                IN THE SUPREME COURT OF IOWA
                               No. 10–0214

                            Filed April 19, 2013


STATE OF IOWA,

      Appellee,

vs.

ISAAC ANDREW BALDON III,

      Appellant.



      Appeal from the Iowa District Court for Scott County, Mark J.

Smith, Judge.



      Defendant appeals his conviction for drug dealing by challenging

the search of his automobile. REVERSED AND REMANDED FOR NEW

TRIAL.



      Mark C. Smith, State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant

Attorney General, Michael J. Walton, County Attorney, and Kelly G.

Cunningham, for appellee.
                                    2

CADY, Chief Justice.

      In this case, we must decide whether a provision in a written

parole agreement that authorizes a parole officer or law enforcement

officer to conduct a warrantless, suspicionless search of a parolee and

the home, vehicle, and belongings of the parolee satisfies, by itself, the

consent exception to the reasonableness and warrant requirements of

the search and seizure clause of the Iowa Constitution. We conclude a

parole agreement does not satisfy the consent exception, and we reverse

the judgment and sentence of the district court. We remand the case for

a new trial.

      I. Background Facts and Proceedings.

      Isaac Baldon III was sentenced in 2003 to a term of incarceration

with the state penal system following convictions for possession of

controlled substances with intent to deliver and possession of a firearm

by a felon. He was granted parole on October 20, 2008. On November 3,

2008, Baldon and his parole officer, Kevin Peterson, signed a parole

agreement that contained seventeen standard conditions of parole and

five special terms of parole.    One standard condition, paragraph P,

provided that Baldon would submit his “person, property, place of

residence, vehicle, personal effects to search at any time, with or without

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

officer or law enforcement officer.” The parole order directed that Baldon

would not be released on parole until he signed the agreement.

      To combat recidivist probationers and parolees, the Bettendorf

Police Department commonly relied on paragraph P of the standard

terms of a parole agreement to conduct searches of parolees in the city.

Its officers were made aware of the consent-search provision and received

training in conducting parolee searches.
                                     3

      More specifically, Bettendorf police officers implemented a protocol

to check the Traveler Motel in Bettendorf several times each day as part

of a routine patrol. The motel was known by the police department as

perhaps the single highest crime location in Bettendorf. The Bettendorf

Police Department has made numerous arrests at the motel, a total of

110 in 2007 alone.       Most of the arrestees were probationers and

parolees.    The   arrests   most   frequently   involved   drug   offenses,

prostitution, gun offenses, and auto theft.

      Under the search protocol for the motel, the patrolling officer

checks the license plate numbers of every vehicle in the parking lot to

locate parolees or probationers.    If a vehicle in the lot belongs to a

parolee, the officer contacts the parolee’s parole officer, either to obtain

consent to search the parolee or to invite the parole officer to join the

police officer in a search of the parolee. Both the police department and

the parole officers are accustomed to using paragraph P as a basis to

search parolees, either without suspicion or suspicion based on the high-

crime nature of the area.      The officer then contacts the front desk

attendant of the motel to ascertain whether the parolee is checked into

the hotel and, if so, to obtain the room number.

      At approximately 8:30 a.m. on May 25, 2009, Officer Dennis Tripp

followed this protocol during his patrol of the Traveler Motel. The license

plate check of a 1996 Oldsmobile showed it was registered to Baldon.

Upon learning this, Officer Tripp called the shift commander, Sergeant

Piazza, and asked him to contact parole officer Kevin Peterson.

      Pursuant to the protocol, Sergeant Piazza informed Peterson that

Baldon was at the motel. He also asked Peterson for permission to have

Officer Tripp search the motel room and vehicle.        Peterson gave his

permission to search Baldon, but indicated he would like to be involved
                                   4

in the search and would promptly meet the police officers at the motel.

Tripp learned Baldon was staying in room 29.

      When Peterson arrived, Officer Tripp had been joined by Sergeant

Piazza and another Bettendorf police officer.    The officers collectively

approached room 29 and knocked on the door.          Eventually, Baldon

opened the door.   A young woman, later revealed to be a minor, was

observed sitting on the bed. Peterson greeted Baldon and explained that

the parole agreement authorized the officers to conduct a search of the

motel room and Baldon’s vehicle.

      The search of the motel room and Baldon’s person yielded no

incriminating evidence.   Officer Tripp then took Baldon’s car keys and

searched Baldon’s car.    He discovered a large quantity of marijuana.

After Tripp read Baldon his Miranda rights at the police station, Baldon

confessed he had received the marijuana in satisfaction of a debt. The

State charged Baldon with possession of a schedule I controlled

substance with intent to deliver, second or subsequent offense, under

Iowa Code sections 124.411 and 902.8 (2009) and possession of an

amount of marijuana greater than 42.5 grams in violation of Iowa Code

chapter 453B.

      Baldon moved to suppress the marijuana seized from the search of

his vehicle under both the Iowa and Federal Constitutions. He claimed

the entry into his motel room and vehicle violated the Search and Seizure

Clauses of both the Iowa and Federal Constitutions because paragraph P

of the parole agreement constituted involuntary consent.       The State

argued the search was reasonable because Baldon consented to the

searches by signing the parole agreement. It asserted Baldon was still

serving his sentence while on parole and whatever expectation of privacy

he may have had while on parole had been waived. At the hearing on the
                                    5

suppression motion, Officer Tripp testified he conducted the search

based only on the agreement. He testified there had been no complaints

involving Baldon at the motel. Peterson, the parole officer, agreed the

search was “completely based on [the] agreement and nothing more.”

      The district court denied Baldon’s motion to suppress.      It found

Baldon consented to the search by signing the parole agreement and that

the consent made the search reasonable. It also found Baldon waived

any claim of privacy.

      Baldon then waived his right to a trial by a jury, and the court

found him guilty of the charges. Following the imposition of sentence,

Baldon appealed.

      II. Scope and Standard of Review.

      “We review claims the district court failed to suppress evidence

obtained in violation of the federal and state constitutions de novo.”

State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). When presented with

such a claim, “ ‘we make an independent evaluation [based on] the

totality of the circumstances as shown by the entire record.’ ” State v.

Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (quoting State v. Krogmann, 804

N.W.2d 518, 522–23 (Iowa 2011)).        “ ‘Each case must be evaluated in

light of its unique circumstances.’ ” Id. (quoting Krogmann, 804 N.W.2d

at 523).

      III. Issue Presented.

      The fighting issue presented to the district court in response to the

motion to suppress was whether Baldon consented to the search by

signing the parole agreement. Although the State also seemed to argue

more generally before the district court that suspicionless searches of

parolees did not violate the Search and Seizure Clause of either the Iowa

or Federal Constitution because parolees have a diminished expectation
                                    6

of privacy, it never argued the State had reasonable suspicion or other

reasonable grounds to conduct the search of Baldon apart from consent.

While the record is sketchy, the diminished-expectation-of-privacy

argument was, instead, tied to the State’s consent claim to support the

proposition that Baldon was aware he had little expectation of privacy

after he signed the parole agreement.

      On appeal, the State reiterated its claim of consent. Alternatively,

however, the State argued the search was reasonable under a general

search-and-seizure analysis because Baldon’s minimal expectation of

privacy was outweighed by the interests of society in managing parolees

and preventing recidivism, as well as reasonable suspicion.

      We find the State waived the general reasonableness argument by

not presenting it to the district court in a manner that would have

allowed the court to fully and properly address it. See State v. Ochoa,

792 N.W.2d 260, 291 (Iowa 2010) (recognizing that an argument not

made on an issue before the district court is waived). First, the State

made no argument that special governmental needs justified the search.

Thus, we have no opportunity to consider in this appeal whether the

State’s maintenance of a parole system presents “special needs[] beyond

the normal need for law enforcement, [which] make the warrant and

probable-cause requirement impractical.” See New Jersey v. T.L.O., 469

U.S. 325, 351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720, 741 (1985)

(Blackmun, J., concurring); see also Griffin v. Wisconsin, 483 U.S. 868,

875, 107 S. Ct. 3164, 3169, 97 L. Ed. 2d 709, 718 (1987) (holding that

Wisconsin’s operation of a probation system constitutes a special need

beyond the normal need for law enforcement).

      Second, the State made no argument to the district court that a

balancing test under article I, section 8 would weigh in favor of the State
                                     7

in this case.   For sure, the evidence at the suppression hearing was

directed at Baldon’s parole status and putative consent as the basis for

the search. See Ochoa, 792 N.W.2d at 291 (holding that parole status

alone is insufficient to justify search of a parolee).   The State did not

introduce evidence of any particular need for the parole officer to search

Baldon,   either   predicated   on   individual   suspicion,   background

information particular to Baldon that would have been known to the

parole officer, or the general mission of parole. Thus, the only issue we

address on appeal is whether a parole agreement containing a consent-

to-search clause renders suspicionless and warrantless searches of

parolees reasonable under the search and seizure clause of the Iowa

Constitution.

      Additionally, we only analyze the consent issue in this case on

state constitutional law grounds. The United States Supreme Court has

not yet directly weighed in on the issue to direct an outcome under the

Fourth Amendment or to aid us in our resolution under our state

constitution. See Samson v. California, 547 U.S. 843, 852 n.3, 126 S. Ct.

2193, 2199 n.3, 165 L. Ed. 2d 250, 259 n.3 (2006) (declining to consider

whether a search provision in a parole agreement generated under

California law constituted consent). Of course, it is beyond dispute that

the drafters of both our federal and state constitutions took the right to

be free from unreasonable, warrantless searches seriously. See generally

Ochoa, 792 N.W.2d at 269–75 (explaining events surrounding the

drafting and ratification of the Federal and Iowa Constitutions). Yet, we

need not comb for textual differences between the Fourth Amendment

and article I, section 8 to determine if different results might be achieved

under the two constitutions because the case only concerns the relatively

humble inquiry of whether an alleged grant of consent for police to
                                      8

conduct warrantless, suspicionless searches pursuant to a parole

agreement is voluntary in the constitutional magnitude of the word

“voluntary.”    Thus, our decision hinges on the meaning and spirit of

consent to justify the government’s intrusion without regard to the

constitution.

      Moreover, consent is an exception to the requirements of both the

Iowa and Federal Constitutions, and it would be inconsistent with our

judicial role under the circumstances to eschew our state constitution

and interpret the issue under the Federal Constitution unless relief

would not be available to a claimant under our state constitution. As

Justice William Brennan sagely declared in his call to arms for state

courts:

      Federalism need not be a mean-spirited doctrine that serves
      only to limit the scope of human liberty. Rather, it must
      necessarily be furthered significantly when state courts
      thrust themselves into a position of prominence in the
      struggle to protect the people of our nation from
      governmental intrusions on their freedoms.

William J. Brennan, Jr., State Constitutions and the Protection of

Individual Rights, 90 Harv. L. Rev. 489, 503 (1977). More directly, we

must remember that, at all times, “[t]he Iowa Constitution is the

cornerstone of governing in Iowa.”        Varnum v. Brien, 763 N.W.2d 862,

875 (Iowa 2009).

      In the final analysis, our right under principles of federalism to

stand as the final word on the Iowa Constitution is settled, long-

standing, and good law.      See Ochoa, 792 N.W.2d at 281–86, 287–91

(rejecting the United States Supreme Court’s interpretation of the Fourth

Amendment       as   permitting   warrantless,   suspicionless   searches   of

parolees based on parole status alone); Bierkamp v. Rogers, 293 N.W.2d

577, 579 (Iowa 1980) (“The result reached by the United States Supreme
                                         9

Court in construing the federal constitution is persuasive, but not

binding upon this court in construing analogous provisions in our state

constitution.”); State v. Tonn, 195 Iowa 94, 104–05, 191 N.W. 530, 535–

36 (1923) (rejecting the exclusionary rule adopted by the United States

Supreme Court for seizures of evidence by federal agents); see also

Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679, 84

L. Ed. 920, 924 (1940) (“It is fundamental that state courts be left free

and unfettered by us in interpreting their state constitutions.”). As more

fully elucidated by the concurring opinion, state constitutions have been

a crucial font of equality, civil rights, and civil liberties from the

incipience of our republic.       Thus, the Supreme Court’s jurisprudence

regarding the freedom from unreasonable searches and seizures under

the Fourth Amendment—or any other fundamental, civil, or human right

for that matter—makes for an admirable floor, but it is certainly not a

ceiling. 1 Traylor v. State, 596 So. 2d 957, 961–63 (Fla. 1992).

      With this background in mind, we proceed with what we now

recognize as the Tonn–Ochoa analysis.


      1In  the past, we did not always employ the doctrine of independent state
grounds to expand civil liberties. In Tonn, for example, we said:
              We are now squarely confronted with the proposition as to
      whether or not we will continue to follow the Supreme Court of the
      United States in the rule of [Boyd v. United States, 116 U.S. 616, 638, 6
      S. Ct. 524, 536, 29 L. Ed. 746, 753–54 (1886), and Weeks v. United
      States, 232 U.S. 383, 393, 34 S. Ct. 341, 344, 58 L. Ed. 652, 656
      (1914)]. The consideration of such a proposition may well “give us
      pause.” The question is of great importance in the administration of the
      criminal laws of this state.
195 Iowa at 104–05, 191 N.W. at 535. We ended up rejecting the exclusionary rule.
See id. at 107, 191 N.W. at 536.         Of course, the United States subsequently
incorporated the Fourth Amendment’s exclusionary rule against the states in Mapp v.
Ohio, 367 U.S. 643, 655–57, 81 S. Ct. 1684, 1691–92, 6 L. Ed. 2d 1081, 1090–91
(1961). The incorporation doctrine commands that we no longer use independent state
grounds to sink below the federal floor.
                                    10

      IV. Discussion.

      It is well-settled that warrantless searches are virtually “ ‘per se

unreasonable . . . subject only to a few specifically established and well-

delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219,

93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973) (quoting Katz v.

United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576,

585 (1967)); accord State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001).

One recognized exception to the warrant requirement of our constitution

is consent. State v. Reinier, 628 N.W.2d 460, 464–65 (Iowa 2001) (citing

Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043–44, 36 L. Ed. 2d at 858).

Under this exception, the reasonableness requirement of the Search and

Seizure Clause is satisfied when an individual consents to a search. See

Katz, 389 U.S. at 358 n.22, 88 S. Ct. at 515 n.22, 19 L. Ed. 2d at 586

n.22. The consent establishes a waiver of rights under the Search and

Seizure Clause.   Thus, the question before us narrows to whether the

parole agreement in this case establishes consent.

      The nature of contracts supports the general proposition that

consent to a search can be prospectively given pursuant to a contract.

See Zap v. United States, 328 U.S. 624, 628–29, 66 S. Ct. 1277, 1279, 90

L. Ed. 1477, 1482 (1946), judgment vacated by 330 U.S. 800, 67 S. Ct.

857, 91 L. Ed. 2d 1259 (1947). In other words, a person can contract

away the constitutional right to be free from unconstitutional searches.

See id.

      In Zap, an aeronautical engineer entered into a contract with the

Department of the Navy to perform experimental work involving test

flights of airplanes.   Id. at 626, 66 S. Ct. at 1278, 90 L. Ed. at 1480.

Under one of the terms of the contract, the engineer specifically agreed to

permit the government to search the account and billing records of his
                                    11

business during the term of the contract. Id. at 627, 66 S. Ct. at 1279,

90 L. Ed. at 1481.       A subsequent search of the records by the

government conducted pursuant to the contract led to fraud charges

against the engineer.   Id. at 627, 628, 66 S. Ct. at 1279, 90 L. Ed. at

1481. In the course of the prosecution of the charges, the government

defended the warrantless search when challenged by the engineer on

grounds that the engineer waived his Fourth Amendment rights by

entering into the contract. Id. at 628, 66 S. Ct. at 1279, 90 L. Ed. at

1481. The Court held the search was valid on two levels: First, it found

the contract constituted a valid advance waiver of his privacy rights

because he agreed to permit the search “in order to obtain the

government’s business.” Id. at 628, 66 S. Ct. at 1279, 90 L. Ed. at 1482.

Second, the search itself was not carried out in an unreasonable manner,

but was done during regular business hours and without any threats or

force. Id.

      When consent in any form is used to support a search, the concern

of the Search and Seizure Clause is that the consent be real and not a

“pretext for the unjustified police intrusion against which the Fourth

Amendment is directed.”      Schneckloth, 412 U.S. at 228, 93 S. Ct. at

2048, 36 L. Ed. 2d at 863. Thus, our concern when presented with a

search-and-seizure claim in the context of contractual consent is that the

consent promised under the contract be voluntary.        Cf. id. at 227, 93

S. Ct. at 2047–48, 36 L. Ed. 2d at 862–63.

      Generally, contract terms are considered to be consensual or

voluntary for the same basic reason that courts normally enforce

contracts.   Conceptually, courts enforce contracts because they are a

product of the free will of the parties who, within limits, are permitted to

define their own obligations.    The consent found within a contract is
                                     12

made evident by the bargain exchanged by the parties.              In Zap, the

bargained-for exchange was enough, as with most contracts, to support

the consent of its terms. The engineer gave up his constitutional right to

be free from warrantless and suspicionless government searches in

return for obtaining government business.        Zap, 328 U.S. at 628, 66

S. Ct. at 1279, 90 L. Ed. at 1482.

      The United States Supreme Court has not addressed the specific

question whether a parole agreement executed by a parolee constitutes

valid consent to support a waiver of Fourth Amendment rights.             See

Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199 n.3, 165 L. Ed. 2d at

259 n.3 (“Because we find that the search at issue here is reasonable

under our general Fourth Amendment approach, we need not reach the

issue whether ‘acceptance of the search condition constituted consent in

the Schneckloth . . . sense of a complete waiver of his Fourth Amendment

rights.’ ” (quoting United States v. Knights, 534 U.S. 112, 118, 122 S. Ct.

587, 591, 151 L. Ed. 2d 497, 504–05 (2001))). See generally Griffin, 483

U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (holding a search of a

probationer’s home pursuant to a Wisconsin probation regulation was

permissible under a special needs theory, but not addressing whether

the probationer had consented to the search under the regulation). We

too   have   not   previously   decided   the   question   under    the   Iowa

Constitution. See Ochoa, 792 N.W.2d at 291.

      Many courts across the nation have concluded that consent-search

provisions in probation agreements constitute a waiver of search-and-

seizure rights. See United States v. Barnett, 415 F.3d 690, 691–92 (7th

Cir. 2005) (finding consent-search provision in a probation agreement

was voluntary); State v. Montgomery, 566 P.2d 1329, 1330–31 (Ariz.

1977) (holding probationer voluntarily accepted consent-search provision
                                    13

by accepting probation); People v. Bravo, 738 P.2d 336, 341 (Cal. 1987)

(“A probationer, unlike a parolee, consents to the waiver of his Fourth

Amendment rights in exchange for the opportunity to avoid service of a

state prison term.”); People v. Mason, 488 P.2d 630, 634 (Cal. 1971)

(holding probationer may waive claims to privacy by agreeing in advance

to permit searches at any time); Allen v. State, 369 S.E.2d 909, 910 (Ga.

1988) (finding consent-search provision as part of probation was

voluntarily obtained during plea negotiations); State v. Gawron, 736 P.2d

1295, 1297 (Idaho 1987) (holding conditional release into society of

probationer decreases expectation of privacy); State v. Devore, 2 P.3d

153, 156 (Idaho Ct. App. 2000) (discussing a probationer’s ability to

prospectively consent to warrantless, suspicionless searches in the

probation agreement); People v. Absher, 950 N.E.2d 659, 664–68 (Ill.

2011) (holding defendant contractually agreed to intensive probation to

avoid prison); Rivera v. State, 667 N.E.2d 764, 767 (Ind. Ct. App. 1996)

(holding defendant agreed to submit to searches as a condition of

probation); People v. Hellenthal, 465 N.W.2d 329, 330 (Mich. Ct. App.

1991) (“A probationer . . . has given his consent in return for more

lenient treatment.” (quoting People v. Peterson, 233 N.W.2d 250, 257

(Mich. Ct. App. 1975) (Danhof, J., concurring in part, dissenting in part));

State v. Anderson, 733 N.W.2d 128, 139 (Minn. 2007) (holding

acceptance of probation subject to a search condition “ ‘significantly

diminished [Anderson’s] reasonable expectation of privacy’ ” (quoting

Knights, 534 U.S. at 119–20, 122 S. Ct. at 591, 151 L. Ed. 2d at 504));

State v. Morgan, 295 N.W.2d 285, 288–89 (Neb. 1980) (holding that

consent-search provision of a probation agreement was voluntary even

though defendant would have been sent to prison if he rejected it); State

v. Bollinger, 405 A.2d 432, 438 (N.J. Super. Ct. Law Div. 1979) (holding
                                        14

defendant gave “a valid and knowing consent to a search of his dwelling

and automobile when he agreed [to the terms of probation]”); State v.

Mitchell, 207 S.E.2d 263, 264 (N.C. Ct. App. 1974) (holding a person may

consent to warrantless searches as a condition of a suspended sentence);

State v. Davis, 191 S.W.3d 118, 122 (Tenn. Crim. App. 2006) (“A

probationer consents to the waiver of his Fourth Amendment rights in

exchange for the opportunity to avoid incarceration.”); State v. Martinez,

811   P.2d   205,   209   (Utah   Ct.    App.   1991)   (holding   probationer

prospectively consents to searches by signing probation agreement);

Anderson v. Commonwealth, 507 S.E.2d 339, 341 (Va. 1998) (holding

defendant’s agreement to consent-search provision not coerced merely

because it was “one of two undesirable options”).

      Some courts have concluded probationers do not voluntarily

consent to these search provisions, however.            See United States v.

Consuelo-Gonzalez, 521 F.2d 259, 265 & n.15 (9th Cir. 1975) (rejecting

an argument that the “contract theory” of parole could be applied to

probationers so as to make “[s]ubmission to [to any search] the price of

probation”); Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979) (holding

condition of probation requiring probationer “to consent at any time to a

warrantless search by a law enforcement officer” was unconstitutional);

Commonwealth v. LaFrance, 525 N.E.2d 379, 381 n.3 (Mass. 1988) (“The

coercive quality of the circumstance in which a defendant seeks to avoid

incarceration by obtaining probation on certain conditions makes

principles of voluntary waiver and consent generally inapplicable.”);

Peterson, 233 N.W.2d at 255 (characterizing a search-provision of a

probation agreement as a “Bill of Attainder for the period of probation”

and holding that “when the waiver [was] conditioned on the surrender of

so hallowed a right, the so-called choice amount[ed] to no choice at all
                                    15

[and] the probationer’s signed acceptance therefore was in legal effect

coerced and thus rendered nugatory” (footnote omitted)); State v.

Schlosser, 202 N.W.2d 136, 139 (N.D. 1972) (holding search provision in

probation order “constitute[d] a reasonable and necessary element of [the

court’s regulation of probationers,] which did not require the defendant’s

consent”); Tamez v. State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976)

(holding probationer’s acceptance of search provision of parole agreement

did not constitute “freely and voluntarily given” consent).

      On the other hand, only a handful of courts have addressed the

same question in the context of parole agreements that we face in this

case, with mixed results. See United States ex rel. Coleman v. Smith, 395

F. Supp. 1155, 1157 (W.D.N.Y. 1975) (holding consent-search provision

in parole agreement was coerced and involuntary); Roman v. State, 570

P.2d 1235, 1241–42 (Alaska 1977) (holding released offenders do not

voluntarily consent to all conditions of parole); People v. Reyes, 968 P.2d

445, 448 (Cal. 1998) (holding suspicionless searches of parolees cannot

be justified by consent if prospective parolee does not have freedom to

accept or reject parole); People v. McCullough, 6 P.3d 774, 781 (Colo.

2000) (avoiding consent issue by relying on the special needs doctrine to

justify a parolee search); People v. Wilson, 885 N.E.2d 1033, 1042 (Ill.

2008) (adopting Samson instead of analyzing the parole agreement’s

search condition under a consent framework); State v. Heaton, 812

N.W.2d 904, 908 (Minn. Ct. App. 2012) (“By agreeing to [the search]

condition of parole, appellant diminished his reasonable expectation of

privacy.”); Himmage v. State, 496 P.2d 763, 765–66 (Nev. 1972) (holding

parolee voluntarily agreed to consent-search provision as a condition of

release into society); People v. Huntley, 371 N.E.2d 794, 798 (N.Y. 1977)

(holding the parolee’s signature on parole agreement “is not to be taken
                                     16

as an unrestricted consent to any and all searches whatsoever or as a

blanket waiver of all constitutional rights to be secure from unreasonable

searches and seizures”); Sullivan v. Bunting, 975 N.E.2d 999, 1001 (Ohio

2012) (holding parolee consented to search of his e-mail based on the

parole agreement); State v. Benton, 695 N.E.2d 757, 762 (Ohio 1998)

(holding parolee waives constitutional search-and-seizure rights by

voluntarily signing parole agreement); Scott v. Pa. Bd. of Prob. & Parole,

698 A.2d 32, 36 (Pa. 1997) (holding parolee’s right to be free from

unreasonable searches and seizures was “unaffected by his signing of the

consent to search provision”), rev’d on other grounds, 524 U.S. 357, 369,

118 S. Ct. 2014, 2022, 141 L. Ed. 2d 344, 355 (1998); State v. Turner,

297 S.W.3d 155, 166 (Tenn. 2009) (adopting Samson “where the parolee

has agreed to warrantless searches by law enforcement officers”); State v.

