IN THE SUPREME COURT OF IOWA

No. 12–1150

Filed July 18, 2014

Amended October 15, 2014

STATE OF IOWA,

Appellee,

vs.

JUSTIN DEAN SHORT,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Plymouth County, 

James D. Scott (suppression), and Jeffrey A. Neary (trial), Judges.

A criminal defendant seeks further review of a court of appeals 

decision affirming a district court’s admission of evidence collected by 

law enforcement officers in probationer defendant’s home based upon 

reasonable suspicion of criminal activity under the Iowa Constitution. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED.

Mark C. Smith, Appellate Defender, and Theresa R. Wilson, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant 

Attorney General, Darin J. Raymond, County Attorney, for appellee.
2

APPEL, Justice.

In this case, we consider the validity of a warrantless search of a 

probationer’s home by police officers. The defendant was charged with 

burglary and theft. The defendant filed a motion to suppress, 

challenging the admissibility of evidence obtained from the search. The 

defendant contended the search warrant was invalid because it 

inaccurately described the house to be searched and because an 

alteration of the warrant based upon a telephonic conversation with the 

issuing judge was invalid. The district court overruled the motion to 

suppress. For the reasons expressed below, we reverse the district court 

and remand the case for further proceedings.

I. Factual Background and Proceedings.

On May 18, 2011, a Plymouth County deputy sheriff responded to 

a report of a burglary of a home. The deputy met with the resident who 

reported a number of missing items, including two televisions, two 

jewelry boxes with assorted jewelry, a gift card to Minerva’s Restaurant, 

and a camera. The deputy’s investigation revealed that a doorjamb had 

been broken when the door was apparently forced open. There was a 

partial shoe print on the outside of the door and partial fingerprints on 

the door. Tire impressions were found going from the concrete driveway 

into the grass along the side of the house.

Law enforcement contacted Minerva’s Restaurant and advised that 

a $100 gift card had been stolen. Based on their inquiries, sheriff 

deputies obtained a receipt from the restaurant that was generated from 

the gift card’s use. Justin Short’s signature appeared on the receipt. 

Deputies also interviewed the waitress and the manager, who identified a 

photo of Short as the person who used the card. 
3

Deputies received an informant’s tip that the car of Short’s 

girlfriend, Leya Lorenzen, was parked at 2721 Jones Street in Sioux City. 

Law enforcement obtained a search warrant for that address from a 

district associate judge in Le Mars. The application identified the place 

to be searched as a “single story wood frame home white and yellow in 

color” with a “single stall garage.” Local police assisting in the search, 

however, later reported that Lorenzen did not reside at the location 

identified on the warrant. After law enforcement inquired at the address 

identified on the warrant, the resident who answered explained that he 

did not know Lorenzen or Short but stated that there was an apartment 

next door and “people are coming and going from there all the time.” The 

new location was a two-story house that had been converted into four 

apartments. Deputies then contacted the owner of the apartment 

building and learned that Lorenzen had rented an apartment at 2723 1⁄2 

Jones Street, which was the upstairs apartment. 

At this point, law enforcement called the judge who issued the 

original search warrant and asked if they should return to Le Mars to get 

another search warrant. According to the testimony of the law 

enforcement officer at the hearing on the motion to suppress, the district 

associate judge gave law enforcement verbal authorization to change the 

address on the warrant and “to note that this was done telephonically 

through the authority of” the issuing judge. Law enforcement scratched 

out the address on the original warrant and wrote in the new address. 

Law enforcement also scratched through the word “yellow” describing the 

house, however they left the description of the place to be searched as “a 

single story wood frame home.” No statement was added to the original 

warrant indicating that it had been altered pursuant to verbal 

authorization of the court.
4

Law enforcement then conducted a search of the apartment at 

2723 1⁄2 Jones Street. Upon executing the search, police found two flat 

screen televisions, two jewelry boxes taken in the burglary, the stolen 

Minerva’s Restaurant gift card, and a receipt in Short’s wallet. After 

receiving Miranda warnings, Short admitted that he kicked in the door of 

the residence, took the missing items, and pawned some of the items at a 

local pawn shop. Short was subsequently charged with burglary and 

theft.

During the investigation, law enforcement learned that Short was 

on probation related to other crimes. Although probation officials were 

contacted in connection with the burglary investigation, they did not 

participate in the search. It is undisputed that the search was not a 

probationary search, but was instead an investigatory search by law 

enforcement related to new crimes.

Short sought to suppress all evidence obtained as a result of the 

search. In his brief to the trial court, Short claimed he had a 

constitutionally protected expectation of privacy in the apartment; his 

probation agreement did not give officers unfettered access to search; the 

altered search warrant violated Iowa Code section 808.3 (2011), which 

requires that search warrant applications be in writing; and the 

statements and evidence gathered during the search should be 

suppressed as fruit of an illegal search. The State raised a number of 

issues in its resistance, including claiming that the search warrant was 

valid even after altered, that exigent circumstances were present to 

support the search, and that the waiver in Short’s probation agreement 

authorized law enforcement personnel to search the apartment without a 

warrant. In its brief, however, the State solely argued that the search 
5

was lawful based on reasonable suspicion that Short was involved in the 

crime.

The district court entered a detailed ruling. It found that the 

application for the original warrant was not tainted, but that the 

description of the place to be searched in the original warrant was 

inadequate. In so ruling, the district court noted that the warrant 

described a single story house with a garage stall and not a two story 

house divided into apartment units with a parking lot in back rather 

than garage stalls. The description in the altered warrant cured some of 

the problems, according to the district court, but it held that the 

telephonic authorization to alter the warrant was contrary to Iowa Code 

section 808.3. The district court further found that no exigent 

circumstances existed to support an exception to the warrant 

requirement. On the issue of whether a warrantless search of a 

probationer could be upheld in this case, however, the district court held 

in favor of the State. The district court reasoned that the officers had 

reasonable suspicion to believe that stolen property would be located at 

the residence, but that in order to be valid, the search must have been 

within the contemplation of the probation agreement. As a result of the 

ruling, the evidence obtained during the search was admitted into 

evidence and Short was convicted. 

Short appealed. We transferred the matter to the court of appeals. 

The court of appeals held that the claim under article I, section 8 of the 

Iowa Constitution was adequately preserved in the district court. On the 

merits the court found that the search of a probationer based upon 

reasonable suspicion of criminal activity and based upon the limited 

scope of the search was valid under article I, section 8 of the Iowa 

Constitution.
6

We granted further review. We now vacate the decision of the 

court of appeals, reverse the decision of the district court on the motion 

to suppress, and remand the case to the district court.

II. Standard of Review.

Claims that the district court failed to suppress evidence obtained 

in violation of the Federal and Iowa Constitutions are reviewed de novo. 

State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). The same is true of 

claims of ineffective assistance of counsel. State v. Straw, 709 N.W.2d 

128, 133 (Iowa 2006). 

III. Discussion.

A. Positions of the Parties.

1. Short. Short challenges the denial of the motion to suppress on 

appeal. Short first asserts that he had a constitutionally protected 

interest in the apartment, the district court correctly determined that the 

original search warrant lacked specificity, the district court correctly 

determined that the alteration to the warrant pursuant to telephonic 

authorization was invalid, and there were no exigent circumstances to 

support a warrantless search. 

After addressing these issues, Short focuses on the fighting issue 

in this case, namely, whether the warrantless search of a probationer’s 

home by law enforcement officers violates article I, section 8 of the Iowa 

Constitution. Short claims that in State v. Ochoa we emphasized the 

property rights underpinning the sanctity of the home and highlighted 

that our cases underscore the high importance of a warrant issued by a 

neutral and detached magistrate when a home search was involved. 792 

N.W.2d 260, 284–85 (Iowa 2010). Short recognizes that the Ochoa court 

did not address “whether individualized suspicion amounting to less 

than probable cause may be sufficient in some contexts to support a 
7

focused search,” id. at 291, but argues that the reasoning in Ochoa 

suggests that a warrant requirement for a home invasion by law 

enforcement is required, see id. at 287–91. 

Short further relies on State v. Cullison, 173 N.W.2d 533 (Iowa 

1970). In that case, we invalidated a warrantless search of the home of a 

parolee. Id. at 540–41. According to Short, the holding in Cullison,

namely, that the search and seizure rights of a parolee are not reduced 

due to his or her status, id. at 538–39, “remained untouched” by Ochoa 

and applies with equal force to probationers. Short also notes that the 

search in this case was not a probationary search, but was instead a 

search by general law enforcement officers, a fact that further 

undermines the validity of the search. 

Short maintains that the state constitutional issue was adequately 

preserved in the district court. In any event, Short argues that if the 

issue was not preserved under the Iowa Constitution, his counsel was 

ineffective for not raising the issue. See Taylor v. State, 352 N.W.2d 683, 

684–85 (Iowa 1984) (describing review of claims of ineffective assistance 

of counsel). 

2. The State. The State contends that Short did not preserve his 

argument below under the Iowa Constitution. It argues that Short did 

not argue that the Iowa Constitution should be interpreted differently 

from the Fourth Amendment before the district court, and suggests that 

the district court’s citation of Ochoa should not be construed to mean 

that the Iowa Constitution was duly raised. 

The State’s sole argument on the merits of the appeal is that 

because the search of a probationer was supported by reasonable 

suspicion, the search was constitutionally valid. In support of its 

argument, the State cites Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 
8

3164, 97 L. Ed. 2d 709 (1987), and United States v. Knights, 534 U.S. 

112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). In both cases, the United 

States Supreme Court upheld warrantless searches of the homes of 

probationers based upon reasonable suspicion under the Fourth

Amendment. In Griffin, the Supreme Court upheld a warrantless search 

of a probationer by probation officers that was based upon reasonable 

suspicion and was performed in compliance with a Wisconsin regulation 

authorizing such searches. 483 U.S. at 870–71, 880, 107 S. Ct. at 3167, 

3172, 97 L. Ed. 2d at 715–16, 722. In Knights, Griffin was extended to 

include searches conducted by general law enforcement officers. 

Knights, 534 U.S. at 120–22, 122 S. Ct. at 592–93, 151 L. Ed. 2d at 506–

07. Relying upon Knights and Griffin, the State argues that Short’s claim 

under article I, section 8 of the Iowa Constitution lacks merit.

The State recognizes that in Ochoa, we departed from the 

interpretations of the United States Supreme Court. See 792 N.W.2d at 

287–91. Yet, the State argues that Ochoa did not hold that warrantless 

searches were invalid, but only that warrantless searches of parolees 

without at least some individualized suspicion were invalid. See id. at 

291. The State narrowly interprets Ochoa as indicating acquiescence in 

warrantless searches of parolees and probationers based upon 

individualized suspicion.

IV. Issue Preservation. 

We first begin our discussion of issue preservation with a review of 

what issues were not presented by the State in this appeal. The State did 

not advance an argument that the warrant originally obtained was not 

defective, that the alteration of the warrant did not violate the 

requirement of Iowa Code section 808.3, or that exigent circumstances 

existed to justify a warrantless search. We need not consider the extent 
9

to which these arguments may have had merit, as under our rules and 

our precedents they have been waived in this appeal. See Iowa R. App. 

P. 6.903(2)(g)(3) (requiring appellant to present arguments and 

supportive authority in appeal brief and stating “[f]ailure to cite authority 

in support of an issue may be deemed waiver of that issue”); State v. 

Seering, 701 N.W.2d 655, 661 (Iowa 2005) (“In the absence of an 

argument on these allegations [on appeal], we deem them waived.”);

Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (confining 

consideration to issues raised on appeal); Richardson v. Neppl, 182 

N.W.2d 384, 390 (Iowa 1970) (“A proposition neither assigned nor argued 

presents no question and need not be considered by us on review.”).

Further, although the district court cited Short’s argument that his 

probation agreement did not give law enforcement officers unfettered 

access to conduct a search, the district court specifically only found that 

“the police had the right to search Short’s residence under the terms of 

his probation” and therefore, “the search was not unlawful.” The district 

court made no finding or holding regarding whether the probation 

agreement itself constituted valid consent. Cf. Knights, 534 U.S. at 118–

20 & n.6, 122 S. Ct. at 591–92 & n.6, 151 L. Ed. 2d at 504–05 & n.6 

(“We need not decide whether Knights’ acceptance of the search 

condition constituted consent in the . . . sense of a complete waiver of his 

Fourth Amendment rights . . . because we conclude that the search of 

Knights was reasonable under our general Fourth Amendment approach 

of ‘examining the totality of the circumstances’ . . . .” (Internal quotation 

marks omitted.)). On appeal, the State did not argue that Short 

voluntarily consented to the search. The word “consent” does not appear 
10

in the State’s brief, 1 nor did the State cite cases where the issue of 

consent validated a warrantless search. As a result, the issue of whether 

the conditions of probation amounted to a voluntary consent is not 

before us.2 See Ochoa, 792 N.W.2d at 292 (finding the State’s failure to 

argue on appeal that appellant consented to a search at the door would 

ordinarily waive the issue); cf. Parkhurst v. White, 254 Iowa 477, 481, 

118 N.W.2d 47, 49 (1962) (“Appellees do not argue the question . . . and 

we consider it waived.”). As noted in Feld v. Borkowski, 790 N.W.2d 72, 

78 n.4 (Iowa 2010),

in the absence of the most cogent circumstances, we do not 

create issues or unnecessarily overturn existing law sua 

sponte when the parties have not advocated for such a 

1 In its brief, the State contends that Short “acknowledged his ‘significantly 

diminished’ expectation of privacy by signing [the] probation agreement,” which 

included a “condition” that Short would “ ‘submit [his] person . . . [and] place of 

residence . . . to search at any time, with or without a search warrant . . . by any . . . 

law enforcement officer having reasonable grounds to believe contraband is present.’ ” 

2For instance, a leading treatise explains the majority view is that consent 

provisions apply only to searches by parole or probation officers and not to searches by 

police officers, but also cites cases to the contrary. William E. Ringle, Searches and 

Seizures, Arrests and Confessions § 17:8 & n.31, at 17-32 (2d ed. 2004). At least two 

cases hold that search provisions in probation conditions are coerced and cannot be 

enforced. See People v. Peterson, 233 N.W.2d 250, 255 (Mich. Ct. App. 1975); Tamez v. 

State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976). Yet another court has ruled that a 

probation condition may be enforced only to the extent there is reasonable suspicion 

and when traditionally a search warrant has not been required. Commonwealth v. 

LaFrance, 525 N.E.2d 379, 383 (Mass. 1988). Another approach is that court-ordered 

probation conditions may permit warrantless searches, but the evidence is admissible 

only in a probation proceeding. Grubbs v. State, 373 So. 2d 905, 909–10 (Fla. 1979). In 

another case, the court emphasized that search and seizure conditions on probation 

should be “sparingly imposed and . . . reasonably related to the offense for which the 

defendant was convicted” and that where this requirement was met, and the condition 

was clearly explained to him before signing, the provision was enforceable. State v. 

Morgan, 295 N.W.2d 285, 288–89 (Neb. 1980). Another court has suggested that 

search and seizure provisions in probation agreements may be valid “except when 

procured by fraud, duress, fear, or intimidation or when it is merely a submission to the 

supremacy of the law.” Rivera v. State, 667 N.E.2d 764, 766 (Ind. Ct. App. 1996). 

There is no factual record and no briefing before us that would allow us to explore these 

interesting permutations of the consent issue. 

 
11

change . . . . [W]e are restrained to apply the controlling law 

as advocated by the parties . . . .

(Citation omitted.) It is important that our waiver rules be consistently 

applied in all cases and that we not apply special rules for certain parties 

without a principled basis for doing so.3 

We now turn to issue preservation questions related to Short’s 

claims. The State suggests that the constitutionality of the search under 

article I, section 8 of the Iowa Constitution was not presented to the 

district court. In his motion to suppress, however, Short specifically 

cited article I, section 8 of the Iowa Constitution as the basis for his 

argument that the search was invalid because there was no effective 

warrant. Further, the district court appears to have recognized the state 

constitutional argument in its opinion when it extensively discussed 

Ochoa, a case solely involving article I, section 8 of the Iowa Constitution, 

see 792 N.W.2d at 284–86. It is clear that Short was claiming to the 

district court that a warrant was required for the search under the Iowa 

Constitution. We therefore agree with the court of appeals that the issue 

presented on appeal was adequately preserved. See Lamasters v. State, 

821 N.W.2d 856, 864 (Iowa 2012) (“If the court’s ruling indicates that the 

court considered the issue and necessarily ruled on it, even if the court’s 

reasoning is incomplete or sparse, the issue has been preserved.” 

(Internal quotation marks omitted.)); State v. Paredes, 775 N.W.2d 554, 

561 (Iowa 2009) (“[W]here a question is obvious and ruled upon by the 

district court, the issue is adequately preserved.”). 

3No party, for instance, asks us to revisit Racing Ass’n of Central Iowa v. 

Fitzgerald, 675 N.W.2d 1 (Iowa 2004), Ochoa, 792 N.W.2d 260, State v. Pals, 805 

N.W.2d 767 (Iowa 2011), or State v. Baldon, 829 N.W.2d 785 (Iowa 2013). 

 
12

V. Warrantless Searches of the Homes of Probationers by Law 

Enforcement Officers.

A. Introduction. The larger question of whether law enforcement 

officers may search a probationer’s home without a valid warrant under 

the facts of this case depends upon resolution of two subsidiary 

questions. The first question is whether a warrantless search of a 

probationer’s home is permissible when, as here, reasonable suspicion of 

criminal activity is present. If the answer to this question is yes, a 

second question emerges—namely, whether law enforcement officers, as 

distinguished from probation officers, may conduct the search. 

In considering these issues under article I, section 8 of the Iowa 

Constitution, we reach our decisions independently of federal 

constitutional analysis. We may, of course, consider the persuasiveness 

of federal precedent, but we are by no means bound by it. See Ochoa, 

792 N.W.2d at 267 (“The degree to which we follow United States 

Supreme Court precedent, or any other precedent, depends solely upon 

its ability to persuade us with the reasoning of the decision.”); see also 

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). We may look to the 

caselaw of other states, to dissenting opinions of state and federal courts, 

and to secondary materials for their persuasive power. See State v. 

Baldon, 829 N.W.2d 785, 792–800 (Iowa 2013) (considering secondary 

sources and court decisions from other states); Ochoa, 792 N.W.2d at 

276–87 (discussing state caselaw, federal dissenting opinions, and 

academic commentary).

B. Established Principles of Independent State Constitutional 

Law. 

1. Introduction. Neither party has questioned or sought to limit 

our responsibility to independently construe the Iowa Constitution. 
13

Neither party, for example, has suggested on appeal that this court’s 

approach to independent state law as outlined in Ochoa, Pals, or Baldon

is incorrect or should be modified. Our approach to reviewing 

independent state constitutional claims was thoroughly explored in

Baldon, Pals, and Ochoa. See Baldon, 829 N.W.2d at 803–35 (Appel, J., 

concurring specially); Pals, 805 N.W.2d at 771–72; Ochoa, 792 N.W.2d at 

264–67, 287–91. For the purpose of clarity and emphasis, we review the 

principles of our independent state constitutional jurisprudence reflected 

in these cases. 

2. States’ constitutions as the original protectors of individual 

rights; the Federal Constitution as the follower of state tradition. At the 

outset, we note that state constitutions and not the Federal Constitution 

were the original sources of written constitutional rights. See Baldon, 

829 N.W.2d at 803–09 (Appel, J., concurring specially). For example, 

eight state constitutions had provisions related to search and seizure 

prior to the adoption of the Federal Constitution. Bernard Schwartz, The 

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

(expanded ed. 1992). John Adams, who attended oral argument by 

James Otis in Paxton’s Case, was the drafter of article XIV of the 

Massachusetts Constitution of 1780, one of the important state 

constitutional precursors of the Fourth Amendment. See Baldon, 829 

N.W.2d at 805–06. 

At the federal constitutional convention, whenever the issue of 

individual rights arose, the founders repeatedly expressed the view that 

they looked to the states for the preservation of individual rights. James 

Wilson declared that the purpose of the states was “ ‘to preserve the 

rights of individuals.’ ” Baldon, 829 N.W.2d at 808 (quoting 1 Records of 

the Federal Convention of 1787, at 356 (Max Farrand ed., 1937)). Oliver 
14

Ellsworth, who would later become Chief Justice of the United States 

Supreme Court, declared at the constitutional convention that “ ‘he 

turned his eyes’ ” to state governments “ ‘for the preservation of his 

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

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

Under State Constitutions 1, 4 (Paul Finkelman & Stephen E. Gottlieb 

eds., 1991). James Madison, in The Federalist No. 45, declared that 

“ ‘[t]he powers reserved to the several States will extend to all the objects, 

which, in the ordinary course of affairs, concern the lives, liberties, and 

properties of the people . . . .’ ” Baldon, 829 N.W.2d at 808 (quoting The 

Federalist No. 45, at 363 (James Madison) (John C. Hamilton 1868)). 

Given the primary role of the states in developing individual rights, 

it is not surprising that, “prior to the adoption of the federal Constitution, 

each of the rights eventually recognized in the federal Bill of Rights had 

previously been protected in one or more state constitutions.” William J. 

Brennan Jr., State Constitutions and the Protection of Individual Rights, 

90 Harv. L. Rev. 489, 501 (1977). As noted by a leading scholar in the 

area, there is now an emerging consensus that the Federal Bill of Rights 

originated in state and colonial rights guarantees. See Robert F. 

Williams, The State Constitutions of the Founding Decade: Pennsylvania’s 

Radical 1776 Constitution and Its Influences on American 

Constitutionalism, 62 Temp. L. Rev. 541, 541 (1989) (“Constitutional 

scholars have long recognized that many of the features of the United 

States Constitution were modeled on the earlier state constitutions.”). 

The provisions of the Bill of Rights, including the Fourth Amendment, 

were modeled by state constitutional provisions and not vice versa as is 

commonly assumed. See Steven G. Calabresi et al., State Bills of Rights 

in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in 
15

American History and Tradition?, 85 S. Cal. L. Rev. 1451, 1452–53 (2012) 

(noting that rights in the Federal Bill of Rights emerge from state and 

colonial bills of rights).

3. Strong emphasis on individual rights under the Iowa 

Constitution. The bill of rights in the Iowa Constitution was not 

considered by Iowa constitutional writers as some kind of appendage 

controlled by federal court interpretations. Unlike the Federal 

Constitution, the bill of rights was part of the first articles of the Iowa 

Constitutions of 1846 and 1857.4 According to George Ells, Chair of the 

Committee on the Preamble and Bill of Rights, “the Bill of Rights is of 

more importance than all the other clauses in the Constitution put 

together, because it is the foundation and written security upon which 

the people rest their rights.” 1 The Debates of the Constitutional

Convention of the State of Iowa 103 (W. Blair Lord rep., 1857) [hereinafter 

The Debates], available at www.statelibraryofiowa.org/services/

collections/law-library/iaconst. Article I, section 1, borrowed from the 

Virginia Declaration of Rights, speaks of “inalienable rights” that are 

presumably beyond the reach of majoritarian government. See Iowa 

Const. art. I, § 1; Virginia Declaration of Rights (1776), available at

http://www.archives.gov/exhibits/charters/virginia_declaration_of_right

s.html. Article I, section 8 of the Iowa Constitution of 1857 mirrors the 

language of the Fourth Amendment except for a semicolon that was 

placed between the reasonableness clause and the warrant clause in the 

Iowa Constitution. Compare U.S. Const. amend. IV, with Iowa Const. 

art. I, § 8. This semicolon suggests the framers believed that there was a 

relationship between the reasonableness clause and the warrant clause, 

4We will refer to the Iowa Constitution of 1857 as the Iowa Constitution.

 
16

much as was the case with the original search and seizure provision of 

the Massachusetts Constitution of 1780. See Ochoa, 792 N.W.2d at 268–

69 & n.7. 

Indeed, there is powerful evidence that the Iowa constitutional 

generation did not believe that Iowa law should simply mirror federal 

court interpretations. While the due process clause of article I, section 9 

of the Iowa Constitution was similar to the Due Process Clause of the 

United States Constitution, Ells noted that the clause was “violated again 

and again by the dominant party in the land, which rides rough-shod 

ove[r] the necks of freemen.” The Debates at 102. Further, Ells noted 

that 

[i]f the words ‘due process of law,’ shall in time be recognized 

by our judicial tribunals to mean what they really do mean 

. . . [t]hen, sir, that infamous Fugitive Slave Law will become 

a nu[l]lity, and the American people will trample its odious 

enactments in the dust. 

Id. Of course, during this time period the United States Supreme Court 

upheld the Fugitive Slave Law from constitutional attack. See, e.g., 

Ableman v. Booth, 62 U.S. (21 How.) 506, 526, 16 L. Ed. 169, 177 (1858) 

(“[T]he act of Congress commonly called the fugitive slave law is, in all of 

its provisions, fully authorized by the Constitution of the United States

. . . .”). 

As has often been celebrated, the first decision of the Supreme 

Court of the Territory of Iowa, In re Ralph, rejected the claim that a slave 

present in a free state should be returned to his master, noting that

under Iowa law a slave within the free territory of Iowa is not “property” 

and that the laws regarding illegal restraint apply “to men of all colors 

and conditions.” 1 Morris 1, 7 (Iowa 1839). Counsel for Ralph urged 

that as a result of the organic law (specifically referring to the territorial 
17

constitutions of Wisconsin and Iowa), Ralph was a free man. Id. at 2. 

Specifically, counsel asserted that under the organic law of Iowa and 

Wisconsin, “ ‘[n]o man shall be deprived of his liberty, or property, but by

the judgment of his peers, or the law of the land.’ ”5 Id. (quoting the 

Northwest Ordinance of 1787, art. 2, in 32 Journals of the Continental 

Congress 1774–1789, at 340 (Roscoe R. Hill, ed. 1936) [hereinafter 

Journals]). He further argued that under the organic law, “There shall be 

neither slavery nor involuntary servitude in the said territory . . . .” Id.

(quoting the Northwest Ordinance of 1787, art. 6, in Journals at 343).

The Iowa court held for Ralph. Id. at 7. In closing, however, the 

court emphasized that when a person “illegally restrains a human being 

of his liberty, it is proper that the laws, which should extend equal 

protection to men of all colors and conditions, should exert their 

remedial interposition.” Id. The decision in In re Ralph flatly 

contradicted the infamous Dred Scott decision of the United States 

Supreme Court in 1857. See Dred Scott v. Sanford, 60 U.S. (19 How.) 

393, 451, 15 L. Ed. 644, 691 (1856) (“[T]he right of property in a slave is 

distinctly and expressly affirmed in the Constitution.”), superseded by 

constitutional amendment, U.S. Const. amend. XIV; In re Ralph, 1 Morris 

at 7. 

While Dred Scott was decided after the Iowa Constitutional 

Convention of 1857 adjourned, the first state legislature convened under 

5As explained by Shambaugh, the bill of rights set forth in the Constitution of 

the Territory of Iowa was “exceedingly brief” and consisted solely of incorporation of the 

rights, privileges, and immunities granted to the Territory of Wisconsin. See

Benjamin F. Shambaugh, The History of the Constitutions of Iowa 116 (1902). The 

Constitution of the Territory of Wisconsin, in turn, incorporated the provisions of the 

Northwest Ordinance of 1787, which contained a bill of rights. Id. at 116–17. As a 

result, “the provisions of the Ordinance of 1787 are by implication made part of the 

Constitution of the Territory of Iowa.” Id. at 117–18. 

 
18

the new Iowa Constitution expressed its view on the Dred Scott decision 

and its reasoning. The Iowa legislature declared in a resolution that “the 

case of Dred Scott, is not binding in law or conscience upon the 

government or people of the United States,” and that 

we should be ungrateful to those whose care and foresight 

provided for us free homes, and derelict in our duty to those 

who still come after us, did we not promptly and sternly 

denounce this new doctrine, which if established, degrades 

the free states.

1858 Iowa Acts Res. 12, at 433. We have not found a record of the 

debate on the resolution, but there is little doubt that an argument that 

Iowa courts should defer to Dred Scott in the interpretation of the Iowa 

Constitution as presumptively valid would not have received a favorable 

reception. 

The independent authority of state courts to construe state 

constitutional provisions free from federal precedent was early recognized 

in McClure v. Owen, 26 Iowa 243, 254–55 (1868). In McClure, we stated:

The same principles that require the federal courts to follow 

the decisions of the State courts in construing statutes, and 

to recognize rules of local law, require the federal courts to 

follow the construction given the [state] Constitution by the 

highest state tribunal.

Id. at 255. As is often celebrated, our subsequent cases dealing with the 

rights of African Americans adopted an approach much different than 

the United States Supreme Court ultimately adopted in Plessy v. 

