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 pursuant to a search warrant violates 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 constitutional 

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 detected 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 hospital, 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 

provide a blood or urine test.

Following Breuer’s refusals, Stevenson met with a magistrate in 

Newton and obtained a warrant authorizing 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 Grinnell 
3

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 

demanded 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, Stevenson 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 legal 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 results 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. Introduction. 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 supported 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 Iowa 
4

Constitution when the search warrant for the blood specimen is obtained 

but not physically present during the withdrawal.

B. Federal Caselaw. 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 specifically requires that an officer 

conducting a search have physical possession of a warrant at the time of 

the search. 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 exercising 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 such 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: to prevent general searches

and to assure “the individual whose property is searched or seized of the 
5

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 omitted). 

While recognizing the dual purposes of the particularity requirement, the 

Court noted that “neither the Fourth Amendment nor Rule 41 of the 

Federal Rules of Criminal Procedure requires the executing officer to 

serve the warrant on the owner before commencing 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 requires the executing officer to present the 

property owner with a copy of the warrant before conducting the search. 

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

According to the Grubbs Court, the particularity requirement of the 

Fourth Amendment does “not protect an interest in monitoring 

searches.” Id. (citation and internal quotation marks omitted).

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 

warrant 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 warrant 
6

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 PreArraignment Procedure § SS 220.3(4), at 130 (1975). There is also some 

suggestion in the caselaw 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 States v. 

Simons, 206 F.3d 392, 402–03 (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 Circuit 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 the outset of the search advanced the 

Fourth Amendment’s particularity requirement by assuring the property 

owner of the lawfulness 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 1004–05. 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. See 
7

United States 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 

“dicta in . . . Groh . . . casts serious doubt both on our interpretation of 

Rule 41 and our reasoning in Gantt”). 

C. Caselaw from Other States. Several 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 not 

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 commenced. Id. at 1384–85. 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 police 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. State, 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 exhibit 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 arrival 

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. The 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 Caselaw. Article I, section 8 and the Fourth Amendment 

contain nearly identical language.2 Although we have not considered the 

 1The 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. 

2Article 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.; see 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 article 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,” is 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 

official 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 right 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 magistrate.” Mehner, 480 N.W.2d at 875. 
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E. Analysis. Although Breuer recognizes we are free to interpret 

article 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 these circumstances, we ordinarily consider “the substantive 

standards under the Iowa Constitution the same as those developed by 

the United States Supreme Court under the Federal Constitution.” 

Simmons v. State Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010). 

However, even when the parties advance no substantive distinction, we 

may apply the principles differently. Id.

At the outset, we note that Iowa has no express constitutional, 

statutory, or procedural provision requiring a search warrant to be 

physically present before a search may begin. Like the Fourth 

Amendment, neither the Reasonableness Clause nor the Warrant Clause 

of article I, section 8 mentions whether the warrant must be physically 

present during the search. Likewise, Iowa Code section 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 creates in the officers no obligation to possess or 

present the warrant before the search begins. See id. § 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 for a duplicate warrant would be meaningless if the officers 

were not required to possess the warrant before the blood draw. This 
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argument overlooks other important objectives served by requiring the 

duplicate warrant. The duplicate-warrant requirement “preserve[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 invasion of privacy that was actually authorized.” People 

v. Crandall, 489 N.Y.S.2d 614, 618 (App. Div. 1985); see also CazaresOlivas, 515 F.3d at 729–30 (holding that the agents’ failure to possess 

duplicate warrant required by the federal telephonic-warrant procedure 

did not violate the Fourth Amendment). 

We agree with the prevailing view that neither the Fourth 

Amendment nor 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 

Amendment and article I, section 8

protect[] 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, 174–75 (Iowa 2009) (“[I]t is a fundamental principle of law 

that, when a court has authority to make an order and jurisdiction over 

the subjects of the order, an order by the court must be obeyed 
12

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 arrest 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 

property 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 how relevant or 

probative the evidence may be”). While 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 warrant. 

This is especially true in a case such as this where little was left to 

the discretion of the officers. 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 the officer 

executing the warrant had been advised by the officer procuring the 

warrant that the warrant 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, the 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, licensed 
13

physician assistant as defined in section 148C.1, medical technologist, 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 conditions 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 arbitrary 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 

physical presence of the warrant. The knock-and-announce rule became 

part of the Fourth Amendment 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 thought that the method 

of an officer’s entry into a dwelling was among the factors to 

be considered in assessing the reasonableness of a search or 

seizure. Contrary to the decision below, we hold that in 

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-announce rule advances three purposes: “To avoid property 
14

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 Wilson, 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 act under a proper authority.”).

Here, Groves provided sufficient notice of his authority 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, see 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 section 321J.10 could offend the 

Reasonableness Clause of article I, section 8 or the Fourth Amendment. 
15

In this case, however, 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 veracity of Groves’ assertion that a warrant had been 

obtained. 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 

left in Breuer’s hospital room. Under these facts, the seizure of Breuer’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.