### IN THE SUPREME COURT OF IOWA
No. 09

– 1170
Filed January 6 , 2012

STATE OF IOWA, Appellee ,

vs.
LEE ALLEN BREUER , Appellant

.

On review from the Iowa Court of Appeals

.

Appeal from the Iowa District Court for Jasper County, Darrell J. Goodhue, Judge.

On further review, defendant claims the court of appeals erred in affirming the district court’s denial of defendant’s motion to suppress.
AFFIRMED.

Richard E. H. Phelps II of Phelps Law Office, Mingo, for appellant

.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Steven Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee

.2

APPEL , Justice. In this case, we consider whether the withdrawal of a blood specimen pu rsuant to a search warrant v iolates the search and seizure provisions of the Iowa or United States Constitutions when the warrant is not physically present during the withdrawal . For the reasons expressed below, we conclude this case presents no c onstitut ional violation.
I. Factual and Procedural Background
. The material facts are undisputed. Lee Allen Breuer was the apparent driver in a one

- car accident on Highway 6 in Jasper County. When Lieutenant Dennis Stevenson of the Jasper County Sheriff’s Office arrived at the scene, he saw an overturned vehicle in a ditch along the side of the highway. Breuer was attempting to assist a passenger in the overturned vehicle. At the scene, Stevenson rendered assistance. He de tected an odor of alcohol about Breuer and observed that Breuer was unsteady on his feet. Stevenson also observed a number of beer cans lying in and around the car. Breuer and the passenger were transported to Grinnell Regional Medical Center. At the h ospital, Deputy Sheriff Aaron Groves asked Breuer to provide a breath test, but Breuer refused to provide a sample. Groves invoked implied consent procedures, including reading Breuer the implied consent advisory required by Iowa law. Breuer refused to
p rov ide a blood or urine test. Following Breuer’s refusal s , Stevenson met with a magistrate in Newton and obtained a warrant autho rizing withdrawal of a blood specimen from Breuer

. See Iowa Code § 321J.10 (2009). After he obtained the warrant, Stevenson called Groves at the hospital in Grinnell3
and advised Groves he had obtained the warrant and was en route to the hospital. Before Stevenson arrived at the hospital with the warrant, Groves informed Breuer that a search warrant had been obtained and demand ed that Breuer submit to a blood draw. Breuer initially refused, but after Groves advised him that the blood would be withdrawn by force if necessary, Breuer acquiesced and a specimen was withdrawn

. Ten to fifteen minutes after the blood draw, Stevenso n arrived at the hospital with the search warrant. Breuer was then advised that the warrant had arrived and a copy of it was placed with his belongings at the hospital. The alcohol content from the specimen provided by Breuer was 0.171, well over the leg al limit for intoxication. The passenger in Breuer’s vehicle died as a result of injuries sustained in the accident. The State charged Breuer with homicide by vehicle in violation of Iowa Code section 707.6A(1). Breuer filed a motion to suppress the re sults of the blood draw, which the district court denied. The court of appeals affirmed. Breuer filed a motion for further review, which we granted.
II. Standard of Review. The standard of review of the constitutional issues raised in this case is de novo. State v. Taeger , 781 N.W.2d 560, 564 (Iowa 2010).
III. Discussion.
A. I ntroduction. The parties agree that the blood draw could only legally be accomplished with a warrant. The parties also do not dispute that the search warrant was supp orted by probable cause and

was otherwise valid. The sole issue presented in this appeal , therefore, is whether a blood draw pursuant to Iowa Code section 321J.10 is valid under the Fourth Amendment and article I, section 8 of the Iowa4
Constitution when t he search warrant for the blood specimen is obtained but not physically present during the withdrawal.
B. Federal Casel aw. The Fourth Amendment of the United States Constitution provides : The right of the people to be secure in their persons, houses, papers, and effects , against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched , and the persons or things to be seized.
U.S. Const. amend. IV. As we have noted, the Fourth Amendment contains both a Warrant Clause and a Reasonableness Clause. State v. Ochoa , 792 N.W.2d 260, 268 (Iowa 2010). Neither the Warrant Clause nor the Reasonableness Clause specifica lly requires that an officer conducting a search have physical possession of a warrant at the time of the s earch. U.S. Const. amend. IV ; see also United States v. Banks , 540 U.S. 31, 35, 124 S. Ct. 521, 524

