                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1311
                               Filed July 22, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEBORAH BOLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District

Associate Judge.



      Deborah Boley appeals her conviction for operating a motor vehicle while

intoxicated, first offense. REVERSED AND REMANDED.




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

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.




      Heard by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

       Deborah Boley appeals her conviction for operating a motor vehicle while

intoxicated, first offense. She challenges the district court’s denial of her motion

to suppress evidence gained after police officers entered her home without a

warrant.

I.     Background Facts and Proceedings

       Boley slammed into the back of a pickup truck that was stopped for a red

light. She left the scene of the accident and headed home. The truck driver

followed her, maintaining contact with police along the way, and watched Boley

turn into a long residential driveway.

       Minutes later, a Waukee police officer arrived at Boley’s home, followed by

a West Des Moines officer. By the time the officers made it up the driveway,

Boley’s car was in the garage.

       The West Des Moines officer knocked on Boley’s front door. Boley opened

the door but remained inside. The officer questioned her about her departure from

the accident site, then asked for her driver’s license, registration, and proof of

insurance. Boley responded that the documents were in her glove compartment.

At that point, the officer stated, “I’m going to come in with you, though.” Boley

asked, “In my garage?” The officer responded, “Yes,” and Boley said, “Okay.” The

officer then stated, “I’m going to have [the Waukee officer] come too.” Boley again

said, “Okay,” and allowed the officers in. One of the officers proceeded into what

she characterized as the mudroom portion of the home and through a door that

led to the garage. The other stood inside the home with her camera scanning the

interior, including the living room. The officer in the garage questioned Boley about
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her alcohol consumption.      Based on signs of impairment, additional Waukee

officers were called in to conduct field sobriety tests. The State subsequently

charged Boley with operating a motor vehicle while intoxicated, first offense.

       Boley moved to suppress evidence gained after the officers entered her

home. She asserted, “The warrantless entry into [her] residence violated the 4th

Amendment to the United States Constitution and Article 1 Section 8 of the Iowa

Constitution” and “[a]ny consent purportedly given by an occupant of the residence

was unknowing and involuntary in violation of article I section 8 of the Iowa

Constitution.”   The district court denied the motion, reasoning that “although

defendant had a legitimate expectation of privacy in her entryway and garage,

there were exigent circumstances and probable cause that justified the minimal

invasion of her privacy interest.” The court also cited the doctrine of “hot pursuit.”

The court subsequently tried Boley on the minutes of testimony and found her

guilty as charged. Boley appealed following imposition of sentence.

II.    Suppression Ruling

       The Fourth Amendment to the United States Constitution states: “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 . . . .” U.S. Const. amend. IV. Article I, section 8

of the Iowa Constitution is “nearly identical to the Fourth Amendment to the United

States Constitution.” State v. Short, 851 N.W.2d 474, 500–01 (Iowa 2014).

       “[T]he ‘physical entry of the home is the chief evil against which the wording

of the Fourth Amendment is directed.’” State v. Legg, 633 N.W.2d 763, 767 (Iowa

2001) (quoting United States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972)); see also
                                         4

State v. Kern, 831 N.W.2d 149, 164 (Iowa 2013) (“[T]he Fourth Amendment and

article I, section 8 create a substantial expectation of privacy in the home.”). A

garage attached to a home and included within the walls surrounding the home “is

so intimately tied to the home itself that it should be placed under the home’s

‘umbrella’ of Fourth Amendment protection.” Legg, 633 N.W.2d at 768 (citations

omitted). That standard of protection is “reasonableness.” Id.

       “It is a ‘basic principle of Fourth Amendment law’ that [all] searches and

seizures inside a home without a warrant are presumptively unreasonable . . .

subject only to a few specifically established and well-delineated exceptions.”

State v. Reinier, 628 N.W.2d 460, 464 (Iowa 2001) (citations omitted). Recognized

exceptions include searches based on consent and probable cause coupled with

exigent circumstances. See State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004).

“The State has the burden to prove by a preponderance of the evidence that a

recognized exception to the warrant requirement applies.” Id. (citation omitted);

see also State v. Naujoks, 637 N.W.2d 101, 107–08 (Iowa 2001) (citation omitted).

We apply an objective standard to assess the conduct of the officer. See State v.

