Amended September 18, 2017 State of Iowa v. Christopher George Storm

• Court: Supreme Court of Iowa
• Decided: June 30, 2017
• Docket: 16–0362
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 16–0362

Filed June 30, 2017

Amended September 18, 2017

STATE OF IOWA,

Appellee,

vs.

CHRISTOPHER GEORGE STORM,

Appellant.

Appeal from the Iowa District Court for Dallas County, Randy V.

Hefner, Judge.

Defendant appeals his conviction claiming automobile exception to

search warrant requirement should be abandoned. DISTRICT COURT

JUDGMENT AFFIRMED.

Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Louis S.

Sloven, Assistant Attorneys General, for appellee. 2

WATERMAN, Justice.

In this appeal, we must decide whether to abandon the automobile

exception to the search warrant requirement under article I, section 8 of

the Iowa Constitution. In State v. Gaskins, we did not reach that issue,

but members of this court noted the rationale for the exception may be

eroded by technological advances enabling police to obtain warrants from

the scene of a traffic stop. 866 N.W.2d 1, 17 (Iowa 2015) (Cady, C.J.,

concurring specially). The defendant driver in today’s case was lawfully

stopped for a seat belt violation. The deputy smelled marijuana and

searched the vehicle, discovering marijuana packaged for resale. The

defendant was charged with possession with intent to deliver in violation

of Iowa Code section 124.401(1)(d) (2015). He filed a motion to suppress,

claiming this warrantless search violated the Iowa Constitution because

police can now obtain warrants electronically from the side of the road.

The district court denied the motion after an evidentiary hearing that

included testimony that it would have taken well over an hour to obtain a

search warrant. The defendant was convicted, and we retained his

appeal.

On our review, we conclude, based on the evidence in the record,

that this deputy was unable to obtain a warrant electronically from the

scene of the traffic stop, and the procedures in place at that time

required a warrant application to be presented in person to a judicial

officer. For the reasons further explained below, we elect to retain the

automobile exception, consistent with our precedent, federal caselaw,

and the overwhelming majority of other states. We are guided by the

decisions of other states that abandoned the automobile exception only

to reinstate it. Their experience shows the easy-to-apply automobile

exception is preferable to the alternative—a less predictable, case-by-case 3

exigency determination resulting in prolonged roadside seizures awaiting

a warrant, with attendant dangers and no net gain for civil liberties. We

may revisit this issue at a future time when roadside electronic warrants

have become more practical. Today, we affirm the district court’s ruling

denying the defendant’s motion to suppress and defendant’s conviction.

I. Background Facts and Proceedings.

On the afternoon of April 19, 2015, sheriff’s deputy Clay Leonard

was on patrol in Dallas County at the intersection of Highway 141 and

Wendover. He saw a male driving a dark-colored Chevrolet pickup truck

without wearing a seat belt. The deputy activated his emergency lights to

stop the driver. He reported to dispatch the location of the traffic stop,

about a twenty-five-minute drive from the Dallas County courthouse. He

walked to the driver’s side window and asked for the lone occupant’s

license and registration. As they talked, he noticed that the driver,

Christopher Storm, “appeared to be nervous, hands shaking and quick

labored breaths.” Deputy Leonard “could smell the distinct odor of

marijuana coming from the vehicle.” He brought Storm back to the front

seat of his patrol car for questioning. Storm made a call on his

cell phone, and two of his acquaintances arrived. Storm initially denied

smoking marijuana or having any in his truck, but after further

discussion, he admitted to using marijuana previously and having a

criminal record. Over Storm’s objection, Deputy Leonard searched the

truck. He found several packages of marijuana, a scale, a grinder, a

pipe, an e-cigarette with residue, and pills in an unmarked bottle. These

items were removed, and Storm was placed under arrest. One of Storm’s

acquaintances drove his truck away after the arrest.

The marijuana found in Storm’s truck totaled forty-seven grams.

The fourteen pills in the unmarked bottle were amphetamine/ 4

dextroamphetamine, with no prescription. Storm’s cell phone had text

messages showing he had been selling marijuana. The State charged

Storm by trial information with possession with intent to deliver

marijuana in violation of Iowa Code section 124.401(1)(d); tax stamp

violations under sections 453B.1, 453B.3, 453B.4, and 453B.12; and

unlawful possession of a prescription drug in violation of section

155A.21.

Storm filed a motion to suppress. He argued that a warrantless

search of a vehicle based solely upon probable cause no longer comports

with article I, section 8 of the Iowa Constitution because new technology

enables officers to file warrant applications at the scene of the traffic

stop. The State resisted, and the district court conducted an evidentiary

hearing.

Deputy Leonard and Lieutenant Adam Infante testified for the

State. Deputy Leonard testified that it is a “routine occurrence” that he

is the only law enforcement officer “dealing with multiple individuals or

suspects.” If he has to call for assistance, it could be thirty to forty

minutes before another officer arrives. When he stopped Storm, Deputy

Leonard had a personal cell phone, a department-issued flip phone, and

an in-car computer. His internet connection was “slow” at that location.

He lacked the equipment to remotely obtain a warrant.

Deputy Leonard also testified about the time needed to write a

search warrant application:

Q. How long, in your experience, has it taken you to author search warrants? A. By the time I get back to the police department or my office . . . to type it up, make phone calls, get ahold of a county attorney to look over it, review it—I also have to get assistance because I’m not, I don’t do it all the time, so I either have a detective or somebody else that writes them up assist me. 5 And then, after making phone calls, getting ahold of them, sending the document back and forth maybe to fix, grammatically fix a couple things or something, then the judge signs it. Most of the time I have to go to the judge’s house if it’s after hours. It’s 5, 6 hours by the time I get everything done and be able to execute the warrant.

He noted how having to write a warrant in the patrol car would change this process:

Well, typing up documents, trying to put everything into the document that’s required by law, and trying to watch somebody or what’s going on at the scene, or timewise, et cetera, is—I mean, it takes away from me being able to keep observation around me, keep me safe, et cetera.

Lieutenant Infante, who estimated he had written “hundreds” of

warrants, testified it would take him, in a “[b]are-bones case,” “about an

hour.” He outlined the complexity of the warrant process:

First thing you need to do in the search warrant is identify with specificity the item or property to be searched. In this case a vehicle make, model, VIN, license plate, color, location of the vehicle, that sort of thing. Next step would be to determine the items that you’re looking for in said vehicle. Which, once again, has to be fairly specific. After that I would lay out my affidavit for why I believe there’s probable cause to search the vehicle for the items that I’m looking for. The next step would be to add an attachment B if there was any sort of outside information that I might have received from another law enforcement officer or informant of some sort. In Dallas County the judges prefer that we assist them with filling out the endorsement, where in some other counties that’s not the case. Then I would contact the county attorney to get their approval of the search warrant, to discuss any details or items that I might have left out. And then after I have had the county attorney’s approval I would then begin the arduous task of tracking down a judge.

He testified tracking down a judge can be difficult, whether it is “3 or 4

o’clock in the morning” or “3 o’clock in the afternoon” because they are 6

often involved in other business such as hearings, appearances, or

conferences.

Lieutenant Infante acknowledged he takes a “cautious” approach

to search warrants, explaining the importance of accuracy:

I’ve lost a search warrant in this very courtroom before for not being correct. You only have one opportunity to write a search warrant and get it signed by a judge. Once it’s signed, sealed, that’s it. You don’t get an opportunity to go back and edit it or make corrections or change anything.

If he had to apply for a search warrant from his squad car, “It would be

hard for [him to] do a good job. It would be hard for [him] to be accurate

with having to pay attention to [the driver] and also keep an eye on the

property to be searched.” He noted the challenge of multitasking while

using the in-car computer:

There’s a misconception that these in-car computers are, you know you’re going to sit there and you’re going to write all your reports on this in-car computer. That’s not the case. These computers issue citations, warnings; they do some accidents. A scanner is involved in that. The entering on the computer is minimal. We’re not typing an affidavit on our in-car computer. We’re going back to the office where we can sit down, face a computer, do it correctly. These deputies are turned sideways; they’re [not looking] out the side of the window to make sure nobody hits them; they’re watching the guy in the back seat. The in-car computer is not what people think it is.

Lieutenant Infante also testified there was no process for submitting

warrants electronically to judges in Dallas County.

Storm presented testimony from Bryan Barker, a criminal defense

attorney and former police officer and prosecutor, who estimated he

could fill out a warrant application in fifteen minutes. However, Barker

qualified his testimony by stating he would be making extensive use of

“boilerplate.” He noted it likely would take another “15 to . . . 30 7

minutes” to get approval from a judge, assuming the warrant could be

sent electronically and the judge was available, for a total of thirty to

forty-five minutes.

The district court denied Storm’s motion to suppress, concluding

that Iowa statutes and rules “expressly anticipate that [a] warrant

application will be signed under oath in the actual physical presence of

the judge or magistrate.” The district court applied the automobile

exception, stating, “Under these circumstances, mobility of the vehicle

was more than a theoretical or presumed problem,” and “[a] very real

possibility existed that the vehicle would be driven away from this

location before a warrant could be obtained by any means.” The district

court made a factual finding that “Deputy Leonard did not have available

to him at the time and place of this search the technology or training

that would have allowed submission” of an electronic warrant.

Storm was convicted of possession with intent to deliver at a bench

trial on the minutes of testimony. He was given a suspended prison

sentence of no more than five years and placed on two years of

probation. He appealed, and we retained the appeal.

II. Standard of Review.

“When 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 look to the entire record and

“make ‘an independent evaluation of the totality of the circumstances.’ ”

Id. (quoting In re Prop. Seized from Pardee, 872 N.W.2d 384, 390 (Iowa

2015)). “We give deference to the district court’s fact findings due to its

opportunity to assess the credibility of the witnesses, but we are not

bound by those findings.” Id. (quoting Pardee, 872 N.W.2d at 390). 8

III. Analysis.

Storm asks us to abandon the automobile exception, contending

its rationale has been eroded by new technology allowing warrants to be

obtained promptly from the scene of the traffic stop. On our de novo

review, we find the evidentiary record belies Storm’s factual premise.

Like the district court, we find that Deputy Leonard lacked the capability

to obtain a search warrant from the scene of the traffic stop and that it

would have taken over an hour to get a warrant to search Storm’s truck.

Based on this evidentiary record and our survey of precedent nationwide,

we retain the automobile exception and affirm the district court.

A. The Automobile Exception’s History and Rationales. “The

Supreme Court has recognized a ‘specifically established and well-

delineated’ exception to the warrant requirement for searches of

automobiles and their contents.” State v. Allensworth, 748 N.W.2d 789,

792 (Iowa 2008) (quoting California v. Acevedo, 500 U.S. 565, 580, 111

S. Ct. 1982, 1991 (1991)). “[T]his exception is applicable when probable

cause and exigent circumstances exist at the time the car is stopped by

police.” State v. Holderness, 301 N.W.2d 733, 736 (Iowa 1981). The

inherent mobility of motor vehicles satisfies the exigent-circumstances

requirement. Id. at 737.

The automobile exception rests on twin rationales: (1) the inherent

mobility of the vehicle, and (2) the lower expectation of privacy in vehicles

compared to homes and other structures. Allensworth, 748 N.W.2d at

793–94. There was no procedure in place in Dallas County in 2015 for

Deputy Leonard to obtain a search warrant electronically from the scene

of his traffic stop. 1 We decline to replace the easy-to-apply automobile

1The State contends that Iowa law in 2015 required in-person presentations of

warrant applications to judicial officers. We need not decide that question of statutory 9

exception with a case-by-case exigency determination that results in less

predictable, inconsistent outcomes and prolonged seizures with roadside

hazards and no net gain in liberty. Vehicles remain inherently mobile

with reduced expectations of privacy, while rapid roadside warrants are

not yet a realistic option. We conclude the twin rationales for the

automobile exception remain valid.

1. The inherent mobility of the automobile. The United States

Supreme Court first recognized the automobile exception to the search-

warrant requirement in Carroll v. United States, 267 U.S. 132, 45 S. Ct.

280 (1925). The Carroll Court addressed when police could search the

vehicles of bootleggers suspected of transporting liquor during the

Prohibition. Id. at 160, 45 S. Ct. at 287–88. After surveying federal law

since the adoption of the Fourth Amendment, the Supreme Court

observed,

[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between the search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Id. at 153, 45 S. Ct. at 285. Given the inherent mobility of the

automobile and the impracticability of securing a warrant, the Carroll

Court held a warrantless search would be lawful if the officer had

“reasonable or probable cause for believing that the automobile which he

stops and seizes has contraband.” Id. at 156, 45 S. Ct. at 286.

___________________________ interpretation because under the automobile exception, no warrant was required and the legislature this year prospectively authorized remote electronic warrants. S.F. 358, 87th G.A., 1st Sess. § 4 (Iowa 2017). 10

Forty-five years later in Chambers v. Maroney, the Supreme Court

reaffirmed the automobile exception for a vehicle impounded and

searched at the police station following the driver’s arrest. 399 U.S. 42,

48, 90 S. Ct. 1975, 1979 (1970). The Court reiterated its mobility

rationale, stating,

[A] search warrant [is] unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.

Id. at 51, 90 S. Ct. at 1981. The Chambers Court confronted the same

argument Storm raises today: that a vehicle should simply be seized

until a magistrate authorizes a warrant. Id. The Court observed,

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Id. at 51–52, 90 S. Ct. at 1981. Concluding the warrantless search was

constitutional, the Court emphasized that “there is little to choose in

terms of practical consequences between an immediate search without a

warrant and the car’s immobilization until a warrant is obtained.” Id. at

52, 90 S. Ct. at 1981.

The Supreme Court more recently reaffirmed that exigent

circumstances apart from the mobility of the vehicle are not required to

justify a warrantless search. In Maryland v. Dyson, police received a tip 11

from a reliable confidential informant that a drug dealer would be

returning to Maryland in a specifically identified red rental car. 527 U.S.

