IN THE COURT OF APPEALS OF IOWA

No. 23-1218

Filed August 21, 2024

STATE OF IOWA,

Plaintiff-Appellee,

vs.

PATRICK SCULLARK,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Linda M. 

Fangman, Judge.

A defendant appeals his convictions for possession of methamphetamine 

with intent to deliver and failure to affix a tax stamp. REVERSED AND 

REMANDED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant 

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden (until withdrawal) and 

Timothy M. Hau, Assistant Attorneys General, for appellee.

Considered by Tabor, C.J., and Badding and Buller, JJ.
2

TABOR, Chief Judge.

“All the stuff you’re handing her, I’m searching, just so you know.” That’s 

what Waterloo Police Officer Jacob Bolstad told Patrick Scullark as he handcuffed 

and arrested him on an assault charge. And the officer was true to his word—

seizing and searching the fanny pack Scullark passed to his friend. Inside 

Scullark’s fanny pack, police found cash and twenty-three grams of

methamphetamine. Scullark moved to suppress the drugs, alleging the 

warrantless search of the fanny pack violated his constitutional rights. The district 

court denied the motion, finding a valid search incident to Scullark’s arrest. 

Scullark now challenges that ruling. 

Because Scullark had no realistic ability to access the fanny pack after he 

was handcuffed and escorted to the patrol car, the search did not meet the 

incident-to-arrest exception to the warrant requirement. Thus, we reverse the 

suppression ruling and remand for further proceedings. 

I. Facts and Prior Proceedings

A former girlfriend accused Scullark of throwing a watch, hitting her in the 

face, and causing a laceration. She alerted Officer Bolstad to the address where

Scullark was moving. The officer located Scullark outside that house, talking on 

the phone, “pretty agitated” and “emotional.” Officer Bolstad recorded their 

encounter on his body camera. The officer heard Scullark say he was on parole 

and didn’t want to go back to jail. When Scullark noticed the officer approaching

“he decided to bolt inside of the residence.” The officer ordered Scullark to stop, 

but he ignored that command. So the officer followed him inside. 
3

Scullark was crying and repeating that he didn’t do anything wrong. In fact, 

he was so overwrought he crumpled to the floor. The officer recalled trying “to 

keep him calm and deescalate the situation because ultimately he was going to be 

going to jail for domestic assault.”

When Officer Bolstad broke the news to Scullark that he was under arrest, 

Scullark was wearing a fanny pack around his waist. The officer estimated that it 

was ten by five inches—big enough to hold a small firearm or a knife. Before he 

was handcuffed, Scullark told the officer, “don’t touch me right now” and handed 

the fanny pack to his friend, Tammy, who was standing nearby. Bolstad did not 

protest the handoff because he was the only officer present and did not want to 

“escalate the situation.”

A few seconds later, Officer Bolstad handcuffed Scullark and informed him 

that the police would search the items passed to Tammy. By then, Tammy had 

taken three or four steps away from Scullark. The officer said: “Tammy, you stay 

over here with that.” She then set the fanny pack down on a plastic tub next to a 

laundry basket just across the threshold of an adjoining room. As Scullark 

continued to lament—“I can’t go to jail bro”—he walked toward the spot where 

Tammy left the fanny pack. Bolstad told him to stop and tightened the handcuffs. 

The officer later conceded that Scullark could not have reached the fanny pack at 

that point because his hands were cuffed behind his back.

The officer then picked up the fanny pack and carried it outside while 

escorting Scullark to the waiting patrol car. Tammy and another friend of Scullark 

joined them outside. By then, at least two other officers had arrived at the scene. 

As Officer Bolstad stood with Scullark just outside the open back door of his patrol 
4

car, the officers searched the fanny pack. Bolstad later testified: “And while we 

were searching the bag, [we] located a large amount of money, an amount of 

drugs, and I don't really recall what else was in the bag.”

1

Based on that discovery, the State charged Scullark with possession of 

methamphetamine with intent to deliver, a class “B” felony, in violation of Iowa 

Code section 124.401(1)(b)(7) (2022) and failure to affix a drug tax stamp, a class 

“D” felony, in violation of section 453B.12. He moved to suppress the evidence 

seized by the officers, alleging a violation of his rights under the Fourth 

Amendment of the federal constitution and article 1, section 8 of the Iowa 

Constitution. The court denied his motion. 

Scullark then entered a conditional guilty plea to the charged offenses, 

reserving his right to raise the suppression issue on appeal. The court entered 

judgment and sentence—from which Scullark now appeals.

II. Jurisdiction/Conditional Guilty Plea

Traditionally, when defendants enter a guilty plea, they waive “all defenses 

and challenges not intrinsic to the voluntariness of the plea.” State v. Tucker, 959 

N.W.2d 140, 146 (Iowa 2021). To some degree, that changed effective July 1, 

2023. Now defendants may enter conditional guilty pleas to preserve their 

1 Officer Bolstad’s bodycam footage shows Scullark standing by the patrol car, 

talking to his mother on a cell phone held by one of his friends. He complains that 

the police have “his wallet with all of his credit cards in it” and “two hundred dollars 

for his light bill.” At that point, an officer hands Scullark’s friend a wad of cash. 

Then, before placing Scullark in the backseat, Officer Bolstad asks: “Patrick, is 

there anything else you want them to have out of that thing?” Scullark ignores the 

question. So the officer tells him: “Get in the car, we’re done.” Scullark then tells 

his friend to “get the wallet.” Bolstad responds: “She’s not getting the wallet. We’re 

taking all that stuff to the jail with you.” It is unclear from the recording when the 

officers find the methamphetamine.
5

potential appellate challenges to adverse rulings on a pretrial motion. Iowa R. 

Crim. P. 2.8(2)(b)(9)2; Iowa Code § 814.6(3).3 But under the statutory language, 

we have jurisdiction over an appeal from a conditional plea only when “appellate 

adjudication of the reserved issue is in the interest of justice.”4 Id. § 814.6(3)

At the July 20, 2023 plea hearing, the State consented to Scullark’s request 

to enter a conditional guilty plea to reserve the right to contest the denial of his 

motion to suppress on appeal. The court accepted the plea and advised Scullark 

of his right to appeal. Now Scullark urges appellate review of his suppression issue 

“is in the interest of justice” under section 814.6(3). See generally Iowa R. App. P. 

