous commentary regarding the values and purposes of the

Fourth   Amendment         to   inform    our      consideration             of    the     proper

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

Unfortunately, however, the framers did not provide us with direct

commentary.

      At the constitutional convention, the possibility of adding a Bill of

Rights was raised only five days before adjournment.                           Lasson at 83.

When George Mason proposed a Bill of Rights at this late date, it was

rejected, perhaps out of fatigue as much as reason.                               See Richard

Labunski, James Madison and the Struggle for the Bill of Rights 9 (2006).

The primary objection stated at the convention was that the federal

government was one of limited powers, making a Bill of Rights

unnecessary. Id.

      When the Constitution was submitted to the state ratifying

conventions, the discussion regarding the omission of a Bill of Rights

played a central role.     In Virginia, Patrick Henry argued that unless a

right was reserved to the people in the Constitution, it would be

relinquished to the rulers. Id. at 105. In particular, Henry argued that

federal officers could “go into your cellars and rooms, and search,

ransack and measure, every thing you eat, drink, and wear” without

constitutional restraints.      Id.   In order to ensure ratification, Madison

and other Federalists engaged in a compromise by promising that once

the Constitution was ratified, an amendment would be proposed in the
                                    23

next Congress to add a Bill of Rights.       Bernard Schwartz, The Great

Rights of Mankind: A History of the American Bill of Rights 120 (1992).

This ratify-and-recommend approach carried the day in five states—

Massachusetts, South Carolina, New Hampshire, Virginia, and New York.

Id.

      When the first Congress convened, Madison, true to his word,

proposed a Bill of Rights. With respect to search and seizure, Madison’s

original text was a one-barreled affair that was patterned after the

Massachusetts Bill of Rights. It provided:
      The right of the people to be secure in their persons, houses,
      papers, and effects, shall not be violated by warrants issuing
      without probable cause, supported by oath or affirmation,
      and not particularly describing the place to be searched, and
      the persons or things to be seized.

Samuel Dash, The Intruders: Unreasonable Searches and Seizures from

King John to John Ashcroft 43–44 (2004).

      The House of Representatives, sitting as a Committee of the Whole,
rejected an amendment offered by Edgar Benson that would have

injected a reasonableness clause, and Madison’s version was sent to a

small committee for styling chaired by Benson.      Id.   The version that

emerged from the committee included Benson’s reasonableness clause

and was ultimately approved without meaningful discussion. Id.

      There also seems to have been very little substantive discussion of

the meaning of the Fourth Amendment in the subsequent ratification

process.   See Cuddihy at 733; Schwartz at 187.       It seems that most

observers were concerned not about parsing the language of the

proposals, but only with general principles.

      It is clear, however, that both Federalists and Anti-Federalists were

firmly opposed to the pre-Revolutionary practice of general warrants and
                                     24

writs of assistance that allowed agents of the Crown to enter houses,

warehouses, and businesses. The debate was over how best to ensure

that the colonial experience would not be repeated.               The Fourth

Amendment was thus unquestionably designed to limit, and not to

expand, the powers of the federal government. As noted by Chief Justice

John Marshall, who served as a delegate to the Virginia ratification

convention, the amendments were designed “to guard against the abuse

of power.” Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 250, 8 L. Ed.

672, 675 (1833).

      2. Contemporaneous discussions regarding article I, section 8 of the

Iowa Constitution.   We have been unable to uncover any meaningful

contemporaneous commentary regarding the meaning of the search and

seizure provision in article I, section 8 of the Iowa Constitution. In 1838,

six years before Iowa’s first constitutional convention, a state court held

that, in order for a search to be reasonable, it had to be executed

pursuant to a warrant. Banks v. Farewell, 38 Mass. (21 Pick.) 156, 159

(1838). No evidence exists, however, to show that the Iowa framers were

aware of this case law. Despite this, other historical evidence tends to

shed light on the value the Iowa framers placed on article I, section 8.

      As a general matter, the drafters of the Iowa Constitution placed

the Iowa Bill of Rights at the beginning of the constitution, for apparent

emphasis.      Further,   the   materials   related   to   the   constitutional

conventions emphasize the need to restrain arbitrary government power.

For example, the debate over the 1857 Iowa Constitution notes the need

for a Bill of Rights, providing that “[t]he annals of the world . . . furnish

many instances in which the freest and most enlightened governments

that have ever existed upon earth, have been gradually undermined, and

actually destroyed, in consequence of the people’s rights.” 1 The Debates
                                    25

of the Constitutional Convention of the State of Iowa 100–01 (W. Blair Lord

rep., 1857), available at http://www.statelibraryofiowa.org/services/law-

library/iaconst. As a result, the record of the 1857 convention indicates

a desire
      to put upon record every guarantee that could be legitimately
      placed [in the constitution] in order that Iowa not only might
      be the first State in the Union, unquestionably as she is in
      many respects, but that she might also have the best and
      most clearly defined Bill of Rights.

Id. at 100.

      Additionally, it is clear that the Iowa framers placed considerable
value on the sanctity of private property and, more specifically, of the

home.      For example, Governor Lucas stated that he deemed the most

important right was “to secure to the poor man a little spot of ground

where he could build him a cottage and have a home for himself and

family, free from the fear of being turned out of doors.” Fragments of the

Debates of the Iowa Constitutional Conventions of 1844 and 1846, at 159–

61 (1900). Although the language is clearly an expression of the politics

of the Jacksonian Era, the notion of the sanctity of the home was a

concept that the Iowa framers clearly endorsed.

      D. Discussion of United States Supreme Court Search and

Seizure Precedents. With textual and historical analysis providing us

general guidance, we now turn to case law that has offered further

definition to the general constitutional commands of the search and

seizure provisions. We begin our discussion with a review of cases of the

United States Supreme Court. The persuasive power of Samson can only

be evaluated with a full understanding of the trajectory of case law under

the Fourth Amendment.
                                       26

      1. Evolution of interests protected by the Fourth Amendment. The

United States Supreme Court did not have occasion to explore the

contours of the Fourth Amendment until the late nineteenth century. In

Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886),

the Supreme Court considered the application of the Fourth Amendment

in a case where the defendant was ordered to produce an invoice

regarding the value and quantity of glass in a forfeiture proceeding.

Boyd, 116 U.S. at 618, 6 S. Ct. at 526, 29 L. Ed. at 747, abrogated on

other grounds by Bellis v. United States, 417 U.S. 85, 94–95, 94 S. Ct.

2179, 2186, 40 L. Ed. 2d 678, 687–88 (1974). Concluding that the order

to produce the invoice amounted to a “search,” the Court held that the

order violated the Fourth Amendment and that it should be excluded

from trial.    Id. at 638, 6 S. Ct. at 536, 29 L. Ed. at 753.         Given the

tangible nature of the language of the Fourth Amendment regarding

“papers, houses, persons, and effects,” the Boyd opinion emphasized

property rights concepts and the notion of constitutionally protected

areas. See id. at 627–30, 6 S. Ct. at 530–32, 29 L. Ed. at 748–50. Under

the reasoning in Boyd, the home was a constitutionally hardened target

that could not be penetrated by court order to obtain evidence in a

criminal trial. Id. at 630, 6 S. Ct. at 532, 29 L. Ed. at 751.

      With the development of increasingly intrusive technology, the

question      arose   whether   a   property-rights   theory   of   the   Fourth

Amendment was adequate. In Olmstead v. United States, 277 U.S. 438,

48 S. Ct. 564, 72 L. Ed. 944 (1928), the Supreme Court applied property-

rights concepts in rejecting a claim that the Fourth Amendment

prohibited electronic eavesdropping where no physical trespass occurred.

Olmstead, 277 U.S. at 466, 48 S. Ct. at 569, 72 L. Ed. at 951, overruled

by Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed.
                                  27

2d 576, 583 (1967).      The Olmstead court stated that the Fourth

Amendment protected searches and seizures of houses, persons, papers,

and effects but did not forbid the government from gathering information

based on hearing or sight where there was no physical trespass. Id. at

465–66, 48 S. Ct. at 568, 72 L. Ed. at 950–51. As a result, cases after

Boyd and Olmstead generally emphasized property rights and protected

areas. See, e.g., Lanza v. New York, 370 U.S. 139, 142–44, 82 S. Ct.

1218, 1220–21, 8 L. Ed. 2d 384, 387–88 (1962). Under the approach of

Boyd and Olmstead, the protection offered by the Fourth Amendment

was narrow but deep.

      Determined to extend Fourth Amendment protections to cover

technological intrusions, the Warren Court came to deemphasize the

property-rights approach in favor of a theory based on protection of

privacy interests. The trend came to a head in three cases decided in

1967. See Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512,

19 L. Ed. 2d 576, 583 (1967) (stating that “the Fourth Amendment

protects people—and not simply ‘areas’—against unreasonable searches

and seizures”); Berger v. New York, 388 U.S. 41, 52, 87 S. Ct. 1873,

1880–81, 18 L. Ed. 2d 1040, 1049 (1967) (noting that the basic purpose

of the Fourth Amendment is to “ ‘safeguard the privacy and security of

individuals against arbitrary invasions by governmental officials’ ”

(quoting Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18

L. Ed. 2d 930, 935 (1967))); Warden v. Hayden, 387 U.S. 294, 304, 87

S. Ct. 1642, 1648, 18 L. Ed. 2d 782, 790 (1967) (observing that “[t]he

premise that property interests control the right of the Government to

search and seize has been discredited”). By protecting expectations of

privacy, the Court extended the protections of the Fourth Amendment
                                   28

into areas, such as electronic eavesdropping, without requiring a

physical trespass.

