                 IN THE SUPREME COURT OF IOWA
                              No. 08–1132

                        Filed November 12, 2010

STATE OF IOWA,

      Appellee,

vs.

JOSHUA DANIEL FLEMING,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, John C.

Nelson, Judge.



      The defendant appeals from his conviction for possession of

marijuana, contending the district court erred in overruling his motion to

suppress and arguing that when officers obtain a search warrant for a

single-family residence they must obtain a separate warrant to search a

rented room located therein.     DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds,

Assistant Appellate Defender, for appellant.
                                    2

      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorneys General, Patrick Jennings, County Attorney, and Jayme

Kirsch, Assistant County Attorney, for appellee.
                                    3

BAKER, Justice.

      The defendant, Joshua Fleming, appeals from his conviction for

possession of marijuana.      He contends the district court erred in

overruling his motion to suppress and argues that when officers obtain a

search warrant for a single-family residence they must obtain a separate

warrant to search a rented room located therein. We find Fleming had a

reasonable expectation of privacy in his bedroom, and the officers

violated that interest by searching his bedroom without obtaining a

search warrant authorizing a search of that area.     The decision of the

court of appeals is vacated and the district court judgment reversed.

      I. Background Facts and Proceedings.

      Joshua Fleming was charged by trial information with possession

of a controlled substance in violation of Iowa Code section 124.401(5)

(2007). This charge stemmed from a search warrant that was executed

at 922 Wright Avenue, Sioux City, Iowa.       The search uncovered six

pounds of marijuana and $14,000 in cash.       It also uncovered a small

amount of marijuana that was found in Fleming’s bedroom.

      The search warrant was based upon a traffic stop made by Officer

William Nice after Nice pulled over Cory Leckband and Jacob Lammers

for failure to wear a seatbelt. Nice testified that when he approached the

vehicle he could smell marijuana emanating from the vehicle and asked

the men how long it had been since they last smoked marijuana.

Leckband answered that it had been about thirty minutes, and both men

were arrested.

      In post Miranda interviews, Lammers and Leckband both told the

officer that they were on their way to purchase one pound of marijuana

from an individual named Andrew Nearman. Both men indicated that

Nearman lived in the Riverside area of Sioux City. Lammers also gave
                                    4

police a description of the vehicle Nearman drove and agreed to take the

police to the location of Nearman’s residence.     The police were also

informed that other roommates lived at the residence. The Sioux City

police dispatcher verified that the home pointed out by Lammers

belonged to Nearman and that Nearman’s vehicle was registered at that

address.

      Based upon this information, the officers obtained a search

warrant for Nearman’s residence authorizing a search for marijuana and

related items in the possession of Nearman. Several officers knocked on

the front door of the residence. They reported that Fleming went to the

front door, looked through the glass portion, saw it was the police, and

turned and walked away from the door. At that point, the officers broke

the door down. They detained two men in the living room. Fleming was

located and detained in the dining room. Nearman was found in a back

room by the kitchen and detained. All four of the men were identified

and detained in the dining room for the duration of the search.

      After detaining the men, the officers searched the entire residence.

They found a guitar case containing marijuana in the basement, a large

duffel bag containing approximately five pounds of marijuana under

Nearman’s bed, and $14,000 in cash inside Nearman’s bedside table.

They also found small quantities of marijuana in the other two

bedrooms.    Fleming’s bedroom was searched by Officer Troy Hansen.

Hansen testified that he saw papers for a Progressive Insurance policy

made out to Fleming listing the Nearman home as his residence. Hansen

also found a baggy of marijuana on the floor of the closet.       Fleming

remained detained in the kitchen, but none of the officers talked to him

about the items found in the bedroom or inquired about whether he lived

at the residence.
                                     5

        Fleming filed a motion to suppress any physical evidence recovered

by the officers.    Fleming argued that the evidence was obtained in

violation of his Fourth Amendment rights guaranteed by the United

States Constitution and article I, section 8 of the Iowa Constitution.