Ferguson, 163 U.S. 537, 540–52, 16 S. Ct. 1138, 1139–44, 41 L. Ed. 256, 

257–61 (1896) (upholding state law requiring separate but equal 

accommodations for white and nonwhite railway passengers as 

constitutional against challenges under the Thirteenth and Fourteenth 

Amendments), overruled by Brown v. Board of Education, 347 U.S. 483, 
19

494, 74 S. Ct. 686, 692, 98 L. Ed. 873, 880–81 (1954) (rejecting the 

separate but equal doctrine in the context of public education). See

Coger v. Nw. Union Packet Co., 37 Iowa 145, 154–57 (1873) (citing article 

I, section 1 of the Iowa Constitution in rejecting the notion that African 

Americans could be subjected to different treatment in public 

transportation); Clark v. Bd. of Dirs., 24 Iowa 266, 276–77 (1868) 

(rejecting the argument that a school district could forbid African

American children from attending school on the ground of race). In State 

v. Tonn, we emphasized that we were free to depart from federal 

constitutional analysis in considering the search and seizure provision of 

the Iowa Constitution. See 195 Iowa 94, 104–07, 191 N.W. 530, 535–36 

(1923) (recognizing the decided weight of state authority against the rule 

of a federal case and determining we would forge a different path), 

abrogated on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81 

S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1089–90 (1961).

4. The diminution in substance of federal rights resulting from 

incorporation triggers renewal of independent state constitutional law. 

Beginning with Gitlow v. New York, the United States Supreme Court 

began to incorporate against the states various provisions of the Bill of 

Rights under the Due Process Clause of the Fourteenth Amendment. 

268 U.S. 652, 666, 45 S. Ct. 625, 630, 69 L. Ed. 1138, 1145 (1925) 

(“[W]e may and do assume that freedom of speech and of the press—

which are protected by the First Amendment from abridgment by 

Congress—are among the fundamental rights . . . protected by the Due 

Process Clause of the Fourteenth Amendment from impairment by the 

states.”). The incorporation of the Bill of Rights, however, created a 

tendency for the United States Supreme Court to dilute the substance of 

the rights themselves. See Baldon, 829 N.W.2d at 813 (“In the period 
20

following the incorporation revolution ending with Mapp, there is no 

doubt the strength and scope of the Fourth Amendment’s protection has 

been dramatically reduced by the United States Supreme Court.”). Any 

review of the relationship between state and federal constitutional 

interpretation that fails to understand or ignores this fundamental and 

powerful legal riptide is flawed.

In a series of opinions, Justice Harlan presciently predicted that 

one of the unintended consequences of the extension of federal 

constitutional rights to the states would be their dilution. Williams v. 

Florida, 399 U.S. 117, 136, 90 S. Ct. 1914, 1925, 26 L. Ed. 2d 446, 474 

(1970) (Harlan, J., dissenting) (recognizing the decision to allow a six 

person jury “simply reflects the lowest common denominator in the scope 

and function of the right to trial by jury”); Duncan v. Louisiana, 391 U.S. 

145, 182 n.21, 88 S. Ct. 1444, 1466 n.21, 20 L. Ed. 2d 491, 514 n.21 

(1968) (Harlan, J., dissenting) (noting “a major danger of the 

‘incorporation’ approach—that provisions of the Bill of Rights may be 

watered down in the needless pursuit of uniformity”); Ker v. California, 

374 U.S. 23, 45, 83 S. Ct. 1623, 1646, 10 L. Ed. 2d 726, 745 (1963) 

(Harlan, J., concurring in judgment) (pondering whether the United 

States Supreme Court “[was] prepared to relax Fourth Amendment 

standards in order to avoid unduly fettering the States”). 

We have seen the federalism discount predicted by Justice Harlan 

operate with full force in the search and seizure context. Since 

incorporation, the relatively clear requirements of the Warrant Clause 

have been overridden by vague notions of reasonableness, the role of 

consent has changed from its narrow beginnings to a more protean 

formulation, and the exclusionary rule has been substantially eroded by 

a good faith exception. See California v. Acevedo, 500 U.S. 565, 582–83, 
21

111 S. Ct. 1982, 1992–93, 114 L. Ed. 2d 619, 636 (1991) (Scalia, J., 

concurring in judgment) (recognizing development of nearly two dozen 

exceptions to the warrant requirement); United States v. Leon, 468 U.S. 

897, 923–24, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677, 699 (1984) 

(announcing the “good faith exception” to the exclusionary rule); 

Schneckloth v. Bustamonte, 412 U.S. 218, 234–46, 93 S. Ct. 2041, 2056–

58, 36 L. Ed. 2d 854, 872–74 (1973) (departing from the narrow consent 

doctrine established in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 

1019, 1023, 82 L. Ed. 1461, 1466 (1938)). See generally Baldon, 829 

N.W.2d at 812–14 (“Nothing in the Supreme Court’s incorporation 

doctrine as it related to the Fourth Amendment altered the independent 

nature of state constitutional provisions related to search and seizure 

. . . . Incorporation of the provisions of the Bill of Rights of the United 

States Constitution against the states through the Due Process Clause of 

the Fourteenth Amendment established a federal floor related to civil 

liberties.”); George C. Thomas III, When Constitutional Worlds Collide:

Resurrecting the Framers’ Bill of Rights and Criminal Procedure, 100 Mich. 

L. Rev. 145, 150–51 (2001) (observing that after incorporation of the Bill 

of Rights, “the dilution of [the Bill of Rights] flowed backward[s]” and that 

“the process of incorporation took a sledgehammer to the federal criminal 

procedure guarantees”). According to Professor Williams, decisions of the 

United States Supreme Court declining to recognize rights “must always 

be viewed as partially attributable to ‘underenforcement’ ” as a result of 

federalism and other institutional concerns that explicitly or implicitly

pervade Supreme Court decisions. Robert F. Williams, The Law of 

American State Constitutions 137 (2009) [hereinafter Williams]; cf. State v. 

Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring) (noting 
22

hesitancy of the United States Supreme Court “to impose on a national 

level far-reaching constitutional rules binding on each and every state”). 

As a result of the United States Supreme Court’s retreat in the 

search and seizure area, there has been a sizeable growth in independent 

state constitutional law. A survey of jurisdictions in 2007 found that a 

majority of the state supreme courts have departed from United States 

Supreme Court precedents in the search and seizure area to some 

degree. See generally Michael J. Gorman, Survey: State Search and 

Seizure Analogs, 77 Miss. L.J. 417 (2007). There are now hundreds of 

independent state constitutional search and seizure cases, and the 

number grows over time. Because of the tendency of the United States 

Supreme Court to underenforce or dilute search and seizure principles, it 

can be argued that these precedents are “entitled to less weight than 

other state decisions interpreting similar state constitutional law 

provisions.” Williams at 137; cf. State v. Black, 815 S.W.2d 166, 193 

(Tenn. 1991) (Reid, C.J., concurring in part and dissenting in part) 

(“Tennessee constitutional standards are not destined to walk in lock 

step with uncertain and fluctuating federal standards and do not relegate 

Tennessee citizens to the lowest levels of constitutional protection, those 

guaranteed by the national constitution.”). 

The growth of independent state constitutional law, however, has 

not been universally celebrated. As Professor Williams has bemoaned, 

adoption of independent state constitutional law has occasionally 

provoked what Williams has called a “bitter, accusatorial” dissent. 

Williams at 180 (citing People v. Scott, 593 N.E.2d 1328, 1348–49 (N.Y.

1992) (Bellacosa, J., dissenting)). Yet, as was noted twenty years ago in 

connection with independent state constitutional law, “heightened 

rhetoric adds nothing to the jurisprudence of our State.” State v. Canelo, 
23

653 A.2d 1097, 1106 (N.H. 1995) (Johnson, J., concurring specially). 

And, according to a leading authority on state constitutions, writing in 

1998, the concern about the legitimacy of relying on state constitutional 

guarantees “has largely been put to rest.” G. Alan Tarr, Understanding 

State Constitutions 169 (1998). 

5. The aggressive, maximalist character of lockstep approach as 

“precommitment device” preventing independent examination of facts and 

law. One question is whether state courts should engage in independent 

state constitutional analysis when the language of their state 

constitutional provisions are similar or identical to their federal 

counterparts. There is ample precedent for the notion that the mere 

similarity of language does not prevent state courts from engaging in 

independent analysis. See, e.g., State v. Gershoffer, 763 N.E.2d 960, 965 

(Ind. 2002) (“The Indiana Constitution has unique vitality, even where its 

words parallel federal language.”); People v. Barber, 46 N.E.2d 329, 331 

(N.Y. 1943) (recognizing the court was bound to exercise independent 

judgment under the state constitution); State v. Arrington, 319 S.E.2d 

254, 260 (N.C. 1984) (noting the court was not bound by the United 

States Supreme Court’s construction of identical constitutional 

provisions); Commonwealth v. Edmunds, 586 A.2d 887, 894–95 (Pa. 

1991) (stating the court was free to reject United States Supreme Court 

conclusions if it remained faithful to the Federal Constitution’s minimum 

guarantees). 

The notion that parallel language in the Iowa Constitution is not 

tied to United States Supreme Court interpretations in the search and 

seizure area was powerfully endorsed by Judge Sutton of the United 

States Court of Appeals for the Sixth Circuit, who wrote in a published 

article:
24

There is no reason to think, as an interpretive matter, that 

constitutional guarantees of independent sovereigns, even 

guarantees with the same or similar words, must be 

construed the same. Still less is there reason to think that a 

highly generalized guarantee, such as prohibition on 

“unreasonable” searches, would have just one meaning for a 

range of differently situated sovereigns. 

Jeffrey S. Sutton, What Does—and Does Not—Ail State Constitutional

Law, 59 U. Kan. L. Rev. 687, 707 (2011). Judge Sutton further asks why 

we should live in a “top-down constitutional world,” when allowing states 

to decide whether to embrace or accept innovative legal claims can 

inform the United States Supreme Court when considering whether to 

federalize the rule. Id. at 712–13 (internal quotation marks omitted).

Indeed, according to Professor Williams, lockstepping state law to 

federal precedents is not a humble or minimalist approach, but is an 

aggressive and maximalist approach to the law. See Williams at 224–29

(discussing several problems to the lockstepping approach). It amounts 

to what Professor Adrian Vermeule refers to as a “precommitment device” 

that prevents a state supreme court from considering each case based on 

an independent examination of facts and law. See Adrian Vermeule, The 

Judicial Power in the State (and Federal) Courts, 2000 Sup. Ct. Rev. 357, 

366 (2000). 

6. The double irony in the appeal to uniformity. The independent 

state law cases also address the question of the value of uniformity. 

First, it is doubtful that uniformity is a constitutional value in a federal 

system. Indeed, diversity of constitutional analysis is baked into the 

constitutional cake where states retain sovereign authority over 

questions not delegated to the federal government by the United States 

Constitution. As noted by Professor Williams, reliance on decisions of

the United States Supreme Court to interpret state constitutional 

provisions is “misplaced” and an “unwarranted delegation of state power 
25

to the Supreme Court.” Robert F. Williams, In the Supreme Court’s 

Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and 

Result, 35 S.C. L. Rev. 353, 403–04 (1984). In an era when societies 

advocate renewal of federalism by returning power to the state, it is 

ironic that an exception is made for state judicial power. 

There is a second irony. Although the claim is sometimes made 

that adoption of the United States Supreme Court’s approach in the 

search and seizure area will promote uniformity or ease of 

administration, the opposite is in fact true. Consider this. The 

jurisprudence of the United States Supreme Court in the search and 

seizure area has been characterized by scholars as “not merely complex 

and contradictory, but often perverse.” Akhil Reed Amar, Fourth 

Amendment First Principles, 107 Harv. L. Rev. 757, 758 (1994).6 These 

descriptions have resulted, in part, because the United States Supreme 

6 Other commentators have expressed similar criticism of Federal Fourth 

Amendment jurisprudence. See, e.g., Ronald J. Allen & Ross M. Rosenberg, The Fourth 

Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 

St. John’s L. Rev. 1149, 1149 (1998) (“a mess”); Craig M. Bradley, Two Models of the 

Fourth Amendment, 83 Mich. L. Rev. 1468, 1468 (1985) (“a mass of contradictions and 

obscurities”); Thomas K. Clancy, The Fourth Amendment’s Concept of Reasonableness, 

2004 Utah L. Rev. 977, 978 (2004) (“irreconcilable”); Jennifer Friesen, State Courts as 

Sources of Constitutional Law: How to Become Independently Wealthy, 72 Notre Dame L. 

Rev. 1065, 1092 (1997) (“illogical and unwieldy”); Orin S. Kerr, Four Models of Fourth 

Amendment Protection, 60 Stan. L. Rev. 503, 504–05 (2007) (“remains remarkably 

opaque”); Erik G. Luna, Sovereignity and Suspicion, 48 Duke L.J. 787, 787–88 (1999) 

(“more duct tape on the Amendment’s frame and a step closer to the junkyard”); Donald 

R.C. Pongrace, Stereotypification of the Fourth Amendment’s Public/Private Distinction: 

An Opportunity for Clarity, 34 Am. U. L. Rev. 1191, 1208 (1985) (“in a state of theoretical 

chaos”); Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. Rev. 1511, 1511 

(2010) (“riddled with inconsistency and incoherence”); David E. Steinberg, The Uses and 

Misuses of Fourth Amendment History, 10 U. Pa. J. Const. L. 581, 581 (2008) (“doctrinal 

incoherence of Fourth Amendment law” “disturbs many judges and scholars”); Silas J. 

Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional 

Theory, 77 Geo. L.J. 19, 29 (1988) (“inconsistent and bizarre results”); and Richard G. 

Wilkins, Defining the “Reasonable Expectation of Privacy”: An Emerging Tripartite 

Analysis, 40 Vand. L. Rev. 1077, 1107 (1987) (“distressingly unmanageable”).

 
26

Court has applied at least five different analytical models to search and 

seizure cases, based upon the warrant requirement, individualized 

suspicion, case-by-case analysis, a balancing test, and an approach 

relying on common law plus balancing. See Thomas K. Clancy, The 

Fourth Amendment: Its History and Interpretation 470–511 (2008). Even 

members of the Supreme Court have characterized its Fourth 

Amendment jurisprudence as “an inconsistent jurisprudence that has 

been with us for years.” Acevedo, 500 U.S. at 583, 111 S. Ct. at 1993, 

114 L. Ed. at 636 (Scalia, J., concurring in judgment). 

If these authorities are only half right, incorporation of the body of 

federal law under the Iowa Constitution will incorporate confusion, not 

certainty. Cf. State v. Caraher, 653 P.2d 942, 946 (Or. 1982) (“Eight 

years of uniformity with U.S. Supreme Court decisions has not, however, 

brought simplification to the law of search and seizure in this state.”); 

Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 14–15 

(Tenn. 2000) (noting Tennessee constitutional standards not designed to 

walk in lockstep with “uncertain and fluctuating federal standards”); 

State v. Jackson, 937 P.2d 545, 550 (Utah Ct. App. 1997) (noting two 

Utah Supreme Court departures from United States Supreme Court 

search and seizure precedent, done for purpose of establishing more 

workable rule for police and trial courts). See generally 1 Jennifer 

Friesen, State Constitutional Law: Litigating Individual Rights, Claims,

and Defenses § 1:03[4][b], at 1-16 (4th ed. 2006) [hereinafter Friesen]

(“Independent holdings in the states can, and do, bring stability and 

simplicity to constitutional law in the face of frequent, baffling 

inconsistencies and changes in Supreme Court doctrines.”). Indeed, a 

stronger, clearer warrant requirement, such as advocated by Short in 

this case, will create greater, not less, uniformity and certainty. 
27

7. The burdens on law enforcement and lawyers. The lack of 

uniformity does not create a substantial burden on professional law 

enforcement who now receive professional training and are assisted by 

well-educated county attorneys in their law enforcement functions. 

Further, law enforcement officers need to be acquainted only with one 

standard, namely, whatever standard is most restrictive. See 1 Friesen

§ 1.03[4][b], at 1-15. There is simply no reason to believe that Iowa law 

enforcement is less capable than its counterparts in states such as New 

York, New Jersey, Washington, or Oregon, where independent state 

constitutional law has been embraced by the state courts. See Baldon, 

829 N.W.2d at 814–15. 

It could be asserted that independent state constitutional law 

creates a burden for lawyers. For instance, teaching opinions written 

decades ago suggesting that lawyers might commit malpractice by failing 

to pursue state constitutional theories may provoke criticism. See, e.g., 

State v. Lowry, 667 P.2d 996, 1013 (Or. 1983) (Jones, J., concurring 

specially) (“Oregon . . . lawyers . . . should recognize that under the 

majority’s philosophy and the most recent reflections by the United 

States Supreme Court . . . they should not rely upon the substantial 

changes in federal constitutional cases recently decided by the United 

States Supreme Court. . . . Any defense lawyer who fails to raise an 

Oregon Constitution violation and relies solely on parallel provisions 

under the federal constitution, except to exert federal limitations, should 

be guilty of legal malpractice.”), disapproved on other grounds by State v. 

Owens, 729 P.2d 524, 531 (Or. 1986). Yet, over two decades ago, an 

experienced Iowa appellate lawyer, writing in the pages of the Drake Law 

Review, declared that “ignorance should be no excuse in the third 

century of American law” for the failure of lawyers to develop state 
28

constitutional arguments different from federal precedents, noting that 

between 1971 and 1986 there were over three hundred cases where state 

courts departed from federal precedents in the interpretation of state 

constitutional law. See Bruce Kempkes, The Natural Rights Clause of the 

Iowa Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593, 

656–57 (1993). The number of independent state constitutional cases 

has grown exponentially since then. In 2010, the Conference of Chief 

Justices passed a resolution urging law schools to teach state 

constitutional law, noting, among other things, that state constitutional 

guarantees of rights “ ‘are often greater than federally guaranteed 

individual rights and liberties’ ” and that “ ‘being a competent and 

effective lawyer requires an understanding of both the Federal 

Constitution and state constitutional law.’ ” Robert F. Williams, Why 

State Constitutions Matter, 45 New Eng. L. Rev. 901, 912 (2011) (citation 

omitted). 

The work required to be a “competent and effective” lawyer as 

envisioned by the Conference of Chief Justices is not overwhelming. As 

noted by Jennifer Friesen in her important treatise on state 

constitutional law, lawyers may find cases rejecting federal precedents by 

simply checking relevant citations. See 2 Friesen § 11.01 n.5, at 11-4. 

In addition to readily searchable caselaw, there is now a very large 

volume of readily accessible secondary materials discussing just about 

every aspect of state constitutional law. A diligent lawyer thus has ready 

access to the materials necessary to develop state constitutional law 

arguments. 

8. “Criteria” as a solution in search of a problem. The independent 

state constitutional cases also address the issue of whether there should 

be some kind of “criteria” before a state court engages in independent 
29

legal analysis. As Professor Williams has pointed out, “[t]he often 

unstated premise that U.S. Supreme court interpretations of the federal 

Bill of Rights are presumptively correct for interpreting analogous state 

provisions is simply wrong.” Williams at 135. Williams notes that John 

Paul Stevens referred to the “misplaced sense of duty” which occurs 

when a state court believes the boundaries of its state constitution are 

marked by the Supreme Court in its interpretation of the Federal 

Constitution. See id. at 170 (citing Delaware v. Van Arsdall, 475 U.S. 

673, 699, 106 S. Ct. 1431, 1445, 89 L. Ed. 2d 674, 696 (1986) (Stevens, 

J., dissenting)). As noted by Utah Chief Justice Christine Durham:

Independent analysis must begin with the constitutional text 

and rely on whatever assistance legitimate sources may 

provide in the interpretive process. There is no presumption 

that federal construction of similar language is correct.

State v. Tiedemann, 162 P.3d 1106, 1114 (Utah 2007); see State v. 

Kennedy, 666 P.2d 1316, 1322 (Or. 1983) (noting “the non sequitur that 

the United States Supreme Court’s decisions under [the Federal Bill of 

Rights] not only deserve respect but presumptively fix its correct meaning 

also in state constitutions”). 

While it has been observed that “[c]itation to a federal opinion . . . 

too often serves as a substitute for the considered reasoning that should 

accompany a particular interpretation of a state’s constitution,”

Lawrence Friedman & Charles H. Baron, Baker v. State and the Promise 

of the New Judicial Federalism, 43 B.C. L. Rev. 125, 127 (2001), our 

independent authority to construe the Iowa Constitution does not mean 

that we generally refuse to follow the United States Supreme Court 

decisions. For example, in State v. Breuer, we rejected the approach of 

another state court that required the physical presence of a warrant at 

the location of a judicially authorized search or seizure. 808 N.W.2d 
30

195, 199–201 (Iowa 2012). We determined that the approach of the 

United States Supreme Court provided the most persuasive reasoning. 

See id. at 197–201. Certainly adoption of appropriate federal precedents 

that “illuminate open textured provisions” of a state constitution is not a 

compromise of the court’s obligation to independently construe the 

provision. See State v. Lamme, 579 A.2d 484, 490 (Conn. 1990). We 

should feel free to adopt the approach of persuasive federal precedent 

but should “never feel compelled to parrot” federal interpretations. 

Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992). What is required

under the Iowa Constitution, in each and every case that comes before 

us, is not mere identification of a potentially analogous federal precedent, 

but exercise of our best, independent judgment of the proper parameters 

of state constitutional commands. 

In addition to arising from a substantively flawed premise, criteria 

approaches further have the potential to complicate and distort the 

nature of judicial decisions by encouraging elaborate discussion on the 

nature of the arcane criteria itself rather than the broad values 

underlying the constitutional provision. Cf. Williams at 162, 167–68. As 

a result, one of the states that first developed a criteria approach, 

Washington, has now emphasized that the criteria are only 

“nonexclusive.” Sofie v. Fibreboard Corp., 771 P.2d 711, 725 (Wash. 

1989) (citing State v. Wethered, 755 P.2d 797, 800 (Wash. 1988)). 

9. Limitations of advocacy and preservation. Notwithstanding the 

development of independent state constitutional law, in many cases 

lawyers do not advocate an Iowa constitutional standard different from 

the generally accepted federal standard. As a matter of prudence, we 

have adopted the approach in these cases that we will utilize the general 

standard urged by the parties, but reserve the right to apply the 
31

standard in a fashion different than the federal caselaw. See Baldon, 

829 N.W.2d at 822–23. As a majority of this court noted in State v.

Edouard, such an approach is sound practice. See State v. Edouard, ___

N.W.2d ___ (2014). There can often be considerable difference among 

judges and courts in the application of open textured constitutional 

principles such as “reasonableness,” “rational basis,” “reasonable 

expectation of privacy,” “totality of circumstances,” and many others.7 

Where no party questions the general framework applicable in a case, we 

may disagree with federal courts in the application of that principle. See 

State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009). As noted by Judge 

Judith Kaye of the New York Court of Appeals, when the court disagrees 

with the application of precedents, “our considered judgment hardly 

justifies attack for lack of principle.” People v. Scott, 593 N.E.2d 1328,

1347 (N.Y. 1992) (Kaye, J., concurring). The only way to avoid the 

possibility of differences in judgment over the application of open 

textured general principles to the facts at hand where there are a 

number of plausible alternatives is to have a one-person court whose 

declarations are binding in all cases. Further, we have emphasized that 

we may apply open textual standards more stringently than the federal 

caselaw under the Iowa Constitution. See Bruegger, 773 N.W.2d at 883; 

Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004).

See generally Fair Cadillac-Oldsmobile Isuzu P’ship v. Bailey, 640 A.2d 

101, 104 (Conn. 1994) (“[I]t is clear that our adoption, for purposes of 

state constitutional analysis, of an analytical framework used under the 

7For instance, many state courts, including Iowa, have on remand from a 

reversal by the United States Supreme Court on federal constitutional issues, followed 

their previous reasoning under the state constitution. See, e.g., Racing Ass’n of Cent. 

Iowa, 675 N.W.2d at 4–7; Sitz v. Dep’t of State Police, 506 N.W.2d 209, 216–17 (Mich. 

1993); State v. Opperman, 247 N.W.2d 673, 674–75 (S.D. 1976).

 
32

federal constitution does not preclude us from concluding that a statute 

that would be valid under the federal constitution is nevertheless invalid 

under our state constitution.”); Edouard, ___ N.W.2d at ___ (Appel, J., 

concurring specially); Malan v. Lewis, 693 P.2d 661, 670 (Utah 1984)

(although state and federal equal protection provisions incorporate the

same general framework, our construction and application of the Utah 

equal protection provision is not controlled by federal courts); Robert F. 

Williams, Equality Guarantees in State Constitutional Law, 63 Tex. L. Rev. 

1195, 1219 (1985) (noting methodology of state courts applying federal 

constructs independently but reaching results that conflict with federal 

courts). 

In some cases, we have vindicated claims based on search and 

seizure violations under the United States Constitution and not the Iowa 

Constitution. See State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013); 

State v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013). In these cases, we 

found it unnecessary to address whether there were any violations under 

the Iowa Constitution. Kooima, 833 N.W.2d at 206; Tyler, 830 N.W.2d at 

292. In Kooima, we expressly stated that “even where a party has not 

advanced a different standard for interpreting a state constitutional 

provision, we may apply the standard more stringently than federal 

caselaw.” 833 N.W.2d at 206. A similar statement was presented in 

Tyler. 830 N.W.2d at 291–92. We do not think the resolution of these 

cases under federal law should be construed as qualifying or overruling 

what Tyler characterized as what “we have consistently stated,” namely, 

that we “ ‘jealously protect this court’s authority to follow an independent 

approach’ ” to claims made under the Iowa Constitution and that we 

reserve the right even in cases where parties do not advocate a different 

standard to apply the standard differently than federal precedents. Id. at 
33

291 (quoting Pals, 805 N.W.2d at 771). To the extent there are any 

lingering notions to the contrary, we explicitly reject them today. 

10. Reaffirmation and application of precedents to Iowa 

constitutional issue presented in this case. Our recent cases of Cline, 

Ochoa, Pals, Baldon, and the special concurrence in Edouard outline our 

approach to independent state constitutional law under article I, section 

8 of the Iowa Constitution as summarized above. Today, we again 

reaffirm these principles. To the extent our cases can be read as having 

implications contrary to the above approach, they are specifically 

overruled.

Turning now to the question before us, the Iowa constitutional 

precedent under article I, section 8 on the question of whether a warrant 

is required before law enforcement may search a person’s home based on

the person’s status is Cullison. See 173 N.W.2d at 535. In Cullison, we 

held that a parolee did not suffer a diminution of constitutional 

protections from warrantless search and seizures simply because of his 

status as a parolee. See id. at 538–39. Although Cullison involved a 

parolee rather than a probationer, see id. at 534, the analytic structure 

of Cullison applies with equal force to both. The fundamental question 

before the court today is whether the holding and analysis in Cullison

under the Iowa Constitution continue to be good law or whether we 

should abandon it in favor of the innovations resulting from the United 

States Supreme Court’s reconstruction of search and seizure doctrine in 

recent years.

C. Pre-Cullison Caselaw. Prior to our decision in Cullison, the 

caselaw regarding whether a warrant was required before searching the 

home of a probationer or parolee was inconclusive. Some cases from

other jurisdictions held that a probationer or parolee had lesser 
34

constitutional rights than citizens generally. See U.S. ex rel. Randazzo v. 

Follette, 282 F. Supp. 10, 13 (S.D.N.Y. 1968) (finding parole to be a 

powerful factor in determining the validity of the search); People v. 

Hernandez, 40 Cal. Rptr. 100, 104 (Dist. Ct. App. 1964) (determining the 

reasonableness or probable cause requirement did not apply when parole 

supervisors searched parolees). On the other hand, there was contrary 

authority. See, e.g., Brown v. Kearney, 355 F.2d 199, 200 (5th Cir. 1966) 

(finding a parolee is entitled to constitutional protection from illegal 

search and seizure); People v. Overall, 151 N.W.2d 225, 226–27 (Mich. 

Ct. App. 1967) (invalidating warrantless search of parolee). For example, 

in United States v. Lewis, a federal district court held that a search of a 

parolee’s apartment without a warrant was invalid, absent consent of the 

parolee. 274 F. Supp. 184, 187 (S.D.N.Y. 1967).

At about the time of Cullison, however, there were two prominent 

features of search and seizure law in both the federal and state courts. 

First, the United States Supreme Court, and this court, expressed strong 

preference for validly obtained warrants. The existing caselaw was 

summarized in Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91 

S. Ct. 2022, 2032, 29 L. Ed. 2d 564, 576 (1971), where the court noted:

[T]he most basic constitutional rule in this area is that 

searches conducted outside the judicial process, without 

prior approval of a judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to

a few specifically established and well delineated exceptions. 

The exceptions are jealously and narrowly drawn, and there 

must be a showing by those who seek exemption . . . that the 

exigencies of the situation made that course imperative. 

Id. (footnotes omitted) (internal quotation marks omitted). 