      The importation of the concept of privacy into the Fourth

Amendment was not accomplished without dissent.           Justice Black,

among others, argued that the injection of privacy into the Fourth

Amendment was pernicious because privacy, “like a chameleon, has a

different color for every turning.” Berger, 388 U.S. at 77, 87 S. Ct. at

1893, 18 L. Ed. 2d at 1063 (Black, J., dissenting). Commentators have

suggested that the more defined property-rights notions were replaced by

“a malleable notion of privacy lacking any core of substantive rights.”

Morgan Cloud, A Liberal House Divided: How the Warren Court

Dismantled the Fourth Amendment, 3 Ohio St. J. Crim. L. 33, 72 (2005).

Justice Black feared that the amorphous standard of privacy lacked the

sinew to withstand what Justice Douglas once referred to as the

“hydraulic pressures” favoring expansive police power at the expense of

privacy and liberty. Id. (quoting Terry v. Ohio, 392 U.S. 1, 39, 88 S. Ct.

1868, 1889, 20 L. Ed. 2d 889, 916 (1968) (Douglas, J., dissenting)). In

short, dissenters were concerned that the narrow but deep Fourth

Amendment regime established by Boyd and Olmstead would be replaced

by a broad but shallow Fourth Amendment doctrine based on ephemeral

notions of privacy.

      A close reading of Katz, however, indicates that the majority of the

United States Supreme Court did not abandon a property-rights theory,

but instead added a component of privacy onto existing Fourth

Amendment doctrine.      The majority opinion states that “the Fourth

Amendment governs not only the seizure of tangible items, but extends

as well to the recording of oral statements” overheard without a physical

trespass under local property law. Katz, 389 U.S. at 353, 88 S. Ct. at
                                         29

512, 19 L. Ed. 2d at 583. Thus, Justice Stewart’s majority opinion does

not overthrow the prior regime but grafts a privacy branch onto existing

doctrine. See id.

       Notwithstanding the incremental nature of the majority opinion,

Justice      Harlan’s   stylish   concurring    opinion     regarding    legitimate

expectations of privacy captured the most attention in the aftermath of

Katz. See id. at 360–62, 88 S. Ct. at 516–17, 19 L. Ed. 2d at 587–88

(Harlan, J., concurring); see generally Clancy, Fourth Amendment at 59–

60.    Over time, however, some Supreme Court cases, explicitly or

implicitly recognizing older property-based notions that were not

discarded in Katz, began to reappear. 8          In particular, Supreme Court

cases have repeatedly emphasized the special status of the home in

Fourth Amendment context, noting that physical entry into the home

was the “chief evil against which the wording of the Fourth Amendment

is directed.” See United States v. United States Dist. Ct., 407 U.S. 297,

313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972); see also Kyllo v.

United States, 533 U.S. 27, 37–38, 121 S. Ct. 2038, 2045, 150 L. Ed. 2d

94, 104–05 (2001) (holding that the entire “area” of the home is safe from

prying eyes, regardless of whether the search uncovers “intimate
details”); Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098,

80 L. Ed. 2d 732, 743 (1984) (“Before agents of the government may

invade the sanctity of the home, the burden is on the government to

demonstrate exigent circumstances that overcome the presumption of

unreasonableness that attaches to all warrantless home entries.”

       8As   noted by Professor Amsterdam, even Justice Harlan himself in a later
opinion recognized that the Fourth Amendment analysis “ ‘must . . . transcend . . .
subjective expectations.’ ” See Anthony G. Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn. L. Rev. 349, 384, 460 n.345 (1974) (quoting United States v.
White, 401 U.S. 745, 786, 91 S. Ct. 1122, 1143, 28 L. Ed. 2d 453, 478 (1971) (Harlan,
J., dissenting)).
                                    30

(Emphasis added.)); Payton v. New York, 445 U.S. 573, 590, 100 S. Ct.

1371, 1382, 63 L. Ed. 2d 639, 653 (1980) (noting that the “Fourth

Amendment has drawn a firm line at the entrance to the house”).

      There is also a filament of an interest in security running through

some Fourth Amendment cases, particularly those involving seizures of

an individual. But the concept of security runs through both “searches”

and “seizures.”   For example, in Terry, the Court noted “the right of

personal security belongs as much to the citizen on the streets of our

cities as to the homeowner closeted in his study.” Terry, 392 U.S. at 8–9,

88 S. Ct. at 1873, 20 L. Ed. 2d at 898. According to Professor Clancy,

there may be a broad underlay of the concept of security in the Supreme

Court’s Fourth Amendment cases:
      [A]lthough often unstated in Supreme Court opinions, the
      essential attribute of the right to be secure is the ability of
      the individual to exclude the government from unreasonably
      searching or seizing one’s person, house, papers, and effects.
      Without the ability to exclude, a person has no security.
      With the ability to exclude, a person has all that the Fourth
      Amendment promises: protection against unjustified
      intrusions by government.
Clancy, Fourth Amendment at 47.

      The approaches of the above cases reveal that although the

modern Supreme Court has tended to emphasize legitimate expectations

of privacy, there seems to be at least a residuum of property-based or

security-based notions at the core of Fourth Amendment protections. If

the Fourth Amendment solely protected legitimate expectations of

privacy, political branches of government could eviscerate the Fourth

Amendment by broadly announcing that the government intended to

engage in general searches. A person familiar with such a government

proclamation may no longer reasonably expect to be free from

government intrusion.     The protections of the Fourth Amendment,
                                     31

however, cannot depend solely upon the status of state law; otherwise, it

could be effectively repealed by ordinary legislation or executive action.

Cf. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535,

2539, 37 L. Ed. 2d 596, 602 (1973) (stating that “no Act of Congress can

authorize a violation of the Constitution”).

      Whether the interests protected by the Fourth Amendment are

characterized as privacy, property, security, or a combination of them, it

is clear that under some circumstances, that interest may be invaded by

the state upon an adequate showing and compliance with proper

procedure.    However interpreted, the Fourth Amendment is not an

absolute bar to searches and seizures.         Instead, the question often

amounts to what showing must be made in any particular context to

constitutionally justify a search.

      2. Reasonable searches under the Fourth Amendment. On its face,

the language of the Fourth Amendment Warrant Clause authorizes

searches and seizures based on probable cause and supported by

particularity. See U.S. Const. amend. IV. Justice Stewart relied upon

this language in staunchly advocating what might be termed the

warrant-preference rule. See generally William W. Greenhalgh & Mark J.

Yost, In Defense of the “Per Se” Rule: Justice Stewart’s Struggle to

Preserve the Fourth Amendment’s Warrant Clause, 31 Am. Crim. L. Rev.

1013 (1994). Under this approach, the Reasonableness Clause and the

Warrant Clause of the Fourth Amendment are intertwined.          A search

conducted pursuant to a warrant with probable cause is reasonable, and

only in exceptional circumstances in which it would be impractical or

unreasonable for the government to obtain a warrant could a warrantless

search be considered reasonable. Id. at 1016. The warrant-preference

rule was firmly embraced by the Supreme Court in the period between
                                      32

1950 and 1990 in cases emphasizing that a search or seizure is per se

invalid if not obtained through the warrant process. See, e.g., California

v. Acevedo, 500 U.S. 565, 580, 111 S. Ct. 1982, 1991, 114 L. Ed. 2d 619,

634 (1991); Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91 S. Ct.

2022, 2032, 29 L. Ed. 2d 564, 576 (1971); Katz, 389 U.S. at 356–57, 88

S. Ct. at 514, 19 L. Ed. 2d at 585.

      While some exceptions to the warrant requirement—such as

searches of maritime vessels and searches incident to arrest—have long

been recognized, the Supreme Court has from time to time indicated that

the exceptions to the warrant requirement should be “jealously and

carefully drawn.” Jones v. United States, 357 U.S. 493, 499, 78 S. Ct.

1253, 1257, 2 L. Ed. 2d 1514, 1519 (1958).             The Court further

emphasized that there must be a “showing by those who seek [the

exception] that the exigencies of the situation made that course

imperative.”   McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct.

191, 193, 93 L. Ed. 153, 158 (1948).

      The notion that ordinarily searches required warrants based on

probable cause except for tightly controlled exceptions ran into difficulty

with the expansion of interests protected by the Fourth Amendment.

When the Supreme Court expanded the reach of the Fourth Amendment

to include a broad category of privacy interests, the Supreme Court in a

series of cases came to the conclusion that a traditional probable cause-

based warrant seemed impractical.          As a result, the Supreme Court

began to expand the number of and scope of exceptions to the warrant

requirement. Exceptions to the warrant requirement now go well beyond

those recognized at the time of the enactment of the Fourth Amendment

and include consent searches, Schneckloth v. Bustamonte, 412 U.S. 218,

222–23, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854, 860 (1973),
                                   33

investigatory detentions, Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L.

