IN THE SUPREME COURT OF IOWA 

No. 19–0180 

Submitted September 17, 2020—Filed June 18, 2021 

STATE OF IOWA, 

Appellee, 

vs. 

NICHOLAS DEAN WRIGHT, 

Appellant. 

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Cerro Gordo County, 

Adam D. Sauer, District Associate Judge. 

A defendant appeals the denial of his motion to suppress evidence 

based on the warrantless seizure of his trash. AFFIRMED ON 

CONDITION AND REMANDED WITH DIRECTIONS. 

McDonald, J., delivered the opinion of the court, in which Oxley and 

McDermott, JJ., joined, and in which Appel, J., joined as to divisions I, 

IV(B)–(E), and V. Appel, J., filed a special concurrence. Christensen, C.J., 

filed a dissenting opinion, in which Waterman and Mansfield, JJ., joined. 

Waterman, J., filed a dissenting opinion, in which Christensen, C.J., and 

Mansfield, J., joined. Mansfield, J., filed a dissenting opinion, in which 

Christensen, C.J., and Waterman, J., joined. 
2 

Colin C. Murphy (argued) of Gourley Rehkemper Lindholm, P.L.C., 

West Des Moines, for appellant. 

Thomas J. Miller, Attorney General, Linda J. Hines (argued), 

Assistant Attorney General, Carlyle D. Dalen, County Attorney, and 

Steven D. Tynan, Assistant County Attorney, for appellee. 
3 

McDONALD, Justice. 

“Decency, security, and liberty alike demand that government 

officials shall be subjected to the same rules of conduct that are commands 

to the citizen.” Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 

564, 575 (1928) (Brandeis, J., dissenting), overruled in part by Katz v. 

United States, 389 U.S. 347, 88 S. Ct. 507 (1967), and Berger v. New York, 

388 U.S. 41, 87 S. Ct. 1873 (1967). We are tasked in this case of 

determining whether this bedrock constitutional principle prohibits a 

peace officer engaged in general criminal investigation without a warrant 

from taking a citizen’s opaque trash bags left outside for collection, 

opening the trash bags, and rummaging through the papers and effects 

contained therein. 

I. 

Nicholas Wright lives in Clear Lake. Like most municipalities, Clear 

Lake regulates the “storage, collection and disposal of solid waste” to 

protect the “health, safety and welfare” of its residents. Clear Lake, Iowa, 

Code of Ordinances § 105.01 (2003). The city restricts the manner in 

which residents can dispose of waste. See id. at §§ 105.05 (restricting 

open burning), .06 (requiring separation of yard waste), .07 (prohibiting 

littering), .08 (prohibiting open dumping). The city requires “the owner or 

occupant of the premises served” to set out the solid waste containers for 

collection once per week “at the curb or alley line.” Id. at §§ 105.10(3), 

106.04. The city limits who may access and collect solid waste to licensed 

and contracted collectors. See id. § 105.02(1) (defining collector); id.

§§ 106.01 (providing for collection service), .06 (granting collectors right of 

entry), .07 (prohibiting solid waste collection without a city contract), .11 

(setting forth licensing requirements). The city makes it “unlawful for any 

person to . . . [t]ake or collect any solid waste which has been placed out 
4 

for collection on any premises, unless such person is an authorized solid 

waste collector.” Id. § 105.11(4). Violation of this ordinance is punishable 

by a fine. See id. § 1.15. 

Despite the ordinance making it unlawful for any person (other than 

an authorized collector) to take solid waste placed out for collection, Officer 

Brandon Heinz, on three occasions, during the dark of night, without 

probable cause or a warrant, went into the alley behind Wright’s residence 

to take Wright’s garbage bags and search through them to “obtain 

information about what Mr. Wright may have been doing inside [his] 

house.” More specifically, Officer Heinz was “looking for anything related 

to drug activity.” Heinz focused his criminal investigation on Wright based 

on information from Deputy Tami Cavett. She informed Heinz that a male 

nicknamed “Beef” was selling drugs and lived near a local bar. Through 

the course of his investigation, Heinz discovered Wright went by the 

nickname “Beef” and lived three blocks from the bar. 

The first time Heinz went through Wright’s papers and effects 

occurred on September 11, 2017. Around 11:30 p.m. that night, Heinz 

observed two garbage cans without lids at the edge of the alley behind 

Wright’s residence. Heinz believed the garbage cans had been placed there 

for waste collection the next morning. He testified he was able to access 

the garbage bags without leaving the alley. The bags were opaque, and 

Heinz “couldn’t see through them or anything.” He was not “able to 

observe anything that led [him] to believe there was evidence of criminal 

activity in the bag until [he] opened the bag.” Heinz “retrieved the garbage 

bags and brought them to the police department where [he] went through 

them.” 

Heinz testified he “[s]earched through the contents for narcotics 

related contraband.” He found empty poppy seed packages and fabric 
5 

squares with circular brown stains around one inch in diameter and seeds 

stuck to the fabric. He submitted the seeds and fabric squares to the 

Division of Criminal Investigation (DCI) for testing. Heinz received the DCI 

lab report on November 2, which confirmed the seeds were poppy seeds. 

One fabric square tested positive for morphine. Two fabric squares tested 

positive for a combination of morphine and cocaine. 

After receiving test results from DCI, Heinz again took garbage bags 

from the alley behind Wright’s home on the nights of November 6 and 

November 20 and returned to the police station to search through the 

bags. On November 6, Heinz found two pieces of mail addressed to Wright, 

one from a bank and one from a telecommunications company. Heinz 

found more fabric squares with brown stains and poppy seeds stuck to 

them. On November 20, he found similar items as well as empty poppy 

seed packages and a 10-pound poppy seed package that had 9.75 pounds 

remaining in the package. 

Heinz then applied for and was granted a search warrant. Probable 

cause for the search warrant was predicated on the evidence obtained from 

the warrantless seizure and search of Wright’s trash bags. The police 

executed the warrant at Wright’s residence on November 21. They 

discovered a baggie containing two grams of marijuana and several 

capsules of Vyvanse, a prescription drug for which Wright had no 

prescription. 

The State charged Wright with three counts of unlawful possession 

of drugs: (1) possession of a prescription drug without a valid prescription, 

in violation of Iowa Code section 155A.21 (2017); (2) possession of 

marijuana, in violation of Iowa Code section 124.401(5); and (3) possession 

of Vyvanse, in violation of Iowa Code section 124.401(5). 
6 

Wright timely filed a motion to suppress evidence. Wright argued 

Heinz’s warrantless removal of the trash bags from Wright’s residence and 

search of the papers and effects contained therein violated Wright’s federal 

and state constitutional rights to be free from unreasonable seizures and 

searches. Wright made two arguments in support of his motion. First, he 

argued Heinz physically trespassed on his property. Second, he argued he 

had a reasonable expectation of privacy in the contents contained in his 

trash bags. Wright argued the search warrant ultimately issued was 

without probable cause if the evidence obtained from the warrantless 

seizures and searches of his trash bags were suppressed. The district 

court denied the motion. 

Pursuant to a plea agreement, the State subsequently dismissed 

count one of the trial information. Following a trial on the minutes of 

testimony, the district court found Wright guilty of counts two and three 

and sentenced Wright to serve two days in jail. 

Wright appealed, and we transferred the case to the court of appeals. 

The court of appeals affirmed the district court’s denial of Wright’s motion 

to suppress evidence. The court of appeals reasoned Heinz did not 

unlawfully trespass on Wright’s property because there was no physical 

intrusion into a constitutionally protected area. The court of appeals 

reasoned Wright had no reasonable expectation of privacy in the contents 

of his garbage under federal or state law. 

We granted Wright’s application for further review. “On further 

review, we have the discretion to review any issue raised on appeal.” 

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255 (Iowa 2012) (quoting State 

v. Marin, 788 N.W.2d 833, 836 (Iowa 2010), overruled on other grounds by 

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016)). Where, “as here, 

a defendant raises both federal and state constitutional claims, the court 
7 

has discretion to consider either claim first or consider the claims 

simultaneously.” State v. Pals, 805 N.W.2d 767, 772 (Iowa 2011). Because 

Wright’s state constitutional claim is dispositive of the case, we exercise 

our discretion to address only that claim. The court of appeals decision is 

final as to Wright’s federal claim. 

II. 

The Iowa Constitution provides, “This Constitution shall be the 

supreme law of the state, and any law inconsistent therewith, shall be 

void.” Iowa Const. art. XII, § 1. The Iowa Constitution provides any law—

without regard to its source—inconsistent therewith “shall be void.” Id. 

None of the departments of our state government are authorized—by bill, 

order, rule, judicial decision, or otherwise—to make law or legalize conduct 

infringing upon the minimum rights guaranteed in the Iowa Constitution. 

We “must provide at a minimum the degree of protection [the constitution] 

afforded when it was adopted.” United States v. Jones, 565 U.S. 400, 411, 

132 S. Ct. 945, 953 (2012) (emphasis omitted). 

In determining the minimum degree of protection the constitution 

afforded when adopted, we generally look to the text of the constitution as 

illuminated by the lamp of precedent, history, custom, and practice. See 

Planned Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206, 247 

(Iowa 2018) (Mansfield, J., dissenting) (beginning constitutional analysis 

with the text and original understanding); State v. Crooks, 911 N.W.2d 

153, 167 (Iowa 2018) (“In exercising our independent judgment, we are 

‘guided by “the standards elaborated by controlling precedents and by 

[our] own understanding and interpretation of the [Iowa Constitution’s] 

text, history, meaning, and purpose.” ’ ” (alterations in original) (quoting 

State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014))); State v. Green, 896 

N.W.2d 770, 778 (Iowa 2017) (“[W]e interpret our constitution consistent 
8 

with the text given to us by our founders through the lens of the facts and 

circumstances of today.”); State v. Senn, 882 N.W.2d 1, 8 (Iowa 2016) 

(“First and foremost, we give the words used by the framers their natural 

and commonly-understood meaning. However, we may also examine the 

constitutional history and consider the object to be attained or the evil to 

be remedied as disclosed by the circumstances at the time of adoption.” 

(quoting Star Equip., Ltd. v. State, 843 N.W.2d 446, 457–58 (Iowa 2014))). 

This court is the final arbiter of the meaning of the Iowa 

Constitution. While we give respectful consideration to the decisions of 

the United States Supreme Court in its interpretation of parallel provisions 

of the Federal Constitution, we have a duty to independently interpret the 

Iowa Constitution. See State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019). 

Our duty to independently interpret the Iowa Constitution holds even 

“though the two provisions may contain nearly identical language and 

have the same general scope, import, and purpose.” State v. Brooks, 888 

N.W.2d 406, 410–11 (Iowa 2016) (quoting State v. Jackson, 878 N.W.2d 

422, 442 (Iowa 2016)). On questions of state constitutional law, the 

Supreme Court “is, in law and in fact, inferior in authority to the courts of 

the States.” McClure v. Owen, 26 Iowa 243, 249 (1868); see also Minnesota 

v. 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.”). 

Our duty of independent interpretation is truly independent. 

Federal constitutional law is not a framework or “floor” that dictates the 

required doctrine or minimum content of the state constitution. See State 

v. Ingram, 914 N.W.2d 794, 799 (Iowa 2018) (“Although the Iowa and 

United States Constitutions have similarly worded search and seizure 

provisions, that does not mean the two regimes and the cases under them 
9 

may be conflated.”).1 “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)).2 

In claims arising under the Iowa Constitution, the right question is 

thus not whether the Iowa Constitution should be interpreted more 

stringently or less stringently than its federal counterpart. “This court is 

free to interpret our constitution to provide less or more protection than 

the Federal Constitution.” Brown, 930 N.W.2d at 857 (McDonald, J., 

concurring specially). Instead, 

The right question is what the [Iowa Constitution] means and 

how it applies to the case at hand. The answer may turn out 

 

1Although the Federal Constitution does not set a legal floor in terms of dictating 

content of the Iowa Constitution, it does provide an effective floor in the practical sense 

that government officials are required to comply with the more stringent standard. 

2See also 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 mistrial.”); State 

v. Jackson, 503 S.E.2d 101, 103 (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) (Kauger, J., specially concurring) (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, 437 (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). 
10 

the same as it would under federal law. The [Iowa 

Constitution] may prove to be more protective than federal 

law. The [Iowa Constitution] also may be less protective. In 

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

federal law, assuming it has been raised. 

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

L. Rev. 165, 179 (1984) [hereinafter Linde]; see also Massachusetts v. 

Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091 (1984) (Stevens, J., 

concurring in the judgment) (per curiam) (quoting Linde, 18 Ga. L. Rev. at 

179). 

III. 

Article I, section 8 of the Iowa Constitution 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.3

A. 

At the time of America’s founding, the prohibition against 

“unreasonable” seizures and searches had a particular meaning. John 

Adams first introduced the term “unreasonable” into search and seizure 

law in his draft of the 1780 Massachusetts Constitution. See 

Commonwealth v. Haynes, 116 A.3d 640, 650 (Pa. Super. Ct. 2015). 

“Adams’s authorship reveals that ‘unreasonable’ was derived from Sir 

Edward Coke’s earlier use of ‘against reason’ as a synonym for inherent 

illegality or unconstitutionality.” Thomas Y. Davies, Recovering the 

Original Fourth Amendment, 98 Mich. L. Rev. 547, 554–55 (1999). 

 

3The Fourth Amendment to the United States Constitution is materially 

indistinguishable from article I, section 8 of the Iowa Constitution. Because our search 

and seizure jurisprudence is intertwined with federal search and seizure jurisprudence, 

we will discuss federal cases as relevant.
11 

The Fourth Amendment did not refer to reasonableness in a 

relativistic, balancing sense. “Originally, the word ‘unreasonable’ in the 

Fourth Amendment likely meant ‘against reason’—as in ‘against the 

reason of the common law.’ ” Carpenter v. United States, 585 U.S. ___, ___, 

138 S. Ct. 2206, 2243 (2018) (Thomas, J., dissenting) (quoting Laura K. 

Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1270 

(2016)); see also Torres v. Madrid, 592 U.S. ___, ___, 141 S. Ct. 989, 996 

(2021) (“Early American courts . . . embraced other common law principles 

of search and seizure.”); United States v. Carloss, 818 F.3d 988, 1006 (10th 

Cir. 2016) (Gorsuch, J., dissenting) (“[T]he Fourth Amendment, at a 

minimum, protects the people against searches of their persons, houses, 

papers, and effects to the same degree the common law protected the 

people against such things at the time of the founding, for in prohibiting 

‘unreasonable’ searches the Amendment incorporated existing common 

law restrictions on the state’s investigative authority.”). Justice Story, in 

his leading treatise on the Federal Constitution, stated the prohibition 

against unreasonable seizures and searches “is little more than the 

affirmance of a great constitutional doctrine of the common law.” 3 Joseph 

Story, Commentaries on the Constitution of the United States §§ 1894–1895, 

at 748 (1833). “[B]y prohibiting ‘unreasonable’ searches and seizures in 

the Fourth Amendment, the Founders ensured that the newly created 

Congress could not use legislation to abolish the established common-law 

rules of search and seizure.” Carpenter, 585 U.S. at ___, 138 S. Ct. at 

2243. 

B.

The original understanding of article I, section 8 is in accord with 

the original understanding of the Fourth Amendment. See Pals, 805 

N.W.2d at 786 (Waterman, J., dissenting). As we long ago explained, “The 
12 

term ‘unreasonable’ in the constitutions of the States, has allusion to what 

had been practiced before our revolution, and especially to general search 

warrants, in which the person, place or thing was not described.” Santo 

v. State, 2 Iowa (2 Clarke) 165, 215 (1855). 

Consistent with this understanding, we have long held that a peace 

officer engaged in general criminal investigation acted unreasonably and 

unlawfully when he trespassed against a citizen without first obtaining a 

warrant based on probable cause. See Godfrey v. State, 898 N.W.2d 844, 

887–88 (Iowa 2017) (Mansfield, J., dissenting) (recognizing officer conduct 

was governed by common law trespass actions). In the colorful case of 

McClurg v. Brenton, the mayor, “the chief of police, the captain of the night 

force, a city alderman, the city physician, the ‘man with the hounds,’ and 

various other gentlemen, presumably volunteers in the cause of retributive 

justice,” showed up at the plaintiff’s home at night without a warrant to 

search for allegedly stolen chickens. 123 Iowa 368, 369–70, 98 N.W. 881, 

881–82 (1904). They gained entry into the home and the chicken house 

and conducted what was described as a “boisterous” search. Id. at 371, 

98 N.W. at 882 (noting a “member of the party became somewhat confused 

as to the real object of the search, and demanded to know whether there 

was ‘any beer in the cellar’ ”). The plaintiff sued for trespass. See id. at 

372, 98 N.W. at 882. In that case, we stated the great principle underlying 

the prohibition against unreasonable search and seizure:

The right of the citizen to occupy and enjoy his home, however 

mean or humble, free from arbitrary invasion and search, has 

for centuries been protected with the most solicitous care by 

every court in the English-speaking world, from Magna Charta 

down to the present, and is embodied in every bill of rights 

defining the limits of governmental power in our own republic. 

The mere fact that a man is an officer, whether of high 

or low degree, gives him no more right than is possessed by 

the ordinary private citizen to break in upon the privacy of a 
13 

home and subject its occupants to the indignity of a search 

for the evidences of crime, without a legal warrant procured 

for that purpose. No amount of incriminating evidence, 

whatever its source, will supply the place of such warrant. At 

the closed door of the home, be it palace or hovel, even 

bloodhounds must wait till the law, by authoritative process, 

bids it open. 

Id. at 371–72, 98 N.W. at 882. 

McClurg involved the search of a home and outbuildings, but the 

same prohibition against unlawful seizures and searches extended outside 

the home to seizures of and interferences with personal property. See 

Ingram, 914 N.W.2d at 817 (stating citizens have a protected interest in 

papers and effects outside the home). 

[T]here is no evidence at all that [the Framers] intended to 

exclude from protection of the Clause all searches occurring 

outside the home. The absence of a contemporary outcry 

against warrantless searches in public places was because, 

aside from searches incident to arrest, such warrantless 

searches were not a large issue in colonial America. 

United States v. Chadwick, 433 U.S. 1, 8, 97 S. Ct. 2476, 2482 (1977), 

abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982 (1991). 

In Pomroy & Co. v. Parmlee, the plaintiffs sued out a criminal 

warrant and civil writ of attachment in Scott County against the defendant 

for the purpose of attaching and levying on the defendant’s property. 9 

Iowa 140, 143–44 (1859). The sheriff of Scott County seized the 

defendant’s property, a trunk, in Poweshiek County and returned it to 

Scott County whereupon it was opened and searched and a bag of gold 

coin was found in it. See id. at 144–45. The plaintiffs sought to levy on 

the gold. See id. at 145. The defendant objected on the ground the sheriff 

had no authority under the writ of attachment to seize property outside 

Scott County. See id. at 144. We agreed: “The authority (of the sheriff) is 

given upon this restriction and condition, that it shall not be abused or 

exceeded, or colorably used to effect an unlawful purpose.” Id. at 146 
14 

(alteration in original) (quoting Ilsley v. Nichols, 29 Mass. (12 Pick.) 270, 

281 (1831)). We concluded the sheriff’s seizure of the defendant’s trunk 

outside his county was “a great abuse of the law . . . and of the authority 

of its officer.” Id. at 147. We explained, “The law will operate 

retrospectively to defeat all acts thus done under color of lawful authority, 

when exceeded; and a fortiori, will it operate prospectively, to prevent the 

acquisition of any lawful rights, by the excess and abuse of an authority 

given for useful and beneficial purposes.” Id. at 146–47 (quoting Ilsley, 29 

Mass. (12 Pick.) at 281). 

Similarly, in State v. Ward, a pharmacist was prosecuted for illegal 

liquor sales. 75 Iowa 637, 36 N.W. 765 (1888). A constable entered the 

defendant’s car with “no warrant, and he seized the liquor therein, and 

removed a portion of it on a dray near the car before the warrant was 

placed in his hands.” Id. The court explained the officer “may have been 

guilty of a trespass.” Id. at 639, 36 N.W. at 767. The court further 

explained that although the “search and seizure may have been illegally 

made in the first instance,” that was not a defense to the charge. Id. at 

640, 36 N.W. at 767.4 

 

4The disposition of the case made sense at the time because Iowa had not yet 

adopted an exclusionary rule. At that time, those subject to unlawful seizures and 

searches could pursue civil actions for nominal, actual, and punitive damages against 

the offending officer and his sureties. See McClurg, 123 Iowa at 373, 98 N.W. at 883 (“If 

the jury should find for plaintiff––that the wrongful search was made . . . —they could, in 

addition to actual damages, assess a greater or less sum against the defendants by way 

of punishment or as exemplary damages.”); Strunk v. Ocheltree, 11 Iowa 158, 159–60 

(1860) (“The defendant levied upon the property and took possession of it by virtue of his 

office, and sold the same when he had no right to do so. . . . The wrong was committed 

by color of his office, a wrong which his sureties obligated themselves he would not do, 

and for which they should be held responsible.”); Plummer v. Harbut, 5 Iowa (5 Clarke) 

308, 314 (1857) (“If defendants, in executing the process, acted in good faith, and in their 

entry upon plaintiff’s premises, were guilty of no oppression, and made no disturbance, 

further than was necessary in making the seizure, the trespass, even if without authority, 

was nominal only, and nominal damages must limit the extent of his recovery.”). 
15 

As our precedents demonstrate, under Iowa law “[a] trespassing 

officer is liable for all wrong done in an illegal search or seizure. The 

constitutional provision is a sacred right, and one which the courts will 

rigidly enforce.” State v. Tonn, 195 Iowa 94, 106, 191 N.W. 530, 535 

(1923), abrogated by State v. Hagen, 258 Iowa 196, 137 N.W.2d 895 

(1965); see also Godfrey, 898 N.W.2d at 887 (explaining police conduct 

was regulated by common law trespass actions). 

C. 

Iowa adhered to this original understanding of article I, section 8 

until the era of incorporation of the Bill of Rights into the Fourteenth 

Amendment. Although not compelled to construe article I, section 8 to 

follow the Supreme Court’s construction of the Fourth and Fourteenth 

Amendments, see Brown, 930 N.W.2d at 857–58 (discussing incorporation 

doctrine and state constitutional interpretation), this court nonetheless 

began to do so. See Kain v. State, 378 N.W.2d 900, 902 (Iowa 1985) (“[O]ur 

interpretation of article I, section 8 has quite consistently tracked with 

prevailing federal interpretations . . . .”). As a consequence, this court’s 

jurisprudence changed rather dramatically in conjunction with changes in 

the Supreme Court’s jurisprudence. The Supreme Court moved away from 

the original understanding of the Fourth Amendment right in two 

significant respects. First, the Court imposed a modern, relativistic 

meaning on the word “unreasonable.” See Ingram, 914 N.W.2d at 804 

(“[T]he new innovative touchstone under the more recent Supreme Court 

cases is a free-floating and open-ended concept of ‘reasonableness’ . . . .”). 

Second, in Katz v. United States, the Court refocused the inquiry from 

common law trespass to the aggrieved party’s reasonable expectation of 

privacy. See 389 U.S. at 353, 88 S. Ct. at 512.
16 

The Supreme Court’s first doctrinal change involved a change in the 

interpretation of “unreasonable.” The Supreme Court adopted a 

relativistic sense of reasonableness in Carroll v. United States, 267 U.S. 

132, 147, 45 S. Ct. 280, 283 (1925). Dealing with practical problems 

related to the enforcement of prohibition, Chief Justice Taft loosened 

restrictions on the exercise of official authority and explained the “Fourth 

Amendment does not denounce all searches or seizures, but only such as 

are unreasonable.” Id. However, he did not mean unreasonable as against 

the common law. Instead, he meant unreasonable in a relativistic sense—

as in determining whether the action was reasonable under the 

circumstances. See id. at 149, 45 S. Ct. at 283–84 (describing valid 

searches and seizures as “reasonably arising out of circumstances known 

to the seizing officer”). 

The Carroll Court’s reinterpretation of the Fourth Amendment 

gained traction. In United States v. Rabinowitz, the Court stated the 

legality of “searches turn[s] upon the reasonableness under all the 

circumstances and not upon the practicability of procuring a search 

warrant.” 339 U.S. 56, 65–66, 70 S. Ct. 430, 435 (1950), overruled in part 

by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969), abrogation 

recognized by Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419 (2011). 

By the 1970s, the Court concluded the “touchstone” of the Fourth 

Amendment was “the 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) 

(per curiam) (second quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 

1878–79 (1968)). The Court continues to hold “the ultimate touchstone of 

the Fourth Amendment is ‘reasonableness.’ ” Riley v. California, 573 U.S. 

373, 381–82, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 
17 

547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006)). Under modern doctrine, 

reasonableness means determining the constitutionality of police conduct 

“by assessing, on the one hand, the degree to which it intrudes upon an 

individual’s privacy and, on the other, the degree to which it is needed for 

the promotion of legitimate governmental interests.” Id. at 385, 134 S. Ct. 

at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 

1297, 1300 (1999)). 

The second significant doctrinal change irrupted from the pen of 

Justice Harlan in his concurrence in Katz. See Carpenter, 585 U.S. at ___, 

138 S. Ct. at 2237–38 (discussing history of Katz). In Katz, the Court 

asserted “the Fourth Amendment protects people, not places” and “what 

[a person] seeks to preserve as private . . . may be constitutionally 

protected.” 389 U.S. at 351, 88 S. Ct. at 511. Justice Harlan, in a 

concurring opinion, articulated an expectation-of-privacy test. See id. at 

361, 88 S. Ct. at 516 (Harlan, J., concurring). He “identified a ‘twofold 

requirement’ to determine when the protections of the Fourth Amendment 

apply: ‘first that a person have exhibited an actual (subjective) expectation 

of privacy and, second, that the expectation be one that society is prepared 

to recognize as “reasonable.” ’ ” Carpenter, 585 U.S. at ___, 138 S. Ct. at 

2237 (quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516). 

Justice Harlan’s expectation-of-privacy standard quickly became 

the primary standard for determining the constitutionality of searches 

under the Fourth Amendment. The following year, in Terry v. Ohio, the 

Court explained that “wherever an individual may harbor a reasonable 

‘expectation of privacy,’ he is entitled to be free from unreasonable 

governmental intrusion.” 392 U.S. at 9, 88 S. Ct. at 1873 (citation omitted) 

(quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516). By 1979, the Court 

stated Katz was the “lodestar” for evaluating claims arising under the 
18 

Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 739, 99 S. Ct. 