465, 465, 119 S. Ct. 2013, 2013 (1999) (per curiam). Officers stopped

and searched the vehicle, finding twenty-three grams of crack cocaine.

Id. at 466, 119 S. Ct. at 2013. The Maryland Court of Special Appeals

reversed the district court’s denial of the defendant’s motion to suppress,

finding that although there was probable cause to conduct the search,

there “was no exigency that prevented or even made it significantly

difficult for the police to obtain a search warrant.” Id. The Supreme

Court reversed, noting that “under our established precedent, the

‘automobile exception’ has no separate exigency requirement.” Id. at

466, 119 S. Ct. at 2014; see also Pennsylvania v. Labron, 518 U.S. 938,

940, 116 S. Ct. 2485, 2487 (1996) (per curiam) (using the automobile

exception to justify a search based only on probable cause with no

additional exigency).

2. The lower expectation of privacy in automobiles. The United

States Supreme Court has also justified the automobile exception based

on the reduced expectation of privacy resulting from the “configuration,

use and regulation of automobiles.” Arkansas v. Sanders, 442 U.S. 753,

761, 99 S. Ct. 2586, 2591 (1979), abrogated on other grounds by

Acevedo, 500 U.S. at 575, 111 S. Ct. at 1989. Indeed, “[o]ne has a lesser

expectation of privacy in a motor vehicle because its function is

transportation and it seldom serves as one’s residence or as the

repository of personal effects.” Cardwell v. Lewis, 417 U.S. 583, 590, 94

S. Ct. 2464, 2469 (1974). Unlike a home or office, “[a] car has little

capacity for escaping public scrutiny. It travels public thoroughfares

where its occupants and its contents are in plain view.” Id.

Furthermore, 12 [b]ecause of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.

Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973).

As the Supreme Court explained,

In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

South Dakota v. Opperman, 428 U.S. 364, 367–68, 96 S. Ct. 3092, 3096

(1976) (citation omitted). “In the interests of public safety . . .

automobiles are frequently taken into police custody.” Id. at 368, 96

S. Ct. at 3097 (citation omitted). Police may impound vehicles after

accidents to permit “the uninterrupted flow of traffic.” Id. Not so with a

home or other structure.

The state’s interest in highway safety allows warrantless

checkpoint stops without individualized reasonable suspicion. Mich.

Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S. Ct. 2481, 2488

(1990). By contrast, the interest in safe neighborhoods cannot justify

warrantless searches of homes or businesses on a city block. Rather, a

search warrant is required to “effect an unconsented administrative entry

into and inspection of private dwellings or commercial premises.”

Opperman, 428 U.S. at 367 n.2, 96 S. Ct. at 3096 n.2 (citing Camara v.

Mun. Ct., 387 U.S. 523, 87 S. Ct. 1727 (1967)). 13

B. Iowa’s Adoption of the Automobile Exception Under Our

State Constitution. The search and seizure provisions of the Fourth

Amendment to the United States Constitution 2 and article I, section 8 of

the Iowa Constitution 3 are virtually identical. “We may construe the

Iowa Constitution differently than its federal counterpart, despite the

provisions containing nearly identical language and being structured

generally with the same scope, import, and purpose.” State v. Kooima,

833 N.W.2d 202, 206 (Iowa 2013). We adopted the automobile exception

under article I, section 8 of the Iowa Constitution in State v. Olsen, 293

N.W.2d 216, 220 (Iowa 1980). Previously, we had required exigency

separate from the mobility of the vehicle to justify a warrantless search,

but we clarified that we did so because “[a]t that time some doubt existed

as to the scope of Chambers.” Id. at 219; see also State v. Schlenker, 234

N.W.2d 142, 145 (Iowa 1975) (requiring separate showing of exigency).

Federal cases subsequently clarified that “[t]he exigency requirement . . .

is sufficiently established by the inherent mobility of the vehicle, the fact

defendant was alerted, and the chance that the car’s contents might not

be found again if a warrant had to be then obtained.” Olsen, 293 N.W.2d

2The Fourth Amendment to the Federal Constitution provides, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. 3Article I, section 8 of the Iowa Constitution provides, The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized. Iowa Const. art. I, § 8. 14

at 220. While acknowledging we were “still free to apply” our previous

holdings under an independent approach to the Iowa Constitution, we

were “persuaded that the state constitution should be given the same

interpretation as the Federal.” Id. at 219, 220.

We have continued to follow the federal automobile exception for

decades. See, e.g., Allensworth, 748 N.W.2d at 791 n.2 (rejecting an Iowa

constitutional challenge to a warrantless vehicle search); State v.

Maddox, 670 N.W.2d 168, 171 (Iowa 2003) (applying the automobile

exception to uphold a warrantless search under the Federal and Iowa

Constitutions because of a vehicle’s “inherent mobility”); Holderness, 301

N.W.2d at 737 (rejecting federal and state constitutional challenges to a

warrantless vehicle search conducted at the police station); see also State

v. Vance, 790 N.W.2d 775, 791 (Iowa 2010) (Cady, J., dissenting) (“This

[automobile] exception has been firmly planted in our Iowa jurisprudence

for over twenty years.”). We are not persuaded to chart a different course

today. “Stare decisis alone dictates continued adherence to our

precedent absent a compelling reason to change the law.” Book v.

Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015). Storm

offers no compelling reason for overruling our precedent on the

automobile exception.

C. The Overwhelming Majority of State Courts Have Retained

the Automobile Exception.

1. All but five states have retained the automobile exception. An

overwhelming majority of states continue to adhere to the automobile

exception. 4 These include courts that have construed their state

4See State v. Reyna, 71 P.3d 366, 369 n.5 (Ariz. Ct. App. 2003); Jackson v. State, 427 S.W.3d 607, 613 (Ark. 2013); People v. Zuniga, 372 P.3d 1052, 1056 (Colo. 2016); People v. Edwards, 836 P.2d 468, 471 (Colo. 1992); State v. Williams, 88 A.3d 534, 547 (Conn. 2014); Reeder v. State, Nos. 552,1999, 583,1999, 2001 WL 355732, at *2 (Del. 15

constitutions to allow greater protection than the Fourth Amendment.

See Commonwealth v. Gary, 91 A.3d 102, 126 (Pa. 2014) (“[A] generally

enhanced concern for individual privacy” does not “translate[] into a

conferral of increased privacy protection in every context in which it is

asserted under [the state constitution.]”); see also Stout v. State, 898

S.W.2d 457, 460 (Ark. 1995) (“Of course, we could hold that the

Arkansas Constitution provides greater protection against unreasonable

searches than does the Constitution of the United States, but we see no

reason to do so.”); People v. Smith, 447 N.E.2d 809, 813 (Ill. 1983) (noting

“the Supreme Court’s interpretation of the automobile exception . . .

achieves a fair balance”); Commonwealth v. Motta, 676 N.E.2d 795, 800

(Mass. 1997) (“Indeed, while it is true that we have at times concluded

that art. 14 provides more protection than the Fourth Amendment, we

have also followed the Supreme Court in the area of the automobile

exception.”); State v. Lloyd, 312 P.3d 467, 474 (Nev. 2013) (“Although it is

elementary that states may provide greater protections than required by

the federal Constitution, it is at least as fundamental that such decisions ___________________________ Mar. 26, 2001); State v. Betz, 815 So. 2d 627, 631 (Fla. 2002); State v. Wallace, 910 P.2d 965, 714 n.16 (Haw. 1996); State v. Anderson, 302 P.3d 328, 331 (Idaho 2012); People v. Smith, 447 N.E.2d 809, 813 (Ill. 1983); State v. Conn, 99 P.3d 1108, 1111–12 (Kan. 2004); Chavies v. Commonwealth, 354 S.W.3d 103, 107 (Ky. 2011); State v. Crawford, 210 So. 3d 268, 269 (La. 2017); State v. Melvin, 955 A.2d 245, 250 (Me. 2008); State v. Ireland, 706 A.2d 597, 599 n.2 (Me. 1998); Berry v. State, 843 A.2d 93, 113 (Md. Ct. Spec. App. 2004); Commonwealth v. Dame, 45 N.E.3d 69, 81 (Mass. 2016); People v. Kazmierczak, 605 N.W.2d 667, 674 (Mich. 2000); State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016); Moore v. State, 787 So. 2d 1282, 1288 (Miss. 2001); State v. Rocha, 890 N.W.2d 178, 202 (Neb. 2017); State v. Lloyd, 312 P.3d 467, 474 (Nev. 2013); State v. Witt, 126 A.3d 850, 853 (N.J. 2015); People v. Galak, 616 N.E.2d 842, 843–44 (N.Y. 1993); State v. Isleib, 356 S.E.2d 573, 577 (N.C. 1987); State v. Zwicke, 767 N.W.2d 869, 873 (N.D. 2009); Gomez v. State, 168 P.3d 1139, 1145 (Okla. 2007); State v. Andersen, 390 P.3d 992, 995 (Or. 2017); Commonwealth v. Gary, 91 A.3d 102, 136– 37 (Pa. 2014); State v. Werner, 615 A.2d 1010, 1014 (R.I. 1992); State v. Fischer, 873 N.W.2d 681, 689 (S.D. 2016); State v. Sweedland, 721 N.W.2d 409, 413–14 (S.D. 2006); State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009); State v. Rigby, 369 P.3d 127, 137–38 (Utah Ct. App. 2016); State v. Tompkins, 423 N.W.2d 823, 829 (Wis. 1988); McKenney v. State, 165 P.3d 96, 99 n.1 (Wyo. 2007). 16

should be carefully reasoned and grounded in a strong public policy.”

(quoting Thomas B. McAffee et al., The Automobile Exception in Nevada: A

Critique of the Harnisch Cases, 8 Nev. L.J. 622, 648 (2008) [hereinafter

McAffee])). We should not simply “reflexively find ‘in favor of any new

right or interpretation asserted’ under [the state search and seizure

provision].” Gary, 91 A.3d at 126 (quoting Commonwealth v. Russo, 934

A.2d 1199, 1210 (Pa. 2007)).

In State v. Rocha, the Nebraska Supreme Court this year

addressed the continuing validity of the automobile exception under its

state constitution. 890 N.W.2d 178, 207 (Neb. 2017). Police found

marijuana on Eric Rocha after he consented to a pat-down search during

a roadway stop. Id. at 188. The officer arrested Rocha and searched his

vehicle, finding methamphetamine, marijuana, two glass vials, a glass

pipe, and two digital scales near the center console. Id. Rocha moved to

suppress the evidence discovered during the warrantless search of the

automobile. Id. at 190. Rocha argued additional exigent circumstances,

beyond the vehicle’s inherent mobility, were required for a warrantless

search. Id. at 204. He asserted that when a defendant was incapable of

physically moving the vehicle or destroying evidence, officers must obtain

a warrant. Id. at 205. The Nebraska Supreme Court disagreed. Id. The

Rocha court, after surveying federal and state decisions, concluded,

In light of the overwhelming weight of authorities, we hold that the requirement of ready mobility for the automobile exception is met whenever a vehicle that is not located on private property is capable or apparently capable of being driven on the roads or highways. This inquiry does not focus on the likelihood of the vehicle’s being moved under the particular circumstances and is generally satisfied by the inherent mobility of all operational vehicles. It does not depend on whether the defendant has access to the vehicle at the time of the search or is in custody, nor on whether the vehicle has been impounded. The purpose of the ready mobility requirement is to distinguish vehicles on 17 public property from fixed, permanent structures, in which there is a greater expectation of privacy.

Id. at 207. We reach the same conclusion.

2. Five other states that had abandoned the automobile exception

changed course and restored it. We can learn from the experiences of the

five states previously requiring a separate showing of exigent

circumstances that restored the automobile exception. See Lloyd, 312

P.3d at 474; State v. Witt, 126 A.3d 850, 853 (N.J. 2015); State v. Zwicke,

767 N.W.2d 869, 873 (N.D. 2009); Gomez v. State, 168 P.3d 1139, 1145 (Okla. Crim. App. 2007); State v. Werner, 615 A.2d 1010, 1014 (R.I.

1992). The Nevada Supreme Court reversed course after recognizing that

its separate exigency requirement had produced “confusion, while doing

little to enhance the protection of individual privacy interests.” Lloyd,

312 P.3d at 473 (quoting McAffee, 8 Nev. L.J. at 624). By contrast, the

automobile exception was “rooted in good policy that balances private

interests with the collective good, even as it provides law enforcement

with clear and unequivocal guidelines for doing their jobs.” Id. at 474

(quoting McAffee, 8 Nev. L.J. at 648).

Similarly, North Dakota, Oklahoma, and Rhode Island returned to

the federal standard to restore clarity in the law. Zwicke, 767 N.W.2d at

873 (“[S]ince this Court decided Meadows, the United States Supreme

Court has held that . . . there need not exist exigent circumstances . . . .

[T]o the extent that Meadows can be read to require something more

than mobility for exigent circumstances, we overrule that part of our

decision in that case.”); Gomez, 168 P.3d at 1145 (“Because we believe

the United States Supreme Court’s decisions . . . rest on sound

principles, we are persuaded they should inform our construction of

Article 2, § 30 . . . . To the extent that [earlier cases] hold to the 18

contrary, they are overruled.”); Werner, 615 A.2d at 1014 (“In light of the

Supreme Court’s clarification of the exigency issue, we conclude that it is

preferable to adopt one clear-cut rule to govern automobile searches and,

in turn, eliminate the conflicting interpretations of article I, section 6, of

the Rhode Island Constitution and the Fourth Amendment to the United

States Constitution.”).

The New Jersey Supreme Court recently overruled its prior

decisions that applied a “pure exigent-circumstances requirement to

justify an automobile search.” Witt, 126 A.3d at 853 (citing State v.