Ed. 2d at 909, and an increasingly broad category of administrative

searches and special needs exceptions, Camara, 387 U.S. at 536–38, 87

S. Ct. at 1735, 18 L. Ed. 2d at 940–41.

      In cases where a search is required to be conducted pursuant to a

warrant, probable cause remains required.       When a search may be

conducted without a warrant, however, the question arises what kind of

showing is required before a warrantless search may be considered

“reasonable.”   Specifically, the question arises whether some kind of

particularity or some kind of showing is required before a warrantless

search may be conducted.

      3. “Reasonableness”    and   “special   needs”   under   the   Fourth

Amendment. The traditional exceptions to the warrant requirement were

based on the view that it would be impractical under the circumstances

to obtain a warrant.     In these cases, however, the requirement of

probable cause remained intact.     Thus, under the search-incident-to-

arrest, exigent-circumstances, and automobile exceptions, probable

cause remained part of the analysis.

      As the Supreme Court expanded the scope of the Fourth

Amendment, however, it not only relaxed the warrant requirement, but

also the particularity requirement of probable cause. In the seminal case

of Camara, the Supreme Court considered whether municipal housing

inspectors could conduct housing inspections without possessing

probable cause to believe that a particular dwelling contained code

violations. Camara, 387 U.S. at 525, 87 S. Ct. at 1728–29, 18 L. Ed. 2d

at 933.   The Court in Camara concluded that “probable cause” for a

search of a particular dwelling existed if reasonable legislative or

administrative standards for conducting the search of houses in a
                                    34

general area were satisfied. Id. at 538, 87 S. Ct. at 1735–36, 18 L. Ed.

2d at 940–41. The Court noted that the “primary governmental interest

at stake is to prevent even the unintentional development of conditions

which are hazardous to public health and safety.” Id. at 535, 87 S. Ct. at

1734, 18 L. Ed. 2d at 939.     The point of the inspection was building

safety, not “discovery of evidence of crime.” Id. at 537, 87 S. Ct. at 1735,

18 L. Ed. 2d at 940.

      The Camara framework, as elaborated in subsequent cases,

established what has come to be known as the “special needs” exception

to the warrant and probable cause requirements. Instead of applying the

ordinary Fourth Amendment rule, which requires that a search be based

on individualized suspicion of wrongdoing, the Court has found a series

of limited exceptions based on “special needs, beyond the normal need

for law enforcement, mak[ing] the [traditional] warrant and probable

cause requirement impracticable.” New Jersey v. T.L.O., 469 U.S. 325,

351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720, 741 (1985) (Blackmun, J.,

concurring).

      The special needs exception as developed by the United States

Supreme Court is supported by the view that the warrant requirement

and its probable cause standard are “ ‘peculiarly related to criminal

investigations.’ ” Nat’l Treasury Employees Union v. Von Raab, 489 U.S.

656, 667, 109 S. Ct. 1384, 1392, 103 L. Ed. 2d 685, 703 (1989) (quoting

Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d

739, 745 (1987)). The Supreme Court has held that “in certain limited

circumstances”    such   as   discovery   of   employee   drug   use,   “the

Government’s need to discover . . . latent or hidden conditions, or to

prevent their development, is sufficiently compelling to justify the

intrusion on privacy entailed by conducting . . . searches without any
                                    35

measure of individualized suspicion.” Id. at 668, 109 S. Ct. at 1392, 103

L. Ed. 2d at 704.

      Distinguishing between cases involving special needs not related to

general law enforcement and cases involving enforcement of criminal law

is not always as easy as the fact scenario presented in Camara.        The

special needs exception that brushes closest to criminal law enforcement

is found in four cases involving drug testing. In these cases, however, a

special need arose because of concerns about workplace or school safety.

Bd. of Educ. v. Earls, 536 U.S. 822, 834, 122 S. Ct. 2559, 2567, 153

L. Ed. 2d 735, 747 (2002); Veronica Sch. Dist. v. Acton, 515 U.S. 646,

661–62, 115 S. Ct. 2386, 2395, 132 L. Ed. 2d 564, 579–80 (1995); Nat’l

Treasury Employees Union, 489 U.S. at 666, 109 S. Ct. at 1391, 103

L. Ed. 2d at 702; Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602,

631, 109 S. Ct. 1402, 1420, 103 L. Ed. 2d 639, 668–69 (1989).          The

special needs doctrine also sometimes abuts criminal law when law

enforcement officers are involved in traffic stops.   Mich. Dep’t of State

Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 2485–86, 110 L. Ed.

2d 412, 420–21 (1990) (holding sobriety checkpoints to involve special

need of highway safety notwithstanding general law enforcement interest

in apprehending drunk drivers).

      In cases with both criminal and noncriminal implications, the

Supreme Court has the task of drawing the line between cases where the

criminal aspect predominates and cases where the primary goal of the

government activity is noncriminal in nature.     For example, in City of

Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333

(2000), the Court considered the constitutionality of seizing motorists at

fixed checkpoints to enable drug sniffing dogs to detect criminal activity.

Edmond, 531 U.S. at 36, 121 S. Ct. at 451, 148 L. Ed. 2d at 339–40. In
                                    36

Edmond, the Supreme Court held that individualized suspicion was

required. Id. at 44, 121 S. Ct. at 455, 148 L. Ed. 2d at 345. Similarly, in

Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed.

2d 205 (2001), the Court considered whether a hospital policy whereby

drug tests of pregnant women were routinely turned over to police for

referral to treatment or criminal prosecution passed constitutional

muster. Ferguson, 532 U.S. at 70, 121 S. Ct. at 1284, 149 L. Ed. 2d at

211–12.   In Ferguson, the Court held the program violated the Fourth

Amendment, stressing that the general interest in crime control was the

main motivating factor behind the program. Id. at 82–84, 121 S. Ct. at

1291–92, 149 L. Ed. 2d at 219–20. The Ferguson Court emphasized that

“the gravity of the threat alone cannot be dispositive of questions

concerning what means law enforcement may employ to pursue a given

purpose.” Id. at 86, 121 S. Ct. at 1293, 149 L. Ed. 2d at 221 (quoting

Edmond, 531 U.S. at 42, 121 S. Ct. at 455, 148 L. Ed. 2d at 344).

      It is apparent that beginning with Camara, the traditional notion

that a warrant was ordinarily required for a valid search, subject to a few

narrow exceptions, was being applied in a fashion more favorable to

warrantless government searches. Yet, there remained a view, even in

the less demanding special needs cases of the Supreme Court, that some

control on law enforcement discretion was required to satisfy Fourth

Amendment concerns.      The means of limiting discretion could include

preestablished neutral criteria that controlled the arbitrary exercise of

governmental power as in Camara, or an Edmond-type particularity

requirement that restrained the government from engaging in totally

baseless searches.

      4. Application of Fourth Amendment search and seizure principles

to cases involving prisoners, probationers, and parolees.      The United
                                    37

States Supreme Court has had several relatively recent occasions to

consider the Fourth Amendment rights of prisoners. The first case was

Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393

(1984). In that case, a five-to-four majority of the Supreme Court held

that a prisoner did not have a privacy interest protected by the Fourth

Amendment in his prison cell. Hudson, 468 U.S. at 525–26, 104 S. Ct.

at 3200, 82 L. Ed. 2d at 402–03.         The five member Supreme Court

majority reasoned that the need to ensure the safety of prison staff and

visitors and the need to detect escape plots, drugs, and weapons

prevented application of Fourth Amendment restrictions in the prison

setting. Id. at 526–29, 104 S. Ct. at 3200–02, 82 L. Ed. 2d at 403–05.

      Three years later, the Supreme Court considered the Fourth

Amendment rights of probationers in Griffin v. Wisconsin, 483 U.S. 868,

107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987).        In Griffin, a five-to-four

majority of the Supreme Court upheld the validity of a search of a

probationer’s home by a probation officer without a warrant pursuant to

a regulation that required reasonable grounds to believe that contraband

was present before a warrantless search was conducted.        Griffin, 483

U.S. at 875–76, 107 S. Ct. at 3169–70, 97 L. Ed. 2d at 718–19.         The

majority held that there are special needs in the probation system

beyond the normal needs of law enforcement and that those special

needs made proceeding without a warrant “reasonable.” Id. at 876–77,

107 S. Ct. at 3169–70, 97 L. Ed. 2d at 719–20. In the probation setting,

a delay inherent in obtaining a warrant would make it more difficult for

probation officers to respond quickly to evidence of misconduct and

reduce the deterrent effect of the probation system. Id.

