State of Iowa v. Scottize Danyelle Brown

Under article I, section 8 of the Iowa Constitution, can a police officer use a common minor traffic violation as an after-the-fact pretext to seize a vehicle and its passengers when the actual reason for the stop was constitutionally inadequate? Today's majority says yes. I say NO!

I. Summary.

History demonstrates that one of the fundamental purposes of search and seizure law is to cabin the discretion of police officers in choosing whom to subject to search and seizure. Generalized discretion in the hands of a law enforcement official has been anathema to the search and seizure provisions of both the Fourth Amendment and article I, section 8 of the Iowa Constitution. No case considering search and seizure issues can be consistent with the history and purpose of the constitutional provisions without carefully considering whether the discretion of police officers is so unbridled that it vests in them power equivalent to the hated general authority to search.

As will be seen below, in my view, law enforcement officers have what amounts to general authority to seize drivers on the open road due to the density of traffic regulations and the pervasiveness of minor violations. That means that the traditional limitations to search and seize do not apply on the open road and the risk of arbitrary enforcement is great. As a result, consistent with the history and purpose of search and seizure law, there must be constitutional restraints on the generalized discretion in order to protect citizens from arbitrary actions of law enforcement.

For many years, our legal tradition frowned on pretextual searches as violating search and seizure principles. Early federal cases questioned the validity of pretextual searches. And up until the 1990s, the trend among state courts was to disapprove pretextual searches as violating search and seizure. Iowa caselaw was part of the general trend for decades.

All that changed when the Supreme Court announced its decision in Whren v. United States , 517 U.S. 806, 811-16, 116 S. Ct. 1769, 1773-76, 135 L.Ed.2d 89 (1996). As will be explored below, Whren departed from the trend in state courts and made a flawed turn in the development of search and seizure law. In my view, the wrong turn made in Whren should not be emulated by this court in its interpretation of the Iowa Constitution.

As a state supreme court, we are not bound by Whren but should only consider it to the degree it is persuasive. It is well established in other states and in Iowa that the mere fact there is a similarity in the language of the Fourth Amendment and article I, section 8 of the Iowa Constitution does not mean that federal precedent has any more power beyond its ability to persuade. I find Whren unpersuasive because of its failure to limit general police discretion to engage in roadway seizures. In light of its unconvincing rationale and the weakness of existing authority, the doctrine of stare decisis does not excuse us from considering the validity of pretextual stops under the Iowa Constitution.

The decision in this case is bad law. The approach of the majority fails to recognize the history of search and seizure law and the importance of curbing generalized law enforcement discretion, fails to recognize that law enforcement in practice has general authority to stop vehicles on the open road due to the pervasiveness of regulations, fails to recognize or deal with the problems of implicit bias, fails to recognize *872the reality of racial profiling, fails to recognize the shortcomings of alternative remedies, and fails to recognize the constitutional harms caused by generalized seizures on the open road.

Because of the importance of the issue, an in-depth analysis of the history of search and seizure law, the doctrinal developments in the law, and the impact on the law in light of current realities is appropriate. We simply should not bless pretextual stops by law enforcement without a thorough understanding of where the law has been, how it has evolved, and how it might develop.

II. Factual Background and Proceedings.

A. Initial Proceedings. On November 23, 2015, the State filed a trial information charging Scottize Brown with a second offense of operating a motor vehicle while intoxicated, an aggravated misdemeanor, in violation of Iowa Code section 321J.2(2)(b ) (2016). Brown pled not guilty. She subsequently filed a motion to suppress, claiming she was unlawfully subjected to a pretextual stop. In her motion to suppress, Brown claimed that the stop violated both the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution.

B. Evidence Presented at the Motion to Suppress Hearing. At the motion to suppress hearing, Waterloo police officer Justin Brandt testified that he observed a Lincoln Navigator cross the centerline while driving through an intersection on a yellow light in Waterloo, Iowa, in the early morning hours. Officer Brandt told the court he followed the vehicle and "ended up running the license plate on it." He determined that the registered owner of the vehicle had a valid license. Officer Brandt testified that he then "got curious" and, "having the time to do so," opened up a database and "somewhere in that database [he] ended up seeing that there is some kind of connection with gang activity or something with the registered owner." Officer Brandt further testified that he noticed that one of the two license plate lamps on the vehicle was not operating. According to Brandt, he "wasn't even going to stop" the car for the traffic violations until he ran the plate and learned of the gang affiliation of the owner. Upon learning of the gang affiliation, he wanted to "poke around and see what's up."

