              IN THE SUPREME COURT OF IOWA
                              No. 11–1208

                           Filed May 24, 2013


STATE OF IOWA,

      Appellee,

vs.

CHRISTINE ANN KERN,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Artis I. Reis,

Douglas F. Staskal, and Robert B. Hanson, Judges.



      The defendant appeals her conviction on narcotics charges by

challenging the search of her home and the sufficiency of the evidence.

REVERSED AND REMANDED.



      Christopher R. Kemp of Kemp Sease & Dyer, Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, Richard J. Bennett Sr. and

Kevin R. Cmelik, Assistant Attorneys General, John P. Sarcone, County

Attorney, and Joseph D. Crisp and Andrea M. Petrovich, Assistant

County Attorneys, for appellee.
                                    2

CADY, Chief Justice.

      In this appeal, we primarily consider the constitutionality of a

search of the home of a parolee that uncovered evidence used to

prosecute and convict the parolee of numerous drug offenses. In doing

so, we must determine if the search was justified by the doctrines of

consent, special needs, exigent circumstances, community caretaking, or

a general balancing of the governmental interests served by the search

against the privacy interest of the parolee.       We also consider the

sufficiency of the evidence to support the charges. On our review, we
find the search of the home and the seizure of the evidence violated

article I, section 8 of the Iowa Constitution. We reverse the judgment

and sentence of the district court and remand the case for further

proceedings.

      I. Background Facts and Proceedings.

      Christine Kern was a parolee living in Des Moines.         She was

granted parole on February 17, 2010, following a period of incarceration

for a conviction of operating a motor vehicle while intoxicated, third

offense. As a condition of parole, Kern signed a parole agreement. The

agreement contained numerous standard conditions of parole, including

paragraph P, which provided: “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.” Paragraph P is a standard condition

of parole in Iowa.

      On November 3, 2010, Staci Huisman, a child assessment worker

with the Iowa Department of Human Services (DHS), received an

anonymous complaint that marijuana was being grown and processed in

the house where Kern resided. The complaint also claimed marijuana
                                         3

was used and sold in the house, and these circumstances endangered

Kern’s   sixteen-year-old     daughter       and   her   infant   grandchild    who

occasionally stayed in the house. At the time, Kern lived in the home

with her boyfriend, Sean Grant.

       On November 5, 2010, Huisman investigated the complaint by

making a home visit with the assistance of two police officers. The police

routinely assist the DHS in their investigation of drug complaints in

order to protect the safety of the investigator. The police presence also

offers an opportunity for them to request consent to search the premise
for illegal substances.

       Huisman met narcotics police officers, Mark Chance and Matthew

Jenkins, near Kern’s residence, and they proceeded to the residence.

Kern responded to a knock on the door, and she allowed Huisman and

the officers to enter the home. Grant was also present. The officers felt

Grant purposely stood between them and the interior of the home to

prevent them from entering further into the home. Huisman explained

the nature of the complaint and asked for consent to search the

residence. Kern and Grant denied the allegations and denied consent to

search the residence.       Detective Jenkins believed the conduct of Kern

and Grant was “defensive.”

       Huisman explained she would need to remove the children from

the residence if she was unable to search the home. Kern still refused to

give consent. Huisman spoke with Kern’s daughter and explained the

situation and the allegations against Kern and Grant.1



       1About a week later, in a follow-up meeting, Kern’s daughter acknowledged that
Grant used marijuana and sold it to other people. However, she denied knowledge of
the grow operation.
                                   4

      Huisman then removed the children and left the residence with the

officers. After traveling a short distance, Huisman advised the officers

that Kern was a parolee. Jenkins called Sergeant Brandon Garvey of the

probation and parole office and asked him to assist in searching the

house pursuant to the standard consent provision of parole agreements.

      Garvey told Jenkins he was unable to immediately assist the law

enforcement officers, but verified Kern was on parole and that she had

signed a parole agreement containing the consent-search clause in

paragraph P. Garvey also gave Jenkins permission to conduct the search
on his behalf.

      Chance and Jenkins returned to Kern’s residence. Kern appeared

to be walking to her car as the officers arrived, but she returned to the

house when she saw the officers. The officers informed Kern and Grant

they intended to search the house because Kern was a parolee and had

consented to a search in her parole agreement.

      Jenkins remained with Kern and Grant while Chance began the

search.    Garvey, the parole officer, arrived shortly after the search

started.   In the basement, Chance found three separate marijuana

growing operations consisting of numerous marijuana plants. He then

accompanied Grant to a bedroom he shared with Kern.        The bedroom

contained guns, as well as marijuana. The marijuana was located in a

jar on a dresser and a jar on a bed stand. Marijuana was also found in

large quantities in the dining room. The dining room appeared to serve

as a place to dry marijuana. Plants were strewn about the room, and

two large glass jars of dried marijuana were in the room. More glass jars

of marijuana were located in a dresser in the living room.     Kern and

Grant were arrested. Grant immediately took full responsibility for the

marijuana operation and said Kern had nothing to do with it.
                                     5

      The State charged Kern with four crimes: (1) conspiracy to

manufacture a controlled substance in violation of Iowa Code section

124.401(1)(d) (2009), (2) manufacturing a controlled substance in

violation of Iowa Code section 124.401(1)(d), (3) possession of a

controlled substance with intent to deliver in violation of Iowa Code

section 124.401(1)(d), and (4) failure to possess a tax stamp in violation

of Iowa Code sections 453B.3 and 453B.12.

      Prior to trial, Kern joined Grant’s motion to suppress the

marijuana as evidence at trial. She argued it was obtained in violation of
her constitutional rights under the Fourth Amendment to the United

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

      In a hearing on the motion, Chance and Jenkins testified that

Kern’s refusal to grant permission to search her house suggested to them

that drugs were located in the house. The State argued Kern waived her

rights to object to the search by signing a parole agreement containing

paragraph P. The State also asserted the search was justified by several

recognized exceptions to the warrant clauses of the Fourth Amendment

and article I, section 8. The exceptions included exigent circumstances,

the community caretaking function of police officers, and the special

needs presented by the maintenance of a parole system.         Finally, the

State argued the search was reasonable under the totality of the

circumstances.

      The district court found Kern gave “advance consent to search her

property without a warrant or without reasonable cause” by signing the

parole agreement. Additionally, it upheld the search as reasonable based

on the DHS complaint combined with the police officer’s suspicion

derived from the conduct of Kern and Grant during the initial encounter.
                                       6

The   court   also   found   the    search   was   justified   under   exigent

circumstances and the community caretaking function.

      In a subsequent trial on the minutes of testimony, the district

court found Kern guilty of all four counts.        It imposed judgment and

sentence, and Kern appealed.

      II. Issues Presented.

      Kern raised two issues on appeal. First, she asserted there was

insufficient evidence to support a finding of guilt beyond a reasonable

doubt on each of the crimes charged. Second, Kern asserted the search
of her home was in violation of her constitutional search and seizure

rights under the Fourth Amendment of the United States Constitution

and article I, section 8 of the Iowa Constitution. To resolve this second

claim, we must unravel several threads of constitutional search and

seizure law, including waiver or consent, special needs, exigent

circumstances, community caretaking, and what has been termed the

“general balancing approach.”

      III. Sufficiency of the Evidence.

      A. Scope and Standard of Review. We first address whether the

State introduced sufficient evidence for a fact finder to find Kern guilty

beyond a reasonable doubt.         We address this issue first because the

Double Jeopardy Clause would not permit a retrial of the charges if there

was insufficient evidence of guilt presented at trial. State v. Dullard, 668

N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39,

109 S. Ct. 285, 290, 102 L. Ed. 2d 265, 272–73 (1988)).

      We review challenges to the sufficiency of the evidence presented at

trial for correction of errors of law. State v. Randle, 555 N.W.2d 666, 671

(Iowa 1996). The essential question before the court on a challenge to

sufficiency of the evidence is whether there was substantial evidence to
                                     7

support a guilty verdict beyond a reasonable doubt. State v. Torres, 495

N.W.2d 678, 681 (Iowa 1993).

      We view the evidence presented at trial in the light most favorable

to the State but consider all the evidence in the record, not just the

evidence favoring the State. Id. Moreover, “[t]he evidence must raise a

fair inference of guilt and do more than create speculation, suspicion, or

conjecture.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002).

      B. Discussion. Iowa Code section 124.401(1) makes it

      unlawful for any person to manufacture, deliver, or possess
      with the intent to manufacture or deliver, a controlled
      substance, a counterfeit substance, or a simulated
      controlled substance, or to act with, enter into a common
      scheme or design with, or conspire with one or more other
      persons to manufacture, deliver, or possess with the intent
      to manufacture or deliver a controlled substance, a
      counterfeit substance, or a simulated controlled substance.

While section 124.401(1) prohibits a variety of conduct, it essentially

defines one prohibition that can be violated in a number of ways. See

State v. Parrish, 502 N.W.2d 1, 3 (Iowa 1993) (discussing Iowa Code

section   204.401(1),   the   predecessor   of   Iowa’s   current   controlled

substance statute). We address each violation under the statute.

      1. Conspiracy to manufacture a controlled substance in violation of

Iowa Code section 124.401(1)(d).         Kern asserts the district court

erroneously found her guilty of conspiracy to manufacture a controlled

substance in violation of Iowa Code section 124.401(1)(d). See State v.

Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (discussing the relationship

between Iowa’s controlled substance statute, Iowa Code section 124.401,

and Iowa’s conspiracy statute, Iowa Code section 706.1).

