              IN THE SUPREME COURT OF IOWA
                              No. 09–1170

                         Filed January 6, 2012


STATE OF IOWA,

      Appellee,

vs.

LEE ALLEN BREUER,

      Appellant.


      On review from the Iowa Court of Appeals.



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

Goodhue, Judge.



      On further review, defendant claims the court of appeals erred in

affirming the district court’s denial of defendant’s motion to suppress.

AFFIRMED.


      Richard E. H. Phelps II of Phelps Law Office, Mingo, for appellant.



      Thomas J. Miller,     Attorney General, Bridget A. Chambers,

Assistant Attorney General, Steven Johnson, County Attorney, and

Michael K. Jacobsen, Assistant County Attorney, for appellee.
                                   2

APPEL, Justice.

      In this case, we consider whether the withdrawal of a blood

specimen pursuant to a search warrant violates the search and seizure

provisions of the Iowa or United States Constitutions when the warrant

is not physically present during the withdrawal.       For the reasons

expressed below, we conclude this case presents no constitutional

violation.

      I. Factual and Procedural Background.

      The material facts are undisputed.     Lee Allen Breuer was the

apparent driver in a one-car accident on Highway 6 in Jasper County.

When Lieutenant Dennis Stevenson of the Jasper County Sheriff’s Office

arrived at the scene, he saw an overturned vehicle in a ditch along the

side of the highway. Breuer was attempting to assist a passenger in the

overturned vehicle.

      At the scene, Stevenson rendered assistance. He detected an odor

of alcohol about Breuer and observed that Breuer was unsteady on his

feet. Stevenson also observed a number of beer cans lying in and around

the car.

      Breuer and the passenger were transported to Grinnell Regional

Medical Center.    At the hospital, Deputy Sheriff Aaron Groves asked

Breuer to provide a breath test, but Breuer refused to provide a sample.

Groves invoked implied consent procedures, including reading Breuer

the implied consent advisory required by Iowa law.    Breuer refused to

provide a blood or urine test.

      Following Breuer’s refusals, Stevenson met with a magistrate in

Newton and obtained a warrant authorizing withdrawal of a blood

specimen from Breuer.      See Iowa Code § 321J.10 (2009).      After he

obtained the warrant, Stevenson called Groves at the hospital in Grinnell
                                      3

and advised Groves he had obtained the warrant and was en route to the

hospital.   Before Stevenson arrived at the hospital with the warrant,

Groves informed Breuer that a search warrant had been obtained and

demanded that Breuer submit to a blood draw. Breuer initially refused,

but after Groves advised him that the blood would be withdrawn by force

if necessary, Breuer acquiesced and a specimen was withdrawn.

      Ten to fifteen minutes after the blood draw, Stevenson arrived at

the hospital with the search warrant. Breuer was then advised that the

warrant had arrived and a copy of it was placed with his belongings at

the hospital. The alcohol content from the specimen provided by Breuer

was 0.171, well over the legal limit for intoxication.

      The passenger in Breuer’s vehicle died as a result of injuries

sustained in the accident. The State charged Breuer with homicide by

vehicle in violation of Iowa Code section 707.6A(1). Breuer filed a motion

to suppress the results of the blood draw, which the district court

denied. The court of appeals affirmed. Breuer filed a motion for further

review, which we granted.

      II. Standard of Review.

      The standard of review of the constitutional issues raised in this

case is de novo. State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010).

      III. Discussion.

      A. Introduction.      The parties agree that the blood draw could

only legally be accomplished with a warrant.        The parties also do not

dispute that the search warrant was supported by probable cause and

was otherwise valid. The sole issue presented in this appeal, therefore, is

whether a blood draw pursuant to Iowa Code section 321J.10 is valid

under the Fourth Amendment and article I, section 8 of the Iowa
                                    4

Constitution when the search warrant for the blood specimen is obtained

but not physically present during the withdrawal.