Officer Brandt told the court he then followed the vehicle for a couple of blocks, after which he activated his emergency lights to conduct a traffic stop. The vehicle continued on, however, and Officer Brandt initiated his siren. At that point, the vehicle stopped.

Officer Brandt approached the vehicle and obtained identification from Brown as the driver of the vehicle. Officer Brandt testified that he could smell alcohol and saw an open can of beer in the front cup holder. According to Officer Brandt, Brown admitted to drinking earlier but said the open can was not hers. Officer Brandt determined that Brown was driving with a suspended license and transported her to the police station. At the police station, Officer Brandt stated, Brown failed several field sobriety tests and refused to submit to a breath test.

C. District Court Ruling on the Motion to Suppress. The district court denied Brown's motion to suppress. It noted that Officer Brandt first observed the vehicle at a red light where it made an improper turn. The district court found that after observing the improper turn, Officer Brandt determined that the registered owner was associated with local gang activity. It further found that Officer Brandt followed the vehicle to another red light, where he observed one of the vehicle's *873license plate lights was not properly functioning. According to the district court, it was apparent that Officer Brandt would not have made the stop absent the gang affiliation of the registered owner.

The district court held that notwithstanding the subjective motivation of Officer Brandt, he had observed a traffic infraction-the improper turn-as well as an equipment violation-the license plate light. It held that because there were objective violations, the subjective motive of Officer Brandt did not matter. In support of its legal conclusion, the district court cited State v. Aderholdt , 545 N.W.2d 559, 563 (Iowa 1996), and State v. Harrison , 846 N.W.2d 362 (Iowa 2014). As a result, the district court denied the motion to suppress.18

The matter proceeded to trial on the minutes of testimony. The district court found Brown guilty of operating a motor vehicle while intoxicated, second offense. Brown appealed.

D. Issues on Appeal. On appeal, Brown argues that the district court erred by failing to suppress the evidence arising from the seizure of the automobile she was driving. Brown claims that the stop was not, in fact, initiated as a result of a minor traffic infraction but was pretextual in nature and that the real reason for the stop was constitutionally insufficient. On appeal, Brown makes her claim solely under article I, section 8 of the Iowa Constitution.

III. Standard of Review.

This court reviews claims of unconstitutional searches and seizures de novo. State v. Gaskins , 866 N.W.2d 1, 5 (Iowa 2015). In engaging in de novo review, "[w]e independently evaluate the totality of the circumstances found in the record, including the evidence introduced at both the suppression hearing and at trial." State v. Vance , 790 N.W.2d 775, 780 (Iowa 2010). Here, however, Brown waived her right to a jury trial and pled guilty. As a result, there is no trial court evidentiary record to review.

IV. Overview of Search and Seizure Law.

A. Historical Overview of Relevant Search and Seizure Law.

1. Hatred of general warrants and writs of assistance animates the American Revolution. In several recent cases, this court explored the history of search and seizure law under the Federal and Iowa Constitutions. See, e.g. , Godfrey v. State , 898 N.W.2d 844, 866-67 (Iowa 2017) ; State v. Short , 851 N.W.2d 474, 481-84 (Iowa 2014) ; State v. Baldon , 829 N.W.2d 785, 805-09 (Iowa 2013) (Appel, J., specially concurring); State v. Ochoa , 792 N.W.2d 260, 269-75 (Iowa 2010). A brief summary of this history provides the context for consideration of the questions posed in this case.

One of the great advancements in English law during the eighteenth century *874was the development and clear articulation of judicial protection of individuals from arbitrary, government-sponsored search and seizure. The key cases center around the efforts of Lord Halifax's government to suppress dissent. Government agents generally ransacked residences and premises looking for telltale signs of involvement in the publication of a scurrilous antigovernment broadside. Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation § 2.2.3.2, at 36 (2008); Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789- 1868 , at 20 (2006). In a series of cases, the English courts held that such searches without probable cause were illegal and imposed hefty fines against the perpetrators. Entick v. Carrington (1765) 95 Eng. Rep. 807, 818; 2 Wils. K.B. 275, 292; Wilkes v. Wood (1763) 98 Eng. Rep. 489, 498-99; Lofft 1, 18-19; Huckle v. Money (1763) 95 Eng. Rep. 768, 768-69; 2 Wils. K.B. 205, 205-07.