– 25, 157 L. Ed. 2d 343, 352 (2003) ( observing “ [t ] he Fourth Amendment says nothing specific about formalities in exerc ising a warrant’s authorization ”). Further, no party has identified any historical materials to assist in our analysis of the narrow question before us. The United States Supreme Court has not directly addressed whether the Fourth Amendment requires a search warrant to be physically present at the place to be searched when the warrant is executed. In two cases, however, the Court has at least implied the Fourth Amendment imposes no s uch requirement.
In Groh v. Ramirez , 540 U.S. 551 , 124 S. Ct. 1284 , 157 L. Ed. 2d 1068 (2004), the Court explained that the particularity requirement of the Fourth Amendment serves two purposes: t o prevent general searches and to assure “the individual wh ose property is searched or seized of the5 lawful authority of the executing officer, his need to search, and the limits of his power to search.” Groh , 540 U.S. at 561, 124 S. Ct. at 1292, 157 L. Ed. 2d at 1081 ( citation and internal quotation marks omitte d)

. While recognizing the dual purposes of the particularity requirement, the Court noted that “neither the Fourth Amendment nor Rule 41 of the Federal Rule s of Criminal Procedure requires the executing officer to serve the warrant on the owner before com mencing the search. ” Id. at 562 n.5, 124 S. Ct. at 1292 n.5, 157 L. Ed. 2d at 1081 n.5. The Court essentially repeated this observation in United States v. Grubbs , 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006). In Grubbs , the Court noted, in the context of a challenge to an anticipatory search warrant, that neither the Fourth Amendment nor the Federal Rules of Criminal Procedure require s the executing officer to present the property owner with a copy of the warran t before conducting the search

. Grubbs , 547 U.S. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205

. A ccording to the Grubbs Court, the particularity requirement of the Fourth Amendment does “ not protect an interest in monit oring searches. ” Id. ( citation and internal quotation marks om itted)

. The vast majority of federal lower courts have found, in a wide variety of settings, that physical presence of a warrant is not required to support a search under the Fourth Amendment. See, e.g. , United States
v. Cazares

- Olivas , 515 F.3d 726, 730 (7th Cir. 2008) (“[W]e know from Grubbs and earlier decisions

. . . that, whatever the most prudent course may be, the fourth amendment does not require officers to have a

wa r rant in hand when searching.”); United States v. Hepperle , 810 F.2d 836, 839 (8th Cir. 1987) ; United States v. Bonner , 808 F.2d 864, 869 (1st Cir. 1986); United States v. Marx , 635 F.2d 436, 441 (5th Cir. 1981). Some cases suggest the better practice is to serve the search w arrant6 prior to the search when it is practicable and in keeping with the ends of justice to do so. See, e.g. , Hepperle , 810 F.2d at 839 (“While it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional.”); see also Model Code of Pre

Arraignment Procedure § SS 220.3(4), at 13 0 (1975). There is a lso some suggestion in the case law that the Federal Rules of Criminal Procedure require officers to leave a copy of the warrant when the officers conclude the search or when they vacate the premises. See United St ates v. Simons , 206 F.3d 392, 40 2

– 0 3 (4th Cir. 2000) (holding search team violated Rule 41 by failing to leave a copy of the warrant or receipt of items taken following the search, but concluding the violation did not have a constitutional dimension) ; see also Fed. R. Crim. P. 41(f)