Cooke, 751 A.2d 92, 97 (2000), abrogated by Witt, 126 A.3d at 853). The

court had used a multifactor approach. Id. at 864 (listing exigent

circumstances as “the time of day; the location of the stop; the nature of

the neighborhood; the unfolding of the events establishing probable

cause; the ratio of officers to suspects; the existence of confederates who

know the location of the car and could remove it or its contents; whether

the arrest was observed by passersby who could tamper with the car or

its contents; whether it would be safe to leave the car unguarded and, if

not, whether the delay that would be caused by obtaining a warrant

would place the officers or the evidence at risk” (quoting State v. Pena-

Flores, 965 A.2d 114, 128 (N.J. 2009), abrogated by Witt, 126 A.3d at

853)). The New Jersey Supreme Court had concluded that telephonic

warrants would provide an “efficient and speedy” procedure “that will be

available to [officers] on the scene; that will obviate the need for difficult

exigency assessments; and that will guarantee our citizens the

protections that the warrant requirement affords.” Id. (quoting Pena-

Flores, 965 A.2d at 132). Experience proved otherwise:

Experience and common sense persuade us that the exigent-circumstances test in Pena-Flores does not provide greater liberty or security to New Jersey’s citizens and has 19 placed on law enforcement unrealistic and impracticable burdens. First, the multi-factor exigency formula is too complex and difficult for a reasonable police officer to apply to fast-moving and evolving events that require prompt action. Thus, we cannot expect predictable and uniform police or judicial decision-making. Second, the securing of telephonic warrants results in unacceptably prolonged roadway stops. During the warrant-application process, the occupants of a vehicle and police officers are stranded on the side of busy highways for an extended period, increasing the risk of serious injury and even death by passing traffic. If the car is impounded, then the occupants’ detention will be extended for an even longer period as a warrant is procured.

Id. at 853.

Specifically, the New Jersey court noted in 2015 that the average

time to issue a telephonic warrant was fifty-nine minutes. Id. at 869.

Some troopers experienced delays of two hours. 5 Id. The Witt court

recognized, “The hope that technology would reduce the perils of

roadside stops has not been realized.” Id. Prolonged encounters along

the shoulder of the highway posed “unacceptable risk of serious bodily

injury and death.” Id. “News reports reveal the carnage caused by cars

and trucks crashing into police officers and motorists positioned on the

5Other courts have noted the complexity of obtaining remote warrants. We have observed that “[o]btaining a warrant by telephone is fairly complicated” and “requires considerable time.” State v. Johnson, 744 N.W.2d 340, 345 (Iowa 2008) (describing the telephonic warrant application process). Other states have had similar experiences, finding the “average time for obtaining a telephone warrant” was about two hours. State v. Raymond, 360 P.3d 734, 737 (Or. Ct. App. 2015); see also United States v. Orozco, No. 98-CR-934, 1990 WL 118287, at *3 (E.D.N.Y. 1990) (noting police testimony that a telephonic warrant “definitely” could not be obtained in less than one and a half hours); State v. Sanchez-Loredo, 272 P.3d 34, 36 (Kan. 2012) (“Reno County law enforcement officers made a traffic stop of Dinah Sanchez–Loredo’s vehicle [and] detained her at the scene for approximately 75 minutes while obtaining a search warrant.”); David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 Va. L. Rev. 1229, 1250–51 (2002) (noting that under federal law, “[a]n officer’s decision to seek a telephonic warrant rather than to proceed without a warrant . . . can mean a significant delay”). We are not persuaded by United States v. Baker, 520 F. Supp. 1080, 1084 (S.D. Iowa 1981). In Baker, the court found that police could procure an arrest warrant, not a search warrant, in twenty minutes. Id. This was without the defendant present, so officers were able to focus their full attention on the warrant application and prepare it at a desk, not at a roadside stop. Id. 20

shoulders of our highways.” Id. We decline to impose those risks on

Iowa motorists and peace officers.

The New Jersey Supreme Court noted another downside to

requiring warrants for roadside searches of automobiles—the pressure

put on motorists to consent to the search to avoid the delay:

[O]ne of the unintended consequences of Pena-Flores is the exponential increase in police-induced consent automobile searches. The resort to consent searches suggests that law enforcement does not consider time-consuming telephonic warrants or the amorphous exigent-circumstances standard to be a feasible answer to roadway automobile searches. The heavy reliance on consent searches is of great concern given the historical abuses associated with such searches and the potential for future abuses.

Id. at 853. New Jersey studies revealed that after implementing the

exigent-circumstances approach, “nearly ninety-five percent of detained

motorists granted a law enforcement officer’s request for consent to

search.” Id. at 870 (quoting State v. Carty, 790 A.2d 903, 911 (N.J.

2002)). The Witt court recognized the “coercive effect of a search request

made to a motorist stopped on the side of a road.” Id.; see also State v.

Pals, 805 N.W.2d 767, 783 (Iowa 2011) (considering that the driver was

“seized in the front seat of a squad car with his own vehicle parked on

the side of a public highway” as part of the coercion analysis).

Finally, the Witt court elaborated on the “difficulty presented to

police officers” by the multifactor, exigent-circumstances approach. 126

A.3d at 871.

Under that standard, before conducting a warrantless roadside search, police officers must take into account a dizzying number of factors. These factors leave open such questions as “what is the acceptable ratio of officers to suspects, what should the officer know about the neighborhood, how is he to know if confederates are skulking about, and what does it mean to consider leaving the car unguarded when the car can be safely towed and impounded?” 21

Id. (citation omitted) (quoting Pena-Flores, 965 A.2d at 139 (Albin, J.,

dissenting)). Overall, the court concluded that the multifactor approach

“places significant burdens on law enforcement,” but “[o]n the other side

of the ledger, [the court] did not perceive any real benefit to our citizenry

by the warrant requirement in such cases.” Id. at 872. The Witt court

therefore decided to reinstate the automobile exception under the

New Jersey Constitution. Id. We likewise retain the automobile

exception to avoid the litany of problems experienced in New Jersey

under its prior multifactor exigent-circumstances test.

3. The state court decisions cited by Storm are

unpersuasive. Storm relies on the decisions of five state courts that do

not recognize the automobile exception. 6 See State v. Elison, 14 P.3d

456, 471 (Mont. 2000); State v. Sterndale, 656 A.2d 409, 411 (N.H.

1995); State v. Gomez, 932 P.2d 1, 12 (N.M. 1997); State v. Bauder, 924

A.2d 38, 50 (Vt. 2007); State v. Tibbles, 236 P.3d 885, 888 (Wash. 2010).

These decisions are unpersuasive and distinguishable.

For example, Montana’s constitution contains an express right to

privacy, separate from its search and seizure provision, that provides

“[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling

state interest.” Mont. Const. art. II, § 10. Based on this “unique

constitutional language,” the Montana Supreme Court determined the

6Connecticut and Oregon follow a modified version of the automobile exception, which provides that the automobile’s mobility justifies a search of a vehicle stopped on the side of the road, but not a vehicle that has already been impounded or parked. See State v. Winfrey, 24 A.3d 1218, 1224 (Conn. 2011); Andersen, 390 P.3d at 998. Because this was a roadside stop, these states would permit the automobile exception as justification for the warrantless search. Two other states, Hawaii and Utah, while disallowing searches of closed containers within the automobile, follow the automobile exception for the vehicle itself. See Wallace, 910 P.2d at 714 n.16; Rigby, 369 P.3d at 138. 22

state constitution “affords citizens a greater right to privacy, and,

therefore, provides broader protection than the Fourth Amendment in

cases involving searches of private property.” Elison, 14 P.3d at 468–69.

Washington’s constitution also contains an express right to privacy. See

Wash. Const. art. I, § 7 (containing privacy provision stating “[n]o person

shall be disturbed in his private affairs, or his home invaded, without

authority of law”). The Washington Supreme Court relied on that privacy

provision to require exigency. Tibbles, 236 P.3d at 889. The Iowa

Constitution lacks a separate privacy provision. So does the Constitution

of Pennsylvania, and that state’s supreme court declined to follow the

Washington precedent for that reason. See Gary, 91 A.3d at 132.

The search and seizure provisions of the New Hampshire and

Vermont Constitutions also differ textually from the Fourth Amendment.

See N.H. Const. pt. 1, art. XIX (containing additional language, “all

warrants to search suspected places . . . are contrary to this right, if the

cause or foundation of them be not previously supported by oath or

affirmation; and if the order, in a warrant to a civil officer, to make

search in suspected places, . . . be not accompanied with a special

designation of the persons or objects or search”); State v. Savva, 616

A.2d 774, 779 (Vt. 1991) (noting additional language in search and

seizure provision that warrants issued “without oath or affirmation first

made, affording sufficient foundation for them” and without property

“particularly described” are “contrary to [the right to be free from search

or seizure], and ought not be granted” (quoting Vt. Const. ch. I, art. XI)).

By contrast, there is no such textual difference between the search and

seizure provisions of the Fourth Amendment and article I, section 8 of

the Iowa Constitution. We will follow our own precedent. 23

D. New Technology Has Not Undermined the Validity of the

1. The automobile exception retains its validity under federal law

notwithstanding decades of experience with electronic court filings.

Adherence to the automobile exception has not waned in the face of

developing technology. Storm points to our statewide use of electronic

court filings through the electronic data management system (EDMS).

But federal courts have used electronic filing for decades and continue to

apply the automobile exception to uphold warrantless searches of

vehicles. See United States v. DeLeon, ___ F. App’x ___, ___, 2017 WL

1828095, at *1 (5th Cir. May 4, 2017) (per curiam) (“[T]he district court

correctly found that the automobile exception applied when there was

probable cause to justify the search of the vehicle.”); United States v.

Shackleford, 830 F.3d 751, 753 (8th Cir. 2016) (“Probable cause to

believe that an automobile contains contraband or evidence of criminal

activity has long been held to justify a warrantless search of the

automobile and seizure of the contraband.”); United States v. White, 804

F.3d 132, 138 (1st Cir. 2015) (noting police had probable cause to search

vehicle, and “[u]nder these circumstances, the automobile exception and

the Fourth Amendment require nothing more”); United States v. Reaves,

796 F.3d 738, 741 (7th Cir. 2015) (“We believe the automobile exception

to the Fourth Amendment’s warrant requirement is determinative.”);

United States v. Alston, 598 F. App’x 730, 734 (11th Cir. 2015) (“We

affirm the denial of the motion to suppress alternatively under the

automobile exception because officers had probable cause to believe that

the vehicle contained evidence of criminal activity.”); United States v.

Donahue, 764 F.3d 293, 300 (3d Cir. 2014) (“The broad sweep of the

automobile exception is of controlling significance in this case . . . .”). We 24

reach the same conclusion as the unanimous federal decisions and hold

that EDMS in Iowa state courts has not undermined the validity of the

2. Technological advances have not circumvented the need to take

time to produce accurate warrants. States have retained the automobile

exception despite advances in technology. This spring, the Oregon

Supreme Court rejected a defendant’s argument that the automobile

exception should be abandoned in light of technological advances that

permit speedier warrants. State v. Andersen, 390 P.3d 992, 998 (Or.

2017). The defendant argued “warrants can now be obtained within

minutes.” Id. The Andersen court disagreed and, as we do today, relied

on the record evidence.

We question the premises on which defendant’s argument rests. As an initial matter, the length of time that it takes to write a warrant application and obtain a warrant is a factual issue for the trial court, and not all warrants will take the same amount of time. Depending on the complexity of the circumstances that give rise to probable cause and the significance of the case, some warrants will require a longer time to prepare and obtain than others. In this case, the only evidence in the record is that it would have taken hours, not minutes, to prepare a warrant application and obtain a warrant. Officer McNair testified without contradiction that, “[j]ust [to get a warrant] for a cell phone it takes me several hours to write a search warrant, and go get that approved by a DA.” The officer also explained that, if the district attorney had suggestions or corrections, it could take another hour to add those corrections to the warrant application. Not only did the trial court implicitly credit the officer’s testimony, but defendant identifies no contrary evidence in the record.

Id. at 998–99 (alterations in original). The Andersen court retained the

automobile exception and affirmed the warrantless search. Id. at 1000.

That court left open the possibility that in future cases technological

advances could undermine the automobile exception for all cases or 25

obviate its application in an individual case. Id. at 999. We exercise the

same restraint today.

The Andersen court also noted the need for accuracy in search

warrant applications requires time to prepare them.

Beyond that, defendant’s argument appears to assume that the only impediment to obtaining a warrant quickly is the time that it takes to transmit a completed warrant application to a magistrate and have the magistrate review and act on the application. While technology has made it easier to prepare and transmit completed applications, the testimony in this case illustrates what our cases have recognized. An officer must prepare the warrant application before submitting it to a magistrate for approval, and the process of preparing a warrant application can sometimes entail a substantial amount of time. Affidavits submitted in support of a warrant are subject to technical requirements that are intended to protect citizens’ privacy. . . . Ultimately, not only must search warrant applications be sufficient to satisfy issuing magistrates, but they also must withstand scrutiny in later motions to suppress if evidence discovered while executing the warrant leads to a criminal prosecution. As in this case, district attorneys may review warrant applications drafted by officers who may be experienced in criminal matters but untrained in the law. Without that review, warrant applications might fail to comply with the technical specifications our cases have required. Those human efforts can sometimes entail substantial expenditures of time despite technological advances.

Id. We too require accuracy in search warrant applications. As Justice

Appel has emphasized,

The issuing of a search warrant—which, among other things, may authorize a home invasion by authorities—is among the most delicate and sensitive legal process known under our constitutional system. The process of issuing a valid search warrant is not a bureaucratic bother in which a lackadaisical, close-enough attitude toward legal requirements is good enough. Because of the gravity of the individual rights at stake and the central role of the search warrant process in protecting citizens from unwarranted intrusions by government, our review of the warrant process must be highly detailed and demanding. 26

State v. Angel, 893 N.W.2d 904, 912–13 (Iowa 2017) (Appel, J.,

dissenting). While electronic filing may save time, the officer still must

take care to prepare the warrant application accurately whether he or

she is in a patrol car at the scene of the stop or at a desk at the station

house.

