IN THE SUPREME COURT OF IOWA

No. 17–0367

Filed June 28, 2019

STATE OF IOWA,

Appellee,

vs.

SCOTTIZE DANYELLE BROWN,

Appellant. 

Appeal from the Iowa District Court for Black Hawk County, 

Nathan A. Callahan, District Associate Judge. 

The defendant challenges her conviction for operating a motor 

vehicle while intoxicated under Iowa Code section 321J.2 (2017), arguing 

she was subjected to an impermissible pretextual stop. AFFIRMED. 

Mark C. Smith (until withdrawal), State Appellate Defender, and 

Theresa R. Wilson, Assistant Appellate Defender, for appellant. 

Thomas J. Miller, Attorney General, Kelli Huser (until withdrawal), 

Kevin Cmelik, and Israel Kodiaga Assistant Attorneys General, Brian 

Williams, County Attorney, and Charity Sullivan, Assistant County 

Attorney, for appellee. 

Rita Bettis of ACLU of Iowa Foundation, Des Moines; Russell E. 

Lovell II, Des Moines; David S. Walker, Windsor Heights; and Andrew B. 

Duffelmeyer (until withdrawal) of Glazebrook & Hurd, LLP, Des Moines, for 
2

Amici Curiae American Civil Liberties Union of Iowa, the NAACP, League 

of United Latin American Citizens of Iowa, and 1000 Kids for Iowa. 

Alan R. Ostergren, Muscatine, for amicus curiae Iowa County 

Attorneys Association. 
3

CHRISTENSEN, Justice.

This case requires us to decide whether a motorist who breaks a 

traffic law may lawfully be stopped if the officer was motivated by 

investigative reasons for the stop. Around 12:25 a.m., a police officer 

observed the defendant making an improper turn and decided to follow the 

defendant. At a stoplight, the officer noticed the defendant’s vehicle had 

an improperly functioning license plate light and ran the vehicle 

information for the vehicle’s registered owner—who was not the defendant. 

The vehicle information revealed the registered owner’s affiliation to gang 

activity. Subsequently, the officer pulled the defendant over, which led to 

his discovery of the defendant’s open beer container in the center 

cupholder. 

The State charged the defendant with operating while intoxicated in 

violation of Iowa Code section 321J.2 (2016). The defendant moved to 

suppress all evidence obtained after the stop, arguing the officer conducted 

it in violation of the Fourth Amendment of the United States Constitution 

and article I, section 8 of the Iowa Constitution because the officer’s 

reasons for the stop were not the traffic violations themselves. The district 

court denied the motion to suppress and later convicted the defendant 

following a bench trial on the minutes. Consistent with precedent in Iowa 

and the vast bulk of authority elsewhere, we affirm the district court 

judgment because the subjective motivations of an individual officer for 

making a traffic stop are irrelevant as long as the officer has objectively 

reasonable cause to believe the motorist violated a traffic law. 

I. Background Facts and Proceedings.

On October 17, 2015, Officer Justin Brandt of the Waterloo Police 

Department observed a black Lincoln Navigator at around 12:25 a.m. in 

the City of Waterloo. Officer Brandt observed the driver accelerating at a 
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yellow light and passing to the left of a moving vehicle before veering across 

the centerline. The traffic light changed from yellow to red as the Lincoln 

Navigator passed through the intersection. Officer Brandt followed the 

driver to another intersection, where he also observed the driver’s license 

plate light was not properly functioning. At the red light, he ran the vehicle 

information for the vehicle’s registered owner—who was not the driver—

and discovered the registered owner’s association with local gang activity. 

After realizing the registered vehicle owner’s gang affiliation, Officer 

Brandt decided to stop the vehicle. He activated his emergency lights, but 

the driver continued. The driver eventually stopped the vehicle after 

Officer Brandt activated his audible siren. Officer Brandt approached the 

vehicle and immediately smelled an odor of alcohol coming from the driver; 

he also observed an open can of beer in the center cupholder. The driver 

denied ownership of the open container but admitted to drinking prior to 

driving. Officer Brandt obtained the driver’s name and date of birth 

because the driver did not have a license with her. The driver was 

identified as Scottize Brown. Officer Brandt determined Brown was driving 

with a suspended license and transported her to the police station, where 

she failed several field sobriety tests and refused to submit to a breath test. 

Brown was charged with a second offense of operating a motor 

vehicle while intoxicated, an aggravated misdemeanor, in violation of Iowa 

Code section 321J.2. She filed a motion to suppress on January 15, 2016, 

claiming she was unlawfully subjected to a pretextual stop in violation of 

both article I, section 8 of the Iowa Constitution and the Fourth 

Amendment of the United States Constitution. The district court held a 

hearing on the motion on February 3, and it denied Brown’s motion on 

February 16, explaining, “Since there were traffic violations that were 
5

objectively observed by Officer Brandt, any subjective reasons that may 

have gone into his decision to stop the vehicle do not matter.” 

Brown subsequently agreed to a trial on the minutes, and the 

district court found her guilty on June 21. She was sentenced to 

incarceration in Black Hawk County jail, “351 days suspended, 14 days 

imposed,” and to probation for one to two years. The district court also 

ordered Brown to pay a $1875 fine with surcharge, a $10 DARE surcharge, 

court costs, and attorney fees. Brown appealed on March 7, 2017, 

requesting that we vacate her conviction and sentence and remand her 

case for dismissal because she was subjected to an impermissible 

pretextual stop. We retained Brown’s appeal. 

II. Standard of Review. 

“When a defendant challenges a district court’s denial of a motion to 

suppress based upon the deprivation of a state or federal constitutional 

right, our standard of review is de novo.” State v. Brown, 890 N.W.2d 315, 

321 (Iowa 2017). We examine the entire record and “make an independent 

evaluation of the totality of the circumstances.” State v. Meyer, 543 

N.W.2d 876, 877 (Iowa 1996), abrogated in part on other grounds by 

Knowles v. Iowa, 525 U.S. 113, 115, 118–19, 119 S. Ct. 484, 487, 488 

(1998). In doing so, we evaluate each case “in light of its unique 

circumstances.” State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (quoting 

State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)). 

Ineffective-assistance-of-counsel claims are based in the Sixth 

Amendment of the United States Constitution and article I, section 10 of 

the Iowa Constitution. Strickland v. Washington, 466 U.S. 668, 684–86, 

104 S. Ct. 2052, 2063–64 (1984); State v. Schlitter, 881 N.W.2d. 380, 388 

(Iowa 2016). We normally preserve ineffective-assistance-of-counsel 

claims for postconviction-relief proceedings. State v. Harrison, 914 N.W.2d 
6

178, 206 (Iowa 2018). But, “we will address such claims on direct appeal 

when the record is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d 

20, 22 (Iowa 2005). We review ineffective-assistance-of-counsel claims de 

novo. Schlitter, 881 N.W.2d at 388.

III. Analysis. 

The United States Supreme Court has established an objective test 

to evaluate the reasonableness of a traffic stop under the Fourth 

Amendment of the United States Constitution. In prior cases, we have 

applied this objective test when evaluating whether law enforcement 

violated a defendant’s Fourth Amendment rights by making a pretextual 

traffic stop. See State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996); see 

also State v. Cline, 617 N.W.2d 277, 280–81 (Iowa 2000) (en banc), 

abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 

(Iowa 2001). Brown now asks us to take a different approach under the 

Iowa Constitution. For the reasons explained below, we decline to do so. 

We first address Brown’s constitutional claim, and then turn to her 

ineffective-assistance-of-counsel claim based on an argument not raised 

during her motion to suppress in the district court.

A. Subjective Reasons to Stop Motorists.

1. The Fourth Amendment. The Fourth Amendment of the United 

States Constitution protects individuals from unreasonable searches and 

seizures. Whren v. United States, 517 U.S. 806, 809, 116 S. Ct. 1769, 

1772 (1996); see also U.S. Const. amend. IV (“The right of the people to be 

secure in their persons . . . against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon probable 

cause . . . .”). Under the Fourth Amendment, the temporary detention of 

a motorist during a traffic stop is a “seizure,” which is “subject to the 

constitutional imperative that it not be ‘unreasonable’ under the 
7

circumstances.” Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772. 

Generally, a traffic stop is reasonable when the police have probable cause 

or reasonable suspicion to believe that the motorist violated a traffic law. 

Navarette v. California, 572 U.S. 393, 401–02, 134 S. Ct. 1683, 1690 

(2014); Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772; State v. Tague, 676 

N.W.2d 197, 204 (Iowa 2004). 

In Whren, the United States Supreme Court unanimously held that 

an officer’s “[s]ubjective intentions play no role in ordinary, probable-cause 

Fourth Amendment analysis.” 517 U.S. at 813, 116 S. Ct. at 1774. In 

that case, police officers stopped a motorist and his passenger in a “high 

drug area” after observing the motorist turning without signaling then 

speed “off at an ‘unreasonable speed.’ ” Id. at 808, 116 S. Ct. at 1772. 

Upon stopping the motorist, one of the officers observed drugs in the 

motorist’s hands. Id. at 808–09, 116 S. Ct. at 1772. The officers arrested 

the motorist and his passenger and retrieved various illegal drugs from the 

vehicle. Id. at 809, 116 S. Ct. at 1772. Both the motorist and his 

passenger were convicted of violating numerous drug laws and sought to 

have their convictions reversed, arguing the district court should have 

granted their suppression motions since the traffic stop was pretextual. 

Id. 

The petitioners in Whren asked the Supreme Court to adopt a 

different reasonableness test for traffic stops since the traffic code is so 

expansive that it provides officers with discretion to make pretextual stops 

based on factors such as race. Id. at 810, 116 S. Ct. at 1773. Specifically, 

the petitioners claimed the test for traffic stops should be “whether a police 

officer, acting reasonably, would have made the stop for the reason given.” 

Id. In rejecting petitioners’ test, the Supreme Court noted, “Not only have 

we never held, outside the context of inventory search or administrative 
8

inspection . . . , that an officer’s motive invalidates objectively justifiable 

behavior under the Fourth Amendment; but we have repeatedly held and 

asserted the contrary.” Id. at 812, 116 S. Ct. at 1774. The Supreme Court 

“agree[d] with petitioners that the Constitution prohibits selective 

enforcement of the law based on considerations such as race.” Id. at 813, 

116 S. Ct. at 1774. However, it declared “the constitutional basis for 

objecting to intentionally discriminatory application of laws is the Equal 

Protection Clause, not the Fourth Amendment.” Id. 

The Supreme Court acknowledged the expansive nature of the traffic 

code and the potential for an “unsettling show of authority” that enforcing 

such an expansive code created. Id. at 817, 116 S. Ct. at 1776 (quoting 

Delaware v. Prouse, 440 U.S. 648, 657, 99 S. Ct. 1391, 1398 (1979)). 

Nevertheless, it was “aware of no principle that would allow [it] to decide 

at what point a code of law becomes so expansive and so commonly 

violated that infraction itself can no longer be the ordinary measure of the 

lawfulness of enforcement.” Id. at 818, 116 S. Ct. at 1777. It concluded, 

“[F]or the run-of-the-mine case, which this surely is, we think there is no 

realistic alternative to the traditional common-law rule that probable 

cause justifies a search and seizure.” Id. at 819, 116 S. Ct. at 1777. 

On appeal, Brown concedes that the officer’s subjective motivations 

are irrelevant under the Fourth Amendment to the United States 

Constitution so long as there is probable cause to support the stop. We 

therefore turn to the question whether the Iowa Constitution forbids 

stopping a motorist who violated the law if that was not the officer’s real 

reason for the stop.

2. Article I, section 8. The question before us is whether, under the 

Iowa Constitution, a traffic stop for a traffic violation is “reasonable” even 

if the violation did not happen to be the officer’s motivation for the stop. 
9

To put it another way, we must decide whether a motorist who violates a 

traffic law has a justified expectation that she will be able to continue down 

the road without interruption unless that violation is the officer’s 

motivation for the stop. As we will explain herein, we do not think article 

I, section 8 draws such fine lines. It is reasonable to stop a motorist based 

on reasonable suspicion that the motorist violated the law.

i. Scope of article I, section 8. Article I, section 8 of the Iowa 

Constitution protects persons against “unreasonable seizures.” Iowa 

Const. art. I, § 8 (“The right of the people to be secure in their persons . . . 

against unreasonable seizures and searches shall not be violated; and no 

warrant shall issue but on probable cause . . . .”). It should be noted that 

article I, section 8 and the Fourth Amendment have only minimal textual 

differences. Article I, section 8 employs a semicolon between the 

reasonableness and warrant clauses while the Fourth Amendment uses a 

comma between these two clauses.1 State v. Gaskins, 866 N.W.2d 1, 6 

(Iowa 2015). 

Current members of our court have disagreed about the semicolon’s 

significance. Compare State v. Short, 851 N.W.2d 474, 483 (Iowa 2014) 

(“This semicolon suggests the framers believed that there was a 

relationship between the reasonableness clause and the warrant 

clause . . . .”), with id. at 522 (Mansfield, J., dissenting) (“I do not think 

one can use this inconsequential punctuation difference to justify a 

different interpretation of article I, section 8.”). “One expects that, if the 

semicolon in [a]rticle I, section 8 fundamentally altered the meaning of that 

provision, this argument [over differences in punctuation marks] would 

 1We also note a textual difference for order of appearance; the Iowa Constitution 

reverses the order of “searches and seizures.” 
10

have emerged at some point within the first 150 years . . . .” Gaskins, 866 

N.W.2d at 52 n.27 (Waterman, J., dissenting). 

There is also evidence in the 1857 debates over the Iowa 

Constitution that our framers wanted our bill of rights to provide similar 

protection to the Federal Bill of Rights when they adopted similar 

language. For example, George W. Ells proposed an amendment at the 

convention to include a counterpart to the Federal Due Process Clause in 

the Iowa Constitution, noting, “[T]he 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.” 1 The Debates of the 

Constitutional Convention of the State of Iowa 101–02 (W. Blair Lord rep., 

1857), https://www.statelibraryofiowa.org/services/collections/lawlibrary/iaconst (emphasis added). Ellis noted his desire for his proposed 

due process amendment for the Iowa Constitution to be verbatim to the 

Federal Due Process Clause. Id. at 101. If the framers of the Iowa 

Constitution wanted to create greater search and seizure protections for 

Iowans, the nearly identical language of article I, section 8 to the Fourth 

Amendment does not reflect this desire. 

We generally “interpret the scope and purpose of the Iowa 

Constitution’s search and seizure provisions to track with federal 

interpretations of the Fourth Amendment” because of their nearly identical 

language. State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008). 

Nevertheless, we acknowledge our duty to interpret article I, section 8 

independently. See Cline, 617 N.W.2d at 292–93. “We jealously guard our 

right to construe a provision of our state constitution differently than its 

federal counterpart, though the two provisions may contain nearly 

identical language and have the same general scope, import, and purpose.” 
11

State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016) (quoting State v. 

Jackson, 878 N.W.2d 422, 442 (Iowa 2016)). 

However, as to article I, section 8, we are not writing on a blank 

slate. In State v. Griffin, 691 N.W.2d 734 (Iowa 2005), which was decided 

after Cline, we ruled unanimously as follows:

We now hold that our pronouncement in Meyer was not only 

a correct application of federal law but also accurately 

described the validity of a pretextual arrest under article I, 

section 8 of the Iowa Constitution for purposes of sustaining 

a search incident to that arrest. If probable cause exists for 

an arrest to be made, the motive for making the arrest does 

not limit the right to conduct a search incident thereto.

Id. at 737. And in State v. Kreps, 650 N.W.2d 636 (Iowa 2002), also decided 

after Cline, we said,

The motivation of the officer stopping the vehicle is not 

controlling in determining whether reasonable suspicion 

existed. The officer is therefore not bound by his real reasons 

for the stop.

Id. at 641 (citation omitted).2 So, the question today is whether we should 

overturn our article I, section 8 precedent.

As already noted, we have similarly held under article I, section 8 

that “the motive for making the arrest does not limit the right to conduct 

a search incident thereto” under the Iowa Constitution “[i]f probable cause 

exists for an arrest to be made.” Griffin, 691 N.W.2d at 737. In Griffin, an 

officer stopped the defendant due to an improperly illuminated rear license 

plate and an excessively loud muffler. Id. at 736. The officer’s “computer 

check indicated a recent prior conviction for failing to have proof of liability 

insurance for the vehicle he was driving and prior drug-related arrests.” 

Id. The defendant informed the officer that he did not have liability 

 2In State v. Harrison, 846 N.W.2d 362 (Iowa 2014), we quoted this language from 

Kreps with approval. Id. at 366. However, in that case we also said, “The parties did not 

raise on appeal the issue of whether a pretextual traffic stop is valid. We therefore do not 

reach that issue.” Id. at 364 n.1.
12

insurance, and the officer arrested the defendant for all three traffic 

violations he observed. Id. The officer’s search of the vehicle incident to 

arrest revealed drugs, and the officer testified at the suppression hearing 

that he would not have arrested the defendant if he had not suspected the 

vehicle contained drugs based on the defendant’s prior drug convictions. 

Id. We rejected the defendant’s claim that the evidence obtained from the 

search should have been suppressed because it was obtained incident to 

a pretextual arrest in violation of article I, section 8 of the Iowa 

Constitution. Id. at 735–36.

Brown asks us to decline to follow our approach Griffin and Kreps

in evaluating the constitutionality of pretextual traffic stops under the 

Iowa Constitution.

ii. Brown’s proposed burden-shifting framework. Brown proposes 

that we interpret article I, section 8 more broadly than the Fourth 

Amendment and adopt a burden-shifting test for evaluating traffic stops. 

Under this burden-shifting test, a court would allow the State to provide 

an objective basis for the stop, allow the defendant to rebut that with 

evidence of subjective motivation, and then allow the State to come forward 

and show that the objective basis was the real reason for the stop. We find 

this test unworkable for a number of reasons.

First, Brown’s proposed burden-shifting test is difficult to 

administer. While this test appears objective on its face, it is ultimately a 

subjective standard that focuses on the officer’s state of mind at the time 

of the traffic stop. “ ‘[O]bjective evidence’ of . . . general police practice is 

simply an aggregation of the subjective intentions of officers in the 

regions.” United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). For 

example, in Iowa, police practices can range from county to county. The 

usual practice of police officers in Polk County may not represent the usual 
13

practice of police officers in Shelby County, as the problems police officers 

must regularly confront in the course of their job duties quite possibly 

differ between rural and urban counties. Likewise, what may seem like a 

common and reasonable practice for a narcotics officer may seem 

unreasonable to the highway patrolman. Consequently, the 

reasonableness, and thus the validity, of the officer’s traffic stop may turn 

on the county in which it is made or the detaining officer’s law enforcement 

division. Yet, the search and seizure protections of article I, section 8 and 

the Fourth Amendment do not vary, nor “can [they] be made to turn upon 

such trivialities.” Whren, 517 U.S. at 815, 116 S. Ct. at 1775. 

Brown’s burden-shifting test also fails to consider that there are 

often a number of factors influencing an officer’s decision-making process. 

We have previously concluded that parking in a frequently burglarized 

area can lead to an officer’s decision to stop a motorist. State v. 

Richardson, 501 N.W.2d 495, 497 (Iowa 1993) (per curiam). So, too, can 

pouring a can of beer out onto the pavement of a tavern parking lot at “a 

time notorious for drunken driving.” State v. Rosenstiel, 473 N.W.2d 59, 

62 (Iowa 1991), overruled on other grounds by Cline, 617 N.W.2d at 281. 

It is unclear under the proposed burden-shifting test when these 

situations become pretextual. Our search and seizure jurisprudence 

requires more certainty and uniformity than the burden-shifting test 

provides. 

Second, Brown bases her request for a burden-shifting test on 

concerns of racial profiling. Brown does not argue that Officer Brandt 

knew she was African-American before initiating the traffic stop. Instead, 

the observed traffic violations precipitated Officer Brandt discovering the 

vehicle’s registered owner’s gang affiliation. A key element that often 

defines gangs or gang behavior is “violent or criminal behavior as a major 
14

activity of group members.” William B. Sanders, Gangbangs and DriveBys 10 (1994).

Though we acknowledge that police discretion can lead to racial 

profiling, we are not persuaded that Brown’s approach would have any 

significant impact on eliminating racial profiling. Racial profiling concerns 

existed when we decided Griffin, and many of the racial profiling studies 

Brown cites predate Griffin. An officer who engages in racial profiling is 

also likely to be willing to lie about it. We are hopeful, though, that the 

spread of technology such as body cams, dash cams, and cell phone videos 

taken by private citizens will enable our society to better monitor and 

reduce racial profiling in the future.

Third, the burden-shifting test is also unnecessary to protect 

citizens from unlawful searches and seizures. “[T]he harsh reality [is] that 

we lack the ability to control all the variables leading to disparate 

enforcement. In few areas is this more observable than in our criminal 

justice system.” Jeff D. May et al., Pretext Searches and Seizures: In Search 

of Solid Ground, 30 Alaska L. Rev. 151, 184–85 (2013) [hereinafter May et 

al.]. The criminal justice system is rife with “so many variables that 

influence who becomes subject to prosecution that it is difficult to isolate 

any one causal source of the disparate representation we see in our 

statistics.” Id. at 185. Because of the numerous factors influencing law 

enforcement, especially regarding areas of the law as expansive as the 

traffic code, “[t]here is real doubt that we will ever eradicate the use of 

pretext motivations even if we were to prohibit them.” Id. 

Law enforcement officers “make judgments and mental shortcuts 

based on [their] past experiences and training.” Id. It appears “somewhat 

easier to figure out the intent of an individual officer than to plumb the 

collective consciousness of law enforcement in order to determine whether 
15

a ‘reasonable officer’ would have been moved to act upon the traffic 

violation.” Whren, 517 U.S. at 815, 116 S. Ct. at 1775. Brown’s approach 

of effectively prohibiting pretextual stops outright only risks “push[ing] its 

use further into the shadows.” May et al., 30 Alaska L. Rev. at 185. 

This case involves a relatively common scenario where a late-night 

traffic stop based on an observed violation of the traffic code leads to a 

determination that the driver was intoxicated and to an OWI conviction. 

Although it is our job to interpret the Iowa Constitution and not to set 

policy for the State of Iowa, we think most Iowans favor this policy outcome 

and would not want reduced enforcement of the drunk driving laws.

Iowa law already provides motorists with protections meant to 

curtail law enforcement’s abuse of authority during traffic stops. Under 

article I, section 8 of the Iowa Constitution, the officer must allow a 

motorist to leave “when the reason for a traffic stop is resolved and there 

is no other basis for reasonable suspicion.” State v. Coleman, 890 N.W.2d 

284, 301 (Iowa 2017). Iowa also restricts the scope of the search-incidentto-arrest exception to the warrant requirement under the Iowa 

Constitution to limit law enforcement’s ability to gather evidence incident 

to arrest. See Gaskins, 866 N.W.2d at 16–17. Thus, officers may not rely 

on the search-incident-to-arrest exception to search a motorist’s vehicle 

on the grounds that the officers believe the vehicle contains evidence of 

the arresting offense. Id. at 13–14. We even analyze a motorist’s consent 

to the search of a vehicle during a traffic stop more rigorously in Iowa. See 

State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011) (applying a narrow 

version of the federal totality-of-the-circumstances test in determining 

consent was involuntary). These additional protections for motorists in 

Iowa help limit the potential for an abuse of authority that Brown is 

concerned with reducing. 
16

All of this is not to say that the officer’s subjective motivations are 

never relevant in determining the validity of a traffic stop. “The more 

evidence that a detention was motivated by police suspicions unrelated to 

the traffic offense, the less credible the officer’s assertion that the traffic 

offense occurred.” State v. Lopez, 873 P.2d 1127, 1138–39 (Utah 1994). 

The district court considers the officer’s credibility in determining at the 

suppression hearing whether the facts justified the officer’s traffic stop at 

its inception. If the district court doubts the officer’s credibility and finds 

the motorist did not commit a traffic violation, then the stop is 

unconstitutional. In the event of an unconstitutional traffic stop based on 

a claim of selective enforcement, the Equal Protection Clause—not the 

State or Federal Search and Seizure Clause—is the proper claim to bring 

when seeking recourse. Whren, 517 U.S. at 813, 116 S. Ct. at 1774. To 

be certain, the Equal Protection Clause prohibits selective enforcement of 

the law based on racially discriminatory grounds. See, e.g., id. (“[T]he 

Constitution prohibits selective enforcement of the law based on considerations such as 

race. But the constitutional basis for objecting to intentionally discriminatory application 

of laws is the Equal Protection Clause, not the Fourth Amendment.”); United States v. 

Coney, 456 F.3d 850, 856 n.4 (8th Cir. 2006); United States v. Frazier, 408 F.3d 1102, 

1108 (8th Cir. 2005); Johnson v. Crooks, 326 F.3d 995, 999–1000 (8th Cir. 2003); Chavez 

v. Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001); Gardenhire v. Schubert, 205 F.3d 

303, 319–20 (6th Cir. 2000); United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996); United 

States v. Benitez, 613 F. Supp. 2d 1099, 1101–02 (S.D. Iowa 2009); In re Prop. Seized 

from Kaster, 454 N.W.2d 876, 880 (Iowa 1990) (en banc); State v. Durrell, 300 N.W.2d 

134, 135–36 (Iowa 1981); State v. Walker, 236 N.W.2d 292, 295 (Iowa 1975).

Brown’s request for a departure from Griffin and Kreps and adoption 

of a burden-shifting framework for evaluating traffic stops would create 

instability in the law, hinder law enforcement efforts, weaken the strength 
17

of our adversarial system, and undermine public confidence in the legal 

system. This kind of burden-shifting may work well in employment 

discrimination law, where there will usually be a fairly detailed record to 

evaluate, but it would be a challenge to apply in the thousands of 

suppression hearings where the legality of split-second actions are at 

issue.

iii. Other states’ approaches. Not only does our article I, section 8 

precedent hold that traffic stops for traffic violations are reasonable 

regardless of the officer’s subjective motivation, but the vast majority of 

other jurisdictions agree with us. In addition to Iowa, forty states and the 

District of Columbia follow the same objective standard we outlined in 

Griffin and Kreps.3 Brown points to only three states that have adopted a 

 3See, e.g., State v. Ossana, 18 P.3d 1258, 1260 (Ariz. Ct. App. 2001) (relying on 

Whren for a Fourth Amendment claim and holding “[t]he officers had the right to stop 

appellant’s car if they reasonably believed he had committed a traffic violation”); State v. 

Mancia-Sandoval, 361 S.W.3d 835, 839–40 (Ark. 2010) (“As previously noted, a pretextual 

stop is not impermissible under either the federal or Arkansas Constitution and, thus, 

does not invalidate an otherwise lawful stop of the vehicle.”); People v. Miranda, 21 Cal. 

Rptr. 2d 785, 789 (Ct. App. 1993) (determining under the Fourth Amendment, “the 

subjective motivation of an arresting officer is irrelevant in determining the propriety of a 

traffic stop”); People v. Ingram, 984 P.2d 597, 603 (Colo. 1999) (en banc) (concluding 

under the Fourth Amendment, “[a] reviewing court must base its analysis of whether 

reasonable suspicion exists on an objective analysis and not upon the subjective intent 

of the arresting officer”); Karamychev v. District of Columbia, 772 A.2d 806, 813 n.9 (D.C. 

Cir. 2001) (applying Whren, “if [the officer] had an adequate objective basis to stop (and 

then arrest) Karamychev, his subjective motivation was legally irrelevant”); Holland v. 

State, 696 So. 2d 757, 760 (Fla. 1997) (applying the objective standard established in 

Whren in state constitutional analysis and noting “the Whren Court made it clear that 

subjective viewpoints no longer factor into the analysis”); State v. Bolosan, 890 P.2d 673, 

681 (Haw. 1995) (“This court has also disapproved of analyses of officers’ subjective bases 

for conducting investigatory stops in favor of an objective standard, and we see no reason 

to depart from that position.” (Citation omitted.)); State v. Myers, 798 P.2d 453, 455 (Idaho 

Ct. App. 1990) (concluding for a Fourth Amendment claim, that “any underlying motive 

of [the officer] in stopping Myers’ vehicle as a pretext to search for drugs was irrelevant 

because the stop was justified by an objectively reasonable basis”); People v. Rucker, 689

N.E.2d 1203, 1208 (Ill. App. Ct. 1998) (“Regardless of [the officer’s] subjective intention 

for stopping the vehicle, the key question is whether he had a reasonable, articulable 

suspicion of criminal activity such that he could lawfully stop the vehicle.”); Mitchell v. 

State, 745 N.E.2d 775, 787 (Ind. 2001) (holding under the Indiana Constitution, there is 

“nothing unreasonable in permitting an officer, who may have knowledge or suspicion of 
18

 

unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic 

violation”); State v. Jones, 333 P.3d 886, 893 (Kan. 2014) (adopting the Whren objective 

standard); Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013) (“It has long been 

considered reasonable for an officer to conduct a traffic stop if he or she has probable 

cause to believe that a traffic violation has occurred.”); State v. Waters, 780 So. 2d 1053, 

1056 (La. 2001) (per curiam) (applying Whren and stating, that “[t]he standard [for 

assessing the reasonableness of a traffic stop] is a purely objective one that does not take 

into account the subjective beliefs or expectations of the detaining officer”); State v. Sasso, 

143 A.3d 124, 128 (Me. 2016) (“The Supreme Court holding announced in Whren is 

consistent with Maine’s standard for evaluating whether a traffic stop passes 

constitutional muster.”); Wilkes v. State, 774 A.2d 420, 430–31 (Md. 2001) (referring to 

Whren in determining the constitutionality of a traffic stop under the Fourth Amendment);

Commonwealth v. Buckley, 90 N.E.3d 767, 778 (Mass. 2018) (“Outside of the racial 

profiling context—as this case is—the reasonableness of a traffic stop does not depend 

upon the particular motivations underlying the stop. . . . [L]egal justification alone, such 

as an observed traffic violation, is sufficient.”); People v. Kazmierczak, 605 N.W.2d 667, 

672 n.8 (Mich. 2000) (relying on Whren in determining “[t]he traffic stop here was 

permissible because [the officer] observed a traffic violation”); State v. George, 557 N.W.2d 

575, 578 (Minn. 1997) (en banc) (“Ordinarily, if an officer observes a violation of a traffic 

law, however insignificant, the officer has an objective basis for stopping the vehicle.”); 

Floyd v. City of Crystal Springs, 749 So. 2d 110, 114–15 (Miss. 1999) (en banc) (referring 

to Whren after comparing the “almost identical language” of the Fourth Amendment to 

Mississippi’s search and seizure provision); State v. Brink, 218 S.W.3d 440, 445 (Mo. Ct. 

App. 2006) (“Whether or not a traffic stop is reasonable and therefore lawful does not 

depend on the investigating officer’s motive.”); State v. Farabee, 22 P.3d 175, 180–81 

(Mont. 2000) (declining to adopt the “would have” standard rejected in Whren to evaluate 

pretextual stops under the Montana Constitution, concluding “[that the court has] never 

held, however, that an otherwise objectively justifiable traffic stop is nonetheless unlawful 

because a law enforcement officer used the stop to investigate a hunch about other 

criminal activity”); State v. Bartholomew, 602 N.W.2d 510, 514 (Neb. 1999) (“If an officer 

has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior 

motivation on the officer’s part is irrelevant.”); Gama v. State, 920 P.2d 1010, 1013 (Nev. 

1996) (per curiam) (holding an officer’s subjective motivation is irrelevant in analyzing the 

validity of a traffic stop “because we now conclude that the Nevada Constitution’s search 

and seizure clause provides no greater protection than that afforded under its federal 

analogue, at least in the area of pretextual traffic stops”); State v. McBreairty, 697 A.2d 

495, 497 (N.H. 1997) (“The ultimate test of the propriety of an investigatory stop under 

part I, article 19 is whether, viewing the circumstances objectively, an officer had a 

specific and articulable basis for concluding that an individual had committed, was 

committing, or was about to commit a crime.”); State v. Bacome, 154 A.3d 1253, 1258 

(N.J. 2017) (“The objective reasonableness of police officers’ actions—not their subjective 

intentions—is the central focus of federal and New Jersey search-and-seizure 

jurisprudence.”); People v. Robinson, 767 N.E.2d 638, 642 (N.Y. 2001) (“In making that 

determination of probable cause [for a traffic stop], neither the primary motivation of the 

officer nor a determination of what a reasonable traffic officer would have done under the

circumstances is relevant.”); State v. McClendon, 517 S.E.2d 128, 635 (N.C. 1999) 

(rejecting defendant’s request to depart from the objective standard established in Whren

under the North Carolina Constitution because “in general, police action related to 

probable cause should be judged in objective terms, not subjective terms”); State v. Oliver, 

724 N.W.2d 114, 116 (N.D. 2006) (relying on Whren to determine “that [a] police officer’s 
19

different standard,4 and only two of these states have adopted her 

proposed burden-shifting test.5 Yet, these states have either subsequently 

disavowed their new standard or reached that new standard based on a 

state constitutional provision different from the Iowa Constitution. 

 

subjective intentions in making a stop are not important as long as a traffic violation has 

occurred”); City of Dayton v. Erickson, 665 N.E.2d 1091, 1097–98 (Ohio 1996) (“[W]here 

an officer has an articulable reasonable suspicion or probable cause to stop a motorist 

for . . . a minor traffic violation, the stop is constitutionally valid regardless of the officer’s 

underlying subjective intent or motivation for stopping the vehicle in question.”); Dufries 

v. State, 133 P.3d 887, 889 (Okla. Crim. App. 2006) (“[W]here an officer has probable 

cause to believe a traffic violation has occurred, his subjective motivation for stopping the 

vehicle is irrelevant to the legality of the stop.”); State v. Carter, 600 P.2d 873, 875 (Or. 

1979) (en banc) (“The officer’s motives for an otherwise justifiable traffic stop are, as we 

held in [State v.] Tucker, [595 P.2d 1364 (Or. 1979)] not relevant to the question of its 

validity.”); Commonwealth v. Chase, 960 A.2d 108, 120–21 (Pa. 2008) (concluding that a 

state statute allowing police officers to initiate traffic stops based on reasonable suspicion 

of vehicle code violations did not offend the state constitution’s search and seizure 

provision); State v. Bjerke, 697 A.2d 1069, 1073 (R.I. 1997) (declining to depart from 

Whren under the Rhode Island Constitution because it would be “unprincipled and 

unwarranted”); State v. Vinson, 734 S.E.2d 182, 184 (S.C. Ct. App. 2012) (referring to 

Whren and indicating an officer’s subjective motivations play no role in search and seizure 

analysis); State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997) (“[W]e conclude that 

probable cause justifies a traffic stop under Article I, Section 7 of the Tennessee 

Constitution without regard to the subjective motivations of police officers.”); Crittenden 

v. State, 899 S.W.2d 668, 673 (Tex. Crim. App. 1995) (en banc) (“Having adopted the 

objective approach under the Fourth Amendment, not because of binding precedent, but 

because it ‘makes more sense’ than the alternatives, we can hardly justify concluding 

otherwise for purposes of Article I, § 9.”); State v. Lopez, 873 P.2d 1127, 1140 (Utah 1994) 

(holding an officer’s subjective motivation for making a traffic stop is irrelevant so long as 

the traffic stop is based upon probable cause or reasonable suspicion); State v. Tetreault, 

181 A.3d 505, 511 (Vt. 2017) (applying Whren and stating that “[a] traffic stop constitutes 

a seizure under either [United States or Vermont search and seizure provision] and must 

be supported by reasonable suspicion that a motor vehicle violation or other crime is 

taking place”); Harris v. Commonwealth, 668 S.E.2d 141, 146 (Va. 2008) (indicating for a 

claim pursuant to the Fourth Amendment, that “the Court’s review of whether there was 

reasonable suspicion involves application of an objective rather than a subjective 

standard”); Muscatell v. Cline, 474 S.E.2d 518, 527 (W. Va. 1996) (“[I]f the trooper did 

indeed observe such a misdemeanor violation of the ‘rules of the road’, his stop would 

clearly be justified in any event.”); State v. Rutzinski, 623 N.W.2d 516, 520–21 (Wis. 2001) 

(relying on the objective standard established in Whren under the Wisconsin 

Constitution). 

