              IN THE SUPREME COURT OF IOWA
                              No. 08–1862

                       Filed November 24, 2010


STATE OF IOWA,

      Appellant,

vs.

DONNA KAY LOUWRENS,

      Appellee.


      Appeal from the Iowa District Court for Emmet County, Donald J.

Bormann, District Associate Judge.



      On discretionary review, the State contends the district court

erred in granting the defendant‘s motion to suppress. AFFIRMED.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, and Douglas R. Hansen, County Attorney, for

appellant.



      John L. Sandy of Sandy Law Firm, P.C., Spirit Lake, for appellee.
                                         2

HECHT, Justice.

      This case presents an issue of first impression in this state—

whether evidence obtained after police stopped a vehicle based on a

mistake of law must be suppressed as a violation of the Fourth

Amendment.       We conclude the district court correctly determined the

evidence derived from a stop based on a law enforcement officer‘s

mistake of law must be suppressed.

      I. Background Facts and Proceedings.

      Shortly before 1:00 a.m. on May 25, 2008, local police officers
observed a car make a U-turn on Central Avenue in Estherville.

Knowing that an Estherville ordinance prohibits U-turns anywhere on

Central Avenue, the officers believed the driver had committed a traffic

violation and stopped the car.          When the officers interacted with the

driver, Donna Louwrens, they suspected she was intoxicated.                  After

failing   several   sobriety   tests,   Louwrens    was   taken   to   the    law

enforcement center where breath testing indicated Louwrens‘s blood-

alcohol content was above the legal limit.            She was charged with

operating a vehicle while intoxicated.

      Louwrens moved to suppress all evidence seized as a result of the

traffic stop because ―there was no probable cause to justify the police in

stopping‖ her car. The State resisted the motion to suppress, and the

parties submitted a stipulated statement of facts for the district court‘s

consideration.      The parties stipulated that although an Estherville

ordinance prohibits U-turns anywhere on Central Avenue, state law,

specifically Iowa Code section 321.237 (2007), dictates that such turning

restrictions are not effective until signs are posted in the restricted
areas. The parties further stipulated that no signs were posted in the

area where Louwrens made her U-turn.             The stipulation included the
                                            3

State‘s concession ―that enforcement (i.e. conviction) on the No U-turn

ordinance is doubtful given the lack of proper signage.‖1

       The district court concluded the officers‘ mistake of law could not

provide probable cause for the traffic stop and granted Louwrens‘s

motion to suppress. We granted the State‘s application for discretionary

review of the district court‘s decision.

       II. Scope of Review.

       We review constitutional claims de novo.                  State v. Lloyd, 701

N.W.2d 678, 680 (Iowa 2005). We independently review ― ‗the totality of
the circumstances as shown by the entire record.‘ ‖ State v. Turner, 630

N.W.2d 601, 606 (Iowa 2001) (quoting State v. Howard, 509 N.W.2d 764,

767 (Iowa 1993)). We will give deference to the factual findings of the

district court, but are not bound by them. Id.

       III. Discussion.

       The district court granted Louwrens‘s motion to suppress,

concluding the officers‘ mistake of law could not justify the traffic stop.

The State contends this was error and argues that a reasonable mistake

of law by the officer should justify a traffic stop.

       As a starting point, it is well-established that the Fourth

Amendment to the United States Constitution prohibits unreasonable




       1On   appeal, the State‘s brief notes in passing that the signage requirement in
Iowa Code section 321.237 does not apply to a local prohibition of U-turns and
suggests the officers made no mistake of law. This issue was waived because it was
not presented in the district court. State v. Brown, 168 N.W.2d 922, 923 (Iowa 1969)
(―Ordinarily issues not raised in the trial court will not be entertained on appeal.‖); see
also Field v. Palmer, 592 N.W.2d 347, 350 n.1 (Iowa 1999). Moreover, passing
reference to an issue, unsupported by authority or argument, is insufficient to raise
the issue on appeal. See Baker v. City of Iowa City, 750 N.W.2d 93, 102–03 (Iowa
2008) (holding a conclusory statement without argument or supporting authority
waives an issue).
                                            4

searches and seizures by the government.2                   State v. Kinkead, 570

N.W.2d 97, 100 (Iowa 1997).            The Fourth Amendment‘s proscriptions

apply to state governments by way of the Due Process Clause of the

Fourteenth Amendment.            Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct.

1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961).                 Generally, this means a

search or seizure must take place pursuant to a warrant issued by a

judicial officer and that searches conducted without a warrant are

unreasonable, unless an exception to the warrant requirement applies.