Second, the cases emphasized the importance of the sanctity of the 

home in search and seizure jurisprudence. For instance, in United 

States v. United States District Court, the Supreme Court summarized the 
35

state of the law by noting that “physical entry of the home is the chief evil 

against which the wording of the Fourth Amendment is directed.” 407 

U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972). 

Similarly, we long ago emphasized that in connection with constitutional 

liberties, there is “no higher or stronger guaranty than that of his home, 

his papers, and [personal] effects.” State v. Sheridan, 121 Iowa 164, 167,

96 N.W. 730, 731 (1903). We have declared that the asserted right of 

officers to “thrust themselves into a home” is a matter of “grave concern.” 

State v. Brant, 260 Iowa 758, 763, 150 N.W.2d 621, 625 (1967). 

In Agnello v. United States, the two concepts of the warrant 

requirement and the importance of the home merged. 269 U.S. 20, 33, 

46 S. Ct. 4, 6–7, 70 L. Ed. 145, 149 (1925). The Agnello Court 

emphasized that

[b]elief, however well founded, that an article sought is 

concealed in a dwelling house, furnishes no justification for 

a search of that place without a warrant. And such searches 

are held unlawful notwithstanding facts unquestionably 

showing probable cause.

Id. at 33, 46 S. Ct. at 6, 70 L. Ed. at 149; accord Johnson v. United 

States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948)

(emphasizing the role of a warrant in search and seizures involving the 

home). 

In addition, many years ago, we stated that the protections in 

search and seizure law were to be given “a broad and liberal 

interpretation for the purpose of preserving . . . liberty.” State v. Height, 

117 Iowa 650, 661, 91 N.W. 935, 938 (1902). A broad and liberal 

interpretation to search and seizure was reflected in Sheridan, where this 

court was one of the first courts in the nation to embrace the 

exclusionary rule in connection with search and seizure violations. See
36

121 Iowa at 165–69, 96 N.W. at 731–32; see also State v. Cline, 617 

N.W.2d 277, 285 (Iowa 2000) (“An example of this court’s attempts to 

preserve the spirit of Iowa’s constitutional guarantee is reflected in the 

fact that Iowa was one of the first states to embrace the exclusionary rule 

as an integral part of its state constitution’s protection against 

unreasonable searches and seizures, and, in fact, did so several years 

before the United States Supreme Court’s decision in Weeks [v. United 

States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914)]. The genesis 

of Iowa’s exclusionary rule was a civil case, Reifsnyder v. Lee, 44 Iowa 

101 (1876).”), abrogated in part on other grounds by State v. Turner, 630 

N.W.2d 601, 606 n.2 (2001).

D. Overview of State v. Cullison. We have not specifically 

confronted the question of whether a probationer may be subjected to a 

warrantless home search, but we have considered whether a parolee may 

be subject to a warrantless search. In Cullison, a parolee was subject to 

a warrantless search of his living quarters by a parole supervisor. See

173 N.W.2d at 534–35. On appeal, the petitioner argued the search 

violated article I, section 8 of the Iowa Constitution. See Defendant’s 

brief and argument at 20, Cullison, 173 N.W.2d 533 (Iowa 1970) (No. 

53491) [hereinafter Defendant’s Brief]. We held that the warrantless 

search of the parolee’s residence was invalid. Cullison, 173 N.W.2d at 

540–41.

In doing so, we first canvassed the then-existing federal and state 

caselaw involving rulings under the Fourth Amendment. Id. at 535–36. 

We noted that the caselaw generally divided into two camps: those courts 

that either “[s]trip” or “[d]ilute” a parolee of Fourth Amendment rights 

and those that afford full validity and recognition of these rights to 

parolees. Id. at 536.
37

In Cullison, we strongly disapproved of the strip and dilute cases. 

See id. We stated that the strip and dilute cases were based upon “what 

may best be described as a socio-juristic rationalization, i.e., protection 

of the public and constructive custody” and were not “constitutionally 

sound, reasonable, fair or necessary.” Id. We stated that the “dilution 

theory begins and ends nowhere, being at best illusory and evasive.” Id. 

We quoted with approval a statement in Hernandez, where the court 

declared that the notion that parolees lose their constitutional rights by 

accepting parole “makes constitutional rights dependent upon a kind of 

‘contract’ in which one side has all the bargaining power” and that “[a]

better doctrine is that the state may not attach unconstitutional 

conditions to the grant of state privileges.” Id. at 536–37 (quoting 

Hernandez, 40 Cal. Rptr. at 103). 

We then turned to the Iowa Constitution. Id. at 537. We noted 

that article II, section 5 of the Iowa Constitution provides that no 

“ ‘person convicted of any infamous crime, shall be entitled to the 

privileges of an elector.’ ” Id. (quoting Iowa Const. art. II, § 5). We 

recognized that the plain language of article II, section 5 meant that, 

upon conviction of an infamous offense, the defendant lost his right to 

vote or hold public office. Id. We then declared: “And certainly, with the 

exception of lawful conditions governing conduct while on parole or 

probation, no more onerous burden could be cast upon him by any 

subsequent conditional release from a penal institution.” Id. at 537–38 

(emphasis added). We further noted that “the 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.” Id. at 

538 (emphasis added).
38

There can be no question that Cullison involves a holding under 

the Iowa Constitution. The briefing before the Cullison court reveals that 

the petitioner emphasized article I, section 8 of the Iowa Constitution. 

According to the appellant’s brief in Cullison, the “Law applicable to this 

area is found in Iowa Constitution, Art. I, Sec. 8.” Defendant’s Brief at 

20. The appellant further argued that “[u]nlike the U.S. Constitution, the 

Iowa Constitution specifically spells out the result or penalty of felony 

conviction as far as diminution of constitutional rights are concerned, in 

. . . Article II, Sec. 5.” Id. at 21. Although it is true that the Cullison

opinion does not expressly refer to article I, section 8, the Cullison court 

adopted the appellant’s analysis that article II, section 5 of the Iowa 

Constitution provides the only sanctions for persons convicted of a crime. 

173 N.W.2d at 537–38. A provision of the state constitution has no 

bearing on the interpretation of the scope of federal constitutional rights. 

As a result, we stated in Baldon, “[w]ithout expressly saying so, we 

decided Cullison based on the Iowa Constitution.” Baldon, 829 N.W.2d at 

796 n.2 (majority opinion).

Though brief, the language in Cullison is exceptionally strong and 

unequivocal. It represents a clear precedent drawing a bright line 

regarding searches of the home. “[S]ocio-jurisidic” rationales to evade 

the warrant requirement were unacceptable; the “dilution” theory was 

“illusory.” See Cullison, 173 N.W.2d at 536. The warrant requirement 

applied with full force to parolees and, at least in dicta, to probationers 

as well. See id. at 537–39.

One dissent in Cullison focused on the fact that the search was 

conducted by a parole officer, and not a law enforcement officer. See id.

at 541 (Larson, J., dissenting) (framing the initial question as whether 

the parole agent or assisting officer can seize stolen property and 
39

considering the purposes of the parole system). The dissent believed that 

a search by a parole officer qualified as one of the exceptions to the 

warrant requirement. Id. at 543–44 (concluding a parolee has a special 

status under search and seizure law). The second dissent further 

emphasized that “[a]n unlawful warrantless search by peace officers does 

not become legal because they are accompanied by a parole officer.” Id.

at 545 (Stuart, J., dissenting). In short, even under the dissents in 

Cullison, the search in this case by a police officer, and not by a 

probation officer, would have been invalid.8

The holding in Cullison, giving maximum constitutional protection 

to the home, was consistent with existing federal and state caselaw. See, 

e.g., Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 

L. Ed. 746, 751 (1886) (noting the purpose of the Fourth Amendment is 

to protect against invasions of “the sanctity of a man’s home and the 

privacies of life” from “government and its employes”), rejected on other 

grounds by Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 

2d 782 (1967); Weeks, 232 U.S. at 390–92, 34 S. Ct. at 343–44, 58 L. 

Ed. at 654–55 (“[T]he 4th Amendment . . . put the courts of the United 

States and Federal officials, in the exercise of their power and authority, 

under limitations and restraints [and] . . . forever secure[d] the people, 

their persons, houses, papers, and effects, against all unreasonable 

searches and seizures under the guise of law.”); Agnello, 269 U.S. at 32–

33, 46 S. Ct. at 6, 70 L. Ed. at 147–48 (same). In these cases, the United 

8This case, of course, involves a probationer and not a parolee. Even under the 

United States Supreme Court’s Fourth Amendment cases, however, a probationer has 

more protection from searches and seizures than does a parolee. See Samson v. 

California, 547 U.S. 843, 850, 126 S. Ct. 2193, 2198, 165 L. Ed. 2d 250, 258 (2006) 

(recognizing parole is more akin to imprisonment thus parolees have fewer expectations 

of privacy). Cullison thus cannot be distinguished on the basis that it involved a parolee 

who, if anything, had lesser search and seizure rights than a probationer. 

 
40

States Supreme Court repeatedly emphasized the historic importance of 

protecting the home as at the core of Fourth Amendment principles. 

Indeed, many state and federal courts have favorably cited William Pitt’s 

famous speech in the House of Commons:

“The poorest man may in his cottage bid defiance to all the 

forces of the Crown. It may be frail; its roof may shake; the 

wind may blow through it; the storm may enter; the rain 

may enter; but the King of England cannot enter—all his 

force dares not cross the threshold of the ruined tenement[.]”

See, e.g., Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 

1194–95, 2 L. Ed. 2d 1332, 1337 (1958); Jonathan L. Jafetz, “A Man’s 

Home is His Castle?”: Reflections on the Home, the Family, and Privacy 

During the Late Nineteenth and Early Twentieth Centuries, 8 Wm. & Mary 

J. Women & L. 175, 175 n.2 (2002). 

Our caselaw contains similar language. As we emphasized in 

McClurg v. Brenton:

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). In modern society, 

probationers and parolees are more likely to live in impoverished 

neighborhoods. See David J. Harding et al., Home is Hard to Find: 

Neighborhoods, Institutions, and the Residential Trajectories of Returning 

Prisoners, 647 Annals Am. Acad. Pol. & Soc. Sci. 214, 216–17, 222 

(2013) (finding sixty-six percent of African Americans who lived in highpoverty areas prior to prison moved back to high-poverty areas after 
41

prison, and that generally “poor urban communities bear a 

disproportionate share of the burden” of reintegrating former prisoners). 

Under the language of McClurg and the holding in Cullison, the poor 

cottage or ruined tenement of a parolee (and by implication a 

probationer) may be unkempt, with lousy heat, running toilets, screens 

with holes, noisy electric fans for summer relief, and low wattage 

lighting, but such an abode is still protected by the awesome majesty of 

the Iowa Constitution from unwarranted searches by government 

authorities. 

Cullison stands for the proposition that the protective arm of article 

I, section 8 “extends to all alike, worthy and unworthy, without 

distinction.” State v. Gansz, 297 So. 2d 614, 616 (Fla. Dist. Ct. App. 

1974). As noted by Justice Murphy many years ago, 

Rights intended to protect all must be extended to all, lest 

they so fall into desuetude in the course of denying them to 

the worst of men as to afford no aid to the best of men in 

time of need.

Goldman v. United States, 316 U.S. 129, 142, 62 S. Ct. 993, 999, 86 

L. Ed. 1322, 1331–32 (1942) (Murphy, J., dissenting), overruled in part 

by Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed. 

2d 576, 583 (1967).

E. Post-Cullison Caselaw. After Cullison, a number of other state 

courts and federal courts considered this question under the Federal 

Constitution or state constitutions. Some agreed with our approach in 

Cullison. For instance, in United States v. Rea, the Court of Appeals for 

the Second Circuit came to the conclusion that a probation officer is 

required to obtain a warrant prior to conducting a search of the 

probationer’s home unless the search fell within one of the judicially 

recognized exceptions to the warrant requirement. 678 F.2d 382, 386–
42

88 (2d Cir. 1982). The Rea court emphasized that there had been “no 

showing that upholding the warrant requirements for searches of 

probationers’ homes will seriously impede the accomplishment of the 

dual law enforcement and rehabilitative goals of probation.” Id. at 387. 

Similarly, in United States v. Workman, the Court of Appeals for the 

Fourth Circuit came to the same conclusion, noting that the approach 

was “consistent with the Supreme Court’s admonition that exceptions to 

the warrant requirement ‘are few in number and carefully delineated

. . . .’ ” 585 F.2d 1205, 1207 (4th Cir. 1978) (quoting U.S. Dist. Ct., 407 

U.S. at 318, 92 S. Ct. at 2137, 32 L. Ed. 2d at 767), abrogated by Pa. Bd. 

of Prob. & Parole v. Scott, 524 U.S. 357, 118 S. Ct. 2014, 141 L. Ed. 2d 

344 (1998), as recognized in United States v. Armstrong, 187 F.3d 392, 

394–95 (4th Cir. 1999). Other courts, such as the Court of Appeals for 

the Ninth Circuit, came to a different conclusion. See, e.g., Latta v. 

Fitzharris, 521 F.2d 246, 252 (9th Cir. 1975). Yet, transient political 

winds blew that emphasized the need for a war on crime and discounted 

the founder’s principle search and seizure concern: fear of overreaching 

government. 

For many years, the United States Supreme Court in a number of 

cases has expressed a strong reliance on the Warrant Clause in the 

Fourth Amendment. What has been called the “warrant preference 

approach” was closely associated with Justice Felix Frankfurter and 

Justice Potter Stewart. See generally William W. Greenhalgh & Mark J. 

Yost, In Defense of the “Per Se” Rule: Justice Stewart’s Struggle to 

Preserve the Fourth Amendment’s Warrant Clause, 31 Am. Crim. L. Rev. 

1013 (1994). Under the warrant preference approach, a warrant was 

generally required, particularly for a home search, except under narrowly 

defined circumstances, such as searches incident to arrest, or where 
43

exigent circumstances make it impossible to obtain a warrant. See id. at 

1016–17 (“[A] search is per se unreasonable unless it falls within one of 

the limited exceptions to the warrant requirement.”). In recent decades, 

however, the United States Supreme Court has embarked on a series of 

innovations and reengineerings of established Fourth Amendment law 

that has tended to minimize the role of warrants and emphasize the role 

of the Reasonableness Clause. See id. at 1084 (“This [ideological] shift 

has resulted at times in an outright hostility to the ‘per se’ rule in favor of 

the more flexible standard of ‘reasonableness.’ ”). The newly fashioned 

Fourth Amendment doctrine provides a framework for the United States 

Supreme Court to avoid the warrant requirement whenever a majority of 

the Court determines that it is “reasonable” to do so. See id. (“The 

Court’s enthusiasm to embrace the flexible ‘reasonableness’ approach is 

most noticeable in the numerical score: of the fifty-five Fourth 

Amendment decisions since 1982, the Court has found only twelve 

searches that violated the Fourth Amendment . . . . Even more telling,

the Court has relied upon the ‘per se’ rule as the framework for resolving 

only nineteen of those fifty-five Fourth Amendment cases.”). As a result, 

the warrant requirement under existing United States Supreme Court 

precedent offers less protection for citizens against arbitrary government 

intrusions than it did fifty years ago. See id. at 1091 (recognizing the 

balancing approach has undermined the per se warrant requirement). 

The reengineering of Fourth Amendment law is illustrated by the 

highly divided opinion in Griffin. In Griffin, a five-member majority of the 

United States Supreme Court concluded that a warrantless search of a 

probationer’s home by probation officers pursuant to a Wisconsin 

regulation was “reasonable” under the Fourth Amendment. Griffin, 483 

U.S. at 870–71, 880, 107 S. Ct. at 3167, 3172, 97 L. Ed. 2d at 715–16,
44

721–22. The Griffin majority avoided the Warrant Clause by application 

of a “special needs” doctrine that justified departures from the usual 

warrant and probable cause requirements. See id. at 873–74, 107 S. Ct. 

at 3168, 97 L. Ed. 2d at 717. The Griffin majority based its conclusions, 

at least in part, on the factual premise that requiring a probation officer 

to obtain a warrant would be “impracticable.” See id. at 876, 107 S. Ct. 

at 3169–70, 97 L. Ed. 2d at 719. 

In its analysis, the Griffin majority emphasized the difference 

between a probation officer and general law enforcement conducting the 

search. See id. at 879–80, 107 S. Ct. at 3171–72, 97 L. Ed. 2d at 721–

22. A search based upon reasonable suspicion instead of ordinary 

probable cause was permissible, according to the Griffin majority, 

because the risk of overreaching by a probation officer is less than that 

when the search is conducted by a police officer whose only mission is to 

ferret out crime. See id. at 876–79, 107 S. Ct. at 3170–71, 97 L. Ed. 2d 

at 719–20.

The Griffin majority thus moved the search and seizure goalposts 

twice: first by announcing that, in some instances, a warrant was no 

longer required for a home search, and second, that a warrantless search 

could be supported by less than traditional probable cause. See id. at 

873–80, 107 S. Ct. at 3168–72, 97 L. Ed. 2d at 717–22. 

Seemingly recognizing the potential instability of its 

“reasonableness” approach, the Griffin majority drew a firm line between 

a search by a probation officer and a search by a general law 

enforcement officer. See id. at 879–80, 107 S. Ct. at 3171–72, 97 

L. Ed. 2d at 721–22. As is apparent, the reasoning of the majority in 

Griffin is consistent with the minority opinion in Cullison, which 

emphasized that the search was conducted by a probation officer. 
45

Writing for three members of the Court, Justice Blackmun wrote:

I do not think . . . that special law enforcement needs justify 

a modification of the protection afforded a probationer’s 

privacy by the warrant requirement. The search in this case 

was conducted in petitioner’s home, the place that 

traditionally has been regarded as the center of a person’s 

private life, the bastion in which one has a legitimate 

expectation of privacy protected by the Fourth Amendment.

Id. at 883, 107 S. Ct. at 3173, 97 L. Ed. 2d at 724 (Blackmun, J., 

dissenting). 

Justice Stevens, joined by Justice Marshall, was even more 

pointed:

Mere speculation by a police officer that a probationer 

“may have had” contraband in his possession is not a 

constitutionally sufficient basis for a warrantless, 

nonconsensual search of a private home. I simply do not 

understand how five Members of this Court can reach a 

contrary conclusion.

Id. at 890, 107 S. Ct. at 3177, 97 L. Ed. 2d at 728 (Stevens, J., 

dissenting).

The United States Supreme Court revisited the general area of 

search and seizure rights of probationers in Knights. In Knights, the 

search was conducted by a police officer, not by probation officers as in 

Griffin. 534 U.S. at 115, 122 S. Ct. at 589, 151 L. Ed. 2d at 502–03. The 

question was whether the line drawn in Griffin would hold. Id. at 117–

18, 122 S. Ct. at 590–91, 151 L. Ed. 2d at 503–05. It did not. Tossing 

aside the limiting language in the 5–4 Griffin decision, the Knights Court 

held that a probationer who signed a probation agreement containing a 

search condition which stated that he would be subject to a search,

which included his residence, at any time and any place, had a 

“significantly diminished . . . expectation of privacy.” Id. at 119–20, 122 

S. Ct. at 592, 151 L. Ed. 2d at 505. Instead of a limited “special needs” 
46

analysis that focused on the value of a warrantless search in promoting 

the rehabilitation of persons subject to probation, the Supreme Court 

permitted a search by law enforcement based upon the “totality of the 

circumstances.” See id. at 118, 122 S. Ct. at 591, 151 L. Ed. 2d at 505. 

As a result, a warrantless search conducted by law enforcement officers 

as well as probation officers, at least where police had reasonable 

suspicion that evidence of a crime would be uncovered, was now 

permissible under the Fourth Amendment. 

While Griffin announced the limiting principle that warrantless 

home searches were permissible if conducted by a probation officer 

pursuant to ordinary supervisory activities, 483 U.S. at 879, 107 S. Ct. 

at 3171, 97 L. Ed. 2d at 721, the search and seizure goalposts for 

warrantless home searches were moved once again in Knights, 534 U.S. 

at 115, 119–20, 122 S. Ct. at 589, 592, 151 L. Ed. 2d at 502–03, 505. 

The old limiting principle of Griffin based upon “special needs” was 

simply eliminated. See Knights, 534 U.S. at 122, 122 S. Ct. at 593, 151 

L. Ed. 2d at 506–07 (finding a warrantless search “supported by 

reasonable suspicion and authorized by a condition of probation, was 

reasonable within the meaning of the Fourth Amendment”). The ruling 

in Knights is thus not only inconsistent with the Cullison majority on 

multiple grounds (no search warrant, no probable cause), but it is also 

inconsistent with the Cullison minority, which emphasized the fact that 

the search was conducted by a probation officer. 

Finally, the Supreme Court considered Samson v. California, a case 

addressing the warrantless search of a parolee. 547 U.S. 843, 846, 126 

S. Ct. 2193, 2196, 165 L. Ed. 2d 250, 255–56 (2006). In this case, a 

parolee was stopped while walking down a street and subjected to a 

search, revealing a plastic bag filled with methamphetamine. Id. at 846–
47

47, 126 S. Ct. at 2196, 165 L. Ed. 2d at 255–56. In Samson, the 

Supreme Court again rejected its prior limiting principle of “reasonable 

suspicion.” See id. at 857, 126 S. Ct. at 2202, 165 L. Ed. 2d at 262

(permitting a suspicionless search of a parolee under the Fourth 

Amendment). In order to reach the desired pragmatic result, the Samson

Court declared that the Fourth Amendment involves a continuum of 

rights. See id. at 850, 126 S. Ct. at 2198, 165 L. Ed. 2d at 258.

According to the Samson majority, the protections afforded by the Fourth 

Amendment depend upon a continuum, where parolees have some 

expectations of privacy; however, these expectations are greatly 

diminished because parole is the equivalent of imprisonment, while a 

probationer has a greater interest because probation is ordinarily in lieu 

of and not in addition to imprisonment. See id. For a parolee who was 

subject to a search condition like Samson, “reasonable suspicion” was no 

longer required. See id. at 857, 126 S. Ct. at 2202, 165 L. Ed. 2d at 262

(finding a police officer could conduct a suspicionless search of a parolee 

without violating the Fourth Amendment). 

Justice Stevens dissented, writing that the majority’s decision 

embraced “a regime of suspicionless searches, conducted pursuant to a 

blanket grant of discretion untethered by any procedural safeguards, 

[and] by law enforcement personnel who have no special interest in the 

welfare of the parolee or probationer.” Id. at 857, 126 S. Ct. at 2202, 165 

L. Ed. 2d at 262–63 (Stevens, J., dissenting). According to Justice 

Stevens, the new regime announced by the majority was “an 

unprecedented curtailment of liberty.” Id. Clearly, by departing from 

even a “reasonable suspicion” requirement, the Supreme Court moved 

the search and seizure goalposts for a fourth time.
48

Two propositions are clear from Griffin, Knights, and Samson. 

First, the United States Supreme Court, beginning in 1981, has 

developed new Fourth Amendment doctrine that dramatically and 

substantially undercuts the traditional warrant requirement, probable 

cause, and particularity requirements of search and seizure law. 

Second, the new doctrine announced in Griffin, Knights, and Samson is

unquestionably, flatly contrary to the approach of this court in Cullison

twenty years earlier. In Griffin, Knights, and Samson, the Supreme Court 

engaged in exactly the kind of “socio-juristic” analysis and “dilution” that 

the Cullison majority expressly and firmly rejected. Further, even the 

dissent in Cullison emphasized the fact that a parole officer conducted 

the search. See 173 N.W.2d at 543–44 (Larson, J., dissenting). The 

contrast between Cullison and the Griffin-Knights-Samson line of cases is 

sharp and unmistakable. 

Notwithstanding the Supreme Court’s approach in Griffin, Knights,

and Samson, we have not revisited the holding in Cullison. In Ochoa, we 

rejected the eviscerating innovation of the Supreme Court in Samson. 

See Ochoa, 792 N.W.2d at 291. In doing so, we emphasized, among 

other things, the historic basis of search and seizure law, the sanctity of 

the home, and the important role of warrants under article I, section 8 of 

the Iowa Constitution. Id. at 287–91. In Ochoa, we rejected the latest 

movement of the search and seizure goalposts by the United States 

Supreme Court. 

In Ochoa, the State, with honesty and integrity, declined to claim 

that the search was supported by reasonable suspicion. See id. at 262–

64. As a result, it was not necessary for the Ochoa court to consider 

whether Griffin or Knights was good law or to reconsider Cullison. See id.

at 287 (noting the court could simply affirm Cullison, but it was not 
49

necessary to address the warrant and probable cause requirements when 

the search was invalid under a reasonableness analysis). It was enough 

for one day’s work, to simply reject the doctrine of Samson under article 

I, section 8 of the Iowa Constitution. 

In the case before us today, however, there is no question that law 

enforcement authorities had reasonable suspicion to search Short’s 

home. The State’s sole claim on appeal is that reasonable suspicion is 

enough, case closed. Thus, the issue on appeal is squarely presented: is 

Cullison good law? Or, do we accept instruction from the United States 

Supreme Court and engage in an innovative reconfiguration of traditional 

search and seizure law under the Iowa Constitution? 

F. Analysis: Should Cullison Be Overruled? The question 

before us now is whether we should overrule Cullison. Of course, stare 

decisis is a factor to consider. At the same time, we recognize that stare 

decisis is not always determinative. See State v. Bruce, 795 N.W.2d 1, 3 

(Iowa 2011). Otherwise, the law would be like a fly imprisoned in 

volcanic rock. 

We begin with a textual look at article I, section 8 of the Iowa 

Constitution, which provides:

The right of the people to be secure in their persons, 

houses, papers and effects, against unreasonable seizures 

and searches shall not be violated; and no warrant shall 

issue but on probable cause, supported by oath or 

affirmation, particularly describing the place to be searched, 

and the persons and things to be seized.

Iowa Const. art. I, § 8. The text is, of course, nearly identical to the 

Fourth Amendment to the United States Constitution, which was, in 

turn, largely modeled after the Massachusetts Constitution of 1780. See 

Ochoa, 792 N.W.2d at 268 n.7. In-depth modern scholarship has 

demonstrated that the contemporaneous meaning of the term 
50

“unreasonable” in search and seizure law was not the flexible, pragmatic 

interpretation that we often assign to the term today, but instead a 

synonym for “unlawful.” See Thomas Y. Davies, Correcting Search-AndSeizure History: Now-Forgotten Common-Law Warrantless Arrest 

Standards and the Original Understanding of “Due Process of Law,” 77 

Miss. L.J. 1, 118 (2007) [hereinafter Davies] (recognizing the term 

“unreasonable” meant to say a warrant was “so illegal that even 

legislation could not authorize [it]”). Sir Edward Coke opposed general 

warrants as “ ‘against reason,’ ” again, a reference to their unlawful 

character. Ochoa, 792 N.W.2d at 269 (quoting Andrew E. Taslitz, 

Reconstructing the Fourth Amendment: A History of Search & Seizure,

1789–1868, at 37 (2006)). Further, contemporary legal treatises and 

dictionaries indicated that categories of searches, arrests, and seizures 

were “unreasonable” and therefore abolished by the Fourth Amendment. 

See William J. Cuddihy, The Fourth Amendment: Origins and Original 

Meaning, 602–1791, at 734–35 (2009) [hereinafter Cuddihy]; see also

Davies, 77 Miss. L. Rev. at 13 (characterizing the approach of the United 

States Supreme Court as to “reasonableness” as a modern invention that 

engages in relativistic balancing of individual rights and reflects relatively 

recent, ideologically driven judicial choices, not a rendition of original 

understanding, and urging state courts to engage in authentic search 

and seizure history). 

But textualists will also note that unlike accepted versions of the 

Fourth Amendment, article I, section 8 utilizes a semicolon between the 

reasonableness clause and the warrant clause. As pointed out in Ochoa, 

a semicolon ordinarily is used to show that the language that follows the 

semicolon illustrates the basic principle, namely, that in order to avoid 
51

being declared “unreasonable” or unlawful, under article I, section 8, a 

warrant is ordinarily required. See 792 N.W.2d at 268–69.

Indeed, the notion that in order for a search to be reasonable, it 

must be pursuant to a warrant has considerable historical support. 

James Otis, in his brief in Paxton’s Case, asserted that only specific 

warrants were reasonable and that “ ‘the freedom of one’s house’ was 

among ‘the most essential branches of English liberty.’ ” Cuddihy at 

377–78 (citation omitted). Similarly, shortly before Iowa obtained 

statehood, a state court held that in order for a search to be reasonable, 

it had to be executed pursuant to a warrant. See Banks v. Farwell, 38 

Mass. (21 Pick.) 156, 159 (1838). While these historical lines of inquiry 

do not necessarily provide the rule of decision in concrete cases involving 

unforeseen circumstances, the historical record does offer insight into 

the meaning of constitutional values that must be applied to modern 

circumstances. 

