In the Iowa Supreme Court
No. 23–1075
Submitted October 10, 2024—Filed December 6, 2024
State of Iowa,
Appellee,
vs.
Ashlee Marie Mumford,
Appellant.
Appeal from the Iowa District Court for Madison County, Kevin Parker
(motion to suppress) and Erica Crisp (bench trial), judges.
The defendant contends the district court erred in denying her motion to
suppress evidence and challenges the sufficiency of the evidence supporting her
conviction for possession of marijuana. Affirmed.
McDonald, J., delivered the opinion of the court, in which Christensen,
C.J., and Waterman, Mansfield, and May, JJ., joined. Oxley, J., filed a dissenting
opinion, in which McDermott, J., joined. McDermott, J., filed a dissenting
opinion.
Colin C. Murphy of Gourley, Rehkemper & Lindholm, P.L.C., West Des
Moines, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney
General, for appellee. 2
McDonald, Justice.
A police officer initiated a traffic stop of motorist Ashlee Mumford after the
police officer was unable to read two of the numbers on the vehicle’s
dirt-and-grime-covered license plate. During the traffic stop, a second officer
used a drug detection dog to conduct a sniff around the exterior of the stopped
vehicle. In the course of the sniff around the exterior of the vehicle, the dog’s
paws touched the passenger door, and the dog’s nose momentarily, almost
imperceptibly, broke the plane of the passenger window. The dog then alerted to
the presence of controlled substances. The officers searched the vehicle and
found two bags of methamphetamine in the glove compartment, and they
searched Mumford’s purse and found marijuana and a methamphetamine pipe.
Mumford was placed under arrest and charged with possession of
methamphetamine, marijuana, and drug paraphernalia. Following a bench trial,
Mumford was acquitted of possession of methamphetamine but convicted of
possession of marijuana and drug paraphernalia. On appeal, Mumford contends
the district court erred in denying her motion to suppress evidence allegedly
obtained in violation of her constitutional right to be free from unreasonable
searches and seizures. She challenges the sufficiency of the evidence supporting
her conviction for possession of marijuana. And she claims the district court
erred in denying her motion in arrest of judgment. We affirm her convictions.
I.
In the district court, Mumford moved to suppress the evidence of
contraband obtained from the traffic stop and subsequent search of the vehicle
and her purse. She claimed that the traffic stop and the officers’ use of the drug
detection dog during the traffic stop violated her federal and state constitutional
rights to be free from unreasonable seizures and searches. The district court 3
denied the motion to suppress evidence. It concluded that the traffic stop was
supported by probable cause and that use of the drug detection dog did not
violate the Federal or State Constitution. Mumford contends the district court
erred in denying her motion to suppress evidence. Our review is de novo. See
State v. Bauler, 8 N.W.3d 892, 897 (Iowa 2024).
A.
The Fourth Amendment to the Federal Constitution provides that “[t]he
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.” The Supreme
Court holds that the Fourth Amendment applies to the states and state actors
via the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio,
367 U.S. 643, 655 (1961); State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997). The
text of article I, section 8 of the Iowa Constitution is materially indistinguishable
from the text of the Fourth Amendment. “This fact however does not compel us
to follow the construction placed on the language by the United States Supreme
Court.” State ex rel. Kuble v. Bisignano, 28 N.W.2d 504, 508 (Iowa 1947). Instead,
“it is our duty to independently interpret [article I,] section 8 based on its words
and history[, and] [d]epending on the issue, this inquiry may lead us to conclude
that section 8 provides protections that are the same as, greater than, or less
than the protections provided by the Fourth Amendment.” State v. Burns,
988 N.W.2d 352, 365 (Iowa 2023).
B.
We first address the constitutionality of the traffic stop. The record reflects
that Winterset Police Officer Logan Camp initially observed the vehicle parked at
the residence of a man known to be involved in drug activity. Camp attempted
to run the license plate at that time, but he could not read the last two digits of 4
the license plate because dirt and grime obscured them. Later that evening,
Camp observed the same vehicle on a highway and pulled behind it. Camp still
was unable to read the last two numbers on the license plate. Camp believed this
was a violation of the law and initiated a traffic stop.
