from the Iowa District Court for Black Hawk County, Nathan A.
Callahan, District Associate Judge.
defendant challenges her conviction for operating a motor
vehicle while intoxicated under Iowa Code section 321J.2
(2017), arguing she was subjected to an impermissible
C. Smith (until withdrawal), State Appellate Defender, and
Theresa R. Wilson, Assistant Appellate Defender, for
J. Miller, Attorney General, Kelli Huser (until withdrawal),
Kevin Cmelik, and Israel Kodiaga Assistant Attorneys General,
Brian Williams, County Attorney, and Charity Sullivan,
Assistant County Attorney, for appellee.
Bettis of ACLU of Iowa Foundation, Des Moines; Russell E.
Lovell II, Des Moines; David S. Walker, Windsor Heights; and
Andrew B. Duffelmeyer (until withdrawal) of Glazebrook &
Hurd, LLP, Des Moines, for Amici Curiae American Civil
Liberties Union of Iowa, the NAACP, League of United Latin
American Citizens of Iowa, and 1000 Kids for Iowa.
R. Ostergren, Muscatine, for amicus curiae Iowa County
case requires us to decide whether a motorist who breaks a
traffic law may lawfully be stopped if the officer was
motivated by investigative reasons for the stop. Around 12:25
a.m., a police officer observed the defendant making an
improper turn and decided to follow the defendant. At a
stoplight, the officer noticed the defendant's vehicle
had an improperly functioning license plate light and ran the
vehicle information for the vehicle's registered
owner-who was not the defendant. The vehicle information
revealed the registered owner's affiliation to gang
activity. Subsequently, the officer pulled the defendant
over, which led to his discovery of the defendant's open
beer container in the center cupholder.
State charged the defendant with operating while intoxicated
in violation of Iowa Code section 321J.2 (2016). The
defendant moved to suppress all evidence obtained after the
stop, arguing the officer conducted it in violation of the
Fourth Amendment of the United States Constitution and
article I, section 8 of the Iowa Constitution because the
officer's reasons for the stop were not the traffic
violations themselves. The district court denied the motion
to suppress and later convicted the defendant following a
bench trial on the minutes. Consistent with precedent in Iowa
and the vast bulk of authority elsewhere, we affirm the
district court judgment because the subjective motivations of
an individual officer for making a traffic stop are
irrelevant as long as the officer has objectively reasonable
cause to believe the motorist violated a traffic law.
Background Facts and Proceedings.
October 17, 2015, Officer Justin Brandt of the Waterloo
Police Department observed a black Lincoln Navigator at
around 12:25 a.m. in the City of Waterloo. Officer Brandt
observed the driver accelerating at a yellow light and
passing to the left of a moving vehicle before veering across
the centerline. The traffic light changed from yellow to red
as the Lincoln Navigator passed through the intersection.
Officer Brandt followed the driver to another intersection,
where he also observed the driver's license plate light
was not properly functioning. At the red light, he ran the
vehicle information for the vehicle's registered
owner-who was not the driver- and discovered the registered
owner's association with local gang activity.
realizing the registered vehicle owner's gang
affiliation, Officer Brandt decided to stop the vehicle. He
activated his emergency lights, but the driver continued. The
driver eventually stopped the vehicle after Officer Brandt
activated his audible siren. Officer Brandt approached the
vehicle and immediately smelled an odor of alcohol coming
from the driver; he also observed an open can of beer in the
center cupholder. The driver denied ownership of the open
container but admitted to drinking prior to driving. Officer
Brandt obtained the driver's name and date of birth
because the driver did not have a license with her. The
driver was identified as Scottize Brown. Officer Brandt
determined Brown was driving with a suspended license and
transported her to the police station, where she failed
several field sobriety tests and refused to submit to a
was charged with a second offense of operating a motor
vehicle while intoxicated, an aggravated misdemeanor, in
violation of Iowa Code section 321J.2. She filed a motion to
suppress on January 15, 2016, claiming she was unlawfully
subjected to a pretextual stop in violation of both article
I, section 8 of the Iowa Constitution and the Fourth
Amendment of the United States Constitution. The district
court held a hearing on the motion on February 3, and it
denied Brown's motion on February 16, explaining,
"Since there were traffic violations that were
objectively observed by Officer Brandt, any subjective
reasons that may have gone into his decision to stop the
vehicle do not matter."
subsequently agreed to a trial on the minutes, and the
district court found her guilty on June 21. She was sentenced
to incarceration in Black Hawk County jail, "351 days
suspended, 14 days imposed," and to probation for one to
two years. The district court also ordered Brown to pay a
$1875 fine with surcharge, a $10 DARE surcharge, court costs,
and attorney fees. Brown appealed on March 7, 2017,
requesting that we vacate her conviction and sentence and
remand her case for dismissal because she was subjected to an
impermissible pretextual stop. We retained Brown's
Standard of Review.
a defendant challenges a district court's denial of a
motion to suppress based upon the deprivation of a state or
federal constitutional right, our standard of review is de
novo." State v. Brown, 890 N.W.2d 315, 321
(Iowa 2017). We examine the entire record and "make an
independent evaluation of the totality of the
circumstances." State v. Meyer, 543 N.W.2d 876,
877 (Iowa 1996), abrogated in part on other grounds by
Knowles v. Iowa, 525 U.S. 113, 115, 118-19, 119 S.Ct.
484, 487, 488 (1998). In doing so, we evaluate each case
"in light of its unique circumstances." State
v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (quoting
State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)).
claims are based in the Sixth Amendment of the United States
Constitution and article I, section 10 of the Iowa
Constitution. Strickland v. Washington, 466 U.S.
668, 684-86, 104 S.Ct. 2052, 2063-64 (1984); State v.
Schlitter, 881 N.W.2d. 380, 388 (Iowa 2016). We normally
preserve ineffective-assistance-of-counsel claims for
postconviction-relief proceedings. State v.
Harrison, 914 N.W.2d 178, 206 (Iowa 2018). But, "we
will address such claims on direct appeal when the record is
sufficient to permit a ruling." State v. Wills,
696 N.W.2d 20, 22 (Iowa 2005). We review
ineffective-assistance-of-counsel claims de novo.
Schlitter, 881 N.W.2d at 388.
United States Supreme Court has established an objective test
to evaluate the reasonableness of a traffic stop under the
Fourth Amendment of the United States Constitution. In prior
cases, we have applied this objective test when evaluating
whether law enforcement violated a defendant's Fourth
Amendment rights by making a pretextual traffic stop. See
State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996);
see also State v. Cline, 617 N.W.2d 277, 280-81
(Iowa 2000) (en banc), abrogated on other grounds by
State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001).
Brown now asks us to take a different approach under the Iowa
Constitution. For the reasons explained below, we decline to
do so. We first address Brown's constitutional claim, and
then turn to her ineffective-assistance-of-counsel claim
based on an argument not raised during her motion to suppress
in the district court.
Subjective Reasons to Stop Motorists.
The Fourth Amendment. The Fourth Amendment of the
United States Constitution protects individuals from
unreasonable searches and seizures. Whren v. United
States, 517 U.S. 806, 809, 116 S.Ct. 1769, 1772 (1996);
see also U.S. Const. amend. IV ("The right of
the people to be secure in their persons . . . against
unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause . . .
."). Under the Fourth Amendment, the temporary detention
of a motorist during a traffic stop is a "seizure,"
which is "subject to the constitutional imperative that
it not be 'unreasonable' under the
circumstances." Whren, 517 U.S. at 809-10, 116
S.Ct. at 1772. Generally, a traffic stop is reasonable when
the police have probable cause or reasonable suspicion to
believe that the motorist violated a traffic law.
Navarette v. California, 572 U.S. 393, 401-02, 134
S.Ct. 1683, 1690 (2014); Whren, 517 U.S. at 809-10,
116 S.Ct. at 1772; State v. Tague, 676 N.W.2d 197,
204 (Iowa 2004).
Whren, the United States Supreme Court unanimously
held that an officer's "[s]ubjective intentions play
no role in ordinary, probable-cause Fourth Amendment
analysis." 517 U.S. at 813, 116 S.Ct. at 1774. In that
case, police officers stopped a motorist and his passenger in
a "high drug area" after observing the motorist
turning without signaling then speed "off at an
'unreasonable speed.'" Id. at 808, 116
S.Ct. at 1772. Upon stopping the motorist, one of the
officers observed drugs in the motorist's hands.
Id. at 808-09, 116 S.Ct. at 1772. The officers
arrested the motorist and his passenger and retrieved various
illegal drugs from the vehicle. Id. at 809, 116
S.Ct. at 1772. Both the motorist and his passenger were
convicted of violating numerous drug laws and sought to have
their convictions reversed, arguing the district court should
have granted their suppression motions since the traffic stop
was pretextual. Id.
petitioners in Whren asked the Supreme Court to
adopt a different reasonableness test for traffic stops since
the traffic code is so expansive that it provides officers
with discretion to make pretextual stops based on factors
such as race. Id. at 810, 116 S.Ct. at 1773.
Specifically, the petitioners claimed the test for traffic
stops should be "whether a police officer, acting
reasonably, would have made the stop for the reason
given." Id. In rejecting petitioners' test,
the Supreme Court noted, "Not only have we never held,
outside the context of inventory search or administrative
inspection . . ., that an officer's motive invalidates
objectively justifiable behavior under the Fourth Amendment;
but we have repeatedly held and asserted the contrary."
Id. at 812, 116 S.Ct. at 1774. The Supreme Court
"agree[d] with petitioners that the Constitution
prohibits selective enforcement of the law based on
considerations such as race." Id. at 813, 116
S.Ct. at 1774. However, it declared "the constitutional
basis for objecting to intentionally discriminatory
application of laws is the Equal Protection Clause, not the
Fourth Amendment." Id.
