                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0061
                             Filed February 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT WILLIAM HAMPTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Bremer County, Peter B. Newell,

District Associate Judge.



      Robert Hampton appeals his conviction and sentence for possession of

methamphetamine. CONVICTION VACATED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

       Robert Hampton was convicted of misdemeanor possession of a controlled

substance, methamphetamine, in violation of Iowa Code section 124.401(5)

(2017). In this direct appeal, Hampton contends the district court erred in denying

his motion to suppress evidence obtained as a result of an allegedly

unconstitutional traffic stop and roadside detention. Hampton also contends his

sentence is illegal because the district court ordered Hampton to pay the costs for

an associated, but dismissed, criminal case.

       The Fourth Amendment of the United States Constitution safeguards “[t]he

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const. amend. IV. Article I

section 8 “of the Iowa Constitution is substantially identical in language to the

Fourth Amendment[,]” and both provisions are “usually deem[ed] . . . identical in

scope, import, and purpose.” State v. Kreps, 650 N.W.2d 636, 640-41 (Iowa 2002)

(citing Iowa Const. art. I, § 8; State v. Scott, 409 N.W.2d 465, 467 (Iowa 1987)).

The key inquiry of any search-and-seizure claim is reasonableness under the

circumstances presented. See Pennsylvania v. Mimms, 434 U.S. 106, 108-09

(1977) (“The touchstone of our analysis under the Fourth Amendment is always

‘the reasonableness in all the circumstances of the particular governmental

invasion of a citizen’s personal security.’” (citation omitted)).

       Although the touchstone of any search-and-seizure claim, whether arising

under federal or state law, is reasonableness under the circumstances presented,

Hampton correctly notes that “[e]ven ‘in . . . cases in which no substantive

distinction [appears] between state and federal constitutional provisions, we
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reserve the right to apply the principles differently under the state constitution

compared to its federal counterpart.’” State v. Gaskins, 866 N.W.2d 1, 6 (Iowa

2015) (quoting King v. State, 797 N.W.2d 565, 571 (Iowa 2011)). Of course, “our

independent authority to construe the Iowa Constitution does not mean that we

generally refuse to follow the United States Supreme Court decisions.” State v.

Short, 851 N.W.2d 474, 490 (Iowa 2014). “Rather, it merely assures that we

‘exercise . . . our best, independent judgment of the proper parameters of state

constitutional commands,’ as we are constitutionally required to do.” Gaskins, 866

N.W.2d at 7 (quoting Short, 851 N.W.2d at 490).

       In exercising our independent judgment, we may determine that the state

constitution provides lesser or greater protection than its federal counterpart. This

was explained by former Oregon Supreme Court Justice Hans Linde, widely

considered the godfather of independent state constitutionalism:

              The right question is not whether a state’s guarantee is the
       same as or broader than its federal counterpart as interpreted by the
       Supreme Court. The right question is what the state’s guarantee
       means and how it applies to the case at hand. The answer may turn
       out the same as it would under federal law. The state’s law may
       prove to be more protective than federal law. The state law also may
       be less protective. In that case the court must go on to decide the
       claim under federal law, assuming it has been raised.

Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev.