      In addition, the Griffin majority emphasized the difference between

a search conducted by a probation officer and a search conducted by a
                                        38

police officer.   Id.   The Griffin Court declared that a probation officer,

unlike a general law enforcement officer, had the interest of the

probationer in mind. Id. The probationer is even referred to as a “client”

of the probation officer.       Id.   Thus, a search based upon reasonable

suspicion was acceptable in Griffin because the risk of overreaching

when the search was conducted by a probation officer was less than

when the search was conducted by a police officer, whose only mission

was to ferret out crime. See id. at 876–79, 107 S. Ct. at 3170–71, 97

L. Ed. 2d at 719–21.

      The Supreme Court returned to the Fourth Amendment rights of

probationers in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587,

151 L. Ed. 2d 497 (2001). In Knights, the defendant received probation

for a drug offense.      Knights, 534 U.S. at 114, 112 S. Ct. at 589, 151

L. Ed. 2d at 502.       The probation order contained a “search condition”

stating that Knights would “ ‘[s]ubmit his . . . person, property, place of

residence, vehicle, personal effects, to search at anytime, with or without

a search warrant, warrant of arrest or reasonable cause by any probation

officer or law enforcement officer.’ ”             Id. (quoting probation order).

Knights signed a stipulation acknowledging receipt of the probation

agreement, agreeing that he both understood the terms and conditions,

and that he would abide by them.             Id.    Three days later, authorities

searched Knights’ residence as part of an arson investigation. Id. at 114–

15, 122 S. Ct. at 589, 151 L. Ed. 2d at 502–03.

      The United States Supreme Court upheld the search. The Knights

Court rejected the notion that the Fourth Amendment permits only

“probationary” searches and not “investigatory” searches of probationers.

Id. at 117–18, 122 S. Ct. at 590–91, 151 L. Ed. 2d at 504. In upholding

the   search,     the   Court    explained    that     the   probation   condition
                                    39

“significantly diminished Knights’ reasonable expectation of privacy.” Id.

at 119–20, 122 S. Ct. at 592, 151 L. Ed. 2d at 505. Given the reduced

expectation of privacy, a search based on reasonable suspicion, even by a

police officer, was permissible. Id. at 121, 122 S. Ct. at 592, 151 L. Ed.

2d at 506.

      The Knights Court did not address the issue of whether a probation

or parole condition of release can so diminish or eliminate a person’s

reasonable expectation of privacy that a suspicionless search may be

conducted without violating the Fourth Amendment. Following Knights,

a number of circuit courts applied the reasonable suspicion test in the

context of parolees. See, e.g., United States v. Williams, 417 F.3d 373,

376 n.1 (3d Cir. 2005); Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003);

United States v. Loney, 331 F.3d 516, 520–21 (6th Cir. 2003); United

States v. Tucker, 305 F.3d 1193, 1199 (10th Cir. 2002).

      Following Knights, the United States Supreme Court addressed the

scope of Fourth Amendment protection of parolees in Samson v.

California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006). In

Samson, Samson, a recent parolee, was stopped while walking down a

street by an officer who knew of Samson’s parolee status. Samson, 547

U.S. at 846, 126 S. Ct. at 2196, 165 L. Ed. 2d at 255.          The officer

proceeded to search Samson based solely upon Samson’s status as a

parolee. Id. at 846–47, 126 S. Ct. at 2196, 165 L. Ed. 2d at 255–56. The

officer found a cigarette box in Samson’s left breast pocket that

contained a plastic bag filled with methamphetamine. Id.

      In Samson, the search was authorized by a state statute. Id. The

state statute provided, in relevant part, that every prisoner eligible for

release on parole “shall agree in writing to be subject to search or seizure

by a parole officer or other peace officer at any time of the day or night,
                                     40

with or without a search warrant and with or without cause.” Id. at 846,

126 S. Ct. at 2196, 165 L. Ed. 2d at 255; see also Cal. Penal Code

§ 3067(a) (West 2000).

      In determining the validity of the search, the Samson Court

employed a totality-of-the-circumstances test under which the degree a

search intrudes upon an individual’s privacy interests is weighed against

the degree to which the search promotes legitimate government interests.

Id. at 848, 126 S. Ct. at 2197, 165 L. Ed. 2d at 256. In determining the

weight of a released prisoner’s privacy interest, the Samson Court

employed a “spectrum of rights” doctrine. Under this doctrine, prisoners,

parolees, and probationers exist on a continuum in which one’s

legitimate expectation of privacy positively correlates with the intensity of

the state-imposed punishment.       Id. at 850, 126 S. Ct. at 2198, 165

L. Ed. 2d at 258. Although parolees have some expectation of privacy,

that expectation is greatly diminished because parole is akin to

imprisonment.    Id.   A probationer, on the other hand, has a greater

interest in privacy because probation is usually imposed in lieu of, and

not in addition to, imprisonment. Id.

      Where a parolee is involved, the Court held that a state had a

substantial interest in supervising parolees who were likely to commit

future crimes and to conceal the evidence of criminal enterprises because

they face increased punishment if apprehended.         See id. at 853, 126

S. Ct. at 2200, 165 L. Ed. 2d at 260. The Court seemed to narrow its

holding somewhat, however, noting that the reasonableness of the search

may turn on the state law under which the search was authorized. Id. at

855–57, 126 S. Ct. at 2201–02, 165 L. Ed. 2d at 261–62.

      Justice Stevens, joined by Justices Souter and Breyer, filed a

vigorous dissent in Samson.     See id. at 857, 126 S. Ct. at 2202, 165
                                      41

L. Ed. 2d at 262–63 (Stevens, J., dissenting). The dissent recognized that

prior cases of the Court embraced the notion that probationers have a

less robust expectation of privacy than ordinary citizens that might

justify warrantless searches upon reasonable suspicion of wrongdoing.

Id.    The dissenters further noted that probation officers who are

responsible for providing individualized counseling to their charges may

have special needs justifying departures from Fourth Amendment

strictures. Id.    The dissenters were unwilling, however, to embrace “a

regime of suspicionless searches, conducted pursuant to a blanket grant

of    discretion   untethered   by   any   procedural   safeguards,   by   law

enforcement personnel who have no special interest in the welfare of the

parolee or probationer.”    Id.   Such a regime was characterized by the

dissent as “an unprecedented curtailment of liberty.” Id.

        Justice Stevens attacked the Samson majority for, in effect,

treating parolees for all practical purposes like prisoners, without

recognizing the fundamental distinctions between the two. Id. at 861–62,

126 S. Ct. at 2204–05, 165 L. Ed. 2d at 265–66. While Justice Stevens

acknowledged that parolees generally may be responsible for more

serious crimes than probationers, and that parolees by definition had

served a prison term, these distinctions did not support a lower

expectation of privacy on the part of parolees upon release. Id.

        Justice Stevens noted that a term and condition of release might

be a basis for supporting a warrantless search by a parole officer under

either the special needs doctrine or because at least part of the requisite

“reasonable suspicion” is supplied by “individual-specific” knowledge

gained in the supervisory relationship. Id. at 864–65, 126 S. Ct. at 2207,

165 L. Ed. 2d at 267–68. Further, Justice Stevens recognized that the

Court, in lieu of individualized suspicion, had on occasion relied upon
                                    42

“programmatic safeguards to ensure evenhandedness.” Id. But Justice

Stevens rejected “the search condition . . . imposed on all parolees—

whatever the nature of their crimes, whatever their likelihood of

recidivism,    and   whatever   their   supervisory   needs—without   any

programmatic procedural protections.” Id. (emphasis in original).

      Because of Samson’s recent vintage, federal case law in the wake of

Samson is relatively undeveloped. A number of federal appellate courts

have applied Samson to warrantless, suspicionless searches of parolees

based on language in a parole agreement or even in an orientation video

in the absence of specific statutory authorization.      United States v.

Pickens, 295 Fed. App’x 556, 558 (4th Cir. 2008) (parole agreement);

United States v. Smith, 526 F.3d 306, 310–11 (6th Cir. 2008) (orientation

video); United States v. Massey, 461 F.3d 177, 179 (2d Cir. 2006) (parole

agreement).

      At least one federal court, however, has taken a narrow view of

Samson.       The Tenth Circuit has held that the Samson search was

permissible only because it was authorized by state law. United States v.

Freeman, 479 F.3d 743, 747–48 (10th Cir. 2007). Without an underlying

state statute, according to Freeman, the rule in Samson did not apply.

Id. at 748.

      E. Discussion of State Appellate Court Search and Seizure

Precedents Dealing with Searches of Parolee Homes.               Prior to

Samson, there was not a large body of state constitutional law regarding

the showing that must be made to justify a search of a parolee’s home.

Some states that considered the question required at least some showing

of reasonable suspicion to conduct searches of parolees. For example,

the Alaska Supreme Court, relying on its state constitution, declared that

there must be some particularized showing before a search of a parolee
                                    43

occurred. See Roman v. State, 570 P.2d 1235, 1243 n.26, 1244 (Alaska

1977).    A number of other state appellate courts came to similar

conclusions.    People v. Anderson, 536 P.2d 302, 305 (Colo. 1975),

superseded by statute, Colo. Rev. Stat. § 17-2-201, as recognized in

People v. McCullough, 6 P.3d 774, 777–78 (Colo. 2000); State v. Fogarty,

610 P.2d 140, 144 (Mont. 1980), overruled by State v. Burke, 766 P.2d

254, 257–58 (Mont. 1988); Tamez v. State, 534 S.W.2d 686, 692 (Tex.

Crim. App. 1976); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983).

      Some state courts, however, have upheld suspicionless searches of

parolees on a constructive custody theory.     For instance, in People v.