2577, 2579–80 (1979). Of note, the Supreme Court’s expectation-ofprivacy standard is not a standard to determine whether a search is 

“unreasonable” within the meaning of the Fourth Amendment. Instead, it 

is a threshold standard to determine whether a “search” occurred within 

the meaning of the Fourth Amendment. See Jones, 565 U.S. at 404–06, 

132 S. Ct. 949–50. 

This court generally followed these doctrinal developments to 

adjudicate claims arising under article I, section 8. In doing so, we 

acknowledged the shift from the historic approach. See State v. Davis, 228 

N.W.2d 67, 71–72 (Iowa 1975) (“The issue where to draw the line has 

spawned a vast body of litigation. The rationale of modern decisions 

ordinarily posits the determination not so much on the character of the 

property on which the evidence is observed (i.e., public vis-a-vis private, 

curtilage vis-a-vis open area) but rather on existence of a reasonable 

expectation of privacy.”), overruled by State v. Hanes, 790 N.W.2d 545 

(Iowa 2010). Despite the incongruence with our own precedents, we 

concluded we had “an interest in harmonizing our constitutional decisions 

. . . when reasonably possible.” State v. Ochoa, 792 N.W.2d 260, 265 (Iowa 

2010) (omission in original) (quoting State v. Groff, 323 N.W.2d 204, 207–

08 (Iowa 1982)). By 1985, we declared that “ ‘our interpretation of article 

I, section 8 has quite consistently tracked with prevailing federal 

interpretations’ in deciding search and seizure issues.” Id. at 266 (quoting 

Kain, 378 N.W.2d at 902). We did so in “a ‘lockstep’ approach to 

interpretation of state constitutional provisions.” Id. 

D. 

In recent years, this court has moved away from the lockstep 

approach and taken a more historical approach in interpreting article I, 
19 

section 8. See State v. Coleman, 890 N.W.2d 284, 296 (Iowa 2017) (“As 

has been thoroughly canvassed in some of our other opinions, the Iowa 

Supreme Court has a long history of independent adjudication of state 

constitutional issues. In recent decades, we have reemphasized that 

independent constitutional tradition.”). 

In State v. Ochoa, we canvassed the relevant historical materials and 

concluded our constitution was “intended to provide a limit on arbitrary 

searches and seizures, particularly those involving the home.” 792 N.W.2d 

at 272. We explained the clause was intended to reject the issuance of 

“general warrants without probable cause and without particularity as 

reflected in pre-Revolutionary practice.” Id. We also explained this 

prohibition necessarily disallowed warrantless searches circumventing the 

prohibition against general warrants. See id. at 273 (“It would make no 

sense to restrict general warrants and yet allow the same type of broad, 

unlimited search without a warrant”). We further noted the constitutional 

limitation on the exercise of warrantless authority was not limited to 

contexts involving infringements on privacy. See id. at 289 (“Indeed, to 

some extent, search and seizure protections must protect more than mere 

expectations of privacy if they are to have any bite at all.”). 

Two years later, in State v. Short, we noted the deficiencies inherent 

in the modern general reasonableness standard: 

[A]n interpretation that focuses on the reasonableness clause 

as the touchstone of search and seizure law sets up the 

intellectual machinery to engulf the warrant clause and make 

its mandatory provision ephemeral. The search and seizure 

protections of article I, section 8 would be subject to 

reasonability determinations by shifting four-member 

majorities of this court, based upon pragmatic considerations. 

Members of this court—indeed any court—can come up with 

ingenious explanations of how just about any search is 

reasonable. The cautionary words of Anthony Amsterdam in 

his classic study on the Fourth Amendment that reliance on 

reasonability threatens to convert “the [F]ourth [A]mendment 
20 

into one immense Rorschach blot” has even greater urgency 

today than it did forty years ago. 

851 N.W.2d 474, 501–02 (Iowa 2014) (alterations in original) (citations 

omitted) (quoting Anthony G. Amsterdam, Perspectives on the Fourth 

Amendment, 58 Minn. L. Rev. 349, 393 (1974)). 

Like our court with respect to article I, section 8, the Supreme Court 

recently has moved toward a more historical approach to the Fourth 

Amendment. See Torres, 592 U.S. at ___, 141 S. Ct. at 995–98, 1000–02 

(discussing common law understanding of the Fourth Amendment);

Virginia v. Moore, 553 U.S. 164, 168, 128 S. Ct. 1598, 1602 (2008) (“In 

determining whether a search or seizure is unreasonable, we begin with 

history. We look to the statutes and common law of the founding era to 

determine the norms that the Fourth Amendment was meant to 

preserve.”); Atwater v. City of Lago Vista, 532 U.S. 318, 326, 121 S. Ct. 

1536, 1543 (2001) (stating the Court is guided by the common law at the 

time of the framing); Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct. 

1914, 1916 (1995) (“In evaluating the scope of this right, we have looked 

to the traditional protections against unreasonable searches and seizures 

afforded by the common law at the time of the framing.”). 

In United States v. Jones, the Court held “that the Government’s 

installation of a GPS device on a target’s vehicle, and its use of that device 

to monitor the vehicle’s movements, constitutes a ‘search’ ” within the 

meaning of the Fourth Amendment and was thus unlawful when done 

without a warrant. 565 U.S. at 404, 132 S. Ct. at 949 (footnote omitted). 

The Court explained Katz deviated from the Court’s traditional and 

historical “property-based approach” to the Fourth Amendment. Id. at 

405–06, 132 S. Ct. at 950. While the Court did not repudiate Katz, it 

explained Katz was accretive to and not a substitute for the old doctrine. 
21 

See id. at 407, 132 S. Ct. at 951 (“Katz . . . established that ‘property rights 

are not the sole measure of Fourth Amendment violations,’ [and] did not 

‘snuf[f] out the previously recognized protection for property.’ ” (second 

alteration in original) (quoting Soldal v. Cook County, 506 U.S. 56, 64, 113 

S. Ct. 538, 545 (1992))). 

The following year, in Florida v. Jardines, the Court held a peace 

officer conducted an unconstitutional search when the officer walked onto 

a homeowner’s porch with a drug-sniffing dog to investigate the contents 

of the home. 569 U.S. 1, 9–10, 133 S. Ct. 1409, 1416–17 (2013). The 

Court explained the peace officer acting without a warrant had the right to 

do what “any private citizen might do.” Id. at 8, 133 S. Ct. at 1416 (quoting 

Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct. 1849, 1862 (2011)). 

However, the officer exceeded the license afforded to private citizens: 

“[S]ocial norms that invite a visitor to the front door do not invite him there 

to conduct a search.” Id. at 9, 133 S. Ct. at 1416. The Court concluded 

law enforcement’s use of the drug-sniffing dog to explore the area around 

the home was a search under the Fourth Amendment because the conduct 

was an unlicensed physical intrusion. See id. Justice Kagan, joined by 

Justices Ginsburg and Sotomayor, concurred in the opinion. See id. at 12, 

133 S. Ct. at 1418 (Kagan, J., concurring). In their view, the peace officer, 

in exceeding the scope of the license afforded a private citizen by using a 

drug dog, committed a trespass at common law and invaded the 

defendant’s privacy. See id. at 13, 133 S. Ct. at 1418 (“Was this activity a 

trespass? Yes, as the Court holds today. Was it also an invasion of 

privacy? Yes, that as well.”). 

This court and the Supreme Court’s return to the historical 

understandings of seizure and search jurisprudence, to some degree, was 

born of necessity. Current Fourth Amendment jurisprudence is a mess. 
22 

See Short, 851 N.W.2d at 488 (noting scholars characterize the 

jurisprudence as “complex and contradictory” (quoting Akhil Reed Amar, 

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

While Katz became “ ‘the basis of a new formula of fourth amendment 

coverage,’ it can hardly be said that the Court produced clarity where 

theretofore there had been uncertainty. If anything, the exact opposite 

has occurred.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the 

Fourth Amendment § 2.1(b), at 597 (6th ed. 2020) [hereinafter LaFave] 

(footnote omitted). “The pre-Katz rule . . . was ‘a workable tool for the 

reasoning of the courts.’ But the Katz rule . . . is, by comparison ‘difficult 

to apply.’ ” Id. (footnotes omitted); see also Morgan Cloud, Pragmatism, 

Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. Rev. 

199, 253 (1993) (“Over time expectations analysis has produced only an 

amorphous formula that allows the Justices to treat the fourth 

amendment as an instrument for achieving social goals approved by 

shifting majorities on the Court.”); David Gray, The Fourth Amendment 

Categorical Imperative, 116 Mich. L. Rev. Online 14, 14–18 (2017) 

(explaining how the Katz decision made “current Fourth Amendment 

doctrine . . . unfounded, incoherent, and dangerous”). This criticism of 

the Supreme Court’s doctrine is widely shared. See Short, 851 N.W.2d at 

488 (collecting commentators’ criticisms); William Baude & James Y. 

Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 

1821, 1825 (2016) [hereinafter Baude & Stern] (“The reasonable 

expectation of privacy concept has other serious defects, including its 

ambiguous meaning, its subjective analysis, its unpredictable application, 

its unsuitability for judicial administration, and its potential circularity. 

We are happy to repeat these criticisms but we are hardly the first to raise 
23 

them. They have been exhaustively developed in Fourth Amendment 

scholarship over the last half-century.”). 

We would normally be reluctant to voice any such criticism of the 

Supreme Court’s jurisprudence, but members of the Court also are critical 

of its jurisprudence. In a dissent highly critical of the modern regime, 

Justice Thomas recently noted: 

Jurists and commentators tasked with deciphering our 

jurisprudence have described the Katz regime as “an 

unpredictable jumble,” “a mass of contradictions and 

obscurities,” “all over the map,” “riddled with inconsistency 

and incoherence,” “a series of inconsistent and bizarre results 

that [the Court] has left entirely undefended,” “unstable,” 

“chameleon-like,” “ ‘notoriously unhelpful,’ ” “a conclusion 

rather than a starting point for analysis,” “distressingly 

unmanageable,” “a dismal failure,” “flawed to the core,” 

“unadorned fiat,” and “inspired by the kind of logic that 

produced Rube Goldberg’s bizarre contraptions.” Even 

Justice Harlan, four years after penning his concurrence in 

Katz, confessed that the test encouraged “the substitution of 

words for analysis.” United States v. White, 401 U.S. 745, 786, 

91 S. Ct. 1122, 28 L.Ed.2d 453 (1971) (dissenting opinion). 

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2244 (alterations in original) 

(footnote omitted). 

Other Justices share Justice Thomas’s criticism of the Katz regime. 

Justice Gorsuch explained Katz was contrary to the text and original 

understanding of the Fourth Amendment: 

Katz’s problems start with the text and original 

understanding of the Fourth Amendment . . . . The 

Amendment’s protections do not depend on the breach of 

some abstract “expectation of privacy” whose contours are left 

to the judicial imagination. Much more concretely, it protects 

your “person,” and your “houses, papers, and effects.” Nor 

does your right to bring a Fourth Amendment claim depend 

on whether a judge happens to agree that your subjective 

expectation to privacy is a “reasonable” one. Under its plain 

terms, the Amendment grants you the right to invoke its 

guarantees whenever one of your protected things (your 

person, your house, your papers, or your effects) is 

unreasonably searched or seized. Period. 
24 

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2264 (Gorsuch, J., dissenting). 

In fact, “each of the Justices on the Carpenter Court, including those in the 

majority and all of the dissenters, has, at some point, either authored or 

joined an opinion critical of Katz, or at least conceding the difficulty of

applying it[].” Nicholas A. Kahn-Fogel, Katz, Carpenter, and Classical 

Conservatism, 29 Cornell J.L. & Pub. Pol’y 95, 106 (2019). 

E. 

“Fourth Amendment jurisprudence is in flux . . . .” Everett v. State, 

186 A.3d 1224, 1235 (Del. 2018). There are competing, inconsistent 

doctrines governing seizure and search law—the original meaning, the 

“touchstone” of reasonableness, and the “lodestar” of Katz. Given the 

uncertainty and lack of clarity in federal search and seizure jurisprudence, 

we conclude it is no longer tenable to follow federal precedents in lockstep. 

Article I, section 8, as originally understood, was meant to provide the 

same protections as the Fourth Amendment, as originally understood, but 

the Supreme Court’s interpretation and construction of the Fourth 

Amendment has deviated from the text and original meaning. Respectful 

consideration of the Supreme Court’s precedents does not require 

adherence to federal doctrine that members of that great Court, other 

jurists, and commentators all acknowledge departs from the text and 

original meaning of the constitutional prohibition against unreasonable 

seizures and searches. 

As discussed above, a survey of the relevant text, history, and 

precedents shows article I, section 8’s prohibition against unreasonable 

searches and seizures was tied to common law trespass. In light of that 

understanding, we hold a peace officer engaged in general criminal 

investigation acts unreasonably under article I, section 8 when the peace 

officer commits a trespass against a citizen’s house, papers, or effects 
25 

without first obtaining a warrant based “on probable cause, supported by 

oath or affirmation, particularly describing the place to be searched, and 

the persons and things to be seized.” Iowa Const. art. I, § 8.5

IV. 

We now directly address Wright’s claim that Officer Heinz violated 

his state constitutional right under article I, section 8. Wright has two 

separate and distinct bases for challenging the warrantless seizures and 

searches. First, relying on the common law understanding of seizure and 

search law, Wright argues Heinz physically trespassed on Wright’s 

property and thus the warrantless search violated article I, section 8. 

Second, relying on the expectation-of-privacy approach to seizure and 

search law, Wright argues Heinz violated article I, section 8 by invading 

Wright’s expectation of privacy in his garbage bags. It is the State’s burden 

 

5The dissents are directed at monsters of their own making. The dissenters argue 

that the court’s holding—that “if a private citizen can’t do it, the police can’t do it either”—

is not supported by text or history. Except that is not what we hold. We hold that article 

I, section 8 prohibits an officer engaged in general criminal investigation from conducting 

a search or seizure that constitutes a trespass on a person’s house, papers, or effects 

without first obtaining a warrant. 

None of the dissenters disagree that article I, section 8, as originally understood, 

prohibited warrantless trespassory searches and seizures. The dissenters fail to 

recognize that what constitutes a trespass can change over time without changing the 

original meaning of article I, section 8. See Phillips v. Wash. Legal Found., 524 U.S. 156, 

164, 118 S. Ct. 1925, 1930 (1998) (“[T]he existence of a property interest is determined 

by reference to ‘existing rules or understandings that stem from an independent source 

such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 

S. Ct. 2701, 2709 (1972))); Orin S. Kerr, The Curious History of Fourth Amendment 

Searches, 2012 Sup. Ct. Rev. 67, 93 (2012) [hereinafter Kerr] (“Changes in trespass law 

could be recognized as changing the scope of protections without truly changing the 

Fourth Amendment . . . .”). Thus, one of the dissenting justices errs in arguing that 

scavenging through a citizen’s trash cannot constitute a trespass because scavenging 

was common at the time of the founding. The dissenter confuses original meaning with 

original expected application. The original meaning of article I, section 8 was to prohibit 

an officer engaged in general criminal investigation from committing a trespass against a 

citizen’s person, house, papers, and effects without first obtaining a warrant. While 

scavenging may have been allowed then, Iowa law disallows it now. The scope of what 

constitutes a trespass has changed, not the meaning of article I, section 8. See Phillips, 

524 U.S. at 164, 118 S. Ct. at 1930; Kerr, 2012 Sup. Ct. Rev. at 93. 
26 

to prove that a warrantless search or seizure is constitutional. See Ingram, 

914 N.W.2d at 824 (Mansfield, J., concurring specially). 

A. 

We first consider whether Heinz’s conduct amounted to a seizure or 

search within the meaning of article I, section 8. There is no evidence 

these terms were terms of art at the time of the founding. See Carpenter, 

585 U.S. at ___, 138 S. Ct. at 2238 (Thomas, J., dissenting) (stating the 

word “search” “was probably not a term of art, as it does not appear in 

legal dictionaries from the era”). “No literal or mechanical approach should 

be adopted in determining what may constitute a search and seizure.” 

State v. Raymond, 258 Iowa 1339, 1347, 142 N.W.2d 444, 449 (1966). We 

thus give the words their fair and ordinary meaning. 

It is apparent Heinz seized the garbage bags and papers and effects 

contained therein under any fair and ordinary definition of the term 

seizure. “A ‘seizure’ of property occurs when there is some meaningful 

interference” with the property. United States v. Jacobsen, 466 U.S. 109, 

113, 104 S. Ct. 1652, 1656 (1984). In Pomroy & Co., we concluded a 

sheriff unlawfully seized a trunk and the contents contained therein when 

the sheriff took possession of the items and transported them from one 

county to another. See 9 Iowa at 144–47. In Ward, we concluded a 

constable unlawfully seized a pharmacist’s liquor when the constable took 

possession of the liquor. See 75 Iowa at 639–40, 36 N.W. at 766–67. As 

in those cases, Heinz meaningfully interfered with and “seized” the garbage 

bags and papers and effects contained therein when he removed the 

garbage bags from Wright’s trash bins, took possession of them, and 

transported them to the police station for further inspection. See Torres, 

592 U.S. at ___, 141 S. Ct. at 995 (“It is true that, when speaking of 

property, ‘[f]rom the time of the founding to the present, the word “seizure” 
27 

has meant a “taking possession.” ’ ” (alteration in original) (quoting 

California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 1549 (1991))). 

It is equally apparent Heinz engaged in a search when he opened the 

garbage bags and rummaged through them. “When the Fourth 

Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or 

through for the purpose of finding something; to explore; to examine by 

inspection; as, to search the house for a book; to search the wood for a 

thief.’ ” Kyllo v. United States, 533 U.S. 27, 32 n.1, 121 S. Ct. 2038, 2042 

n.1 (2001) (alteration in original) (emphases omitted) (quoting N. Webster, 

An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 

1989)); see also Carpenter, 585 U.S. at ___, 138 S. Ct. at 2238 

(summarizing founding era definitions). Historical legal dictionaries 

defined a search as an examination “with a view to the discovery of 

contraband or illicit or stolen property, or some evidence of guilt to be used 

in the prosecution of a criminal action for some crime or offense with which 

he is charged,” Henry Campbell Black, A Dictionary of Law 1069 (1st ed. 

1891), or an examination conducted for the “purpose of discovering proof 

of his guilt in relation to some crime or misdemeanor of which he is 

accused.” 2 John Bouvier, A Law Dictionary 498 (3d ed. 1848). Here, 

Heinz testified he opened the garbage to “obtain information about what 

Mr. Wright may have been doing inside [his] house” and obtain evidence 

“related to drug activity.” A constitutional search occurs whenever the 

government commits a physical trespass against property, even where de 

minimis, conjoined with “an attempt to find something or to obtain 

information.” Jones, 565 U.S. at 408 n.5, 132 S. Ct. at 951 n.5; see also

Jardines, 569 U.S. at 5, 133 S. Ct. at 1414 (“When ‘the Government 

obtains information by physically intruding’ on persons, houses, papers, 

or effects, ‘a “search” within the original meaning of the Fourth 
28 

Amendment’ has ‘undoubtedly occurred.’ ” (quoting Jones, 565 U.S. at 406 

n.3, 132 S. Ct. at 950 n.3)). 

For the purposes of determining whether a seizure or search 

occurred, it is not relevant whether Wright had an expectation of privacy 

in the garbage bags or the contents. 

The Katz test distorts the original meaning of 

“searc[h]”—the word in the Fourth Amendment that it 

purports to define. Under the Katz test, the government 

conducts a search anytime it violates someone’s “reasonable 

expectation of privacy.” That is not a normal definition of the 

word “search.” 

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2238 (alteration in original) 

(citations omitted). To bring greater coherence to our seizure and search 

jurisprudence, we hold the expectation-of-privacy test is relevant only to 

the question of whether a seizure or search was unreasonable within the 

meaning of article I, section 8 and not whether a seizure or search has 

occurred. See Minnesota v. Carter, 525 U.S. 83, 97, 119 S. Ct. 469, 477 

(1998) (Scalia, J., concurring) (explaining that when Katz is applied “to 

determine whether a ‘search or seizure’ within the meaning of the 

Constitution has occurred (as opposed to whether that ‘search or seizure’ 

is an ‘unreasonable’ one), it has no plausible foundation in the text of the 

Fourth Amendment” (emphasis omitted)). 

B. 

We next address whether the items Heinz seized and searched were 

protected papers and effects within the meaning of article I, section 8. 

The word papers is self-explanatory, but the word effects requires 

some explanation. The modern understanding of the term effects is 

“[m]ovable property; goods.” Effects, Black’s Law Dictionary (11th ed. 

2019). This is consistent with the original understanding. “The Framers 

would have understood the term ‘effects’ to be limited to personal, rather 
29 

than real, property.” Oliver v. United States, 466 U.S. 170, 177 n.7, 104 

S. Ct. 1735, 1740 n.7 (1984). 

We have little trouble concluding the property at issue is protected 

within the meaning of article I, section 8. Opaque garbage bags are 

containers, and containers are an “effect” as originally understood. See 

United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982). 

The fact that the containers happen to be garbage bags rather than, say, 

expensive luggage, is not of constitutional consequence. See id. There is 

no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.” 

Id. “Even though such a distinction perhaps could evolve in a series of 

cases in which paper bags, locked trunks, lunch buckets, and orange 

crates were placed on one side of the line or the other, the central purpose 

of the Fourth Amendment forecloses such a distinction.” Id. (footnote 

omitted). In addition, Heinz opened the garbage bags and searched 

through the contents. The contents included other personal property, 

including two pieces of mail addressed to Wright. Letters are certainly 

papers. Further, “[l]etters . . . are in the general class of effects,” and 

“warrantless searches of such effects are presumptively unreasonable.” 

Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657. 

C. 

Heinz’s seizure and search of the papers and effects would be 

inconsequential if the papers and effects did not belong to Wright. Article 

I, section 8 provides that people have the right to be secure in “their” 

persons, houses, papers, and effects. “Although phrased in the plural, 

‘[t]he obvious meaning of [“their”] is that each person has the right to be 

secure against unreasonable searches and seizures in his own person, 

house, papers, and effects.’ ” Carpenter, 585 U.S. at ___, 138 S. Ct. at 
30 

2241–42 (alterations in original) (quoting Carter, 525 U.S. at 92, 119 S. Ct. 

at 475). 

The State contends the papers and effects Heinz seized were not 

Wright’s papers and effects because Wright abandoned them. Under Iowa 

law, “[a]bandonment is shown by proof that the owner intends to abandon 

the property and has voluntarily relinquished all right, title and interest in 

the property.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 

(Iowa 1995) (en banc) (emphasis added). “Abandonment, however, entails 

a relinquishment of ownership interests without regard for who becomes 

the next owner, such that the items in question can be considered ‘bona 

vacantia’—a property law term meaning ‘unowned’—and available for the 

taking by any finder.” Tanner M. Russo, Note, Garbage Pulls Under the 

Physical Trespass Test, 105 Va. L. Rev. 1217, 1246–47 (2019) [hereinafter 

Russo] (footnote omitted). 

Here, Wright did not abandon all right, title, and interest in the 

property. Local ordinances provide only a licensed collector under 

contract with the city may collect garbage. See Clear Lake, Iowa, Code of 

Ordinances § 106.11. The ordinances make it “unlawful for any person to 

. . . [t]ake or collect any solid waste which has been placed out for 

collection on any premises, unless such person is an authorized solid 

waste collector.” Id. § 105.11(4). In moving his trash to the alley for 

collection, Wright agreed only to convey his property to a licensed collector. 

See People v. Edwards, 458 P.2d 713, 718 (Cal. 1969) (en banc) (stating 

trash was not abandoned except “as to persons authorized to remove the 

receptacle’s contents, such as trashmen”). Wright would have the right to 

retrieve the property prior to collection and the right to exclude all others 

from rummaging through his garbage bins prior to collection. See 

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266 (Gorsuch, J., dissenting) (“I 
31 

doubt, too, that most people spotting a neighbor rummaging through their 

garbage would think they lacked reasonable grounds to confront the 

rummager.”). As one commentator explained: 

[I]ndividuals who leave garbage on the curb generally do not 

expect that anyone will be able to take the discarded items but 

rather, per Greenwood, understand themselves as conveying 

refuse to a specific party who will function as the next true 

owner: the trash collector. This understanding seems 

especially clear in localities with anti-rummaging ordinances, 

under which all but designated trash collectors are prohibited 

from tampering with curbside garbage, such that 

unauthorized “finders” would presumably violate the 

ordinance by taking possession of garbage. If individuals 

placing garbage out for collection do not intend to leave the 

items for random “finders,” placing garbage curbside arguably 

lacks the requisite “intent to abandon” necessary to qualify as 

property abandonment. 

Russo, 105 Va. L. Rev. at 1247 (footnotes omitted). Until such time as the 

garbage bags were collected by a licensed collector and commingled with 

other garbage, Wright had not yet abandoned the property. 

D. 

We next address whether Heinz’s conduct constituted a trespass 

thus making the warrantless search unconstitutional under article I, 

section 8. At the time of the founding, trespass was a broad concept that 

encompassed far more than physical intrusions into or on real or personal 

property. “Trespass, in its largest and most extensive sense, signifie[d] any 

transgression or offence against the law of nature, of society, or of the 

country in which we live; whether it relate[d] to a man’s person, or his 

property.” 3 William Blackstone, Commentaries on the Laws of England

208 (1768). Within the meaning of article I, section 8, an officer acts 

unreasonably when, without a warrant, the officer physically trespasses 

on protected property or uses means or methods of general criminal 

investigation that are unlawful, tortious, or otherwise prohibited. See 
32 

Baude & Stern, 129 Harv. L. Rev. at 1825–26 (“[A] court should ask 

whether government officials have engaged in an investigative act that 

would be unlawful for a similarly situated private actor to perform. That 

is, stripped of official authority, has the government actor done something 

that would be tortious, criminal, or otherwise a violation of some legal 

duty? Fourth Amendment protection, in other words, is warranted when 

government officials either violate generally applicable law or avail 

themselves of a governmental exemption from it.”). Otherwise prohibited 

conduct includes means and methods of general criminal investigation 

that violate a citizen’s reasonable expectation of privacy as articulated in 

our cases adopting the Katz standard. 

In determining whether an officer’s conduct is unlawful, tortious, or 

otherwise prohibited, we do not rely on our personal biases, predilections, 

or normative judgments concerning the proper scope of law enforcement 

authority. Instead, we try “to discern and describe existing societal 

norms.” Carpenter, 585 U.S. at ___, 138 S. Ct. at 2265. One way to 

discern existing societal norms is to look to “democratically legitimate 

sources of [positive] law”—statutes, rules, regulations, orders, ordinances, 

judicial decisions, etc. Id. at ___, 138 S. Ct. at 2268 (quoting Todd E. 

Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123, 127 

(2011)); see also Planned Parenthood of the Heartland, 915 N.W.2d at 248 

(“Statutes do not serve as constitutional definitions but provide us the 

most reliable indicator of community standards to gauge the evolving views 

of society important to our analysis.” (quoting Griffin v. Pate, 884 N.W.2d 

182, 198 (Iowa 2016))). 

