                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1069
                              Filed October 1, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN MICHAEL SACCO,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



       John Sacco appeals from three convictions, asserting the evidence

leading to his arrest and convictions was obtained through an unlawful search

under article I, section 8 of the Iowa Constitution and under the Fourth

Amendment to the United States Constitution. REVERSED AND REMANDED.



       Aaron D. Hamrock of McCarthy & Hamrock, P.C., West Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John Sarcone, County Attorney, and Daniel C. Voogt, Assistant County

Attorney, for appellee.



       Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
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POTTERFIELD, P.J.

       John Sacco appeals from his convictions for possession of a controlled

substance with intent to deliver, possession of a controlled substance, and failure

to possess a tax stamp.      He asserts the evidence leading to his arrest and

convictions was obtained through an unlawful search under article I, section 8 of

the Iowa Constitution and under the Fourth Amendment to the United States

Constitution.

       I. Factual and Procedural Background

       Sacco was sentenced on an unrelated charge in 2011 and entered into a

probation agreement. One of the terms of his probation agreement stated, “I will

submit to a search of my person, property, residence, vehicle, or personal

effects, at any time with or without a search warrant or arrest warrant, if

reasonable suspicion exists, by a police officer or probation/parole officer.”

       In November 2012, Sacco’s probation officer received information from a

probation officer in another district suggesting Sacco may have been harboring a

parolee who had absconded. She received further information from that same

officer suggesting Sacco may have been involved in drug trafficking. Sacco’s

probation officer was not personally familiar with the informing officer, and the

source of the information provided was unknown to her.

       Pursuant to that information, Sacco’s probation officer sent a warrant team

to Sacco’s residence. The team consisted of two Polk County Sheriff’s deputies

and a supervisor from the probation office. No search warrant was requested for

the team’s search of Sacco’s house. Members of the team later explained they

believed no warrant was necessary due to Sacco’s status as a probationer and
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the terms of his probation agreement. Sacco did not refuse the team’s entrance

when they arrived, but he refused to sign a consent form for the search of his

residence.

       The team discovered drugs in the house, ultimately leading to the charges

and convictions at issue on this appeal. Sacco moved to suppress the evidence,

but the district court denied the relevant part of the motion. Sacco now appeals,

asserting the search violated both the federal and state constitutions.

       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).

       III. Discussion

       Sacco asserts article I, section 8 of the Iowa Constitution renders the

deputies’ search unlawful. Article I, section 8 provides:

       The right of the people to be secure in their persons, houses,
       papers and effects, against unreasonable seizures and searches
       shall not be violated; and no warrant shall issue but on probable
       cause, supported by oath or affirmation, particularly describing the
       place to be searched, and the persons and things to be seized.

Iowa Const. art. I, § 8.        The State asserts that the analogous federal

constitutional provision controls and urges us to rely on the United States

Supreme Court’s ruling in Griffin v. Wisconsin, 483 U.S. 868 (1987).

       Our supreme court recently had cause to revisit this precise issue in State

v. Short, 851 N.W.2d 474, No. 12-1150 (Iowa July 18, 2014).1 Our supreme


1
 We note that Short is applicable authority even though the decision was not published
until after both parties had submitted their briefs because Short “simply ‘clarifie[d]’
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court has now stated unequivocally that “under article I, section 8 [of the Iowa

Constitution], the warrant requirement has full applicability to home searches of

both probationers and parolees by law enforcement.” Short, slip op. at 57.2 The

court expressly rejected the argument that a probation agreement limits the

constitutional warrant requirement even if the agreement explicitly so provides.

Id. at 56.

       [I]t simply cannot be said that the government, by simply
       announcing that warrantless searches may occur, can eviscerate
       the right to be left alone inherent in article I, section 8. . . . If a
       government announcement that a citizen is no longer free from
       unwarranted home search overrode the requirements of article I,
       section    8,   citizen   protections    would     be    dramatically
       undermined. . . . While we recognize that the probation agreement
       [provides probationers] with notice that the State assert[s] the right
       to execute warrantless searches, we do not think notice eviscerates
       the warrant requirement for home searches.