6.103(2)(a) (requiring appellant’s brief, in appeal from judgment of sentence 

2 The rule states:

With the consent of the court and the prosecuting attorney, a 

defendant may enter a conditional plea of guilty, reserving in writing 

the right to have an appellate court review an adverse determination 

of a specified pretrial motion. A defendant who prevails on appeal 

may then withdraw the plea.

Iowa R. Crim. P. 2.8(2)(b)(9).

3 The statute provides:

A conditional guilty plea that reserves an issue for appeal shall only 

be entered by the court with the consent of the prosecuting attorney 

and the defendant or the defendant's counsel. An appellate court 

shall have jurisdiction over only conditional guilty pleas that comply 

with this section and when the appellate adjudication of the reserved 

issue is in the interest of justice.

Iowa Code § 814.6(3).

4 One commentator offers this insight into the cross-over between the new statute 

and the rule: 

Curiously, the original language of the rule as approved by the Court 

in 2023 stated explicitly that an approved conditional guilty plea 

constituted good cause to appeal the ruling on the motion, 

circumventing the Iowa Code § 814.5(1)(a)(3) bar on appeals of 

guilty pleas. In the final manifestation of the rule, this language was 

stricken. The value of preserving an issue for a prohibited appeal 

remains to be seen. 

4A B. John Burns, Iowa Practice Series: Criminal Procedure § 12:3 n.105 (Mar.

2024) [hereinafter Criminal Procedure].
6

following a guilty plea, to include a jurisdictional statement establishing “grounds

that establish ‘good cause’ for purposes of Iowa Code section 814.6(1)(a)(3)”). 

Recognizing that the “interest of justice” is undefined in chapter 814, Scullark asks 

us to adopt this common meaning: “the proper view of what is fair and right in a 

matter in which the decision-maker has been granted discretion.” Interests of 

Justice, Black’s Law Dictionary (11th ed. 2019). From there, Scullark argues that 

fairness favors appellate adjudication for three reasons: (1) correct resolution of 

this constitutional question is valuable not only to him “but to all Iowans”; (2) he 

has no other avenue for relief; and (3) review would serve “the general purpose”

of “good cause” under the statutory scheme. See State v. Treptow, 960 N.W.2d 

98, 109 (Iowa 2021) (describing “good cause” as “a legally sufficient reason” which 

in turn means “a reason that would allow a court to provide some relief”).

We agree that adjudication of the suppression issue is in the interest of 

justice.5 Reviewing this contested constitutional claim—whether the officer acted 

legally in conducting the warrantless search of Scullark’s fanny pack—fulfills the 

quintessential purpose of the newly enacted scheme of conditional guilty pleas. 

Because it is “fair and right” that we decide the reserved issue, we have jurisdiction 

to proceed. See Criminal Procedure § 12:3 n.105 (“The ‘interest of justice’ finding 

must be the good cause standard for permitting the appeal of a conditional plea to 

go ahead.”).

5

In its appellee’s brief, the State notes that Scullark is appealing from a conditional 

guilty plea but does not contest our jurisdiction to adjudicate the suppression issue. 

See Iowa R. App. P. 6.103(2)(b) (stating if appellee is dissatisfied with appellant’s 

jurisdictional statement, it may include its own jurisdictional statement in its brief or 

may move to dismiss for lack of good cause). From its lack of response, we 

presume that the State is satisfied with Scullark’s jurisdictional statement.
7

III. Scope and Standards of Review

This appeal involves the constitutional right to be free from unreasonable 

searches and seizures. Thus, we review the suppression ruling de novo. State v. 

Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). That standard means that we 

independently evaluate “the totality of the circumstances as shown by the entire 

record.” State v. Baker, 925 N.W.2d 602, 609 (Iowa 2019) (citation omitted). “We 

give deference to the district court’s factual findings, but they do not bind us.” Id.

Scullark contests the warrantless search of his fanny pack under the federal 

and state constitutions. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. The 

district court decided to “analyze the search of the fanny pack under both of those 

constitutions as one” asserting that the defense did not provide “any argument or 

basis to distinguish between the federal and state constitution as it pertains to 

these particular protections.” On appeal, Scullark challenges that assertion, 

insisting his trial attorney did distinguish between precedent decided under the 

state constitution, see Gaskins, 866 N.W.2d at 14, and federal caselaw, see 

Arizona v. Gant, 556 U.S. 332 (2009). We agree that Scullark raised article I, 

section 8 as an independent ground for relief in the suppression proceedings. So, 

as appropriate, we may apply a different standard to his claims under the Iowa 

Constitution. See State v. Vance, 790 N.W.2d 775, 789 (Iowa 2010) (declining to 

“blindly follow federal precedent on issues of Iowa constitutional law”). 

IV. Analysis

A search conducted without prior judicial approval is per se unreasonable 

unless the State can show that a recognized exception to the warrant requirement 

applies. Gaskins, 866 N.W.2d at 7. Here, the State relies on the exception for 
8

searches incident to arrest. That exception “derives from interests in officer safety 

and evidence preservation that are typically implicated in arrest situations.” Gant,

556 U.S. at 338; accord Gaskins, 866 N.W.2d at 8. “The search-incident-to-arrest 

exception to the warrant requirement must be narrowly construed and limited to 

accommodating only those interests it was created to serve.” State v. McGrane, 

733 N.W.2d 671, 677 (Iowa 2007).

More than four decades ago, the United States Supreme Court articulated 

the twin rationales for allowing police to search incident to arrest:

When an arrest is made, it is reasonable for the arresting officer to 

search the person arrested in order to remove any weapons that the 

latter might seek to use in order to resist arrest or effect his escape. 

Otherwise, the officer’s safety might well be endangered, and the 

arrest itself frustrated. In addition, it is entirely reasonable for the 

arresting officer to search for and seize any evidence on the 

arrestee’s person in order to prevent its concealment or destruction.

Chimel v. California, 395 U.S. 752, 762–63 (1969). 

But Chimel did not limit the scope to the arrestee’s person:

And the area into which an arrestee might reach in order to grab a 

weapon or evidentiary items must, of course, be governed by a like 

rule. A gun on a table or in a drawer in front of one who is arrested 

can be as dangerous to the arresting officer as one concealed in the 

clothing of the person arrested. There is ample justification, 

therefore, for a search of the arrestee's person and the area ‘within 

his immediate control’—construing that phrase to mean the area 

from within which he might gain possession of a weapon or 

destructible evidence.