      To convict Kern of conspiracy to manufacture a controlled

substance, the State was required to show:
                                     8
      (1) the defendant agreed with one or more persons that one
      or both of them would manufacture or attempt to
      manufacture [marijuana], (2) the defendant entered into
      such an agreement with the intent to promote or facilitate
      the manufacture of [marijuana], (3) one of the parties to the
      agreement committed an overt act to accomplish the
      manufacturing of [marijuana], and (4) the alleged
      coconspirator(s) was not a law enforcement agent or
      assisting law enforcement when the conspiracy began.

See State v. Fintel, 689 N.W.2d 95, 102 (Iowa 2004) (alterations added);

see also Iowa Code § 706.1 (defining the crime of conspiracy).

      Here, the evidence supported a finding that Grant engaged in an

overt act of growing marijuana in the home. Moreover, Grant was not a
law enforcement agent or assisting law enforcement. Thus, the fighting

issue is whether Kern formed an agreement that Grant would

manufacture marijuana and whether she formed such an agreement with

the intent to promote or facilitate the manufacture of marijuana. The

State was not required to show Kern manufactured marijuana, but that

she agreed Grant would manufacture marijuana. See State v. Casady,

597 N.W.2d 801, 807 (Iowa 1999); see also State v. Corsi, 686 N.W.2d

215, 220 (Iowa 2004); State v. Carlson, 203 Iowa 90, 93, 212 N.W. 312,

313 (1927).

      A conspiracy is essentially a criminal contract characterized “as a

‘concert of free wills,’ ‘union of the minds of at least two persons,’ and ‘a

mental confederation involving at least two persons.’ ”       Speicher, 625

N.W.2d at 741–42 (quoting State v. Boyer, 342 N.W.2d 497, 499 (Iowa

1984)).   Conspiracies are, by nature, clandestine affairs.      Corsi, 686

N.W.2d at 219.      Thus, direct evidence of an agreement to form a

conspiracy is often absent, and in response, we have consistently allowed

circumstantial evidence and inferences drawn from the circumstances to

support a conviction on a conspiracy charge. Id.; accord State v. Blyth,
                                      9

226 N.W.2d 250, 263 (Iowa 1975); Carlson, 203 Iowa at 93, 212 N.W. at

313. We have also said:

      “An agreement that, because of its purpose or the means
      contemplated, amounts to a conspiracy need not be formal
      or express, but may be a tacit understanding; the agreement
      may be inherent in and inferred from the circumstances,
      especially declarations, acts, and conduct of the alleged
      conspirators.”

State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (quoting 16 Am. Jur. 2d

Conspiracy § 10, at 204–05 (1998)).

      Circumstantial evidence of an agreement must be based on more

than suspicion. State v. Keyser, 257 Iowa 73, 79, 130 N.W.2d 701, 704

(1964). Similarly, “circumstantial evidence that proves mere presence at

the scene of the crime or association with those involved in the crime is

not sufficient to show an agreement.” Corsi, 686 N.W.2d at 219. Mere

presence or general association creates no more than “conjecture and

speculation” of criminal complicity. Speicher, 625 N.W.2d at 743.

      However, the central location of the manufacturing process can be

relevant to the element of an agreement. See Corsi, 686 N.W.2d at 220

(observing that defendant’s commission of drug manufacturing in a
codefendant’s apartment supports an inference that the defendant had

the apartment tenant’s permission to conduct the illegal activity, which

supports an inference that a conspiracy between them had been formed).

In Corsi, we implicitly acknowledged the existence of an important

inversion of our holding in Speicher that mere presence at the location of

a crime or mere association with criminals was insufficient for a finding

that the defendant formed an agreement. While the mere presence of a

person on someone else’s property where someone else is or has been

manufacturing a controlled substance supports only conjecture of
                                      10

participation in the conspiracy, permission given by a property owner for

others to maintain an obvious manufacturing operation throughout the

premises would be strongly suggestive of a tacit agreement, at the very

least. See id. at 220.

      Indeed, our decision in Fintel, which arose out of the same facts as

Corsi, is instructive here.     In Corsi, the defendant was prosecuted for

manufacturing a controlled substance in Fintel’s apartment. See id. at

219–20.   Thus, we contemplated in Fintel that a conspiracy could be

inferred in part because the defendant “knew methamphetamine was
being manufactured in his apartment” and the “defendant’s apartment

was   littered   with    the    necessary   ingredients    and   utensils   for

manufacturing methamphetamine.” Fintel, 689 N.W.2d at 102 (emphasis

added). While more inculpatory evidence was presented in Fintel than in

this case—and we did not pass on whether Fintel’s possession of the

apartment in which he knowingly allowed manufacturing of narcotic

substances was alone sufficient to find his participation in the

conspiracy—it was evident an agreement to manufacture controlled

substances inhered in the circumstances. See id. One person knowingly

permitted another to produce copious quantities of those substances on

premises the person occupied and controlled.         Id.   A fact finder was

permitted to draw these inferences.

      Here, a rational fact finder could have inferred a tacit agreement

between Kern and Grant. Even assuming Kern took no part in the actual

manufacture of marijuana, there was evidence to show Grant maintained

an extensive growing, drying, and selling operation throughout the home.

Marijuana plants were found in the basement. A marijuana drying room

existed on the main floor. Marijuana was found in jars in the bedroom

Kern and Grant shared.         Kern’s daughter told the DHS officer a week
                                      11

after the search that she was well aware of Grant’s narcotic use and

sales. She similarly informed the DHS officer that Kern was also aware

the marijuana was sold.

      Accordingly, we conclude the extensive presence of a marijuana

growing operation throughout the home and the obvious knowledge of

the operation constituted substantial evidence upon which a rational fact

finder could infer an agreement between the two occupants of the home

wherein one occupant would promote or facilitate the other in the

manufacture of a controlled substance by allowing the operation to take
place in the residence. The operation was so extensive that Kern literally

lived with the manufacturing process. Additionally, Grant needed cover

to operate the illegal enterprise, and Kern provided that cover by

permitting the residence to be used to manufacture marijuana. Our law

only requires the existence of a tacit understanding to support a

conspiracy,   and   this   evidence   was   sufficient   to   infer   such   an

understanding. We stress that mere knowledge by an owner or renter of

a premise that a controlled substance is manufactured on their premises

does not make an agreement. Rather, we simply hold that a fact finder

relying on the evidence in this case could rationally find beyond a

reasonable doubt that Kern intended to promote or facilitate the

manufacturing of marijuana.

      2. Possession of a controlled substance with intent to deliver in

violation of Iowa Code section 124.401(1)(d).     Kern was found guilty of

possession of a controlled substance with intent to deliver. She argues

insufficient evidence was presented to support a finding by the district

court that she possessed the marijuana. We agree.

      Under the statute, the State must prove the accused “ ‘exercised

dominion and control over the contraband, had knowledge of the
                                     12

contraband’s presence, and had knowledge the material was a narcotic.’ ”

State v. Dewitt, 811 N.W.2d 460, 474 (Iowa 2012) (quoting State v.

Maxwell, 743 N.W.2d 185, 193 (Iowa 2008)). “The location in which the

substance is found guides our determination of possession.”                Id.

Because no marijuana was found on Kern’s person, she was not in

actual possession of the marijuana.        See id.     Accordingly, we must

consider     whether   there   was   sufficient   evidence   of   constructive

possession. See id.

      To prove constructive possession, the State must show “the
defendant had knowledge of the controlled substance as well as the

authority or right to control it.” Id. Our seminal constructive possession

case is State v. Reeves, 209 N.W.2d 18 (Iowa 1973). In Reeves, we said:

             If the premises on which such substances are found
      are in the exclusive possession of the accused, knowledge of
      their presence on such premises coupled with his ability to
      maintain control over such substances may be inferred.
      Although no further proof of knowledge by the State is
      required in cases of exclusive possession by the accused the
      inference of knowledge is rebuttable and not conclusive. But
      where the accused has not been in exclusive possession of
      the premises but only in joint possession, knowledge of the
      presence of the substances on the premises and the ability
      to maintain control over them by the accused will not be
      inferred but must be established by proof.

Id. at 23.

      Thus, constructive possession involves inferences.          Yet, our law

does not permit an inference to be drawn based only on the presence of

drugs found in a jointly occupied premise, as opposed to the exclusive

occupancy of a premises.       See id.   More proof is needed to draw the

constructive possession inference. In addition to proof of immediate and

exclusive possession of the place where drugs are found on a premises,

we identified the nature of this additional proof as
                                    13
      (1) incriminating   statements     made    by     a    person;
      (2) incriminating actions of the person upon the police’s
      discovery of a controlled substance among or near the
      person’s personal belongings; (3) the person’s fingerprints on
      the packages containing the controlled substance; and
      (4) any other circumstances linking the person to the
      controlled substance.

Maxwell, 743 N.W.2d at 194.

      In this case, only the fourth factor is implicated. We must decide if

the presence of a vast marijuana growing operation in plain view

throughout the home was enough additional proof to draw an inference

of constructive possession of the marijuana found in a jointly occupied

house.

      We return to the basic meaning of dominion and control to answer

this question.    In the absence of actual possession, constructive

possession requires the person to maintain control over the drugs or

have the right to control the drugs. See Reeves, 209 N.W.2d at 23. This

standard focuses on the “ability to maintain control.” Id. When the facts

only show joint dominion and control over a premises, however, it is

unfair to impute control over the drugs without more proof, such as

immediate and exclusive access to the place where the drugs were found

in the jointly occupied premises.