The “ ‘detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose, constitutes a
“seizure” of “persons” within the meaning of’ article I, section 8 and the Fourth
Amendment.” Bauler, 8 N.W.3d at 897 (plurality opinion) (quoting State v.
Warren, 955 N.W.2d 848, 859 (Iowa 2021)). A traffic stop is constitutional “when
supported by probable cause or reasonable suspicion of a crime.” State v. McIver,
858 N.W.2d 699, 702 (Iowa 2015). “Probable cause exists if the totality of the
circumstances as viewed by a reasonable and prudent person would lead that
person to believe that a crime has been or is being committed” and the detained
person “committed or is committing it.” Bauler, 8 N.W.3d at 897 (plurality
opinion) (quoting State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004)). A peace
officer’s observation of a traffic violation, however minor, provides probable cause
to stop a motorist. Id.
We conclude there was probable cause to stop the vehicle Mumford was
driving. The Code provides that “[e]very registration plate shall at all times be
securely fastened in a horizontal position to the vehicle for which it is
issued . . . in a place and position to be clearly visible and shall be maintained
free from foreign materials and in a condition to be clearly legible.” Iowa Code
§ 321.38 (2022). Dirt and grime are “foreign materials” within the meaning of the
statute, and if the dirt and grime render the information printed on the license
plate not “clearly legible,” the motorist has violated the statute. See State v.
Harrison, 846 N.W.2d 362, 368 (Iowa 2014) (“Iowa Code sections 321.38 and 5
321.388 demonstrate that the legislature intended that all information to be
displayed on a license plate must remain readable.”); State v. McFadden,
No. 16–1184, 2017 WL 4315047, at *2 (Iowa Ct. App. Sept. 27, 2017) (“A dirty
plate constitutes a traffic violation. The violation [of section 321.38] afforded the
officers probable cause to stop the vehicle.” (citation omitted)); State v.
Klinghammer, No. 09–0577, 2010 WL 200058, at *3 (Iowa Ct. App. Jan. 22, 2010)
(holding that snow accumulation provided probable cause to stop a vehicle for a
section 321.38 violation because the license plate was not “clearly legible”);
State v. Miller, No. 02–0965, 2003 WL 22015974, at *1 (Iowa Ct. App. Aug. 27,
2003) (“[W]e conclude the obscured license plate alone furnished probable cause
for the vehicle stop.”).
Mumford does not contest the legal conclusion, but she does contest the
facts. She contends that the videos of the traffic stop and still photos taken from
the videos show that the entirety of the rear license plate was clearly visible and
clearly legible. We disagree. The videos and still shots are not clear, at all.
Further, the videos and still shots taken from several feet away from the vehicle
are not particularly relevant. The videos and photos show the vehicle “at close
range at a dead stop.” State v. Griffin, 997 N.W.2d 416, 420 (Iowa 2023). The
videos and photos do not “show what the [vehicle] looked like at highway speeds”
at night. Id. at 420–21. The videos do not show what Officer Camp “saw or could
have seen when [he] made [his] decision to stop” Mumford. Id. at 421. Camp
testified that he could not read the last two digits of the license plate from a
couple of car lengths behind the vehicle. Like the district court, we credit his
testimony and find he observed a violation of Iowa Code section 321.38 prior to
initiating the traffic stop. 6
Even if Camp had probable cause to stop the vehicle, Mumford asserts
that Camp’s detention of her was nonetheless unlawful because Camp
admittedly could read the last two digits of the license plate when he walked up
to her vehicle and shined his flashlight on the license plate. According to
Mumford, once Camp was able to read the last two digits on the license plate,
Camp was obligated to walk away and let Mumford go without any further
interaction. We recently rejected the same argument in State v. Griffin. See id. In
that case, a peace officer initiated a traffic stop after observing a vehicle with a
license plate cover that did not permit full view of the letters and numerals
printed on the plate, in violation of Iowa Code section 321.37. Id. at 419. After
initiating the stop, the officers were able to observe the letters and numerals
printed on the plate. Id. at 421. The defendant contended the officers were then
obligated to drive away without any further interaction. Id. We rejected the
argument. Id. “The violation occurred” when the peace officers observed the
violation from the road and “was complete well before Griffin’s vehicle stopped.”