Velasquez, 672 P.2d 1254, 1260 & n.4 (Utah 1983) (holding defendant

does not waive Fourth Amendment protection by signing parole

agreement, but the search condition does confirm right of parole officer

to conduct reasonable searches within scope of parole mission); Pena v.

State, 792 P.2d 1352, 1357–58 (Wyo. 1990) (“[A] parolee’s signature on a

parole   agreement    which    permits    warrantless    searches    as   an

acknowledgement that parole officers have the right to conduct

reasonable searches.”); see also State v. Williams, 486 S.W.2d 468, 472

(Mo. 1972) (“[Parolees] have accepted the favor of parole subject to that

degree of surveillance and search required under the circumstances for

the effective supervision of the parolee and the protection of the public.”).

      To begin our analysis, we largely set aside the cases dealing with

probation agreements. These cases are of limited value in analyzing the

consent issue in parole agreements because probationers often end up

on probation through plea bargaining and, consequently, maintain a
                                    17

vastly superior bargaining power than parolees. Such a probationer has

the choice of demanding a trial to seek his or her freedom, which many

courts find gives rise to the type of bargaining power that renders

probation agreements consensual.         See Barnett, 415 F.3d at 692

(“Nothing is more common than an individual’s consenting to a search

that would otherwise violate the Fourth Amendment, thinking that he

will be better off than he would be by standing on his rights.”). Thus, we

primarily focus on parolee cases.

      More direct to the issue we must decide, our review of those cases

that enforce consent provisions of a parole agreement largely undervalue

the rights of parolees, rendering them inapposite for a helpful and tight

analysis under Iowa law.     See Ochoa, 792 N.W.2d at 287–91.         For

example, many of these cases simply follow Samson. See, e.g., Wilson,

885 N.E.2d at 1042 (applying Samson to a parole agreement with

different language than the language at issue in Samson); Turner, 297

S.W.3d at 166 (holding requirement that a prisoner agree to search

condition of parole “is reasonable in light of the parolee’s significantly

diminished privacy interests”). Like Samson, Wilson is not a true consent

case; it simply uses a search condition in a parole agreement to decrease

the parolee’s expectation of privacy to a nullity. See Wilson, 885 N.E.2d

at 1042; see also Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199 n.3,

165 L. Ed. 2d at 259 n.3.     Similarly, although it preceded Samson,

McCullough was not actually a consent case either, but rather a special

needs case that essentially used the special needs doctrine to reach the

result reached by Samson. See McCullough, 6 P.3d at 780–81. Likewise,

Sullivan did not analyze the facts of the case for anything resembling

voluntariness. See 975 N.E.2d at 1001. Neither did its jurisprudential

progenitor, Benton.   See 695 N.E.2d at 761.      Rather, Benton simply
                                    18

concluded parolees may be subjected to suspicionless searches based on

policy grounds largely related to the parolee’s status.        See id.    Our

rejection of Samson in Ochoa leads us to reject these cases as well. See

792 N.W.2d at 287–91.

      Additionally, two cases pique our concern that suspicionless

consent searches of parolees also impact persons who live with parolees.

See McFerrin v. State, 42 S.W.3d 529, 534–35 (Ark. 2001) (holding parole

officer could extract consent from parolee’s sister prior to parolee’s

release); Devore, 2 P.3d at 156–57 & nn.1, 2 (holding a search

notification   form   requiring   parolee’s   roommates   to     submit    to

suspicionless searches created valid consent).     Another case cogently

explains the fear about these cases. Roman, 570 P.2d at 1241–42. The

Roman court stated:

      “Fourth amendment protection will be diminished not only
      for parolees, but also for the family and friends with whom
      the parolee might be living. Those bystanders may find
      themselves subject to warrantless searches only because
      they are good enough to shelter the parolee, and they may
      therefore be less willing to help him—a sadly ironic result in
      a system designed to encourage reintegration into society.
      Moreover, the demeaning effect of arbitrary intrusions into
      the parolee’s privacy will be reflected in the attitudes of his
      relatives and friends. As a result, the parolee will suffer
      diminished feelings of self-worth, making his rehabilitation
      more difficult.    In addition, warrantless parole officer
      searches may reinforce patterns of resentment to authority,
      and excessive external controls may inhibit the development
      of necessary internal controls: ‘a person must have the
      freedom to be responsible if he is to become responsibly
      free.’ ”

Id. at 1243 (quoting Note, Striking the Balance Between Privacy and

Supervision: The Fourth Amendment and Parole and Probation Searches of

Parolees and Probationers, 51 N.Y.U. L. Rev. 800, 816–17 (1976)

(footnotes omitted)). Roman actually rejected consent as a rationale for

upholding searches of parolees, although it held limited searches of
                                           19

parolees were acceptable under another rationale. See id. at 1241–42,

1243–44. These collective observations give us pause to follow this line

of authority.

       Those courts in other states that have rejected consent derived

from parole agreements as a theory for upholding searches of parolees do

so on the basis that such a condition of parole is coercive and, therefore,

involuntary. See, e.g., Coleman, 395 F. Supp. at 1157. These courts not

only find the general surrounding circumstances tend to weigh against

consent, particularly the custodial nature of the setting that produces

parole, but also the limited choices available to a prisoner seeking parole.

Coleman, 395 F. Supp. at 1157.                The temptation of the “return to

normalcy,” combined with the fact that the parolee’s choices are either to

waive Fourth Amendment rights or to remain incarcerated, render the

resulting agreement to waive all Fourth Amendment protection coercive

and invalid.      Id.; cf. Tamez, 534 S.W.2d at 692 (“The choice to reject

probation and go to prison or accept probationary condition was really no

choice at all.       It was in effect coerced.”).           This approach actually

resembles the path we have already begun to forge.

       We have previously recognized the absence of bargaining power by

a parolee in a parole agreement.            In State v. Cullison, we rejected the

notion of using contract law to support a voluntary surrender of

constitutional rights by a parolee on the basis that parole involves the

situation in which the State “has all of the bargaining power,” which

renders the contractual nature of an agreement illusory.                   173 N.W.2d

533, 536–37 (Iowa 1970). 2


       2Without     expressly saying so, we decided Cullison based on the Iowa
Constitution. Cullison, 173 N.W.2d at 537–38. The keystone of our reasoning there
was article II, section 5 of the Iowa Constitution, which strips Iowa prisoners of a single
                                          20

       The lack of free will by a parolee to support consent-search

provisions of parole agreements was also recognized in the dissent in

Samson, which we followed in Ochoa. In his dissent in Samson, Justice

Stevens found the notion of parolee consent-to-search provisions to be

“sophistry.” 547 U.S. at 863 n.4, 126 S. Ct. at 2206 n.4, 165 L. Ed. 2d

at 267 n.4 (Stevens, J., dissenting). In truth, a parolee simply

       has no “choice” concerning the search condition; he may
       either remain in prison, where he will be subjected to
       suspicionless searches, or he may exit prison and still be
       subject to suspicionless searches. Accordingly, “to speak of
       consent in this context is to resort to a ‘manifest fiction,’ for
       ‘the [parolee] who purportedly waives his rights by accepting
       such a condition has little genuine option to refuse.’ ”

Id. (quoting 5 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 10.10(b), at 440–41 (4th ed. 2004)).

       Similarly, Justice Kennedy recognized the weakness of using

consent predicated on the acceptance of adverse consequences in his

concurring opinion in Ferguson v. City of Charleston, 532 U.S. 67, 90–91,

121 S. Ct. 1281, 1295, 149 L. Ed. 2d 205, 224 (2001) (Kennedy, J.,

concurring). While he disagreed with the majority’s analysis regarding

the purported special needs justification of a practice by a public hospital

to require pregnant mothers who displayed certain symptoms and

characteristics to consent to drug testing, Justice Kennedy also spoke in

his concurring opinion to the nature of the consent dictated by the

hospital. See id. He wrote:

___________________
right: the right to vote. Id. The Iowa Constitution does not strip prisoners or parolees
of other rights. Thus, it is apparent that our holding in Cullison—that a parolee enjoys
a comparable level of constitutional protection from unreasonable searches and
seizures as nonparolees—was inextricably tied to the Iowa Constitution. Of course, our
reliance on the Iowa Constitution would have been irrelevant if Cullison was a Federal
Fourth Amendment case.
                                       21
               An essential, distinguishing feature of the special
        needs cases is that the person searched has consented,
        though the usual voluntariness analysis is altered because
        adverse consequences (e.g., dismissal from employment or
        disqualification from playing on a high school sports team)
        will follow from refusal. The person searched has given
        consent, as defined to take into account that the consent
        was not voluntary in the full sense of the word. The consent,
        and the circumstances in which it was given, bear upon the
        reasonableness of the whole special needs program.

Id. (citations omitted).    Thus, both our prior precedent and a line of

authority outside Iowa has revealed that a consent-to-search clause in a

parole agreement would not necessarily satisfy the type of consent to

qualify as an exception to the search-and-seizure requirement under our

Iowa Constitution.

        The academic community has also recognized weaknesses in

treating consent searches as voluntary searches in the context of the

grant of parole.       Cf. David T. Reindl, Bargains or Unconstitutional

Contracts? How Enforcement of Probation Orders as Contracts Could Take

the Reasonableness Out of Probation Searches, 33 New Eng. J. on Crim.

& Civ. Confinement 123, 145–51 (2007). A predominant factor in this

observation is the government’s overwhelming bargaining power during

negotiations tends to render these contracts essentially contracts of

adhesion, with some particularly objectionable clauses and conditions of

these     contracts     being   both    procedurally   and    substantively

unconscionable.       Id. at 149–51.   Moreover, while the title of a legal

document is not dispositive, a contractual theory may be especially

inapplicable to parole conditions when, as in this case, they are part of a

document that is itself entitled “Order.” See id. at 146. That caption or

title properly captures the real character of the transaction. Indeed, it

has been noted that, while power imbalance can be a key factor in

determining the validity of a contract, it has been an important factor in
                                     22

the consent-to-search context since before Schneckloth. Christo Lassiter,

Consent to Search by Ignorant People, 39 Tex. Tech L. Rev. 1171, 1189–

91 (2007).

      Professor LaFave has written extensively in this area and has

concluded that a coercive atmosphere necessarily militates against

finding that an ostensive consent is voluntary.        4 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 66,

81–90 (5th ed. 2012) [hereinafter LaFave]. The coercive atmosphere of

physical detention in an official location is of the “greatest significance.”

Id. at 88.   Professor LaFave concedes that “ ‘custody alone has never

been enough in itself to demonstrate [coercion].’ ” Id. at 84–85 (quoting

United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46

L. Ed. 2d 598, 609 (1976)).        Nonetheless, LaFave emphasizes the

distinction between cases in which the subject of the search was either

“free to leave or was in familiar surroundings at the time” and cases in

which the search subject was in custody.           Id. at 89–90 (footnotes

omitted).    Indeed, LaFave suggests this distinction was pivotal to the

outcome of Schneckloth itself, stating, “[T]he Supreme Court [in

Schneckloth] noted that, ‘since consent searches will normally occur on a

person’s own familiar territory, the specter of incommunicado police

interrogation in some remote station house is simply inapposite.’ ” Id. at

89 (quoting Schneckloth, 412 U.S. at 247, 93 S. Ct. at 2058, 36 L. Ed. 2d

at 874).

      LaFave’s recognition that “ ‘the location and conditions’ of even a

brief detention may be such as to foreclose a finding of voluntary

consent” is also instructive. Id. at 90 (footnote omitted) (quoting United

States v. Worley, 193 F.3d 380, 387 (6th Cir. 1999)).       Even seemingly

innocuous circumstances such as a brief stop in an airport
                                          23
       “make it easy for implicit threats or subtle coercion to exert
       tremendous pressure on an individual to acquiesce to the
       officer’s wishes. In such a situation it would be easy to
       misinterpret acquiescence to an officer’s demands as
       consent; acquiescence cannot, of course, substitute for free
       consent.”

Id. (quoting United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982)).

We have similarly recognized the potential for coercion even in brief

roadside stops. See State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011)

(holding officer’s request for consent in the squad car without informing

Pals he was free to leave or warning him regarding his right to refuse

consent was coercive). In other words, coercion can easily find its way

into human interaction when detention is involved.

       LaFave has also traced the development of consent-to-search

clauses in probation and parole agreements to the now discredited “act of

grace” theory of parole. 5 LaFave § 10.10(b), at 527; see also Cullison,

173 N.W.2d at 536–37 (rejecting the “act of grace” theory of parole).3

LaFave notes the effort to revive the “act of grace” theory can be traced to

a 1967 article. 5 LaFave § 10.10(b), at 527. The article advised states to

       “make the right to conduct a search and seizure . . . an
       express condition of parole or probation, as the case may be,
       which the defendant knowingly accepts.         Constitutional
       rights may be waived and if a court should hold that the
       Fourth Amendment is applicable in these instances, the
       rights could be waived in this manner.”



       3The   “act of grace” theory was built upon the argument that parole is a
“privilege.” 5 LaFave § 10.10(b), at 525–26. The United States Supreme Court rejected
this theory two years after the Iowa Supreme Court did. See Morrissey v. Brewer, 408
U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484, 495 (1972). The Court stated:
       It is hardly useful any longer to try to deal with this problem in terms of
       whether the parolee’s liberty is a “right” or a “privilege.” By whatever
       name, the liberty is valuable and must be seen as within the protection
       of the Fourteenth Amendment.
Id.
                                     24

Id. (quoting Alexander Holtzoff, The Power of Probation and Parole Officers

to Search and Seize, 31 Fed. Probation 3, 7 (1967)). As our own research

indicates, LaFave observed that many courts confronted with these

purported waivers of constitutional protections have approved of them.

Id. at 529–30.

      However, LaFave disagrees with these holdings. Id. at 530–31. A

proper application of Schneckloth requires more than a superficial

inquiry into the existence of a parole agreement containing a consent

provision.   Id. at 532.    LaFave concludes by drawing a connection

between Schneckloth’s reliance on Fifth Amendment cases that analyze

the voluntariness of a confession and

      the long established rule that a confession is not voluntary
      when given in response to an assurance by the maker “that,
      by so doing, he might at least obtain a mitigation of the
      punishment for the crime which otherwise would assuredly
      follow.”

Id. (quoting Bram v. United States, 168 U.S. 532, 565, 18 S. Ct. 183, 195,

42 L. Ed. 568, 581 (1897)). He doubts whether such a “quid pro quo . . .

could pass muster under Schneckloth” and opines this may be the very

reason the United States Supreme Court has consistently analyzed

searches of parolees and probationers on other grounds. Id.

      Other commentators have argued that contractual thinking

nonetheless has a place in constitutional search-and-seizure analysis,

particularly when the government is not obligated to extend a certain

privilege or benefit in the first place. William J. Stuntz, Implicit Bargains,

Government Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 555

(1992) [hereinafter Stuntz]; see also Michael Chmelar, Contract Law and

Its Potential Impact on Parole and Probation Searches, 28 N. Ill. U. L. Rev.

43, 54–56 (2007); cf. Kathleen M. Sullivan, Unconstitutional Conditions,
                                       25

102 Harv. L. Rev. 1413, 1422 (1989) (“What government benefits give rise

to    unconstitutional   conditions    problems?     Those        benefits   that

government     is   permitted    but     not   compelled     to     provide. . . .

Unconstitutional conditions problems . . . do not arise if government is

obligated to provide a benefit.”).     Yet, by analogy, while a government

could argue it could decline to offer public housing altogether and thus

should be able to require waiver of constitutional search-and-seizure

protection as consideration for offering the public housing in the first

place, this argument would be a “bluff,” given society’s acceptance of

public housing. Stuntz, 44 Stan. L. Rev. at 568. It would not necessarily

be a bluff if society did not value available options for affordable public

housing. Id. The application of these principles to searches of parolees

is somewhat difficult. On the one hand, granting parole decreases the

government’s financial burden of operating a prison system. See id. at

580.    Articulating stricter standards for searches of parolees, on the

other hand, would likely limit the number of prisoners granted such

lighter treatment, as the costs of supervising probationers and parolees

would also rise. Id. at 581. Thus, this consequence would ultimately

have the effect of redistributing the loss of freedom from parolees subject

to enhanced supervision techniques to increased numbers of prisoners

whose grant of conditional freedom is either delayed or never granted.

Id.

       Another commentator has argued that the government could not in

fact choose not to grant parole for at least some prisoners given that

prisons, like other government departments, face budgetary restrictions.

Antoine McNamara, Note, The “Special Needs” of Prison, Probation, and

Parole, 82 N.Y.U. L. Rev. 209, 237 (2007) [hereinafter McNamara].

McNamara notes that a recent study found that not offering parole or
                                          26

probation would “more than triple the inmate population.” Id. at 237 &

n.191 (citing Lauren E. Glaze & Seri Palla, U.S. Dep’t of Justice, Bureau

of Statistics, Probation and Parole in the United States 1–2 (2005)).

Therefore, contrary to Judge Posner’s assertion in Barnett that parolees

and    probationers    “[give]    up    nothing”       by   agreeing   to   submit   to

warrantless, suspicionless searches, see 415 F.3d at 692, the parolee or

probationer     actually   gets    nothing        in    return   for   waiving    their

constitutional search-and-seizure rights, McNamara, 82 N.Y.U. L. Rev. at

238.

       Another article provides empirical data relevant to the other side of

Schneckloth’s policy balancing equation.               In the context of waivers of

Fourth Amendment rights by probationers, one article surveyed forty-one

Wisconsin probation officers after the Supreme Court’s opinion in Griffin

and found that a blanket waiver of search-and-seizure protections that

“applies to all probationers is not necessary to adequately protect the

public.”        See   Howard P.        Schneiderman,         Comment,       Conflicting

Perspectives from the Bench and the Field on Probationer Home

Searches—Griffin v. Wisconsin Reconsidered, 1989 Wis. L. Rev. 607, 610,

655    (1989)   (arguing   that,       although    probation     officers   appreciate

warrantless home searches, a low rate of frequency of home searches

combined with probation officer dislike of home searches indicates that

warrantless home searches are not necessary for the maintenance of

Wisconsin’s probation system).            Indeed, Schneiderman acknowledges

that Justice Scalia’s analogy to administrative searches may be apt in

the context of home visits, but is inapposite in the context of “full-blown

searches,” which are generally conducted when the parole officer believes

that a parole violation or crime may be taking place. Id. at 656–57.
                                           27

       With all this in mind, we proceed to consider the voluntariness of a

prospective consent-to-search provision in a parole agreement used to

justify a search of a parolee. Importantly, the issue is not whether the

government can or cannot conduct a search of a parolee. The narrow

question before us is whether the government can conduct the search

based solely on consent required to be given by parolees as a condition of

release from prison. 4 Every search of a citizen by the government must

be supported by some recognized ground or justification, and we must

only decide if consent extracted from prisoners as a condition of release

on parole constitutes one such ground. We have no occasion in this case

to consider other grounds available to the State to justify such a search.

       Unlike the situation in Zap, the voluntary nature of the consent to

search was not supported by the benefit of the bargain found on the face

of the parole agreement in this case.             We appreciate that the bargain

under a contract can, at times, involve a choice between two unpalatable


       4Our   ultimate resolution of this case does not render the conditions of a parole
agreement unenforceable. The State may ordinarily impose any reasonable condition
on the grant of parole. Cf. State v. Valin, 724 N.W.2d 440, 445–46, 448–49 (Iowa 1996)
(recognizing the state may impose reasonable conditions of probation, but holding that
a probation condition requiring a sex offender who was convicted of operating while
intoxicated to be subjected to a penile plethysmograph exam for sexual arousal was
unreasonable). A violation of that condition can result in a revocation of parole and a
return to prison. Thus, our decision does not mean parolees are not required to follow
reasonable conditions of parole, including a reasonable search provision, or that they
could not have parole revoked for failing to comply with a term in the parole agreement.
This case only deals with the narrow question whether the government may enforce
compliance with a condition of probation through the contractual principle of consent.
The reasonableness standard does not supersede the voluntariness standard for
determining the validity of searches conducted to a purported consent. If it did, we
think very little would remain of the voluntariness standard articulated in Schneckloth.
This is precisely because the State imposes reasonable conditions; the prospective
parolee does not agree to them. See Iowa Admin. Code r. 201—45.1(2)(a) (“The parolee
may not be released on parole prior to the execution of the parole agreement. The
parole agreement shall contain the conditions of parole pursuant to rule 45.2(906) . . . .”
(emphasis added)); id. r. 201—45.2 (listing ten standards of condition of parolee with
which the parolee “shall” comply).
                                    28

alternatives, which does not defeat the voluntariness of the consent. See

Barnett, 415 F.3d at 692 (declaring that a choice between accepting

probation as a term of a plea bargain is more valuable than the risk of

going to prison following a trial); Benton, 695 N.E.2d at 762 (rejecting an

argument that defendant “had no choice but to sign a waiver as a

condition of his parole, thereby implying that the waiver was not

voluntary”); Anderson, 507 S.E.2d at 341 (holding grant of consent in a

parole agreement was voluntary even though the terms of the agreement

were “dictated by the Commonwealth” and the defendant signed “only to

avoid time in jail”). However, this proposition does not mean a choice

between two unpalatable alternatives can never be coercive.                 See

Schneckloth, 412 U.S. at 224, 93 S. Ct. at 2046, 36 L. Ed. 2d at 861

(“ ‘Except where a person is unconscious or drugged or otherwise lacks

capacity for conscious choice, all incriminating statements—even those

made    under   brutal   treatment—are     “voluntary”   in   the   sense    of

representing a choice of alternatives.’ ” (quoting Paul M. Bator & James

Vorenberg, Arrest, Detention, Interrogation and Right to Counsel: Basic

Problems and Legislative Solutions, 66 Colum. L. Rev. 62, 72 (1966))).

Parole is simply one of those times when a choice to remain in prison

with no constitutional rights involving search and seizure or to gain

freedom with no constitutional rights involving search and seizure is

simply “no choice at all.”      Tamez, 534 S.W.2d at 692.            When a

constitutional right is at stake, more than a one-sided agreement is

needed to establish waiver of the right.

       The obligation of courts to examine the voluntariness of an

agreement is nothing new and is supported by our law of contracts. For

instance, we refuse to enforce unconscionable contracts. See Casey v.

Lupkes, 286 N.W.2d 204, 207 (Iowa 1979) (recognizing unconscionability
                                     29

as a generally available contract defense); see also Restatement (Second)

of Contracts § 208 (1981) (permitting a court to refuse to enforce all or

part of a contract if the contract was unconscionable when formed). The

doctrine is especially applicable to contracts of adhesion.    See C & J

Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 179–81 (Iowa

1975). This refusal is based on a strong distaste for the enforcement of

unjust terms between parties of grossly disproportionate bargaining

power. As we quoted in a recent case:

      “A bargain is not unconscionable merely because the parties
      to it are unequal in bargaining position, nor even because
      the inequality results in an allocation of risks to the weaker
      party. But gross inequality of bargaining power, together with
      terms unreasonably favorable to the stronger party, may
      confirm indications that the transaction involved elements of
      deception or compulsion, or may show that the weaker party
      had no meaningful choice, no real alternative, or did not in
      fact assent or appear to assent to the unfair terms.”

In re Marriage of Shanks, 758 N.W.2d 506, 515 (Iowa 2008) (quoting

Restatement (Second) of Contracts § 208 cmt. d).           This language

accurately summarizes the nature of a consent-to-search provision in a

parole agreement and reveals that the failure to enforce search provisions

is consistent with other occasions when we have refused to enforce terms

of a contract that were, in all reality, not consensual.

      A practical reality regarding the release of prisoners on parole

bolsters our conclusion. Generally, a prisoner in the Iowa state penal

system automatically earns one day of good-time credit for each day

served. See Iowa Code § 903A.2(1)(a). Accordingly, the time when parole

can be offered to an inmate is cut in half by good-time credits.

Additionally, parole in most cases is offered much earlier. For example,

according to a recent annual report from the board of parole, the average

time served in prison prior to obtaining parole on a conviction for
                                     30

possession of marijuana with intent to distribute was only eighteen

months, not ten years. Iowa Board of Parole, Annual Report for State

Fiscal Year 2011 (2012), at 18 tbl. 6. The average time served prior to

the grant of parole for failure to affix a tax stamp was 18.6 months. Id.

The average time served for possession of a firearm by a felon was only

16.2 months, not five years. Id. Thus, the average prospective parolee

who committed the same crimes as Baldon would face more than eight

additional years in prison if he or she did not sign the parole agreement

containing a search provision.        Under these circumstances, it is

unreasonable to believe that the reality of consent normally derived from

the benefits exchanged between the parties to a contract applies to parole

agreements.    The amount of freedom typically at stake points to the

coercive nature of consent searches as a precondition to release.

      Additionally, a prisoner essentially has nothing to bargain when it

comes to parole because the parole system does not offer early parole to

inmates who agree to be searched if paroled.         Instead, inmates are

entitled to parole under a different calculation, but the parolee must

nevertheless agree to the terms of parole as a condition of release. Iowa

Admin. Code r. 201—45.1(2) (“The parolee may not be released on parole

prior to the execution of the parole agreement.”). Thus, the refusal to

consent to a warrantless and suspicionless search simply means many,

many more years in prison, while giving consent does not offer release to

a parolee earlier than otherwise entitled. More fundamentally, parolee

consent searches are conceptually detached from the concept of

bargaining because the State would be able to impose any reasonable

term of parole irrespective of the consent of the parolee.