      The broad rationale behind this approach involves a balance

between two competing considerations.      State v. Simpson, 528 N.W.2d

627, 636 (1995) (Ternus, J., dissenting). Convictions for possession of

drugs should be possible under the law, even though the defendant is

not caught “red-handed,” but innocent bystanders in the wrong place at

the wrong time must be protected from a conviction. Id. Our guideposts

governing joint occupancy strike this balance. Id. Here, the question is

whether the vast nature of the drug operation within the house was
                                     14

enough additional proof to provide an inference that Kern maintained

dominion and control over the marijuana.

      In this case, there was no evidence that Kern was more than an

agreeable bystander to a vast operation she permitted to take place. An

inference that Kern conspired with Grant for him to use the house to

grow and process marijuana cannot be extended to also support an

inference that Kern exercised dominion and control over the marijuana,

without some evidence pointing to dominion and control.      Conspiracy

and possession are independent concepts. Without more evidence than
the presence of the marijuana operation, an inference of dominion and

control would only be based on the presence of the marijuana in the

house. Our long-standing rule does not permit an inference of dominion

and control based only on the presence of drugs in a jointly occupied

premises.    Reeves, 209 N.W.2d at 23.      Thus, there was insufficient

evidence presented at trial that Kern possessed marijuana.

      3. Manufacturing a controlled substance in violation of Iowa Code

section 124.401(1)(d).   The district court also found Kern guilty of

manufacturing a controlled substance. She argues there was insufficient

evidence to support this count. We agree.

      The district court relied on Kern’s knowledge of the manufacturing

operation in her home to infer she manufactured the marijuana.

However, the Iowa Code contemplates manufacturing as an active

concept, requiring more than the mere passive knowledge of the

defendant.   It requires proof of an affirmative act of manufacturing,

which the State failed to produce.

      “Manufacture” is defined in chapter 124 of the Iowa Code as

      the production, preparation, propagation, compounding,
      conversion, or processing of a controlled substance, either
                                    15
      directly or by extraction from substances of natural origin, or
      independently by means of chemical synthesis, or by a
      combination of extraction and chemical synthesis, and
      includes any packaging or repackaging of the substance or
      labeling or relabeling of its container . . . .

Iowa Code § 124.101(18).        This language suggests manufacturing

involves affirmative acts or an activity.   This concept is reinforced by

considering that the separate criminal offense of manufacturing

methamphetamine in the presence of a minor specifically refers to

manufacturing as an “activity.”     Id. § 124.401C(2).   “Activity” in this

context means “an occupation, pursuit, or recreation in which a person

is active.”   Webster’s Third New International Dictionary 22 (unabr. ed.

2002).

      Two cases augment this view.          In Casady, we observed that

manufacturing a controlled substance and conspiring to manufacture a

controlled substance represent two alternative ways to violate section

124.401(1). 597 N.W.2d at 807. We said,

      [t]he first alternative means of violating the statute is the
      actual manufacture of drugs, but the second alternative
      includes a conspiracy to manufacture it.         Contrary to
      Casady’s argument, it is not necessary for the State to prove
      the second alternative by also proving the first. While the
      State must show an overt act toward the accomplishment of
      the conspiracy, it did not have to prove the completed act.

Id. (citations omitted). In State v. Royer, we held that a defendant could

not be convicted of manufacturing a controlled substance without

actually producing the threshold amount of a controlled substance. 632

N.W.2d 905, 909 (Iowa 2001).        Implicit in this conclusion was the

assumption that manufacturing requires evidence the defendant was

actually engaged in one of the productive activities listed in section

124.101(18). See id.
                                     16

      We acknowledge our court of appeals has held that a conviction for

manufacturing a controlled substance can be based on evidence that the

defendant “was able to claim immediate dominion over the process, or

maintained or shared exclusive dominion over the process.”          State v.

Spivie, 581 N.W.2d 205, 208 (Iowa Ct. App. 1998). However, Spivie was

predicated on Rudd, and its progeny, which permitted an inference of

dominion and control based on shared, exclusive dominion. See State v.

Rudd, 454 N.W.2d 570, 571 (Iowa 1990).         In Webb, we overruled our

holding in Rudd to the extent that its pronouncements concerning
constructive possession were contrary to our constructive-possession

principles set out in Reeves. Webb, 648 N.W.2d at 79. Thus, Spivie is

no longer good law to the extent that its holding would apply to jointly

occupied premises. Instead, Webb instructs that joint possession of a

premises where the manufacturing of a controlled substance occurs

would not alone support an inference that a joint occupant participated

in the manufacturing of the controlled substance. Id.

      Accordingly, there was insufficient evidence to support Kern’s

conviction for manufacturing a controlled substance in violation of

section 124.401(1). The State failed to produce evidence to show Kern

engaged in an affirmative act of manufacturing.

      4. Failure to possess a tax stamp in violation of Iowa Code sections

453B.3 and 453B.12.      The crime of failure to affix a drug tax stamp

requires a drug dealer to possess, distribute, or offer to sell a taxable

substance.   Iowa Code § 453B.3.      The State prosecuted Kern for this

crime based on its claim that she possessed the marijuana found in the

house.   Having found insufficient evidence of possession, we also find

insufficient evidence to support a conviction for failing to affix a drug tax

stamp.
                                             17

      5. Disposition.        The conviction for conspiracy was supported by

sufficient evidence at trial, while the remaining convictions were not

supported by substantial evidence.                These three convictions must be

dismissed. Thus, we proceed to consider the claim asserted by Kern that

the marijuana and other evidence was illegally seized and should have

been suppressed at trial. Because we ultimately agree with Kern that the

search of her home violated article I, section 8 of the Iowa Constitution,

trial on remand must be limited to the charge of conspiracy.

      IV. Constitutionality of the Search of Kern’s Home.
      A. Scope and Standard of Review.                    Kern argues the search of

her home violated the guarantees of the Fourth Amendment of the United

States Constitution2 and article I, section 8 of the Iowa Constitution.3

The State argues the search can be justified because Kern prospectively

consented to warrantless, suspicionless searches by parole or other law

enforcement officers when she signed a parole agreement containing a

provision that purportedly granted consent to conduct such searches. In

the alternative, the State argues that a special need exists justifying

departure from the warrant and probable cause requirements of the

Fourth Amendment and article I, section 8. The State also argues that


      2The   Fourth Amendment of the United States Constitution provides:
              The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures, shall
      not be violated, and no Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly describing the place
      to be searched, and the persons or things to be seized.
      3Article   I, section 8 of the Iowa Constitution provides:
              The right of the people to be secure in their persons, houses,
      papers and effects, against unreasonable seizures and searches shall not
      be violated; and no warrant shall issue but on probable cause, supported
      by oath or affirmation, particularly describing the place to be searched,
      and the persons and things to be seized.
                                     18

exigent circumstances and the community caretaking function of police

officers justified the search.   Finally, the State argues that the search

should be held reasonable under the totality of the circumstances using

a generalized balancing test.

        “We review claims the district court failed to suppress evidence

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

Dewitt, 811 N.W.2d at 467.       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 (Iowa 2011)).    “ ‘Each case must be evaluated in light of its

unique circumstances.’ ” Id. at 272 (quoting Krogmann, 804 N.W.2d at

523).

        Kern brings her claim under both the Fourth Amendment of the

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

Constitution.    When presented with a claim arising out of both the

Fourth Amendment and article I, section 8, we consider the state claim

independent from the federal claim. State v. Pals, 805 N.W.2d 767, 771

(Iowa 2011). This can be done in either order or even simultaneously.

Id. at 772.     In this case, we answer the question under our state

constitution.

        B. Merits. “We employ a two-step approach to determine whether

there has been a violation of . . . article I, section 8 of the Iowa

Constitution.” State v. Lowe, 812 N.W.2d 554, 567 (Iowa 2012). First,

the defendant must show he or she has “a legitimate expectation of

privacy in the area searched.”     Id.    Second, if so, we must determine

whether the defendant’s rights were violated. Id.
                                   19

      As we have recounted in other cases, the Fourth Amendment and

article I, section 8 create a substantial expectation of privacy in the

home. State v. Brooks, 760 N.W.2d 197, 204 (Iowa 2009). Given that

warrantless invasion of the home was the “chief evil” the Fourth

Amendment and article I, section 8 each sought to address, see State v.

Reinier, 628 N.W.2d 460, 464 (Iowa 2001) (citing United States v. United

States Dist. Ct., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d

752, 764 (1972)); see also State v. Ochoa, 792 N.W.2d 260, 267, 277,

284–85 (Iowa 2010), it stands to reason that Iowans hold a significant
and legitimate expectation of privacy in their homes. This fact of Iowa

constitutional law is underscored by our piquantly stated and stirring

explanation of the right a century ago in McClurg v. Brenton:

      The right of the citizen to occupy and enjoy his home,
      however mean or humble, free from arbitrary invasion and
      search, has for centuries been protected with the most
      solicitous care by every court in the English-speaking world,
      from Magna Charta down to the present, and is embodied in
      every bill of rights defining the limits of governmental power
      in our own republic.
             The mere fact that a man is an officer, whether of high
      or low degree, gives him no more right than is possessed by
      the ordinary private citizen to break in upon the privacy of a
      home and subject its occupants to the indignity of a search
      for the evidences of crime, without a legal warrant procured
      for that purpose. No amount of incriminating evidence,
      whatever its source, will supply the place of such warrant.
      At the closed door of the home, be it palace or hovel, even
      bloodhounds must wait till the law, by authoritative process,
      bids it open.