Id. at 763.

In upholding the search of Scullark’s fanny pack, which he was wearing just 

before his arrest, the district court cited Chimel, as well as two of our unpublished 

cases: State v. Jones, No. 02-1972, 2003 WL 22699655 (Iowa Ct. App. Nov. 17, 

2003) and State v. Allen, No. 06-1770, 2007 WL 2964316 (Iowa Ct. App. Oct. 12, 
9

2007). We start with those now-dated cases. More than twenty years ago, our 

court upheld the search of a backpack that officers removed from Jones as he was 

resisting arrest. Jones, 2003 WL 22699655, at *1. We reasoned that the right to 

search incident to arrest continued even if the backpack were no longer accessible 

to Jones at the time of the search—as long as it was within his reach at the time 

of his arrest. Id. 

Using the same rationale, we upheld the search of a backpack sitting on the 

floor next to Allen when he was arrested. Allen, 2007 WL 2964316, at *4 (relying 

on automobile-search case, New York v. Belton, 453 U.S. 454 (1981)). Belton

allowed the search of containers within a motorist’s reach at the time of the arrest, 

and defined a container as any object that held another object, including those

located within the passenger compartment of the automobile. 453 U.S. at 460 n.4.

The trouble with the district court’s reliance on Jones and Allen is that those 

cases predate the recasting of Belton in Gant. In that 2009 decision, the supreme 

court declined “[t]o read Belton as authorizing a vehicle search incident to every 

recent occupant’s arrest” and warned that such a broad interpretation would 

“untether the rule from the justifications underlying the Chimel exception.” Gant,

556 U.S. at 343. Gant held that, under the Chimel rationale, police could search 

a vehicle incident to a recent occupant’s arrest only when the arrestee was 

“unsecured and within reaching distance of the passenger compartment at the time 

of the search.”6Id. And that was not Gant’s situation. “Unlike in Belton, which 

6 Gant also included a second holding that did not flow from Chimel. The Court 

concluded that “circumstances unique to the vehicle context justify a search 

incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the 

crime of arrest might be found in the vehicle.’” Gant, 556 U.S. at 343 (quoting 
10

involved a single officer confronted with four unsecured arrestees, the five officers 

in this case outnumbered the three arrestees, all of whom had been handcuffed 

and secured in separate patrol cars before the officers searched Gant’s car.” Id.

at 344. As its bottom line, Gant rejected the notion that searches incident to arrest

were reasonable regardless of “the possibility of access” in any case. Id. And “the 

most important characteristic of Gant’s ‘possibility of access’ rule is that it is to be 

applied ‘at the time of the search’ rather than at some earlier time.” 3 Wayne R. 

LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.1(c) (6th 

ed. 2024).

Our supreme court discussed Gant at length in Gaskins. 866 N.W.2d 

at 11−14. After doing so, it held that opening a locked safe in Gaskin’s vehicle was 

not a valid search incident to arrest. Id. at 14. Gaskins rejected the Belton rule 

that authorized warrantless searches of containers regardless of the Chimel

considerations of officer safety and protecting evidence. Id. at 12. Instead, the 

court sided with jurisdictions that viewed the search-incident-to-arrest exception as 

“a rule of reasonableness anchored in the specific circumstances facing an officer.” 

See State v. Rowell, 188 P.3d 95, 101 (N.M. 2008); accord Gaskins, 866 N.W.2d 

at 12–13 (citing Rowell, 188 P.3d at 101 (refusing to draw “artificial lines” unrelated 

to the Chimel rationales), and State v. Valdez, 224 P.3d 751, 758–59 (Wash. 2009) 

(“The search incident to arrest exception, born of the common law, arises from the 

necessity to provide for officer safety and the preservation of evidence of the crime 

Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)). In 

Gaskins, our supreme court rejected that evidence-gathering purpose of the 

search-incident-to-arrest exception under the Iowa Constitution. 866 N.W.2d at 

13. The evidence-gathering rationale is not at issue here.
11

of arrest, and the application and scope of that exception must be so grounded 

and so limited.”)). In the end, the Iowa Supreme Court approved Gant’s “reaching 

distance” rationale “as an appropriate limitation on the scope of searches incident 

to arrest under article I, section 8 of the Iowa Constitution because that limitation 

is faithful to the underlying justifications for warrantless searches incident to 

arrest.” Gaskins, 866 N.W.2d at 13.

Returning to Jones, before Gant and Gaskins, our court said: “[W]e have

considered the following facts cited by Jones: 1) at least four police officers were 

at the scene of the arrest, 2) Jones was handcuffed, and 3) Jones was in the squad 

car at the time of the search. These facts do not mandate a different result.” 2003

WL 22699655, at *1. After Gant and Gaskins, those facts would mandate a 

different result. Because Jones was neither unsecured nor within reaching 

distance of his backpack at the time of the search, the police intrusion was 

untethered from the justifications underlying the Chimel exception. See Gant, 556 

U.S. at 343. The same holds true in Allen’s case. Police did not search his 

backpack until they “gained control” of him and placed him in the patrol car. Allen, 

2007 WL 2964316, at *4. 

With the restrictive reading of Belton in Gant and Gaskins, we must rethink 

the decisions in Jones and Allen. Commentators agree that the exception has 

narrowed. See 3A Charles Allen Wright, Arthur R. Miller, & Sarah N. Welling, Fed.

Prac. and Proc. § 676 (4th ed. 2024) (“The appellate courts have generally applied 

this test to allow police to search within the defendant's grab area even when the 

defendant’s literal ability to grab is limited by guards or handcuffs, but this authority 
12

may be curtailed in the wake of the 2009 case, Arizona v. Gant, which limited 

searches incident to arrest in the context of automobiles.” (footnotes omitted)).