Kinkead, 570 N.W.2d at 100.
       One such exception authorizes a law enforcement officer to stop a

vehicle when the officer observes a traffic violation, no matter how

minor.3 State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). The burden

is on the State to prove by a preponderance of the evidence that the

officer had probable cause to stop the vehicle. Id. If the State does not

meet this burden, the evidence obtained through the stop must be

suppressed.        Kinkead, 570 N.W.2d at 100.                 We have previously

determined that an officer‘s reasonable mistake of fact supporting his

belief that a traffic violation or other criminal activity is underway will

suffice as probable cause for a stop. Id. at 101; Lloyd, 701 N.W.2d at

680.

       2Louwrens   did not argue in her motion to suppress that the officers‘ actions
violated the Iowa Constitution. In fact, Louwrens‘s motion cited to neither the Federal
nor the Iowa Constitution. The district court, however, treated Louwrens‘s challenge
as a Fourth Amendment claim and relied solely on the Fourth Amendment to reach its
decision.
        3Police may also stop a vehicle for a brief investigatory stop if they have

reasonable suspicion to believe that criminal activity is occurring, such as when
officers observe erratic, but not illegal, driving that would indicate the operator of the
vehicle is intoxicated. State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004). However, no
allegation has been made in this case that the officers had grounds to suspect
Louwrens was driving while intoxicated until they interacted with her during the stop.
Accordingly, we will limit our analysis to determining whether the officers had probable
cause to believe a traffic violation had occurred.
                                    5

      This case, however, presents a different question: May an officer‘s

mistake of law provide probable cause to authorize a traffic stop? We

mentioned, but did not decide this question in Lloyd. 701 N.W.2d at

680 n.1.   A majority of courts that have considered the issue have

concluded a mistake of law cannot provide probable cause to justify a

traffic stop. See United States v. McDonald, 453 F.3d 958, 962 (7th Cir.

2006); United States v. DeGasso, 369 F.3d 1139, 1144–45 (10th Cir.

2004); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.

2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000);
United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).

      The State, however, urges us to adopt the minority view held by

the Eighth Circuit Court of Appeals. That court has concluded ―the legal

determination of whether probable cause or reasonable suspicion

existed for [a] stop is judged by whether the mistake of law was an

‗objectively reasonable one.‘ ‖   United States v. Washington, 455 F.3d

824, 827 (8th Cir. 2006) (quoting United States v. Smart, 393 F.3d 767,

770 (8th Cir. 2005)).

      However, our review of the development of the Eighth Circuit‘s

position does not convince us to follow suit. In Smart, a case in which

the officer ―made neither a mistake of law nor one of fact,‖ the Eighth

Circuit stated that ―in our circuit the distinction between a mistake of

law and a mistake of fact is irrelevant to the fourth amendment inquiry.‖

393 F.3d at 769, 770 (citing United States v. Sanders, 196 F.3d 910 (8th

Cir. 1999)).   However, Sanders, the case cited by the court for this

proposition, was not analyzed as a ―mistake‖ case and did not discuss

the distinction between a mistake of law and mistake of fact for Fourth
Amendment purposes. See Sanders, 196 F.3d at 912–13. It was not

until later that year that the Eighth Circuit applied the principle
                                     6

announced in Smart in a case actually involving a mistake of law.

United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005). It did so

without any discussion of the competing view that a mistake of law

cannot provide probable cause to justify a traffic stop. In a subsequent

decision, the court acknowledged the development of a different rule in

other circuits, but did not discuss the rationale supporting that rule.

Washington, 455 F.3d at 827 n.1.

      Although we can appreciate the appeal of the symmetry of the

Eighth Circuit‘s approach treating all mistakes alike, we are ultimately
persuaded that the approach acknowledging a fundamental distinction

between an officer‘s mistake of fact and mistake of law is better-

reasoned. The circuits applying the majority rule begin their analysis

with the proposition that ― ‗[t]he touchstone of the Fourth Amendment is

reasonableness.‘ ‖   Chanthasouxat, 342 F.3d at 1275 (quoting United

States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 591, 151 L. Ed. 2d

497, 505 (2001)). They note that ―great deference‖ is given to an officer‘s

assessment of facts and recognize that an officer‘s mistake of fact may

provide the necessary grounds to justify a stop, as long as the officer‘s

assessment was reasonable. Id. at 1276. However, courts applying the

majority rule temper this deference by evaluating the existence of

probable cause for a stop ― ‗from the standpoint of an objectively

reasonable police officer.‘ ‖   Id. (quoting Ornelas v. United States, 517

U.S. 690, 696, 116 S. Ct. 1657, 1661–62, 134 L. Ed. 2d 911, 919

(1996)).
      [L]aw enforcement officers [have] broad leeway to conduct
      searches and seizures regardless of whether their subjective
      intent corresponds to the legal justification for their actions.
      But the flip side of that leeway is that the legal justification
      must be objectively grounded.
                                    7

Miller, 146 F.3d at 279 (footnote omitted). Courts applying the majority

rule have concluded that the legal justification for a stop based on

conduct accurately observed but mistakenly understood by officers to be

illegal is not ―objectively grounded.‖   Id.; accord Chanthasouxat, 342

F.3d at 1279.