Fleming claimed the application for the search warrant was defective

because it failed to establish the reliability and veracity of the

informants. He also claimed the search of his bedroom was outside the

scope of the warrant because he had exclusive possession of the room,

and Iowa does not recognize a good faith exception to the exclusionary

rule.

        A hearing was held on Fleming’s motion where he testified that he

rented his room from Nearman for $375 a month and had exclusive

possession of the room.     The district court held that the scope of the

warrant extended to Fleming’s room as the warrant contemplated the

entire residence at 922 Wright Avenue, and Fleming did not have a

reasonable expectation of privacy in his bedroom. A bench trial was held

on Fleming’s possession charge, and the court found Fleming guilty.

        Fleming appealed, once again claiming that the search of his

bedroom was outside the scope of the warrant. His appeal was routed to

the court of appeals.    The court of appeals affirmed the district court.

Fleming then filed an application for further review with this court, which

we accepted.

        II. Scope of Review.

        Fleming claims that the search of his bedroom was in violation of

his Fourth Amendment rights under the United States Constitution and

article I, section 8 of the Iowa Constitution. Our review of his claim is

therefore de novo. State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007).
                                     6
      This review requires “ ‘an independent evaluation of the
      totality of the circumstances as shown by the entire
      record.’ ” In doing so, we give deference to the factual
      findings of the district court due to its opportunity to
      evaluate the credibility of the witnesses, but are not bound
      by such findings.

Id. (quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)).

      III. Discussion and Analysis.

      The specific question we must determine is whether a separate

search warrant was required for a room rented within Nearman’s house.

Fleming has alleged the search of his rented room violated his right to be

free from unreasonable search and seizure guaranteed under both the

United States Constitution and 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.

Iowa Const. art. I, sec. 8. The Fourth Amendment to the United States

Constitution guarantees:

            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.     The constitutional guarantees of the Fourth

Amendment have been declared enforceable against the states through

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, the rights contained in the Fourth Amendment and the

Iowa Constitution are “deemed to be identical in scope, import, and
                                     7

purpose.”    State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).           In

evaluating claims under the Iowa Constitution, the United States

Supreme Court interpretation of a parallel federal constitutional

provision may be persuasive authority, but is no more binding on this

court on the state constitutional issue than the cases of other state

supreme courts.     We jealously reserve the right to interpret our state

constitution in a fashion that provides greater protection. State v. Cline,

617 N.W.2d 277, 284–85 (Iowa 2000) (“[A]lthough this court cannot

interpret the Iowa Constitution to provide less protection than that

provided by the United States Constitution, the court is free to interpret

our constitution as providing greater protection for our citizens’

constitutional rights.”), overruled on other grounds by Turner, 630 N.W.2d

at 606 n. 2; see also Graves v. State, 708 So. 2d 858, 861 (Miss. 1997)

(declaring the state constitution provides greater protection of an

individual’s reasonable expectation of privacy than that provided under

the federal law).

      In determining whether there has been a Fourth Amendment

violation, this court has adopted a two-step approach. State v. Legg, 633

N.W.2d 763, 767 (Iowa 2001).       “First, we decide whether the person

challenging the search has shown a legitimate expectation of privacy in

the area searched.     If so, we then ‘consider whether the State has

unreasonably invaded that protected interest.’ ”      Id. (quoting State v.

Breuer, 577 N.W.2d 41, 45 (Iowa 1998)) (citations omitted). The parties

have employed the two-step test in their analysis of the issue in this

case. The two-step privacy test is often helpful in resolving cases under

the Iowa Constitution, and, as a result, we employ it in this case.