      From a practical standpoint, consent under these circumstances is

not real. We are duty bound to give the liberty in article I, section 8 of
                                    31

our constitution the integrity it deserves and demands, and we must not

allow the government to avoid an important constitutional check on its

power by using an unfair play on human nature.           To give article I,

section 8 its integrity, we must hold Baldon’s acceptance of the parole

agreement did not constitute consent under our precedent.

      Moreover, there was no additional evidence in the record to reveal

Baldon voluntarily consented to a search, even in the absence of

bargaining power. The conclusory evidence in this case that Baldon read

and understood the terms of the parole agreement does not establish his

consent. Nevertheless, the State relied on the parole agreement alone to

establish consent, which we conclude is inadequate.

      Considering our obligation to ensure that consent remains a

doctrine of voluntariness that functions with integrity, we conclude a

parole agreement containing a prospective search provision is insufficient

evidence to establish consent.   Such a contract reveals an absence of

bargaining power on behalf of the parolee, rendering contract principles

inadequate to entitle the state to enforce compliance of a search

provision.   The purported consent extracted from a prisoner as a

condition of release fails to constitute voluntary consent.          As a

mandatory term of parole, such consent would also have the effect of

justifying the search on the basis of parole status. This is not permitted

under Ochoa.    More is needed, and a consent provision in a parole

agreement does not supply this additional justification because it fails to

pass the test of voluntariness required under article I, section 8 of the

Iowa Constitution.

      V. Conclusion.

      For the reasons stated above, we hold that the search provision

contained in Baldon’s parole agreement does not represent a voluntary
                                   32

grant of consent within our constitutional meaning.        As such, the

suspicionless search of Baldon’s car violated article I, section 8 of the

Iowa Constitution.   Accordingly, the district court’s denial of Baldon’s

motion to suppress is reversed, and the case is remanded to the district

court for further proceedings.

      REVERSED AND REMANDED FOR NEW TRIAL.

      Wiggins, Hecht, Appel, and Zager, JJ., join this opinion; Appel, J.,

files a separate concurring opinion; and Mansfield, J., files a dissenting

opinion in which Waterman, J., joins.
                                    33

                                                #10–0214, State v. Baldon

APPEL, Justice (concurring specially).

      I join in the majority opinion, but write to review the foundations of

the well-established Iowa law that we jealously reserve our right to

construe our state constitution independently of decisions of the United

States Supreme Court interpreting parallel provisions of the Federal

Constitution.

      I. Historic Role of State Constitutions.

      A. State Constitutions, Declarations of Rights, and Judicial

Review Prior to Ratification of United States Constitution. Suppose

a leading historian asks you to identify a period in American history.

The historian tells you the period in question was “the most creative and

significant period of constitutionalism in modern Western history.” The

historian further advises you that many able and dedicated persons were

drawn away from their other important political responsibilities to engage

in legal drafting. Finally, the historian advises you that the end work

product of those who labored “captured the attention of intellectuals

everywhere in the world” and was “published and republished in several

European languages.” With these three clues, you might be tempted to

answer that the period being described is the several months in 1787

when the delegates to the Constitutional Convention in Philadelphia

drafted the United State Constitution. But you would be wrong.

      The above description is based on the writing of Gordon Wood, a

leading historian of the Revolutionary Era and the Early Republic. He

was writing with such panache not about the Constitutional Convention

in Philadelphia, but about the period beginning in 1776 when states

began the process of drafting their own independent state constitutions.

See Gordon S. Wood, Foreword: State Constitution-Making in the
                                            34

American      Revolution,    24   Rutgers        L.J.   911,     911,   913–14   (1993)

[hereinafter Wood].

      While the Philadelphia convention and its aftermath have greater

notoriety today, the construction of independent state constitutions was

an important legal development.                  More than a decade before the

Constitutional Convention in Philadelphia, the Continental Congress in

May 1776 encouraged the establishment of state governments with “all

the powers of government exerted, under the authority of the people of

the colonies.” See Jack Rakove, The Beginnings of National Politics: An

Interpretative History of the Continental Congress 96–97 (1979); Merrill

Jensen, The Articles of Confederation: An Interpretation of the Social–

Constitutional History of the American Revolution 1774–1781 98 (1948);

see also IV Journals of the Continental Congress, 1774–1789 358

(Worthington C. Ford et al., ed. 1904–37) [hereinafter Journals of the

Continental     Congress].        A   few    weeks      later,    the   Declaration   of

Independence declared that “these United Colonies are, and of Right

ought to be Free and Independent States.”                         The Declaration of

Independence para. 32 (U.S. 1776). By the time of the Declaration, the

states had already begun to develop their structures, including their

constitutions.    Edmund S. Morgan, The Birth of the Republic, 1763–89

88–89 (3d ed. 1992) [hereinafter Morgan]; Wood, 24 Rutgers L.J. at 913.

John Adams, George Mason, James Madison, John Jay, and Governor

Morris, among others, participated in the drafting of these state

constitutions. I Melvin Urofsky & Paul Finkelman, A March of Liberty: A

Constitutional History of the United States 66, 69–70 (2d ed. 2011).

      Thus, upon declaring independence, the people did not return to a

Hobbesian state of nature.            Rather, the prior colonial governments

evolved into “Independent States” through a constitutional process. By
                                       35

the end of 1776, ten state governments were in place, with the rest being

completed in 1780.      Morgan at 90; Wood, 24 Rutgers L.J. at 913–14.

From the get-go, these state constitutions were designed to be stand

alone sources of law.    As noted by Fletcher M. Green, the colonialists

debated extensively in the months preceding independence whether the

states should adopt a uniform constitution, to be prepared by the

Continental Congress. Fletcher M. Green, Constitutional Development in

the South Atlantic States, 1776–1860: A Study in the Evolution of

Democracy 52–54 (W.W. Norton & Co. 1966) [hereinafter Green].

Ultimately, following the proposal of John Adams, the Continental

Congress recommended that the states form their own constitutions that

“ ‘in the opinion of representatives of the people, best conduce to the

happiness and safety of their constituents in particular, and America in

general.’ ” Id. at 54 (quoting IV Journals of the Continental Congress at

342); see also Willi Paul Adams, The First American Constitutions:

Republican Ideology and the Making of State Constitutions in the

Revolutionary Era 55–56 (Rita & Robert Kimber trans., Madison House

Books,   expanded.     ed.   2001)     (describing    Adams’s   reasoning    in

recommending to New Hampshire that it form its own government).

Thus, the colonialists expressly rejected uniformity. Green at 54.

      The approval of the Articles of Confederation did not alter the

status of state constitutions as independent sources of law.                The

constitutions   of   what    the     Declaration     of   Independence   called

“Independent States” coexisted with the Articles of Confederation. Under

the Articles of Confederation, the states, not the people, were represented

in the Congress.     John P. Kaminski, The Constitution Without a Bill of

Rights, in The Bill of Rights and the States: The Colonial and Revolutionary

Origins of American Liberties 16, 18 (Patrick T. Conley & John P.
                                              36

Kaminski eds., 1992) [hereinafter Kaminski]. Article II of the Articles of

Confederation structured the relationship between the states and the

“United States, in Congress assembled.” See Articles of Confederation of

1781, art. II. It provided, “Each state retains its sovereignty, freedom,

and independence, and every power, jurisdiction and right, which is not

by this confederation expressly delegated to the United States, in

Congress assembled.” Id.

       By the time of the Constitutional Convention in Philadelphia,

eleven states had written constitutions (Connecticut and Rhode Island

continued       governance      under    modified    colonial     charters).     Ralph

Ketcham,        Introduction,    in     The    Anti-Federalist    Papers       and   the

Constitutional Convention Debates 1, 3 (Ralph Ketcham ed., 1986)

[hereinafter     Ketcham];      Advisory      Commission     on    Intergovernmental

Relations, State Constitutions in the Federal System 7 (1989) [hereinafter

State Constitutions in the Federal System]; see also generally Albert L.

Sturm, The Development of American State Constitutions, 12 Publius 57,

60–63 (1982).       This state constitutional experience was recognized by

Thomas Jefferson, who is said to have calculated that by 1787 the states

collectively shared 150 years of experience in republican government.

Ketcham at 3. As a result, when the conclave opened in Philadelphia,

there was already a mature state constitutional tradition upon which the

founders could draw.             Donald S. Lutz, The Origins of American

Constitutionalism 5 (1988). 5         Thus, the United States Constitution was

       5There  is substantial literature regarding the formation of state constitutions
prior to the adoption of the United States Constitution. See, e.g., Willi Paul Adams, The
First American Constitutions: Republican Ideology and the Making of State Constitutions
in the Revolutionary Era 55–56 (Rita & Robert Kimber trans., Madison House Books,
expanded. ed. 2001); The Constitutionalism of American States (George E. Connor &
Christopher W. Hammons eds., 2008); Marc W. Kruman, Between Authority and Liberty:
State Constitution Making in Revolutionary America (1997); see also Gordon S. Wood,
                                          37

not created by some kind of legal Big Bang, but instead was the

outgrowth of colonial experience and state constitutional precedents.

        Many     of   these   early   independent      state   constitutions   had

declarations of rights or similar provisions. See 1 Jennifer Friesen, State

Constitutional Law: Litigating Individual Rights, Claims, and Defenses,

§ 1.03[1], at 1–7 to 1–10 (4th ed. 2006) [hereinafter Friesen]. Eight of

these    early    state   constitutions   (Virginia,   Pennsylvania,    Delaware,

Maryland,        North    Carolina,   Vermont,     Massachusetts,      and     New

Hampshire) had search and seizure provisions. Bernard Schwartz, The

Great Rights of Mankind: A History of the American Bill of Rights 88

(Madison House 1992) [hereinafter Schwartz]. Of particular interest is

the Massachusetts search and seizure provision. This important search

and seizure provision was drafted by John Adams, who as a young

lawyer was thrilled to hear James Otis rail in Paxton’s case against the

new writs of assistance issued by the English crown. See, e.g., Leonard

W. Levy, Origins of the Bill of Rights 157–59 (1999) [hereinafter Levy];

John M. Murrin, From Liberties to Rights: The Struggle in Colonial

Massachusetts, in The Bill of Rights and the States: The Colonial and

Revolutionary Origins of American Liberties 63, 88–91, 94 (Patrick T.

Conley & John P. Kaminski eds., 1992) [hereinafter Murrin].              Adams’s

experience influenced the text of the provision. Levy at 158; Murrin at

91. It states:

        Every subject has a right to be secure from all unreasonable
        searches, and seizures, of his person, his houses, his papers,
        and all his possessions. All warrants, therefore, are contrary
        to this right, if the cause or foundation of them be not
        previously supported by oath or affirmation; and if the order

___________________
Foreword: State Constitution-Making in the American Revolution, 24 Rutgers L.J. 911
(1993).
                                    38
      in the warrant to a civil officer, to make search in suspected
      places, or to arrest one or more suspected persons, or to
      seize their property, be not accompanied with a special
      designation of the persons or objects of search, arrest, or
      seizure: and no warrant ought to be issued but in cases, and
      with the formalities prescribed by the laws.

Mass. Const. of 1780, art. XIV.

      In contrast to many of the Revolutionary Era state constitutions,

the Articles of Confederation had no bill of rights. Under the Articles of

Confederation, however, Congress had no power over individuals and

only limited authority with respect to the states. Kaminski at 18. Thus,

there arguably was no need for a bill of rights as Congress had no direct

authority over the people. Id.

      In addition, state court judges operating under Revolutionary Era

state constitutions were developing the principle of judicial review in a

series of state constitutional cases decided before ratification of the

United States Constitution and Marbury v. Madison, 5 U.S. (1 Cranch)

137, 2 L. Ed. 60 (1803). On several occasions, state courts ruled state

statutes purporting to limit the right to jury trials were unconstitutional.

For example, in the 1780 New Jersey case of Holmes v. Walton, an

unpublished decision, the court found a statute permitting trial by a six-

man jury unconstitutional under the New Jersey Constitution. Schwartz

at 95; see also State v. Parkhurst, 9 N.J.L. 427, 444 (1802) (describing

that “the act upon solemn argument [in Holmes] was adjudged to be

unconstitutional, and in that case inoperative”). In 1786 and 1787, New

Hampshire courts found unconstitutional an act providing that certain

actions for damages totaling less than ten pounds could be tried by a

justice of the peace without a jury.     William Michael Treanor, Judicial

Review Before Marbury, 58 Stan. L. Rev. 455, 475–76 & n.83 (2005). In

the unreported Rhode Island case Trevett v. Weeden, the Rhode Island
                                    39

Supreme Court struck down a law passed in 1786 that imposed a

penalty, without requiring a jury trial, on those who did not accept the

state’s paper money in place of gold and silver. Id. at 476–78. In Bayard

v. Singleton, 1 N.C. (Mart.) 5 (1787), the North Carolina Supreme Court

concluded a statute barring loyalists from challenging the state’s seizure

of their property was unconstitutional because the North Carolina

Constitution provided for a jury trial whenever property was at issue in a

legal dispute. Treanor, 58 Stan. L. Rev. at 478–79. These pre-Marbury

cases expanded to other areas of the law. For example, in 1784 the New

York City Mayor’s Court held a statute could not override a treaty or

international law in Rutgers v. Waddington, also unreported. Schwartz at

97. See generally Treanor, 58 Stan. L. Rev. at 480–87. To arrive at this

conclusion, the court noted New York’s constitution adopted the common

law and, therefore, the law of nations. Treanor, 58 Stan. L. Rev. at 483.

In what has become known as the “Case of the Prisoners,” reported as

Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782), a number of Virginia

judges   embraced     judicial   review   in   finding   certain     pardons

unconstitutional. See William Michael Treanor, The Case of the Prisoners

and the Origins of Judicial Review, 143 U. Pa. L. Rev. 491 (1994).

      Three points emerge from the above discussion. First, prior to the

ratification of the United States Constitution, state constitutions, the

first American constitutions, were independent sources of law. Second,

many of the independent state constitutions, unlike the Articles of

Confederation, had bill-of-rights-type provisions designed to restrain

arbitrary government action, including provisions related to government

search and seizure. Finally, at least some state courts were developing

the principle of judicial review under their state constitutions decades

prior to Marbury v. Madison.
                                          40

       B. The Impact of Ratification and Adoption of the Bill of

Rights of the United States Constitution on Independent State

Constitutional Law. The United States Constitution was not designed

to obliterate the states and their preexisting constitutions, but to instead

draw them into a federal system with many of their functions largely

intact. As noted by Herbert Wechsler in the first sentence of his seminal

law review article, maintenance of the state’s residual sovereignty was

the “means and price of the formation of the Union.” Herbert Wechsler,

The Political Safeguards of Federalism: The Role of the States in the

Composition and Selection of the National Government, 54 Colum. L. Rev.

543, 543 (1954).

       Of course, the proposed United States Constitution imposed

important limitations on the states. Federal law would prevail over state

law under the Supremacy Clause. 6               U.S. Const. art. VI, cl. 2.         The

Guarantee Clause provided that the United States “shall guarantee” that

every state has a “Republican Form of Government.”                   Id. art. IV, § 4.

Further, Article I, Section 10 prohibited states from entering into treaties,

alliances or confederations, from coining money, from laying imposts or

duties on imports or exports except to an extent necessary to execute
inspection laws, from maintaining armies during times of peace, from


       6Under   the Supremacy Clause, “[T]he Judges in every State shall be bound [by
federal law], any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2. As a result, the United States Supreme
Court has invalidated state constitutional provisions that violate the United States
Constitution. See, e.g., Romer v. Evans, 517 U.S. 620, 635–36, 116 S. Ct. 1620, 1629,
134 L. Ed. 2d 855, 868 (1996) (striking down Colorado constitutional provision affecting
gay rights); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783, 827, 115 S. Ct. 1842,
1845, 1866, 131 L. Ed. 2d 881, 888, 914–15 (1995) (striking down Arkansas
constitutional provision imposing term limits on members of Congress); Cummings v.
Missouri, 71 U.S. (4 Wall.) 277, 322–23, 329–30, 18 L. Ed. 356, 362–63, 365 (1867)
(striking down loyalty oath imposed by Missouri Constitution).
                                                  41

entering into alliances with foreign states, from engaging in war unless

actually invaded, and from enacting certain kinds of legislation, such as

bills of attainder, ex post facto laws, and laws impairing the right of

contracts. Id. art. I, § 10.

        Although the draft United States Constitution contained a number

of provisions related to civil liberties,7 founders at the Constitutional

Convention in Philadelphia did not consider whether to include a bill of

rights in the proposed constitution until five days from the end of the

convention. Richard Labunski, James Madison and the Struggle for the

Bill of Rights 9 (2006) [hereinafter Labunski]. George Mason, who was

largely responsible for the Declaration of Rights in the Virginia

Constitution, and Elbridge Gerry of Massachusetts proposed that a

committee be appointed to draft bill of rights provisions to be

incorporated into the Federal Constitution. Id. at 8–12; see also Robert

Allen Rutland, The Birth of the Bill of Rights 1776–1791 112–13 (1955)

[hereinafter Rutland]. One scholar has suggested the convention decided

not to include a bill of rights perhaps out of fatigue as much as anything

else. Labunski at 9.

        Overall, however, the founders looked to the states to protect

individual liberties.          At the Constitutional Convention, James Wilson

observed that the purpose of the states was “to preserve the rights of

individuals.”        I Records of the Federal Convention of 1787 356 (Max



        7Civil   liberties provisions in the original draft Constitution included the
prohibition against suspension of the writ of habeas corpus except in case of rebellion
or invasion, the prohibitions of bills of attainder and ex post facto laws, the provisions
for impeachment of all civil officers, the guarantee of jury trials in criminal cases, the
narrow definition of treason, and the ban on religious qualifications for office holding.
See U.S. Const. art. I, § 9, cls. 2–3; id. art. II, § 4; id. art. III, § 2, cl. 3; id. art. III, § 3, cl.
1; id. art. VI, cl. 3.
                                     42

Farrand ed., 1937).    Similarly, in Federalist No. 45, Madison stressed

that under the Constitution, “The powers reserved to the several States

will extend to all the objects, which, in the ordinary course of affairs,

concern the lives, liberties and properties of the people . . . .”       The

Federalist No. 45, at 236 (James Madison) (Garry Wills ed., 1982).

Madison repeated the liberty theme in Federalist No. 51 by declaring, “In

the compound republic of America, the power surrendered by the people,

is first divided between two distinct governments . . . . Hence, a double

security arises to the rights of the people.” The Federalist No. 51, at 264

(James Madison) (Garry Wills ed., 1982) (emphasis added).

      Notwithstanding Madison’s efforts, antifederalists made much hay

over the failure of the Constitution to ensure in more specific language

that the power of states would be preserved.           See Pauline Maier,

Ratification: The People Debate the Constitution, 1787–1788 86–95 (2010)

[hereinafter Maier].    As noted above, the Articles of Confederation

expressly reserved all powers except those specifically enumerated to the

states. Opponents of the Constitution wondered why such a provision

was omitted from the proposed United States Constitution. See, e.g., id.

at 90–92.

      In addition, opponents to the Constitution asked why the framers

failed to include a bill of rights. See, e.g., id. at 44, 87. Opponents noted

that many state constitutions contained a bill of rights, and they

wondered why a similar approach was not taken in the United States

Constitution. Id. at 44 (citing views of George Mason). The response of

the supporters of the Constitution that the federal government was one

of enumerated powers and that a bill of rights was therefore unnecessary

was unpersuasive to many. Id. at 79.
                                     43

      While proponents of the Constitution were able to obtain

unconditional ratification of the Constitution, their success was in part

obtained by agreeing to a process in which future curative amendments

to the Constitution would be considered. See, e.g., Kaminski at 25–38

(providing overview of ratification process, in which seven states,

including   Massachusetts,     Virginia,   and     New   York,   ratified   the

Constitution and proposed amendments); Maier at 192–98 (describing

the striking of a deal between the Federalists and John Hancock that

included proposing future amendments to the Constitution at the first

meeting of Congress and political support for Hancock in future

elections). Relying in part on the rights provisions of the Massachusetts

and Pennsylvania Constitutions, Madison drafted and Congress proposed

amendments to the ratified United States Constitution that came to be

known as the Bill of Rights. See, e.g., Levy at 35–43; Rutland at 202.

      The addition of the Bill of Rights to the United States Constitution

did not affect the independent nature of state constitutional provisions

related to civil liberties.   Under the Tenth Amendment, “powers not

delegated to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the people.” U.S.

Const. amend. X.      Plainly, the United States Constitution does not

delegate the judicial power to provide final, authoritative interpretation of

state constitutions. And while there are many provisions of the United

States Constitution limiting the power of states, there are no provisions

prohibiting or restricting the power of state courts to interpret

authoritatively their state constitutions.       See State v. Schwartz, 689

N.W.2d 430, 438 (S.D. 2004) (Konenkamp, J., concurring) (citing Tenth

Amendment in finding that state supreme court had an obligation to

decide   whether   the   South   Dakota    Constitution    required    stricter
                                    44

standards for search and seizure than required by the United States

Constitution).

      The new amendments to the United States Constitution created a

Federal Bill of Rights. These provisions were not originally thought to

apply against the states. The issue was confronted in Barron v. Mayor of

Baltimore, 32 U.S. (7 Pet.) 243, 250–51, 8 L. Ed. 672, 675 (1833), when

the strongly nationalistic Chief Justice John Marshall wrote for the

United States Supreme Court that the provisions of the Federal Bill of

Rights did not apply against the states. Chief Justice Marshall wrote,

“Each state established a constitution for itself, and in that constitution,

provided such limitations and restrictions on the powers of its particular

government, as its judgment dictated.” Id. at 247, 8 L. Ed. at 674. Thus,

the Federal Bill of Rights did not supplant the state constitutional

provisions upon which it was patterned, nor did it trump the provisions

of state constitutions adopted after its enactment.

      The result of Barron was “that state protections of liberty were

more relevant to most people than the protections in the federal Bill of

Rights.”   Paul Finkelman & Stephen E. Gottlieb, Introduction: State

Constitutions and American Liberties, in Toward a Usable Past: Liberty

Under State Constitutions 9 (Paul Finkelman & Stephen E. Gottlieb eds.,

1991). As noted by Chief Justice Cady,

      Our Iowa Constitution, like other state constitutions, was
      designed to be the primary defense for individual rights, with
      the United States Constitution Bill of Rights serving only as
      a second layer of protection, especially considering the latter
      applied only to actions by the federal government for most of
      our country’s history.
                                    45

Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional History

Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and

Civil Liberties, 60 Drake L. Rev. 1133, 1145 (2012).

        At the time of the adoption of the current Iowa Constitution in

1857, Barron was good law. As a result, the Iowa Constitution contains

a number of provisions, including article I, section 8, Iowa’s search and

seizure provision, which are designed to protect individual liberties

against encroachment by state officials. See generally Iowa Const. arts.

I–II.   While contemporary sources related to the Iowa Constitutional

Convention are limited, there is no reason to conclude the framers of the

Iowa Constitution expected that article I, section 8 would receive a

cramped interpretation.    They placed the Iowa Bill of Rights at the

beginning of the Iowa Constitution to emphasize its importance. State v.

Ochoa, 792 N.W.2d 260, 274 (Iowa 2010). This priority placement has

led one observer to declare that, more than the United States

Constitution, the Iowa Constitution “emphasizes rights over mechanics.”

Donald P. Racheter, The Iowa Constitution: Rights over Mechanics, in The

Constitutionalism of American States 479, 479 (George E. Connor &

Christopher W. Hammons eds., 2008). Further, George Ellis, Chairman

of the Committee on the Preamble and Bill of Rights, stated the

committee wanted provisions in the Iowa Bill of Rights that “would

enlarge, and not curtail the rights of the people” and would “put upon

record every guarantee that could be legitimately placed there in order

that Iowa . . . might . . . have the best and most clearly defined Bill of

Rights.” 1 The Debates of the Constitutional Convention of the State of

Iowa 100 (W. Blair Lord rep., 1857).     The committee did not consider

itself some kind of Committee on Constitutional Redundancy and

Duplication. Like the drafters of Revolutionary Era state constitutions
                                    46

that predated the United States Constitution, the Iowa founders

considered the development of independent state constitutional rights as

serious business.

      In sum, the ratification of the United States Constitution and the

subsequent adoption of the Bill of Rights had no impact on the status of

state constitutions as an independent source of law.        Moreover, the

drafters of the Iowa Constitution were well aware of this basic feature of

the federalist system when they fashioned the independent civil liberties

provisions of the Iowa Constitution of 1857.

      C. Impact of the Civil War Amendments on Independent State

Constitutional Law.     The passage of the Thirteenth, Fourteenth, and

Fifteenth Amendments after the Civil War significantly altered the

relationship between the federal government and the states.              In

particular, unlike most of the provisions of the original Bill of Rights in

the United States Constitution, the Equal Protection, Due Process, and

Privileges and Immunities Clauses of the Fourteenth Amendment

expressly applied against the states. See U.S. Const. amend. XIV, § 1.