123 Iowa 368, 371–72, 98 N.W. 881, 882 (1904).

      Under the Supreme Court’s Fourth Amendment jurisprudence,

parolees have little or no reasonable expectation of privacy. See Samson

v. California, 547 U.S. 843, 852, 126 S. Ct. 2193, 2199, 165 L. Ed. 2d

250, 259 (2006) (“[W]e conclude that petitioner did not have an
                                   20

expectation of privacy that society would recognize as legitimate.”); cf.

United States v. Knights, 534 U.S. 112, 121, 122 S. Ct. 587, 592, 151

L. Ed. 2d 497, 506 (2001) (holding probationer had a diminished

expectation of privacy). As such, parolees effectively cannot challenge a

search of their home, person, vehicle, or effects. See Samson, 547 U.S.

at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259. Yet, we have held that

the Iowa Constitution projects a different view that vests parolees with

the expectation of privacy enjoyed by persons not convicted of crimes and

allows them to object to a search of their home or person. See State v.
Cullison, 173 N.W.2d 533, 537–38 (Iowa 1970); see also Ochoa, 792

N.W.2d at 291. Accordingly, Kern may seek suppression of the evidence

obtained during the search of her home.

      Thus, we proceed to consider the constitutionality of the search of

her home. See Lowe, 812 N.W.2d at 567–68. This is a broad question,

and it implicates several doctrines of constitutional search and seizure

law. We address them in turn.

      1. Consent.   The State argues Kern prospectively consented to

warrantless searches by signing a parole agreement containing a

consent-to-search provision. Essentially, the State argues Kern and the

State entered into a contract that establishes consent under Schneckloth

v. Bustamonte, 412 U.S. 218, 227–28, 93 S. Ct. 2041, 2047–48, 36

L. Ed. 2d 854, 863 (1973), and 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 State v. Baldon, 829 N.W.2d 785, 802–03 (Iowa 2013), we

rejected this argument and held that a consent-to-search provision in a

parole agreement did not establish consent to search. Accordingly, we
                                          21

conclude paragraph P of Kern’s parole agreement did not justify the

search of Kern’s home.

       2. Special needs. The State asserts the search of Kern’s home was

justified because Iowa’s maintenance of a parole system presents

“exceptional circumstances in which special needs, beyond the normal

need for law enforcement, make the warrant and probable-cause

requirement impracticable.”         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); cf. Griffin v. Wisconsin, 483 U.S. 868, 875–76, 107 S. Ct.
3164, 3169, 97 L. Ed. 2d 709, 718–19 (1987) (holding that Wisconsin’s

maintenance of a probation system constitutes a special need, justifying

departure from the ordinary warrant and probable cause requirements of

the Fourth Amendment). Kern replies that under Cullison and Ochoa the

search violated article I, section 8 of the Iowa Constitution. See Ochoa,

792 N.W.2d at 290–91; Cullison, 173 N.W.2d at 536–37. We therefore

turn to consider whether the maintenance of a parole system in Iowa

constitutes such a special need justifying a departure from Cullison.

       a. Fundamental concepts of special-needs searches as developed

by the United States Supreme Court under the Fourth Amendment.

Although we have never recognized the special-needs doctrine under

article I, section 8 in the context of parolees, the United States Supreme

Court has articulated a core consideration for analyzing special-needs

searches under the Fourth Amendment.4 See Camara v. Mun. Ct., 387

       4We   applied the special-needs doctrine in the school-search context in State v.
Jones, 666 N.W.2d 142, 145–50 (Iowa 2003). In that case, a student contested the
search of his locker under both the Fourth Amendment and article I, section 8. Id. at
144. Before proceeding to analyze the facts of the case, we said, “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.” ’ ” Id. at 145 (quoting State v.
Breuer, 577 N.W.2d 41, 44 (Iowa 1998)). Jones featured no independent analysis of the
                                          22

U.S. 523, 533, 87 S. Ct. 1727, 1733, 18 L. Ed. 2d 930, 938 (1967). The

nub of Camara’s rationale is that the propriety of a departure from the

warrant and probable cause requirements for certain types of searches

depends on whether demanding compliance with those requirements is

“likely to frustrate the governmental purpose behind the search.”                    Id.

The question ultimately boils down to whether the policy interest served

by the search would be totally lost if the warrant and probable cause

requirements could not be modified. See id. Indeed, a court considering

whether to recognize a special need in a particular circumstance must
determine something exceptional exists in the situation, which at least

renders the warrant infeasible. See T.L.O., 469 U.S. at 356, 105 S. Ct. at

750, 83 L. Ed. 2d at 744 (Brennan, J., concurring in part and dissenting

in part). Therefore, for example, the Camara Court’s balancing revealed

that particularized suspicion was unnecessary in the municipal fire code

context because “the only effective way to seek universal compliance

with the minimum standards required by municipal codes is through

routine periodic inspections of all structures.” Camara, 387 U.S. at 535–

36, 87 S. Ct. at 1734, 18 L. Ed. 2d at 939 (emphasis added). In contrast,

warrants showing authority to enter a home remained indispensable

because the government interest could still be served within the confines



_____________________
Iowa Constitution and did not examine why any particular search would implicate
“ ‘special needs, beyond the normal need for law enforcement, mak[ing] the warrant and
probable-cause requirement impracticable.’ ” See id. at 145–47 & n.2 (quoting Bd. of
Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 829, 122 S. Ct. 2559, 2564, 153
L. Ed. 2d 735, 744 (2002)). In fact, our discussion of the special-needs doctrine was
limited to an examination of what the United States Supreme Court had said on the
subject. See id. at 145 & n.2. In any event, we certainly have not recognized the
special-needs doctrine in the parole-search context. See Ochoa, 792 N.W.2d at 291
(“We have no occasion to consider . . . the potential application of special needs to
searches of parolees conducted by parole officers . . . .”).
                                       23

of the warrant process. Id. at 533, 87 S. Ct. at 1733, 18 L. Ed. 2d at

938.

       b. Iowa Supreme Court cases dealing with searches of parolees and

probationers under article I, section 8 of the Iowa Constitution. We first

considered searches of parolees in Cullison, in which a parole officer

named Holmes went to the home of a parolee named Teeters after he did

not show up for work. 173 N.W.2d at 534. After Teeters allowed Holmes

in the messy apartment strewn with beer cans, Holmes asked to inspect

a locked room, but Teeters refused. Id. at 534–35. Holmes obtained a
master key but was still unable to open the door.              Id. at 535.     When

Teeters became nervous and displayed a knife, Holmes left the apartment

and returned later with the police chief.         Id.   An ensuing warrantless

search of the locked room revealed stolen merchandise. Id.

       Evaluating the case, we rejected theories of parole that diluted or

stripped a parolee’s constitutional search and seizure protections. Id. at

536–38.    We observed these theories were based on an unpersuasive

“socio-juristic   rationalization,   i.e.,   protection   of    the   public    and

constructive custody.”      Id. at 536.      We noted that, under article II,

section 5 of the Iowa Constitution, a convicted person loses only the right

to vote or hold office. Id. at 537. Accordingly, we concluded a parolee

maintains search and seizure rights under the Iowa Constitution.                 Id.

Bolstering this view, we cited Camara to stress that the determination of

those situations that support a search must be made by a neutral

magistrate and must be represented by a warrant. Id. at 538.

       Interestingly, the parole officer in Cullison was engaged in a type of

parole supervision, often contemplated to be within the context of the

special-needs doctrine today, at least at the outset of the case. See id. at

534; cf. Griffin, 483 U.S. at 875, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718.
                                    24

Dissents from Justices Larson and Stuart argued that the operation of a

parole system and the need to carry out the duties of a parole officer

justified the search.   See Cullison, 173 N.W.2d at 542–44 (Larson, J.,

dissenting); id. at 544 (Stuart, J., dissenting).      Accordingly, these

dissents seem to be grounded on a special need for parole officers to

conduct warrantless searches. Justice Larson argued the parole system

renders parole searches different from police searches: it gives parole

officers the authority to supervise the parolee, and the parole officer’s

special status makes searches of parolees reasonable that would be
unreasonable if conducted in relation to a person not on parole. Id. at

542–44 (Larson, J., dissenting). Because Holmes had a reasonable belief

Teeters was violating parole, the dissent concluded the search was

acceptable. Id. at 544. Justice Stuart’s dissent argued that searches of

parolees present an exception to the warrant requirement. Id. (Stuart,

J., dissenting).

      Impliedly answering the dissent, our majority in Cullison stated

something germane to the resolution of this case: “[T]he fact that a

criminal accused is also a parolee should not, as to a new and separate

crime, destroy or diminish constitutional safeguards afforded all people.

If convicted, the sentence will be in addition to that previously imposed.”

Id. at 538. As we strive to remain faithful to more than forty years of

Iowa precedent, we acknowledge that we rejected the notion that parole

supervision could justify a later, full-scale search for evidence of a new

crime.

      We recently renewed our consideration of searches of parolees in

Ochoa, where a police officer searched a parolee and his motel room

solely on the basis of Ochoa’s parolee status. 792 N.W.2d at 262–63. We

held the search of Ochoa and his motel room was unreasonable,
                                       25

specifying that parolee status cannot alone provide the basis for a full-

scale search. Id. at 291. In doing so, we rejected at least one recent case

from the United States Supreme Court, Samson, which effectively

rendered nugatory any constitutional search and seizure protections

enjoyed by probationers and parolees. Ochoa, 792 N.W.2d at 291; see

also Samson, 547 U.S. at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259.