But does Gant apply outside the vehicle context? Justice Alito thought so, 

writing: “there is no logical reason why the same rule should not apply to all 

arrestees.” Gant, 556 U.S. at 364 (Alito, J., dissenting). And many federal and 

state courts view Gant as imposing limits on any search incident to arrest. See, 

e.g., United States v. Davis, 997 F.3d 191, 198 (4th Cir. 2021) (rejecting searchincident-to-arrest justification because Davis was “handcuffed and face-down” and 

“not within reaching distance of the backpack next to him”); United States v. Knapp, 

917 F.3d 1161, 1169 (10th Cir. 2019) (finding search of purse was invalid as

incident to arrest because “not only were Ms. Knapp's hands cuffed behind her 

back, Officer Foutch was next to her, and two other officers were nearby. 

Moreover, the purse was closed and three to four feet behind her, and officers had 

maintained exclusive possession of it since placing her in handcuffs”); United 

States v. Stanek, 536 F. Supp. 3d 725, 740 (D. Haw. 2021) (“There was no threat 

that Stanek could have broken free and accessed his bag, and the Government 

has never asserted that Stanek could have destroyed evidence stored in the bag 

or pulled a weapon out of it.”); United States v. Moffitt, No. 2:22-cv-00067, 2023 

WL 4197110, at *6 (D. Vt. June 27, 2023) (finding government did not prove 

search-incident-to-arrest exception because “[w]hen the fanny pack was briefly 

opened and visually searched, [Moffitt] was handcuffed, in the process of being 

ankle cuffed, and was surrounded by law enforcement officers”); United States v. 

Williams, No. 2:19-cv-401, 2020 WL 4341722, at *11 (N.D. Ala. June 10, 2020) 

(“Once the officers took possession of the bag, handcuffed Williams, and had 
13

begun to lead him away from the bag, there is no basis for concluding that the bag 

remained within Williams grab area.”); United States v. Morillo, No. 08-cr-676, 

2009 WL 3254429, at *13 (E.D.N.Y. Aug. 12, 2009) (rejecting search-incident-toarrest exception because “officers credibly testified that [Morillo] had been 

handcuffed and placed up against the back passenger side of the police car, while 

they conducted a search of his backpack at the rear of the vehicle”); Jean v. State, 

369 So. 3d 1235, 1240–41 (Fla. Dist. Ct. App. 2023) (finding that after officers 

removed backpack and fanny pack from Jean and placed them on hood of patrol 

car, a search based on officer safety or destruction of evidence was no longer 

justified); State v. Ortiz, 539 P.3d 262, 268 (N.M. 2023) (denying search-incidentto-arrest exception when officer searched defendant’s purse after she “had been 

arrested and was in handcuffs”); State v. Lelm, 962 N.W.2d 419, 424 (N.D. 2021) 

(finding search-incident-to-arrest exception did not apply because “[o]nce 

detained, Lelm’s backpack was no longer within his reach”). 

Turning back to Iowa authority, even before Gant and Gaskins, our supreme 

court recognized that outside the context of vehicle searches, a search could be 

justified only as incident to arrest when it was conducted in an “area into which an 

arrestee might reach in order to grab a weapon or evidentiary items.” See State 

v. Canas, 597 N.W.2d 488, 493 (Iowa 1999), abrogated on other grounds by State

v. Turner, 630 N.W.2d 601 (Iowa 2001) (quoting Chimel, 395 U.S. at 763). Canas 

was standing about four feet from an unzipped bag on a nightstand in his hotel 

room when he was arrested. Id. at 491. But because he was not in the motel room 

when the officers searched the bag, their conduct was not permitted under the 

incident-to-arrest exception. Id. at 493. Like Canas, Scullark was separated from 
14

his fanny pack when police searched it. His fanny pack was no longer in an area 

“into which an arrestee might reach in order to grab a weapon or evidentiary items.” 

See id. (quoting Chimel, 395 U.S. at 763).

Having shown that Gant and Gaskins—as well as Canas—limit the scope 

of the search-incident-to-arrest exception, we still must tie up a couple loose ends. 

Beyond Jones and Allen, the district court relied on a third unpublished case: State 

v. Saxton, No. 14-0124, 2014 WL 7343522 (Iowa Ct. App. Dec. 24, 2014). There, 

our court approved the search of a backpack that was in Saxton’s immediate 

possession when he was arrested. Id. at *2. We held: “The fact that he ran and 

was not subdued until he had put a distance between his person and the backpack 

is not material as long as the search was contemporaneous with the arrest.” Id. 

Scullark argues that because Saxton predated Gaskins, it would come out 

differently today. He contends: “Accessibility, not merely contemporaneity, is the 

defining characteristic of the search incident to arrest exception under the Iowa 

Constitution.”

The State responds that the supreme court denied further review in Saxton 

after deciding Gaskins. And adds that Gaskins “did not change the analysis for 

searches incident to arrest when the purpose is officer safety or the prevention of 

the destruction of evidence.”

7 See Gaskins, 866 N.W.2d at 15. The first response

makes no difference because denial of further review has no precedential value. 

See Iowa Ct. R. 21.27(3). The State’s second point is true as far as it goes. But 

7 The State does not argue that Scullark’s fanny pack was part of his “person” and 

could be searched just as the pockets of his clothing. See Knapp, 917 F.3d at 

1166−67 (discussing United States v. Robinson, 414 U.S. 218 (1973)).
15

nothing in our record shows that the search of Scullark’s fanny pack was necessary 

for their safety or to prevent him from destroying evidence of the assault.

What the record does show is that Officer Bolstad believed from the start 

that he was entitled to search the fanny pack because he was making an arrest, 

telling Scullark as he handcuffed him that everything that he was passing to his 

friend would be inspected. But the notion of police entitlement to search 

someone’s nearby personal effects whenever they execute an arrest has been 

debunked by the United States Supreme Court. First by Justice Scalia in his 

special concurrence in Thornton v. United States:

[C]onducting a Chimel search is not the Government’s right; it is an 

exception—justified by necessity—to a rule that would otherwise 

render the search unlawful. If “sensible police procedures” require 

that suspects be handcuffed and put in squad cars, then police 

should handcuff suspects, put them in squad cars, and not conduct 

the search. Indeed, if an officer leaves a suspect unrestrained 

nearby just to manufacture authority to search, one could argue that 

the search is unreasonable precisely because the dangerous 

conditions justifying it existed only by virtue of the officer's failure to 

follow sensible procedures.