Hernandez, 40 Cal. Rptr. 100, 103–04 (Ct. App. 1964), a California

appellate court upheld a suspicionless search of a parolee, reasoning

that although the parolee was physically outside the prison walls, he still

was constructively a prisoner and thus had no Fourth Amendment

rights.   A number of state cases have adopted this approach, usually

without analysis. McFerrin v. State, 42 S.W.3d 529, 534–35 (Ark. 2001);

State v. Williams, 486 S.W.2d 468, 473 (Mo. 1972); People v. Santos, 298

N.Y.S.2d 526, 528 (App. Div.), aff’d, 252 N.E.2d 861 (N.Y. 1969).

      The constructive custody approach has been characterized by

commentators as a legal fiction that fails to account for the dramatic

differences in conditions between life in prison and life on parole. See,

e.g., William R. Rapson, Note, Extending Search-and-Seizure Protection to

Parolees in California, 22 Stan. L. Rev. 129, 133 (1969) [hereinafter

Rapson]. Professor LaFave criticizes the constructive custody concept as

more of a conclusion than a theory. See 5 Wayne R. LaFave, Search &

Seizure § 10.10(a), at 435 (4th ed. 2004). He also notes, among other

things, that the life of a parolee more nearly resembles that of an

ordinary citizen than a prisoner. See id. at 436 (citing Rapson, 22 Stan.
                                          44

L. Rev. at 133); see also Welsh S. White, The Fourth Amendment Rights of

Parolees and Probationers, 31 U. Pitt. L. Rev. 167, 180–81 (1969)

[hereinafter White].

       There has not been a significant body of state constitutional law

dealing with the search and seizure of parolees after Samson. Several

cases, however, have followed Samson. Two state supreme courts have

declined to depart from Samson in interpreting their state constitutions.

See State v. Bartylla, 755 N.W.2d 8, 18–19 (Minn. 2008); State v. Turner,

297 S.W.3d 155, 165–66 (Tenn. 2009).              We have found no other state

supreme court opinion since Samson which has squarely considered

whether to depart from Samson under a parallel provision of the state

constitution.

       F. Search       and      Seizure      Precedents       Under       the     Iowa

Constitution.

       1. Overview of approach to article I, section 8 of the Iowa

Constitution.    As indicated above, there have been very few cases in

which we have engaged in an independent consideration of search and

seizure issues under the Iowa Constitution.                   Further, because of

ambiguity in our opinions with respect to the basis of the underlying

claim, it is not often clear whether state constitutional grounds are

implicated.

       In any event, it may be said generally that our search and seizure

case law historically has reflected considerable solicitude to the sanctity

of the home. 9     Our early cases emphasized the security of the home.

       9This case involves the intrusion by a general law enforcement officer into a

motel room in which Ochoa resided. It is well established that a resident of a motel
room enjoys similar search and seizure protections as one residing in a house. See
State v. Brooks, 760 N.W.2d 197, 204–05 (Iowa 2009) (“The Fourth Amendment
unquestionably establishes an expectation of privacy in the home. The case law
extends this protection to hotel or motel rooms.”); see also Hoffa v. United States, 385
                                        45

See, e.g., McClurg v. Brenton, 123 Iowa 368, 371, 98 N.W. 881, 882

(1904); State v. Sheridan, 121 Iowa 164, 167, 96 N.W. 730, 731 (1903).

We have declared that the right of officers to thrust themselves into the

home is a matter of “grave concern.” State v. Brant, 260 Iowa 758, 763,

150 N.W.2d 621, 625 (1967).          We have generally maintained that a

“search warrant issued by a neutral magistrate is required before a

private residence may be searched unless a valid consent to the search

and entry . . . has been given to the police.” State v. Jones, 274 N.W.2d

273, 275 (Iowa 1979). Citing contemporaneous United States Supreme

Court cases, we have characterized the security of one’s home against

arbitrary intrusion by the police as “at the core of the [F]ourth

[A]mendment and basic to our society.” State v. Ahart, 324 N.W.2d 317,

319 (Iowa 1982); see also State v. Reinier, 628 N.W.2d 460, 464 (Iowa

2001) (cataloguing and approving of United States Supreme Court cases

emphasizing that the sanctity of the home is central to the meaning of

the Fourth Amendment).

      We     have    also   generally    endorsed     the   warrant-preference

requirement. We have repeatedly stated that warrantless searches and

seizures that did not fall within one of the “jealously and carefully drawn

exceptions” are unreasonable. See State v. Strong, 493 N.W.2d 834, 836

(Iowa 1992); State v. Sanders, 312 N.W.2d 534, 538 (Iowa 1981). These

cases, however, were no doubt influenced by prevailing jurisprudence of

the United States Supreme Court, which has now generally tended to

move away from the warrant and probable cause requirement in many

contexts.


__________________________
U.S. 293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374, 381 (1966) (“A hotel room can
clearly be the object of Fourth Amendment protection as much as a home . . . .”).
                                     46

      In the search and seizure area, we decided one important case on

independent state grounds in Cline, 617 N.W.2d at 278. In that case, we

declined to follow the lead of the United States Supreme Court by

rejecting a good faith exception to the exclusionary rule in search and

seizure cases under article I, section 8. See Cline, 617 N.W.2d at 292–

93; see also United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405,

3420, 82 L. Ed. 2d 677, 698 (1984) (creating the good faith exception).

In Cline, we noted that the recent cases of the United States Supreme

Court tended to undermine the exclusionary rule, but we declined to

adopt that approach. Cline, 617 N.W.2d at 284, 292–93. We found that

the reasoning of the United States Supreme Court in Leon was

insufficient to justify a similar approach under the Iowa Constitution. Id.

at 288–92.

      2. Application of search and seizure principles to cases involving

prisoners, probationers, and parolees. In Cullison, this court considered

the protections of a parolee against government searches and seizures.

Cullison, 173 N.W.2d at 535. In Cullison, a parolee allowed his parole

officer to enter his apartment. Id. at 535. Upon entry, the parole officer

discovered a locked interior door and demanded access. Id. The parolee

refused.     Id.   His suspicions aroused, the parole officer sought and

obtained the assistance of a law enforcement officer to search, without a

warrant, the locked room. Id. The warrantless search uncovered stolen

merchandise, and the State charged the parolee with receiving stolen

property. Id.

      The Cullison court began its discussion by canvassing case law in

other jurisdictions addressing the scope of parolee rights in the context

of searches by law enforcement officers.      Id. at 535–37.    The court

identified three strands in the case law: (1) cases that strip parolees of
                                     47

all Fourth Amendment rights, (2) cases that dilute parolees’ Fourth

Amendment rights, and (3) cases that afford a parolee full Fourth

Amendment protections. Id. at 536. Rejecting the stripping and diluting

approaches, the majority held that a parolee is afforded the same rights

as any other person under the Fourth Amendment.             Id. at 537.   The

court supported its holding, in part, by noting that article II, section 5 of

the Iowa Constitution provides that only persons convicted of infamous

crimes are deprived of any constitutional right, and then only of the right

to vote. Id. at 537–38.

      The present case, however, may arguably be distinguished from

Cullison because, in Cullison, the parole agreement signed by the parolee

had only required him to “conduct himself honestly, obey the law, keep

reasonable hours, refrain from excessive use of intoxicants, and remain

at all times in Montgomery County.” Id. at 534. Unlike this case, it did

not contain any language that purported to waive constitutional rights.

      Four members of the Cullison court dissented.            A dissent by

Justice Larson emphasized that the parole officer was performing his

duties to oversee and supervise the parolee and had reason to suspect

criminal activity might be afoot. Cullison, 173 N.W.2d at 542 (Larson, J.,

dissenting). Justice Larson noted that
      a parolee has a special status not identical with other
      persons, that a parole agent or supervisor has not only the
      right but the duty to conduct a search of the parolee’s
      premises when he has reason to believe the parolee has been
      engaged in activities violative of his parole.

Id. at 543–44.    In a separate dissent, Justice Stuart stated that the

search of a parolee’s home by a parole officer in the discharge of his

duties of supervision, surveillance, and control is an exception to the

warrant requirement. Id. at 544 (Stuart, J., dissenting).
                                    48

      Even under the dissents in Cullison, however, it is not clear that

the State would be entitled to prevail in this case. In Cullison, the parole

officer was engaged in his duty of supervising a parolee. See id. at 535.

Thus, Cullison rejected the “special needs” approach to parolees with

respect to searches by parole officers. See id. at 537. In this case, no

such special needs are implicated as the searching officer was not acting

as a parole officer, but was engaged in general law enforcement activities.

The police officer’s search related to new crimes having no direct

connection with Ochoa’s prior convictions.

      G. Academic      Commentary        on   the    Samson     Approach.

Academic commentary has generally been hostile to Samson and the

departure of particularized suspicion. A raft of student notes takes the

position that Samson spun the wheels off of the Fourth Amendment.