      Like the passage of the Bill of Rights, the enactment of the Civil

War Amendments did not alter state constitutions as an independent

source of law. Instead, they simply provided a federal overlay to the state

constitutional regime recognized by Chief Justice Marshall in Barron. As

noted by Michigan Supreme Court Justice Thomas Cooley shortly after

the Civil War, each state had the power to determine for itself what

provisions are in its state constitution and “what protection shall be

thrown around the person or property of the citizen.” Thomas M. Cooley,

A Treatise on the Constitutional Limitations Which Rest Upon the

Legislative Power of the States of the American Union 33 (Legal Classics

Library 1987) (1868).
                                    47

      After the Civil War, the Iowa Supreme Court recognized its

independent authority to construe the state constitution. In McClure v.

Owen, 26 Iowa 243, 255 (1868), we declared:

            It does not require argument to show that the . . .
      same principles that require the federal courts to follow the
      decisions of the State courts in construing statutes, and to
      recognize rules of local law, require the federal courts to
      follow the construction given the Constitution by the highest
      State tribunal. There is no distinction that warrants the
      disregard of the rule in cases involving the construction of
      the State Constitution.

      On questions of human rights, Iowa courts have traditionally
demonstrated a remarkably broad vision. In In re Ralph, 1 Morris 1, 7

(1839), the Territorial Supreme Court rejected a claim that a slave

present in a free state should be returned to his master, noting that

under Iowa law a slave within the free territory of Iowa is not “property”

and that the laws regarding illegal restraint apply “to men of all colors

and conditions.”     While not based on the yet unadopted Iowa
Constitution, the broad reasoning, tone, and attitude toward equality in

In re Ralph stands in striking contrast to the disastrous majority opinion

of the United States Supreme Court nearly two decades later in Dred

Scott v. Sanford, 60 U.S. 393, 15 L. Ed. 691 (1857).

      In Clark v. Board of Directors, 24 Iowa 266 (1868), we rejected the

argument that a school district could forbid African American children

from attending a school with whites on grounds of race. In Clark, our

interpretation of applicable statutes was driven by a broad conception of

article IX, section 12 of the Iowa Constitution, which requires the

education of “all the youths of the State.” Id. at 274–77. In Coger v.

Northwest Union Packet Co., 37 Iowa 145 (1873), we rejected the notion

that African Americans could be subjected to different treatment when
                                    48

being transported by public carriers.        In reaching this far-sighted

conclusion, we cited article I, section 1 of the Iowa Constitution, which

declares, “All men are, by nature, free and equal,” and noted that “[u]pon

it we rest our conclusion in this case.”      Id. at 153–55.    These Iowa

equality cases have little in common with the majority opinion of the

United States Supreme Court in Plessy v. Ferguson, 163 U.S. 537, 16

S. Ct. 1138, 41 L. Ed. 256 (1896), and much more in common with the

powerful dissent by Justice John Marshall Harlan, id. at 555–64, 16 S.

Ct. at 1145–48, 41 L. Ed. at 262–65 (Harlan, J., dissenting).

      The independent Iowa constitutional tradition was repeatedly

recognized in the first half of the twentieth century. In State v. Height,

117 Iowa 650, 654–55, 91 N.W. 935, 938 (1902), we held as a matter of

state constitutional law that the privilege against self-incrimination was

incorporated in the due process clause of article I, section 9 of the Iowa

Constitution even though at the time the United States Supreme Court

did not incorporate the Fifth Amendment against the states pursuant to

the Due Process Clause of the Fourteenth Amendment.               Then, in

McCollum v. McConaughy, 141 Iowa 172, 176, 119 N.W. 539, 540–41

(1909), we noted that, although we followed the United States Supreme

Court’s pronouncements on questions of federal constitutional law, in

our construction of a parallel state constitutional provision, “[w]e are not

bound . . . by any obligation imposed upon us in the federal Constitution

to uphold a State statute merely because, in the view of the Supreme

Court of the United States, it is not unconstitutional.”

      The responsibility of this court to exercise independent judgment

under the Iowa Constitution was well illustrated in State v. Tonn, 195

Iowa 94, 191 N.W. 530 (1923). In Tonn, we considered whether holdings

by the United States Supreme Court in Boyd v. United States, 116 U.S.
                                        49

616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), under the Fourth and Fifth

Amendments of the United States Constitution should be followed under

parallel provisions of the Iowa Constitution. Tonn, 195 Iowa at 104, 191

N.W. at 535. In Boyd, the United States Supreme Court held that the

forced production of business papers absent probable cause and their

admission     at     a    subsequent     hearing    “were       erroneous     and

unconstitutional proceedings.” 116 U.S. at 638, 6 S. Ct. at 536–37, 29 L.

Ed. at 754. Using a methodology anticipating our approach in State v.

Cline, 617 N.W.2d 277 (Iowa 2000), abrogated on other grounds by State

v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001), State v. Ochoa, 792

N.W.2d 260 (Iowa 2010), and State v. Pals, 805 N.W.2d 767 (Iowa 2011),

the majority in Tonn noted that the decision of the United States

Supreme Court in Boyd “give[s] us pause” and then proceeded to canvas

academic authorities, authorities in other states, and dissenting federal

cases in concluding the approach of the United States Supreme Court in

Boyd should no longer be followed in Iowa. Tonn, 195 Iowa at 103–09,

191 N.W. at 534–36 (internal quotation marks omitted).             In Cline, we

rejected Tonn, holding the “good faith exception” to the exclusionary rule

was incompatible with article I, section 8 of the Iowa Constitution. Cline,

617 N.W.2d at 292–93.            Nonetheless, the approach in Tonn shows

judicial recognition in Iowa of this court’s responsibility to engage in

independent constitutional analysis of state constitutional provisions

that parallel federal constitutional provisions.

      Clearly,     the   Civil   War   Amendments    to   the    United     States

Constitution did not supplant the provisions of the Iowa Bill of Rights.

Our remarkable legal heritage demonstrates that construction by the

United States Supreme Court of a parallel provision of the United States

Constitution does not bind our court on issues under the Iowa
                                          50

Constitution. Independent state constitutional analysis is nothing new,

but has been long recognized in Iowa law.

       D. Incorporation of the Bill of Rights Through the Due Process

Clause.        Beginning in 1925, the United States Supreme Court

incorporated provisions of the Bill of Rights of the United States

Constitution against the states under the Due Process Clause of the

Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666, 45

S. Ct. 625, 630, 69 L. Ed. 1138, 1145 (1925) (stating freedoms of speech

and press are so fundamental that they are protected from state

interference under the Due Process Clause). For the Fourth Amendment,

this process began with Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct.

1359, 1361, 93 L. Ed. 1782, 1785–86 (1949), and was extended by Mapp

v. Ohio, 367 U.S. 643, 660, 81 S. Ct. 1684, 1694, 6 L. Ed. 2d 1081, 1093

(1961).      Nothing in the Supreme Court’s incorporation doctrine as it

related to the Fourth Amendment altered the independent nature of state

constitutional provisions related to search and seizure.                     Instead,

incorporation of the provisions of the Bill of Rights of the United States

Constitution against the states through the Due Process Clause of the

Fourteenth Amendment established a federal floor related to civil

liberties.

       While incorporation was a major constitutional advancement,

Justice John Marshall Harlan II was concerned that the nationalization

of the Bill of Rights’ protections would lead to a substantive dilution of

those protections. 8       See Patrick E. Higginbotham, The Continuing

       8Of course, it is impossible to determine the degree to which the changes in the
United States Supreme Court’s Fourth Amendment jurisprudence were due to the
“federalism discount” that Harlan predicted or to changes in personnel on the United
States Supreme Court. Explicit statements in Supreme Court opinions during the post-
incorporation era show sensitivity to federalism concerns. Meachum v. Fano, 427 U.S.
                                           51

Dialogue of Federalism, 45 U. Kan. L. Rev. 985, 988–91 (1997). In the

search and seizure case of Ker v. California, 374 U.S. 23, 46, 83 S. Ct.

1623, 1646, 10 L. Ed. 2d 726, 745 (1963) (Harlan, J., concurring),

Justice Harlan wondered whether the United States Supreme Court

“[was] prepared to relax Fourth Amendment standards in order to avoid

unduly fettering the States.”         A few years later, Justice Harlan saw “a

major danger of the ‘incorporation’ approach—that provisions of the Bill

of Rights may be watered down in the needless pursuit of uniformity.”

Duncan v. Louisiana, 391 U.S. 145, 182 n.21, 88 S. Ct. 1444, 1466 n.21,

20 L. Ed. 2d 491, 514 n.21 (1968) (Harlan, J., dissenting). In his dissent
___________________
215, 229, 96 S. Ct. 2532, 2540, 49 L. Ed. 2d 451, 462 (1976) (rejecting an approach to
impose through the Due Process Clause “a nationwide rule mandating transfer
hearings”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44, 93 S. Ct. 1278,
1302, 36 L. Ed. 2d 16, 49 (1973) (noting that “it would be difficult to imagine” a case
with greater impact on the federal system if the Court would abrogate systems of
financing public education); Johnson v. Louisiana, 406 U.S. 356, 375, 92 S. Ct. 1620,
1640, 32 L. Ed. 2d 152, 167 (1972) (Powell, J., concurring) (arguing that incorporating
“ ‘jot-for-jot and case-for-case’ every element of the Sixth Amendment” against the
states would derogate “principles of federalism basic to our system”). The tendency of
the United States Supreme Court to underenforce constitutional norms due to the
national scope of the Court’s opinions is recognized in the literature. See, e.g.,
Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv. L.
Rev. 1324, 1351–60 (1982) (citing institutional differences, the need for national
solutions, and sensitivities to federalism as tending to dilute federal constitutional
rulings and compelling a cautious and conservative approach to rules while noting state
judges are more politically responsive, states have a greater capacity for innovation, and
state judiciaries are common law courts that are more used to policy analysis);
Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional
Norms, 91 Harv. L. Rev. 1212, 1218–20 (1978); George C. Thomas III, When
Constitutional Worlds Collide: Resurrecting the Framers’ Bill of Rights and Criminal
Procedure, 100 Mich. L. Rev. 145, 147–48 (2001) (noting the Court has never had the
appetite to apply the provisions of the Federal Bill of Rights to the states as rigorously
as it has applied them to the federal government). The tendency to dilute constitutional
rules as a result of federalism concerns has been cited in a number of state court cases.
See, e.g., State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring)
(observing Supreme Court has been “hesitant to impose on a national level far-reaching
constitutional rules binding on each and every state”); Alderwood Assocs. v. Washington
Envtl. Council, 635 P.2d 108, 115 (Wash. 1981) (noting that rules in United States
Supreme Court decisions “invariably represent[] the lowest common denominator”).
                                   52

in Williams v. Florida, 399 U.S. 78, 136, 90 S. Ct. 1893, 1925, 26 L. Ed.

2d 446, 474 (1970) (Harlan, J., dissenting), Justice Harlan noted that the

decision to establish a six person jury “simply reflects the lowest

common denominator in the scope and function of the right to trial by

jury in this country.”   Finally, in a draft concurrence to Johnson v.

Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), and

Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 184 (1972),

that was never filed because of his intervening death, Justice Harlan

wrote that incorporation threatened “ ‘to chill the Sixth Amendment out

of existence’ and ‘might well spell the demise—under the inescapable

pressures of federalism—of many other provisions of the Bill of Rights.’ ”

Tinsely E. Yarbrough, John Marshall Harlan: Great Dissenter of the

Warren Court 291 (1992) (internal quotation marks omitted).

      In the period following the incorporation revolution ending with

Mapp, there is no doubt the strength and scope of the Fourth

Amendment’s protection has been dramatically reduced by the United

States Supreme Court. Pre-Mapp, there were a couple exceptions to the

warrant requirement; post-Mapp there are nearly two dozen such

exceptions.   California v. Acevedo, 500 U.S. 565, 582–83, 111 S. Ct.

1982, 1992–93, 114 L. Ed. 2d 619, 636 (1991) (Scalia, J., concurring).

The role of consent has been changed from its narrow characterization in

Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897),

and Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461

(1938), to its protean formulation in Schneckloth v. Bustamonte, 412 U.S.

218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).        The strength of the

exclusionary rule in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341,

58 L. Ed. 652 (1914), has been substantially eroded by the “good faith
                                    53

exception” to the exclusionary rule. See United States v. Leon, 468 U.S.

897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

      As a result, in implicit recognition of the difficulties arising from

incorporation of the Bill of Rights into a national system of rules, the

post-incorporation   United   States     Supreme   Court   has   repeatedly

emphasized the ability of states to expand the scope of constitutional

protections under their state constitutions.       See, e.g., California v.

Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 1630, 100 L. Ed. 2d 30, 39

(1988) (“Individual States may surely construe their own constitutions as

imposing more stringent constraints on police conduct than does the

Federal Constitution.”); Michigan v. Mosley, 423 U.S. 96, 120, 96 S. Ct.

321, 334, 46 L. Ed. 2d 313, 331 (1975) (Brennan, J., dissenting) (calling

on states “to impose higher standards governing police practices under

state law than [are] required by the Federal Constitution”); Oregon v.

Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219, 43 L. Ed. 2d 570, 575

(1975) (repeating that “a State is free as a matter of its own law to impose

greater restrictions . . . than those this Court holds to be necessary upon

federal constitutional standards” (emphasis added)); Cooper v. California,

386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730, 734 (1967) (noting

that Supreme Court holding “does not affect the State’s power to impose

higher standards on searches and seizures than required by the Federal

Constitution if it chooses to do so”).          See generally Shirley S.

Abrahamson, Criminal Law and State Constitutions: The Emergence of

State Constitutional Law, 63 Tex. L. Rev. 1141, 1142 n.3 (1985)

[hereinafter Abrahamson] (discussing cases).       In 2008, Justice Scalia

observed in Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 1607,

170 L. Ed. 2d 559, 571 (2008), that “States are free to regulate

[warrantless] arrests however they desire.”
                                     54

      Cumulatively, the realities in the post-incorporation era were as

follows: the United States Supreme Court incorporated most of the Bill of

Rights provisions of the United States Constitution against the states

through the Due Process Clause of the Fourteenth Amendment, but as a

result, federalism concerns exerted a new narrowing and restraining

influence on the interpretation of federal civil liberties provisions. In the

post-incorporation era, the United States Supreme Court repeatedly

emphasized the ability of states to adopt more stringent protections

under state constitutions.

      II. Status of Independent State Constitutional Law Today
After Incorporation of the Bill of Rights.

      A. Rebirth of Independent State Constitutional Law.              After

incorporation, many state courts tended to follow or adopt the approach

of the United States Supreme Court in interpretation of parallel

provisions under state constitutions.      This tendency to simply follow

federal caselaw was in part due to the fact that federal law was more

expansive than prior state constitutional law. Lawyers also often relied

solely on federal constitutional law or regarded state and federal law as

interchangeable in their advocacy in state courts. See State Constitutions

in the Federal System at 49.

      Beginning in the 1960s, however, a growing number of states

began to rediscover the independent nature of their state constitutional

provisions.   Sometimes called the “new judicial federalism,” the high

courts of California, New York, New Jersey, Oregon, Washington, and

Wisconsin were particularly active, followed by those of New Mexico,

Indiana,   Georgia,   Ohio,    Michigan,   Connecticut,   Minnesota,   Utah,
                                           55

Pennsylvania, and many other states. 9                The cases characterize the

examination of independent state constitutional grounds by state courts

not as some kind of aberration, but as a solemn duty. See, e.g., Burling

v. Chandler, 804 A.2d 471, 476 (N.H. 2002) (per curiam) (recognizing that

oath taken to honor state constitution makes it the justices’ duty to

apply the state constitution when it does not conflict with the Federal

Constitution); Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa. 1999)

(noting even when Federal Constitutional claim is discharged, supreme

court must undertake independent analysis of Pennsylvania Constitution

“ ‘each time a provision of that fundamental document is implicated’ ”

(citation omitted)); State v. Johnson, 729 N.W.2d 182, 189 n.7 (Wis. 2007)

(observing court’s duty to examine state constitution independently even

if conclusion does not differ from that under Federal Constitution).

       As noted by Professor G. Alan Tarr more than a decade ago, the

emphasis on the independent nature of state constitutions of the “new

judicial federalism” is simply “no longer new.”             G. Alan Tarr, The New

Judicial Federalism in Perspective, 72 Notre Dame L. Rev. 1097, 1098–99

        9There is voluminous literature on the independent power of state judiciaries to

construe provisions of their state constitutions. The most encyclopedic volume focusing
on individual rights is Jennifer Friesen, State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses (4th ed. 2006). Three frequently cited surveys of state
constitutional law are James A. Gardner, Interpreting State Constitutions: A
Jurisprudence of Function in a Federal System (2005), G. Alan Tarr, Understanding State
Constitutions (1998), and Robert F. Williams, The Law of American State Constitutions
(2009). See also New Frontiers of State Constitutional Law: Dual Enforcement of Norms
(James A. Gardner & Jim Rossi eds., 2011); Robert A. Schapiro, Polyphonic Federalism:
Toward the Protection of Fundamental Rights (2009); Jeffrey M. Shaman, Equality and
Liberty in the Golden Age of State Constitutional Law (2008); Michael E. Solimine &
James L. Walker, Respecting State Courts: The Inevitability of Judicial Federalism (1999);
G. Alan Tarr & Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation
(1988); Toward a Usable Past: Liberty Under State Constitutions (Paul Finkelman &
Stephen E. Gottlieb eds., 1991). Many of the concepts in this opinion have been
developed and elaborated upon by Robert F. Williams in The Law of American State
Constitutions and Jennifer Friesen in State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses.
                                           56

(1997).        Contemporary courts and scholars have recognized and

reaffirmed      the   historically     well-established       concepts      that    state

constitutional provisions are independent of parallel provisions of the

Federal Constitution and that state supreme courts may depart from

existing federal precedent in reaching their conclusions regarding state

constitutional law.       There are textbooks, 10 monographs, 11 hundreds of

law review articles,12 and thousands of reported cases discussing the

independent nature of state constitutional provisions.




       10See,  e.g., Jennifer Friesen, State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses (4th ed. 2006) [hereinafter Friesen]; Randy J. Holland,
Stephen R. McAllister, Jeffrey M. Shaman & Jeffrey S. Sutton, State Constitutional Law:
The Modern Experience (2010); Robert F. Williams, State Constitutional Law: Cases and
Materials (4th ed. 2006).
       11See   Tim J. Watts, State Constitutional Law Development: A Bibliography 3–5
(1991) (listing monographs published prior to 1991 on state constitutional law).
       12See  id. at 5–36 (listing over 400 articles published prior to 1991 on state
constitutional grounds). A tiny sampling of the literature on state constitutional law
dealing with the developments in specific states includes Charles W. Johnson & Scott P.
Beetham, The Origin of Article I, Section 7 of the Washington State Constitution, 31
Seattle U. L. Rev. 431 (2008); Patty Jones, Search and Seizure—Methodological
Contention Results in Conflicting Authority When Deciding Similar State and Federal
Constitutional Claims. Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001), 33 Rutgers L.J.
1462 (2002); Jack L. Landau, The Search for the Meaning of Oregon’s Search and
Seizure Clause, 87 Or. L. Rev. 819 (2008); Jack L. Landau, Should State Courts Depart
from the Fourth Amendment? Search and Seizure, State Constitutions, and the Oregon
Experience, 77 Miss. L.J. 369 (2007); Douglas Holden Wigdor, What’s in a Word?
Comparative Analysis of Article I, § 12 of the New York State Constitution and the Fourth
Amendment to the United States Constitution as Interpreted by the New York Court of
Appeals and the United States Supreme Court, 14 Touro L. Rev. 757 (2008); Colin M.
Black, Note, “Shooting an Elephant”—Massachusetts Maintains Reasonable Suspicion:
Protecting Individual Privacy During Traffic Stops and Battling Racial Profiling, 6 Suffolk
J. Trial & App. Advoc. 215 (2001); Dennis J. Buffone, Note, Traffic Stops, Reasonable
Suspicion, and the Commonwealth of Pennsylvania: A State Constitutional Analysis, 69
U. Pitt. L. Rev. 331 (2007); Richard C. Miller, Comment, Begging to Defer: Lessons in
Judicial Federalism from Colorado Search and Seizure Jurisprudence, 76 U. Colo. L. Rev.
865 (2005); and Kenneth F. Kirwin, Minnesota’s Constitution: An Essential Tool in
Search and Seizure Cases, 65 Bench & Bar Minn., Nov. 1, 2008, at 29.
                                    57

      The development of independent state constitutional law has not

always been a smooth process. A number of state supreme courts have

expressed frustration with lawyers who have failed to advance state

constitutional arguments.     In order to encourage proper advocacy, a

number of state supreme courts have published what are referred to in

the literature as “teaching opinions,” which review the rationale for

independent state constitutional grounds. See, e.g., Friedman v. Comm’r

of Pub. Safety, 473 N.W.2d 828 (Minn. 1991); Davenport v. Garcia, 834

S.W.2d 4 (Tex. 1992); State v. Jewett, 500 A.2d 233 (Vt. 1985); Dworkin

v. L.F.P., Inc., 839 P.2d 903 (Wyo. 1992).       See generally Robert F.

Williams, The Law of American State Constitutions 144–46 (2009)

[hereinafter Williams].    Dworkin is a particularly striking example

because the Wyoming Supreme Court attached a bibliography of articles

on independent state constitutional development as an appendix to the

opinion. 839 P.2d at 920–22.

      In light of the availability of state constitutional claims and the

complete lack of any strategic reason not to pursue them, a number of

state court judicial opinions indicate the failure to bring a state

constitutional claim may amount to malpractice. See State v. Lowry, 667

P.2d 996, 1013 (Or. 1983) (Jones, J., concurring) (“Any defense lawyer

who fails to raise an Oregon Constitution violation and relies solely on

parallel provisions under the federal constitution . . . should be guilty of

legal malpractice.”); Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa.

Super. Ct. 1998) (finding counsel ineffective for failure to raise state

search and seizure claim); Jewett, 500 A.2d at 235 (noting that legal

argument too often “consists of a litany of federal buzz words

memorialized like baseball cards”). As bluntly stated by Judge Jeffrey S.

Sutton of the United States Court of Appeals for the Sixth Circuit, “no
                                     58

lawyer worth his or her salt can be a good advocate in today’s world

without appreciating the possibility—and value—of raising state and

federal [constitutional] claims in representing a client.” Jeffrey S. Sutton,

Why Teach—and Why Study—State Constitutional Law, 34 Okla. City U.

L. Rev. 165, 178 (2009) [hereinafter Sutton]; see also State Constitutions

in the Federal System at 70 (“Local practitioners have an obligation to

raise the issue that the state court can grant broader protection under

its own constitution[.]”). See generally 1 Friesen § 1.08, at 1–57 to 1–66

(suggesting a manner by which to raise and argue independent state

constitutional grounds).

      Yet, as observed in an introduction to a conference on state

constitutional law developments almost thirty years ago, “[o]ld habits die

hard.”   A. E. Dick Howard, Introduction: A Frequent Recurrence to

Fundamental Principles, in Developments in State Constitutional Law xi,

xxii (Bradley D. McGraw ed., 1985). According to the 1989 report of the

Advisory Commission on Intergovernmental Relations, “Even among

lawyers, state constitutional law is relatively unknown and little

practiced.” State Constitutions in the Federal System at 2.

      In order to help remedy the situation, the Conference of Chief

Justices in 2010 passed a resolution urging all law schools to offer a

course in state constitutional law.       Robert F. Williams, Why State

Constitutions Matter, 45 New Eng. L. Rev. 901, 909, 912 (2011)

(reproducing text of resolution as an appendix). The resolution stated,

among other things, that state constitutional “declarations of rights . . .

are often greater than federally guaranteed rights and liberties” and that

“being a competent and effective lawyer requires an understanding of

both the Federal Constitution and state constitutional law.” Id. at app.
                                           59

       An important feature of independent state constitutional law is

that it is not “liberal” or “conservative.” 13 Rather, state constitutional law

involves recognition of the independent nature of state constitutions and

the obligation of state courts in our federal system. See Barry Latzer,

Whose Federalism? Or, Why “Conservative” States Should Develop Their

State Constitutional Law, 61 Alb. L. Rev. 1399, 1403–10 (1998).                      See

generally Stanely Mosk, State Constitutionalism: Both Liberal and

Conservative, 63 Texas L. Rev. 1081 (1985). While labels are illusive—is

our evolving search and seizure jurisprudence, liberal, conservative, or

libertarian?—independent          state    constitutional      analysis     can     yield

outcomes that might appeal to persons who regard themselves as

politically “conservative.” Certainly the result in Tonn favored the state

over criminal defendants.           And, in the wake of the United States

Supreme Court decision in Kelo v. City of New London, 545 U.S. 469, 125

S. Ct. 2655, 162 L. Ed. 2d 439 (2005), the Ohio Supreme Court, on

independent state grounds, provided greater protection to property rights

under the Ohio Constitution than were provided by the United States

Supreme Court. Norwood v. Horney, 853 N.E. 2d 1115, 1123, 1128–42


       13The   New Judicial Federalism is often associated with a seminal law review
article written by Justice William Brennan in which Justice Brennan urged state courts
to provide more constitutional protections for individuals than was being provided by
the United States Supreme Court. See William J. Brennan, Jr., State Constitutions and
the Protections of Individual Rights, 90 Harv. L. Rev. 489 (1977). As pointed out by
Indiana Chief Justice Randall Shepard, however, scholars and judges were advocating
independent state constitutional development well before Justice Brennan’s argument
appeared. Randall T. Shepard, The Maturing Nature of State Constitution Jurisprudence,
30 Val. U. L. Rev. 421, 423–24 & n.9 (1996) (citing Vern Countryman, Why a State Bill
of Rights? 45 Wash. L. Rev. 454 (1970), Jerome B. Falk, Jr., Foreword: The State
Constitution: A More than “Adequate” Nonfederal Ground, 61 Cal. L. Rev. 273 (1973),
Robert Force, State “Bills of Rights”: A Case of Neglect and the Need for a Renaissance, 3
Val. U. L. Rev. 125 (1969), Project Report: Toward an Activist Role for State Bills of
Rights, 8 Harv. C.R.-C.L. L. Rev. 271 (1973), and Lawrence M. Newman, Note,
Rediscovering the California Declaration of Rights, 28 Hastings L.J. 481 (1974)).
                                          60

(Ohio 2006).    Additionally, the New Hampshire Supreme Court found

under its state equal protection clause that the right to enjoy property is

subject to intermediate scrutiny. Cmty. Res. for Justice, Inc. v. City of

Manchester, 917 A.2d 707, 717–21 (N.H. 2007); see also Timothy

Sandefur, Don’t Mess with Property Rights in Texas: How the State

Constitution Protects Property Owners in the Wake of Kelo, 41 Real Prop.