4See State v. Heath, 929 A.2d 390, 405–06 (Del. Super. Ct. 2006); State v. Ochoa, 

206 P.3d 143, 146 (N.M. Ct. App. 2008); State v. Ladson, 979 P.2d 833, 836 (Wash. 1999) 

(en banc). 

5Heath, 929 A.2d at 402–03; Ochoa, 206 P.3d at 155–57. 
20

For example, Brown’s reliance on the Superior Court of Delaware’s 

holding in State v. Heath, 929 A.2d 390 (Del. Super. Ct. 2006), overlooks 

the fact that subsequent Delaware decisions have declined to follow Heath

because “[t]here are too many occasions where . . . there was a lawful basis 

to stop a motor vehicle for a traffic violation which led later to arrests for 

other kinds of offenses.” State v. Adams, 13 A.3d 1162, 1166–67 (Del. 

Super. Ct. 2008). The Delaware Supreme Court has recognized that 

“Heath has not been followed in any other Superior Court decisions.” 

Turner v. State, 25 A.3d 774, 777 (Del. 2011) (en banc). 

Further, Brown’s reliance on the Court of Appeals of New Mexico’s 

holding in State v. Ochoa, 206 P.3d 143 (N.M. Ct. App. 2008), ignores the 

heightened expectation of privacy New Mexico courts have provided to 

motorists in an automobile that Iowa does not afford. The court of appeals 

in Ochoa specifically noted that this heightened privacy expectation “ ‘is a 

distinct characteristic of New Mexico constitutional law’ and therefore 

supports our departure from Whren.” Id. at 151 (quoting State v. 

Cardenas-Alvarez, 25 P.3d 225, 231 (N.M. 2001)). In contrast, we have 

declined to provide motorists with this same expectation of privacy in their 

automobiles and acknowledged “the reduced expectation of privacy [in 

automobiles] resulting from the ‘configuration, use and regulation of 

automobiles.’ ” State v. Storm, 898 N.W.2d 140, 146 (Iowa 2017) (quoting 

Arkansas v. Sanders, 442 U.S. 753, 761, 99 S. Ct. 2586, 2591 (1979), 

abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 575, 

111 S. Ct. 1982, 1989 (1991)). 

Finally, Brown’s representation of the Washington Supreme Court’s 

holding in State v. Ladson, 979 P.2d 833 (Wash. 1999) (en banc), as 

another persuasive example of departure from Whren under a state 

constitution, disregards the substantially different search and seizure 
21

provision of the Washington Constitution. Specifically, article I, section 7 

of the Washington Constitution provides, “No person shall be disturbed in 

his private affairs, or his home invaded, without authority of law.” Wash. 

Const. art. I, § 7. As the court noted in Ladson, this provision “is explicitly 

broader than that of the Fourth Amendment” and operates under a 

different mechanism regarding the citizens’ expectations of privacy. 

Ladson, 979 P.2d at 837. Given the differences between the Washington 

Constitution’s search and seizure provision and that of the Iowa 

Constitution, Ladson carries little persuasive value in how we should 

decide this case. 

In any event, Washington’s approach “has not resulted in . . . 

significantly greater protections” from racial profiling. Margaret M. 

Lawton, The Road to Whren and Beyond: Does the “Would Have” Test 

Work?, 57 DePaul L. Rev. 917, 920 (2008). Rather, state courts in 

Washington continue to do “what courts have always done under the 

[Whren] test: determining the credibility of police officers and relying upon 

the totality of the circumstances in deciding whether a traffic stop was 

constitutionally permissible.” Id. at 919. In doing so, they rarely find 

pretextual motivations for the officer’s stop “unless the officer either 

testifies to her use of pretext or the court finds that the officer is lying 

about the reasons for the stop, both of which are relatively uncommon.” 

Id. at 957. 

In fact, the Washington Supreme Court more recently has retreated 

from Ladson and said that it will uphold a stop for a traffic violation “even 

if the legitimate reason for the stop is secondary and the officer is 

motivated primarily by a hunch or some other reason that is insufficient 

to justify a stop.” State v. Arreola, 290 P.3d 983, 991 (Wash. 2012) (en 

banc); see also State v. Alvarez, 430 P.3d 673, 677 (Wash. 2018) 
22

(Lawrence-Berrey, C.J., dissenting) (“It is clear that law enforcement can 

conduct an investigatory stop for traffic infractions.”).

We conclude that the objective test articulated in Whren applies to 

constitutional challenges to traffic stops under article I, section 8 of the 

Iowa Constitution. Interpreting article I, section 8 coextensive with the 

Fourth Amendment in this case “ensure[s] that the validity of such stops 

is not subject to the vagaries of police departments’ policies and 

procedures concerning the kinds of traffic offenses of which they ordinarily 

do or do not take note.” Ferguson, 8 F.3d at 392. At the same time, it 

does not insulate people engaged in more egregious criminal activity “from 

criminal liability for those activities simply because a judge determines 

that the police officer who executed the traffic stop, had he been the 

mythical reasonable officer, would not have stopped them” for the traffic 

violation they committed. Id. Moreover, the objective standard set forth 

in Griffin and Kreps provides law enforcement officers with a degree of 

certainty that they are acting appropriately when they choose to enforce 

the traffic violations they witness. We should not penalize law enforcement 

for enforcing the law. 

Our holding today recognizes this need for consistency by adhering 

to our prior holdings. See Brewer-Strong v. HNI Corp., 913 N.W.2d 235, 

249 (Iowa 2018) (“From the very beginnings of this court, we have guarded 

the venerable doctrine of stare decisis and required the highest possible 

showing that a precedent should be overruled before taking such a step.” 

(quoting McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005))); see also

Book v. Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015) 

(“Stare decisis alone dictates continued adherence to our precedent absent 

a compelling reason to change the law.”). Stare decisis “is an important 

restraint on judicial authority and provides needed stability in and respect 
23

for the law.” Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) (Cady, J., 

dissenting), overruled on other grounds by Alcala v. Marriott Int’l Inc., 880 

N.W.2d 699, 708 & n.3 (Iowa 2016). Though it is “our role as a court of 

last resort . . . to occasionally reexamine our prior decisions, we must 

undertake this weighty task only for the most cogent reasons and with the 

greatest caution.” Id. 

We decided Griffin under the Iowa Constitution less than fifteen 

years ago, in which we made clear that an officer’s ulterior “motive for 

making the arrest does not limit the right to conduct a search incident 

thereto” under the Iowa Constitution “[i]f probable cause exists for an 

arrest to be made.” 691 N.W.2d at 737. Despite recognizing that we were 

not bound by Fourth Amendment precedent, we nevertheless “found no 

basis to distinguish the protections afforded by the Iowa Constitution from 

those afforded by the [F]ederal [C]onstitution under the facts of [the] case.” 

Id. Brown provides no new arguments that show our holding in Griffin, or 

our approval of Whren in Predka, was clearly erroneous. See BrewerStrong, 913 N.W.2d at 249 (“This highest possible showing [for overruling 

precedent] requires a demonstration that the precedent is clearly 

erroneous.”). 

B. Brown’s Ineffective-Assistance-of-Counsel Claim. Brown 

acknowledges her trial counsel did not specifically address her claim on 

appeal that Officer Brandt lacked probable cause for the stop because she 

did not violate any traffic laws. However, she asks the court to analyze 

this issue under an ineffective-assistance-of-counsel claim. The record 

before us is sufficient to address Brown’s ineffective-assistance claim, and 

we proceed to consider her claim. 

To succeed on her ineffective-assistance-of-counsel claim, Brown 

must prove (1) counsel failed to perform an essential duty and (2) prejudice 
24

resulted. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). To establish 

the first prong, Brown must show her counsel “made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by 

the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. 

We approach the first prong with the presumption counsel performed her 

duties competently; “we measure counsel’s performance against the 

standard of a reasonably competent practitioner.” State v. Maxwell, 743 

N.W.2d 185, 195 (Iowa 2008). Although not required to predict changes 

in the law, “counsel must ‘exercise reasonable diligence in deciding 

whether an issue is “worth raising.” ’ ” State v. Dudley, 766 N.W.2d 606, 

620 (Iowa 2009) (quoting State v. Westeen, 591 N.W.2d 203, 210 (Iowa 

1999)). Counsel is not burdened with the duty to raise an issue that has 

no merit. Id.; see also State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008). 

The second prong—prejudice—results when “there is a reasonable 

probability that, but for the counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Wills, 696 N.W.2d at 22 

(quoting Hopkins, 576 N.W.2d at 378). 

Because we did not find a basis to diverge from the protection 

afforded by the Iowa Constitution from that afforded by the United States 

Constitution under the facts of this case, our analysis will apply equally to 

both state and federal grounds. See Iowa Const. art. I, § 10; State v. 

Nitcher, 720 N.W.2d 547, 553 (Iowa 2006). 

If a traffic violation occurred, and the peace officer witnessed it, the 

State has established probable cause.6 State v. Tyler, 830 N.W.2d 288, 

292 (Iowa 2013); see also United States v. Mendoza, 677 F.3d 822, 827 

 6A peace officer may also stop a vehicle on less than probable cause for the 

investigation of unusual behavior that reasonably causes the peace officer to believe 

criminal activity is afoot. Tague, 676 N.W.2d at 204; see also Terry v. Ohio, 392 U.S. 1, 

30, 88 S. Ct. 1868, 1884 (1968).
25

(8th Cir. 2012); Tague, 676 N.W.2d at 201 (“When a peace officer observes 

a violation of our traffic laws, however minor, the officer has probable 

cause to stop a motorist.”). However, the State must bear the burden of 

proof by a preponderance of the evidence that the officer had probable 

cause to stop the vehicle. Tyler, 830 N.W.2d at 293. If the State does not 

meet this burden, all evidence obtained at the stop must be suppressed. 

State v. Louwrens, 792 N.W.2d 649, 651–52 (Iowa 2010). “The existence 

of probable cause for a traffic stop is evaluated ‘from the standpoint of an 

objectively reasonable police officer.’ ” Tyler, 830 N.W.2d at 293–94 

(quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 

1661–62 (1996)). 

Brown claims her trial counsel was ineffective for failing to challenge 

the establishment of probable cause for the stop. She concedes her trial 

counsel did properly challenge the legality of a pretextual stop, but 

ultimately failed to address the required probable cause. The State 

responds to the ineffective-assistance claim by indicating a peace officer 

witnessed the multiple traffic violations Brown committed. Specifically, 

that Brown acted in violation of Iowa Code section 321.257, thereby 

providing probable cause for the stop. 

At the suppression hearing, Officer Brandt testified to witnessing 

Brown in violation of multiple traffic laws prior to initiating the stop. 

Foremost, Officer Brandt observed Brown’s vehicle accelerate through an 

intersection after the traffic-control signal changed from yellow to red. 

This is in clear violation of Iowa’s regulation of vehicular traffic. See Iowa 

Code § 321.257. A yellow light “means vehicular traffic is warned that the 

related green movement is being terminated and vehicular traffic shall no 

longer proceed into the intersection and shall stop.” Id. § 321.257(2)(b). A 

red light “means vehicular traffic shall stop.” Id. § 321.257(2)(a). This 
26

traffic violation alone, however minor, is sufficient probable cause to stop 

a motorist. Tague, 676 N.W.2d at 201. It is undisputed Officer Brandt 

witnessed this traffic violation while queued at the same intersection 

Brown accelerated through. The State carried its burden. See Tyler, 830 

N.W.2d at 293; see also Mendoza, 677 F.3d at 827. Officer Brandt’s stop 

of Brown’s vehicle was based on probable cause—violation of Iowa Code 

section 321.257. For that reason, Brown’s trial counsel was not ineffective 

for failing to challenge probable cause. See Nitcher, 720 N.W.2d at 555 

(noting trial counsel was not ineffective for failing to raise an issue with no 

merit). Accordingly, Brown has failed to establish the first prong of her 

ineffective-assistance-of-counsel claim, and her claim must fail. See 

Hopkins, 576 N.W.2d at 380 (acknowledging failure to prove either 

ineffective-assistance prong is fatal to the claim). 

IV. Conclusion.

We affirm the district court decision for the aforementioned reasons. 

AFFIRMED. 

Waterman and Mansfield and McDonald, JJ., join this opinion. 

McDonald, J., files a separate concurring opinion. Cady, C.J., files a 

dissenting opinion in which Wiggins, J., joins. Appel, J., files a separate 

dissenting opinion in which Wiggins, J., joins. 
27

#17–0367, State v. Brown

McDONALD, Justice (concurring specially).

Scottize Brown failed to establish a violation of her rights arising 

under the Federal or Iowa Constitutions, and the district court did not err 

in denying Brown’s motion to suppress. I thus concur in Justice 

Christensen’s opinion affirming Brown’s conviction and sentence. I write 

separately to address Brown’s argument the Federal Constitution sets the 

floor for claims arising under the Iowa Constitution. 

I.

“Beginning in the 1960s . . . , a growing number of states began to 

rediscover the independent nature of their state constitutional provisions. 

[This movement is s]ometimes called the ‘new judicial federalism’ . . . .” 

State v. Baldon, 829 N.W.2d 785, 814 (Iowa 2013) (Appel, J., specially 

concurring). In 1977, Justice William Brennan galvanized this movement 

with “his call to arms for state courts.” Id. at 790 (majority opinion); see

William J. Brennan, Jr., State Constitutions and the Protection of Individual 

Rights, 90 Harv. L. Rev. 489, 503 (1977). Several decades after Justice 

Brennan’s call to arms, this court began to systematically address legal 

questions arising under the Iowa Constitution. 

The fundamental premise of this court’s most recent jurisprudence 

in the area of state constitutional law has been that “although this court 

cannot interpret the Iowa Constitution to provide less protection than that 

provided by the United States Constitution, the court is free to interpret 

our constitution as providing greater protection for our citizens’ 

constitutional rights.” State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000) 

(en banc), abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 

606 n.2 (Iowa 2001). Pursuant to this premise, this court has treated the 
28

Iowa Constitution as a one-way ratchet to provide only greater rights and 

remedies than a parallel provision of the United States Constitution. See, 

e.g., Behm v. City of Cedar Rapids, 922 N.W.2d 524, 566 (Iowa 2019) (“As 

a result, we apply the substantive federal standards, reserving the right to 

apply these standards in a more stringent fashion than under federal 

caselaw.”); Schmidt v. State, 909 N.W.2d 778, 793 (Iowa 2018) (“The Iowa 

Constitution affords individuals greater rights than does the United States 

Constitution.”); State v. Pettijohn, 899 N.W.2d 1, 26 (Iowa 2017) (“In 

assessing that caselaw, we remain mindful that decisions of the Supreme 

Court addressing the scope of a right guaranteed by the United States 

Constitution set a floor below which the scope of a right guaranteed by the 

Iowa Constitution may not fall, but not a ceiling above which it may not 

rise.”); State v. Sweet, 879 N.W.2d 811, 832 (Iowa 2016) (“In any event, the 

rulings of the United States Supreme Court create a floor, but not a ceiling, 

when we are called upon to interpret parallel provisions of the Iowa 

Constitution.”); Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016) (“We 

are free to interpret our constitution more stringently than its federal 

counterpart, providing greater protection for our citizens’ constitutional 

rights.”); Baldon, 829 N.W.2d at 791 & n.1 (“[T]he Supreme Court’s 

jurisprudence regarding the freedom from unreasonable searches and 

seizures under the Fourth Amendment—or any other fundamental, civil, 

or human right for that matter—makes for an admirable floor, but it is 

certainly not a ceiling. . . . The incorporation doctrine commands that we 

no longer use independent state grounds to sink below the federal floor.”). 

The fundamental premise of our recent jurisprudence is not sound. 

This court is free to interpret our constitution to provide less or more 

protection than the Federal Constitution. See State v. Hampton, No. 

18-0061, 2019 WL 476471, at *1–3 (Iowa Ct. App. Feb. 6, 2019) (explaining 
29

Iowa courts can interpret the state constitution to provide less protection 

than the Federal Constitution); State v. Halverson, No. 16-1614, 2017 WL 

5178997, at *3 (Iowa Ct. App. Nov. 8, 2017) (explaining the relevant 

question is what the state constitutional text means and how it applies to 

the facts and circumstances of the case at hand and not whether Iowa 

courts should interpret the Iowa Constitution “more strictly” or “more 

broadly” than the Federal Constitution); State v. Bohl, No. 15–1546, 2016 

WL 4543957, at *1–2 (Iowa Ct. App. Aug. 31, 2016) (“Depending upon the 

particular issue, our precedents interpreting article I, section 8 may 

provide greater or lesser protection than cases interpreting the Fourth 

Amendment.”); State v. Barth, No. 14–1929, 2016 WL 740302, at *3 (Iowa 

Ct. App. Feb. 24, 2016) (“Barth contends the Iowa Constitution provides 

greater protection than the Federal Constitution without specifying why or 

how. Regardless, Barth misstates the issue. Depending upon the 

particular issue, our precedents interpreting article I, section 8 may 

provide greater or lesser protection than cases interpreting the Fourth 

Amendment.”). 

The conclusion that this court can interpret the Iowa Constitution 

to provide less or more protection than a parallel provision of the Federal 

Constitution is inherent in the federal system. The Bill of Rights, in and 

of itself, applies only to the federal government. See Timbs v. Indiana, ___ 

U.S. ___, ___, 139 S. Ct. 682, 687 (2019) (“When ratified in 1791, the Bill 

of Rights applied only to the Federal Government.”); Danforth v. Minnesota, 

552 U.S. 264, 269, 128 S. Ct. 1029, 1034 (2008); Barron v. Mayor & City 

Council of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833). The Supreme Court 

is the final arbiter of the meaning of the Federal Constitution. In contrast, 

the Iowa Constitution applies to the state government. This court is the 

final arbiter of the meaning of the Iowa Constitution. See Minnesota v. 
30

Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679 (1940) (“It is 

fundamental that state courts be left free and unfettered by us in 

interpreting their state constitutions.”). In determining the meaning of 

state constitutional law, this court has a duty to independently determine 

the meaning of the Iowa Constitution. See State v. Gaskins, 866 N.W.2d 

1, 7 (Iowa 2015). This is true whether we interpret the Iowa Constitution 

to provide less or more protection than the Federal Constitution. 

Brown’s contention that the incorporation doctrine dictates the 

minimum required content of state constitutional law misapprehends the 

incorporation doctrine. Incorporation did not change the substantive 

content of state constitutional law; it changed the substantive content of 

federal constitutional law. Specifically, the Supreme Court held the Due 

Process Clause of the Fourteenth Amendment incorporated most of the 

Bill of Rights. See Timbs, ___ U.S. at ___, 139 S. Ct. at 687 (“With only ‘a 

handful’ of exceptions, this Court has held that the Fourteenth 

Amendment’s Due Process Clause incorporates the protections contained

in the Bill of Rights, rendering them applicable to the States.” (quoting 

McDonald v. City of Chicago, 561 U.S. 742, 765, 130 S. Ct. 3020, 3035 

(2010))). “Incorporated Bill of Rights guarantees are ‘enforced against the 

States under the Fourteenth Amendment according to the same standards 

that protect those personal rights against federal encroachment.’ ” Id.

(quoting McDonald, 561 U.S. at 765, 130 S. Ct. at 3035). Pursuant to the 

Supremacy Clause, this court is bound to apply the Supreme Court’s 

Fourteenth Amendment jurisprudence to resolve claims arising under the 

Fourteenth Amendment. See Armstrong v. Exceptional Child Ctr., Inc., ___ 

U.S. ___, ___, 135 S. Ct. 1378, 1383 (2015) (explaining the Supremacy 

Clause is not a source of substantive rights but instead provides for a 

federal rule of decision where a litigant asserts a federal claim). The 
31

Supreme Court’s Fourteenth Amendment jurisprudence does not dictate 

the substance of the state law or the remedy for any violation of the same. 

See Virginia v. Moore, 553 U.S. 164, 178, 128 S. Ct. 1598, 1608 (2008) 

(“[I]t is not the province of the Fourth Amendment to enforce state law. 

That Amendment does not require the exclusion of evidence obtained from 

a constitutionally permissible arrest.”); Fuller v. Oregon, 417 U.S. 40, 48 

n.9, 94 S. Ct. 2116, 2122 n.9 (1974) (“[T]he dissent purports to resolve 

questions of state [constitutional] law that this Court does not have power 

to decide.”); Nat’l Tea Co., 309 U.S. at 557, 60 S. Ct. at 679 (“It is 

fundamental that state courts be left free and unfettered by us in 

interpreting their state constitutions.”); see also Collins v. Virginia, ___ U.S. 

___, ___, 138 S. Ct. 1663, 1680 n.6 (2018) (Thomas, J., concurring) (“[T]he 

States are free to adopt their own exclusionary rules as a matter of state 

law. But nothing in the Federal Constitution requires them to do so.”); 

Massachusetts v. Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091 (1984) 

(per curiam) (Stevens, J., concurring in the judgment).

This understanding that incorporation does not dictate the meaning 

of state law is supported by former Oregon Supreme Court Justice Hans 

Linde. Justice Linde is widely considered the “intellectual godfather” of 

the new judicial federalism. James A. Gardner, The Failed Discourse of 

State Constitutionalism, 90 Mich. L. Rev. 761, 774 (1992) (quoting Ronald 

K.L. Collins, Forward: The Once “New Judicial Federalism” & Its Critics, 64 

Wash. L. Rev. 5, 5 (1989)). Members of this court have favorably cited the 

work of Justice Linde when interpreting the Iowa Constitution. See 

Gaskins, 866 N.W.2d at 55 (Waterman, J., dissenting) (citing Hans A. 

Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. 

L. Rev. 379, 392 (1980) [hereinafter Linde, First Things First]); Baldon, 829 

N.W.2d at 821 (Appel, J., specially concurring) (quoting Justice Linde’s 
32

opinion in State v. Kennedy, 666 P.2d 1316, 1322 (Or. 1983)). In Baldon, 

Justice Appel noted Justice Linde was an “extraordinary state court judge[] 

with [an] outstanding reputation[ who] ha[s] helped to develop what is now 

a substantial body of independent state constitutional law.” 829 N.W.2d 

at 828. He further noted there was “no basis to discount the work of th[is] 

outstanding state supreme court justice[].” Id. He also lauded Justice 

Linde’s outstanding extrajudicial scholarship. See id. at 828 n.23 (citing 

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

L. Rev. 165 (1984) [hereinafter Linde, E Pluribus]; Linde, First Things First, 

9 U. Balt. L. Rev. 379). 

Justice Linde has concluded in both his judicial and extrajudicial 

work that state courts are free to interpret a parallel provision of a state 

constitution as providing less protection than the Federal Constitution:

The state argues, correctly, that diversity does not 

necessarily mean that state constitutional guarantees always 

are more stringent than decisions of the Supreme Court under 

their federal counterparts. A state’s view of its own guarantee 

may indeed be less stringent, in which case the state remains 

bound to whatever is the contemporary federal rule. Or it may 

be the same as the federal rule at the time of the state court’s 

decision, which of course does not prevent that the state’s 

guarantee will again differ when the United States Supreme 

Court revises its interpretation of the federal counterpart. The 

point is not that a state’s constitutional guarantees are more 

or less protective in particular applications, but that they were 

meant to be and remain genuine guarantees against misuse 

of the state’s governmental powers, truly independent of the 

rising and falling tides of federal case law both in method and 

in specifics. 

Kennedy, 666 P.2d at 1323. Stated differently,

The right question is not whether a state’s guarantee is 

the same as or broader than its federal counterpart as 

interpreted by the Supreme Court. The right question is what 

the state’s guarantee means and how it applies to the case at 

hand. The answer may turn out the same as it would under 

federal law. The state’s law may prove to be more protective 

than federal law. The state law also may be less protective. In 
33

that case the court must go on to decide the claim under 

federal law, assuming it has been raised.

Linde, E Pluribus, 18 Ga. L. Rev. at 179.

The Michigan Supreme Court reached the same conclusion in Sitz 

v. Department of State Police, 506 N.W.2d 209, 216–17 (Mich. 1993). That 

court’s discussion of the issue is worth quoting at length here:

[A]ppropriate analysis of our constitution does not begin from 

the conclusive premise of a federal floor. Indeed, the fragile 

foundation of the federal floor as a bulwark against arbitrary 

action is clearly revealed when, as here, the federal floor falls 

below minimum state protection. As a matter of simple logic, 

because the texts were written at different times by different 

people, the protections afforded may be greater, lesser, or the 

same.

Id. at 217 (footnote omitted). The court continued,

The image of federal constitutional law as a “floor” in 

state court litigation pervades most commentary on state 

constitutional law. Commentators contend that in 

adjudicating cases, state judges must not adopt state 

constitutional rules which fall below this floor; courts may, 

however, appeal to the relevant state constitution to establish 

a higher “ceiling” of rights for individuals. . . .

Certainly, as a matter of federal law, state courts are 

bound not to apply any rule which is inconsistent with 

decisions of the Supreme Court; the Supremacy Clause of the 

Federal Constitution clearly embodies this mandate. It would 

be a mistake, however, to view federal law as a floor for state 

constitutional analysis; principles of federalism prohibit the 

Supreme Court from dictating the content of state law. In 

other words, state courts are not required to incorporate 

federally-created principles into their state constitutional 

analysis; the only requirement is that in the event of an 

irreconcilable conflict between federal law and state law 

principles, the federal principles must prevail.

. . . .

[S]uch courts must undertake an independent 

determination of the merits of each claim based solely on 

principles of state constitutional law. If the state court begins 

its analysis with the view that the federal practice establishes 

a “floor,” the state court is allowing a federal governmental 

body—the United States Supreme Court—to define, at least in 

part, rights guaranteed by the state constitution. 
34

Id. at 217 n.12 (alterations in original) (quoting Earl M. Maltz, False 

Prophet—Justice Brennan and the Theory of State Constitutional Law, 15 

Hastings Const. L.Q. 429, 443–44 (1988)).

Other courts have reached the same conclusion. See State v. Oliver, 

372 S.E.2d 256, 259 (Ga. Ct. App. 1988) (“If anything, the Georgia 

Constitution is less protective than the Fifth Amendment, for it recognizes 

an exception to the bar against double jeopardy when the first trial ends 

in a mistrial.”); State v. Jackson, 503 S.E.2d 101, 103–04 (N.C. 1998) 

(“Strictly speaking, however, a state may still construe a provision of its 

constitution as providing less rights than are guaranteed by a parallel 

federal provision.”); Alva State Bank & Tr. Co. v. Dayton, 755 P.2d 635, 638 

(Okla. 1988) (per curiam) (recognizing that if the state constitution 

provides less protection than federal law, then “the question must be 

determined by federal law”); Ex parte Tucci, 859 S.W.2d 1, 32 n.34 (Tex. 

1993) (Phillips, C.J., concurring) (“Literally read, this position makes no 

logical sense. If our text was written at a different time by different people 

with different concerns, then the protection it affords may be greater, 

lesser, or the same as that provided by a different provision in the United 

States Constitution.”); Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim. 

App. 1998) (en banc) (“The Supremacy Clause means that, in practical 

terms, persons will always be able to avail themselves of the greater right. 

This is very important to litigants and their counsel, who are naturally and 

properly result-oriented. But it does not mean that a court, faithfully 

interpreting state laws, can only find in them protections that equal or 

exceed federal laws.”); State v. Briggs, 199 P.3d 935, 942 (Utah 2008) 

(recognizing state law may “provide a lesser level of protection,” in which 

case the court addresses the federal claim).
35

I thus conclude this court has a duty to independently interpret the 

Iowa Constitution. This court discharges that duty by looking to the text 

of the document through the prism of our precedent, tradition, and 

custom. This court’s interpretation of the Iowa Constitution may be the 

same as the Supreme Court’s interpretation of a parallel provision of the 

Federal Constitution. This court’s interpretation of the Iowa Constitution 

may be different than the Supreme Court’s interpretation of a parallel 

provision of the Federal Constitution. But this court’s interpretation of the 

Iowa Constitution is not dictated by the Supreme Court’s precedents under 

the incorporation doctrine of the Federal Constitution. 

II.

“Metaphors in law are to be narrowly watched, for starting as devices 

to liberate thought, they end often by enslaving it.” Berkey v. Third Ave. 

Ry., 155 N.E. 58, 61 (N.Y. 1926). This has been true of the floor–ceiling 

metaphor. “However useful that floor-ceiling metaphor may be, it obscures 

the larger truth that the level of protection of rights under the state 

constitutions can be the same as, higher than, or lower than that provided 

by the federal constitution.” Malyon v. Pierce County, 935 P.2d 1272, 1281 

n.30 (Wash. 1997) (en banc) (quoting Neil McCabe, The State and Federal 

Religion Clauses: Differences of Degree and Kind, 5 St. Thomas L. Rev. 49, 

50 (1992)). The failure of the metaphor has caused this court to undertake 

its interpretive function with a results-oriented approach that has created 

distortions in Iowa legal doctrine. Cf. Tucci, 859 S.W.2d at 32 n.34 (stating 

the recognition “that ‘an independent state judiciary may interpret its 

fundamental law as affording less protection than our federal charter’ . . . 

will enhance the possibility of principled state constitutional development” 

(quoting id. at 13 (plurality opinion))). 
36

As an example of how the metaphor changed doctrine, consider this 

court’s treatment of the exclusionary rule. In Boyd v. United States and 

Weeks v. United States, the Supreme Court held that evidence obtained in 

violation of the Federal Constitution was inadmissible in a criminal 

proceeding. Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 346 

(1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–57, 

81 S. Ct. 1684, 1691–92 (1961); Boyd v. United States, 116 U.S. 616, 638, 

6 S. Ct. 524, 536–37 (1886), abrogations recognized by Fisher v. United 

States, 425 U.S. 391, 407–09, 96 S. Ct. 1569, 1579–80 (1976). In State v. 

Tonn, 195 Iowa 94, 102–03, 104–07, 191 N.W. 530, 534, 535–36 (1923), 

abrogated by State v. Hagen, 258 Iowa 196, 203–05, 137 N.W.2d 895, 899–

900 (1965), as recognized in State v. Taylor, 260 Iowa 634, 641–42, 144 

N.W.2d 289, 293–94 (1966), this court considered Boyd and Weeks and 

declined to adopt the exclusionary rule as a remedy for the violation of the 

Iowa Constitution. Tonn remained good law for decades. See, e.g., State 

ex rel. Hanrahan v. Miller, 250 Iowa 1369, 1375, 98 N.W.2d 859, 863 

(1959); State v. Gillam, 230 Iowa 1287, 1289, 300 N.W. 567, 568 (1941);

State v. Rowley, 216 Iowa 140, 145–46, 248 N.W. 340, 342–43 (1933); 

State v. Lambertti, 204 Iowa 670, 672, 215 N.W. 752, 753 (1927); State v. 

Wenks, 200 Iowa 669, 670, 202 N.W. 753, 753 (1925); McNamara v. 

Utterback, 200 N.W. 699, 700 (Iowa 1924); Lucia v. Utterback, 197 Iowa 

1181, 1186, 198 N.W. 626, 628 (1924); Foley v. Utterback, 196 Iowa 956,

958, 195 N.W. 721, 722 (1923) (per curiam); Joyner v. Utterback, 196 Iowa 

1040, 1044, 195 N.W. 594, 596 (1923). 

In 2000, in Cline, this court concluded Mapp had abrogated Tonn. 

See 617 N.W.2d at 287 (“Iowa did not again have a state exclusionary rule 

until compelled to do so by the United States Supreme Court’s decision in 

Mapp.”). The Cline court reasoned the authority to deviate from federal 
37

law was limited to providing greater protection than the Federal 

Constitution. See id. at 284–85. 

Cline’s conclusion that Mapp required this court to adopt the 

exclusionary rule as a remedy for a violation of state constitutional law 

was incorrect. Cline’s conclusion is predicated on a misunderstanding of 

federal law. In Wolf v. Colorado, the Supreme Court held the principles 

underlying the Fourth Amendment were “enforceable against the States 

through the Due Process Clause.” 338 U.S. 25, 27–28, 69 S. Ct. 1359, 

1361 (1949), overruled on other grounds by Mapp, 367 U.S. at 654–55, 81 

S. Ct. at 1691. The Supreme Court specifically declined to require the 

states to adopt the exclusionary rule as the remedy for a violation of the 

Federal Due Process Clause. See id. at 33, 69 S. Ct. at 1364 (“We hold, 

therefore, that in a prosecution in a State court for a State crime the 

Fourteenth Amendment does not forbid the admission of evidence 

obtained by an unreasonable search and seizure.”). Subsequently, in 

Mapp, the Supreme Court overruled Wolf and held the required remedy for 

a violation of the Fourteenth Amendment right recognized in Wolf was the 

exclusion of unlawfully obtained evidence from a criminal proceeding. 

It is surprising this court immediately moved away from Tonn after 

Mapp without explicitly overruling Tonn. A majority of the court in Mapp

did not even support the conclusion that a violation of the Fourth 

Amendment, standing alone, required exclusion of the evidence. Justice 

Stewart expressed no view on the constitutional issue. Mapp, 367 U.S. at 

672, 81 S. Ct. at 1701 (Stewart, J., concurring in the judgment) (“I express 

no view as to the merits of the constitutional issue which the Court today 

decides.”). Justice Black concluded the Fourth Amendment, standing 

alone, compelled no right to the exclusion of evidence. Id. at 661–62, 81 

S. Ct. at 1695 (Black, J., concurring) (“I am still not persuaded that the 
38

Fourth Amendment, standing alone, would be enough to bar the 

introduction into evidence against an accused of papers and effects seized 

from him in violation of its commands.”). Instead, he found the remedy to 

be required due to the interaction of the Fourth and Fifth Amendments. 

Id. at 662, 81 S. Ct. at 1695; see also Collins, ___ U.S. at ___, 138 S. Ct. at 

1677–80, 1677 nn.2–3 (discussing Mapp). Justice Harlan, joined by 

Justices Frankfurter and Whitaker, dissented. Mapp, 367 U.S. at 678–80, 

81 S. Ct. at 1704–05 (Harlan, J., dissenting) (“I would not impose upon the 

States this federal exclusionary remedy. The reasons given by the majority 

for now suddenly turning its back on Wolf seem to me notably 

unconvincing.”).

Regardless of whether Mapp was rightly or wrongly decided, the 

important point of the discussion is this: Wolf and Mapp both involved the 

resolution of claims arising under the Fourteenth Amendment. Neither 

case compelled any state court to reach a particular resolution—whether 

less protective, more protective, or as protective—of any legal claim arising 

under its own state constitution. Cline was thus incorrect in stating Mapp 

abrogated Tonn and precluded this court from interpreting the state 

constitution to provide less protection than the Federal Constitution. 

While there may be reasons why this court would want to adopt the 

exclusionary rule for violations of the Iowa Constitution, many of which 

are discussed in Cline, it was incorrect to say Mapp compelled this court 

to do so. 

III.

This special concurrence is not intended as a call to arms to find 

less or more protection of individual rights under the Iowa Constitution as 

compared to the United States Constitution. Instead, it is a call to 
39

determine the meaning of the Iowa Constitution without an interpretive 

predisposition that the Iowa Constitution must, as a matter of law, be 

interpreted to provide only greater protection than the United States 

Constitution. See Linde, E Pluribus, 18 Ga. L. Rev. at 179; see also

Gaskins, 866 N.W.2d at 21 n.7 (Iowa 2015) (Appel, J., concurring specially) 

(“This case makes the powerful point that independent state constitutional 

law is neither conservative nor liberal. It simply preserves what the United 

States Supreme Court has referred to as our ‘free and unfettered’ authority 

in interpreting our state constitution.” (quoting Nat’l Tea Co., 309 U.S. at 

557, 60 S. Ct. at 679)); King v. State, 797 N.W.2d 565, 571 (Iowa 2011) 

(“[W]e reserve the right to apply the principles differently under the state 

constitution compared to its federal counterpart.”). In this particular case, 

I concur with my colleagues that neither the United States Constitution 

nor the Iowa Constitution provides Brown with any relief and that her 

conviction should be affirmed. 
40

#17–0367, State v. Brown

CADY, Chief Justice (dissenting). 

I respectfully dissent from the decision of the majority to continue 

to address claims of pretextual traffic stops without considering the 

subjective motives of the officer involved once probable cause is found. 