Yet, the case did not present an opportunity to specifically consider

whether Iowa’s parole system presented a special need to conduct a

search without a warrant or probable cause. Ochoa, 792 N.W.2d at 286.
But, later in the opinion, we stressed that any special-need exception

under article I, section 8 would be limited. Id. at 288–89.

      The concurring opinion in Ochoa discussed special-needs searches

and suggested the limitation maintained in the majority opinion is

accomplished by the link between the asserted special need in the

parolee context and the rationale supporting special-needs searches

generally.    Id. at 294–95 (Cady, J., concurring specially).               While

legitimate reasons exist for maintaining intensive supervision of parolees,

it was observed that searches could only be legitimate when performed

by a parole officer in the context of the parole mission.          Id. at 294.

Neither the reasons attached to the parole mission nor the identity of the

search agent are sufficient alone to justify the search; rather, it is the

“confluence” of these two facts that would create a valid special need. Id.

      c. Academic commentary. Some academic commentary has been

favorable    to   applying   the   special-needs   theory   to   parolees    and

probationers. Indeed, while older theories such as the “act of grace” and

“waiver” theories of parole have been rejected as unsound, commentators

tend to agree with the states that hold parolees have a reduced

expectation of privacy, thereby making certain intrusions on parolee
                                   26

privacy reasonable that would be unreasonable if directed at an ordinary

person. 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 10.10(c), at 533 (2012) [hereinafter LaFave].              Other

commentators disagree, however, and argue that, while compelling

governmental interests may justify some particular intrusions in a

special-needs context, generally undervaluing the parolee’s privacy

interests is inappropriate. Antoine McNamara, Note, The “Special Needs”

of Prison, Probation, and Parole, 82 N.Y.U. L. Rev. 209, 243–46 (2007)

[hereinafter McNamara].     These commentators argue that, like the
municipal safety inspections at issue in Camara, the “only effective way”

to ensure the rehabilitation of parolees and probationers is through a

supervision regime that is not fully commensurate with ordinary

constitutional search and seizure protections.      Id. at 244; see also

Welsh S. White,   The   Fourth   Amendment    Rights   of   Parolees    and

Probationers, 31 U. Pitt. L. Rev. 167, 183–84 (1969) [hereinafter White];

William J. Stuntz, Implicit Bargains, Government Power, and the Fourth

Amendment, 44 Stan. L. Rev. 553, 580–81 (1992); 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, 831–35 (1976) [hereinafter Note].

      At least one commentator has pointed out that widespread use of

warrantless and suspicionless searches of parolees irresponsibly invades

not only the rights of parolees, but their families as well. See Note, 51

N.Y.U. L. Rev. at 816–17. As the commentator 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
                                         27
      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. (footnotes omitted) (quoting People v. Mason, 488 P.2d 630, 637 (Cal.

1971) (Peters, J., dissenting)).       Moreover, as observed, these searches

may impede the parolee’s rehabilitative progress and development of a

trusting relationship with their parole officer, particularly because the

parolee is subjected to these searches in the presence of their family. Id.

Even worse, these searches may ultimately encourage the families of

parolees to turn out their reforming relatives at a time when the bonds of

family are precisely what a reforming citizen needs. Id.

      Some commentators disagree, not with the application of the

special-needs doctrine to parolees and probationers, but with the scope

of searches considered acceptable under its rubric.               See White, 31 U.

Pitt. L. Rev. at 186–99. Thus, while increased use of frisks, drug tests,

and house visits might be justifiable under a special-needs theory, full-

scale searches—whether conducted by parole officers or general law

enforcement officers—are not.5          Id.   Stated differently: “If a parole or


      5Justice   Blackmun advanced a similar argument in his Griffin dissent. See
Griffin, 483 U.S. at 881, 107 S. Ct. at 3172, 97 L. Ed. 2d at 722 (Blackmun, J.,
dissenting). Justice Blackmun’s principled view of special-needs searches forms the
basis of his argument:
      “[O]nly when the practical realities of a particular situation suggest that
      a government official cannot obtain a warrant based upon probable
      cause without sacrificing the ultimate goals to which a search would
      contribute, does the Court turn to a ‘balancing’ test to formulate a
      standard of reasonableness for this context.”
                                           28

probation search does not further rehabilitation, then its sole purpose is

law enforcement, and it cannot qualify for the special needs exception.”

McNamara, 82 N.Y.U. L. Rev. at 244.

       Professor White argued that parole officers will have somewhat

greater leeway to search a parolee’s home than an ordinary citizen’s

because some behavior of the parolee—such as drinking or changing

residence without first obtaining approval from the parole officer—is

prohibited by the parole agreement. White, 31 U. Pitt. L. Rev. at 196.

Nonetheless, even in these situations, White would require the parole
officer to obtain a warrant based on probable cause from a neutral

judicial officer.    Id. at 195–97.       White thus disagrees with the Griffin

Court, arguing that a neutral magistrate is in a better position to

accommodate the rights of parolees and the concerns of the public. Id.

at 196–97. The uncontrolled discretion of the parole officer is as much of

a subject of legitimate worry as the uncontrolled discretion of general law

enforcement officers. See id. LaFave has reflected favorably upon the

balance struck by White. See 5 LaFave at 536–38.

       Finally, some commentary has attacked the very concept of

special-needs searches.         For instance, it has been suggested that the

_____________________
See id. (quoting O’Connor v. Ortega, 480 U.S. 709, 741, 107 S. Ct. 1492, 1511, 94
L. Ed. 2d 714, 738 (1987) (Blackmun, J., dissenting)). In Justice Blackmun’s view,
while probation presents special needs, it did not do so uniformly. See id. at 883–84,
107 S. Ct. at 3173–74, 97 L. Ed. 2d at 723–24. An “ordinary home visit” to check in on
the progress of the probationer’s rehabilitation presents a special need justifying an
alternative to the warrant requirement, but a full-scale search for evidence in a criminal
investigation would not. See id. Furthermore, full-scale criminal searches may not
promote a close relationship between the probation officer and the probationer and may
in fact inhibit the development of the relationship. See id. at 886, 107 S. Ct. at 3175,
97 L. Ed. 2d at 725–26. Of course, the warrant requirement does not frustrate the valid
purposes of parole searches in all circumstances in which case the special-needs
doctrine should be unavailable altogether. See cf. at 883–84, 107 S. Ct. at 3173–74, 97
L. Ed. 2d at 723–24.
                                     29

special-needs doctrine developed by the United States Supreme Court in

Camara and Terry v. Ohio, 392 U.S.1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968), is unworkable.      See Scott E. Sunby, A Return to Fourth

Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn.

L. Rev. 383, 406–14 (1988).     This line of thinking suggests that the

probable cause requirement should be enforced through recognizing a

distinction between initiatory and responsive searches and that a strict

scrutiny standard should be applied to warrantless initiatory searches.

See id. at 425–27, 436–38, 442–45.
      d. Determination of the validity of the search of Kern’s home under

article I, section 8 of the Iowa Constitution. While the landscape of the

special-needs doctrine as articulated by the United States Supreme

Court under the Fourth Amendment has been expanded considerably

since our decision in Cullison, it is unnecessary for us to specifically

decide today whether the doctrine is viable in the context of parole under

the Iowa Constitution.   First, the need for new legal doctrines is best

considered when facts exist in a case to support an application of the

doctrine in a way that reveals its purpose and rationale. Second, it is

often helpful to adopt legal doctrines when experts and others in a

particular field of study have provided testimony and evidence in the

case of the practical need for the doctrine and the particulars of its

operation.

      But, even if we were to recognize the existence of a special-needs

exception in the context of parole under the Iowa Constitution, we

reiterate that an obvious limitation would be for the doctrine to apply to

searches conducted by parole officers consistent with the parole mission.

See Ochoa, 792 N.W.2d at 286. This limitation has nothing to do with

the presence of police necessary to protect the safety of a parole officer
                                    30

during a search, but with police presence that shifts the purpose of the

search from the goals of parole that support the special need to search to

the goals of general law enforcement.         See id.    This limitation is

consistent with the general contours of the doctrine developed by courts

in other jurisdictions and would be consistent with our limited

consideration of the doctrine.     See, e.g., United States v. Consuelo-

Gonzalez, 521 F.2d 259, 266 (9th Cir. 1975) (rejecting a search of a

probationer’s home conducted by general law enforcement officers

because whatever “special and unique” interest probation officers have
“does not extend to law enforcement officers generally”); United States v.

Hallman, 365 F.2d 289, 292 (3d Cir. 1966) (“The veil afforded by

Provenzano’s position as Hallman’s parole officer cannot here serve as a

shield against what was plainly the action of the arresting officers to

effect an illegal search.”); Ochoa, 792 N.W.2d at 286, 288–89.           The

special-needs doctrine simply cannot be used by police to make an end-

run around the constitutional protections otherwise available to parolees.

See Ochoa, 792 N.W.2d at 286, 291 (declining to consider whether the

special-needs doctrine applied to a search by a police officer and holding

police cannot search a parolee based on status alone); Cullison, 173

N.W.2d at 537 (holding parolee’s constitutional search and seizure rights

are not diluted by the fact of being on parole).         By any approach

consistent with our foundational caselaw, the doctrine would require that

the search by a parole officer be designed to fit the special needs of

parole officers that would justify an intrusion into the house without

probable cause or a warrant. See Ochoa, 792 N.W.2d at 294–95 (Cady,

J., concurring specially).