      The Ninth Circuit has further reasoned in support of its adoption

of the majority rule that allowing officers to justify a stop based on a

misunderstanding of the law ―would remove the incentive for police to

make certain that they properly understand the law they are entrusted
to enforce and obey.‖ United States v. Lopez-Soto, 205 F.3d 1101, 1106

(9th Cir. 2000). Using similar reasoning, the Eleventh Circuit rejected

an argument that a vague or ambiguous statute should excuse an

officer‘s mistaken interpretation, concluding that even if the statute at

issue were ambiguous, it would be inappropriate to use the ambiguity of

a statute against a defendant. Chanthasouxat, 342 F.3d at 1278. ―We

. . . note the fundamental unfairness of holding citizens to ‗the

traditional rule that ignorance of the law is no excuse‘ while allowing

those ‗entrusted to enforce‘ the law to be ignorant of it.‖   Id. at 1280

(quoting Bryan v. United States, 524 U.S. 184, 196, 118 S. Ct. 1939,

1947, 141 L. Ed. 2d 197, 208 (1998)).

      The State contends that the Third Circuit Court of Appeals‘

decision in United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006),

supports its position that a stop may be justified by an officer‘s mistake

of law.   We do not interpret Delfin-Colina to support a ruling in the

State‘s favor in this case.   Instead we read Delfin-Colina as implicitly

adopting the majority approach distinguishing between mistakes of fact
and mistakes of law. 464 F.3d at 398–99 (discussing decisions of the

Fifth, Ninth, and Eleventh Circuits).    However, the Third Circuit in
                                     8

Delfin-Colina was confronted with a situation not yet faced by the other

circuits adhering to the majority rule—a stop based on an officer‘s

incorrect understanding of the law for conduct which nevertheless

constituted, when viewed objectively, a violation of existing law. Id. at

399–400.     The Third Circuit concluded that the fact that the officer

misunderstood the scope of a traffic law, and thus made a mistake of

law, did not end the analysis.     Id. at 399.   The court determined the

question of whether sufficient cause existed to make a traffic stop must

be viewed from the perspective of an objectively reasonable officer and
not based on the subjective motivations of the officer making the stop.

Id.; see also Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769,

1774, 135 L. Ed. 2d 89, 98 (1996); Miller, 146 F.3d at 279. The Third

Circuit concluded that because the stop was objectively grounded in

existing law, the officer‘s subjective understanding of the law was

irrelevant. Delfin-Colina, 464 F.3d at 399–400.

        We find the Delfin-Colina analysis fundamentally inapt in this case

because we are bound by a stipulation that the officers made a mistake

of law and that the no U-turn ordinance is unenforceable against

Louwrens due to lack of signage. Under these circumstances, even if the

Delfin-Colina test were applied, there was no objective legal basis for the

stop.

        The State also contends that we should adopt the minority view of

the Eighth Circuit to avoid ―an odd inconsistency if evidence discovered

as a mistake of law were admissible in federal but not state court.‖

Without further explanation of the harm which would result from this

―odd inconsistency,‖ we decline to adopt an approach to Fourth
Amendment jurisprudence that we find unsound simply to avoid it.
                                          9

         The State‘s final argument is that because it can sometimes be
difficult to determine whether the officer has made a mistake of fact or
mistake of law, the court‘s time is more efficiently spent by addressing
the reasonableness of the officer‘s belief rather than by identifying the
exact nature of the mistake.      See United States v. Tibbetts, 396 F.3d
1132, 1139 (10th Cir. 2005) (remanding to the district court to
―determine whether [the officer‘s] belief that the law was violated . . . was
correct, a reasonable mistake of fact, or an impermissible mistake of
law‖).     In fact, the State argues that this case could easily be
characterized as a mistake of fact rather than a mistake of law.         ―[I]t
could be argued the officers made a mistake of fact about whether there
were signs prohibiting U-turns on Central Avenue.‖        While we do not
doubt there may be cases in which the distinction between mistake of
fact and mistake of law will be difficult to distinguish, we are confident
in the majority of cases the type of mistake can be easily identified with
the officer‘s frank testimony as to what he or she thought the law was
and what facts led him or her to believe the law was being violated.
While it may be easy to hypothesize various scenarios which might
convert this case from one involving a mistake of law to a mistake of
fact, we will not engage in such speculation.      The record contains no
testimony from the officers themselves but rather consists solely of a
stipulation by the parties that a mistake of law was made.
         For the reasons described above, we conclude the district court
properly granted Louwrens‘s motion to suppress because the officers‘
mistake of law cannot provide the necessary probable cause to justify
the traffic stop at issue in this case.
         AFFIRMED.
         All justices concur except Cady and Streit, JJ., who concur
specially.
                                    10
                                              #08–1862, State v. Louwrens

CADY, Justice (special concurrence).