Our law must, instead, prohibit pretextual traffic stops motivated by race 

or any other classification, even when probable cause for a traffic violation 

exists. They are offensive to the values of our constitution and abhorrent 

to the concept of justice expected by our constitution. They are one of 

many reasons to explain why our criminal justice system has 

disproportionally affected African-Americans in our state and across the 

nation. In turn, they have helped create disproportionate paths and 

outcomes in life and continue to prolong inequality within a system of 

governing built on achieving equality. None of this will change, however, 

until our law governing this issue changes. Law, in every instance, must 

first reflect our highest understanding and then pass that understanding 

onto those people it affects and those who implement it. While a legal 

requirement for officers to exclude race as a motivation for a stop may be 

difficult to enforce, this difficulty should itself not deny its force and effect. 

Law enforcement officers place their lives on the line every day to uphold 

the law under the most difficult circumstances. They serve to protect the 

people at all costs. They would strive to enforce this law too, driven by the 

understanding that identifying and removing race as a motivation for a 

stop will extend protections to people far beyond the moment. This change 

would work to eliminate the unconscious origin of a pervasive source of 

discrimination and allow us to better achieve the equality promised in life 

by our constitution. The law must always serve as the means to achieve 

this end. 
41

The majority suggests our previous interpretations of article I, 

section 8 of the Iowa Constitution to mirror the Fourth Amendment of the 

United States Constitution warrants a parallel analysis of pretextual stops. 

While I respect the wisdom and competency of the Supreme Court, we 

should not adopt its analysis of this issue at the expense of the rights of 

Iowa’s citizens and, in particular, the rights of our citizens of color.7 The 

Supreme Court’s interpretation of constitutional rights under the Federal 

Constitution need not limit the rights provided to Iowans under the Iowa 

Constitution. State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (“[T]he 

Supreme Court’s jurisprudence regarding the freedom from unreasonable 

searches and seizures under the Fourth Amendment—or any other 

fundamental, civil, or human right for that matter—makes for an 

admirable floor, but it is certainly not a ceiling.”). We have routinely 

recognized our authority in “independently construing provisions of the 

Iowa Constitution that are nearly identical to the federal counterpart.” 

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) (“[W]e jealously protect this 

court’s authority to follow an independent approach under our state 

constitution.”). 

Unfortunately, the majority has not utilized our independence in 

deciding the present case. Instead, it ultimately follows the reasoning of 

 7[T]he dual sovereignty found in our federal system provides state courts 

with freedom to formulate their own answers to issues such as what is an 

unreasonable search and seizure, what offends due process, and what 

violates equal protection. But with freedom comes responsibility. And 

responsibility can seem overwhelming. One way to deal with this is to 

refuse to make difficult choices and to rely on ready-made interpretations 

from the U.S. Supreme Court. But this is not the way the federal system 

was intended to work. State courts must resist the temptation to “escape 

from freedom.” The ongoing American experiment in federalism deserves 

nothing less. 

Timothy P. O’Neill, Escape from Freedom: Why “Limited Lockstep” Betrays Our System of 

Federalism, 48 J. Marshall L. Rev. 325, 333–34 (2014). 
42

the United States Supreme Court’s decision in Whren v. United States, 517 

U.S. 806, 819, 116 S. Ct. 1769, 1777 (1996). 

The Whren doctrine is wrong largely because it gives police officers 

too much authority, which has led to the misuse of that authority and has 

allowed police officers to engage in fishing expeditions based on offensive 

motivations. Whren recognized race-based law enforcement as 

unconstitutional but held “[s]ubjective intentions play no role in ordinary, 

probable-cause Fourth Amendment analysis.” Id. at 813, 116 S. Ct. at 

1774. In effect, the decision masks an officer’s improper racial motivations 

when making a traffic stop. Impure motivations are deemed justified by 

finding a traffic violation was committed, however minor that violation may 

be. For this reason, Whren has been widely criticized as legalizing racial 

profiling in the context of traffic stops. See Devon W. Carbado, From 

Stopping Black People to Killing Black People: The Fourth Amendment 

Pathways to Police Violence, 105 Calif. L. Rev. 125, 129 (2017) [hereinafter 

Carbado] (“[T]he Court’s legalization of racial profiling exposes African 

Americans not only to the violence of ongoing police surveillance and 

contact but also to the violence of serious bodily injury and death.”); 

Darrell D. Jackson, Profiling the Police: Flipping 20 Years of Whren on Its 

Head, 85 UMKC L. Rev. 671, 680 (2017) [hereinafter Jackson] (arguing the 

Court’s discussion of racial profiling under the Fourth Amendment 

“authorized the use of racial profiling for all criminal investigations”); Kevin 

R. Johnson, How Racial Profiling in America Became the Law of the Land:

United States v. Brignoni-Ponce and Whren v. United States and the Need 

for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1070 (2010) [hereinafter 

Johnson] (“The Court’s refusal to consider the intent of police officers in 

its Fourth Amendment analysis created a safe haven for racial profiling by 

the police.”). In effect, the Supreme Court “balanced the need of law 
43

enforcement officers to engage in [discriminatory traffic stops] to root out 

crime against the right of minority communities to be free from race-based 

practices.” I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. 

L.J. 835, 859 (2008) [hereinafter Capers] (discussing the consequences of 

the court’s stop-and-frisk decision). 

The majority’s suggestion that the proper constitutional basis for a 

discrimination claim is the Equal Protection Clause neglects the significant 

difficulties in bringing a successful equal protection claim.8 Furthermore, 

the Equal Protection Clause’s civil remedy does not provide relief to 

defendants facing criminal penalties. United States v. Nichols, 512 F.3d 

789, 795 (6th Cir. 2008) (barring the exclusionary rule as a remedy for an 

equal protection claim following an alleged racially motivated stop), 

overruled on other grounds as recognized in United States v. Buford, 632 

F.3d 264, 269 (6th Cir. 2011). But see Terry v. Ohio, 392 U.S. 1, 12, 88 

S. Ct. 1868, 1875 (1968) (stating that the exclusionary rule “is the only 

effective deterrent to police misconduct in the criminal context[] and that 

without it the constitutional guarantee against unreasonable searches and 

seizures would be a mere ‘form of words’ ” (quoting Mapp v. Ohio, 367 U.S. 

643, 648, 81 S. Ct. 1684, 1688 (1961))). 

Even under an equal protection analysis, the ultimate issue is 

whether the disparate treatment is reasonable. Yet, it is article I, section 8 

of the Iowa Constitution and the Fourth Amendment to the United States 

Constitution that specifically require all seizures by law enforcement to be 

“reasonable.” Clearly, the text of the Search and Seizure Clauses support 

 8“On average, to take an equal protection claim to trial costs anywhere from 

$45,000 up to $125,000. Since the average defendant’s income is approximately between 

$23,000 and $60,000,” most avenues for such litigation are unavailable. Jackson, 85 

UMKC L. Rev. at 680 (footnote omitted). 
44

a reasonableness test, and it is not enough to brush the issue of racial

profiling off as only an equal protection claim.9 

The Whren decision “has greatly expanded the authority and power 

of law enforcement officers, and that discretion has exacerbated problems 

with racial profiling in law enforcement.” Johnson, 98 Geo. L.J. at 1076. 

Many people of color feel racial profiling is endemic in current criminal 

enforcement. Id. Amici curiae, in support of Brown, state pretextual traffic 

stops 

[a]ffect[] minorities disproportionately[;] they put People of 

Color in reasonable fear for the bodily safety and even the lives 

of themselves, their children, their loved ones and friends; and 

they exacerbate and perpetuate the profound problem of racial 

disparities in the criminal justice system and society. 

Brief of ACLU of Iowa et al. as Amici Curiae Supporting Appellant at 10, 

State v. Brown, ___ N.W.2d ___ (Iowa 2019) (No. 17–0367). Amici also 

provide statistical data showing people of color, particularly AfricanAmericans, are stopped, cited, and arrested at higher rates than 

Caucasian drivers throughout Iowa. Id. at 16–22 (finding nineteen percent 

of traffic stops in Iowa City involved minority drivers, although they made 

up only ten percent of the city’s drivers, and black drivers in Scott County 

 9Moreover, 

[t]he Fourth Amendment . . . should be read as a protection of what it 

means to be “of the people,” a limitation upon the ability of government to 

infringe upon the right to equal citizenship, equal worth, and equal 

autonomy in conducting searches and seizures. To be clear, I am not 

suggesting that the Fourth Amendment should be read as including 

causes of action based on the denial of equal protection, or as 

incorporating equal protection jurisprudence. What I am suggesting is 

that Fourth Amendment jurisprudence be guided by a commitment to 

equal citizenship.

I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 74 (2009). 
45

were stopped “nearly three times as often as white drivers”) These 

disturbing trends are present nationwide.10 

Even more alarming are instances when “an ordinary traffic stop [is] 

a gateway to extraordinary police violence.” Carbado, 105 Calif. L. Rev. at 

150, 163–64 (noting the police killings of Michael Brown, Walter Scott, Eric 

Garner, Alexia Christian, Sheneque Proctor, and Kendra James started as 

ordinary police interactions). 

The majority contends that Brown has not provided any new 

arguments to justify departing from our holdings in State v. Griffin, 691 

N.W.2d 734, 737 (Iowa 2005), and State v. Predka, 555 N.W.2d 202, 215–

16 (Iowa 1996). It also suggests that racial profiling concerns should not 

inform our decision now because such concerns were present when we 

previously addressed the issue of pretext stops and did not influence our 

decisions. The very fact that racial profiling concerns persist should 

inform our decision today. Time has given us the opportunity to 

understand the importance of addressing these issues, not only for people 

of color who are negatively impacted, but also for all citizens.11 

 10The State of Missouri compiles an annual summary of traffic stop data. Att’y 

Gen. Josh Hawley, 2017 Vehicle Stops Executive Summary, Mo. Att’y Gen., 

https://www.ago.mo.gov/home/vehicle-stops-report/2017-executive-summary# (last 

visited May 17, 2019). The summary includes a disparity index calculated by dividing 

the percentage of traffic stops of a particular group by the percentage of the driving 

population constituted by the same group. Id. Data from 2017 revealed that “accounting 

for their respective proportions of Missouri’s driving-age population, African-Americans 

were stopped at a rate 85% higher than Whites.” Id. 

Data from a similar 2017 Illinois report indicated nearly sixty percent of law 

enforcement agencies reported minority drivers were stopped at a higher rate than were 

Caucasian drivers. Alexander Weiss Consulting, LLC, Illinois Traffic and Pedestrian Stop 

Study: Traffic Stop Analysis 4–5 (Ill. Dep’t of Transp. 2017). 

11Conceptual writings and empirical research have suggested that Whites 

experience both positive (i.e., privileges) and negative (i.e., costs) 

consequences as a result of racism. . . . The phrase costs of racism to 

Whites is defined as negative psychosocial consequences that Whites 

experience as a result of the existence of racism. Examples of these costs 

include guilt and shame, irrational fear of people of other races, distorted 
46

Since Griffin and Predka, our understanding of justice and the rights 

entailed in maintaining justice have evolved. Marginalized groups have 

continued to mobilize so that their voices can be heard and their struggles 

recognized. See, e.g., Kimberlé Williams Crenshaw et al., African Am. 

Policy Forum, Say Her Name: Resisting Police Brutality Against Black 

Women 2 (2015) (“Say Her Name sheds light on Black women’s experiences 

of police violence in an effort to support a gender-inclusive approach to 

racial justice that centers all Black lives equally.”). The efforts of 

marginalized groups have been impactful in raising awareness and 

altering society’s collective understanding of the role race plays in policing. 

While it is unfortunate we did not recognize racial bias as a compelling 

consideration when deciding Griffin and Predka, it would be a deliberate 

oversight not to do so now. As a branch of government committed to 

justice and protection of the rights of all Iowans, we should not be so 

beholden to the past that we prevent ourselves from enacting justice in the 

present. In fact, Iowa’s judiciary has consistently led the charge in 

recognizing civil liberties through thoughtful consideration of our 

constitution and application of the truth as derived by cultural 

understandings, societal changes, and research. See Varnum v. Brien, 763 

N.W.2d 862, 906 (Iowa 2009) (holding a statute prohibiting same-sex 

couples from marriage unconstitutional six years before the United States 

Supreme Court followed suit); Coger v. Nw. Union Packet Co., 37 Iowa 145, 

159–60 (1873) (barring common carriers from discriminating on the basis 

 

beliefs regarding race and racism, and limited exposure to people of 

different races and cultures. 

Lisa B. Spanieman et al., Psychosocial Costs of Racism to Whites: Exploring Patterns Through Cluster 

Analysis, 53 J. of Counseling Psychol. 434, 434–35 (2006) (citations omitted) (analyzing the psychosocial 

costs of racism to Whites through a study of 230 White students, aged 18–44, attending a Midwestern 

university). 
47

of race); Clark v. Bd. of Dirs., 24 Iowa 266, 277 (1868) (concluding the 

segregation of schools based on race was unconstitutional eighty-six years 

before the United States Supreme Court decided the same); In re Ralph, 1 

Morris 1, 7 (1839) (recognizing the freedom of a former slave in the Iowa 

Supreme Court’s premier case); Russell E. Lovell II, Shine on, You Bright 

Radical Star: Clark v. Board of School Directors (of Muscatine)—the Iowa 

Supreme Court’s Civil Rights Exceptionalism, 67 Drake L. Rev. 175, 192 

(2019) (discussing, among others, a 1869 Iowa court decision that allowed 

Arabella Mansfield to become the nation’s first female attorney). 

Additionally, the passage of time since Whren, Griffin, and Predka

has not only given way to a greater understanding of implicit bias,12 but 

also a greater understanding of the adverse role it can play in the vast 

discretionary decisions that occur throughout our criminal justice system. 

This new understanding supports a new approach to confronting implicit 

bias in all areas of our justice system, including racial profiling in traffic 

offenses. Moreover, the time and place for this new approach fits Iowa. 

The growing understanding of implicit bias within the last decade has 

supported a branchwide initiative to educate all Iowa judges and judicial 

branch employees on implicit bias. This initiative has provided training to 

all judges and continues today. Thus, our response in Iowa has not been 

to see the problem as too big or too hard to solve, but it has been to work 

to find a solution through greater understanding. We should follow this 

same approach today in response to the problem of racial profiling in traffic 

offenses. 

 12“Implicit biases are the plethora of fears, feelings, perceptions, and stereotypes 

that lie deep within our subconscious, without our conscious permission or 

acknowledgement.” Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury 

Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and 

Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 149 (2010). 
48

Accordingly, the claim by the majority that a departure from Whren

“would create instability in the law, hinder law enforcement efforts, 

weaken the strength of our adversarial system, and undermine public 

confidence in the legal system” is misplaced. In truth, the reasons 

expressed by the majority to follow Whren better describe the 

consequences of the failure to depart from it. 

The majority suggests relying on a reasonableness standard would 

result in judicial overreach, unfairly focusing on an officer’s subjective 

state of mind. Yet, the suggestion that requiring officers to justify their 

objective reasoning would greatly hinder law enforcement is cause for 

concern, particularly because officers should only be utilizing objective 

reasoning when effectuating a traffic stop. It indicates there may be too 

heavy a reliance on pretextual stops. There is no element inherent in 

enforcing traffic laws that require a police officer to engage in subjective 

reasoning before making a traffic stop. Adopting a reasonableness 

standard would not hinder law enforcement’s ability to enforce traffic laws. 

Instead, it encourages equality in the enforcement of these laws. 

The problem with pretextual stops does not stem from officers’ 

enforcement of legitimate traffic laws; it comes from the disparate impact 

resulting from an officer’s ability to make a stop motivated by subjective 

reasons, many times racial, and then only needing to justify the stop by 

citing a minor traffic violation. Or, as in the present case, it comes from 

an officer initially choosing not to enforce a traffic law, then deciding to 

make the stop based on subjective criteria, and then justifying the stop 

based on earlier objective reasons. For all that is known in this case, race 

could have been an unconscious motive operating in the mind of the officer 

from the beginning. Yet, our law does not make the officer accountable for 

the unconscious motive, but allows it to be left in the recesses of the mind 
49

and washed over with other motives such as gang affiliation in this case. 

But even this motive has its own implicit bias because there was no 

evidence of a criminal record or any particular background to show the 

affiliation was of a criminal nature. Gang affiliation can exist in 

neighborhoods for reasons independent of criminal activity and when 

broadly used as a motivation for a stop can have the same effects as using 

race.13 

This permissible use of discretion contributes to inequality in the 

enforcement of traffic laws and subsequent prosecutions. In other cases, 

officers stop drivers not because of known gang affiliation but because of 

the color of their skin or their appearance, the neighborhood they are 

driving in, or any number of impermissible factors. These people are 

subjected to police stops, although others with different affiliations, skin 

color, or neighborhoods, committing similar minor traffic offenses are not. 

This type of policing results in a higher volume of violations found. In the 

many instances in which no wrongdoing is discovered, those subjected to 

the pretextual stops are left feeling targeted, unsettled, and apprehensive 

of law enforcement.14 The “protections meant to curtail law enforcement’s 

abuse of authority during traffic stops” cited by the majority do not address 

 13When applied to “gangs”, risk analyses typically take the form of social 

profiling. This involves constructing a matrix of variables and matching individuals to the 

variables described in the gang matrix. Such processes tend to be descriptive and do little 

to provide a basis for understanding why and how specific groups of young people 

experience problems or find meaning in their lives. . . . [T]here is a strong correlation 

between poverty and crime, yet all poor people do not become engaged in criminal activity; 

nor do all ‘criminals’ originate from poor backgrounds. The same applies to gang

membership and gang activities. 

Rob White, Disputed Definitions and Fluid Identities: The Limitations of Social Profiling 

in Relation to Ethnic Youth Gangs, 8 Youth Justice 149, 157 (2008) (citation omitted).

14“For these target groups, the perception is that being black or Hispanic alone 

carries a penalty: the taint of suspicion, the risk of a traffic stop, the risk of a canine sniff, 

the risk of a search.” Capers, 83 Ind. L.J. at 849. 
50

the disparity in making traffic stops and do nothing to address the problem 

of racial profiling. 

By placing a reasonableness component on the pretext, police will 

still be able to use minor traffic stops to investigate reasonable suspicion 

of other criminal activity, but the practice of pretextual stops unrelated to 

specific and articulable facts of criminal activity will be significantly 

reduced. This approach strikes the balance needed to advance the 

interests of all in our society. 

The majority suggests that the reasonable-officer standard would 

place an undue burden on law enforcement. In criticizing the “mythical 

reasonable officer,” the majority ignores the fact that a reasonable-person 

standard has been routinely applied within the field of search and seizure 

and has not crippled law enforcement’s ability to do their jobs. See, e.g., 

Terry, 392 U.S. at 30, 88 S. Ct. at 1884 (applying a reasonableness 

standard to analysis of stop-and-frisk situations). 

Finally, unlike the majority, I do not believe that departing from 

Whren would weaken our adversarial system or undermine public 

confidence. Just the opposite is true. Applying a reasonableness standard 

would enhance the legitimacy of traffic stops and resulting prosecutions. 

Departing from Whren would demonstrate this court’s refusal to provide a 

safe harbor for implicit biases to thrive. Employing a standard that 

demands fair and unbiased stops could also help to restore trust in law 

enforcement amongst disillusioned demographics.15 

 15In 2017, a nationwide survey indicated confidence in police had risen to fiftyseven percent after a downward slope in 2014 and a record-tying low of fifty-two percent 

in 2015. Jim Norman, Confidence in Police Back at Historical Average, Gallup (July 10, 

2017), https://news.gallup.com/poll/213869/confidence-police-back-historicalaverage.aspx [https://perma.cc/5BGE-JH34]. However, these overall trends disguise 

significant drops across several demographics. Id. 

Though the overall numbers have rebounded, the years of national turmoil 

have only deepened the divide in the confidence that Americans of different 
51

In effect, the majority concludes that our inability to control every 

variable leading to disparate enforcement means we should avoid 

addressing the issue of pretextual stops altogether. I disagree. The factors 

leading to disparate enforcement may be numerous, but the vastness of 

the problem emphasizes the necessity of our attention and in no way 

absolves us from evaluating the constitutional issue presented in this 

case. The difficulties in addressing this issue cannot excuse its 

continuation. 

The majority remains hopeful that the employment of technology, 

such as police body cams and cell phone videos, will help monitor racial 

profiling. Furthermore, the majority quotes State v. Lopez for the 

proposition that “[t]he more evidence that a detention was motivated by 

police suspicions unrelated to the traffic offense, the less credible the 

officer’s assertion that the traffic offense occurred.” 873 P.2d 1127, 1138–

39 (Utah 1994). Yet, under Whren, the consequences remain the same no 

matter whether the officer was racially motivated or whether video footage 

caught the encounter as long as a traffic offense occurred. Thus, people 

of color are still left with little protection against subjective enforcement of 

the law. 

Current solutions to the problem of pretextual stops may not be 

perfect.16 However, they are a profound step in the right direction. There 

 

ages, ethnicities and political beliefs say they have in the police. The loss 

of confidence is most apparent among Hispanics, liberals and those 

younger than age 35. 

Id. Confidence rates also dropped among Black citizens, moderates, and Democrats. Id. 

16It has been suggested the value of the “would have” test is limited to situations 

when police officers admit to using subjective motivations. Margaret M. Lawton, The 

Road to Whren and Beyond: Does the “Would Have” Test Work?, 57 DePaul L. Rev. 917, 

918–19 (2008). Additionally, despite adopting the test, Washington courts may be 

reluctant to find that a police officer is lying about their motivations or “have difficulty 

discerning pretextual behavior without an admission.” Id. at 919. 
52

is value in providing a constitutionally sound standard for defendants to 

challenge police stops motivated by impermissible considerations. It 

reinforces and legitimizes the principle “that the Constitution prohibits 

selective enforcement of the law based on considerations such as race.” 

Whren, 517 U.S. at 813, 116 S. Ct. at 1774. Moreover, it provides 

defendants with the opportunity to meaningfully appeal adverse decisions, 

an avenue effectively closed to them now. This is not only beneficial for 

defendants but to our court system and the development of our caselaw. 

It signals to law enforcement and courts that the use of implicit bias must 

be acknowledged and curtailed. 

The majority’s suggestion that the proposed solution will not achieve 

the desired result because an officer who engages in racial profiling is likely 

to be untruthful about it is off the mark. It neglects what might be the 

most important aspect of this case and this issue. Police officers, like the 

rest of us, have implicit biases they might not recognize. Simply acting on 

these biases does not indicate an officer’s propensity to be untruthful. We 

should have more faith in our law enforcement and give them the 

opportunity to recognize their biases so that they can acknowledge and 

limit acting on them. For example, officers should take the opportunity to 

review the statistical data from their stops and analyze whether it reveals 

disproportionate enforcement. Furthermore, law enforcement agencies 

should invest in implicit-bias training so that all officers are aware of it. 

These types of changes can be enacted even in the absence of judicial 

action.17 As it stands, the majority makes no move toward eliminating a 

 17It has been suggested that historically marginalized groups should utilize 

profiling as a tool themselves “to identify, surveil, and if necessary, instigate proceedings 

against problem police officers.” Jackson, 85 UMKC L. Rev. at 688. “[D]eveloping an 

offender profile[] is to present information that describes the characteristics of a probable 

offender and aid[s] in the analysis of the data for predicting future offenses and/or 

victims.” Id. at 685; see also Linh Ta, Des Moines Police Know They’re Biased. Here’s 
53

practice that we recognize as unconstitutionally discriminatory. If our law 

projects that this practice is wrong, we can properly assume officers have 

enough respect for the law to comply with it. We would take a big step 

forward today if we were to use article I, section 8 of our constitution to at 

least say it is illegal for a police officer to use race or any other protected 

classification as the motivating factor to make a stop for a minor traffic 

violation, instead of following the Whren doctrine. 

Judges have always been called upon to understand each issue that 

comes into the court from both perspectives and to then use this dual 

vision to build a model that solves the problem. The issues of racial 

profiling and implicit bias presented in this case are uniquely complex, but 

they can only be solved by understanding this complexity and by building 

a standard that projects this understanding to all. 

 

How They’re Trying to Mitigate It, Des Moines Register (Aug. 13, 2017, 4:04 PM), 

https://www.desmoinesregister.com/story/news/crime-and-courts/2017/08/13/desmoines-police-know-theyre-biased-heres-how-theyre-trying-mitigate-it/311895001/. 

Another proposal supports harsher penalties for officers who commit perjury 

when testifying about an incident. Capers, 83 Ind. L.J. at 873. Such officers “should be 

investigated and prosecuted to the same extent a civilian witness would be.” Id. 
54

#17–0367, State v. Brown

APPEL, Justice (dissenting).

Under article I, section 8 of the Iowa Constitution, can a police officer 

use a common minor traffic violation as an after-the-fact pretext to seize a 

vehicle and its passengers when the actual reason for the stop was 

constitutionally inadequate? Today’s majority says yes. I say NO!

I. Summary.

History demonstrates that one of the fundamental purposes of 

search and seizure law is to cabin the discretion of police officers in 

choosing whom to subject to search and seizure. Generalized discretion 

in the hands of a law enforcement official has been anathema to the search 

and seizure provisions of both the Fourth Amendment and article I, section 

8 of the Iowa Constitution. No case considering search and seizure issues 

can be consistent with the history and purpose of the constitutional 

provisions without carefully considering whether the discretion of police 

officers is so unbridled that it vests in them power equivalent to the hated 

general authority to search.

As will be seen below, in my view, law enforcement officers have what 

amounts to general authority to seize drivers on the open road due to the 

density of traffic regulations and the pervasiveness of minor violations. 

That means that the traditional limitations to search and seize do not 

apply on the open road and the risk of arbitrary enforcement is great. As 

a result, consistent with the history and purpose of search and seizure 

law, there must be constitutional restraints on the generalized discretion 

in order to protect citizens from arbitrary actions of law enforcement.

For many years, our legal tradition frowned on pretextual searches 

as violating search and seizure principles. Early federal cases questioned 

the validity of pretextual searches. And up until the 1990s, the trend 
55

among state courts was to disapprove pretextual searches as violating 

search and seizure. Iowa caselaw was part of the general trend for 

decades.

All that changed when the Supreme Court announced its decision 

in Whren v. United States, 517 U.S. 806, 811–16, 116 S. Ct. 1769, 1773–

76 (1996). As will be explored below, Whren departed from the trend in 

state courts and made a flawed turn in the development of search and 

seizure law. In my view, the wrong turn made in Whren should not be 

emulated by this court in its interpretation of the Iowa Constitution.

As a state supreme court, we are not bound by Whren but should 

only consider it to the degree it is persuasive. It is well established in other 

states and in Iowa that the mere fact there is a similarity in the language 

of the Fourth Amendment and article I, section 8 of the Iowa Constitution 

does not mean that federal precedent has any more power beyond its 

ability to persuade. I find Whren unpersuasive because of its failure to 

limit general police discretion to engage in roadway seizures. In light of its 

unconvincing rationale and the weakness of existing authority, the 

doctrine of stare decisis does not excuse us from considering the validity 

of pretextual stops under the Iowa Constitution.

The decision in this case is bad law. The approach of the majority 

fails to recognize the history of search and seizure law and the importance 

of curbing generalized law enforcement discretion, fails to recognize that 

law enforcement in practice has general authority to stop vehicles on the 

open road due to the pervasiveness of regulations, fails to recognize or deal 

with the problems of implicit bias, fails to recognize the reality of racial 

profiling, fails to recognize the shortcomings of alternative remedies, and 

fails to recognize the constitutional harms caused by generalized seizures 

on the open road.
56

Because of the importance of the issue, an in-depth analysis of the 

history of search and seizure law, the doctrinal developments in the law, 

and the impact on the law in light of current realities is appropriate. We 

simply should not bless pretextual stops by law enforcement without a 

thorough understanding of where the law has been, how it has evolved, 

and how it might develop.

II. Factual Background and Proceedings.

A. Initial Proceedings. On November 23, 2015, the State filed a 

trial information charging Scottize Brown with a second offense of 

operating a motor vehicle while intoxicated, an aggravated misdemeanor, 

in violation of Iowa Code section 321J.2(2)(b) (2016). Brown pled not 

guilty. She subsequently filed a motion to suppress, claiming she was 

unlawfully subjected to a pretextual stop. In her motion to suppress, 

Brown claimed that the stop violated both the Fourth Amendment of the 

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

B. Evidence Presented at the Motion to Suppress Hearing. At 

the motion to suppress hearing, Waterloo police officer Justin Brandt 

testified that he observed a Lincoln Navigator cross the centerline while 

driving through an intersection on a yellow light in Waterloo, Iowa, in the 

early morning hours. Officer Brandt told the court he followed the vehicle 

and “ended up running the license plate on it.” He determined that the 

registered owner of the vehicle had a valid license. Officer Brandt testified 

that he then “got curious” and, “having the time to do so,” opened up a 

database and “somewhere in that database [he] ended up seeing that there 

is some kind of connection with gang activity or something with the 

registered owner.” Officer Brandt further testified that he noticed that one 

of the two license plate lamps on the vehicle was not operating. According 

to Brandt, he “wasn’t even going to stop” the car for the traffic violations 
57

until he ran the plate and learned of the gang affiliation of the owner. Upon 

learning of the gang affiliation, he wanted to “poke around and see what’s 

up.”

Officer Brandt told the court he then followed the vehicle for a couple 

of blocks, after which he activated his emergency lights to conduct a traffic 

stop. The vehicle continued on, however, and Officer Brandt initiated his 

siren. At that point, the vehicle stopped.

Officer Brandt approached the vehicle and obtained identification 

from Brown as the driver of the vehicle. Officer Brandt testified that he 

could smell alcohol and saw an open can of beer in the front cup holder. 

According to Officer Brandt, Brown admitted to drinking earlier but said 

the open can was not hers. Officer Brandt determined that Brown was 

driving with a suspended license and transported her to the police station. 

At the police station, Officer Brandt stated, Brown failed several field 

sobriety tests and refused to submit to a breath test.

C. District Court Ruling on the Motion to Suppress. The district 

court denied Brown’s motion to suppress. It noted that Officer Brandt first 

observed the vehicle at a red light where it made an improper turn. The 

district court found that after observing the improper turn, Officer Brandt 

determined that the registered owner was associated with local gang 

activity. It further found that Officer Brandt followed the vehicle to another 

red light, where he observed one of the vehicle’s license plate lights was 

not properly functioning. According to the district court, it was apparent 

that Officer Brandt would not have made the stop absent the gang 

affiliation of the registered owner.

The district court held that notwithstanding the subjective 

motivation of Officer Brandt, he had observed a traffic infraction—the 

improper turn—as well as an equipment violation—the license plate light. 
58

It held that because there were objective violations, the subjective motive 

of Officer Brandt did not matter. In support of its legal conclusion, the 

district court cited State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996), 

and State v. Harrison, 846 N.W.2d 362 (Iowa 2014). As a result, the district 

court denied the motion to suppress.18

The matter proceeded to trial on the minutes of testimony. The 

district court found Brown guilty of operating a motor vehicle while 

intoxicated, second offense. Brown appealed.

D. Issues on Appeal. On appeal, Brown argues that the district 

court erred by failing to suppress the evidence arising from the seizure of 

the automobile she was driving. Brown claims that the stop was not, in 

fact, initiated as a result of a minor traffic infraction but was pretextual in 

nature and that the real reason for the stop was constitutionally 

insufficient. On appeal, Brown makes her claim solely under article I, 

section 8 of the Iowa Constitution.

III. Standard of Review.

This court reviews claims of unconstitutional searches and seizures 

de novo. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). In engaging in 

de novo review, “[w]e independently evaluate the totality of the 

circumstances found in the record, including the evidence introduced at 

both the suppression hearing and at trial.” State v. Vance, 790 N.W.2d 

 18The district court did not cite either the Fourth Amendment of the United States 

Constitution or article I, section 8 of the Iowa Constitution. Under these circumstances, 

claims under both Constitutions are 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.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002)); cf.

State v. Childs, 898 N.W.2d 177, 191 (Iowa 2017) (Hecht, J., dissenting) (“ ‘[W]hen there 

are parallel constitutional provisions in the Federal and State Constitutions and a party 

does not indicate the specific constitutional basis, we regard both federal and state 

constitutional claims as preserved,’ even if the district court did not rule on both.” 

(quoting State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015))).
59

775, 780 (Iowa 2010). Here, however, Brown waived her right to a jury 

trial and pled guilty. As a result, there is no trial court evidentiary record 

to review.

IV. Overview of Search and Seizure Law.

A. Historical Overview of Relevant Search and Seizure Law.

1. Hatred of general warrants and writs of assistance animates the 

American Revolution. In several recent cases, this court explored the 

history of search and seizure law under the Federal and Iowa 

Constitutions. See, e.g., Godfrey v. State, 898 N.W.2d 844, 866–67 (Iowa 

2017); State v. Short, 851 N.W.2d 474, 481–84 (Iowa 2014); State v. 

Baldon, 829 N.W.2d 785, 805–09 (Iowa 2013) (Appel, J., specially 

concurring); State v. Ochoa, 792 N.W.2d 260, 269–75 (Iowa 2010). A brief 

summary of this history provides the context for consideration of the 

questions posed in this case.

One of the great advancements in English law during the eighteenth 

century was the development and clear articulation of judicial protection 

of individuals from arbitrary, government-sponsored search and seizure. 

The key cases center around the efforts of Lord Halifax’s government to 

suppress dissent. Government agents generally ransacked residences and 

premises looking for telltale signs of involvement in the publication of a 

scurrilous antigovernment broadside. Thomas K. Clancy, The Fourth 

Amendment: Its History and Interpretation § 2.2.3.2, at 36 (2008); Andrew 

E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and 

Seizure, 1789–1868, at 20 (2006). In a series of cases, the English courts 

held that such searches without probable cause were illegal and imposed 

hefty fines against the perpetrators. Entick v. Carrington (1765) 95 Eng. 

Rep. 807, 818; 2 Wils. K.B. 275, 292; Wilkes v. Wood (1763) 98 Eng. Rep. 
60

489, 498–99; Lofft 1, 18–19; Huckle v. Money (1763) 95 Eng. Rep. 768, 

768–69; 2 Wils. K.B. 205, 205–07.

The forces of resistance to generalized governmental searches 

traveled in the boats over to the New World and landed in the infamous 

Paxton’s Case. See Tracey Maclin, The Complexity of the Fourth 

Amendment: A Historical Review, 77 B.U. L. Rev. 925, 946 (1997) 

[hereinafter Maclin, The Complexity of the Fourth Amendment]. In Paxton’s 

Case, James Otis Jr., a prominent Massachusetts lawyer and powerful 

orator, bitterly attacked the Crown’s provincial agents for engaging in 

arbitrary searches under generalized writs of assistance that did not name 

a specific individual but authorized the Crown’s minions to search in their 

discretion for evidence of evasion of British mercantile policy. William J. 

Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602–1791, 

at 377–82, 385–95 (2009) [hereinafter Cuddihy]; Maclin, The Complexity of 

the Fourth Amendment, 77 B.U. L. Rev. at 946.

Otis lost the case, but the powerful blows struck by his forceful 

argument were not lost on John Adams, who declared, “Then and there 

the Child Independence was born.” Jacob W. Landynski, Search and 

Seizure and the Supreme Court: A Study in Constitutional Interpretation 37 

(1966) (quoting Letter from John Adams to William Tudor (Mar. 29, 1817), 

in 10 The Works of John Adams 244, 247–48 (Charles Francis Adams ed., 

Bos., Little, Brown & Co. 1856)). Adams remembered the lessons of 

Paxton’s Case when he drafted the Massachusetts Constitution of 1780. 

Leonard W. Levy, Origins of the Bill of Rights 158 (1999); John M. Murrin, 

From Liberties to Rights: The Struggle in Colonial Massachusetts, in The Bill 

of Rights and the States: The Colonial and Revolutionary Origins of 

American Liberties 63, 91 (Patrick T. Conley & John P. Kaminski eds., 

1992). In the Massachusetts Constitution, Adams included a search and 
61

seizure provision that limited the authority of the government to engage in 

searches without a particularized warrant. Thomas Y. Davies, Recovering 

the Original Fourth Amendment, 98 Mich. L. Rev. 547, 684–85 (1999) 

[hereinafter Davies]. But cf. Tracey Maclin, Race and the Fourth 

Amendment, 51 Vand. L. Rev. 333, 333–36 (1998) [hereinafter Maclin, 

Race and the Fourth Amendment] (discussing arbitrary and discriminatory 

search and seizure practices of slave patrols in the colonial American 

South). See generally Akhil Reed Amar, Fourth Amendment First Principles, 

107 Harv. L. Rev. 757, 779–80 & n.87 (1994) (discussing historical 

predicate for the particularized-warrant requirement in American law).