At this point, forcing an officer to draft a search warrant

application while multitasking on the side of the road may jeopardize the

accuracy of the warrant application and would require motorists to be

detained for much longer periods. On the civil liberties side of the ledger,

we perceive no meaningful net benefit to motorists being subjected to

longer seizures. Our court has indeed expressed a preference for

warrants. State v. Breuer, 808 N.W.2d 195, 200 (Iowa 2012). But the

purposes for requiring warrants are not furthered here. For example, the

particularity requirement limits the scope of the search to “cabin police

power” so police do not search places and things not described in the

warrant. Id. (quoting State v. Ochoa, 792 N.W.2d 260, 273 (Iowa 2010)).

That rationale does not apply when the search by definition is confined to

a specific vehicle. A warrant requirement also imposes the “deliberate,

impartial judgment of a judicial officer . . . between the citizen and the

police.” Id. at 201 (alteration in original) (quoting United States v.

Grubbs, 547 U.S. 90, 99, 126 S. Ct. 1494, 1501 (2006)). Yet under the

automobile exception, police still must have probable cause to search the

vehicle. When probable cause is absent, evidence is rightfully

suppressed. See State v. Tompkins, 423 N.W.2d 823, 832 (Wis. 1988)

(“The exclusionary rule continues to protect against unreasonable

searches of an automobile; evidence obtained will not be admissible in

prosecutions unless the officer had probable cause to believe the vehicle

contained contraband or evidence of a committed crime.”). Requiring a 27

warrant for an automobile search thus does little to protect privacy or

advance civil liberty.

3. New technology may pose unusual difficulties for officers on the

side of the road. While improving technology someday may allow for a

different analysis of the automobile exception, we have no doubt that it

will also pose its own difficulties for officers in roadside stops. For

example, new technology allows for quicker communication between

coconspirators. As the Connecticut Supreme Court noted,

[W]hen officers are forced to delay their search until a warrant is procured, while the vehicle remains accessible to the public and is potentially mobile, the possibility remains that someone—possibly someone other than the defendant— will attempt either to remove the vehicle or to interfere with law enforcement efforts to maintain a secure crime scene.

State v. Winfrey, 24 A.3d 1218, 1226 (Conn. 2011). Indeed, here, Storm

called two compatriots to the scene, so Deputy Leonard was

outnumbered three to one. While they caused him no trouble, the next

officer on the roadside may not be so fortunate.

E. The Automobile Exception’s Bright-Line Rule Is Preferable

to an Ad Hoc Exigency Analysis for Time-Sensitive Police

Interactions with Motorists. The automobile exception is easy to

apply, unlike its alternative—an amorphous, multifactor exigent-

circumstances test. We generally “prefer the clarity of bright-line rules in

time-sensitive interactions between citizens and law enforcement.” State

v. Hellstern, 856 N.W.2d 355, 364 (Iowa 2014). Bright-line rules are

“especially beneficial” when officers “have to make . . . quick decisions as

to what the law requires where the stakes are high, involving public

safety on one side of the ledger and individual rights on the other.”

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 601 (Iowa 2011). The

ad hoc exigency approach is the antithesis of a bright-line rule. 28 That which constitutes “exigent circumstances” is frequently “in the eye of the beholder,” often requiring an on-the-scene judgment call by a police officer, often under stressful circumstances. Months later, in hindsight, it might not so appear to a judge far removed in time and place from the point of decision. “Exigent circumstances,” far from being a “bright line,” is often a difficult conclusion about which reasonable minds may differ.

Tompkins, 423 N.W.2d at 833 (Ceci, J., concurring). Abandoning the

automobile exception would lead to many more contested suppression

hearings with inconsistent and unpredictable results.

Automobile searches are conducted on the side of the road where ad hoc judgments have critical ramifications.

In a decision that is often instantaneous, the officer must [choose] either to conduct the search and risk having the evidence suppressed at trial, immobilize the vehicle until a search warrant can be obtained, or let the suspect leave without searching the vehicle and risk the evidence being released into the community. The later choice can be a critical one if that evidence involves a large quantity of illegal narcotics or a firearm.

Elizabeth Fischer, Confusion and Inconsistencies Surrounding the

Exigency Component for Warrantless Vehicle Searches Under Article I,

Section 8, 2 Duq. Crim. L.J. 123, 138 (2011) (footnote omitted). Bright-

line rules support predictability of result and avoid inconsistent police

and judicial determinations. See id. at 139 (comparing two factually

similar Pennsylvania cases with different outcomes).

“It is asking too much of law enforcement officers, who are

responding to fast-moving and [fast]-evolving events, to process the type

of complex and speculative information contained in [the exigent-

circumstances] formula and expect uniform and consistent decision-

making.” Pena-Flores, 965 A.2d at 139. We agree. 29

IV. Disposition.

For these reasons, we elect to retain the automobile exception at

the present time. We therefore affirm the district court’s ruling denying

Storm’s motion to suppress and affirm his judgment of conviction.

DISTRICT COURT JUDGMENT AFFIRMED.

Cady, C.J., Mansfield, and Zager, JJ., join this opinion. Cady,

C.J., files a concurring opinion. Hecht, J., files a dissenting opinion

joined by Wiggins and Appel, JJ. Appel, J., files a separate dissenting

opinion joined by Wiggins, J. 30 #16–0362, State v. Storm

CADY, Chief Justice (concurring specially).

I concur in the opinion of the court but write separately to express

my commitment to the views I expressed in State v. Gaskins, 866 N.W.2d

1, 17 (Iowa 2015) (Cady, C.J., concurring specially). Specifically, I

repeat,

An automatic exception to the warrant requirement, particularly one based on exigency, must account for the new world of technology, and must not continue to exist simply because it existed in the past. In some instances, this new world may require movement from an automatic exigency to the standard exigent-circumstances requirement in which the rapid nature of occurrences precluding the wait for a warrant must be explained on a case-by-case basis.

Id. Today, on this record, I agree with the court that Christopher George

Storm has not met his burden of proving that technological advances

have made the automobile exception obsolete. Thus, this new world we

live in does not yet require we move to a case-by-case exigency standard

for automobile searches.

Nearly 100 years ago, the government succeeded in establishing an

exception to the warrant requirement to deal with automobiles. See Carroll v. United States, 267 U.S. 132, 149, 45 S. Ct. 280, 283–84 (1925).

The Court found the government met its burden of establishing the

exception. See id.; see also United States v. Jeffers, 342 U.S. 48, 51, 72

S. Ct. 93, 95 (1951) (“Only . . . in ‘exceptional circumstances,’ may an

exemption [from the warrant requirement] lie, and then the burden is on

those seeking the exemption to show the need for it.” (citations omitted)

(quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369

(1948))). Eventually, we adopted the doctrine under our state

constitution. See State v. Olsen, 293 N.W.2d 216, 220 (Iowa 1980). In

effect, the state proved we could assume exigent circumstances existed 31

in this specific context because of “the inherent mobility of the vehicle,

the fact [the] defendant [would be] alerted, and the chance that the car’s

contents might not be found again if a warrant had to be then obtained.”

Id. For us to reject this rationale now, we must be convinced it is no

longer correct. Because automobiles are inherently mobile and a person

subjected to a traffic stop will always be alerted, it is the third finding

that is being eroded by technological advances that make it easier to

obtain a warrant and thus remove the risk of evidence being lost. On

this record, Storm has not presented compelling evidence showing it is

no longer reasonable to assume an exigency exists when an officer has

probable cause to believe an automobile stopped on a street or highway

contains contraband or evidence of a crime.

While I remain convinced the automobile exception has a limited

lifespan, its longevity will depend on the ability and pace of this state in

integrating and using technological advances in a way that renders a

categorical rule unreasonable.

For these reasons, I concur. 32

#16–0362, State v. Storm

HECHT, Justice (dissenting).

Because I would abandon the automobile exception as a

categorical exception to the warrant requirement under the Iowa

Constitution and conclude on this record that the State failed to prove

exigent circumstances justified a warrantless search of Christopher

Storm’s car, I respectfully dissent.

I. The Parties’ Positions.

On appeal, Storm challenges the constitutionality of the

automobile exception to article I, section 8 of the Iowa Constitution. He

contends the mobility of a vehicle is no longer a per se exigency justifying

a categorical exception to the warrant requirement for automobiles

because officers using widely available communications technology can

lawfully obtain a warrant without leaving the scene of a stop. He also

asserts the warrantless search of his vehicle based upon probable cause

violated article I, section 8 of the Iowa Constitution because no exigency

justified the warrantless search in this case.

The State does not dispute that modern communications

technology is available that would enable law enforcement officers to

submit warrant applications from the scene of most roadside stops. Yet,

the State offers three primary reasons in support of its position that it is

not feasible for law enforcement officers to submit warrant applications

from the scene of roadside stops. First, the State argues there is no

existing legal authority for electronic warrant applications because Iowa

Code section 808.3 (2015) requires warrant applications be submitted

and sworn to in a magistrate’s presence. 7 Second, the State asserts

7In 2017, the legislature amended Iowa Code section 808.3 to clarify that the

submission of a warrant application can be electronic and the oath or affirmation 33

electronic applications for warrants would take too much time and

unreasonably extend the duration of traffic stops in violating the

prohibition on unreasonable seizures under article I, section 8. Finally,

the State asserts remote applications are not feasible because of safety

concerns, the complexity of warrant applications, and training concerns.

In the alternative, the State contends that even were we to permit remote

warrant applications, special exigencies justified the warrantless search

of Storm’s vehicle.

I part ways with the majority because I believe the rationale

supporting the categorical exception from the warrant requirement for

searches of automobiles has outlived the rationale for its adoption.

Because existing technology now makes it possible for law enforcement

officers to submit applications and for judicial officers to issue warrants

electronically, I can no longer conclude warrantless searches of

automobiles are justified solely by virtue of a vehicle’s mobility. On

de novo review, I conclude the circumstances surrounding the

warrantless search of Storm’s automobile were not exigent, and I would

therefore reverse and remand.

II. Standards of Constitutional Interpretation.

When determining whether to adopt a different interpretation of a

provision of the Iowa Constitution than an analogue provision of the

United States Constitution, we employ an independent approach. State

v. Short, 851 N.W.2d 474, 486–87, 492 (Iowa 2014). Within this

independent approach, we generally consider factors such as the

provision’s text and purpose, our caselaw, authority from other

jurisdictions, scholarship and changing circumstances, and practical ___________________________ requirement can be met through electronic means of communication. S.F. 358, 87th G.A., 1st Sess. § 4 (Iowa 2017). 34

effects of various interpretations. See State v. Gaskins, 866 N.W.2d 1,

27–35 (Iowa 2015) (Appel, J., concurring). While we often follow federal

interpretations out of consideration for interests of uniformity and

judicial respect, we do not allow those interests to subvert our

constitutional duty to interpret the Iowa Constitution with fidelity to its

letter and purpose. See Short, 851 N.W.2d at 487–89.

For more than ninety years, it has been the rule that we do not

presumptively defer—or otherwise delegate our constitutional duties—to

the Justices of the United States Supreme Court; rather, we consider

whether to follow federal interpretations of the warrant requirement on a

case-by-case basis, maintaining strict fidelity to our independent

interpretive duties under the Iowa Constitution. See, e.g., State ex rel.

Kuble v. Bisignano, 238 Iowa 1060, 1066, 28 N.W.2d 504, 508 (1947) (“It

is true Article I, section 8, of the Iowa Constitution is identical in

language with the Fourth Amendment. This fact however does not

compel us to follow the construction placed on the language by the

United States Supreme Court.”), abrogated on other grounds by Mapp v.

Ohio, 367 U.S. 643, 654–55, 81 S. Ct. 1684, 1691 (1961); State v.

Rollinger, 208 Iowa 1155, 1156, 225 N.W. 841, 841 (1929) (“[W]hile the

Constitution of this state is almost a verbatim copy of a similar provision

of the federal Constitution, this court has thought fit to put a

construction thereon which does not correspond with the interpretation

of the federal Constitution by the Supreme Court of the United States.”),

abrogated on other grounds by Mapp, 367 U.S. at 654–55, 81 S. Ct. at

1691.

We have repeatedly rejected the argument that we should adopt a

“lockstep” policy of judicial deference when interpreting article I, section

8 of the Iowa Constitution to the Supreme Court’s interpretations of the 35

Fourth Amendment. See, e.g., State v. Baldon, 829 N.W.2d 785, 790

(Iowa 2013) (“[O]ur right under principles of federalism to stand as the

final word on the Iowa Constitution is settled, long-standing, and good

law.”); State v. Tonn, 195 Iowa 94, 104–07, 191 N.W. 530, 535–36 (1923)

(rejecting a lockstep approach to the interpretation of article I, section 8

of the Iowa Constitution in favor of an interpretation of the warrant

requirement adopted by other states), abrogated on other grounds by

Mapp, 367 U.S. at 654–55, 81 S. Ct. at 1691; see also Gaskins, 866

N.W.2d at 6–7 (majority opinion) (collecting cases); Short, 851 N.W.2d at

481 (collecting cases).

A. The Warrant Requirement. Article I, section 8 of the Iowa

Constitution provides,

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.

Iowa Const. art. I, § 8. “Evidence obtained in violation of th[is]

provision[ ] is inadmissible.” State v. Carter, 696 N.W.2d 31, 37 (Iowa

2005) (quoting State v. Reinders, 690 N.W.2d 78, 81 (Iowa 2004)).

Article I, section 8 of the Iowa Constitution is an independent

source of legal rights and governing principles, and we jealously guard

our duty to independently interpret the protections it affords,

notwithstanding its similarity to the Fourth Amendment to the United

States Constitution. State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa

2016); accord State v. Olsen, 293 N.W.2d 216, 219–20 (Iowa 1980); State

ex rel. Kuble, 238 Iowa at 1066, 28 N.W.2d at 508.