Prob. & Tr. J. 227, 228–30, 252 (2007) (arguing the Texas Constitution’s

public use clause provides more protection to property owners than the

United States Constitution).

      The rebirth of state constitutional law has advanced constitutional

dialogue both horizontally and vertically within the federal system.

Consistent with Justice Louis Brandeis’s famous declaration that a state

in the federalist system amounts to a “laboratory” of democracy, see New

State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 386–87, 76

L. Ed. 747, 771 (1932) (Brandeis, J., dissenting), the vibrancy of state

constitutional law has been a salutary development in promoting

horizontal federalism, or dialogue among the states.                  See Robert F.

Williams, State Constitutional Methodology in Search and Seizure Cases,

77   Miss.   L.J.    225,    253   (2007)      [hereinafter   State    Constitutional

Methodology];       see   also   Ronald     K.L.   Collins,   Reliance     on   State

Constitutions: Some Random Thoughts, 54 Miss. L.J. 371, 409 (1984)

[hereinafter Collins]. Just as a state court exploring products liability in

the 1950s would certainly consult Justice Roger Traynor’s concurring

opinion in Escola v. Coca Cola Bottling Co., 150 P.2d 436, 461 (Cal. 1944)

(Traynor, J., concurring), state supreme courts consult the cases of other

states in developing their own state constitutional law. Collins, 54 Miss.

L.J. at 408. For example, in Tonn, we canvassed academic authorities,

dissenting federal authorities, and the law of other state supreme courts.
                                          61

See 195 Iowa at 103–09, 191 N.W. at 534–36. Similarly, in Cline, Ochoa,

and Pals, we canvassed cases from other states to determine the best

result on search and seizure questions under the Iowa Constitution.

Pals, 805 N.W.2d at 775–77, 779; Ochoa, 792 N.W.2d at 283–84; Cline,

617 N.W.2d at 289–90.             With computer-based legal research, state

supreme court justices and their clerks have ready access to recent state

constitutional analyses in other states that can serve as a springboard

for analysis. The cross-fertilization opportunities in the development of

state constitutional law has never been greater. See State Constitutional

Methodology, 77 Miss. L.J. at 253 (stating that “state courts are remiss”

if they do not use modern research methods to look at decisions of other

state courts).

       The growth of independent state constitutional law also promotes

vertical federalism, or a constitutional dialogue between state and federal

courts    regarding     the    proper    interpretation      of   an    open-textured

constitutional provision.         See James A. Gardner, Interpreting State

Constitutions: A Jurisprudence of Function in a Federal System 100 (2005)

[hereinafter Gardner]. 14      In this regard, commentators have cited our

century old case of State v. Sheridan, 121 Iowa 164, 96 N.W. 730 (1903),
as a precursor to the adoption of the exclusionary rule by the United

States Supreme Court in Weeks.               See, e.g., Joseph Blocker, Reverse

       14According to Professor Gardner, state court rejection of United States Supreme

Court decisions under state constitutions can ultimately influence opinion on the
correctness of the Supreme Court decision, contribute to a state-level nationwide
consensus, sometimes considered by the United States Supreme Court, provide a check
on national power by prohibiting state and local governments from exercising power
granted to them under the United States Constitution, and curb harm to civil liberties
brought about by narrow United States Supreme Court rulings. This section of
Gardner’s book is a substantial reproduction of an article he published two years earlier
in the Georgetown Law Journal. See James A. Gardner, State Constitutional Rights as
Resistance to National Power, 91 Geo. L.J. 1003, 1032–54 (2003).
                                    62

Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 372

n.255 (2011); Collins, 54 Miss. L.J. at 415; see also G. Alan Tarr,

Understanding State Constitutions 163 n.119 (1998) [hereinafter Tarr].

When the United States Supreme Court incorporated the exclusionary

rule against the states in Mapp, it noted a majority of states had already

adopted it. 367 U.S. at 651, 81 S. Ct. at 1689, 6 L. Ed. 2d at 1087–88.

      State supreme court decisions have also impacted the permissible

scope of warrantless searches incident to lawful arrests in the

automobile context. In New York v. Belton, 453 U.S. 454, 460, 101 S. Ct.

2860, 2864, 69 L. Ed. 2d 768, 775 (1981), the United States Supreme

Court held law enforcement officers could conduct thorough vehicle

searches, incident to arrest, including inside closed containers. In the

aftermath, a number of state supreme courts rejected Belton’s reasoning

when interpreting parallel state constitutional provisions. See, e.g., State

v. Hernandez, 410 So. 2d 1381, 1384–85 & n.2 (La. 1982); State v.

Harnisch, 954 P.2d 1180, 1182–83 (Nev. 1998); State v. Pierce, 642 A.2d

947, 959–60 (N.J. 1994); State v. Rowell, 188 P.3d 95, 101 (N.M. 2008);

People v. Blasich, 541 N.E.2d 40, 44–45 (N.Y. 1989); Commonwealth v.

White, 669 A.2d 896, 902 (Pa. 1992); State v. Bauder, 924 A.2d 38, 46–

47 (Vt. 2007); State v. Stroud, 720 P.2d 436, 440–41 (Wash. 1986)

(plurality opinion), overruled on other grounds by State v. Valdez, 224

P.3d 751, 775–78 (Wash. 2009); Vasquez v. State, 990 P.2d 476, 488–89

(Wyo. 1999); see also Commonwealth v. Toole, 448 N.E.2d 1264, 1266–68

(Mass. 1983) (rejecting Belton based on state statute).       These courts

demonstrated respect for the United States Supreme Court, but

nonetheless strongly disagreed with its reasoning. Ultimately, the United

States Supreme Court abandoned much of Belton, citing among other

things the developments in the states.     See Arizona v. Gant, 556 U.S.
                                           63

322, 338, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485, 493 (2009). See

generally State v. Vance, 790 N.W.2d 775, 786–90 (Iowa 2010).

       State high court rulings interpreting state constitutions have paved

the way for the United States Supreme Court in a number of other areas.

See    generally     Joseph      Blocher,       Reverse     Incorporation      of    State

Constitutional Law, 84 S. Cal. L. Rev. 323, 371–85 (2011) (discussing the

influence of state constitutional law in criminal procedure, due process,

and Eight Amendment cases).               For instance, the California Supreme

Court ruling regarding miscegenation in Perez v. Lippold, 198 P.2d 17

(Cal. 1948), was a precursor to the United States Supreme Court

decision in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d

1010 (1967). William B. Rubenstein, The Myth of Superiority, 16 Const.

Comment. 599, 622 n.91 (1999). Similarly, the decision of the Georgia

Supreme      Court     under     the   Georgia     Constitution      to   prohibit     the

criminalization of same-sex sodomy in Powell v. State, 510 S.E.2d 18

(Ga. 1998), contributed to the overruling of Bowers v. Hardwick, 478 U.S.

186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Lawrence v. Texas, 539

U.S. 558, 576, 123 S. Ct. 2472, 2483, 156 L. Ed. 2d 508, 524 (2003)

(specifically citing Powell as an example of a state court’s decision to

depart from Bowers under its state constitution). 15                      See generally

Gardner at 100–03 (providing overview of the Georgia decision in Powell

and subsequent reaction).           Further, the California Supreme Court in

People v. Wheeler, 583 P.2d 748, 761–62 (Cal. 1978), held the use of a

preemptory challenge to remove a juror based on the juror’s membership

in a particular racial, religious, or ethnic group violates the California

       15Prior to Bowers v. Hardwick, we held that a criminal statute prohibiting
opposite-sex sodomy in private violated the federal right of privacy. See State v. Pilcher,
242 N.W.2d 348, 359 (Iowa 1976).
                                           64

Constitution. This decision predated the same conclusion by the United

States Supreme Court under the United States Constitution in Batson v.

Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82–

83 (1986).

      The dialogic nature of state constitutional law—both vertical and

horizontal—is highly desirable and should cause celebration, not

handwringing. See Jason Mazzone, The Bill of Rights in the Early State

Courts, 92 Minn. L. Rev. 1, 6 (2007) [hereinafter Mazzone] (stating that

“[a]llowing     state   courts    to     adopt   more    expansive    readings      of

constitutional rights generates information about how rights might be

structured”     and     that   “[s]uch    experimentation       produces   systemic

benefits”); Lawrence Gene Sager, Fair Measure: The Legal Status of

Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1251–52

(1978) (noting many reforms of the Warren court were already well-

established matters of state law in a number of states). The interactions

fostered   by    the    rebirth   of   independent      state   constitutional    law

demonstrate that the system of dual sovereignty is now functioning more

closely to the federalist ideal.

      B. Independent           Iowa      State    Constitutional      Law        After

Incorporation. After incorporation, the first requirement, of course, was

to ensure that Iowa law provided the floor of protection offered by the

United States Constitution in criminal procedure, including the Fourth

Amendment. Immediately following incorporation, we primarily adjusted

to the incorporation revolution under the Warren Court and our caselaw

under the Iowa Constitution tended to run parallel to the evolving federal

caselaw.      See Ochoa, 792 N.W.2d at 265–66 (discussing older Iowa

cases).
                                    65

      As the United States Supreme Court began to scale back on

substantive holdings under the Bill of Rights of the United States

Constitution, we on a number of occasions took a different path under

our state constitution.     We have applied independent Iowa state

constitutional law in the areas of equal protection, see, e.g., Varnum v.

Brien, 763 N.W.2d 862, 896 (Iowa 2009); Racing Ass’n of Cent. Iowa v.

Fitzgerald (RACI), 675 N.W.2d 1, 7 (Iowa 2004); Bierkamp v. Rogers, 293

N.W.2d 577, 579 (Iowa 1980), cruel and unusual punishment, see State

v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009), due process, see State v.

Cox, 781 N.W.2d 757, 761 (2010); Callender v. Skiles, 591 N.W.2d 182,

187, 189 (Iowa 1999), and search and seizure, see Pals, 805 N.W.2d at

782; Ochoa, 792 N.W.2d at 267; State v. Tague, 676 N.W.2d 197, 204,

206 (Iowa 2004); Cline, 617 N.W.2d at 284–85; State v. Cullison, 173

N.W.2d 533, 538–39 (Iowa 1970).

      Of course, we are free to follow persuasive United States Supreme

Court precedent in the interpretation of state constitutional provisions.

For example, in State v. Breuer, 808 N.W.2d 195, 201–03 (Iowa 2012), we

followed persuasive federal precedent and declined to require that a

search warrant be physically present in a hospital room before police

may obtain a blood draw from a person suspected of driving while

intoxicated. Even where we have declined to take a different path under

the Iowa Constitution, however, we have respectively emphasized that we

jealously guard our right to do so. See, e.g., State v. Becker, 818 N.W.2d

135, 149 (Iowa 2012); State v. Kurth, 813 N.W.2d 270, 283 (Iowa 2012)

(Appel, J., concurring specially); Hensler v. City of Davenport, 790 N.W.2d

569, 579 n.1 (Iowa 2010); Zaber v. City of Dubuque, 789 N.W.2d 634, 654

(Iowa 2010); Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 480 (Iowa 2010);

State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008); In re Det. of
                                     66

Hennings, 744 N.W.2d 333, 337 (Iowa 2008); State v. Hoskins, 711

N.W.2d 720, 725 (Iowa 2006); State v. Beckett, 532 N.W.2d 751, 755

(1995); State v. Groff, 323 N.W.2d 204, 207–08 (Iowa 1982); State v.

Olsen, 293 N.W.2d 216, 219–20 (Iowa 1980).

      One of the questions we have faced in developing our independent

state constitutional law was whether an opinion of the United States

Supreme Court under the provision of the United States Constitution

was entitled to a “presumption of correctness” in the interpretation of a

parallel or similar provision of the Iowa Constitution.        In Ochoa, we

declared, among other things, that there is no presumption that the

federal law is the correct approach. 792 N.W.2d at 267. We came to the

same conclusion as Oregon Supreme Court Justice Hans Linde, who

three decades ago described a state court’s blind adoption of federal

constitutional doctrine when interpreting its state constitution as a “non

sequitur that the United States Supreme Court’s decisions under such a

text not only deserve respect but presumptively fix its correct meaning

also in state constitutions.” State v. Kennedy, 666 P.2d 1316, 1322 (Or.

1983). Our view also aligned with leading commentators. As noted by

Professor Robert F. Williams, the premise that United States Supreme

Court interpretations of the Bill for Rights of the United States

Constitution   are   presumptively   correct   for   interpreting   analogous

provisions of state constitutions is “simply wrong.” Williams at 135; see

also Dorothy T. Beasley, The Georgia Bill Of Rights: Dead or Alive, 34

Emory L.J. 343, 414 (1985) (“The virtual piggybacking of the state clause

onto the federal clause renders the former a parasite instead of an

independent source of authority.”).    According to Professor Williams, a

state court interpreting its state constitution should give less weight to

United States Supreme Court decisions than the decisions of other states
                                       67

interpreting    similar   provisions     because     “federalism    and     other

institutional concerns, either explicitly or implicitly, pervade Supreme

Court decisions declining to recognize rights against states.” Williams at

137.    Williams accordingly discounts these decisions because of the

possibility of underenforcement of the Bill of Rights of the United States

Constitution. Id. Otherwise, as indicated by Justice David Souter, then

of the New Hampshire Supreme Court, state courts would be reduced to

“a mere row of shadows.” State v. Bradberry, 522 A.2d 1380, 1389 (N.H.

1986) (Souter, J., concurring specially).

       To date, we have yet to adopt the primacy approach to state

constitutional law. Under the primacy approach, a state supreme court

addresses state constitutional issues before moving to issues under the

Federal Constitution. See, e.g., State v. Cadman, 476 A.2d 1148, 1150

(Me. 1984); State v. Weeks, 635 A.2d 439, 445–46 (N.H. 1993), abrogated

on other grounds by State v. Knickerbocker, 880 A.2d 419, 423 (N.H.

2005); Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981). 16 The primacy

approach has the desirable feature of avoiding unnecessary federal

constitutional adjudications and in obtaining finality. Jerome B. Falk,

Jr., Foreword: The State Constitution: A More than “Adequate” Nonfederal
Ground, 61 Cal. L. Rev. 273, 286 (1973); see also State Constitutions in

the Federal System at 70 (characterizing primacy approach as “useful”

because it avoids unnecessary federal adjudications, allows state courts

to decide questions of state law, takes pressure off the United States

Supreme Court, promotes consideration of the character of a state, and

promotes state experimentation). Though only adopted by a few courts,

       16Theleading advocate of this approach was Justice Hans Linde of the Oregon
Supreme Court. See Hans A. Linde, Without “Due Process”: Unconstitutional Law in
Oregon, 49 Or. L. Rev. 125, 133–35 (1970) [hereinafter Linde].
                                               68

and then perhaps honored in the breach more than followed, 17 the

primacy approach has had the support of Justice Linde 18 as well as

United States Supreme Court Justice John Paul Stevens. 19 As noted by

Justice Stevens:

       The emerging preference for state constitutional bases of
       decision in lieu of federal ones is, in my view, the analytic
       approach best suited to facilitating the independent role of
       state constitutions and state courts in our federal system.

Delaware v. Van Arsdall, 475 U.S. 673, 705, 106 S. Ct. 1431, 1448–49,

89 L. Ed. 2d 674, 699 (1986) (Stevens, J., dissenting).
       Instead, we have adopted a more measured approach under which

we are free to consider either state or federal constitutional provisions

first. For instance, in Cox and Tague, we elected to address the state

constitutional issues involving due process and search and seizure first,

leaving the federal constitutional issues undecided. Cox, 781 N.W.2d at

772; Tague, 676 N.W.2d at 206. On the other hand, in Mitchell County v.

Zimmerman, 810 N.W.2d 1, 18 (Iowa 2012), and Kurth, 813 N.W.2d at

281, we addressed federal constitutional issues in a cases involving

religious liberty and search and seizure, respectively, and reserved state

constitutional questions.          By exercising our discretion regarding which




      17See John W. Shaw, Comment, Principled Interpretations of State Constitutional

Law—Why Don’t the “Primacy” States Practice What They Preach?, 54 U. Pitt. L. Rev.
1019, 1034–49 (1993) (noting, following analysis of Oregon cases, that the Oregon
Supreme Court often departs from the primacy approach and offering explanations).
       18See   Linde, 49 Or. L. Rev. at 135.
       19See Brigham City v. Stuart, 547 U.S. 398, 407–08, 126 S. Ct. 1943, 1950, 164
L. Ed. 2d 650, 660 (2006) (Stevens, J., concurring); Delaware v. Van Arsdall, 475 U.S.
673, 705, 106 S. Ct. 1431, 1448–49, 89 L. Ed. 2d 674, 699 (1986) (Stevens, J.,
dissenting); Massachusetts v. Upton, 466 U.S. 727, 736–37, 104 S. Ct. 2085, 2089–90
80 L. Ed. 2d 721, 729–30 (1984) (Stevens, J., concurring).
                                        69

claim to address first, we can choose the clearest path to the resolution

of a case.

       Our approach to independent state constitutional law in the search

and seizure area has been cautious.          We have required that state

constitutional grounds must be properly before the court, sometimes

strictly enforcing our preservation rules. For example, in State v. Lowe,

812 N.W.2d 554, 577 (Iowa 2012), the majority of this court declined to

consider whether we should adopt a Johnson v. Zerbst-type knowing and

voluntary requirement for a consent search under article I, section 8 of

the Iowa Constitution because the parties did not specifically raise the

argument. When a party argues from federal caselaw but does not assert

a different substantive standard under the Iowa Constitution, we

ordinarily decline to develop a new standard, but reserve the power to

apply the federal standard in a manner different from federal caselaw.

See, e.g., Bruegger, 773 N.W.2d at 883; RACI, 675 N.W.2d at 6–7. The

distinction between a standard and its application is especially important

where the legal principles have high degrees of generality, such as

“totality    of   circumstances”    tests,   tests   based    upon     “gross

proportionality,” and tests based upon “reasonableness.” See Williams at

169–71;      Jeffrey   Sutton,   What    Does—and    Does    Not—Ail   State

Constitutional Law, 59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter

Sutton].

       In part because of our relatively stringent preservation rules, the

Iowa caselaw in the area of search and seizure involving independent

state grounds has been modest. In Cline, we joined a minority of state

jurisdictions rejecting the “good faith” exception to the exclusionary rule

announced by the United States Supreme Court in Leon.            Cline, 617

N.W.2d at 293. In Tague, we held that an isolated incident of crossing
                                     70

the centerline did not provide probable cause or reasonable suspicion for

a traffic stop under article I, section 8 of the Iowa Constitution.       676

N.W.2d at 206. We have also rejected the sweeping notion of Samson v.

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

general searches of parolees may be conducted without any showing of

particularity.   See Ochoa, 792 N.W.2d at 291.      We have insisted on a

more realistic analysis of what amounts to “voluntary consent” in the

context of automobile searches. Pals, 805 N.W.2d 782–83.

      Each of our independent search and seizure cases has been

narrowly crafted, reflecting a cautious approach to the development of

our state constitutional law. Our independent search and seizure cases

emphasize    the   traditional   requirement   of   particularity   to   cabin

government discretion in the search and seizure context and engage in

realistic assessment of the voluntariness of consent. These two themes

merge to remind law enforcement of the wisdom in the jurisprudence of

United States Supreme Court Justice Potter Stewart: when in doubt, get

a warrant. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408,

2412, 57 L. Ed. 2d 290, 298–99 (1978) (reminding us that “it is a

cardinal principal that ‘searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions’ ” (quoting Katz v. United

States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585

(1967) (footnotes omitted))). In short, we have sought to develop an Iowa

search and seizure jurisprudence that prevents arbitrary exercise of

government power in a realistic way in today’s world.

      C. Challenges to Independent State Constitutional Law by

Constitutional Nationalists.
                                          71

       1. Introduction.      During the past forty years, “constitutional

nationalists” 20 have challenged the development of independent state

constitutional law. Writing in 1998, a leading commentator declared that

the concerns of constitutional nationalists had “largely been put to rest.”

Tarr at 169. While the paths pursued below have been well traveled by

courts and commentators, some of the objections of the constitutional

nationalists to a robust federalist system with vibrant independent state

constitutional law should be put to rest.

       2. Parallel    language.        Constitutional      nationalists    sometimes

suggest that because the Fourth Amendment text and the text of the

search and seizure provisions of state constitutions, like article I, section

8 of the Iowa Constitution, are nearly identical, state courts must follow

the interpretive decisions of the United States Supreme Court. We have

previously addressed and rejected this argument. See, e.g., Ochoa, 792

N.W.2d at 267; Tonn, 195 Iowa at 104–07, 191 N.W. at 535–36.

       The    Tonn–Ochoa      notion    that    parallel    language      in   a   state

constitution is not tied to United States Supreme Court interpretations

was recently powerfully endorsed by Judge Sutton:

       There is no reason to think, as an interpretive matter, that
       constitutional guarantees of independent sovereigns, even
       guarantees with the same or similar words, must be
       construed the same. Still less is there reason to think that a
       highly generalized guarantee, such as prohibition on
       “unreasonable” searches, would have just one meaning for a
       range of differently situated sovereigns.

Sutton, 59 U. Kan. L. Rev. at 707.             Many state courts reflect Judge

Sutton’s approach. See, e.g., State v. Gerschoffer, 763 N.E.2d 960, 965


       20“Constitutional nationalists” are those who object to citation to foreign law.
Daniel A. Farber, The Supreme Court, the Law of Nations, and Citations of Foreign Law:
The Lessons of History, 95 Cal. L. Rev. 1335, 1342 (2007).
                                     72

(Ind. 2002) (noting that Indiana Constitution “has unique vitality, even

where its words parallel federal language”); People v. Barber, 46 N.E.2d

329, 331 (N.Y. 1943) (noting that New York Court of Appeals is “bound to

exercise its independent judgment and is not bound by a decision of the

Supreme Court of the United States limiting the scope of similar

guarantees in the Constitution of the United States”); State v. Arrington,

319 S.E.2d 254, 260 (N.C. 1984) (“In construing provisions of the

Constitution of North Carolina, this Court is not bound by opinions of

the Supreme Court of the United States construing even identical

provisions in the Constitution of the United States.”); Commonwealth v.

Edmunds, 586 A.2d 887, 895–96 (Pa. 1991) (“Although the wording of the

Pennsylvania   Constitution   is   similar   in   language   to   the   Fourth

Amendment of the United States Constitution, we are not bound to

interpret the two provisions as if they were mirror images, even where the

text is similar or identical.”); O’Boyle v. State, 117 P.3d 401, 408 (Wyo.

2005) (search and seizure provision of Wyoming Constitution, which

parallels the Fourth Amendment, provides “a separate and independent

source of protection of the rights of Wyoming citizens”).

      The notion that state supreme courts should simply mirror the

interpretations of the United States Supreme Court in interpreting

parallel provisions of state constitutions is a flawed method of judging.

This technique amounts to what Professor Adrian Vermeule refers to as

“a precommitment device” that prevents a state supreme court from

considering each case based on an independent examination of facts and

law. See Adrian Vermeule, The Judicial Power in the State (and Federal)

Courts, 2000 Sup. Ct. Rev. 357, 366 (2000); see also Williams at 226.

      As a result, lockstepping state law to federal precedents is not a

humble or minimalist approach, but is an aggressive and maximalist
                                         73

approach to the law. Williams at 224–29. 21 Through the imposition of

lockstep, constitutional nationalists seek not only to provide the rule of

decision in a particular case, but in literally hundreds of cases in one

master stroke.     Lockstepping is the antithesis of the ordinary judicial

method, which grinds more slowly and finely, decides what needs to be

decided and no more, reserving future legal questions for the next case.

As noted by two scholars, “Judicial federalism offers the opportunity to

weigh alternatives over time, to keep an open mind, to reflect, and to

develop visions of the good, without rushing headlong into the

straitjacket of national policy.” Michael E. Solimine & James L. Walker,

Respecting State Courts: The Inevitability of Judicial Federalism 138

(1999) [hereinafter Solimine & Walker].