Supreme Court acknowledged the expansive nature of the
traffic code and the potential for an "unsettling show
of authority" that enforcing such an expansive code
created. Id. at 817, 116 S.Ct. at 1776 (quoting
Delaware v. Prouse, 440 U.S. 648, 657, 99 S.Ct.
1391, 1398 (1979)). Nevertheless, it was "aware of no
principle that would allow [it] to decide at what point a
code of law becomes so expansive and so commonly violated
that infraction itself can no longer be the ordinary measure
of the lawfulness of enforcement." Id. at 818,
116 S.Ct. at 1777. It concluded, "[F]or the
run-of-the-mine case, which this surely is, we think there is
no realistic alternative to the traditional common-law rule
that probable cause justifies a search and seizure."
Id. at 819, 116 S.Ct. at 1777.
appeal, Brown concedes that the officer's subjective
motivations are irrelevant under the Fourth Amendment to the
United States Constitution so long as there is probable cause
to support the stop. We therefore turn to the question
whether the Iowa Constitution forbids stopping a motorist who
violated the law if that was not the officer's real
reason for the stop.
Article I, section 8. The question before us is
whether, under the Iowa Constitution, a traffic stop for a
traffic violation is "reasonable" even if the
violation did not happen to be the officer's motivation
for the stop. To put it another way, we must decide whether a
motorist who violates a traffic law has a justified
expectation that she will be able to continue down the road
without interruption unless that violation is the
officer's motivation for the stop. As we will explain
herein, we do not think article I, section 8 draws such fine
lines. It is reasonable to stop a motorist based on
reasonable suspicion that the motorist violated the law.
Scope of article I, section 8. Article I, section 8
of the Iowa Constitution protects persons against
"unreasonable seizures." Iowa Const. art. I, §
8 ("The right of the people to be secure in their
persons . . . against unreasonable seizures and searches
shall not be violated; and no warrant shall issue but on
probable cause . . . ."). It should be noted that
article I, section 8 and the Fourth Amendment have only
minimal textual differences. Article I, section 8 employs a
semicolon between the reasonableness and warrant clauses
while the Fourth Amendment uses a comma between these two
clauses. State v. Gaskins, 866 N.W.2d 1');">866 N.W.2d 1, 6
members of our court have disagreed about the semicolon's
significance. Compare State v. Short, 851 N.W.2d
474, 483 (Iowa 2014) ("This semicolon suggests the
framers believed that there was a relationship between the
reasonableness clause and the warrant clause . . . ."),
with id. at 522 (Mansfield, J., dissenting) ("I
do not think one can use this inconsequential punctuation
difference to justify a different interpretation of article
I, section 8."). "One expects that, if the
semicolon in [a]rticle I, section 8 fundamentally altered the
meaning of that provision, this argument [over differences in
punctuation marks] would have emerged at some point within
the first 150 years . . . ." Gaskins, 866
N.W.2d at 52 n.27 (Waterman, J., dissenting).
is also evidence in the 1857 debates over the Iowa
Constitution that our framers wanted our bill of rights to
provide similar protection to the Federal Bill of Rights when
they adopted similar language. For example, George W. Ells
proposed an amendment at the convention to include a
counterpart to the Federal Due Process Clause in the Iowa
Constitution, noting, "[T]he committee who have offered
the amendment to this second section, did so from a
desire that the Bill of Rights in the Constitution of
this State, should be as strong, in this respect, as the
Constitution of the United States." 1 The
Debates of the Constitutional Convention of the State of
Iowa 101-02 (W. Blair Lord rep., 1857),
library/iaconst (emphasis added). Ellis noted his desire for
his proposed due process amendment for the Iowa Constitution
to be verbatim to the Federal Due Process Clause.
Id. at 101. If the framers of the Iowa Constitution
wanted to create greater search and seizure protections for
Iowans, the nearly identical language of article I, section 8
to the Fourth Amendment does not reflect this desire.
generally "interpret the scope and purpose of the Iowa
Constitution's search and seizure provisions to track
with federal interpretations of the Fourth Amendment"
because of their nearly identical language. State v.
Christopher, 757 N.W.2d 247, 249 (Iowa 2008).
Nevertheless, we acknowledge our duty to interpret article I,
section 8 independently. See Cline, 617 N.W.2d at
292-93. "We jealously guard our right to construe a
provision of our state constitution differently than its
federal counterpart, though the two provisions may contain
nearly identical language and have the same general scope,
import, and purpose." State v. Brooks, 888
N.W.2d 406, 410-11 (Iowa 2016) (quoting State v.
Jackson, 878 N.W.2d 422, 442 (Iowa 2016)).
as to article I, section 8, we are not writing on a blank
slate. In State v. Griffin, 691 N.W.2d 734 (Iowa
2005), which was decided after Cline, we ruled
unanimously as follows:
We now hold that our pronouncement in Meyer was not
only a correct application of federal law but also accurately
described the validity of a pretextual arrest under article
I, section 8 of the Iowa Constitution for purposes of
sustaining a search incident to that arrest. If probable
cause exists for an arrest to be made, the motive for making
the arrest does not limit the right to conduct a search
Id. at 737. And in State v. Kreps, 650
N.W.2d 636 (Iowa 2002), also decided after Cline, we
The motivation of the officer stopping the vehicle is not
controlling in determining whether reasonable suspicion
existed. The officer is therefore not bound by his real
reasons for the stop.
Id. at 641 (citation omitted). So, the question
today is whether we should overturn our article I, section 8
already noted, we have similarly held under article I,
section 8 that "the motive for making the arrest does
not limit the right to conduct a search incident
thereto" under the Iowa Constitution "[i]f probable
cause exists for an arrest to be made."
Griffin, 691 N.W.2d at 737. In Griffin, an
officer stopped the defendant due to an improperly
illuminated rear license plate and an excessively loud
muffler. Id. at 736. The officer's
"computer check indicated a recent prior conviction for
failing to have proof of liability insurance for the vehicle
he was driving and prior drug-related arrests."
Id. The defendant informed the officer that he did
not have liability insurance, and the officer arrested the
defendant for all three traffic violations he observed.
Id. The officer's search of the vehicle incident
to arrest revealed drugs, and the officer testified at the
suppression hearing that he would not have arrested the
defendant if he had not suspected the vehicle contained drugs
based on the defendant's prior drug convictions.
Id. We rejected the defendant's claim that the
evidence obtained from the search should have been suppressed
because it was obtained incident to a pretextual arrest in
violation of article I, section 8 of the Iowa Constitution.
Id. at 735-36.
asks us to decline to follow our approach Griffin
and Kreps in evaluating the constitutionality of
pretextual traffic stops under the Iowa Constitution.
Brown's proposed burden-shifting framework.
Brown proposes that we interpret article I, section 8 more
broadly than the Fourth Amendment and adopt a burden-shifting
test for evaluating traffic stops. Under this burden-shifting
test, a court would allow the State to provide an objective
basis for the stop, allow the defendant to rebut that with
evidence of subjective motivation, and then allow the State
to come forward and show that the objective basis was the
real reason for the stop. We find this test unworkable for a
number of reasons.
Brown's proposed burden-shifting test is difficult to
administer. While this test appears objective on its face, it
is ultimately a subjective standard that focuses on the
officer's state of mind at the time of the traffic
stop." '[O]bjective evidence' of . . . general
police practice is simply an aggregation of the subjective
intentions of officers in the regions." United
States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). For
example, in Iowa, police practices can range from county to
county. The usual practice of police officers in Polk County
may not represent the usual practice of police officers in
Shelby County, as the problems police officers must regularly
confront in the course of their job duties quite possibly
differ between rural and urban counties. Likewise, what may
seem like a common and reasonable practice for a narcotics
officer may seem unreasonable to the highway patrolman.
Consequently, the reasonableness, and thus the validity, of
the officer's traffic stop may turn on the county in
which it is made or the detaining officer's law
enforcement division. Yet, the search and seizure protections
of article I, section 8 and the Fourth Amendment do not vary,
nor "can [they] be made to turn upon such
trivialities." Whren, 517 U.S. at 815, 116
S.Ct. at 1775.
burden-shifting test also fails to consider that there are
often a number of factors influencing an officer's
decision-making process. We have previously concluded that
parking in a frequently burglarized area can lead to an
officer's decision to stop a motorist. State v.
Richardson, 501 N.W.2d 495, 497 (Iowa 1993) (per
curiam). So, too, can pouring a can of beer out onto the
pavement of a tavern parking lot at "a time notorious
for drunken driving." State v. Rosenstiel, 473
N.W.2d 59, 62 (Iowa 1991), overruled on other grounds by
Cline, 617 N.W.2d at 281. It is unclear under the
proposed burden-shifting test when these situations become
pretextual. Our search and seizure jurisprudence requires
more certainty and uniformity than the burden-shifting test
Brown bases her request for a burden-shifting test on
concerns of racial profiling. Brown does not argue that
Officer Brandt knew she was African-American before
initiating the traffic stop. Instead, the observed traffic
violations precipitated Officer Brandt discovering the
vehicle's registered owner's gang affiliation. A key
element that often defines gangs or gang behavior is
"violent or criminal behavior as a major activity of
group members." William B. Sanders, Gangbangs and
Drive-Bys 10 (1994).
we acknowledge that police discretion can lead to racial
profiling, we are not persuaded that Brown's approach
would have any significant impact on eliminating racial
profiling. Racial profiling concerns existed when we decided
Griffin, and many of the racial profiling studies
Brown cites predate Griffin. An officer who engages
in racial profiling is also likely to be willing to lie about
it. We are hopeful, though, that the spread of technology
such as body cams, dash cams, and cell phone videos taken by
private citizens will enable our society to better monitor
and reduce racial profiling in the future.
the burden-shifting test is also unnecessary to protect
citizens from unlawful searches and seizures. "[T]he
harsh reality [is] that we lack the ability to control all
the variables leading to disparate enforcement. In few areas
is this more observable than in our criminal justice
system." Jeff D. May et al., Pretext Searches and
Seizures: In Search of Solid Ground, 30 Alaska L. Rev.