The precedent set in the Massachusetts Constitution, and other 

state constitutions enacted shortly thereafter, had a dramatic influence on 

the development of the United States Constitution. See Short, 851 N.W.2d 

at 481–82. The United States Constitution was ratified only upon the 

assurance by James Madison and others that a series of amendments 

known as the Bill of Rights would be adopted after enactment. In drafting 

the Bill of Rights, Madison looked to state constitutional tradition in 

developing what became the Fourth Amendment to the United States 

Constitution. William J. Brennan, Jr., State Constitutions and the 

Protection of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977); see 

Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What 

Individual Rights Are Really Deeply Rooted in American History and 

Tradition?, 85 S. Cal. L. Rev. 1451, 1454–55, 1491–92 (2012) [hereinafter 

Calabresi et al.]. Indeed, all of the Bill of Rights provisions had 

predecessors in prior state constitutions. See Calabresi et al., 85 S. Cal. 

L. Rev. at 1454–55, 1491–92. The notion of a bill of rights was not a 

concept developed by the federal framers and then copied by the states, 
62

but was a concept embraced by state constitutions and later adopted by 

the federal framers. Short, 851 N.W.2d at 481–82.

Iowa adopted two state constitutions: the first in 1846 and the 

second in 1857. See id. at 482. The search and seizure language adopted 

in article I, section 8 of both the Iowa Constitution of 1846 and of 1857 is 

nearly identical to the Federal Constitution except for the use of a 

semicolon instead of a comma between the reasonableness clause and the 

warrant clause. Compare U.S. Const. amend. IV, with Iowa Const. art. I, 

§ 8. The language in the Federal Constitution was largely derived from 

eight state constitutions that had search and seizure provisions prior to 

the adoption of the federal document. See Bernard Schwartz, The Great 

Rights of Mankind: A History of the American Bill of Rights 88 (expanded 

ed. 1992).

Although the language in the Fourth Amendment and article I, 

section 8 is similar. there is no reason for a state court to be “bound” by 

federal interpretations of the Fourth Amendment. As noted by Judge 

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

constitutional guarantees . . . , even guarantees with the same or similar 

words, must be construed the same.” Short, 851 N.W.2d at 487 (quoting 

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

59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter Sutton]). We have 

explained the principles of independent interpretation of the Iowa 

Constitution on several occasions. See, e.g., id. at 481–92; Baldon, 829 

N.W.2d at 803–34; State v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011); 

Ochoa, 792 N.W.2d at 264–67.

We are not alone. See, e.g., Wright v. State, 108 N.E.3d 307, 315 

(Ind. 2018) (explaining that the state constitution demands independent 

analysis in light of its uniqueness); State v. Gerschoffer, 763 N.E.2d 960, 
63

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) (pointing out that the New York Court of Appeals is “bound to 

exercise its independent judgment and is not bound by a decision of the 

Supreme Court of the United States limiting the scope of similar 

guarantees in the Constitution of the United States”); State v. Arrington, 

319 S.E.2d 254, 260 (N.C. 1984) (“In construing provisions of the 

Constitution of North Carolina, this Court is not bound by opinions of the 

Supreme Court of the United States construing even identical provisions 

in the Constitution of the United States.”); Commonwealth v. Edmunds, 

586 A.2d 887, 895–96 (Pa. 1991) (“Although the wording of the 

Pennsylvania Constitution is similar in language to the Fourth 

Amendment of the United States Constitution, we are not bound to 

interpret the two provisions as if they were mirror images, even where the 

text is similar or identical.”); O’Boyle v. State, 117 P.3d 401, 408 (Wyo. 

2005) (noting that the search and seizure provision of the Wyoming 

Constitution, which parallels the Fourth Amendment, “constitutes a 

separate and independent source of protection of the rights of Wyoming 

citizens”). See generally Baldon, 829 N.W.2d at 824.

2. Search and seizure concepts: Requirement of justification 

supporting particular searches and protection of the public against arbitrary 

government action. The search and seizure provisions of the Federal 

Constitution and the Iowa Constitution perform two functions. First, the 

search and seizure provisions are designed to ensure that government 

searches and seizures are justified. The justification ordinarily requires 

the state to establish to the satisfaction of a neutral magistrate that the 

proposed search or seizure is supported by probable cause and that the 

search is limited both with respect to its scope and purpose.
64

Second, however, the search and seizure provisions are designed to 

ensure that the government does not engage in the arbitrary exercise of 

power. For example, in Entick, Judge Pratt bristled at the notion that the 

Crown could willy-nilly engage in searches based on common activity. 95 

Eng. Rep. at 818; 2 Wils. K.B. at 292. Judge Pratt acknowledged that 

although prior caselaw said that a man may be “punishable for having a 

libel in his private custody,” “half the kingdom would be guilty . . . if libels 

may be searched for and seized by whomsoever and wheresoever the 

Secretary of State thinks fit.” Id.

Just as in Wilkes, Entick, and other cases, the attacks against writs 

of assistance in America prior to the American Revolution were also based 

on the potential of arbitrary enforcement of broadly framed, general power. 

As noted by the Supreme Court in one of its first Fourth Amendment cases, 

James Otis declared the writs of assistance were

“the worst instrument of arbitrary power, the most destructive 

of English liberty and the fundamental principles of law, that 

ever was found in an English law book;” since they placed “the 

liberty of every man in the hands of every petty officer.”

Boyd v. United States, 116 U.S. 616, 625, 6 S. Ct. 524, 529 (1886) (quoting 

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest 

upon the Legislative Power of the States of the American Union 368 (Bos., 

Little, Brown & Co., 5th ed. 1883)), abrogations on other grounds 

recognized by Fisher v. United States, 425 U.S. 391, 407–09, 96 S. Ct. 

1569, 1579–80 (1976). “[C]olonists who battled the British did not trust 

or defer to the judgments of British customs officials” in furthering what 

the British, no doubt, thought was the critically important public policy of 

financing the cost of the public defense of the colonists, through arbitrary 

search and seizure of untaxed goods authorized by open-ended writs. See

Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & 
65

Mary L. Rev. 197, 248 (1993) [hereinafter Maclin, The Central Meaning of 

the Fourth Amendment].

Indeed, just as, according to Entick, half the kingdom would be 

subject to arbitrary search and seizure because of the prevalence of private 

libel, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292, smuggling to avoid taxes in 

the colonies was extremely common, Barbara C. Salken, The General 

Warrant of the Twentieth Century? A Fourth Amendment Solution to 

Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221, 

255–56 (1989). It is not surprising that, in the New World, warnings arose 

about unfettered discretion to search and seize. In words echoing Judge 

Pratt, Mercy Otis Warren, James Otis’s daughter, cautioned that without 

a Bill of Rights, the proposed Federal Constitution would tolerate “the 

insolence of any petty revenue officer to enter our houses, search, insult, 

and seize at pleasure.” Paul Finkelman, The Ten Amendments as a

Declaration of Rights, 16 S. Ill. U. L.J. 351, 392 (1992) [hereinafter 

Finkelman] (quoting A Columbian Patriot (Mercy Otis Warren), 

Observations on the New Constitution, and on the Federal and State 

Conventions (1788), reprinted in 16 The Documentary History of the 

Ratification of the Constitution 272, 281 (Merrill Jensen ed., 1976)). In 

short, the “general warrants known as writs of assistance [that] . . . 

bedeviled the colonists” remained “[v]ivid in the memory of the newly 

independent Americans.” Stanford v. Texas, 379 U.S. 476, 481, 85 S. Ct. 

506, 510 (1965).

In the words of Professor Anthony Amsterdam in his often cited and 

unsurpassed article on the Fourth Amendment, search and seizure law 

protects against not only unjustified searches but also arbitrary searches 

and seizures “conducted at the discretion of executive officials, who may 

act despotically and capriciously in the exercise of the power to search and 
66

seize.” Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 

Minn. L. Rev. 349, 411 (1974) [hereinafter Amsterdam]. Professor 

Amsterdam went on to explain,

A paramount purpose of the fourth amendment is to prohibit 

arbitrary searches and seizures as well as unjustified 

searches and seizures. . . . Arbitrary searches and seizures 

are “unreasonable” searches and seizures; ruleless searches 

and seizures practiced at the varying and unguided discretion 

of thousands of individual peace officers are arbitrary 

searches and seizures; therefore, ruleless searches and 

seizures are “unreasonable” searches and seizures.

Id. at 417. Before the innovations in search and seizure doctrine in the 

Burger–Rehnquist–Roberts era, the Supreme Court repeatedly recognized 

that the constitutional limitations on search and seizure protect people 

against arbitrary government acts. See, e.g., Camara v. Mun. Ct. of S.F., 

387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967); see also United States v. 

Ortiz, 422 U.S. 891, 895, 95 S. Ct. 2585, 2588 (1975); United States v. 

Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2579 (1975).

By controlling otherwise unfettered search and seizure discretion of 

law enforcement, the Fourth Amendment, from the get-go, protected 

unpopular minorities against majoritarian government institutions. For 

example, Madison—the author of the Fourth Amendment—was well aware 

of the general searches of the homes of unpopular minority Philadelphia 

Quakers whose pacifist inclinations were thought to be evidence that they 

were British spies. See Cuddihy at 618–19; Anthony C. Thompson, 

Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. 

L. Rev. 956, 996 (1999) [hereinafter Thompson]. Although AfricanAmericans were not afforded equal status by the federal government until 

at least the passage of the Reconstruction Amendments, the notion that 

the Fourth Amendment was designed to protect powerless minorities 

seems to have been well established. See Thompson, 74 N.Y.U. L. Rev. at 
67

996–98. As noted by prominent legal scholar John Hart Ely, the Fourth 

Amendment is “concerned with avoiding indefensible inequities in 

treatment” as it may be seen as a “harbinger of the Equal Protection 

Clause.” John Hart Ely, Democracy and Distrust: A Theory of Judicial 

Review 97 (1980).

In light of the above history, Chief Justice Warren Burger, then 

serving on the D.C. Circuit Court of Appeals, accurately observed that the 

search and seizure provisions of the Fourth Amendment reflect “deeply 

rooted national skepticism toward police and indeed all public authority,” 

“a sort of briny irreverence toward officials.” Warren E. Burger, Who Will 

Watch the Watchman?, 14 Am. U. L. Rev. 1, 1, 4 (1964) [hereinafter Burger] 

(quoting Edmond Cahn, The Predicament of Democratic Man 24 (1961) 

[hereinafter Cahn]). The founders “viewed official power with an almost 

paranoid suspicion; and they believed that suspicion justified by power’s 

inherent nature.” Donald Dripps, Living With Leon, 95 Yale L.J. 906, 938 

(1986). Professor Amsterdam, after reviewing the history of the Fourth 

Amendment, wrote that “[t]he Bill of Rights in general and the fourth 

amendment in particular are profoundly anti-government documents.” 

Amsterdam, 58 Minn. L. Rev. at 353. Professor Tracey Maclin agrees, 

noting that “the central meaning of the Fourth Amendment is distrust of 

police power and discretion.” Maclin, The Central Meaning of the Fourth 

Amendment, 35 Wm. & Mary L. Rev. at 201.

The Supreme Court reflected the attitude of the Revolutionary Era 

when it observed in McDonald v. United States that “[p]ower is a heady 

thing; and history shows that the police acting on their own cannot be 

trusted.” 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948). Similarly, in 

Trupiano v. United States, the Supreme Court stated that “sad experience 

had taught [the people of the United States] that the right to search and 
68

seize should not be left to the mere discretion of the police.” 334 U.S. 699, 

709–10, 68 S. Ct. 1229, 1234 (1948), overruled in part on other grounds by

United States v. Rabinowitz, 339 U.S. 56, 65–66, 70 S. Ct. 430, 435 (1950), 

overruled by Chimel v. California, 395 U.S. 752, 766–68, 89 S. Ct. 2034, 

2041–43 (1969). In Johnson v. United States, the Supreme Court 

emphasized that the Constitution places individual interests in privacy, 

personal security, and human dignity on a higher plane than society’s 

interest in catching criminals. See 333 U.S. 10, 13–14, 68 S. Ct. 367, 368–

69 (1948).

While article I, section 8 of the Iowa Constitution was adopted 

several decades after the Federal Constitution and the Bill of Rights, the 

Iowa constitutional provision was also designed to protect individuals 

against the unjustified and arbitrary exercise of government power. 

Indeed, the placement of the Iowa Bill of Rights in the very first article of 

the Iowa Constitution emphasizes its constitutional importance. See 

Baldwin v. City of Estherville, 915 N.W.2d 259, 285 (Iowa 2018) (Appel, J., 

dissenting). Further, article I, section 1 of the Iowa Constitution, the 

prelude to all other provisions of article I, emphasizes the “inalienable” 

rights of Iowans. Iowa Const. art. I, § 1; see Baldwin, 915 N.W.2d at 285. 

According to George Ells, chair of the Committee on the Preamble and Bill 

of Rights of the 1857 Iowa Constitutional Convention, our Bill of Rights

would enlarge, and not curtail[,] the rights of the people . . . 

[and] put upon record every guarantee that could be 

legitimately placed there in order that Iowa . . . [would] have 

the best and most clearly defined Bill of Rights.

1 The Debates of the Constitutional Convention of the State of Iowa 100 

(W. Blair Lord rep., 1857) [hereinafter The Debates], https://

www.statelibraryofiowa.org/services/collections/law-library/iaconst. See 

generally Short, 851 N.W.2d at 482–83 (discussing development of Iowa’s 
69

Bill of Rights). If the Fourth Amendment is to be read with a “briny 

irreverence” toward government power, Burger, 14 Am. U. L. Rev. at 4 

(quoting Cahn at 24), the approach applies with equal if not greater force 

to article I, section 8 of the Iowa Constitution.

B. Dynamic Development of State and Federal Search and 

Seizure Doctrine.

1. Federal doctrine: Abandonment of warrant-preference approach in 

favor of open-ended “reasonableness.” Over the years, the United States 

Supreme Court has struggled to develop a coherent body of law under the 

Fourth Amendment. See generally, e.g., Coolidge v. New Hampshire, 403 

U.S. 443, 483, 91 S. Ct. 2022, 2047 (1971) (acknowledging lack of 

consistency and clarity in the Court’s Fourth Amendment cases); 

Amsterdam, 58 Minn. L. Rev. at 349. Particularly after the horrifying 

search and seizure abuses in Germany before and during World War II, 

however, the United States Supreme Court increasingly emphasized the 

role of the Fourth Amendment in cabining the exercise of arbitrary 

governmental power.

The leading Court historians on search and seizure were Justice 

Robert Jackson, the chief counsel at Nuremburg, and Justice Felix 

Frankfurter. See generally Rabinowitz, 339 U.S. at 68–69, 70 S. Ct. at 436 

(Frankfurter, J., dissenting); Amsterdam, 58 Minn. L. Rev. at 369; Victoria 

A. Graffeo, Robert H. Jackson: His Years as a Public Servant “Learned in 

the Law,” 68 Albany L. Rev. 539, 546 (2005). Justice Jackson noted,

[T]he forefathers, after consulting the lessons of history, 

designed our Constitution to place obstacles in the way of a 

too permeating police surveillance, which they seemed to 

think was a greater danger to a free people than the escape of 

some criminals from punishment.
70

United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229 (1948). 

Further, Justice Jackson wrote that search and seizure rights

are not mere second-class rights but belong in the catalog of 

indispensable freedoms. Among deprivations of rights, none 

is so effective in cowing a population, crushing the spirit of 

the individual and putting terror in every heart. Uncontrolled 

search and seizure is one of the first and most effective 

weapons in the arsenal of every arbitrary government.

Brinegar v. United States, 338 U.S. 160, 180, 69 S. Ct. 1302, 1313 (1949) 

(Jackson, J., dissenting). Similarly, Justice Frankfurter observed, “The 

security of one’s privacy against arbitrary intrusion by the police—which 

is at the core of the Fourth Amendment—is basic to a free society.” Wolf 

v. Colorado, 338 U.S. 25, 27, 69 S. Ct. 1359, 1361 (1949), overruled on 

other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S. Ct. 1684, 

1691 (1961).19

The influence of Justices Jackson and Frankfurter continued after 

they left the bench. Eventually, the Supreme Court developed an approach 

to the open-textured language of the Fourth Amendment known as the 

warrant-preference theory. See generally Cuddihy at 602, 633–37, 734–

42 (concluding that the warrant-preference approach was the most 

consistent with the founders’ intentions); Morgan Cloud, Searching 

 19State courts have also recognized the fundamental importance of search and 

seizure law to a democratic society. As the Florida Supreme Court observed,

Roving patrols, random sweeps, and arbitrary searches or seizures would 

go far to eliminate such crime in this state. Nazi Germany, Soviet Russia, 

and Communist Cuba have demonstrated all too tellingly the effectiveness 

of such methods. Yet we are not a state that subscribes to the notion that 

ends justify means. History demonstrates that the adoption of repressive 

measures, even to eliminate a clear evil, usually results only in repression 

more mindless and terrifying than the evil that prompted them.

Bostick v. State, 554 So. 2d 1153, 1158–59 (Fla. 1989), rev’d on other grounds, 501 U.S. 

429, 439–40, 111 S. Ct. 2382, 2389 (1991); see also McCoy v. State, 491 P.2d 127, 138 

(Alaska 1971) (“Certainly the Fourth Amendment guarantee against unreasonable 

searches and seizures is at the very core of the protections needed to preserve democracy 

against the excesses of government.”).
71

Through History; Searching for History, 63 U. Chi. L. Rev. 1707, 1732–43 

(1996) (reviewing Cuddihy) (examining early history); Davies, 98 Mich. L. 

Rev. at 559 (noting that the Supreme Court for most of the twentieth 

century embraced a warrant-preference approach). Under the warrantpreference theory, the Supreme Court emphasized the close relationship 

between the Reasonableness Clause and the Warrant Clause of the Fourth 

Amendment. Maclin, The Complexity of the Fourth Amendment, 77 B.U. L. 

Rev. at 928. The touchstone of the Fourth Amendment was the warrant 

requirement, subject to limited exceptions. Johnson, 333 U.S. at 14–15, 

68 S. Ct. at 369; State v. Ingram, 914 N.W.2d 794, 804 (Iowa 2018). The 

warrant-preference approach stresses that ordinarily, in order to be 

“reasonable” under the Fourth Amendment, a warrant must be obtained 

prior to the search or seizure. See Maclin, The Complexity of the Fourth 

Amendment, 77 B.U. L. Rev. at 928 (“[T]he ‘warrant preference rule’ . . . 

requires that the safeguards of the Warrant Clause define the 

reasonableness of a given search or seizure.”). 

In recent years, however, the United States Supreme Court has 

begun to diminish search and seizure protections. The Court has departed 

from its earlier precedents grounded in history and recent experience in 

Europe in favor of a more expansive view of government power. 

Doctrinally, the Court has generally downgraded the protections of the 

Warrant Clause by significantly limiting its application and adopting an 

expansive, modern-day approach to the meaning of the Reasonableness 

Clause. See Ingram, 914 N.W.2d at 804–06, 816; Silas J. Wasserstrom, 

The Court’s Turn Toward a General Reasonableness Interpretation of the 

Fourth Amendment, 27 Am. Crim. L. Rev. 119, 127, 129–30, 148 (1989). 

It has now made the new discovery that the “touchstone” of analysis under 

the Fourth Amendment is no longer the warrant requirement but is “the 
72

reasonableness in all the circumstances of the particular governmental 

invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 

106, 108–09, 98 S. Ct. 330, 332 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 

19, 88 S. Ct. 1868, 1878–79 (1968)); cf. Ingram, 914 N.W.2d at 815–16 

(contrasting the Supreme Court’s recent departure from the traditional 

warrant-preference approach with Iowa’s continued maintenance of a 

warrant preference).

The United States Supreme Court has also undermined the strength

of the exclusionary rule. Long ago, Justice Oliver Wendell Holmes declared 

in Silverthorne Lumber Co. v. United States that “[t]he essence of a provision 

forbidding the acquisition of evidence in a certain way is that not merely 

evidence so acquired shall not be used before the Court but that it shall 

not be used at all.” 251 U.S. 385, 392, 40 S. Ct. 182, 183 (1920). Yet in 

United States v. Leon, the Court found a good-faith exception to the 

exclusionary rule. 468 U.S. 897, 913, 104 S. Ct. 3405, 3415 (1984). In 

contrast to Justice Holmes’s approach in Silverthorne Lumber, the 

Supreme Court in Leon divorced the exclusionary rule from the 

substantive commands of the Fourth Amendment, noting that no 

provision of the Fourth Amendment expressly precludes the use of 

evidence when the provision was violated. Id. at 905–06, 104 S. Ct. at 

3411. The Leon Court stressed that the exclusionary rule is “a judicially 

created remedy designed to safeguard Fourth Amendment rights generally 

through its deterrent effect.” Id. at 906, 104 S. Ct. at 3412 (quoting United 

States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974)). 

Applying a pragmatic analysis, the Court concluded that the marginal 

benefits of deterrence would be small where a law enforcement officer acts 

in objective good faith in a search and seizure context. See id. at 922, 104 

S. Ct. at 3420.
73

2. Basis for independent state law interpretation of search and 

seizure provisions. One of the opinions issued today has an affinity for 

following federal precedent in search and seizure law. My views on the 

constitutional history and the flaws of following United States Supreme 

Court precedent in any lockstep or quasi-lockstep way have been 

thoroughly explored in Short, 851 N.W.2d at 481–92, the majority and 

concurring opinions in Baldon, 829 N.W.2d at 790–91 (majority opinion); 

id. at 803–34 (Appel, J., specially concurring), and Ochoa, 792 N.W.2d at 

264–67. I highlight only a handful of important points today.

First, the suggestion is advanced that Iowa’s constitutional history 

does not support departing from Fourth Amendment jurisprudence. But 

at the time of the Iowa constitutional convention, there was very little 

Fourth Amendment jurisprudence. Most of that came later. What is clear, 

however, is that the Iowan founding generation had no particular 

reverence for the decisions of the United States Supreme Court on the 

important constitutional issues of the day. Indeed, at the time of the Iowa 

Constitutional Convention of 1857, and for many years prior, the United 

States Supreme Court was intent on shoring up the institution of chattel 

slavery through its decisions regarding the Fugitive Slave Act, culminating 

in the infamous Dred Scott case. See, e.g., Dred Scott v. Sandford, 60 U.S. 

(19 How.) 393, 404 (1857), superseded by constitutional amendment, U.S. 

Const. amend. XIV.

For example, the fugitive slave decisions were decried at the Iowa 

constitutional convention in 1857. According to George Ells, the Due 

Process Clause was “violated again and again by the dominant party in the 

land, which rides rough-shod oves the necks of freemen.” 1 The Debates 

at 102. And Ells’s criticism extended to interpretation of the Due Process 

Clause in federal courts:
74

If 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 nullity, and the American people will trample its 

odious enactments in the dust.

Id. Of course, it was the United States Supreme Court that upheld the 

Fugitive Slave Act against constitutional attack. See, e.g., Ableman v. 

Booth, 62 U.S. (21 How.) 506, 526 (1858). Ells was not an admirer of the 

jurisprudence of the United States Supreme Court and was no lockstep 

guy.

When Dred Scott was rendered, there was an outpouring of scathing 

criticism of the United States Supreme Court, including a resolution of 

condemnation from the Iowa legislature. The Iowa legislature declared 

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

government or people of the United States.” Short, 851 N.W.2d at 484 

(quoting 1858 Iowa Acts Res. 12, at 433). Can’t find much lockstep here. 

Further, the resolution stated,

[W]e 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.

Id. (quoting 1858 Iowa Acts Res. 12, at 433). If members of this court 

would have appeared at the Iowa Constitutional Convention of 1857 or the 

well of the Iowa legislature during the debates about the meaning of Due 

Process Clause or the Dred Scott matter and advocated the presumptive 

validity of federal caselaw on the Iowa courts, they would have received 

glares, not applause.

Although there was not a lot of state search and seizure law in the 

early days, there is one case that showed Iowa judges were willing to use 

the Iowa Constitution to protect personal liberty. This is the 1863 Polk 
75

County case of Webb v. Griffith. See Nathan E. Coffin, The Case of Archie 

P. Webb, A Free Negro, 11 Annals of Iowa 200, 211–12 (1913) [hereinafter 

Coffin]. In the Webb case, an African-American, who had received a 

certificate of emancipation, was held in the Polk County jail pursuant to 

Billy Haun’s Law, a statute that forbade African-American settlement in 

Iowa. See id. at 202–03; see also Robert R. Dykstra, Bright Radical Star: 

Black Freedom and White Supremacy on the Hawkeye Frontier 198–99 

(1993). Judge John Gray held that Webb’s arrest violated the search and 

seizure provision of article I, section 8 of the Iowa Constitution. Coffin, 11 

Annals of Iowa at 211–12. Judge Gray declared that Webb’s arrest was 

unconstitutional when the only crime charged was that he was a freeman 

who settled in the state. See id. It is hard to imagine a federal court under 

the tutelage of the United States Supreme Court coming to a similar 

conclusion under the Fourth Amendment. 

Surely it is clear beyond peradventure that the Iowa founders were 

devoted to civil liberties. Iowa’s state motto—“Our liberties we prize and 

our rights we will maintain”—is not just a slogan but reflects a libertarian 

spirit rather than state authoritarianism. The Iowa Constitution includes 

sweeping language in the inalienable rights clause of article I, section 1 

based on the Virginia Declaration of Rights, incorporated by Thomas 

Jefferson into the Declaration of Independence, but not embraced by 

Madison in the United States Constitution because of fear such language 

would provoke controversy with slave states. No such hesitation in Iowa. 

Indeed, George Ells, Chairman of the Committee on the Preamble and Bill 

of Rights, stated the committee wanted provisions in the Iowa Bill of Rights 

that “would enlarge, and not curtail the rights of the people” and would 

“put upon record every guarantee that could be legitimately placed there 

in order that Iowa . . . might also have the best and most clearly defined 
76

Bill of Rights.” 1 The Debates at 100. Ells further stated that “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.” Id. at 103.

There is reason to think the devotion to civil liberties extended 

beyond the Iowa constitutional convention. For instance, writing in 

response to Judge Gray’s decision in Webb, the Burlington Hawk-Eye

declared, “The people of Iowa will thank Judge Gray for vindicating the 

charter of their liberties, and throwing the shield of the law over the weak 

and helpless.” Coffin, 11 Annals of Iowa at 214.

Second, on turning to our federal founders, it is worth noting that 

Madison, among others, looked to the states as the primary source of the 

protection of civil liberties. See Baldon, 829 N.W.2d at 808. The very 

purpose of the federalist system—with sovereignty divided between the 

states and the federal government—was to allow the states to protect the 

liberties of the citizen. See id. Indeed, if uniformity was the goal, there 

would be no states and no state constitutions. The founders’ 

understanding of the role of the states in protecting individual liberties 

was summarized in Baldon as follows:

Overall, . . . the founders looked to the states to protect 

individual liberties. At the Constitutional Convention, James 

Wilson observed that the purpose of the states was “to 

preserve the rights of individuals.” Similarly, in Federalist 

No. 45, Madison stressed that under the Constitution, “The 

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. . . .” Madison 

repeated the liberty theme in Federalist No. 51 by declaring, 

“In the compound republic of America, the power surrendered 

by the people, is first divided between two distinct 

governments. . . . Hence, a double security arises to the rights 

of the people.”
77

829 N.W.2d at 808 (first quoting I Records of the Federal Convention of 

1787, at 356 (Max Farrand ed., 1937); and then quoting The Federalist 

No. 45, at 236 (James Madison) (Garry Wills ed., 1982); and then quoting 

The Federalist No. 51, at 264 (James Madison) (Garry Wills ed., 1982)). 

But “[i]f we choose to follow federal precedent to bolster nationwide 

conformity, we destroy the ‘double security’ designed to protect our 

citizens.” Stanley G. Feldman & David L. Abney, The Double Security of 

Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20 

Ariz. St. L.J. 115, 117 (1988) (quoting Alderwood Assocs. v. Wash. Envtl. 

Council, 635 P.2d 108, 113 (Wash. 1981) (en banc)).

Or, as has been noted by Chief Justice Cady,

Our Iowa Constitution, like other state constitutions, 

was designed to be the primary defense for individual rights, 

with the United States Constitution Bill of Rights serving only 

as a second layer of protection, especially considering the 

latter applied only to actions by the federal government for 

most of our country’s history.

Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional History 

Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and 

Civil Liberties, 60 Drake L. Rev. 1133, 1145 (2012). It would be ironic, and 

tragic, if this court surrenders its historically appointed role as a protector 

of liberty and hands over the liberty keys to the United States Supreme 

Court under some kind of ahistorical reverse federalism.

Third, the mere fact that the language of article I, section 8 and the 

Fourth Amendment are similar does not mean that this court must bow to 

federal interpretations of the Fourth Amendment in interpreting our state 

constitutional counterpart. It is, of course, true that the language of article 

I, section 8 and the Fourth Amendment are very similar. And this court 

has sometimes said that because of the similarity of language, the 
78

provisions are “deemed to be identical in scope, import, and purpose.” 

State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).

But the conclusory bromide is stating the obvious at a very high 

degree of generality and has very little value, or even no value, in deciding 

cases. Ochoa, 792 N.W.2d at 267 (noting the general language similarity 

does nothing to aid us in deciding concrete cases); see also Richard M. Re, 

Essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 

1861, 1875–89 (2014) (arguing that healthy stare decisis can require 

methods of narrowing broadly stated precedent in order to avoid overruling 

a case when its “best reading,” i.e. the precedent as actually stated, would 

require an outcome inconsistent with other legal principles). The purpose 

of both provisions is to limit arbitrary conduct of law enforcement, to 

generally require warrants, and to protect the rights of persons to be 

secure in their persons, houses, papers, and effects. Yet we have stated, 

for example, that when it comes to the exclusionary rule, article I, section 

8 serves different purposes than the Fourth Amendment. State v. Cline, 

617 N.W.2d 277, 289–93 (Iowa 2000) (en banc), abrogated on other 

grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). In 

contrast to the federal exclusionary rule, the purposes of the exclusionary 

rule under article I, section 8 include protecting constitutional rights and 

maintaining the integrity of the courts as well as deterrence. Id.

Indeed, on a wide range of search and seizure issues, a variety of 

options are plausible under the open-textured language. Due to the 

marvels of electronic research, there is a cornucopia of caselaw waiting to 

be harvested by thoughtful judges looking to make the best possible 

choices under their state constitutions. This court is not in any way bound 

by federal precedent, or for that matter, the precedent of any other 

jurisdiction. Instead, we make our own independent choices under the 
79

Iowa Constitution. Pals, 805 N.W.2d at 771 (endorsing the principle that 

United States Supreme Court opinions provide guidance only based upon 

their persuasive power); see Baldon, 829 N.W.2d at 790–91 (majority 

opinion) (same); see also State v. James, 393 N.W.2d 465, 468 (Iowa 1986) 

(en banc) (Lavorato, J., dissenting) (“We push aside our constitutional 

responsibilities when we merely look to the Supreme Court for answers in 

examining the state constitution.”).

A highly regarded jurist has nailed it in a recent piece of scholarship. 

According to Judge Sutton of the United States Court of Appeals for the 

Seventh Circuit,

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 a prohibition on 

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

range of differently situated sovereigns.

Sutton, 59 U. Kan. L. Rev. at 707.

Judge Sutton’s observations are consistent with what happens on 

the ground in many states. There are thousands, not hundreds, of state 

search and seizure cases following a path independent of federal courts 

under state constitutional provisions similar to the Fourth Amendment. 

See Michael J. Gorman, Survey: State Search and Seizure Analogs, 77 

Miss. L.J. 417, 418–64 (2007) (citing search and seizure departures in 

almost three dozen states as of 2007).

In the past, some of our cases utilized what is called a lockstep 

approach or lockstep-lite approach where federal law was either followed 

as a matter of course or presumptively followed. We abandoned that 

approach in Ochoa, 792 N.W.2d at 267. In Ochoa, we unanimously 

declared,
80

In order to resolve any inconsistency in our prior cases 

[following the lockstep or quasi-lockstep approach], 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 

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. When both federal and state constitutional claims 

are raised, we may, in our discretion, choose to consider either 

claim first in order to dispose of the case, or we may consider 

both claims simultaneously.

Id. In short, we rejected the recently discovered and historically strange 

doctrine of constitutional nationalism and, instead, declared our 

allegiance to the vertical distribution of power in a federalist system just 

as the federal framers intended.

Under Ochoa and subsequent cases, it is true, as suggested in one 

of the court’s opinions today, divergence from federal authority is not 

required or even favored. Fair enough. But what is required is our best 

independent judgment by each and every one of us whose privilege it is to 

serve on this court. No one would suggest that a legislator or a governor 

should defer to Washington politicians. Why should a state court defer to 

the United States Supreme Court if the precedent is unpersuasive? 

Indeed, the United States Supreme Court has declared that “[i]t is 

fundamental that state courts be left free and unfettered by us in 

interpreting their state constitutions.” Minnesota v. Nat’l Tea Co., 309 U.S. 

551, 557, 60 S. Ct. 676, 679 (1940). We lose our way when we fail to 

embrace and apply this fundamental independence from federal law.

Fourth, it is true that our cases have departed from past precedents. 

But there was a good reason for that. In the past, as noted in Ochoa, we 
81

tended to follow federal precedent without much thought. 792 N.W.2d at 

266. We were often a lockstep-lite jurisdiction, theoretically reserving the 

right to engage in independent constitutional analysis but rarely bothering 

to do so. See id. That approach was, and is, unacceptable. We should 

decide state constitutional issues based on our best judgment of the 

proper course, based upon all available authorities and precedents. A 

prior case that simply pasted a federal approach into the North Western 

Reporter without further thought is a very slender reed and not entitled to 

stare decisis.

An opinion in this case suggests that our search and seizure cases 

under the Iowa Constitution are generally interpreted to mirror federal law. 

I beg to differ. It is clear that our caselaw, like that of many states, no 

longer generally interprets the Iowa Constitution to mirror federal caselaw 

in the search and seizure area. See, e.g., Ingram, 914 N.W.2d at 799; State 

v. Coleman, 890 N.W.2d 284, 299 (Iowa 2017); Gaskins, 866 N.W.2d at 6–

7; Short, 851 N.W.2d at 482–85; Baldon, 829 N.W.2d at 792–97, 802–03; 

Pals, 805 N.W.2d at 771; Ochoa, 792 N.W.2d at 291; Cline, 617 N.W.2d at 

293. Instead of using a mirror, in recent years we have exercised our 

independent judgment in determining independent state constitutional 

claims involving search and seizure. That is the teaching of Ochoa, 279 

N.W.2d at 267 (explaining that the degree to which we follow federal or 

other precedents depends upon their persuasive power).

And we recently have not used mirrors in other constitutional 

contexts. In Puntenney v. Iowa Utilities Board, ___ N.W.2d. ___, ___ (Iowa 

2019), we departed from United States Supreme Court precedent in an 

eminent domain case. In Baldwin, 915 N.W.2d at 281 (majority opinion), 

we developed our own independent approach to immunity for state 

constitutional tort claims. And in Varnum v. Brien, 763 N.W.2d 862, 872, 
82

878 n.6 (Iowa 2009), we exercised our independent judgment under the 

Iowa Constitution with respect to same-sex marriage. Our recent cases do 

not emphasize using a mirror for mirror’s sake but instead emphasize that 

we “jealously” protect our authority to follow an independent approach. 

State v. Fleming, 790 N.W.2d 560, 564 (Iowa 2010); Zaber v. City of 

Dubuque, 789 N.W.2d 634, 654 (Iowa 2010); State v. Bruegger, 773 N.W.2d 

862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 

1, 6–7 (Iowa 2004).

Fifth, it must be acknowledged that the decisions of the United 

States Supreme Court on individual liberties involve a federalist discount. 