See, e.g., Robert Cacace, Recent Development, Samson v. California:

Tearing Down a Pillar of Fourth Amendment Protections, 42 Harv. C.R.-

C.L. L. Rev. 223, 229–33 (2007) (stating that Samson confuses the

reasonableness test with the special needs test, thereby undermining

Fourth Amendment rights); John Lassetter, Article, Samson v. California:

“Evil” Suspicionless Searches Become a Part of Everyday Life for Parolees,

25 Law & Ineq. 539, 554–55 (2007) (rejecting balancing test utilized by

Samson and asserting that suspicionless searches of parolees are not

reasonable); Rachael A. Lynch, Note, Two Wrongs Don’t Make a Fourth

Amendment Right: Samson Court Errs in Choosing Proper Analytical

Framework, Errs in Result, Parolees Lose Fourth Amendment Protection,

41 Akron L. Rev. 651, 681–88 (2008) (stating Samson ignores important

Fourth Amendment interests of parolees and overstates state interests);

David M. Stout, Note, Home Sweet Home?! Maybe Not for Parolees and

Probationers When it Comes to Fourth Amendment Protection, 95 Ky. L.J.
                                     49

811, 838 (2007) (arguing warrantless, suspicionless searches have

negative impact on offender reintegration with little gain).

      Leading academic commentators agree.           For example, Professor

LaFave finds Samson unpersuasive, characterizing the move away from

“special needs” analysis into a general reasonableness analysis as

“especially troublesome.” 5 Wayne R. LaFave, Search & Seizure § 10.10,

at 44 (4th ed. Supp. 2010–2011).

      V. Analysis Under the Iowa Constitution.

      To the extent Iowa search and seizure cases rely upon the Fourth

Amendment, there is no question that the cases regarding the sanctity of

the home express a preference for warrants and a requirement of

particularity.   There is also no question that this case law has been

undermined by the United States Supreme Court decisions, including

Samson, that favor a general reasonableness approach.          As has been

pointed out, Samson is part of a steady march in that direction.       The

question presented here is whether we should join in that steady march

in our interpretation of the search and seizure provision of the Iowa

Constitution or, as in Cline, go our separate way.

      In considering the question, we could simply affirm Cullison, which

held that the warrant and probable cause requirements of article I,

section 8 are fully applicable to searches of parolees’ homes. Cullison,

173 N.W.2d at 537. The argument would be based upon the notion that

invasions of the home implicate interests that are at the very core of the

Fourth Amendment and article I, section 8.        In so holding, we would

declare that a “reasonableness” analysis cannot be used as a back door

to dilute the warrant and probable cause requirements.          It could be

argued that a constable walking a beat should not have more power to

authorize a home search than a magistrate, who can issue a search
                                     50

warrant only upon a showing of probable cause. We would, in essence,

find that the facts of the case do not establish one of the “jealously and

narrowly drawn” exceptions to the warrant requirement.           It is not

necessary to address the issue of whether a warrant and probable cause

are required, however, because even under a reasonableness analysis, we

conclude that the search in this case is invalid.

      At the outset, we note the similarity between the State’s position

and the despised general warrant—a motivating factor in the Fourth

Amendment’s enactment.       According to the State, the constable may

search a parolee at any time, for anything, anywhere, including the

home, without any suspicion of any kind. Under this construction, at

least with respect to parolees, the police badge confers the “discretionary

. . . search authority that general warrants had conferred in the

eighteenth century.”    See Thomas Y. Davies, Correcting Search-and-

Seizure   History:   Now-Forgotten    Common-Law       Warrantless   Arrest

Standards and the Original Understanding of “Due Process of Law,” 77

Miss. L.J. 1, 12 (2007).    We regard this as the kind of unrestrained

discretion that is “unreasonable” under article I, section 8.

      The scope of the asserted power is stunningly broad. A person on

parole for an alcohol-related crime, for instance, could be subject to

warrantless searches of books, records, diaries, invoices, and intimate

surroundings. The proposed invasion is not minimal and highly-defined

as in Terry; nor is it closely-linked to an identified special need as in

National Treasury Employees Union or Skinner.          See Nat’l Treasury

Employees Union, 489 U.S. at 669–71, 109 S. Ct. at 1392–93, 103 L. Ed.

2d at 704–05 (urine testing of employees to avoid corruption in the

revenue service); Skinner, 489 U.S. at 623–24, 109 S. Ct. at 1416–17,

103 L. Ed. 2d at 663–64 (blood, urine, and breath testing for persons in
                                    51

safety sensitive jobs); Terry, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed.

2d at 910–11 (investigatory stops). The scope of the search in Samson

thus is flatly contrary to the common-sense notion that “the scope of the

search must be ‘strictly tied to and justified by’ the circumstances which

rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S. Ct. at

1878, 20 L. Ed. 2d at 904 (quoting Hayden, 387 U.S. at 310, 87 S. Ct. at

1652, 18 L. Ed. 2d at 794 (Fortas, J., concurring)). The scope of search

authority in Samson reminds one of the search of Coke’s premises and

the seizure of his children’s poem and his will; there are no limits to the

scope of the search. See White, 31 U. Pitt. L. Rev. at 194 (comparing

broad searches of parolees’ dwelling places to general searches

condemned by Otis).

      Further, the rule in Samson applies to parolees who are above

suspicion. Samson, 547 U.S. at 856–57, 126 S. Ct. at 2202, 165 L. Ed.

2d at 261–62.    Even the lowest objective standard known under the

law—reasonable suspicion—does not apply. Id. Ordinarily, the concept

of individualized suspicion limits not only whether a search may be

conducted, but also the scope of the search. Under Samson, however, a

full search of the home does not even require an inarticulate hunch. See

id.; see also Delaware v. Prouse, 440 U.S. 648, 661, 99 S. Ct. 1391,

1400, 59 L. Ed. 2d 660, 672 (1979) (expressing concern that permitting

searches based upon mere hunches “ ‘would invite intrusions upon

constitutionally guaranteed rights’ ” (quoting Terry, 392 U.S. at 22, 88 S.

Ct. at 1880, 20 L. Ed. 2d at 906)). Such unbridled discretion has been

labeled as the “evil” the Fourth Amendment, and by implication article I,

section 8, was designed to avoid. See Prouse, 440 U.S. at 661, 99 S. Ct.

at 1400, 59 L. Ed. 2d at 672; see also Florida v. Wells, 495 U.S. 1, 4, 110

S. Ct. 1632, 1635, 109 L. Ed. 2d 1, 6 (1990) (criticizing “uncanalized
                                          52

discretion”); Thomas K. Clancy, The Role of Individualized Suspicion in

Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L.

Rev. 483, 488 (1995) (arguing individualized suspicion should be

considered an inherent component of reasonableness); Taslitz at 45

(stating that the Fourth Amendment embraces individualized suspicion).

       In some civil contexts, the existence of an administrative structure

of programmatic restraints has provided a potential alternative to

individualized suspicion.       See Camara, 387 U.S. at 538, 87 S. Ct. at

1735–36, 18 L. Ed. 2d at 940–41.               It is questionable whether such

restraints against arbitrariness are sufficient in the context of general

law enforcement activities. In any event, there are no such limitations in

this case.

       We further note that this case, like Samson, involves a search by a

general law enforcement officer, and not by a parole officer. A properly

limited, nonarbitrary warrantless search of the home by a parole officer

might conceivably be supported under the “special needs” doctrine. As

noted previously, under the special needs doctrine, warrantless searches

to further goals other than general law enforcement have been upheld

under certain facts and circumstances. Nat’l Treasury Employees Union,

489 U.S. at 666–68, 109 S. Ct. at 1391–92, 103 L. Ed. 2d at 703–04;

Griffin, 483 U.S. at 880, 107 S. Ct. at 3172, 97 L. Ed. 2d at 722; T.L.O.,

469 U.S. at 344–47, 105 S. Ct. at 744–46, 83 L. Ed. 2d at 736–38. This

case, however, does not involve a parole officer, but instead involves a

general law enforcement officer. As a result, the special needs doctrine

cannot support the warrantless and suspicionless search in this case. 10


       10The  concurring opinion opines at length about the application of the special
needs test to this case under the Iowa Constitution even though this issue is not before
the court, has not been briefed by the parties, and is not illuminated by a complete
factual record. In effect, the concurring opinion overrules Cullison, which holds that
                                          53

       We also are concerned about the categorical nature of the

reasonableness test adopted by the United States Supreme Court in

Samson.       Under the approach in Samson, an overall assessment of

reasonableness is based not on the particular facts of a case but on

larger policies bolstered by the purported needs of law enforcement. We

bristle at the replacement of a regime of individualized suspicion with

broad categorical judgments when general law enforcement searches of

the home are involved. We are reminded of the admonition of Justice

Frankfurter years ago that one cannot wrench “unreasonable search”

from its text and context into a stand-alone provision. United States v.

Rabinowitz, 339 U.S. 56, 70, 70 S. Ct. 430, 436, 94 L. Ed. 653, 662

(1950) (Frankfurter, J., dissenting).            The notion of particularity and

limitations    of   the   scope     of   searches     are   powerful     elements     of

reasonableness.

       Even assuming a role for balancing, we believe that the Samson

approach undervalues the importance of a parolee’s interest in the home.