      A. Expectation of Privacy. Ordinarily, the police must obtain a

search warrant before entering or searching an area where a person has
                                      8

a reasonable expectation of privacy. State v. Ortiz, 618 N.W.2d 556, 559

(Iowa 2000); see also Breuer, 577 N.W.2d at 45. In this case, there was a

valid search warrant issued for the residence located at 922 Wright

Avenue in Sioux City.       Fleming does not appear to be arguing the

warrant itself was invalid; rather, he is claiming his bedroom was outside

the scope of the warrant.

      An individual challenging the legality of a search has the burden of

showing a legitimate expectation of privacy in the area searched. Ortiz,

618 N.W.2d at 559 (citing Rawlings v. Kentucky, 448 U.S. 98, 104, 100

S. Ct. 2556, 2561, 65 L. Ed. 2d 633, 641 (1980)). “The determination of

whether a person has a legitimate expectation of privacy with respect to a

certain area is made on a case-by-case basis, considering the unique

facts of each particular situation.”        Breuer, 577 N.W.2d at 46.   The

expectation must also be one that society considers reasonable.         Id.

What society considers reasonable is determined by examining property

laws as well as society’s generally recognized and permitted expectations

about privacy.    Id.   Whether an individual enjoys an expectation of

privacy in a rented room within a house that is lived in communally is an

issue of first impression for this court.

      The United States Supreme Court has also never addressed this

precise question. It has, however, addressed related questions. It has

firmly established that the Fourth Amendment secures an expectation of

privacy in one’s home. Payton v. New York, 445 U.S. 573, 585, 100 S.

Ct. 1371, 1379, 63 L. Ed. 2d 639, 650 (1980); Agnello v. United States,

269 U.S. 20, 32, 46 S. Ct. 4, 6, 70 L. Ed. 145, 149 (1925). It found this

expectation of privacy extends to the dwellings of renters, even when

police obtain the landlord’s consent. Chapman v. United States, 365 U.S.

610, 617, 81 S. Ct. 776, 780, 5 L. Ed. 2d 828, 833–34 (1961). It has also
                                    9

extended this expectation of privacy to tenants living in buildings with

multiple units. See Maryland v. Garrison, 480 U.S. 79, 86, 107 S. Ct.

1013, 1017–18, 94 L. Ed. 2d 72, 82 (1987). It has even extended this

expectation of privacy to hotel and motel rooms, Stoner v. California, 376

U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 861 (1964) (“[A]

guest in a hotel room is entitled to constitutional protection against

unreasonable searches and seizures.”), and social guests in the home of

their host or hostess. Minnesota v. Olson, 495 U.S. 91, 96–97, 110 S. Ct.

1684, 1688, 109 L. Ed. 2d 85, 93 (1990) (holding overnight guests have a

reasonable expectation of privacy in the home of their host or hostess).

      When the United States Supreme Court held that individuals have

an expectation of privacy in hotel and motel rooms, it acknowledged that

when a person purchases a hotel room he gives “implied or express

permission . . . to such persons as maids, janitors or repairmen” to enter

his room. United States v. Jeffers, 342 U.S. 48, 51–52, 72 S. Ct. 93, 95,

96 L. Ed. 59, 64 (1951). The Court found an expectation of privacy even

though the room was accessible to others. Id. Similarly, the Court found

an expectation of privacy for social guests in the home of their host, even

though that area is clearly accessible to others, namely the owner, his

family, and friends. Olson, 495 U.S. at 98–99, 110 S. Ct. at 1689, 109 L.

Ed. 2d at 94–95. It has even found a temporary expectation of privacy in

a telephone booth, which is an area that is usually open to the public.

Katz v. United States, 389 U.S. 347, 352, 88 S. Ct. 507, 511–12, 19 L.

Ed. 2d 576, 582 (1967).     These cases demonstrate that the ability to

exclude all other individuals from an area does not appear necessary for

a person’s expectation of privacy to be reasonable.        See also In re

Marriage of Tigges, 758 N.W.2d 824, 827 (Iowa 2008) (“[Wife]’s

expectation of privacy [in her bedroom] . . . is not rendered unreasonable
                                    10

by the fact Jeffrey was her spouse at the time in question, or by the fact

that Jeffrey may have been living in the dwelling at that time.”).