The most conservative justice of the Warren court, Justice John Marshall 

Harlan, repeatedly cautioned that application of the Bill of Rights to the 

states would lead to a dilution in the scope of federal rights. Justice 

Harlan saw “a major danger of the ‘incorporation’ approach—that 

provisions of the Bill of Rights may be watered down in the needless 

pursuit of uniformity.” Duncan v. Louisiana, 391 U.S. 145, 182 n.21, 88 

S. Ct. 1444, 1466 n.21 (1968) (Harlan, J., dissenting). In a draft opinion 

not published because of his untimely death, Justice Harlan wrote that 

incorporation “ ‘threaten[ed] . . . to “chill” the Sixth Amendment out of 

existence’ and ‘might well spell the demise—under the inescapable 

pressures of federalism—of many other provisions of the Bill of Rights.’ ” 

Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren 

Court 291 (1992) (alterations in original) (quoting John Marshall Harlan, 

Draft Opinion to Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628 (1972), 

and Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620 (1972) (on file in 

the John Marshall Harlan Papers, Secley G. Mudd Manuscript Library, 

Princeton University, Box 441)).
83

Justice Harlan, of course, time and time again, has been proven 

correct. When looking to United States Supreme Court precedent, it is 

imperative we understand that its approach to individual rights is 

discounted from constitutional norms in light of federalism concerns. 

Indeed, in the search and seizure areas since incorporation, the United 

States Supreme Court has persistently cut back on substantive 

protections while repeatedly emphasizing the ability of the states to expand 

the constitutional protections under their state constitutions. See, e.g.,

California v. Greenwood, 486 U.S. 35, 41–44, 108 S. Ct. 1625, 1629–31 

(1988); Michigan v. Mosley, 423 U.S. 96, 120, 96 S. Ct. 321, 334 (1975) 

(Brennan, J., dissenting); Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 

1215, 1219 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 

791 (1967).

Sixth, it must be acknowledged that the current United States 

Supreme Court is a rights-restricting court. Ever since Brown v. Board of 

Education of Topeka, 347 U.S. 483, 74 S. Ct. 686 (1954), and the Southern 

Manifesto, political actors have sought to move the Supreme Court in a 

conservative direction that reduces the role of the courts in the protection 

of civil liberties. See Reva B. Siegel, Equality Talk: Antisubordination and 

Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. 

L. Rev. 1470, 1489 (2004). Southern strategies have been employed and 

litmus tests applied. Nominees to the high court have been made, 

withdrawn, hung up without a hearing, and narrowly confirmed.

In the end, there has been what nearly all observers agree is a 

significant shift in the Supreme Court’s jurisprudence. And time and time 

again, the Court, often over strong objections of dissenters, has whittled 

away at the scope of individual liberties using innovative contemporary 

documents to extend state authority. See, e.g., Samson v. California, 547 
84

U.S. 843, 846, 126 S. Ct. 2193, 2196 (2006) (permitting warrantless 

search of parolee); Atwater v. City of Lago Vista, 532 U.S. 318, 323, 354, 

121 S. Ct. 1536, 1541, 1557 (2001) (permitting warrantless arrest and 

jailing for misdemeanor violation when sanction does not include jail time); 

Ohio v. Robinette, 519 U.S. 33, 35, 117 S. Ct. 417, 419 (1996) (holding that 

police need not tell driver he or she is “free to go” to obtain consent to 

search); Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987) 

(allowing warrantless inventory searches of automobiles); Leon, 468 U.S. 

at 920–25, 104 S. Ct. at 3420–22 (embracing good-faith exception to 

exclusionary rule); Schneckloth v. Bustamonte, 412 U.S. 218, 235–41, 93 

S. Ct. 2041, 2051–55 (1973) (abandoning knowing-and-voluntary test for 

consent to search). Frankly, I have very little interest in importing whole 

hog to Iowa the approach adopted by the Supreme Court in Washington, 

D.C. Not only should we not incorporate the federal cases, there should 

be no presumption, or special weight, given to the Supreme Court’s 

precedents. We should think for ourselves.

That said, I agree with Justice McDonald that there should be no 

artificial presumption that the Iowa Constitution is more protective than 

federal caselaw in any given case. Instead, we should independently 

examine each case, free from any predisposition, and engage in a thorough 

review of plausible legal options without any artificial doctrines that block 

independent thinking. In light of Justice McDonald’s opinion, it is clear 

that a majority of this court continues to embrace this approach.

3. Iowa search and seizure: Embracing the warrant-preference 

approach and the constitutional underpinnings of the exclusionary rule. 

Our search and seizure law has followed a different path than that of the 

United States Supreme Court. Early on, we emphasized that the Iowa 

Constitution’s protections against unconstitutionally obtained evidence 
85

were to apply “in a broad and liberal” spirit. State v. Height, 117 Iowa 650, 

654–65, 91 N.W. 935, 936–40 (1902) (quoting People ex rel. Taylor v. 

Forbes, 38 N.E. 303, 305 (N.Y. 1894)). We also recognized the ability of 

this court to interpret our search and seizure provision independently of 

federal interpretations of the United States Constitution. State v. Tonn, 

195 Iowa 94, 104–08, 191 N.W. 530, 535–36 (1923), abrogated on other 

grounds by State v. Hagen, 258 Iowa 196, 203–05, 137 N.W.2d 895, 899–

900 (1965), as recognized in State v. Taylor, 260 Iowa 634, 641–42, 144 

N.W.2d 289, 293–94 (1966).

But, noted in Ochoa, we have at times simply adopted decisions of 

the United States Supreme Court without analysis. 792 N.W.2d at 265–

66. In Cline, however, we departed from the lockstep approach by 

emphasizing that “[i]f precedent is to have any value it must be based on 

a convincing rationale.” 617 N.W.2d at 285 (quoting James, 393 N.W.2d 

at 472). In Ochoa, we stated, “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. While we recognized that in the past we have been inconsistent in 

our willingness to engage in independent state constitutional 

interpretation, we held in Ochoa,

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.

Id.; see also Short, 851 N.W.2d at 481–92 (outlining principles of 

independent state constitutional jurisprudence).

Under our current caselaw, we have departed from the United States 

Supreme Court in two fundamental ways. First, as noted in Ingram, our 
86

recent cases have embraced a strong warrant-preference interpretation of 

article I, section 8. 914 N.W.2d at 816; see Gaskins, 866 N.W.2d at 7 (“ ‘A 

warrantless search is presumed unreasonable’ unless an exception 

applies.” (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997))); 

Short, 851 N.W.2d at 502 (“[W]e 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.”); Baldon, 829 N.W.2d at 791 (“It is well-settled that 

warrantless searches are virtually ‘per se unreasonable . . . .’ ” (quoting 

Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043)); Ochoa, 792 N.W.2d at 

269 (“[T]he Reasonableness Clause cannot be used to override the Warrant 

Clause.”). Our approach does not mean that warrantless searches are 

always invalid, particularly when it is impractical to obtain a warrant and 

an exigency is present, but it insists that a warrant based on probable 

cause issued by a neutral magistrate is required in most circumstances 

and that exceptions to the warrant requirement be narrowly construed. 

See, e.g., Ochoa, 792 N.W.2d at 285 (“[W]arrantless searches and seizures 

that d[o] not fall within one of the ‘jealously and carefully drawn 

exceptions’ are unreasonable.” (quoting State v. Strong, 493 N.W.2d 834, 

836 (Iowa 1992))); State v. McGrane, 733 N.W.2d 671, 677 (Iowa 2007) 

(“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.”).

Second, in Cline, we rejected the narrow, pragmatic approach of 

Leon, which viewed the exclusionary rule as simply a judicially created 

remedy. 617 N.W.2d at 293; see Leon, 468 U.S. at 906, 104 S. Ct. at 3412. 

We emphasized that Iowa was one of the first states to exclude evidence 

“as an integral part of its state constitution’s protection against 
87

unreasonable searches and seizures.” Cline, 617 N.W.2d at 285. We noted 

that the United States Supreme Court originally took a similar position in 

cases such as Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 

346 (1914), overruled on other grounds by Mapp, 367 U.S. at 654–57, 81 

S. Ct. at 1691–92. Cline, 617 N.W.2d at 283, 285. We also noted that the 

United States Supreme Court had recently distanced itself from its early 

cases. Id. at 284. We declined to drift away from what we viewed as the 

substantive constitutional protections afforded by the exclusionary rule. 

Id. at 292–93.

In support of our position in Cline, we quoted the familiar language 

of Height, which declared that the “guaranty [of article I, section 8 of the 

Iowa Constitution] . . . has . . . received a broad and liberal interpretation 

for the purpose of preserving the spirit of constitutional liberty.” Id. at 285 

(quoting Height, 117 Iowa at 661, 91 N.W. at 938). We further quoted with 

approval language from State v. Sheridan, where we noted that to hold 

evidence obtained in violation of article I, section 8 could be admitted 

would “emasculate the constitutional guaranty, and deprive it of all 

beneficial force or effect.” Id. at 286 (emphasis omitted) (quoting State v. 

Sheridan, 121 Iowa 164, 168, 96 N.W. 730, 731 (1903)). We rejected the 

United States Supreme Court’s view that the purpose of the exclusionary 

rule was to deter misconduct, noting that the exclusionary rule was 

originally justified as a remedy for constitutional violations and to preserve 

judicial integrity. Id. at 289.

Cline thus represents a substantial departure from United States 

Supreme Court precedent in the interpretation of constitutional search 

and seizure provisions. It rejected pragmatic calculations of the Court and 

recognized the exclusion of unconstitutionally obtained evidence in 

“preserving the spirit of constitutional liberty.” Id. at 285 (quoting Height, 
88

117 Iowa at 661, 91 N.W. at 938). Cline is thus consistent with the 

skeptical attitude toward government power embraced by the generations 

that adopted the Fourth Amendment and article I, section 8 of the Iowa 

Constitution.

Because of our insistence on emphasizing the preference for 

warrants under article I, section 8 and our conclusion that the substantive 

search and seizure provisions of the Iowa Constitution require the 

exclusion of evidence obtained in violation of the constitutional 

commands, our Iowa framework for search and seizure questions is 

different from the more recent innovations introduced by the United States 

Supreme Court in its search and seizure cases.

C. Application of Search and Seizure Doctrine to Automobiles.

1. Federal approach: Shrinking protection. With the advent of the 

automobile, questions arose regarding the application of search and 

seizure protections to vehicles on public highways. In Carroll v. United 

States, 267 U.S. 132, 134–36, 45 S. Ct. 280, 281 (1925), government 

agents engaged in a warrantless search and seizure of an automobile 

believed to be engaged in illegal bootlegging. The Carroll Court compared 

an automobile to a vessel at sea, concluding that it would be impracticable 

to obtain a warrant in light of the mobile character of the vehicle. Id. at 

151–53, 45 S. Ct. at 284–85. The Carroll Court recognized that “[i]t would 

be intolerable and unreasonable if a prohibition agent were authorized to 

stop every automobile on the chance of finding liquor.” Id. at 153–54, 45 

S. Ct. at 285. The Carroll Court reasoned, however, that if there was 

probable cause that the vehicle was “carrying contraband or illegal 

merchandise,” the stop would be lawful even without a warrant. Id. at 

154, 45 S. Ct. at 285.
89

In a sharp dissent in Carroll, Justice McReynolds found that only 

mere suspicion and not probable cause supported the warrantless action 

of the government agents in the case. Id. at 163, 45 S. Ct. at 289 

(McReynolds, J., dissenting). He observed that “[t]he damnable character 

of the ‘bootlegger’s’ business should not close our eyes to the mischief 

which will surely follow any attempt to destroy it by unwarranted 

methods.” Id. at 163, 45 S. Ct. at 288. In short, for Justice McReynolds, 

the important ends demanded by current exigency did not justify the use 

of unconstitutional means.

Almost fifty years later, the Supreme Court decided Chambers v. 

Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970). In Chambers, the Court 

considered whether a Fourth Amendment violation arose when an 

automobile was thoroughly searched after it was taken to the police 

station. Id. at 43, 90 S. Ct. at 1977. The Chambers Court ruled that 

because there was probable cause to support a warrantless search at the 

time the vehicle was stopped, that probable cause also supported the 

subsequent warrantless search of the vehicle even though the automobile, 

at that point, was no longer mobile. Id. at 52, 90 S. Ct. at 1981–82. 

Permitting a warrantless search of a seized automobile was a striking 

development because the basis of the automobile exception in Carroll was 

the mobility of the vehicle. See Carroll, 267 U.S. at 153, 45 S. Ct. at 285 

(majority opinion).

Yet the Supreme Court has also at times expressed concern about 

search and seizure involving automobiles. For example, Justice Jackson 

declared, “I am convinced that there are, many unlawful searches of . . . 

automobiles of innocent people which turn up nothing incriminating, in 

which no arrest is made, about which courts do nothing, and about which 

we never hear.” Brinegar, 338 U.S. at 181, 69 S. Ct. at 1313. In this 
90

observation, Justice Jackson recognized that the real beneficiary of 

enforcement of the Fourth Amendment is not the guilty party before the 

court but rather the innocent public generally, which the Fourth 

Amendment protects from arbitrary search and seizure. In addition, the 

Supreme Court has emphasized that “[t]he word ‘automobile’ is not a 

talisman in whose presence the Fourth Amendment fades away and 

disappears.” Coolidge, 403 U.S. at 461, 91 S. Ct. at 2035.

And the Supreme Court concluded that a traffic stop, even for a brief 

period, constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653, 99 

S. Ct. 1391, 1396 (1979). In Prouse, the Court considered the 

constitutionality of a random stop when there was no reasonable suspicion 

that any violation occurred. Id. at 650, 99 S. Ct. at 1394. The Prouse

Court noted that an automobile stop is not a minor inconvenience, 

stressing that the automobile is one of the most visible symbols of our 

liberty. See id. at 657, 662, 99 S. Ct. at 1398, 1400–01. According to the 

Prouse Court, “[P]eople are not shorn of all Fourth Amendment protection 

when they step from their homes onto the public sidewalks” or “from the 

sidewalks into their automobiles.” Id. at 663, 99 S. Ct. at 1401. The 

Supreme Court held the “kind of standardless and unconstrained 

discretion” presented in the case is not permitted under the Fourth 

Amendment. Id. at 661, 99 S. Ct. at 1400.

Beginning in the mid-1970s, however, the Supreme Court embarked 

on an aggressive course designed to trim back more robust search and 

seizure protections of automobiles. In a series of cases, the Supreme Court 

held that the warrant requirement of the Fourth Amendment did not apply 

to automobiles in a variety of settings. See, e.g., Mich. Dep’t of State Police 

v. Sitz, 496 U.S. 444, 447, 110 S. Ct. 2481, 2483 (1990); Bertine, 479 U.S. 
91

at 368–69, 107 S. Ct. at 739–40; South Dakota v. Opperman, 428 U.S. 364, 

375–76, 96 S. Ct. 3092, 3100 (1976).

These cases established an important backdrop to the Whren

Court’s rejection of control of pretextual stops. 517 U.S. at 819, 116 S. Ct. 

at 1777. When a warrant is obtained, of course, the state must make a 

particularized showing of probable cause and the purpose and scope of a 

search is limited by the magistrate. A warrantless search, however, 

contains no such restraints. The combination of the lack of a warrant 

requirement in the automobile context and the tolerance of pretextual 

searches in Whren presents a clear path for unregulated, arbitrary police 

conduct.

And developments in Supreme Court caselaw after Whren further 

increased the dangers of unregulated police searches and seizures 

involving automobiles. In the case of Atwater, 532 U.S. at 323, 354, 121 

S. Ct. at 1541, 1557, the Supreme Court held that a driver of an 

automobile could be subject to a full custodial arrest for a minor traffic 

infraction even if incarceration was not a permissible sanction for the

offense. Thus, the driver of a vehicle stopped pretextually for a minor 

traffic offense is, according to the Atwater majority, subject to a full 

custodial arrest and the resulting impoundment of the vehicle even if the 

sanctions for the minor traffic violation do not include incarceration. Id. 

That impoundment, in turn, could be the basis for a warrantless search 

at the police station. See Chambers, 399 U.S. at 52, 90 S. Ct. at 1981–82. 

The end result of the confluence of these United States Supreme Court 

cases is that persons pretextually stopped for minor traffic violations may 

be subject to a full custodial arrest, an impounded vehicle, and a 

warrantless search of the impounded vehicle without offending the Fourth 

Amendment.
92

And there is one more twist. In Heien v. North Carolina, 574 U.S. 

54, ___, 135 S. Ct. 530, 534 (2014), the Supreme Court held that an 

officer’s mistake of law can still provide sufficient reasonable suspicion to 

engage in a warrantless stop if the mistake is reasonable. Thus, the 

officer’s stop of a vehicle with one brake light out did not violate the Fourth 

Amendment even though the underlying regulation required only a single 

working brake light. Id. As a result, under the Supreme Court cases, a 

warrantless pretextual stop based upon a mistaken belief that a minor 

traffic law was violated may lead to a full custodial arrest, subsequent 

impoundment of the vehicle, and a warrantless search of the vehicle 

without offending the Fourth Amendment.

2. Approaches under state law: Independence. The Supreme 

Court’s determination to cut back on robust interpretation of search and 

seizure law under the Fourth Amendment was not universally admired in 

state courts. Indeed, on several notable occasions, when the United States 

Supreme Court reversed state supreme court rulings providing Fourth 

Amendment protection in the context of automobiles, the state supreme 

courts on remand followed their prior approaches on state constitutional 

grounds. For instance, after the United States Supreme Court upheld a 

roadblock-type seizure in Sitz, 496 U.S. at 447, 110 S. Ct. at 2483, the 

Michigan Supreme Court on remand declined to follow the Supreme Court 

in its interpretation of the Michigan Constitution. See Sitz v. Dep’t of State 

Police, 506 N.W.2d 209, 224–25 (Mich. 1993). Similarly, the South Dakota 

Supreme Court declined to follow the lead of the United States Supreme 

Court on remand after Opperman, 428 U.S. at 375–76, 96 S. Ct. at 3100, 

where the Court upheld a warrantless inventory search. State v. 

Opperman, 247 N.W.2d 673, 674–75 (S.D. 1976).
93

There are many other occasions where state supreme courts have 

declined to follow federal precedents in the interpretation of state 

constitutions. For example, the New Hampshire Supreme Court rejected 

the automobile exception in State v. Sterndale, 656 A.2d 409, 411–12 (N.H. 

1995), abrogated in part on other grounds by State v. Goss, 834 A.2d 316, 

318–19 (N.H. 2003), as recognized in State v. Cora, 167 A.3d 633, 641–42 

(N.H. 2017), the Minnesota Supreme Court rejected Atwater in State v. 

Askerooth, 681 N.W.2d 353, 361–63 (Minn. 2004) (en banc), the New 

Jersey Supreme Court rejected application of Schneckloth to an automobile 

stop in State v. Carty, 790 A.2d 903, 907, 912–14, modified on other 

grounds, 806 A.2d 798, 798 (N.J. 2002), and the Alaska Supreme Court 

imposed greater limitations on inventory searches in State v. Daniel, 589 

P.2d 408, 416 (Alaska 1979).

3. Iowa approach: Resilience. In recent years, we have been 

increasingly concerned with the expansive reach of federal law in the 

search and seizure of automobiles. We have limited the reach of 

government power in the automobile context in a series of cases by relying 

on article I, section 8 of the Iowa Constitution. Thus, while the United 

States Supreme Court has trimmed back its search and seizure 

protections in the automobile context, we have generally held firm.

For instance, in State v. Tague, 676 N.W.2d 197, 205–06 (Iowa 

2004), we confronted the question of whether an automobile stop may be 

based upon momentarily crossing the edge line of a road. We held that on 

the facts presented, the police lacked probable cause or reasonable 

suspicion to stop the vehicle. Id. Notably, we based our decision on article 

I, section 8 of the Iowa Constitution and not on the Fourth Amendment. 

Id. at 206.
94

A few years later, in Vance, 790 N.W.2d at 786, we considered 

whether counsel was ineffective for failure to consider whether the holding 

in New York v. Belton, 453 U.S. 454, 460–61, 101 S. Ct. 2860, 2864 (1981), 

overruled in part by Arizona v. Gant, 556 U.S. 332, 350–51, 129 S. Ct. 

1710, 1723 (2009), remained good law under the Iowa Constitution. The 

thrust of our Vance opinion strongly suggested that it would be ineffective 

assistance to not launch an independent challenge under article I, section 

8 of the Iowa Constitution. 790 N.W.2d at 789–90. But because it was 

possible that counsel did not raise the issue of Belton’s vitality under the 

Iowa Constitution because of a reasonable belief that another exception to 

the warrant requirement might be present, we denied relief on direct 

appeal. Id. at 790.

Next, in Pals, 805 N.W.2d at 770–71, we explored the validity of a 

consent search in the context of an automobile stop under article I, section 

8 of the Iowa Constitution. At the outset, we observed that the proper 

scope of police authority in cases involving minor traffic infractions had 

been the subject of controversy. Id. at 772. We specifically noted claims 

of racial profiling and that a number of consent decrees had been entered 

to provide a framework for limiting the exercise of police authority in traffic 

stops. Id. at 772–73 & nn.2–9. We noted that at least one Iowa jurisdiction 

had entered into a consent decree related to alleged racial profiling in 

traffic stops. Id. at 773 & n.9.

In Pals, we also noted criticism of the Schneckloth test for consent 

both because of its failure to require a knowing and voluntary waiver of 

rights and in the lack of stringent application. Id. at 779–82. In Pals, we 

reserved for another day the question of whether Iowa should require 

knowing and voluntary waiver of constitutional rights in the context of 

automobile searches. Id. at 782. Instead, we applied the multi-factored 
95

Schneckloth test in a stringent fashion, emphasizing that the officer in the 

case had exercised authority over the driver through a pat-down search, 

that Pals was detained in the police vehicle at the time of consent, that 

Pals was not told he was free to leave or that he could voluntarily refuse 

consent without any retaliation by police, and that he was not advised that 

police had concluded their business. Id. at 782–83. We held that the 

consent in the case was invalid under article I, section 8 of the Iowa 

constitution. Id. at 783.

In State v. Tyler, 830 N.W.2d 288, 293–96 (Iowa 2013), we 

considered whether a search could be valid where the officer made a 

mistake of law in believing he had probable cause to seize a vehicle. We 

held that when a mistake of law was the sole justification of the stop, the 

evidence gathered pursuant to the stop was invalid. Id. at 294, 296, 298.

In Tyler, we came to our approach under both the Iowa and Federal 

Constitutions. Id. at 298. The United States Supreme Court has since 

held that suppression is not required if a stop is made for a reasonable 

mistake of law. Heien, 574 U.S. at ___, 135 S. Ct. at 534. While the 

Supreme Court has declined to follow the approach in Tyler under the 

Fourth Amendment, the holding of Tyler under article I, section 8 of the 

Iowa Constitution remains good law. Coleman, 890 N.W.2d at 298 n.2 (“Of 

course, the ruling in Tyler under the Iowa Constitution is unaffected by 

Heien.”). Although the Tyler case had discriminatory overtones of race and 

place, it was not necessary to address any issue of pretext. 830 N.W.2d at 

297 & n.4; see I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-

C.L. L. Rev. 43, 65–66 (2009) (noting policing may depend upon whether 

members of a race are deemed to be in the right place).

Our next recent automobile case is Gaskins, 866 N.W.2d 1. In 

Gaskins, we considered the scope of a search incident to arrest in the 
96

context of an automobile stop for an expired license plate. Id. at 3. After 

the stop, police smelled marijuana and confiscated a marijuana blunt from 

the motorist. Id. The motorist and a passenger were arrested and placed 

in a police car. Id. Police then searched a safe in the car without first 

obtaining a warrant. Id.

We concluded that the search of the safe was not a valid search 

incident to arrest. Id. In doing so, we considered whether to continue 

following the approach of the United States Supreme Court in Belton, 453 

U.S. 454, 101 S. Ct. 2860. Gaskins, 866 N.W.2d at 8–10. In Belton, the 

Supreme Court ruled that once the driver of an automobile was arrested, 

police could engage in a warrantless search of the entire passenger 

compartment of the vehicle, including searching any containers found 

within the passenger compartment, without violating the Fourth 

Amendment. See 453 U.S. at 460, 101 S. Ct. at 2864. Belton thus stood 

for the doubtful proposition that a search of the interior compartment of 

an automobile was justified as a search incident to arrest even though the 

driver and passengers were not physically capable of retrieving a weapon 

or destroying contraband or evidence.

In Gaskins, we chose to reject the Belton approach under the Iowa 

Constitution. 866 N.W.2d at 12. We noted, among other things, that 

Belton had been subject to searing criticism, citing courts and scholars 

who declared that “[t]he drumbeat of scholarly opposition to Belton has 

remained constant,” that “[t]here is good reason to be critical of the Court’s 

work in Belton,” and that “[c]riticism of Belton has been vigorous and 

sustained.” Id. at 9 (first quoting State v. Eckel, 888 A.2d 1266, 1272–73 

(N.J. 2006); and then quoting Wayne R. LaFave, The Fourth Amendment in 

an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. 

L. Rev. 307, 332 (1982); and then quoting Eugene L. Shapiro, New York v. 
97

Belton and State Constitutional Doctrine, 105 W. Va. L. Rev. 131, 137 

(2002)). We also noted that members of the United States Supreme Court 

after Belton had expressed reservations about its scope and that the 

Supreme Court itself had limited Belton’s reach. Id. at 9–10; see Gant, 556 

U.S. at 350–51, 129 S. Ct. at 1723–24; Thornton v. United States, 541 U.S. 

615, 624, 124 S. Ct. 2127, 2133 (2004) (O’Connor, J., concurring in part); 

id. at 626–29, 124 S. Ct. at 2134–35 (Scalia, J., concurring in the 

judgment).

In analyzing the case, we recognized that we had adopted Belton in 

a lockstep fashion in State v. Sanders, 312 N.W.2d 534, 539 (Iowa 1981). 

See Gaskins, 866 N.W.2d at 9. We noted, however, that New Jersey, 

Washington, New Hampshire, and other states had declined to adopt 

Belton under their state constitutions. Id. at 11–12. After canvassing the 

authorities, we concluded that we could no longer follow Belton. Id. at 12. 

We reasoned that when the driver and the passenger were secured in the 

police car, nothing within the vehicle posed a threat to the officers and 

there was no possibility that the driver and passenger could destroy 

evidence in the backseat of the vehicle. Id. at 14. In short, the scope of 

the Belton rule far exceeded its justification under the facts presented in 

Gaskins. See id. at 14. We overruled Sanders as we no longer believed 

Belton provided the proper scope of searches incident to arrest under 

article I, section 8 of the Iowa Constitution. Id. at 16.

We returned to another automobile search in Coleman, 890 N.W.2d 

at 285. In Coleman, we considered whether an automobile stop could be 

extended to require production of a driver’s license or registration after the 

underlying basis for the stop had been resolved. Id. After surveying federal 

and state court authorities, we concluded that under article I, section 8 of 

the Iowa Constitution, the traffic stop could not be extended so that the 
98

officer could request papers from the driver after the original basis for the 

stop had been resolved. Id. at 299–301. We emphasized that “cabining 

official discretion to conduct searches is designed to prevent arbitrary use 

of police power.” Id. at 299. We noted that our recent cases “evinced an 

awareness of the potential for arbitrary government action on the state’s 

roads and highways.” Id. at 300. We noted that in Pals and Tyler, “we put 

traffic stops in the larger context of concerns surrounding racial profiling.” 

Id.

In State v. Storm, 898 N.W.2d 140, 141 (Iowa 2017), we considered 

whether it was time to do away entirely with the automobile exception to 

the warrant requirement. Although three members of the court were 

prepared to abandon the rule, see id. at 157–58 (Hecht, J., dissenting) 

(joined by Justices Wiggins and Appel), a majority of the court declined to 

do so, id. at 142 (majority opinion).

In his special concurrence, however, Chief Justice Cady emphasized 

that on the record developed in the case, the defendant had not shown 

that technological developments rendered the automobile exception 

obsolete. Id. at 157 (Cady, C.J., concurring specially). Thus, Chief Justice 

Cady regarded the result as fact intensive and implied that when adequate 

technology is available, a warrant may be required to support a search of 

an automobile. Id. Chief Justice Cady stated that he remained “convinced 

the automobile exception has a limited lifespan” but concluded that its 

longevity depended on the ability of the state to integrate and use 

technological developments that would make the categorical rule 

unreasonable. Id.

Last, we considered the proper approach to warrantless inventory 

searches pursuant to automobile stops in Ingram, 914 N.W.2d at 797. In 

Ingram, we used a method of analysis similar to that in Gaskins, exploring 
99

the validity of the stated rationale for warrantless inventory searches and 

canvassing applicable state and federal authorities. See id. at 801–12. We 

observed, among other things, that the Supreme Court’s approach to 

warrantless inventory search and seizure caselaw was highly contested. 

Id. at 805. Yet we recognized that thirty-five years before Ingram, we held 

in State v. Roth, 305 N.W.2d 501, 507–08 (Iowa 1981) (en banc), that a 

closed container—such as a paper bag, but not a purse, suitcase, or 

briefcase—could be opened as part of an inventory search of a seized 

automobile. Ingram, 914 N.W.2d at 813. The container in Ingram involved 

a bag with a drawstring. See id. at 798.

Nonetheless, we concluded in Ingram that the time had come to 

depart from federal precedent in our inventory search doctrine under 

article I, section 8 of the Iowa Constitution. Id. at 820–21. We also noted 

the powerful intersection of Whren, Atwater, and Bertine to provide law 

enforcement with “virtually unlimited discretion to stop arbitrarily 

whomever they choose, arrest the driver for a minor offense that might not 

even be subject to jail penalties, and then obtain a broad inventory search 

of the vehicle—all without a warrant.” Id. at 814. We observed that “[a]n 

essentially unregulated legal framework allowing wide police discretion in 

stopping, arresting, and conducting warrantless inventory searches of the 

driver’s automobile amounts to a general warrant regime that is anathema 

to search and seizure law.” Id. at 815. We rejected the approach of the 

United States Supreme Court in downgrading and demoting the warrant 

clause in favor of a general, free-floating reasonableness standard in its 

search and seizure law. Id. at 815–16. We reiterated that our recent cases 

embrace “a strong warrant preference interpretation of article I, section 8.” 

Id. at 816.
100

4. Summary. While the United States Supreme Court has engaged 

in a dramatic reduction of search and seizure protections in the 

automobile context, the trend in our law has been in the opposite direction. 

Unlike the recent innovative search and seizure decisions of the United 

States Supreme Court, this court has insisted on our traditional strong 

preference for search warrants even in the automobile context. In 

particular, we have been careful to ensure that our law does not permit 

law enforcement to operate with what amounts to the equivalent of a 

general warrant and expose large segments of the population to search 

and seizure without a particularized showing of the basis for the intrusion 

on liberty.

V. The Constitutionality of Searches Based on Pretext.

A. Overview of Pretextual Searches. In the earliest court cases, 

pretextual searches appear to have been disfavored in the few cases that 

addressed the issue. In the 1960s, “the Kerner Commission identified 

[pretextual stops] as racially discriminatory and a key trigger of the urban 

riots” of the decade. Charles R. Epp et al., Pulled Over: How Police Stops 

Define Race and Citizenship 27, 31 (2014) [hereinafter Epp et al.].

With the commencement of the “war on drugs” in the early 1980s, 

pretextual searches made something of a comeback. For instance, the 

Drug Enforcement Administration embarked on a cooperative, state–

federal program, called Operation Pipeline, that was intended to halt the 

flow of drugs on interstate highways through traffic stops designed to allow 

officers to investigate whether the drivers were involved in drug trafficking. 

Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much 

“Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1844 

& n.8 (2004) [hereinafter LaFave, “Routine Traffic Stop”]. Then, in 1996, 

in Whren, the Supreme Court gave the practice a major boost by declaring 
101

that any stop for a traffic violation based on probable cause was immune 

from Fourth Amendment review regardless of the motivation for the stop. 

Whren, 517 U.S. at 811–16, 116 S. Ct. at 1773–76. Many state courts that 

had previously condemned pretextual searches reversed course under the 

glare of Supreme Court precedent. See, e.g., Gama v. State, 920 P.2d 

1010, 1012–13 (Nev. 1996) (per curiam); People v. Robinson, 767 N.E.2d 

638, 640 (N.Y. 2001). While the Kerner Commission in 1968 decried 

pretextual search and seizure practice, the Supreme Court in Whren gave 

it a Fourth Amendment license.

The potential abuses arising from pretextual investigative traffic 

stops were apparent at the time of Whren. See, e.g., United States v. 

Harvey, 16 F.3d 109, 110 (6th Cir. 1994) (“The officers stopped the vehicle 

for speeding and equipment violations and because, as one officer later 

testified at the suppression hearing, ‘[t]he vehicle that I observed with the 

defective equipment was very similar in appearance and profile to several 

other vehicles that I have stopped which ultimately ended in arrests of 

drug traffickers.’ ” (Alteration in original.)); id. at 113 (Keith, C.J., 

dissenting) (noting that the police officer testified that the basis or part of 

the basis for the stop was that “[t]here were three young black male 

occupants in an old vehicle”); State v. Arroyo, 796 P.2d 684, 688 n.3 (Utah 

1990) (“As a result [of] Trooper Mangelson’s training . . . whenever he 

observed an Hispanic individual driving a vehicle he wanted to stop the 

vehicle.”). Both Harvey and Arroyo involved traffic stops of racial 

minorities.

Events after Whren have put the issue into even sharper relief. In 

the more than twenty years since Whren, many studies have found that 

African-Americans and other minorities are disproportionately subject to 

police seizures. See, e.g., Frank R. Baumgartner et al., Racial Disparities 
102

in Traffic Stop Outcomes, 9 Duke F. for L. & Soc. Change 21, 24–26 (2017) 

[hereinafter Baumgartner et al., Racial Disparities in Traffic Stop Outcomes] 

(noting ubiquity of substantial racial disparities stemming from traffic 

stops in each of the sixteen states with available data, including Missouri, 

Nebraska, and Illinois); Ronnie A. Dunn, Racial Profiling: A Persistent Civil 

Rights Challenge Even in the Twenty-First Century, 66 Case W. Res. L. Rev. 

957, 986 (2016) [hereinafter Dunn] (discussing study showing racial 

disparities in traffic stops in Ohio communities); Samuel R. Gross & 

Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on 

the Highway, 101 Mich. L. Rev. 651, 660 (2002) [hereinafter Gross & 

Barnes] (finding Maryland state troopers discriminate against AfricanAmerican and Hispanic motorists at every stage of encounter, from initial 

stop to final search); Mary N. Beall, Article, Gutting the Fourth Amendment: 

Judicial Complicity in Racial Profiling and the Real-Life Implications, 36 Law 

& Ineq. 145, 149 & n.27 (2018) [hereinafter Beall] (summarizing studies in 

North Carolina and Detroit showing racial disproportionality in traffic 

stops).

Finally, anecdotal evidence of what has become known as “driving 

while black” continues to accumulate. When Dr. Martin Luther King Jr. 

was arrested on January 26, 1956, in Montgomery, Alabama, for driving 

thirty miles per hour in a zone with a speed limit of twenty-five miles per 

hour, no one seriously believed that King was arrested to protect the 

traveling public. See Randall Kennedy, Martin Luther King’s Constitution: 

A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999, 1028 

(1989). Other negative experiences with traffic stops have been reported 

by sports stars Marcus Allen and Joe Morgan, prominent attorneys 

Johnnie Cochran and Christopher Darden, actors Wesley Snipes and Will 

Smith, politician and lawyer Deval Patrick, and federal judge Filemon Vela. 
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See David A. Harris, The Stories, the Statistics, and the Law: Why “Driving 

While Black” Matters, 84 Minn. L. Rev. 265, 265, 275 (1999); Lupe S. 