151, 184-85 (2013) [hereinafter May et al.]. The criminal
justice system is rife with "so many variables that
influence who becomes subject to prosecution that it is
difficult to isolate any one causal source of the disparate
representation we see in our statistics." Id.
at 185. Because of the numerous factors influencing law
enforcement, especially regarding areas of the law as
expansive as the traffic code, "[t]here is real doubt
that we will ever eradicate the use of pretext motivations
even if we were to prohibit them." Id.
enforcement officers "make judgments and mental
shortcuts based on [their] past experiences and
training." Id. It appears "somewhat easier
to figure out the intent of an individual officer than to
plumb the collective consciousness of law enforcement in
order to determine whether a 'reasonable officer'
would have been moved to act upon the traffic
violation." Whren, 517 U.S. at 815, 116 S.Ct.
at 1775. Brown's approach of effectively prohibiting
pretextual stops outright only risks "push[ing] its use
further into the shadows." May et al., 30 Alaska L. Rev.
case involves a relatively common scenario where a late-night
traffic stop based on an observed violation of the traffic
code leads to a determination that the driver was intoxicated
and to an OWI conviction. Although it is our job to interpret
the Iowa Constitution and not to set policy for the State of
Iowa, we think most Iowans favor this policy outcome and
would not want reduced enforcement of the drunk driving laws.
law already provides motorists with protections meant to
curtail law enforcement's abuse of authority during
traffic stops. Under article I, section 8 of the Iowa
Constitution, the officer must allow a motorist to leave
"when the reason for a traffic stop is resolved and
there is no other basis for reasonable suspicion."
State v. Coleman, 890 N.W.2d 284, 301 (Iowa 2017).
Iowa also restricts the scope of the
search-incident-to-arrest exception to the warrant
requirement under the Iowa Constitution to limit law
enforcement's ability to gather evidence incident to
arrest. See Gaskins, 866 N.W.2d at 16-17. Thus,
officers may not rely on the search-incident-to-arrest
exception to search a motorist's vehicle on the grounds
that the officers believe the vehicle contains evidence of
the arresting offense. Id. at 13-14. We even analyze
a motorist's consent to the search of a vehicle during a
traffic stop more rigorously in Iowa. See State v.
Pals, 805 N.W.2d 767, 782-83 (Iowa 2011) (applying a
narrow version of the federal totality-of-the-circumstances
test in determining consent was involuntary). These
additional protections for motorists in Iowa help limit the
potential for an abuse of authority that Brown is concerned
this is not to say that the officer's subjective
motivations are never relevant in determining the validity of
a traffic stop. "The more evidence that a detention was
motivated by police suspicions unrelated to the traffic
offense, the less credible the officer's assertion that
the traffic offense occurred." State v. Lopez,
873 P.2d 1127, 1138-39 (Utah 1994). The district court
considers the officer's credibility in determining at the
suppression hearing whether the facts justified the
officer's traffic stop at its inception. If the district
court doubts the officer's credibility and finds the
motorist did not commit a traffic violation, then the stop is
unconstitutional. In the event of an unconstitutional traffic
stop based on a claim of selective enforcement, the Equal
Protection Clause-not the State or Federal Search and Seizure
Clause-is the proper claim to bring when seeking recourse.
Whren, 517 U.S. at 813, 116 S.Ct. at 1774. To be
certain, the Equal Protection Clause prohibits selective
enforcement of the law based on racially discriminatory
grounds. See, e.g., id. ("[T]he
Constitution prohibits selective enforcement of the law based
on considerations such as race. But the constitutional basis
for objecting to intentionally discriminatory application of
laws is the Equal Protection Clause, not the Fourth
Amendment."); United States v. Coney, 456 F.3d
850, 856 n.4 (8th Cir. 2006); United States v.
Frazier, 408 F.3d 1102, 1108 (8th Cir. 2005);
Johnson v. Crooks, 326 F.3d 995, 999-1000 (8th Cir.
2003); Chavez v. Ill. State Police, 251 F.3d 612,
635 (7th Cir. 2001); Gardenhire v. Schubert, 205
F.3d 303, 319-20 (6th Cir. 2000); United States v.
Bell, 86 F.3d 820, 823 (8th Cir. 1996); United
States v. Benitez, 613 F.Supp.2d 1099, 1101-02 (S.D.
Iowa 2009); In re Prop. Seized from Kaster, 454
N.W.2d 876, 880 (Iowa 1990) (en banc); State v.
Durrell, 300 N.W.2d 134, 135-36 (Iowa 1981); State
v. Walker, 236 N.W.2d 292, 295 (Iowa 1975).
request for a departure from Griffin and
Kreps and adoption of a burden-shifting framework
for evaluating traffic stops would create instability in the
law, hinder law enforcement efforts, weaken the strength of
our adversarial system, and undermine public confidence in
the legal system. This kind of burden-shifting may work well
in employment discrimination law, where there will usually be
a fairly detailed record to evaluate, but it would be a
challenge to apply in the thousands of suppression hearings
where the legality of split-second actions are at issue.
Other states' approaches. Not only does our
article I, section 8 precedent hold that traffic stops for
traffic violations are reasonable regardless of the
officer's subjective motivation, but the vast majority of
other jurisdictions agree with us. In addition to Iowa, forty
states and the District of Columbia follow the same objective
standard we outlined in Griffin and
Kreps. Brown points to only three states that
have adopted a different standard,  and only two of these states
have adopted her proposed burden-shifting test. Yet, these states
have either subsequently disavowed their new standard or
reached that new standard based on a state constitutional
provision different from the Iowa Constitution.
example, Brown's reliance on the Superior Court of
Delaware's holding in State v. Heath, 929 A.2d
390 (Del. Super. Ct. 2006), overlooks the fact that
subsequent Delaware decisions have declined to follow
Heath because "[t]here are too many occasions
where . . . there was a lawful basis to stop a motor vehicle
for a traffic violation which led later to arrests for other
kinds of offenses." State v. Adams, 13 A.3d
1162, 1166-67 (Del. Super. Ct. 2008). The Delaware Supreme
Court has recognized that "Heath has not been
followed in any other Superior Court decisions."
Turner v. State, 25 A.3d 774, 777 (Del. 2011) (en
Brown's reliance on the Court of Appeals of New
Mexico's holding in State v. Ochoa, 206 P.3d 143
(N.M. Ct. App. 2008), ignores the heightened expectation of
privacy New Mexico courts have provided to motorists in an
automobile that Iowa does not afford. The court of appeals in
Ochoa specifically noted that this heightened
privacy expectation" 'is a distinct characteristic
of New Mexico constitutional law' and therefore supports
our departure from Whren." Id. at 151
(quoting State v. Cardenas-Alvarez, 25 P.3d 225, 231
(N.M. 2001)). In contrast, we have declined to provide
motorists with this same expectation of privacy in their
automobiles and acknowledged "the reduced expectation of
privacy [in automobiles] resulting from the
'configuration, use and regulation of
automobiles.'" State v. Storm, 898 N.W.2d
140, 146 (Iowa 2017) (quoting Arkansas v. Sanders,
442 U.S. 753, 761, 99 S.Ct. 2586, 2591 (1979), abrogated
on other grounds by California v. Acevedo, 500 U.S. 565,
575, 111 S.Ct. 1982, 1989 (1991)).
Brown's representation of the Washington Supreme
Court's holding in State v. Ladson, 979 P.2d 833
(Wash. 1999) (en banc), as another persuasive example of
departure from Whren under a state constitution,
disregards the substantially different search and seizure
provision of the Washington Constitution. Specifically,
article I, section 7 of the Washington Constitution provides,
"No person shall be disturbed in his private affairs, or
his home invaded, without authority of law." Wash.
Const. art. I, § 7. As the court noted in
Ladson, this provision "is explicitly broader
than that of the Fourth Amendment" and operates under a
different mechanism regarding the citizens' expectations
of privacy. Ladson, 979 P.2d at 837. Given the
differences between the Washington Constitution's search
and seizure provision and that of the Iowa Constitution,
Ladson carries little persuasive value in how we
should decide this case.
event, Washington's approach "has not resulted in .
. . significantly greater protections" from racial
profiling. Margaret M. Lawton, The Road to Whren
and Beyond: Does the "Would Have" Test
Work?, 57 DePaul L. Rev. 917, 920 (2008). Rather, state
courts in Washington continue to do "what courts have
always done under the [Whren] test: determining the
credibility of police officers and relying upon the totality
of the circumstances in deciding whether a traffic stop was
constitutionally permissible." Id. at 919. In
doing so, they rarely find pretextual motivations for the
officer's stop "unless the officer either testifies
to her use of pretext or the court finds that the officer is
lying about the reasons for the stop, both of which are
relatively uncommon." Id. at 957.
fact, the Washington Supreme Court more recently has
retreated from Ladson and said that it will uphold a
stop for a traffic violation "even if the legitimate
reason for the stop is secondary and the officer is motivated
primarily by a hunch or some other reason that is
insufficient to justify a stop." State v.
Arreola, 290 P.3d 983, 991 (Wash. 2012) (en banc);
see also State v. Alvarez, 430 P.3d 673, 677 (Wash.
2018) (Lawrence-Berrey, C.J., dissenting) ("It is clear
that law enforcement can conduct an investigatory stop for
conclude that the objective test articulated in
Whren applies to constitutional challenges to
traffic stops under article I, section 8 of the Iowa
Constitution. Interpreting article I, section 8 coextensive
with the Fourth Amendment in this case "ensure[s] that
the validity of such stops is not subject to the vagaries of
police departments' policies and procedures concerning
the kinds of traffic offenses of which they ordinarily do or
do not take note." Ferguson, 8 F.3d at 392. At
the same time, it does not insulate people engaged in more
egregious criminal activity "from criminal liability for
those activities simply because a judge determines that the
police officer who executed the traffic stop, had he been the
mythical reasonable officer, would not have stopped
them" for the traffic violation they committed.