The framers of the Iowa Constitution believed the gradual erosion

of personal rights undermines the stability of government, so they placed 36

article I, section 8 within a strong and clearly defined bill of rights at the

beginning of the Iowa Constitution. State v. Ochoa, 792 N.W.2d 260, 274

(Iowa 2010) (citing 1 The Debates of the Constitutional Convention of the

State of Iowa 100–01 (W. Blair Lord rep., 1857),

http://www.statelibraryofiowa.org/services/law-library/iaconst). The

section limiting the power of the government to conduct seizures and

searches protects individuals from government intrusion into property or

protected individual rights. Id. at 273–75.

The first clause of article I, section 8 protects individuals’

legitimate expectations of privacy and interests in property, security, and

mobility. See id. at 268, 284–85; see also Short, 851 N.W.2d at 504. The

reasonableness of a seizure or search depends on the particular facts of a

case. State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). A warrantless

search is per se unreasonable unless the state proves by a

preponderance of the evidence that the search falls within one of a few

specifically established and carefully drawn exceptions to the warrant

requirement. Id. at 107–08; see also Baldon, 829 N.W.2d at 791.

The second clause of article I, section 8 requires government

officials obtaining a warrant from an independent officer of the court to

make a showing of probable cause that is supported by oath or

affirmation. Ochoa, 792 N.W.2d at 268–69, 285. This requirement

protects individuals from the risks of government error, bias, arbitrary

action, corruption, and abuse, prioritizing accuracy in law enforcement

over expediency. See id. at 274; see also Brooks, 888 N.W.2d at 418

(Appel, J., dissenting); Baldon, 829 N.W.2d at 829 (Appel, J., specially

concurring).

The exceptions to the warrant requirement include the exigent-

circumstances exception, which permits a warrantless search with 37

probable cause if “exigent circumstances require that the search be

conducted immediately.” Carter, 696 N.W.2d at 37. We have applied

this exception to the warrantless search of automobiles, concluding that

a readily mobile vehicle poses a per se exigency justifying a warrantless

search upon probable cause because the vehicle or its contents may

disappear if an officer leaves the scene of a traffic stop to obtain a

warrant. State v. Maddox, 670 N.W.2d 168, 171 (Iowa 2003).

B. The Automobile Exception. We adopted the automobile

exception to article I, section 8 as a rule of exigency under the Iowa

Constitution in Olsen, 293 N.W.2d at 220. In adopting the exception, we

followed precedents emanating from federal courts holding that the

inherent mobility of a vehicle is an exigency justifying the automobile

exception to the Fourth Amendment to the United States Constitution.8

See id. (concluding federal exigency requirement is met if the vehicle is

mobile, its occupants alerted, and its contents at risk of disappearing if a

warrant must be obtained).

1. Federal origins of the automobile exception. The automobile

exception to the Fourth Amendment began as a judicial response to

practical law enforcement problems created by the National Prohibition Act’s ban on the transportation of intoxicating liquors. See Carroll v.

United States, 267 U.S. 132, 143–44, 151, 153–54, 45 S. Ct. 280, 281–

82, 284, 285–86 (1925) (permitting an exception to the warrant

8The evolution of the automobile exception to the Fourth Amendment to the United States Constitution is reviewed at length in State v. Allensworth, 748 N.W.2d 789, 792–95 (Iowa 2008). Contrary to the majority’s assertion, Allensworth did not reject an Iowa constitutional challenge to the warrantless search of a vehicle but limited its analysis to the automobile exception to the Fourth Amendment after concluding no state claim had been raised or decided in the district court. See id. at 791 n.2. I discuss the relevant portions of the federal exception’s history below in my discussion of the impact of modern communications technology on justifications underlying the automobile exception to article I, section 8. 38

requirement because “goods in course of transportation and concealed in

a movable vessel . . . readily could be put out of reach of a search

warrant”). In Carroll, the Supreme Court held that a warrantless search

of an automobile for intoxicating liquors based upon probable cause does

not violate the Fourth Amendment “where it is not practicable to secure a

warrant.” Id. at 153, 45 S. Ct. at 285. The Court concluded it was not

practicable to secure a warrant for the search of a vehicle at a traffic stop

“because the vehicle can be quickly moved out of the locality or

jurisdiction in which the warrant must be sought.” Id. Because a

vehicle’s mobility posed the risk that it could be moved outside the

jurisdiction while an officer left to secure a search warrant, the Court

approved the warrantless search based on exigency. Id. at 162, 45 S. Ct.

at 288.

Importantly, the Supreme Court emphasized in Carroll that if

securing a warrant is “reasonably practicable,” it must still be obtained.

Id. at 156, 45 S. Ct. at 286; cf. Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct.

1868, 1879 (1968) (“We do not retreat from our holdings that the police

must, whenever practicable, obtain advance judicial approval of searches

and seizures through the warrant procedure . . . .”).

In subsequent cases, the Supreme Court expanded the contours of

the automobile exception recognized in Carroll. The Court concluded in

Husty v. United States that a warrantless search of an automobile by a

prohibition officer was not unreasonable under the Fourth Amendment

even if the officer had sufficient time—after acquiring probable cause but

before conducting the subsequent stop and search of the defendant’s

car—to procure a search warrant. 282 U.S. 694, 701, 51 S. Ct. 240, 242

(1931). The Supreme Court held in Chambers v. Maroney that the

location of the automobile at the time of the search did not matter as 39

long as exigency and probable cause were both obtained at the scene of

the stop; thus, a warrant was not required to search a vehicle on

probable cause after the vehicle had been relocated from the roadside to

the stationhouse. 9 399 U.S. 42, 52, 90 S. Ct. 1975, 1981 (1970). In

either location—at the scene of the stop or at the stationhouse—the

Court determined the risk that evidence would disappear before an officer

returned with a search warrant supplied exigency and made it

impracticable to require law enforcement officers to procure a search

warrant. See id. at 52, 90 S. Ct. at 1982 (“The probable-cause factor still

obtained at the station house and so did the mobility of the car . . . .”);

Husty, 282 U.S. at 701, 51 S. Ct. at 242 (“In such circumstances, we do

not think the officers should be required to speculate upon the c[h]ances

of successfully carrying out the search, after the delay and withdrawal

from the scene of one or more officers which would have been necessary

to procure a warrant.”).

In a series of cases decided after Chambers, the Supreme Court

has continued to view the mobility of automobiles as a justification for

the automobile exception to the warrant requirement under the Fourth

Amendment. In California v. Carney, the Court concluded that a

vehicle’s “ready mobility” alone presents a per se exigency. 471 U.S. 386,

394, 105 S. Ct. 2066, 2070–71 (1985); see also Maryland v. Dyson, 527

U.S. 465, 467, 119 S. Ct. 2013, 2014 (1999) (per curiam) (“[T]he

‘automobile exception’ has no separate exigency requirement.”). The

9The Court has since indicated the scope of this rule may be limited. See United States v. Johns, 469 U.S. 478, 487, 105 S. Ct. 881, 887 (1985) (“We do not suggest that police officers may indefinitely retain possession of a vehicle and its contents before they complete a vehicle search.”); Coolidge v. New Hampshire, 403 U.S. 443, 523, 91 S. Ct. 2022, 2066 (1971) (White, J., concurring in part and dissenting in part) (concluding a warrantless stationhouse search is only valid if performed with “some expedition”). 40

Court also construed “ready mobility” broadly to include vehicles capable

of movement and “in a setting that objectively indicates that the vehicle

is being used for transportation.” Carney, 471 U.S. at 394, 105 S. Ct. at

2070–71 (footnote omitted). The Court augmented its “ready mobility”

rationale with another rationale for the automobile exception—that

individuals have a lower expectation of privacy in vehicles than homes

because vehicles, unlike homes, are pervasively regulated. Id. at 391–94,

105 S. Ct. at 2069–71.

2. The automobile exception in Iowa. We first applied the

automobile exception as a matter of federal law in State v. King, 191

N.W.2d 650, 655 (Iowa 1971). Nearly a decade later, we recognized the

automobile exception under article I, section 8 of the Iowa Constitution.

See Olsen, 293 N.W.2d at 220.

Our earliest cases applying the federal automobile exception did so

within the then-existing exigent-circumstances framework. E.g., State v.

Shea, 218 N.W.2d 610, 613 (Iowa 1974) (“[A] peace officer may search an

automobile without a warrant when exigent circumstances and probable

cause exist.”). We assessed exigency by looking at multiple factors, such

as whether the car was movable, its occupants were on alert, and its

contents were at risk of disappearing if officers left to secure a warrant.

See, e.g., State v. Holderness, 301 N.W.2d 733, 737 (Iowa 1981) (“These

facts, coupled with the inherent mobility of the vehicle, created a clear

likelihood that the car and its contents might never have been located

again had the police departed to obtain a warrant.” (Emphasis added.));

State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986) (“If the automobile had

not been seized immediately, there was a clear likelihood that the car

and its contents may never have been located again had the police

departed to obtain a search warrant.” (Emphasis added.)). 41

Importantly, from our earliest cases applying the automobile

exception under the Fourth Amendment, we concluded a warrant was

required for the search of an automobile if it was practicable to obtain

one. See, e.g., State v. Schlenker, 234 N.W.2d 142, 144–45 (Iowa 1975);

Shea, 218 N.W.2d at 613 (“[E]xistence of exigent circumstances may

relieve an officer from the obligation to obtain a warrant if it is

impracticable to do so.” (emphasis added) (quoting State v. Jackson, 210

N.W.2d 537, 539 (Iowa 1973))). In State v. Schlenker, we concluded the

fact that an officer actually secured a warrant—later held invalid—to

search a vehicle conclusively demonstrated that no exigent

circumstances justified the search. 234 N.W.2d at 145. Implicit in this

conclusion was a determination that it would have been practicable to

secure a warrant authorizing the search of Schlenker’s automobile.

After the Supreme Court determined that the inherent mobility of a

vehicle is a per se exigency for purposes of the automobile exception in

Carney, we abandoned our more probing exigency inquiry in cases

challenging warrantless searches under both the Federal and State

Constitutions. See State v. Allensworth, 748 N.W.2d 789, 795 (Iowa

2008) (noting the Supreme Court no longer requires a separate showing

of exigency because the mobility of a vehicle is enough). In State v. Cain,

for example, we noted that the state did not have to prove the existence

of exigent circumstances supporting a warrantless search under the

Fourth Amendment because vehicles are inherently mobile. 400 N.W.2d

582, 585 (Iowa 1987). Likewise, in Maddox, we opined that the inherent

mobility of a vehicle “presents an exigent circumstance” under article I,

section 8 of the Iowa Constitution. 670 N.W.2d at 171. Our perception

of exigency in this context has been based on the risk that if an officer

leaves the scene of a stop to secure a warrant, the vehicle or its contents 42

will be gone when the officer returns to perform the search. See, e.g.,

Lam, 391 N.W.2d at 249; Holderness, 301 N.W.2d at 737; see also

Allensworth, 748 N.W.2d at 795 (noting the risk the vehicle will

disappear is at the root of the mobility exigency under the Fourth

Amendment); Olsen, 293 N.W.2d at 220 (noting exigency might exist for

purposes of article I, section 8, if there is a risk the vehicle’s contents will

disappear).

C. Physical Presence Requirement. Before addressing the

merits of Storm’s contention that we should abandon the per se exigency

rule for warrantless searches of automobiles under article I, section 8, I

will address the district court’s conclusion that Iowa Code section 808.3

requires an applicant for a warrant be in the physical presence of a

judicial officer when applying for a warrant.

Iowa Code section 808.3 establishes “procedural requirements for

issuance, execution and return” of a search warrant. See Meier v.

Sulhoff, 360 N.W.2d 722, 726 (Iowa 1985). The statute provides,

A person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person’s oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist.

Iowa Code § 808.3 (emphasis added).

When interpreting a statute, we seek to determine and enforce

legislative intent. Second Injury Fund of Iowa v. Kratzer, 778 N.W.2d 42,

46 (Iowa 2010). In determining legislative intent, we begin with the

statute’s text, interpreting undefined terms in accordance with their

ordinary and accepted usage. Id. The plain meaning of a statute is

conclusive unless one of the limitations or exceptions to the plain 43

meaning rule applies; for instance, a court may depart from a plainly

worded statute if:

[(1)] applying the language according to its plain meaning would lead to an absurd result, or there is “obvious” or “clear” evidence of contrary legislative intent; [(2)] it finds a “specific indication to the contrary;” [(3)] it finds “compelling reasons to hold otherwise;” [(4)] some other section of an act expands or restricts its meaning, or a particular provision is repugnant to an act’s general purview, or other acts in pari materia[—]or the relevant legislative history[—]imports a different meaning; [(5)] an act’s plain meaning departs from its policy, and it finds a clearly expressed legislative intention contrary to the statute’s language; [or] [(6)] it finds “some other compelling reason” to disregard an act’s or provision’s plain meaning.

2A Norman J. Singer & Shambie Singer, Statutes and Statutory

Construction § 46:1, at 163–68 (7th ed. 2014) (footnotes omitted).

A statute is ambiguous if it is susceptible of two or more plausible

interpretations. Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d

724, 728 (Iowa 1995). “Ambiguity may arise from specific language used

in a statute or when the provision at issue is considered in the context of

the entire statute or related statutes.” Sherwin-Williams Co. v. Iowa Dep’t

of Revenue, 789 N.W.2d 417, 425 (Iowa 2010) (quoting Midwest Auto. III,

LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002)). If a

statute is ambiguous, we consider “the statute’s subject matter, the

object sought to be accomplished, the purpose to be served, underlying

policies, remedies provided, and the consequences of the various

interpretations.” State v. McCullah, 787 N.W.2d 90, 95 (Iowa 2010); see

also Iowa Code § 4.6.