       3. Uniformity.         The     development       of     independent      state

constitutional law is sometimes challenged on the pragmatic ground that

it tends to defeat the development of uniform standards that apply under

both the Federal and State Constitutions.                    The decision against

uniformity, however, was made by the framers of the United States

Constitution and the Iowa Constitution in favor of dual sovereignty. We

have no authority to alter it. See, e.g., State v. Smith, 814 P.2d 652, 661

(Wash. 1991) (Utter, J., concurring) (noting that lockstepping would

require rewrite of state constitution).        We cannot add a proviso to the

Tenth Amendment that declares, “State courts should defer to federal

court interpretations of Bill of Rights provisions,” nor can we add a

provision to article I, section 8 of the Iowa Constitution declaring, in the


       21This  section of Williams’s book consists of a substantial reproduction of an
article he published in the William and Mary Law Review. See Robert F. Williams, State
Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or
Prospective Lockstepping, 46 Wm. & Mary L. Rev. 1499, 1520–27 (2005).
                                           74

interest of uniformity, that we will decline to exercise our independent

authority to interpret the state constitution. 22 Demands for a uniform

approach undermine the “double security” that Madison proclaimed the

states provided in the federal framework. See Duncan, 391 U.S. at 173,

88 S. Ct. at 1461, 20 L. Ed. 2d at 509–10 (Harlan, J., dissenting)

(federalism protects “the security of liberty in America . . . [through] the

dispersion of governmental power across a federal system”); see also

State v. von Bulow, 475 A.2d 995, 1019 (R.I. 1984) (finding search

without a warrant unlawful and commenting that state and federal

constitutions provide a “double barrelled source of protection” (citation

and internal quotation marks omitted)); 1 Friesen § 1.03[4][a], at 1–14 to

1–15 (noting that independent state constitutional analyses lead to “a net

gain in liberty,” that uniformity deprives states of sovereignty and local

control, and that uniformity is illusory because it is impossible for the

United States Supreme Court to review every case applying federal

constitutional law); Stanley G. Feldman & David L. Abney, The Double

Security of Federalism: Protecting Individual Liberty Under the Arizona

Constitution, 20 Ariz. St. L.J. 115, 117 (1988) (“If we choose to follow

federal precedent to bolster nationwide conformity, we destroy the

‘double security’ designed to protect our citizens.”); Mazzone, 92 Minn. L.

Rev.   at   5–6,    74 (arguing       consolidation      of   constitutional      law   is

“inconsistent with federalism” because “federalism works best when

different political unitys are able to try different approaches and solve

problems in different ways”).



       22See  Tarr at 181 (stating that in a system of dual sovereignty, state courts
cannot legitimately delegate responsibility to interpret state constitutional provisions to
the United States Supreme Court).
                                      75

      Indeed, the United States Supreme Court has held that the United

States   Constitution     prohibits    the   federal    government     from

commandeering a state legislature or a state executive and making them

foot soldiers in the creation and enforcement of federal law. See, e.g.,

Printz v. United States, 521 U.S. 898, 935, 117 S. Ct. 2365, 2384, 138 L.

Ed. 2d 914, 944 (1997) (invalidating provisions of Brady Handgun

Violence Prevention Act because United States Constitution prohibits

requiring state executive officials from enforcing federal law); New York v.

United States, 505 U.S. 144, 180–83, 112 S. Ct. 2408, 2430–32, 120 L.

Ed. 2d 120, 153–55 (1992) (invalidating environmental law provision that

commandeered state legislature); see also Mazzone, 92 Minn. L. Rev. at

75–76 (arguing consolidation of constitutional law fails to respect the

importance placed upon state courts by the United States Constitution).

Similarly, state courts cannot become stone breakers pursuant to some

kind of self-imposed corvée duty that requires federal precedent to be

used as hammers to break state constitutional rock.

      Further, even on a pragmatic level, the case for uniformity is

unpersuasive. First, it would defeat the positive features of the federalist

system which was so important to the founding generation.            As one

commentator has noted:

      Rules that govern relations between police officers and local
      citizens, or between cities and school boards and their
      employees, are not necessarily better decided, or more
      efficiently decided, by nine judicial appointees with a
      national responsibility and allegiance.     Insisting on a
      national, uniform legal culture ignores the reality and
      richness of state differences.

1 Friesen § 1.03[4][a], at 1–14 to 1–15 (footnote omitted).

      The position of state supreme court justices closer to daily law

enforcement activities has not been lost on the United States Supreme
                                    76

Court. For instance, Justice Ginsberg has noted that state courts have a

“unique vantage point” in automobile stop cases. See Ohio v. Robinette,

519 U.S. 33, 40, 117 S. Ct. 417, 422, 136 L. Ed. 2d 347, 355 (1996)

(Ginsburg, J., concurring).

      Moreover, it is clear that uniformity will not be achieved by

adopting United States Supreme Court precedents under the state

constitution. See 1 Friesen § 1.03[4][a], at 1–15. The Supreme Court is

capable of handling only a few search and seizure cases each year. As a

result, there are many issues dividing the federal circuits that remain

undecided.   A recent survey of search and seizure precedents in the

federal circuits reveal over three dozen current splits that have not been

mediated by the United States Supreme Court.          See Wayne A. Logan,

Constitutional   Cacophony:   Federal    Circuit   Splits   and   the   Fourth

Amendment, 65 Vand. L. Rev. 1137, 1147–60 (2012); see also John

Harrison, Federal Appellate Jurisdiction Over Questions of State Law in

State Courts, 7 Green Bag 2d 353, 356 (2004) (noting that “[f]ederal law

is notoriously non-uniform among the different circuits”); Mazzone, 92

Minn. L. Rev. at 74–75 (warning not to overvalue uniformity because “our

legal system tolerates a good deal of inconsistency and nonuniform

outcomes”); Michael E. Solimine, The Future of Parity, 46 Wm. & Mary L.

Rev. 1457, 1483 (2004) (explaining that “[e]ven narrowly focused federal

rights often have nonuniform application”).

      In addition, past cases demonstrate that it is difficult to determine

the methodology that the United States Supreme Court will apply to

determine a search and seizure issue.       In recent years, the Supreme

Court has applied at least five different analytical models, based upon

the warrant requirement, individualized suspicion, case-by-case analysis,

a balancing test, and an approach relying on the common law plus
                                        77

balancing to resolve search and seizure issues. See Thomas K. Clancy,

The Fourth Amendment: Its History and Interpretation 470–531 (2008)

[hereinafter Clancy]. In any given case, it is impossible to predict which

model will apply.

      As a result, even if uniformity were the goal, a policy of blind

adoptionism may cause more harm than it is worth. As noted recently

by the Tennessee Supreme Court, “[state] constitutional standards are

not destined to walk in lock step with the uncertain and fluctuating

federal standards and do not relegate [state] citizens to the lowest levels

of   constitutional    protection,   those     guaranteed      by   the    national

constitution.”   Planned Parenthood of Middle Tenn. v. Sundquist, 38

S.W.3d 1, 14–15 (Tenn. 2000) (citation and internal quotation marks

omitted).

      Another pragmatic ground offered in support of uniformity is that

law enforcement will be too confused by independent state constitutional

law. This argument is flawed. As has been repeatedly pointed out, there

are not two standards for state law enforcement officials when a state

supreme court develops its independent state law in criminal procedure.

Law enforcement officials need not learn two different standards; they

need only learn one, namely, whatever standard is most restrictive. See

1 Friesen § 1.03[4][b], at 1–15 to 1–16; Tarr at 181 n.32.                Given the

professionalism and training of Iowa law enforcement, we should not sell

their abilities so short. Iowa law enforcement is not inferior in ability to

its counterparts in New York, New Jersey, Wisconsin, Oregon, Georgia,

Minnesota, Indiana, and the many other states that have embraced

robust independent state constitutional law.

      Finally, uniformity converts a state supreme court into a legal

chameleon    that     changes   color   with    the   latest   changes      in   the
                                     78

jurisprudence of the United States Supreme Court.          Do we retire the

writings of Justices Brandeis, Holmes, Cardozo, Stone, and Jackson

because their views are no longer cited by current majorities of the

United States Supreme Court? And what about the Iowa legal tradition

and culture as reflected in In re Ralph and its progeny? As former Chief

Justice of Indiana Randall Shepard noted:

       [W]hat respectable alternative is there to independent state
       constitutional jurisprudence? Is it a nation where civil
       liberties at all levels of activity depend solely on whether the
       left, the center, or the right of the U.S. Supreme Court is
       ascendant at the moment? Is it a country where state courts
       hearing ninety percent of the litigation resolve the most
       important cases without regard to their own history or
       precedent? Surely not.

Randall   T.   Shepard,   The   Maturing    Nature   of   State   Constitution

Jurisprudence, 30 Val. U. L. Rev. 421, 456 (1996). Under the uniformity

theory, the Iowa Supreme Court would morph into a Twelfth United

States Circuit Court of Appeals.

       4. Deference to United States Supreme Court Justices.              The

deference notion is contrary to a number of threads of constitutional

development. The abandonment of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10

L. Ed. 865 (1842), for the rule in Erie Railroad Co. v. Tompkins, 304 U.S.

64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), tended to remove federal judges

from interpretation of state law. Further, as indicated in Stone v. Powell,

428 U.S. 465, 493 n.35, 96 S. Ct. 3037, 3052 n.35, 49 L. Ed. 2d 1067,

1087 n.35 (1976), and its progeny, the United States Supreme Court has

confidence in the ability of the state courts to handle federal

constitutional claims. The discovery that state courts are now disabled

from independently considering state constitutional claims because of

their alleged lack of quality cuts against these important trends in federal

law.
                                          79

       In any event, the notion that members of the United States

Supreme Court have some kind of superior wisdom that we must show

deference to when interpreting provisions of the Iowa Constitution is

doubtful at best. History shows otherwise. Most of us would prefer the

decisions of Iowa judges in In re Ralph to the work of the United States

Supreme Court in Dred Scott and the generous Iowa approaches in Clark

and Coger to the narrow approach in Plessy. Cases like Korematsu v.

United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), and

Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137

(1951), do not inspire our confidence. See Louis Henkin, Revolutions and

Constitutions, 49 La. L. Rev. 1023, 1042–43 & n.28 (1989). Indeed, it

has been suggested that through most of our history, federal courts have

come up short in the protection of basic American rights. Solimine &

Walker at 28.

       Further,     extraordinary     state    court    judges    with    outstanding

reputations have helped to develop what is now a substantial body of

independent state constitutional law. Among others, distinguished state

judges such as Shirley Abrahamson of Wisconsin, Christine Durham of

Utah, Thomas Hayes of Vermont, Judith Kaye of New York, Hans Linde

of Oregon, Stanley Mosk of California, Ellen Peters of Connecticut,

Stewart Pollock of New Jersey, Randall Shepard of Indiana, Marsha

Ternus of Iowa, and Robert Utter of Washington have enriched the legal

culture in their states and across the nation. 23              There is no basis to

       23Many   of these state court judges have published thoughtful scholarly articles
on independent state constitutional law. See, e.g., Shirley S. Abrahamson, Divided We
Stand: State Constitutions in a More Perfect Union, 18 Hastings Const. L.Q. 723 (1991);
Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State
Constitutional Law, 63 Tex. L. Rev. 1141 (1985); Shirley S. Abrahamson, Reincarnation
of State Courts, 36 Sw. L.J. 951 (1982); Judith S. Kaye, Contributions of State
Constitutional Law to the Third Century of American Federalism, 13 Vt. L. Rev. 49 (1988);
                                           80

discount the work of these outstanding state supreme court justices. Is

there any reason to believe that Justices Holmes, Cardozo, O’Connor,

and Souter were less intelligent or less capable when they served on state

supreme courts? As noted by two observers, “Considering the judicial

systems as a whole, we believe it is demeaning and inaccurate to assert a

lack of talent in the state and local judicial arena.” Solimine & Walker at

132.

       In fact, there is reason to believe that in some respects, state

supreme court justices may be better positioned than United States

Supreme Court Justices to decide questions of state constitutional law.

As noted above, state judges are not affected by federalism concerns and

will not face pressures to underenforce constitutional norms. Further, as

Justice Abrahamson pointed out, criminal law is an area of traditional

expertise for state court judges. Abrahamson, 63 Tex. L. Rev. at 1148–

49. Justice Ginsberg made a similar point in Robinette, noting that state

courts have a “unique vantage point” in assessing the constitutional

dimensions of traffic stops. 519 U.S. at 40, 117 S. Ct. at 422, 136 L. Ed.

2d at 355.

___________________
Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 St. John’s L. Rev.
399 (1987); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L.
Rev. 165 (1984); Hans A. Linde, First Things First: Rediscovering the States’ Bills of
Rights, 9 U. Balt. L. Rev. 379 (1980); Stanley Mosk, State Constitutionalism: Both Liberal
and Conservative, 63 Tex. L. Rev. 1081 (1985); Stewart G. Pollock, Adequate and
Independent State Grounds as a Means of Balancing the Relationship Between State and
Federal Courts, 63 Tex. L. Rev. 977 (1985); Stewart G. Pollock, State Constitutions as
Separate Sources of Fundamental Rights, 35 Rutgers L. Rev. 707 (1983); Randall T.
Shepard, The Maturing Nature of State Constitution Jurisprudence, 30 Val. U. L. Rev. 421
(1996); Marsha Ternus, Remarks: Symposium, Great Women, Great Chiefs, 74 Alb. L.
Rev. 1569 (2011); Robert F. Utter, The Practice of Principled Decision-making in State
Constitutionalism: Washington’s Experience, 65 Temp. L. Rev. 1153 (1992); Robert F.
Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal
Constitutional Issues When Disposing of Cases on State Constitutional Grounds, 63 Tex.
L. Rev. 1025 (1985).
                                         81

      In any event, what is required in constitutional adjudication is not

brilliance, but judgment. As Justice Holmes said long ago when serving

on the Supreme Judicial Court of Massachusetts, “[I]t is vain to suppose

that solutions can be attained merely by logic and general propositions of

law which nobody disputes.” Vegelahn v. Guntner, 44 N.E. 1077, 1080,

(Mass. 1896) (Holmes, J., dissenting).           Phrased somewhat differently,

“The life of the law has not been logic, it has been experience.” Oliver

Wendell Holmes, The Common Law 1 (1881).

      Notwithstanding the above, no one could claim that state court

judges in Iowa or in other states are perfect. Justice Linde observed that

“most state courts had a poor record of taking seriously the individual

rights and fair procedures promised in their states’ bills of rights.”

Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18

Ga. L. Rev. 165, 174 (1984).         To the extent there are shortcomings,

however, the solution, as Professor Paul Bator pointed out over thirty

years ago, is to “create conditions to assure optimal performance by the

state courts.” Paul M. Bator, The State Courts and Federal Constitutional

Litigation, 22 Wm. & Mary L. Rev. 605, 624 (1981).

      5. Efficiency. Although it is rarely publically advanced as a reason

for not engaging in independent state constitutional analysis, simply

adopting the results of federal cases might be defended as more efficient

for courts and judges.       Developing a meaningful independent state

constitutional   analysis   is    hard   work.      Ken   Gormley,   Significant

Developments in State Constitutional Law, 1988, 2 Emerging Issues St.

Const. L. 1, 2 (1989).           It would be easier to simply match our

constitutional cases against federal          precedents, briefly state our

conclusion, and call it a day.
                                          82

       The problem with this approach, however, is that it ignores our

obligation to construe our independent state constitution. Efficiency was

not a goal of the framers of either the United States or Iowa

Constitutions, and it should not be ours, either. If efficiency were the

constitutional goal, there would be no bicameral legislature, no

separation of powers, federalism would be replaced by a unified national

state, and there would, of course, be no state courts. Instead, we must

do the job assigned to us in our constitutional system as justices of the

Supreme Court of Iowa, challenging as it may be,24 and decide each and

every independent constitutional claim we confront based on Iowa law

and the peculiar facts.

       6. Summary. State supreme court justices have a constitutional

responsibility to do the very best job we can, in each and every case, and

to decide state constitutional issues based on law, facts, and the best

constitutional wisdom we can collectively muster. Arguments marshaled

against independent state constitutional grounds such as claims that

parallel language demands uniform outcomes ignores the open-textured

qualities of most constitutional provisions.             Claims that cases under

State and Federal Constitutions should come to uniform results runs

         24Of course, the ability to engage in thoughtful, independent analysis of state

constitutional issues is threatened when the docket of a state supreme court is
unmanageable. As Robert Williams has pointed out, the creation of intermediate courts
of appeal in many states has alleviated the workload on state supreme courts and
allows for more considered development of the state’s constitutional law. See Robert F.
Williams, Introduction: Celebrating Judge Michael Patrick King’s Career, 35 Rutgers L.J.
xi, xi–xii (2004). It is undeniable, however, that most state supreme courts do not have
the same resources available to it as the United States Supreme Court. The United
States Supreme Court decides approximately seventy cases in a nine-month term, with
each justice receiving the assistance of four law clerks. In Iowa, we have a somewhat
larger caseload and only one law clerk per justice. Nonetheless, with the creation of the
Iowa Court of Appeals and the advent of computerized research, our practical ability to
meet our Iowa constitutional responsibilities and develop state constitutional law is
much enhanced over prior decades.
                                    83

directly counter to the Tenth Amendment and Madisonian concepts of

the states providing a “double security” for liberty. In interpreting state

constitutional law, state supreme court justices are not pins standing at

attention ready to explode when the next divided opinion of the United

States Supreme Court rolls down the constitutional alley. Instead, state

supreme court justices have a solemn duty to independently determine

the meaning and scope of our state constitutional provisions.

      D. Challenges to Independent State Constitutional Law in the

Context of Search and Seizure. From the beginning, the efforts of the

United States Supreme Court to interpret the open-textured provisions of

the Fourth Amendment have been fraught with difficulty.                The

relationship between the two Fourth Amendment clauses, the warrant

clause and the reasonableness clause, is not clear.     Further, the term

“reasonable” is subject, then as now, to many different meanings. See

Clancy at 11; Silas J. Wasserstrom, The Fourth Amendment’s Two

Clauses, 26 Am. Crim. L. Rev. 1389, 1389–99 (1989).

      Interpretation    of the   Fourth   Amendment    has   been   further

complicated by technological change. Trespass doctrine developed by the

United States Supreme Court in Olmstead v. United States, 277 U.S. 438,

48 S. Ct. 564, 72 L. Ed. 944 (1928), was challenged by the advent of the

telephone and was ultimately largely supplanted by an expectation-of-

privacy approach.      See Katz, 389 U.S. at 353, 88 S. Ct. at 512, 19

L. Ed. 2d at 583; id. at 360, 88 S. Ct. at 516, 19 L. Ed. 2d at 587

(Harlan, J., concurring).   Now the expectation of privacy approach is

being challenged by the Internet and cell phone technology and may be

in the process of being replaced by concepts of autonomy. See United

States v. Jones, 565 U.S. ___, ___, 132 S. Ct. 945, 949, 952, 181 L. Ed.

2d 911, 918 (2012).
                                           84

       In addition to the difficulties posed by the language and structure

of the Fourth Amendment and technology change, there has been a

striking lack of stable consensus on the proper application of Fourth

Amendment law among the Justices. The Court’s jurisprudence in the

search and seizure area has been characterized by distinguished

commentators as “not merely complex and contradictory, but often

perverse”; 25 as “a mass of contradictions and obscurities”; 26 as involving

cases decided within weeks of each other that are “irreconcilable”; 27 as

involving an expectation of privacy test that “remains remarkably

opaque”; 28 as being “in a state of theoretical chaos”; 29 as maintaining

“doctrinal incoherence of Fourth Amendment law” that “disturbs many

judges and scholars”; 30 as including “inconsistent and bizarre results”;31

as   being       “distressingly   unmanageable”; 32      as   being   “illogical   and




       25Akhil   Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757,
758 (1994).
       26Craig   M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468,
1468 (1985).
       27Thomas  K. Clancy, The Fourth Amendment’s Concept of Reasonableness, 2004
Utah L. Rev. 977, 978 (2004).
       28Oren S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev.
503, 504–05 (2007).
       29Donald    R.C. Pongrace, Stereotypification of the Fourth Amendment’s
Public/Private Distinction: An Opportunity for Clarity, 34 Am. U. L. Rev. 1191, 1208
(1985).
        30David E. Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U.

Pa. J. Const. L. 581, 581 (2008).
       31Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as

Constitutional Theory, 77 Geo. L.J. 19, 29 (1988).
      32Richard G. Wilkins, Defining the “Reasonable Expectation of Privacy”: An

Emerging Tripartite Analysis, 40 Vand. L. Rev. 1077, 1107 (1987).
                                           85

unwieldy”; 33 and as involving, with each case, “more duct tape on the

Amendment’s frame and a step closer to the junkyard.” 34

       The      problems     in   its   Fourth   Amendment        cases   have    been

recognized by the Justices of the United States Supreme Court for

several decades.        See Gant, 556 U.S. at 349, 129 S. Ct. at 1723, 173

L. Ed. 2d at 500 (noting the “checkered history of search-incident-to-

arrest exception); Acevedo, 500 U.S. at 583, 111 S. Ct. at 1993, 114

L. Ed. 2d at 636 (Scalia, J., concurring) (referring to Fourth Amendment

jurisprudence as “an inconsistent jurisprudence that has been with us

for years”); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 637, 109

S. Ct. 1402, 1424, 103 L. Ed. 2d 639, 673 (1989) (Marshall, J.,

dissenting) (asserting that concept of reasonableness is “virtually devoid

of meaning, subject to whatever content shifting judicial majorities,

concerned about the problems of the day, choose to give that supple

term”); Coolidge v. New Hampshire, 403 U.S. 443, 490–91, 91 S. Ct.

2022, 2050, 29 L. Ed. 2d 564, 597 (1971) (Harlan, J., concurring) (calling

for overhaul of Fourth Amendment law); Ker, 374 U.S. at 45, 83 S. Ct. at

1646, 10 L. Ed. 2d at 745 (Harlan, J., concurring) (noting that Court’s

search and seizure decisions are “hardly notable for their predictability”);

Chapman v. United States, 365 U.S. 610, 618, 81 S. Ct. 776, 780, 5 L.

Ed. 2d 828, 834 (1961) (Frankfurter, J., concurring) (“The course of the

true law pertaining to searches and seizures . . . has not—to put it

mildly—run smooth.”).




                Friesen, State Courts as Sources of Constitutional Law: How to Become
       33Jennifer

Independently Wealthy, 72 Notre Dame L. Rev. 1065, 1092 (1997).
       34Erik   G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 787–88 (1999).
                                    86

      The incoherence of the Supreme Court’s Fourth Amendment

doctrine was recently on full display in Jones, where the Court

considered whether the government violated the Fourth Amendment by

placing a Global Positioning System tracking device on a suspect’s

vehicle. Justice Scalia, relying on his brand of originalist interpretation

of the Fourth Amendment, found that the government action amounted

to a trespass and was thus an unlawful search. Jones, 565 U.S. at ___,

132 S. Ct. at 949, 181 L. Ed. 2d at 918. Justice Alito, joined by three

other members, found Justice Scalia’s opinion incredulous, concluding

that “it is almost impossible to think of late–18th-century situations that

are analogous to what took place in this case.” Id. at ___, 132 S. Ct. at

958, 181 L. Ed. 2d at 928 (Alito, J., concurring). Nonetheless, he found

the government’s action unreasonable under the Fourth Amendment. Id.

at ___, 132 S. Ct. at 964, 181 L. Ed. 2d at 934.        Justice Sotomayor

concurred with Justice Scalia’s majority opinion, but stressed that the

Fourth Amendment is not concerned only with trespassory intrusions on

property but has broader application. Id. at ___, 132 S. Ct. at 955–56,

181 L. Ed. 2d at 924–25 (Sotomayor, J., concurring).       She noted that

with changing technology “it may be necessary to reconsider the premise

than an individual has no reasonable expectation of privacy in

information voluntarily disclosed to third parties.” Id. at ___, 132 S. Ct.

at 957, 181 L. Ed. 2d at 926.      In light of the inherent challenges of

search and seizure law, the historic difficulties faced by the United States

Supreme Court, and the       fractured opinions in cases like Jones, the

notion that we should adopt the United States Supreme Court cases to

introduce guidance or uniformity is simply untenable.

      Perhaps in part because of the state of federal precedents, the field

of search and seizure is one of the most vibrant areas of state
                                           87

constitutional law. The majority of states have some kind of independent

state constitutional law in the area.                 See Barry Latzer, Toward

Decentralization of Criminal Procedure:             State Constitutional Law and

Selective Disincorporation, 87 J. Crim. L. & Criminology 63, 92 (1996)

(estimating forty-seven of the fifty states have some departures from

federal precedent).