The home plays a central role in a person’s life, providing sanctuary,

comfort, seclusion, security, and identity. The sanctity of the home was

a prominent part of the legal landscape in the Wilkes and Paxton cases

and has been repeatedly emphasized by the United States Supreme

Court. Invasions of the home by government officials cannot be regarded

as constitutionally insignificant. As in the majority opinion in Katz, we

find that the protection afforded by article I, section 8 extends beyond

privacy and includes at least some notion of place and security.                    See

Katz, 389 U.S. at 350, 353, 88 S. Ct. at 510, 512, 19 L. Ed. 2d at 581,

__________________________
the warrant and probable cause requirements are fully applicable to searches of
parolees’ homes. We take a more restrained approach and decide only the issue before
us rather than reach out and decide issues not necessary for the resolution of this case.
                                    54

583 (noting that while the concept of “constitutionally protected areas” is

not controlling, Fourth Amendment protections “go further, and often

have nothing to do with privacy”); see also Clancy, Fourth Amendment at

47–48 (explaining that the “Fourth Amendment was a product of the

eighteenth century’s strong concern for the protection of real and

personal property rights against arbitrary and general searches and

seizures”).

      Indeed, to some extent, search and seizure protections must

protect more than mere expectations of privacy if they are to have any

bite at all. As Justice Stevens pointed out in his dissent in Samson, “if

the Government were suddenly to announce on nationwide television

that all homes henceforth would be subject to warrantless entry,” it

simply cannot be that the Fourth Amendment would no longer apply to

searches of the home. See Samson, 547 U.S. at 863, 126 S. Ct. at 2206,

165 L. Ed. 2d at 266 (Stevens, J., dissenting) (quoting Smith v. Maryland,

442 U.S. 735, 741 n.5, 99 S. Ct. 2577, 2580 n.5, 61 L. Ed. 2d 220, 227

n.5 (1979)).

      We also think Samson is fundamentally flawed by regarding a

parolee as more akin to a prisoner than a probationer.              It may be

conceded that a prison “ ‘shares none of the attributes of privacy of a

home, an automobile, an office, or a hotel room.’ ” Hudson, 468 U.S. at

527, 104 S. Ct. at 3201, 82 L. Ed. 2d at 404 (quoting Lanza, 370 U.S. at

143, 82 S. Ct. at 1221, 8 L. Ed. 2d at 388). Yet, a parolee’s home is

nothing like a prison cell. Instead, it is indistinguishable from the home

of any other citizen. As noted in Morrissey v. Brewer, 408 U.S. 471, 482,

92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484, 495 (1972), the condition of a

parolee is “very different from that of confinement in a prison.”
                                     55

      An additional rationale in Samson is a claim that parolees in

California have a greater recidivism rate than probationers and, as a

result, should be treated differently for purposes of search and seizure

analysis. See Samson, 547 U.S. at 853–54, 126 S. Ct. at 2200–01, 165

L. Ed. 2d at 260. There is reason to doubt, however, the empirical claim

in   Samson     that   parolees   have   a   greater   recidivism   rate   than

probationers.    If technical violations of parole are netted out, there is

authority for the proposition that parolees and probationers have about

the same recidivism rate.         James M. Binnall, Commentary, They

Released Me from My Cage . . . But They Still Keep Me Handcuffed: A

Parolee’s Reaction to Samson v. California, 4 Ohio St. J. Crim. L. 541,

543–44 (2007).

      In any event, the basic premise is flawed.            As noted by the

Supreme Court in Edmond,
      [T]he gravity of the threat alone cannot be dispositive of
      questions concerning what means law enforcement officers
      may employ to pursue a given purpose.          Rather, in
      determining whether individualized suspicion is required,
      [the Court] must consider the nature of the interests
      threatened and their connection to the particular law
      enforcement practices at issue.

Edmond, 531 U.S. at 42–43, 121 S. Ct. at 455, 148 L. Ed. 2d at 344; see

also Ferguson, 532 U.S. at 86, 121 S. Ct. at 1293, 149 L. Ed. 2d at 221.

In short, even when considering the public interest in preventing

criminal violations, a search and seizure analysis should be precise and

focused, not sweeping and sprawling with a one-size-fits-all approach.

      We also reject the argument that a person released on parole has

no more rights than if he were incarcerated because the state has the

power to keep a person in prison. This argument, which can take the

form of the “act of grace,” “waiver,” or “constructive custody” theory, was
                                     56

firmly rejected in Morrissey.     The Morrissey Court plainly rejected the

“act of grace” and “waiver” theories by holding that constitutional rights

do not turn on whether the government benefit involved is characterized

as a right or privilege, even in the parole context. Morrissey, 408 U.S. at

481, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494. The Morrissey Court also

found that the constructive custody theory fails to provide a meaningful

framework to assess parolees’ constitutional rights. See id. at 483, 92

S. Ct. at 2601, 33 L. Ed. 2d at 495 (“Although the parolee is often

formally described as being ‘in custody,’ the argument cannot even be

made here that summary treatment is necessary as it may be with

respect to controlling a large group of potentially disruptive prisoners in

actual custody.”).   Commentators are also highly critical of the “act of

grace,” “waiver,” and “constructive custody” theories. See, e.g., 5 LaFave,

Search and Seizure, § 10.10 (a)–(b), at 434–42 (4th ed. 2004) (concluding

that “constructive custody,” “act of grace,” and “waiver theories” are

erroneous). We do not believe these theories are sufficient to authorize

the sweeping search powers embraced in Samson.           Even though the

State may have the power to imprison a parolee, the fact that a parolee is

released into the larger community is the overriding factor for purposes

of search and seizure analysis.

      In sum, we reject the holding of Samson under the Iowa

Constitution. We conclude that a parolee may not be subjected to broad,

warrantless searches by a general law enforcement officer without any

particularized suspicion or limitations to the scope of the search. The

power asserted by the State in this case too closely resembles authority

pursuant to a general warrant, provides no meaningful mechanism to

control arbitrary searches, avoids the warrant preference rule that this

court has traditionally recognized, utilizes a balancing test that
                                    57

improperly weighs the interests involved, and does not adequately

recognize the security and sanctity interests of parolees in their home.

We have no occasion to consider other questions, such as (1) the

potential application of special needs to searches of parolees conducted

by parole officers; (2) whether individualized suspicion amounting to less

than probable cause may be sufficient in some contexts to support a

focused search; (3) whether means other than a warrant may be devised

to limit arbitrary police power in connection with searches of parolees; or

(4) whether a parolee’s failure to consent to a search, or the discovery of

a violation of parole pursuant to an invalid search, may justify parole

revocation.

      VI. Consent.

      There are potentially two separate consent issues in this case. The

first issue is whether, by signing the parole agreement, Ochoa consented

to the search. The second consent issue is whether Ochoa voluntarily

consented to the search at the door of his motel room during his

encounter with Hatler.

      With respect to the issue of consent arising out of the parole

agreement, the colloquy between the court and the State at the

suppression hearing demonstrates that the State expressly declined to

pursue this theory to support the search. The State conceded that the

parole agreement did not waive constitutional rights in any blanket

fashion, but instead simply provided a condition of parole.     The State

merely claimed at the hearing that the encounter at the door of Ochoa’s

motel room established voluntary consent to the search.

      On appeal, however, the State engages in the proverbial switch of

horses in midstream. The State on appeal declines to press the consent-

at-the-door issue, but seeks to resurrect the claim abandoned at the trial
                                   58

court, namely, that Ochoa consented to the search by virtue of his

execution of the parole agreement.      As a result of this procedural

posture, a question arises as to whether the State has waived both the

consent-by-agreement and the consent-at-the-door issues.

      We consider first whether the State has waived the consent-by-

agreement issue. The State conceded at the district court hearing that

the parole agreement did not provide a basis for consent to the

subsequent search by accepting the district court’s narrow interpretation

of the parole agreement and by declining to press the consent-by-

agreement issue before the district court. An argument not made on an

issue before the district court is ordinarily waived. State v. Evans, 671

N.W.2d 720, 724 (Iowa 2003); Donnelly v. Brown, Winick, Graves, Gross,

Baskerville, Schoenebaum, & Walker, P.L.C., 599 N.W.2d 677, 682 (Iowa

1999); State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997).

      On the question of consent pursuant to the encounter at the door,

the State preserved the issue at the district court level. The State did

not, however, raise the issue in its appellate brief.   Instead, the State

relies solely upon the consent by agreement.       Because the issue of

consent at the door is not raised in its appellate brief and is not

inextricably intertwined with any other issues properly before us, we

ordinarily would deem the issue waived.     Hyler v. Garner, 548 N.W.2d

864, 870, 876 (Iowa 1996); Richardson v. Neppl, 182 N.W.2d 384, 390

(Iowa 1970).

      In any event, we agree with the district court that the State failed

to show that the consent at the motel room door was voluntary.          In

Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797

(1968) the Supreme Court held that the burden of proving that consent

was, in fact, freely and voluntarily given rests with the state. Bumper,
                                       59

391 U.S. at 548, 88 S. Ct. at 1792, 20 L. Ed. 2d at 802. The Bumper

Court further observed that the burden “cannot be discharged by

showing no more than acquiescence to a claim of lawful authority.” Id.

at 548–49, 88 S. Ct. at 1792, 20 L. Ed. 2d at 802–03.            A search

conducted in reliance upon an officer’s claim of lawful authority cannot

be justified on the basis of consent if the claim of authority turns out to

be invalid. Id. We came to similar conclusions in two cases. See State v.