      In this case, the search failed to fit the special-needs rubric for two

reasons. First, the search was significantly entangled with a larger law
                                           31

enforcement operation and primarily served general law enforcement

goals, suggesting the special-needs rationale should not be available at

all.6 See Ferguson v. City of Charleston, 532 U.S. 67, 79 & n.15, 121

       6On   appeal, the State also argues a balancing of Kern’s reasonable expectation
of privacy and the State’s interest in either crime prevention or parole supervision
allows her home to be searched with only reasonable suspicion; a result the United
States Supreme Court has reached both in the special-needs context, see Griffin, 483
U.S. at 875–76, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718–19 (holding that Wisconsin’s
maintenance of a probation system constitutes a special need, justifying departure from
the ordinary warrant and probable cause requirement of the Fourth Amendment), and
the general law enforcement context, see Knights, 534 U.S. at 121, 122 S. Ct. at 592,
151 L. Ed. 2d at 506 (holding a Fourth Amendment balancing test permitted a
warrantless search of a probationer’s home based on reasonable suspicion). The State
bases its argument on language in Ochoa. See 792 N.W.2d at 291 (“We have no
occasion to consider . . . the potential application of special needs to searches of
parolees conducted by parole officers [or] whether individualized suspicion amounting to
less than probable cause may be sufficient in some contexts to support a focused
search . . . .”). Kern replies that we actually rejected not just Samson’s results
(permitting warrantless, suspicionless searches of parolees) but also the generalized
balancing approach it employed to achieve those results.
        The generalized balancing test employed in Knights appears to be very similar, if
not identical, to the one employed in Griffin after determining a special need exists.
Compare Knights, 534 U.S. at 119–21, 122 S. Ct. at 591–92, 151 L. Ed. 2d at 505–07,
with Griffin, 483 U.S. at 875–76, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718–19; see also
T.L.O., 469 U.S. at 351, 105 S. Ct. at 747, 83 L. Ed. 2d at 740 (Blackmun, J.,
concurring) (writing separately because the majority’s opinion engaging in a balancing
test “omits a crucial step in its analysis”). Knights itself appears to draw a close link
between the application of the special-needs and generalized reasonableness doctrines,
yet disclaims application of the special-needs doctrine. See 534 U.S. at 117, 122 S. Ct.
at 591–92, 151 L. Ed. 2d at 504–05. The Court held that the search condition of
probation “significantly diminished Knights’ reasonable expectation of privacy.” Id. at
120, 122 S. Ct. at 592, 151 L. Ed. 2d at 505. It considered the condition to “the salient
circumstance” in a “ ‘totality of the circumstances’ ” analysis, id. at 118, 122 S. Ct. at
591, 151 L. Ed. 2d at 505 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417,
421, 136 L. Ed. 2d 347, 354 (1996)), failing to consider either the issue of the
voluntariness of Knights’s acceptance of the parole condition or Knights’s privacy
interest in his home. In its discussion of balancing in this case, the State makes a
similar argument regarding the mandatory search condition in Kern’s parole agreement.
Of course, in Baldon, we concluded a mandatory search condition of parole did not
establish voluntary consent on the part of the parolee to conduct a search. See 829
N.W.2d at 802–03.
       However, the State’s assertion that the facts surrounding the two encounters in
this case “gave the parole officer, Sergeant Garvey, the authority to search the
premises” suggests the State was arguing special needs, not generalized reasonableness
balancing. The State then argues Garvey properly delegated his authority to Officers
Chance and Jenkins. We construe this argument as a second layer of the State’s
                                           32

S. Ct. 1281, 1289 & n.15, 149 L. Ed. 2d 205, 217 & n.15 (2001). The

evidence supported the conclusion that the police conducted the search

for their purposes, not the purposes of parole. See Ochoa, 792 N.W.2d at

286.    Police sought to conduct a search to investigate suspicion of

criminal activity and then engaged in the search for the same purpose.

See id. Second, nothing about the search at issue in this case, other

than Kern’s status as a parolee, suggested the warrant requirement was

impractical or would “frustrate the governmental purpose behind the

search.” See Camara, 387 U.S. at 533, 87 S. Ct. at 1733, 18 L. Ed. 2d at
938; cf. Ochoa, 792 N.W.2d at 291 (holding parole status alone may not

justify a warrantless, suspicionless search). The officers who conducted

the search even acknowledged in their testimony at the suppression

hearing that it would have been feasible to request a search warrant.

See Camara, 387 U.S. at 533, 87 S. Ct. at 1733, 18 L. Ed. 2d at 938; see

also Almeida-Sanchez v. United States, 413 U.S. 266, 283, 93 S. Ct.

2535, 2544–45, 37 L. Ed. 2d 596, 609 (1973) (Powell, J., concurring)

(“[I]nconvenience alone has never been thought to be an adequate reason

for abrogating the warrant requirement.”). Of course, as a search that

from all accounts appeared to be motivated by the interests of law

enforcement, there was no evidence to explain how the special needs of

_____________________
special-needs argument. In other words, the State asks us to hold that if a special need
exists, parole officers should be able to conduct full-scale searches of parolees’ homes
without a warrant supported by probable cause, so long as the parole officer has
reasonable suspicion the parolee has broken the law or violated parole. Thus, the
State’s argument does not just ask us to apply the reasonable-suspicion standard to a
search by law enforcement, but utilizes the proffered special needs of parole to make its
case. Because the record in this case is inadequate for us to decide whether Iowa’s
maintenance of a parole system presents a special need, it is similarly insufficient for us
to determine whether (assuming parole presents a special need under article I, section
8) a subsequent balancing of the relative interests of Kern and the State permit a full-
scale search of Kern’s home by police officers with only reasonable suspicion.
                                    33

parole might justify the search without a warrant or how the actions of

police in conducting the search served the interests of parole.

Consequently, the search in this case required a warrant supported by

probable cause and issued by a neutral magistrate, absent a recognized

exception.

      Accordingly, because we do not recognize the special-needs

doctrine under article I, section 8 in this case, we decline to depart from

forty years of Iowa precedent and justify the search of the Kern house

under that doctrine.   Even if we did, however, under the search and
seizure protection afforded parolees under article I, section 8 of the Iowa

Constitution, the doctrine would not be available to justify a search

instigated and dominated by the needs and interests of law enforcement.

      3. The community caretaking function.      We next consider if the

community caretaking function justified the search. On this issue, Kern

does not suggest a standard under article I, section 8 of the Iowa

Constitution that is different from the standard employed by the United

States Supreme Court under the Fourth Amendment. As a result, we

use the federal substantive standard of community caretaking in this

case, but reserve the right to apply that standard in a more stringent

fashion than federal precedents. See State v. Bruegger, 773 N.W.2d 862,

883 (Iowa 2009).

      The community caretaking function carried out by officers is an

exception to the warrant requirement of the Fourth Amendment. State v.

Crawford, 659 N.W.2d 537, 542 (Iowa 2003).          A core notion of the

community caretaking exception is that, like special needs, it is “totally

divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute.” Cady v. Dombrowski, 413

U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973). As
                                    34

stated by another court: “The community caretaking function involves

the duty of police officers to help citizens an officer reasonably believes

may be in need of assistance.” State v. Mireles, 991 P.2d 878, 880 (Idaho

Ct. App. 1999). The determination of whether the community caretaking

exception applies

      requires a three-step analysis: (1) was there a seizure within
      the meaning of the Fourth Amendment?; (2) if so, was the
      police conduct bona fide community caretaker activity?; and
      (3) if so, did the public need and interest outweigh the
      intrusion upon the privacy of the citizen?

Crawford, 659 N.W.2d at 543.

      We have observed in the past that “the community caretaking

exception encompasses three separate doctrines: (1) the emergency aid

doctrine, (2) the automobile impoundment/inventory doctrine, and (3)

the ‘public servant’ exception noted in Cady.” See id. at 541; see also

Mary E. Naumann, Note, The Community Caretaker Doctrine: Yet Another

Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 330–41 (1999). In

cases such as this one, the first and third exceptions, which are very

similar, are at issue.   See id.   To take advantage of the community

caretaking exception in this context, the State must prove two things:
First, the searching officer must be “actually motivated by a perceived

need to render aid or assistance.” State v. Emerson, 375 N.W.2d 256,

259 (Iowa 1985) (citation and internal quotation marks omitted),

abrogated on other grounds by Horton v. California, 496 U.S. 128, 110

S. Ct. 2301, 110 L. Ed. 2d 112 (1990), as recognized by State v. Lyman,

776 N.W.2d 865, 872 (Iowa 2010). Second, the officer’s motivation must

be such that a “reasonable person under the circumstances would have

thought an emergency had existed.” Id. (citation and internal quotation

marks omitted).
                                       35

      At first glance, the community caretaking function does not

primarily focus on searches. Rather, the exception most often works to

authorize seizures. See, e.g., State v. Moore, 609 N.W.2d 502, 503–04

(Iowa 2000) (holding a park ranger’s stop of a vehicle to urge them to

slow down was reasonable); State v. Mitchell, 498 N.W.2d 691, 693–94

(Iowa 1993) (holding a trooper’s stop of a vehicle with a burned-out

taillight was reasonable).      Cady, however, did involve a search of an

automobile.   413 U.S. at 437, 93 S. Ct. at 2526, 37 L. Ed. 2d at 712.