Id. Moreover, the objective standard set forth in
Griffin and Kreps provides law enforcement
officers with a degree of certainty that they are acting
appropriately when they choose to enforce the traffic
violations they witness. We should not penalize law
enforcement for enforcing the law.
holding today recognizes this need for consistency by
adhering to our prior holdings. See Brewer-Strong v. HNI
Corp., 913 N.W.2d 235, 249 (Iowa 2018) ("From the
very beginnings of this court, we have guarded the venerable
doctrine of stare decisis and required the highest possible
showing that a precedent should be overruled before taking
such a step." (quoting McElroy v. State, 703
N.W.2d 385, 394 (Iowa 2005))); see also Book v.
Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa
2015) ("Stare decisis alone dictates continued adherence
to our precedent absent a compelling reason to change the
law."). Stare decisis "is an important restraint on
judicial authority and provides needed stability in and
respect for the law." Kiesau v. Bantz, 686
N.W.2d 164, 180 (Iowa 2004) (Cady, J., dissenting),
overruled on other grounds by Alcala v. Marriott
Int'l Inc., 880 N.W.2d 699, 708 & n.3 (Iowa
2016). Though it is "our role as a court of last resort
. . . to occasionally reexamine our prior decisions, we must
undertake this weighty task only for the most cogent reasons
and with the greatest caution." Id.
decided Griffin under the Iowa Constitution less
than fifteen years ago, in which we made clear that an
officer's ulterior "motive for making the arrest
does not limit the right to conduct a search incident
thereto" under the Iowa Constitution "[i]f probable
cause exists for an arrest to be made." 691 N.W.2d at
737. Despite recognizing that we were not bound by Fourth
Amendment precedent, we nevertheless "found no basis to
distinguish the protections afforded by the Iowa Constitution
from those afforded by the [F]ederal [C]onstitution under the
facts of [the] case." Id. Brown provides no new
arguments that show our holding in Griffin, or our
approval of Whren in Predka, was clearly
erroneous. See Brewer-Strong, 913 N.W.2d at 249
("This highest possible showing [for overruling
precedent] requires a demonstration that the precedent is
B. Brown's Ineffective-Assistance-of-Counsel
Claim. Brown acknowledges her trial counsel did not
specifically address her claim on appeal that Officer Brandt
lacked probable cause for the stop because she did not
violate any traffic laws. However, she asks the court to
analyze this issue under an ineffective-assistance-of-counsel
claim. The record before us is sufficient to address
Brown's ineffective-assistance claim, and we proceed to
consider her claim.
succeed on her ineffective-assistance-of-counsel claim, Brown
must prove (1) counsel failed to perform an essential duty
and (2) prejudice resulted. State v. Hopkins, 576
N.W.2d 374, 378 (Iowa 1998). To establish the first prong,
Brown must show her counsel "made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We
approach the first prong with the presumption counsel
performed her duties competently; "we measure
counsel's performance against the standard of a
reasonably competent practitioner." State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Although not
required to predict changes in the law, "counsel must
'exercise reasonable diligence in deciding whether an
issue is "worth raising." '" State v.
Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (quoting
State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999)).
Counsel is not burdened with the duty to raise an issue that
has no merit. Id.; see also State v.
Schaer, 757 N.W.2d 630, 637 (Iowa 2008). The second
prong-prejudice-results when "there is a reasonable
probability that, but for the counsel's unprofessional
errors, the result of the proceeding would have been
different." Wills, 696 N.W.2d at 22 (quoting
Hopkins, 576 N.W.2d at 378).
we did not find a basis to diverge from the protection
afforded by the Iowa Constitution from that afforded by the
United States Constitution under the facts of this case, our
analysis will apply equally to both state and federal
grounds. See Iowa Const. art. I, § 10;
State v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006).
traffic violation occurred, and the peace officer witnessed
it, the State has established probable cause. State v.
Tyler, 830 N.W.2d 288, 292 (Iowa 2013); see also
United States v. Mendoza, 677 F.3d 822, 827 (8th Cir.
2012); Tague, 676 N.W.2d at 201 ("When a peace
officer observes a violation of our traffic laws, however
minor, the officer has probable cause to stop a
motorist."). However, the State must bear the burden of
proof by a preponderance of the evidence that the officer had
probable cause to stop the vehicle. Tyler, 830
N.W.2d at 293. If the State does not meet this burden, all
evidence obtained at the stop must be suppressed. State
v. Louwrens, 792 N.W.2d 649, 651-52 (Iowa 2010).
"The existence of probable cause for a traffic stop is
evaluated 'from the standpoint of an objectively
reasonable police officer.'" Tyler, 830
N.W.2d at 293-94 (quoting Ornelas v. United States,
517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62 (1996)).
claims her trial counsel was ineffective for failing to
challenge the establishment of probable cause for the stop.
She concedes her trial counsel did properly challenge the
legality of a pretextual stop, but ultimately failed to
address the required probable cause. The State responds to
the ineffective-assistance claim by indicating a peace
officer witnessed the multiple traffic violations Brown
committed. Specifically, that Brown acted in violation of
Iowa Code section 321.257, thereby providing probable cause
for the stop.
suppression hearing, Officer Brandt testified to witnessing
Brown in violation of multiple traffic laws prior to
initiating the stop. Foremost, Officer Brandt observed
Brown's vehicle accelerate through an intersection after
the traffic-control signal changed from yellow to red. This
is in clear violation of Iowa's regulation of vehicular
traffic. See Iowa Code § 321.257. A yellow
light "means vehicular traffic is warned that the
related green movement is being terminated and vehicular
traffic shall no longer proceed into the intersection and
shall stop." Id. § 321.257(2)(b).
A red light "means vehicular traffic shall stop."
Id. § 321.257(2)(a). This traffic
violation alone, however minor, is sufficient probable cause
to stop a motorist. Tague, 676 N.W.2d at 201. It is
undisputed Officer Brandt witnessed this traffic violation
while queued at the same intersection Brown accelerated
through. The State carried its burden. See Tyler,
830 N.W.2d at 293; see also Mendoza, 677 F.3d at
827. Officer Brandt's stop of Brown's vehicle was
based on probable cause-violation of Iowa Code section
321.257. For that reason, Brown's trial counsel was not
ineffective for failing to challenge probable cause. See
Nitcher, 720 N.W.2d at 555 (noting trial counsel was not
ineffective for failing to raise an issue with no merit).
Accordingly, Brown has failed to establish the first prong of
her ineffective-assistance-of-counsel claim, and her claim
must fail. See Hopkins, 576 N.W.2d at 380
(acknowledging failure to prove either ineffective-assistance
prong is fatal to the claim).
affirm the district court decision for the aforementioned
Waterman and Mansfield and McDonald, JJ., join this opinion.
McDONALD, Justice (concurring specially).
Brown failed to establish a violation of her rights arising
under the Federal or Iowa Constitutions, and the district
court did not err in denying Brown's motion to suppress.
I thus concur in Justice Christensen's opinion affirming
Brown's conviction and sentence. I write separately to
address Brown's argument the Federal Constitution sets
the floor for claims arising under the Iowa Constitution.
in the 1960s . . ., a growing number of states began to
rediscover the independent nature of their state
constitutional provisions. [This movement is s]ometimes
called the 'new judicial federalism' . . . ."
State v. Baldon, 829 N.W.2d 785, 814 (Iowa 2013)
(Appel, J., specially concurring). In 1977, Justice William
Brennan galvanized this movement with "his call to arms
for state courts." Id. at 790 (majority
opinion); see William J. Brennan, Jr., State
Constitutions and the Protection of Individual Rights,
90 Harv. L. Rev. 489, 503 (1977). Several decades after
Justice Brennan's call to arms, this court began to
systematically address legal questions arising under the Iowa
fundamental premise of this court's most recent
jurisprudence in the area of state constitutional law has
been that "although this court cannot interpret the Iowa
Constitution to provide less protection than that
provided by the United States Constitution, the court is free
to interpret our constitution as providing greater
protection for our citizens' constitutional rights."
State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000) (en
banc), abrogated on other grounds by State v.
Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). Pursuant to
this premise, this court has treated the Iowa Constitution as
a one-way ratchet to provide only greater rights and remedies
than a parallel provision of the United States Constitution.
See, e.g., Behm v. City of Cedar Rapids,
922 N.W.2d 524, 566 (Iowa 2019) ("As a result, we apply
the substantive federal standards, reserving the right to
apply these standards in a more stringent fashion than under
federal caselaw."); Schmidt v. State, 909
N.W.2d 778, 793 (Iowa 2018) ("The Iowa Constitution
affords individuals greater rights than does the United
States Constitution."); State v. Pettijohn, 899
N.W.2d 1, 26 (Iowa 2017) ("In assessing that caselaw, we
remain mindful that decisions of the Supreme Court addressing
the scope of a right guaranteed by the United States
Constitution set a floor below which the scope of a right
guaranteed by the Iowa Constitution may not fall, but not a
ceiling above which it may not rise."); State v.
Sweet, 879 N.W.2d 811, 832 (Iowa 2016) ("In any
event, the rulings of the United States Supreme Court create
a floor, but not a ceiling, when we are called upon to
interpret parallel provisions of the Iowa
Constitution."); Nguyen v. State, 878 N.W.2d
744, 755 (Iowa 2016) ("We are free to interpret our
constitution more stringently than its federal counterpart,
providing greater protection for our citizens'
constitutional rights."); Baldon, 829 N.W.2d at
791 & n.1 ("[T]he Supreme Court's jurisprudence
regarding the freedom from unreasonable searches and seizures
under the Fourth Amendment-or any other fundamental, civil,
or human right for that matter-makes for an admirable floor,
but it is certainly not a ceiling. . . . The incorporation
doctrine commands that we no longer use independent state
grounds to sink below the federal floor.").
fundamental premise of our recent jurisprudence is not sound.