       By way of illustration only, a number of state supreme courts, like

Iowa, have rejected the “good faith” exception to the exclusionary rule.35

Similarly, state supreme courts have rejected the approach of the United

States Supreme Court with respect to the requirements of affidavits

supporting search warrants, 36 the ability of law enforcement to search

curbside garbage without a warrant, 37 whether business records in the

hands of third parties may be produced without a warrant, 38 whether


       35See,  e.g., State v. Marsala, 579 A.2d 58, 59 (Conn. 1990); Mason v. State, 534
A.2d 242, 254–55 (Del. 1987); State v. Guzman, 842 P.2d 660, 677 (Idaho 1992); State
v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995); State v. Canelo, 653 A.2d 1097, 1105
(N.H. 1995); State v. Novembrino, 519 A.2d 820, 857 (N.J. 1987); State v. Gutierrez, 863
P.2d 1052, 1066 (N.M. 1993); People v. Bigelow, 488 N.E.2d 451, 458 (N.Y. 1985); State
v. Carter, 370 S.E.2d 553, 554 (N.C. 1988); Commonwealth v. Edmunds, 586 A.2d 887,
905–06 (Pa. 1991); State v. Oakes, 598 A.2d 119, 126–27 (Vt. 1991); see also 2 Friesen
§ 11.05[2], at 11–67 to 11–69 & nn.297–315.
       36See, e.g., State v. Jones, 706 P.2d 317, 322 (Alaska 1985); State v. Detroy, 72
P.3d 485, 490, 493–94 (Haw. 2003); Commonwealth v. Upton, 476 N.E.2d 548, 556–57
(Mass. 1985); State v. Cordova, 784 P.2d 30, 36 (N.M. 1989); People v. Johnson, 488
N.E.2d 439, 441, 445 (N.Y. 1985); State v. Worsham, 834 P.2d 1033, 1036 (Or. Ct. App.
1992); State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989); State v. Jackson, 688 P.2d
136, 141 (Wash. 1984); see also 2 Friesen § 11.05[1][a], at 11–60 to 11–61 & nn.263–
65, 268–71.
       37See, e.g., State v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985); State v. Goss,
834 A.2d 316, 318–19 (N.H. 2003); State v. Hempele, 576 A.2d 793, 800–01, 810 (N.J.
1990); State v. Galloway, 109 P.3d 383, 389 (Or. Ct. App. 2005); State v. Morris, 680
A.2d 90, 93–94 (Vt. 1996); see also 2 Friesen § 11.04[3], at 11–38 to 11–39 & nn.164–
65.
       38See, e.g., Charnes v. DiGiacomo, 612 P.2d 1117, 1120–21 (Colo. 1980); People
v. Jackson, 452 N.E.2d 85, 89 (Ill. Ct. App. 1983); State v. McAllister, 875 A.2d 866, 875
(N.J. 2005); Commonwealth v. DeJohn, 403 A.2d 1283, 1289–90 (Pa. 1979); State v.
                                           88

random road blocks as part of an effort to alleviate drunk driving run

afoul of search and seizure principles,39 whether a seizure requires a

show of authority or whether a reasonable belief that one is not free to

leave is sufficient, 40 whether a valid consent search requires a knowing

and voluntary waiver, 41 the scope of permissible searches pursuant to a

traffic stop, 42 the extent and scope of the curtilage, 43 and the validity and

scope of reasonable expectations of privacy as an interpretive tool. 44

___________________
Thompson, 810 P.2d 415, 418 (Utah 1991); see also 2 Friesen at 11.04[5], at 11–41 to
42 & nn.176–79.
        39See, e.g., Sitz v. Dep’t of State Police, 506 N.W.2d 209, 223–25 (Mich. 1993);

Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994); see also State v.
Henderson, 756 P.2d 1057, 1063 (Idaho 1988) (invalidating sobriety checkpoint where
police lack express legislative authority, particularized suspicion, and judicial approval
on state constitutional grounds prior to United States Supreme Court’s decision to
uphold them on a general reasonableness standard in Michigan Department of State
Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990)); State v.
Boyanovsky, 743 P.2d 711, 712 (Or. 1987) (invalidating warrantless sobriety roadblock
under state constitution prior to United States Supreme Court’s decision in Sitz);
Pimental v. Dep’t of Transp., 561 A.2d 1348, 1352 (R.I. 1989) (same); City of Seattle v.
Mesiani, 755 P.2d 775, 777 (Wash. 1988) (same); 2 Friesen § 11.09, at 11–110 to 11–
112 & n.479.
       40See, e.g., People v. Hill, 929 P.2d 735, 738–39 (Colo. 1996); State v. Greenfield,
634 A.2d 879, 883 (Conn. 1993); Jones v. State, 745 A.2d 856, 869 (Del. 1999); State v.
Quino, 840 P.2d 358, 362 (Haw. 1992); Commonwealth v. Stoute, 665 N.E.2d 93, 95–98
(Mass. 1996); In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993); State v.
Clayton, 45 P.3d 30, 34 (Mont. 2002); State v. Quezada, 681 A.2d 79, 80–81 (N.H.
1996); State v. Tucker, 642 A.2d 401, 405–06 (N.J. 1994); Commonwealth v. Matos, 672
A.2d 769, 776 (Pa. 1996); State v. Randolph, 74 S.W.3d 330, 336–37 (Tenn. 2002); State
v. Young, 957 P.2d 681, 687–89 (Wash. 1998); State v. Jones, 456 S.E.2d 459, 467 &
n.17 (W. Va. 1995); see also 2 Friesen § 11.010[1], at 11–116 to 11–118 & n.499.
       41See,e.g., State v. Trainor, 925 P.2d 818, 828 (Haw. 1996); Penick v. State, 440
So. 2d 547, 551 (Miss. 1983); State v. Carty, 790 A.2d 903, 907 (N.J. 2002);
Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999); see also 2 Friesen § 11.012,
at 11–147 to 11–148 n.618.
       42See, e.g., People v. Moorman, 859 N.E.2d 1105, 1116 (Ill. App. Ct. 2006); State
v. Brown, 792 N.E.2d 175, 179 (Ohio 2003); State v. Harris, 916 So. 2d 284, 289 (La.
Ct. App. 2005); Commonwealth v. Gonsalves, 711 N.E.2d 108, 112 (Mass. 1999); State
v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004); State v. Bauer, 36 P.3d 892, 895
(Mont. 2001); State v. Bayard, 71 P.3d 498, 502 (Nev. 2003) (per curiam); State v.
Bricker, 134 P.3d 800, 806–08 (N.M. Ct. App. 2006); see also 2 Friesen § 11.07, at 11–
83 to 11–84 & nn.372, 375–76; id. § 11.010[3], at 11–140 to 11–141 & n.588.
                                          89

       A number of courts and scholars have emphasized that search and

seizure law is especially amenable to independent state constitutional

analysis. This is particularly true as the United States Supreme Court

utilizes so called “balancing tests” which involve only contemporary

weighing of competing pragmatic considerations about which reasonable

persons may differ. See generally T. Alexander Aleinikoff, Constitutional

Law in the Age of Balancing, 96 Yale L.J. 943 (1987). Such contemporary

balancing involves “legislative or social facts” about which reasonable

persons may differ.        See Williams at 172–73; see also Neil Coleman

McCabe, Legislative Facts as Evidence in State Constitutional Search

Analysis, 65 Temp. L. Rev. 1229, 1242–51 (1992).

       As the above material demonstrates, there are good reasons to

develop an independent body of state constitutional law in the search

and seizure arena.          We have plenty of judicial company in this

undertaking.

       E. Summary.          The First American Constitutions were state

constitutions.     Many of the initial state constitutions had search and

seizure provisions, which served as a model for Madison as he drafted

the Fourth Amendment.           Nothing in the adoption of the United States

Constitution or the Bill of Rights changed the status of state

constitutions as an independent source of law. Indeed, the independent



___________________
       43See, e.g., State v. Webb, 943 P.2d 52, 57 (Idaho 1997); State v. Bullock, 901
P.2d 61, 75–76 (Mont. 1995); People v. Scott, 593 N.E.2d 1328, 1337 (N.Y. 1992); State
v. Dixson, 766 P.2d 1015, 1024 (Or. 1988); State v. Kirchoff, 587 A.2d 988, 995–96 (Vt.
1991); see also 2 Friesen § 11.04[1], at 11–34 to 11–37 nn.147–48, 150–51, 154–55.
       44See,  e.g., State v. Wallace, 910 P.2d 695, 705–07 (Haw. 1996); Moran v. State,
644 N.E.2d 536, 540 (Ind. 1994); State v. Campbell, 759 P.2d 1040, 1048–49 (Or. 1988);
see also 2 Friesen § 11.03[2], at 11–11 to 11–12 nn.39, 41, 43.
                                    90

nature of state constitutional provisions was reinforced by adoption of

the Tenth Amendment.

      For most of our constitutional history, the provisions of the Bill of

Rights of the United States Constitution did not apply against the states.

In the middle of the twentieth century, the United States Supreme Court

began to incorporate provisions of the Federal Bill of Rights, including

the Fourth Amendment, to provide a floor of protection against state

transgressions.   Incorporation came with two important consequences.

One consequence of incorporation was a tendency to dilute the

substantive protections in order to avoid a nationwide rule that did not

take into account local conditions and experience. Another consequence

was that the focus of the legal community shifted toward federal

constitutional protections and away from protections in independent

state constitutions. As the Supreme Court proceeded to steadily reduce

the scope of constitutional protections, however, state courts began to

reinvigorate their independent state constitutional analysis.

      Independent state constitutional law is now a well-established part

of our state’s legal fabric. The independent state constitutional approach

utilized by the majority in this case under article I, section 8 is logical,

comports with the history of both the United States and Iowa

Constitutions, and is solidly supported in our caselaw and the well-

reasoned caselaw of other jurisdictions.

      III. Resolution of the Constitutional Issues in This Case.

      The majority opinion in this case decides, under the particular

facts and circumstances, that Baldon’s consent cannot be considered

voluntary under article I, section 8 of the Iowa Constitution.          We

conclude that when an individual is faced with the so-called “choice” of

consenting to wide-open suspicionless searches or remaining in prison
                                         91

for an extended period of time, the “choice” is not a truly voluntary one.

We thus reject a rigidly formalistic consent doctrine in which the mere

fact that a person is presented with a Hobson’s choice is sufficient to

make consent voluntary.      We base our opinion on the common sense

observation that where the state makes the stakes of nonconsent so high

that no reasonable person would choose otherwise, there is no realistic

choice at all. We continue what we started in Pals, namely, insisting that

consent doctrine under article I, section 8 must realistically assess the

ability of the individual to say “No.”

      For the reasons well expressed in the majority opinion, the

outcome in this case is the only reasonable one.     It would be a plain

fiction to maintain that consent to unlimited search authority was

voluntary when the consequence of refusal is continued long-term

incarceration.

      It is possible that such consent would not be found voluntary by

the United States Supreme Court under the Fourth Amendment.            Cf.

United States v. Giannetta, 909 F.2d 571, 576 n.4 (1st Cir. 1990) (stating

“a question of coercion would arise as to any contention that ‘agreement’

to a probation search condition constitutes a general consent to search”).

The United States Supreme Court, however, has often applied the

“totality of circumstances” test of Schneckloth in a very unrealistic way.

In Florida v. Bostwick, 501 U.S. 429, 438–40, 111 S. Ct. 2382, 2388–89,

115 L. Ed. 2d 389, 400–02 (1991), the Court determined that consent to

search by passengers on a bus was voluntary even though armed officers

prevented passengers from leaving the confined space of the vehicle.

Similarly, in INS v. Delgado, 466 U.S. 210, 218, 104 S. Ct. 1758, 1763–

64, 80 L. Ed. 2d 247, 256 (1984), the Court determined consent to

search was voluntary even though armed guards blocked the exits to a
                                   92

workplace.   By choosing to base our opinion in this area on the Iowa

Constitution, we obtain finality, avoid the necessity of attempting to

follow contradictory and doubtful federal authorities, and develop our

body of independent law.

      IV. Conclusion.

      For the reasons expressed above, I join in the majority opinion and

concur in the judgment in this case.
                                    93
                                                #10–0214, State v. Baldon
MANSFIELD, Justice (dissenting).

      I respectfully dissent.   I believe the Iowa Constitution, like the

United States Constitution, permits the government to require a prisoner

as a condition of parole to agree to searches during his or her term of

parole. Such searches should especially be upheld when, as here, they

are under the control and with the authorization of the parole officer, and

when reasonable suspicion exists that the parolee has committed a crime

or violated his terms of parole. While I acknowledge that much of my

disagreement relates to this court’s 2010 decision in State v. Ochoa, 792

N.W.2d 260 (Iowa 2010), I believe the present decision is legally flawed,

even accepting Ochoa.

      I. Facts.

      The thirty-one-year-old defendant, Isaac Baldon, who had a

substantial criminal history including first-degree theft, third-degree

burglary, possession with intent to deliver a controlled substance,

transportation of a firearm as a felon, and being a felon in possession of

a firearm, was paroled on the latter three charges on November 3, 2008.

In his parole agreement, he specifically agreed to several conditions,

including:

      I shall reside at the place designated in the attached Parole
      Release instructions and shall not change residence unless I
      receive approval from my supervising officer.

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

      I shall abstain from the use, purchase, possession, or
      transfer of any drug unless prescribed for me by a physician,
      and shall submit to drug monitoring tests when directed by
      my supervising officer. I shall not associate with drug users
      or sellers while on parole and shall avoid places where drugs
      are sold.
                                         94

        Six months later, Bettendorf police were patrolling the Traveler

Motel, “probably the single highest crime location that we have in our

city.   We check it every day several times a day and run across all

manner     of   criminal    activity   at   that   location,”   including    drugs,

prostitution, and weapons offenses.           Typically, the police check the

license plates of all cars parked at the motel.

        Officer Tripp ran a license plate check and determined that a

vehicle registered to Baldon was parked at the motel. He also determined

that Baldon had prior driver’s license revocations and was on parole.

Officer Tripp called in to headquarters and asked that Baldon’s parole

officer be notified.       When contacted, Baldon’s parole officer, Officer

Peterson, gave permission for Baldon’s hotel room and vehicle to be

searched. Officer Peterson also said he would be coming to the motel.

        Officer Tripp went to the front desk of the motel and learned that

Baldon was registered to a room at the motel. This was different from

the authorized Davenport residence he had provided to his parole officer.

After Officer Peterson arrived, Officer Tripp, Officer Peterson, and two

other police officers went to Baldon’s room and knocked on the door.

Receiving no answer, they knocked again a minute or so later. At this

point, Officer Tripp announced they were police and that Baldon needed

to open the door.

        When Baldon opened the door in his underwear, Officer Peterson

recognized him and said hello. A sixteen-year-old girl wearing only a T-

shirt was sitting on the bed. 45 Her underwear was on the floor. One of




       45Minors are not allowed at the Traveler Motel. The girl was cited for being a

minor in possession of tobacco and released to a guardian.
                                      95

the officers took her outside.     Officer Tripp, Officer Peterson, and the

fourth officer conducted a search of the room and found nothing illegal.

        Officer Tripp asked Baldon for the keys to his car. Officer Tripp

went outside, began searching the vehicle, and found a baggie of

marijuana in the trunk area.       He then went back to the motel room,

informed Officer Peterson what he had found, and the two of them went

back out to the vehicle and ultimately found five other smaller baggies of

marijuana. After being Mirandized, Baldon admitted that he knew the

marijuana was in the vehicle, he had received it as payment for a debt,

and he anticipated that by breaking it up and selling it he would receive

$800.       Baldon was criminally charged, his motion to suppress was

denied, and he was convicted of possession of marijuana with intent to

deliver and failure to have a drug stamp. See Iowa Code § 124.401(1)(d);

id. § 453B.3 (2009).

        II. Parole Searches and Our Ochoa Decision.

        In a 6–3 decision, the United States Supreme Court held in 2006

that a parolee could be searched by a police officer without a warrant or

particularized suspicion based on a California law that requires every

prisoner eligible for release on parole to “ ‘agree in writing to be subject to

search or seizure by a parole officer or other peace officer at any time of

the day or night, with or without a search warrant and with or without

cause.’ ”    Samson v. California, 547 U.S. 843, 846, 126 S. Ct. 2193,

2196, 165 L. Ed. 2d 250, 255 (2006) (quoting Cal. Penal Code § 3067(a)

(West 2000)). The Court noted that parole “is an established variation on

imprisonment of convicted criminals,” and that the state is usually

“willing to extend parole only because it is able to condition it upon

compliance with certain requirements.” Id. at 850, 126 S. Ct. at 2198,

165 L. Ed. 2d at 258 (citation and internal quotation marks omitted).
                                   96

Parolees “have severely diminished expectations of privacy by virtue of

their status alone.” Id. at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259.

The Court also observed that the state has an “overwhelming interest” in

supervising parolees because they are more likely to commit future

criminal offenses. Id. at 853, 126 S. Ct. at 2200, 165 L. Ed. 2d at 260

(citation and internal quotation marks omitted).

      In Ochoa, a parole search case, we departed from Samson and

decided that the search and seizure clause of Iowa’s Constitution

provides more protection to parolees than the virtually identical Search

and Seizure Clause of the United States Constitution. See 792 N.W.2d at

287–90. We thus held that the Iowa Constitution prohibited warrantless,

suspicionless searches of parolees. We did not claim that this outcome

was required by anything particular in the Iowa Constitution or any

specific precedent under that constitution.      Rather, the heart of the

decision was a philosophical disagreement with the Samson holding, and

we explained that we found the three-justice dissent more compelling

than the six-justice majority. Id. at 282–83, 286–91.

      I have serious concerns about an approach that treats a United

States Supreme Court decision as just another dish on the menu. See

id. at 267 (“The degree to which we follow United States Supreme Court

precedent, or any other precedent, depends solely upon its ability to

persuade us with the reasoning of the decision.”). The decisions of that

Court are rendered by nine legal scholars of exceptional distinction.

They come only after each case has been the subject of extensive

adversarial briefing, argument, and attention.     By contrast, this court

composed its thirty-page state constitutional opinion in Ochoa without

the benefit of any argument other than federal constitutional argument.

See State v. Ochoa, No. 08–0412, 2009 WL 398390, at *2 n.1 (Iowa Ct.
                                         97

App. 2009) (noting that Ochoa “has not asserted that the state

constitutional provision should be interpreted differently than the Fourth

Amendment”). Simply stated, if we believe in an adversary system, the

adversarial process before the United States Supreme Court is far more

robust. That is especially true when, as in Ochoa, we venture into state

constitutional issues that no one has briefed. 46

       I believe we went too far in Ochoa. We abandoned longstanding

precedent without admitting we were doing so. We read too much into

the text and history of the Iowa Constitution. And, even assuming it was

appropriate to treat Samson as just another option, our simplistic “home

trumps parolee status” approach was too dismissive of the grounds on

which Samson was decided.

       The first error committed by the court in Ochoa was to discard a

long line of Iowa Supreme Court cases, many of them rather recent,

giving deference to federal interpretations of the Fourth Amendment.

       Because the search and seizure clause of the Iowa
       Constitution is nearly verbatim to the language of the Fourth
       Amendment, cases interpreting the Fourth Amendment are
       persuasive—but not binding—on our interpretation of the
       Iowa Constitution. We usually interpret the scope and
       purpose of the Iowa Constitution’s search and seizure
       provisions to track with federal interpretations of the Fourth
       Amendment.

State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citation omitted).

“The scope and purpose of Iowa’s search and seizure clause is

coextensive with the federal court’s interpretation of the Fourth

Amendment.” State v. Carter, 733 N.W.2d 333, 337 (Iowa 2007). “The

       46Here, as in Ochoa, the court’s opinion is self-generated. It is not based on
matters the appellant has briefed on appeal. Baldon’s brief does not even address the
consent issue. He maintains, rather, that we decided that question in Ochoa and that
Ochoa controls this case. See Appellant’s Br. at 10–11.
                                         98

Iowa Supreme Court generally interprets article I, section 8 of the Iowa

Constitution to track federal interpretations of the Fourth Amendment.”

Atwood v. Vilsack, 725 N.W.2d 641, 650 (Iowa 2006). “Cases interpreting

the federal constitution are persuasive in our interpretation of the state

constitution because the federal and state search-and-seizure clauses

are similar.” State v. Hoskins, 711 N.W.2d 720, 725 (Iowa 2006).

       Because the federal and state search-and-seizure clauses are
       nearly identical, federal cases interpreting the federal
       provision are persuasive in our interpretation of the state
       provision. However, such cases are not binding on this court
       regarding our interpretation of the state provision.

State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005) (citation and internal

quotation marks omitted).

       The Iowa Constitution also contains a search and seizure
       clause that is virtually identical to the Fourth Amendment.
       Accordingly, we usually interpret the scope and purpose of
       article I, section 8, of the Iowa Constitution to track with
       federal interpretations of the Fourth Amendment.

State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003) (citations and internal

quotation marks omitted).

       Despite the length of the court’s opinion, Ochoa did not mention

any of these recent statements. 47            Instead, it made the following

assertion: “This court has to date generally developed a body of

independent state constitutional law in the search and seizure area

slowly and cautiously.” Ochoa, 792 N.W.2d at 265.

       That is overstating things a bit.         Actually, a careful reading of

Ochoa would reveal exactly one cited case where we had diverged from


       47Ochoacites a few cases with similar language, but the last one is from 1988.
See Ochoa, 792 N.W.2d at 266 (citing State v. Showalter, 427 N.W.2d 166, 168 (Iowa
1988)). Ochoa would thus have the reader believe that only “older cases” embraced
such an approach. Id. That is simply not true.
                                       99

federal interpretation of the Fourth Amendment in our interpretation of

article I, section 8.   See State v. Cline, 617 N.W.2d 277 (Iowa 2000),

abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2

(Iowa 2001). In Cline, this court declined to follow United States v. Leon,

468 U.S. 897, 104 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), which

recognized a good faith exception to the application of the exclusionary

rule. See 617 N.W.2d at 285–93.

      Several points about Cline should be noted. First, the case was

about remedy, not right. We did not say the Iowa Constitution would

invalidate a search that the United States Constitution permits. In fact,

we applied both federal and Iowa precedent in finding the underlying

search unconstitutional, stating,

             Because the language of article I, section 8 of the Iowa
      Constitution is nearly identical to the Fourth Amendment,
      the two provisions are generally deemed to be identical in
      scope, import, and purpose.        Therefore, although our
      discussion of probable cause will focus on the Fourth
      Amendment, our analysis of this issue is equally applicable
      to the defendant’s claim under the Iowa Constitution.

Id. at 281–82 (citation and internal quotation marks omitted).            Cline

simply held that Iowa’s courts, as a matter of remedy, would not allow
the use of evidence that had been unconstitutionally obtained.

      Second, even on the question of remedy, we continued to sound a

note of deference. Thus, concerning the exclusionary rule, we said, “In

accordance with these general principles, we strive to be consistent with

federal constitutional law in our interpretation of the Iowa Constitution,

but we jealously guard our right and duty to differ in appropriate cases.”

Id. at 285 (citation and internal quotation marks omitted).

      Third,   in   deviating   from   federal   precedent   concerning    the

exclusionary rule, we followed an approach that, according to our
                                          100

research, most states addressing the issue had taken under their own

state constitutions. See id. at 293 n.3.

       None of these observations applies to Ochoa. Contrary to Cline and

a host of prior and (as noted) subsequent decisions, we abandoned in

Ochoa all deference to federal interpretation of the Fourth Amendment.

We claimed that we did so “to resolve any inconsistency in our prior

cases.” Ochoa, 792 N.W.2d at 267. That assertion was incorrect. There

was no prior inconsistency on the question whether United States

Supreme Court interpretations of the Fourth Amendment were entitled to

deference in interpreting the nearly identical wording of article I, section

8. We simply decided to go in a different direction. 48

       Having set aside what went before, this court in Ochoa then

embarked on a brief textual analysis of article I, section 8. We observed

that in article I, section 8, the reasonableness clause and the warrant


       48Seeking  to patch this hole in Ochoa, the majority now cites State v. Tonn, 195
Iowa 94, 104–07, 191 N.W. 530, 535–36 (1923), a case where this court decided that
the exclusionary rule does not apply in Iowa and thus found that article I, section 8
should provide less protection than the Fourth Amendment. Tonn, like Cline, was a
case about remedy, not about the scope of the right. Tonn has not been the law since
1961, when the United States Supreme Court held that the Fourteenth Amendment
requires the federal exclusionary rule apply to the states. See Mapp v. Ohio, 367 U.S.
643, 655–57, 81 S. Ct. 1684, 1691–92, 6 L. Ed. 2d 1081, 1090–91 (1961).
        Tonn was not cited in Ochoa, perhaps because it did not fit the narrative of Iowa
historically having given “considerable solicitude to the sanctity of the home.” See
Ochoa, 792 N.W.2d at 284. But see Tonn, 195 Iowa at 101–02, 191 N.W. at 532–33
(upholding a warrantless search where the county attorney simply went to the hotel
where defendant was staying and, without his knowledge, retrieved his suitcase and
handbag).
       Tonn justified its deviation from the federal exclusionary rule partly on the
ground that “the overwhelming weight of authority in the state courts” already had
decided not to follow that rule. 195 Iowa at 106, 191 N.W. at 534.
        I agree that Tonn is one other case where this court declined to follow Federal
Fourth Amendment interpretation. But it is truly a stretch to link Tonn and Ochoa, as
if two disconnected opinions nearly one hundred years apart represent a consistent and
unbroken line of authority.
                                       101

clause are separated by a semicolon, whereas in the Fourth Amendment

they are separated by a comma.           Id. at 268–69.      Citing a famous

monograph on style, the court indicated that “a semicolon is used to

emphasize the relationship between the two clauses of the sentence.” Id.

Thus, the court suggested (although it fell short of saying) that in Iowa’s

Constitution, there might be a closer connection between the two

clauses. This strikes me as taking the grammarian out of context. As

compared to a period, a semicolon might suggest a greater connection,

but compared to a comma?        Indeed, the cited grammarian makes this

very point. See William Strunk, Jr. & E.B. White, The Elements of Style 6

(4th ed. 2000) (stating that a semicolon “suggests the close relationship

between the two statements in a way that the [version consisting of two

sentences separated by a period] does not attempt, and better then the

[version consisting of two clauses separated by a comma and a

conjunction] because it is briefer and therefore more forcible”).       There

are, it is worth noting, several other nonsubstantive variations between

the two documents.       For instance, the Iowa Constitution reorders the

words “searches and seizures” to read “seizures and searches” and

replaces “Warrants” with “warrant.”          I would not extract a substantive

meaning out of these cosmetic differences.