Id.

       The protection the Iowa Constitution grants to probationers and parolees

is greater than that provided by the Fourth Amendment to the United States

Constitution. Id. at 60. “The United States Supreme Court . . . has engaged in

innovations that significantly reduce the protections of the Warrant Clause of the

Fourth Amendment. We decline to join the retreat under the Iowa Constitution.”

Id.



ambiguities in existing law,” and did not “overrule[] prior authoritative precedent on the
same substantive issue.” Goosman v. State, 764 N.W.2d 539, 544 (Iowa 2009).
Indeed, the court in Short noted specifically that it relied upon rather than overruled prior
case law to reach its conclusion. Short, slip op. at 60 (citing State v. Cullison, 173
N.W.2d 533 (Iowa 1970)). Under these circumstances, Short would apply retroactively
to Sacco’s claim on both direct and collateral review. Goosman, 764 N.W.2d at 544.
2
  Short is slated for publication in the North Western Reporter, but because publication is
in process and final page numbers are unavailable, we cite to its slip opinion page
numbers throughout.
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        The State asserts the legality of the search at issue here is “controlled by

Griffin.” In regard only to Sacco’s federal constitutional claim, we agree with the

State that the search was supported by sufficient information to satisfy the United

States Supreme Court’s lowered burden for searches of probationers and

parolees. Griffin, 483 U.S. at 879–80.

        However, because the Iowa Constitution provides superior protections for

probationers than does the federal constitution, the State’s reliance on Griffin

does not satisfy our state’s unique constitutional requirements.             The Iowa

Constitution required a warrant—and probable cause—for the search of Sacco’s

home.

        The district court’s reliance on State v. Ochoa, 792 N.W.2d 260, 290 (Iowa

2010), to admit evidence based loosely on the “special needs” doctrine is

outmoded by Short.3 See Short, slip op. at 46, 52. The “special needs” doctrine

is an element of the United States Supreme Court’s Fourth Amendment

jurisprudence and has no effect on the power of the Iowa Constitution. Id. at 52.

Our supreme court rejected this type of doctrine: “[S]ocio-juristic requirements to

evade the constitutional command of the need for a search warrant [are]

unacceptable.” Id. (citing State v. Cullison, 173 N.W.2d 533, 536 (Iowa 1970)).

        The district court’s argument that Sacco consented to the search is also

unpersuasive. Sacco refused to sign a consent form. Insofar as he did not deny

the officers admission to his home, the State cannot rely merely on his

acquiescence to the officers to establish consent. See Ochoa, 792 N.W.2d at

3
  The State appears to agree that reliance on Ochoa is not persuasive—it fails to assert
the district court’s bases as a good cause to affirm and instead relies on its own Fourth
Amendment argument asserted (but not ruled upon) below.
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292. This is especially true when “the claim of lawful authority . . . turns out to be

invalid.” Id. The officer’s inaccurate claim of authority based on the probation

agreement invalidated any hypothetical consent. See Short, slip op. at 56.

       Because the Iowa Constitution requires a valid warrant be issued before

searching a probationer’s home,4 the district court erred in admitting rather than

suppressing the evidence found as a result of the search. We therefore reverse

and remand for further proceedings consistent with this opinion.

       REVERSED AND REMANDED.




4
  The State suggests (but does not argue or cite legal authority for) an alternative claim
that the search in this case was not a “search,” but a mere home visit. This assertion is
belied by the State’s primary argument: that the deputies (i.e. law enforcement) and the
probation officer conducted a search that was justified. The facts of this case indicate
that a search and not a mere home visit occurred; the warrant team searched Sacco’s
home only pursuant to a tip that a fugitive or some drug-related evidence may be found
there. The search was not merely “supervision by probation officers pursuant to their
ordinary functions.” Short, slip op. at 60. Therefore the warrant requirement has full
effect on these facts. Id.