Id. At that point, the peace officers could have ticketed the motorist or issued a
warning. Id. In either case, the peace officers “were fully justified in approaching
the driver’s-side door and talking with” the motorist. Id. The same holds true
here. See also State v. Peden, No. 08–1039, 2009 WL 606236, at *1 (Iowa Ct.
App. Mar. 11, 2009) (“A license plate that is legible only from certain angles does
not comply with [section 321.38] requirements.”).
Mumford suggests that the traffic stop nonetheless should be deemed
unconstitutional because the traffic stop was merely a pretext for drug
interdiction. She argues Officer Camp observed the vehicle parked at a known
drug house and was merely looking for a reason to pull the vehicle over and
search for drugs. Even if this were Camp’s true motivation, the true “motivation 7
of the officer stopping the vehicle is not controlling in determining whether”
probable cause existed. State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019)
(quoting State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002)). Instead, “[t]he
existence of probable cause for a traffic stop is evaluated ‘from the standpoint of
an objectively reasonable police officer.’ ” Id. at 855 (quoting State v. Tyler,
830 N.W.2d 288, 293–94 (Iowa 2013)). An officer’s “[s]ubjective intentions play
no role in ordinary, probable-cause Fourth Amendment analysis” or article I,
section 8 analysis. Id. at 845 (alteration in original) (quoting Whren v. United
States, 517 U.S. 806, 813 (1996)).
C.
The more contentious issue in this case is whether use of the drug dog to
conduct an exterior sniff of a lawfully stopped vehicle was an unlawful search in
violation of the Fourth Amendment or article I, section 8 of the Iowa Constitution.
The record shows that around the same time Camp initiated the traffic stop, he
contacted Winterset Police Officer Christian Dekker to assist. Dekker was the
K-9 handler for the Winterset Police Department. Dekker arrived at the scene
only shortly after Camp initiated the traffic stop. Camp and Dekker intended to
conduct a dog sniff around the exterior of the vehicle, and they asked Mumford
and her passenger to exit the vehicle for their own safety. Mumford and her
passenger complied, although not without some objection. Mumford exited the
vehicle with her purse in her possession. Mumford’s passenger left the passenger
window down when he exited the vehicle. Dekker walked the drug dog around
the exterior of the vehicle. The entire examination lasted approximately fifteen to
twenty seconds. Dekker started on the driver’s side of the vehicle, proceeded to
the rear of the vehicle, and then proceeded to the front passenger door. The dog
stood on its hind legs and placed its front paws on the passenger door. The dog’s 8
snout briefly, almost imperceptibly, crossed the plane of the passenger window
and entered the cabin of the vehicle. Dekker admitted this at the hearing on the
motion to suppress. He testified, “I believe his nose went inside the vehicle, yes,
through an open window that the passenger had left open.” Dekker maintained
the dog’s behavior was instinctual and that Dekker did nothing to encourage it.
After the dog’s nose entered the vehicle, the dog alerted to the presence of
controlled substances. A subsequent search of the vehicle revealed two bags of
methamphetamine in the glove compartment, and a search of Mumford’s purse,
which she had taken with her from the vehicle, revealed marijuana and a
methamphetamine pipe. Mumford claims that the drug dog’s brief touch of the
passenger door and brief cross of the plane of the passenger window constituted
a trespass and rendered the search unconstitutional.
State v. Bauler, 8 N.W.3d 892, largely controls our resolution of Mumford’s
claims. In that case, the majority of this court held that a drug dog’s quick,
incidental touch of the exterior of a vehicle in a public place during a lawful
traffic stop did not violate the Fourth Amendment or article I, section 8. See id.