There are also structural reasons for defending the warrant 

requirement. As we indicated in Ochoa, an interpretation that focuses on 

the reasonableness clause as the touchstone of search and seizure law 

sets up the intellectual machinery to engulf the warrant clause and make 

its mandatory provision ephemeral. See 792 N.W.2d at 269. The search 

and seizure protections of article I, section 8 would be subject to 

reasonability determinations by shifting four-member majorities of this 

court, based upon pragmatic considerations. Members of this court—

indeed any court—can come up with ingenious explanations of how just 

about any search is reasonable. Cf. Skinner v. Ry. Labor Execs.’ Ass’n, 

489 U.S. 602, 637, 109 S. Ct. 1402, 1424, 103 L. Ed. 2d 639, 672–73

(1989) (Marshall, J., dissenting) (noting that absent warrant and 

probable cause standards, concept of reasonableness is “virtually devoid 
52

of meaning, subject to whatever content shifting judicial majorities, 

concerned about the problems of the day, choose to give to that supple 

term”). The cautionary words of Anthony Amsterdam in his classic study 

on the Fourth Amendment that reliance on reasonability threatens to 

convert “the [F]ourth [A]mendment into one immense Rorschach blot” 

has even greater urgency today than it did forty years ago. See Anthony 

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 

349, 393 (1974) [hereinafter Amsterdam]. 

Indeed, rejection of this kind of slippery reasoning was at the very 

heart of Cullison, which declared that socio-jurisdic requirements to 

evade the constitutional command of the need for a search warrant were 

unacceptable. 173 N.W.2d at 536; see also Griffin, 483 U.S. at 890, 107 

S. Ct. at 3177, 97 L. Ed. 2d at 728 (Stevens, J., dissenting) (expressing 

surprise that five members of the Supreme Court would overrule the 

probable cause and warrant requirements in the context of a search of a 

probationer by probation officers). As a result, we have little interest in 

allowing the reasonableness clause to be a generalized trump card to 

override the warrant clause in the context of home searches and reject 

the cases suggesting otherwise. 

It is of course true that in this case, law enforcement officers had 

reasonable suspicion, at least as established at the hearing on the 

motion to suppress. Short does not suggest otherwise. A requirement of 

individualized suspicion, as indicated in Ochoa, can be an important 

factor in preventing arbitrary searches and seizures by law enforcement, 

and our refusal to accept the Samson approach under article I, section 8 

of the Iowa Constitution was an important development in our law.

It is tempting, perhaps, to say that in this case, where the record 

shows that law enforcement had good reason to conduct the search, that 
53

the constitutional requirements have been satisfied. But article I, section 

8 does not speak solely in terms of probable cause. Irrevocably welded 

into article I, section 8 are requirements that a warrant be issued by a 

neutral magistrate that limits the scope of the search both with respect 

to places to be searched and items to be seized. The warrant and 

particularity requirements of article I, section 8 are not weak siblings of 

the probable cause requirement. By requiring approval of a neutral 

magistrate and a description with particularity, important constitutional 

values are promoted. By involving a neutral magistrate, the warrant 

requirement ensures that probable cause is evaluated not by overzealous 

law enforcement officers. The traditional view has been that “ ‘the 

procedure of antecedent justification . . . is central to the Fourth 

Amendment.’ ” See Katz, 389 U.S. at 359, 88 S. Ct. at 515, 19 L. Ed. 2d 

at 586 (footnote omitted). As noted by Justice Jackson in Johnson:

The point of the Fourth Amendment, which often is 

not grasped by zealous officers, is not that it denies law 

enforcement the support of the usual inferences which 

reasonable [people] draw from evidence. Its protection 

consists in requiring that those inferences be drawn by a 

neutral and detached magistrate instead of being judged by 

the officer engaged in the often competitive enterprise of 

ferreting out crime. Any assumption that evidence sufficient 

to support a magistrate’s disinterested determination to 

issue a search warrant will justify the officers in making a 

search without a warrant would reduce the Amendment to a 

nullity and leave the people’s homes secure only in the 

discretion of police officers.

333 U.S. at 13–14, 68 S. Ct. at 369, 92 L. Ed. at 440 (footnote omitted).

In addition, the particularity requirement limits the scope of the 

search, which is often as important to the protection of constitutional 

rights as the authorization of the search itself. As noted in Arkansas v. 

Sanders:
54

In the ordinary case . . . a search of private property must be 

both reasonable and pursuant to a properly issued search 

warrant. The mere reasonableness of a search, assessed in 

the light of the surrounding circumstances, is not a 

substitute for the judicial warrant [requirement] . . . .

442 U.S. 753, 758, 99 S. Ct. 2586, 2590, 61 L. Ed. 2d 235, 241 (1979),

overruled on other grounds by Acevedo, 500 U.S. at 579, 111 S. Ct. at 

1991, 114 L. Ed. 2d at 633–34. In addition, the process of obtaining a 

warrant prevents the possibility of posthoc rationales. With a written 

application and a warrant issued by a magistrate, we can look to the 

documented record in evaluating the lawfulness of a search, thereby 

steaming out many credibility issues associated with inquiries about who 

said what to whom and when. 

Our recognition of the importance of all of the requirements of the 

warrant clause is demonstrated in Cline. See 617 N.W.2d at 281–82. A

majority of state courts that have considered the question under search 

and seizure clauses of their state constitutions, refused to recognize the

new good faith exception to the exclusionary rule in the search and 

seizure context created by the United States Supreme Court in United 

States v. Leon, 468 U.S. 897, 922–25, 104 S. Ct. 3405, 3420–22, 82 L. 

Ed. 2d 677, 698–700 (1984). See, e.g., State v. Marsala, 579 A.2d 58, 65

(Conn. 1990); State v. Guzman, 842 P.2d 660, 667–68 (Idaho 1992); State 

v. Novembrino, 519 A.2d 820, 856–57 (N.J. 1987); State v. Gutierrez, 863 

P.2d 1052, 1068 (N.M. 1993); People v. Bigelow, 488 N.E.2d 451, 457–58

(N.Y. 1985); Edmunds, 586 A.2d at 895 (Pa. 1991); State v. Oakes, 598 

A.2d 119, 126–27 (Vt. 1991). Our court refused as well. Cline, 617 

N.W.2d at 292–93. We refused to allow evidence obtained as a result of 

purportedly minor defects in searches and seizures. See id. The 

constitutional protections of article I, section 8 were simply too important 

for a “close enough” mentality. See id. at 290. As noted by Justice 
55

Frankfurter many years ago, “[t]he history of liberty has largely been the 

history of observance of procedural safeguards.” McNabb v. United 

States, 318 U.S. 332, 347, 63 S. Ct. 608, 616, 87 L. Ed. 819, 827–28

(1943).

Even if we were inclined to fuzzy up the warrant requirement, a 

home invasion by law enforcement officers is the last place we would 

begin the process. The canard that a person’s home is their castle has 

always been subject to some limitations, but the basic principle remains 

a sound one. We are not talking about a routine encounter at airport 

security where the announced and understood purpose of the 

examination is safety of passengers unrelated to the goals of general law 

enforcement, or an investigative stop on the street where a quick pat 

down is conducted to ensure the safety of police officers, or an exigent 

circumstance where the acquisition of a warrant was simply not possible. 

Here, police officers are penetrating a home, the place of final refuge, the 

focal point of intimate relationships, and what is constitutionally thought 

of as a place of safety, security, and repose. Of course, no one says such 

an invasion can never occur, but only that a warrant, supported by 

probable cause, describing the place to be searched and the things to be 

obtained with particularity, is required. 

Sometimes, eviscerations of constitutional protections are based 

upon claims that a probationer has a lesser expectation of privacy. Such 

reasoning is generally based upon a misreading of Justice Harlan’s 

concurring opinion in Katz. See 389 U.S. at 360–62, 88 S. Ct. at 516–17, 

19 L. Ed. 2d at 587–88 (Harlan, J., concurring). However, the 

expectation of privacy test in Justice Harlan’s concurrence in Katz was 

designed to expand, and not contract, constitutional protections. Id. at 

361, 88 S. Ct. at 516, 19 L. Ed. 2d at 587–88. Even Justice Harlan as
56

the author of the concurring opinion objected to its later applications. 

See United States v. White, 401 U.S. 745, 786–87, 91 S. Ct. 1122, 1143, 

28 L. Ed. 2d 453, 478 (1971) (Harlan, J., dissenting) (stating intrusions 

significantly jeopardizing Fourth Amendment liberties should require a 

warrant). And it simply cannot be said that the government, by simply 

announcing that warrantless searches may occur, can eviscerate the 

right to be left alone inherent in article I, section 8. Cf. State v. Campbell, 

759 P.2d 1040, 1044 (Or. 1988) (noting that the phrase “expectation of 

privacy” expresses a conclusion rather than a starting point and that 

Oregon search and seizure law protects not the privacy one reasonably 

expects but the privacy to which one has a right); State v. Tanner, 745 

P.2d 757, 762 n.7 (Or. 1987) (citing Amsterdam, 58 Minn. L. Rev. at 

384). If a government announcement that a citizen is no longer free from 

unwarranted home search overrode the requirements of article I, 

section 8, citizen protections would be dramatically undermined. 

Further, the expectation of privacy analysis was not designed to supplant 

other constitutional values protected by search and seizure law, 

including the right to be secure in one’s home from trespass by law 

enforcement. See Ochoa, 792 N.W.2d at 277 (recognizing a continued 

notion of property and security in Fourth Amendment protections). 

While we recognize that the probation agreement provided Short with 

notice that the State asserted the right to execute warrantless searches, 

we do not think notice eviscerates the warrant requirement for home 

searches. Cf. Samson, 547 U.S. at 863, 126 S. Ct. at 2206, 165 L. Ed. 

2d at 266 (Stevens, J., concurring) (rejecting reliance on a condition or 

notice in parole agreement because otherwise, the government could 

“ ‘suddenly . . . announce on nationwide television that all homes 

henceforth would be subject to warrantless entry’ ”); Campbell, 759 P.2d 
57

at 1044 (noting that the majority opinion in Katz does not use the phrase 

“reasonable expectation of privacy” and under the Oregon Constitution 

emphasizing privacy to which one has a right). Cullison rejected 

reasoning designed to strip or dilute constitutional protections for 

probationers home searches. See 173 N.W.2d at 536. So should we. 

We further note that the requirements imposed by article I, 

section 8 and enforced by us, namely, that a warrant is required for an 

unconsented search of the home, even of a parolee or probationer, is not 

terribly onerous. Indeed, the balancing of interests between the 

individual and law enforcement has already occurred in article I, section 

8 in the probable cause requirement. As we have noted in the past:

The rule of probable cause is a practical, nontechnical 

conception affording the best compromise that has been 

found for accommodating . . . opposing interests. Requiring 

more would unduly hamper law enforcement. To allow less 

would be to leave law-abiding citizens at the mercy of the 

officer’s whim or caprice.

State v. Raymond, 258 Iowa 1339, 1345, 142 N.W.2d 444, 447 (1966) 

(internal quotation marks omitted).

That leaves the additional constitutional requirements of obtaining 

a warrant from a neutral magistrate describing the place to be searched 

and the things to be sought with particularity. Whatever else may have 

been true in the past, obtaining a warrant from a judicial officer is not 

particularly onerous. As was noted by a leading commentator almost 

twenty years ago, there is now no reason why warrants cannot be 

obtained twenty-four hours a day using modern technologies. Craig M. 

Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 

1492–93 (1985). 

The factual assertion in Griffin that it was impracticable for a 

probation officer to obtain a warrant was wrong then and it is even more 
58

wrong today. See Howard P. Schneiderman, Conflicting Perspectives from 

the Bench and the Field on Probationer Home Searches—Griffin v. 

Wisconsin Reconsidered, 1989 Wisc. L. Rev. 607, 664 (1989) (noting 

survey results demonstrating that a warrant requirement would not 

unduly burden Wisconsin probation department). And, the 

impracticable assertion has even less validity in the context of a search 

by law enforcement. As demonstrated by this case, the problem was not 

that it was impractical to obtain a warrant. It was very practical to 

obtain a warrant. The problem was that the warrant actually obtained 

was invalid and the State failed, through an apparent misunderstanding 

of the law, to properly obtain a new warrant. In this case, a valid, 

amended warrant could have been acquired with only modest additional 

effort by law enforcement. 

In addition, we do not address the validity of home visits and other 

measures utilized by probation or parole officers as part of their ordinary 

duties. Although Cullison plainly indicates that even a search by a 

parole officer may give rise to a violation of article I, section 8, 173 

N.W.2d at 539–40, we reserve this interesting question for another day. 

We prefer to consider the law step by step rather than by leaps and 

bounds. There is substantial authority, for instance, for the proposition 

that while evidence obtained through home visits, or searches by 

probation officers, may not be used in new criminal prosecutions, it may 

be used for purposes of establishing a violation of probation or parole. 

Indeed, this was the point of the Cullison dissent. 173 N.W.2d at 543–44 

(Larson, J., dissenting) (stating a parole agent should have a duty to 

conduct the search when he or she believes the parolee is violating 

parole). Because this case does not involve the activities of a probation 
59

officer conducting ordinary supervision of a probationer, we need not 

consider issues that arise from such a factual setting.

It is an undeniable fact that in search and seizure cases, the 

people who bring the cases are generally those “whose unlawfully 

searched premises contained actual evidence of the actual crime they 

actually committed.” Frederick Schauer, The Heroes of the First 

Amendment, 101 Mich. L. Rev. 2118, 2118 (2003). But the law must be 

that a search of a home “is not to be made legal by what it turns up. In 

law, it is good or bad when it starts and does not change character from 

its success.” United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 

229, 92 L. Ed. 210, 220–21 (1948) (footnote omitted).

As noted by Justice Frankfurter many years ago, “[i]t is a fair 

summary of history to say that the safeguards of liberty have frequently 

been forged in controversies involving not very nice people.” United 

States v. Rabinowitz, 339 U.S. 56, 66, 70 S. Ct. 430, 436, 94 L. Ed. 653, 

660–61 (1950) (Frankfurter, J., dissenting), overruled in part by Chimel v. 

California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). In 

reflecting on Justice Frankfurter’s observation, Alfred Carlton, a past 

president of the American Bar Association, noted that “Judges inevitably 

must bear the brunt of this, and judicial independence is the cloak that 

allows them to do it.” Alfred P. Carlton Jr., Preserving Judicial 

Independence—An Exegesis, 29 Fordham Urb. L.J. 835, 841 (2002). 

Carlton further warned against “[i]ntemperate, inaccurate, and emotional 

criticism” arising from such cases that “undermines public confidence in 

the impartiality of the judiciary and hence its independence.” Id. 

We also pause to reflect on the observation in Kopf v. Skyrm:

But Casella was a criminal. He deserved to be arrested and 

punished; his story stirs little sympathy, much less outrage, 

in the crowd. The courts cannot be so impassive. We must 
60

always remember that unreasonable searches and seizures 

helped drive our forefathers to revolution. One who would 

defend [search and seizure law] must share his foxhole with 

scoundrels of every sort, but to abandon the post because of 

the poor company is to sell freedom cheaply. 

993 F.2d 374, 379–80 (4th Cir. 1993).

For the above reasons, we think Cullison remains good law. We 

decline to overrule it. 9 The United States Supreme Court in Griffin,

Knights, and Samson has engaged in innovations that significantly 

reduce the protections of the Warrant Clause of the Fourth Amendment. 

We decline to join the retreat under the Iowa Constitution. We hold that 

under article I, section 8, the warrant requirement has full applicability 

to home searches of both probationers and parolees by law enforcement. 

As a result, because evidence seized in this case was obtained 

unlawfully, the motion to suppress should have been granted. We again 

note that we do not address the legality of home visits or other types of 

supervision by probation officers pursuant to their ordinary functions, 

nor do we address the question of whether a probationer may validly 

consent to warrantless home searches.

VI. Conclusion.

More than forty years ago in Cullison, this court held that under 

the search and seizure provision of article I, section 8 of the Iowa 

Constitution, a valid warrant is required for law enforcement’s search of 

a parolee’s home. In this case, the State does not claim there was a valid 

warrant. In the subsequent decades, the United States Supreme Court 

9We note, according to the Bureau of Justice Statistics, in 2012 there were 

29,333 Iowans on probation. See Bureau of Justice Statistics, U.S. Department of 

Justice, NCJ243826, Probation and Parole in the United States, 2012, app. tbl. 2 (revised 

Apr. 22, 2014), available at www.bjs.gov/content/pub/pdf/ppus12.pdf. The 

consequences of a contrary result in this case would be that the homes of those persons 

could be subject to warrantless searches by law enforcement. 

 
61

has moved away from its reliance on warrants toward and emphasis on 

standalone reasonability in its interpretation of the search and seizure 

provisions of the Fourth Amendment. We decline to adopt this 

innovative reasoning. We find Cullison remains good law and decline to 

disturb it. As a result, the search by general law enforcement authorities 

of the home in this case was unlawful under article I, section 8 of the 

Iowa Constitution. We conclude the district court erred in denying the 

motion to suppress. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except Cady, C.J., who concurs specially, and 

Waterman, Mansfield, and Zager, JJ., who dissent, each writing 

separately.
62

#12–1150, State v. Short

CADY, Chief Justice (concurring specially). 

The majority opinion capably resolves the issue before the court, 

and I join it in full. I write separately to emphasize the importance of 

independently interpreting our Iowa Constitution. 

As Iowans, we are deservingly proud of a long history of rejecting 

incursions upon the liberty of Iowans, particularly because we have so 

often arrived to the just result well ahead of the national curve. Yet, we 

cannot ignore that our history of robust protection of human rights owes 

in no small part to our authority within America’s federalist system to 

independently interpret our constitution. Similarly, we must not forget 

that the virtue of federalism lies not in the means of permitting state 

experimentation but in the ends of expanded liberty, equality, and 

human dignity. See State v. Baldon, 829 N.W.2d 785, 790–91 (Iowa 

2013). A court that categorically ignores these distinctly human ends 

can only accomplish injustice. Thus, we have recognized that “[w]hen 

individuals invoke the Iowa Constitution’s guarantees of freedom and 

equality, courts are bound to interpret those guarantees.” Varnum v. 

Brien, 763 N.W.2d 862, 876 (Iowa 2009); cf. Robert F. Williams, Equality 

Guarantees in State Constitutional Law, 63 Tex. L. Rev. 1195, 1197 

(1985) (“When faced with state constitutional equality claims, state 

courts should recognize their obligation to take these provisions 

seriously.”). 

It goes without saying our decisions have not always been without 

their detractors. As we pointed out in State v. Lyle, also decided today, 

“[o]ur court history has been one that stands up to preserve and protect 

individual rights regardless of the consequences.” ___ N.W.2d ___, ___ 

(Iowa 2014). Yet, history has repeatedly vindicated, and the people of 
63

Iowa have repeatedly embraced, the bold expansions of civil, 

constitutional, and human rights we have undertaken throughout the 

175 years of our existence as a court. In other words, time has shown 

that those decisions, not unlike our recent parolee search cases, are 

unequivocally the law of this state. 

Today’s decision is another step in the steady march towards the 

highest liberty and equality that is the birthright of all Iowans; it will not 

be the last. 

Accordingly, I concur. 
64

#12–1150, State v. Short

WATERMAN, Justice (dissenting).

I respectfully dissent. I would follow the unanimous decision in 

United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 

(2001), to affirm our court of appeals and district court decisions 

upholding the search of Short’s residence. The majority’s opinion today 

is wrongly decided for the reasons set forth in Justice Zager’s dissent, 

which I join in part. I write separately to reemphasize my disagreement 

with our court’s departure from well-settled Fourth Amendment 

precedent and to reiterate my view that State v. Baldon and State v. 

Ochoa are plainly erroneous for the reasons explained by Justice 

Mansfield in his Baldon dissent, which I joined. See State v. Baldon, 829 

N.W.2d 785, 835–47 (Iowa 2013) (Mansfield, J., dissenting). 10 But, I 

agree with Justice Zager’s conclusion that the search of Short’s residence 

can be upheld under those decisions. And, I join in Justice Mansfield’s 

separate dissent in this case, which addresses the majority’s ten 

“established principles of independent state constitutional law.” 

The majority neglects to mention that Short had a lengthy criminal 

record, including multiple felony convictions. He had served time in 

prison for robbery. On March 31, 2011, he pled guilty to his fourth theftrelated offense and, in lieu of incarceration, received a generous sentence 

of probation on the condition that his residence could be searched 

without a warrant any time a law enforcement officer had reasonable 

grounds to believe contraband was present. Consent-to-search clauses 

have commonly been used in parole and probation agreements to deter 

10The majority opinion today and in Baldon reviewed the use of evidence to prove 

new crimes. See Baldon, 829 N.W.2d at 788–89. Both opinions leave open the question 

whether the State may invoke an offender’s violation of the consent-to-search term in a 

parole or probation agreement in revocation proceedings. 

 
65

misconduct and facilitate detection of wrongdoing. Less than two 

months later, while still on probation, Short committed the crime at 

issue in this case by burglarizing a home, taking two flat-screen 

televisions, jewelry, and a $100 gift card to Minerva’s Restaurant. He 

used the gift card there and signed the reciept. The waitress and 

manager later identified Short from a photograph. A magistrate found 

probable cause to search his residence and issued a search warrant, 

which all parties acknowledge was invalid due to an out-of-date address. 

The deputies, based on inaccurate advice during a phone call with the 

magistrate, wrote in the new address, executed the amended warrant, 

and found the stolen property at Short’s residence. The district court, 

following Knights, correctly upheld the search based on Short’s probation 

agreement and diminished expectations of privacy as a felon under 

supervision. I disagree with the majority’s conclusion that Short has the 

same expectations of privacy as ordinary Iowans. It is unfortunate the 

majority, as it did in Baldon, has again failed to enforce an offender’s 

consent-to-search provision, depriving our state’s corrections program of 

an important tool to encourage parolees and probationers to obey the 

law. 

As in several other recent decisions erroneously decided by this 

majority, “[t]he validity of this consent search is solidly grounded on 

Fourth Amendment search and seizure caselaw, and there is no good 

reason to hold otherwise under article I, section 8 of the Iowa 

Constitution.” State v. Pals, 805 N.W.2d 767, 784 (Iowa 2011) 

(Waterman, J., dissenting). Today’s majority, as in Pals, Baldon, and 

Ochoa, once again uses the Iowa Constitution to evade well-settled 

Fourth Amendment precedent without setting forth any principled basis 

for construing Iowa’s nearly identically worded search and seizure 
66

provision to require greater restrictions on the law enforcement 

community and elected branches. The majority fails to articulate any 

standards for interpreting the same constitutional protections differently 

under federal and state law. The majority is willing to reach a different 

result based simply on its own conclusion that particular decisions of the 

United States Supreme Court are not “persuasive.” Persuasion is in the 

eye of the beholder. More restraint is warranted when interpreting our 

state constitution, which by design is so difficult for the people to 

amend.11 

To reach its result, the majority takes an inconsistent approach to 

error preservation12 and rests its analysis on a false premise—that State 

11The people of Florida amended their state constitution’s search and seizure 

provision in 1982 to require conformity with Supreme Court decisions interpreting the 

Fourth Amendment. Fla. Const. art. I, § 12 (“This right shall be construed in 

conformity with the 4th Amendment to the United States Constitution, as interpreted 

by the United States Supreme Court.”). This amendment was in response to decisions 

of the Florida Supreme Court that suppressed evidence of crimes admissible under 

federal interpretations of the Fourth Amendment. See id. § 12, cmt. to 1982 amend.; 

State v. Hume, 512 So. 2d 185, 187 (Fla. 1987) (noting “the amendment to section 12 

was intended, in part, to overrule our decision in [State v.] Sarmiento[, 397 So. 2d 643 

(Fla. 1981)]”). 

12 The majority wrongly concludes the State failed to preserve error on the 

consent issue because the State used the term “waiver” in arguing the consent-tosearch provision in Short’s probation agreement should be enforced. The majority 

faults the State for not developing the record on consent in the district court. The 

probation agreement is part of the record. What further factual development is needed 

to decide the issue here? And, why fault the State for not developing a better record on 

consent in district court when Short did not argue at that time for broader rights under 

the Iowa Constitution? As Justice Zager’s dissent further explains, the consent-tosearch provision is in play in this appeal and supports affirmance of the rulings 

upholding the search. But, let us take the majority at its word. The saving grace is 

that, if the consent issue was waived by the State in this case, then the majority does 

not decide it, and the State remains free in future cases to argue for enforcement of 

probation consent-to-search agreements. 

The majority asserts no party “asks us to revisit” Baldon. The majority fails to 

mention that the State indeed argued at oral argument that Baldon was wrongly 

decided and Fourth Amendment precedent—Knights—should be followed. Yet, the 

majority has no hesitation finding broader restrictions on police searches under the 

Iowa Constitution, even though Short made no such argument in the district court. To 

reach that issue, the majority must find that Short’s trial counsel was ineffective. I 

 
67

v. Cullison, a parolee-search case, was decided four decades ago under 

the search and seizure provision in article I, section 8 of the Iowa 

Constitution. 173 N.W.2d 533, 534–35 (Iowa 1970). That provision is 

mentioned nowhere within the four corners of the majority or dissenting 

opinions in that case. Rather, as further explained in Justice Zager’s 

dissent today, Cullison was decided under the Fourth Amendment and is 

no longer good law after Knights. Pull on the loose thread of Cullison, 

and the majority’s analysis unravels.13 

References to “the sanctity of the home” do not justify the 

majority’s departure from settled Fourth Amendment precedent.14 Cf. 

Baldon, 829 N.W.2d at 841 (Mansfield, J., dissenting) (“If the ‘sanctity of 

the home’ trumps an offender’s status, as we held in Ochoa, why has this 

court repeatedly upheld sex offender residency restrictions?”). The home 

has sanctity in all fifty states. This case is not an example of state courts 

of last resort acting as laboratories developing constitutional doctrine in 

unsettled areas, such as same-sex marriage, before the issue is squarely 

decided by the Supreme Court. Rather, our court today departs from a 

unanimous decision of that Court, Knights, 534 U.S. at 122, 122 S. Ct. 

disagree that his trial counsel was ineffective for failing to foresee our court would 

depart from Knights, a unanimous decision of the United States Supreme Court directly 

on point and widely followed by other state supreme courts without any academic 

criticism. We do not require criminal defense counsel to be clairvoyant. See Millam v. 

State, 745 N.W.2d 719, 722 (Iowa 2008). 

13 Today’s majority claims Cullison was decided under the Iowa search and 

seizure clause because article I, section 8 is mentioned in the defendant’s brief in that 

case. That brief was not appended to the opinion. Do we now expect lawyers to 

discover hidden rulings in our opinions published a generation ago based on a citation 

in an archived brief, akin to archeologists finding a long-lost temple in the jungle?

14 Would today’s majority prohibit a warrantless search of the home of an 

offender serving a sentence under house arrest with an ankle bracelet monitor as an 

alternative to incarceration in a state penitentiary or county jail? If so, will that 

discourage use of home confinement and encourage incarceration, at greater loss of 

liberty and taxpayer expense? 

________________________
68

at 593, 151 L. Ed. 2d at 507, that is widely followed by our sister states 

under their state constitutions.15 The majority cites no decision of any 

other state supreme court declining to follow Knights under its state 

constitution. Nor does the majority marshal any academic criticism of 

Knights. 

The majority’s departure from settled Fourth Amendment caselaw 

inevitably leads to unpredictability, confusion, and instability in the law, 

with multiple sets of rules applying to the same conduct. In my view, we 

should return to our traditional practice of interpreting article I, section 8 

of the Iowa Constitution to have the same meaning as the Fourth 

Amendment, as the framers of our state constitution intended. See Pals,

805 N.W.2d at 786–87 (Waterman, J., dissenting). And, we should 

15See, e.g., State v. Raines, 857 A.2d 19, 21, 27–34 (Md. 2004) (applying Knight 

framework and concluding Maryland DNA Collection Act is constitutional under both 

the United States and Maryland Constitutions); State v. Anderson, 733 N.W.2d 128, 140 

(Minn. 2007) (“The Supreme Court’s decision in Knights does not appear to be a sharp 

or radical departure from its previous decisions or a retrenchment on its Fourth 

Amendment jurisprudence with respect to probation searches. Moreover, we are not 

convinced that federal precedent inadequately protects our citizens’ basic rights and 

liberties.”); State v. Moody, 148 P.3d 662, 667, 668 (Mont. 2006) (citing Knights 

favorably and concluding, under Montana Constitution, “home visits, as a routine and 

reasonable element of supervising a convicted person serving a term of supervised 

release, are not searches and are thus not subject to the reasonable cause standard”); 

State v. Baca, 90 P.3d 509, 519, 520 (N.M. Ct. App. 2004) (stating “our review of Griffin 

and Knights reveals no flaws” and noting “[i]n New Mexico, as well, whether a search is 

unreasonable is determined by balancing the degree of intrusion into a probationer’s 

privacy against the interest of the government in promoting rehabilitation and 

protecting society”); State v. Maurstad, 647 N.W.2d 688, 691, 697 (N.D. 2002) (following 

Knights and commenting “[w]hen reviewing the constitutionality of probationary 

searches, we have interpreted the North Dakota Constitution to provide the same 

protections for probationers as provided by the United States Constitution”); State v. 