This court is free to interpret our constitution to provide
less or more protection than the Federal Constitution.
See State v. Hampton, No. 18-0061, 2019 WL 476471,
at *1-3 (Iowa Ct. App. Feb. 6, 2019) (explaining Iowa courts
can interpret the state constitution to provide less
protection than the Federal Constitution); State v.
Halverson, No. 16-1614, 2017 WL 5178997, at *3 (Iowa Ct.
App. Nov. 8, 2017) (explaining the relevant question is what
the state constitutional text means and how it applies to the
facts and circumstances of the case at hand and not whether
Iowa courts should interpret the Iowa Constitution "more
strictly" or "more broadly" than the Federal
Constitution); State v. Bohl, No. 15-1546, 2016 WL
4543957, at *1-2 (Iowa Ct. App. Aug. 31, 2016)
("Depending upon the particular issue, our precedents
interpreting article I, section 8 may provide greater or
lesser protection than cases interpreting the Fourth
Amendment."); State v. Barth, No. 14-1929, 2016
WL 740302, at *3 (Iowa Ct. App. Feb. 24, 2016) ("Barth
contends the Iowa Constitution provides greater protection
than the Federal Constitution without specifying why or how.
Regardless, Barth misstates the issue. Depending upon the
particular issue, our precedents interpreting article I,
section 8 may provide greater or lesser protection than cases
interpreting the Fourth Amendment.").
conclusion that this court can interpret the Iowa
Constitution to provide less or more protection than a
parallel provision of the Federal Constitution is inherent in
the federal system. The Bill of Rights, in and of itself,
applies only to the federal government. See Timbs v.
Indiana, __ U.S. __, __, 139 S.Ct. 682, 687 (2019)
("When ratified in 1791, the Bill of Rights applied only
to the Federal Government."); Danforth v.
Minnesota, 552 U.S. 264, 269, 128 S.Ct. 1029, 1034
(2008); Barron v. Mayor & City Council of
Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833). The Supreme
Court is the final arbiter of the meaning of the Federal
Constitution. In contrast, the Iowa Constitution applies to
the state government. This court is the final arbiter of the
meaning of the Iowa Constitution. See Minnesota v.
Nat'l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676,
679 (1940) ("It is fundamental that state courts be left
free and unfettered by us in interpreting their state
constitutions."). In determining the meaning of state
constitutional law, this court has a duty to independently
determine the meaning of the Iowa Constitution. See State
v. Gaskins, 866 N.W.2d 1');">866 N.W.2d 1, 7 (Iowa 2015). This is true
whether we interpret the Iowa Constitution to provide less or
more protection than the Federal Constitution.
contention that the incorporation doctrine dictates the
minimum required content of state constitutional law
misapprehends the incorporation doctrine. Incorporation did
not change the substantive content of state constitutional
law; it changed the substantive content of federal
constitutional law. Specifically, the Supreme Court held the
Due Process Clause of the Fourteenth Amendment incorporated
most of the Bill of Rights. See Timbs, __ U.S. at
__, 139 S.Ct. at 687 ("With only 'a handful' of
exceptions, this Court has held that the Fourteenth
Amendment's Due Process Clause incorporates the
protections contained in the Bill of Rights, rendering them
applicable to the States." (quoting McDonald v. City
of Chicago, 561 U.S. 742, 765, 130 S.Ct. 3020, 3035
(2010))). "Incorporated Bill of Rights guarantees are
'enforced against the States under the Fourteenth
Amendment according to the same standards that protect those
personal rights against federal encroachment.'"
Id. (quoting McDonald, 561 U.S. at 765, 130
S.Ct. at 3035). Pursuant to the Supremacy Clause, this court
is bound to apply the Supreme Court's Fourteenth
Amendment jurisprudence to resolve claims arising under the
Fourteenth Amendment. See Armstrong v. Exceptional Child
Ctr., Inc., __ U.S. __, __, 135 S.Ct. 1378, 1383 (2015)
(explaining the Supremacy Clause is not a source of
substantive rights but instead provides for a federal rule of
decision where a litigant asserts a federal claim). The
Supreme Court's Fourteenth Amendment jurisprudence does
not dictate the substance of the state law or the remedy for
any violation of the same. See Virginia v. Moore,
553 U.S. 164, 178, 128 S.Ct. 1598, 1608 (2008) ("[I]t is
not the province of the Fourth Amendment to enforce state
law. That Amendment does not require the exclusion of
evidence obtained from a constitutionally permissible
arrest."); Fuller v. Oregon, 417 U.S. 40, 48
n.9, 94 S.Ct. 2116, 2122 n.9 (1974) ("[T]he dissent
purports to resolve questions of state [constitutional] law
that this Court does not have power to decide.");
Nat'l Tea Co., 309 U.S. at 557, 60 S.Ct. at 679
("It is fundamental that state courts be left free and
unfettered by us in interpreting their state
constitutions."); see also Collins v. Virginia,
__ U.S. __, __, 138 S.Ct. 1663, 1680 n.6 (2018) (Thomas, J.,
concurring) ("[T]he States are free to adopt their own
exclusionary rules as a matter of state law. But nothing in
the Federal Constitution requires them to do so.");
Massachusetts v. Upton, 466 U.S. 727, 738, 104 S.Ct.
2085, 2091 (1984) (per curiam) (Stevens, J., concurring in
understanding that incorporation does not dictate the meaning
of state law is supported by former Oregon Supreme Court
Justice Hans Linde. Justice Linde is widely considered the
"intellectual godfather" of the new judicial
federalism. James A. Gardner, The Failed Discourse of
State Constitutionalism, 90 Mich. L. Rev. 761, 774
(1992) (quoting Ronald K.L. Collins, Forward: The Once
"New Judicial Federalism" & Its Critics,
64 Wash.L.Rev. 5, 5 (1989)). Members of this court have
favorably cited the work of Justice Linde when interpreting
the Iowa Constitution. See Gaskins, 866 N.W.2d at 55
(Waterman, J., dissenting) (citing Hans A. Linde, First
Things First: Rediscovering the States' Bills of
Rights, 9 U. Balt. L. Rev. 379, 392 (1980) [hereinafter
Linde, First Things First]); Baldon, 829
N.W.2d at 821 (Appel, J., specially concurring) (quoting
Justice Linde's opinion in State v. Kennedy, 666
P.2d 1316, 1322 (Or. 1983)). In Baldon, Justice
Appel noted Justice Linde was an "extraordinary state
court judge with [an] outstanding reputation[ who] ha[s]
helped to develop what is now a substantial body of
independent state constitutional law." 829 N.W.2d at
828. He further noted there was "no basis to discount
the work of th[is] outstanding state supreme court
justice." Id. He also lauded Justice
Linde's outstanding extrajudicial scholarship. See
id. at 828 n.23 (citing Hans A. Linde, E
Pluribus-Constitutional Theory and State Courts, 18 Ga.
L. Rev. 165 (1984) [hereinafter Linde, E Pluribus];
Linde, First Things First, 9 U. Balt. L. Rev. 379).
Linde has concluded in both his judicial and extrajudicial
work that state courts are free to interpret a parallel
provision of a state constitution as providing less
protection than the Federal Constitution:
The state argues, correctly, that diversity does not
necessarily mean that state constitutional guarantees always
are more stringent than decisions of the Supreme Court under
their federal counterparts. A state's view of its own
guarantee may indeed be less stringent, in which case the
state remains bound to whatever is the contemporary federal
rule. Or it may be the same as the federal rule at the time
of the state court's decision, which of course does not
prevent that the state's guarantee will again differ when
the United States Supreme Court revises its interpretation of
the federal counterpart. The point is not that a state's
constitutional guarantees are more or less protective in
particular applications, but that they were meant to be and
remain genuine guarantees against misuse of the state's
governmental powers, truly independent of the rising and
falling tides of federal case law both in method and in
Kennedy, 666 P.2d at 1323. Stated differently,
The right question is not whether a state's guarantee is
the same as or broader than its federal counterpart as
interpreted by the Supreme Court. The right question is what
the state's guarantee means and how it applies to the
case at hand. The answer may turn out the same as it would
under federal law. The state's law may prove to be more
protective than federal law. The state law also may be less
protective. In that case the court must go on to decide the
claim under federal law, assuming it has been raised.
Linde, E Pluribus, 18 Ga. L. Rev. at 179.
Michigan Supreme Court reached the same conclusion in
Sitz v. Department of State Police, 506 N.W.2d 209,
216-17 (Mich. 1993). That court's discussion of the issue
is worth quoting at length here:
[A]ppropriate analysis of our constitution does not begin
from the conclusive premise of a federal floor. Indeed, the
fragile foundation of the federal floor as a bulwark against
arbitrary action is clearly revealed when, as here, the
federal floor falls below minimum state protection. As a
matter of simple logic, because the texts were written at
different times by different people, the protections afforded
may be greater, lesser, or the same.
Id. at 217 (footnote omitted). The court continued,
The image of federal constitutional law as a
"floor" in state court litigation pervades most
commentary on state constitutional law. Commentators contend
that in adjudicating cases, state judges must not adopt state
constitutional rules which fall below this floor; courts may,
however, appeal to the relevant state constitution to
establish a higher "ceiling" of rights for
individuals. . . .