Jackson, 878 N.W.2d 422, 429 (Iowa 2016).1

       The State essentially concedes that neither the probable cause/exigent

circumstances exception to the warrant requirement nor the “hot pursuit” doctrine

justified the officers’ warrantless intrusion into Boley’s home. Instead, the State

urges us to affirm the district court’s suppression ruling under the consent

exception to the warrant requirement. Although this ground was not cited by the


1 In light of the objective standard, the officer’s concession that she was going to
follow Boley into the garage regardless of what Boley said is not dispositive.
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district court, we agree with the State that the exception was raised and may be

considered as an alternate basis for affirmance. See Jones v. State, 938 N.W.2d

1, 2 (Iowa 2020) (“[O]n appeal we can affirm the district court decision on any

ground argued below and urged on appeal by the appellee, even if the court below

did not reach that issue.”); Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811–

12 (Iowa 2000) (“If we disagree with the basis for the court’s ruling, we may still

affirm if there is an alternative ground, raised in the district court and urged on

appeal, that can support the court’s decision.”). We proceed to address the

consent exception, reviewing the record de novo. See State v. Booth-Harris, 942

N.W.2d 562, 569 (Iowa 2020).

       To be valid, a homeowner’s consent to a warrantless entry into the home

must be “free and voluntary.” Reinier, 628 N.W.2d at 465. “Consent is considered

to be voluntary when it is given without duress or coercion, either express or

implied.” Id. Factors to help determine the validity of the consent encompass “both

the circumstances surrounding the consent given and the characteristics of the

defendant.” Id.

       The State cites the circumstances surrounding the claimed consent.

Specifically, the State argues the officer “talked to Boley in a conversational tone

and was courteous to her, she did not raise her voice nor did any officer draw their

weapon, and there was no physical force ever exerted or threatened.” The State

also notes that the officers “did not turn on their emergency lights and sirens—

supporting a lack of show of force”; “did not demand that [Boley] must open the

door”; and “did not shine their lights at her, nor did they demand that she speak

with them.”
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       A video of the encounter supports the State’s assertions. However, those

assertions only tell part of the story and, in this context, the less important part.

The crucial factor is the officer’s language. Although the officer did not demand

that Boley open the door, the State concedes the officer “used a declarative

statement when she informed Boley that she was going to follow her inside the

house.”    The declaration—“I’m going to come in with you, though”—was

unequivocal. The officer did not ask whether she could enter and did not suggest

Boley had the right to refuse entry.

       We recognize “the subject’s knowledge of a right to refuse . . . is not a

prerequisite for obtaining voluntary consent.” State v. Pals, 805 N.W.2d 767, 777

(Iowa 2011).2 But it “is a factor to be taken into account.” Id. As Boley notes, “No

evidence was presented to establish that [she] had prior experience with law

enforcement or the judicial system so as to indicate that she knew she had the

right to refuse . . . the search.” Cf. State v. Lowe, 812 N.W.2d 554, 573 (Iowa

2012) (noting the person who came to the door “clearly knew she had the right to

refuse consent to search because at all times she refused to consent to a search

of her entire mobile home”). Also, if Boley was impaired, as the officer surmised,

that would have been a factor diminishing her ability to consent. See id. (noting

“there is nothing in the record to show that [the person who allowed entry] suffered

from any mental abnormality or was otherwise impaired by alcohol or drugs”); State


2 The supreme court considered whether to follow the path of other States and
adopt a state constitutional “requirement that police advise an individual of his or
her right to decline to consent to a search.” See Pals, 805 N.W.2d at 782. The
court “reserved” the issue “for another day.” Id. Boley asks the court to revisit the
question. Even if we had the liberty to do so, we would find it unnecessary to
resolve the question.
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v. Garcia, 461 N.W.2d 460, 465 (Iowa 1990) (“[T]here is no evidence in the record

to indicate [the defendant] was physically or emotionally impaired.”).             Finally,

although the officer’s body language and, in particular, her position at the bottom

of two steps may have suggested a non-coercive demeanor, one of her feet rested

firmly on the first step and she leaned against the open outer door throughout the

interaction. And when the officer declared her intent to enter, she stepped onto

the first and then the second step, conveying “[s]ubtle coercion, in the form of an

assertion of authority.” Reinier, 628 N.W.2d at 468 (citing United States v. Griffin,

530 F.2d 739, 742 (7th Cir. 1976)).

       Nor could Boley’s act of letting the officers in be construed as consent.

When the officer said she would be coming in, Boley responded with a question—

“Into the garage?”—which a reasonable person could construe as surprise at the

request. Id. at 467. As for her responses of “Okay,” they were nothing more than

acquiescence. See State v. Ochoa, 792 N.W.2d 260, 292 (Iowa 2010) (citing

Bumper v. North Carolina, 391 U.S. 543, 548 (1968)) (reasoning that the State

does not prove its burden “by showing no more than acquiescence to a claim of

lawful authority” and a consent “search conducted in reliance upon an officer’s

claim of authority cannot be justified if the claim of authority turns out to be invalid”);

State v. Leaton, 836 N.W.2d 673, 677 (Iowa Ct. App. 2013) (“Consent given to a

search must be unequivocal, specific, and freely and intelligently given.”); State v.