165, 179 (1984).     This understanding of the interplay between the federal

constitution and the state constitutions was adopted by former Supreme Court

Justice John Paul Stevens. See Massachusetts v. Upton, 466 U.S. 727, 738

(1984) (Stevens, J., concurring).     The Court of Criminal Appeals of Texas

explained the issue in the search-and-seizure context:
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        We understand that our holding means that Section 9 of our
Bill of Rights does not offer greater protection to the individual than
the Fourth Amendment to the United States Constitution, and it may
offer less protection. But our holding is the construction that is faithful
to the Constitution which our people have adopted, and it is our duty
to interpret that Constitution independent of the interpretations of
federal courts. Heitman v. State, [815 S.W.2d 681 690 n.22 (Tex.
Crim. App. 1991)].
        As the Court of Appeals noted in this case, Heitman [v. State]
does not mean that the Texas Constitution cannot be interpreted to
give less protection than the federal constitution. It only means that
the Texas Constitution will be interpreted independently. See Hulit
v. State, 947 S.W.2d [707, 709 (Tex. App. 1997)]. Its protections
may be lesser, greater, or the same as those of the federal
constitution.
        In Heitman, we repeated the dictum of our sister court: “The
federal constitution sets the floor for individual rights; state
constitutions establish the ceiling.” LeCroy v. Hanlon, 713 S.W.2d
335, 338 (Tex. [] 1986). With all respect to our Sister Court, we think
its metaphor is wrong. The state constitution and the federal
constitution are not parts of one legal building; each is its own
structure. Their shapes may be different, as may their parts. Each
may shield rights that the other does not. The ceiling of one may be
lower than the floor of the other. Because of the Supremacy Clause
of the United States Constitution, a defendant who is entitled to claim
[] the protection of a federal provision may receive a greater
protection from that floor than the greatest protection that the ceiling
of the Texas Constitution would give him. But that does not mean
that the Texas Constitution has no ceilings that are lower than those
of the federal constitution. See Welchek v. State, [] 247 S.W. 524
([Tex. Crim. App.] 1922) (Article I, Section 9 creates no exclusionary
rule similar to that found in [the] Fourth Amendment for federal
prosecutions).
        In our holding there is no violation of the Supremacy Clause
of Article VI of the United States Constitution.

       State courts are the final interpreters of state law even
       though their actions are reviewable under the federal
       constitution, treaties, or laws. The supreme court of a
       state is truly the highest court in terms of this body of
       law and it is not a “lower court” even in relation to the
       Supreme Court of the United States. It must follow the
       Supreme Court’s rulings on the meaning of the
       Constitution of the United States or federal law, but it is
       free to interpret state laws or the state constitution in
       any way that does not violate principles of federal law.
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       John E. Nowak, Ronald D. Rotunda, J. Nelson Young, 1 Treatise on
       Constitutional Law 31 (1986). We do not make any holding about
       the appellant’s rights under federal law. In this case, the appellant
       has chosen not to seek any shelter in the federal constitution. (In our
       architectural metaphor, he may not be able to fit his facts under the
       federal ceiling.) This case has called on us to decide whether our
       constitution will give him the shelter he wants. It does not.
               The Supremacy Clause means that, in practical terms,
       persons will always be able to avail themselves of the greater right.
       This is very important to litigants and their counsel, who are naturally
       and properly result-oriented. But it does not mean that a court,
       faithfully interpreting state laws, can only find in them protections that
       equal or exceed federal laws.

Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim. App. 1998) (en banc) (altered

for readability).

       With that understanding, we directly address Hampton’s claims. Hampton

asserts numerous constitutional challenges to the traffic stop and roadside

detention during which methamphetamine was found in his possession.                    He

contends as follows: (1) ordering a driver to exit a lawfully stopped vehicle violates

the state constitution; (2) ordering a driver to sit in the patrol vehicle during a traffic

stop violates the federal and state constitutions; (3) the Iowa Constitution does not

allow a law-enforcement official to request a driver to consent to a pat-down search

in the absence of reasonable suspicion; (4) the Iowa Constitution requires a law-

enforcement official to advise of the right to decline consent under a “knowing and

voluntary” standard for consent searches; (5) even under a totality-of-the-

circumstances test for consent searches, Hampton’s consent was not voluntary;

and (6) the officer unlawfully expanded the scope of the pat-down search by

removing items from Hampton’s pockets.

       On de novo review, we find the district court erred in denying the motion to

suppress evidence. See State v. Coleman, 890 N.W.2d 284, 286 (Iowa 2017)
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(setting forth the standard of review). Hampton does not dispute the traffic stop

was lawful. Upon initiating the traffic stop, the deputy requested Hampton exit the

vehicle. Hampton exited the vehicle, and the deputy requested consent to conduct

a pat-down search. Hampton consented to the pat-down search but only for

weapons.    Under the totality of the circumstances, we find the consent was

voluntary. See State v. Lowe, 812 N.W.2d 554, 572 (Iowa 2012) (stating consent

may be express or implied and is determined by a consideration of the totality of

the circumstances). However, when consent to a search is limited, officers are

bound by those limitations. See State v. McConnelee, 690 N.W.2d 27, 31 (Iowa

2004). The deputy went beyond the consensual scope of a weapons search when

he manipulated the contents of Hampton’s pocket and removed a pill container.