. There are a few outliers in the federal cases. One is United States
v. Gantt , 194 F.3d 987 (9th Cir. 1999) , overruled on other grounds by United States v. W.R. Grace , 526 F.3d 499, 506 (9th Cir. 2008) . In Gantt , the Ninth Ci rcuit held that the Federal Rules of Criminal Procedure required federal agents to possess a search warrant before commencing a search. Gantt , 194 F.3d at 1001 . Although the court rested its decision on the Federal Rules of Criminal Procedure, it noted that the physical
presence of the search warrant at t he outset of the search advanced the Fourth Amendment’s particularity requirement by assuring the property

o wner of the lawful ness of the search and by giving “ notice to the person subject to the search what the officers are entitled to seize. ” Id. at 1001

– 02 ( citation and internal quotation marks omitted) . But even Gantt recognizes that a search warrant need not be physically present where exigent circumstances exist

. Id. at 100 4

– 0 5 . Precedent from the Ninth Circuit also suggests the court may have reached a different conclusion had its analysis been restricted to the Fourth Amendment inquiry. See7
United St ates v. Dubrofsky , 581 F.2d 208 , 213 (9th Cir. 1978) (reasoning the Fourth Amendment was not offended even though the search
warrant was absent during the search of the defendant’s residence ). Additionally, Grubbs and Groh cast doubt on Gantt ’s continuing validity. See United States v. Mann , 389 F.3d 869, 875 n.1 (9th Cir. 2004) ( stating “d icta in . . . Groh . . . casts serious doubt both on our interpretation of Rule 41 and our reasoning in Gantt ”).
C. Casel aw from Other States

. Severa l state courts have addressed the issue presented in this case

. State v. Cavanaugh , 635 A.2d 1382 (N.H. 1993), is the leading case holding that physical presence of a search warrant is not required. In Cavanaugh , officers began to search the defendant’s home after being informed by radio that a search warrant had been obtained. Cavanaugh , 635 A.2d at 1383

. The warrant arrived at the home fifteen minutes after the search began

. Id. The defendant argued the search was invalid because the officers did no t have physical possession of the warrant when they initiated the search. Id. The New Hampshire Supreme Court characterized the federal law on the issue as “settled” and, interpreting the New Hampshire Constitution, held that a warrant need not be physically present when a search is commence d. Id. at 138 4

– 8 5. The court rejected the notion that the delivery of the warrant to the party being searched would help ensure police act within the scope of the warrant. Id. The court reasoned that the poli ce have the “absolute responsibility” to stay within the scope of the warrant regardless of the knowledge of the property owner. Id. at 1385. An approach similar to that of the New Hampshire Supreme Court has been followed in a number of states. See, e .g. , People v. Rodrigues

-8
Fernandez , 286 Cal. Rptr. 700, 707 ( Ct. App. 1991); State v. Gomez , 623 P.2d 110, 117

– 18 (Idaho 1980); State v. Mims , 524 So. 2d 526 , 535

– 36 (La. Ct. App. 1988); People v. Mahoney , 448 N.E.2d 1321, 1322

– 23 (N.Y. 1983); Green v. Sta te , 880 S.W.2d 198, 201 (Tex. Ct. App. 1994); see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.12, at 811 (4th ed. 2004 ) (stating the prevailing view in state and federal cases is that officers need only ex hibit or deliver warrant before post

- search departure)

. A different view, however, was advanced in Commonwealth v. Guaba , 632 N.E.2d 1217 (Mass. 1994). In Guaba , the Supreme Judicial Court of Massachusetts held that searches conducted before the arriva l of the search warrant are per se unreasonable. Guaba , 632 N.E .2d at 1222

– 23 . The court concluded that the purposes of the particularity requirement could only be achieved if the officers possessed the warrant in hand at the time of the search. Id. Th e failure of officers to physically possess a search warrant prior to the search, the Guaba court reasoned, fails “to put the occupant whose premises are to be searched on notice of the police’s authority to search and the reasons for the search.” 1 Id. at 1223.
D. Iowa Case l aw. Article I, section 8 and the Fourth Amendment contain nearly identical language. 2 Although we have not considered the

1 The Supreme Judicial Court of Massachusetts has since limited the scope of this “notice” rationale. In Commonwealth v. Valerio , 870 N.E.2d 46, 55

– 56 (Mass. 2007), the court held that, although officers must physically possess the warrant before starting the search, in light of Grubbs , actual written notice of the officers’ authority to search need not be given unless the property owner requests to examine the warrant.