In deciding whether an application for a search warrant can be

submitted under section 808.3, we must decide whether the phrases

“submitting before a magistrate” and “supported by the person’s oath or 44

affirmation” in section 808.3 require that an applicant for a warrant be in

the physical presence of a magistrate. 10 I conclude they do not.

1. “Submitting before a magistrate.” I begin with the phrase

“submitting before a magistrate.” Iowa Code § 808.3. The words in this

phrase are not defined in Iowa Code chapter 808. By its ordinary

meaning, “submit” means “to present or propose to another for review,

consideration, or decision” or “to deliver formally.” Submit, Merriam

Webster’s Collegiate Dictionary (11th ed. 2012). The term “before” in this

context can mean, alternatively, “in front of,” “in the presence of,” or

“under the jurisdiction for consideration of.” Before, Merriam Webster’s

Collegiate Dictionary. “Magistrate” is defined elsewhere in the Iowa Code

to mean “a person appointed under article 6, part 4 to exercise judicial

functions.” See Iowa Code § 602.1101(8); cf. id. §§ 602.6401–.6405

10The parties also address whether the language of another statute should lead us to conclude Iowa Code section 808.3 requires a search warrant application be presented to a magistrate. Iowa Code section 321J.10 provides, in relevant part, Notwithstanding section 808.3, the issuance of a search warrant [for urine or blood tests after a fatal vehicle crash] under this section may be based upon sworn oral testimony communicated by telephone if the magistrate who is asked to issue the warrant is satisfied that the circumstances make it reasonable to dispense with a written affidavit. Iowa Code § 321J.10(3). I would conclude this exception does not conclusively demonstrate the general assembly intended in section 808.3 to prohibit remotely administered oaths supporting search warrant applications. The exception in section 321J.10 does not focus on the oath but rather upon the form of application. It permits an oral warrant application as an express exception to the requirement in section 808.3 that warrant applications be made in writing. See id. (permitting “sworn oral testimony” if it is “reasonable to dispense with a written affidavit”). The focus on the form of the application is evident in the comprehensive procedural requirements of section 321J.10(3), which preserve the safeguards of a written application by requiring the applicant prepare a duplicate warrant and read it to the magistrate, the magistrate to keep a written record of the call, and the clerk of court to maintain the original and duplicate warrants along with the written record of the call. See id. § 321J.10(3)(a)–(h). If section 321J.10(3) focused on securing the protections provided by a physical presence requirement, its procedural protections would instead require things like a verification of identity and a reminder of the consequences of perjured testimony “to enhance the conscience of the person taking the oath.” See City of Cedar Rapids v. Atsinger, 617 N.W.2d 272, 276 n.2 (Iowa 2000). 45

(describing appointment, qualifications, and powers of a magistrate).

Magistrates have jurisdiction of search warrant proceedings. See id.

§ 602.6405.

I conclude the phrase “submitting before a magistrate” is

ambiguous because it is capable of more than one interpretation. Under

the State’s preferred interpretation, the statute requires an applicant for

a warrant be physically present with a magistrate. Under the

interpretation preferred by Storm, the statute requires written

applications to be presented for decision “under the jurisdiction or

consideration of” the magistrate. 11 I find both interpretations to be

plausible; hence, I conclude the statute is ambiguous.

Because section 808.3 is ambiguous, I resort to our tools of

statutory construction. When interpreting an ambiguous statute, we

consider the consequences of various interpretations. State v. Hoyman,

863 N.W.2d 1, 14 (Iowa 2015); see also Iowa Code § 4.6(5). The phrase

at issue here concerns the method of delivering a written application to a

judicial officer for a decision. The Iowa Court Rules permit written

applications and other filings to be electronically submitted in court

proceedings. See Iowa Ct. Rs. 16.201, 16.307(2). I perceive no reasonable purpose for requiring personal physical delivery of a written

application for a search warrant.

“[W]e interpret statutes when possible to avoid untoward results.”

Hoyman, 863 N.W.2d at 13. If we interpret the phrase to require

applicants to be physically present with the magistrate when submitting

11The State contends that the interpretation advanced by Storm should be rejected because the term “before” is surplusage if “submit” means “to present or propose to another for review, consideration, or decision.” I disagree. In this context, the term “before” adds the jurisdictional component to the phrase “submitting before,” which indicates that the magistrate must be acting within the judicial officer’s lawful authority. 46

applications for search warrants, we will impose an unnecessary

procedural barrier and discourage their use. Resolving the ambiguity in

favor of defendants who are the subject of a search and law enforcement

officers who have an interest in efficiently applying for warrants, I would

conclude the phrase “submitting before a magistrate” in section 808.3

does not require an applicant be in the physical presence when making

an application for a search warrant.

2. “Supported by the person’s oath or affirmation.” I next consider

whether Iowa Code section 808.3 requires an applicant for a search

warrant be in the physical presence of a magistrate when making an

oath or affirmation in support of an application for a search warrant.

The text of section 808.3 requires that every warrant application be

“supported by the person’s oath or affirmation.” Iowa Code § 808.3. The

oath or affirmation requirement is in a wholly separate phrase from the

requirement of a signed writing and separated by a comma. Even if

physical presence is not required for the submission of a written

application, it might still be required for the swearing of an oath or

affirmation.

Turning to the plain language of the statute, the word “oath” is

commonly defined as “[a] solemn declaration, accompanied by a swearing

to God or a revered person or thing, that one’s statement is true or that

one will be bound to a promise[.]” Oath, Black’s Law Dictionary (10th ed.

2014). An “affirmation” is considered “[a] solemn pledge equivalent to an

oath but without reference to a supreme being or to swearing.”

Affirmation, Black’s Law Dictionary. Statements made under oath or

affirmation constitute sworn testimony, subjecting the affiant to the

penalty of perjury for false statements. See City of Cedar Rapids v.

Atsinger, 617 N.W.2d 272, 276 (Iowa 2000). 47

Section 808.3 is silent on whether physical presence of the affiant

before a magistrate is required. At common law, oaths and affirmations

were administered in person. See United States v. Turner, 558 F.2d 46,

50 (2d Cir. 1977). However, the modern trend recognizes that oaths and

affirmations can be remotely administered. See, e.g., id. (“Long Distance

has truly become . . . ‘the next best thing to being there.’ The Fourth

Amendment is sufficiently flexible to account for such technological

advances.”); State v. Gutierrez-Perez, 337 P.3d 205, 210–11 (Utah 2014)

(concluding language in an e-Warrant application met the Fourth

Amendment’s oath or affirmation requirement); Smith v. State, 311 P.3d

132, 140 (Wyo. 2013) (concluding a telephonic oath provides protections

for a defendant equal to those provided by an in-person oath). Given the

difference between the common law approach and the modern

understanding, I conclude the phrase in section 808.3 requiring a

warrant application be “supported by the person’s oath or affirmation” is

ambiguous. Accordingly, I resort to our rules of statutory construction

in resolving the ambiguity.

Generally, “we interpret statutes consistent with the common law

unless the statutory language clearly negates the common law.” State v.

Carter, 618 N.W.2d 374, 377 (Iowa 2000). As recognized above, oaths

and affirmations at common law were administered in person. See

Turner, 558 F.2d at 50. However, I find no basis for concluding the

common law required physical presence—physical presence for the

administration of an oath or affirmation was the only option in a world

where remote audio and video communications technologies did not

exist. In the late eighteenth century,

the main requirements for a valid affirmation were that the affiant (1) knowingly and intentionally make a statement to a neutral and detached magistrate; (2) affirm, swear, or declare 48 that the information in the statement is true and correct; and (3) do so under circumstances that impress upon the affiant the “solemnity and importance of his or her words and of the promise to be truthful, in moral, religious, or legal terms.”

Gutierrez-Perez, 337 P.3d at 210 (quoting United States v. Bueno-Vargas,

383 F.3d 1104, 1110 (9th Cir. 2004)). Notably, physical presence was

not among these requirements. Id. at 210–11 (concluding physical

presence was not required to satisfy these requirements). Thus, the

common law rule does not resolve the ambiguity.

We do not interpret statutes in isolation but “strive to achieve

harmony and consistency” between provisions. Carter, 618 N.W.2d at

377. In Carter, we held that an oath or affirmation must occur “in the

presence of an authorized official” in order to support a conviction for

perjury under Iowa Code section 720.2. Id. This was, in part, because

the physical presence of an official was deemed necessary to bind a

person’s conscience. Id. at 376–77. Because physical presence is

required to support perjury convictions under the Iowa Code, I would likewise interpret section 808.3 to require a form of presence sufficient to

maintain a criminal consequence for a warrant applicant violating the

legal obligation to tell the truth. See Atsinger, 617 N.W.2d at 276 (finding presence of another is required for valid oath in perjury context).

My analysis does not stop there, however. I believe the meaning of

text remains sufficiently flexible to allow the legal system to embrace new

technologies. See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 86–87 (2012); see also, e.g., United States v.

Jones, 565 U.S. 400, 400–05, 132 S. Ct. 945, 949 (2012) (recognizing a

GPS tracking device can effect a “search” within the Fourth Amendment);

Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046 (2001)

(recognizing a “search” within the Fourth Amendment can be undertaken 49

through thermal imaging); State v. Pashal, 300 N.W.2d 115, 117–19

(Iowa 1980) (interpreting the warrant application process to permit tape-

recorded testimony in support of probable cause determination). It might

be tantamount to physical presence for purposes of section 808.3 for a

warrant applicant to be present before a magistrate through two-way

video communication. In making this assessment, we should consider

the purposes underlying the oath-or-affirmation requirement and explore

whether technological presence can adequately serve those purposes.

The requirement of an oath or affirmation exists to impress on an

affiant the importance of telling the truth and to ensure the affiant

recognizes the legal obligation to tell the truth. See Atsinger, 617 N.W.2d

at 276 & n.2. The presence of a court officer serves “to enhance the

conscience of the person taking the oath” and “to assure that the person

who had knowledge of the facts is the same person who subscribed to

the verification.” Id. at 276 n.2. The oath or affirmation and the

interconnection between the affiant and the court officer are calculated to

increase the reliability of information asserted in a warrant application.

I conclude the use of two-way video technology is tantamount to

physical presence for purposes of the administration of an oath or

affirmation. 12 Two-way video systems such as SkypeTM and FaceTimeTM

enable people located at different places “to see and hear one another

simultaneously.” State v. Rogerson, 855 N.W.2d 495, 500 (Iowa 2014).

12My interpretation of the oath and affirmation requirement of Iowa Code section 808.3 is supported by a recent amendment to the statute. Without altering the existing statutory requirements that warrant applications be in writing, submitted before a magistrate, and supported by oath or affirmation, the legislature clarified that the submission can be electronic and the oath or affirmation requirement can be met through electronic means of communication. See S.F. 358, 87th G.A., 1st Sess. § 4 (Iowa 2017). 50

Although virtual presence is not identical to physical presence, see id. at

509 (Hecht, J., concurring specially), it does not significantly diminish

the protections provided by an oath or affirmation made in the physical

presence of a magistrate for purposes of the warrant requirement. A

magistrate administering a video oath or affirmation can see the affiant

in assessing credibility and connect the affiant with a warrant

application. The audio and video connection between a magistrate and

an affiant can, in my view, adequately impress upon the affiant the legal

obligation to tell the truth and underscore the solemnity of the oath. See

Astinger, 617 N.W.2d at 276 & n.2. Because two-way video technology

provides access to auditory and visual information for both the

magistrate and the affiant, I conclude it is tantamount to physical

presence for purposes of the administration of oaths and affirmations

under section 808.3.

While adequately serving the purposes of physical presence, video

technology dramatically enhances the efficiency of the warrant application process. We should not avert our eyes from the technological

changes that are all around us and cling to old ways of doing things

fashioned long before the communications revolution began. The users

of our justice system reasonably expect it will incorporate the

technologies they are using in their daily lives. Indeed, I would embrace

existing technologies enabling law enforcement officers to seek, and

allowing judicial officers to issue, search warrants before conducting

automobile searches when possible and reasonably practicable, thereby

enhancing the protection of privacy afforded by article I, section 8. See

Smith, 311 P.3d at 140 (“[T]he availability of such a procedure increases

the likelihood that a search warrant will be obtained in DWUI arrest 51

situations, and it greatly decreases the amount of time necessary to

obtain the warrant.”).

D. Technology and the Mobility Exigency. I now turn to

Storm’s assertion that the mobility of an automobile no longer poses a

per se exigency justifying a categorical automobile exception under article

I, section 8 because modern communications technologies enable

warrant applications to be remotely prepared and submitted without

leaving the scene of a traffic stop. See Gaskins, 866 N.W.2d at 17 (Cady,

C.J., concurring specially) (“An automatic exception to the warrant

requirement, particularly one based on exigency, must account for the

new world of technology, and must not continue to exist simply because

it existed in the past.”).

As I have already noted, the Supreme Court emphasized in Carroll

that a warrant must be obtained if it is “reasonably practicable” to do so

and noted that “where the securing of a warrant is reasonably

practicable, it must be used.” See Carroll, 267 U.S. at 156, 45 S. Ct. at

286; see also Terry, 392 U.S. at 20, 88 S. Ct. at 1879 (“We do not retreat

from our holdings that the police must, whenever practicable, obtain

advance judicial approval of searches and seizures through the warrant

procedure . . . .”). Our own early automobile exception jurisprudence did

the same. See, e.g., Shea, 218 N.W.2d at 613 (“[E]xistence of exigent

circumstances may relieve an officer from the obligation to obtain a

warrant if it is impracticable to do so.” (quoting Jackson, 210 N.W.2d at

539)); Schlenker, 234 N.W.2d at 145.