Carre, No. 18-1584, 2020 WL 1049823, at *2–3 (Iowa Ct. App. Mar. 4, 2020)

(noting district court’s rejection of the consent exception where the officer advised

the defendant he “would need to follow him in” and the defendant opened the door

for the officer).
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       We conclude Boley’s consent to the warrantless entry of the officers into

her home was involuntary. See Reinier, 628 N.W.2d at 469. If the officers truly

wanted Boley’s consent, they could have asked. See United States v. Belt, 609

Fed. Appx. 745, 759 (4th Cir. 2015) (Wynn, J. dissenting) (“The officers could have

asked [the defendant’s] son to retrieve [the defendant] from the residence” rather

than relying on the minor’s “consent” “to gain entry into his home.”); State v.

Moninger, 957 So. 2d 2, 6 (Fla. Dist. Ct. App. 2007) (noting “officers could have

sought a search warrant or could have asked for [the defendant’s] consent to

search” a residence “but they chose neither option”).

       Anticipating our conclusion, the State argues “any error in Boley’s complaint

is harmless error.” “To establish harmless error when a defendant’s constitutional

rights have been violated, the State must prove beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.” State v. Effler,

769 N.W.2d 880, 893 (Iowa 2009) (citation and internal quotations omitted).

       As noted, Boley was tried on the minutes of testimony. The district court’s

dispositional order lacked findings of fact. “Without these findings of fact, we have

no way of determining what facts the district court relied upon to find [the

defendant] guilty of operating while intoxicated.” State v. Lukins, 846 N.W.2d 902,

912 (Iowa 2014). Because we do not know whether the court relied on facts

discerned following the officers’ unconstitutional entry into Boley’s home, we

reverse the court’s suppression ruling and remand for further proceedings. Id.

       REVERSED AND REMANDED.

       Mullins, J., concurs; Ahlers, J., concurs specially.
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AHLERS, Judge (specially concurring).

       I concur entirely with the majority’s opinion.    I write separately for the

purpose of reinforcing the principle that courts should not need to patch together

conclusions drawn from a number of ambiguous facts in order to find consent. If

a law enforcement officer, and ultimately the State, desires to rely on consent as

an exception to the warrant requirement, it is not too much to ask to expect the

officer to actually ask for and receive that consent in an unequivocal manner.

       In fairness, consent does not require any magic words. In fact, consent

does not even need to be given verbally, as it may be found by gestures and non-

verbal conduct as well. State v. Reinier, 628 N.W.2d 460, 467 (Iowa 2001); see

also United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976) (leaving a door open

and stepping back can be an invitation for officers to enter); United States v.

Turbyfill, 525 F.2d 57, 59 (8th Cr.1975) (opening door and stepping back

constituted implied invitation to enter). However, I believe an officer relying on

non-verbal consent or acquiescence to declaratory statements made by the officer

does so at the officer’s peril. This is because consent to a search must be

“unequivocal, specific, and freely and intelligently given.” State v. Howard, 509

N.W.2d 764, 767 (Iowa 1993). For this reason, ambiguous responses to requests

to search are not sufficient. See, e.g., State v. Harris, 642 A.2d 1242, 1246–47

(Del. Super. Ct. 1993) (shrugging is an insufficient gesture of consent); State v.

Leaton, 836 N.W.2d 673, 678 (Iowa Ct. App. 2013) (raising arms is an insufficient

gesture of consent). It is the State’s burden to prove consent was voluntary, and

voluntariness is a question of fact to be determined from the totality of the

circumstances. State v. Lane, 726 N.W.2d 371, 378 (Iowa 2007). The State is
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required to establish consent was voluntary by a preponderance of the evidence.

Reinier, 628 N.W.2d at 465.

       Here, the State asks us to piece together conclusions from various

ambiguous observations to find consent. In its attempt to establish consent, the

State points to the officers’ non-commanding tone of voice, non-confrontational

nature, body posture, and body positioning, as well as Boley’s actions in saying

“okay,” stepping back, and waving the officers into the house in response to a

declaration that the officers were coming in. While all of these details are legitimate

considerations that move toward showing consent under the totality-of-the-

circumstances standard, at the end of the day, asking us to rely on a conclusion

drawn from a string of ambiguous verbal and non-verbal actions essentially asks

us to disregard the requirement that consent be unequivocal. See Howard, 509

N.W.2d at 767. Being unwilling to disregard the unequivocality requirement, I join

in the decision to reverse the district court’s decision denying the motion to

suppress and to remand for further proceedings.