1. 

We turn to the question of whether Heinz physically trespassed on 

Wright’s papers and effects. “[A]lmost every human activity ultimately 
33 

manifests itself in waste products . . . .” Smith v. State, 510 P.2d 793, 798 

(Alaska 1973). Urbanization and advances in public sanitation practice 

necessitate regular, coordinated, and public trash collection and disposal. 

Many municipalities in Iowa have ordinances regulating the collection and 

disposal of trash. Clear Lake is one such municipality. The city limits 

who may access and collect solid waste to licensed and contracted 

collectors. See Clear Lake, Iowa, Code of Ordinances § 106.11. The city 

makes it “unlawful for any person to . . . [t]ake or collect any solid waste 

which has been placed out for collection on any premises, unless such 

person is an authorized solid waste collector.” Id. § 105.11(4). Violation 

of any ordinance is punishable by a fine. See id. § 1.15. 

Clear Lake is not the only municipality that prohibits any person, 

other than an authorized collector, from taking or collecting trash placed 

out for collection. See Ankeny, Iowa, Code of Ordinances § 110.11(3) 

(2008); Clinton, Iowa, Code of Ordinances § 50.11(D) (2009); Coralville, 

Iowa, Code of Ordinances § 105.11(4) (2011); Earlham, Iowa, Code of 

Ordinances § 105.10(4) (2017); Manchester, Iowa, Code of Ordinances 

§ 105.10(4) (2017); Nevada, Iowa, Code of Ordinances § 105.10(4) (2006); 

North Liberty, Iowa, Code of Ordinances § 105.11(4) (2018); Pella, Iowa, 

Code of Ordinances § 105.12(4) (2011); Pleasant Hill, Iowa, Code of 

Ordinances § 105.12(3) (1998); Prairie City, Iowa, Code of Ordinances 

§ 105.11(4) (2012); Sergeant Bluff, Iowa, Code of Ordinances § 105.11(4) 

(2011); Urbandale, Iowa, Code of Ordinances § 57.11(D) (2015); Walcott, 

Iowa, Code of Ordinances § 105.11(4) (2012). 

As the Clear Lake and other ordinances demonstrate, Heinz engaged 

in means and methods of general criminal investigation with respect to 

these papers and effects that were unlawful and prohibited. See McClurg, 

123 Iowa at 371–72, 98 N.W. at 882 (“The mere fact that a man is an 
34 

officer, whether of high or low degree, gives him no more right than is 

possessed by the ordinary private citizen to . . . search for the evidences of 

crime, without a legal warrant procured for that purpose.”); see also 

Caniglia v. Strom, 593 U.S. ___, ___, 141 S. Ct. 1596, 1599 (2021) (“And, 

of course, officers may generally take actions that ‘any private citizen might 

do’ without fear of liability.” (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at 

1416)). Heinz’s warrantless seizures and searches were thus an unlawful 

and unconstitutional physical trespass on Wright’s papers and effects. 

See Jardines, 569 U.S. at 8, 133 S. Ct. at 1416; Davis v. Passman, 442 

U.S. 228, 246, 99 S. Ct. 2264, 2277–78 (1979) (“No man in this country is 

so high that he is above the law. No officer of the law may set that law at 

defiance with impunity. All officers of the government, from the highest to 

the lowest, are creatures of the law, and are bound to obey it.” (quoting 

Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2910 (1978))); Baude 

& Stern, 129 Harv. L. Rev. at 1882 (stating where municipal ordinances 

require trash collection by a licensed collector and prohibit unauthorized 

persons from tampering with trash, the ordinances “should bring with 

them the protection of the Fourth Amendment”). 

Of course, this is not to say article I, section 8 rises and falls based 

on a particular municipal law. Municipal laws, like all positive laws, are 

merely one form of evidence of the limits of a peace officer’s authority to 

act without a warrant. Further, “while positive law may help establish a 

person’s Fourth Amendment interest there may be some circumstances 

where positive law cannot be used to defeat it.” Carpenter, 585 U.S. at ___, 

138 S. Ct. at 2270. For example, neither the legislature nor a municipality 

could “pass laws declaring your house or papers to be your property except 

to the extent the police wish to search them without cause.” Id. at 2270–

71. Article I, section 8 precludes a peace officer from engaging in general 
35 

criminal investigation that constitutes a trespass against a citizen’s house, 

papers, or effects. No department of the government can circumvent this 

constitutional minimum. 

2. 

Although we have already concluded the seizures and searches at 

issue were unconstitutional physical trespasses on Wright’s papers and 

effects, we address whether Heinz’s conduct violated article I, section 8 

because it violated a reasonable expectation of privacy. On this point, we 

do not write on a blank slate. 

The Supreme Court applied the expectation-of-privacy test to 

address the constitutionality of the searches and seizures of garbage bags 

in California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988). There, 

the Supreme Court held the Fourth Amendment does not “prohibit[] the 

warrantless search and seizure of garbage left for collection outside the 

curtilage of a home.” Id. at 37, 108 S. Ct. at 1627. The Court explained 

that “[a]n expectation of privacy does not give rise to Fourth Amendment 

protection . . . unless society is prepared to accept that expectation as 

objectively reasonable.” Id. at 39–40, 108 S. Ct. at 1628. The Court 

reasoned an expectation of privacy in garbage bags left outside the 

curtilage of a home was not objectively reasonable: “It is common 

knowledge that plastic garbage bags left on or at the side of a public street 

are readily accessible to animals, children, scavengers, snoops, and other 

members of the public.” Id. at 40, 108 S. Ct. at 1628–29 (footnotes 

omitted). In addition, “respondents placed their refuse at the curb for the 

express purpose of conveying it to a third party, the trash collector, who 

might himself have sorted through respondents’ trash or permitted others, 

such as the police, to do so.” Id. at 40, 108 S. Ct. at 1629. 
36 

In State v. Henderson, the Iowa Court of Appeals concluded the 

warrantless search and seizure of the garbage left outside the defendant’s 

home under markedly similar facts as Greenwood did not violate the Fourth 

Amendment or article I, section 8. See 435 N.W.2d 394, 395–97 (Iowa Ct. 

App. 1988); see also State v. Skola, 634 N.W.2d 687, 691 (Iowa Ct. App. 

2001) (declining to depart from the holdings in Greenwood and Henderson 

under article I, section 8 of the Iowa Constitution). The court of appeals 

relied on the Supreme Court’s rationale in Greenwood and “determine[d] 

the use of evidence obtained by searching the defendant’s garbage did not 

intrude upon his legitimate expectation of privacy and therefore, was 

properly considered by the magistrate in issuing a search warrant of the 

defendant’s premises.” Henderson, 435 N.W.2d at 397. 

More recently, Justice Gorsuch called the application of Katz in 

Greenwood “unbelievable,” explaining: 

In that case, the Court said that the homeowners forfeited 

their privacy interests because “[i]t is common knowledge that 

plastic garbage bags left on or at the side of a public street are 

readily accessible to animals, children, scavengers, snoops, 

and other members of the public.” But the habits of raccoons 

don’t prove much about the habits of the country. I doubt, 

too, that most people spotting a neighbor rummaging through 

their garbage would think they lacked reasonable grounds to 

confront the rummager. Making the decision all the stranger, 

California state law expressly protected a homeowner’s 

property rights in discarded trash. Yet rather than defer to 

that as evidence of the people’s habits and reasonable 

expectations of privacy, the Court substituted its own curious 

judgment. 

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266 (alteration in original) 

(citations omitted) (quoting Greenwood, 486 U.S. at 40, 108 S. Ct. at 1628–

29). 

We believe Justice Gorsuch has the better of the argument here. 

Garbage contains intimate and private details of life. See Greenwood, 486 
37 

U.S. at 50, 108 S. Ct. at 1634 (Brennan, J., dissenting). When a citizen 

places garbage out for collection in a closed garbage bag, the contents of 

the bag are private, as a factual matter. The citizen understands, however, 

that the contents of the bag may be revealed to someone at some point in 

time. That a citizen may actually lose privacy in certain things or in certain 

information at some point in the future does not preclude the possibility 

that a peace officer nonetheless violated the citizen’s right to privacy in 

accessing the same things or information. “Privacy rights do not protect a 

reasonable expectation that privacy will be maintained, but rather a 

reasonable expectation that privacy will not be lost in certain ways.” 

Jeffrey M. Skopek, Untangling Privacy: Losses Versus Violations, 105 Iowa 

L. Rev. 2169, 2174 (2020). As one noted scholar explained: 

Selective secrecy and partial confidentiality are wholly 

conceivable and not, despite the superficial allure of the 

argument to the contrary, internally inconsistent. Not to allow 

an individual to sacrifice a portion of her secrecy interest, or 

to suspend confidentiality vis-a-vis specific individuals and 

not others, without surrendering all claims to fourth 

amendment privacy, makes little sense. 

James J. Tomkovicz, Beyond Secrecy for Secrecy’s Sake: Toward an 

Expanded Vision of the Fourth Amendment Privacy Province, 36 Hastings 

L.J. 645, 681 (1985). 

Here, Wright had an expectation based on positive law that his 

privacy, as a factual matter, would be lost, if at all, only in a certain, limited 

way. Specifically, Wright had an expectation based on positive law that 

his garbage bags would be accessed only by a licensed collector under 

contract with the city. See Clear Lake, Iowa, Code of Ordinances § 106.11. 

Wright had an expectation based on positive law that it would be unlawful 

for others to access his trash. See id. § 105.11(4); see also Rakas v. Illinois, 

439 U.S. 128, 143 n.12, 99 S. Ct. 421, 430 n.12 (1978) (“Legitimation of 
38 

expectations of privacy by law must have a source outside of the Fourth 

Amendment, either by reference to concepts of real or personal property 

law or to understandings that are recognized and permitted by society.”). 

“[T]he mere fact that a citizen elects to dispose of his garbage in the 

customary way by making it available for pickup by a municipal or 

privately-retained hauler is no basis for concluding that his expectation of 

privacy as to that garbage is unjustified.” 1 LaFave § 2.6(c), at 933. Heinz 

violated that expectation and right when he accessed the contents without 

a warrant. 

We thus join those courts that have held a warrantless search of a 

citizen’s trash left out for collection is unlawful. See Edwards, 458 P.2d 

at 718 (pre-Greenwood decision holding that police search of trash cans 

in the back of defendant’s residence was unlawful because defendant had 

a justified expectation of privacy in his garbage); State v. Goss, 834 A.2d 

316, 319 (N.H. 2003) (rejecting Greenwood under New Hampshire 

Constitution, concluding that defendant’s expectation of privacy was 

reasonable, and construing state constitution to provide greater protection 

than the Federal Constitution); State v. Hempele, 576 A.2d 793, 813–15 

(N.J. 1990) (rejecting Greenwood under New Jersey state constitutional 

law and holding that “the State must secure a warrant based on probable 

cause in order to search garbage bags left on the curb for collection”); State 

v. Crane, 254 P.3d 117, 123 (N.M. Ct. App. 2011) (finding defendant had 

reasonable expectation of privacy in garbage under New Mexico 

Constitution), aff’d on other grounds, 329 P.3d 689 (N.M. 2014); State v. 

Morris, 680 A.2d 90, 96 (Vt. 1996) (rejecting Greenwood under Vermont 

Constitution, finding that “[t]he Vermont Constitution does not require the 

residents of this state to employ extraordinary or unlawful means to keep 

government authorities from examining discarded private effects”); State 
39 

v. Boland, 800 P.2d 1112, 1116–17 (Wash. 1990) (en banc) (rejecting 

Greenwood under Washington Constitution and focusing its analysis on 

whether the private affairs of an individual were unreasonably violated). 

E. 

The State contends Heinz’s conduct here was justified for practical 

reasons. The State contends that holding Heinz’s conduct violated the 

constitution “would result in the demise of trash grabs of personal trash 

containers.” We do not question the utility of warrantless trash grabs for 

the purposes of law enforcement, but the utility of warrantless activity is 

not the issue under our constitution. The “mere fact that law enforcement 

may be made more efficient can never by itself justify disregard of the 

[constitution].” Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414 

(1978). Obviously, “investigation of crime would always be simplified if 

warrants were unnecessary.” Id.

[T]he Constitution [is not] a public enemy whom judges are 

charged to disarm whenever possible. It is the protector of the 

people, placed on guard by them to save the rights of the 

people against injury . . . . To hold that attack upon it is for 

the public good is to commend the soldier for tearing down the 

rampart which enables him to sleep in safety. 

Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 272, 154 N.W. 1037, 1047 

(1915). 

V. 

We hold Officer Heinz conducted an unreasonable search and 

seizure in violation of article I, section 8 of the Iowa Constitution when he 

acted without a search warrant and removed opaque trash bags from 

waste bins set out for collection behind a residence, took possession of the 

trash bags, transported them to a different location, opened the bags, and 

searched through the contents. Accordingly, we conditionally affirm 

Wright’s convictions and remand this matter for further proceedings. On 
40 

remand, the district court shall hold a hearing on the defendant’s motion 

to suppress evidence without consideration of the evidence and 

information obtained during the trash pulls used to support the warrant 

application. See State v. Veal, 930 N.W.2d 319, 340 (Iowa 2019) 

(conditionally affirming conviction and remanding for further proceedings 

in light of decision); State v. Lilly, 930 N.W.2d 293, 309 (Iowa 2019) (same). 

The district court shall conduct further proceedings as necessary 

contingent upon its ruling on the defendant’s motion to suppress evidence. 

AFFIRMED ON CONDITION AND REMANDED WITH 

DIRECTIONS. 

Oxley and McDermott, JJ., join this opinion, and Appel, J., joins as 

to divisions I, IV(B)–(E), and V. Appel, J., files a special concurrence. 

Christensen, C.J., files a dissenting opinion, in which Waterman and 

Mansfield, JJ., join. Waterman, J., files a dissenting opinion, in which 

Christensen, C.J., and Mansfield, J., join. Mansfield, J., files a dissenting 

opinion, in which Christensen, C.J., and Waterman, J., join. 
41 

#19–0180, State v. Wright 

APPEL, Justice (concurring specially). 

In this case, I join divisions I, IV(B), IV(C), IV(D), IV(E), and V of the 

court’s opinion. In particular, I agree with Justice McDonald’s general 

assertions regarding the fundamental importance of search and seizure 

law to our form of government. I also agree that we are not bound by the 

recent rights-restricting precedents of the United States Supreme Court in 

the area of search and seizure or other constitutional provisions. I further 

agree with Justice McDonald that the reasonableness clause does not 

encompass the radical pragmatism offered in the dissenting opinions. 

And, I agree that a trespass occurred in this case, that the property was 

not abandoned, and that, as a result, a warrant was required under 

article I, section 8 of the Iowa Constitution. In the alternative, the actions 

of the officers violated reasonable expectations of privacy, thereby 

triggering the protections of article I, section 8 of the Iowa Constitution. 

But I disagree with aspects of Justice McDonald’s opinion. Although 

I have a healthy respect for constitutional history and have explored it in 

some depth in the search and seizure context, see, e.g., State v. Ochoa, 

792 N.W.2d 260, 264–87 (Iowa 2010), I am not what is generally loosely 

referred to as an originalist. The law is never static. It always evolves. 

And the founders certainly believed that to be the case. 

And, in the context of search and seizure, Justice Brandeis got it 

right in his ultimately adopted dissent in Olmstead v. United States, when 

he urged the Court to view constitutional law as more than simple 

historical application of common law traditions in light of modern 

innovations like the telephone. 277 U.S. 438, 472–76, 48 S. Ct. 564, 570–

71 (1928) (Brandeis, J., dissenting). It makes no sense to try to figure out 

what the founders would have thought about eavesdropping, a heat-
42 

measuring device that penetrates the home, or a GPS device slapped onto 

a vehicle. Instead, our task is to identify the larger constitutional 

principles at stake, trace their evolution through decades of experience, 

and apply them in the present context based on contemporary realities. 

Finally, as I have stated many times, the best reading of the 

relationship between the reasonability clause and the warrant clause in 

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

Amendment to the United States Constitution is the warrant-preference 

approach that appeared for decades in the United States Supreme Court 

cases until abandoned by modern pragmatists. The touchstone of the 

Fourth Amendment generally is not the reasonableness clause, but 

instead, is the warrant clause. The general rule, absent certain narrow 

and well-recognized exceptions, is that before law enforcement may engage 

in search or seizure of a person, papers, or effects, a warrant must be 

obtained describing with particularity the basis for probable cause, the 

person or places to be searched, and the scope of the search. 

Here are some details. 

I. The Critical Role of Search and Seizure Law in Maintaining a 

Democratic Government. 

Although often forgotten or simply ignored, the controversy involving 

search and seizure was at the heart of the American Revolution. The raw 

power of the government to engage in general searches and seizures was 

not a footnote to history but was a chapter title. Although modern radical 

pragmatists have forgotten it, the use of writs of assistance and general 

warrants were absolute anathema to the Revolutionary generation. 

General searches were recognized as opening the door to abuses, and 

abuses there were. 
43 

Of course, arbitrary search and seizure dragged innocent people 

through the wringer. But there was also larger harm that arose from the 

general authority to search and seize. General authority to search not only 

has the potential to harass the population generally, but it permits the 

government to act in an unequal and arbitrary manner against groups or 

types of persons. General authority to search and seize permits 

government authorities to focus the powerful machinery of law 

enforcement on political opponents, as in Wilkes v. Wood (1763) 98 Eng. 

Rep. 489, or upon some other element of the population that is disfavored 

or deemed suspicious. The need to cabin such arbitrary action gave rise 

to the warrant requirement in which the government is required to show 

probable cause and as history developed, obtain a warrant from a neutral 

magistrate. 

More recently, the events of the 1930s in central Europe reinforced 

for all the importance of limitations on the government’s search and 

seizure powers. These events had a particular impact on Justice Robert 

Jackson, who served as chief prosecutor at Nuremberg, and Justice Felix 

Frankfurter, born in Austria and of Jewish lineage. They recognized that 

a government that is free to conduct searches and seizures at any time of 

day or night for any reason, including political beliefs or ethnic 

characteristics, is an authoritarian government. 

There is an ample supply of court opinions emphasizing the role of 

search and seizure limitations. Justice McDonald cites some of them. 

There are many others. Early on, we recognized that the search and 

seizure limitations of the Iowa Constitution were to be approached “in a 

broad and liberal spirit.” State v. Height, 117 Iowa 650, 657, 91 N.W. 935, 

937 (1902). In its first major Fourth Amendment case, the United States 

Supreme Court urged “constitutional provisions for the security of person 
44 

and property should be liberally construed,” cautioned that 

unconstitutional practices arise from “slight deviations from legal modes 

of procedure,” and observed that “[i]t is the duty of courts to be watchful 

for the constitutional rights of the citizen, and against any stealthy 

encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635, 6 

S. Ct. 524, 535 (1886). And traditional search and seizure cases 

emphasize that concerns about efficiency cannot defeat search and seizure 

protections. Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414 

(1978) (“[T]he mere fact that law enforcement may be made more efficient 

can never by itself justify disregard of [constitutional search and seizure 

requirements].”). 

But what is striking is not the cornucopia of powerful expressions 

of the role of search and seizure limitations, but their absence in the 

dissenting opinions, and unfortunately, in many of the recent rightsrestricting search and seizure decisions of the United States Supreme 

Court and this court. The term Justice Stevens used for this phenomenon 

is “constitutional amnesia.” United States v. Leon, 468 U.S. 897, 972, 104 

S. Ct. 3430, 3452 (1984) (Stevens, J., dissenting). But without a general 

understanding of the purpose of a constitutional provision and its 

historical roots, a judicial opinion becomes a color matching race to the 

finish without context and substance. 

II. Authority to Depart from Federal Precedent.6

Although in the early years the federal government was regarded as 

something of an irrelevant backwater compared to sophisticated and 

experienced state governments, in recent years, there seems to be a 

 

6For more expansive views on the subject see State v. Short, 51 N.W.2d 474, 481–

95 (Iowa 2014); State v. Baldon, 829 N.W.2d 785, 803–34 (Iowa 2013) (Appel, J., specially 

concurring); and Ochoa, 792 N.W.2d at 264–67. 
45 

fascination, in some quarters, of all things federal. Fascination with 

federal court constitutional limitations. Fascination with federal rules. 

Fascination with the federal doctrine on just about anything, regardless of 

context. Law students flock to the federal courts class and avoid the 

course on state and local government. 

This fascination with all things federal by state courts would have 

certainly left the founding generation speechless, if not breathless. The 

very purpose of the federal system was to preserve the autonomy of the 

states, with the federal government playing a limited role in national 

political life. Not only was uniformity between state and federal 

government not desired, the structure of the government was intentionally 

designed to prevent it by giving states wide autonomy over most aspects 

of public life. The proposition that state supreme courts should generally 

follow precedent of the United States Supreme Court would not have 

commanded support at the United States Constitutional Convention7 and 

was clearly condemned by the Iowa constitutional generation’s reaction to 

federal caselaw regarding slavery at the Iowa Constitutional Convention of 

1857 and in the general assembly’s response to the Dred Scott v. Sandford, 

60 U.S. (19 How.) 393 (1857), decision issued shortly after the convention 

adjourned.8 

 

7United States Constitutional Convention delegate “Oliver Ellsworth, who would 

one day become Chief Justice of the United States Supreme Court, declared that ‘he 

turned his eyes’ to the state governments ‘for the preservation of his rights.’ ” Paul 

Finkelman & Stephen E. Gottlieb, Introduction to Toward a Usable Past: Liberty Under 

State Constitutions 1, 4 (Paul Finkelman & Stephen E. Gottlieb eds., 1991). 

8At the Iowa Constitutional Convention of 1857 it was widely recognized that 

provisions of the Iowa Constitution conflicted with decisions of federal courts. That did 

not bother the members of the convention. Regarding the possibility of conflict between 

the right to counsel provision and judicial holdings under the Federal Fugitive Slave Act, 

James F. Wilson noted, “Gentlemen may say that it will bring about a conflict between 

the courts of the United States and the courts of this State. Let that conflict come . . . .” 

2 The Debates of the Constitutional Convention of the State of Iowa 739 (W. Blair Lord rep., 

1857), https://www.statelibraryofiowa.org/services/collections/law-library/iaconst. 
46 

There is only one reason to follow federal precedent on a matter of 

state law, namely, when it is persuasive on the merits, period. Ochoa, 792 

N.W.2d at 267. We look to the quality of the reasoning, not the pedigree 

of the court, in considering the impact of caselaw from other jurisdictions. 

Id. 

Some may view it desirable to tip the scales of Iowa caselaw in the 

direction of the recent rights-restricting cases of the United States 

Supreme Court. Upon this view, the dramatic recent rights-restricting 

trends in the federal caselaw may be imported into Iowa law. By giving a 

preference or presumption to federal law generally, one can dramatically 

move state law in an across-the-board, rights-restricting direction. A 

federal rights-restricting thumb is placed on the scale of all state 

constitutional cases. As noted by Professor Adrian Vermeule, such an 

approach amounts to “a ‘precommitment device’ that prevents a state 

supreme court from considering each case based on an independent 

examination of facts and law.” State v. Short, 851 N.W.2d 474, 487 (Iowa 

2014) (quoting Adrian Vermeule, The Judicial Power in the State (and 

Federal) Courts, 2000 Sup. Ct. Rev. 357, 366). 

But we have a constitutional responsibility to think for ourselves. 

Our famous civil rights cases were not clones of federal court precedent. 

 

Similarly, George Ells, a leading figure at the convention, told delegates, “I regard the 

Fugitive Slave Law as unconstitutional, because it does not give to man the right to defend 

his life and liberty by ‘due process of law.’ ” 1 id. at 101. He later told the convention, “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. at 102. These views, of course, were completely contrary to the pro-slaverydominated United States Supreme Court. Compare id. at 101–02, and 2 id. at 739, with 

Dred Scott, 60 U.S. (19 How.) at 404, 452–53, superseded by constitutional amendment, 

U.S. Const. Amend. XIII. The Iowa General Assembly wasted no time responding to Dred 

Scott, declaring that it was obligated to “promptly and sternly denounce this new doctrine, 

which if established, degrades the free States.” 1858 Iowa Acts Res. 12, at 433. 
47 

When the United States Supreme Court decided Plessy v. Ferguson, 163 

U.S. 537, 16 S. Ct. 1138 (1896), we did not scamper back from our rightsaffirming rulings in Clark v. Board of Directors, 24 Iowa 266 (1868), and 

Coger v. Northwestern Union Packet Co., 37 Iowa 145 (1873), as a chastised 

inferior tribunal. This court has not been, and should not aspire to be, 

the United States Court of Appeals for the Twelfth Circuit. 

The second reason for cutting and pasting federal precedent into 

state caselaw, rarely articulated but often at work, is efficiency. State 

courts are, of course, overburdened, and the resources available to the 

average state court judge, in Iowa and in many states, pales in comparison 

to the federal judiciary. The parties’ briefings on state constitutional 

issues are often less than thorough. It is easy to simply grab a flying 

federal case asteroid, drop the smoldering object into our opinion book, 

close it quickly to cut off any legal oxygen that might cause a flare-up, and 

go home for supper. But the Iowa courts are an independent state 

judiciary operating under an independent state constitution. 

From an analytical perspective, these issues are well settled. There 

is a large scholarship supporting these views which we have canvassed in 

some detail. See Short, 851 N.W.2d at 481–95; State v. Baldon, 829 

N.W.2d 785, 803–34 (Iowa 2013) (Appel, J., specially concurring); Ochoa, 

792 N.W.2d at 264–67. Writing in 1998, a leading authority declared that 

“the legitimacy of rel[ying] on state constitutional guarantees . . . has 

largely been put to rest.” G. Alan Tarr, Understanding State Constitutions

169 (1998). A recent book by Judge Jeff Sutton demolished the argument 

that state courts should simply follow federal law. Jeffrey S. Sutton, 51 

Imperfect Solutions: States and the Making of American Constitutional Law

(2018). Yet, at least some of our recent cases in my view tend to follow 

federal caselaw uncritically as if it were some kind of special authority. 
48 

See, e.g., State v. McGee, ___ N.W.2d ___, ___ (Iowa 2021); State v. Warren, 

955 N.W.2d 848, 859 (Iowa 2021); State v. Brown, 930 N.W.2d 840, 846–

47 (Iowa 2019). “Old habits die hard.” A.E. Dick Howard, Introduction to 

Developments in State Constitutional Law XI, XXII (Bradley D. McGraw ed., 

1985). 

III. Departure from Federal Precedent. 

Having demonstrated our independent authority, I now briefly 

review what I regard as the unsatisfactory approach to search and seizure 

matters by the United States Supreme Court. In my view, more than a few 

of them are off the mark. Until very recently, the Supreme Court has 

tended to embrace rights-restricting radical pragmatism, where the 

perceived needs of law enforcement are consistently permitted to 

overwhelm the libertarian principles behind search and seizure law. I offer 

a nonexclusive parade of examples to illustrate my point. 