      B. Federal Caselaw. The Fourth Amendment of the United States

Constitution 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.       As we have noted, the Fourth Amendment

contains both a Warrant Clause and a Reasonableness Clause. State v.

Ochoa, 792 N.W.2d 260, 268 (Iowa 2010). Neither the Warrant Clause

nor the Reasonableness Clause specifically requires that an officer

conducting a search have physical possession of a warrant at the time of

the search. U.S. Const. amend. IV; see also United States v. Banks, 540

U.S. 31, 35, 124 S. Ct. 521, 524–25, 157 L. Ed. 2d 343, 352 (2003)

(observing “[t]he Fourth Amendment says nothing specific about

formalities in exercising a warrant’s authorization”). Further, no party

has identified any historical materials to assist in our analysis of the

narrow question before us.

      The United States Supreme Court has not directly addressed

whether the Fourth Amendment requires a search warrant to be

physically present at the place to be searched when the warrant is

executed.   In two cases, however, the Court has at least implied the

Fourth Amendment imposes no such requirement.

      In Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d

1068 (2004), the Court explained that the particularity requirement of

the Fourth Amendment serves two purposes: to prevent general searches

and to assure “the individual whose property is searched or seized of the
                                    5

lawful authority of the executing officer, his need to search, and the

limits of his power to search.” Groh, 540 U.S. at 561, 124 S. Ct. at 1292,

157 L. Ed. 2d at 1081 (citation and internal quotation marks omitted).

While recognizing the dual purposes of the particularity requirement, the

Court noted that “neither the Fourth Amendment nor Rule 41 of the

Federal Rules of Criminal Procedure requires the executing officer to

serve the warrant on the owner before commencing the search.” Id. at

562 n.5, 124 S. Ct. at 1292 n.5, 157 L. Ed. 2d at 1081 n.5.

      The Court essentially repeated this observation in United States v.

Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006).         In

Grubbs, the Court noted, in the context of a challenge to an anticipatory

search warrant, that neither the Fourth Amendment nor the Federal

Rules of Criminal Procedure requires the executing officer to present the

property owner with a copy of the warrant before conducting the search.

Grubbs, 547 U.S. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205.

According to the Grubbs Court, the particularity requirement of the

Fourth Amendment does “not protect an interest in monitoring

searches.” Id. (citation and internal quotation marks omitted).

      The vast majority of federal lower courts have found, in a wide

variety of settings, that physical presence of a warrant is not required to

support a search under the Fourth Amendment. See, e.g., United States

v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (“[W]e know from

Grubbs and earlier decisions . . . that, whatever the most prudent course

may be, the fourth amendment does not require officers to have a

warrant in hand when searching.”); United States v. Hepperle, 810 F.2d

836, 839 (8th Cir. 1987); United States v. Bonner, 808 F.2d 864, 869 (1st

Cir. 1986); United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981).

Some cases suggest the better practice is to serve the search warrant
                                     6

prior to the search when it is practicable and in keeping with the ends of

justice to do so. See, e.g., Hepperle, 810 F.2d at 839 (“While it may be

foolhardy to proceed in the absence of the physical presence of the

warrant, it is not unconstitutional.”); see also Model Code of Pre-

Arraignment Procedure § SS 220.3(4), at 130 (1975). There is also some

suggestion in the caselaw that the Federal Rules of Criminal Procedure

require officers to leave a copy of the warrant when the officers conclude

the search or when they vacate the premises.         See United States v.

Simons, 206 F.3d 392, 402–03 (4th Cir. 2000) (holding search team

violated Rule 41 by failing to leave a copy of the warrant or receipt of

items taken following the search, but concluding the violation did not

have a constitutional dimension); see also Fed. R. Crim. P. 41(f).