      The types of dwellings in which the Court has found an expectation

of privacy have many commonalities with a rented room in a house. In

Olson, the Court held that the test is whether an individual has “an

expectation of privacy in the home that society is prepared to recognize

as reasonable.” Olson, 495 U.S. at 96–97, 110 S. Ct. at 1688, 109 L. Ed.

2d at 93.     We believe the Court has implicitly considered many

underlying factual circumstances, such as the ability to exclude others

from the property, to store possessions on the property, and to sleep

undisturbed on the property, when determining whether an expectation

of privacy exists. See generally Chapman, 365 U.S. at 616–17, 81 S. Ct.

at 780, 5 L. Ed. 2d at 833; Stoner, 376 U.S. at 490, 84 S. Ct. at 893, 11

L. Ed. 2d at 864.

      Cases from other jurisdictions support the proposition that renters

do enjoy exclusive use of their rooms.         See, e.g., United States v.

Greathouse, 297 F. Supp. 2d 1264, 1274–75 (D. Or. 2003).                In

Greathouse, the court declared rented spaces need not be self-contained

units with their own kitchen and bathrooms, separate locks, or mailing

addresses.   Id. at 1274.    The court found the physical layout of the

residence was not dispositive. Id. Rather, in determining that a renter in

a communally shared house does have a reasonable expectation of

privacy in his or her bedroom, the court relied upon the lack of any

familial relation between the residents, the defendant’s closed door, a “Do

Not Enter” sign posted on the bedroom door, and the residents’ presence

at the home during the search and advisement that the defendant was a

renter and lived in the back bedroom. Id. at 1274–75. The court found

that once the police determined there were separate residences within
                                         11

the house, they should have stopped the search and obtained a separate

warrant for the defendant’s bedroom. Id. at 1275.

       We also note Graves, which held that under the Mississippi

Constitution an individual possessed a reasonable expectation of privacy

in his solely and exclusively occupied portion of a house trailer. Graves,

708 So. 2d at 861; see also Scott v. State, 266 So. 2d 567, 569 (Miss.

1972) (“[W]here the proof shows that a person is renting a room or is in

possession of a room in a house or an apartment under such

circumstances as to make such person the owner thereof for the time

being, such person is entitled to [a reasonable expectation of privacy].”).

       We recognize that authority exists which supports the contrary

assertion—that an individual does not have an expectation of privacy in a

rented room located within a house. See United States v. Davis, 557 F.2d

1239, 1248 (8th Cir. 1977); United States v. Fennell, 496 F. Supp. 2d

279, 282–83 (S.D.N.Y. 2007); State v. Reynolds, 218 P.3d 795, 800

(Idaho Ct. App. 2009); Commonwealth v. Smith, 898 S.W.2d 496, 500–01

(Ky. Ct. App. 1995) (explaining the community-living exception to the

multiple-unit rule); State v. Coatney, 604 P.2d 1269, 1272 (Or. Ct. App.

1980) (declaring that where a house appears to be a single-family unit

the warrant includes rented rooms within the house). 1                  These cases

observe the holding in Garrison, extending the expectation of privacy to

tenants living in buildings with multiple units, but make a distinction

between apartments or separate dwelling units and individuals renting



       1As  part of the analysis for this position, courts have sometimes relied on the
fact that the police were unaware that unrelated persons were sharing the dwelling.
Whether the police have a good faith reason to believe the residence is only a single-
family dwelling has no bearing on our analysis. We do not recognize a good faith
exception under the Iowa Constitution. Cline, 617 N.W.2d at 292–93.
                                       12

rooms within a single family house. Smith, 898 S.W.2d at 500–01. This

distinction is also referred to as the community-living exception. Id.