at 902 (plurality opinion) (“We find the dog sniff of Bauler’s vehicle did not violate
the Fourth Amendment, notwithstanding the brief touching of the exterior of the
vehicle.”), id. at 907 (stating that “the dog sniff of Bauler’s vehicle did not violate
article I, section 8”); id. at 913 (McDonald, J., concurring specially) (stating that
“momentary touching of Bauler’s vehicle in a public place during a lawful traffic
stop was not unlawful, tortious, or otherwise prohibited under Iowa law” and
that there was thus “no obligation to obtain a search warrant prior to conducting
the search” under the Iowa Constitution and rejecting Fourth Amendment
claim). The same rationales apply here with respect to the drug dog’s placement
of its paws on the passenger door. 9
The question not presented or answered in Bauler was whether it would
make a difference if the drug dog’s nose crossed the plane of an open window
and entered the cabin of the vehicle. See id. at 907 n.8 (plurality opinion) (“We
do not decide whether a dog sniff wherein a dog has been previously trained to
put its head inside the car and in fact does so has violate[d] the Fourth
Amendment or article I, section 8.”).
Other courts have addressed the issue of whether a K-9 unit’s entry into
the cabin of a vehicle constituted an unconstitutional search. Those courts have
come to different conclusions under a variety of rationales. See, e.g., United
States v. Wilson, No. 22–20100, 2024 WL 3634199, at *2 & n.1 (5th Cir. Aug. 2,
2024) (per curiam) (holding that there was no search where dog instinctively
entered cabin without direction and collecting cases); United States v.
Pulido-Ayala, 892 F.3d 315, 318–19 (8th Cir. 2018) (concluding that officers had
probable cause to search the vehicle prior to K-9’s entry into vehicle cabin);
United States v. Pierce, 622 F.3d 209, 214–15 (3rd Cir. 2010) (finding no Fourth
Amendment violation); United States v. Handley, No. 23–CR–57–CJW–MAR,
2024 WL 1536750, at *6–7 (N.D. Iowa Apr. 9, 2024) (discussing caselaw); United
States v. Corbett, 718 F. Supp. 3d 537, 561 (S.D.W. Va. 2024) (same); United
States v. Buescher, 691 F. Supp. 3d 924, 936–37 (N.D. Iowa 2023) (same).
After reviewing these cases and other relevant authorities, we conclude
that a drug dog’s momentary breach into the cabin of a vehicle through an open
window of a legally stopped vehicle does not require the suppression of evidence
under either the Fourth Amendment or article I, section 8. With respect to the
Fourth Amendment, Illinois v. Caballes, 543 U.S. 405 (2005), remains the
controlling case. See Bauler, 8 N.W.3d at 902 (plurality opinion) (explaining that
Caballes is controlling on the Fourth Amendment question). In Caballes, the 10
Supreme Court held that “[a] dog sniff conducted during a concededly lawful
traffic stop that reveals no information other than the location of a substance
that no individual has any right to possess does not violate the Fourth
Amendment.” 543 U.S. at 410. We are bound to follow Caballes.
We are also bound to follow the Supreme Court’s jurisprudence regarding
the federal exclusionary rule. “To trigger the exclusionary rule, police conduct
must be . . . sufficiently culpable that such deterrence is worth the price paid by
the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). The
exclusionary rule was intended to deter “deliberate, reckless, or grossly negligent
conduct.” Id. This case does not involve deliberate, reckless, or grossly negligent
conduct. Here, the officers used a drug dog to conduct an exterior sniff of the
vehicle, a practice which the Supreme Court explicitly approved in Caballes. See
543 U.S. at 410. The drug dog’s fleeting touch of the passenger door and
de minimis intrusion into the vehicle cabin through a window left open by a
passenger does not justify the exclusion of evidence under the Supreme Court’s
Fourth Amendment jurisprudence. See, e.g., United States v. Lyons, 486 F.3d
367, 373–74 (8th Cir. 2007) (affirming denial of motion to suppress where K-9
unit breached cabin of vehicle through open window and there was no evidence
that peace officers opened the window or directed the window to be opened);
Handley, 2024 WL 1536750, at *9 (denying motion to suppress where K-9’s head
entered window and concluding that suppression was not required because “this
conduct is not culpable enough to trigger the harsh sanction of exclusion”).