The aim of the search in Cady, however, was not to search for evidence of
any crime, but to search for defendant’s service revolver after a car

accident. Id. The defendant in Cady was a Chicago police officer who

had been involved in a car accident.        Id.   The aim of the police, who

believed Chicago police officers were required to carry their firearms at all

times, was to remove the defendant’s revolver from the vehicle before it

was towed away. Id. In conducting the search, the police found some

blood spatters in plain view, and the defendant later directed the police

to the location of a body. Id. The community caretaking exception has

similarly justified searches in Iowa cases. See, e.g., State v. Carlson, 548

N.W.2d 138, 142–43 (Iowa 1996) (holding entry into a home to search for

a   missing   person,   after    the   person’s   boyfriend   gave   conflicting

information about the missing person’s whereabouts, was reasonable

under the emergency aid exception); State v. Kersh, 313 N.W.2d 566,

568–69 (Iowa 1981) (holding that officer was justified in opening a car

door to check on the condition of the defendant, who was slumped over

the wheel), abrogated on other grounds by State v. Lake, 476 N.W.2d 55,

56 (Iowa 1991).

      Nevertheless, the exception does not apply in this case.              The

caretaking by the police in accompanying the DHS officer to Kern’s home
                                     36

ended when the DHS officer and the police officers removed the children

from the home. If the rationale of the community caretaking exception is

to help either the subject of the search or, as in Cady, the public at large

(from the danger of an unattended firearm in an impounded vehicle),

then the community caretaking function was no longer served in this

case once the children were removed. After the children were removed,

the point of the search of Kern’s home was not to assist any member of

either the household or the public, but was to search for evidence of a

crime.   The officers neither had the requisite motivation, nor would a
reasonable person believe that an emergency existed. See Emerson, 375

N.W.2d at 259. Accordingly, the community caretaking function did not

justify the search in this case under either the Fourth Amendment or

article I, section 8 of the Iowa Constitution.

      4. Exigent circumstances.     The State further argues that exigent

circumstances justified the warrantless search of Kern’s home.         Kern

responds that nothing in the record supports application of the exigent-

circumstances exception to the warrant requirement of the Fourth

Amendment and article I, section 8. As with the community caretaking

exception, Kern does not articulate a different substantive standard for

analysis of the exigent-circumstances exception under article I, section 8

of the Iowa Constitution than is applied by the United States Supreme

Court under the Fourth Amendment.           We therefore apply the federal

standard in this case, but reserve the right to apply it in a more stringent

fashion than under federal law. Bruegger, 773 N.W.2d at 884.

      An exception to the warrant requirement exists for a search “based

on probable cause and exigent circumstances.”        State v. Naujoks, 637

N.W.2d 101, 108 (Iowa 2001). To be clear, this exception only applies

“when coupled with existing probable cause.”         State v. Strong, 493
                                     37

N.W.2d 834, 836 (Iowa 1992).        “The standard for probable cause is

whether a person of reasonable prudence would believe a crime has been

committed or that evidence of a crime might be located in the particular

area to be searched.” Naujoks, 637 N.W.2d at 108.

      The exigent-circumstances exception includes a situation in which

there is a “probability that, unless immediately seized, evidence will be

concealed or destroyed.”     Id.   The exigent-circumstances exception is

important   to   narcotics   investigations   because    drugs   are   “easily

destroyed.” See id. at 109. For example, in Strong, this court considered
whether the involuntary pumping of a suspect’s stomach to find evidence

of cocaine, which was rapidly metabolized by the suspect’s body,

qualified as exigent circumstances sufficient to relieve the warrant

requirement. 493 N.W.2d at 835. Importantly, the police actually saw

the defendant orally ingest the cocaine, after which Strong admitted the

materials he had just swallowed were cocaine. Id. at 835.

      Turning to the case at hand, we first consider if the officers had

sufficient evidence to support probable cause.          The probable cause

determination relied on five pieces of information. First, an anonymous

tip had been given two days earlier to a DHS officer, which alleged a

marijuana grow operation existed in Kern and Grant’s home. Second,

Kern and Grant generally refused consent to search during the first

encounter. Third, Grant maintained a defensive posture to prevent the

officers from going further into Kern’s home during the first encounter.

Fourth, Kern and Grant refused to give consent after the DHS
                                           38

investigator threatened to remove Kern’s daughter and grandson from

the home.7 Finally, Kern was a parolee.8

       An anonymous tip, alone, does not ordinarily contain sufficient

indicia of reliability to provide reasonable suspicion, let alone probable

cause. See Florida v. J.L., 529 U.S. 266, 270–72, 120 S. Ct. 1375, 1378–

79, 146 L. Ed. 2d 254, 260–61 (2000). On the other hand, a significantly

corroborated and verified anonymous tip has been held sufficient by the

United States Supreme Court under the Fourth Amendment. Alabama v.

White, 496 U.S. 325, 331–32, 110 S. Ct. 2412, 2416–17, 110 L. Ed. 2d
301, 309–10 (1990). In Griffin, the Court considered a tip from a police

officer to a parole officer that a probationer “had or might have guns”

sufficient to support reasonable suspicion.              483 U.S. at 879–80, 107

S. Ct. at 3171–72, 97 L. Ed. 2d at 721–22. Yet, the Court acknowledged

the tip would not support probable cause. Id. at 878, 107 S. Ct. at 3171,

97 L. Ed. 2d at 720; see also Adams v. Williams, 407 U.S. 143, 147, 92


        7Approximately a week later, DHS Officer Huisman followed up with Kern’s

daughter.     During that meeting, Kern’s daughter revealed she was aware that
marijuana was being grown in, and sold out of, the house. She also told Huisman that
marijuana was being consumed in the house. This information was not available to the
officers prior to the search. Accordingly, we do not consider it in determining whether
sufficient suspicion or cause existed to conduct a full search of the home. Courts
assessing whether official action was reasonable do not consider facts not actually
known to the officers. See Terry, 392 U.S. at 21–22, 88 S. Ct. at 1880, 20 L. Ed. 2d at
906 (indicating the relevant inquiry is whether “the facts available to the officer at the
moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’
that the action taken was appropriate” (emphasis added)); United States v. Porter, 594
F.3d 1251, 1258 n.9 (10th Cir. 2010) (discussing suspicious facts, but ultimately not
considering them because the facts “were not known to the police officers”); see also
Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L. Ed. 2d 537, 544
(2004); Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d
443, 455 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.”).
       8The record does not indicate whether either the officers or Kern’s parole officer

were aware of the exact charges on which Kern had been previously convicted.
                                            39

S. Ct. 1921, 1924, 32 L. Ed. 2d 612, 617 (1972) (noting an unverified tip

would usually not support probable cause for a search or arrest).

       Furthermore, neither the invocation of constitutional rights nor the

refusal to grant consent to an officer to perform a search can be used

alone to support either reasonable suspicion or probable cause.                        See

State v. Maddox, 670 N.W.2d 168, 173 (Iowa 2003).9 In the words of the

10th Circuit:

       Any other rule would make a mockery of the reasonable
       suspicion and probable cause requirements, as well as the
       consent doctrine.        These legal principles would be
       considerably less effective if citizens’ insistence that searches
       and seizures be conducted in conformity with constitutional
       norms could create the suspicion or cause that renders their
       consent unnecessary.

United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998).

       We agree.         If such a refusal of consent or invocation of

constitutional rights could supply officers with the requisite suspicion or

cause to conduct a search, then citizens would be exposed to a

dangerous catch-22 when officers request consent to conduct a search.

If consent is given, the search occurs. If consent is refused, the officer

may nevertheless conduct the search pursuant to the probable cause
generated by the refusal. This is an unacceptable consequence under

our constitutional framework.


        9Similarly, the Supreme Court has held in the general Fourth Amendment

context, “a refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S.
429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389, 400 (1991). An analogous notion
is well-established in the Fifth Amendment context as well. See Doyle v. Ohio, 426 U.S.
610, 617–18, 96 S. Ct. 2240, 2244–45, 49 L. Ed. 2d 91, 97–98 (1965) (considering
postarrest silence “insolubly ambiguous” and holding prosecution may not comment on
postarrest silence at trial as evidence of guilt); Griffin v. California, 380 U.S. 609, 613–
14, 85 S. Ct. 1229, 1232–33, 14 L. Ed. 2d 106, 109–10 (1965) (holding prosecution may
not comment on defendant’s decision not to testify at trial).
                                   40

      We have similar doubts about the value of Grant’s defensive

posture as a factor in the probable cause determination.          Furtive

behavior may be a proper consideration.     See Illinois v. Wardlow, 528

U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000);

United States v. Sokolow, 490 U.S. 1, 8–9, 109 S. Ct. 1581, 1586, 104

L. Ed. 2d 1, 10–11 (1989). But, a defensive posture by an occupant of a

home in response to an intrusion by police is not indicative of probable

cause of a crime. A homeowner may want personal matters within the

privacy of the home protected from unwanted disclosure. The desire of a
homeowner to keep police from entering beyond the threshold of the

house during an unannounced visit is not probable cause the home

contains evidence of a crime.

      As to the parole status of Kern, Ochoa prohibits using Kern’s

status as a parolee to augment the suspicion held by the officers such

that it alone could amount to probable cause. See 792 N.W.2d at 291.

      Thus, we conclude the officers did not have probable cause to

search the Kern home. Additionally, nothing about the circumstances of

this case (other than the inherent destructibility of drugs) suggests that

the circumstances were exigent. The DHS received the anonymous tip

on November 3, but the home visit did not occur until November 5. Even

on November 5, the only circumstances conveying exigency in the

moment were Kern’s walk to her car in the driveway and the officers’

conjecture that, by invoking her search and seizure rights, Kern was

affirmatively hiding something.