541 U.S. at 627 (Scalia, J., concurring).

And then by Justice Stevens in Gant:

The fact that the law enforcement community may view the State’s 

version of the Belton rule as an entitlement does not establish the 

sort of reliance interest that could outweigh the countervailing 

interest that all individuals share in having their constitutional rights 

fully protected. If it is clear that a practice is unlawful, individuals’

interest in its discontinuance clearly outweighs any law enforcement 

“entitlement” to its persistence.

 

556 U.S. at 349.

As its final defense of the suppression ruling, the State points to State v. 

Schiebout, No. 18-1662, 2019 WL 4309062 (Iowa Ct. App. Sept. 11, 2019), a post-
16

Gaskins decision in which our court upheld the warrantless seizure of an arrestee’s 

purse. But Schiebout is distinguishable from this case. While being arrested on 

an outstanding warrant, Schiebout abandoned her purse on the ground outside a 

church. Id. at *1. Finding that suspicious, police seized the purse. Id. Schiebout 

then “grabbed the purse” from the deputy and gave it to her mother. Id. “The 

deputy responded by taking the purse away from Schiebout’s mother.” Id. Our 

court found the purse was accessible to Schiebout at the time of the deputy’s 

seizure “as demonstrated by her ability to grab the purse and hand it to her 

mother.” Id. at *2. We viewed Schiebout’s conduct as exemplifying the need to 

seize the purse incident to her arrest to preserve evidence. Id. Notably, the deputy 

did not search Schiebout’s purse after placing her in the patrol car. Instead, he 

transported it to the sheriff's office where a drug-sniffing dog indicated the purse 

contained illegal drugs. Id. at *1. “The deputy then sought and obtained a search 

warrant for the purse. The subsequent search revealed several individual baggies 

of methamphetamine.” Id.

By contrast, when police seized Scullark’s fanny pack, he was already in 

handcuffs and—by the officer’s admission—could not reach the pack or its 

contents.8 And not only did police seize the fanny pack, put they went ahead and 

8 The Tenth Circuit adopted a four-factor test to determine the propriety of a search 

incident to arrest: “(1) whether the arrestee is handcuffed; (2) the relative number 

of arrestees and officers present; (3) the relative positions of the arrestees, officers, 

and the place to be searched; and (4) the ease or difficulty with which the arrestee 

could gain access to the searched area.” Knapp, 917 F.3d at 1168–69. The court 

added: “the degree to which arresting officers have separated an article from an 

arrestee at the time of the search is an important consideration.” Id. at 1169.

Applying these criteria, the search of Scullark’s fanny pack was not valid incident 

to his arrest.
17

searched it outside the patrol car without a warrant. As in Gaskins, the safety of 

the officers was not endangered by the contents of an item that the arrestee could 

not realistically access. See 866 N.W.2d at 14. On this record, we find that the 

State failed to prove the warrantless search was reasonable. Thus, we reverse 

the suppression order and remand for further proceedings.

REVERSED AND REMANDED.

Badding, J., concurs; Buller, J., dissents.
18

BULLER, Judge (dissenting).

Unlike the majority, I would not voyage into uncharted waters and resolve 

the issue related to construction of Iowa Code section 814.6(3) (2023), nor would 

I depart from existing case law to establish a new limitation on searches incident 

to arrest. I would instead decide only the questions before us, in a narrow way 

consistent with our unpublished cases, and leave for another day the new code 

provision’s meaning or the constitutional search question that—contrary to the 

impression one may gather from the majority opinion—has sharply divided courts. 

Because I believe the search finding methamphetamine in the defendant’s fanny 

pack was constitutionally reasonable, I dissent from the reasoning and outcome of 

the majority opinion.

First, I do not join the majority’s analysis on the meaning of “appellate 

adjudication of the reserved issue is in the interest of justice” in Iowa Code 

section 814.6(3). This is an issue of first impression before both this court and the 

supreme court. In his brief, Scullark offers a proposed construction of the statute 

that serves him. The State did not meaningfully address the issue in its brief, which 

I interpret as a concession that resolution of this particular conditional-guilty-plea 

appeal is in the interest of justice rather than wholesale agreement with the 

defendant’s reading of the statute. I would accept the State’s concession and go 

no further, finding this case satisfied the jurisdictional prerequisite of 

section 814.6(3). And I note this was the approach taken by a unanimous panel 

of our court in another case decided earlier this month. See State v. Sampson, 

No. 23-1348, 2024 WL 3688526, at *1 n.2 (Iowa Ct. App. Aug. 7, 2024). I reject 
19

the majority’s proposed gloss on the statute and reserve judgment on that issue 

until presented with full briefing from both sides.

Second, I would not discard our unpublished cases as the majority does, 

nor would I set off in a new direction based on out-of-state authorities regarding

searches incident to arrest. In expanding Gant beyond the context of automobile 

searches, and thus adopting a time-of-search rather than time-of-arrest rule, the 

majority reaches beyond the briefs to decide another issue of first impression in 

Iowa. And it does so by picking and choosing which precedent to follow—relying 

on a Gant dissent and a one-sided smattering of authorities from other 

jurisdictions. 

For me, the dispositive United States Supreme Court precedent is one the 

majority relegates to a parenthetical citation in a footnote: United States v. 

Robinson, 414 U.S. 218 (1973). There, the Supreme Court upheld a warrantless 

search of a cigarette pack even though the police had already taken the pack from 

the arrestee and thereby limited or eliminated his ability to access it at the time of

the search. Id. at 235. The Court reasoned: “The justification or reason for the 

authority to search incident to a lawful arrest rests quite as much on the need to 

disarm the suspect in order to take him into custody as it does on the need to 

preserve evidence on his person for later use at trial.” Id. at 234. Thus “[i]t is the 

fact of the lawful arrest which establishes the authority to search,” and such a 

search is reasonable under the Fourth Amendment. Id. at 235. 