The forces of resistance to generalized governmental searches traveled in the boats over to the New World and landed in the infamous Paxton's Case. See Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review , 77 B.U. L. Rev. 925, 946 (1997) [hereinafter Maclin, The Complexity of the Fourth Amendment ]. In Paxton's Case , James Otis Jr., a prominent Massachusetts lawyer and powerful orator, bitterly attacked the Crown's provincial agents for engaging in arbitrary searches under generalized writs of assistance that did not name a specific individual but authorized the Crown's minions to search in their discretion for evidence of evasion of British mercantile policy. William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 , at 377-82, 385-95 (2009) [hereinafter Cuddihy]; Maclin, The Complexity of the Fourth Amendment , 77 B.U. L. Rev. at 946.

Otis lost the case, but the powerful blows struck by his forceful argument were not lost on John Adams, who declared, "Then and there the Child Independence was born." Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 37 (1966) (quoting Letter from John Adams to William Tudor (Mar. 29, 1817), in 10 The Works of John Adams 244, 247-48 (Charles Francis Adams ed., Bos., Little, Brown & Co. 1856)). Adams remembered the lessons of Paxton's Case when he drafted the Massachusetts Constitution of 1780. Leonard W. Levy, Origins of the Bill of Rights 158 (1999); John M. Murrin, From Liberties to Rights: The Struggle in Colonial Massachusetts , in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties 63, 91 (Patrick T. Conley & John P. Kaminski eds., 1992). In the Massachusetts Constitution, Adams included a search and seizure provision that limited the authority of the government to engage in searches without a particularized warrant. Thomas Y. Davies, Recovering the Original Fourth Amendment , 98 Mich. L. Rev. 547, 684-85 (1999) [hereinafter Davies]. But cf. Tracey Maclin, Race and the Fourth Amendment , 51 Vand. L. Rev. 333, 333-36 (1998) [hereinafter Maclin, Race and the Fourth Amendment ] (discussing arbitrary and discriminatory search and seizure practices of slave patrols in the colonial American South). See generally Akhil Reed Amar, Fourth Amendment First Principles , 107 Harv. L. Rev. 757, 779-80 & n.87 (1994) (discussing historical predicate for the particularized-warrant requirement in American law).

The precedent set in the Massachusetts Constitution, and other state constitutions enacted shortly thereafter, had a dramatic influence on the development of the United States Constitution. See *875Short , 851 N.W.2d at 481-82. The United States Constitution was ratified only upon the assurance by James Madison and others that a series of amendments known as the Bill of Rights would be adopted after enactment. In drafting the Bill of Rights, Madison looked to state constitutional tradition in developing what became the Fourth Amendment to the United States Constitution. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights , 90 Harv. L. Rev. 489, 501 (1977) ; see Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition? , 85 S. Cal. L. Rev. 1451, 1454-55, 1491-92 (2012) [hereinafter Calabresi et al.]. Indeed, all of the Bill of Rights provisions had predecessors in prior state constitutions. See Calabresi et al., 85 S. Cal. L. Rev. at 1454-55, 1491-92. The notion of a bill of rights was not a concept developed by the federal framers and then copied by the states, but was a concept embraced by state constitutions and later adopted by the federal framers. Short , 851 N.W.2d at 481-82.

Iowa adopted two state constitutions: the first in 1846 and the second in 1857. See id. at 482. The search and seizure language adopted in article I, section 8 of both the Iowa Constitution of 1846 and of 1857 is nearly identical to the Federal Constitution except for the use of a semicolon instead of a comma between the reasonableness clause and the warrant clause. Compare U.S. Const. amend. IV, with Iowa Const. art. I, § 8. The language in the Federal Constitution was largely derived from eight state constitutions that had search and seizure provisions prior to the adoption of the federal document. See Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 88 (expanded ed. 1992).

Although the language in the Fourth Amendment and article I, section 8 is similar. There is no reason for a state court to be "bound" by federal interpretations of the Fourth Amendment. As noted by Judge Jeffrey Sutton, "There is no reason to think, as an interpretive matter, that constitutional guarantees ..., even guarantees with the same or similar words, must be construed the same." Short , 851 N.W.2d at 487 (quoting Jeffrey S. Sutton, What Does-and Does Not-Ail State Constitutional Law , 59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter Sutton] ). We have explained the principles of independent interpretation of the Iowa Constitution on several occasions. See, e.g. , id. at 481-92 ; Baldon , 829 N.W.2d at 803-34 ; State v. Pals , 805 N.W.2d 767, 771-72 (Iowa 2011) ; Ochoa , 792 N.W.2d at 264-67.