Horton, 625 N.W.2d 362, 364 (Iowa 2001); State v. Ahern, 227 N.W.2d

164, 166–67 (Iowa 1975).

      The record in this case demonstrates that Ochoa initially refused

consent to the search, but then acquiesced when Hatler stated, in

response to Ochoa’s question, that he was going to conduct the search

whether or not Ochoa consented.         Under Bumper, Horton, and Ahern,

such acquiescence to an invalid assertion of lawful authority does not

establish consent to the search and, as a result, the search cannot be

supported on this theory.

      VII. Conclusion.

      For the above reasons, we conclude that the warrantless,

suspicionless search of the parolee in his motel room by a general law

enforcement officer violates article I, section 8 of the Iowa Constitution.

As a result, the decision of the court of appeals is vacated, and the

district court judgment is affirmed.

      DECISION OF THE COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Cady, J., who concurs specially.
                                    60
                                                 #08–0412, State v. Ochoa
CADY, Justice (concurring specially).

      I agree with the holding reached by the majority. The search and

seizure clause under the Iowa Constitution does not permit a police

officer exercising general law enforcement authority to conduct a

suspicionless search of a parolee. I write separately because I believe the

majority has not fully identified and explained the key reason for our

departure from a contrary holding by the United States Supreme Court

under the nearly identical Search and Seizure Clause of the Federal

Constitution.

      The test used to decide the validity of a warrantless search under

article I, section 8 is one of reasonableness.     State v. Naujoks, 637

N.W.2d 101, 107 (Iowa 2001). This test balances the individual privacy

interests at stake against the legitimate interests of the state. Id. It is

derived from the language of article I, section 8 and is a test we have

applied in the past. See id. It conforms to the test applied under the

Fourth Amendment to the Federal Constitution.         State v. Kreps, 650

N.W.2d 636, 640–41 (Iowa 2002).

      Of course, the test does not readily determine the outcome; it only

provides the framework for the analysis. The outcome is a product of an

evaluation of the competing interests through the lens of reasonableness.

In the end, if the privacy right left by allowing the government to search

is reduced to a point that would nullify the purposes of the freedoms

demanded by the constitution, the search is unreasonable. On the other

hand, an outcome that supports a warrantless search under the

circumstances of a particular case gives rise to an exception to the

general requirement for a warrant under article I, section 8, which can

then be applied in other similar cases and used to guide government
                                    61

officials in their actions. In this case, the issue is whether an exception

to our warrant requirement authorizes state officials to conduct a search

of a person’s home based solely on the person’s status as a parolee.

      The interests of the state in searching a parolee and the individual

privacy interests of a parolee at stake in this case are the same interests

identified in Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165

L. Ed. 2d 250 (2006).    In deciding if it was reasonable for government

officials to conduct a suspicionless search of a parolee, the Court first

considered the privacy interests of a parolee. Samson, 547 U.S. at 850–

52, 126 S. Ct. at 2198–99, 165 L. Ed. 2d at 258–59.          It found the

parolee’s interests exceeded those of a prisoner, but were less than those

of a probationer and, of course, even less than the privacy interests

possessed by an ordinary citizen.        Id.   The Court determined the

diminished privacy interests of a parolee were justified in our society by

the essential supervision that is attached to parole and the myriad

conditions needed to be imposed on the freedoms of a criminal on parole

from prison for a parole program to succeed, including the condition that

a parolee submit to random searches. Id. at 851–52, 126 S. Ct. at 2199,

165 L. Ed. 2d at 258–59.

      The Court next considered the government interests at stake. Id.

at 853, 126 S. Ct. at 2200, 165 L. Ed. 2d at 259–60. It determined the

state had an overwhelming interest in closely supervising parolees, and

reducing recidivism to promote reintegration in positive citizenship for

parolees.   Id.   In balancing these two competing interests, the court

found the Fourth Amendment did not prohibit a police officer from

searching a parolee without suspicion of criminal activity.    Id. at 857,

126 S. Ct. at 2202, 165 L. Ed. 2d at 262.
                                    62

      The dissenting opinion in Samson quibbled slightly with the extent

to which parole reduces the privacy interests of a parolee relative to an

ordinary citizen, asserting that the privacy interests of parolees should

be on par with those of probationers. Id. at 861–62, 126 S. Ct. at 2204–

05, 165 L. Ed. 2d at 265–66 (Stevens, J., dissenting). Notwithstanding,

the persuasiveness of the dissent can be found in its analysis of the

legitimate government interests at stake.     Importantly, the dissent did

not challenge the legitimacy of the underlying interest of the state to

supervise parolees and place conditions that deprive them of rights

enjoyed by ordinary citizens. It recognizes these legitimate interests may

justify suspicionless searches. The dissent in Samson concluded:

             Had the State imposed as a condition of parole a
      requirement that petitioner submit to random searches by
      his parole officer, who is “supposed to have in mind the
      welfare of the [parolee]” and guide the parolee's transition
      back into society, . . . the condition might have been justified
      . . . under the special needs doctrine . . . . Likewise, this
      might have been a different case . . . if the State had had in
      place programmatic safeguards to ensure evenhandedness.

Id. at 864–65, 126 S. Ct. at 2207, 165 L. Ed. 2d at 267–68 (citation

omitted) (quoting Griffin v. Wisconsin, 483 U.S. 868, 876, 107 S. Ct.

3164, 3170, 97 L. Ed. 2d 709, 719 (1987)).      Nevertheless, the Samson

dissent found such legitimate interests were not served when a search

was done by a police officer who was independent and detached from the

mission of parole and was merely performing general law enforcement

duties.   See id. at 864–65, 126 S. Ct. at 2207, 165 L. Ed. 2d at 267.

Thus, the dissent did not undermine the general legitimacy of the state’s

interest in searching parolees, but suggested the government interest in

searching parolees needed to be carried out by a parole officer so that the

activity could properly fit within the special-needs exception to the
                                           63

warrant requirement relating to searches justified by needs beyond

general law enforcement.

       This observation is the critical point in the analysis. While I agree

with the majority that the State did not satisfy its burden to show

reasonableness based on particular facts and circumstances at the time

of the search, it is also true that individualized suspicion would not be

necessary when the state agent performing the search is furthering the

goals involved with parole as to the particular parolee being searched.

Importantly, the state’s interest in monitoring and supervising a parolee,

while quite legitimate, primarily loses its muscle in this case when

offered to support the actions of a police officer detached from the

mission of supervising and monitoring parolees. On balance, the parole

mission, not a mission of general law enforcement, supplies the state

with its limited right to search a parolee’s home without a warrant. As a

result, the balancing between the relatively minimal privacy interests of a

parolee and the tenuous interests of the state under the circumstances of

this particular case does not favor a search based on parole status alone.

The majority’s opinion fails to recognize this strong interest to monitor

parolees, which must not be lost in any analysis.                 The only fact that

prevents the balancing of interests in this case from tipping in favor of

the state and from ultimately creating a broader special needs

reasonableness exception to search parolees is the absence of a person

who is conducting the search within the rubric of the parole mission. 11

Although a state agent’s identity as a parole officer alone would not


       11Although  we decided previously in State v. Cullison, 173 N.W.2d 533, 537–38
(Iowa 1970), that parole officers are not justified in warrantlessly searching the home of
a parolee based on the parolee’s status alone, we did not, in that case, balance the
legitimate interests of the state in parole supervision with the parolee’s interest in
privacy.
                                    64

create a per se exception in all parolee searches, the confluence of such a

status and the purpose behind a search associated with it is legitimate

and merits strong recognition in a reasonableness analysis.

      It is necessary to recognize the mission of parole in the balancing

analysis because it permits the state to use this interest to supervise and

monitor parolees to conduct searches in those instances when the

interest is actually at stake and, at the same time, protects, as required

by article I, section 8, even those people in our society with the reduced

expectation of privacy from unreasonable intrusions into their lives when

the state’s interest is not at the forefront of the search. Moreover, this

outcome is consistent with the line of cases that distinguish between

special needs unrelated to general law enforcement that support a

suspicionless search and interests involving enforcement of criminal laws

that do not support a suspicionless search.         In those cases involving

mixed criminal and noncriminal interests, the government interests used

to test the reasonableness of the search under the constitution, just as in

this case, are those that form the primary goal or aim of the search. See

Ferguson v. City of Charleston, 532 U.S. 67, 79–81, 121 S. Ct. 1281,

1289–90, 149 L. Ed. 2d 205, 217–19 (2001); see also City of Indianapolis

v. Edmond, 531 U.S. 32, 40, 121 S. Ct. 447, 453, 148 L. Ed. 2d 333, 343

(2000).

      The rights of parolees we recognize under our state constitution

result from an analysis not far removed from the analysis of those rights

identified by the United States Supreme Court. Yet, we must follow an

analysis that allows the real interests at stake to be balanced, which

permits   the   constitutional   requirement   of    reasonableness   to   be

maintained both by the state and the individual.