There is no question Robinson remains good law. It was discussed at 

length in Riley v. California, where the Court described its holding in Robinson as 

“conclud[ing] that the search of Robinson was reasonable even though there was 
20

no concern about the loss of evidence, and the arresting officer had no specific 

concern that Robinson might be armed.” 573 U.S. 373, 384 (2014) (noting the 

Robinson “exception was limited to personal property immediately associated with 

the person of the arrestee” (cleaned up)). The Court, after exempting cell phones 

from searches incident to arrest, observed Robinson’s “categorical rule” otherwise 

“strikes the appropriate balance in the context of physical objects.” 573 U.S. 

at 386. And two years later in Birchfield v. North Dakota, the Court again reiterated 

the rule from Robinson and noted Riley “reaffirmed . . . and explained how the rule 

should be applied.” 579 U.S. 438, 460 (2016) (“In Robinson itself, [the fact of lawful 

arrest] meant that police had acted permissibly in searching inside a package of 

cigarettes found on the man they arrested.”). In my view, Robinson’s categorical

rule controls and this is an easy case.

Until now, our unpublished case law agreed with my assessment. See

State v. Schiebout, No. 18-1662, 2019 WL 4309062, at *2–3 (Iowa Ct. App. 

Sept. 11, 2019); State v. Saxton, No. 14-0124, 2014 WL 7343522, at *3 (Iowa Ct. 

App. Dec. 24, 2014); State v. Allen, No. 06-1770, 2007 WL 2964316, at *3 (Iowa 

Ct. App. Oct. 12, 2007); State v. Jones, No. 02-1972, 2003 WL 22699655, at *1 

(Iowa Ct. App. Nov. 17, 2003). In twisting past these on-point decisions, the 

majority points to State v. Canas, 597 N.W.2d 488 (Iowa 1999). But not 

convincingly. Canas only supports the majority opinion if you ignore the facts. 

Police arrested Canas outside a hotel room, and the supreme court unsurprisingly 

concluded the officers could not later enter the room and search it without a 

warrant. 597 N.W.2d at 491, 493. It is, of course, black-letter United States 

Supreme Court law that police may not enter a residence to conduct a warrantless 
21

search when an arrest is made outside the home. See Vale v. Louisiana, 399 

U.S. 30, 33–34 (1970) (“If a search of a house is to be upheld as incident to an 

arrest, that arrest must take place inside the house[.]”). And our supreme court 

expressly cited Vale for this proposition in Canas, 597 N.W.2d at 493. I think it’s 

beyond reasonable debate that Canas regulates arrests outside a residence, not 

searches of containers on or near a person—and the leading treatise supports my 

reading. See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth 

Amendment § 6.3 n.1 (6th ed. 2024) [hereinafter “LaFave”]. With our unpublished 

cases universally coming out the other way, and Canas’s facts inapposite at best, 

the majority scraps existing case law and invokes out-of-state authorities to fashion 

a new-to-Iowa limitation on searches incident to arrest. I strongly disagree with 

this endeavor.

This departure from the fact-bound analysis in our unpublished cases 

unnecessarily launches us into the middle of a nationwide dispute over whether 

the search-incident-to-arrest analysis should turn on whether the searched 

container is accessible to the arrestee at the time of the arrest or the time of the 

search. In other words, is the scope of searches incident to arrest subject to a 

“time-of-arrest” or “time-of-search” limitation?

In answering this question, the majority opinion gives a lopsided and 

incomplete recitation of where other courts have landed. While there is some 

authority that supports the majority’s position, the majority opinion curiously omits 

from discussion the equal or greater number of state and federal appellate courts 

that have expressly come out the other way and held that a container in the 

arrestee’s possession at the time of arrest may be searched without a warrant, 
22

regardless of whether the arrestee could access the container at the time of the 

search. See, e.g., Commonwealth v. Bembury, 677 S.W.3d 385, 406 (Ky. 2023) 

(“[W]e conclude that a container capable of carrying items, such as a backpack, 

can be considered part of an arrestee’s ‘person’ for the purposes of a search 

incident to lawful arrest.”), cert. denied sub nom. Bembury v. Kentucky, 144 

S. Ct. 1459 (2024)9; United States v. Perez, 89 F.4th 247, 261 (1st Cir. 2023) (reaffirming as law of the circuit that the search of “personal property carried by an 

arrestee at the time of the arrest” is permissible per United States v. Eatherton, 

519 F.2d 603, 610 (1st Cir. 1975) (affirming search of a briefcase incident to arrest 

even though the arrestee “had been subdued and the case removed from his 

possession and beyond his possible reach”)); Price v. State, 662 S.W.3d 428, 438 

(Tex. Crim. App. 2020) (adopting a time-of-arrest rule, at least for containers in the 

arrestee’s immediate possession that would inevitably be taken to the stationhouse 

upon arrest); State v. Brownlee, 461 P.3d 1015, 1021–22 (Or. Ct. App. 2020) 

(taking a time-of-arrest approach and expanding the scope of the search incident 

to items possessed at the time of arrest and items or area “immediately associated 

with the arrestee at that time”); Greene v. State, 585 S.W.3d 800, 806–08 

(Mo. 2019) (rejecting expansion of Gant beyond automobiles, applying Robinson

and its progeny to affirm “a reasonably delayed search of items found on a 

9 The defendant in Bembury petitioned for certiorari on this very issue. The petition 

described the time-of-arrest vs. time-of-search issue as concerning “a deep split 

among federal and state lower courts.” Petition for Writ of Certiorari, Bembury v. 

Kentucky, No. 23-802 (2024), 2024 WL 305621, at *11, *13–24. Kentucky’s brief 

in opposition acknowledged the divide among courts but urged that case did “not 

cleanly contribute to [the] split.” Brief in Opposition, Bembury v. Kentucky, 

No. 23-802 (2024), 2024 WL 1421514, at *23. 
23

defendant’s person at the time of arrest”—specifically a cigarette pack); United 

States v. McLaughlin, 739 F. App’x 270, 275–76 (5th Cir. 2018) (affirming search 

of envelope on defendant’s person at time of arrest, even though defendant could 

not access envelope after he was “handcuffed and beyond reaching distance”); 

State v. Mercier, 883 N.W.2d 478, 493 (N.D. 2016) (“Because Mercier had the 

backpack in his actual possession immediately preceding his lawful arrest, we 

conclude a search thereof was reasonable.”)10; People v. Cregan, 10 

N.E.3d 1196, 1203–07 (Ill. 2014) (holding objects and containers physically 

possessed by arrestees at the time of arrest are subject to search incident to 

arrest); State v. Adams, 45 N.E.3d 127, 159 (Ohio 2015) (“[T]he right to search 

incident to arrest exists even if the item is no longer accessible to the arrestee at 

the time of the search. As long as the arrestee has the item within his immediate 

control near the time of the arrest, the item can be searched.” (citation omitted)); 