We are not alone. See, e.g. , Wright v. State , 108 N.E.3d 307, 315 (Ind. 2018) (explaining that the state constitution demands independent analysis in light of its uniqueness); State v. Gerschoffer , 763 N.E.2d 960, 965 (Ind. 2002) ("The Indiana Constitution has unique vitality, even where its words parallel federal language."); People v. Barber , 289 N.Y. 378, 46 N.E.2d 329, 331 (N.Y. 1943) (pointing out that the New York Court of Appeals is "bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States"); State v. Arrington , 311 N.C. 633, 319 S.E.2d 254, 260 (N.C. 1984) ("In construing provisions of the Constitution of North Carolina, this Court is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States."); Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 895-96 (Pa. 1991) ("Although the wording of the Pennsylvania Constitution is similar in language to the Fourth *876Amendment of the United States Constitution, we are not bound to interpret the two provisions as if they were mirror images, even where the text is similar or identical."); O'Boyle v. State , 117 P.3d 401, 408 (Wyo. 2005) (noting that the search and seizure provision of the Wyoming Constitution, which parallels the Fourth Amendment, "constitutes a separate and independent source of protection of the rights of Wyoming citizens"). See generally Baldon , 829 N.W.2d at 824.

2. Search and seizure concepts: Requirement of justification supporting particular searches and protection of the public against arbitrary government action. The search and seizure provisions of the Federal Constitution and the Iowa Constitution perform two functions. First, the search and seizure provisions are designed to ensure that government searches and seizures are justified. The justification ordinarily requires the state to establish to the satisfaction of a neutral magistrate that the proposed search or seizure is supported by probable cause and that the search is limited both with respect to its scope and purpose.

Second, however, the search and seizure provisions are designed to ensure that the government does not engage in the arbitrary exercise of power. For example, in Entick , Judge Pratt bristled at the notion that the Crown could willy-nilly engage in searches based on common activity. 95 Eng. Rep. at 818; 2 Wils. K.B. at 292. Judge Pratt acknowledged that although prior caselaw said that a man may be "punishable for having a libel in his private custody," "half the kingdom would be guilty ... if libels may be searched for and seized by whomsoever and wheresoever the Secretary of State thinks fit." Id.

Just as in Wilkes , Entick , and other cases, the attacks against writs of assistance in America prior to the American Revolution were also based on the potential of arbitrary enforcement of broadly framed, general power. As noted by the Supreme Court in one of its first Fourth Amendment cases, James Otis declared the writs of assistance were

"the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;" since they placed "the liberty of every man in the hands of every petty officer."

Boyd v. United States , 116 U.S. 616, 625, 6 S. Ct. 524, 529, 29 L.Ed. 746 (1886) (quoting Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 368 (Bos., Little, Brown & Co., 5th ed. 1883)), abrogations on other grounds recognized by Fisher v. United States , 425 U.S. 391, 407-09, 96 S. Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976). "[C]olonists who battled the British did not trust or defer to the judgments of British customs officials" in furthering what the British, no doubt, thought was the critically important public policy of financing the cost of the public defense of the colonists, through arbitrary search and seizure of untaxed goods authorized by open-ended writs. See Tracey Maclin, The Central Meaning of the Fourth Amendment , 35 Wm. & Mary L. Rev. 197, 248 (1993) [hereinafter Maclin, The Central Meaning of the Fourth Amendment ].

Indeed, just as, according to Entick , half the kingdom would be subject to arbitrary search and seizure because of the prevalence of private libel, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292, smuggling to avoid taxes in the colonies was extremely common, Barbara C. Salken, *877The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses , 62 Temp. L. Rev. 221, 255-56 (1989). It is not surprising that, in the New World, warnings arose about unfettered discretion to search and seize. In words echoing Judge Pratt, Mercy Otis Warren, James Otis's daughter, cautioned that without a Bill of Rights, the proposed Federal Constitution would tolerate "the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure." Paul Finkelman, The Ten Amendments as a Declaration of Rights , 16 S. Ill. U. L.J. 351, 392 (1992) [hereinafter Finkelman] (quoting A Columbian Patriot (Mercy Otis Warren), Observations on the New Constitution, and on the Federal and State Conventions (1788), reprinted in 16 The Documentary History of the Ratification of the Constitution 272, 281 (Merrill Jensen ed., 1976)). In short, the "general warrants known as writs of assistance [that] ... bedeviled the colonists" remained "[v]ivid in the memory of the newly independent Americans." Stanford v. Texas , 379 U.S. 476, 481, 85 S. Ct. 506, 510, 13 L.Ed.2d 431 (1965).