In United States v. Leon, the Supreme Court discovered a “goodfaith” exception to the exclusionary rule for search and seizure cases. 468 

U.S. at 920–21, 104 S. Ct. at 3419 (majority opinion). The decision 

promised to undermine enforcement of search and seizure protections in 

federal courts. In State v. Cline, we rejected the good-faith exception as 

developed in Leon. 617 N.W.2d 277, 288–93 (Iowa 2000) (en banc). We 

found that in Iowa the exclusionary rule was not only designed to deter 

police misconduct but also to provide a remedy for constitutional 

violations and to ensure the integrity of our state courts by refusing to 

admit into the record illegally obtained evidence. Id. at 289–90. A majority 

of state courts that have considered Leon have also rejected it,9 leading 

 

9See Short, 851 N.W.2d at 503 (citing cases). 
49 

commentators to speculate that perhaps the United States Supreme Court 

would overrule Leon. 

In Samson v. California, the United States Supreme Court departed 

from its prior precedent by creating a categorical exception that permitted 

warrantless searches of parolees. 547 U.S. 843, 850–57, 126 S. Ct. 2193, 

2198–2202 (2006). The new Fourth Amendment doctrine dramatically 

and substantially undercut the traditional warrant requirement, probable 

cause, and particularity requirements of search and seizure law. See 

Short, 851 N.W.2d at 500. This departure from past precedent was 

contrary to State v. Cullison, where we held that a parolee did not 

surrender search and seizure protections. 173 N.W.2d 533, 537, 539–40 

(Iowa 1970). In Cullison, we rejected pragmatic arguments to undermine 

traditional search and seizure law as “socio-juristic rationalization.” Id. at 

536. A leading Fourth Amendment scholar, Wayne LaFave, found Samson 

unpersuasive, noting its use of a general reasonability analysis “especially 

troublesome.” See 5 Wayne R. LaFave, Search and Seizure: A Treatise on 

the Fourth Amendment § 10.10, at 541 (6th ed. 2020). We agreed, stating 

that “[w]e bristle at the replacement of a regime of individualized suspicion 

with broad categorical judgments when general law enforcement searches 

of the home are involved.” Ochoa, 792 N.W.2d at 289. 

In Schneckloth v. Bustamonte, the United States Supreme Court 

developed a multifactor test to determine whether a person consents to a 

search. 412 U.S. 218, 227, 93 S. Ct. 2041, 2048 (1973). Schneckloth does 

not require the state to show a knowing and voluntary waiver of search 

and seizure rights under Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 

1019, 1023 (1938), but instead permits consideration of factors not related 

to the consent issue at all, which does not make any sense except to permit 

searches or seizures that are not knowing and voluntary and not 
50 

supported by a warrant. And, how do you meaningfully consent to waiving 

a right that you are not aware you have? In Schneckloth, the naked 

assertion was made that providing explicit warnings would be “thoroughly 

impractical.” 412 U.S. at 231, 93 S. Ct. at 2050. Subsequent practice, 

however, shows that not to be the case at all. See Matthew Phillips, Note, 

Effective Warnings Before Consent Searches: Practical, Necessary, and 

Desirable, 45 Am. Crim. L. Rev. 1185, 1197–1206 (2008) (citing New Jersey 

requirement of giving warnings in any routine traffic stop prior to seeking 

consent to search). Although we have not explicitly required that a police 

officer inform a person of his or her right to decline to provide consent, we 

have stated that the failure to make such a disclosure is an important fact 

in the “consent” analysis. State v. Pals, 805 N.W.2d 767, 783 (2011). 

The result in Atwater v. City of Lago Vista is something of a shocker. 

532 U.S. 318, 354–55, 121 S. Ct. 1536, 1557–58 (2001). There, a mother 

driving with her two young children was arrested and jailed after a traffic 

offense where no jail time could be imposed. Id. at 323–24, 121 S. Ct. at 

1541–42. How can that be? Justice O’Connor’s dissent in Atwater has 

been widely praised and should be read and reread by those seriously 

concerned about search and seizure law. Id. at 361, 121 S. Ct. at 1536 

(O’Connor, J., dissenting). See generally Wayne A. Logan, Reasonableness 

as a Rule: A Paean to Justice O’Connor’s Dissent in Atwater v. City of Lago 

Vista, 79 Miss. L.J. 115 (2009) (praising Justice O’Connor’s dissent “for its 

steadfast fidelity to Fourth Amendment reasonableness and its astute 

recognition of the personal and jurisprudential consequences of its 

abandonment”). 

The notion that search and seizure protections do not extend to 

financial records in the hands of third parties, as declared in United States 

v. Miller, 425 U.S. 435, 440–44, 96 S. Ct. 1619, 1622–24 (1976), strikes 
51 

me as doubtful in the modern context. John Adams kept his financial 

records in a roll-top desk on his farm and therefore the records were 

protected from unwarranted search. But in modern life, John Adams 

would have the very same information in records in a financial institution. 

Shouldn’t the identical information stored according to modern practices 

be entitled to the same protection? Fortunately, it seems that the United 

States Supreme Court is beginning to backtrack on the third-party 

doctrine. See Carpenter v. United States, 585 U.S. ___, ___, 138 S. Ct. 

2206, 2216–20 (2018). As noted by Justice Sotomayor in United States v.

Jones, it may be time to reconsider Miller. 565 U.S. 400, 417, 132 S. Ct. 

945, 957 (2012) (Sotomayor, J., concurring) (noting that the Miller

“approach is ill suited to the digital age, in which people reveal a great deal 

of information about themselves to third parties in the course of carrying 

out mundane tasks”). 

In Whren v. United States, the United States Supreme Court 

expressly permitted law enforcement officers to engage in pretextual traffic 

stops. 517 U.S. 806, 811–13, 116 S. Ct. 1769, 1773–74 (1996). Whren

failed to recognize, among other things, that discriminatory application of 

search and seizure powers of the state was one of the fundamental 

purposes of the Fourth Amendment. For me, this was an unwelcome 

development of federal search and seizure law that leaked into Iowa law 

under the Iowa Constitution. See Brown, 930 N.W.2d at 873–76 (Appel, 

J., dissenting). 

In New York v. Belton, the United States Supreme Court held that 

law enforcement as part of a search incident to arrest could look inside 

closed containers as part of a vehicle search. 453 U.S. 454, 459–61, 101 

S. Ct. 2860, 2864 (1981). This was so even though the person arrested 

did not have access to the container and thus there was no risk of 
52 

destruction of evidence nor any question of safety of the officers. Id. at 

456, 101 S. Ct. at 2862. Many state courts howled. So did we. State v. 

Gaskins, 866 N.W.2d 1, 9–13 (Iowa 2015); State v. Vance, 790 N.W.2d 775, 

786–90 (Iowa 2010). Justice Scalia noted that the Supreme Court caselaw 

assumed that the arrested person had “the skill of Houdini and the 

strength of Hercules.” Thornton v. United States, 541 U.S. 615, 626, 124 

S. Ct. 2127, 2134 (2004) (Scalia, J., concurring in the judgment) (quoting 

United States v. Frick, 490 F.2d 666, 673 (5th Cir. 1973) (Goldberg, J., 

concurring in part and dissenting in part)). Citing state court decisions 

refusing to follow Belton, the United States Supreme Court backtracked, 

to a large extent, in Arizona v. Gant. 556 U.S. 332, 343, 129 S. Ct. 1710, 

1719 (2009). The retreat was certainly stimulated by the growing body of 

negative state court response to Belton. 

In a line of three cases, the United States Supreme Court reversed 

state supreme court decisions extending traditional search and seizure 

protections to inventory searches of automobiles, see Colorado v. Bertine, 

479 U.S. 367, 376, 107 S. Ct. 738, 743 (1987); Illinois v. Lafayette, 462 

U.S. 640, 648–49, 103 S. Ct. 2605, 2611 (1983); South Dakota v. 

Opperman, 428 U.S. 364, 376, 96 S. Ct. 3092, 3100 (1976). In considering 

the approach of the United States Supreme Court on inventory searches, 

we noted the cumulative impact of its decisions in Whren, Atwater, and 

Bertine was 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.” State v. 

Ingram, 914 N.W.2d 794, 814 (Iowa 2018). We noted that “[a]n essentially 

unregulated legal framework allowing wide police discretion in stopping, 

arresting, and conducting warrantless inventory searches of the driver’s 
53 

automobile amounts to a general warrant regime that is anathema to 

search and seizure law.” Id. at 815. 

Finally, there is the evisceration of the warrant requirement in 

Mitchell v. Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2535–39 (2019). 

Under Mitchell, administrative efficiency now is the driving force behind 

the determination of whether the warrant requirement applies. See id. 

And, as in Samson, the Supreme Court utilized an overbroad categorical 

approach to remove cases from the warrant requirement even though it 

was not impractical to obtain a warrant. See McGee, ___ N.W.2d at ___ 

(Appel, J., dissenting). 

In sum, as the above cases illustrate, the recent rights-restrictive 

cases of the United States Supreme Court have seriously undermined the 

traditional protections of search and seizure. If we are to give article I, 

section 8 of the Iowa Constitution the “broad and liberal” construction 

commanded by our precedent, State v. Height, 117 Iowa at 657, 91 N.W. 

at 937, many of the United States Supreme Court cases simply cannot be 

relied upon as a sound basis for Iowa constitutional law. There is, 

perhaps, some reason to believe that the warrant requirement may be 

making a comeback in the United States Supreme Court, at least in some 

contexts. See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2216–20. We need 

not await these perhaps mercurial strands in a couple of United States 

Supreme Court cases, however, but should simply stay the course with 

the development of our robust and independent state search and seizure 

law. 

IV. Benefits of History, but Shortcomings of Originalism.

I also wish to briefly comment on methodology. Historical 

understanding of the development of search and seizure law helps inform 

our analysis of current problems. In several cases, we canvassed at length 
54 

the historic origins of search and seizure law. See Baldon, 829 N.W.2d at 

803–34; Ochoa, 792 N.W.2d at 269–73. 

But while historical inquiry can inform us about the general purpose 

of a constitutional provision or about the historic concerns that gave rise 

to open-ended constitutional language, it does not provide us, standing 

alone, with inevitable answers. History is not granular, and it rarely points 

only in one direction. Even if historical truths can be discovered by judges 

writing opinions in a matter of weeks (and, alas, sometimes days), the 

historical truths are very difficult even for trained historians to discover 

and are often inconsistent and contradictory. And, historical cherrypicking can be a tool to hide preferences and biases behind a veneer of 

objectivity. At most, and when best used, history informs and shapes the 

inquiry but does not demand results in cases presenting fact situations or 

modern technology that the founders could not possibly have anticipated. 

In addition to history, consideration must be given to the evolving 

precedent interpreting open-ended constitutional provisions and to 

contemporary contexts and public attitudes. 

We also should avoid search and seizure formalism. While a 

trespass may give rise to search and seizure protections, nontrespassory 

acts that uncover intimate information may be equally protected from 

arbitrary search and seizure. Jones, 565 U.S. at 414, 132 S. Ct. at 954–

55. In other words, the government’s physical intrusion may be important 

in some cases, but there are many kinds of surveillance and intrusions 

that do not involve trespass that are entitled to protection against 

warrantless government invasion. Id. Even without a trespass, 

“unrestrained power to assemble data that reveal private aspects of 

identity is susceptible to abuse . . . [and] may ‘alter the relationship 

between citizen and government in a way that is inimical to democratic 
55 

society.’ ” Id. at 416, 132 S. Ct. at 956 (quoting United States v. CuevasPerez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)). 

Particularly in the area of search and seizure, there have been 

technological developments that simply could not have been anticipated 

by the founders. History may not be determinative in these contexts, nor 

can the formalism of property law, in and of itself, be sufficient. That point 

was made by Justice Brandeis in his dissent in Olmstead, 277 U.S. 438, 

48 S. Ct. 564, and later embraced by the United States Supreme Court in 

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). But even so, it 

is clear that the property rights theory which relies, to some extent, on 

historical patterns was not entirely abandoned by Katz; but instead, Katz’s 

“reasonable expectation of privacy” was grafted onto existing doctrine to 

ensure robust search and seizure protections. The Katz “reasonable 

expectation of privacy” doctrine, however, seemed to engulf prior concepts 

limiting the government’s authority to search and seize. Further, although 

Katz was seen at the beginning as a tool to expand search and seizure 

protections, narrow interpretations of the pliable term “reasonable” often 

produced contrary results. In any event, I regard the protections afforded 

by search and seizure law to be expansive and broad enough to include 

evolving concepts of property, privacy, and security. See Ochoa, 792 

N.W.2d at 276–78 (discussing interest of security as well as property and 

privacy in search and seizure law).

V. Constitutionality of Trash Pulls in This Case.

I have little trouble concurring with the result in this case. For the 

reasons explained by Justice McDonald, the trash pull was clearly a 

search. There are two reasons for this. First, as Justice McDonald 

explains, the search was accomplished by trespass. In my view, a trespass 

may not be required to offend search and seizure principles, but where a 
56 

trespass does occur, the government must either get a warrant or be able 

to meet its burden of showing an exception to the warrant requirement. 

Second, as Justice McDonald also notes, applying the formulation in Katz, 

Wright had a legitimate expectation of privacy in his trash. This is a beltand-suspenders case. 

At this point, then, the warrant requirement becomes applicable 

unless there is an exception to it. See, e.g., Ingram, 914 N.W.2d at 816 

(“Our recent cases repeatedly embrace what can only be characterized as 

a strong warrant preference interpretation of article I, section 8.”); State v. 

Coleman, 890 N.W.2d 284, 286 (Iowa 2017) (articulating warrant 

preference); 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))); Baldon, 829 N.W.2d at 791 (majority 

opinion) (“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.”); State v. Strong, 493 N.W.2d 834, 

836 (Iowa 1992) (“Warrantless searches and seizures are by definition 

invalid unless they fall under one of the jealously and carefully drawn 

exceptions to constitutional warrant requirements.”); State v. Sanders, 312 

N.W.2d 534, 538 (Iowa 1981) (“Ordinarily a search and a resulting seizure 

of private property ‘must be both reasonable and performed pursuant to a 

properly executed warrant.’ ” (quoting State v. Holderness, 301 N.W.2d 

733, 736 (Iowa 1981))). No one suggests that such an exception is present 

in this case. As a result, I join the court in concluding that the 

unwarranted search is unlawful under article I, section 8 of the Iowa 

Constitution and the evidence obtained from the search must be 

suppressed. 
57 

#19/0180, State v. Wright

CHRISTENSEN, Chief Justice (dissenting).

I respectfully dissent and join the separate dissents of Justice 

Waterman and Justice Mansfield. I would affirm the district court 

judgment. The majority buries the lede in waiting until the last portion of 

its opinion to announce the most consequential portion of its ruling, which 

is that police are apparently now prohibited from utilizing any “means or 

methods of general criminal investigation that are unlawful, tortious, or 

otherwise prohibited” if those means or methods “would be unlawful for a 

similarly situated private actor to perform.” I wish our state law 

enforcement officials the best of luck in trying to decipher what methods 

of criminal investigation and exceptions to the warrant requirement are 

now available to them in light of that conclusion. 

In my opinion, the Iowa Constitution does not provide greater 

protections than the Fourth Amendment to the United States Constitution 

for the warrantless search of garbage set out for collection in a publicly 

accessible area such that the defendant had a reasonable expectation of 

privacy in his garbage. Additionally, the defendant’s garbage is not a 

constitutionally protected “effect” under the Federal and State 

Constitutions, so I cannot conclude the officer violated Wright’s search and 

seizure protections by retrieving Wright’s garbage. 

I. The Parties’ Actual Arguments on Appeal.

Wright’s argument is twofold. First, Wright asks us to interpret 

article I, section 8 of the Iowa Constitution to provide greater protections 

than the Fourth Amendment in garbage set out for collection in a publicly 

accessible area based on his belief that Iowans have an objectively 

reasonable expectation of privacy in garbage set out for collection in a 

publicly accessible area. Second, Wright maintains Officer Heinz’s 
58 

warrantless search of the garbage violated the Fourth Amendment to the 

United States Constitution and article I, section 8 of the Iowa Constitution 

regardless of any privacy expectation because Officer Heinz trespassed on 

Wright’s personal “effects” to obtain information. 

In the past decade alone, our court has had no shortage of cases 

examining whether we should depart from the United States Supreme 

Court’s Fourth Amendment precedent to provide Iowans with greater 

search and seizure protections under article I, section 8 of the Iowa 

Constitution in various contexts. See, e.g., State v. Brown, 930 N.W.2d 

840, 846–54 (Iowa 2019); State v. Gaskins, 866 N.W.2d 1, 6–16 (Iowa 2015); 

State v. Short, 851 N.W.2d 474, 481–507 (Iowa 2014). In those cases, we 

considered an array of nonexclusive factors in deciding whether to depart 

from federal precedent, such as the text of the Iowa Constitution; the 

history of our state constitutional provision; the structural differences in 

the State and Federal Constitutions; related decisions of other states, 

especially when interpreting similar constitutional text; and the practical 

consequences of departure. See, e.g., Brown, 930 N.W.2d at 846–54 

(examining evidence from the debates over the Iowa Constitution, the scope 

of our State and Federal Constitutions and relevant precedent involving 

them, the practical issues in departing from the Federal Constitution, and 

related precedent from other states in declining to depart from the Fourth 

Amendment regarding the relevance of an officer’s motivations for stopping 

motorists); Gaskins, 866 N.W.2d at 6–16 (same in the context of vehicle 

search incident to arrest); Short, 851 N.W.2d at 481–507 (same in the 

context of home search of probationer based on reasonable suspicion of 

criminal activity). Meanwhile, Wright does not discuss any of those 

considerations. 
59 

Instead, Wright’s argument about privacy expectations relies 

exclusively on the City of Clear Lake’s ordinances regulating waste 

management. Specifically, Wright’s argument in the section of his brief 

advocating for departure from the federal precedent in California v.

Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988), spans the following few 

sentences: 

Not only was there a trespass on the containers to search for 

information, but Appellant, like so many other Iowans across 

the state, has an objectively reasonable expectation of privacy 

codified by municipal code. It is against the law in Clear Lake, 

Iowa for any person to scavenge garbage, which completely 

undermines the rationale in Greenwood that garbage is 

knowingly exposed to “children, scavengers, snoops and other 

members of the public.” Under these ordinances, the contents 

of an individual’s garbage inside the container remain private. 

Appellant can expect the privacy of his garbage will be 

maintained up to the point where the licensed collector 

physically takes possession of his garbage bags. 

It is important to note what Wright did not argue in his brief. Wright’s 

brief never so much as cited Carpenter v. United States, 585 U.S. ___, 138 

S. Ct. 2206 (2018), despite the majority’s reliance upon it, let alone argued 

that it formed a basis for rejecting Greenwood. Understandably, the State 

did not discuss or even cite Carpenter because it was under the impression 

that it was fighting the case on other issues. Instead of asking us to 

overrule the Iowa precedent following Greenwood, Wright’s brief asks us to 

depart from it under the Iowa Constitution based on ordinances regulating 

waste management. This is a substantially different argument than asking 

us to disregard Greenwood because it is no longer the controlling Supreme 

Court precedent on this issue. “[W]e do not create issues or unnecessarily 

overturn existing law sua sponte when the parties have not advocated for 

such a change.” Feld v. Borkowski, 790 N.W.2d 72, 78 n.4 (Iowa 2010). 
60 

Nor do we address arguments raised for the first time on appeal, see 

State v. Derby, 800 N.W.2d 52, 60 (Iowa 2011), but that is what the majority 

does in declaring, “an officer acts unreasonably when, without a warrant, 

the officer . . . uses means or methods of general criminal investigation that 

are unlawful, tortious, or otherwise prohibited.” Although Wright cites 

Clear Lake ordinance 30.08 in his appellate brief, which states, “The Police 

Chief shall establish such rules, not in conflict with the Code of 

Ordinances, and subject to the approval of the Council, as may be 

necessary for the operation of the department,” he never presented this 

ordinance or argument in support of his claim before the district court. 

Clear Lake, Iowa, Code of Ordinances § 30.08 (2003). Thus, he failed to 

preserve it for our review. Derby, 800 N.W.2d at 60. Nonetheless, as I will 

discuss later, police have privileges at their disposal to carry out their 

duties that ordinary citizens lack. See, e.g., State v. Lloyd, 513 N.W.2d 

742, 745 (Iowa 1994) (discussing means police officers have to arrest an 

individual that private citizens lack, including the ability of police to engage 

“in the dangerous pursuit of other vehicles” that might violate traffic laws). 

That Officer Heinz’s actions may have violated or conflicted with a city 

ordinance does not automatically render his actions illegal, let alone a 

violation of Wright’s constitutional rights. 

Although Carpenter was discussed during oral argument through 

questioning from members of our court, “we do not consider issues raised 

for the first time in oral argument.” Dilley v. City of Des Moines, 247 N.W.2d 

187, 195 (Iowa 1976) (en banc); see also Principal Mut. Life Ins. v. Charter 

Barclay Hosp., Inc., 81 F.3d 53, 56 (7th Cir. 1996) (noting that it “would 

not be quite cricket” to decide a case on a ground that had not been raised 

at all before oral argument of the appeal). In any event, Wright’s counsel 

was not the one to invoke Carpenter. Rather, Justice Appel precipitated 
61 

the discussion on this unbriefed argument, and he did so only in 

questioning the State. It was clear from the oral argument that the State 

was justifiably caught off guard and ill-prepared to address Justice Appel’s 

approach, and the State was unfairly deprived of its ability to properly brief 

and argue this case due to the majority’s decision to depart from the 

arguments presented on appeal. Similarly, Justice McDonald initiated the 

discussion on Wright’s unpreserved argument about the ability of police 

officers to engage in actions that exceed the ability of private citizens (or in 

the words of his majority opinion, the ability of the police to use “means or 

methods of general criminal investigation that are unlawful, tortious, or 

otherwise prohibited”), and this, too, was only in questioning the State. 

Consequently, the majority’s analysis is almost entirely its own without 

regard for the parties’ actual arguments. 

“[T]he adversary process functions most effectively when we rely on 

the initiative of lawyers, rather than the activism of judges, to fashion the 

questions for review.” New Jersey v. T.L.O., 468 U.S. 1214, 1216, 104 S. 

Ct. 3583, 3585 (1984) (Stevens, J., dissenting) (emphasis added). “Our law 

clerks and judges should not be doing the work of counsel . . . . We are not 

advocates and should not usurp a party’s strategy.” King v. State, 818 

N.W.2d 1, 48 (Iowa 2012) (Wiggins, J., dissenting) (citation omitted); see 

also United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996) (noting it 

is “not a sound practice” for the court and its law clerks or staff attorneys 

to flag issues the defendant could have raised but did not). Luckily for 

Wright, his strategy did not matter because the majority was willing to 

make the arguments that he did not make. Given the majority’s generosity 

and willingness to make arguments not briefed or preserved, I fail to see 

how members of the majority can continue to assert in criminal cases that 

defendants have “waived” state constitutional arguments on appeal under 
62 

the rationale that those defendants did not cite authority or adequately 

brief the issue. See State v. Gibbs, 941 N.W.2d 888, 902 (Iowa 2020) 

(McDonald, J., concurring specially in the judgment, joined by Oxley, J.) 

(“In this case, Gibbs waived his argument arising under the Iowa 

Constitution. The entirety of the defendant’s argument in support of his 

state constitutional claim is two sentences. . . . While Gibbs identified a 

state constitutional claim, he did not make more than a perfunctory 

argument in support of the state constitutional claim, and he did not cite 

any authority in support of his state constitutional claim. Gibbs’s 

perfunctory argument without citation to any authority constitutes waiver 

of his state constitutional claim.”). 

The public has criticized this court for reaching out and 

deciding issues not raised or briefed on appeal. This is another 

case for the critics to add to their list. We cannot have a rule 

of law that we reach out and decide an issue not briefed or 

pressed by the parties on appeal in order to achieve a desired 

result. 

King, 818 N.W.2d at 48. 

Nevertheless, even if the majority was correct in concluding Wright 

properly argued that Carpenter forms the basis for rejecting Greenwood, I 

would still affirm the district court’s suppression ruling and Wright’s 

subsequent conviction on the merits for the reasons discussed below. 

II. The District Court’s Ruling Should be Affirmed Under 

Existing Iowa and Federal Precedent. 

The majority departs from federal decisions and overturns Iowa 

caselaw adopting those decisions based on various United States Supreme 

Court Justices’ dissenting or concurring opinions. Perhaps the more 

recent shift in the makeup of the Supreme Court over the past few years 

now favors overturning Greenwood, abandoning the Katz test, and 

recognizing constitutional protections for garbage placed in a publicly 
63 

accessible area for collection. But, “each of the Justices on the Carpenter 

Court, including those in the majority and all of the dissenters, has, at 

some point, either authored or joined an opinion critical of Katz, or at least 

conceding the difficulty of applying it[],” yet Katz still served as the 

foundation for the Court’s decision in Carpenter. Nicholas A. Kahn-Fogel, 

Katz, Carpenter, and Classical Conservatism, 29 Cornell J.L. & Pub. Pol’y 

95, 106 (2019). “[N]otwithstanding Justice Thomas’s protestations and 

Justice Gorsuch’s doubts, the Katz standard is, for now, alive and well,” as 

is Greenwood, and it is not for us to decide that is no longer the case simply 

because we think another approach is “better.” Id. at 97 (footnote omitted). 

A. The Expectation of Privacy in Garbage Set Out for Collection 

in a Publicly Accessible Area. The Fourth Amendment to the United 

States Constitution protects individuals from “unreasonable searches and 

seizures” of their “persons, houses, papers, and effects.” U.S. Const. 

amend. IV (“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 . . . .”); 

see also United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 949 

(2012). Similarly, article I, section 8 of the Iowa Constitution protects 

persons against “unreasonable seizures and searches” of “their persons, 

houses, papers and effects.” Iowa Const. art. I, § 8 (“The right of the people 

to be secure in their persons, houses, papers and effects, against 

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

shall issue but on probable cause . . . .”). “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’ ” due to their 

almost identical language while remaining cognizant of our duty to 
64 

interpret the Iowa Constitution independently. Brown, 930 N.W.2d at 847 

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

Although we have not addressed the constitutionality of a 

warrantless search or seizure of garbage left for collection in a publicly 

accessible area, both the United States Supreme Court and the Iowa Court 

of Appeals have done so under similar facts as this case. In Greenwood, a 

police investigator received information that the respondent might be 

engaged in narcotics trafficking, so the investigator asked the 

neighborhood’s regular trash collector to pick up the garbage bags that the 

respondent had left on the curb in front of his home and turn them over to 

her. 486 U.S. at 37, 108 S. Ct. at 1627. The investigator searched 

through the garbage bags, found items in the bags indicative of narcotics 

use, and used the information she gleaned from the garbage search to 

support her application for a search warrant of the respondent’s home that 

led to the respondent’s arrest on felony charges. Id. at 37–38, 108 S. Ct. 

at 1627–28. 