      Ochoa’s textual discussion was then followed by a bibliographical

historical discussion of the Fourth Amendment. Ochoa, 792 N.W.2d at

269–72.   Yet the opinion itself concluded that the eighteenth century

historical record was of limited usefulness in addressing parole systems

that were not introduced until the late nineteenth century. Id. at 272.

      Turning then to the Iowa historical record, the Ochoa opinion

found that it “tends to shed light on the value the Iowa framers placed on

article I, section 8.”   Id. at 274.    I think the basis for drawing this
                                   102

conclusion is exceedingly thin. Ochoa quoted a statement from one of

our framers of our present 1857 Constitution.     Id.   (quoting Mr. Ells).

The point he was making, however, had nothing to do with article I,

section 8. He was explaining, rather, why his committee was proposing

additional enumerated rights that, unlike article I, section 8, had not

been part of the previous constitution.         1 The Debates of the

Constitutional Convention of the State of Iowa 100 (W. Blair Lord rep.,

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

tions/law-library/iaconst.

      In addition, Ochoa quoted a statement from a framer of the 1844

Constitution.      According to Ochoa, this framer “deemed the most

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

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

family, free from the fear of being turned out of doors.’ ” See 792 N.W.2d

at 275 (quoting Mr. Lucas). However, this statement also had nothing to

do with search and seizure. Rather, it related to a proposed homestead

amendment, providing that “[e]very person residing in the State to have

the right to hold 80 acres of land, with the improvements, or a house,”

which did not make it into the 1844 (or the 1857) Constitution.        See

Fragments of the Debates of the Iowa Constitutional Conventions of 1844

and 1846, at 159 (Benjamin F. Shambaugh ed., 1900), available at

http://www.statelibraryofiowa.org/services/collections/law-

library/iaconst.

      Ochoa added that “the drafters of the Iowa Constitution placed the

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

emphasis.” 792 N.W.2d at 274. No citation is provided for the “apparent

emphasis” claim. I think it is difficult to draw any inference from the

ordering of provisions within our constitution. The 1844 and the 1846
                                     103

constitutions also began with a bill of rights. Article I, section 5 of the

1857 Constitution (repealed in 1992) provided that someone who had

engaged in dueling would be disqualified from holding public office. Does

this mean our framers thought article I, section 5 was more important

than article I, section 8?

      Ochoa also discussed briefly other states’ constitutional precedents

on parole searches. 792 N.W.2d at 283–84. It indicated that courts were

divided before Samson on the constitutionality of suspicionless parole

searches and noted that since Samson, two state supreme courts had

“declined   to   depart      from   Samson   in   interpreting   their   state

constitutions.” Id. at 284.

      With the benefit of more than two years’ additional experience, it

so far appears that this court stands alone in its flat-out rejection of

Samson.     See In re Miranda, 289 P.3d 957, 961 (Colo. 2012) (citing

Samson and stating that in Colorado, “parole officers may search

parolees’ persons, residences, or vehicles unannounced, without a

warrant, and without reasonable suspicion”); State v. Cruz, 174 P.3d

876, 881 (Idaho Ct. App. 2007) (declining to hold that the Idaho

Constitution provides more protection than Samson and noting that

Idaho has provided greater protections “based on the uniqueness of our

state, our Constitution, and our long-standing jurisprudence,” but

“[n]one of these factors support a divergence from the interpretation of

the Fourth Amendment by the United States Supreme Court in this

case”); State v. Bartylla, 755 N.W.2d 8, 18–19 (Minn. 2008) (applying

Samson under the Minnesota Constitution and stating that “we do not

believe that the Samson approach reflects a retrenchment on the Bill of

Rights”); State v. Turner, 297 S.W.3d 155, 166 (Tenn. 2009) (“A parole

condition requiring that the parolee submit to warrantless searches is
                                           104

reasonable in light of the parolee’s significantly diminished privacy

interests; the goals sought to be attained by early release; and society’s

legitimate interest in protecting itself against recidivism.              We therefore

adopt the reasoning of Samson and hold that the Tennessee Constitution

permits     a   parolee     to    be   searched     without      any    reasonable      or

individualized suspicion where the parolee has agreed to warrantless

searches by law enforcement officers.”).             In fact, the only out-of-state

reported opinion to have cited Ochoa is a single judge’s dissent.                     See

State v. Johnson, 813 N.W.2d 1, 18 (Minn. 2012) (Meyer, J., dissenting).

This should give us pause.

       In addition, Ochoa discussed State v. Cullison, 173 N.W.2d 533

(Iowa 1970). See Ochoa, 792 N.W.2d at 285–86. But Ochoa recognized

that Cullison was a Fourth Amendment decision.                   As described by the

Ochoa court, Cullison “held that a parolee is afforded the same rights as

any other person under the Fourth Amendment.” Id. at 286. That was a

correct characterization. The case makes no reference at all to article I,

section 8 of the Iowa Constitution. The issue was whether a parolee by

virtue of his or her status loses Fourth Amendment protection. Cullison

applied mostly federal and out-of-state authority to conclude that “an

Iowa    State       parolee’s    Fourth    Amendment        rights,    privileges     and

immunities, [should] be accorded the same recognition as any other

person.”     173 N.W.2d at 536–37.            As a Fourth Amendment decision,

Cullison has been superseded by more recent United States Supreme

Court authority. We did not suggest in Ochoa that Cullison was in any

way a controlling precedent. 49



       49Cullisoncited article II, section 5 of our constitution for the proposition that a
convicted felon on parole loses the right to vote or hold public office. 173 N.W.2d at
                                        105

       Thus, Ochoa really came down to a disagreement with Samson.

And there was not that much to say.             Taking issue with the Samson

majority, Ochoa concluded, “[T]he fact that a parolee is released into the

larger community is the overriding factor for purposes of search and

seizure analysis.” 792 N.W.2d at 291. In short, Ochoa squarely rejected

the Samson view that parole is a “variation on imprisonment,” see

Samson, 547 U.S. at 850, 126 S. Ct. at 2198, 165 L. Ed at 258, and

instead found dispositive the parolee’s physical location outside of

prison. Thus, the general authority that the state unquestionably has to

conduct searches inside prison could not be applied, in the Ochoa court’s

view, once the prisoner had left prison on parole. 50

       I disagree with that underlying philosophical view. Consider this

question: If the “sanctity of the home” trumps an offender’s status, as we

held in Ochoa, why has this court repeatedly upheld sex offender

residency restrictions?      See, e.g., Formaro v. Polk County, 773 N.W.2d

834 (Iowa 2009); State v. Seering, 701 N.W.2d 655 (Iowa 2005). These

restrictions, which apply even after parole, severely limit where certain

sex offenders can live. Most people would regard them as a more serious

intrusion on “sanctuary, comfort, seclusion, security, and identity” than
the search provision at issue in Ochoa. See Ochoa, 792 N.W.2d at 289. I

recognize that we are talking about different constitutional provisions.

But if we are going to engage in value-driven analysis, as we did in

Ochoa, why has status won out in one area but not the other?

___________________
537. However, its conclusion that he or she retains all other rights, including Fourth
Amendment rights, was not based on anything in the Iowa Constitution. Id.
       50We also cited “academic commentary” that was critical of Samson, the specific
examples being one treatise and a “raft of student notes.” Ochoa, 792 N.W.2d at 286–
87.
                                    106

       As a result of Ochoa and its elimination of deference to federal

interpretation of the Fourth Amendment, we now have two different sets

of search and seizure rules in Iowa.       If Ochoa or Baldon had been

prosecuted for violating federal drug laws based on the incidents in

question, notwithstanding the fact that the underlying search was

conducted by state officials, the established Fourth Amendment law

would have applied. See United States v. Bach, 310 F.3d 1063, 1066 (8th

Cir. 2002) (“[F]ederal courts in a federal prosecution do not suppress

evidence that is seized by state officers in violation of state law, so long

as the search complied with the Fourth Amendment.”).            Thus, any

motion to suppress would have been denied, and the denial would have

been upheld on appeal. However, because they were prosecuted in state

court, our rather unclear work-in-progress version of search and seizure

jurisprudence under article I, section 8 applies.

       The United States Supreme Court’s interpretation of the Fourth

Amendment has been comparatively stable. See Davis v. United States,

___ U.S. ___, ___, 131 S. Ct. 2419, 2433, 180 L. Ed. 2d 285, 301 (2011)

(“Decisions overruling this Court’s Fourth Amendment precedents are

rare.”).   And there are decisions from many other appellate courts

available to fill in gaps left by that Court. Unfortunately, Iowa officials

can no longer rely on the very substantial body of law interpreting the

Fourth Amendment and must instead engage in guesswork as to what

this court will do next. I do not believe this disparity and uncertainty

serve the public interest.

       The concurrence offers two divergent reasons for not deferring to

United States Supreme Court jurisprudence in this area. At one point,

my colleague says that the Court’s Fourth Amendment decisions display

“a striking lack of stable consensus” and are marked by “incoherence.”
                                    107

Later, my colleague maintains that the Court has “proceeded to steadily

reduce the scope of constitutional protections” and has “a tendency to

dilute the substantive protections.”      One cannot have it both ways.

Either the Court (in the view of the concurrence) is being inconsistent

and unpredictable in its rulings, or it is on a consistent march to limit

Fourth Amendment rights—unless one believes that ruling in favor of the

government is itself a sign of incoherence. The concurrence states, “Law

enforcement officials need not learn two different standards; they need

only learn one, namely, whatever standard is most restrictive.” But what

is the Iowa standard? We have three cases—Ochoa, State v. Pals, 805

N.W.2d 767 (Iowa 2011), and now Baldon. I doubt even my colleagues

would claim that this handful of decisions provide any meaningful

guidance.   They make it clear that what the United States Supreme

Court has approved is not good enough, but without explaining what

would be good enough.

      The concurrence implies that more restrictions against “arbitrary

exercise of government power” are on their way from this court.

Therefore, according to the concurrence, “when in doubt, get a warrant.”

If this is the court’s search and seizure jurisprudence, it is so generalized

as to be meaningless. Obviously, there are some circumstances when all

members of this court would vote to uphold a warrantless search.

      The concurrence also makes the point that “a state in the federalist

system amounts to a ‘laboratory’ of democracy.” But when we substitute

our judgment for that of Iowa’s elected government on when a parolee

may be searched, we are not being democratic.              Rather, we are
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overturning the decision of the people’s representatives. 51                        It is

noteworthy that a number of states have chosen to limit parole searches

as a matter of law or regulation. See, e.g., State v. Coleman, 257 P.3d

320, 327 (Kan. 2011) (noting that “[w]hile the Samson Court found that

California parole conditions allowed the police to conduct suspicionless

searches of parolees, the Kansas Legislature and the Parole Board

elected to place restrictions on parolee searches”); State v. Benavidez,

231 P.3d 1132, 1137 (N.M. Ct. App. 2010) (requiring reasonable

suspicion for a warrantless parolee search based on state regulation, not

the state constitution); State v. Rowan, 814 N.W.2d 854, 861 (Wis. 2012)

(rejecting a federal and state constitutional challenge to a parole

condition authorizing suspicionless searches that was imposed based on

a court’s individualized determination pursuant to Wisconsin law).

       The issue is not whether we have the authority to independently

interpret our own constitution. Clearly we do. Nor is the issue whether

we are the final arbiters of the meaning of that constitution. Clearly we

are. The issue is whether this substantial authority should be exercised

in the search and seizure area with a degree of self-imposed modesty and




       51The    concurrence’s invocation of Justice Brandeis’s famous phrase is a bad fit.
When Justice Brandeis used that phrase, he was dissenting from his colleagues’
decision to strike down an Oklahoma law on constitutional grounds. He wrote, “It is
one of the happy incidents of the federal system that a single courageous State may, if
its citizens choose, serve as a laboratory; and try novel social and economic experiments
without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262,
311, 52 S. Ct. 371, 386–87, 76 L. Ed. 747, 771 (1932) (Brandeis, J., dissenting)
(emphasis added). The problem with lab experiments performed by the judiciary is that
the citizens have not chosen them. And if they do not work out, it is difficult to pull the
plug on them. This does not mean that Iowa judges should hesitate to follow their
sworn duty to uphold the Iowa Constitution, but they should not be deviating from
federal constitutional precedent simply to promote what the concurrence calls “cross-
fertilization” or “vertical federalism.”
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restraint. That was the approach taken by this court until three years

ago. I think it was a good one.

      III. The Consent Issue.

      Be that as it may, we did leave open several questions in Ochoa.

For one thing, the search in that case was conducted by the police

without the involvement of a parole officer. Ochoa, 792 N.W.2d at 262.

And there was no particularized suspicion of criminal activity or a parole

violation. Id. at 263. In addition to leaving open those matters, id. at

291, we also did not decide whether the parolee could be bound by an

agreement consenting in advance to such a search.           Id.   This case

presents all of those circumstances. However, my colleagues choose only

to address one of them—the enforceability of a consent.

      My colleagues could have decided the consent question by applying

the well-developed body of federal constitutional law starting with

Schneckloth v. Bustamonte. See 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed.

2d 854 (1973); see also Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199

n.3, 165 L. Ed. 2d at 259 n.3 (leaving this question undecided). This

might have led them to the same result.        Unfortunately, rather than

follow the well-established Schneckloth road, my colleagues have decided

to bushwhack their own path under the Iowa Constitution. Thus, while

they initially discuss Schneckloth, they then veer away from it and opt for

a “practical” approach based on “contract law.” Under this approach, the

consent is deemed invalid because the prisoner has no “bargaining

power”: The prisoner’s only choices are (1) to remain in prison and be

subject to suspicionless searches or (2) to agree to be subject to

suspicionless searches as a condition of leaving prison.

      This syllogism sounds good if you say it quickly, but I think it falls

apart on further analysis. If the prisoner is waiving a right that he or she
                                          110

did not have before entering into the agreement, that should be more of a

reason to honor the waiver.

       Parole is a privilege. “There is no constitutional or inherent right

to be conditionally released from prison prior to the expiration of a valid

sentence.” State v. Cronkhite, 613 N.W.2d 664, 667 (Iowa 2000). Thus,

as a matter of fair bargaining and contract law, I do not understand why

it is unfair for the state to insist upon the continued ability to conduct

searches as part of the bargain. Indeed, by the majority’s logic, virtually

all the conditions of the parole agreement should be unenforceable,

because these are all things the defendant cannot do while in prison

(e.g., “I shall not change residence unless I receive approval,” “I shall not

associate with drug users,” etc.). 52

       The Iowa Department of Corrections requires each inmate to sign a

parole agreement before being paroled.               Iowa Admin. Code r. 201—

45.1(2) (“The parolee may not be released on parole prior to the execution

of the parole agreement.”).          It is undisputed that the parole officer

reviewed Baldon’s parole agreement with him before he signed it.                     We

should be encouraging the use of these parole agreements, not

discouraging them. Contracts where a convicted felon such as Baldon
agrees in writing to certain rules and expectations are an important part

of the rehabilitative process.

       In short, the majority’s contract-based analysis is backward: It

would be more appropriate to invalidate the contract if the state used the


        52The majority more or less concedes in a footnote that this is a correct reading

of its opinion. In other words, a parole agreement is a waste of time because none of it
is enforceable. However, my colleagues leave open the possibility that other parole
conditions might be valid, not because the parolee agreed to them, but because the
State ordered them and they are “reasonable.” While I think such caveats are helpful,
they do not afford the predictability needed in this area.
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benefits of parole to extract a concession that the prisoner did not

otherwise have to give. By the same token, like the Samson majority, I

find it easier to uphold a warrantless search of a parolee than a

probationer because parole is more akin to imprisonment than probation

is to imprisonment and because a parolee is coming from prison. See

547 U.S. at 850, 126 S. Ct. at 2198, 165 L. Ed. 2d at 258.             My

colleagues’ reasoning is on the wrong track here as well.

      One could argue that the right to be free from warrantless,

suspicionless searches and seizures in the outside world is so important

that it cannot be waived in advance, even by prisoners. At times, the

majority hints at that approach, saying, “As a mandatory term of parole,

such consent would also have the effect of justifying the search on the

basis of parole status. This is not permitted under Ochoa.” The majority

also refers to giving article I, section 8 its “integrity,” a somewhat

amorphous concept that seems to suggest the right is not waivable. I

would not agree with that view, but at least it would be a logical way to

defend the result reached by the majority in this case. The majority’s

wholesale rejection of parole agreements and misapplication of contract

law, however, leave me baffled.

      Most states to have confronted the question have upheld the

validity of parole agreements in which the parolee consents in advance to

warrantless searches.    See McFerrin v. State, 42 S.W.3d 529, 534–35

(Ark. 2001) (“[W]e have held that a parolee’s advance consent is valid

because the parolee remains in the custody of the penal institution from

which he is released . . . .”); State v. Devore, 2 P.3d 153, 156 (Idaho Ct.

App. 2000) (“The ‘reasonable grounds’ requirement for warrantless

searches by probation or parole officers does not apply when the subject

of the search has entered into a probation or parole agreement that
                                     112

includes a consent to warrantless searches.”); People v. Wilson, 885

N.E.2d 1033, 1042 (Ill. 2008) (upholding an agreement where the parolee

consents in advance to warrantless searches); Sullivan v. Bunting, 975

N.E.2d 999, 1001 (Ohio 2012) (per curiam) (upholding the search of a

parolee’s email based on his prior consent to warrantless searches); see

also Roman v. State, 570 P.2d 1235, 1241–42 (Alaska 1977) (“Depending

on the nature of the crime involved, a condition of release granting

authorities the right to search premises and persons at reasonable times

could stand muster under both the Alaska and federal Constitutions.”);

William E. Ringel, Searches and Seizures, Arrests and Confessions § 17:8

(2012) (“In most jurisdictions, one of the conditions in [parole]

agreements is that the parolee or probationer consents to the search of

himself, his possessions, and his residence by a parole officer, and a

majority of courts give effect to such provisions.”).

      The consent to search in the standard IDOC parole agreement is

broad and authorizes searches “without . . . reasonable cause” and by

any “law enforcement officer.” In some states, this permission has been

judicially narrowed.    See State v. Heaton, 812 N.W.2d 904, 906, 909

(Minn. Ct. App. 2012) (holding a parole agreement provision that “[t]he

offender will submit at any time to an unannounced visit and/or search

of the offender’s person, vehicle or premises by the agent/designee”

justifies a search so long as reasonable suspicion exists); Commonwealth

v. Hughes, 836 A.2d 893, 899 (Pa. 2003) (finding that a search pursuant

to a parole agreement is permissible when “(1) the parole officer had

reasonable suspicion to believe that the parolee committed a parole

violation; and (2) the search was reasonably related to the duty of the

parole officer”); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983)

(holding that notwithstanding an agreement, the state still must have
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reasonable grounds for investigating whether a parolee has violated the

terms of parole or committed a crime); Pena v. State, 792 P.2d 1352,

1356–58 (Wyo. 1990) (adopting Utah’s approach).

       If that approach were followed here, the search would still be

upheld. Baldon was violating the terms of his parole by staying at the

Traveler Motel, a known hotbed of drug and weapons violations. Yet the

majority’s sweeping approach does not allow for this outcome, either.

Although the majority purports to apply contract law, it disregards the

tenet that when a contract is unconscionable, the court may simply

“limit the application of any unconscionable term as to avoid any

unconscionable result.” Restatement (Second) of Contracts § 208, at 107

(1981).

       The majority’s approach, I fear, will discourage the granting of

parole to inmates who deserve it.              Corrections officials need to be

confident that they can detect and deter recidivism. The majority’s rule

raises the costs of detecting and deterring recidivism by telling the State

if it releases a convicted drug dealer, it may not be able to do a parole

check on that dealer if he chooses to stay at a motel that is a drug haven

instead of being at the residence where he is supposed to be. 53

       Also,   parole     agreements—like        other    agreements—have          the

advantage of predictability. The majority’s approach, by contrast, turns

law enforcement into legal guesswork.               In this case and Pals, my

colleagues have made it clear that Iowa will not follow the established

federal constitutional standards for when a consent to search is



       53As my colleagues note in their majority opinion, this very point has been made
by the late Professor William Stuntz. William J. Stuntz, Implicit Bargains, Government
Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 580–81 (1992).
                                          114

voluntary.      But they have failed to articulate a coherent theory of

voluntariness to replace it. 54

       Pals involved a brief and amicable encounter between a police

officer and an individual whom he had pulled over for having a dog at

large. Both the majority and the dissent on the court of appeals agreed

that the consent to search of the vehicle was voluntarily given. See State

v. Pals, No. 09–0064, 2010 WL 447322, at *5 (Iowa Ct. App. Feb. 10,

2010) (majority opinion) (stating that “the circumstances as a whole leave

no doubt that his consent was voluntary”); id. at *8 (Doyle, J., dissenting)

(“I agree that . . . Wubben’s request for consent to search the truck was

completely devoid of any coercion, undue pressure, or threats, and that

Pals’s consent was voluntary”).                Yet this court reversed on the

voluntariness of the consent, emphasizing a variety of procedural

circumstances, including the fact that the individual had not been given

specific advice that he could refuse to consent. Pals, 805 N.W.2d at 782–

83.

       Here the court can hardly fault the procedures under which

consent was given—a written agreement was reviewed with Baldon before

he signed it.      So it focuses on “disproportionate bargaining power,”

because if the prisoner does not sign the agreement, he or she has to

remain     in   prison.        Thus,     the    court    purports      to   apply    an

unconscionability analysis derived from contract law. But if we consider

my colleagues’ reasoning, it would seem to invalidate as involuntary

many plea bargains. Doesn’t the State have the same “disproportionate

       54The  concurrence pats this court on its back for doing the “hard work” of
“[d]eveloping a meaningful independent state constitutional analysis” instead of “simply
match[ing] our constitutional cases against federal precedents.” I respectfully disagree.
In my view, it is harder to work within an existing, well-developed line of authority, as
courts generally do, than to branch off on one’s own on an ad hoc basis.
                                   115

bargaining power” when it has caught a criminal red-handed and offers

him or her the opportunity to avoid many years in prison through a plea

bargain?

      Again, I could understand (although I would disagree with) the

notion that the right to be free from suspicionless searches of a home,

motel, or car is so important that it cannot be waived in an advance by a

prisoner.     Arguably,   Ochoa   foreshadowed    such   a   result.    A

straightforward Schneckloth analysis might also support the majority’s

conclusion. But the majority’s ill-conceived venture into contract law, I

fear, will only lead to more uncertainty and undesirable consequences in

other areas of criminal law.

      IV. The Specifics of This Case.

      Even if one were inclined to invalidate some warrantless searches

of parolees, this would not be the case to do so. Baldon’s parole officer

was present and both authorized and supervised the search. Moreover,

at the time the search of Baldon’s car occurred, it was already known

that he was in violation of his parole agreement. Indeed, he was staying

at a motel (that prohibited minors) with a school-age girl. In short, as I

have already noted, this case presents two additional justifications for a

parole search—the presence of the parole officer and the existence of

reasonable suspicion or at least a clear parole violation.    See United

States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 593, 151 L. Ed. 2d

497, 507 (2001) (holding unanimously that a warrantless search of a

probationer’s apartment that was supported by reasonable suspicion and

authorized as a condition of his probation was reasonable within the

meaning of the Fourth Amendment); Griffin v. Wisconsin, 483 U.S. 868,

880, 107 S. Ct. 3164, 3172, 97 L. Ed. 2d 709, 721–22 (1987) (holding

that the special needs of Wisconsin’s probation system justified a
                                    116

warrantless search of a probationer by probation officers pursuant to a

Wisconsin    regulation   that   allowed   probation   searches     based   on

reasonable grounds).

      Unfortunately, the majority plays a bit of gotcha, finding that the

State has waived any basis other than consent for upholding the search.

This strikes me as unfair to the State. When this case was heard in the

district court, we had not decided Ochoa. Baldon’s motion to suppress

argued the parole agreement was unenforceable under both the United

States and Iowa Constitutions, but Baldon did not urge a separate

interpretation of the search and seizure clause in the Iowa Constitution.

Not surprisingly, the trial court denied Baldon’s motion to suppress on

the authority of Samson and the court of appeals decision in Ochoa

(which had relied on Samson to uphold the parole search).           Given the

defendant’s failure to advance a separate state constitutional argument

against the enforceability of the consent, and Samson’s status as a

binding interpretation of federal constitutional law, the State presumably

believed that it did not need to make a separate “reasonableness” or

“special needs” argument below.

      Now our Ochoa decision and today’s decisions have changed the

landscape.    Baldon is being granted relief under a separate state

constitutional argument he never made below. Yet we deny to the State

the opportunity to go back to the district court and try to defend the

search under our remade case law. Why?

      It should be noted that Baldon himself does not object to our

considering whether the search of the car was justified based on the

presence of the parole officer or the existence of individualized suspicion.

To the contrary, he briefed those issues in his opening brief. He logically,

and I believe correctly, assumed those issues were still in play.
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For the foregoing reasons, I respectfully dissent.

Waterman, J., joins this dissent.