Kottman, 707 N.W.2d 114, 120 (S.D. 2005) (rejecting argument under state constitution 

and following Knights); State ex rel. A.C.C., 44 P.3d 708, 712 (Utah 2002) (“[L]ike the 

United States Supreme Court, we too have stated that whether an individual convicted 

of a crime has any reasonable expectation of privacy requires a balancing of the 

government’s interest in operating its institutions and the individual’s privacy 

interest.”). 

 
69

return to our long-standing tradition of following the decisions of the 

highest court in the land when, as here, no departure is warranted by 

any difference in the text, structure, or history of the Iowa provision. 

I dissent to fire another warning shot across the bow of the ship 

the majority steers in the wrong direction without a navigation system. 

I. We Should Construe Article I, Section 8 of the Iowa 

Constitution to Have the Same Meaning as the Fourth Amendment. 

The Fourth Amendment to the United States Constitution16 and 

article I, section 8 of the Iowa Constitution 17 are worded virtually 

identically and provide the same protection against unreasonable 

searches and seizures. Compare U.S. Const. Amend. IV, with Iowa 

Const. art. I, § 8. Our court, like most state supreme courts, has 

traditionally followed federal precedent in construing the same language 

in the state constitution. See Robert F. Williams, The Law of American 

State Constitutions, 194–95 (2009) (noting a “clear majority” of cases 

“decide to follow, rather than diverge from, federal constitutional 

doctrine”). Decisions of the United States Supreme Court resolve issues 

that are briefed and argued by the best lawyers in the country, after 

those issues have first been thoroughly vetted in the federal courts of 

16The 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. 

U.S. Const. amend. IV. 

17The right of the people to be secure in their persons, houses, papers 

and effects, against unreasonable seizures and searches shall not be 

violated; and no warrant shall issue but on probable cause, supported by 

oath or affirmation, particularly describing the place to be searched, and 

the persons and things to be seized. 

Iowa Const. art. I, § 8. 

 
70

appeals. Our nation’s Supreme Court decisions are binding on all 

federal and state courts applying the Fourth Amendment and, unless 

plainly erroneous, should be followed to interpret nearly identical 

language in the state constitution. The Illinois Supreme Court reaffirmed 

its adherence to federal cases to interpret its state’s constitution, stating: 

This limited lockstep approach is not a surrender of state 

sovereignty or an abandonment of the judicial function. It 

is, instead, based on the premise that the drafters of the 

[state] constitution and the delegates to the constitutional 

convention intended the phrase “search and seizure” in the 

state document to mean, in general, what the same phrase 

means in the federal constitution. 

People v. Caballes, 851 N.E.2d 26, 45 (Ill. 2006). This is equally true in 

Iowa. 

The timing of the adoption of the Iowa Constitution18 and the use 

of nearly identical wording confirm the framers intended article I, section 

8 to duplicate the same constitutional protection against unreasonable 

searches and seizures found in the Fourth Amendment. Pals, 805 

N.W.2d at 786 (Waterman, J., dissenting) (noting “article I, section 8 was 

the Fourth Amendment ‘reenacted’ in Iowa to apply to the state” (quoting 

State v. Nelson, 231 Iowa 177, 185, 300 N.W. 685, 689 (1941) (Mitchell, 

J., dissenting))); see also People v. Pickens, 521 N.W.2d 797, 806 (Mich. 

18 At the time the Iowa Constitution was enacted in 1857, the Fourth 

Amendment limited only the federal government. See Weeks v. United States, 232 U.S. 

383, 398, 34 S. Ct. 341, 346, 58 L. Ed. 652, 657–58 (1914) (applying Fourth 

Amendment and exclusionary rule to federal officials, but not to municipal police 

officers), overruled by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 

(1961). A state constitutional bill of rights patterned after the Federal Bill of Rights was 

therefore necessary to provide the same limitations against state governmental 

intrusion on individual civil liberties. The Fourth Amendment was not applied to the 

states until 1949, when the Supreme Court held the Amendment was incorporated in 

the Due Process Clause of the Fourteenth Amendment, enacted after the Civil War. 

Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct. 1359, 1361, 93 L. Ed. 1782, 1785–86 

(1949), overruled on other grounds by Mapp, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 

1081. 

 
71

1994) (commenting “[i]f the convention or ratifiers had intended to alter 

the meaning of this provision, we can presume they would have done so 

by express words” (internal quotation marks omitted)). Other state 

supreme courts have reached the same conclusion.19 

Today’s majority cites no historical evidence that Iowa’s founders 

intended the Iowa search and seizure provision to impose greater 

restrictions on law enforcement. It is, therefore, no surprise that our 

state’s search and seizure caselaw has long tracked with Fourth 

Amendment caselaw because we have consistently construed article I, 

section 8 to have the same meaning. See, e.g., State v. Breuer, 577 

N.W.2d 41, 44 (Iowa 1998) (“ ‘[T]he language of those clauses is 

substantially identical and we have consistently interpreted the scope 

and purpose of article I, section 8, of the Iowa Constitution to track with 

19 See, e.g., Caballes, 851 N.E.2d at 32 (highlighting that the Illinois 

Constitution’s search and seizure provision “was clearly modeled upon the [F]ourth 

[A]mendment to the United States Constitution”); State v. Johnson, 259 P.3d 719, 722 

(Kan. 2011) (“Section 15 of the Kansas Constitution Bill of Rights provides lockstep 

protection to the Fourth Amendment.”); State v. Johnson, 856 P.2d 134, 138 (Kan. 

1993) (“Both the Fourth Amendment and § 15 [of Kansas Bill of Rights] prohibit 

unreasonable searches and seizures. We have held that the wording and scope of the 

two sections are identical for all practical purposes.”); People v. Nash, 341 N.W.2d 439, 

445 (Mich. 1983) (“There is no indication that . . . the people of this state wished to 

place restrictions on law enforcement activities greater than those required by the 

federal constitution. In fact, the contrary intent is expressed.”); State v. Wiegand, 645 

N.W.2d 125, 132 (Minn. 2002) (recognizing the Fourth Amendment is “textually 

identical to a provision of the Minnesota Constitution” and therefore United States 

Supreme Court opinions interpreting the Fourth Amendment are “inherently 

persuasive”); State v. Havlat, 385 N.W.2d 436, 440 (Neb. 1986) (“Nowhere in our 

independent research of the state constitutional conventions do we find evidence that 

the framers intended the explicit language of article I, § 7, to encompass more than 

what it says.”); State v. Felix, 811 N.W.2d 775, 787 (Wis. 2012) (noting the court is 

“particularly reluctant” to interpret the state search and seizure provision more broadly 

than the Fourth Amendment “given the nearly identical language in both provisions”). 

 
72

federal interpretations of the Fourth Amendment.’ ” (quoting State v. 

Showalter, 427 N.W.2d 166, 168 (Iowa 1988))).20 

Only recently has our court diverged from this precedent. This 

court first overtly diverged from the modern-day search and seizure 

decisions of the United States Supreme Court in State v. Cline, 617 

N.W.2d 277, 293 (Iowa 2000), abrogated on other grounds by State v. 

Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). The Cline court stated, 

20See also Baldon, 829 N.W.2d at 837 (Mansfield, J., dissenting) (collecting “a 

long line of Iowa Supreme Court cases, many of them rather recent, [that] giv[e] 

deference to federal interpretations of the Fourth Amendment”); State v. Lowe, 812 

N.W.2d 554, 582 (Iowa 2012) (Waterman, J., concurring specially) (“I would be very 

hesitant to throw aside decades of precedent and create another discrepancy between 

Fourth Amendment law and how the identically worded article I, section 8 of the Iowa 

Constitution is interpreted.”); State v. McCoy, 692 N.W.2d 6, 15 (Iowa 2005) (“Because 

we find no basis to distinguish the protections afforded by the Iowa Constitution from 

those afforded by the federal constitution under the facts of this case, our discussion of 

the defendant’s claimed seizure violation applies equally under both constitutional 

provisions.”); State v. Reinders, 690 N.W.2d 78, 81–82 (Iowa 2004) (“Because the federal 

and state search-and-seizure clauses are nearly identical, the construction of the 

federal constitution is persuasive in our interpretation of the state provision.”); State v. 

Loyd, 530 N.W.2d 708, 711 (Iowa 1995) (“[W]e interpret the scope and purpose of the 

state constitutional clause to be coextensive with federal interpretations of the Fourth 

Amendment.”); State v. Strong, 493 N.W.2d 834, 835–36 (Iowa 1992) (“ ‘[T]he language 

of those clauses is substantially identical and we have consistently interpreted the 

scope and purpose of article I, section 8, of the Iowa Constitution to track with federal 

interpretations of the Fourth Amendment.’ ” (quoting Showalter, 427 N.W.2d at 168)); 

Kain v. State, 378 N.W.2d 900, 902 (Iowa 1985) (“[O]ur interpretation of article I, section 

8 has quite consistently tracked with prevailing federal interpretations of the fourteenth 

amendment in deciding similar issues.”); State v. Groff, 323 N.W.2d 204, 207–08 (Iowa 

1982) (“We have often said that where state and federal constitutional clauses contain a 

similar guarantee they are deemed to be identical in scope, import, and purpose.”); 

State v. Roth, 305 N.W.2d 501, 507 (Iowa 1981) (“Defendant challenges the search 

under the Iowa Constitution as well as the United States Constitution, but we see no 

reason to impose a different rule under the state constitution.”); State v. Davis, 304 

N.W.2d 432, 434 (Iowa 1981) (“The Supreme Court of Iowa is the final arbiter of the 

meaning of the Iowa Constitution, but when the federal and state constitutions contain 

similar provisions, they are usually deemed to be identical in scope, import, and 

purpose.”); State v. Olsen, 293 N.W.2d 216, 219 (Iowa 1980) (noting the United State 

Supreme Court’s interpretation of the Fourth Amendment is persuasive in construing 

this state’s analogous state constitutional provision). The Ochoa court simply ignored 

this long line of cases. 

 
73

“[W]e strive to be consistent with federal constitutional law in our 

interpretation of the Iowa Constitution, but we ‘jealously guard our right 

and duty to differ in appropriate cases.’ ” 617 N.W.2d at 285 (quoting 

State v. Olsen, 293 N.W.2d 216, 220 (Iowa 1980)). Cline held the goodfaith exception to the exclusionary rule recognized by the United States 

Supreme Court did not exist under the Iowa Constitution. Id. at 293. 

Cline, however, rejected a federal exception to a judge-made remedy for 

constitutional violations; Cline did not impose greater restrictions on the 

power of police to conduct warrantless searches. See Davis v. United 

States, 564 U.S. ___, ___, 131 S. Ct. 2419, 2426, 180 L. Ed. 2d 285, 293 

(2011) (noting exclusion of evidence “is not a personal constitutional 

right,” but rather is a court-created prudential remedy (internal 

quotation marks omitted)).21 

Our court’s next retreat from Fourth Amendment precedent was 

State v. Ochoa, 792 N.W.2d 260, 287–91 (Iowa 2010). The Ochoa court 

held that a warrantless search of a parolee’s motel room violated the 

search and seizure provision of the Iowa Constitution, even though it was 

permitted under the Fourth Amendment based on United States 

Supreme Court precedent. Id. at 291. The Ochoa court proclaimed: 

In order to resolve any inconsistency in our prior 

cases, we now hold that, while United States Supreme Court 

cases are entitled to respectful consideration, we will engage 

in independent analysis of the content of our state search 

and seizure provisions. A Fourth Amendment opinion of the 

United States Supreme Court, the Eighth Circuit Court of 

Appeals, or any other federal court is no more binding upon 

our interpretation of article I, section 8 of the Iowa 

21As noted, the deputies obtained a warrant to search Short’s residence and 

telephoned a magistrate upon discovering Short’s new address. The magistrate 

mistakenly advised that the officer could write the new address on the warrant. The 

State does not ask us to revisit Cline to find a narrow, good-faith exception to the 

exclusionary rule under the facts of this case. 

 
74

Constitution than is a case decided by another state 

supreme court under a search and seizure provision of that 

state’s constitution. The degree to which we follow United 

States Supreme Court precedent, or any other precedent, 

depends solely upon its ability to persuade us with the 

reasoning of the decision. 

Id. at 267 (emphasis added). The Ochoa court’s chest-thumping 

assertion of judicial power marked a dramatic departure from our court’s 

long-standing adherence to settled Fourth Amendment precedent on the 

validity of searches. This new mindset metastasized into Pals,22 Baldon, 

and today’s decision.23 

Contrary to Ochoa, I consider a United States Supreme Court 

decision on the Fourth Amendment to be of significantly greater 

precedential weight than a decision by another state supreme court. 

Why? Because, to restate the obvious, the United States Supreme 

Court’s holdings are binding on all state and federal courts applying the 

Fourth Amendment, and our state constitution’s search and seizure 

provision has the same meaning as the federal provision. 

22In Pals, the majority held a consent search was involuntary under article I, 

section 8 of the Iowa Constitution because the officer failed to tell the motorist he had a 

right to say no to his request to look in his vehicle. 805 N.W.2d at 783. No such 

disclosure was required under Fourth Amendment precedent or prior Iowa cases. See 

id. at 788 (Waterman, J., dissenting). We were taught in grade school that the 

policeman is our friend. But, the police officer is not the lawyer for a motorist pulled 

over for suspicion of a crime. 

23The same mindset produced today’s juvenile sentencing decisions in which our 

court stands alone at the fringe of Eighth Amendment jurisprudence. See State v. Lyle, 

___ N.W.2d ___, ___ (Iowa 2014) (Waterman, J., dissenting); id. at ___ (Zager, J., 

dissenting); State v. Taylor, ___ N.W.2d ___, ___ (Iowa 2014) (noting Justices Waterman, 

Mansfield, and Zager, JJ., dissent without opinion). And, the same mindset earlier 

allowed this court in a sharply divided opinion to misapply the rational-basis test under 

the Iowa Constitution to strike down a legislative tax differential that the unanimous 

Supreme Court, applying the same highly deferential test in the very same case, upheld 

as constitutional under the Federal Equal Protection Clause. See Racing Ass’n of Cent. 

Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004); id. at 16–17 (Carter, J., dissenting); id. 

at 17–28 (Cady, J., dissenting). 

 
75

It is indeed our court’s role to interpret the Iowa Constitution, but I 

part company with the majority’s stated willingness to impose greater 

restrictions on police and our legislature under the Iowa Constitution’s 

search and seizure provision merely by deeming the Supreme Court’s 

Fourth Amendment precedent unpersuasive. 

A bare disagreement with the United States Supreme Court’s 

interpretation of the Federal Constitution “imparts no sound 

doctrinal basis to impose a contrary view under the pretext 

of separately interpreting our State Constitution. Our 

Constitution is more than just a device to reject or evade 

federal decisions . . . .” 

State v. Kottman, 707 N.W.2d 114, 119–20 (S.D. 2005) (quoting State v. 

Schwartz, 689 N.W.2d 430, 438 (S.D. 2004) (Konenkamp, J., concurring 

in judgment)). 

The majority, citing two law professors, perjoratively labels our 

court’s long-standing practice of following Fourth Amemdment precedent 

to be an “aggressive maximalist” approach and a “precommitment device 

preventing independent examination of the facts and law.” No court until 

now has used those labels to describe the approach followed by most 

state supreme courts. I doubt any of the justices of our court who 

retired before Ochoa, including jurists such as C. Edwin Moore, Clay 

LeGrand, or Harvey Uhlenhopp, would have agreed those labels 

accurately describe their approach to search and seizure law. 

Stare decisis is a “precommitment device,” is it not?24 By contrast, the 

majority expressly disavows following any specific standards or criteria 

24We invariably scrutinize the evidentiary record to determine whether precedent 

is factually distinguishable. Federal courts may be divided, or certain issues may be 

unsettled. And, we may decline to follow precedent found to be plainly erroneous. 

Precedent may be reexamined in response to intervening changes in the law or other 

circumstances. Our case-by-case adjudication is never unthinking or predetermined in 

a way that forecloses such analysis. Neither should our decision-making be untethered 

from precedent. 

 
76

for determining when to depart from settled Fourth Amendment 

precedent. What label best describes the majority’s approach today? 

The majority’s recent departures from our court’s numerous 

decisions following settled federal constitutional precedent undermine 

the predictability and stability of our law. Revisiting settled precedent 

whenever four justices of this court find prior cases “unpersuasive” leads 

to serious and troubling repercussions. Too many long-settled rules are 

put back into play. This subverts the goals served by the doctrine of 

stare decisis. A recent admonition by the Supreme Court is worth 

repeating. 

[T]his Court does not overturn its precedents lightly. Stare 

decisis, we have stated, “is the preferred course because it 

promotes the evenhanded, predictable, and consistent 

development of legal principles, fosters reliance on judicial 

decisions, and contributes to the actual and perceived 

integrity of the judicial process.” Although “not an 

inexorable command,” stare decisis is a foundation stone of 

the rule of law, necessary to ensure that legal rules develop 

“in a principled and intelligible fashion.” For that reason, 

this Court has always held that “any departure” from the 

doctrine “demands special justification.” 

Michigan v. Bay Mills Indian Cmty., ___ U.S. ___, ___, 134 S. Ct. 2024, 

2036, 188 L. Ed. 2d 1071, 1086 (2014) (citations omitted); see also State 

v. Walker, 804 N.W.2d 284, 296 (Iowa 2011) (“Stare decisis is a valuable 

legal doctrine which lends stability to the law . . . .” (Internal quotation 

marks omitted.)); Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) 

(Cady, J., dissenting) (“It nearly goes without saying that the doctrine of 

stare decisis is one of the bedrock principles on which this court is built. 

It is an important restraint on judicial authority and provides needed 

stability in and respect for the law.”); cf. State v. Brown, 156 S.W.3d 722, 

735–36 (Ark. 2004) (Glaze, J., dissenting) (concluding majority violated 
77

Arkansas precedent by giving state search and seizure provision different 

meaning than Fourth Amendment). 

The majority injects further instability into our law through its 

mantra that our court “reserve[s] the right to apply the standard in a 

[different] fashion.” I am not sure what that means. Does this approach 

make predicting the law a guessing game? 

The legitimacy of our court’s decisions rests in part on the 

perception and reality that we are applying the rule of law, not our 

personal preferences for what the law should be. As Justice Frankfurter 

admonished, we are not “justified in writing [our] private notions of policy 

into the Constitution, no matter how deeply [we] may cherish them or 

how mischievous [we] may deem their disregard.” W. Va. State Bd. of 

Educ. v. Barnette, 319 U.S. 624, 647, 63 S. Ct. 1178, 1189, 87 

L. Ed. 1628, 1642 (1943) (Frankfurter, J., dissenting). We are on solid 

ground interpreting our state constitution consistently with United 

States Supreme Court decisions construing the parallel provision in the 

Federal Constitution. We are on shaky ground when we take a different 

path simply because we find the federal interpretations “unpersuasive.” 

“If these principles of constitutional construction were to be 

ignored critics not unreasonably would declare it judicial 

arrogance for courts to say that their power to construe 

constitutions was limited only by the restraints courts might 

impose upon themselves. Courts are not legislatures, and 

neither are they constitutional framers and adopters of 

constitutions. What Justice Powell said in another context is 

not without relevance: ‘We should be ever mindful of the 

contradictions that would arise if a democracy were to 

permit general oversight of the elected branches of 

government by a nonrepresentative, and in large measure 

insulated, judicial branch.’ ” 
78

Caballes, 851 N.E.2d at 36 (quoting People v. Tisler, 469 N.E.2d 147, 161 

(Ill. 1984) (Ward, J., concurring)). Returning to our traditional approach 

will restore legitimacy to our constitutional adjudication in this area. 

The majority, by diverging from settled federal precedent, 

contributes to a Tower of Babel-like cacophony of varying state court 

interpretations of nearly identically worded search and seizure 

provisions. Our court is now part of the problem, not the solution. As 

one commentator observed, “state constitutional law today is a vast 

wasteland of confusing, conflicting, and essentially unintelligible 

pronouncements.” James A. Gardner, The Failed Discourse of State 

Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992) [hereinafter Gardner]. 

Adherence to well-settled Fourth Amendment precedent promotes 

uniformity between state and federal search and seizure law. Our sister 

states have recognized the importance of uniformity in state and federal 

interpretations of the same constitutional language. 25 Diverging from 

25See, e.g., State v. Hunt, 450 A.2d 952, 955 (N.J. 1982) (noting “enforcement of 

criminal laws in federal and state courts, sometimes involving the identical episodes, 

encourages application of uniform rules governing search and seizure”); State v. Gomez, 

932 P.2d 1, 7–8 (N.M. 1997) (“[W]e recognize the responsibility of state courts to 

preserve national uniformity in development and application of fundamental rights 

guaranteed by our state and federal constitutions.” (Internal quotation marks 

omitted.)); State v. Flores, 570 P.2d 965, 968 (Or. 1977) (considering “the need for a 

uniform standard in the area of law under discussion” as a factor in its state 

constitutional analysis); State v. Anderson, 910 P.2d 1229, 1235 (Utah 1996) (“[A]n 

independent [state constitutional] analysis is not necessarily a different analysis. 

Indeed, we have endeavored toward uniformity in the application of the search and 

seizure requirements of the state and federal constitutions, particularly since the 

respective provisions are practically identical. . . . ‘One untoward consequence of [the 

opposite] approach is to impose two different and possibly conflicting constitutional 

standards on law enforcement officers.’ ” (Citation omitted.) (quoting State v. Poole, 871 

P.2d 531, 536 (Utah 1994) (Stewart, J., concurring)); see also Lawrence Friedman, The 

Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. 

L.Q. 93, 103 (2000) (following federal precedent “is justified, at least in regard to the 

enforcement of the criminal law, by an interest in uniformity, which urges the 

development of identical state and federal rules to control government conduct in regard 

to procedural issues”). 

 
79

settled federal precedent results in two sets of rules and confusion 

among the bench and bar and law enforcement over which rules to 

follow. It also leads to inconsistent results, whereby evidence from the 

same arrest or crime could be admissible in federal court, but not state 

court. See Baldon, 829 N.W.2d at 842 (Mansfield, J., dissenting) (“[W]e 

now have two different sets of search and seizure rules in Iowa.”). 

The Iowa bench and bar and the law enforcement community are 

whipsawed by our court’s end runs around well-settled Iowa and Federal 

Fourth Amendment precedent. Federal Fourth Amendment law has been 

comparatively stable. See Davis, ___ U.S. at ___, 131 S. Ct. at 2433, 180 

L. Ed. 2d at 301 (“Decisions overruling this Court’s Fourth Amendment 

precedents are rare.”).26 The Iowa bench and bar should be able to rely 

on settled federal precedent directly on point in construing the parallel 

provisions of the Iowa Constitution. Will Iowa criminal defense attorneys 

now feel compelled to argue divergence from Fourth Amendment 

precedent on any issue to avoid a claim of ineffective assistance of 

counsel, malpractice, or disciplinary charges for neglect or 

incompetence—even if the position taken is contrary to long-settled 

caselaw—merely because a majority of our court might find the 

precedent unpersuasive? See Baldon, 829 N.W.2d at 816 (Appel, J., 

concurring specially) (citing cases finding defense counsel ineffective or 

guilty of “malpractice” for failing to argue state constitutional claims). 

Must Iowa lawyers do a fifty-state survey and review of the academic 

26I disagree with the majority’s contention that federal courts have “diluted” 

Fourth Amendment protections. The majority relies on dissenting opinions and 

commentators for that view, which is belied by the unanimous decision this term 

holding police generally must obtain a warrant before searching a smart phone seized 

incident to a lawful arrest. See Riley v. California, ___ U.S. ___, ___, 134 S. Ct. 2473, 

2495, 189 L. Ed. 2d 430 (2014). 

 
80

literature in every case to brief why we should reject a decision of the 

highest court in the land? Or, why bother if a majority of our court can 

disregard any precedent? 

II. We Should Articulate Standards for Departing from Settled 

Federal Precedent When Construing the Same Provisions in the Iowa 

Constitution. 

We, of course, have the interpretive power under our state 

constitution to depart from federal precedent. Just because we can 

depart does not mean we should. I disagree with the majority’s assertion 

that our court should not establish “criteria” for determining when to 

diverge from federal interpretations. In my view, our departures should 

be based on articulated standards that mean something more than a

salute to Iowa “values” or a bald conclusion the federal precedent is 

“unpersuasive.” See Schwartz, 689 N.W.2d at 444 (recognizing that the 

“values” rationale “has a high potential for misuse”); Gardner, 90 Mich. 

L. Rev. at 818 (“[T]he notion of significant local variations in character 

and identity is just too implausible to take seriously as the basis for a 

distinct constitutional discourse.”). 

The battle lines for this debate are drawn in the divided decision of 

the South Dakota Supreme Court in Schwartz. See generally 689 

N.W.2d at 437–45; id. at 445–49 (Sabers, J., dissenting). In Schwartz, 

defendants were convicted of methamphetamine possession based on 

evidence obtained in a warrantless search of their curbside trash. Id. at 

433. The defendants argued the South Dakota Constitution prohibited 

the warrantless search and seizure of their trash. Id. at 432. As in Iowa, 

the search and seizure provision of the South Dakota Constitution was 

worded nearly identically to the Fourth Amendment. See id. at 435 n.1. 
81

The United States Supreme Court squarely addressed the question 

of the applicability of Fourth Amendment protections to curbside trash in 

California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 

(1988). Greenwood held that persons who place their garbage for public 

collection do not have a reasonable expectation of privacy over its 

contents. Greenwood, 486 U.S. at 40–41, 108 S. Ct. at 1629, 100 

L. Ed. 2d at 36–37. The Schwartz defendants argued the South Dakota 

Constitution should be construed to provide broader protection. 689 

N.W.2d at 435. The Schwartz plurality noted a majority of state courts 

follow Greenwood and applied essentially the same test as Greenwood to 

reach the same result under the South Dakota Constitution. Id. The 

Schwartz plurality observed, “Those jurisdictions who have decided to 

part company with the Greenwood decision have generally relied upon 

unique language in their state constitution to extend protection to trash 

intended for collection.” Id. Two dissenting justices found Greenwood

unpersuasive and advocated for greater protection under the 

South Dakota Constitution. Id. at 446 (Sabers, J., dissenting). 

Two concurring opinions called for the type of analysis lacking in 

today’s majority opinion and in Baldon, Pals, and Ochoa. See Schwartz, 

689 N.W.2d at 437 (Zinter, J., concurring); id. at 437–45 (Konenkamp, 

J., concurring in judgment). Justice Zinter admonished counsel in 

future cases “to present some interpretive methodology that leads to 

principled constitutional interpretation when they assert that essentially 

identical language in our Constitution means something different than 

the United States Constitution.” Id. at 437 (Zinter, J., concurring). A 

concurring opinion by Justice Konenkamp elaborated, stating: “Whether 

we can more broadly interpret our similarly worded state constitutional 

provisions should be decided on a neutral set of divergence standards.” 
82

Id. at 438 (Konenkamp, J., concurring in result). This concurrence 

warned that “[w]idely divergent interpretations of similar provisions 

create unpredictability and confusion in the law.” Id. at 439. His 

concurrence went on to propose: 

In deciding whether a state constitutional provision should 

receive a divergent interpretation, we should examine (1) the 

text of the provision at issue; (2) the territorial, legal, and 

constitutional history surrounding the provision; (3) the 

structural differences in the State and Federal Constitutions; 

and (4) the matters of unique state tradition or concern that 

bear on the meaning of the provision. 

Id. at 440. 27 Justice Konenkamp, after discussing these “divergence 

standards,” joined the majority opinion following Greenwood. Id. at 441–

44. 