      I agree in the result reached by the majority, but disagree with its

reasoning. The majority adopts one rule of law over another to decide

the issue in this case under a set of facts in which either rule would

reach the same decision. I believe we should wait to decide between the

better of the two rules of law when the facts allow the fine points of the

rules to be fleshed out and their true merits revealed.

      The majority identifies the issue in the case as whether a mistake

of law by a police officer may provide probable cause to authorize a

traffic stop. It then identifies the existence of two schools of thought—a

majority rule that concludes mistake of law cannot provide probable

cause and a minority rule that uses the reasonableness standard of the

Fourth Amendment to gauge whether a mistake can provide probable

cause for a stop.

      Not surprisingly, the two rules originate at the same spot—the

Reasonableness Clause of the Fourth Amendment.            It is universally

agreed that a stop is reasonable as long as the police officer reasonably

believed a criminal offense was committed, even if a defendant was not

actually committing an offense.    United States v. McDonald, 453 F.3d
958, 960 (7th Cir. 2006). From this point, the majority reasons that a

police officer‘s mistaken belief in the existence of a law prohibiting the

conduct can never support probable cause because such a belief could

never be objectively reasonable.    Id. at 961.   Of course, many policy

grounds accompany this position, as the majority identifies.      Yet, the

minority rule actually reaches the same conclusion, and the real
difference between the two approaches appears to be the willingness of

the minority rule to recognize that the distinction between a mistake of
                                   11

law and a mistake of fact can be very difficult to discern and depends

upon the particular facts and circumstances in each case. Application

of law always depends upon the facts. The minority approach simply

stays with the reasonableness doctrine throughout the analysis to sort

through those facts and circumstances of the case to determine if a stop

tainted with mistaken impressions of the law by the police officer could

nevertheless be objectively reasonable.    Yet, in those cases, like this

case, in which no law actually covered the conduct observed by the

police officer, the mistaken belief of the police officer that the conduct
violated the law can never be objectively reasonable under the minority

rule. See United States v. Washington, 455 F.3d 824, 827–28 (8th Cir.

2006) (holding mistake of law is not objectively reasonable when the

police officer believed a cracked windshield violated the law, but the

actual law only prohibited physical objects on a windshield that

obstructed the driver‘s view).    Yet, like the minority rule, even the

majority rule would permit an officer‘s mistaken impression of the law to

support probable cause, as long as the law relied upon to make the stop

otherwise prohibited the conduct. See United States v. Muriel, 418 F.3d

720, 724 (7th Cir. 2005) (finding mistake by a police officer that the

tailgating law utilized a two-car-length rule nevertheless supported

probable cause because a law did exist prohibiting tailgating, and the

facts supported a violation of the law); see also United States v. Martin,

411 F.3d 998, 1001–02 (8th Cir. 2005) (finding officer‘s mistaken belief

that operating a motor vehicle with one nonfunctioning brake light

violated the law was objectively reasonable due to the statute‘s

ambiguous terms).
      Accordingly, there appears to be little difference between the two

approaches in the law. The majority rule seems to address the specific
                                      12

situation when no law exists that prohibits the conduct witnessed by a

police officer, and the minority rule is in agreement that no probable

cause could be found in such a situation. The majority rule does utilize

policy arguments to support its position, yet those policy arguments are

inherent in the Fourth Amendment standard of reasonableness relied

upon by the minority rule.     In truth, the minority rule appears to be

more helpful in its analysis because it allows for a principled resolution

in those cases involving a mistake of law caused by a mistaken

application of the facts. The majority rule applies to pure mistake-of-law
cases and requires a separate analysis of the distinction between

mistake of law and mistake of fact to resolve the more difficult cases.

      As a result, I believe we should not adopt what has been described

as the majority rule until we have a set of facts that would allow us to

gain a full understanding of the best rule or approach to follow. The

facts are an important component in a legal analysis, and the rule we

adopt should reflect this analysis.

      Streit, J., joins this special concurrence.