2 Article I, section 8 provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.9 precise issue before us, we have decided several cases that help guide our analysis. In Bailey v. Lancaster , 470 N.W.2d 351, 358 (Iowa 1991), we stated that the Reasonableness Clause is a safeguard against unreasonable execution of search warrants. Thus, even if police officers have a search warrant, the search must be executed in a reasonable

manner. Id. ; se e also State v. Kubit , 627 N.W.2d 914, 921 (Iowa 2001) (stating the knock

- and

- announce rule is governed by the Reasonableness Clause) , abrogated on other grounds by State v. Turner , 630 N.W.2d 601, 606 n.2 (Iowa 2001)

. Further , our interpretation of ar ticle I, section 8 has “generally endorsed the warrant

- preference requirement.” Ochoa , 792 N.W.2d at 285 . “All other things being equal,” we have explained, the “ historical context of the Fourth Amendment suggests a preference for particularity as a tool to cabin police power.” Id. at 273. The requirement that a warrant “particularly describ[e] the place to be searched , and the persons and things to be seized,” i s a reflection of this preference for particularity.
See Iowa Const. art. I, § 8; Ochoa , 792 N.W.2d at 273

. The particularity requirement , which is related to the probable cause requirement, “ensures that nothing is ‘left to the discretion of the officia l executing the warrant. ’ ” State v. Randle , 555 N.W .2d 666, 669 (Iowa 1996) (quoting State v. Thomas , 540 N.W.2d 658, 662 (Iowa 1995 ));

see also State v. Mehner , 480 N.W.2d 872, 875 (Iowa 1992). In doing so, the particularity requirement “guards the rig ht of privacy from arbitrary police intrusion.” State v. Prior , 617 N.W.2d 260, 263 (Iowa 2000). Also, particularity minimizes “the risk that the officers executing search warrants will by mistake search a place other than the place intended by the magis trate.” Mehner , 480 N.W.2d at 875.10

E. Analysis. Although Breuer recognizes we are free to interpret articl e I, section 8 differently from the Fourth Amendment , Ochoa , 792 N.W.2d at 267, he does not advance a reason for doing so in this case. Under t hese circumstances, we ordinarily consider “t he substantive standards under the Iowa Constitution the same as those developed by the United States Supreme Court under the Federal Constit ution. ” Simmons v. State Pub. Defender , 791 N.W.2d 69, 7 6 n.3 (Iowa 2010). However, e ven when the parties advance no substantive distinction, we
may apply the principles different ly

. Id. At the outset, we note that Iowa has no express constitutional, statutory , or procedural provision requiring a search warrant to be
p hysically pre sent before a search may begin. Like the Fourth Amendment, neither the Reasonableness Clause n or the Warrant Clause of article I, section 8 mention s whether the warrant must be physically present during the search. Likewise, Iowa Code sectio n 808.5, which governs the manner in which search warrants are to be executed, is silent on the issue

. See Iowa Code § 808.5. Also, Iowa Code section 808.8 requires officers to provide a receipt or inventory of items taken after the search, but it create s in the officers no obligation to possess or present the warrant before the search begins

. See i d. § 808.8

. Furthermore, the Iowa Rules of Criminal Procedure contain no rule explicitly requiring officers to be in physical possession of the search warrant before they may begin searching. Breuer, in part, relies on Iowa Code section 321J.10(3)( b ), which requires a duplicate warrant to be made if the warrant to obtain a blood specimen is obtained by telephone. Breuer argues that such a requirement f or a duplicate warrant would be meaningless if the officers were not required to possess the warrant before the blood draw. T his11 argument overlooks other important objectives served by requiring the duplicate warrant. The duplicate