On the state constitutional claim, the de minimis crossing of the drug dog’s
nose into the open window of the vehicle is of no constitutional import under
either of the rationales that sustained the outcome in Bauler. See 8 N.W.3d at
906 (plurality opinion); id. at 911 (McDonald, J., concurring specially). The law 11
affords less protection for intrusion into or upon vehicles on the road than
intrusions into the home. See Kyllo v. United States, 533 U.S. 27, 31 (2001) (“ ‘At
the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into
his own home and there be free from unreasonable governmental intrusion.’ ”
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961))); California v.
Carney, 471 U.S. 386, 393 (1985) (noting a “reduced expectation of privacy” in
vehicles); State v. Reinier, 628 N.W.2d 460, 464 (Iowa 2001) (en banc) (“It is
axiomatic that the chief evil sought to be addressed by the Fourth Amendment
was the physical entry of the home.”). The drug dog’s almost imperceptible entry
into the open window of the vehicle cabin took place in the open air and did not
go beyond the normal scope of a dog sniff. See Bauler, 8 N.W.3d at 906 (plurality
opinion). Nor did it create any further intrusion into the motorist’s expectation
of privacy in the vehicle or any cognizable legal injury that required the legal
justification of a search warrant. See id. at 911 (McDonald, J., concurring
specially). The Iowa Constitution does not require the exclusion of evidence
obtained as a result of a fleeting entry of a drug dog’s nose into the open cabin
of a lawfully stopped vehicle.
D.
In sum, Camp had probable cause to initiate a traffic stop of the vehicle
based on his observation of a completed violation of Iowa Code section 321.38.
Upon making that traffic stop, Camp had continued authority to interact with
Mumford; check for her license, registration, and proof of insurance; and process
a citation or issue a warning. While Mumford was lawfully detained, Dekker used
a drug dog to conduct a free air sniff around the exterior of the vehicle without
a search warrant, which the Supreme Court and this court have deemed
permissible. Neither the Fourth Amendment nor article I, section 8 requires the 12
suppression of evidence obtained as a result of a vehicle search predicated on
probable cause (established by the drug dog’s alert to the presence of controlled
substances), even where the drug dog fleetingly touched the vehicle and made a
de minimis intrusion into the cabin of the vehicle through an open window. The
district court did not err in denying Mumford’s motion to suppress evidence.
II.
This case was tried to the district court rather than a jury. As noted above,
the district court acquitted Mumford of possession of methamphetamine but
convicted her of possession of marijuana and drug paraphernalia. Mumford
challenges the sufficiency of the evidence supporting her conviction for
possession of marijuana. Mumford does not contest that she was in possession
of a green, leafy substance the officers identified as marijuana. Instead, she
challenges whether there was sufficient evidence to show the green, leafy
substance was in fact marijuana. She insists the State must introduce evidence
from a laboratory showing that the substance was in fact marijuana. She believes
such evidence is required now because of recent changes to the law allowing the
possession of hemp.
The primary case on which Mumford relies is State v. Brubaker,
805 N.W.2d 164 (Iowa 2011), abrogated on other grounds by State v. Crawford,
972 N.W.2d 189, 197–98 (Iowa 2022). In Brubaker, this court reversed a
judgment for unlawful possession of a prescription drug, Clonazepam, for want
of sufficient evidence of the identity of the drug. Id. at 174. In that case, the state
did not test the pills found in the defendant’s possession but instead relied on
an expert to compare the pills found in the defendant’s possession to pictures of
Clonazepam. Id. at 172–73. We noted several deficiencies in the state’s case. The
expert did not testify that the pills were in fact Clonazepam but only that the 13
pills were consistent in appearance with Clonazepam. See id. at 173–74.
However, the pills bore no distinctive marks and were “similar in size, shape,
and consistency to aspirin and other over-the-counter drugs readily available
without a prescription.” Id. at 173. The pills were found in a generic bottle with
“no label or other indication of the identity of its contents.” Id. We concluded that
“[t]he fact that the pills appear to be Clonazepam and that the officers found
them under the back seat is insufficient to establish they were, in fact,
Clonazepam.” Id.