The Supreme Court held the Fourth Amendment did not prohibit the 

warrantless search and seizure of garbage left for collection outside the 

curtilage of a home because “society would not accept as reasonable 

respondents’ claim to an expectation of privacy in trash left for collection 

in an area accessible to the public.” Id. at 41, 108 S. Ct. at 1629. The 

Court explained, “It is common knowledge that plastic garbage bags left on 

or at the side of a public street are readily accessible to animals, children, 

scavengers, snoops, and other members of the public.” Id. at 40, 108 S. Ct. 

at 1628–29 (footnotes omitted). Further, the Court noted the respondent 

had placed his garbage “at the curb for the express purpose of conveying it 

to a third party, the trash collector, who might himself have sorted through” 

it or given it to others to sort. Id. at 40, 108 S. Ct. at 1629. Therefore, the 
65 

Court reasoned, he could not have any reasonable expectation of privacy 

in the garbage left for collection because he had deposited it “in an area 

particularly suited for public inspection and, in a manner of speaking, 

public consumption, for the express purpose of having strangers take it.” 

Id. at 40–41, 108 S. Ct. at 1629 (quoting United States v. Reicherter, 647 

F.2d 397, 399 (3d. Cir. 1981)). Finally, the Court declared that “the police 

cannot reasonably be expected to avert their eyes from evidence of criminal 

activity that could have been observed by any member of the public,” as 

the Fourth Amendment does not protect such activity that a person 

knowingly exposes to the public. Id. at 41, 108 S. Ct. at 1629. 

Similarly, in State v. Henderson, the Iowa Court of Appeals concluded 

the warrantless search and seizure of garbage left outside the defendant’s 

home under markedly similar facts as Greenwood did not violate the Fourth 

Amendment to the United States Constitution or article I, section 8 of the 

Iowa Constitution. 435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988); see also 

State v. Skola, 634 N.W.2d 687, 691 (Iowa Ct. App. 2001) (declining to 

depart from the holdings in Greenwood and Henderson under article I, 

section 8 of the Iowa Constitution). The court of appeals relied on the 

Supreme Court’s rationale, agreeing with the Supreme Court that there 

was no societal understanding that garbage left for collection in an area 

accessible to the public deserved “scrupulous protection from government 

invasion.” Henderson, 435 N.W.2d at 396 (quoting Oliver v. United States, 

466 U.S. 170, 178, 104 S. Ct. 1735, 1741 (1984)). Consequently, the court 

of appeals “determine[d] the use of evidence obtained by searching the 

defendant’s garbage did not intrude upon his legitimate expectation of 

privacy and therefore, was properly considered by the magistrate in issuing 

a search warrant of the defendant’s premises.” Id. at 397. 
66 

In those cases, both the Supreme Court and the court of appeals 

based their conclusions on the reasonable-expectation-of-privacy test 

originally derived from Justice Harlan’s concurrence in Katz v. United 

States, which declared that the Fourth Amendment only protects a person’s 

“reasonable expectation of privacy.” 389 U.S. 347, 360, 88 S. Ct. 507, 516 

(1967) (Harlan, J., concurring); see also Oliver, 466 U.S. at 182–83, 104 

S. Ct. at 1743 (“[T]he correct inquiry [of whether government action violates 

the Fourth Amendment] is whether the government’s intrusion infringes 

upon the personal and societal values protected by the Fourth 

Amendment.”); Greenwood, 486 U.S. at 39, 108 S. Ct. at 1628 (citing Oliver 

v. United States and Justice Harlan’s Katz concurrence for the proposition 

that a warrantless search and seizure of garbage left outside for collection 

would only violate the Fourth Amendment “if respondents manifested a 

subjective expectation of privacy in their garbage that society accepts as 

objectively reasonable”); Henderson, 435 N.W.2d at 396 (noting the test to 

determine whether a government action intrudes upon a person’s 

legitimate expectation of privacy is “whether the government’s intrusion 

infringes upon the personal and societal values protected by the fourth 

amendment” (quoting State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985) (en 

banc))). Under this analysis, Wright must show he had a subjective 

expectation of privacy in the contents of the garbage he left out for 

collection and this expectation of privacy was reasonable. See State v. 

Brooks, 888 N.W.2d 406, 411 (Iowa 2016). 

Our court has continued to use this analysis as part of our two-step 

approach to determine whether there has been a violation of article I, 

section 8 of the Iowa Constitution, which requires the defendant to 

demonstrate a legitimate expectation of privacy in the area searched before 

we can examine whether the search violated the defendant’s rights. See, 
67 

e.g., id. Wright now asks us to depart from those holdings and interpret 

article I, section 8 of the Iowa Constitution to require greater protection 

than the Fourth Amendment to the United States Constitution. 

Particularly, Wright maintains Iowans have an objectively reasonable 

expectation of privacy in their garbage set out for collection in a publicly 

accessible area. 

In his motion to suppress, Wright relied on chapters 105 and 106 of 

the City of Clear Lake ordinances, which govern solid waste control and the 

collection of solid waste, to support his argument that Iowans have a 

reasonable expectation of privacy in the garbage they set out for collection 

in a publicly accessible area. Wright notes these ordinances prohibit 

anyone from scavenging who is not “an authorized solid waste collector,” 

and establish that only solid waste collectors contracted with the city have 

authority to collect garbage from residential premises. See Clear Lake, 

Iowa, Code of Ordinances § 105.11(4); id. § 106.07. Accordingly, Wright 

maintains he, “like so many other Iowans across the state, has an 

objectively reasonable expectation of privacy codified by municipal code” 

by which he “can expect the privacy of his garbage will be maintained up 

to the point where the licensed collector physically takes possession of his 

garbage bags.” I disagree. 

While city ordinances may codify societal expectations of privacy in 

some circumstances, the definitive purpose of the ordinances Wright relies 

on has nothing to do with privacy. Rather, as Clear Lake, Iowa, Code of 

Ordinances section 105.01 proclaims, 

The purpose of the chapters in this Code of Ordinances 

pertaining to Solid Waste Control and Collection is to provide 

for the sanitary storage, collection and disposal of solid waste 

and, thereby, to protect the citizens of the City from such 

hazards to their health, safety and welfare as may result from 

the uncontrolled disposal of solid waste. 
68 

Thus, I have no doubt that the intent of this ordinance was to establish a 

waste management and sanitation system to promote public health and 

cleanliness. The majority expands this purpose by judicial fiat in order to 

establish an expectation of privacy where there is none in ordinance 

chapters focused on public hygiene. We should not “read something into 

the law that is not apparent from the words chosen by the” city council. 

State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017) (quoting State v. Iowa 

Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007)). 

Moreover, Wright’s notion that Iowans have a reasonable expectation 

of privacy in garbage that was left out for collection simply because a city 

ordinance prohibits scavenging or establishes waste collection procedures 

“is totally unrealistic, unreasonable, and in complete disregard of the 

mechanics of its disposal.” United States v. Shelby, 573 F.2d 971, 973 (7th 

Cir. 1978), cert denied, 439 U.S. 841, 99 S. Ct. 132 (1978) (affirming the 

constitutionality of a warrantless search of defendant’s trash that he placed 

in the garbage for collection under the Fourth Amendment). The removal 

of garbage by a waste collection provider who could immediately turn the 

garbage over to the police is no different than removal of the garbage by the 

police themselves. Either way, Wright’s privacy expectation was the same 

when he placed his garbage out for collection because he expressly did so 

to convey it to a third party who could just as easily have sorted through it 

“or permitted others, such as the police, to do so” without any input from 

Wright. Greenwood, 486 U.S. at 40, 108 S. Ct. at 1629. Nothing in the 

record suggests Clear Lake’s contracted waste collection providers or 

sanitation department had any responsibility to protect the privacy of 

Wright’s garbage, let alone “to help him dispose of the evidence of his 

crimes.” Shelby, 573 F.2d at 973. 
69 

“[S]ociety’s experience with trash left at the alley or curb for 

collection” demonstrates there is no objective expectation of privacy in the 

contents of that trash. State v. A Blue in Color, 1993 Chevrolet Pickup, 116 

P.3d 800, 804–05 (Mont. 2005). Organizations like Iowa Legal Aid warn 

individuals that “[d]umpster diving” is a method of identity theft and 

encourage Iowans to “[s]hred financial documents and paperwork with 

personal information before you put them in the trash” as a way to protect 

against identity theft. Iowa Legal Aid, Identity Theft (Mar. 30, 

2011), https://www.iowalegalaid.org/resource/identity-theft-2 

[https://perma.cc/7HDD-HJX7]. As the Delaware Superior Court stated 

in holding no warrant was required to search garbage, 

The media is replete with warnings to people not to put 

personal items in their trash such as bills, receipts, mailers 

from credit card companies, etc., which can be converted to 

forged credit cards, etc. Some of the media coverage and much 

advertising is not only to warn people not to do so but to 

instead shred such documents. This regrettable phenomenon 

over the last few years clearly emphasizes that reasonable 

people must or should have a lessened expectation of privacy 

in their trash. To put it differently, the expectation of privacy 

is no longer reasonable in this situation. 

State v. Ranken, 25 A.3d 845, 860 (Del. Super. Ct. 2010), aff’d sub nom. 

Ranken v. State, No. 718, 2010, 2011 WL 2089603, at *1 (Del. May 24, 

2011) (“[T]he final judgment of the Superior Court should be affirmed on 

the basis of and for the reasons assigned by the Superior Court . . . .”). 

The conclusion that the city’s ordinances regulating waste 

management do not create an objectively reasonable expectation of privacy 

is supported by a plethora of other states that have similarly examined the 

impact of city ordinances regulating waste management on the privacy 

interests of garbage set out for collection.10 For instance, the 

 

10See, e.g., Rikard v. State, 123 S.W.3d 114, 120–21 (Ark. 2003) (rejecting 

appellants’ claim that city ordinances regulating waste management and prohibiting 
70 

Massachusetts Supreme Judicial Court rejected a defendant’s claim that 

an “ordinance allow[ing] only licensed trash collectors to transport garbage” 

established a reasonable expectation of privacy in garbage. Commonwealth 

v. Pratt, 555 N.E.2d 559, 567 (Mass. 1990). It reasoned that “licensed 

collectors may have rummaged through the defendant’s garbage 

themselves” and “once the defendant knew that the garbage would be 

picked up by licensed collectors and deposited at the local landfill, he 

should have known that others could gain access to the garbage.” Id. 

The Arkansas Supreme Court rejected a defendant’s claim that city 

ordinances prohibiting scavenging and disturbing the contents of 

containers established a reasonable expectation of privacy in garbage. 

Rikard v. State, 123 S.W.3d 114, 121 (Ark. 2003). It explained, 

Without question, the Jonesboro city ordinances were not 

created to provide citizens with an expectation of privacy in 

their garbage. Rather, the intent of the ordinance undoubtedly 

 

scavenging gave them a reasonable expectation of privacy in their garbage under the 

Arkansas Constitution); State v. DeFusco, 620 A.2d 746, 752 n.17 (Conn. 1993) (rejecting 

defendant’s argument that an ordinance prohibiting scavenging created a reasonable 

expectation of privacy in garbage left at the curb for collection); State v. Schultz, 388 So. 

2d 1326, 1327 (Fla. Dist. Ct. App. 1980) (holding a defendant did not have a reasonable 

expectation of privacy in garbage that he left in the area in front of his home for collection 

in accordance with the city ordinances governing garbage collection); Commonwealth v. 

Pratt, 555 N.E.2d 559, 567 (Mass. 1990) (rejecting defendant’s claim that ordinances 

regulating waste management establish a reasonable expectation of privacy); State v. 

McMurray, 860 N.W.2d 686, 693–94 (Minn. 2015) (criticizing the dissent’s argument that 

county ordinances regulating waste management require greater search and seizure 

protections for garbage under the Minnesota Constitution than the United States 

Constitution); State v. Brown, 484 N.E.2d 215, 218 (Ohio Ct. App. 1984) (per curiam) 

(noting a municipal ordinance regulating waste collection did not establish a reasonable 

expectation of privacy in garbage because the purpose of the ordinance was to promote 

efficient garbage removal); Commonwealth v. Minton, 432 A.2d 212, 216–17 (Pa. Super. 

Ct. 1981) (holding a township code prohibiting people other than the occupant from 

removing garbage container covers did not provide the garbage container owner with a 

reasonable expectation of privacy because the purpose of the code was for sanitation, not 

privacy); State v. Stevens, 734 N.W.2d 344, 347–48 (S.D. 2007) (explaining city 

ordinances regulating waste management “do not manifest [societal expectations of 

privacy] simply because they dictate how persons are to place their trash for collection or 

how the trash is to be collected,” especially because the city ordinances the defendant 

cited were enacted for sanitation purposes). 
71 

was to provide a city-wide system for waste management and 

sanitation services, with an emphasis on cleanliness and 

preventing any scattering of that garbage. 

Id. The United States Supreme Court rejected a comparable argument in 

Greenwood “that [Greenwood’s] expectation of privacy in his garbage 

should be deemed reasonable as a matter of federal constitutional law 

because the warrantless search and seizure of his garbage was 

impermissible as a matter of California law.” 486 U.S. at 43, 108 S. Ct. at 

1630. 

In addition to the lack of an objectively reasonable expectation of 

privacy in this case, there is scant evidence that Wright even knew of the 

ordinances regulating scavenging or garbage collection to support his 

argument that he maintained a subjective expectation of privacy. Even if 

Wright was aware of the ordinances he cites, he still discarded his garbage 

“in an area particularly suited for public inspection and, in a manner of 

speaking, public consumption, for the express purpose of having strangers 

take it.” Id. at 40–41, 108 S. Ct. at 1629 (quoting Reicherter, 647 F.2d at 

399). He did not even place lids on his garbage cans. 

If Wright wanted to ensure the contents of his garbage were private 

as not to be seen by anyone, then his decision to place them at the edge of 

the public alley without so much as a lid to cover them is illogical. Even if 

no other humans went through Wright’s garbage, he was still exposing it 

to the possibility that it would be visible to anyone—including law 

enforcement—by placing it there. For example, a gust of wind could knock 

Wright’s garbage cans over, exposing his garbage bags “to the predations 

of dogs and raccoons” and the possibility of his garbage being “found 

strewn across streets and alleyways.” A Blue in Color, 1993 Chevrolet 

Pickup, 116 P.3d at 804–05. “[I]t is inconceivable that [he] intended to 
72 

retain a privacy interest in the discarded objects.” Reicherter, 647 F.2d at 

399. 

In Abel v. United States, the Supreme Court held a defendant 

“abandoned” personal property items when he threw them away in the 

hotel room garbage can and vacated the room, thereby giving the hotel the 

“exclusive right to its possession” and to permit law enforcement to search 

the wastebasket without a warrant. 362 U.S. 217, 241, 80 S. Ct. 683, 698 

(1960). When questioned about the relevance of the abandonment theory 

to this case at oral argument, Wright maintained the Supreme Court in 

Greenwood—which it decided after Abel—rejected the argument that the 

respondent was not entitled to an expectation of privacy because he 

abandoned his property and any corresponding privacy interests in it when 

he discarded it and placed it curbside for collection. Fundamentally, the 

Supreme Court “never expressly, nor impliedly for that matter, rejected the 

abandonment theory” in Greenwood, and “[t]ry as one might, no one is able 

to point to a single passage in the Greenwood majority opinion that 

suggests otherwise.” United States v. Redmon, 138 F.3d 1109, 1119 (7th 

Cir. 1998) (Coffey, J., concurring). Justice Brennan’s dissent in Greenwood

proclaimed the majority “reject[ed] the State’s attempt to distinguish trash 

searches from other searches on the theory that trash is abandoned.” 

Greenwood, 486 U.S. at 51, 108 S. Ct. at 1634 (Brennan, J., dissenting). 

Yet, Justice Brennan also criticized the majority for “rel[ying] heavily” on 

lower court cases—the majority of which “rely entirely or almost entirely on 

an abandonment theory”—as support for its holding that there is no 

reasonable expectation of privacy in discarded garbage. Id. at 49 n.2, 108 

S. Ct. at 1633 n.2. 

Although the Supreme Court did not explicitly mention 

“abandonment” in Greenwood, its analysis was couched in abandonment 
73 

language. It emphasized that there could be no reasonable expectation of 

privacy in “discarded” items a person places in garbage left “in an area 

particularly suited for public inspection and, in a manner of speaking, 

public consumption, for the express purpose of having strangers take it.” 

Id. at 40–41, 108 S. Ct. at 1629 (majority opinion) (emphasis added) 

(second quoting Reicherter, 647 F.2d at 399). In doing so, it quoted and 

cited various state and federal cases that relied on the abandonment 

doctrine to determine the Fourth Amendment did not protect garbage left 

for collection in a publicly accessible area. Id. at 40–42, 108 S. Ct. at 1629–

30 (citing cases). Therefore, Wright’s abandonment of the garbage in this 

case is relevant to the analysis. 

“Property is abandoned when the owner no longer wants to possess 

it.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995) 

(en banc). Wright’s decision to place his garbage bags in the garbage cans 

at the edge of the public alley “for hauling to a public dump signifies 

abandonment.” Shelby, 573 F.2d at 973. Though he apparently “decided 

to assume the risk, calculating no one would think to search in his garbage 

can[s], or he may have been careless, . . . he evidenced an intent in a 

convenient but risky way to permanently disassociate himself from the 

incriminating contents.” Id. 

By placing his garbage bags at the edge of the public alley for 

disposal, Wright was essentially “proclaiming to all the world that ‘I’m 

through with this stuff; come and get it.’ ” Commonwealth v. Ousley, 393 

S.W.3d 15, 34–35 (Ky. 2013) (Cunningham, J., concurring in result). 

Wright did not even care to put the lids on his garbage cans, let alone try 

to use any more secure method—like a padlock or “private property” sign, 

for example—to keep people out of his garbage. Ultimately, a person’s 

discarded garbage does not change constitutional dimensions based on 
74 

who is searching through it. When Wright discarded his garbage, he 

abandoned his interest in it, along with any Fourth Amendment or article 

I, section 8 protections in the process. See, e.g., United States v. Thomas, 

864 F.2d 843, 845 (D.C. Cir. 1989) (“When individuals voluntarily abandon 

property, they forfeit any expectation of privacy in it that they might have 

had.” (quoting United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 

1983))); Reicherter, 647 F.2d at 399 (“[T]he placing of trash in garbage cans 

at a time and place for anticipated collection by public employees for 

hauling to a public dump signifies abandonment.” (alteration in original) 

(quoting Shelby, 573 F.2d at 973)); United States v. Vahalik, 606 F.2d 99, 

101 (5th Cir. 1979) (per curiam) (“[T]he act of placing garbage for collection 

is an act of abandonment which terminates any [F]ourth [A]mendment 

protection . . . .”). 

The city’s ordinance prohibiting scavenging recognizes this concept 

of garbage as abandoned property. In Iowa, an individual cannot be 

convicted of theft for taking abandoned objects because theft requires 

“[t]ak[ing] possession or control of the property of another, or property in 

the possession of another, with the intent to deprive the other thereof.” 

Iowa Code § 714.1(1) (2017). Wright relinquished any interest in the 

contents of his garbage when he discarded it at the edge of the public alley 

for waste collection. There can be no intent to deprive Wright of objects he 

already abandoned, and “[a]bandoned property belongs to the finder of the 

property against all others, including the former owner.” Benjamin, 534 

N.W.2d at 406. 

The majority’s conclusion that the city’s antiscavenging ordinance 

establishes the city’s intent to protect the property and corresponding 

privacy interests of its residents renders the antiscavenging ordinance 

redundant and unnecessary. The Iowa Code already criminalizes the theft 
75 

of property through its theft statute as at least a simple misdemeanor 

offense depending upon the monetary value of the property. See Iowa Code 

§ 714.2(5) (classifying the lowest degree of theft as a simple misdemeanor). 

At the time of Officer Heinz’s garbage pull, simple misdemeanor theft 

offenders were subject to fines as high as $625 and “imprisonment not to 

exceed thirty days” for simple misdemeanor theft. Iowa Code § 903.1(1)(a). 

Because a person who takes the property of another is already 

subject to criminal prosecution for theft, there would be no need for an 

additional ordinance prohibiting scavenging if the city were simply trying 

to protect a property interest in garbage. As I noted earlier, this is also 

clear from the city’s purpose statement governing the antiscavenging 

ordinance, which asserts the purpose of the ordinance is “to protect the 

citizens of the City from such hazards to their health, safety and welfare as 

may result from the uncontrolled disposal of solid waste.” Clear Lake, Iowa, 

Code of Ordinances § 105.01. An ordinance enacted to promote public 

hygiene does not establish an objectively reasonable expectation of privacy 

in garbage. 

Overall, I would conclude the existence of city ordinances in Iowa 

regulating waste management does not require us to provide greater 

protections under article I, section 8 of the Iowa Constitution against the 

warrantless search of garbage set out for collection in a publicly accessible 

area. Thus, I would review Wright’s privacy expectations in accordance 

with Greenwood. Wright abandoned the garbage at issue at the edge of a 

public alley outside his home anticipating the waste collector would take 

it, but any member of the public—including the police—could have 

accessed his garbage. As the Supreme Court held in Greenwood, a person 

does not have an objectively reasonable expectation of privacy in garbage 

left for collection in a publicly accessible area. This holding is supported 
76 

by the overwhelming majority of state courts that have examined this issue 

under the United States Constitution or their respective state 

constitutions.11 For these reasons, I believe the district court correctly 

 

11See, e.g., State v. Fassler, 503 P.2d 807, 813–14 (Ariz. 1972) (en banc) (holding 

law enforcement’s search of the garbage can located in an alleyway at the premises where 

defendant was arrested did not violate the Fourth Amendment because the defendant 

surrendered his privacy in the garbage’s contents by placing them in the publicly 

accessible garbage can); Rikard, 123 S.W.3d at 120–21 (rejecting appellants’ claim that 

city ordinances regulating waste management and prohibiting scavenging gave them a 

reasonable expectation of privacy in their garbage under the Arkansas Constitution); 

People v. Hillman, 834 P.2d 1271, 1277–78 (Colo. 1992) (en banc) (upholding law 

enforcement’s search of defendant’s garbage because defendant “did not have a 

reasonable expectation of privacy in his garbage when he placed his garbage adjacent to 

the sidewalk, rendering it readily accessible to the public”); DeFusco, 620 A.2d at 752 

n.17 (rejecting defendant’s argument that an ordinance prohibiting scavenging created a 

reasonable expectation of privacy in garbage left at the curb for collection); Ranken, 25 

A.3d at 859–60 (holding the Delaware Constitution’s search and seizure provision did not 

protect a trash container left curbside on a public sidewalk because the defendant’s 

expectation of privacy in the trash was not objectively reasonable); Schultz, 388 So. 2d at 

1327 (holding a defendant did not have a reasonable expectation of privacy in garbage 

that he left in the area in front of his home for collection in accordance with the city 

ordinances governing garbage collection); Scott v. State, 606 S.E.2d 312, 315 (Ga. Ct. 

App. 2004) (upholding law enforcement’s search of defendant’s garbage left out for 

collection because the defendant abandoned the contents of the garbage by placing them 

out for collection and thus had no reasonable expectation of privacy in them); State v. 

Donato, 20 P.3d 5, 10 (Idaho 2001) (holding the Idaho Constitution does not provide 

greater protection to privacy rights in garbage than the United States Constitution and 

no objectively reasonable expectation of privacy exists in garbage left out for collection 

because it “is knowingly exposed to public view”); People v. Stage, 785 N.E.2d 550, 552 

(Ill. App. Ct. 2003) (affirming “[t]he long-standing precedent in Illinois . . . that an 

individual has no reasonable expectation of privacy protection in his garbage”); State v. 

Alexander, 981 P.2d 761, 766–67 (Kan. Ct. App. 1999) (holding law enforcement’s search 

of defendant’s garbage was lawful because defendant had no reasonable expectation of 

privacy in garbage placed in a dumpster outside by the publicly accessible curb); State v. 

Rando, 848 So. 2d 19, 23 n.3 (La. Ct. App. 2003) (holding the search of defendant’s 

garbage was reasonable based on the United States Supreme Court’s holding in 

Greenwood that “persons have no reasonable expectation of privacy in garbage”); State v. 

Sampson, 765 A.2d 629, 636 (Md. 2001) (holding the Fourth Amendment does not protect 

“trash [that] is placed for collection at a place that is readily accessible, and thus exposed, 

to the public, [because] the person has relinquished any reasonable expectation of 

privacy” in that trash); Pratt, 555 N.E.2d at 567 (holding law enforcement’s search of a 

trash bag in front of the defendant’s residence did not violate the defendant’s right against 

unreasonable searches and seizures under the Massachusetts Declaration of Rights 

because defendant did not have a reasonable expectation of privacy in the contents of his 

trash bag); People v. Thivierge, 435 N.W.2d 446, 447 (Mich. Ct. App. 1988) (per curiam) 

(declining to provide greater search and seizure protections for garbage under the 

Michigan Constitution than the United States Constitution because “the depositing of 

garbage on or at the side of a public street . . . negates any reasonable expectation of 
77 

 

privacy in inculpatory items secreted therein”); McMurray, 860 N.W.2d at 693–94 

(criticizing the dissent’s argument that county ordinances regulating waste management 

require greater search and seizure protections for garbage under the Minnesota 

Constitution than the United States Constitution); State v. Trahan, 428 N.W.2d 619, 623 

(Neb. 1988) (holding that “[g]arbage left for collection at a designated location and 

accessible to the public shall not be accorded constitutional protection”); People v. Crump, 

1 N.Y.S.3d 866, 867 (App. Div. 2015) (holding law enforcement’s search of defendant’s 

curbside garbage can did not violate the Fourth Amendment because “[t]he defendant 

had no reasonable expectation of privacy in the refuse he placed at the curb”); State v. 