      There are a few outliers in the federal cases. One is United States

v. Gantt, 194 F.3d 987 (9th Cir. 1999), overruled on other grounds by

United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008). In Gantt,

the Ninth Circuit held that the Federal Rules of Criminal Procedure

required federal agents to possess a search warrant before commencing a

search. Gantt, 194 F.3d at 1001. Although the court rested its decision

on the Federal Rules of Criminal Procedure, it noted that the physical

presence of the search warrant at the outset of the search advanced the

Fourth Amendment’s particularity requirement by assuring the property

owner of the lawfulness of the search and by giving “notice to the person

subject to the search what the officers are entitled to seize.” Id. at 1001–

02 (citation and internal quotation marks omitted).        But even Gantt

recognizes that a search warrant need not be physically present where

exigent circumstances exist. Id. at 1004–05. Precedent from the Ninth

Circuit also suggests the court may have reached a different conclusion

had its analysis been restricted to the Fourth Amendment inquiry. See
                                     7

United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978) (reasoning

the Fourth Amendment was not offended even though the search

warrant was absent during the search of the defendant’s residence).

Additionally, Grubbs and Groh cast doubt on Gantt’s continuing validity.

See United States v. Mann, 389 F.3d 869, 875 n.1 (9th Cir. 2004) (stating

“dicta in . . . Groh . . . casts serious doubt both on our interpretation of

Rule 41 and our reasoning in Gantt”).

        C. Caselaw from Other States.         Several state courts have

addressed the issue presented in this case.      State v. Cavanaugh, 635

A.2d 1382 (N.H. 1993), is the leading case holding that physical presence

of a search warrant is not required.     In Cavanaugh, officers began to

search the defendant’s home after being informed by radio that a search

warrant had been obtained. Cavanaugh, 635 A.2d at 1383. The warrant

arrived at the home fifteen minutes after the search began.        Id.     The

defendant argued the search was invalid because the officers did not

have physical possession of the warrant when they initiated the search.

Id.

        The New Hampshire Supreme Court characterized the federal law

on the issue as “settled” and, interpreting the New Hampshire

Constitution, held that a warrant need not be physically present when a

search is commenced. Id. at 1384–85. The court rejected the notion that

the delivery of the warrant to the party being searched would help ensure

police act within the scope of the warrant. Id. The court reasoned that

the police have the “absolute responsibility” to stay within the scope of

the warrant regardless of the knowledge of the property owner.           Id. at

1385.

        An approach similar to that of the New Hampshire Supreme Court

has been followed in a number of states. See, e.g., People v. Rodrigues-
                                             8

Fernandez, 286 Cal. Rptr. 700, 707 (Ct. App. 1991); State v. Gomez, 623

P.2d 110, 117–18 (Idaho 1980); State v. Mims, 524 So. 2d 526, 535–36

(La. Ct. App. 1988); People v. Mahoney, 448 N.E.2d 1321, 1322–23 (N.Y.

1983); Green v. State, 880 S.W.2d 198, 201 (Tex. Ct. App. 1994); see also

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

Amendment § 4.12, at 811 (4th ed. 2004) (stating the prevailing view in

state and federal cases is that officers need only exhibit or deliver

warrant before post-search departure).

        A different view, however, was advanced in Commonwealth v.

Guaba, 632 N.E.2d 1217 (Mass. 1994). In Guaba, the Supreme Judicial

Court of Massachusetts held that searches conducted before the arrival

of the search warrant are per se unreasonable. Guaba, 632 N.E.2d at

1222–23.       The court concluded that the purposes of the particularity

requirement could only be achieved if the officers possessed the warrant

in hand at the time of the search. Id. The failure of officers to physically

possess a search warrant prior to the search, the Guaba court reasoned,

fails “to put the occupant whose premises are to be searched on notice of

the police’s authority to search and the reasons for the search.” 1 Id. at

1223.
        D. Iowa Caselaw. Article I, section 8 and the Fourth Amendment

contain nearly identical language. 2 Although we have not considered the

        1The Supreme Judicial Court of Massachusetts has since limited the scope of
this “notice” rationale. In Commonwealth v. Valerio, 870 N.E.2d 46, 55–56 (Mass.
2007), the court held that, although officers must physically possess the warrant before
starting the search, in light of Grubbs, actual written notice of the officers’ authority to
search need not be given unless the property owner requests to examine the warrant.
        2Article   I, section 8 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.
                                      9

precise issue before us, we have decided several cases that help guide

our analysis. In Bailey v. Lancaster, 470 N.W.2d 351, 358 (Iowa 1991),

we stated that the Reasonableness Clause is a safeguard against

unreasonable execution of search warrants. Thus, even if police officers

have a search warrant, the search must be executed in a reasonable

manner. Id.; see also State v. Kubit, 627 N.W.2d 914, 921 (Iowa 2001)