Justice Konenkamp’s thorough analysis provides a useful roadmap 

for determining whether an independent state constitutional adjudication 

should lead to a different result than federal precedent. “Constitutional 

analysis always begins with the text.” Id. at 441. His concurrence noted, 

when the South Dakota Constitution was adopted in 1889, “the Federal 

Bill of Rights had no binding effect on state courts,” suggesting that “the 

adoption of many of the provisions [in the] State Bill of Rights . . . may 

have reflected an intention primarily to duplicate corresponding federal 

27See also Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 421 (Conn. 2008) 

(detailing six factors “to be considered in construing the contours of our state 

constitution so that we may reach reasoned and principled results as to its meaning”); 

Hunt, 450 A.2d at 965–67 (Handler, J., concurring) (using seven divergence criteria to 

analyze state constitutional provisions); Flores, 570 P.2d at 968 (utilizing four criteria 

from Johansen’s New Federalism note and adding a fifth: “the need for a uniform 

standard in the area of law under discussion”); Commonwealth v. Russo, 934 A.2d 

1199, 1205 (Pa. 2007) (listing four criteria for “a principled consideration of state 

constitutional doctrine”); State v. Jewett, 500 A.2d 233, 236–38 (Vt. 1985) (reviewing 

various approaches to independent state constitutional adjudication); State v. Gunwall, 

720 P.2d 808, 812–13 (Wash. 1986) (articulating six divergence criteria); Robin B. 

Johansen, Note, The New Federalism: Toward a Principled Interpretation of the State 

Constitution, 29 Stan. L. Rev. 297, 298 (1977) (identifying “four factors a state supreme 

court should consider in making a principled interpretation of the state constitution”). 

 
83

provisions.” Id. He observed that a difference in wording would provide 

the best argument for a difference in interpretation. Id. Faced with a 

“substantively identical” provision, he concluded that “[n]othing in the 

language itself indicates that the framers intended the state prohibition 

against unreasonable searches and seizures to be broader than the 

federal prohibition in the Fourth Amendment.” Id. at 442. He ended 

with an appropriate cautionary admonition regarding independent state 

constitutional adjudication: 

In summary, to ensure that our constitutional 

jurisprudence develops in a methodical and authentic way, 

we must be guided by a set of interpretive principles. 

Authoritative and neutral analysis of South Dakota’s 

Constitution cannot advance from episodic and reactionary 

borrowing of results from other state courts. Litigants must 

demonstrate that the text, history, or purpose of a 

South Dakota constitutional provision supports a different 

interpretation from the corresponding federal provision. If 

there is any place where the principle of judicial restraint 

ought to deter us, it is in the area of constitutional 

divergence. As Professors Whitebread and Slobogin warn, 

“wide-open state [court] activism runs counter to judicial 

decisionmaking goals of clarity, efficiency, and principled 

reasoning. . . . [Such activism] is bad policy because it 

promotes uncertainty, questionable duplication of review, and 

result-oriented jurisprudence.” These words offer valid 

cautions, but, in the right case, they should not discourage 

us from a vigorous analysis of South Dakota’s Constitution. 

Id. at 445 (emphasis added) (citation omitted). The foregoing admonition 

applies with equal force here. 

Our court likewise should not depart from well-settled federal 

precedent without good reason. Justice Konenkamp’s “neutral set of 

divergence standards” provides guidance to those who would advocate 

construing an Iowa constitutional provision differently than its federal 

counterpart. Such standards are missing in the majority’s analysis 

today and in Ochoa, Pals, and Baldon. Those standards warrant no 

departure from Knights and its Fourth Amendment progeny in this case. 
84

III. Conclusion. 

For generations, in countless other decisions, our court has 

construed the search and seizure provision in the Iowa Bill of Rights to 

be of the same purpose, scope, and effect as the Fourth Amendment. It 

is this long-standing tradition of adherence to settled federal precedent 

from which our court has diverged, sporadically, since Ochoa was 

decided in December 2010. We do our job best as a state supreme court 

by applying our own pre-Ochoa jurisprudence, which holds article I, 

section 8 of the Iowa Constitution has the same meaning as the Fourth 

Amendment. We should return to relying on well-settled federal 

precedent on search and seizure issues. 

For these reasons, and the reasons set forth in the dissents of 

Justices Mansfield and Zager, I would affirm the decision of the court of 

appeals and judgment of the district court upholding the search of 

Short’s residence. 

Mansfield, J., joins this dissent. 
85

#12–1150, State v. Short

MANSFIELD, Justice (dissenting). 

I join in the dissents of Justice Waterman and Justice Zager, but 

write separately to respond to the majority’s ten “[e]stablished [p]rinciples 

of [i]ndependent [s]tate [c]onstitutional [l]aw.” As I will attempt to show, 

these are not established principles. I will respond to the majority’s ten 

points in order. 

1. The majority begins its list of ten principles by asserting that its 

constitutional approach announced in 2010 has been “thoroughly 

explored” in a majority opinion released in 2011 and a special 

concurrence released in 2013. See State v. Baldon, 829 N.W.2d 785, 803 

(Iowa 2013) (Appel, J., concurring specially); State v. Pals, 805 N.W.2d 

767 (Iowa 2011); State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). That 

should end the debate, the majority suggests, notwithstanding the clear 

disconnect between this court’s 2010–2014 approach to search and 

seizure and the approach it took for decades before 2010. 

I respectfully disagree. Actual decisions are binding and can have 

stare decisis effect, but is a philosophical approach binding? Is a 

statement by the Iowa Supreme Court in one case that it gives no weight 

to United States Supreme Court interpretations of the same 

constitutional language binding for all future cases? I think not. Could 

four Justices of the Supreme Court bind this court in the future to follow 

“original intent,” “legal realism,” or “economic analysis of the law”? I 

doubt it. 

Furthermore, the State of Iowa has directly put at issue the 

approach to be taken in this state constitutional search and seizure case. 

While the State is not seeking to overturn the Ochoa, Pals, or Baldon

decisions today, it has asked this court to give deference to United States 
86

Supreme Court precedent. In particular, the State asks this court to 

follow United States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 593, 

151 L. Ed. 2d 497, 507 (2001), in which that Court unanimously upheld 

a probation search similar to the one here. The State concludes in its 

brief, “Short has failed to produce sufficient justification for this Court to 

swim upstream against the well-accepted decision in Knights.” 

Thus, we need to decide whether we give deference to Knights or 

not. I believe we should. 

2. The majority’s second principle is that state constitutions were 

“the original protectors of individual rights.” Here, all the majority is 

really saying is that America had states before it had a national 

government. Of course that is true. But what is the relevance of that 

point when it comes to interpreting the Iowa Constitution of 1857? 

Our state did not come before the United States. We became a 

state over fifty years after the Federal Bill of Rights was ratified. Our 

framers adopted article I, section 8, not because it resembled something 

in some other state’s colonial era constitution, but because it was 

already the federal constitutional provision. So if timing and sources 

matter, we should be guided by interpretations of the Fourth 

Amendment. 

3. Principle three is that there was a strong emphasis on 

individual rights in the Iowa Constitution. To support this contention, 

the majority cites us to the statements made by George Ells during the 

debates over the Iowa Constitution. We should look at Ells’s actual 

words, not the majority’s paraphrasing. 

After offering an amendment that was adopted by the convention 

to include a counterpart to the Due Process Clause in the Iowa 

Constitution, Ells said: 
87

I am one of that class of men who believe that that clause in 

the Constitution of the United States, has been violated by 

the Congress of this nation in such a manner that we would 

be justified at this time, either by legal enactment or by 

incorporating provisions into our constitution, in protecting 

ourselves from its operation. I regard the Fugitive Slave Law 

as unconstitutional, because it does not give to man the 

right to defend his life and liberty by “due process of law.” In 

this opinion, I expect to be at variance with my friend from 

Lee, [Mr. Johnston,] and those who act with him. Now, the 

committee who have offered the amendment to this second 

section, did so from a desire that the Bill of Rights in the 

Constitution of this State, should be as strong, in this 

respect, as the Constitution of the United States. We have 

seen, Mr. Chairman, that Constitution violated again and 

again by the dominant party in the land, which rides roughshod over the necks of freemen. In common with a large 

majority of the people of this State, I desire to see our 

constitution contain every guarantee for freedom that words 

can express. If the words “due process of law,” shall in time 

be recognized by our judicial tribunals to mean what they 

really do mean, “that no person shall be deprived of life, 

liberty or property, without a legal proceeding based upon the 

principles of the common law, and the constitution of the 

United States”—that every man, when his life or liberty are 

imperilled, shall have the right to be tried by a jury of his 

countrymen. Then, sir, that infamous Fugitive Slave Law 

will become a nullity, and the American people will trample 

its odious enactments in the dust. 

1 The Debates of the Constitutional Convention of the State of Iowa 101–

02 (W. Blair Lord rep., 1857) (emphasis added), available at

http://www.statelibraryofiowa.org/services/collections/law-library/ia

const/iaconstdebates. 

Reading Ells’s statement in its entirety, rather than the majority’s 

shorthand version, he was clearly urging his colleagues to include a due 

process clause in the Iowa Constitution so that it would have the same 

degree of protections against a rampant majority as the United States 

Constitution provided. He was not proposing a due process clause so 
88

that Iowa’s courts could go on future solo missions to find new 

interpretations of constitutional provisions with established meanings.28 

McClure v. Owen is another example of the majority’s 

overenthusiastic reading of nineteenth-century sources. See 26 Iowa 

243 (1868). The majority cites McClure as an early recognition that Iowa 

can “construe state constitutional provisions free from federal 

precedent.” But McClure had nothing to do with the proposition we are 

discussing today. The constitutional provisions being interpreted in 

McClure were Iowa constitutional provisions with no counterpart in the 

United States Constitution. See id. at 244. 

Thus, in McClure, the court noted the United States Supreme 

Court had refused to follow our court’s most recent interpretation on a 

question of the authority of municipal corporations under the Iowa 

Constitution. Id. at 253 (citing Gelpcke v. City of Dubuque, 68 U.S. 175, 

206, 17 L. Ed. 520, 524 (1863)). This involved Iowa-specific provisions 

with no parallel in the United States Constitution. See generally Gelpcke, 

68 U.S. at 204, 17 L. Ed. at 525 (setting forth provisions of the Iowa 

Constitution). 

Along the same lines, Iowans should justly be proud of several 

landmark decisions of our court, including Clark v. Board of Directors, 24 

Iowa 266 (1868), and Coger v. Northwestern Union Packet Co., 37 Iowa 

145 (1873). This court did not decide Clark and Coger, however, by 

28The majority notes that “during this time period the United States Supreme 

Court upheld the Fugitive Slave Law from constitutional attack.” I do not follow where 

the majority is heading with this point because the United States Supreme Court did 

not uphold the Fugitive Slave Law until two years after Ells’s statement. See Ableman 

v. Booth, 62 U.S. 506, 526, 16 L. Ed. 169, 177 (1859) (“[T]he act of Congress commonly 

called the fugitive slave law is . . . fully authorized by the Constitution of the United 

States.”). Ells would not have known what the United States Supreme Court was going 

to do two years after he spoke. 

 
89

disregarding contemporaneous federal interpretations of counterpart 

provisions of the United States Constitution. In Clark, this court held a 

provision of the 1857 Iowa Constitution providing “ ‘for the education of 

all of the youths of the State through a system of common schools’ ” 

required a local school board to integrate its schools. 24 Iowa at 271 

(quoting Iowa Const. art. IX, div. 1, § 12 (emphasis added)). The Clark

court reached this conclusion without citing or discussing any federal 

precedent or the United States Constitution. See generally id. at 269–77. 

Nor is our court’s decision in Coger an example of divergence from United 

States Supreme Court precedent in interpreting a parallel provision of 

the Iowa Constitution. Coger presciently held that a “woman of color” 

was entitled to equal accommodations under the Equal Protection Clause 

of the United States Constitution without finding any broader rights 

under the Iowa Constitution. See 37 Iowa at 153, 155–57. These 

decisions are rightly hailed today, but they should not be cited as 

justification for what this court is doing now in search and seizure law. 

Also somewhat extravagant, in my view, is the majority’s claim that 

our framers’ use of a semicolon rather than a comma in article I, section 

8 indicates “the framers [of the Iowa Constitution] believed that there was 

a relationship between the reasonableness clause and the warrant 

clause.” Let’s review the federal and the Iowa provisions. First, the 

Fourth Amendment: 

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. 

U.S. Const. amend. IV. 
90

Now article I, section 8: 

The right of the people to be secure in their persons, 

houses, papers and effects, against unreasonable seizures 

and searches shall not be violated; and no warrant shall 

issue but on probable cause, supported by oath or 

affirmation, particularly describing the place to be searched, 

and the persons and things to be seized. 

Iowa Const. art. I, § 8. 

I do not think one can use this inconsequential punctuation 

difference to justify a different interpretation of article I, section 8. 

Notably, in Ochoa the court merely noted this difference. See 792 

N.W.2d at 268–69. Now it elevates this difference into a statement of the 

1857 framers’ intent. 

4. The majority’s next principle is that the incorporation of federal 

constitutional guarantees against the states has led to “a tendency for 

the United States Supreme Court to dilute the substance of the rights.” 

The Fourth Amendment, in the view of the majority, was watered down 

once it became incorporated against the states under the Fourteenth 

Amendment. The majority decries the United States Supreme Court 

having replaced clear requirements with “vague notions of 

reasonableness.” 

People can decide for themselves whether this court’s recent 

article I, section 8 decisions have led to greater clarity and predictability. 

In my view, a rule that would sustain searches based on reasonable 

suspicion of probationers who consented to such searches as a condition 

of probation is straightforward and easy to apply. It was sustained 

unanimously by the United States Supreme Court in Knights. See 534 

U.S. at 122, 122 S. Ct. at 593, 151 L. Ed. 2d at 507. If Knights resulted 

in a watering down of constitutional protections, that observation 
91

escaped every member of the Supreme Court, including Justices Stevens, 

Souter, Ginsburg, and Breyer. 

And if Knights really involved some deviation from historic Fourth 

Amendment principles, one would expect some other state court, 

somewhere, to have voiced disagreement. But the majority cites no 

example of a state court that has declined to follow Knights under its own 

constitution. To the contrary, just next door, in State v. Anderson, the 

Minnesota Supreme Court unanimously declined an invitation to depart 

from Knights under the Minnesota Constitution. 733 N.W.2d 128, 140 

(Minn. 2007). 

In this unanimous decision, the Minnesota Supreme Court 

observed: 

The Supreme Court’s decision in Knights does not appear to 

be a sharp or radical departure from its previous decisions 

or a retrenchment on its Fourth Amendment jurisprudence 

with respect to probation searches. Moreover, we are not 

convinced that federal precedent inadequately protects our 

citizens’ basic rights and liberties. Accordingly, we decline 

Anderson’s invitation to deem the search of his residence 

unreasonable under the Minnesota Constitution. 

Id. 

Notably, Minnesota’s counterpart to the Fourth Amendment is 

worded quite similarly to Iowa’s article I, section 8, including the 

presence of a semicolon between “violated” and “and.” Compare Minn. 

Const. art. I, § 10, with Iowa Const. art. I, § 8.

5. In principle number five, the majority contends that 

“lockstepping state law to federal precedents is not a humble or 

minimalist approach, but is an aggressive and maximalist approach to 

the law.” This is a straw man attack because no member of this court 

has questioned its authority to independently interpret Iowa’s 

Constitution. The issue is one of deference—do we exercise our 
92

substantial authority “in the search and seizure area with a degree of 

self-imposed modesty and restraint”? See Baldon, 829 N.W.2d at 843 

(Mansfield, J., dissenting). 

I do not understand the basis for the viewpoint that we are being 

“humble” when we reject precedents from the United States Supreme 

Court and state supreme courts around the country and conclude, by 

ourselves, that a warrant is always necessary to search a home absent 

exigent circumstances (or maybe consent). 

The logic of the majority’s opinion would also require a warrant 

before searching the home of a person who is under house arrest. Does 

that make sense? 

The implication of the majority’s position is that one is being 

“humble” when one finds new constitutional rights and “maximalist” 

when one does not. This is certainly open to question. In fact, if we look 

at what transpired, tragically, between In re Ralph, 1 Morris 1 (Iowa 

1839), and Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 

(1857), we have a statutory interpretation of an act of Congress (In re 

Ralph) being overridden when the act was declared unconstitutional on 

the ground that it violated some previously undiscovered constitutional 

interpretation (Dred Scott). 

Both cases involved a slave who entered free territory. In In re 

Ralph, the slave had entered Iowa with the consent of his master, albeit 

on condition that he pay a certain amount to his master “as the price of 

his freedom.” 1 Morris at 6. The Supreme Court of the Territory of Iowa, 

interpreting the Missouri Compromise of 1820, held that because Iowa 

was a free territory, Ralph became free once he entered Iowa with “the 

understanding of all parties that the slave was going to become a 

permanent resident of the free state or territory.” Id. 
93

In Dred Scott, the United States Supreme Court held that Dred 

Scott could not obtain his freedom, despite the fact that he had been 

brought by his master into free territory voluntarily and had spent 

considerable time there. 60 U.S. (19 How.) at 454, 15 L. Ed. at 721. In 

so ruling, the Court struck down as unconstitutional the same Missouri 

Compromise on which In re Ralph had relied: 

[A]n act of Congress which deprives a citizen of the United 

States of his liberty or property, merely because he came 

himself or brought his property into a particular Territory of 

the United States, and who had committed no offence 

against the laws, could hardly be dignified with the name of 

due process of law. 

. . . . 

Upon these considerations, it is the opinion of the 

court that the act of Congress which prohibited a citizen 

from holding and owning property of this kind in the 

territory of the United States north of the line therein 

mentioned, is not warranted by the Constitution, and is 

therefore void; and that neither Dred Scott himself, nor any 

of his family, were made free by being carried into this 

territory; even if they had been carried there by the owner, 

with the intention of becoming a permanent resident. 

Id. at 450–52, 15 L. Ed. at 719–20. 

In my view, you can only draw the lesson from In re Ralph and 

Dred Scott that courts should be constitutional innovators if you 

disregard what those decisions actually say. 

Since the majority accuses the dissenters of utilizing “what 

Professor Adrian Vermeule refers to as a ‘precommitment device,’ ” it is 

worth reading the relevant section of Professor Vermeule’s article. Here it 

is: 

On this picture, free-speech doctrine is partly a judicial 

precommitment device and partly a prophylactic rule. It is a 

precommitment device insofar as judges devising free-speech 

doctrine at time 1 worry that at time 2 their own cognition or 

decision-making processes will be affected by some 

overpowering influence. (In the free-speech context, the 
94

influence might be the social exigency that provoked the 

political suppression of speech, or the offensiveness of the 

speech itself.) So the judges restrict their choices at time 2 

by announcing, at time 1, a rule that will prevent their 

future selves from surrendering to the passions of the 

moment. It is a prophylactic device insofar as judges 

choosing free-speech rules at time 1 worry, not about their 

own future cognition, but about the cognition of other judges 

deciding future cases, either judges of subordinate courts or 

future members of the very court that devised the rule at 

time 1. Here the judges formulate legal doctrine in order to 

restrict other judges’ future choices. 

Adrian Vermeule, The Judicial Power in the State (and Federal) Courts, 

2000 Sup. Ct. Rev. 357, 366–67 (2000) (footnotes omitted). I do not 

know what this verbiage means but I am confident it will not help me in 

deciding whether the search of Mr. Short’s residence in this case was 

lawful. 

6. Next, the majority contends that there is a “double irony” in 

giving deference to United States Supreme Court interpretations of the 

Fourth Amendment. I will begin with the majority’s first irony. The first 

irony is that at a time when “societies advocate renewal of federalism by 

returning power to the state, it is ironic that an exception is made for 

state judicial power.” 

I am not aware of any clamoring by society to give judges more 

power to strike down laws. The federalism movement generally focuses 

on two goals: (1) restraining the power of the federal government; and (2) 

giving states a greater ability to decide their own destiny. Expansive, 

idiosyncratic interpretation of article I, section 8 serves neither goal. As I 

pointed out in Baldon, federal officials are not bound by article I, section 

8, and if the evidence from Short’s house in this case had been used to 

prosecute Short on a federal charge, he would have no recourse. See 

Baldon, 829 N.W.2d at 842 (Mansfield, J., dissenting). So, whatever one 
95

may say about the majority’s search and seizure jurisprudence, it is not 

a bulwark against federal power. 

Nor is the majority giving Iowans a greater opportunity to choose 

their own destiny. Rather, it is overriding a determination by Iowa’s 

elected branches that searches, upon reasonable suspicion of persons 

who have been sentenced to probation, are an appropriate way to 

rehabilitate the defendant and protect the community. See, e.g., Iowa

Code § 907.6 (2011) (“Probationers are subject to the conditions 

established by the judicial district department of correctional services 

subject to the approval of the court, and any additional reasonable 

conditions which the court or district department may impose to promote 

rehabilitation of the defendant or protection of the community.”). 

The majority’s second irony runs something like this: (1) the 

United States Supreme Court’s jurisprudence is confusing and not 

uniform, and (2) the Iowa Supreme Court will be able to straighten things 

out and provide uniformity. I think this overestimates the wisdom of this 

court. Justice Scalia, whose observation about “inconsistent 

jurisprudence” is quoted with approval by the majority, advances the 

view that we should go back to 1791. See California v. Acevedo, 500 U.S. 

565, 583, 111 S. Ct. 1982, 1993, 114 L. Ed. 2d 619, 636 (1991) 

(Scalia, J., concurring in judgment). If a warrant was required for a kind 

of search then, it should be required for the same kind of search now. 

One can quibble with that approach, but it is a coherent doctrine. What 

is the majority’s guiding principle other than a general hostility to 

warrantless searches? 

7. The majority then goes on to say that any lack of uniformity 

between federal and Iowa search and seizure law “does not create a 
96

substantial burden on professional law enforcement.” I question this 

statement. 

I do not agree that all court decisions are perfect and equal. Some 

court decisions create needless burdens because they have incomplete 

reasoning, leave questions unanswered, contain unneeded dicta, or 

threaten to go in a direction without actually going there. No judge 

should ever assume that applying her or his decision will be an easy 

task, even for professionals. 

But this gets back to my original point. When we choose to follow 

Federal Fourth Amendment precedent, we are following standards that 

have already been put into practice around the country. Those decisions 

have been vetted and not only by their authors. So the unanticipated 

consequences of those decisions, to a large degree, have already emerged 

and been addressed by subsequent decisions. This is the whole idea of 

precedent.29 

29The majority claims to be following this court’s own precedent of State v. 

Cullison, 173 N.W.2d 533 (Iowa 1970). At the risk of repeating what my colleagues 

Justice Waterman and Justice Zager have said in their dissents in the present case and 

what I said in my Baldon dissent, Cullison was a Fourth Amendment case. It was 

criticized at the time for being a misapplication of the Fourth Amendment, see

J. Richard Bland, Case Note, 19 Drake L. Rev. 481, 481 (1970), and is no longer good 

law because its view of the Fourth Amendment has been superseded by subsequent 

United States Supreme Court decisions.

In Ochoa, this court twice acknowledged that Cullison was a Fourth Amendment 

decision before claiming otherwise at the end of the opinion. First the court said, “[T]his 

court’s decision in [Cullison] . . . held that a parolee did not surrender his Fourth 

Amendment rights by virtue of his status as a parolee.” Ochoa, 792 N.W.2d at 264. 

And then the court said, “Rejecting the stripping and diluting approaches, the [Cullison] 

majority held that a parolee is afforded the same rights as any other person under the 

Fourth Amendment.” Id. at 286. Toward the end of its opinion the court 

recharacterized Cullison as having “held that the warrant and probable cause 

requirements of article I, section 8 are fully applicable to searches of parolees’ homes.” 

Id. at 287. 

As noted by Justice Zager, those who would view Cullison as a decision based on 

article I, section 8 face the considerable obstacle that the decision never mentioned

article I, section 8. 

 
97

When we embark on our own path, we do not know what the 

consequences will be. For example, will the majority’s ruling in this case 

lead to fewer grants of probation and a higher rate of incarceration? I do 

not think the majority knows. 

The majority also asserts that its approach will not burden 

attorneys because the work required to develop state constitutional law 

arguments is “not overwhelming.” Here, I agree with the majority. Even 

when the briefs do not contain arguments under the Iowa Constitution, 

this court has been repeatedly willing to make the arguments for the 

litigants and decide them. In fact, it almost seems as if a lawyer in this 

court would be wiser not to develop an Iowa constitutional argument. A 

litigant who actually writes up an argument generally has to stand or fall 

on that argument, but a litigant who merely refers to the Iowa 

Constitution in passing gets the benefit of whatever theory this court 

decides to develop. 

8. The majority’s eighth principle is that it is better not to develop 

a set of “criteria” for when this court will deviate from federal precedent. 

The majority says we will simply exercise “our best, independent 

judgment of the proper parameters of state constitutional commands.” 

I respectfully suggest we owe the citizens of the state a bit more 

than this. We owe them our best independent judgment, to be sure, but 

that independent judgment should be tempered with respect for those 

who came before us and grappled with the same issues. 

9. The majority’s ninth principle is that when we are dealing with 

parallel state and federal constitutional provisions and parties do not 

advocate a separate Iowa constitutional standard, this court will 

generally apply the standard set forth in federal constitutional caselaw, 

but reserve the right to do so more stringently. See, e.g., State v. Kooima, 
98

833 N.W.2d 202, 206 (Iowa 2013); State v. Tyler, 830 N.W.2d 288, 291–

92 (Iowa 2013). I am puzzled why the majority mentions this alleged 

principle here because it is not following it today. 

Needless to say, this approach, amorphous though it may be, 

involves at least some degree of deference to federal precedent. 

The majority’s Ochoa-Pals-Baldon approach, however, is different. 

It gives no weight to federal precedent. According to the majority today, 

“we reach our decisions independently of federal constitutional analysis.” 

Thus, in Ochoa, this court said, “The degree to which we follow 

United States Supreme Court precedent, or any other precedent, 

depends solely upon its ability to persuade us with the reasoning of the 

decision.” 792 N.W.2d at 267. We said so even though the defendant 

had not urged a separate interpretation of article I, section 8. See 

Baldon, 829 N.W.2d at 837 (Mansfield, J., dissenting) (noting that Ochoa 

had not asserted that the state constitutional provision should be 

interpreted differently than the Fourth Amendment). In Pals, we again 

said that United States Supreme Court precedent was entitled to no 

deference, even though the defendant had not urged a different standard. 

See 805 N.W.2d at 771 (stating the issue presented); see also id. at 784–

85 (Waterman, J., dissenting) (noting Pals never argued the Iowa 

Constitution provided broader protection than the Fourth Amendment). 

In summary, if you read Ochoa, Pals, Baldon, and today’s opinion, 

federal constitutional precedent gets no deference regardless of what the 

defendant argues. But at other times, even when the case involves 

article I, section 8, this court generally follows the federal framework in 

the absence of separate argument. See, e.g., Kooima, 833 N.W.2d at 206; 

Tyler, 830 N.W.2d at 291–92. Hence, in my view, the majority’s ninth 

principle undermines the overall concept it is intended to support. 
99

10. In its tenth and final principle, the majority again claims the 

mantle of precedent for itself. It says that it is simply reaffirming State v. 

Cline, 617 N.W.2d 277 (Iowa 2000), Ochoa, Pals, and Baldon. I disagree 

that Cline should be categorized with Ochoa, Pals, and Baldon for 

reasons I have previously discussed. Baldon, 829 N.W.2d at 838–39 

(Mansfield, J., dissenting) (“[Cline] was about remedy, not right.”). Cline

observed that the Fourth Amendment and article I, section 8 “are 

generally deemed to be identical, in scope, import, and purpose” and 

applied the same analysis under both provisions to the question of 

whether a violation had occurred. 617 N.W.2d at 281–82 (citation and 

internal quotation marks omitted). 

The tenth principle is really just the first principle making an 

encore. The majority believes it is settled law (since December 2010) that 

United States Supreme Court search and seizure decisions are entitled to 

no more deference than a law review article. I continue to question that 

proposition and therefore file this dissent. 

Waterman and Zager, JJ., join this dissent.
100

#12–1150, State v. Short

ZAGER, Justice (dissenting).

I respectfully dissent. I believe the search in this case was 

constitutional under both the State and Federal Constitutions. I 

disagree with the majority’s framing of the issue and the majority’s 

reliance on State v. Cullison, 173 N.W.2d 533 (Iowa 1970), as controlling 

precedent on this issue. Though Cullison has some minimal relevance to 

the issue presented, I would interpret our constitution according to 

developments in search and seizure jurisprudence since that time and 

according to the particular circumstances of this case. Under that 

analysis, I would hold the search in this case was constitutional. 

The majority curiously sidesteps the true issue in this case, which 

was unanswered in Ochoa and Baldon. In doing so, the majority departs 

from the incrementalist approach we have recently taken in search and 

seizure cases under the Iowa Constitution. See State v. Kern, 831 

N.W.2d 149, 170 (Iowa 2013) (declining to consider whether the specialneeds doctrine was viable under article I, section 8 in the absence of 

facts “to support an application of the doctrine in a way that reveals its 

purpose and rationale”); State v. Baldon, 829 N.W.2d 785, 800 (Iowa 

2013) (“The narrow question before us is whether the government can 

conduct the search based solely on consent required to be given by 

parolees as a condition of release from prison.”); State v. Ochoa, 792 

N.W.2d 260, 291 (Iowa 2010) (emphasizing the broader questions being 

left unanswered). Under this approach, we have decided search and 

seizure cases according to the facts presented, not according to a 

selective reformulation of those facts. See Kern, 831 N.W.2d at 170; see 

also Baldon, 829 N.W.2d at 801 (“We have no occasion in this case to 

consider other grounds available to the State to justify such a search.”). 
101

The steps taken in these cases may have been small, but at least they 

have been based on the unique circumstances of the cases before the 

court. 