      The community-living exception is based upon the premise that an

individual renting a room in a house that is lived in communally does not

have exclusive use of that area of the dwelling. State v. Alexander, 704

P.2d 618, 620 (Wash. Ct. App. 1985).             As the Washington Court of

Appeals explained:

      “[T]here is a broader justification for treating cases of
      community occupancy differently:         where a significant
      portion of the premises is used in common and other
      portions, while ordinarily used by but one person for family,
      are an integral part of the described premises and are not
      secured against access by the other occupants, then the
      showing of probable cause extends to the entire premises.
      For example, if three persons share an apartment, using a
      living room, kitchen, bath and hall in common but holding
      separate bedrooms which are not locked, whichever one of
      the three is responsible for the described items being in the
      apartment could have concealed those items anywhere within,
      including the bedrooms of his cotenants.”

Id. (quoting 2 Wayne R. LaFave, Search and Seizure § 4.5(d), at 81 (1st

ed. 1978)). But see State v. Quigley, 892 A.2d 211, 218–19 (Vt. 2005)
(recognizing the community-living exception but refusing to apply it when

a roommate’s bedroom door is locked).

      We reject the rationale behind the community–living exception.

We   must     consider   society’s   generally    recognized    and    permitted

expectations about privacy with respect to roommates living together in a

single-family home. “Today it is not unusual to see a group of unrelated

single persons living together and sharing expenses.” Ames Rental Prop.

Ass’n v. City of Ames, 736 N.W.2d 255, 266 (Iowa 2007) (Wiggins, J.,

dissenting). 2 We do not believe that when individuals decide on this type

      2At   the time of the 2000 census, over 135,000 Iowans were living with
nonrelatives. See Bureau of the Census, U.S. Dep’t of Commerce, Profile of General
                                        13

of living arrangement, they believe they are giving up the right to privacy

in their personal space. Generally, when single, unrelated persons live

together in a house, the kitchen, living room, bathroom, hallways and

entryways are communal space, but the individual bedrooms remain

private. As a social norm, this is fairly well established; thus, many of

these individuals probably do not feel the need to clearly delineate their

personal space with locks or signs. We find a reasonable expectation of

privacy in an individual room rented within a single-family house.

       Fleming has demonstrated a legitimate expectation of privacy in

his bedroom.       The testimony shows Fleming rented a room within

Nearman’s house for $375 a month. He was not related to Nearman and

testified that he had exclusive possession and control of his room. There

is no indication he gave Nearman access to his private bedroom.                 We

hold Fleming has demonstrated a reasonable expectation of privacy in

his bedroom.      Therefore, a warrant was required to enter Fleming’s

bedroom.

       B. Invasion of Protected Interest.            As previously noted, “the

government must obtain a search warrant prior to unreasonably

searching, or entering, an area where a person possesses a reasonable

expectation of privacy.” Breuer, 577 N.W.2d at 45. “If a warrant calls for

the search of multiple places or persons, probable cause must exist as to

each location or person sought to be searched under authority of the

warrant.” State v. Jamison, 482 N.W.2d 409, 412 (Iowa 1992), abrogated
_______________________________
Demographic      Characteristics  for   Iowa:     2000    (2001),   available     at
http://www.census.gov/prod/2002pubs/c2kprof00-ia.pdf. A recent study also found
that 12% of young adults age 18 to 34 have acquired a roommate because of recent
economic conditions. Wendy Wang & Rich Morin, Pew Research Center, Home for the
Holidays . . . and Every Other Day (Nov. 24, 2009), available at
http://pewsocialtrends.org/pubs/748/recession-brings-many-young-adults-back-to-the-
nest.
                                         14

on other grounds by State v. Heminover, 619 N.W.2d 353, 357 (Iowa

2000).

       Although the warrant purported to encompass the entire house,

because we have determined that Fleming had a reasonable expectation

of privacy to his room, any search of his room was required to be

supported by an independent showing of probable cause. The State has

not asserted that probable cause existed to search Fleming’s room.