Certainly, as a matter of federal law, state courts are bound
not to apply any rule which is inconsistent with decisions of
the Supreme Court; the Supremacy Clause of the Federal
Constitution clearly embodies this mandate. It would be a
mistake, however, to view federal law as a floor for state
constitutional analysis; principles of federalism prohibit
the Supreme Court from dictating the content of state law. In
other words, state courts are not required to incorporate
federally-created principles into their state constitutional
analysis; the only requirement is that in the event of an
irreconcilable conflict between federal law and state law
principles, the federal principles must prevail.
[S]uch courts must undertake an independent determination of
the merits of each claim based solely on principles of state
constitutional law. If the state court begins its analysis
with the view that the federal practice establishes a
"floor," the state court is allowing a federal
governmental body-the United States Supreme Court-to define,
at least in part, rights guaranteed by the state
Id. at 217 n.12 (alterations in original) (quoting
Earl M. Maltz, False Prophet-Justice Brennan and the
Theory of State Constitutional Law, 15 Hastings Const.
L.Q. 429, 443-44 (1988)).
courts have reached the same conclusion. See State v.
Oliver, 372 S.E.2d 256, 259 (Ga.Ct.App. 1988) ("If
anything, the Georgia Constitution is less protective than
the Fifth Amendment, for it recognizes an exception to the
bar against double jeopardy when the first trial ends in a
mistrial."); State v. Jackson, 503 S.E.2d 101,
103-04 ( N.C. 1998) ("Strictly speaking, however, a
state may still construe a provision of its constitution as
providing less rights than are guaranteed by a parallel
federal provision."); Alva State Bank & Tr. Co.
v. Dayton, 755 P.2d 635, 638 (Okla. 1988) (per curiam)
(recognizing that if the state constitution provides less
protection than federal law, then "the question must be
determined by federal law"); Ex parte Tucci,
859 S.W.2d 1, 32 n.34 (Tex. 1993) (Phillips, C.J.,
concurring) ("Literally read, this position makes no
logical sense. If our text was written at a different time by
different people with different concerns, then the protection
it affords may be greater, lesser, or the same as that
provided by a different provision in the United States
Constitution."); Hulit v. State, 982 S.W.2d
431, 436-37 (Tex. Crim. App. 1998) (en banc) ("The
Supremacy Clause means that, in practical terms, persons will
always be able to avail themselves of the greater right. This
is very important to litigants and their counsel, who are
naturally and properly result-oriented. But it does not mean
that a court, faithfully interpreting state laws, can only
find in them protections that equal or exceed federal
laws."); State v. Briggs, 199 P.3d 935, 942
(Utah 2008) (recognizing state law may "provide a lesser
level of protection," in which case the court addresses
the federal claim).
conclude this court has a duty to independently interpret the
Iowa Constitution. This court discharges that duty by looking
to the text of the document through the prism of our
precedent, tradition, and custom. This court's
interpretation of the Iowa Constitution may be the same as
the Supreme Court's interpretation of a parallel
provision of the Federal Constitution. This court's
interpretation of the Iowa Constitution may be different than
the Supreme Court's interpretation of a parallel
provision of the Federal Constitution. But this court's
interpretation of the Iowa Constitution is not dictated by
the Supreme Court's precedents under the incorporation
doctrine of the Federal Constitution.
in law are to be narrowly watched, for starting as devices to
liberate thought, they end often by enslaving it."
Berkey v. Third Ave. Ry., 155 N.E. 58, 61 (N.Y.
1926). This has been true of the floor-ceiling metaphor.
"However useful that floor-ceiling metaphor may be, it
obscures the larger truth that the level of protection of
rights under the state constitutions can be the same as,
higher than, or lower than that provided by the federal
constitution." Malyon v. Pierce County, 935
P.2d 1272, 1281 n.30 (Wash. 1997) (en banc) (quoting Neil
McCabe, The State and Federal Religion Clauses:
Differences of Degree and Kind, 5 St. Thomas L. Rev. 49,
50 (1992)). The failure of the metaphor has caused this court
to undertake its interpretive function with a
results-oriented approach that has created distortions in
Iowa legal doctrine. Cf. Tucci, 859 S.W.2d at 32
n.34 (stating the recognition "that 'an independent
state judiciary may interpret its fundamental law as
affording less protection than our federal charter' . . .
will enhance the possibility of principled state
constitutional development" (quoting id. at 13
example of how the metaphor changed doctrine, consider this
court's treatment of the exclusionary rule. In Boyd
v. United States and Weeks v. United States,
the Supreme Court held that evidence obtained in violation of
the Federal Constitution was inadmissible in a criminal
proceeding. Weeks v. United States, 232 U.S. 383,
398, 34 S.Ct. 341, 346 (1914), overruled on other grounds
by Mapp v. Ohio, 367 U.S. 643, 654-57, 81 S.Ct. 1684,
1691-92 (1961); Boyd v. United States, 116 U.S. 616,
638, 6 S.Ct. 524, 536-37 (1886), abrogations recognized
by Fisher v. United States, 425 U.S. 391, 407-09, 96
S.Ct. 1569, 1579-80 (1976). In State v. Tonn, 195
Iowa 94, 102-03, 104-07, 191 N.W. 530, 534, 535-36 (1923),
abrogated by State v. Hagen, 258 Iowa 196, 203-05,
137 N.W.2d 895, 899- 900 (1965), as recognized in State
v. Taylor, 260 Iowa 634, 641-42, 144 N.W.2d 289, 293-94
(1966), this court considered Boyd and
Weeks and declined to adopt the exclusionary rule as
a remedy for the violation of the Iowa Constitution.
Tonn remained good law for decades. See,
e.g., State ex rel. Hanrahan v. Miller, 250
Iowa 1369, 1375, 98 N.W.2d 859, 863 (1959); State v.
Gillam, 230 Iowa 1287, 1289, 300 N.W. 567, 568 (1941);
State v. Rowley, 216 Iowa 140, 145-46, 248 N.W. 340,
342-43 (1933); State v. Lambertti, 204 Iowa 670,
672, 215 N.W. 752, 753 (1927); State v. Wenks, 200
Iowa 669, 670, 202 N.W. 753, 753 (1925); McNamara v.
Utterback, 200 N.W. 699, 700 (Iowa 1924); Lucia v.
Utterback, 197 Iowa 1181, 1186, 198 N.W. 626, 628
(1924); Foley v. Utterback, 196 Iowa 956, 958, 195
N.W. 721, 722 (1923) (per curiam); Joyner v.
Utterback, 196 Iowa 1040, 1044, 195 N.W. 594, 596
2000, in Cline, this court concluded Mapp
had abrogated Tonn. See 617 N.W.2d at 287
("Iowa did not again have a state exclusionary rule
until compelled to do so by the United States Supreme
Court's decision in Mapp."). The
Cline court reasoned the authority to deviate from
federal law was limited to providing greater protection than
the Federal Constitution. See id. at 284-85.
conclusion that Mapp required this court to adopt
the exclusionary rule as a remedy for a violation of state
constitutional law was incorrect. Cline's
conclusion is predicated on a misunderstanding of federal
law. In Wolf v. Colorado, the Supreme Court held the
principles underlying the Fourth Amendment were
"enforceable against the States through the Due Process
Clause." 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361 (1949),
overruled on other grounds by Mapp, 367 U.S. at
654-55, 81 S.Ct. at 1691. The Supreme Court specifically
declined to require the states to adopt the exclusionary rule
as the remedy for a violation of the Federal Due Process
Clause. See id. at 33, 69 S.Ct. at 1364 ("We
hold, therefore, that in a prosecution in a State court for a
State crime the Fourteenth Amendment does not forbid the
admission of evidence obtained by an unreasonable search and
seizure."). Subsequently, in Mapp, the Supreme
Court overruled Wolf and held the required remedy
for a violation of the Fourteenth Amendment right recognized
in Wolf was the exclusion of unlawfully obtained
evidence from a criminal proceeding.
surprising this court immediately moved away from
Tonn after Mapp without explicitly
overruling Tonn. A majority of the court in
Mapp did not even support the conclusion that a
violation of the Fourth Amendment, standing alone, required
exclusion of the evidence. Justice Stewart expressed no view
on the constitutional issue. Mapp, 367 U.S. at 672,
81 S.Ct. at 1701 (Stewart, J., concurring in the judgment)
("I express no view as to the merits of the
constitutional issue which the Court today decides.").
Justice Black concluded the Fourth Amendment, standing alone,
compelled no right to the exclusion of evidence. Id.
at 661-62, 81 S.Ct. at 1695 (Black, J., concurring) ("I
am still not persuaded that the Fourth Amendment, standing
alone, would be enough to bar the introduction into evidence
against an accused of papers and effects seized from him in
violation of its commands."). Instead, he found the
remedy to be required due to the interaction of the Fourth
and Fifth Amendments. Id. at 662, 81 S.Ct. at 1695;
see also Collins, __ U.S. at __, 138 S.Ct. at
1677-80, 1677 nn.2-3 (discussing Mapp). Justice
Harlan, joined by Justices Frankfurter and Whitaker,
dissented. Mapp, 367 U.S. at 678-80, 81 S.Ct. at
1704-05 (Harlan, J., dissenting) ("I would not impose
upon the States this federal exclusionary remedy. The reasons
given by the majority for now suddenly turning its back on
Wolf seem to me notably unconvincing.").
of whether Mapp was rightly or wrongly decided, the
important point of the discussion is this: Wolf and
Mapp both involved the resolution of claims arising
under the Fourteenth Amendment. Neither case compelled any
state court to reach a particular resolution-whether less
protective, more protective, or as protective-of any legal
claim arising under its own state constitution.
Cline was thus incorrect in stating Mapp
abrogated Tonn and precluded this court from
interpreting the state constitution to provide less
protection than the Federal Constitution. While there may be
reasons why this court would want to adopt the exclusionary
rule for violations of the Iowa Constitution, many of which
are discussed in Cline, it was incorrect to say
Mapp compelled this court to do so.
special concurrence is not intended as a call to arms to find
less or more protection of individual rights under the Iowa
Constitution as compared to the United States Constitution.