Among the foundational principles undergirding the automobile

exception are the concepts of mobility and “reasonable practicability.” In

determining it was not reasonably practicable for the law enforcement

officer to obtain a warrant in Husty, the Supreme Court expressly cited 52

the risk that any evidence within the vehicle would have been lost during

“the delay and withdrawal from the scene of one or more officers which

would have been necessary to procure a warrant.” 282 U.S. at 701, 51

S. Ct. at 242. Indeed, the Court implicitly determined in Chambers that

the mobility of the suspect’s vehicle renders a search warrant

impracticable even if there had been time to obtain one prior to the

search. See 399 U.S. at 52, 90 S. Ct. at 1982.

As Chief Justice Cady recently presaged, however, the need for an

automatic exigency rule “may be affected by the changing technology

that is speeding up the warrant process.” Gaskins, 866 N.W.2d at 17.

Technological advances now make it reasonably practicable to apply for a

warrant from the scene of a traffic stop, at least in some circumstances.

Law enforcement officers equipped with laptops and smart phones can

and do access the internet from their patrol cars. 13 Using laptops or

smartphones, law enforcement officers can establish an audiovisual

connection with a magistrate for remote administration of the oath or

affirmation. These technologies are widely available and accessible to

most officers. Where it is reasonably practicable to use such

technologies in applying for search warrants during traffic stops, we should require their use.

I do not contend here that the automobile exception should be

categorically abandoned. The exception should be maintained for

circumstances in which the State establishes exigency other than the

mobility of the automobile rendered an application for a search warrant

impracticable. For example, if an officer’s lack of internet access

13Indeed, Deputy Leonard confirmed that he had internet access from the

roadside where he stopped Storm. Although he characterized the access as “slow,” the State failed to establish it was so poor as to support a finding that communication with either the prosecutor or a magistrate was impractical. 53

precludes the submission of an application for a warrant from the scene

of a stop for a reason outside of the State’s control, it would not be

reasonably practicable to secure a warrant from the scene of the stop.14

If securing a warrant is not “reasonably practicable” under the

circumstances, then the officer can search a readily mobile vehicle based

upon probable cause and exigent circumstances.

The State contends, and the majority affirms, that the categorical

automobile exception can be justified and should be maintained because

individuals hold lower expectations of privacy in motor vehicles. I

disagree. Professor LaFave has observed that “[m]ost Americans view the

automobile as more than merely a means of transportation.” 3 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment

§ 7.2(b), at 735 (5th ed. 2012) (quoting Lewis R. Katz, Automobile

Searches and Diminished Expectations in the Warrant Clause, 19 Am.

Crim. L. Rev. 557, 570–72 (1982)). In his concurring opinion in State v.

Gaskins, Justice Appel aptly described how people use their automobiles.

Automobiles are used as temporary homes or even a place to take a snooze after a long (or not so long) drive. Bank statements, recent mail, credit card invoices, love notes, and medical information may be stored in automobiles. Glove compartments and consoles are pretty good places to keep

14The State contends circumstances other than potential shortcomings of technology support a categorical automobile exception to the warrant requirement. For example, an officer’s concentration on the task of preparing an application for a warrant could be disrupted by the need to manage the conduct of multiple people present at the scene of the stop. The State also suggests that some warrant applications are complex and their preparation at the scene of the stop would unreasonably extend the duration of the stop. I view these factors as part of the circumstances upon which any claim of actual exigency should be made. Unlike my colleagues in the majority, I have confidence in our law enforcement officers’ ability to assess the circumstances at the scene of a traffic stop and decide whether an exigency other than mere mobility of the automobile renders an electronic application for a warrant impracticable. Prior to the Supreme Court’s determination in Carney that the inherent mobility of a vehicle is a per se exigency for purposes of the automobile exception, we required a similarly probing exigency inquiry to be made for warrantless vehicle searches under both the Federal and State Constitutions. See Allensworth, 748 N.W.2d at 795. 54 “papers and effects.” Professionals driving home from work take bundles of documents with them in both hard and electronic formats that are often placed on the back seat. . . . Today, with new electronic devices and wireless networks, it is not unusual for an automobile to serve as a virtual office for the conduct of private business.

866 N.W.2d at 36 (Appel, J., concurring specially). I conclude Justice

Appel’s characterization of the contemporary uses commonly made of

automobiles is apt. I therefore strongly disagree with the notion that the

reasonable expectation of privacy in one’s car is so diminished as to

support the categorical exception to the warrant requirement reaffirmed

today by the majority.

We measure privacy interests by gauging the subject’s “exposure to

public view, the types of activities that take place there, the steps taken

to protect it from public view, and a host of other variables.” Christopher

Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 22

(1991) [hereinafter Slobogin] (footnotes omitted). Storm had a

constitutionally protected privacy interest in his vehicle. This is evident

from the fact that even under the rubric of the automobile exception, we

have protected motorists’ article I, section 8 rights by enforcing the

requirement to show probable cause and ready mobility. See id. (noting

without an expectation of privacy, probable cause would not be required

either). Storm took steps to protect his vehicle’s contents from public

view by placing them in the vehicle’s middle console, which indicates he expected privacy. Although I would concede his automobile is less

private than his residence, “the minor privacy infringement to enforce

traffic laws does not itself justify the further intrusiveness of criminal

investigations.” Sarah A. Seo, Essay, The New Public, 125 Yale L.J.

1616, 1670 (2016). 55

The majority concludes alternatively that the categorical

automobile exception should be maintained because of compelling

societal interests in efficiency, public safety, and officer safety. I concede

the argument that the automobile exception is easy for law enforcement

officers to apply. Because no search warrant is required under the

categorical exception, officers do not have to bother with warrants before

searching automobiles. From the perspective of law enforcement officers,

the exception is quite efficient to be sure. But the primary purpose of the

warrant clause was clearly not to make investigations of crime easy or

efficient. See State v. Tibbles, 236 P.3d 885, 889 (Wash. 2010) (en banc)

(“[W]hatever relative convenience to law enforcement may obtain from

forgoing the burden of seeking a warrant once probable cause to search

arises . . . , we adhere to the view that ‘mere convenience is simply not

enough.’ ” (quoting State v. Patterson, 774 P.2d 10, 12 (Wash. 1989))). A

quotation of Justice Robert Jackson is apt here. He once observed that

“[w]hen the right of privacy must reasonably yield to the right of search

is, as a rule, to be decided by a judicial officer, not by a policeman or

Government enforcement agent.” Johnson v. United States, 333 U.S. 10,

14, 68 S. Ct. 367, 369 (1948). Thus, although the categorical automobile

exception obviously promotes efficiency for law enforcement officers

wishing to search automobiles in furtherance of the investigation of

crimes, it comes with far too great of a privacy cost. The exception

obliterates the warrant requirement and motorists’ right of privacy in

their vehicles. Although this cost might formerly have been deemed

acceptable because of the impossibility of obtaining a warrant from the

scene of a stop, I now conclude it is one this court should no longer

require Iowans to pay. The ease and efficiency of a criminal investigation 56

are not constitutionally protected interests and must yield to the

constitutional requirement for a warrant.

The interests in public and officer safety, however, warrant special

consideration. All traffic stops executed by law enforcement officers

along the roadway are attended by a risk of injury to motorists and law

enforcement officers. The State has deemed the level of risk low enough

to perform warrantless roadside vehicle searches under the most recent

iteration of the automobile exception. It is clear the State has deemed

this risk to be acceptable because warrantless searches along the open

roadway have been routine since Carroll was decided. Yet the majority

would now conclude a warrant application—performed inside a secured

police car—is too dangerous to justify extending a stop. Certainly, when

the duration of a traffic stop is extended, the risk to motorists and law

enforcement officers will, to some unknown extent, be enhanced. I

acknowledge this may be true if a warrant must be sought and obtained

prior to conducting a valid automobile search. But I am not convinced

by the majority’s assertion that the magnitude of the enhanced risk

resulting from electronic applications for search warrants made possible

by advancing technology is so great as to justify continued recognition of

a categorical exception to the warrant requirement for automobile

searches.

I conclude the categorical exception permitting a warrantless

search of a vehicle under article I, section 8 can no longer be sustained

under the theory that a vehicle’s mobility poses a per se exigency.

Accordingly, I would hold that a warrantless search of a vehicle must be

justified by exigent circumstances other than mobility. See, e.g., Lam,

391 N.W.2d at 249; Holderness, 301 N.W.2d at 736–37; Shea, 218

N.W.2d at 613. 57

E. Duration of a Seizure Required to Obtain a Warrant. The

majority asserts that we should not abandon the automobile exception as

a categorical rule under article I, section 8 because it no more violates

article I, section 8 to search a vehicle without a warrant than it does to

seize a person without a warrant long enough to obtain a warrant to

search. I acknowledge the dissonance between these interests, but

conclude that the automobile exception should still be abandoned as a

categorical rule.

Article I, section 8 of the Iowa Constitution protects the right of

individuals to be free from “unreasonable seizures and searches.” Iowa

Const. art. I, § 8. “A search and seizure without a valid warrant is per se

unreasonable unless it comes within a recognized exception such as

consent, search incident to arrest, probable cause and exigent

circumstances, or plain view.” State v. Pickett, 573 N.W.2d 245, 247

(Iowa 1997) (quoting State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995)).

The majority accepts the State’s argument that if we strike down

the automobile exception and require remote warrant applications when

it is reasonable under the circumstances to obtain a warrant, then we

will be protecting individuals from a warrantless search by subjecting

them to a lengthier warrantless seizure. In Chambers, the Supreme

Court adverted to this conflict between competing constitutional

interests.

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

399 U.S. at 51–52, 90 S. Ct. at 1981. By permitting an unreasonable

search in order to protect a suspect from what would be a reasonable 58

seizure, the majority has given primacy to the mobility interests

protected by article I, section 8 and concluded as a matter of law that the

property, privacy, and security interests protected by the same provision

are less worthy of protection.

I acknowledge that vehicle searches conducted during traffic stops

present an inherent conflict between the interests protected by the

prohibitions on unreasonable seizures and unreasonable searches.

However, I conclude the deprivation resulting from a warrantless seizure

of a reasonable duration pending an application for a warrant to search

an automobile is a constitutionally tolerable cost for protection of the

privacy rights at issue. I agree with the thoughtful comments of a

scholar who has written on the conflicting interests in this context.

Undeniably, the brief seizure of the automobile and its occupants is an intrusion upon the Fourth Amendment rights of its occupants, but the brevity of the immobilization—which often will not require more than an hour—reduces the seriousness of this intrusion. The alternative—an immediate search of the car—irreparably destroys the occupants’ privacy interests in the automobile and the containers inside. There can be no serious debate as to which is the greater and which is the lesser intrusion, Chambers notwithstanding. The rights protected by the Fourth Amendment are more faithfully observed when only the lesser intrusion—the brief seizure—is permitted unless and until a judicial officer authorizes the greater intrusion: a search pursuant to a search warrant issued after a judicial officer concurs that there is probable cause to search.

Carol A. Chase, Privacy Takes a Back Seat: Putting the Automobile

Exception Back on Track After Several Wrong Turns, 41 B.C. L. Rev. 71,

89 (1999) [hereinafter Chase] (footnote omitted).

Article I, section 8 protections in the automobile stop and search

contexts should apply more forcefully to searches because individuals

who prefer seizures to searches can only be protected by a warrant, while

individuals who prefer warrantless searches to seizures can be protected 59

by consenting to the search. 15 See Chambers, 399 U.S. at 63, & n.8, 90

S. Ct. at 1987, & n.8 (Harlan, J., concurring in part and dissenting in

part); see also Slobogin, 39 UCLA L. Rev. at 21 n.64. While a

warrantless seizure invades a person’s mobility interest temporarily until

mobility is restored, a warrantless search invades someone’s privacy

permanently. Chase, 41 B.C. L. Rev. at 88–89 (predicting that as

technological advances permit warrants to be remotely obtained and

reduce the time required to procure a warrant, a brief seizure for the

sake of getting a warrant arguably becomes an even lesser intrusion into

an individual’s Fourth Amendment rights than an immediate warrantless

search).

Upon developing probable cause to search a vehicle, an officer

wishing to search the vehicle should inform a suspect that they have a

constitutional right to be free from unreasonable searches, explain that

probable cause gives the officer the right to detain the suspect for a

reasonable period of time necessary to secure a warrant, and advise the

suspect that if they would prefer to avoid the delay attending the

application for a search warrant, they may waive the right to demand a

warrant and consent to the search. Upon receipt of this advisory, the

suspect is given an opportunity to make an informed and voluntary

choice to require a warrant be obtained or consent to a warrantless

search in order to limit the duration of the seizure.

If technology permitting a remote application for a warrant to

search an automobile is reasonably accessible to the officer executing the

stop, it should be used. In my view, the potential unreasonableness of a

seizure’s duration does not, by itself or in combination with a vehicle’s

15Inote that when Storm asked if a warrant was required for the search of his truck, Deputy Leonard told him a warrant was not required. 60

mobility, justify a categorical exception to the warrant requirement for

automobile searches under article I, section 8. Considerations affecting

the time it takes to apply for a warrant—such as the time of day, the

complexity of the facts supporting a finding of probable cause, and the

degree of detail constitutionally required—may be addressed within a

case-specific exigency analysis. See State v. Andersen, 390 P.3d 992,

999 (Or. 2017) (reviewing considerations affecting the time it takes to get

a warrant that are relevant to a case-specific exigency determination).

In my view, the mobility of an automobile no longer provides a

sound rationale for a per se exigency rule. Under the standard I would

adopt, the State must show facts demonstrating an objectively

reasonable basis for its claim of exigency supporting a warrantless

search. See Tibbles, 236 P.3d at 890 (“Exigent circumstances will be

found only where obtaining a warrant is not practical because the delay

inherent in securing a warrant would compromise officer safety, facilitate

escape, or permit the destruction of evidence.”). 16

F. Exigent Circumstances. With the foregoing principles in

mind, I now turn to the issue of whether an exigency beyond the mobility

of Storm’s vehicle justified the warrantless search in this case. Because Storm does not argue that we should apply a different standard for

analyzing exigency under article I, section 8 than the Supreme Court

applies under the Fourth Amendment, I would apply the federal standard

but reserve the right to apply it more stringently than under federal law.