Hauser, 464 S.E.2d 443, 447 (N.C. 1995) (upholding “a warrantless search of garbage by 

police, after pickup by the regular collector in the normal manner”); State v. Schmalz, 744 

N.W.2d 734, 742 (N.D. 2008) (upholding law enforcement’s warrantless search of 

defendant’s garbage because defendant “lost his expectation of privacy when he placed 

the trash for collection, and therefore the garbage search falls outside the protections of 

Article 1, section 8 of the state constitution and the Fourth Amendment to the federal 

constitution”); Brown, 484 N.E.2d at 218 (noting a municipal ordinance regulating waste 

collection did not establish a reasonable expectation of privacy because the purpose of 

the ordinance was to promote efficient garbage removal); Cooks v. State, 699 P.2d 653, 

656 (Okla. Crim. App. 1985) (upholding law enforcement’s warrantless search of 

“curbside trash,” “join[ing] those other jurisdictions holding curbside trash is abandoned 

property, over which appellant has no reasonable expectation of privacy”); Minton, 432 

A.2d at 217 (holding a township code prohibiting people other than the occupant from 

removing garbage container covers did not provide the garbage container owner with a 

reasonable expectation of privacy because the purpose of the code was for sanitation, not 

privacy); State v. Briggs, 756 A.2d 731, 743 (R.I. 2000) (holding defendant had no 

objectively reasonable expectation of privacy in the contents of a trash bag after the 

defendant placed the bag into the bed of his pickup truck for it to be collected and placed 

in the communal dumpster of a multi-dwelling tenement); Stevens, 734 N.W.2d at 347–

48 (explaining city ordinances regulating waste management “do not manifest [societal 

expectations of privacy] simply because they dictate how persons are to place their trash 

for collection or how the trash is to be collected,” especially because the city ordinances 

the defendant cited were enacted for sanitation purposes); Levario v. State, 964 S.W.2d 

290, 295–96 (Tex. App. 1997) (holding a warrantless search of defendant’s “discarded 

trash” did not constitute an unlawful search and seizure because defendant “had no 

reasonable expectation of privacy in discarded trash”); State v. Jackson, 937 P.2d 545, 

550 (Utah Ct. App. 1997) (holding that “the Utah Constitution does not prohibit the 

warrantless search” of garbage left streetside for collection); Commonwealth v. Bryant, 

Record No. 2715–04–1, 2005 WL 1017629, at *2 (Va. Ct. App. May 3, 2005) (holding the 

trial court erred in suppressing evidence obtained from a warrantless search of 

defendant’s trash can because “discarded garbage placed on the side of the street for 

pickup does not fall within any recognized privacy interest protected by the Fourth 

Amendment”); Barekman v. State, 200 P.3d 802, 810 (Wyo. 2009) (holding law 

enforcement’s warrantless search of a trash bag retrieved from trash cans in front of the 

defendant’s home did not violate the defendant’s search and seizure protections under 

the State or Federal Constitution because defendant lacked “an expectation of privacy in 

his trash that society would accept as objectively reasonable”). 
78 

determined Wright did not have a reasonable expectation of privacy in his 

garbage for it to be protected under the Iowa or United States Constitution 

when it denied Wright’s motion to suppress. 

B. The Impact of Recent Supreme Court Decisions. The 

Supreme Court’s decisions in United States v. Jones and Florida v.

Jardines in 2012 and 2013 marked the revival of the physical trespass 

test as part of the Fourth Amendment analysis in addition to the Katz

reasonable-expectation-of-privacy test. See Jones, 565 U.S. at 409, 132 

S. Ct. at 952. Cumulatively, the physical trespass test formulated in 

those cases establishes that law enforcement conducts a “search” for 

Fourth Amendment purposes regardless of any privacy expectations if 

they physically trespass on a constitutional “effect” “for the purpose of 

obtaining information,” id. at 404, 132 S. Ct. at 949, or they commit an 

unlicensed physical intrusion of one’s curtilage, Jardines, 569 U.S. 1, 9–

10, 133 S. Ct. 1409, 1416–17 (2013). 

Wright’s brief does not cite Jardines or discuss the physical trespass 

test as it was expanded in Jardines. However, he does comparably argue 

we need not analyze any privacy expectations under the Katz test because 

Officer Heinz violated Wright’s state and federal search and seizure 

protections under Jones when he physically trespassed on Wright’s 

personal effects—namely, his garbage—to obtain information. I will 

address this argument in-depth later, but the reemergence of the trespass 

test does not overrule Greenwood to render it no longer binding in our 

analysis of Wright’s privacy expectations under the Katz test. Contrary to 

the majority’s treatment of Wright’s privacy expectations as though they 

are largely irrelevant, the Supreme Court asserted in Jones that “the Katz

reasonable-expectation-of-privacy test has been added to, not substituted 
79 

for, the common-law trespassory test.” Jones, 565 U.S. at 409, 132 S. Ct. 

at 952. 

Jones and Jardines provide an additional trespass analysis to the 

warrantless search of garbage, but the Supreme Court’s 2018 opinion in 

Carpenter presents more relevant questions about the enduring validity of 

Greenwood and the Katz test. Specifically, Carpenter calls into question 

Greenwood’s analysis governing an individual’s privacy expectations in 

garbage due to Greenwood’s use of the third-party doctrine, which provides 

“a person has no legitimate expectation of privacy in information he 

voluntarily turns over to third parties,” to conclude individuals lacked an 

objectively reasonable expectation of privacy in garbage placed in a publicly 

accessible area. Carpenter, 585 U.S. at ___, 138 S. Ct. at 2216 (quoting 

Smith v. Maryland, 442 U.S. 735, 743–44, 99 S. Ct. 2577, 2582 (1979)). 

In Carpenter, the Supreme Court considered “whether the 

Government conducts a search under the Fourth Amendment when it 

accesses historical cell phone records that provide a comprehensive 

chronicle of the user’s past movements” without a warrant. Id. at ___, 138 

S. Ct. at 2211. In the past, the Supreme Court had applied the third-party 

doctrine to hold individuals have no legitimate expectation of privacy—and 

thus no Fourth Amendment protection—in their telephone numbers or 

bank records because they contained information exposed to third parties. 

Smith, 442 U.S. at 743–44, 99 S. Ct. at 2582; United States v. Miller, 425 

U.S. 435, 443, 96 S. Ct. 1619, 1624 (1976). Nonetheless, it declined to 

extend the reach of the third-party doctrine to cover the government’s 

warrantless seizure of the cell phone location records at issue in Carpenter

“given [their] unique nature.” 585 U.S. at ___, 138 S. Ct. at 2217. 

Instead, the Court recognized that “an individual maintains a 

legitimate expectation of privacy in the record of his physical movements 
80 

as captured through [cell phone location records],” so the acquisition of 

those records constituted a search under the Fourth Amendment for which 

“the Government must generally obtain a warrant supported by probable 

cause before acquiring.” Id. at ___, ___, 138 S. Ct. at 2217, 2221. It 

explained, “[m]apping a cell phone’s location over the course of 127 days 

provides an all-encompassing record of the holder’s whereabouts” and 

“provides an intimate window into a person’s life” because “[a] cell phone 

faithfully follows its owner beyond public thoroughfares and into private 

residences, doctor’s offices, political headquarters, and other potentially 

revealing locales.” Id. at ___, 138 S. Ct. at 2217–18. Additionally, the Court 

reasoned the exposure of cell phone location records was more compelled 

than voluntary because cell phones and their services are “indispensable 

to participation in modern society” and “a cell phone logs a cell-site record 

by dint of its operation, without any affirmative act on the part of the user 

beyond powering up.” Id. at ___, 138 S. Ct. at 2220. 

In dissent, multiple Justices noted the new limitations the majority’s 

opinion imposed on the third-party doctrine. Justice Kennedy asserted, 

“[t]he Court’s multifactor analysis—considering intimacy, 

comprehensiveness, expense, retrospectivity, and voluntariness—puts the 

[third-party doctrine] on a new and unstable foundation.” Id. at ___, 138 

S. Ct. at 2234 (Kennedy, J., dissenting). Justice Alito lamented, “[T]he 

Court effectively allows Carpenter to object to the ‘search’ of a third party’s 

property, not recognizing the revolutionary nature of this change.” Id. at 

___, 138 S. Ct. at 2260 (Alito, J., dissenting). Meanwhile, Justice Gorsuch 

sought to go further than the majority in its limitations on the third-party 

doctrine in his dissent, arguing the third-party doctrine was altogether 

“horribly wrong.” Id. at ___, 138 S. Ct. at 2262 (Gorsuch, J., dissenting) 
81 

(quoting Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. 

Rev. 561, 564 (2009)). 

In discussing the troubles of the third-party doctrine under the Katz

test, Justice Gorsuch criticized the Court’s holding in Greenwood based on 

its reliance on the third-party doctrine in determining individuals do not 

have an objectively reasonable expectation of privacy in their garbage 

placed in a publicly accessible area for consumption. Id. at ___, 138 S. Ct. 

at 2266. Justice Gorsuch opined, 

In [Greenwood], the Court said that the homeowners forfeited 

their privacy interests because “[i]t is common knowledge that 

plastic garbage bags left on or at the side of a public street are 

readily accessible to animals, children, scavengers, snoops, 

and other members of the public.” But the habits of raccoons 

don’t prove much about the habits of the country. I doubt, 

too, that most people spotting a neighbor rummaging through 

their garbage would think they lacked reasonable grounds to 

confront the rummager. Making the decision all the stranger, 

California state law expressly protected a homeowner’s 

property rights in discarded trash. Yet rather than defer to 

that as evidence of the people’s habits and reasonable 

expectations of privacy, the Court substituted its own curious 

judgment. 

Id. at ___, 138 S. Ct. at 2266 (alteration in original) (emphasis omitted) 

(citations omitted) (quoting Greenwood, 486 U.S. at 40, 108 S. Ct. at 1628–

29). Justice Thomas similarly cast doubt on the validity of the Katz test, 

arguing, “it invites courts to make judgments about policy, not law” and 

leads to circularity because the “Court is supposed to base its decisions on 

society’s expectations of privacy, [but] society’s expectations of privacy are, 

in turn, shaped by this Court’s decisions.” Id. at ___, ___, 138 S. Ct. at 

2236, 2245 (Thomas, J., dissenting). 

Based on the dissenting opinions in Carpenter, the majority has 

decided we should no longer follow Greenwood. Such reliance to 

anticipatorily overrule Greenwood is problematic for a number of reasons 
82 

beyond the fact that Wright never so much as cited Carpenter in his briefs. 

Even under the Carpenter rationale and its limitations on the third-party 

doctrine, Wright still does not have an objectively reasonable expectation 

of privacy in his garbage because garbage is not comparable to the cell 

phone location records conveyed to a third party in Carpenter. Through 

the cell-site records in Carpenter, the government was able to map the 

location of the petitioner’s cell phone—and likely the petitioner himself—

over the course of 127 days, allowing the government to “achieve[] near 

perfect surveillance, as if it had attached an ankle monitor to the phone’s 

user.” Carpenter, 585 U.S. at ___, 138 S. Ct. at 2218 (majority opinion). 

The Court remarked this sophisticated level of surveillance deserved 

unique protections compared to past types of surveillance that have been 

upheld as constitutional under the third-party doctrine, such as the 

placing of a beeper in a container to augment visual surveillance in tracking 

a vehicle through traffic, United States v. Knotts, 460 U.S. 276, 103 S. Ct. 

1081 (1983). See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2218. 

In distinguishing between cell-site information and past surveillance 

techniques, the Carpenter Court reasoned past techniques used to 

reconstruct a person’s movements, like the beeper in Knotts, “were limited 

by a dearth of records and the frailties of recollection.” Carpenter, 585 U.S. 

at ___, 138 S. Ct. at 2218. Searching through the contents of garbage 

placed in a publicly accessible area for waste collection is not analogous to 

tracking a cell phone for 127 days and certainly does not “achieve[] near 

perfect surveillance, as if [the government] had attached an ankle monitor 

to the phone’s user.” Id. at ___, 138 S. Ct. at 2218. Rather, it is simply “a 

dearth of records” that law enforcement must comb through and put 

together in combination with other investigative techniques to discern any 

useful information about a defendant’s activities. Id. at ___, 138 S. Ct. at 
83 

2218. This is hardly the invasive, nonstop monitoring the Supreme Court 

sought to protect individuals against in Carpenter. 

Further, unlike the “indispensable” nature of the cell phone, nobody 

forced Wright to use the city’s waste collection service. He could have 

disposed of the garbage directly at the city’s designated landfill or 

intermingled it with garbage disposed of in some other public receptacle if 

he was genuinely concerned about the anonymity of his garbage. See Iowa 

Code §§ 455B.361(2) (defining “litter” as “any garbage, rubbish, trash, 

refuse, waste materials, or debris not exceeding ten pounds in weight or 

fifteen cubic feet in volume”), .363 (authorizing the “discarding of such litter 

in or on areas or receptacles provided” for litter disposal). Wright also had 

the option of disposing of his garbage in a private waste receptacle owned 

by others with their permission or at a citizen convenience center. Id.

§ 455B.307A(2) (prohibiting the disposal of solid waste “into areas or 

receptacles provided for such purposes which are under the control of or 

used by a person who has not authorized the use of the receptacle by the 

person discarding the solid waste”); Clear Lake, Iowa, Code of Ordinances 

§ 105.11(1) (requiring individuals to obtain the owner’s written consent 

before “[d]eposit[ing] refuse in any [garbage cans]” they do not own); Iowa 

Admin. Code r. 567—106.2 (defining “citizen convenience center” as “a 

permanent, fixed-location facility that has the primary purpose of receiving 

solid waste from citizens and small businesses that do not utilize solid 

waste collection vehicles or satellite solid waste collection vehicles”). 

Wright’s decision to dispose of his garbage by placing it at the edge of his 

public alley for the city’s contracted waste collection service to collect is not 

compelled in the same way cell-site location records are to warrant the 

unique protection those records received in Carpenter. 
84 

Moreover, as discussed previously, the nature of garbage as 

abandoned property similarly cuts against finding any privacy interests in 

it. The Supreme Court’s holding in Greenwood was not simply based on 

the third-party doctrine, as the Court also focused on the fact that the 

respondent had discarded his garbage, thereby abandoning any privacy 

expectation in its contents. 486 U.S. at 43–44, 108 S. Ct. at 1630–31. 

Therefore, the third-party doctrine discussed in recent Supreme Court 

decisions is but one factor in our analysis in this case. 

The distinct nature of garbage discarded for collection as abandoned 

property distinguishes it from a letter entrusted to a postal carrier, for 

example. Unlike garbage, “[l]etters and other sealed packages [in transit] 

are in the general class of effects in which the public at large has a 

legitimate expectation of privacy,” so “warrantless searches of such effects 

are presumptively unreasonable.” United States v. Jacobsen, 466 U.S. 109, 

114, 104 S. Ct. 1652, 1657 (1984). Unlike garbage, there are all sorts of 

laws protecting the privacy of the mail owner. See, e.g., 39 C.F.R. § 267.2 

(2017); id. § 266.1. It is a federal offense to take “any letter, postal card, 

or package out of any” mailbox “before it has been delivered to the person 

to whom it was directed.” 18 U.S.C. § 1702. The penalty for doing so is a 

fine, imprisonment for not more than five years, or both. Id.

When one “relinquishes possession” of mail to the postal 

service, it is with the implicit understanding that it will be 

delivered safely and unopened to the addressee or, if delivery 

cannot be effected, returned unopened to the sender. We are 

unaware of any custom or practice wherein citizens expect that 

their trash be returned to them in the event that the trash 

collector finds the landfill closed. While we could write pages 

pointing out the defects in the mail-garbage analogy, . . . we 

decline to join those who see no significant difference between 

the garbage and the mail. 

People v. Stage, 785 N.E.2d 550, 552 (Ill. App. Ct. 2003). 
85 

Finally, we should not attempt to read the tea leaves to adopt what 

we think may become a shift in Supreme Court jurisprudence based on 

changes in the composition of the Supreme Court, the Carpenter Court’s 

test for cell phone location records, and various Justices’ dissenting or 

concurring opinions to overrule binding Supreme Court precedent. As the 

Supreme Court has stressed, 

If a precedent of th[e Supreme] Court has direct application in 

a case, yet appears to rest on reasons rejected in some other 

line of decisions, [lower courts] should follow the case which 

directly controls, leaving to th[e Supreme] Court the 

prerogative of overruling its own decisions. 

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 

S. Ct. 1917, 1921–22 (1989); see also Agostini v. Felton, 521 U.S. 203, 237–

38, 117 S. Ct. 1997, 2017 (1997) (reaffirming its declaration that lower 

courts “should follow the case which directly controls, leaving to th[e 

Supreme] Court the prerogative of overruling its own decisions” (quoting 

Rodriguez de Quijas, 490 U.S. at 484, 109 S. Ct. at 1921–22)). 

Until the Supreme Court itself overrules Greenwood, it remains good 

law. Interpreting our analogous state constitutional provision in the same 

manner as the Supreme Court provides the public with “increased 

confidence that the decision is ‘rooted in law rather than in will.’ ” Gaskins, 

866 N.W.2d at 53–54 (Waterman, J., dissenting) (quoting G. Alan Tarr, 

Understanding State Constitutions 176 (1998)). This is especially so when 

the constitutional provisions at issue are virtually identical and the only 

argument for departure is a party’s subjective belief that there is a 

“compelling” reason for departure based on a city ordinance that has 

nothing to do with privacy, as is the case here. See Hans A. Linde, First 

Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379, 

392 (1980) (“[T]o make an independent argument under the state clause 
86 

takes homework—in texts, in history, in alternative approaches to analysis. 

It is not enough to ask the state court to reject a Supreme Court opinion 

on the comparable federal clause merely because one prefers the opposite 

result.”). 

C. The Trespass Element of Search and Seizure Law. Wright also 

contends the district court erred in denying his motion to suppress 

regardless of any privacy expectations concerning his garbage. According 

to Wright, the Supreme Court’s 2012 Jones decision stands for the 

proposition that any physical intrusion by the government on his personal 

effects—including his garbage—to obtain information is a trespass that 

amounts to a warrantless search in violation of the Fourth Amendment to 

the United States Constitution and article I, section 8 of the Iowa 

Constitution. Wright does not ask us to depart from Fourth Amendment 

precedent to reach a different conclusion under article I, section 8 should 

we determine Officer Heinz’s actions did not infringe upon Wright’s 

protections under the Fourth Amendment. Although we reserve the right 

to apply substantive federal standards more stringently, I only analyze 

Wright’s trespass argument under the federal standard because he does 

not make a separate argument under the Iowa Constitution. See Behm 

v. City of Cedar Rapids, 922 N.W.2d 524, 566 (Iowa 2019) (“The plaintiffs 

have not suggested that we should follow different substantive standards 

under the Iowa Constitution than would be applied to procedural due 

process claims under the Federal Constitution. 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.”). 

During the suppression hearing, Officer Heinz testified that he never 

left the public alley to retrieve Wright’s garbage, but he briefly touched the 

garbage cans on two of the three occasions he obtained Wright’s garbage 
87 

bags. Wright argues Officer Heinz physically trespassed by touching the 

garbage cans and “the opaque bags inside to remove them” to obtain 

information. Wright believes this alleged trespass upon his “effects” 

constituted a search in violation of the Fourth Amendment and article I, 

section 8 based on the Supreme Court’s decision in Jones. 

In Jones, a law enforcement task force installed a GPS tracking 

device on the undercarriage of a Jeep registered to the defendant’s wife 

without a warrant and tracked the Jeep’s movements over the course of 

twenty-eight days while investigating the defendant for narcotics 

trafficking. 565 U.S. at 402–03, 132 S. Ct. at 948. This tracking produced 

more than 2000 pages of data over the four-week surveillance period and 

helped lead to the defendant’s conviction on various narcotics charges. Id.

at 403–04, 132 S. Ct. at 948–49. The defendant moved to suppress the 

evidence collected through the GPS device, but the district court only 

granted the motion in part. Id. at 403, 132 S. Ct. at 948. It suppressed 

the data obtained while the defendant was parked at his residence, but it 

determined the remaining data was admissible because the defendant 

“ha[d] no reasonable expectation of privacy in his movements from one 

place to another” while “traveling in an automobile on public 

thoroughfares.” Id.

The Supreme Court reversed the district court’s decision, holding the 

warrantless installation of the GPS device on the defendant’s vehicle and 

its use to track the vehicle’s movements was a search in violation of the 

Fourth Amendment because “[t]he Government physically occupied private 

property for the purpose of obtaining information.” Id. at 404, 132 S. Ct. 

at 949. The Supreme Court stressed the significance of property rights 

within the meaning of the Fourth Amendment when it was adopted, 

explaining, “Fourth Amendment jurisprudence was tied to common-law 
88 

trespass, at least until the latter half of the 20th century.” Id. at 405, 132 

S. Ct. at 949. Although the Supreme Court acknowledged its later cases 

have applied Justice Harlan’s reasonable-expectation-of-privacy test from 

his Katz concurrence, it concluded that test was unnecessary to apply 

under the circumstances. As the Supreme Court declared, “[T]he Katz 

reasonable-expectation-of-privacy test has been added to, not substituted 

for, the common-law trespassory test.” Id. at 409, 132 S. Ct. at 952. 

Because the Fourth Amendment’s history “embod[ied] a particular concern 

for government trespass upon” effects like the defendant’s Jeep, the 

Supreme Court held the trespass—the installation of the GPS tracking 

device to obtain information about the defendant—violated the Fourth 

Amendment regardless of any privacy expectations concerning the Jeep. 

Id. at 406, 410, 132 S. Ct. at 950, 952. 

A year later, the Supreme Court expanded upon its use of the 

physical trespass test again in Jardines. There, the Court held the 

government conducted a search for Fourth Amendment purposes when law 

enforcement walked onto a homeowner’s porch with a drug-sniffing dog to 

investigate the contents of the home. Jardines, 569 U.S. at 9–10, 133 S. Ct. 

at 1416–17. In reaching its decision, the Court recognized the porch as 

curtilage—a constitutionally protected area—and remarked, “the only 

question is whether [the homeowner] had given his leave (even implicitly) 

for [law enforcement] to” enter the curtilage. Id. at 8, 133 S. Ct. at 1415. 

The Court concluded law enforcement’s use of the drug-sniffing dog to 

explore the area around the home was a search under the Fourth 

Amendment because the conduct was an unlicensed physical intrusion. 

Id. at 9, 133 S. Ct. at 1416. It distinguished between a visitor routinely 

knocking on the door, for which there is a limited, implied license for a 

specific purpose based on social norms, and the more invasive purpose of 
89 

using a drug-sniffing dog to explore details about the home. Id. at 8–10, 

133 S. Ct. at 1415–17. 

Together, Jones and Jardines establish a physical trespass test in 

which law enforcement conducts a search for Fourth Amendment purposes 

if they physically trespass on a constitutional “effect” to “obtain[] 

information,” Jones, 565 U.S. at 404, 132 S. Ct. at 949, or they commit an 

unlicensed physical intrusion of a constitutionally protected area, 

Jardines, 569 U.S. at 9–10, 133 S. Ct. at 1416–17. This use of the trespass 

test under the Fourth Amendment marked a significant change in the 

Supreme Court’s Fourth Amendment jurisprudence, as it had not 

employed any formal trespass test between 1886 and its decision in Jones

in 2012. Orin S. Kerr, The Curious History of Fourth Amendment Searches, 

2012 Sup. Ct. Rev. 67, 76–77 (2012) [hereinafter Kerr].12 Though the 

Supreme Court had equated searches with trespasses informally until the 

1960s, it had “abandoned the trespass test in favor of” the reasonableexpectation-of-privacy test until the Supreme Court revived the trespass 

test in Jones. Id. at 67–68. Wright relies on the resurgence of the trespass 

test in asking us to find Officer Heinz violated his Fourth Amendment and 

article I, section 8 rights by touching Wright’s garbage cans and bags to 

obtain information without a warrant. 

Whether Officer Heinz violated Wright’s constitutional search and 

seizure rights by physically touching Wright’s garbage cans and bags at the 

edge of the public alley to obtain information depends on whether these 

 

12See also Laurent Sacharoff, Constitutional Trespass, 81 Tenn. L. Rev. 877, 886 

(2014) (“When we restrict our view [of the Fourth Amendment] to Supreme Court cases, 

an almost comical history of uncertainty with respect to trespass emerges. Roughly 

speaking, the Court rejected any trespass requirement in 1886 in Boyd v. United States, 

applied a trespass test in 1928 in Olmstead v. United States, and rejected the ‘trespass 

doctrine’ in Katz v. United States, before finally adopting a trespass test in United States 

v. Jones—only to then avoid it, possibly, in Florida v. Jardines.” (footnotes omitted)). 
90 

items are “effects” under federal and state constitutional law. Most courts, 

including those that have held constitutional protections exist in garbage, 

have only examined law enforcement’s warrantless grab of another’s 

garbage to obtain information under the reasonable-expectation-of-privacy 

test without examining whether law enforcement trespassed upon a 

constitutionally protected “effect” in the form of garbage containers or their 

contents. See Greenwood, 486 U.S. at 41–43, 108 S. Ct. at 1629–30 

(compiling federal and state appellate court decisions holding individuals 

do not have a reasonable expectation of privacy in garbage left for collection 

in a publicly accessible area); see also State v. Tanaka, 701 P.2d 1274, 

1276–77 (Haw. 1985); State v. Goss, 834 A.2d 316, 319 (N.H. 2003); State 

v. Hempele, 576 A.2d 793, 804–07 (N.J. 1990). Jones never defined what 

constitutes an “effect” and “[c]ourts reviewing warrantless garbage pulls 

post-Jones have largely remained silent on the question of whether garbage 

itself counts as a personal effect.” Tanner M. Russo, Note, Garbage Pulls 

Under the Physical Trespass Test, 105 Va. L. Rev. 1217, 1235 (2019); see 

also Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving 

Personal Property Due Protection, 125 Yale L.J. 946, 957–60 (2016) 

[hereinafter Brady] (explaining the failure of Jones to define “effect”). 

Because the Supreme Court in Jones relied upon the common law of 

trespass to determine whether a search occurred, I look to the common law 

doctrine of trespass to chattels to determine whether Wright’s garbage 

placed at the edge of the public alley for collection constitutes an “effect.” 

Cf. Jones, 565 U.S. at 411, 132 S. Ct. at 953 (holding the Fourth 

Amendment “must provide at a minimum the degree of protection it afforded 

when it was adopted”); see also id. at 418–19, 132 S. Ct. at 957–58 (Alito, 

J., concurring in the judgment) (“By attaching a small GPS device to the 

underside of the vehicle that respondent drove, the law enforcement officers 
91 

in this case engaged in conduct that might have provided grounds in 1791 

for a suit for trespass to chattels. And for this reason, the Court concludes, 

the installation and use of the GPS device constituted a search.” (footnotes 

omitted)).13 “Since at least the late eighteenth century, chattel property has 

generally been marked by three features: (1) the ability to exclude others, 

(2) the ability to transfer the object, and (3) control over its use.” Brady, 

125 Yale L.J. at 1002; see also 2 William Blackstone, Commentaries *388–

89 (defining possessed chattel property as maintaining the “right, and also 

the occupation, of any movable chattels; so that they cannot be transferred 

from him, or cease to be his, without his own act or default”). Here, the 

garbage bags and their contents failed to exhibit these features by virtue of 

their location on the edge of the public alley for anyone to access and 

Wright’s intention to convey them to a third-party collector. 