Instead, it is a call to determine the meaning of the Iowa
Constitution without an interpretive predisposition that the
Iowa Constitution must, as a matter of law, be interpreted to
provide only greater protection than the United States
Constitution. See Linde, E Pluribus, 18 Ga.
L. Rev. at 179; see also Gaskins, 866 N.W.2d at 21
n.7 (Iowa 2015) (Appel, J., concurring specially) ("This
case makes the powerful point that independent state
constitutional law is neither conservative nor liberal. It
simply preserves what the United States Supreme Court has
referred to as our 'free and unfettered' authority in
interpreting our state constitution." (quoting
Nat'l Tea Co., 309 U.S. at 557, 60 S.Ct. at
679)); King v. State, 797 N.W.2d 565, 571 (Iowa
2011) ("[W]e reserve the right to apply the principles
differently under the state constitution compared to its
federal counterpart."). In this particular case, I
concur with my colleagues that neither the United States
Constitution nor the Iowa Constitution provides Brown with
any relief and that her conviction should be affirmed.
Chief Justice (dissenting).
respectfully dissent from the decision of the majority to
continue to address claims of pretextual traffic stops
without considering the subjective motives of the officer
involved once probable cause is found. Our law must, instead,
prohibit pretextual traffic stops motivated by race or any
other classification, even when probable cause for a traffic
violation exists. They are offensive to the values of our
constitution and abhorrent to the concept of justice expected
by our constitution. They are one of many reasons to explain
why our criminal justice system has disproportionally
affected African-Americans in our state and across the
nation. In turn, they have helped create disproportionate
paths and outcomes in life and continue to prolong inequality
within a system of governing built on achieving equality.
None of this will change, however, until our law governing
this issue changes. Law, in every instance, must first
reflect our highest understanding and then pass that
understanding onto those people it affects and those who
implement it. While a legal requirement for officers to
exclude race as a motivation for a stop may be difficult to
enforce, this difficulty should itself not deny its force and
effect. Law enforcement officers place their lives on the
line every day to uphold the law under the most difficult
circumstances. They serve to protect the people at all costs.
They would strive to enforce this law too, driven by the
understanding that identifying and removing race as a
motivation for a stop will extend protections to people far
beyond the moment. This change would work to eliminate the
unconscious origin of a pervasive source of discrimination
and allow us to better achieve the equality promised in life
by our constitution. The law must always serve as the means
to achieve this end.
majority suggests our previous interpretations of article I,
section 8 of the Iowa Constitution to mirror the Fourth
Amendment of the United States Constitution warrants a
parallel analysis of pretextual stops. While I respect the
wisdom and competency of the Supreme Court, we should not
adopt its analysis of this issue at the expense of the rights
of Iowa's citizens and, in particular, the rights of our
citizens of color. The Supreme Court's interpretation of
constitutional rights under the Federal Constitution need not
limit the rights provided to Iowans under the Iowa
Constitution. State v. Baldon, 829 N.W.2d 785, 791
(Iowa 2013) ("[T]he Supreme Court's jurisprudence
regarding the freedom from unreasonable searches and seizures
under the Fourth Amendment-or any other fundamental, civil,
or human right for that matter-makes for an admirable floor,
but it is certainly not a ceiling."). We have routinely
recognized our authority in "independently construing
provisions of the Iowa Constitution that are nearly identical
to the federal counterpart." State v. Pals, 805
N.W.2d 767, 771 (Iowa 2011) ("[W]e jealously protect
this court's authority to follow an independent approach
under our state constitution.").
the majority has not utilized our independence in deciding
the present case. Instead, it ultimately follows the
reasoning of the United States Supreme Court's decision
in Whren v. United States, 517 U.S. 806, 819, 116
S.Ct. 1769, 1777 (1996).
Whren doctrine is wrong largely because it gives
police officers too much authority, which has led to the
misuse of that authority and has allowed police officers to
engage in fishing expeditions based on offensive motivations.
Whren recognized race-based law enforcement as
unconstitutional but held "[s]ubjective intentions play
no role in ordinary, probable-cause Fourth Amendment
analysis." Id. at 813, 116 S.Ct. at 1774. In
effect, the decision masks an officer's improper racial
motivations when making a traffic stop. Impure motivations
are deemed justified by finding a traffic violation was
committed, however minor that violation may be. For this
reason, Whren has been widely criticized as
legalizing racial profiling in the context of traffic stops.
See Devon W. Carbado, From Stopping Black People
to Killing Black People: The Fourth Amendment Pathways to
Police Violence, 105 Calif. L. Rev. 125, 129 (2017)
[hereinafter Carbado] ("[T]he Court's legalization
of racial profiling exposes African Americans not only to the
violence of ongoing police surveillance and contact but also
to the violence of serious bodily injury and death.");
Darrell D. Jackson, Profiling the Police: Flipping 20
Years of Whren on Its Head, 85 UMKC L. Rev.
671, 680 (2017) [hereinafter Jackson] (arguing the
Court's discussion of racial profiling under the Fourth
Amendment "authorized the use of racial profiling for
all criminal investigations"); Kevin R. Johnson, How
Racial Profiling in America Became the Law of the Land:
United States v. Brignoni-Ponce and Whren v. United
States and the Need for Truly Rebellious Lawyering,
98 Geo. L.J. 1005, 1070 (2010) [hereinafter Johnson]
("The Court's refusal to consider the intent of
police officers in its Fourth Amendment analysis created a
safe haven for racial profiling by the police."). In
effect, the Supreme Court "balanced the need of law
enforcement officers to engage in [discriminatory traffic
stops] to root out crime against the right of minority
communities to be free from race-based practices." I.
Bennett Capers, Crime, Legitimacy, and Testilying,
83 Ind. L.J. 835, 859 (2008) [hereinafter Capers] (discussing
the consequences of the court's stop-and-frisk decision).
majority's suggestion that the proper constitutional
basis for a discrimination claim is the Equal Protection
Clause neglects the significant difficulties in bringing a
successful equal protection claim. Furthermore, the Equal
Protection Clause's civil remedy does not provide relief
to defendants facing criminal penalties. United States v.
Nichols, 512 F.3d 789, 795 (6th Cir. 2008) (barring the
exclusionary rule as a remedy for an equal protection claim
following an alleged racially motivated stop), overruled
on other grounds as recognized in United States v.
Buford, 632 F.3d 264, 269 (6th Cir. 2011). But see
Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875
(1968) (stating that the exclusionary rule "is the only
effective deterrent to police misconduct in the criminal
context and that without it the constitutional guarantee
against unreasonable searches and seizures would be a mere
'form of words'" (quoting Mapp v. Ohio,
367 U.S. 643, 648, 81 S.Ct. 1684, 1688 (1961))).
under an equal protection analysis, the ultimate issue is
whether the disparate treatment is reasonable. Yet, it is
article I, section 8 of the Iowa Constitution and the Fourth
Amendment to the United States Constitution that specifically
require all seizures by law enforcement to be
"reasonable." Clearly, the text of the Search and
Seizure Clauses support a reasonableness test, and it is not
enough to brush the issue of racial profiling off as only an
equal protection claim.
Whren decision "has greatly expanded the
authority and power of law enforcement officers, and that
discretion has exacerbated problems with racial profiling in
law enforcement." Johnson, 98 Geo. L.J. at 1076. Many
people of color feel racial profiling is endemic in current
criminal enforcement. Id. Amici curiae, in support
of Brown, state pretextual traffic stops
[a]ffect minorities disproportionately[;] they put People
of Color in reasonable fear for the bodily safety and even
the lives of themselves, their children, their loved ones and
friends; and they exacerbate and perpetuate the profound
problem of racial disparities in the criminal justice system
Brief of ACLU of Iowa et al. as Amici Curiae Supporting
Appellant at 10, State v. Brown, __ N.W.2d __ (Iowa
2019) (No. 17-0367). Amici also provide statistical data
showing people of color, particularly African-Americans, are
stopped, cited, and arrested at higher rates than Caucasian
drivers throughout Iowa. Id. at 16-22 (finding
nineteen percent of traffic stops in Iowa City involved
minority drivers, although they made up only ten percent of
the city's drivers, and black drivers in Scott County
were stopped "nearly three times as often as
white drivers") These disturbing trends are present
more alarming are instances when "an ordinary traffic
stop [is] a gateway to extraordinary police violence."
Carbado, 105 Calif. L. Rev. at 150, 163-64 (noting the police
killings of Michael Brown, Walter Scott, Eric Garner, Alexia
Christian, Sheneque Proctor, and Kendra James started as
ordinary police interactions).
majority contends that Brown has not provided any new
arguments to justify departing from our holdings in State
v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005), and
State v. Predka, 555 N.W.2d 202, 215- 16 (Iowa
1996). It also suggests that racial profiling concerns should
not inform our decision now because such concerns were
present when we previously addressed the issue of pretext
stops and did not influence our decisions. The very fact that
racial profiling concerns persist should inform our decision
today. Time has given us the opportunity to understand the
importance of addressing these issues, not only for people of
color who are negatively impacted, but also for all
Griffin and Predka, our understanding of
justice and the rights entailed in maintaining justice have
evolved. Marginalized groups have continued to mobilize so
that their voices can be heard and their struggles
recognized. See, e.g., Kimberlé Williams
Crenshaw et al., African Am. Policy Forum, Say Her Name:
Resisting Police Brutality Against Black Women 2 (2015)
("Say Her Name sheds light on Black women's
experiences of police violence in an effort to support a
gender-inclusive approach to racial justice that centers all
Black lives equally."). The efforts of marginalized
groups have been impactful in raising awareness and altering
society's collective understanding of the role race plays
in policing. While it is unfortunate we did not recognize
racial bias as a compelling consideration when deciding
Griffin and Predka, it would be a
deliberate oversight not to do so now. As a branch of
government committed to justice and protection of the rights
of all Iowans, we should not be so beholden to the past that
we prevent ourselves from enacting justice in the present. In
fact, Iowa's judiciary has consistently led the charge in
recognizing civil liberties through thoughtful consideration
of our constitution and application of the truth as derived
by cultural understandings, societal changes, and research.
See Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009)
(holding a statute prohibiting same-sex couples from marriage
unconstitutional six years before the United States Supreme
Court followed suit); Coger v. Nw. Union Packet Co.,
37 Iowa 145, 159-60 (1873) (barring common carriers from
discriminating on the basis of race); Clark v. Bd. of
Dirs., 24 Iowa 266, 277 (1868) (concluding the
segregation of schools based on race was unconstitutional
eighty-six years before the United States Supreme Court
decided the same); In re Ralph, 1 Morris 1, 7 (1839)
(recognizing the freedom of a former slave in the Iowa
Supreme Court's premier case); Russell E. Lovell II,
Shine on, You Bright Radical Star: Clark v. Board of
School Directors (of Muscatine)-the Iowa Supreme
Court's Civil Rights Exceptionalism, 67 Drake L.
Rev. 175, 192 (2019) (discussing, among others, a 1869 Iowa
court decision that allowed Arabella Mansfield to become the
nation's first female attorney).
the passage of time since Whren, Griffin,
and Predka has not only given way to a greater
understanding of implicit bias,  but also a greater
understanding of the adverse role it can play in the vast
discretionary decisions that occur throughout our criminal
justice system. This new understanding supports a new
approach to confronting implicit bias in all areas of our
justice system, including racial profiling in traffic
offenses. Moreover, the time and place for this new approach
fits Iowa. The growing understanding of implicit bias within
the last decade has supported a branchwide initiative to
educate all Iowa judges and judicial branch employees on
implicit bias. This initiative has provided training to all
judges and continues today. Thus, our response in Iowa has
not been to see the problem as too big or too hard to solve,
but it has been to work to find a solution through greater
understanding. We should follow this same approach today in
response to the problem of racial profiling in traffic
the claim by the majority that a departure from
Whren "would create instability in the law,
hinder law enforcement efforts, weaken the strength of our
adversarial system, and undermine public confidence in the
legal system" is misplaced. In truth, the reasons
expressed by the majority to follow Whren better
describe the consequences of the failure to depart from it.
majority suggests relying on a reasonableness standard would
result in judicial overreach, unfairly focusing on an
officer's subjective state of mind. Yet, the suggestion
that requiring officers to justify their objective reasoning
would greatly hinder law enforcement is cause for concern,
particularly because officers should only be
utilizing objective reasoning when effectuating a traffic
stop. It indicates there may be too heavy a reliance on
pretextual stops. There is no element inherent in enforcing
traffic laws that require a police officer to engage in
subjective reasoning before making a traffic stop. Adopting a
reasonableness standard would not hinder law
enforcement's ability to enforce traffic laws. Instead,
it encourages equality in the enforcement of these laws.
problem with pretextual stops does not stem from
officers' enforcement of legitimate traffic laws; it
comes from the disparate impact resulting from an
officer's ability to make a stop motivated by subjective
reasons, many times racial, and then only needing to justify
the stop by citing a minor traffic violation. Or, as in the
present case, it comes from an officer initially choosing not
to enforce a traffic law, then deciding to make the stop
based on subjective criteria, and then justifying the stop
based on earlier objective reasons. For all that is known in
this case, race could have been an unconscious motive
operating in the mind of the officer from the beginning. Yet,
our law does not make the officer accountable for the
unconscious motive, but allows it to be left in the recesses
of the mind and washed over with other motives such as gang
affiliation in this case. But even this motive has its own
implicit bias because there was no evidence of a criminal
record or any particular background to show the affiliation
was of a criminal nature. Gang affiliation can exist in
neighborhoods for reasons independent of criminal activity
and when broadly used as a motivation for a stop can have the
same effects as using race.
permissible use of discretion contributes to inequality in
the enforcement of traffic laws and subsequent prosecutions.
In other cases, officers stop drivers not because of known
gang affiliation but because of the color of their skin or
their appearance, the neighborhood they are driving in, or
any number of impermissible factors. These people are
subjected to police stops, although others with different
affiliations, skin color, or neighborhoods, committing
similar minor traffic offenses are not. This type of policing
results in a higher volume of violations found. In the many
instances in which no wrongdoing is discovered, those
subjected to the pretextual stops are left feeling targeted,
unsettled, and apprehensive of law enforcement. The
"protections meant to curtail law enforcement's
abuse of authority during traffic stops" cited by the
majority do not address the disparity in making traffic stops
and do nothing to address the problem of racial profiling.
placing a reasonableness component on the pretext, police
will still be able to use minor traffic stops to investigate
reasonable suspicion of other criminal activity, but the
practice of pretextual stops unrelated to specific and
articulable facts of criminal activity will be significantly
reduced. This approach strikes the balance needed to advance
the interests of all in our society.
majority suggests that the reasonable-officer standard would
place an undue burden on law enforcement. In criticizing the
"mythical reasonable officer," the majority ignores
the fact that a reasonable-person standard has been routinely
applied within the field of search and seizure and has not
crippled law enforcement's ability to do their jobs.
See, e.g., Terry, 392 U.S. at 30, 88 S.Ct.
at 1884 (applying a reasonableness standard to analysis of
unlike the majority, I do not believe that departing from
Whren would weaken our adversarial system or
undermine public confidence. Just the opposite is true.
Applying a reasonableness standard would enhance the
legitimacy of traffic stops and resulting prosecutions.
Departing from Whren would demonstrate this
court's refusal to provide a safe harbor for implicit
biases to thrive. Employing a standard that demands fair and
unbiased stops could also help to restore trust in law
enforcement amongst disillusioned demographics.
effect, the majority concludes that our inability to control
every variable leading to disparate enforcement means we
should avoid addressing the issue of pretextual stops
altogether. I disagree. The factors leading to disparate
enforcement may be numerous, but the vastness of the problem
emphasizes the necessity of our attention and in no way
absolves us from evaluating the constitutional issue
presented in this case. The difficulties in addressing this
issue cannot excuse its continuation.
majority remains hopeful that the employment of technology,
such as police body cams and cell phone videos, will help
monitor racial profiling. Furthermore, the majority quotes
State v. Lopez for the proposition that "[t]he
more evidence that a detention was motivated by police
suspicions unrelated to the traffic offense, the less
credible the officer's assertion that the traffic offense
occurred." 873 P.2d 1127, 1138- 39 (Utah 1994). Yet,
under Whren, the consequences remain the same no
matter whether the officer was racially motivated or whether
video footage caught the encounter as long as a traffic
offense occurred. Thus, people of color are still left with
little protection against subjective enforcement of the law.
solutions to the problem of pretextual stops may not be
perfect. However, they are a profound step in the
right direction. There is value in providing a
constitutionally sound standard for defendants to challenge
police stops motivated by impermissible considerations. It
reinforces and legitimizes the principle "that the
Constitution prohibits selective enforcement of the law based
on considerations such as race." Whren, 517
U.S. at 813, 116 S.Ct. at 1774. Moreover, it provides
defendants with the opportunity to meaningfully appeal
adverse decisions, an avenue effectively closed to them now.
This is not only beneficial for defendants but to our court
system and the development of our caselaw. It signals to law
enforcement and courts that the use of implicit bias must be
acknowledged and curtailed.
majority's suggestion that the proposed solution will not
achieve the desired result because an officer who engages in
racial profiling is likely to be untruthful about it is off
the mark. It neglects what might be the most important aspect
of this case and this issue. Police officers, like the rest
of us, have implicit biases they might not recognize. Simply
acting on these biases does not indicate an officer's
propensity to be untruthful. We should have more faith in our
law enforcement and give them the opportunity to recognize
their biases so that they can acknowledge and limit acting on
them. For example, officers should take the opportunity to
review the statistical data from their stops and analyze
whether it reveals disproportionate enforcement. Furthermore,
law enforcement agencies should invest in implicit-bias
training so that all officers are aware of it. These types of
changes can be enacted even in the absence of judicial
action. As it stands, the majority makes no move
toward eliminating a practice that we recognize as
unconstitutionally discriminatory. If our law projects that
this practice is wrong, we can properly assume officers have
enough respect for the law to comply with it. We would take a
big step forward today if we were to use article I, section 8
of our constitution to at least say it is illegal for a
police officer to use race or any other protected
classification as the motivating factor to make a stop for a
minor traffic violation, instead of following the
have always been called upon to understand each issue that
comes into the court from both perspectives and to then use
this dual vision to build a model that solves the problem.
The issues of racial profiling and implicit bias presented in
this case are uniquely complex, but they can only be solved
by understanding this complexity and by building a standard
that projects this understanding to all.
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!
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.
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.
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
that changed when the Supreme Court announced its decision in
Whren v. United States, 517 U.S. 806, 811-16, 116
S.Ct. 1769, 1773- 76 (1996). As will be explored below,
Whren departed from the trend in state courts and
made a flawed turn in the development of search and seizure
law. In my view, the wrong turn made in Whren should
not be emulated by this court in its interpretation of the
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
decision in this case is bad law. The approach of the
majority fails to recognize the history of search and seizure
law and the importance of curbing generalized law enforcement
discretion, fails to recognize that law enforcement in
practice has general authority to stop vehicles on the open
road due to the pervasiveness of regulations, fails to
recognize or deal with the problems of implicit bias, fails
to recognize the reality of racial profiling, fails to
recognize the shortcomings of alternative remedies, and fails
to recognize the constitutional harms caused by generalized
seizures on the open road.
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.
Factual Background and Proceedings.
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.
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
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.
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 ...