- warrant requirement “p reserve[s] the integrity of the record for review in any ensuing criminal litigation,” “requires the issuing Judge to focus specifically and deliberately on the warrant’s particular description,” and “insures that the search is only as extensive as the inv asion of privacy that was actually authorized.” People v. Crandall , 489 N.Y .S.2d 614, 618 (App. Div. 1985); see also Cazares

Olivas , 515 F.3d at 729

– 30 (holding that the agents’ failure to possess duplicate warrant required by the federal telephonic

- warra nt procedure did not violate the Fourth Amendment).
W e agree with the prevailing view that neither the Fourth Amendment n or article I, section 8 requires a search warrant to be physically present at the place to be searched before the search may begin. We are unpersuaded by the reasoning in Guaba insofar as it presupposes the Fourth Amendment or article I, section 8 creates in property owners a constitutionally protected interest in monitoring searches executed pursuant to a valid search warrant. See Grubbs , 547
U.S. at 99 , 126 S. Ct. at 1501 , 164 L. Ed. 2d at 205

. The Fourth
Ame ndment and article I, section 8
p rotect[] property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by imposing, ex ante , the “deliberate, impartial judgment of a judicial officer . . . between the citizen and the police,” and by providing, ex post , a right to suppress evidence improperly obtained and a cause of action for damages.
Id. (quoting Wong Sun v. United States , 371 U.S. 471, 481

– 82, 83 S. Ct. 407, 414, 9 L. Ed. 2d 441, 451 (1963) ) ; cf. In re Detention of Shaffer , 769 N.W.2d 169, 17 4

– 7 5 (Iowa 2009) (“[I]t is a fundamental principle of law that, when a court has authority to make an order and jurisdiction over th e subjects of the order, an order by the court must be obeyed12 regardless of the substantive legality of the order [

. ] ”); Smith v. State , 542 N.W.2d 567, 569 (Iowa 1996) (stating that “one may be guilty of the crime of resisting arrest even if the initial ar rest is illegal”). It is the responsibility of the officers executing the search warrant to stay within the scope of the warrant. See Cavanaugh , 635 A.2d at 1385. Officers who fail to do so risk suppression of valuable evidence and create in the propert y owner a cause of action for damages. See 42 U.S.C. A. § 1983 (West, Westlaw through P.L. 112

- 54 (excluding P.L. 112

- 40)) ; State v. Schrier , 283 N.W.2d 338 , 342 (Iowa 1979) (stating illegally seized evidence is “inadmissible in a prosecution, no matter ho w relevant or probative the evidence may be”). W hile it may be ill

- advised to proceed without the warrant in hand, neither the Fourth Amendment nor article I, section 8 is violated when officers commence a search without physical possession of a search wa rrant. This is especially true in a case such as this where little was left to the discretion of the officer s
. The warrant was supported by probable cause and signed by a neutral, detached magistrate. See State v.
Fremont , 749 N.W.2d 234, 237 (Iowa 2008). The search warrant particularly described who was to be searched (Breuer) and what was to be seized (a blood specimen )

. The search began only after t he officer executing the warrant had been advised by the officer procuring the warrant that the wa rrant had been signed by a magistrate and was “ in hand. ” Following the search, the officers provided Breuer a copy of the warrant by placing it with Breuer’s possessions. Additionally, t he officers ’ discretion in executing the warrant was circumscribed by statute. Iowa Code section 321J.11 contains the procedure by which a blood specimen may be obtained

. It states that a blood specimen may be withdrawn only by a “licensed physician, licensed13 physician assistant as defined in section 148C.1, medical techn ologist, or registered nurse.” Iowa Code § 321J.11. The person withdrawing the blood specimen must be acting at the request of a peace officer. Id. Section 321J.11 further provides that “[o]nly new equipment kept under strictly sanitary and sterile con ditions shall be used for drawing blood.” Id. Under these circumstances, we are satisfied that the executing officer’s discretion was sufficiently cabined such that Breuer was protected from a rbitrary police intrusion. See Mehner , 480 N.W.2d at 875; see also Randle , 555 N.W.2d at 669. Breuer further argues that the knock