State v. Byrd, 310 P.3d 793, 798 (Wash. 2013) (surveying in-state cases and 

noting, “Washington courts have long applied this [time-of-arrest] rule, holding that 

searches of purses, jackets, and bags in the arrestee’s possession at the time of 

arrest are lawful under both the Fourth Amendment and article I, section 7 [of the 

Washington Constitution].”); People v. Marshall, 289 P.3d 27, 31 (Colo. 2012) 

(rejecting expanding Gant to searches of a person and holding, in the context of a 

backpack possessed at the time of arrest but not searched until the defendant was 

10 The majority cites a different North Dakota case: State v. Lelm, 962 N.W.2d 419 

(N.D. 2021). But Lelm involved search of a bag inside an automobile and thus 

implicated Gant. Id. at 422 (noting Lelm was a passenger and the backpack was 

“on his lap” while inside the car). This case concerns search of a person and his 

effects—not an automobile. And Lelm did not purport to overrule Mercier, which 

remains the applicable North Dakota authority.
24

secured inside a patrol vehicle, “[t]hat [the defendant] was secure has no bearing 

on the analysis in this case because [the defendant] forfeited his expectation of 

privacy in the backpack when he was arrested”); United States v. Perdoma, 621 

F.3d 745, 750–53 (8th Cir. 2010) (affirming search incident to arrest of a bag after 

the defendant was handcuffed and an officer “had taken control of the bag,” when 

the bag remained in the vicinity of where the defendant was arrested). 

These cases largely speak for themselves, but a few highlights stick out:

• From an originalist or historical perspective, it seems clear the 

Framers would have no constitutional concerns over a search incident 

to arrest of “luggage” or “saddlebags” in a person’s possession. E.g., 

Price, 662 S.W.3d at 435 (citing Birchfield’s discussion of the Fourth 

Amendment’s original meaning); Mercier, 883 N.W.2d at 487–88 (same).

• The time-of-arrest rule follows logically from Robinson and is 

consistent with all existing United States Supreme Court precedent. 

E.g., Bembury, 677 S.W.3d at 404–06; Mercier, 883 N.W.2d at 488–89; 

Cregan, 10 N.E.3d at 1202–03; Marshall, 290 P.3d at 29–30.

• The best reading of Gant is that it does not extend beyond 

automobiles to the search incident to arrest of a person and his or her

effects. E.g., Mercier, 883 N.W.2d at 489 (“Nothing in the Court’s opinion 

in Gant, however, suggested it was meant to limit or abrogate the Robinson

holding of a search of the arrestee incident to arrest.”), 490 (“Because the 

Supreme Court’s decision in Gant does not restrict the lawful search of an 

arrestee, there is no requirement that the arrestee be within reaching 

distance or have the item within his immediate control once it is seized as 

part of the lawful arrest.”); Cregan, 10 N.E.3d at 1202 (rejecting a “broad” 

reading of Gant and noting it only “clarified and limited the search-incidentto-arrest exception as applied to vehicles”); Byrd, 310 P.3d at 794 (holding 

Gant did not “restrict[ ] searches of the arrestee’s person”); Marshall, 289 

P.3d at 30 (rejecting expansion of Gant and noting “a factual distinction 

between searches of cars and persons”).

• And practical considerations support the time-of-arrest rule because 

it permits officers to secure suspects without drawing artificial lines 

between a person and their pockets or immediate possessions (which 

may understandably be secured in the course of an arrest to ensure 

officer safety). E.g., Byrd, 310 P.3d at 798 (“The time of arrest rule reflects 

the practical reality that a search of the arrestee’s ‘person’ to remove 

weapons and secure evidence must include more than his literal 
25

person[,] . . . [and] the same exigencies that justify searching an arrestee 

prior to placing him into custody extend not just to the arrestee’s clothes, 

however we might define them, but to all articles closely associated with his 

person.”); see also LaFave, § 5.5(a) n.4 (“The ‘time of arrest’ rule is a 

common-sense way to determine whether a container capable of carrying 

items, such as a backpack, is considered part of an arrestee’s person and 

therefore subject to being searched upon lawful to arrest . . . ”).11

It is not clear why the majority overlooks these decisions and their (in my 

view) convincing analysis. But an answer can perhaps be found in footnote seven 

of the majority opinion, where the majority claims “[t]he State does not argue that 

Scullark’s fanny pack was part of his ‘person’ and could be searched just as the 

pockets of his clothing.” This is quite a myopic and hyper-technical reading of the 

briefing. The State’s position at the suppression hearing and on appeal was that 

this was a lawful search incident to arrest. This is at least as specific as Scullark’s 

motion to suppress—which cited no case law but instead vaguely asserted the 

search was “in violation of the Fourth Amendment to the Constitution of the United 

States and article I, section 8 of the Iowa Constitution.” And the rationale of this 

dissent is essentially the rationale adopted by the district court, drawing on our 

unpublished cases. Again curiously, the majority opinion has no trouble expanding 

the defendant’s argument to embrace this issue of first impression (for example, 

more than half of the cases cited by the majority do not appear in either party’s 

11 The majority cites a different portion of LaFave’s treatise and claims it supports 

the decision to reverse here. See LaFave, § 7.1(c). Not so. The portion of the 

treatise cited by the majority comes from a chapter titled: “Search and Seizure of 

Vehicles.” And it draws on the “quite specific” language from Gant regulating those 

who are “unsecured and within reaching distance of the passenger compartment.” 

Id. (quoting Gant, 556 U.S. at 343). At risk of beating a dead horse to make an 

obvious point, this is not a vehicle case. This case is about search of a person 

and his personal effects. Perhaps unsurprisingly, the chapter of LaFave’s treatise 

I cite is titled: “Seizure and Search of Persons and Personal Effects.” Id. § 5.5(a). 

And it does not adopt the position claimed by the majority. See id.
26

briefs), yet it interprets the State’s position and the district court ruling in an 

artificially narrow way. If we are going to drift beyond the briefs and start 

freelancing our research, we ought to at least do so in a way that is fair to all parties 

and the district judge whose work we are reviewing.