      While the scope of a consensual search may be limited, it also may be

expanded when an additional exception to the warrant requirement is applicable.

See id. at 32. When conducting a pat-down search for weapons, officers are not

required to ignore immediately apparent contraband and may remove it pursuant

to the plain-feel doctrine. See Minnesota v. Dickerson, 508 U.S. 366, 375-76

(1993) (permitting an officer to seize an object during a weapons pat down when

it is immediately identifiable as contraband). However, the plain-feel doctrine does

not apply when an officer must manipulate or squeeze an object in order to identify

it as contraband. See State v. Harriman, 737 N.W.2d 318, 320 (Iowa Ct. App.

2007). Here, the deputy could not immediately identify the container as containing

contraband to justify expanding the scope of the search under the plain-feel

doctrine. A video recording of the search shows the deputy manipulating the

container in Hampton’s pocket as the deputy inquires about its contents, and the
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deputy conceded at the motion-to-suppress hearing that he could not identify the

container until he removed it from Hampton’s pocket.          We note the deputy

immediately identified a shortened straw in Hampton’s pocket as drug

paraphernalia; its discovery is not at issue in this appeal for conviction of

possession of methamphetamine.

       The State argues the expansion of the search’s scope was justified as a

search incident to arrest or under the inevitable-discovery doctrine because the

deputy’s immediate identification of the straw as drug paraphernalia gave the

deputy probable cause to arrest Hampton. A search incident to arrest “allows a

police officer ‘to search a lawfully arrested individual’s person and the immediately

surrounding area without a warrant.’” State v. Christopher, 757 N.W.2d 247, 249

(Iowa 2008)) (quoting United States v. O’Connell, 408 F. Supp.2d 712, 723 (N.D.

Iowa 2005)). The State reasons the search of Hampton’s pocket was sufficiently

contemporaneous to his arrest for possession of the straw to be considered a

lawful search incident to arrest. See State v. Peterson, 515 N.W.2d 23, 24 (Iowa

1994). It also reasons if the search was not a lawful search incident to arrest, the

container and its contents would have been inevitably discovered in a later, lawful

search incident to arrest. The inevitable-discovery doctrine permits the admission

of evidence obtained illegally that would have been inevitably discovered through

some lawful means. See State v. Seager, 571 N.W.2d 204, 211 (Iowa 1997).

       We first note none of these arguments were advanced in the district court.

In any event, the State’s contentions are factually fatally flawed. There is no

evidence in the record indicating the deputy intended to arrest Hampton upon

discovery of the straw alone. In fact, the recording of the stop reveals the deputy
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only placed Hampton under arrest after the deputy removed the container from

Hampton’s pocket and Hampton admitted the container contained drugs. The

deputy also indicated his decision to arrest Hampton was predicated on the

discovery of the drugs.    The deputy made no reference to the straw when

explaining his obligation to arrest Hampton. Because we cannot say the deputy

would have arrested Hampton based on the discovery of the straw alone, we

cannot justify the intrusion into Hampton’s pockets as a search incident to arrest

or under the inevitable-discovery doctrine.

      The deputy’s search of Hampton’s pockets and the container contained

therein went beyond the scope of the consensual pat-down. The manipulation of

the container, coupled with the deputy’s admission he did not know what it was,

removes this case from the operation of the plain-feel doctrine. The district court

erred in denying Hampton’s motion to suppress evidence.

      Because we conclude the district court erred in ruling on the motion to

suppress evidence, we vacate the defendant’s conviction and remand this matter

for further proceedings. We need not address the remainder of the defendant’s

arguments.

      CONVICTION VACATED AND REMANDED.