The law of abandonment further supports this conclusion. “Property 

is abandoned when the owner no longer wants to possess it.” Benjamin, 

534 N.W.2d at 406. This occurs through “proof that the owner intends to 

abandon the property and has voluntarily relinquished all right, title and 

interest in the property.” Id. In upholding law enforcement’s warrantless 

search of a garbage can in a hotel room, the Supreme Court previously 

recognized the contents of the garbage can were “abandoned” personal 

property after the defendant threw them away and vacated the room. Abel, 

362 U.S. at 241, 80 S. Ct. at 698. As explained above, Wright’s decision to 

 

13“Trespass has taken many forms and changed over time, rendering it a tricky 

doctrine to pin down.” Kerr, 2012 Sup. Ct. Rev. at 90. The Supreme Court never defined 

which of the various eighteenth-century understandings of trespass are incorporated into 

a Fourth Amendment search in Jones. Nevertheless, the interactions between Justice 

Scalia in the majority opinion and Justice Alito in his concurrence suggest that the 

Supreme Court was referring to a trespass to chattels in Jones. Id. (“Justice Alito 

suggests in his concurrence that the majority is referring to a trespass to chattels. The 

majority did not contradict Alito’s claim; given Scalia’s many volleys with Alito in Jones, 

this may suggest tacit agreement.” (footnote omitted)). 
92 

place the garbage at the edge of the public alley “for hauling to a public 

dump signifies abandonment.” Shelby, 573 F.2d at 973. 

“We are unaware of any custom or practice wherein citizens expect 

that their trash be returned to them . . . .” Stage, 785 N.E.2d at 552. 

Additionally, unless Wright was going to sit outside next to the garbage 

cans and monitor them to ensure nobody went through their contents, he 

had no real ability to exclude others or control where it was transferred. 

Consequently, he could not demonstrate an ability to exclude others or the 

ability to transfer the object—two of the three touchstones of chattel 

property. 

He also no longer maintained control over the garbage’s use—the 

third touchstone of chattel property. If he genuinely wanted to retain 

control over the garbage at issue, he would not have placed it in a publicly 

accessible area where any person, animal, or even the weather could 

expose their contents to the public or transport them to another location. 

Accordingly, the garbage bags and their contents do not meet the common 

law understanding of what constitutes chattel in order to be considered an 

effect protected under the Fourth Amendment or article I, section 8. 

Although Wright may have been under the mistaken belief that only 

the waste collector would take the garbage, and thus, anyone else who took 

it was unlicensed to do so, this still does not render Officer Heinz’s conduct 

a search under the Supreme Court’s holding in Jardines. Jardines is 

limited to police conduct that occurs when law enforcement officers 

physically invade curtilage, “the area ‘immediately surrounding and 

associated with the home’ ” such that it is “part of the home itself for Fourth 

Amendment purposes.” 569 U.S. at 6, 133 S. Ct. at 1414 (quoting Oliver, 

466 U.S. at 180, 104 S. Ct. at 1742). Wright never argued the garbage was 

located on curtilage. “[W]e will not speculate on the arguments [the parties] 
93 

might have made and then search for legal authority and comb the record 

for facts to support such arguments.” Hyler v. Garner, 548 N.W.2d 864, 

876 (Iowa 1996). In any event, the district court found “no evidence that 

Officer Heinz ever left the public alley to collect any of the garbage.” We 

give the district court’s factual findings deference due to the district court’s 

ability to assess the witnesses’ credibility. State v. Brown, 890 N.W.2d 315, 

321 (Iowa 2017). A public alley is not “part of the home itself for Fourth 

Amendment purposes.” Jardines, 569 U.S. at 6, 133 S. Ct. at 1414 

(quoting Oliver, 466 U.S. at 180, 104 S. Ct. at 1742). 

Finally, even if Wright’s garbage cans were constitutionally protected 

effects, Officer Heinz’s brief touching of the cans to retrieve Wright’s 

abandoned garbage was not a trespass in violation of the Fourth 

Amendment. “Not all trespasses by law enforcement are violations of the 

Fourth Amendment.” United States v. Sweeney, 821 F.3d 893, 900 (7th 

Cir. 2016) (holding law enforcement did not trespass upon defendant’s 

property for constitutional purposes by seizing evidence in the basement 

common area of the multi-unit apartment complex where defendant lived, 

explaining that a trespass only violates the Fourth Amendment if it occurs 

on a constitutionally protected area). Despite its reliance on a trespass test 

in Jones and Jardines, the Supreme Court has not identified “which version 

of trespass the Fourth Amendment search doctrine incorporates.” Kerr, 

2012 Sup. Ct. Rev. at 90. 

Justice Scalia’s Jones opinion reasoned the Fourth Amendment 

“must provide at a minimum the degree of protection it afforded when it was 

adopted,” Jones, 565 U.S. at 411, 132 S. Ct. at 953, suggesting “the scope 

of Fourth Amendment protection remains fixed [at the eighteenth-century 

standard] despite intervening changes in trespass law,” Kerr, 2012 Sup. 

Ct. Rev. at 923. Yet, “the existence of a property interest is determined by 
94 

reference to ‘existing rules or understandings that stem from an 

independent source such as state law.’ ” Phillips v. Wash. Legal Found., 

524 U.S. 156, 164, 118 S. Ct. 1925, 1930 (1998) (quoting Bd. of Regents of 

State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)). 

Hence, “[c]hanges in trespass law could be recognized as changing the 

scope of protections without truly changing the Fourth Amendment.” Kerr, 

2012 Sup. Ct. Rev. at 93. Given the changes to common law trespass over 

time, it is appropriate for us to follow the trespass laws of today rather than 

of the eighteenth century. 

Today, the common law doctrine of trespass to chattel requires “some 

actual damage to the chattel before the action can be maintained.” Jones, 

565 U.S. at 419 n.2, 132 S. Ct. at 957 n.2 (Alito, J., concurring in judgment) 

(quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on 

Law of Torts 87 (5th ed. 1984) [hereinafter Prosser & Keeton]). Where the 

alleged trespasser “merely interferes without doing any harm—as where, 

for example, he merely lays hands upon the plaintiff’s horse, or sits in the 

car” there is no action for trespass “in the absence of any actual damage.” 

Prosser & Keeton at 87; see also Restatement (Second) of Torts § 218, at 

420 (Am. L. Inst. 1981) (explaining one is only liable for a trespass to chattel 

if that person “dispossesses the other of the chattel”; “the chattel is 

impaired as to its condition, quality, or value”; “the possessor is deprived 

of the use of the chattel for a substantial time”; or “bodily harm is caused 

to the possessor, or harm is caused to some person or thing in which the 

possessor has a legally protected interest”). Similarly, Iowa law generally 

only criminalizes a “trespass” if some form of damage accompanies the 

trespass. See Iowa Code § 716.7(2). 

Here, Officer Heinz merely touched Wright’s garbage cans without 

causing any actual damage to them. Therefore, even if Wright’s garbage 
95 

cans were constitutionally protected effects, Officer Heinz did not commit 

a trespass in violation of the Fourth Amendment or article I, section 8 by 

briefly touching them. I believe Officer Heinz acted lawfully when he 

obtained Wright’s garbage from the edge of the public alley and accordingly 

would affirm the district court’s orders denying Wright’s motion to 

suppress. 

D. Problems with the Majority’s Approach. By attempting to 

resolve what it characterizes as “competing, inconsistent doctrines 

governing seizure and search law,” the majority injects more uncertainty 

into our search and seizure jurisprudence. The majority hides its most 

significant holding in this case by waiting until the last portion of its 

opinion to declare, “Within the meaning of article I, section 8, an officer 

acts unreasonably when, without a warrant, the officer physically 

trespasses on protected property or uses means or methods of general 

criminal investigation that are unlawful, tortious, or otherwise 

prohibited.” It follows that rule with a citation to a law review article and 

the following quote from that article in parentheses that enlightens the 

majority’s reader to the far-reaching impact of its holding: 

[A] court should ask whether government officials have 

engaged in an investigative act that would be unlawful for a 

similarly situated private actor to perform. That is, stripped of 

official authority, has the government actor done something 

that would be tortious, criminal, or otherwise a violation of 

some legal duty? Fourth Amendment protection, in other 

words, is warranted when government officials either violate 

generally applicable law or avail themselves of a governmental 

exemption from it. 

William Baude & James Y. Stern, The Positive Law Model of the Fourth 

Amendment, 129 Harv. L. Rev. 1821, 1825–26 (2016). 

The majority’s broad conclusion that an officer’s conduct is 

“unreasonable” and thus in violation of article I, section 8, “when, without 
96 

a warrant, the officer physically trespasses on protected property or uses 

means or methods of general criminal investigation that are unlawful, 

tortious, or otherwise prohibited” flies in the face of the United States 

Supreme Court and calls into question the constitutionality of many of our 

laws currently allowing law enforcement officers to take certain actions 

during investigations that private citizens cannot take. Unlike private 

citizens, law enforcement officers have increased arrest authority,14 may 

enter private property to make an arrest under certain conditions,15 issue 

citations in lieu of arrest,16 arrest a material witness without a warrant,17

participate in a crime for the purpose of gathering evidence under some 

conditions,18 execute a Terry stop,19 use roadblocks for vehicle stops under 

proper circumstances,20 and perform certain seizures under the 

community caretaking doctrine,21 to name a few of the ways law 

enforcement authority exceeds that of private citizens. Or at least it did 

until today. 

Under the majority’s reasoning, it appears numerous valid law 

enforcement methods are no longer allowed without a warrant because 

these actions are prohibited if performed by a private citizen. “Our 

 

14Iowa Code section 804.7 lists six situations in which a peace officer may make 

an arrest without a warrant while Iowa Code section 804.9, which governs arrests by 

private persons, only lists two situations in which a private person may make an arrest. 

15See Iowa Code § 804.15. 

16See Iowa Code § 805.1(1). 

17See Iowa Code § 804.11(1). 

18See Iowa Code § 704.11(1). 

19See State v. Tyler, 830 N.W.2d 288, 292–93 (Iowa 2013) (discussing the validity 

of investigatory or Terry stops in the traffic stop context). 

20See State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980) (en banc) (explaining 

when law enforcement may use roadblocks to stop vehicles for investigatory purposes). 

21See State v. Werner, 919 N.W.2d 375, 379 (Iowa 2018) (explaining the 

community caretaking doctrine). 
97 

decisions have universally held that the purpose of a Terry stop is to 

investigate crime,” concluding such warrantless stops—including traffic 

stops—were justified if law enforcement had reasonable suspicion to 

investigate a crime. State v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013). A 

private citizen who conducts a warrantless traffic stop that temporarily 

hinders the motorist’s ability to leave for the purposes of investigating a 

crime subjects himself to criminal and civil liability for various offenses. 

See, e.g., Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385, 388 (Iowa 

2000) (en banc) (“We have defined false imprisonment as an unlawful 

restraint on freedom of movement or personal liberty. The elements of the 

tort are (1) detention or restraint against a person’s will, and (2) 

unlawfulness of the detention or restraint.” (citation omitted)). Because the 

majority concludes an officer’s conduct is “unreasonable” and thus in 

violation of article I, section 8, “when, without a warrant, the officer 

physically trespasses on protected property or uses means or methods of 

general criminal investigation that are unlawful, tortious, or otherwise 

prohibited,” investigative Terry stops may now be unconstitutional because 

a private citizen cannot lawfully use the same means of criminal 

investigation. 

Likewise, the exigent circumstances exception to the warrant 

requirement is no more under the majority’s rationale. In the past, we have 

upheld warrantless searches if they were “based on probable cause and 

exigent circumstances.” State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 

2001). If “a person of reasonable prudence would believe a crime has been 

committed or that evidence of a crime might be located in the particular 

area to be searched” and exigent circumstances existed, officers had the 

authority to conduct a warrantless search. Id. at 108–09. These 

circumstances included situations that involved “danger of violence and 
98 

injury to the officers; risk of the subject’s escape; or the probability that, 

unless immediately seized, evidence will be concealed or destroyed.” Id. at 

108. However, a private citizen is technically subject to various criminal 

offenses for entering another person’s private property without consent to 

conduct a warrantless search regardless of these exigent circumstances, 

so the exigent circumstances exception to the warrant requirement now 

appears to have a shaky foundation under the majority’s holding today. 

The community caretaking exception to the warrant requirement, 

too, would no longer be a reliable law enforcement tool under the majority’s 

holding. Under this exception, we previously upheld law enforcement’s 

warrantless seizures if law enforcement was engaged in “bona fide 

community caretaker activity” that the officer subjectively intended to 

engage in and the “public need and interest outweigh[ed] the intrusion 

upon the privacy of the citizen.” State v. Coffman, 914 N.W.2d 240, 245 

(Iowa 2018) (quoting State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003)). 

We have previously discussed the United States Supreme Court case of 

Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523 (1973), to explain the 

purpose of the community caretaking function. There, officers entered an 

automobile to remove the defendant’s unattended firearm from the vehicle 

before it was towed away in what the Supreme Court considered a 

constitutional warrantless search because it was justified under the 

community caretaking exception. Id. at 437, 447–48, 93 S. Ct. at 2526, 

2531. According to the majority’s expansive definition of unreasonable 

conduct, this sort of action to protect the public may no longer be 

constitutional because it involves a physical intrusion on personal 

property. 
99 

“Westlaw will be busy tracking down and flagging the decisions of 

our court that, after today, are no longer good law.” Schmidt v. State, 909 

N.W.2d 778, 819 (Iowa 2018) (Mansfield, J., dissenting). 

Clarity as to what the law requires is generally a good thing. It 

is especially beneficial when the law governs interactions 

between the police and citizens. Law enforcement officials 

have to make many quick decisions as to what the law requires 

where the stakes are high, involving public safety on one side 

of the ledger and individual rights on the other. 

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 601 (Iowa 2011). 

Unfortunately, our state law enforcement officials are now left with a guessand-see approach to many actions previously considered lawful, 

undermining public safety in the process. 

III. Conclusion.

For these reasons, I would affirm the district court’s denial of 

Wright’s motion to suppress and its judgment of conviction. 

Waterman and Mansfield, JJ., join this dissent. 
100 

#19–0180, State v. Wright 

WATERMAN, Justice (dissenting). 

I respectfully dissent and join the separate dissents of Chief Justice 

Christensen and Justice Mansfield. I too would affirm the decisions of the 

district court and court of appeals denying the defendant’s motion to 

suppress. I write separately to emphasize several points. 

First, the majority’s new de facto test—if a private citizen can’t 

search discarded trash, the police can’t do it either—has never been 

recognized by any court or dissent in the country.22 That is not surprising. 

The test makes little sense. Police officers can do many things private 

citizens cannot. For example, I can’t set up a roadblock for vehicle 

equipment checks. I can’t run red lights to respond to a 911 call for help. 

I can’t detain someone I suspect of a crime (Terry stop). I can’t offer a 

complicit neighbor a cooperation agreement to inform on the drug dealer 

next door. I can’t search a fellow passenger’s luggage boarding a plane or 

 

22The majority opinion begins with a quote from a dissent “that government 

officials shall be subjected to the same rules of conduct that are commands to the citizen.” 

The majority’s introductory paragraph describes that limitation on the police as a 

“bedrock constitutional principle.” The majority nevertheless purports to retreat from its 

broad test by stating in footnote five in division III(E) that it is holding something else: 

“[A]rticle I, section 8 prohibits an officer engaged in general criminal investigation from 

conducting a search or seizure that constitutes a trespass on a person’s house, papers, 

or effects without first obtaining a warrant.” That brief retreat to a narrower holding is 

reversed in division IV(D), when the majority again touts its broader test, favorably 

quoting a law review article proposing that a “court should ask whether government 

officials have engaged in an investigative act that would be unlawful for a similarly 

situated private actor to perform.” So forgive my skepticism that the new test is the 

narrower one stated in footnote five. 

In any event, I disagree with the premise of the majority’s “holding” that trash 

placed curbside for disposal is an effect entitled to constitutional protection. The majority 

cites no court holding that discarded garbage is an effect entitled to Fourth Amendment 

protection. Today’s majority decision stands alone among trash rip cases in equating 

“garbage bags” with “expensive luggage” for purposes of determining the “container[’]s” 

constitutional protection. And the majority joins a jurisprudential fringe in concluding a 

defendant “did not abandon all right, title, and interest” in garbage placed curbside for 

collection. 
101 

a fellow fan’s backpack entering Kinnick Stadium. Police officers can do 

those things and many others without a court-issued warrant. Until 

today, they could search discarded trash for evidence of crimes, hardly an 

infringement on anyone’s civil liberties. 

I would not adopt a new constitutional test that has not been vetted 

by the adversary process and adjudicated first by the district court. The 

majority denies the State the opportunity to make a record in district court 

on all the problems with its new approach. By the majority author’s own 

standards, Wright waived any reliance on this new test by never asking 

the court to adopt it. State v. Gibbs, 941 N.W.2d 888, 905 (Iowa 2020) 

(McDonald, J., concurring specially in the judgment, joined by Oxley, J.). 

The majority is guilty of faux originalism, “living” constitutionalism, 

and ahistorical analysis. The majority finds no support for its newly 

concocted test in the Federalist Papers or the debates at the Iowa 

constitutional convention. Those sources are neither confronted nor 

consulted to test its false premise that law enforcement historically could 

not search garbage. Again, I am not surprised. “I have no doubt that 

examining people’s waste has been an investigative tool of law enforcement 

throughout recorded history.” State v. Morris, 680 A.2d 90, 104 (Vt. 1996) 

(Dooley, J., dissenting). That longstanding practice continues to this day, 

as shown in Chief Justice Christensen’s dissent, in its second footnote. 

The majority cites no historical evidence to the contrary. The reality is 

that citizens have scavenged through discarded waste for centuries. Mary 

Downs & Martin Medina, A Short History of Scavenging, 42 Compar. 

Civilizations Rev. 23, 23 (2000) (“The recovery of materials from waste to 

be reused or recycled has been carried out for millennia, and probably 

throughout the whole of human history.”). “Scavenging flourished during 

the nineteenth century,” and in the United States, peddlers freely searched 
102 

trash in alleyways and town dumps for items of value. Id. at 34–35. 

Applying the logical converse of the majority’s test: “if a private citizen can 

do it, so can the police,” then discarded trash was fair game for perusal by 

laypeople and law enforcement alike when our federal and state 

constitutions were written. 

The historical record belies any claim that at the time of our nation’s 

founding, police could not conduct warrantless searches outside homes to 

investigate crime. On the contrary, constables, customs officials, and 

other law enforcement officers enjoyed statutory authority to seize and 

search private property outside the home. See Gerard V. Bradley, Present 

at the Creation? A Critical Guide to Weeks v. United States and Its Progeny, 

30 St. Louis U. L.J. 1031, 1041–45 & nn.64–65 (1986) (“Warrantless 

searches, then as now, were the rule rather than the exception, and each 

of the thirteen colonies, and then states, as a common statutory practice, 

authorized them. The First Congress, which passed the fourth 

amendment, also authorized warrantless searches.” (footnote omitted)). 

Indeed, private citizens could search and seize illicit goods as well. “At 

common law, any person may at his peril, seize for a forfeiture to the 

government; and if the government adopt his seizure, and the property is 

condemned, he will be completely justified . . . .” Gelston v. Hoyt, 16 U.S. 

(3 Wheat.) 246, 310 (1818).23 Our framers focused on protecting private 

homes from searches pursuant to general warrants, not discarded trash. 

 

23See also Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 

757, 767 (1994) (“At common law, it seems that nothing succeeded like success. Even if 

a constable had no warrant, and only weak or subjective grounds for believing someone 

to be a felon or some item to be contraband or stolen goods, the constable could seize the 

suspected person or thing. The constable acted at his peril. If wrong, he could be held 

liable in a damage action. But if he merely played a hunch and proved right—if the 

suspect was a felon, or the goods were stolen or contraband—this ex post success 

apparently was a complete defense.”). Again, discarded trash was fair game for searches 

by police and private citizens alike when our Federal Constitution was enacted. 
103 

See David E. Steinberg, Restoring the Fourth Amendment: The Original 

Understanding Revisited, 33 Hastings Const. L.Q. 47, 62 (2005) (“From the 

beginning, the doctrine of unreasonable searches and seizures focused on 

house searches, and not other types of government conduct.”). It is 

specious to claim police could not search discarded trash outside the 

home’s curtilage at our nation’s founding and then project that 

nonexistent limitation on Officer Heinz in Clear Lake today. 

The majority’s historical analysis involves sleight of hand by 

equating lack of authority to enter private homes without a warrant in 

1789 or 1857 to lack of authority to search discarded trash outside the 

home’s curtilage. That is a leap too far today and at our nation’s founding. 

The majority correctly recognizes that the Iowa search and seizure 

provision “as originally understood, was meant to provide the same 

protections as the Fourth Amendment, as originally understood.” Put 

another way, our state constitution’s framers did not require greater

restrictions on law enforcement. 

Chest-thumping about our independent power to interpret the Iowa 

Constitution is not persuasive. Our court should not rely on our 

independent constitutional authority simply to evade federal precedent we 

don’t like.24 We should explain why a different result is supported by 

 

24The majority cites State v. Ochoa, 792 N.W.2d 260 (Iowa 2010), seven times and 

State v. Short, 851 N.W.2d 474 (Iowa 2014), three times, quoting liberally from those 

decisions. Their common denominator with today’s decision is that the court freelanced 

under the Iowa Constitution to evade settled federal precedent and create a new standard 

the defendant never raised or argued and is contrary to the position of most state courts. 

See State v. Baldon, 829 N.W.2d 785, 835–47 (Iowa 2013) (Mansfield, J., dissenting) 

(cataloging flaws in Ochoa); see also Short, 851 N.W.2d at 507–19 (Waterman, J., 

dissenting); id. at 519–27 (Mansfield, J., dissenting); id. at 527–45 (Zager, J., dissenting). 

Today’s majority also quotes liberally from State v. Ingram, 914 N.W.2d 794 (Iowa 2018), 

another 4–3 decision of breathtaking overbreadth that unnecessarily handicaps law 

enforcement in vehicle inventory searches. See id. at 824–25 (Mansfield, J., concurring 

specially). I would not rely on the shifting sands of this court’s mistakes departing from 

the national consensus in search and seizure precedents. 
104 

differences in the text, history, or purpose of the Iowa provision, persuasive 

decisions from our sister states, or practical problems. See State v. 

Gaskins, 866 N.W.2d 1, 50–56 (Iowa 2015) (Waterman, J., dissenting) 

(urging use of neutral interpretive principles or divergence criteria). Such 

analysis is missing in the majority and concurring opinions, and thereby 

“vindicate[s] the worst fears of the critics of judicial activism.” State v. 

Hempele, 576 A.2d 793, 816 (N.J. 1990) (O’Hern, J., concurring in part 

and dissenting in part). Consistency with federal precedent interpreting 

identical language promotes legitimacy: 

We have declared that “[d]ivergent interpretations are 

unsatisfactory from the public perspective, particularly where 

the historical roots and purposes of the federal and state 

provisions are the same.” A citizen becomes confused when 

he or she finds that under virtually identical constitutional 

provisions, it is permissible for a federal agent, but not a 

[state] law-enforcement officer, to search his or her 

garbage. . . . In my view, garbage does not change its 

constitutional dimensions based on who searches the garbage 

in a particular location. Different treatment of such an 

ordinary commodity appears illogical to the public and hence 

breeds a fundamental distrust of the legal system that 

develops such distinctions. 

Id. at 817 (Garibaldi, J., dissenting) (first alteration in original) (citation 

omitted) (quoting State v. Hunt, 450 A.2d 952, 955 (N.J. 1982)). Applying 

its own divergence criteria, the Minnesota Supreme Court recently 

declined to depart from federal precedent in holding police could conduct 

warrantless searches of garbage under its state constitution. State v. 

McMurray, 860 N.W.2d 686, 690–95 (Minn. 2015). We should reach the 

same conclusion. 

As set forth in Chief Justice Christensen’s dissent, federal 

authorities nationwide and police in the overwhelming majority of states 

can lawfully conduct warrantless searches of garbage placed out for 

collection. That is because most courts view trash as abandoned property 
105 

devoid of any reasonable expectation of privacy, as Justice Mansfield 

further explains in his dissent. The majority relies on no court in any 

jurisdiction that has held garbage discarded for pickup is an “effect” within 

the meaning of the Fourth Amendment or equivalent state constitutional 

search and seizure provision. Trash rips are an important investigatory 

tool for law enforcement; they gather evidence leading to search warrants 

that shut down meth labs and other societal scourges. We will now see 

more federal drug prosecutions in Iowa because today’s decision effectively 

ends the use of trash rips in state criminal prosecutions. Offenders facing 

federal time without parole likely won’t view today’s decision as advancing 

their civil liberties. 

The scope and import of today’s decision is at best unclear, at worst 

tumultuous. Perhaps it only applies to trash pulls in localities with an 

ordinance like Clear Lake’s, and local elected officials can simply amend 

the ordinance to restore police powers to search garbage for evidence of 

crimes. Because people in most places can dumpster dive and remove 

items without being arrested for trespass or theft, life may go on 

unchanged in much of the state. Perhaps the new test is dicta that does 

not bind our trial courts in other contexts. But we won’t have to wait long 

for defense counsel to argue Terry stops are now unconstitutional because 

a private citizen cannot detain someone acting suspiciously. Or that our 

decision reaffirming the automobile exception to the warrant requirement,

State v. Storm, 898 N.W.2d 140, 156 (Iowa 2017), is no longer good law 

because a private citizen cannot conduct a traffic stop. The majority 

asserts that “[c]urrent Fourth Amendment jurisprudence is a mess” to 
106 

justify a new test that simply exacerbates uncertainty. Their decision 

raises more questions than it answers and creates a far bigger mess.25 

I would follow California v. Greenwood, 486 U.S. 35, 40–41, 108 

S. Ct. 1625, 1628–29 (1988), and our state’s published appellate decisions 

holding that police do not need a warrant to search garbage placed out for 

collection. See State v. Skola, 634 N.W.2d 687, 689–91 (Iowa Ct. App. 

2001) (applying the Greenwood analysis under both the United States and 

Iowa Constitutions to uphold a police search of the defendant’s garbage); 

State v. Henderson, 435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988) (same). 

Today’s majority has not identified any problems that justify departing 

from this well-settled precedent. See 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.”). 

“Courts adhere to the holdings of past rulings to imbue the law with

continuity and predictability and help maintain the stability essential to 

society.” “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.” 

State v. Iowa Dist. Ct., 902 N.W.2d 811, 817 (Iowa 2017) (citation omitted) (first quoting 

State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014); then quoting McElroy v. State, 703 

 

25The majority self-servingly overstates the alleged incoherence of federal search 

and seizure precedent. See Davis v. United States, 564 U.S. 229, 247, 131 S. Ct. 2419, 

2433 (2011) (“Decisions overruling this Court’s Fourth Amendment precedents are rare.”). 