(stating the knock-and-announce rule is governed by the Reasonableness

Clause), abrogated on other grounds by State v. Turner, 630 N.W.2d 601,

606 n.2 (Iowa 2001).

      Further, our interpretation of article I, section 8 has “generally

endorsed the warrant-preference requirement.”         Ochoa, 792 N.W.2d at

285. “All other things being equal,” we have explained, the “historical

context of the Fourth Amendment suggests a preference for particularity

as a tool to cabin police power.”     Id. at 273.   The requirement that a

warrant “particularly describ[e] the place to be searched, and the persons

and things to be seized,” is a reflection of this preference for particularity.

See Iowa Const. art. I, § 8; Ochoa, 792 N.W.2d at 273.

      The particularity requirement, which is related to the probable

cause requirement, “ensures that nothing is ‘left to the discretion of the

official executing the warrant.’ ” State v. Randle, 555 N.W.2d 666, 669

(Iowa 1996) (quoting State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995));

see also State v. Mehner, 480 N.W.2d 872, 875 (Iowa 1992). In doing so,

the particularity requirement “guards the right of privacy from arbitrary

police intrusion.” State v. Prior, 617 N.W.2d 260, 263 (Iowa 2000). Also,

particularity minimizes “the risk that the officers executing search

warrants will by mistake search a place other than the place intended by

the magistrate.” Mehner, 480 N.W.2d at 875.
                                    10

      E. Analysis. Although Breuer recognizes we are free to interpret

article I, section 8 differently from the Fourth Amendment, Ochoa, 792

N.W.2d at 267, he does not advance a reason for doing so in this case.

Under these circumstances, we ordinarily consider “the substantive

standards under the Iowa Constitution the same as those developed by

the United States Supreme Court under the Federal Constitution.”

Simmons v. State Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010).

However, even when the parties advance no substantive distinction, we

may apply the principles differently. Id.

      At the outset, we note that Iowa has no express constitutional,

statutory, or procedural provision requiring a search warrant to be

physically present before a search may begin.            Like the Fourth

Amendment, neither the Reasonableness Clause nor the Warrant Clause

of article I, section 8 mentions whether the warrant must be physically

present during the search.    Likewise, Iowa Code section 808.5, which

governs the manner in which search warrants are to be executed, is

silent on the issue.   See Iowa Code § 808.5.     Also, Iowa Code section

808.8 requires officers to provide a receipt or inventory of items taken

after the search, but it creates in the officers no obligation to possess or

present the warrant before the search begins.           See id. § 808.8.

Furthermore, the Iowa Rules of Criminal Procedure contain no rule

explicitly requiring officers to be in physical possession of the search

warrant before they may begin searching.

      Breuer, in part, relies on Iowa Code section 321J.10(3)(b), which

requires a duplicate warrant to be made if the warrant to obtain a blood

specimen is obtained by telephone.          Breuer argues that such a

requirement for a duplicate warrant would be meaningless if the officers

were not required to possess the warrant before the blood draw. This
                                       11

argument overlooks other important objectives served by requiring the

duplicate warrant.      The duplicate-warrant requirement “preserve[s] the

integrity of the record for review in any ensuing criminal litigation,”

“requires the issuing Judge to focus specifically and deliberately on the

warrant’s particular description,” and “insures that the search is only as

extensive as the invasion of privacy that was actually authorized.” People

v. Crandall, 489 N.Y.S.2d 614, 618 (App. Div. 1985); see also Cazares-

Olivas, 515 F.3d at 729–30 (holding that the agents’ failure to possess

duplicate warrant required by the federal telephonic-warrant procedure

did not violate the Fourth Amendment).