When he was placed on probation, Short executed a probation 

agreement under which he consented to a search of his person, property, 

place of residence, vehicle, and personal effects at anytime, with or 

without a search warrant, “by any probation officer or law enforcement 

officer having reasonable grounds to believe contraband is present.” 

(Emphasis added.) The district court in its order referred to this 

language as a “waiver.” There is no dispute that the probation agreement 

contained consent-to-search language. 

In addition, the district court found the search of Lorenzen’s 

apartment was based upon probable cause, even after acknowledging the 

search warrant itself was defective. Short never challenged this 

probable-cause finding for the search. Nevertheless, the majority 

characterizes the officers’ individualized suspicion as only “reasonable 

suspicion.” I believe, in light of the district court’s undisputed finding of 

probable cause, coupled with the consent language of the probation 

agreement and our caselaw, we should address whether under the 

Federal and Iowa Constitutions, general law enforcement authorities may 

constitutionally conduct a warrantless search of a probationer based on 

the individual’s waiver of his search and seizure rights and probable 

cause. 30 The majority elects to avoid the consent issue altogether, 

critically diminishing its persuasiveness and effect. 

30The majority is correct that the State did not use the word “consent” in its 

brief. The State did, however, devote significant discussion to Short’s “waiver” of his 

search and seizure rights executed as part of his probation agreement. The district 

court did the same, as did the county attorney and Short’s trial attorney. As the 

Seventh Circuit Court of Appeals has noted in a similar case, “Constitutional rights like 

 
102

The flaws of the majority’s analysis do not end with the framing of 

the issue. In relying on Cullison, the majority asserts “[t]here can be no 

question that Cullison involves a holding under the Iowa Constitution.” 

While this is true, Cullison does not mention article I, section 8, and it 

clearly was not decided on this basis. A tradition carrying through this 

court’s history, and continuing down to the present, is for this court, 

when interpreting a provision of the Iowa Constitution, to quote the 

provision, see, e.g., Ochoa, 792 N.W.2d at 268 (quoting article I, section 

8); State v. Cline, 617 N.W.2d 277, 281 n.2 (Iowa 2000) (same), abrogated 

on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 

2001); Lee Enters., Inc. v. Iowa State Tax Comm’n, 162 N.W.2d 730, 736 

(Iowa 1968) (quoting article III, section 29); Sperry & Hutchinson Co. v. 

Hoegh, 246 Iowa 9, 18–19, 65 N.W.2d 410, 416 (1954) (quoting article I, 

section 6), or to state the rule of the provision, see, e.g., Cline, 617 

N.W.2d at 281 (paraphrasing article I, section 8); State v. Carter, 161 

N.W.2d 722, 724 (Iowa 1968) (paraphrasing article I, section 8); State v. 

Cameron, 254 Iowa 505, 511, 117 N.W.2d 816, 819 (1962) (paraphrasing 

article I, section 10), overruled on other grounds by State v. Bowers, 661 

N.W.2d 536, 543 (Iowa 2003). If not directly quoting or paraphrasing the 

provision, at least it has been mentioned. See, e.g., State v. Tonn, 195 

Iowa 94, 103, 191 N.W. 530, 534 (1923) (mentioning the identity between 

other rights can be waived, provided that the waiver is knowing and intelligent, as it 

was here.” United States v. Barnett, 415 F.3d 690, 691 (7th Cir. 2005). Thus, despite 

the absence of the word “consent,” the issue of Short’s waiver of his search and seizure 

rights is highly relevant and properly considered as part of the issue before this court. 

It is clearly erroneous not to discuss consent and waiver in deciding this case. 

Also, as is discussed later in this opinion, almost the entirety of the majority 

opinion in Baldon analyzes the parole agreement from the viewpoint of consent and the 

voluntariness of the consent-to-search agreement. The State also argued at oral 

argument that it was relying on the consent provision of the probation agreement itself 

in support of the search. 

________________________
103

the wording of article I, section 8 and the wording of the Fourth 

Amendment), abrogated by Cline, 617 N.W.2d at 291.31 If Cullison was 

interpreting article I, section 8, as the majority claims, then the case is a 

distinct and inexplicable oddity. For Cullison does not quote article I, 

section 8, and neither does it state the provision’s rule. Nowhere does 

Cullison even mention article I, section 8 in either the majority opinion or 

dissents. 

Most conspicuous in Cullison is the analogous federal 

constitutional provision, the Fourth Amendment. That constitutional 

provision is quoted once in its entirety. See Cullison, 173 N.W.2d at 538 

(quoting Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 

18 L. Ed. 2d 930, 935 (1967)). Additional references to the Fourth 

Amendment are also scattered throughout. See, e.g., id. (noting that, “in 

the field of administrative processes involving health and safety of the 

people, Fourth Amendment rights are now fully respected”). Indeed, the 

court mentioned the Fourth Amendment more than ten times in an 

analysis that spans fewer than seven pages in the North Western 

Reporter. See, e.g., id. at 536 (“The foregoing discloses some tribunals 

. . . , Strip a parolee of all Fourth Amendment rights while others Dilute 

them.”). In addition to those references to the Fourth Amendment, the 

court referred to the Fourteenth Amendment. The court noted that “the 

Fourth Amendment is enforceable against the States through the 

Fourteenth Amendment.” Id. at 538. Were the court interpreting the 

Iowa Constitution, this statement would have been superfluous. Both 

31In keeping with this tradition, the majority today quotes article I, section 8 in 

full. In addition, the majority also mentions article I, section 8 more than thirty times. 

There can be no doubt the court in this case is interpreting article I, section 8. 

 
104

the incorporation doctrine and the Fourteenth Amendment are irrelevant 

to the enforceability of the Iowa Constitution’s repository of protections.32 

Also, while the resolution of the issue in Cullison caused 

dissension among the court’s members, it seems they were able to agree 

on one important point: the constitutional provision the court was 

interpreting. Both dissents, like the majority opinion, mentioned the 

Fourth Amendment. See id. at 542 (Larson, J., dissenting) (“[T]he 

protection afforded by the Fourth Amendment to the United States 

Constitution is only against unreasonable searches . . . .”); id. at 544 

(Snell, J., dissenting) (discussing Fourth Amendment search and seizure 

protections). And, like the majority opinion, neither dissent mentioned 

article I, section 8. Thus, Cullison was a 5–4 decision that, in addition to 

a majority opinion, consisted of two dissenting opinions, and no justice 

even mentioned article I, section 8 of the Iowa Constitution. 

Yet, in spite of the invisibility of article I, section 8 in Cullison, the 

majority in this case unequivocally asserts the case’s holding is under 

that provision. I would draw the opposite conclusion in the face of the 

unmistakable, explicit indications to the contrary. Cullison is without 

question not a holding under article I, section 8 of the Iowa Constitution. 

That being so, I would conclude Cullison is not substantive authority 

32As the majority notes, the Iowa Constitution does not go unmentioned in 

Cullison. See 173 N.W.2d at 537 (setting forth the text of article II, section 5 of the Iowa 

Constitution). The Iowa constitutional provision to which the Cullison court refers is, 

however, not article I, section 8, but rather article II, section 5, see id., which strips 

voting rights from individuals convicted of infamous crimes, see generally Chiodo v. 

Section 43.24 Panel, 846 N.W.2d 845 (Iowa 2014). Thus, Cullison discusses three 

constitutional provisions: the Fourth Amendment, its necessary constitutional 

companion, the Fourteenth Amendment, and article II, section 5 of the Iowa 

Constitution. According to the majority, Cullison’s holding is not under any of these 

provisions, odd as it may seem. 

 
105

under article I, section 8, and we are not bound to follow Cullison in this 

case. 

Even if one were to concede somehow that Cullison was 

interpreting article I, section 8 of the Iowa Constitution, there are 

numerous reasons not to apply Cullison’s holding to this case. See State 

v. Bruce, 795 N.W.2d 1, 3 (Iowa 2011) (noting despite the principle of 

stare decisis we must reconsider unsound previous decisions). First, we 

have since Cullison held that when interpreting this state’s constitution 

we rely on federal cases interpreting the Federal Constitution only to the 

extent that the reasoning of those cases persuades us. See Ochoa, 792 

N.W.2d at 267. Cullison not only relied almost completely on federal 

cases while doing little analysis to establish their persuasiveness, but 

also hinted that, if the United States Supreme Court had addressed the 

issue presented in the case, it would have deferred to that tribunal’s 

interpretation. See 173 N.W.2d at 535. Neither approach is a 

permissible method of resolving cases under our state’s organic 

document. See Ochoa, 792 N.W.2d at 267; Cline, 617 N.W.2d at 285. An 

earlier case’s inconsistency with our established current decisional 

methods almost compels us to reconsider the case’s continued viability. 

There are also factual and legal distinctions in Cullison that compel 

us to reconsider its continued validity. Cullison’s conclusion was based 

in part on reasoning that is now questionable in light of subsequent 

developments. Cullison cited a bevy of federal cases and secondary 

authorities for the proposition a parolee’s right to equal protection might 

be violated by admitting evidence obtained in a warrantless search. See

173 N.W.2d at 538. Afterward, Griffin v. Wisconsin, Samson v. California, 

and United States v. Knights upheld warrantless searches of probationers 

and parolees. See Samson, 547 U.S. 843, 857, 126 S. Ct. 2193, 2202, 
106

165 L. Ed. 2d 250, 262 (2006); Knights, 534 U.S. 112, 122, 122 S. Ct. 

587, 593, 151 L. Ed. 2d 497, 507 (2001); Griffin, 483 U.S. 868, 876, 107 

S. Ct. 3164, 3169–70, 97 L. Ed. 2d 709, 719 (1987). Clearly, the 

development of this area of the law shows this concern no longer serves 

as a basis for according offenders and law-abiding citizens equal search 

protections. 

What makes Cullison most factually distinct is its lack of a 

consent-to-search provision in the parole agreement. This is a 

significant reason why Cullison is distinguishable from Baldon, in which 

such provisions became the focus of our analysis of consent and waiver. 

See Baldon, 829 N.W.2d at 800–01 (explaining the issue before the 

court). The majority chooses to ignore this important distinction without 

further analysis, which makes the opinion suspect. How can the 

majority decide this case without discussing the consent-to-search 

provision contained in Short’s probation agreement? 

Also, a parole officer performed the search in Cullison. See 173 

N.W.2d at 539–40. We have previously drawn a distinction between 

searches performed by general law enforcement officers and searches 

performed by corrections authorities; the justifications for the two 

searches are different. See Kern, 831 N.W.2d at 171 (explaining a search 

of a parolee could not fit “the special-needs rubric” because “the search 

was significantly entangled with a larger law enforcement operation”); 

Ochoa, 792 N.W.2d at 289 (distinguishing searches performed by parole 

officers and searches performed by general law enforcement). In this 

case, general law enforcement performed the search. Thus, the reasons 

used to reject the parole search in Cullison are not importable to this

case. This further diminishes the precedential versatility of Cullison. 
107

Finally, the search in Cullison, as in Ochoa, was not supported by 

any level of individualized suspicion. See Ochoa, 792 N.W.2d at 288 

(noting police officer performed search without any cause); Cullison, 173 

N.W.2d at 540 (concluding the presearch reasonable or probable cause, 

essential to its validity, was not present there or established to support 

the search). Because there was not even an argument of reasonable 

suspicion or probable cause, the court did not have to consider whether 

some level of individualized suspicion might have constrained officer 

discretion to the point of making the warrantless search constitutionally 

permissible. Here, there was undisputed probable cause to support the 

search of Short’s residence. Cullison thus presented a clearly 

distinguishable legal and factual scenario for the decision. For all these 

reasons, the broad principle espoused in Cullison is not appropriately 

applicable to the concrete facts presented by this case. Cf. Kern, 831 

N.W.2d at 170 (“[T]he 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.”). Therefore, I would 

conclude the broad holding adopted by the majority, relying on Cullison, 

that a search warrant is required under all circumstances for the search 

of any person’s home, does not prevent us from treating probationers 

differently from law-abiding citizens for purposes of article I, section 8. 

The determination that Cullison’s holding does not control the 

outcome of this case is just the starting point of the analysis. As the 

majority recognizes, we have repeatedly declined to dogmatically 

interpret article I, section 8 in the manner the United States Supreme 

Court interprets the Fourth Amendment, despite the obvious textual 

similarities between the two provisions. See, e.g., id. at 170 (explaining 

the Fourth Amendment special-needs doctrine and concluding the 
108

doctrine cannot be used “to make an end-run” around parolees’ rights 

under the Iowa Constitution); Ochoa, 792 N.W.2d at 267 (holding 

searches and seizures are to be analyzed independently under the Iowa 

Constitution); Cline, 617 N.W.2d at 283 (declining “to adopt a good faith 

exception to Iowa’s exclusionary rule under the Iowa Constitution”). 

Indeed, were we “to blindly follow federal precedent,” we would be 

abdicating our “constitutional role in state government.” Cline, 617 

N.W.2d at 285. 

That said, we have not discarded federal precedents from the 

panoply of available persuasive sources. In Ochoa, we declined to follow 

the Supreme Court’s interpretation of the Fourth Amendment in Samson, 

taking instead a constitutional path under our own constitution that 

rejected warrantless searches of parolees “without any particularized 

suspicion or limitations to the scope of the search.” Ochoa, 792 N.W.2d 

at 291; see also Samson, 547 U.S. at 857, 126 S. Ct. at 2202, 165 

L. Ed. 2d at 262 (holding “the Fourth Amendment does not prohibit a 

police officer from conducting a suspicionless search of a parolee”). In 

doing so, however, we emphasized the “respectful consideration” to which 

Supreme Court precedents are entitled. See Ochoa, 792 N.W.2d at 267; 

cf. Baldon, 829 N.W.2d at 790 (“In the final analysis, our right under 

principles of federalism to stand as the final word on the Iowa 

Constitution is settled, long-standing, and good law.”). Keeping that in 

mind, I turn now to those precedents. 

The Supreme Court has twice upheld warrantless searches of 

probationers under the Fourth Amendment. In Griffin, probation officers 

conducted a warrantless search of a probationer’s home under a 

Wisconsin probation regulation that allowed warrantless searches based 

on “reasonable grounds.” 483 U.S. at 871, 107 S. Ct. at 3167, 97 
109

L. Ed. 2d at 715 (internal quotation marks omitted). The Supreme Court 

upheld the search, finding it justified by the special needs of Wisconsin’s 

probation system. See id. at 876, 107 S. Ct. at 3169–70, 97 L. Ed. 2d at 

719. Though representative of the Supreme Court’s overall search and 

seizure jurisprudence, Griffin’s reasoning is distinguishable because 

police and sheriff’s deputies, not probation officers, searched Short. See

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

Amendment § 10.10(c), at 542 (2012) [hereinafter Lafave, Search and 

Seizure] (observing a search performed by police officers could not pass 

muster under Griffin’s special-needs rationale). 

Later, in Knights, the Supreme Court confronted an issue very 

similar to one before us in this case. 534 U.S. at 118, 122 S. Ct. at 591, 

151 L. Ed. 2d at 504. There, a probationer, who was subject to a 

probation-search condition similar to that contained in Short’s probation 

agreement, was suspected of vandalizing a business dozens of times. See 

id. at 114–15, 122 S. Ct. at 589, 151 L. Ed. 2d at 502–03. After a police 

detective observed suspicious activity outside the probationer’s 

apartment and viewed suspicious objects in the vehicle of the 

probationer’s accomplice, the detective, who knew of the probationsearch condition, searched the probationer’s apartment. See id. at 115, 

122 S. Ct. at 589, 151 L. Ed. 2d at 503. The search uncovered evidence 

suggesting the probationer was the vandal, and he was arrested on 

federal criminal charges. See id. at 115–16, 122 S. Ct. at 589, 151 L. Ed. 

2d at 503. 

Knights moved to suppress the evidence obtained during the 

warrantless search of his apartment, arguing the search violated the 

Fourth Amendment. See id. at 116, 122 S. Ct. at 590, 151 L. Ed. 2d at 

503. The district court found law enforcement had “ ‘reasonable 
110

suspicion’ to believe that Knights was involved with incendiary 

materials,” but “nonetheless granted the motion to suppress on the 

ground that the search was for ‘investigatory’ rather than ‘probationary’ 

purposes.” See id. The Court of Appeals for the Ninth Circuit affirmed, 

relying on its earlier decisions to hold the search condition in Knights’s 

probation order “ ‘must be seen as limited to probation searches, and 

must stop short of investigation searches.’ ” See id. (quoting 

United States v. Knights, 219 F.3d 1138, 1142–43 (9th Cir. 2000)). 

A unanimous Supreme Court reversed the ruling of the court of 

appeals. See id. at 122, 122 S. Ct. at 593, 151 L. Ed. 2d at 507 

(reversing and remanding for further proceedings). The Supreme Court 

first noted that the Supreme Court of California had already upheld 

searches pursuant to this California probation condition “ ‘whether the 

purpose of the search is to monitor the probationer or to serve some 

other law enforcement purpose.’ ” See id. at 116, 122 S. Ct. at 590, 151

L. Ed. 2d at 503 (quoting People v. Woods, 981 P.2d 1019, 1027 (Cal. 

1999), cert. denied, 529 U.S. 1023, 120 S. Ct. 1429, 146 L. Ed. 2d 319 

(2000)). 

The Supreme Court declined to base its holding on the “consent” 

rationale argued by the Government in cases such as Zap v. United 

States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), and 

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 

854 (1973). See Knights, 534 U.S. at 118, 112 S. Ct. at 591, 151 

L. Ed. 2d at 504–05. The Supreme Court found it did not need to decide 

whether acceptance of the search condition constituted consent in the 

Schneckloth sense of a complete waiver of Fourth Amendment rights. See 

id. at 118, 122 S. Ct. at 591, 151 L. Ed. 2d at 505. Instead, it concluded 

that the search of Knights’s apartment was reasonable under its “general 
111

Fourth Amendment approach of ‘examining the totality of the 

circumstances,’ ” considering the probation search condition as being a 

salient circumstance. Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 

S. Ct. 417, 421, 136 L. Ed. 2d 347, 354 (1996)). 

In rejecting Knights’s argument, the Supreme Court focused on the 

balance of the individual’s privacy interest and the government’s 

legitimate interests. See id. at 119, 122 S. Ct. at 591, 151 L. Ed. 2d at 

505. According to the Supreme Court, a probationer has a diminished 

expectation of privacy because probation is a criminal sanction that 

reasonably deprives an individual of freedoms ordinarily enjoyed by lawabiding citizens. See id. Further, the Court reasoned the government 

has a legitimate interest in supervising probationers, given their high 

probability of reoffending. See id. at 120–21, 122 S. Ct. at 592, 151 

L. Ed. 2d at 506. After weighing the interests, the Supreme Court 

unanimously upheld the police detective’s warrantless search of the 

probationer’s apartment “supported by reasonable suspicion and 

authorized by a condition of probation.” Id. at 122, 122 S. Ct. at 593, 

151 L. Ed. 2d at 507. 

The balancing approach the Supreme Court employed in Knights

evaluates a search’s reasonableness, “[t]he touchstone of the Fourth 

Amendment.” See id. at 118–19, 122 S. Ct. at 591, 151 L. Ed. 2d at 505

(explaining how the Court tests for reasonableness); see also Samson,

547 U.S. at 848, 126 S. Ct. at 2197, 165 L. Ed. 2d at 256 (explaining the 

balancing test). The Supreme Court thus held that in its balancing of 

these various considerations, no more than reasonable suspicion is 

necessary to conduct a search of a probationer’s house. See Knights, 

534 U.S. at 121, 122 S. Ct. at 592, 151 L. Ed. 2d at 506 (“We hold that 

the balance of these considerations requires no more than reasonable 
112

suspicion to conduct a search of this probationer’s house.”). Expressed 

another way, the Supreme Court held that “law-enforcement searches of 

probationers who have been informed of a search condition are 

permissible upon individualized suspicion of criminal behavior 

committed during the probationary period.” See id. at 122, 122 S. Ct. at 

593, 151 L. Ed. 2d at 507 (Souter, J., concurring). 

There can be no reasonable dispute that Knights controls the 

determination whether the search of Short was constitutional under the 

Fourth Amendment to the Federal Constitution. Short was, like Knights,

on probation, and he thus had a diminished expectation of privacy. See

id. at 119, 122 S. Ct. at 591, 151 L. Ed. 2d at 505. Like the government 

in Knights, law enforcement in this case had a legitimate interest in 

supervising Short, as it does all probationers. See id. at 120, 122 S. Ct. 

at 592, 151 L. Ed. 2d at 506. Although the search in Knights was 

supported by reasonable suspicion, the search of Short was supported by 

probable cause, a higher level of suspicion. See id. at 122, 122 S. Ct. at 

593, 151 L. Ed. 2d at 507. Given the relevant factual similarities and the 

higher level of suspicion that supported the search in this case, this 

search was incontestably reasonable and therefore permissible under the 

Fourth Amendment. 

Of course, the conclusion reached by the United States Supreme 

Court under the Fourth Amendment does not resolve the question of the 

constitutionality of the search under article I, section 8 of the Iowa 

Constitution. As the majority notes, this court has resisted 

reasonableness as the measure of the constitutionality of a search under 

the Iowa Constitution. This, even though article I, section 8 mirrors the 

Federal Constitution regarding unreasonable seizures and searches, and 

this court’s own statement that “[t]here is of course little doubt that, in 
113

light of the nearly identical language in article I, section 8 and the Fourth 

Amendment, they were generally designed with the same scope, import, 

and purpose.” See Ochoa, 792 N.W.2d at 267. This is also in spite of 

this court in Cullison explicitly looking to the factual situation in that 

case to determine the reasonableness of the extended search. Cullison, 

173 N.W.2d at 539 (“We must look now to the factual situation here 

involved to determine reasonableness of the extended search . . . .” 

(Emphasis added.)). Completely diverging from this reasonableness 

approach we utilized in Cullison and emphasizing this court’s traditional 

“warrant preference rule,” we explained in Ochoa that the reasonableness 

clause of the Iowa Constitution “cannot be used to override the Warrant 

Clause” of the Iowa Constitution, lest the warrant clause be rendered 

surplusage. 792 N.W.2d at 269, 291; see also id. at 289 (criticizing the 

reasonableness test as “based not on the particular facts of a case but on 

larger policies bolstered by the purported needs of law enforcement”). 

The majority in this case wants to rely on Cullison and its analysis of the 

Fourth Amendment for determining the reasonableness of a search, but 

then disregards it in Ochoa and in this case. Instead, the majority 

utilizes Cullison for a broad holding for the necessity of search warrants 

under all circumstances when this really had nothing to do with the 

holding of the case. While I acknowledge in deciding whether to follow

the Supreme Court’s lead down any constitutional path this court is not 

bound to use the same analytic vehicle, there should at least be some 

analytical consistency. 

Even our own authority leaves open the clear possibility of an 

exception to the warrant requirement under certain circumstances. See 

Ochoa, 792 N.W.2d at 287 (positing one way of resolving the issue in the 

case would be to accept a new exception to the warrant requirement). 
114

We have repeatedly counseled that a warrantless search is 

unconstitutional unless it falls within an exception to the warrant 

requirement. See, e.g., State v. Lowe, 812 N.W.2d 554, 568 (Iowa 2012) 

(explaining a warrantless search is unreasonable if it does not fall within 

a recognized exception); Cline, 617 N.W.2d at 282 (“A warrantless search 

. . . is per se unreasonable unless it falls within a recognized exception.”). 

Our recognized exceptions to the warrant requirement include: 

(1) searches founded on probable cause coupled with exigent 

circumstances; (2) consent searches; (3) searches incident to arrest; 

(4) plain view searches; and (5) community-caretaking searches. See 

Kern, 831 N.W.2d at 172–73 (explaining the community-caretaking 

exception); State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011) (mentioning 

four exceptions to the warrant requirement); State v. Naujoks, 637 

N.W.2d 101, 107 (Iowa 2001) (listing four “well-recognized exceptions to 

the warrant requirement”). The majority has expressed the opinion that 

the United States Supreme Court has “reconstructed,” “reengineered,” 

and “reconfigured” our search and seizure law resulting in the erosion of 

the protections afforded to individuals under the Fourth Amendment, 

and expressed an unwillingness to consider expanding any such 

exceptions under our Iowa Constitution. I think the failure to even 

consider well-recognized jurisprudence providing exceptions to the 

warrant requirement is wrong, and fails to uphold our duty to the 

citizens of Iowa. 

As previously noted, one recognized exception to the warrant 

requirement under our constitution is consent. State v. Reinier, 628 

N.W.2d 460, 464–65 (Iowa 2001). “Under this exception, the 

reasonableness requirement of the Search and Seizure Clause is satisfied 

when an individual consents to a search.” Baldon, 829 N.W.2d at 791. 
115

The consent waives an individual’s rights under the Search and Seizure 

Clause.33 Id. 

In Baldon, we held a search provision contained in a parole 

agreement did not constitute consent to search under the Iowa 

Constitution. See id. at 803. But, it is important to understand the 

reasoning we relied on in reaching this conclusion. First, we set aside 

from consideration the cases dealing with probation agreements like 

those we are dealing with here. See id. at 795. We said probation 

agreements were of limited value in analyzing the consent issue because 

probationers “maintain a vastly superior bargaining power than 

parolees.” See id. We noted with approval that many courts find that 

this vastly superior bargaining power of probationers “renders probation 

agreements consensual.” See id. 

Second, we noted that courts in other states had rejected consent 

derived from parole agreements as a theory for upholding searches of 

parolees because such a condition of parole was coercive and therefore 

involuntary. See id. at 796. It was this lack of free will or “no ‘choice’ ” if 

a person wanted to be released from prison, which determined our 

decision on consent. See id. (quoting Samson, 547 U.S. at 863 n.4, 126 

S. Ct. at 2206 n.4, 165 L. Ed. 2d at 267 n.4 (Stevens, J., dissenting)). 

Finally, in Baldon, we surveyed the academic community and 

noted it had also recognized weaknesses in treating consent searches as 

voluntary searches in the context of a parole agreement. See id. at 797–

800. We, therefore, decided Baldon based on the vastly unequal 

33Baldon dealt with a consent provision in a parole agreement. See 829 N.W.2d 

at 789. As properly noted by the majority in that case, “[t]he United States Supreme 

Court has not addressed the specific question whether a parole agreement executed by 

a parolee constitutes valid consent to support a waiver of Fourth Amendment rights.” 

Id. at 792. 

 
116

bargaining power of the parolee, the coercive atmosphere of parole, and 

“no choice” concerning the search condition. We concluded “consent 

under these circumstances [was] not real,” and we held Baldon’s 

acceptance of the parole agreement did not constitute voluntary consent. 

Id. at 802–03. 

Of course, there is no similarity between the search of Baldon and 

the search of Short. Here, we are dealing with a probation agreement. A 

majority of the courts across the nation that have considered the issue 

have concluded that “consent-search provisions in probation agreements 

constitute a waiver of search-and-seizure rights.” Id. at 792–93 (citing 

cases); see also, e.g., United States v. Barnett, 415 F.3d 690, 691 (7th 

Cir. 2005) (“Constitutional rights like other rights can be waived, 

provided that the waiver is knowing and intelligent, as it was here.”); 

State v. Gawron, 736 P.2d 1295, 1297 (Idaho 1987) (upholding 

warrantless search of probationer based on consent contained in 

probation agreement); People v. Absher, 950 N.E.2d 659, 668 (Ill. 2011) 

(upholding suspicionless search based on consent to a warrantless 

search). In contrast, only a few jurisdictions that have considered the 

issue have concluded probationers do not voluntarily consent to these 

search provisions. See Baldon, 829 N.W.2d at 793–94 (citing cases); see 

also, e.g., Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979) (holding a 

provision in probation agreement did not establish consent, but stating 

that “probationary status may be used as a factor to establish probable 

cause”). Clearly, as these cases show, consent or waiver provisions in 

probation agreements do not suffer from the same constitutional 

infirmities as found in Baldon in the parole context. Again, the majority 

avoids analyzing the consent issue, despite it being raised and argued by 

the parties. 
117

While a majority of courts have upheld the waiver provisions 

against constitutional attack in the probation context, the analysis does 

not end on consent alone. The surrounding circumstances of the search 

itself must also be considered. In our leading parole search case of 

Ochoa, a police officer searched a parolee’s motel room without any 

particularized suspicion and without a warrant. 792 N.W.2d at 262. 

Though we explicitly considered its possibility, we declined to create a 

new exception to the warrant requirement in the parole context. See id.

at 287 (“We would, in essence, find that the facts of this case do not 

establish one of the . . . exceptions to the warrant requirement.”). 