By contrast, the special concurrence finds coherence in trends in Fourth Amendment 

precedent, but doesn’t like the outcomes and would simply rely on the Iowa Constitution 

to get to his desired result. 

Presumably, we will soon see a wave of postconviction-relief (PCR) actions seeking 

to overturn convictions in cases where a trash rip led to inculpatory evidence and a larger 

wave of PCRs alleging defense counsel provided constitutionally-deficient representation 

for failing to anticipate our court would adopt the new test limiting police investigations 

to what private citizens can do. 
107 

N.W.2d 385, 394 (Iowa 2005)). Finding no compelling reason to overrule precedent, I 

would stay the course.

The majority identifies only six states that do not follow Greenwood 

under their state constitutions. People v. Edwards, 458 P.2d 713, 718 

(Cal. 1969) (en banc) (pre-Greenwood decision holding defendant had a 

justified expectation of privacy in garbage can next to his house); State v. 

Goss, 834 A.2d 316, 319 (N.H. 2003) (rejecting Greenwood under New 

Hampshire Constitution, construing state constitution to provide greater 

protection than the Fourth Amendment); Hempele, 576 A.2d at 814 

(majority opinion) (rejecting Greenwood under New Jersey Constitution); 

State v. Crane, 254 P.3d 117, 123 (N.M. Ct. App. 2011) (holding defendant 

had reasonable expectation of privacy in garbage under New Mexico 

Constitution), aff’d on other grounds, 329 P.3d 689, 698–99 (N.M. 2014); 

Morris, 680 A.2d at 96 (majority opinion) (“The Vermont Constitution does 

not require the residents of this state to employ extraordinary or unlawful 

means to keep government authorities from examining discarded private 

effects.”); State v. Boland, 800 P.2d 1112, 1116–17 (Wash. 1990) (en banc) 

(rejecting Greenwood under privacy clause of Washington Constitution, 

with four justices dissenting). None of these decisions relied on the 

rationale adopted today—if a private citizen can’t do it, neither can a police 

officer. I don’t find those cases persuasive. 

The New Hampshire, Vermont, and Washington decisions expressly 

relied on unique privacy clauses or other textual provisions not found in 

the Iowa or Federal Constitutions. Goss, 834 A.2d at 318–19; Morris, 680 

A.2d at 93, 96; Boland, 800 P.2d at 1115–16. For that reason, in Storm

we declined to follow decisions from those states rejecting the automobile 

exception. 898 N.W.2d at 153. The California case preceded Greenwood

and is factually distinguishable because “the trash can was within a few 
108 

feet of the back door of defendants’ home and required trespass for its 

inspection.” Edwards, 458 P.2d at 718. By contrast, Officer Heinz never 

walked across Wright’s yard to look in a trash container not yet placed out 

for collection. His feet remained planted on the public alleyway. 

The dissents in these trash cases are more persuasive. As Justice 

Guy, who dissented in Boland, stated: 

[O]ne who discards his trash and places it at curbside to be 

picked up assumes the risk that the garbage collector may be 

an agent of the police or may permit the police to examine the 

unconglomerated trash once it is picked up. 

800 P.2d at 1123 (Guy, J., dissenting). Even if under the majority’s 

trespass theory an officer can’t reach over the property line into a garbage 

can, “[p]olice merely have to wait until the trash is carried a few feet further 

than the curb and is emptied into the collection bin of the garbage truck 

before engaging in a warrantless search.” Id. “Collectors do not bear some 

kind of fiduciary relationship with trash customers to make sure that their 

trash remains inviolate.” Goss, 834 A.2d at 321 (Broderick, J., dissenting) 

(quoting United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978)). 

Justice Broderick noted: 

In my opinion and in the overwhelming opinion of other 

jurisdictions, as well as the United States Supreme Court, a 

defendant’s subjective expectation of privacy in the contents 

of his trash left for pickup adjacent to a public way is not 

objectively reasonable. 

Id. at 320. People know this, which is why they shred sensitive documents 

and cut up credit cards before disposal. When “virtually every other court 

that has considered the issue” finds no reasonable expectation of privacy 

in discarded trash, one cannot conclude “general social norms” support a 

privacy interest in that trash. Hempele, 576 A.2d at 818 (Garibaldi, J., 

dissenting). 
109 

The Wyoming Supreme Court unanimously considered and refused 

to join these states that found greater protection for trash under their 

constitutions and instead held the Wyoming Constitution did not require 

a warrant to search trash. Barekman v. State, 200 P.3d 802, 809–10 (Wyo. 

2009) (“[O]nce Mr. Barekman placed his trash in the barrel at the curb . . . 

he evidenced the intent to relinquish any expectation of privacy he had in 

the contents.”). We should reach the same conclusion as the Wyoming 

Supreme Court. 

For these reasons and those set forth in my colleagues’ dissents, I 

am unable to join the majority decision. 

Christensen, C.J., and Mansfield, J., join this dissent. 
110 

#19–0180, State v. Wright

MANSFIELD, Justice (dissenting).

Caliban: “Let it alone, thou fool; it is but trash.” William 

Shakespeare, The Tempest act 4, sc. 1 [hereinafter The Tempest]. 

Caliban is right, it is but trash. To me, this case begins and ends 

with the syllogism that trash is trash. It is nobody’s property; it has been 

voluntarily abandoned. Nicholas Wright put his two garbage cans out for 

collection next to a public alley without lids on them. If a private citizen 

had pulled something out of those cans, Wright would have no cause of 

action against that citizen. Yet somehow Officer Heinz violated his rights? 

I respectfully dissent and would affirm the denial of the motion to 

suppress. 

To get to the odd result that trash set out for collection is 

constitutionally protected, the majority purports to follow traditional 

search and seizure principles. But the majority isn’t restoring article I, 

section 8 to its original understanding. Instead, it bobs and weaves 

through five divisions, with reasoning as ephemeral as a spirit summoned 

by Ariel. 

In reality, the majority doesn’t adhere to traditional search and 

seizure principles, which focus on property rights and reasonable 

expectations of privacy. Rather, the majority fashions a brand new rule of 

search and seizure: If a private citizen can’t do it, the police can’t do it 

either. 

It’s true that the reasonable-expectations-of-privacy branch of 

Fourth Amendment jurisprudence has become more controversial in 

recent years. Several members of the United States Supreme Court have 

sought to pull back from reasonable expectations of privacy and restore a 

more consistent emphasis on property rights. See, e.g., Carpenter v. 
111 

United States, 585 U.S. ___, ___, 138 S. Ct. 2206, 2238–44 (2018) (Thomas, 

J., dissenting); id. at ___, 138 S. Ct. at 2264–68 (Gorsuch, J., dissenting). 

But no respected jurist, to my knowledge, has heretofore said that the 

fundamental rule is: “If a private citizen can’t do it, law enforcement can’t 

do it as well.” 

The majority’s approach disregards the plain text of article I, section 

8. That section protects “[t]he right of the people to be secure in their

persons, houses, papers and effects.” Iowa Const. art. I, § 8 (emphasis 

added). Something that you’ve voluntarily thrown away is no longer your

effect. 

The majority’s approach also completely fails to deal with standing. 

Obviously, private citizens cannot enter other people’s motel rooms 

without permission. But when a sheriff’s deputy did so, we upheld the 

warrantless entry because the defendant had not actually rented the room. 

See State v. Brooks, 760 N.W.2d 197, 206 (Iowa 2009). We said, “A 

defendant challenging a search and seizure occurring in the motel room of 

a third person must demonstrate that he personally has an expectation of 

privacy in the place searched, and that his expectation is reasonable.” Id.

at 205. Because the defendant lacked standing to challenge the search, 

his motion to suppress was properly denied. Id. But under the majority’s 

newly hatched rule, the search would be no good, because cops cannot do 

what private citizens cannot do. 

This case could be viewed through the lens of standing. Once Wright 

put his trash out for collection along the public alley, he lost standing to 

complain about what happened to it. See State v. Bumpus, 459 N.W.2d 

619, 625 (Iowa 1990) (“Once an individual voluntarily abandons property 

he or she no longer has standing to challenge any search or seizure that 

may be made.”). 
112 

In short, far from being faithful to Blackstone, Coke, Story, or any 

other venerable source, the majority’s standard is its own home brew. All 

to protect trash! Instead of the majority’s standard, I would follow existing 

United States Supreme Court and Iowa precedent. I would also apply 

traditional property law, which makes clear that Wright no longer had a 

legally protected interest in his trash when he put the open garbage cans 

out for pickup. 

I. There Is No Constitutionally Protected Interest in Trash Set 

Out for Collection; This Case Should Be Decided Based on Traditional 

Property Law. 

California v. Greenwood of course resolves any claim that the search 

of Wright’s trash violated his Fourth Amendment rights. See 486 U.S. 35, 

37, 108 S. Ct. 1625, 1627 (1988). At the request of the police, the regular 

trash collector picked up Greenwood’s trash only and turned it over to the 

police. Id. This allowed the police to obtain evidence of narcotics use and 

grounds for a search warrant. Id. at 38, 108 S. Ct. at 1627. The Supreme 

Court sustained the constitutionality of the trash pull, reasoning that 

Greenwood had no reasonable expectation of privacy in his trash placed 

on the street for collection. Id. at 40–41, 108 S. Ct. at 1628–29. 

Without incident or objection, Greenwood has been followed under 

the Iowa Constitution for the last thirty-three years. See also State v. 

Skola, 634 N.W.2d 687, 690–91 (Iowa Ct. App. 2001) (applying the 

Greenwood analysis under both the United States and Iowa Constitutions 

to uphold a police search of the defendant’s garbage); State v. Henderson, 

435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988) (same).

Admittedly, Greenwood has come under criticism for its reliance on 

reasonable expectations of privacy. See Carpenter, 585 U.S. at ___, 138 

S. Ct. at 2266 (Gorsuch, J., dissenting). I agree that reasonable 
113 

expectations can be a squishy concept. But reverting to traditional 

principles of property law leads to the same result. Trash that you’ve 

abandoned is no longer your property. When you turn it over to the trash 

collector, this isn’t a bailment, it’s an abandonment. 

The Fourth Amendment and article I, section 8 don’t prohibit 

examining other people’s lives. They protect people against unreasonable 

searches and seizures of “their persons, houses, papers, and effects.” 

Garbage that has been abandoned at a publicly accessible spot is none of 

those things. It has ceased to be anything in which the discarder has any 

legal interest. 

Let’s go back to an earlier Supreme Court case that preceded 

Greenwood. In Abel v. United States, the Supreme Court relied on 

abandoned property principles to uphold the retrieval of trash from a 

wastebasket after the defendant had vacated a hotel room: 

Nor was it unlawful to seize the entire contents of the 

wastepaper basket, even though some of its contents had no 

connection with crime. So far as the record shows, petitioner 

had abandoned these articles. He had thrown them away. So 

far as he was concerned, they were bona vacantia. There can 

be nothing unlawful in the Government’s appropriation of 

such abandoned property. 

362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960). To the extent we find the 

reasoning of Greenwood unsatisfactory for article I, section 8 purposes, 

Abel works just fine. 

Shifting the focus to Wright’s real property or his garbage cans 

doesn’t change the outcome in this case. Officer Heinz didn’t set foot on 

Wright’s land. The record shows that he reached into the garbage cans 

from the public alley. Nor did he commit trespass to chattel by 

unintentionally and briefly brushing against Wright’s garbage cans. 
114 

Because the trash had been abandoned and Officer Heinz did not 

commit a trespass on Wright’s real or personal property, there was no 

violation of the Fourth Amendment or article I, section 8. There is no need 

here to resort to Prospero’s books and magic; we can and should decide 

this case simply on the basis of traditional property law. For all these 

reasons, I would affirm. 

I will now return to discuss the majority opinion in more detail. 

Simply stated, the law “doth suffer a sea-change” in the majority opinion. 

The Tempest, act 1, sc. 2. 

II. The Majority’s Discussion of Traditional Property Law Is 

Mistaken. 

Invoking traditional property law, the majority claims that Wright 

had not abandoned his trash. Therefore, according to the majority, Officer 

Heinz physically trespassed on it. 

This discussion needs to be read carefully because it has no actual 

support in traditional property law. The entire basis for the majority’s 

claim of nonabandonment and physical trespass is the City of Clear Lake 

antiscavenging ordinance. That ordinance makes it unlawful for anyone 

other than an authorized solid waste collector from “[t]ak[ing] or 

collect[ing] any solid waste which has been placed out for collection on any 

premises.” Clear Lake, Iowa, Code of Ordinances § 105.11(4) (2003). In 

the majority’s view, that ordinance gave Wright an ongoing property right 

in his trash even after he left it out for collection. I disagree. 

The ordinance making it unlawful to rummage through other 

people’s garbage cans is intended to prevent some of the adverse side 

effects of rummaging, such as items being removed from garbage cans and 

ending up as litter on the ground. It is not intended to confer some kind 

of higher privacy status on garbage that it would not otherwise have. We 
115 

know this because the stated purpose of this chapter is “to protect the 

citizens of the City from such hazards to their health, safety and welfare 

as may result from the uncontrolled disposal of solid waste.” Id. § 105.01. 

It is also important to review the Clear Lake ordinance as a whole. 

It reads, 

Prohibited Practices. 

It is unlawful for any person to: 

1. Unlawful Use of Containers. Deposit refuse in any 

solid waste containers not owned by such person without the 

written consent of the owner of such containers. 

2. Interfere with Collectors. Interfere in any manner 

with solid waste collection equipment or with solid waste 

collectors in the lawful performance of their duties as such, 

whether such equipment or collectors be those of the City, or 

those of any other authorized waste collection service. 

3. Incinerators. Burn rubbish or garbage except in 

incinerators designed for high temperature operation, in 

which solid, semisolid, liquid or gaseous combustible refuse 

is ignited and burned efficiently, and from which the solid 

residues contain little or no combustible material, as 

acceptable to the Environmental Protection Commission. 

4. Scavenging. Take or collect any solid waste which 

has been placed out for collection on any premises, unless 

such person is an authorized solid waste collector. 

5. Burn Barrels. Burn solid waste in any burn barrel 

or other type of container. 

6. Landscape Waste. Burn any landscape waste/yard 

waste. 

Id. § 105.11. 

Ordinance 105.11(4) is thus part of a list of “Prohibited Practices.” 

The entire list is aimed at activities that interfere with the orderly collection 

of trash and lead to unsanitary conditions. Public health is the concern, 

not private property. Hence, the Clear Lake ordinance doesn’t alter the 

reality that trash is trash. 
116 

Under the common law, abandonment involves an act of 

abandonment plus intent, both of which were present here. See Benjamin 

v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995) (en banc) 

(“Property is abandoned when the owner no longer wants to possess it. 

Abandonment is shown by proof that the owner intends to abandon the 

property and has voluntarily relinquished all right, title and interest in the 

property.” (citation omitted)); Abandonment, Black’s Law Dictionary (11th 

ed. 2019) (defining “abandonment” as “[t]he relinquishing of a right or 

interest with the intention of never reclaiming it”). An antiscavenging 

ordinance is simply irrelevant to this inquiry. 

If the majority’s analysis were right, then Abel was wrongly decided. 

That sixty-one-year-old Supreme Court precedent, not discussed or even 

cited by the majority, held that a defendant who threw away items in a 

hotel room wastebasket had no basis to complain when they were retrieved 

by a federal agent. See Abel, 362 U.S. at 241, 80 S. Ct. at 698. Of course, 

private persons other than hotel employees could not have lawfully 

accessed the wastebasket in Abel, just as here private persons other than 

solid waste collectors could not have lawfully removed items from the trash 

cans. But that did not affect the fact that the defendant had abandoned

his trash. 

III. The Majority’s “Bedrock Constitutional Principle” Cannot 

Withstand Scrutiny. 

So we come to the real basis for the majority’s decision—its 

supposed “bedrock constitutional principle” that the police under search 

and seizure law can do nothing that a private citizen cannot do. Again, 

the majority relies on the Clear Lake ordinance prohibiting anyone other 

than an authorized solid waste collector from “[t]ak[ing] or collect[ing] any 

solid waste which has been placed out for collection on any premises.” 
117 

Clear Lake, Iowa, Code of Ordinances § 105.11(4). Ergo, the majority 

insists, this means Officer Heinz violated Wright’s article I, section 8 rights 

when he took something out of his garbage cans. 

There is kind of a glib attractiveness to this position. But it’s wrong. 

Does the majority believe that in performing their investigative duties, the 

Clear Lake police cannot enter a city park between 11 p.m. and 5 a.m.? 

See id. § 47.05(1) (prohibiting private citizens from doing this). That they 

can’t park their patrol car in any spot where private citizens are not 

allowed to park? See id. § 69.06 (same). That they can’t park for more 

than two hours? See id. § 69.13 (same). That they can’t drive on a 

barricaded street? See id. § 135.05 (same). Clearly, law enforcement can 

do things that private citizens cannot do. 

If the majority’s theory held water, a fleeing suspect who threw away 

contraband could successfully file a motion to suppress if law enforcement 

picked up the contraband from a spot that private citizens are technically 

not permitted to enter. After all, that is essentially the majority’s theory 

in this case. 

IV. The Majority’s Selective Quotations and Long Historical 

Discursions Do Not Support Its Asserted Bedrock Constitutional 

Principle. 

The majority’s quotations to support its “cops can’t do what private 

citizens can’t do” rule are taken out of context. Consider the majority’s 

treatment of Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013). The 

majority portrays the case as an illustration of its “cops can’t do what 

private citizens can’t do” rule of law. But the case was actually decided 

based on traditional property rights. Law enforcement brought a drugsniffing dog onto the porch of the defendant’s home to conduct an 

extensive—and successful—sniff. Id. at 4, 133 S. Ct. at 1413. 
118 

The Supreme Court resolved the case based on property principles, 

which made the case “straightforward.” Id. at 5, 133 S. Ct. at 1414. The 

Court explained, 

The officers were gathering information in an area 

belonging to Jardines and immediately surrounding his 

house—in the curtilage of the house, which we have held 

enjoys protection as part of the home itself. And they gathered 

that information by physically entering and occupying the 

area to engage in conduct not explicitly or implicitly permitted 

by the homeowner. 

Id. at 5–6, 133 S. Ct. at 1414. Later in the opinion, the Court discussed 

what “any private citizen might do” when entering the defendant’s 

property, not because that was the underlying principle but because it 

illustrated the scope of the common law property right that anchored the 

Court’s decision. Id. at 8, 133 S. Ct. at 1416 (quoting Kentucky v. King, 

563 U.S. 452, 469, 131 S. Ct. 1849, 1862 (2011)). 

The majority’s quick take on Caniglia v. Strom, 593 U.S. ___, 141 

S. Ct. 1596 (2021), also oversimplifies its meaning. In that case, as the 

majority notes, the Court again acknowledged that “officers may generally 

take actions that ‘any private citizen might do’ without fear of liability.” Id.

at ___, 141 S. Ct. at 1599 (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at 

1416). But the converse isn’t true. That isn’t all officers may do. Indeed, 

the Caniglia Court presented this as an additional warrant exception, not 

the only one. See id. at ___, 141 S. Ct. at 1599. 

The majority also provides some musty legal history. These include 

a dissertation on the early Iowa caselaw on search and seizure. I am 

uncertain what purpose this narrative serves. None of the cases involve 

trash, none of the cases are difficult, and we would not decide the legality 

of the searches any differently under current search and seizure law. 

Today, as in 1859, a sheriff cannot seize someone’s property by pretending 
119 

to have a writ of attachment he does not have. See Pomroy & Co. v. 

Parmlee, 9 Iowa 140, 147 (1859). Today, as in 1904, a sheriff needs a 

warrant to search a home. See McClurg v. Brenton, 123 Iowa 368, 371–

72, 98 N.W. 881, 882 (1904). These cases do not prove the majority’s claim 

of a bedrock constitutional principle. 

V. Recasting the Asserted Bedrock Constitutional Principle as 

a Rule of “Trespass” Does Not Advance the Majority’s Analysis. 

In footnote 5, the majority tries to recast its bedrock constitutional 

principle as one of trespass law. According to the majority, Officer Heinz 

committed a trespass. Yet footnote 5 freely concedes that Officer Heinz 

would not have committed a trespass at common law. Instead, the 

majority maintains that the Clear Lake ordinance redefined trespass. 

This is an intriguing argument, but if I were Officer Heinz I would 

not be concerned that the majority “did bass my trespass.” The Tempest, 

act 3, sc. 3. 

For one thing, under traditional search and seizure principles, what 

matters is whether the defendant had a property right as to which the 

defendant committed a common law trespass. United States v. Jones, 565 

U.S. 400, 405, 132 S. Ct. 945, 949 (2012) (“[O]ur Fourth Amendment 

jurisprudence was tied to common-law trespass, at least until the latter 

half of the 20th century.”) (Scalia, J.). Clear Lake did not purport to 

redefine property rights or common law trespass, nor would Clear Lake 

have had the power to do so. See Iowa Code § 364.1 (2017). As I have 

explained, the antiscavenging ordinance didn’t give Wright a legal 

entitlement to that which he had already abandoned, nor would it have 

given him a legal right to sue anyone. Footnote 5 adds nothing to the 

majority opinion, except to make its central holding more elusive. There 
120 

is a critical difference, glossed over by the majority, between a municipal 

health and safety ordinance and traditional state property law. 

VI. Near the End of Its Opinion, the Majority Abandons Its 

Bedrock Constitutional Principle and Resorts to Its Own Mistaken 

Reasonable Expectations Analysis. 

One possible saving grace with the majority’s decision is that 

municipalities can avoid its effects simply by changing their ordinances. 

Repeal the ordinance forbidding private citizens from “scavenging” trash, 

and trash pulls by law enforcement will become lawful once again. 

Or maybe not. About seven-eighths of the way through its opinion, 

the majority backtracks. That is when the majority tells us, “Of course, 

this is not to say article I, section 8 rises and falls based on a particular 

municipal law.” So much, I guess, for bedrock constitutional principle. At 

this point, the majority embraces the “reasonable expectation of privacy” 

perspective it had previously disparaged. 

However, the majority doesn’t opt for the settled Iowa law on 

reasonable expectations of privacy and trash pulls, as set forth in two 

published decisions of our court of appeals. Instead, it adopts the views 

expressed en passant by Justice Gorsuch in his Carpenter dissent. 

Notably, in a paragraph of that dissent, Justice Gorsuch offers a brief 

critique of Greenwood. See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266. 

The majority’s reliance on Justice Gorsuch is unpersuasive to me. 

First, I think Justice Gorsuch’s assessment of social norms is wrong. See 

id. at ___, 138 S. Ct. at 2266 (“I doubt, too, that most people spotting a 

neighbor rummaging through their garbage would think they lacked 

reasonable grounds to confront the rummager.”). In many neighborhoods, 

people would not think twice about someone removing something from a 

garbage can after it has been set out for collection. The person violating 
121 

the social norm would be the person confronting the scavenger, not the 

scavenger. 

Second, it’s odd for the majority to invoke Justice Gorsuch on 

reasonable expectations because he was actually arguing against such an 

approach. His main point was that reasonable expectations had “yielded 

an often unpredictable—and sometimes unbelievable—jurisprudence.” Id.

at ___, 138 S. Ct. at 2266. 

Here lies my one point of agreement with the majority. In analyzing 

article I, section 8, it might be better if we focused more on traditional 

property law than on reasonable expectations of privacy (although both 

sources support the lawfulness of the trash pull in this case). That being 

said, the majority’s “rough magic,” The Tempest, act 5, sc. 1, bears no 

resemblance to traditional property law. 

Trash is as old as Shakespeare’s time, and we should not be making 

up new search and seizure law to deal with it. 

And if we are going to be devising new law, we should at least be 

direct, open, and consistent about it—all areas where the majority falls 

well short. From page to page, the majority opinion shifts ground. One 

moment, according to the majority, the antiscavenging ordinance is 

dispositive. Then, it isn’t. At first this is a case about police being unable 

to do what private citizens can’t do. Then it’s a case about traditional 

property law. Then it’s a case about reasonable expectations. According 

to the majority, the Iowa Constitution has a fixed, original meaning. Until 

it doesn’t. 

The majority opinion “seeks to hide itself.” The Tempest, act 3, sc. 

1. I respectfully predict it will have a short life as a precedent. 
122 

VII. The Special Concurrence Does Not Add to the Force of the 

Majority’s Arguments, and in Some Ways Undermines Them. 

The special concurrence says almost nothing about the issue 

actually before this court. Instead of providing pertinent legal analysis on 

trash removals, the special concurrence retells a story about search and 

seizure that its author has already told in prior opinions. See, e.g., State 

v. Brown, 930 N.W.2d 840, 873–99 (Iowa 2019) (Appel, J., dissenting); 

State v. Short, 851 N.W.2d 474, 481–93 (Iowa 2014). 

The special concurrence wants to make a point about methodology. 

The special concurrence is concerned about excessive reliance on the 

original meaning of constitutional provisions, especially when there is 

“modern technology.” According to the special concurrence: 

“[C]onsideration must be given to the evolving precedent interpreting openended constitutional provisions and to contemporary contexts and public 

attitudes.” 

But these justifications for the special concurrence seem 

inadequate. Trash cans are not modern technology. And what does it 

mean to say that precedents can evolve, that courts get to consider 

contemporary contexts, and that public attitudes can be taken into 

account? Such statements may describe how judges act, but they aren’t 

methodologies. 

I prefer to rely on the sound precedent set forth in Abel, Greenwood, 

Skola, and Henderson. Under a property rights approach as discussed in 

Abel, Wright had abandoned his trash and Officer Heinz committed no 

trespass by removing items from the open cans left out for collection. 

Under a reasonable expectations approach as discussed in Greenwood,

Skola, and Henderson, Wright had no reasonable expectation of privacy in 

trash cans put out for collection. 
123 

It is noteworthy that the special concurrence holds out Justice 

Frankfurter for particular praise in the area of search and seizure. See

Brown, 930 N.W.2d at 879 (describing Justice Frankfurter as one of two 

“leading Court historians on search and seizure”); Short, 851 N.W.2d at 

497, 503, 505–06 (commenting favorably on Justice Frankfurter’s Fourth 

Amendment approach and quoting from him repeatedly). 

I would follow Justice Frankfurter’s example here. Notably, Justice 

Frankfurter wrote the decision in Abel. See 362 U.S. at 218, 80 S. Ct. at 

686. In upholding the trash pull, Justice Frankfurter concluded, “There 

can be nothing unlawful in the Government’s appropriation of such 

abandoned property.” Id. at 241, 80 S. Ct. at 698. 

For the reasons stated in this dissent and the separate dissents of 

my two colleagues, I would affirm Wright’s convictions and sentence. 

Christensen, C.J., and Waterman, J., join this dissent.