         We agree with the prevailing view that neither the Fourth

Amendment nor article I, section 8 requires a search warrant to be

physically present at the place to be searched before the search may

begin.     We are unpersuaded by the reasoning in Guaba insofar as it

presupposes the Fourth Amendment or article I, section 8 creates in

property owners a constitutionally protected interest in monitoring

searches executed pursuant to a valid search warrant. See Grubbs, 547

U.S. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205.              The Fourth

Amendment and article I, section 8
         protect[] property owners not by giving them license to
         engage the police in a debate over the basis for the warrant,
         but by imposing, ex ante, the “deliberate, impartial judgment
         of a judicial officer . . . between the citizen and the police,”
         and by providing, ex post, a right to suppress evidence
         improperly obtained and a cause of action for damages.

Id. (quoting Wong Sun v. United States, 371 U.S. 471, 481–82, 83 S. Ct.

407, 414, 9 L. Ed. 2d 441, 451 (1963)); cf. In re Detention of Shaffer, 769

N.W.2d 169, 174–75 (Iowa 2009) (“[I]t is a fundamental principle of law

that, when a court has authority to make an order and jurisdiction over

the subjects of the order, an order by the court must be obeyed
                                     12

regardless of the substantive legality of the order[.]”); Smith v. State, 542

N.W.2d 567, 569 (Iowa 1996) (stating that “one may be guilty of the

crime of resisting arrest even if the initial arrest is illegal”).   It is the

responsibility of the officers executing the search warrant to stay within

the scope of the warrant. See Cavanaugh, 635 A.2d at 1385. Officers

who fail to do so risk suppression of valuable evidence and create in the

property owner a cause of action for damages. See 42 U.S.C.A. § 1983

(West, Westlaw through P.L. 112-54 (excluding P.L. 112-40)); State v.

Schrier, 283 N.W.2d 338, 342 (Iowa 1979) (stating illegally seized

evidence is “inadmissible in a prosecution, no matter how relevant or

probative the evidence may be”). While it may be ill-advised to proceed

without the warrant in hand, neither the Fourth Amendment nor article

I, section 8 is violated when officers commence a search without physical

possession of a search warrant.

      This is especially true in a case such as this where little was left to

the discretion of the officers. The warrant was supported by probable

cause and signed by a neutral, detached magistrate.            See State v.

Fremont, 749 N.W.2d 234, 237 (Iowa 2008).             The search warrant

particularly described who was to be searched (Breuer) and what was to

be seized (a blood specimen).     The search began only after the officer

executing the warrant had been advised by the officer procuring the

warrant that the warrant had been signed by a magistrate and was “in

hand.” Following the search, the officers provided Breuer a copy of the

warrant by placing it with Breuer’s possessions.

      Additionally, the officers’ discretion in executing the warrant was

circumscribed by statute.      Iowa Code section 321J.11 contains the

procedure by which a blood specimen may be obtained. It states that a

blood specimen may be withdrawn only by a “licensed physician, licensed
                                   13

physician assistant as defined in section 148C.1, medical technologist, or

registered nurse.”   Iowa Code § 321J.11.     The person withdrawing the

blood specimen must be acting at the request of a peace officer.       Id.

Section 321J.11 further provides that “[o]nly new equipment kept under

strictly sanitary and sterile conditions shall be used for drawing blood.”

Id.   Under these circumstances, we are satisfied that the executing

officer’s discretion was sufficiently cabined such that Breuer was

protected from arbitrary police intrusion.    See Mehner, 480 N.W.2d at

875; see also Randle, 555 N.W.2d at 669.

      Breuer further argues that the knock-and-announce principle

counsels us to consider, as part of the reasonableness analysis, the

physical presence of the warrant. The knock-and-announce rule became

part of the Fourth Amendment reasonableness inquiry in Wilson v.

Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 1916, 131 L. Ed. 2d 976,

980 (1995). In Wilson, the Court reasoned that the knock-and-announce

rule was firmly rooted in our common law tradition and concluded:
      Given the longstanding common-law endorsement of the
      practice of announcement, we have little doubt that the
      Framers of the Fourth Amendment thought that the method
      of an officer’s entry into a dwelling was among the factors to
      be considered in assessing the reasonableness of a search or
      seizure. Contrary to the decision below, we hold that in
      some circumstances an officer’s unannounced entry into a
      home might be unreasonable under the Fourth Amendment.

Wilson, 514 U.S. at 934, 115 S. Ct. at 1918, 131 L. Ed. 2d at 982.

      The knock-and-announce rule is codified at Iowa Code section

808.6. We have also recognized the common law origins of the statutory

knock-and-announce      requirement     and    that   it   embodies    the

reasonableness requirement of the Fourth Amendment. State v. Brown,

253 N.W.2d 601, 602 (Iowa 1977). Moreover, we have stated that the

knock-and-announce rule advances three purposes: “To avoid property
                                    14

damage resulting from forcible entry, to prevent violence and personal

injury, and to protect the privacy of occupants.”    State v. Farber, 314

N.W.2d 365, 369–70 (Iowa 1982).

      The common law origin of the knock-and-announce rule and its

acceptance into early American law were the salient, if not the

dispositive, factors of the Court’s decision in Wilson.   See Wilson, 514

U.S. at 934, 115 S. Ct. at 1918, 131 L. Ed. 2d at 982. Yet Breuer fails to

cite any authority suggesting that common law courts required officers to

be in physical possession of a search warrant before a lawful search

could begin.   In fact, there is some authority for the proposition that

common law courts were more concerned that officers gave notice prior

to entry and less concerned with what form of notice was provided. See,

e.g., Case of Richard Curtis, (1757) 168 Eng. Rep. 67, 68 (“[N]o precise

form of words is required in a case of this kind. It is sufficient that the

party hath notice, that the officer cometh not as a mere trespasser, but

claiming to act under a proper authority.”).

      Here, Groves provided sufficient notice of his authority and intent

to withdraw a specimen of Breuer’s blood.      The physical absence of a

search warrant may theoretically increase the potential for confrontation

and violence, see Hepperle, 810 F.2d at 839, but the mere potential for

violence in this context, without more, is insufficient to invalidate the

search.   Unlike the knock-and-announce context, the relationship

between the absence of a search warrant and unnecessary property

damage and violence is too tenuous to implicate either article I, section 8

or the Fourth Amendment.

      It may be that the use of force exhibited by officers in executing a

search warrant pursuant to Iowa Code section 321J.10 could offend the

Reasonableness Clause of article I, section 8 or the Fourth Amendment.
                                    15

In this case, however, Breuer’s search-and-seizure rights were not

offended by the methods Groves employed to execute the search warrant.

At no point did Breuer request to see the warrant, and he did not

question the veracity of Groves’ assertion that a warrant had been

obtained. Once Stevenson obtained the warrant, Groves advised Breuer

that a warrant had been secured. Breuer then stated that he thought he

could refuse.   Groves explained that, because a warrant authorized a

blood draw, Breuer’s consent was no longer required and force would be

used if necessary. See State v. Owens, 418 N.W.2d 340, 344 (Iowa 1988)

(permitting use of physical force to withdraw blood from a suspected

drunk driver). Once the warrant arrived a few minutes later, a copy was

left in Breuer’s hospital room. Under these facts, the seizure of Breuer’s

blood for chemical testing was reasonable.

      IV. Conclusion.

      For   these   reasons,   we   conclude   that   neither   the   Fourth

Amendment nor article I, section 8 required the search warrant to be

physically present before the search could begin. We, therefore, affirm

the district court and court of appeals.

      AFFIRMED.

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