Salinas & Fernando Colon-Navarro, Racial Profiling as a Means of 

Thwarting the Alleged Latino Security Threat, 37 T. Marshall L. Rev. 5, 11 

n.36, 41 (2011); David A. Sklansky, Traffic Stops, Minority Motorists, and 

the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271, 312 n.196 

[hereinafter Sklansky]; Juan R. Torruella, Déjà vu: A Federal Judge 

Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167, 

190 n.136 (2011) [hereinafter Torruella]. As noted by Representative John 

Conyers, “[T]here are virtually no African-American males—including 

Congressmen, actors, athletes, and office workers—who have not been 

stopped at one time or another for an alleged traffic violation, namely 

driving while black.” Sklansky, 1997 Sup. Ct. Rev. at 312 n.196 (quoting 

143 Cong. Rec. E10 (daily ed. Jan. 7, 1997) (remarks of Rep. Conyers)).

B. Approaches to Pretext Prior to Whren.

1. Approaches to pretextual investigative searches in United States 

Supreme Court cases prior to Whren. Prior to Whren, the United States 

Supreme Court in several cases indicated that pretextual searches were 

likely to be unlawful under the Fourth Amendment. For example, in 

United States v. Lefkowitz, the Supreme Court considered whether the 

Fourth Amendment was violated where law enforcement conducted a 

thorough search of a premises solely armed with an arrest warrant. 285 

U.S. 452, 463, 52 S. Ct. 420, 423 (1932), abrogated in part by Harris v. 

United States, 331 U.S. 145, 153, 67 S. Ct. 1098, 1102 (1947), overruled 

in part by Chimel, 395 U.S. at 768, 89 S. Ct. at 2042–43. The Lefkowitz

Court said yes. Id. at 467, 52 S. Ct. at 424. In clear terms, the Lefkowitz 

Court declared, “An arrest may not be used as a pretext to search for 

evidence.” Id.
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Similarly, in Abel v. United States, the Supreme Court considered 

the use of an administrative warrant to gather evidence of espionage. 362 

U.S. 217, 218–19, 80 S. Ct. 683, 686–87 (1960). In Abel, immigration 

officers obtained an administrative arrest warrant to seize Abel on the 

ground that he was violating immigration law. Id. at 221–22, 80 S. Ct. at 

688. The FBI, who had an interest in Abel regarding potential espionage, 

accompanied the immigration officials to Abel’s hotel to arrest him. Id. at 

221–22, 80 S. Ct. at 688–89. Ultimately, the government obtained a 

number of documents tending to incriminate Abel on conspiracy to commit 

espionage. Id. at 224–25, 80 S. Ct. at 689–90. Abel sought to suppress 

the evidence on the ground that the immigration arrest effort was 

pretextual and designed in fact to allow the FBI to discover incriminating 

evidence without a warrant. Id. at 225–26, 80 S. Ct. at 690.

The Supreme Court rejected the claim based on the facts of the case. 

Id. at 226–30, 80 S. Ct. at 690–92. The Abel Court found that the arrest 

was not conducted in bad faith and was not pretextual in nature. Id. The 

Supreme Court noted, however, “Were this claim [of pretext] justified by 

the record, it would indeed reveal a serious misconduct by law-enforcing 

officers.” Id. at 226, 80 S. Ct. at 690. The Supreme Court stated that the 

test for pretext was “whether the decision to proceed administratively 

toward deportation was influenced by, and was carried out for, a purpose 

of amassing evidence in the prosecution for crime.” Id. at 230, 80 S. Ct. 

at 692. The Abel Court emphasized, however, that administrative searches 

conducted pursuant to standardized procedures should not be considered 

pretextual. See id. at 229, 80 S. Ct. at 692.

After Lefkowitz and Abel, a number of United States Supreme Court 

cases suggested that pretextual searches would raise serious 

constitutional problems. For instance, in Steagald v. United States, 451 
105

U.S. 204, 205–07, 101 S. Ct. 1642, 1644–45 (1981), the Supreme Court 

considered a case where police armed with an arrest warrant entered a 

home and discovered drugs and other evidence. The defendant moved to 

suppress the drug-related evidence on grounds of pretext, arguing that it 

was illegally obtained because the agents had failed to secure a search 

warrant before entering the home. Id. at 207, 101 S. Ct. at 1645. The 

Supreme Court agreed, holding that an arrest warrant may not serve as 

“the pretext for entering a home in which the police have a suspicion, but 

not probable cause to believe, that illegal activity is taking place.” Id. at 

215, 101 S. Ct. at 1649.

And in several cases upholding searches, the Supreme Court 

emphasized the lack of evidence showing that the searches were 

pretextual. For example, in Colorado v. Bannister, 449 U.S. 1, 4 n.4, 101 

S. Ct. 42, 44 n.4 (1980) (per curiam), the Supreme Court stressed, “There 

was no evidence whatsoever that the officer’s presence to issue a traffic 

citation was a pretext to confirm any other previous suspicion about the 

occupants.” Similarly, in Florida v. Wells, 495 U.S. 1, 2–3, 110 S. Ct. 1632, 

1634 (1990), the Supreme Court considered whether incriminating 

evidence obtained in an inventory search should be suppressed. The 

Court declined to suppress the evidence but noted, “[A]n inventory search 

must not be a ruse for a general rummaging in order to discover 

incriminating evidence.” Id. at 4, 110 S. Ct. at 1635. Further, in Bertine, 

479 U.S. at 372, 107 S. Ct. at 741, the Supreme Court declined to 

suppress the evidence obtained in an administrative search but observed 

that the defendant made “no showing that the police . . . acted in bad 

faith.”

Finally, in New York v. Burger, 482 U.S. 691, 693, 107 S. Ct. 2636, 

2639 (1987), the Court reviewed a state statute authorizing a warrantless 
106

search of an automobile junkyard. One question presented in the case 

was

whether an otherwise proper administrative inspection is 

unconstitutional because the ultimate purpose of the 

regulatory statute pursuant to which the search is done—the 

deterrence of criminal behavior—is the same as that of penal 

laws, with the result that the inspection may disclose 

violations not only of the regulatory statute but also of the 

penal statutes.

Id. The Court disagreed with the New York Court of Appeals that the 

administrative goal was pretextual because “a State can address a major 

social problem both by way of an administrative scheme and through penal 

sanctions.” Id. at 712, 107 S. Ct. at 2649. The Court also explained that 

the legislative history to the statute revealed proper regulatory purposes 

for the administrative scheme. Id. at 716 n.27, 107 S. Ct. at 2651 n.27. 

Justice Brennan, joined by Justice Marshall, dissented finding that the 

pretextual nature of the administrative scheme was illustrated by the fact 

that police officers copied serial numbers from a wheelchair and a walker, 

objects that were in no way relevant to the automobile-related 

administrative scheme. Id. at 725 & n.12, 107 S. Ct. at 2656 & n.12 

(Brennan, J., dissenting).

The Lefkowitz–Abel line of cases made sense, particularly during the 

years when the Supreme Court embraced a strong warrant-preference 

approach to the Fourth Amendment. Yet there were also cases that 

suggested that drawing the line at pretextual searches might not hold in 

light of pragmatic considerations embraced by some members of the 

Court.

For example, in Massachusetts v. Painten, 389 U.S. 560, 561, 88 

S. Ct. 660, 661 (1968) (per curiam), the United States Supreme Court in a 

per curiam decision dismissed a petition for certiorari as improvidently 
107

granted in a case involving an alleged pretextual search because the record 

in the case was not sufficiently clear and specific to permit a decision on 

important constitutional questions. In a dissenting opinion, however, 

Justice White, with two other Justices, expressed the view that “sending 

state and federal courts on an expedition into the minds of police officers 

would produce a grave and fruitless misallocation of judicial resources.” 

Id. at 565, 88 S. Ct. at 663 (White, J., dissenting). Painten, however, did 

not defend on the ground that the “knock and talk” was pretextual but 

solely on the ground that he did not consent to the search. George E. Dix, 

Subjective “Intent” as a Component of Fourth Amendment Reasonableness, 

76 Miss. L.J. 373, 385 (2006) [hereinafter Dix].

The United States Supreme Court seemed to wobble around the 

Lefkowitz–Abel line in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 

467 (1973). In Robinson, the Supreme Court considered a case where the 

defendant was arrested for driving while his operator’s permit was revoked. 

Id. at 220, 94 S. Ct. at 469–70. Pursuant to the arrest, the police searched 

him and retrieved a crumpled cigarette package that contained heroine 

capsules. Id. at 221–23, 94 S. Ct. at 470–71. The defendant was then 

charged and convicted of drug-related offenses. Id. at 219, 94 S. Ct. at 

469.

In Robinson, the Supreme Court concluded that a search incident to 

arrest in a traffic stop was always permitted, even without reasonable 

suspicion. See id. at 235, 95 S. Ct. at 477. In a footnote, the Court 

summarized Robinson’s position in the lower court (but not the Supreme 

Court), where he asserted that the officer “may have used the subsequent 

traffic violation arrest as a mere pretext for a narcotics search.” Id. at 221 

n.1, 94 S. Ct. at 470 n.1. The Robinson Court noted that placing Robinson 

in custody following his arrest “was not a departure from established police 
108

department practice.” Id. The Robinson Court thus was not required to 

directly address the validity of a pretextual stop. Id.

Justice Marshall, joined by Justices Douglas and Brennan, 

dissented. Id. at 238, 94 S. Ct. at 477 (Marshall, J., dissenting). Justice 

Marshall emphasized that whether evidence should be suppressed as a 

result of a traffic stop raised a fact-specific question. Id. at 248, 94 S. Ct. 

at 482. He cited cases from state jurisdictions that stood for the 

proposition that an arrest for a minor traffic charge cannot be used as a 

lever for expanding the search, including unsupported pat-down searches. 

Id. at 244–46, 94 S. Ct. at 481–82. Justice Marshall emphasized the 

Lefkowitz–Abel line of cases in rejecting the majority’s proposition that all 

that was required to support the search in the case was an objectively valid 

traffic arrest. Id. at 248, 94 S. Ct. at 483.

Next, in Scott v. United States, 436 U.S. 128, 130–31, 98 S. Ct. 1717, 

1719–20 (1978), the Supreme Court considered a case involving a question 

of the alleged failure of agents to “minimize” wiretap interceptions under 

the Omnibus Crime Control and Safe Streets Act of 1968. A federal district 

court found a statutory violation and held that suppression should be 

granted, largely because the agents were aware of the statutory 

minimization requirement “but made no attempt to comply therewith.” Id.

at 133, 98 S. Ct. at 1721. The court of appeals reversed. Id. at 134, 98 

S. Ct. at 1721.

In affirming the reversal of the district court, the Supreme Court 

held that under the facts of the case, the agents never reached the point 

where they had a duty to minimize the calls. Id. at 141–42, 98 S. Ct. at 

1725–26. What they might have done had they crossed that threshold, 

however, was irrelevant. See id. The Supreme Court stated, “[T]he fact 

that the officer does not have the state of mind which is hypothecated by 
109

the reasons which provide the legal justification for the officer’s action does 

not invalidate the action.” Id. at 138, 98 S. Ct. at 1723.

Another case of interest is United States v. Villamonte-Marquez, 462 

U.S. 579, 103 S. Ct. 2573 (1983). In Villamonte-Marquez, the Supreme 

Court rejected an argument that, because customs officers were 

accompanied by a state police officer and were following a tip that the 

vessel may contain narcotics, the customs officers could not rely on statute 

authorizing the boarding of vessels for inspection. Id. at 584 & n.3, 103 

S. Ct. at 2577 & n.3. In so construing the statute, the Supreme Court 

emphasized the need to protect the nation’s borders and the minimal 

expectation of privacy associated with border situations. Id. at 588–89, 

103 S. Ct. at 2579–80.

Prior to Whren, then, there were two competing strands of language 

in Supreme Court precedents. The Lefkowitz–Abel strand emphasized that 

pretextual searches were invalid and even amounted to serious 

misconduct by law enforcement. Yet in the Scott–Robinson line, the 

Supreme Court’s language emphasized the burdens of engaging in 

subjective inquiry of the purposes of law enforcement.

2. Pretextual investigative stops in lower federal courts prior to 

Whren. Given the competing lines of Supreme Court authority, it is not

surprising that a split in the federal circuit courts developed regarding the 

lawfulness of pretextual searches. The majority of federal circuit courts 

followed the approach in the Scott–Robinson line of cases by holding that 

where an officer has objective reasons to believe a traffic violation has 

occurred, the stop is reasonable. This approach is sometimes referred to 

as the “could have” test because what is important is not the officer’s 

actual motivation but, instead, whether an objective officer, under all the 

facts and circumstances, could have a reasonable basis for the traffic stop. 
110

See, e.g., United States v. Botero-Ospina, 71 F.3d 783, 786–87 (10th Cir. 

1995) (en banc); United States v. Johnson, 63 F.3d 242, 246–47 (3d Cir. 

1995); United States v. Scopo, 19 F.3d 777, 782–84 (2d Cir. 1994); United 

States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc); United States 

v. Meyers, 990 F.2d 1083, 1085 (8th Cir. 1993); United States v. Causey,

834 F.2d 1179, 1184–85 (5th Cir. 1987) (en banc).

A number of these federal circuit court cases, however, provoked 

strong dissents. For instance, in Botero-Ospina, the Tenth Circuit reversed 

its approach to pretextual searches announced in United States v. 

Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988), in favor of the “could have” 

approach. 71 F.3d at 785–87. Chief Judge Seymour, with two other 

judges, wrote in a dissent that “the majority relies on reasons so logically 

or legally flawed as to be little more than self-serving rationalizations.” Id.

at 789 (Seymour, C.J., dissenting). She bemoaned that under the 

majority’s approach, it is “irrelevant that the stop was motivated by racial 

animus, an inarticulable hunch, or any of the other improper reasons.” 

Id.

Chief Judge Seymour urged application of a reasonable officer 

standard, such as that articulated in Terry, 392 U.S. at 21–24, 88 S. Ct. 

at 1879–81, in evaluating the validity of pretextual stops. 71 F.3d at 789–

91. This amounted to a “would have” test. The test according to Chief 

Judge Seymour was whether a reasonable officer would have made the 

traffic stop notwithstanding any pretextual motive. See id. Anything less 

“would invite intrusions upon constitutionally guaranteed rights based on 

nothing more substantial than inarticulate hunches.” Id. at 790–91 

(quoting Terry, 392 U.S. at 22, 88 S. Ct. at 1880). In closing, Chief Judge 

Seymour observed,
111

[T]he magnitude of the majority’s deviation from Supreme 

Court precedent and the poverty of its reasons for doing so 

prompt me to observe that it is not for this court to provide 

law enforcement with a weapon in the war on drugs at the 

expense of the Fourth Amendment. A conviction won by 

eroding every individual’s right to personal security is dearly 

bought indeed. In my judgment, we are perilously close to 

selling our birthright for bread and pottage.

Id. at 795.

Judge Lucero also filed a dissenting opinion in Botero-Ospina. Id.

(Lucero, J., dissenting). He pointed out that the majority’s message to law 

enforcement officers was, “You may stop motorists on a subterfuge; we 

don’t care and we won’t ask.” Id. Judge Lucero found a similarity between 

the majority’s approach and the general warrants and writs of assistance 

that triggered the American Revolution. Id. at 796. He closed with the 

following observation:

I have every confidence in the ability of the trial courts 

to determine whether Fourth Amendment-related traffic stops 

are reasonable under a totality of the circumstances test. I do 

not agree that merely asking whether an officer could have 

made a stop is an objective standard for reasonableness; 

rather I see it as a warrant for arbitrary exercise of police 

power.

Id.

And in Causey, Judge Rubin filed a dissent worth pondering. 834 

F.2d at 1186 (Rubin, J., dissenting). Judge Rubin, for himself and five 

other judges, emphasized, “When . . . a reasonable officer would not have 

made the seizure of the suspect’s person absent an invalid purpose, the 

arrest must be condemned as pretextual.” Id. at 1187. Further, he noted, 

“An arrest is arbitrary, hence unconstitutional, if it is made in accordance 

with a potentially discriminatory plan, even when the same action, 

undertaken in accordance with neutral principles, would be permissible.” 

Id. at 1187–88.
112

Finally, in Harvey, Chief Judge Keith powerfully dissented. 16 F.3d 

at 112. In Harvey, an African-American was stopped for traveling three 

miles an hour over the speed limit and subsequently charged with drug 

crimes. See id. at 113. The officer involved testified, “Almost every time 

that we have arrested drug traffickers from Detroit, they’re usually young 

black males driving old cars.” Id. (emphasis omitted). Chief Judge Keith 

noted that “the majority acquiesces to an officer’s substitution of race for 

probable cause and essentially licenses the state to discriminate.” Id. at 

114.

While the majority of the circuits had adopted the view that a traffic 

stop was permissible under the “could have” test, two circuits adopted 

what amounted to the “would have” test. For example, in United States v. 

Cannon, the Ninth Circuit adhered to the view that pretextual searches 

were unlawful. 29 F.3d 472, 474–75 (9th Cir. 1994). Citing precedent 

from the Tenth Circuit that was later reversed in a controversial en banc 

opinion, the Cannon court stated, “In the absence of some limit on police 

power to make such [pretextual] stops, ‘thousands of everyday citizens 

who violate minor traffic regulations will be subject to unfettered police 

discretion as to whom to stop.” Id. at 474–75 (quoting Guzman, 864 F.2d 

at 1516). As a result, the Cannon court embraced the “would have” test 

and rejected the “could have” test. Id. at 476.

Similarly, in United States v. Smith, 799 F.2d 704, 708 (11th Cir.

1986), the Eleventh Circuit embraced the “would have” approach to 

pretextual stops. The Smith court emphasized that under the “would have” 

approach, the stop “must be both ‘justified at its inception’ and ‘reasonably 

related in scope to the circumstances which justified the interference in 

the first place.’ ” Id. at 711 (quoting Terry, 392 U.S. at 20, 88 S. Ct. at 

1879). The Smith court noted that were it to abandon the “would have” 
113

approach to pretextual stops, “[w]ith little more than an inarticulate 

‘hunch’ of illegal activity an officer could begin following a vehicle and then 

stop it for the slightest deviation from a completely steady course.” Id.

3. Approaches to pretextual searches in state court decisions prior to 

Whren. State courts have far more experience with traffic stops than do 

federal courts. Given their experience with the law of the road, state courts 

were more receptive than federal courts to penetrating pretextual stops. 

Prior to Whren, many state courts that considered the issue believed the 

proper test for whether an allegedly pretextual stop was valid was whether 

an objective police officer would have made the stop notwithstanding the 

pretextual motivation. See, e.g., Mings v. State, 884 S.W.2d 596, 602 (Ark. 

1994); Kehoe v. State, 521 So. 2d 1094, 1097 (Fla. 1988), overruled by

Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So. 2d 1171, 

1174 (Fla. 2004); People v. Mendoza, 599 N.E.2d 1375, 1383 (Ill. App. Ct. 

1992); State v. Izzo, 623 A.2d 1277, 1280 (Me. 1993); State v. Hoven, 269 

N.W.2d 849, 852–53 (Minn. 1978) (en banc); State v. Van Ackeren, 495 

N.W.2d 630, 642–45 (Neb. 1993); Alejandre v. State, 903 P.2d 794, 796 

(Nev. 1995), overruled by Gama, 920 P.2d at 1013; People v. James, 630 

N.Y.S.2d 176, 176–77 (App. Div. 1995); State v. Hawley, 540 N.W.2d 390, 

392–93 (N.D. 1995); State v. Spencer, 600 N.E.2d 335, 337 (Ohio Ct. App. 

1991), overruled by Dayton v. Erickson, 665 N.E.2d 1091, 1097–98 (Ohio 

1996); State v. Chapin, 879 P.2d 300, 303–05 (Wash. Ct. App. 1994), 

overruled in part by State v. Ladson, 979 P.2d 833, 843 (Wash. 1999) 

(en banc) (stating that both subjective and objective factors are relevant to 

the pretext inquiry). With minor variations, therefore, these courts 

adopted the “would have” test. 

Under the “would have” test, the question in a pretextual traffic stop 

is whether a reasonable officer would have made the stop notwithstanding 
114

any improper investigative motive. By the mid-1990s, the reasonable 

officer standard for evaluating pretextual stops under the “would have” 

test seemed to be gaining ground among the states. See Thanner v. State, 

611 A.2d 1030, 1032 (Md. Ct. Spec. App. 1992). A number of state 

supreme courts, however, declined to suppress evidence obtained in 

pretextual traffic stops. See, e.g., Ex parte Scarbrough, 621 So. 2d 1006, 

1010 (Ala. 1993); State v. Law, 769 P.2d 1141, 1144–45 (Idaho Ct. App. 

1989); Garcia v. State, 827 S.W.2d 937, 942 (Tex. Crim. App. 1992) 

(en banc).

4. Approaches to pretextual searches in Iowa prior to Whren. Prior 

to Whren, this court had several occasions to consider the validity of 

pretextual stops. In State v. Cooley, 229 N.W.2d 755, 756 (Iowa 1975), 

police were on special assignment to investigate armed robberies and 

house prowling. They observed a vehicle with a passenger, Cooley, who 

left the vehicle and walked several times between the vehicle and a tavern. 

Id. After the vehicle traveled for several blocks, the officers stopped the 

vehicle. Id. When Cooley was asked to step out of the vehicle, police 

noticed the handle of a revolver protruding from beneath the front seat. 

Id. Cooley was arrested and charged with carrying a concealed weapon. 

Id.

Cooley sought to suppress evidence arising from the stop. Id. At 

the suppression hearing, one of the officers involved testified that the 

initial stop arose because the actions of the defendant coming and going 

from the tavern were suspicious. Id. at 758–59. The officer also testified 

that other factors leading to the stop included the high-crime rate and the 

predominantly African-American population in the area. Id. at 759.

Although a provision of the Iowa Code provided for a stop to inspect 

the operator’s permit, we held that the police stop was unlawful. Id. at 
115

757–59. Based on the record, we concluded that the car stop “was not 

effected for the motivative purpose of inspecting the operator’s permit.” Id.

at 759. We further concluded there was no reasonable suspicion of crime 

to support the stop. Id. at 759–61. As a result, we concluded that the 

evidence obtained during the stop should be suppressed. Id. at 761. The 

Cooley case does not indicate whether it was based on the Iowa 

Constitution, the Federal Constitution, or both.

After Cooley, we repeatedly emphasized, in strong and direct 

language, that an officer is bound by the true reason for making a stop. 

See State v. Wiese, 525 N.W.2d 412, 415 (Iowa 1994) (“We hold officers to 

their true reason for stopping a vehicle in question and will not allow them 

to justify a stop with reasons upon which they did not actually act.”), 

overruled by Cline, 617 N.W.2d at 281; State v. Rosenstiel, 473 N.W.2d 59, 

61 (Iowa 1991) (“The officer is bound by the true reasons given for the 

stop.”), overruled by Cline, 617 N.W.2d at 281; State v. Bailey, 452 N.W.2d 

181, 182 (Iowa 1990) (“We have consistently held that in determining the 

validity of an investigatory stop police officers are bound by the real 

reasons for their actions.”), overruled by State v. Heminover, 619 N.W.2d 

353, 357 (Iowa 2000), overruled on other grounds by Turner, 630 N.W.2d 

at 606 n.2; State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982) (en banc) (“The 

officer is bound by the true reason or reasons for making the stop; that is, 

the officer may not rely on reasons that he or she could have had but did 

not actually have.”), overruled by Heminover, 619 N.W.2d at 357; State v. 

Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980) (“Officers are bound by 

their true reason for making the stop. They may not rely on reasons they 

could have had but did not actually have.”), overruled by Cline, 617 N.W.2d 

at 281.
116

In one pre-Whren case, however, we recognized that the United 

States Supreme Court might be changing course on the question of 

pretextual arrests. In State v. Garcia, 461 N.W.2d 460, 463 (Iowa 1990), 

we observed, “The traditional response to this police tactic [of pretextual 

arrests] has been to suppress all evidence derived from the search incident 

to the pretextual arrest.” We cited federal caselaw suggesting that the 

Supreme Court might be departing from the traditional position on pretext. 

Id. at 463–64. In Garcia, however, we concluded that even under the 

prevailing Iowa standard, the stop involved was not pretextual. Id. at 464.

The bottom line is that for twenty years prior to Whren, Iowa 

consistently held the actual subjective motivation of the officer provided 

the relevant yardstick in determining whether a search was unlawfully 

pretextual.

C. Overview of Whren. In 1996, the United States Supreme Court 

considered the case of Whren v. United States, 517 U.S. 806, 116 S. Ct. 

1769. The Court held that the Fourth Amendment allows police to stop a 

motorist who the police have probable cause to believe has committed a 

traffic infraction regardless of the subjective motivation for the stop and 

even if a reasonable officer motivated by a desire to enforce the traffic laws 

would not have made the stop. Id. at 811–16, 116 S. Ct. at 1773–76.

In Whren, police in an unmarked car in a “high drug area” in the 

District of Columbia observed a truck wait at a stop sign for an unusually 

long time, turn suddenly without signaling, and speed off at an 

“unreasonable” speed. Id. at 808, 116 S. Ct. at 1772. When the vehicle 

stopped behind other traffic, a police officer approached the driver’s door 

of the truck and directed that the vehicle be put in park. Id. When the 

officer neared the driver’s window, the officer observed plastic bags of 

crack cocaine in Whren’s possession. Id. at 808–09, 116 S. Ct. at 1772. 
117

Whren was charged with drug offenses and convicted. Id. at 809, 116 

S. Ct. at 1772. At a pretrial suppression hearing, Whren argued that the 

officer’s asserted ground for approaching the vehicle—to give the driver a 

warning concerning traffic violations—was pretextual. Id. The district 

court denied the suppression motion, concluding that nothing 

demonstrated that the actions by the police were contrary to a normal 

traffic stop. Id. Whren’s convictions were affirmed on appeal. Id.

At the Supreme Court, Whren challenged the district court’s denial 

of his motion to suppress the evidence. Id. at 810, 116 S. Ct. at 1772–73. 

Whren conceded that the officers had probable cause to believe that 

various provisions of the traffic code had been violated. Id. at 810, 116 

S. Ct. at 1772. Whren argued, however, that the proper test in the context 

of a highly regulated traffic stop was whether the police officers “would 

have made the stop for the reasons given” by the officers. Id. at 810, 116 

S. Ct. at 1773.

The Whren Court indicated that the result in the case was dictated 

by prior precedent. Id. at 813, 116 S. Ct. at 1774. The Court characterized 

a footnote in Villamonte-Marquez, 462 U.S. at 584 n.3, 103 S. Ct. at 2577 

n.3, as “flatly dismiss[ing] the idea that an ulterior motive might serve to 

strip the agents of their legal justification.” Whren, 517 U.S. at 812, 116 

S. Ct. at 1774. And the Court said Robinson “held that a traffic-violation 

arrest (of the sort here) would not be rendered invalid by the fact that it 

was ‘a mere pretext for a narcotics search.’ ” Id. at 812–13, 116 S. Ct. at 

1774 (quoting Robinson, 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1). 

Further, the Court cited Gustafson v. Florida, 414 U.S. 260, 266, 94 S. Ct. 

488, 492 (1973), where it held that a post-arrest search was valid even 

though it was not justified by safety concerns. Whren, 517 U.S. at 813, 

116 S. Ct. at 1774. Finally, the Court quoted Scott for the proposition that 
118

“[s]ubjective intent alone . . . does not make otherwise lawful conduct 

illegal or unconstitutional.” Id. (alterations in original) (quoting Scott, 436 

U.S. at 138, 98 S. Ct. at 1723).

When the Whren Court asked itself rhetorically why its test would 

even preclude actual and admitted pretext from Fourth Amendment 

scrutiny, it simply observed that this “more sensible option” was foreclosed 

by its precedents. Id. at 814, 116 S. Ct. at 1774–75. The Whren Court 

further emphasized that the limiting precedents were not based on the 

difficulty of proving subjective intent but rather on the principle that “the 

Fourth Amendment’s concern with ‘reasonableness’ allows certain actions 

to be taken in certain circumstances, whatever the subjective intent.” Id.

at 814, 116 S. Ct. at 1775. With respect to the suggestion that Fourth 

Amendment reasonableness requires balancing, the Court emphasized 

that “the result of that balancing is not in doubt where the search or 

seizure is based upon probable cause.” Id. at 817, 116 S. Ct. at 1776.

The Whren Court recognized the argument that traffic laws were so 

pervasive that virtually everyone is guilty of a violation of some kind. Id.

at 818, 116 S. Ct. at 1777. It declared, however, that it could not discern 

a standard to decide when such laws become so expansive and so 

commonly violated that the infraction itself cannot be the ordinary 

measure of the lawfulness of enforcement. Id. at 818–19, 116 S. Ct. at 

1777.

The Whren Court briefly acknowledged that racial profiling could be

used in a discriminatory fashion in the context of pretextual search and 

seizure. See id. at 813, 116 S. Ct. at 1774. The Whren Court, however, 

declared that the remedy for such discrimination was found in the Equal 

Protection Clause, not the Fourth Amendment. Id.
119

D. Approaches to Pretextual Search and Seizure After Whren.

1. Whren in federal courts. The Supreme Court has applied the 

principle of Whren in follow-up cases. See, e.g., Devenpeck v. Alford, 543 

U.S. 146, 153, 125 S. Ct. 588, 593–94 (2004). And, of course, the Court’s 

decisions on federal constitutional issues are binding upon lower federal 

courts.

Yet controversy remains. Consider the recent case of United States 

v. Johnson, 874 F.3d 571 (7th Cir. 2017) (en banc), cert. denied, ___ U.S. 

___, ___, 139 S. Ct. 58, 58 (2018). In this case, police surrounded a car 

illegally parked within fifteen feet of a crosswalk. Id. at 572. After seeing 

Johnson make movements suggesting that he “was hiding something such 

as alcohol, drugs, or a gun,” an officer ordered Johnson out of the car. Id.

at 572–73. “Once the car’s door was open, [the officer] saw a gun on the 

floor,” leading to Johnson’s arrest. Id. at 573.

The district court, relying on Whren, denied Johnson’s motion to 

suppress. Id. According to the district court, the officers’ desire to 

investigate drugs did not matter because the officers had objective reasons 

to believe that the car was illegally parked. See id. The majority opinion 

in Johnson held that Whren applies to parking violations and, because 

objective evidence of a parking violation subjected the driver to a parking 

ticket, there was sufficient reason to support the seizure of Johnson even 

if the officers’ true motivation was investigatory in nature. See id. at 573–

74.

The majority opinion in Johnson provoked a sharp dissent joined by 

two other judges. Id. at 575 (Hamilton, J., dissenting). The dissent noted 

that five officers swooped down on the vehicle with lights shining, opened 

the doors, pulled all the passengers from the vehicle, and handcuffed 

them, all because of a suspected parking violation of being too close to an 
120

unmarked crosswalk. Id. The dissenters noted that Whren, when coupled 

with additional cases, including Atwater, 532 U.S. at 354, 121 S. Ct. at 

1557, and Heien, 574 U.S. at ___, 135 S. Ct. at 536, “gives the police broad 

discretion to impose severe intrusions on the privacy and freedom of 

civilians going about their business.” Id. at 578. The dissenters noted 

that the cumulative effect of the cases “mean[s] that authority to conduct 

an investigatory stop can trigger sweeping intrusions and even dangers.” 

Id. The dissenters rejected the notion that pretextual parking violations 

can give rise to such “unreasonable” police conduct. Id. at 579–80.

Johnson sought certiorari. Petition for a Writ of Certiorari at i, 

Johnson, ___ U.S. ___, 139 S. Ct. 58 (No. 17-1349), 2018 WL 1505539, at 

*i. He received amicus support from the Cato Institute, which argued that 

Whren should be revisited if not limited. Brief of the Cato Institute as 

Amicus Curiae Supporting Petitioner at 2–3, Johnson, ___ U.S. ___, 139 

S. Ct. 58 (No. 17-1349), 2018 WL 1981930, at *2–3. The Civil and Human 

Rights Clinic at Howard University School of Law also filed an amicus brief, 

which emphasized the disproportionate effect of Whren on AfricanAmericans. Brief of Howard University School of Law, Civil & Human 

Rights Clinic in Support of the Petitioner at 2–3, Johnson, ___ U.S. ___, 

139 S. Ct. 58 (No. 17-1349), 2018 WL 1910945, at *2–3. Finally, Fourth 

Amendment scholars entered the fray in support of Johnson, arguing that 

extending Whren to a civil parking violation was unreasonable under the 

Fourth Amendment and would “exacerbate the ill effects that Whren has 

already created.” Brief of Fourth Amendment Scholars as Amici Curiae in 

Support of the Petitioner at 11–12, 16, Johnson, ___ U.S. ___, 139 S. Ct. 

58 (No. 17-1349), 2018 WL 1942537, at *11–12, *16. The Supreme Court, 

however, denied certiorari. Johnson, ___ U.S. at ___, 139 S. Ct. at 58.
121

Nevertheless, there is reason to believe that members of the United 

States Supreme Court have at least some concern about how Whren has 

played out in the real world. Four cases illustrate the point.

In Maryland v. Wilson, 519 U.S. 408, 410, 117 S. Ct. 882, 884 

(1997), the Supreme Court held that a police officer may order the 

passenger of a lawfully stopped car to exit the vehicle pending completion 

of the stop. In dissent, Justice Kennedy expressed concern about the 

interplay between Whren and other cases. Id. at 423, 117 S. Ct. at 890–

91 (Kennedy, J., dissenting). Specifically, Justice Kennedy noted,

The practical effect of our holding in Whren, of course, 

is to allow the police to stop vehicles in almost countless 

circumstances. When Whren is coupled with today’s holding, 

the Court puts tens of millions of passengers at risk of 

arbitrary control by the police.

Id. at 423, 117 S. Ct. at 890. Further, in a dissent joined by Justice 

Kennedy, Justice Stevens said that he “firmly believe[d] that the Fourth 

Amendment prohibits routine and arbitrary seizures of obviously innocent 

citizens.” Id. at 416, 117 S. Ct. at 887 (Stevens, J., dissenting). The focus 

on Fourth Amendment protection against arbitrariness in both dissenting 

opinions was nowhere to be found in Whren.

Later, in Arkansas v. Sullivan, 532 U.S. 769, 771–72, 121 S. Ct. 

1876, 1878 (2001) (per curiam), the Court reversed a decision of the 

Arkansas Supreme Court suppressing evidence in a pretextual traffic stop. 

But Justice Ginsburg, joined by Justices Stevens, O’Connor, and Breyer, 

sent something of a warning shot. See id. at 772–73, 121 S. Ct. at 1879 

(Ginsburg, J., concurring). She declared, “[I]f experience demonstrates 

‘anything like an epidemic of unnecessary minor-offense arrests,’ I hope 

the Court will reconsider its recent precedent.” Id. at 773, 121 S. Ct. at 

1879 (quoting Atwater, 532 U.S. at 353, 121 S. Ct. at 1557).
122

Next, in Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2059 

(2016), the Court considered a case where an officer did not have cause 

for an initial stop but, after obtaining identification from the individual, 

learned that there was an outstanding warrant for a parking ticket. The 

officer arrested Strieff and discovered drugs in a search incident to the 

arrest. Id. at ___, 136 S. Ct. at 2060. The Supreme Court held that the 

initial illegality was sufficiently attenuated from the later search such that 

no constitutional violation was present. Id. at ___, 136 S. Ct. at 2062–63.

Justice Sotomayor, joined in part by Justice Ginsberg, dissented. 

Id. at ___, 136 S. Ct. at 2064 (Sotomayor, J., dissenting). Notably, Justice 

Sotomayor wrote passionately about what the Utah Supreme Court 

characterized as the “routine procedure” and “common practice” of 

running warrant checks on persons detained without reasonable 

suspicion. Id. at ___, 136 S. Ct. at 2069 (quoting State v. Topanotes, 76 

P.3d 1159, 1160 (Utah 2003)). Writing just for herself, she emphasized 

that “unlawful ‘stops’ have severe consequences much greater than the 

inconvenience suggested by the name.” Id. at ___, 136 S. Ct. at 2069. 

Justice Sotomayor also criticized the thrust of Supreme Court cases that 

allow stops that “factor in your ethnicity, where you live, what you were 

wearing, and how you behaved.” Id. at ___, 136 S. Ct. at 2069 (citations 

omitted). Although Strieff was white, Justice Sotomayor noted that “it is

no secret that people of color are disproportionate victims of this type of 

[suspicionless] scrutiny.” Id. at ___, 136 S. Ct. at 2070.