- and

- announce principle counsels us to consider, as part of the reasonableness analysis, the phy sical presence of the warrant. The knock

- and

- announce rule became part of the Fourth Amen dment reasonableness inquiry in Wilson v. Arkansas , 514 U.S. 927, 930, 115 S. Ct. 1914, 1916, 131 L. Ed. 2d 976,
980 (1995). In Wilson , the Court reasoned that the knock

- and

- announce rule was firmly rooted in our common law tradition and concluded: Given the longstanding common

- law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment though t that the method of an officer’ s entry into a dwelling was among the factors to be considered in assessing the rea sonableness of a search or seizure. Contrary to the decision below, we hold that i n some circumstances an officer’ s unannounced entry into a home might be unreasonable under the Fourth Amendment.
Wilson , 514 U.S. at 934, 115 S. Ct. at 1918, 131 L. Ed. 2d at 982

. The knock

- and

- announce rule is codified at Iowa Code section 808.6. We have also recognized the common law origins of the statutory knock

- and

- announce requirement and that it embodies the reasonableness requirement of the Fourth Amendment. State v. Brown , 253 N.W.2d 601, 602 (Iowa 1977). Moreover, we have stated that the knock

- and

- announc e rule advances three purposes: “To avoid property14 damage resulting from forcible entry, to prevent violence and personal injury, and to protect the privacy of occupants.” State v. Farber , 314 N.W.2d 365, 369

– 70 (Iowa 1982)

. The common law origin of the knock

- and

- announce rule and its acceptance into early American law were the salient, if not the dispositive, factors of the Court’s decision in Wilson

. See Wil son , 514 U.S. at 934, 115 S. Ct. at 1918, 131 L. Ed. 2d at 982 . Yet Breuer fails to cite any authority suggesting that common law courts required officers to be in physical possession of a search warrant before a lawful search could begin. In fact, there is some authority for the proposition that common law courts were more concerned that officers gave notice prior to entry and less concerned with what form of notice was provided. See , e.g. , Case of Richard Curtis , (1757) 168 Eng. Rep. 67, 68 (“[N]o precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to a ct under a proper authority.”). Here, Groves provided sufficient notice of his autho rity and intent to withdraw a specimen of Breuer’s blood. The physical absence of a search warrant may theoretically increase the potential for confrontation and violence, s ee Hepperle , 810 F.2d at 839, but the mere potential for violence in this context , without more, is insufficient to invalidate the search. Unlike the knock

- and

- announce context, the relationship between the absence of a search warrant and unnecessary property damage and violence is too tenuous to implicate either article I, section 8 or the Fourth Amendment. It may be that the use of force exhibited by officers in executing a search warrant pursuant to Iowa Code se ction 321J.10 could offend the Reasonableness C lause o f article I, section 8 or the Fourth Amendment.15
In this case, howeve r, Breuer’s search

- and

- seizure rights were not offended by the methods Groves employed to execute the search warrant. At no point did Breuer request to see the warrant , and he did not question the ve racity of Groves’ assertion tha t a warrant had been obta ined. Once Stevenson obtained the warrant, Groves advised Breuer that a warrant had been secured. Breuer then stated that he thought he could refuse. Groves explained that, because a warrant authorized a blood draw, Breuer’s consent was no longer required and force would be used if necessary. See State v. Owens , 418 N.W.2d 340, 344 (Iowa 1988) (permitting use of physical force to withdraw blood from a suspected drunk driver )

. Once the warrant arrived a few minutes later, a copy was l eft in Breuer ’s hospital room. Under these facts, the seizure of Breu er’s blood for chemical testing was reasonable

. IV . Conclusion
. For these reasons, we conclude that neither the Fourth Amendment nor article I , section 8 required the search warrant to be physically present before the search could begin . We, therefore, affirm the district court and court of appeals.
AFFIRMED. All justices concur except Mansfield, J., who takes no part.