If forced to decide this issue of first impression, I would find the time-ofarrest authorities compelling, consistent with constitutional principles and 

precedent, and workable in practice. The time-of-arrest rule would require we 

affirm here, as even the majority acknowledges Scullark was “wearing [the] fanny 

pack around his waist” when arrested. For the reasons expressed in the cited 

authorities and United States Supreme Court case law, I believe the time-of-arrest 

rule is what this court or our supreme court should adopt in an appropriate case.

But I see another error in the majority’s analysis, independent of the timeof-arrest and time-of-search question: the majority delves into subjective review of 

the arresting officer’s intent and beliefs about the proper scope of the search. The 

majority opinion opens by quoting the officer and later opines “nothing in our record 

shows that the search of [the] fanny pack was necessary for [officer] safety.” But, 

under controlling case law, these subjective case-by-case inquiries are neither 

permissible nor relevant. The Supreme Court in Robinson expressly rejected both 

consideration of officers’ “subjective fear” that an arrestee was armed and any form 

of “case-by-case adjudication,” instead favoring a bright-line rule. 414 U.S. 

at 235-36. In other words, the validity of a search incident to arrest does not 

depend on “the probability in a particular arrest situation that weapons or evidence 

[will] in fact be found.” Id. at 235; see also Michigan v. DeFillippo, 443 U.S. 31, 35 

(1979) (“The constitutionality of a search incident to an arrest does not depend on 
27

whether there is any indication that the person arrested possesses weapons or 

evidence.”). This portion of the Robinson analysis, like what was discussed above, 

is still good law: it was discussed at length in Birchfield, where the Court described

Riley as having “reaffirmed ‘Robinson’s categorical rule’” and emphasized the 

legality of a search incident to arrest “does not depend on whether a search of a 

particular arrestee is likely to protect officer safety or evidence.” Birchfield, 579 

U.S. at 460; see also State v. Wissing, 379 P.3d 413, 420–22 (Kan. Ct. App. 2016)

(citing Robinson and Birchfield to reach the same conclusion). The majority errs 

and diverges from controlling authority when it analyzes the record contrary to 

these holdings.

As a policy matter, I am also troubled by implications the majority opinion 

will have for officer safety. The officer in this case testified he did not protest or 

physically interfere with Scullark handing the fanny pack to his friend because the 

officer “didn’t want to escalate the situation because [he] was the only officer inside 

the residence at that time.” Under the time-of-search rule, the next police officer 

facing the facts of this case would have to weigh escalating the use of force against

potentially forfeiting a search of the container for weapons or contraband incident 

to arrest. In contrast, under the time-of-arrest rule, police officers are not forced to 

make this spit-second calculation that could potentially result in injury or loss of life 

and can instead rely on the bright-line categorical rule that items and containers in 

the suspect’s possession at time of arrest are subject to search—whether the 

search happens before or immediately after the suspect is safely restrained and 

no longer an immediate threat. I also view the officer’s conduct on the body 

camera differently than the majority, as it seems clear on my viewing that the officer 
28

was doing his best to de-escalate a highly charged encounter in which he was the 

only officer in the house and nonetheless allowed Scullark’s friends to surround 

him and engage with Scullark—even while Scullark was uncooperative. It runs 

counter to principles of reasonableness for us to suppress evidence because the 

officer chose not to escalate and use greater force during Scullark’s arrest.

As a penultimate note, it is also unclear to me whether the majority grounds 

its decision under the state or federal constitution or perhaps both. Part of the 

confusion may flow from the majority’s reliance on State v. Gaskins—which is, in 

my opinion, precedent of questionable vitality. See 866 N.W.2d 1 (Iowa 2015); 

see also State v. Kilby, 961 N.W.2d 374, 382 (Iowa 2021) (overruling a case that 

“relied heavily” on Gaskins). I do not believe Gaskins compels or supports the 

result in this case. First, Gaskins is easy to distinguish, as it involved search of a 

locked safe within the defendant’s car when the defendant and his passenger were 

secured in a separate police vehicle—as opposed to a bag within the actual 

possession of a suspect or his friend. See 866 N.W.2d at 7–8, 14. And the 

Gaskins court specifically reserved for another day cases “in which the security of 

an arresting officer is implicated” or “when the arrested person is within reach of 

contraband and thus able to attempt to destroy or conceal it.” Id. at 15. 

But if, as the majority seems to conclude, Gaskins undermines federal 

cases like Robinson or requires the suppression of evidence on the facts of this 

case under the state constitution, it probably ought to be overruled. Gaskins was 

sharply divided and deeply fractured, with a four-justice majority, a two-justice 

special concurrence, a three-justice special concurrence, and two three-justice 

dissents. See generally id. As one of the Gaskins dissenters observed, the 
29

rationale in that case—even more so if expanded to the facts here—“unduly 

restricts police searches and creates practical problems undermining public 

safety.” Id. at 38 (Waterman, J., dissenting). Or, as the other dissent put it, the 

rule adopted by the Gaskins majority “compromises officer safety and creates an 

additional opportunity for the destruction or concealment of evidence.” Id. at 60 

(Zager, J., dissenting). In reading the Gaskins majority and concurrences’ many 

pages, there is little or no textual grounding in either constitution. See id. at 52-53, 

52 n.27 (Waterman, J., dissenting) (quoting the State’s brief to comment on the 

text: “One expects that, if the semicolon in Article I, section 8 fundamentally altered 

the meaning of that provision, this argument would have emerged at some point 

within the first 150 years this Court interpreted the Iowa Constitution—not for the 

first time in 2010.”). I believe Gaskins was wrongly decided. And while it is my 

duty as an intermediate appellate judge to apply supreme court precedent, I 

disagree with the majority that Gaskins supports the outcome here.

Last, a return to the facts and the issue at the heart of all this legal wrangling. 

Scullark was lawfully arrested with methamphetamine in a fanny pack around his 

waist, and he handed the pack to his friend in a bid to prevent police from finding 

his drugs. Both the Fourth Amendment and article I, section 8 permit reasonable

searches. The majority concludes it was constitutionally unreasonable for police 

to secure a potentially dangerous suspect and search a fanny pack the suspect 

handed to his friend after the arrest. I disagree, as I believe our constitutions—to 

say nothing of our case law and historical practice—permit this commonsense 

policework.