Justice Kagan also dissented, joined by Justice Ginsburg. Id. at ___, 

136 S. Ct. at 2071 (Kagan, J., dissenting). She noted that warrant checks 

are “routine procedure” and “common practice.” Id. at ___, 136 S. Ct. at 

2073 (quoting Topanotes, 76 P.3d at 1160). The majority opinion, 

according to Justice Kagan, thus allows police officers to engage in 
123

unconstitutional stops and seek to cure them through routine warrant 

checks. Id. at ___, 136 S. Ct at 2073–74. An officer may consequently be 

encouraged to make an unconstitutional stop and conduct a check to see 

if the target is one of many millions of people, and if there is a hit, anything 

uncovered is fair game for a criminal prosecution. Id. Justice Kagan 

emphasized that police officers will see a potential advantage in 

unconstitutional stops without reasonable suspicion, exactly what the 

exclusionary rule was designed to avoid. Id. at ___, 136 S. Ct. at 2074.

Finally, in District of Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 

577, 584 (2018), the Court considered a case where partygoers brought a 

42 U.S.C. § 1983 action against police officers for false arrest. The central 

issues in the case were whether the officers had probable cause to arrest 

the party participants and, if not, whether the officers were nonetheless 

entitled to qualified immunity. Id. at ___, 138 S. Ct. at 585. In considering 

the question of qualified immunity, the Court concluded that “a reasonable 

officer,” looking at the totality of circumstances, could have concluded that 

there was a legal basis for the arrests. Id. at ___, 138 S. Ct. at 593.

Justice Ginsburg concurred in the judgment in part. Id. at ___, 138 

S. Ct. at 593 (concurring in the judgment in part). She expressed concern 

that the Supreme Court’s approach to search and seizure “sets the balance 

too heavily in favor of police unaccountability to the detriment of Fourth 

Amendment protection.” Id. at ___, 138 S. Ct. at 594. She noted, among 

other things, that commentators have criticized the path charted in Whren

and its progeny, which hold that “an arresting officer’s state of mind . . . 

is irrelevant to the existence of probable cause.” Id. (alteration in original) 

(quoting Devenpeck, 543 U.S. at 153, 125 S. Ct. at 593). Justice Ginsburg 

stated that she “would leave open, for reexamination in a future case, 

whether a police officer’s reason for acting, in at least some circumstances, 
124

should factor into the Fourth Amendment inquiry.” Id. Yet Justice 

Ginsburg recognized that the position advocated by the plaintiffs in the 

case was not embraced by “settled law” and, as a result, the Court correctly 

decided the issue of qualified immunity. Id.

Wilson, Sullivan, Strieff, and Wesby do not necessarily indicate a 

majority of the current Supreme Court is in favor of departing from Whren. 

But the concurring and dissenting opinions show that among some 

current members of the Supreme Court, the consequences of Whren are 

cause for concern.

2. Whren in state courts. After Whren, many state courts conformed 

their interpretations of state constitutional search and seizure provisions 

to that federal decision. Most state courts have done so with little analysis, 

often by simply lockstepping state constitutional law with federal 

precedent even if contrary to prior state court holdings. See, e.g., Gama, 

920 P.2d at 1012 (reversing course from prior precedent and noting the 

Nevada Constitution provides no greater protection than that afforded 

under the Federal Constitution); State v. Vineyard, 958 S.W.2d 730, 733–

36 (Tenn. 1997) (holding in the context of pretextual traffic stops that the 

Tennessee Constitution is coextensive with the Fourth Amendment). 

Others, however, have taken a different path.

I first turn to cases out of Washington. Like Iowa, the Washington 

Supreme Court has insisted on the warrant-preference approach and has 

rejected the Leon approach under the state constitution. State v. Afana, 

233 P.3d 879, 884–86 (Wash 2010) (en banc) (rejecting Leon); State v. 

Ringer, 674 P.2d 1240, 1247–49 (Wash. 1983) (en banc) (insisting on 

warrant preference), overruled in part on other grounds by State v. Stroud, 

720 P.2d 436, 440–41 (Wash. 1986) (en banc), overruled in part by State v. 
125

Valdez, 224 P.3d 751, 759 (Wash. 2009) (en banc). The Washington 

conceptual approach to search and seizure is thus similar to that in Iowa.

The Washington Supreme Court declined to follow Whren under the 

state constitution in Ladson, 979 P.2d at 836. The issue in that case was 

“whether pretextual traffic stops violate article I, section 7 of the 

Washington Constitution.”20 Id. In pre-Whren cases, the Washington 

Supreme Court had declared that police could not lawfully engage in 

pretextual arrests or searches. State v. Michaels, 374 P.2d 989, 992

(Wash. 1962) (en banc) (“An arrest may not be used as a pretext to search 

for evidence.”), abrogated in part on other grounds by Ringer, 674 P.2d at 

1248, as recognized in State v. Snapp, 275 P.3d 289, 296–97 (Wash. 2012) 

(en banc); see also State v. Montague, 438 P.2d 571, 574 (Wash. 1968) 

(rejecting the use of impoundment “as a device and pretext for making a 

general exploratory search of the car without a search warrant”).

In Ladson, the Washington Supreme Court framed the issue of 

pretext as follows:

[T]he problem with a pretextual traffic stop is that it is a 

search or seizure which cannot be constitutionally justified for 

its true reason (i.e., speculative criminal investigation), but 

only for some other reason (i.e., to enforce traffic code) which 

is at once lawfully sufficient but not the real reason. Pretext 

is therefore a triumph of form over substance; a triumph of 

expediency at the expense of reason.

979 P.2d at 838. The Washington Supreme Court rejected the teaching of 

Whren and instead held that pretextual stops violate article I, section 7 of 

the Washington Constitution. Id. at 842. In determining whether a stop 

is pretextual, the Ladson court held that the state must show, both 

subjectively and objectively, the traffic stop was not pretextual. Id. at 843.

 20Article I, section 7 of the Washington Constitution provides, “No person shall be 

disturbed in his private affairs, or his home invaded, without authority of law.” 

Wash. Const. art. I, § 7.
126

In the subsequent case of State v. Arreola, 290 P.3d 983, 986 (Wash. 

2012) (en banc), the Washington Supreme Court held that a traffic stop 

with mixed motives was not pretextual as long as the motive to stop for 

the traffic infraction was an “actual, conscious, and independent cause” of 

the stop. Under Arreola, the question was whether the officer would have 

conducted the traffic stop regardless of the illegitimate reason or 

motivation. Id. at 991–92. According to Arreola, analysis of the pretext 

issue still requires consideration of both subjective intent and objective 

factors. Id. at 992. The presence of a legally inadequate motivation, 

however, does not affect the validity of the stop if the stop would have been 

made independently. Id.

A Delaware court also declined to follow Whren under its state 

constitution in State v. Heath, 929 A.2d 390, 402 (Del. Super. Ct. 2006). 

In Heath, the court considered the validity of a stop for a minor traffic 

violation that occurred in the course of a drug investigation. Id. at 394–

96. The Heath court noted that “studies conducted on a stretch of [the 

interstate highway] between Baltimore and Delaware demonstrate that 

93% of all drivers were observed committing some type of traffic violation.” 

Id. at 398. In light of the pervasiveness of traffic violations, the Heath

court reasoned that allowing an officer to search for evidence based on a 

mere hunch of an unrelated crime by executing a traffic stop amounted to 

“a general warrant to search and seize virtually all travelers on the roads 

of this State.” Id. at 402.

As a result, the Heath court declined to follow Whren under article 

I, section 6 of the Delaware Constitution. Id. Instead, the Delaware court 

developed a three-step approach to determining whether a stop was lawful. 

First, the state has the burden of showing a reasonable basis to effectuate 

the stop based on a traffic violation. Id. at 402–03. If the state meets its 
127

initial burden, the burden shifts to the defendant to show that the real 

reason for the stop was an unrelated purpose for which there was no 

probable cause or reasonable suspicion. Id. at 403. In order to meet the 

burden on this second step, the defendant needs to show that

(1) he was stopped only for a traffic violation; (2) he was later 

arrested for and charged with a crime unrelated to the stop; 

(3) the crime or evidence of the crime was discovered as a 

result of the stop; (4) the traffic stop was merely a pretextual 

purpose, alleging that the officer had a hunch about, or 

suspected the defendant of, a non-traffic related offense 

unsupported by reasonable suspicion; and (5) the pretext can 

be inferred, at least, when the suppression hearing evidence 

is presented.

Id. A nonexclusive list of evidence that might be offered by the defendant 

to meet the burden on this second step includes

(1) evidence of the arresting officer’s non-compliance with 

written police regulations; (2) evidence of the abnormal nature 

of the traffic stop; (3) testimony of the arresting officer that his 

reason for the stop was pretextual; (4) evidence that the 

officer’s typical employment duties do not include traffic 

stops; (5) evidence that the officer was driving an unmarked 

car or was not in uniform; and (6) evidence that the stop was 

unnecessary for the protection of traffic safety.

Id.

If the defendant meets his or her burden in this second step, a 

presumption of pretext arises. Id. In the third step, however, the state 

may demonstrate that a non-pretextual reason existed for stop. Id. 

Applying the three-step test, the Heath court concluded that the stop 

involved in that case was pretextual, and as a result, evidence of 

intoxicated driving was suppressed.21 Id. at 404–06.

 21In Turner v. State, 25 A.3d 774, 777 (Del. 2011), the Delaware Supreme Court 

declined to consider the constitutionality of a pretextual search under the Delaware 

Constitution as the claim was not properly preserved. The Supreme Court stated, without 

citation, that other superior courts had not followed Heath. Id. It also cited its “criteria” 

approach to independent state constitutional adjudication, which limits the court’s ability 

to depart from federal precedent in its interpretation of the state constitution. Id. The 
128

I next turn to New Mexico. Like Washington, New Mexico adheres 

to the warrant-preference approach to search and seizure under its state 

constitution and rejects Leon. Campos v. State, 870 P.2d 117, 121 (N.M. 

1994) (stressing warrant preference); State v. Gutierrez, 863 P.2d 1052, 

1053 (N.M. 1993) (rejecting Leon).

The New Mexico Court of Appeals has also declined to follow Whren. 

In State v. Ochoa, the New Mexico court considered the validity of a 

pretextual traffic stop under Article II, section 10 of the New Mexico 

Constitution. 206 P.3d 143, 146 (N.M. Ct. App.), cert. granted, 203 P.3d 

103, 103 (N.M. 2008), cert. quashed, 225 P.3d 794, 794 (N.M. 2009); see 

also Schuster v. State Dep’t of Taxation & Revenue, Motor Vehicle Div., 283 

P.3d 288, 297 (N.M. 2012) (discussing Ochoa with approval); State v. 

Gonzales, 257 P.3d 894, 897–98 (N.M. 2011) (same). The Ochoa court 

found the reasoning in Whren faulty. 206 P.3d at 148–51. Specifically, 

the court reasoned that because of the ubiquity of driving and the 

commonplace nature of traffic stops, probable cause and reasonable 

suspicion standards are not sufficient to limit police discretion in the 

enforcement of traffic standards. Id. at 150. The court also rejected the 

notion that the Equal Protection Clause of the Federal Constitution affords 

an adequate remedy, noting that prominent legal scholars had concluded 

that remedy faces nearly insurmountable barriers. Id. at 150–51. In any 

event, the court noted that reliance on the Equal Protection Clause would 

allow pretextual searches based on improper motives other than race. Id.

at 151.

In order to determine the issue of pretext, the New Mexico court 

stated that “courts should consider the totality of the circumstances, judge 

 

Delaware Supreme Court does not follow Leon, 468 U.S. at 913, 104 S. Ct. at 3415, under 

its state constitution. Dorsey v. State, 761 A.2d 807, 818–21 (Del. 2000).
129

the credibility of witnesses, weigh the evidence, make a decision, and 

exclude the evidence if the stop was unreasonable at its inception.” Id. at 

155.

3. Iowa’s response to Whren. After Whren, we decided Cline, 617 

N.W.2d 277. In Cline, we stated that in determining whether a stop was 

supported by probable cause, the officer’s stated reasons did not bind the 

State. Id. at 280–81. Instead, relying in part on Whren, we stated that 

whether or not probable cause existed for a search was determined by an 

objective standard. Id.

The issue in Cline, however, was not whether the initial stop was 

pretextual and designed to permit a search for which there was no 

constitutionally sufficient basis. This issue of pretext was not raised by 

the parties in briefing and was not decided. Further, the briefing nowhere 

suggests that the Iowa Constitution should be interpreted in a fashion 

different from the federal counterpart on this issue. Thus, the question of 

whether we should depart from Whren in the context of pretextual 

searches was not before the court and not decided. Instead, we simply 

held that when applying a Terry-type test to determine the validity of the 

initial seizure, the analysis was objective in nature. See id.

Two years later, we decided State v. Kreps, 650 N.W.2d 636 (Iowa 

2002). As in Cline, the issue was the validity of the initial investigative 

stop. Id. at 640. Also as in Cline, the parties did not raise the issue of 

whether to depart from federal standards in interpreting the Iowa 

Constitution. Indeed, in his brief, Kreps simply conceded that the 

standard for evaluating the lawfulness of the initial stop was an objective 

one. Appellee’s Brief & Argument & Conditional Notice for Oral Argument 

at 6, Kreps, 650 N.W.2d 636 (No. 01-0571), 2001 WL 35712937, at *6 (“The 

constitutional reasonableness of a search or seizure is determined by an 
130

objective standard.”). Nowhere in Kreps does the defendant suggest that 

a different standard should be applied under article I, section 8 of the Iowa 

Constitution than is applied by the federal courts under the Fourth 

Amendment. The issue of a separate standard under the Iowa 

Constitution was not raised and was not briefed. An uncontested and 

summarily discussed issue is not entitled to stare decisis. See Haskenhoff 

v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 615 (Iowa 2017) (Appel, 

J., concurring in part and dissenting in part) (“An uncontested statement 

of law is not entitled to stare decisis.”); see also United States v. 

Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (holding that uncontested

and summarily addressed issue in prior case was not controlling 

precedent).

In State v. Griffin, 691 N.W.2d 734, 735–36 (Iowa 2005), we did 

consider an arrest pursuant to a minor traffic incident. In Griffin, the 

defendant did not preserve the claim that the Iowa Constitution should be 

interpreted differently than its federal counterpart by failing to raise the 

issue in the district court. Id. To raise the claim on appeal, the defendant 

briefly asserted prior ineffective assistance of counsel. Appellant’s Brief & 

Argument & Request for Oral Argument at 6, Griffin, 691 N.W.2d 734 

(No. 03-1321), 2004 WL 3777646, at *6.

In a conclusory opinion, we noted that because of the nearly 

identical federal and state search and seizure provisions, “the construction 

of the federal constitution is persuasive in our interpretation of the state 

provision.” Griffin, 691 N.W.2d at 737. We did not provide any discussion 

of potential alternative interpretations. We stated that we had not found 

a basis to distinguish the protections afforded by the Iowa Constitution 

from the federal caselaw. Id. The conclusory ruling in Griffin appears to 
131

rely upon a presumption that we should generally follow federal law, id., a 

presumption we specifically overturned in Ochoa, 792 N.W.2d at 267.

Notably in Griffin, however, we did not mention let alone overrule 

Cooley, 229 N.W.2d at 759. Computer-based research has no cautionary 

red flags on Cooley. Perhaps the Griffin court thought the arrest in Griffin

was different than the search in Cooley. If Griffin intended to overrule 

Cooley, it certainly would have said so. Unless we are mind readers, we 

cannot regard the Griffin court as thoughtfully overruling a precedent in a 

different context about a case it did not mention.

In State v. Predka, 555 N.W.2d 202 (Iowa 1996), there is not one 

word about the search and seizure provisions of article I, section 8 of the 

Iowa Constitution. That is, perhaps, because the issue was not raised in 

the defendant’s brief. See Defendant–Appellant’s Brief & Argument,

Predka, 555 N.W.2d 202 (No. 95-1045), 1996 WL 34360016. According to 

the Predka court, “The district court correctly concluded the stop was not 

in violation of Predka’s Fourth Amendment rights.” 555 N.W.2d at 206. A 

case where article I, section 8 of the Iowa Constitution has not been raised 

or discussed does not bind us through stare decisis from revisiting the 

validity of pretextual stops under the state constitution. See Haskenhoff, 

897 N.W.2d at 614–15 (collecting cases).

In State v. Nitcher, 720 N.W.2d 547, 549–51 (Iowa 2006), we 

considered whether the police had probable cause coupled with exigent 

circumstances to support a search of a home that police suspected was 

involved in drug manufacturing. In considering the issue, we noted that 

the question of probable cause and exigent circumstances should be 

determined on an objective basis. Id. at 554. We noted that Nitcher had 

not asked us to distinguish the Iowa Constitution from the Federal 
132

Constitution. Id. at 553. Therefore, the issue of whether we should depart 

from the federal approach was not presented by the parties.

Finally, in Harrison, 846 N.W.2d at 363, we considered a traffic stop 

where a license plate frame covered the county name. Iowa Code section 

321.37(3) (2009) made it unlawful to place a frame over the registration 

plate which did not give a full view of all “numerals and letters.” The 

question in Harrison was whether the obstruction of the county name 

amounted to an infraction under the statute. 846 N.W.2d at 363. No issue 

of pretext was presented in the case and there was no holding based upon 

it. See id. at 364 n.1 (“The parties did not raise on appeal the issue of 

whether a pretextual traffic stop is valid. We therefore do not reach that 

issue.”). There is no holding in Harrison that is relevant for the resolution 

of this case.

In any event, if we insisted on blinkered application of stare decisis, 

cases like Brown v. Board of Education, 347 U.S. at 488, 74 S. Ct. at 688, 

and Gideon v. Wainwright, 372 U.S. 335, 337–38, 83 S. Ct. 792, 793 

(1963), would have been decided differently. “[I]f precedent is to have any 

value it must be based on a convincing rationale.” Cline, 617 N.W.2d at 

285 (quoting James, 393 N.W.2d at 472); see Vance, 790 N.W.2d at 789. 

None of the Iowa cases that follow Whren even attempt to offer a convincing 

rationale but offer only naked conclusions. And a cut-and-paste job that 

simply declares another jurisdiction has followed a certain approach and 

inserts that approach into Iowa law is not a convincing rationale. See

Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994) (explaining that past reliance 

on federal caselaw in construing an Indiana constitutional provision does 

not preclude formulation of an independent standard for analyzing state 

constitutional claims under the provision); Jack L. Landau, Some Thoughts 

About State Constitutional Interpretation, 115 Penn. St. L. Rev. 837, 871 
133

(2011) (“A prior decision . . . that merely assumes without any analysis 

that a state individual rights provision has the same meaning that the 

federal courts have given its parallel provision in the federal Bill of Rights 

should have no particular binding effect.”).

VI. Application of Iowa Constitutional Principles to Pretextual 

Searches.

A. Problems with Whren.

1. Lack of understanding of historical context of Fourth Amendment 

and subsequent caselaw. Remarkably, Whren contains no discussion at 

all about the history or function of the Fourth Amendment. There is not 

a word regarding the revolutionary generation’s deeply held concern about 

general warrants and open-ended government authority to engage in 

search and seizure. One will find no citation to the “briny irreverence” of 

the colonist toward the arbitrary exercise of government power. Burger, 

14 Am. U. L. Rev. at 4 (quoting Cahn at 24). The admonitions of Judge 

Pratt and Mercy Otis Warren about the exercise of general discretionary 

power to engage in unfettered search and seizure are ignored. See Entick, 

95 Eng. Rep. at 818; 2 Wils. K.B. at 292; Finkelman, 16 S. Ill. U. L.J. at 

392. The important constitutional role of the Fourth Amendment—to 

restrain wide-open discretion of government officials to stop any car on the 

open road—is not analyzed under the facts of the case.

Instead, Whren simply skipped the lessons of history and omitted 

any consideration of the structural role of the Fourth Amendment in 

limiting law enforcement discretion. Whren speed skated to its conclusion, 

namely, that the Court’s prior caselaw foreclosed any conclusion that 

pretextual traffic stops might offend the Fourth Amendment. See 517 U.S. 

at 812–13, 116 S. Ct. at 1774. The opinion is on authority, not reason. 
134

But Whren’s demand of obedience to the Court’s authority was off the 

mark.

For instance, the Whren opinion relies heavily on the Scott case. See 

id. at 813, 116 S. Ct. at 1774. The Scott case, however, did not involve a 

question of pretext at all but only a question of whether law enforcement 

complied with a statutory directive to minimize intercepted 

communications. 436 U.S. at 130, 98 S. Ct. at 1719–20. And Scott did 

not involve pretextual actions but only subjective thoughts that had 

nothing to do with the holding of the case. Id. at 136–37, 98 S. Ct. at 

1723. No binding ruling there on the question presented in Whren.

Another case relied upon in Whren was Robinson. Whren, 517 U.S. 

at 812–13, 116 S. Ct. at 1774. The Whren opinion characterized Robinson

as holding that a “traffic-violation arrest . . . would not be rendered invalid 

by the fact that it was ‘a mere pretext for a narcotics search.’ ” Id. (quoting 

Robinson, 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1). But the Robinson

footnote cited in Whren did not present a holding at all but only a 

statement of the government’s position in the matter. Robinson, 414 U.S. 

at 221 n.1, 94 S. Ct. at 470 n.1. Indeed, a careful reading of the footnote 

reveals that the pretextual argument was abandoned in the Supreme 

Court. Id. Further, as Professor Wayne R. LaFave points out, the custodial 

arrest in Robinson “was not a departure from established police 

department practice.” 1 Wayne R. LaFave, Search & Seizure: A Treatise on 

the Fourth Amendment § 1.4(f), at 182 (5th ed. 2012) [hereinafter LaFave, 

Search & Seizure] (quoting Robinson, 414 U.S. at 221 n.1, 94 S. Ct. at 470 

n.1). Robinson “leave[s] for another day questions which would arise on 

facts different from these.” 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1.

The Whren Court also relied upon Gustafson. Whren, 517 U.S. at 

813, 116 S. Ct. at 1774. In Gustafson, however, “the petitioner . . . fully 
135

conceded the constitutional validity of his custodial arrest.” 414 U.S. at 

267, 94 S. Ct. at 492 (Stewart, J., concurring). The Supreme Court does 

not decide issues abandoned by the parties.

Another case relied upon was Villamonte-Marquez. Whren, 517 U.S. 

at 812, 116 S. Ct. at 1774. That case relied heavily on the need to protect 

our nation’s borders. See Villamonte-Marquez, 462 U.S. at 588–89, 103 

S. Ct. at 2579–80. Unlike our cars and homes, there is small expectation 

of privacy at border locations under United States Supreme Court 

precedent. See id. In any event, the case did not involve an allegation of 

pretext but instead involved the construction of a statute. Id. at 580–81, 

103 S. Ct. at 2575.

In sum, the appeal to authority in Whren fails. That is not to say, of 

course, that the Supreme Court’s caselaw required the question be 

resolved in Whren’s favor. But what the case required was a thoughtful 

review of the purposes of the Fourth Amendment, a balanced review of the 

caselaw, and a careful application of legal principles to the facts at hand. 

That simply did not happen in Whren.

2. The pervasiveness of automobile regulation makes unregulated 

government authority to conduct traffic stops the equivalent of a general 

warrant. Ordinarily, the requirement of probable cause or reasonable 

suspicion serves as a check on arbitrary search and seizure. This 

particularized protection against arbitrariness, however, is absent in the 

context of automobile regulation. As has been recognized by many 

authorities, just about any motorist who police follow for any distance will 

commit some kind of minor traffic violation that could be used as a 

springboard for a pretextual stop.

As has been noted in the commentary, “If several, or in the case of 

traffic offenses, most, persons are committing the same offense and 
136

practical realities preclude an officer from stopping them all, then probable 

cause does not meaningfully limit an officer’s discretion.” Wesley MacNeil 

Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and 

Doctrinal Remedies to Racial Profiling, 74 Tul. L. Rev. 1409, 1414 (2000) 

[hereinafter Oliver]. Professor LaFave is particularly critical:

[G]iven the pervasiveness of such minor offenses and the ease 

with which law enforcement agents may uncover them in the 

conduct of virtually everyone, [the requirement of a traffic 

violation to conduct a stop] hardly matters, for . . . there exists 

“a power that places the liberty of every man in the hands of 

every petty officer,” precisely the kind of arbitrary authority 

that gave rise to the Fourth Amendment.

LaFave, Search and Seizure § 1.4(e), at 173 (quoting John Adams, Abstract 

of the Argument, in 2 Legal Papers of John Adams 134, 141–42 (L. Kinvin 

Worth & Hiller B. Zobel eds.,1965)).

The cases demonstrate that LaFave is right. The cases reveal 

pretextual stops for minor violations, such as driving sixty-eight miles per 

hour in a sixty-five miles per hour zone, United States v. Navarro-Camacho, 

186 F.3d 701, 703, 705 (6th Cir. 1999), displaying a bent but readable 

license plate on the back of a boat trailer, Kehoe, 521 So. 2d at 1095, 

failing to signal while changing lanes, Scopo, 19 F.3d at 779–80, driving 

with an apparently defective windshield wiper when it was not raining, 

State v. Daniel, 665 So. 2d 1040, 1041, 1046 & n.7 (Fla. 1995), overruled 

on other grounds by Holland v. State, 696 So. 2d 757, 759 (Fla. 1997), 

displaying a license plate with the state name and motto partially 

obscured, United States v. Contreras-Trevino, 448 F.3d 821, 824–25 (5th 

Cir. 2006), driving with a turn signal activated and not turning after the 

first three opportunities to do so, People v. Haywood, 944 N.E.2d 846, 

849–50 (Ill. App. Ct. 2011), and driving once over a fog line “by 

approximately eight inches for about five seconds,” Dods v. State, 240 P.3d 
137

1208, 1209 (Wyo. 2010). Indeed, there is caselaw suggesting that driving 

in complete compliance with traffic regulations is so unusual that officers 

consider it suspicious and a factor in a drug-courier profile. Smith, 799 

F.2d at 707–08.

In Iowa, the traffic code is pervasive. Iowa Code chapter 321 (2016), 

entitled “Motor Vehicles and Law of the Road,” consists of 245 pages of 

regulations, not including the table of contents. Traffic stops may be made 

for countless minor offenses that call for the exercise of discretion, such 

as driving with a license plate that is not “free from foreign materials,” like 

dirt, id. § 321.38; careless driving, including causing a vehicle “to 

unnecessarily turn abruptly or sway,” id. § 321.277A(4); driving at a speed 

“greater than []or less than is reasonable and proper,” id. § 321.285(1), or 

at a speed that “impede[s] or block[s] the normal and reasonable movement 

of traffic,” id. § 321.294; not driving a vehicle “as nearly as practical 

entirely within a single lane” on a multilane highway, id. § 321.306(1); and 

“follow[ing] another vehicle more closely than is reasonable and prudent,” 

id. § 321.307. And aside from the regulations cited above, of course, police 

may make seizures for minor violations of the speed limit, for rolling stops, 

or for a myriad of minor equipment violations. See, e.g., Harrison, 846 

N.W.2d at 368–69 (upholding stop for a license plate cover that obscured 

the county name even though the letters and numerals on the plate, which 

could be used to run a vehicle check, were unobstructed).

If it is true that every motorist is subject to a pretextual stop, the 

unfettered authority to engage in traffic stops is the equivalent of the hated 

general warrant that animates our search and seizure law. A general 

warrant authorized law enforcement to engage in wide-open, discretionary 

stops without particularized reasons for conducting the stop. See, e.g.,

Oliver, 74 Tul. L. Rev. at 1411–12 (“The Fourth Amendment’s historical 
138

background clearly demonstrates a fear of the discretion of the official in 

the field, at that time embodied in general warrants that empowered an 

officer to search wherever he chose for evidence of a crime.”). The Supreme 

Court in Whren simply did not recognize the pervasiveness of regulation 

nor the striking similarity of traffic stops to a general warrant in light of 

that pervasiveness. See id. at 1412.

The Whren Court seemed to think that probable cause that a traffic 

infraction had occurred was sufficient to cabin law enforcement discretion 

in the context of traffic stops. See 517 U.S. at 817–18, 116 S. Ct. at 1776–

77. Often, a particularized showing can be a significant restraint. But in 

the context of pervasive traffic violations, it is no restraint at all. Reliance 

on probable cause that a traffic violation occurred, in essence, gives law 

enforcement officers carte blanche to engage in traffic stops based on their 

own whims, prejudices, or implicit biases.

Further, the Supreme Court in Whren did not recognize the role of 

search and seizure law, not only in ensuring government action is justified, 

but also in ensuring that government action is not arbitrary. The Court 

seemed oblivious to the history of search and seizure and the declarations 

of Judge Pratt in Entick and of Mercy Otis Warren during the ratification 

debate in America of the need to control arbitrary searches where large 

bodies of the population are subject to them. See Entick, 95 Eng. Rep. at 

818; 2 Wils. K.B. at 292; Finkelman, 16 S. Ill. U. L.J. at 392. Judge Pratt 

and Mercy Otis Warren would find the approach in Whren quite disturbing.

3. Lack of analysis on the methods of controlling pretextual stops. 

The Supreme Court in Whren did not seriously analyze the potential 

methods of regulating pretextual stops. For instance, for twenty-five years 

after Cooley, 229 N.W.2d at 759, we employed a subjective approach to the 

problem of pretext. Wiese, 525 N.W.2d at 415; Rosenstiel, 473 N.W.2d at 
139

61; Bailey, 452 N.W.2d at 182; Lamp, 322 N.W.2d at 51; Aschenbrenner, 

289 N.W.2d at 619. In evaluating challenges to stops under Cooley, trial 

court judges did what they do every day, namely, found the facts based on 

the evidence and inferences that may be drawn from it. It is true, perhaps, 

that some prior Supreme Court precedent frowned on a subjective 

approach, but those precedents, then, may be flawed too. See, e.g., Scott, 

436 U.S. at 138, 98 S. Ct. at 1723; Painten, 389 U.S. at 565, 88 S. Ct. at 

663. As Oliver Wendell Holmes once observed, “If justice requires the fact 

to be ascertained, the difficulty of doing so is no ground for refusing to 

try.” O.W. Holmes, Jr., The Common Law 48 (Bos., Little, Brown & Co. 

1881). See generally Dix, 76 Miss. L.J. at 477–81 (arguing that Fourth 

Amendment standards should contain a subjective component).

In reality, fact finders engage in subjective inquiries in many areas 

of our law. Motive is key in countless areas of law that require a 

determination of mens rea or bad faith. For example, motive is an 

important part of status-based discrimination and retaliation law under 

the Iowa Civil Rights Act, Iowa Code chapter 216. See Haskenhoff, 897 

N.W.2d at 633–34 (majority opinion of Appel, J., which was joined by Chief 

Justice Cady, and Justices Wiggins and Hecht). In State v. Kern, 831 

N.W.2d 149, 171–72 (Iowa 2013), we held that any special needs exception 

to the warrant requirement was not available because the purpose of the 

search was investigative in nature. And in State v. Coffman, 914 N.W.2d 

240, 257 (Iowa 2018), we held that in order to invoke the community 

caretaking exception, the State must show that the officer both objectively 

and subjectively “intended to engage in community caretaking.” 

Federal law also considers subjective purpose in many contexts. 

Under Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 

(1978), police officers commit a constitutional violation if they knowingly 
140

or “with reckless disregard for the truth” falsely support a warrant 

application. And under Massiah v. United States, 377 U.S. 201, 206, 84 

S. Ct. 1199, 1203 (1964), courts inquire into whether the law enforcement 

officer “deliberately elicited” information from the accused. Courts inquire 

into “the purpose and flagrancy of the official misconduct,” among other 

things, when “determining whether a confession is obtained by 

exploitation of an illegal arrest.” Brown v. Illinois, 422 U.S. 590, 603–04, 

95 S. Ct. 2254, 2261–62 (1975). Additionally, a roadside checkpoint is 

permitted under City of Indianapolis v. Edmond, 531 U.S. 32, 40–42, 121 

S. Ct. 447, 453–54 (2000), only if the city’s purpose is distinguishable from 

its general interest in crime control.

Further, the approach in Whren is inconsistent with the Supreme 

Court’s inventory and administrative search cases. In the context of 

inventory and administrative search cases, government agents’ exercise of 

discretion to conduct a search is not controlled by a requirement of 

particularity. See Burger, 482 U.S. at 702, 107 S. Ct. at 2643–44; Bertine, 

479 U.S. at 371, 107 S. Ct. at 741. Because of the lack of control of 

discretion in inventory and administrative search cases by a particularity 

requirement, the Supreme Court has permitted inquiry into the purpose 

of the government action in order to prevent pretextual use of the inventory 

and administrative search doctrines. See Burger, 482 U.S. at 702–03, 107 

S. Ct. at 2643–44; Bertine, 479 U.S. at 372–73, 107 S. Ct. at 741–42.

Just as the inventory and administrative searches are not controlled 

by a particularity requirement, the same is true in the context of a routine 

traffic stop. Because of the ubiquity of traffic violations, any requirement 

of particularity does not provide a meaningful control on the exercise of 

government discretion. Law enforcement can stop any driver on the road 

by tailing him or her for a few blocks. As a result, particularity provides 
141

no check on unfettered discretion to perform a traffic stop. Thus, as in the 

inventory and administrative search cases, a further check is required, 

namely, some kind of inquiry into the purpose of the government action. 

When placed in the proper Fourth Amendment context—i.e., ensuring 

proper limitations on unfettered government discretion—Whren is 

inconsistent with Bertine and Burger.

Even if pure inquiry into subjective intent is disfavored, the 

alternative “would have” test that was proposed in Whren is largely an 

objective test. From a methodological standpoint, it is virtually identical 

to the test articulated in Terry, 392 U.S. at 21–24, 88 S. Ct. at 1879–81, 

for determining the lawfulness of an investigatory stop. A “would have” 

approach to pretextual stops would be no more unworkable than the Terry

test, which has been with us for decades. The simple question is whether, 

under all the facts and circumstances, the stop would have occurred even 

without the pretextual motivation. The exercise would be strikingly similar 

to the application of the independent source exception to the exclusionary 

rule.

While the approach I advocate is said to be unworkable, the trend 

in the states prior to Whren was moving toward permitting challenges to 

pretextual searches. See, e.g., Mings, 884 S.W.2d at 602; Kehoe, 521 

So. 2d at 1097; Mendoza, 599 N.E.2d at 1383; Izzo, 623 A.2d at 1280; 

Thanner, 611 A.2d at 1032; Hoven, 269 N.W.2d at 852–53; Van Ackeren, 

495 N.W.2d at 642–45; Alejandre, 903 P.2d at 796; James, 630 N.Y.S.2d 

at 176–77; Hawley, 540 N.W.2d at 392–93; Spencer, 600 N.E.2d at 337; 

Chapin, 879 P.2d at 303–05. Our caselaw was part of that trend. For 

more than two decades after Cooley, 229 N.W.2d at 759, we clearly held to 

the view that pretextual searches were unlawful. See Wiese, 525 N.W.2d 

at 415; Rosenstiel, 473 N.W.2d at 61; Bailey, 452 N.W.2d at 182; Lamp, 
142

322 N.W.2d at 51; Aschenbrenner, 289 N.W.2d at 619. The emerging trend 

in the states, of which we were a part, would not have occurred if judicial 

review of pretextual searches was unworkable.

In any event, the pragmatic policy considerations offered by 

followers of Whren, strikingly, do not include the constitutionally based 

policy of prohibiting the generalized exercise of discretion by police officers 

in conducting searches and seizure. Generalized authority to search is 

anathema to search and seizure law. The very purpose of search and 

seizure law is to cabin discretion of law enforcement. According to Chief 

Justice Burger, search and seizure law was based on “a sort of briny 

irreverence toward officials.” Burger, 14 Am. U. L. Rev. at 4 (quoting Cahn 

at 24). Where is the “briny irreverence” in the opinions of the court in this 

case toward the exercise of government power to search and seize? To 

claim that cabining generalized discretion in the hands of law enforcement 

is inconvenient is to overrule the constitutional principles embraced in 

search and seizure law in the name of contemporary policy.

4. Giving short shrift to the problem of racial profiling. The impact 

on our population of racial profiling in our criminal justice system should 

not be ignored. As noted by the Ninth Circuit in United States v. MonteroCamargo,

Stops based on race or ethnic appearance send the underlying 

message to all our citizens that those who are not white are 

judged by the color of their skin alone. Such stops also send 

a clear message that those who are not white enjoy a lesser 

degree of constitutional protection—that they are in effect 

assumed to be potential criminals first and individuals 

second.