Instead, we held warrantless, suspicionless searches of parolees invalid 

“even under a reasonableness analysis.” Id. In doing so, we noted our 

holding did not reach a few questions, including “whether individualized 

suspicion amounting to less than probable cause may be sufficient in 

some contexts to support a focused search” by general law enforcement. 

Id. at 291. We also did not reach the question whether a warrant would 

even be necessary to limit law enforcement’s authority to search 

offenders. See id. In other words, Ochoa left open the question whether 

a warrantless search of a parolee, supported by individualized suspicion, 

may be constitutionally valid, even when no other recognized warrant 

exception applied. 

We set forth in Ochoa the primary considerations we used to 

resolve the issue in that case, intending that those considerations guide 

future cases. We traced events back to the English Crown’s use of 

“general warrants,” which were “open-ended as to time, place, and 

duration,” but warrants nonetheless. See id. at 269. In one Eighteenth 

Century English case challenging a general warrant, an esteemed jurist 

“rejected arguments that general warrants were necessary to advance the 
118

ends of government.” Id. at 270. The judge quipped, “[I]f suspicion at 

large should be a ground of search, . . . whose home would be safe?” Id.

(internal quotation marks omitted). This resistance to unrestrained, 

suspicionless warrants, expressed in English caselaw, was “well-known 

in the American colonies.” Id. 

The experience in the American colonies was similar, but the 

warrants issued under a different moniker. See id. at 271 (explaining 

writs of assistance “allowed general searches for customs violations”). 

“[W]rits of assistance” were broader than general warrants issued in 

England. Id. The writs “were not returnable after execution,” continuing 

instead “to authorize general searches during the life of the sovereign.” 

Id. Officials to whom the writs were issued possessed unlimited 

discretion. See id. Like their counterparts across the Atlantic, the 

colonists strongly opposed the open-ended authority conferred by the 

writs. See id. 

We reasoned this historical background of the Fourth Amendment, 

and “by implication” article I, section 8 of the Iowa Constitution, 

indicated an intent to limit arbitrary searches and seizures. See id. at 

272. In addition, a review of the circumstances surrounding the 

adoption of the Federal and Iowa Constitutions confirmed the framers 

sought to protect against the government abusing its power. See id. at 

274. Despite ongoing current debate over whether the framers accepted 

warrantless searches, the historical review suggested the framers did not 

intend to allow law enforcement to perform “broad, unlimited” 

warrantless searches. Id. at 273. 

We also traced the development of the United States Supreme 

Court’s Fourth Amendment jurisprudence. See id. at 275–83 (discussing 

relevant precedents). After noting that exceptions for automobile 
119

searches, searches incident to arrest, and exigent circumstances still 

required a showing of probable cause, we described the Supreme Court’s 

relaxation in other contexts of the probable-cause requirement. See id.

at 279. For instance, the Supreme Court has carved out an exception for 

“special needs” not related to law enforcement when a warrant and 

individualized suspicion are unnecessary. See id. (explaining the 

development of the special-needs exception); see also, e.g., Nat’l Treasury 

Emps. Union v. Von Raab, 489 U.S. 656, 666, 109 S. Ct. 1384, 1391, 

103 L. Ed. 2d 685, 702 (1989) (holding the U.S. Customs Service’s drugtesting program presented a special need justifying a departure from the 

warrant and probable-cause requirements); Delaware v. Prouse, 440 U.S. 

648, 654–55, 99 S. Ct. 1391, 1396–97, 59 L. Ed. 2d 660, 668 (1979) (“In 

those situations in which the balance of interests precludes insistence 

upon ‘some quantum of individualized suspicion,’ other safeguards are 

generally relied upon to assure that the individual’s reasonable 

expectation of privacy is not ‘subject to the discretion of the official in the 

field . . . .’ ” (Footnotes omitted.) (quoting Camara, 387 U.S. at 532, 87 

S. Ct. at 1733, 18 L. Ed. 2d at 937). In cases with criminal implications, 

however, a view remained that some restraint on law enforcement’s 

discretion was necessary. See Ochoa, 792 N.W.2d at 280 (describing 

application of special-needs exception in cases with criminal 

implications); see also, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 

44, 121 S. Ct. 447, 455, 148 L. Ed. 2d 333, 345 (2000) (holding 

individualized suspicion necessary at narcotics checkpoints when 

general interest was crime control). Whatever the implications of the 

search, we reasoned protection against unrestrained government 

intrusion depended on some form of individualized suspicion, 

particularity, or “preestablished neutral criteria,” not on a warrant. See 
120

Ochoa, 792 N.W.2d at 280; cf. Von Raab, 489 U.S. at 667, 109 S. Ct. at 

1391, 103 L. Ed. 2d at 703 (explaining one primary purpose a warrant 

serves is merely to advise a citizen that a search is legally authorized). 

None of those limits on law enforcement was present in Ochoa. 

Turning to the closely related United States Supreme Court cases, 

we reviewed Griffin, Knights, and Samson. See Ochoa, 792 N.W.2d at 

280–83 (describing the Supreme Court’s application of Fourth 

Amendment principles to probationers and parolees). In discussing 

Samson, in which the Supreme Court upheld a warrantless, 

suspicionless search of a parolee, we focused primarily on the dissent 

authored by Justice Stevens and joined by Justices Souter and Breyer. 

See Ochoa, 792 N.W.2d at 282–83 (noting the “vigorous dissent”). Some 

discussion of the dissent is therefore necessary. 

In the Samson dissent, Justice Stevens inveighed against the 

majority for upholding “an entirely suspicionless search unsupported by 

any special need.” 547 U.S. at 860, 126 S. Ct. at 2204, 165 L. Ed. 2d at 

264 (Stevens, J., dissenting). According to the three Justices, the 

majority “jettisoned” individualized suspicion without substituting any 

standards by which to “rein in officers and furnish a bulwark against the 

arbitrary exercise of discretion.” Id. at 860–61, 126 S. Ct. at 2204, 165 

L. Ed. 2d at 265. The dissent never hinted or suggested, however, that 

the bulwark against arbitrary government action was under all 

circumstances a search warrant. On the contrary, in all the dissenters’ 

indignation for the majority’s approach, even they would have dispensed 

with a search warrant under the circumstances. See id. at 857, 126 

S. Ct. at 2202, 165 L. Ed. 2d at 263 (arguing Knights and Griffin do not 

support “suspicionless searches, conducted pursuant to a blanket grant 

of discretion untethered by any procedural safeguards”). And the 
121

framers of the Federal Constitution would have done so as well, 

according to the three dissenters. See id. at 858, 126 S. Ct. at 2203, 165 

L. Ed. 2d at 263 (“The suspicionless search is the very evil the Fourth 

Amendment was intended to stamp out.”). The dissenters declared, “The 

requirement of individualized suspicion, in all its iterations, is the shield 

the Framers selected to guard against the evils of arbitrary action, 

caprice, and harassment.” Id. at 866, 126 S. Ct. at 2207, 165 L. Ed. 2d 

at 268. Law enforcement here had this individualized suspicion; in fact, 

probable cause existed to support the search of Short’s residence. Even 

the Samson dissenters, in all likelihood, would have upheld the search 

under these circumstances. The majority chooses to ignore this analysis. 

Ochoa’s survey did not end at the Samson dissent; however, our 

rejection of warrantless, suspicionless searches of parolees flowed largely 

from it and the historical narrative. We reasoned that law enforcement 

having the power to search “a parolee at any time, for anything, 

anywhere, including the home, without any suspicion of any kind” 

resembled too closely the general warrant “despised” by our forebears. 

See Ochoa, 792 N.W.2d at 287. Further, without some level of suspicion, 

even if only reasonable suspicion, there was no limit on whether a search 

could be conducted or on the search’s scope. See id. at 288. Our 

constitution, we inferred from the federal experience, aimed to prohibit 

“[s]uch unbridled discretion.” See id. After flaying the Samson majority’s 

dubious reasoning, we concluded “a parolee may not be subjected to 

broad, warrantless searches by a general law enforcement officer without 

any particularized suspicion or limitations to the scope of the search.” 

See id. at 291. 

The takeaway from Ochoa was that the search of the parolee was 

unconstitutional because there was no limitation whatsoever on the 
122

police officer’s discretion. See id. (taking no position regarding whether 

some “means other than a warrant” that limited law enforcement’s power 

might pass constitutional muster). In Ochoa, the police officer lacked 

even a hunch on which to base the search. See id. at 288. This soughtafter search power was “stunningly broad,” enabling law enforcement to 

search any parolee’s “books, records, diaries, invoices, and intimate 

surroundings” without limitation. See id. at 287–88. A power so broad 

could not be reconciled with a constitutional limitation on governmental 

search authority. 

The search conducted in this case, in comparison to the searches 

conducted in Ochoa and Baldon, is clearly distinguishable. The search in 

this case “met the most stringent” Fourth Amendment search standard, 

“probable cause.” See United States v. Flynn, 664 F.2d 1296, 1300 n.8 

(5th Cir. 1982) (declining to consider whether airplanes should be given 

the same constitutional treatment as cars because probable cause 

existed). Moreover, the scope was narrow, enabling officers to search 

only for evidence of the crime that Short was suspected of committing. 

Had these circumstances been present in Ochoa, this court might have 

joined with the nine Justices of the United States Supreme Court willing 

to discard the search-warrant requirement in Samson. Our search of 

cases involving parolees following Ochoa has indicated nothing to the 

contrary. See Kern, 831 N.W.2d at 176 (concluding officers lacked 

probable cause to perform exigent-circumstances search of parolee’s 

home); Baldon, 829 N.W.2d at 789 (noting the state never argued that it 

had even reasonable suspicion to search parolee). 

As noted above, our constitutional independence frees this court 

from applying the reasoning the United States Supreme Court used to 

uphold the warrantless search of the probationer in Knights. That 
123

reasoning, which rests on judgments about a probationer’s privacy 

expectations and which was similarly applied to parolees in Samson, has 

been criticized as “totally circular.” See 5 LaFave, Search and Seizure

§ 10.10(c), at 544 (explaining the circularity of the Court’s logic in 

Knights); Samson, 547 U.S. at 857–58, 126 S. Ct. at 2202–03, 165 

L. Ed. 2d at 263 (Stevens, J., dissenting) (chastising the majority’s 

combination of “faulty syllogism” and “circular reasoning”). Even so, it is 

undeniable that “by virtue of their status alone, probationers ‘ “do not 

enjoy the absolute liberty to which every citizen is entitled.” ’ ” Samson, 

547 U.S. at 848–49, 126 S. Ct. at 2197, 165 L. Ed. 2d at 257 (quoting 

Knights, 534 U.S. at 119, 122 S. Ct. at 587, 151 L. Ed. 2d at 505). This 

commonsense observation provides initial support for differential 

treatment of probationers and law-abiding citizens under article I, 

section 8 of the Iowa Constitution. 

In Iowa, the lowest level probationers do not enjoy the liberty to 

which law-abiding citizens are entitled. Iowa Code chapter 901B sets 

forth a “corrections continuum.” See Iowa Code § 901B.1(1) (2013). 

Probation, like parole, falls on “Level Two” of the corrections continuum, 

see id. § 901B.1(1)(b), sandwiched between “Level One,” “[n]oncommunity 

based corrections sanctions,” see id. § 901B.1(1)(a), and “Level Three,” 

“[q]uasi-incarceration sanctions,” see id. § 901B.1(1)(c). Level two is 

further divided into three levels of sanctions, all of which contemplate at 

least supervision by corrections authorities. See id. § 901B.1(1)(b)(1)–(3). 

Probationers subject to monitored sanctions “are monitored for 

compliance” with “administrative supervision sanctions” by corrections 

authorities. See id. § 901B.1(1)(b)(1). Supervised sanctions, the middle 

level, are regular probation supervision and any conditions in the 

probation agreement or court order. See id. § 901B.1(1)(b)(2). Finally, 
124

intensive supervision sanctions, in addition to subjecting a probationer 

to intense monitoring, provide for “electronic monitoring, day reporting, 

day programming, live-out programs for persons on work release or who 

have violated chapter 321J, and institutional work release under section 

904.910.” Id. § 901B.1(1)(b)(3). As may readily be seen, this legislative 

scheme envisions subjecting all probationers to governmental scrutiny to 

which no ordinary citizen is subject, thus depriving even the lowest level 

probationers of some degree of liberty. 

Probation conditions may further abridge a probationer’s liberty. 

Iowa Code section 907.6 grants broad authority for doing so:

Probationers are subject to the conditions established 

by the judicial district department of correctional services 

subject to the approval of the court, and any additional 

reasonable conditions which the court or district department 

may impose to promote rehabilitation of the defendant or 

protection of the community. Conditions may include but 

are not limited to adherence to regulations generally 

applicable to persons released on parole and including 

requiring unpaid community service as allowed pursuant to 

section 907.13.

Among the parole regulations to which a probationer may be subject is 

the requirement that the probationer “secure and maintain employment.” 

Iowa Admin. Code r. 201—45.2(1)(c) (2013). Another regulation prohibits 

a probationer from travelling outside his or her county of residence 

without permission. See id. r. 201—45.2(1)(d). Before leaving the state, 

a probationer must “secure advance written permission.” Id. A 

probationer may not change residences without permission. Id. r. 201—

45.2(1)(e). A probationer may also be compelled to “cooperate in any 

treatment/rehabilitation/monitoring program” specified by corrections 

authorities. Id. r. 201—45.2(1)(i). These restrictions are strong and 

significantly limit a probationer’s freedom, but as the statute makes 
125

plain, these are additional conditions to which a probationer might be 

subjected. 

Iowa Code section 907.6 also authorizes courts to impose 

probation conditions. Courts may not impose unreasonable or arbitrary 

conditions. State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977). 

Otherwise, courts’ authority under this provision is broad. State v. Valin, 

724 N.W.2d 440, 445 (Iowa 2006). We have approved a court’s order 

that a probationer spend six months in a residential treatment facility, 

even when it meant displacing the probationer’s child. See State v. Ogle, 

430 N.W.2d 382, 383 (Iowa 1988) (finding district court did not abuse its 

discretion when imposing the probation condition). For its holding that a 

court is within its discretion even to tell a probationer where and with 

whom to live, Ogle exemplifies the impressive loss of freedom to which 

probationers are subject. See id. Such deprivation is necessary to 

promote the probationer’s rehabilitation and to protect the community. 

See id. at 384 (upholding probation condition); see also Iowa Code 

§ 907.6 (providing conditions may be imposed “to promote rehabilitation 

of the defendant or protection of the community”). 

Our caselaw, our statutes, and our regulations are evidence of a 

fundamental notion in our law. They show that deeply embedded in our 

system of law is the notion individuals sentenced for crimes, including 

those who remain outside a prison’s walls, do not enjoy the same 

complement of liberties as those of law-abiding citizens. Probationers, 

unlike ordinary citizens, must comply with stringent conditions under 

the watchful supervision of courts and corrections authorities. That our 

law permits this treatment differential is undeniable. It follows from this 

fundamental notion that probationers may be accorded different 
126

treatment under some constitutional provisions, provided governmental 

authority is adequately constrained. 

Besides our jurisprudence on consent, one additional constraint 

on governmental authority is individualized suspicion. As we said in 

Cullison, “the basic purpose of [the search and seizure protection], as 

recognized in countless decisions of this Court, is to safeguard the 

privacy and security of individuals against arbitrary invasions by 

government officials.” See 173 N.W.2d at 538 (emphasis added). As all 

of the cases that have addressed searches of this nature confirm, it is 

this arbitrary and suspicionless search that is the crucial distinction 

between this case and the similar cases that have come before this court. 

See Kern, 831 N.W.2d at 176 (concluding officers lacked probable cause); 

Baldon, 829 N.W.2d at 789 (noting the State never argued that it had 

individualized suspicion to search parolee); Ochoa, 792 N.W.2d at 288 

(noting police officer performed search without any individualized 

suspicion); Cullison, 173 N.W.2d at 540 (finding there was no “reasonable 

or probable cause” to support search). That the officers here had 

probable cause to search Lorenzen’s apartment negates a comparison 

between the search performed in this case and “the despised general 

warrant.” See Ochoa, 792 N.W.2d at 287. It was the general warrant’s 

conferral of unrestrained discretion upon law enforcement that was an 

impetus for the Fourth Amendment. See id.

The officers who searched Short operated under no such 

unrestrained or arbitrary discretion. Rather, having established through 

diligent investigation probable cause to believe Short committed a 

burglary, law enforcement applied for a search warrant. While the 

search warrant issued was ultimately determined to be invalid, the 

probable-cause finding by the independent judicial officer was never 
127

challenged. Not surprisingly, the stolen property was found at the 

apartment. 

The probable-cause requirement significantly restrains law 

enforcement discretion. This standard is considerably more protective of 

probationers’ rights than the reasonable-suspicion standard upon which 

the search in Knights was upheld. See 534 U.S. at 122, 122 S. Ct. at 

593, 151 L. Ed. 2d at 507 (upholding warrantless search of a probationer 

supported by reasonable suspicion); see also Alabama v. White, 496 U.S. 

325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990) 

(explaining that “[r]easonable suspicion is a less demanding standard 

than probable cause”); State v. Lewis, 675 N.W.2d 516, 525 (Iowa 2004) 

(“The reasonable and articulable suspicion standard . . . is less than 

probable cause.”). To satisfy the reasonable-suspicion requirement, an 

officer need only have specific, articulable facts. See Terry v. Ohio, 392 

U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). In 

Griffin, for instance, the United States Supreme Court found an 

unauthenticated tip that a probationer “ ‘had or might have’ ” guns 

adequate to supply reasonable suspicion. 483 U.S. at 878, 107 S. Ct. at 

3171, 97 L. Ed. 2d at 720. The Supreme Court determined, however, the 

same tip would not supply probable cause. See id. 

In Iowa, “[t]he 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. Probable cause demands from 

law enforcement facts suggesting that the items sought in the search are 

linked to criminal activity and that those items will be found in the place 

to be searched. See State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997); see 

also State v. Thomas, 540 N.W.2d 658, 662–63 (Iowa 1995) (“The facts 
128

and information presented to establish this finding need not rise to the 

level of absolute certainty, rather, it must supply sufficient facts to 

constitute a fair probability that contraband or evidence will be found on 

the person or in the place to be searched.”). Applying the probable cause 

standard, we have invalidated searches on numerous occasions. See, 

e.g., Kern, 831 N.W.2d at 176 (holding officers lacked probable cause to 

search parolee’s home); Lewis, 675 N.W.2d at 525 (concluding officers 

lacked probable cause to make a warrantless entry into a backyard); 

State v. Myers, 570 N.W.2d 70, 75 (Iowa 1997) (concluding that “there 

was not probable cause for issuance of the search warrant”); Thomas, 

540 N.W.2d at 666 (holding no probable cause existed to search all 

persons in a bar). The probable cause requirement’s insistence on 

sufficient facts provides a strong protection against arbitrary searches by 

law enforcement officers. 

In addition, the concept of probable cause encompasses a number 

of legal rules designed to limit officers’ discretion and therefore to protect 

individuals’ rights. In Kern, for example, we rejected the argument an 

individual’s invocation of constitutional rights could be used by officers 

to establish probable cause. See 831 N.W.2d at 176. We also held 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.” Id. These legal 

rules further restrain officers’ discretion to perform searches. 

A strict requirement that officers have individualized suspicion 

before searching a probationer therefore alleviates our predominant 

concern in Ochoa—that unrestrained general law enforcement could 

intrude on a probationer’s privacy and rifle through the probationer’s 

possessions anytime, anywhere, without a warrant, to find evidence of a 

crime. See 732 N.W.2d at 287–88. Consistent with current Fourth 
129

Amendment jurisprudence and our own precedents, I would require that 

law enforcement must have at least individualized suspicion before law 

enforcement officers can search a probationer or the residence. 

Here, deputies established probable cause for the search by 

applying for a search warrant. To do so, Deputy Bartolozzi carefully set 

forth “facts, information, and circumstances,” including a police report 

and officer statements describing the burglary. See Iowa Code § 808.3 

(describing the necessary contents of an application for a search 

warrant). The exhibits attached to the application described in detail the 

items taken in the burglary that deputies expected to find in the 

residence. Deputy Bartolozzi also described in detail the place to be 

searched, going so far as to include a picture and description of the 

residence, which was only later determined to be incorrect. An 

independent review by a judicial officer determined there was probable 

cause for the search and granted the search warrant based on Deputy 

Bartolozzi’s scrupulous and earnest efforts. Though the search warrant 

was later invalidated due to an incorrect address, probable cause was 

undisputedly established, and the correct address was subject to the 

search. 

In addition to the finding of probable cause by an independent 

judicial officer, there were other forms of restraint on law enforcement’s 

discretion in this case. The greatest concern with granting officers the 

authority to perform suspicionless searches of parolees in Ochoa was 

that the authority was neither “minimal and highly-defined,” nor “closely 

linked to an identified special need.” See 792 N.W.2d at 288. The search 

executed by the deputies in this case, however, was narrow and defined. 

Consistent with the warrant application, deputies searched for, and 

found, televisions, jewelry, shoes, and other items they believed would be 
130

found in the apartment based on their investigation. Unlike the search 

in Ochoa, the search here was not “contrary to the common-sense notion 

that ‘the scope of the search must be strictly tied to and justified by the 

circumstances which rendered its initiation permissible.’ ” See 792 

N.W.2d at 288 (quoting Terry, 392 U.S. at 19, 88 S. Ct. at 1878, 20

L. Ed. 2d at 904). Rather, the search of Short was consistent with that 

notion. The limited scope of the search further controlled officer 

discretion. 

The officers’ knowledge Short was on probation also restrained law 

enforcement discretion. This is not a situation like that of In re Tyrell J., 

in which the California Supreme Court upheld a police officer’s 

warrantless search of a juvenile probationer, even though the officer was 

unaware the juvenile was on probation. See 876 P.2d 519, 530 (Cal. 

1994), overruled by In re Jaime P., 146 P.3d 965, 972 (Cal. 2006). In 

requiring law enforcement to first ascertain whether an individual is on 

probation, we avoid the possibility officers will search an individual “in 

the bare hope” the individual is on probation. See Jaime P., 146 P.3d at 

969. To adequately restrain law enforcement discretion, officers must 

not only establish individualized suspicion, but also ascertain whether 

the individual to be searched is on probation. See Ochoa, 792 N.W.2d at 

291 (explaining one reason for rejecting the warrantless, suspicionless 

search was that there was no available means of controlling arbitrary 

searches). Both requirements are integral to the prevention of arbitrary 

searches, and both requirements are present and have been met in this 

case. 

Finally, in his probation agreement, Short consented to the 

warrantless search. At the time of the search, Short was on probation 

for third-degree theft, an aggravated misdemeanor. See Iowa Code 
131

§ 714.2(3) (“Theft in the third degree is an aggravated misdemeanor.”). 

Short could have been sentenced to prison for up to two years. See id.

§ 903.1(2) (“When a person is convicted of an aggravated misdemeanor 

. . . the maximum penalty shall be imprisonment not to exceed two 

years.”). Rather than being sentenced to serve a prison sentence, Short 

requested a suspended sentence and received a suspended sentence and 

probation. As part of that bargain, Short voluntarily agreed to subject 

himself to warrantless searches by law enforcement and corrections 

authorities alike. The consent provision is not alone a basis to uphold 

the search, but Short’s consent in the probation agreement should be a 

critical factor in upholding the search in this case. The lack-ofbargaining rationale we utilized in Baldon to conclude there was no 

voluntary consent to the search, is not applicable in the present case. 

We would not be alone in holding law enforcement may search 

probationers without a warrant. Numerous state courts have upheld 

warrantless searches of probationers and parolees, some supported by 

individualized suspicion and some requiring probable cause. See State v. 

Montgomery, 566 P.2d 1329, 1331 (Ariz. 1977) (upholding 

constitutionality of a probation condition that permitted warrantless 

searches by law enforcement); State v. Fields, 686 P.2d 1379, 1390 (Haw. 

1984) (holding a warrantless search of a probationer must be supported 

by reasonable suspicion); Gawron, 736 P.2d at 1297 (upholding a 

warrantless search of a probationer); State v. Schlechty, 926 N.E.2d 1, 8 

(Ind. 2010) (upholding warrantless search of a probationer supported by 

reasonable suspicion); State v. Bennett, 200 P.3d 455, 463 (Kan. 2009) 

(rejecting a suspicionless search of a probationer on grounds that the 

search must “be based on a reasonable suspicion”); Parks v. 

Commonwealth, 192 S.W.3d 318, 330 (Ky. 2006) (upholding a probation 
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condition allowing law enforcement, on reasonable suspicion, to search a 

probationer without a warrant); State v. Malone, 403 So. 2d 1234, 1239 

(La. 1981) (holding a warrantless probation search need only be 

supported by reasonable suspicion); State v. Burke, 766 P.2d 254, 257 

(Mont. 1988) (holding permissible a warrantless search of a probationer 

supported by reasonable cause); People v. Hale, 714 N.E.2d 861, 862, 

865 (N.Y. 1999) (upholding search of a probationer’s home under a courtordered probation condition); State v. Schlosser, 202 N.W.2d 136, 139 

(N.D. 1972) (upholding a warrantless search of a probationer); State v. 

Turner, 297 S.W.3d 155, 169 (Tenn. 2009) (upholding under the 

Tennessee Constitution a warrantless, suspicionless search of a parolee); 

State v. Winterstein, 220 P.3d 1226, 1230 (Wash. 2009) (holding 

probation officers must have probable cause before performing a 

warrantless search). Though of diverse reasoning, these cases set forth 

the principle that probationers and parolees may be searched upon a 

different set of circumstances than law-abiding citizens. I would decide 

this case according to those well-established principles. 

Consent-to-search provisions in probation agreements advance the 

interests of both offender rehabilitation and societal protection. 

Probationers who have agreed to warrantless searches are more likely to 

abide by the law:

The condition of probation that defendant consent to a 

search of his person by a law enforcement officer without a 

search warrant is a supervisorial procedure related to his 

reformation and rehabilitation in light of the offense of which 

he was convicted. With knowledge he may be subject to a 

search by law enforcement officers at any time, he will be 

less inclined to [violate the law]. 

People v. Kern, 264 Cal. App. 2d 962, 965 (Ct. App. 1968); accord People 

v. Bravo, 738 P.2d 336, 342 (Cal. 1987); Himmage v. State, 496 P.2d 763, 
133

765 (Nev. 1972); State v. Benton, 695 N.E.2d 757, 761–62 (Ohio 1998); 

see also Hale, 714 N.E.2d at 865 (“[O]ne way to encourage [the 

probationer to comply with the law] was to hold out the possibility that 

he would be checked up on, and stood to be incarcerated if he betrayed 

the terms of his negotiated probationary status.”). Of course, a 

probationer who is more likely to abide by the law is also less likely to 

harm others. See Owens v. Kelley, 681 F.2d 1362, 1367 (11th Cir. 1982) 

(recognizing that probationary searches protect society “by the deterrent 

effect of the condition”). Consent-to-search agreements also “enhanc[e] 

the ability of law enforcement officers to detect any unlawful 

. . . activities.” Id. “[I]f a defendant considers the conditions of probation 

too harsh, he has the right to refuse probation and undergo the 

sentence.” Gawron, 736 P.2d at 1297. Despite these obvious benefits, 

the majority fails even to discuss these widely used consent-to-search 

agreements as part of its analysis of this case and blindly follows the 

Fourth Amendment precedent found in Cullison. 

Based on all of the above considerations, I would hold the search 

of Short and his residence was permissible under not only the Fourth 

Amendment, but also under article I, section 8 of the Iowa Constitution. 

Such a conclusion is consistent with our precedents and the national 

consensus. After a diligent investigation, deputies established probable 

cause to believe evidence of the burglary was in Leya Lorenzen’s 

apartment, where Short was residing. Even knowing Short was on 

probation and subject to the consent-to-search provision of his probation 

agreement, law enforcement officers still established probable cause for 

the search and executed the narrow search for evidence. Upon doing so, 

they discovered the evidence they sought. Even without a warrant, the 

consent provided by the probation agreement, combined with the 
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existence of probable cause and the narrow scope of the search, 

adequately restrained officer discretion. 

The majority blindly elects to adhere to an absolute search warrant 

requirement as set forth in Cullison without considering the changing 

analysis of Fourth Amendment jurisprudence, and the jurisprudence 

found in other nationwide authority. Such adherence to the past, based 

on an underlying belief that the United States Supreme Court has eroded 

and diluted the rights of ordinary citizens to the protections under the 

Fourth Amendment, and that only a warrant will suffice, is unsound and 

illogical. The search in this case was constitutionally permissible under 

article I, section 8 of our Iowa Constitution and our precedents. 

I would affirm. 

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

this dissent.