                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0374
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASON MICHAEL WAGAMON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Randy S.

DeGeest, Judge.



      The defendant appeals the denial of his motion to suppress. AFFIRMED.



      R. E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for appellant.

      Thomas J. Miller, Attorney General, and Elisabeth S. Reynoldson,

Assistant Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
                                            2


POTTERFIELD, Judge.

       Jason Wagamon appeals the denial of his motion to suppress.                    The

charges against him are based on drugs found in his vehicle after a traffic stop.

In denying his motion, the district court held the warrantless search of

Wagamon’s vehicle was conducted pursuant to the “automobile exception,”

which has been recognized under both the Federal Constitution and the Iowa

Constitution. See Carroll v. United States, 267 U.S. 132, 153–54 (1925); State v.

Olsen, 293 N.W.2d 216, 219 (Iowa 1980). On appeal, Wagamon “urges that now

is the time to determine if the automobile exception is out of date and

incompatible with the protections offered by the Iowa Constitution.”1

       Wagamon urges us to consider the supreme court’s recent holding in

State v. Gaskins, 866 N.W.2d 1, 13–16 (Iowa 2015), as a sign of a changing tide

in regard to previously-recognized exceptions to the warrant requirement under

article I, section 8 of the Iowa Constitution. In Gaskins, an officer made a routine

traffic stop for an expired license plate.        866 N.W.2d at 3.        As the officer

approached the vehicle, he was able to smell a strong odor of burnt marijuana,

and the driver, Gaskins, ultimately showed the officer a partially-smoked

marijuana blunt he had in the ashtray. Id. Gaskings was immediately arrested,

and the officer secured him and his passenger inside the police car. Id. Once a

second officer arrived to assist on the scene, the officers searched the vehicle for


1
  We note that even though Wagamon is urging the reconsideration of precedent under
the Iowa Constitution, his “routing statement” states the case should be transferred to
the Iowa Court of Appeals rather than retained by the Iowa Supreme Court. See Iowa
Rs. App. P. 6.903(2)(d) (requiring the appellant’s brief to include a routing statement
indicating whether the case should be retained by the supreme court), 6.1101 (providing
the criteria for when the supreme court “shall ordinarily retain” cases, including “[c]ases
presenting substantial questions of enunciating or changing legal principles”).
                                         3

additional drugs. Id. They found a locked safe in the vehicle and then located

the key to the lock on the keyring in the ignition. Id. The officers opened the safe

with the key without getting a warrant, finding a loaded handgun, marijuana, and

other drug paraphernalia. Id. at 3–4.

       After Gaskins was charged, he filed a motion to suppress the items found

in the safe, arguing the officers had to get a warrant to search the safe because

there had been no threat to the officers’ safety or of possible destruction of the

items locked in the safe. Id. at 4. The State responded the warrantless search

was properly conducted as an exception to the warrant requirement—namely a

search incident to arrest (SITA). Id. The district court denied the motion to

suppress, and Gaskins was convicted of all charges following a bench trial on the

minutes of testimony.2 Id. at 4–5. He appealed, and our supreme court retained

the case. Id. at 5.

       In reaching its decision, our supreme court considered federal precedent,

noting, as the Supreme Court has, “that police had come to view vehicle

searches as an entitlement, not an exception.” Id. at 10 (citing Arizona v. Gant,

556 U.S. 332, 336–37 (2009) (“When asked at the suppression hearing why the

search [incident to arrest] was conducted, Officer Griffith responded: ‘Because

the law says we can do it.’”)). Our supreme court ultimately reversed the denial

of Gaskin’s motion to suppress, limiting the SITA exception under the Iowa

Constitution, holding:

             We approve Gant’s “reaching distance” rationale as an
       appropriate limitation on the scope of searches incident to arrest

2
 He was convicted of possession of methamphetamine and possession of marijuana,
both as an habitual offender.
                                            4


       under article I, section 8 of the Iowa Constitution because that
       limitation is faithful to the underlying justifications for warrantless
       searches incident to arrest. However, we decline to adopt Gant’s
       alternative evidence-gathering rationale for warrantless searches
       incident to arrest under the Iowa Constitution because it would
       permit the SITA exception to swallow completely the fundamental
       textual rule in article I, section 8 that searches and seizures should
       be supported by a warrant. In other words, “use of a [SITA]
       rationale to sanction a warrantless search that has nothing to do
       with its underlying justification—preventing the arrestee from gaining
       access to weapons or evidence—is an anomaly.” Although the
       evidence-gathering rationale announced in Gant limits the propriety
       of a warrantless search of an automobile and containers found
       within it incident to arrest to those instances when it is reasonable to
       believe the vehicle contains evidence of the crime of arrest,
       construing the exception this broadly “would serve no purpose
       except to provide a police entitlement.”

Id. at 13 (alteration in original) (citations omitted).

       While the majority in Gaskins did not discuss the automobile exception,

Chief Justice Cady, in a special concurrence joined by one other justice,

expressed uncertainty regarding the future need for it:3

              Additionally, a recognized exception to the warrant
       requirement cannot live beyond the life of the justification
       responsible for its existence. The automobile exception to the
       warrant requirement was created by the United States Supreme
       Court ninety years ago during Prohibition. The justification for the
       warrantless search was grounded in the practical problems for
       police of obtaining a search warrant presented by the mobility of a
       vehicle. . . . While a vehicle remains mobile, the Iowa court system

3
 Justice Appel also filed a special concurrence, joined by two other justices, asserting:
       The interesting questions regarding the validity of the automobile
       exception and its scope should not be resolved by a declaration that the
       Iowa Constitution is worded similarly to the Federal Constitution and that
       federal law must be followed, not with a declaration that we must follow
       federal law to establish uniformity, and not with a bulk citation of caselaw
       that supports the automobile exception. . . . It is our constitutional
       obligation, however, to do the nitty-gritty work of examining the available
       authorities and precedents—both state and federal—and determining
       which approach makes the most sense under article I, section 8 of the
       Iowa Constitution. In light of the court’s disposition, that analysis will
       await another day.
Gaskins, 866 N.W.2d at 38 (Appel, J., specially concurring).
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       is now the first court system in the nation to be totally electronic for
       all users at all levels. . . .
              An automatic exception to the warrant requirement,
       particularly one based on exigency, must account for the new world
       of technology, and must not continue to exist simply because it
       existed in the past.

Id. at 17 (Cady, C.J., specially concurring) (citations omitted).

       Wagamon urges that the future is now; he maintains the automobile

exception has outlived its efficacy and asks us to reexamine it.            Although

members of our supreme court may be receptive to Wagamon’s argument, we

are not at liberty to overturn precedent. See State v. Hastings, 466 N.W.2d 697,

700 (Iowa 1990) (“We are not at liberty to overturn Iowa Supreme Court

precedent.”); see also State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014)

(“Generally, it is the role of the supreme court to decide if case precedent should

no longer be followed.”).

       We affirm the district court’s denial of Wagamon’s motion to suppress.

       AFFIRMED.