See, e.g., State v. Kern, 831 N.W.2d 149, 174 (Iowa 2013).

16We have found, for example, an exigency supporting a warrantless search

exists where there is a “danger of violence and injury to the officers or others; risk of the subject’s escape; or the probability that, unless taken on the spot, evidence will be concealed or destroyed.” Jackson, 210 N.W.2d at 540. 61

Here, the State made several arguments in support of its

contention that exigent circumstances permitted the warrantless search

of Storm’s vehicle under the facts of this case. The State argues that

even after Storm was handcuffed and detained, his friends or

accomplices could have arrived, commandeered the vehicle, and driven it

away. Cf. State v. Winfrey, 24 A.3d 1218, 1226 & n.8 (Conn. 2011)

(discussing the concern that defendant or someone else could interfere

by removing the vehicle from the scene). In adopting the State’s position,

the majority notes that Storm used his cell phone at the scene of the stop

to call a friend. Two people subsequently arrived at the scene of the stop

and, with Deputy Leonard’s approval, took responsibility for Storm’s

automobile. There is no evidence that either Storm or the two persons

who came to retrieve the automobile were uncooperative or unresponsive

to the deputy’s commands during the stop.

The majority concludes, however, that the prevalence of cell

phones makes it easier, as a general matter, for detained suspects to

summon others and arrange for evidence to be destroyed during delays

occasioned by warrant applications. This determination should be made

on a case-specific basis. In this case, the officer perceived a low enough

degree of danger to feel comfortable permitting Storm to summon his

friends. Although the number of people present at the scene of the stop

and the ability of law enforcement officers present there to manage the

scene under the circumstances are among the circumstances considered

in the exigency analysis I would adopt, see Jackson, 210 N.W.2d at 540, I

find no substantial evidence in this record tending to prove that the

arrival of Storm’s friends interfered in any way with the deputy’s control

of the environment or his ability to prepare a warrant application if he

had chosen to do so. 62

My colleagues in the majority also conclude a warrant requirement

for the search of Storm’s automobile raises grave safety concerns for

arresting officers. If Deputy Leonard’s attention had been divided

between managing the scene of the stop and preparing a warrant

application, the majority suggests, it would have been much easier for

Storm’s friends or associates to catch the deputy off guard. See Winfrey,

24 A.3d at 1226 & n.8. Although public and officer safety concerns are a

factor in the exigency analysis I propose, see Jackson, 210 N.W.2d at

540, I find no evidence in this record tending to prove such concerns

were justified during the stop that is the subject of this case. The stop

occurred in the middle of the afternoon in broad daylight. No inclement

weather, visibility problems, or traffic-related issues presenting safety

concerns for Deputy Leonard, Storm, or other motorists are evident in

this record. Deputy Leonard had no difficulties managing the scene of

the stop where all persons present were obedient to the officer’s

direction.

Although my colleagues in the majority must acknowledge that

mere inconvenience surrounding the warrant application process is not

enough to establish an exception to the warrant requirement under

article I, section 8, they nonetheless assert it would have been

impracticable for the deputy in this case to apply for a warrant. An

extension of the duration of the roadside stop for the amount of time

necessary to apply for a search warrant would, they contend, have

created an impracticable burden for Deputy Leonard in this case and

would create a similar burden for Iowa law enforcement officers who are

already stretched too thin in counties with only one or two deputies on

duty at a time. My colleagues further contend Deputy Leonard lacked

the training, equipment, and administrative support necessary to use 63

modern communications technology to expedite the warrant application

process. Given these equipment and training circumstances, my

colleagues contend, Deputy Leonard could not reasonably have been

expected to apply for a warrant.

I am not persuaded. Under the facts of this case, I find the time it

would likely have taken to apply for a warrant did not render an

electronic warrant application impracticable. Deputy Leonard believed

any application for a warrant must first be approved by the county

attorney under a local policy; however, there is no evidence in this case

that such approval would not have been readily available. Although the

State’s evidence suggested it would have taken Deputy Leonard at least

an hour or two to prepare a warrant application in this case, I would

credit the more credible testimony of Storm’s expert witness on this

subject. 17 Storm’s expert, Bryan Barker, is a former law enforcement

patrolman who became a prosecutor and trained officers on obtaining

search warrants. Barker persuasively testified that it would have taken

the deputy as little as fifteen minutes to prepare an uncomplicated

warrant application under the circumstances of this case and a warrant

could have been obtained within an hour. Barker’s opinion that an application for a search warrant for routine automobile searches could

have been promptly prepared is bolstered by reports from other

jurisdictions: (1) in 1981 an Iowa federal court determined a telephonic

warrant could be obtained in the federal system in as little as twenty

minutes, see United States v. Baker, 520 F. Supp. 1080, 1084 (S.D. Iowa

1981); (2) in 1973 (before the advent of cell phones) the San Diego

17In this respect, this case is different than Andersen, 390 P.3d at 999, where the officer’s contention that it would take hours to obtain a search warrant went unrebutted. 64

District Attorney’s Office estimated ninety-five percent of telephonic

warrants were obtained in fewer than forty-five minutes, see People v.

Blackwell, 195 Cal. Rptr. 298, 302 n.2 (Ct. App. 1983) (citing Paul D.

Beechen, Oral Search Warrants: A New Standard of Warrant Availability,

21 UCLA L. Rev. 691, 700 (1973)); (3) in 2009, an Oregon officer testified

that he could obtain a telephonic search warrant in just one hour, see

State v. Machuca, 218 P.3d 145, 153 (Or. Ct. App. 2009), rev’d on other

grounds, 227 P.3d 729 (Or. 2010) (en banc); and (4) in 2015, the New

Jersey Supreme Court cited a study of forty-two telephonic automobile

search warrant applications that on average took less than one hour, see

State v. Witt, 126 A.3d 850, 865–66 (N.J. 2015).

I acknowledge that although law enforcement officers may be

equipped to submit electronic warrant applications, “improvements in

communications technology do not guarantee that a magistrate judge

will be available when an officer needs a warrant.” Missouri v. McNeely,

569 U.S. 141, ___, 133 S. Ct. 1552, 1562 (2013). Nonetheless, the

Supreme Court has observed that “technological developments that

enable police officers to secure warrants more quickly, and do so without

undermining the neutral magistrate judge’s essential role as a check on

police discretion, are relevant to an assessment of exigency” in OWI

cases. Id. at ___, 133 S. Ct. at 1562–63; see also State v. Pettijohn, 899

N.W.2d 1, 22 (Iowa 2017).

The majority contends Deputy Leonard was not equipped to submit

an electronic application for a warrant from the scene of the stop in this

case. I am not persuaded. Deputy Leonard possessed a smart phone18

18The majority notes that the phone supplied to Deputy Leonard by his employer was an older “flip phone,” not a smart phone. The standard I propose for exigency determinations would not allow the State to justify the categorical automobile exception’s continuing existence by claims that law enforcement officers are not 65

and his patrol car was equipped with a computer. Although I credit the

deputy’s testimony that internet access is not available from all locations

in the county, he admitted access was available to him from the scene of

the stop in this case.

I also reject the majority’s conclusion that Deputy Leonard was not

adequately trained to make a warrant application from the scene of the

stop in question. Although he had submitted fewer than ten warrant

applications during his eight years of service as a law enforcement

officer, the deputy testified that he had received training on the subject

at the law enforcement academy. If the deputy had not been trained on

the specific topic of electronic applications for warrants, this deficit was a

matter that was entirely within the control of the state. We should not

recognize such state-created training deficits as a matter of exigency

excusing a warrant under article I, section 8.

Accordingly, I would reverse the ruling on the motion to suppress,

vacate Storm’s conviction, and remand for further proceedings.

Wiggins and Appel, JJ., join this dissent.

___________________________ supplied with smart technology that is widely used by other Iowans. This court’s understanding of constitutional doctrine and fidelity to the warrant requirement should not be driven by the unwillingness of appropriators to provide commonly available technology to law enforcement officers. Notwithstanding, Deputy Leonard did possess a smart phone that was available for use in establishing an internet connection at the scene of the stop if he had chosen to do so. 66

APPEL, Justice (dissenting).

I join Justice Hecht’s dissent, but write separately to emphasize

several points. As I noted in Gaskins, a federal court in Iowa has stated

it takes as little as twenty minutes to obtain a telephonic search warrant.

State v. Gaskins, 866 N.W.2d 1, 19 (Iowa 2015) (Appel, J., concurring

specially); see United States v. Baker, 520 F. Supp. 1080, 1084 (S.D.

Iowa 1981). And that was almost forty years ago. Decades-old caselaw

in other jurisdictions indicate police are able to obtain warrants in as

little as twelve and fifteen minutes. See, e.g., State v. Flannigan, 978

P.2d 127, 131 (Ariz. Ct. App. 1998) (stating a warrant can be obtained in

fifteen minutes); People v. Aguirre, 103 Cal. Rptr. 153, 155 (Ct. App.

1972) (involving a warrant obtained to search a home in twelve minutes).

Why is it that law enforcement is able to obtain warrants in twenty

minutes, fifteen minutes, and twelve minutes in these cases decades ago,

but it now takes much longer to obtain a warrant in Dallas County?

I also find the majority’s discussion of “bright line” rules unhelpful.

I have critiqued resort to the claimed need for bright-line rules as a mere

slogan for results-oriented jurisprudence, and it need not be repeated

here. See Gaskins, 866 N.W.2d at 19.

In any event, the requirement that law enforcement obtain a

warrant before engaging in a search is a very bright-line rule. In fact, the

constitutionally enshrined warrant requirement shines too bright for the

majority, which modifies it by continuing a broad and outdated exception

to the warrant requirement. No one should think this case involves a

preference for bright-line rules—it involves a choice between competing

bright-line approaches. 67

Further, the preference for bright-line rules seems to apply only

when it favors the state. For example, the exigent-circumstance and

community-caretaking exceptions to the warrant requirement are fact-

based exceptions not based on bright-line rules. One wonders whether

the majority will abandon them in favor of a “bright line.” In particular,

it will be interesting to see if the repeatedly stated preference for bright-

line rules means the notoriously spongy and inconsistently applied

multifactor test of consent in Schneckloth v. Bustamonte, 412 U.S. 218,

93 S. Ct. 2041 (1973), will fall to the wayside under article I, section 8 of

the Iowa Constitution in favor of a bright-line rule that law enforcement

must specifically inform a citizen of his right to decline to a search and

obtain truly knowing and voluntary consent. See State v. Lowe, 812

N.W.2d 554, 590–94 (2012) (Appel, J., concurring in part and dissenting

in part) (noting question of whether Schneckloth should be abandoned

was not raised and questioning wisdom of continued reliance on

Schneckloth); State v. Pals, 805 N.W.2d 767, 782 (Iowa 2011) (reserving

the question of whether Schneckloth should be abandoned under article

I, section 8). Or is the preference for bright lines an unbalanced and

preferential doctrine generally available to the state, but not to a person

asserting constitutional protections?

In addition, our caselaw indicates that exceptions to the warrant

requirement be “jealously and carefully drawn.” State v. Ochoa, 792

N.W.2d 260, 284 (Iowa 2010) (quoting Jones v. United States, 357 U.S.

493, 499, 78 S. Ct. 1253, 1257 (1958)); State v. Strong, 493 N.W.2d 834,

836 (Iowa 1992); State v. Sanders, 312 N.W.2d 534, 538 (Iowa 1981),

overruled by Gaskins, 866 N.W.2d at 16. Interested readers may make

their own judgment, but nothing in the majority opinion persuades me

that it seeks to ensure that exceptions to the warrant requirement are 68

jealously and carefully drawn. Indeed, the majority opinion turns the

jealously-and-carefully-drawn formula established in existing Iowa

caselaw on its head and embraces an opposite approach, namely that

exceptions to the warrant requirement are to be broadly and generously

construed.

In any event, the controlling opinion of the chief justice undercuts

a bright-line rule to some extent. According to Chief Justice Cady, the

defendant failed to meet its burden to introduce sufficient facts to defeat

the automobile exception. Although not so stated, the opinion in effect

employs a presumption of exigent circumstances in favor of law

enforcement when law enforcement seeks to search an automobile and

shifts the burden to the defendant to prove otherwise. Under the opinion

of the chief justice, once law enforcement raises the automobile exception

the burden shifts to the defendant to establish what was found by the

Iowa federal district court in Baker in 1981, namely, that law

enforcement authorities are capable of obtaining a search warrant in

short order. See 520 F. Supp. at 1084.

I do not agree that the burden of proof on what the state is capable

of doing should rest with the defendant. Aside from constitutional

considerations, the burden of proof ordinarily rests on the party in the

best position to produce the evidence. But in any case, the chief justice’s

approach allows a defendant to make a fact-based showing that the

presumption of exigency under the automobile exception cannot be

invoked to support a search.

If narrowly construed, this fact-based approach could run the risk

of results that vary from county to county and could provide a distinct

disincentive for law enforcement to adopt current feasible technology. I

am sure, however, the chief justice does not intend to embrace a rule 69

with such perverse incentives. Indeed, I read the chief justice’s opinion

as promoting adoption of feasible technology with all deliberate speed. In

order to avoid perverse incentives under the framework established by

the chief justice, a defendant must be able to meet his or her newly

established burden to overcome the presumption of exigency in the case

of an automobile search by showing the availability of feasible technology

to obtain a warrant with dispatch. The opinion of the chief justice does

not indicate what kind of evidence the defendant must produce, but

apparently the defendant must make a better and more detailed record

than was developed in this case.

Wiggins, J., joins this dissent.