In the words of Professor Anthony Amsterdam in his often cited and unsurpassed article on the Fourth Amendment, search and seizure law protects against not only unjustified searches but also arbitrary searches and seizures "conducted at the discretion of executive officials, who may act despotically and capriciously in the exercise of the power to search and seize." Anthony G. Amsterdam, Perspectives on the Fourth Amendment , 58 Minn. L. Rev. 349, 411 (1974) [hereinafter Amsterdam]. Professor Amsterdam went on to explain,

A paramount purpose of the fourth amendment is to prohibit arbitrary searches and seizures as well as unjustified searches and seizures.... Arbitrary searches and seizures are "unreasonable" searches and seizures; ruleless searches and seizures practiced at the varying and unguided discretion of thousands of individual peace officers are arbitrary searches and seizures; therefore, ruleless searches and seizures are "unreasonable" searches and seizures.

Id. at 417. Before the innovations in search and seizure doctrine in the Burger-Rehnquist-Roberts era, the Supreme Court repeatedly recognized that the constitutional limitations on search and seizure protect people against arbitrary government acts. See, e.g. , Camara v. Mun. Ct. of S.F. , 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L.Ed.2d 930 (1967) ; see also United States v. Ortiz , 422 U.S. 891, 895, 95 S. Ct. 2585, 2588, 45 L.Ed.2d 623 (1975) ; United States v. Brignoni-Ponce , 422 U.S. 873, 878, 95 S. Ct. 2574, 2579, 45 L.Ed.2d 607 (1975).

By controlling otherwise unfettered search and seizure discretion of law enforcement, the Fourth Amendment, from the get-go, protected unpopular minorities against majoritarian government institutions. For example, Madison-the author of the Fourth Amendment-was well aware of the general searches of the homes of unpopular minority Philadelphia Quakers whose pacifist inclinations were thought to be evidence that they were British spies. See Cuddihy at 618-19; Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment , 74 N.Y.U. L. Rev. 956, 996 (1999) [hereinafter Thompson]. Although African-Americans were not afforded equal status by the federal government until at least the passage of the Reconstruction Amendments, the notion that the Fourth Amendment was designed to protect powerless minorities seems to have been well established. See Thompson, 74 N.Y.U. L. Rev. at 996-98. As noted by prominent legal scholar John Hart Ely, the Fourth Amendment is "concerned with avoiding indefensible inequities in treatment" as it may be seen as a "harbinger of the Equal Protection Clause." John Hart Ely, Democracy *878and Distrust: A Theory of Judicial Review 97 (1980).

In light of the above history, Chief Justice Warren Burger, then serving on the D.C. Circuit Court of Appeals, accurately observed that the search and seizure provisions of the Fourth Amendment reflect "deeply rooted national skepticism toward police and indeed all public authority," "a sort of briny irreverence toward officials." Warren E. Burger, Who Will Watch the Watchman? , 14 Am. U. L. Rev. 1, 1, 4 (1964) [hereinafter Burger] (quoting Edmond Cahn, The Predicament of Democratic Man 24 (1961) [hereinafter Cahn] ). The founders "viewed official power with an almost paranoid suspicion; and they believed that suspicion justified by power's inherent nature." Donald Dripps, Living With Leon, 95 Yale L.J. 906, 938 (1986). Professor Amsterdam, after reviewing the history of the Fourth Amendment, wrote that "[t]he Bill of Rights in general and the fourth amendment in particular are profoundly anti-government documents." Amsterdam, 58 Minn. L. Rev. at 353. Professor Tracey Maclin agrees, noting that "the central meaning of the Fourth Amendment is distrust of police power and discretion." Maclin, The Central Meaning of the Fourth Amendment , 35 Wm. & Mary L. Rev. at 201.

The Supreme Court reflected the attitude of the Revolutionary Era when it observed in McDonald v. United States that "[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted." 335 U.S. 451, 456, 69 S. Ct. 191, 193, 93 L.Ed. 153 (1948). Similarly, in Trupiano v. United States , the Supreme Court stated that "sad experience had taught [the people of the United States] that the right to search and seize should not be left to the mere discretion of the police." 334 U.S. 699, 709-10, 68 S. Ct. 1229, 1234, 92 L.Ed. 1663 (1948), overruled in part on other grounds by United States v. Rabinowitz , 339 U.S. 56, 65-66, 70 S. Ct. 430, 435, 94 L.Ed. 653 (1950), overruled by Chimel v. California , 395 U.S. 752, 766-68, 89 S. Ct. 2034, 2041-43, 23 L.Ed.2d 685 (1969). In Johnson v. United States , the Supreme Court emphasized that the Constitution places individual interests in privacy, personal security, and human dignity on a higher plane than society's interest in catching criminals. See