There was no reason to believe that Nearman had access to that room or

that he may have hidden drugs there. Further, there was no showing to

the magistrate that Fleming was in possession of drugs.                In ruling on

Fleming’s motion to suppress, the district court found Leckband and

Lammers had informed police in their post Miranda interviews that

Nearman had a roommate or roommates and told police they believed

there was marijuana in all of the bedrooms in the residence.                     This

information, however, was not contained in the search warrant

application.

       [W]e have strictly limited the determination of whether
       probable cause exists to a consideration of only those facts
       reduced to writing that were actually presented to the
       issuing judge at the time the application for the warrant was
       made.     Any additional facts adduced later cannot be
       considered.

State v. Gillespie, 530 N.W.2d 446, 448 (Iowa 1995) (citation omitted).

The only person named in the application as having possession of drugs

was Nearman. Thus, there was no showing of probable cause to search

Fleming’s room. Therefore, the search of his room was warrantless. 3

       3We  acknowledge that State v. Lehr, 258 N.W.2d 158 (Iowa 1977), presented a
situation with somewhat similar facts. In Lehr, a search warrant was issued for an
apartment unit and all persons on the premises during the search. Id. at 159. The
defendant did not raise the issue presented here, but only whether the warrant should
have been issued for the entire apartment. Id. at 159–60. This case is distinguishable
                                          15

       “A warrantless search . . . is per se unreasonable unless it falls

within a recognized exception.”            Cline, 617 N.W.2d at 282.             “These

exceptions include searches based on consent, plain view, [or] exigent

circumstances, and searches incident to arrest.” Breuer, 577 N.W.2d at

45.   “The State has the burden to prove by a preponderance of the

evidence that the search falls within an exception.” Cline, 617 N.W.2d at

282. The State, however, does not even argue that there is an applicable

exception that would allow the officers’ warrantless search of Fleming’s

bedroom, nor viewing the totality of the circumstances can we find one. 4

       Because we find the officers unreasonably invaded Fleming’s

protected interest in his bedroom, and therefore violated his right to be

free from unreasonable search and seizures under article I, section 8 of

the Iowa Constitution, 5 the evidence of marijuana found in his bedroom

must be suppressed. 6 State v. Tague, 676 N.W.2d 197, 206 (Iowa 2004)


_______________________________
as the application alleged that apartment was in the name of Lehr and further that
three residents were in possession of drugs.
       4To the extent probable cause may have supported a further search of Fleming’s
bedroom, a new search warrant was required. See Graves, 708 So. 2d at 861 (requiring
a new search warrant for a rented room).
       5The  United States Supreme Court has not addressed this precise issue, and
therefore we do not presume to decide the outcome under the Fourth Amendment to the
United States Constitution.
       6We have rejected the good faith exception to the exclusionary rule where there
has been an unlawful search.
       Regardless of the good faith of police in relying upon a search warrant
       approved and issued by a judicial officer, the exclusionary rule remains
       the best way to protect the integrity of the judicial process and an
       individual’s right under our state constitution to be free from government
       conduct ultimately determined to be unlawful. Accordingly, even if the
       search of [the defendant] was conducted by officers within the framework
       of the good faith doctrine . . . the exclusionary rule nevertheless applies
       to [his] claim under our state constitution.
State v. Prior, 617 N.W.2d 260, 268 (Iowa 2000).
                                  16

(holding all evidence flowing from an unconstitutional search is

inadmissible).

      IV. Disposition.

      We conclude that under our state constitution Fleming had a

reasonable expectation of privacy in his bedroom, and the officers

violated that interest by searching his bedroom without obtaining a

warrant supported by probable cause authorizing a search of that area.

As a result, the evidence seized from Fleming during the search must be

excluded from trial. The decision of the court of appeals is vacated and

the district court judgment reversed. We remand for further proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.