      While walking out to the car arguably raises some suspicion that

destruction of evidence was imminent, and the United States Supreme

Court has supported fairly conjectural applications of the exigent-

circumstances exception before, see Illinois v. McArthur, 531 U.S. 326,
                                      41

330–31, 121 S. Ct. 946, 949–50, 148 L. Ed. 2d 838, 847 (2001), the

instant case is distinguishable on two critical grounds. First, McArthur

dealt not with an uncorroborated, anonymous tip, but rather the in-

person assertion of the defendant’s wife whose reliability was readily

ascertainable. Id. at 329, 332, 121 S. Ct. at 949, 950, 148 L. Ed. 2d at

846, 848. She could be “held responsible if her allegations turn[ed] out

to be fabricated.”    See J.L., 529 U.S. at 270, 120 S. Ct. at 1378, 146

L. Ed. 2d at 260. Second, McArthur involved the comparatively minimal

intrusion of refusing to allow the defendant to reenter his trailer home
unsupervised while an officer obtained a warrant, see 531 U.S. at 329,

332, 121 S. Ct. at 949–50, 148 L. Ed. 2d at 846, 848, while in this case

the officers conducted a full-blown search of the defendant’s home.

       That is not enough either for probable cause or for a finding of

exigent circumstances. Accordingly, we hold that exigent circumstances

did not justify the warrantless search of Kern’s home conducted in this

case   under   both    the   Fourth   Amendment    to   the   United   States

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

       V. Conclusion.

       We conclude no exception to the warrant requirement of article I,

section 8 of the Iowa Constitution justifies the warrantless search of

Kern’s home.    Accordingly, the evidence of marijuana seized from the

home should have been suppressed.          We reverse the judgment and

sentence of the district court and remand for a new trial on the count of

conspiracy to manufacture a controlled substance.

       REVERSED AND REMANDED.

       All justices concur except Mansfield and Waterman, JJ., who

concur in part and dissent in part.
                                     42

                                                    #11–1208, State v. Kern

MANSFIELD, Justice (concurring in part and dissenting in part).

      I concur in Part III of the majority opinion. However, I dissent from

Part IV of the court’s opinion and believe the search should be upheld for

the reasons set forth in my dissenting opinion in State v. Baldon, ___

N.W.2d ___, ___, 2013 WL 1694553, at *44 (Iowa 2013) (Mansfield, J.,

dissenting). Accordingly, unlike the majority, I do not need to reach the

community caretaking exception, the exigent-circumstances exception,

the special-needs exception, or reasonable suspicion.        All of these are
potential alternative grounds for upholding the search of Kern’s home.

      Having   said   that,   I   wholeheartedly   endorse   the   majority’s

discussion of the first two of these issues. In the course of a few pages,

the majority carefully applies the relevant Iowa and United States

Supreme Court precedents. It concludes that this case involves neither

community caretaking nor exigent circumstances as defined in the

caselaw. I agree with the majority’s treatment of these two matters.

      Unfortunately, the majority’s discussion of special needs is missing

the same focus and faithfulness to precedent.       Just a decade ago, we

applied that doctrine in rejecting a challenge to a search of a school

locker under both the Fourth Amendment and article I, section 8. See

State v. Jones, 666 N.W.2d 142, 145–50 & n.2 (Iowa 2003). Thus, we

have recognized special needs as          an exception to the warrant

requirement under the Iowa Constitution.

      In a footnote, my colleagues downplay Jones because it “featured

no independent analysis of the Iowa Constitution” and “was limited to an

examination of what the United States Supreme Court had said on the

subject.” I would categorically reject any suggestion that the worthiness
                                     43

of our state constitutional precedents depends on the extent to which

they depart from federal constitutional precedent.

         While the majority relegates Jones to a footnote, it devotes

considerable attention to State v. Cullison, a case we decided over forty

years ago under the Fourth Amendment, not article I, section 8. See 173

N.W.2d 533 (Iowa 1970). My colleagues mislabel Cullison as an “Iowa

Supreme Court case[] dealing with searches of parolees and probationers

under article I, section 8 of the Iowa Constitution.” In fact, the opinion

contains no reference to that provision. Cullison, rather, was our court’s
effort to determine the scope of “an Iowa State parolee’s Fourth

Amendment rights, privileges and immunities.” Id. at 537. We expressly

noted the absence of any United States Supreme Court precedent on

point.    Id. at 535.   Although Cullison, as a 1970 Fourth Amendment

precedent, has been superseded by later United States Supreme Court

Fourth Amendment decisions, my colleagues try to reincarnate it as a

decision on the meaning of Iowa’s search and seizure clause.            See

generally Baldon, ___ N.W.2d at ___, 2013 WL 1694553, at *50 & n.49

(further discussing why Cullison does not bear upon article I, section 8).

         Not only is the majority’s survey of Iowa special-needs precedent

historically inaccurate, its discussion is unnecessary and will introduce

further uncertainty into Iowa search and seizure law.       One can hold

under existing Fourth Amendment precedent that the special-needs

doctrine does not apply because the search was strictly a law

enforcement operation.      It was conducted in the absence of a parole

officer and was not in furtherance of a parole mission. See Ferguson v.

City of Charleston, 532 U.S. 67, 79 & n.15, 121 S. Ct. 1281, 1289 &

n.15, 149 L. Ed. 2d 205, 217 & n.15 (2001); Griffin v. Wisconsin, 483

U.S. 868, 873–74, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987).
                                     44

If required to reach the special-needs exception, that would be my

conclusion.

      The majority’s discussion of reasonable suspicion is also a puzzler

for me.       The State’s position here is straightforward: Even if a

warrantless, suspicionless search of a parolee is deemed impermissible

under article I, section 8, a search based on reasonable suspicion should

be allowed. This is a serious argument, and we expressly left it open in

State v. Ochoa. See State v. Ochoa, 792 N.W.2d 260, 291 (Iowa 2010)

(“We have no occasion to consider other questions, such as . . . whether
individualized suspicion amounting to less than probable cause may be

sufficient in some contexts to support a focused search . . . .”). We also

left it open in Baldon. See Baldon, ___ N.W.2d at ___, 2013 WL 1694553,

at *4 (majority opinion) (noting that the State made no argument “that a

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

and introduced no evidence of “any particular need . . . to search Baldon

. . . predicated on individual suspicion”).

      In six pages of its appellate brief in this case, the State argues

clearly and succinctly that based on logic and precedent, reasonable

suspicion should be a sufficient ground for searching a parolee. It also

argues that reasonable suspicion was present here. The State uses the

phrase “reasonable suspicion” nine times in the course of these six

pages. Kern then replies to the State’s argument for four pages in her

reply brief. She contends that reasonable suspicion to search the house

did not exist.

      Now, however, in a long footnote, my colleagues avoid the issue

that the parties have presented to them. Instead, they recharacterize the

State’s reasonable-suspicion argument as just a “second layer” of its

special-needs argument.     This allows my colleagues not to address it.
                                   45

But it is a separate argument, and we said so in Ochoa. See 792 N.W.2d

at 291 (identifying “(1) the potential application of special needs to

searches of parolees conducted by parole officers” and “(2) whether

individualized suspicion amounting to less than probable cause may be

sufficient in some contexts to support a focused search” as two questions

not answered by the court’s opinion).

      I would address the reasonable-suspicion issue by applying

established Fourth Amendment precedent. In United States v. Knights,

the United States Supreme Court held unanimously that reasonable
suspicion was a sufficient basis to conduct a warrantless search of a

probationer’s house. See 534 U.S. 112, 121, 122 S. Ct. 587, 592, 151 L.

Ed. 2d 497, 506 (2001). Knights is not a special-needs case; the search

was conducted by a detective, with no involvement by anyone who was

responsible for supervising the defendant’s probation. Id. at 115, 122 S.

Ct. at 589, 151 L. Ed. 2d at 503. Thus, Knights confirms that special

needs and reasonable suspicion are two distinct possible grounds for

sustaining a search of a probationer (or by inference, a parolee). See id.

at 117–18, 122 S. Ct. at 590–91, 151 L. Ed. 2d at 504. However, Knights

has no applicability when reasonable suspicion did not exist.

      Reasonable suspicion was not present here.      At the time of the

search of Kern’s home, the police had only the anonymous tip that

marijuana was being grown and processed in the house, plus the

occupants’ refusal to consent to a search. As noted by my colleagues, an

anonymous tip without any indicia of reliability generally does not

amount to reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 271,

120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260–61 (2000) (holding that

“the bare report of an unknown, unaccountable informant” did not

amount to reasonable suspicion for a Terry stop); Alabama v. White, 496
                                   46

U.S. 325, 329, 110 S. Ct. 2412, 2415–16, 110 L. Ed. 2d 301, 308 (1990)

(indicating that an anonymous tip standing alone would not normally

provide reasonable suspicion for a Terry stop).     And I also share my

colleagues’ view that Kern’s and Grant’s refusals to consent to a search

cannot provide a basis for a search. See State v. Maddox, 670 N.W.2d

168, 173 (Iowa 2003) (“[M]ere refusal to consent to a search does not

establish probable cause.”); State v. Ripperger, 514 N.W.2d 740, 746

(Iowa Ct. App. 1994) (“The defendant’s refusal to consent to a blood test

cannot be used to support probable cause because such use denies the
defendant’s Fourth and Fifth Amendment rights.”).

      In summary, I agree with the majority’s determinations on

sufficiency of the evidence. I would affirm the district court’s denial of

Kern’s motion to suppress for reasons already stated in my Baldon

dissent.   Additionally, I agree with the majority’s handling of the

community    caretaking   and   exigent-circumstance    exceptions,   but

disagree with its handling of the special-needs and reasonable-suspicion

matters.

      Waterman, J., joins this concurrence in part and dissent in part.