208 F.3d 1122, 1135 (9th Cir. 2000) (en banc); see also United States v. 

Weaver, 966 F.2d 391, 397 (8th Cir. 1992) (Arnold, C.J., dissenting) 
143

(“When public officials begin to regard large groups of citizens as 

presumptively criminal, this country is in a perilous situation indeed.”).

Whren’s impact with respect to racial profiling claims in the context 

of routine traffic stops under the Fourth Amendment is clear: there is no 

protection. As noted by two leading scholars, “Whren v. United States is 

notorious for its effective legitimation of racial profiling in the United 

States.” Gabriel J. Chin & Charles J. Vernon, Reasonable but 

Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. 

United States, 83 Geo. Wash. L. Rev. 882, 884 (2015) [hereinafter Chin & 

Vernon] (footnote omitted).

5. Inadequate analysis of potential equal protection claims. The 

Whren opinion briefly addresses the concern about racial discrimination. 

According to Whren, the constitutional basis for objecting to intentionally 

discriminatory application of laws is the Equal Protection Clause, not the 

Fourth Amendment. 517 U.S. at 813, 116 S. Ct. at 1774.

The referral of defendants challenging pretextual traffic stops to the 

Equal Protection Clause is rich in irony. The Supreme Court in Whren

rejected inquiry into the subjective state of mind of a police officer under 

the Fourth Amendment. Id. Yet it suggested that defendants alleging 

racial profiling might seek an equal protection remedy. Id. Under the 

applicable federal law, a criminal defendant seeking to establish an equal 

protection violation has the burden of showing racial animus. Washington 

v. Davis, 426 U.S. 229, 239–42, 96 S. Ct. 2040, 2047–49 (1976). So, in 

other words, law enforcement is freed from a Fourth Amendment inquiry 

into subjective intent because of the difficulties of proof, but criminal 

defendants are shackled with that very difficulty in seeking to prove an 

equal protection claim. Further, the requirement of invidious 
144

discrimination in equal protection claims would likely prevent a claim of 

pretext based on implicit bias.

There are other problems. It is unclear that the exclusionary rule 

applies to equal protection violations. See United States v. Armstrong, 517 

U.S. 456, 461 n.2, 116 S. Ct. 1480, 1484 n.2 (1996); Brooks Holland, 

Safeguarding Equal Protection Rights: The Search for an Exclusionary Rule 

Under the Equal Protection Clause, 37 Am. Crim. L. Rev. 1107, 1110 (2000) 

(“[N]either in Whren nor elsewhere has the Supreme Court clarified 

whether a defendant may seek the exclusion of evidence in a criminal 

proceeding as a remedy under the Equal Protection Clause.”).

In addition, an individual defendant in a pretextual traffic stop 

simply does not ordinarily have the resources to conduct elaborate 

statistical studies to show the existence of racial profiling. Generally, 

motions to suppress are handled on relatively short notice and with limited 

discovery. The resolution of a suppression motion is not usually delayed 

while data is gathered and statistically analyzed, particularly where the 

defendant is in jail pending trial. Indigent defendants will not be able to 

afford an expert, and district courts may bray when faced with a costly 

application for approval of an expert in support of a motion to suppress. 

Further, some courts considering equal protection challenges to traffic 

stops have required statistical evidence of the specific locality where the 

stop occurred. See, e.g., Chavez v. Ill. State Police, 251 F.3d 612, 643–45 

(7th Cir. 2001) (holding statistical evidence was insufficient because it was 

statewide not local); Lee v. City of South Charleston, 668 F. Supp. 2d 763, 

776 (S.D. W. Va. 2009) (noting evidence of disparate treatment by state 

police throughout state, county, and city but no evidence of disparate 

treatment by municipal officers employed by the particular city). Meeting 

such a requirement in the context of a motion to suppress would be 
145

difficult. And even if a relevant pattern and practice of discriminatory 

conduct can be shown, this might not be sufficient to establish 

discrimination in a particular case, at least under federal law. See 

McCleskey v. Kemp, 481 U.S. 279, 297–99, 107 S. Ct. 1756, 1769–70 

(1987).22

While an equal protection claim in a motion to suppress could be 

based on direct evidence of racial discrimination, such an approach will 

rarely occur because few police officers will overtly confess to racial bias. 

As noted by commentators, Bull Conner is gone. See Frank R. 

Baumgartner et al., Suspect Citizens: What 20 Million Traffic Stops Tell Us 

About Policing and Race 20 (2018). In short, an equal protection claim 

based upon a pretextual investigatory stop is not a very good candidate for 

resolution in the context of a motion to suppress.

In any event, the real problem may not only be a few bad apples in 

law enforcement or a pattern of intentional misconduct. As noted by a 

recent Kansas study, the problem of disproportionality in traffic stops is 

not caused by individual decisions in isolation but is, instead, a result of 

 22The discriminatory intent requirement has been subject to criticism. See

Theodore Eisenberg & Sheri Lynn Johnson, The Effects of Intent: Do We Know How Legal 

Standards Work?, 76 Cornell L. Rev. 1151, 1152 (1991); R.A. Lenhardt, Understanding 

the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 808–09, 877–78 

(2004); Girardeau A. Spann, Disparate Impact, 98 Geo. L.J. 1133, 1135–36 (2010).

In addition, the International Convention on the Elimination of All Forms of Racial 

Discrimination (ICERD) was ratified by the United States in 1994. See International 

Convention on the Elimination of All Forms of Racial Discrimination, opened for signature

Dec. 21, 1965, 660 U.N.T.S. 195 (ratified by U.S. Oct. 21, 1994). The ICERD prohibits 

discrimination “where there is an unjustifiable disparate impact on a racial or ethnic 

group, regardless of whether there is any intent to discriminate against that group.” 

Torruella, 20 B.U. Pub. Int. L.J. at 194. “[W]here official policies or practices are racially 

discriminatory,” the state has an affirmative obligation “to prevent or end the situation.” 

Id. The United States joined the ICERD with a declaration stating that the treaty was not 

self-executing, meaning that the treaty would not afford private causes of action. See

Jamie Fellner, Race, Drugs, and Law Enforcement in the United States, 20 Stan. L. & Pol’y 

Rev. 257, 259 (2009).
146

institutional practice of pretextual investigatory stops, “a deliberate, 

specific invention that directly contributed to the explosion in arrests and 

imprisonment of racial minorities.” Epp et al. at 10. The authors note 

that “a large body of research demonstrates that most people in the 

contemporary United States”—including police officers, lawyers, and, yes, 

judges too—“cannot help but assume that racial minorities are more likely 

to be dangerous or engaged in criminality.” Id. at 40. “Policies favoring 

proactive [pretextual] investigatory stops . . . activate departments’ and 

officers’ implicit stereotypes of which neighborhoods and which 

individuals are suspicious.” Id. at 50.

Finally, an equal protection approach may not have the same 

across-the-board application to all arbitrary pretextual searches. A 

pretextual search based on racial profiling might be subject to search and 

seizure attack, but an equally arbitrary pretextual search of a person with 

curly hair would not. Celebrated criminal justice cases—including those 

affording counsel to indigents in the Scottsboro case, requiring Miranda

warnings to those who might otherwise face the third degree, and 

extending Fourth Amendment protections to the states to avoid the 

outrageous treatment of Dollree Mapp—were motivated, at least in part, to 

protect African-Americans from unfair overreach by law enforcement. Yet 

the principles announced in these cases apply to all and not just to some.

The view in Whren that the Fourth Amendment and the Equal 

Protection Clause are hermetically sealed off from one another is 

theoretically unsound. A wide range of modern scholars, including 

Charles Black, John Hart Ely, Laurence Tribe, Akhil Reed Amar, and Vicki 

Jackson, “have argued against constitutional interpretation that treats 

clauses of the document in isolation.” Paul M. Schwartz & William Michael 

Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual 
147

Property as Constitutional Property, 112 Yale L.J. 2331, 2410–11, 2410 

n.407 (2003) [hereinafter Schwartz & Treanor] (collecting authorities); see 

also Richard Albert, Constitutional Handcuffs, 42 Ariz. St. L.J. 663, 683 

(2010) [hereinafter Albert] (“To regard a constitution as a mere compilation 

of individual provisions, each subject to a sliding scale of worth, is to 

devalue the constitutional text as a document whose constituent parts 

must be read together to give the larger whole its full meaning.”).

It is also a historically inaccurate characterization of the Court’s 

cases. Criminal procedure rulings under other constitutional provisions, 

including the Fourth, Fifth, and Sixth Amendments, have been very much 

informed by the notion of equal citizenship for minorities. See, e.g., 

Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 

Mich. L. Rev. 48, 48 (2000). The Whren Court must not have gotten the 

memo, but the story of American criminal procedure is a story about race. 

E.g., I. Bennett Capers, Rethinking the Fourth Amendment: Race, 

Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 1 

(2011).

Certainly, the theoretical availability of an equal protection claim 

should not preempt the possibility of a claim under search and seizure 

principles. There is no constitutional bar to simultaneous violations of 

multiple constitutional provisions. See, e.g., Loving v. Virginia, 388 U.S. 

1, 12, 87 S. Ct. 1817, 1823–24 (1967) (finding violations of both Equal 

Protection and Due Process Clauses in striking down miscegenation 

statute).

The interplay between antidiscrimination principles and 

constitutional concepts of search and seizure were illustrated very early in 

Iowa’s history. In 1863, Archie P. Webb, an African-American, was 

employed as a laborer in Polk County. Coffin at 201. The sheriff arrested 
148

him for violating an 1851 statute that provided, among other things, that 

free blacks would be required to leave the state on three days’ notice. Id. 

Webb filed a petition for habeas corpus, and the matter came before Judge 

John Gray. Id. Among other rulings, Judge Gray found that the seizure 

of Webb by the sheriff violated article I, section 8 of the Iowa Constitution. 

See id. at 211. After citing article I, section 8, Judge Gray powerfully 

reasoned, “Is a law reasonable that arrests and imprisons a man where 

the only crime charged is that he is a freeman and has settled in the State 

of Iowa?” Id. Judge Gray then asked, “If this law authorizes a reasonable 

seizure, then what would be an unreasonable seizure?” Id. The case of 

Webb v. Griffith is a classic demonstration of the interplay between search 

and seizure law and the principles of equality.

6. Role of implicit bias. The Whren Court did not consider that 

disproportionate traffic stops may arise not simply from overt bias but also 

from unconscious bias or stereotypes. The notion of implicit bias is not 

very new. Nearly a decade before Whren, Professor Charles Lawrence 

wrote a seminal law review article on the role of implicit bias in law 

enforcement and other settings. Charles R. Lawrence III, The Id, the Ego, 

and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 

317, 322 (1987) [hereinafter Lawrence]. Professor Lawrence raised 

questions about the intent requirement in an equal protection claim under 

Davis, 426 U.S. 229, 96 S. Ct. 2040. Lawrence, 39 Stan. L. Rev. at 318. 

According to Lawrence, the injury to racial minorities arising from acts of 

discrimination is not affected by the motives of the decision-maker. See 

id. at 321.

There can be no doubt that the Supreme Court was generally aware 

of the problem of implicit bias when it decided Whren. In Batson v. 

Kentucky, Justice Marshall recognized the potential role of unconscious 
149

racism in jury selection. 476 U.S. 79, 106, 106 S. Ct. 1712, 1728 (1986) 

(Marshall, J., concurring). Later, in Georgia v. McCollum, Justices 

O’Connor and Thomas each recognized that unconscious racism may 

affect jurors’ view of a minority defendant. 505 U.S. 42, 61, 112 S. Ct. 

2348, 2360 (1992) (Thomas, J., concurring in the judgment); id. at 68, 112 

S. Ct. at 2364 (O’Connor, J., dissenting). Yet the Court did not address 

the impact of implicit bias in Whren.

7. Role of government as teacher. In Olmstead v. United States, 

Justice Brandeis famously wrote about the role of government as teacher. 

277 U.S. 438, 485, 48 S. Ct. 564, 575 (1928) (Brandeis, J., dissenting), 

overruled on other grounds by Katz v. United States, 389 U.S. 347, 352–53, 

88 S. Ct. 507, 512 (1967). According to Justice Brandeis, the long-term 

effectiveness of the criminal justice system demands that the laws be fairly 

enforced. See id. The Supreme Court recapitulated Justice Brandeis’s 

point in Mapp, warning, “Nothing can destroy a government more quickly 

than its failure to observe its own laws, or worse, its disregard of the 

charter of its own existence.” 367 U.S. at 659, 81 S. Ct. at 1694.

The use of pretextual investigative stops to avoid historic 

constitutional restraints is hardly the kind of lesson to be taught to those 

who interface with the criminal justice system. A defendant who engaged 

in pretextual reasoning would not win plaudits from a probation or parole 

officer, a prison official, or a sentencing judge. Condoning pretextual 

seizures by law enforcement sends a clear message: The law’s restrictions 

apply to me but not to thee. See Jonathan Blanks, Thin Blue Lies: How 

Pretextual Stops Undermine Police Legitimacy, 66 Case W. Res. L. Rev. 931, 

932 (2016); Tom R. Tyler & Cheryl J. Wakslak, Profiling and Police 

Legitimacy: Procedural Justice, Attributions of Motive, and Acceptance of 
150

Police Authority, 42 Criminology 253, 273–74, 276 (2004) [hereinafter Tyler 

& Wakslak].

8. Harms caused by arbitrary seizures. The Whren Court did not 

consider the harms that arise from arbitrary seizures of citizens on the 

open road. See 517 U.S. at 818–19, 116 S. Ct. at 1777. In considering 

harms, the focus is not on benefiting the particular defendant who seeks 

to suppress evidence but is instead on the need to protect innocent citizens 

generally from pretextual investigative stops. Brinegar, 338 U.S. at 180–

82, 69 S. Ct. at 1313–14. As noted by Professor David Harris, costs of 

pretextual investigative stops include “the impact on all the people innocent 

of any wrongdoing who are stopped, questioned and perhaps searched, and 

treated in many ways like suspected criminals in the effort to arrest the 

guilty.” David A. Harris, Essay, Car Wars: The Fourth Amendment’s Death 

on the Highway, 66 Geo. Wash. L. Rev. 556, 580 (1998).

Pretextual investigative stops of automobiles are not harmless to 

innocent citizens. Search and seizure law protects not only privacy of 

information but includes the right to be secure in one’s person, papers, 

and effects. A person’s interest in security is obviously impacted by a stop 

by police on the open road. Such stops are not simply minor 

inconveniences. They may engender “fear and surprise,” Sitz, 496 U.S. at 

452, 110 S. Ct. at 2486, as well as an “unsettling show of authority” and 

“substantial anxiety” in law-abiding motorists, Prouse, 440 U.S. at 657, 99 

S. Ct. at 1398. Further, a pretextual investigative stop may give rise to 

fears of an escalating confrontation that African-Americans explain to their 

teenaged children in “the talk.”

When pretextual investigative stops are made on racial minorities, 

the message is sent that those who are not white are second-class citizens. 

In the “stop and frisk” case of Floyd v. City of New York, 959 F. Supp. 2d 
151

540, 557 (S.D.N.Y. 2013), testimony suggested that the stops make people 

“feel unwelcome in some parts of the City.” Discrimination may cause 

“deep and lasting harm” and sends a message of racial insubordination. 

Epp et al. at 135. This kind of racial stigmatization drove the result in 

Brown v. Board of Education, where the court noted that segregated 

schools “generate[] a feeling of inferiority” among students “as to their 

status in the community that may affect their hearts and minds in a way 

unlikely ever to be undone.” 347 U.S. at 494, 74 S. Ct. at 691.

Pretextual investigative stops also make people less likely to trust 

police. Social psychology suggests that where people believe the system is 

discriminatory or unfair, they support it less and view it as less legitimate. 

See Tyler & Wakslak, 42 Criminology at 273–74, 276.

There is a suggestion in another opinion in this case of a long line of 

policy horribles if we were to decline to permit pretextual stops. One of 

the asserted problems with eliminating pretextual stops is that it would 

undermine public confidence in our legal system. But do pretextual stops 

promote public confidence in our legal system? Really? Do pretextual 

stops promote the perception that law enforcement offers act with 

integrity? Who thinks that? Do pretextual stops promote public 

confidence among those persons who bear the brunt of many of them, 

namely, African-Americans? When an African-American parent gives his 

or her teenage child “the talk” about driving in Iowa, does anyone think 

that parent could credibly explain that the general authority of police to 

stop based on implicit bias is part of the need for “public confidence” in 

law enforcement? Pretextual stops arising from racial profiling permitted 

by Whren “damage[] law enforcement and the criminal justice system as a 

whole by undermining public confidence and trust in the police, the 

courts, and criminal law, and thereby undermining law enforcement 
152

efforts and ability to solve and reduce crime.” See 31 R.I. Gen. Laws Ann. 

§ 31-21.2-2(f) (West, Westlaw through Chapter 26 of the 2019 Regular 

Session).

9. Summary. According to Professor LaFave, “The totality of the 

Court’s analysis in Whren is, to put it mildly, quite disappointing.”23 

LaFave, “Routine Traffic Stop,” 102 Mich. L. Rev. at 1859. As noted above, 

the shortcomings of Whren are manifold. To the extent a state court simply 

adopts Whren hook, line, and sinker into its interpretation of its own state 

constitution, the flaws are implicitly imported into local law.

B. Post-Whren Developments.

1. Implicit bias. Since Whren was decided, there has been an 

explosion of scholarly activity focusing on the question of implicit bias. A 

 23LaFave is not alone in his criticism of Whren. The scholarly reaction to Whren, 

on balance, has been quite negative. See, e.g., Chin & Vernon, 83 Geo. Wash. L. Rev. at 

884 (“Whren v. United States is notorious for its effective legitimation of racial profiling in 

the United States.” (Footnote omitted.)); David A. Harris, Essay, “Driving While Black” and 

All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. 

& Criminology 544, 582 (1997) (criticizing the increased discretion in Whren and stating 

that “[w]e are all the losers for it”); Pamela S. Karlan, Race, Rights, and Remedies in 

Criminal Adjudication, 96 Mich. L. Rev. 2001, 2005 (1998) (stating the Whren petitioner’s 

fears of racial profiling from arbitrary traffic stops have proved to be well founded); Lewis 

R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 

1413, 1414–15 (2013) (“The protections of the Fourth Amendment on the streets and 

highways of America have been drastically curtailed[, and its] value of preventing 

arbitrary police behavior has been marginalized.”); Maclin, Race and the Fourth 

Amendment, 51 Vand. L. Rev. at 392 (“If the Supreme Court is serious about protecting 

the Fourth Amendment interests of minority motorists, it should reverse Whren v. United 

States forthwith.”); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop 

and Search Any Car at Any Time, 47 Vill. L. Rev. 815, 821 (2002) (noting under Whren, 

police have authority to stop almost any vehicle at any time); Oliver, 74 Tul. L. Rev. at 

1480 (calling for limiting discretion of police in traffic stops); Thompson, 74 N.Y.U. L. Rev. 

at 1012 (concluding that “the Supreme Court has distorted Fourth Amendment 

jurisprudence” and erred in “declaring that the subject of racial motivation is irrelevant 

to Fourth Amendment analysis”); Jonathan Witmer-Rich, Arbitrary Law Enforcement Is 

Unreasonable: Whren’s Failure to Hold Police Accountable for Traffic Enforcement Policies, 

66 Case W. Res. L. Rev. 1059, 1059 & n.3 (2016) (noting that critical reaction to Whren

has been overwhelmingly negative); Daniel B. Yeager, The Stubbornness of Pretexts, 40 

San Diego L. Rev. 611, 617–34 (2003) (criticizing Whren for failing to acknowledge what 

counts as pretext).
153

robust scholarly literature has emerged demonstrating that in addition to 

intentional acts of discrimination, many acts of discrimination may be 

unconscious. E.g., L. Song Richardson, Police Efficiency and the Fourth 

Amendment, 87 Ind. L.J. 1143, 1146–51 (2012) [hereinafter Richardson]. 

The scholarly literature is summarized in State v. Plain, 898 N.W.2d 801, 

830–36 (Iowa 2017) (Appel, J., concurring specially).

We discussed the problem of implicit bias in Pippen v. State, 854 

N.W.2d 1, 6–7 (Iowa 2014). In Pippen, Justice Waterman, in a concurring 

opinion, noted, “Implicit-bias theory helps explain how statistical 

disparities can result without intentional discrimination . . . .” Id. at 33 

(Waterman, J., concurring specially). In short, in situations where a 

decision-maker has substantial discretion, the risk of unconscious bias 

affecting decisions is present and potentially quite powerful. There is no 

reason to think law enforcement, any more than farmers, teachers, 

lawyers, or judges, are immune from implicit bias. See Megan 

Quattlebaum, Let’s Get Real: Behavioral Realism, Implicit Bias, and the 

Reasonable Police Officer, 14 Stan. J. C.R. & C.L. 1, 3–5, 10–11 (2018) 

[hereinafter Quattlebaum]. Our increasing understanding of implicit bias 

heightens the urgency for dealing in an effective way with situations where 

law enforcement exercises broad, unfettered general authority to affect 

individual liberty. See id. at 32–33 (“[A] Supreme Court that seeks to 

minimize traffic stops and searches that are unreasonable because race is 

used as a basis of judgments about suspicion might revisit the significant 

discretion it has afforded police officers through the combined effects of its 

decisions in Whren, Schneckloth, and related cases.”).

Recent implicit bias studies suggest that racial disproportionality in 

pretextual investigatory stops may be due to an institutional mindset that 

allows for unregulated selection of investigative stop targets based upon 
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split-second decisions where implicit bias is likely to flourish. See, e.g., 

Epp et al. at 9–14; see also Batson, 476 U.S. at 106–07, 106 S. Ct. at 1728 

(“ ‘[S]eat-of-the-pants instincts’ may often be just another term for racial 

prejudice. Even if all parties approach the Court’s mandate with the best 

of conscious intentions, that mandate requires them to confront and 

overcome their own racism on all levels—a challenge I doubt all of them 

can meet. It is worth remembering that ‘. . . racial and other forms of 

discrimination still remain a fact of life, in the administration of justice as 

in our society as a whole.’ ” (quoting Vasquez v. Hillery, 474 U.S. 254, 264, 

106 S. Ct. 617, 624 (1986))). Search and seizure law should be fashioned 

to limit the risk of improper influence arising from such institutional bias.

2. Recognition of the problem of pretextual stops. A second feature 

of the landscape that has changed since Whren is the recognition of the 

pervasiveness of racial profiling. There are some decades-old empirical 

studies that are not encouraging. For instance, in Colorado, a study 

showed that even though over 400 persons were stopped on the interstate 

for traffic violations, not a single traffic ticket was issued. David A. Harris, 

Essay, “Driving While Black” and All Other Traffic Offenses: The Supreme 

Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 568–

69 (1997). Similarly, during the 1980s in Volusia County, Florida, 

available records show that less than 1% of those stopped actually received 

tickets. Id. at 561–63. Of the 1100 recorded stops, 70% were AfricanAmerican or Hispanic even though these racial groups comprised only 

about 5% of the drivers in the area. Id. Further, studies in Connecticut, 

Illinois, North Carolina, and Rhode Island showed marked racial disparity 

in traffic stops. Guy Padula, Utah v. Strieff: Lemonade Stands and Dragnet 

Policing, 120 W. Va. L. Rev. 469, 481 n.89 (2017) [hereinafter Padula]; see 

also Baumgartner et al., Racial Disparities in Traffic Stop Outcomes, 9 Duke 
155

F. for L. & Soc. Change at 24–26 (discussing studies in sixteen states); 

Gross and Barnes, 101 Mich. L. Rev. at 660 (describing studies in 

Maryland); Beall, 36 Law & Ineq. at 149 & n.27 (summarizing studies in 

North Carolina and Detroit).

More recently, a study in a Cleveland neighborhood showed that 

83% of all citations for seat belt violations were issued to AfricanAmericans and 88% of all the driver’s license offenses involved AfricanAmericans. Dunn, 66 Case W. Res. L. Rev. at 982. Further study of Ohio 

cities has found a persistent pattern of racial profiling in traffic 

enforcement. See id. at 973–86. A federal court found the stop and frisk 

policy in New York City was racially discriminatory. Floyd, 959 

F. Supp. 2d at 560–61.

By way of summary, scholars have cited testimonial accounts of 

victims, statistical evidence, laws and consent decrees, political speeches, 

and policy-maker decisions to show the persistent pattern of racial 

profiling in law enforcement. E.g., Padula, 120 W. Va. L. Rev. at 474 & 

nn.39–43.24

C. Discussion of Choices Under Article I, Section 8 of the Iowa 

Constitution. There is an array of choices under the Iowa Constitution. 

First, we could, of course, follow the analysis in Whren and adopt what is 

known as the “could have” test. Under the “could have” test, pretextual 

 24The American Civil Liberties Union of Iowa, the NAACP, the League of United 

Latin Americans Citizens of Iowa, and 1000 Kids for Iowa have filed an amicus brief in 

this case presenting statistical information which they assert demonstrates racial 

disproportionality in arrests in Iowa. In response, the Iowa County Attorneys Association 

filed an amicus brief challenging the validity of the statistics. I am grateful for the efforts 

of amici to assist us in this case. Deciding this case, however, does not require resolving 

whether, in fact, racial profiling is present in Iowa generally or even in this particular 

case. Instead, what is important, for purposes of article I, section 8, is that if law 

enforcement had unlimited discretion to make traffic stops regardless of pretext, our 

search and seizure law would allow law enforcement to engage in racial profiling.
156

traffic stops where the officers have reasonable suspicion or probable 

cause of a traffic infraction are not subject to challenge under article I, 

section 8 regardless of the nature and power of the motive for the search. 

A defendant would have to look elsewhere—perhaps to concepts of equal 

protection—for constitutional protection, if any, from arbitrary search and 

seizure.

A second option is to simply embrace a subjective test for pretext 

and determine what the officer’s purpose was for engaging in the stop. 

This is the test we applied in Cooley, 229 N.W.2d at 759, and its progeny.

A third option is some form of the “would have” test. The notion 

here would be that evidence obtained as a result of a pretextual traffic stop 

is subject to exclusion as unlawfully obtained under article I, section 8 

unless the State can show that the stop would have occurred even without 

pretextual motivation.

There is, perhaps, a final twist. This court could adopt an approach 

that limits search and seizure review of pretextual stops to certain subject 

matter. For instance, one scholar has suggested that judicial search and 

seizure oversight of pretextual traffic stops might be limited to situations 

involving “authoritarian pretext.” Cynthia Barmore, Authoritarian Pretext 

and the Fourth Amendment, 51 Harv. C.R.-C.L. L. Rev. 273, 276 (2016).

I begin by rejecting the “could have” approach of Whren, 517 U.S. at 

811–16, 116 S. Ct. at 1773–76. The “could have” test is not a test for 

pretext at all but simply rejects all pretext claims. I am simply unwilling 

to allow such a wholesale abandonment of constitutional restrictions on 

arbitrary pretextual traffic stops. It is undeniable that one of the historic 

purposes of search and seizure law is to prevent the government from 

engaging in arbitrary conduct permitted by unfettered discretion. Wilson, 

519 U.S. at 416, 117 S. Ct. at 887; Stanford, 379 U.S. at 481, 85 S. Ct. at 
157

510; Brinegar, 338 U.S. at 180–81, 69 S. Ct. at 1313; Wolf, 338 U.S. at 27, 

69 S. Ct. at 1361; Boyd, 116 U.S. at 625, 6 S. Ct. at 529; McCoy v. State, 

491 P.2d 127, 138 (Alaska 1971); Coleman, 890 N.W.2d at 299–300; 

Entick, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292; Cuddihy at 377–78; 

LaFave, Search and Seizure § 1.4(e), at 173; Amsterdam, 58 Minn. L. Rev. 

at 411, 417; Burger, 14 Am. U. L. Rev. at 4; Finkelman, 16 S. Ill. U. L.J. 

at 392; Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. at 333–

38; Maclin, The Complexity of the Fourth Amendment, 77 B.U. L. Rev. at 

946; Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & 

Mary L. Rev. at 248. And it is inescapable that given the pervasiveness of 

traffic regulation, unfettered discretion to stop motorists on the open road 

is the equivalent of the hated general warrant. Botero-Ospina, 71 F.3d at 

796; Heath, 929 A.2d at 402; LaFave, Search and Seizure § 1.4(e), at 173; 

Oliver, 74 Tul. L. Rev. at 1411–12. Further, a wide-open, let ‘er rip 

approach to warrantless pretextual traffic stops is inconsistent with the 

thrust of our search and seizure law, which seeks to limit the scope of 

warrantless searches and to tightly control searches that occur without a 

warrant. See Ingram, 914 N.W.2d at 804–05; Coleman, 890 N.W.2d at 

299–300; Gaskins, 866 N.W.2d at 3, 12–14; Pals, 805 N.W.2d at 782–83.

Further, our increased knowledge of implicit bias and the 

accumulating evidence of the reality of racial profiling reinforces my 

determination to address the issue. See Batson, 476 U.S. at 106–07, 106 

S. Ct. at 1728; Plain, 898 N.W.2d at 830–36; Epp et al. at 50; Lawrence, 

39 Stan. L. Rev. at 322; Quattlebaum, 14 Stan. J. C.R. & C.L. at 3–5, 10–

11, 32–33; Richardson, 87 Ind. L.J. at 1146–51. The “could have” 

approach amounts to a license to law enforcement to act in an 

unstructured fashion without regard to implicit bias that may be a 

powerful motivating factor in the exercise of police authority. The 
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accumulating evidence of the exercise of wide-open discretion through 

direct or implied use of racial profiling in traffic stops reinforces the need 

to fashion a body of law that discourages, if not eliminates, these factors 

in the discretionary exercise of the power to search and seize.

I also decline to rely on the back-up plan of equal protection. 

Bringing an equal protection claim under federal law would be difficult, if 

not impossible, in the context of pretextual traffic stops. See McCleskey, 

481 U.S. at 297–99, 107 S. Ct. at 1769–70; Davis, 426 U.S. at 239–42, 96 

S. Ct. at 2047–49; Ochoa, 206 P.3d at 150–51. There may be opportunities 

under the Iowa Constitution to bring an equal protection-type claim. See 

Varnum, 763 N.W.2d at 878 n.6 (discussing independent approach to 

equal protection under the Iowa Constitution); Racing Ass’n of Central 

Iowa, 675 N.W.2d at 4–7, 16 (applying rational basis test under the Iowa 

Constitution in a fashion different from the United States Supreme Court). 

But even if available, equal protection claims will not likely reach the broad 

scope of arbitrary police conduct associated with pretextual traffic stops. 

In any event, it is not unusual for constitutional claims to overlap. See, 

e.g., Loving, 388 U.S. at 12, 87 S. Ct. at 1823–24. One constitutional right 

does not preempt another. See Albert, 42 Ariz. St. L.J. at 683; Schwartz 

& Treanor, 112 Yale L.J. at 2410–11, 2410 n.407.

The rights-denying “could have” approach is no doubt more efficient. 

It would be more efficient, of course, to hold all Fourth Amendment rights, 

or all constitutional rights generally, unenforceable. But “[c]onvenience 

and efficiency are not the primary objectives—or the hallmarks—of 

democratic government.” Immigration & Naturalization Serv. v. Chadha, 

462 U.S. 919, 944, 103 S. Ct. 2764, 2781 (1983). “[T]he mere fact that 

law enforcement may be made more efficient can never by itself justify 

disregard of” constitutional search and seizure requirements. Mincey v. 
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Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414 (1978). Maximum 

simplicity is not a doctrine to override search and seizure protections. See 

United States v. Chadwick, 433 U.S. 1, 6–11, 97 S. Ct. 2476, 2481–83 

(1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 

579, 111 S. Ct. 1982, 1991 (1991). Indeed, “[t]he very purpose of 

constitutional provisions . . . is to prevent current practical considerations 

from eviscerating ‘inalienable’ constitutional rights.” Gaskins, 866 N.W.2d 

at 18 (Appel, J., concurring specially) (quoting Iowa Const. art I, § 1).

I think, however, simply returning to the test in Cooley, 229 N.W.2d 

at 759, may not be the best approach. Good evidence of subjective 

purpose, of course, is not always available. In addition, there may be 

situations where there is mixed subjective motivation or even conflicting 

subjective motivation. As a general proposition, a stop motivated in part 

by an unlawful purpose but that would have been lawfully made in any 

event does not give rise to a violation of article I, section 8.

The best approach under article I, section 8 to pretextual traffic 

stops is to adopt a version of the “would have” test. I would do so today. 

I would also adopt a burden-shifting approach as the best way to handle 

the problem of pretext in our district courts.

Under the “would have” approach, once the State establishes it had 

probable cause to engage in a stop, the burden shifts to the defendant to 

produce evidence that the stop was pretextual. Objective and subjective 

evidence would be admissible.25 Heath, 929 A.2d at 402–03; Ochoa, 206 

 25The line between objective and subjective evidence is not as clear as some have 

suggested. The showing required to justify Terry-type searches, for instance, is 

sometimes claimed to be objective, but the “what did you know and when did you know 

it” questions relevant under Terry obviously have subjective aspects. See Kit Kinports, 

Criminal Procedure in Perspective, 98 J. Crim. L. & Criminology 71, 85–86 (2007); see also

R. George Wright, Objective and Subjective Tests in the Law, 16 U.N.H. L. Rev. 121, 121–

25 (2017) (asserting that the distinction between objective and subjective tests is 
160

P.3d at 155–56. If the defendant makes a prima facie case that the stop 

was in fact pretextual, the burden of proof shifts to the State to show that 

the stop was not pretextual or that the stop would have occurred even 

without the pretextual motivation. Heath, 929 A.2d at 402–03; Ochoa, 206 

P.3d at 155–56. Because the State in a pretext case is seeking to offer 

evidence obtained as a result of a warrantless seizure or search, the 

burden of proof is on the State to show admissibility of the evidence.

The test I would adopt is somewhat similar to that embraced in Mt. 

Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 

S. Ct. 568 (1977). Mt. Healthy stands for the proposition that if a 

government employee is fired for two reasons, one constitutional and one 

not, the government may prevail by proving that it would have taken the 

same action even in the absence of any unconstitutional motive. Id. at 

285–87, 97 S. Ct. at 575–76.

Finally, I turn to the suggestion that our review of search and seizure 

pretexts should be limited by the nature of the pretext. It would, perhaps, 

be possible to limit search and seizure pretext review to cases involving 

fundamental rights such as race, religion, or free speech. But I find such 

an approach inadequate. It gives only partial life to the constitutional 

principle that the power to search and seize should not be exercised in an 

arbitrary manner. Pretextual investigative searches may be based not only 

on race but upon “appearances that some police officers do not like, such 

as young men with long hair, heavy jewelry, and flashy clothing.” Scopo, 

19 F.3d at 786 (Newman, C.J., concurring). The search and seizure 

provisions of article I, section 8 protect all citizens, even average Joes and 

Sallys, who do not fall within a suspect class and are not exercising 

 

incoherent and ultimately futile in practice). Under my approach, there is no need to 

separate evidence by artificial categorization.
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fundamental rights. The protections apply when persons are engaged in 

the mundane tasks of life, like trips to the grocery store, as well as trips to 

a political rally. They apply to all members of all races and ethnic groups. 

I decline to withdraw protection from pretextual search and seizure based 

on the subject matter involved.

D. Application of the “Would Have” Test in This Case. Applying 

these principles to the facts of this case, I have little trouble concluding 

that the stop was pretextual. The officer involved virtually said as much. 

According to Officer Brandt, he “wasn’t even going to stop” the car for the 

traffic violations until he ran the plate and learned of the owner’s gang 

affiliation. After he learned of the gang affiliation, he then wanted to “poke 

around and see what’s up.” He had a hunch based on the owner’s gang 

affiliation, but that would not be a constitutionally sufficient basis for a 

traffic stop. As a result, the evidence obtained as a result of the illegal 

stop, namely, evidence of Brown’s intoxication, should have been 

suppressed. Therefore, Brown’s conviction should be reversed and the 

case remanded to the district court.

VII. Conclusion.

For the above reasons, the district court should have granted the 

motion to suppress in this case. I regret that this view does not command 

the support of the current majority of this court. Accordingly, I 

respectfully dissent.

Wiggins, J., joins this dissent.