Brubaker provides little support for Mumford’s challenge to the sufficiency
of the evidence here. Contra to Mumford’s contention, Brubaker does not stand
for the proposition that lab testing is always required to establish the identity of
a controlled substance. It merely stands for the proposition that the state must
present sufficient evidence to establish the identity of a controlled substance,
whether direct or circumstantial. See id. As we explained in Brubaker, “[w]e have
always recognized that, for a person to be convicted of a drug offense, the State
is not required to test the purported drug.” Id. at 172 (citing In re C.T.,
521 N.W.2d 754, 757 (Iowa 1994)). “The identity of a substance as an illegal drug
may be proved by circumstantial evidence.” In re C.T., 521 N.W.2d at 757. “The
reason for this rule is that circumstantial evidence is not inferior to direct
evidence.” Brubaker, 805 N.W.2d at 172. In Brubaker, we then identified a variety
of circumstances that would support a finding that a substance was an illegal
drug in the absence of testing, including “the physical appearance of the
substance involved in the transaction,” “evidence that the substance was called
by the name of the illegal narcotic by the defendant or others in [her] presence,”
and “whether the known odor of the substance identified it as an illegal drug.”
Id. at 173 (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)). 14
However, those examples “[were] not exclusive, and the state is not required to
prove all of these circumstances . . . to sustain a conviction.” Id.
Unlike in Brubaker, the State did present sufficient circumstantial
evidence to prove beyond a reasonable doubt that the substance in Mumford’s
possession was marijuana. Camp testified that he was a certified drug
recognition officer. Mumford stipulated to Camp’s credentials and qualifications.
Camp testified that the substance found in Mumford’s purse was marijuana. See
State v. Silva, No. 11–1336, 2012 WL 3195994, at *4 (Iowa Ct. App. Aug. 8, 2012)
(holding that evidence was sufficient to support conviction where officer testified
he “recognized the green leafy substance in the baggie as raw marijuana”); see
also United States v. Durham, 464 F.3d 976, 984–85 (9th Cir. 2006) (holding that
the “government need not introduce scientific evidence to prove the identity of a
substance so long as there is sufficient lay testimony or circumstantial evidence
from which a jury could find that a substance was identified beyond a reasonable
[doubt]” and collecting cases (alteration in original)); In re Ondrel M., 918 A.2d
543, 546 n.6 (Md. Ct. Spec. App. 2007) (stating that “there is authority, from
both federal and state courts, that the testimony of a witness, who is familiar
with marijuana through past experience, that the substance in question was
marijuana, is admissible into evidence to support a finding that the accused was
in possession of marijuana,” and citing cases). Camp’s testimony was confirmed
in two respects by contemporaneous bodycam footage. First, the footage showed,
at the time of the search, Camp quickly identified the green, leafy substance
found in Mumford’s purse as “weed,” a common slang term for marijuana.
Second, the substance itself was clearly visible and had the distinctive look of
marijuana. See Commonwealth v. Wilkins, No. 621 MDA 2013, 2014 WL 15
11015648, at *4 (Pa. Super. Ct. Jan. 9, 2014) (“[T]he incriminating nature of the
marijuana was immediately apparent.”).
Mumford raises one final contention. She argues that there is insufficient
evidence to support her conviction because the State failed to disprove the green,
leafy substance found in her purse was legal hemp. We disagree. Mumford never
raised this issue at trial, and, in any case, “the State is not required to negate
any and all rational hypotheses of the defendant’s innocence.” State v. Jones,
967 N.W.2d 336, 342 (Iowa 2021). A federal circuit court recently rejected a
similar argument:
Contrary to Rivera’s argument, the government did not need to prove this fact. By excluding hemp from the definition of marijuana, the Farm Bill carved out an exception to marijuana offenses: Someone with cannabis possesses marijuana except if the cannabis has a THC concentration of 0.3% or less. The government need not disprove an exception to a criminal offense unless a defendant produces evidence to put the exception at issue. Because Rivera did not put the hemp exception at issue, the government bore no burden to prove that it was inapplicable. We will therefore affirm the District Court’s judgment of conviction.
United States v. Rivera, 74 F.4th 134, 136 (3d Cir. 2023) (footnote omitted). We
agree with the analysis in Rivera.
In a criminal case tried to the district court rather than a jury, the district
court’s “findings of fact have the effect of a special verdict, see Iowa R. App. P.
6.907, and are binding on us if supported by substantial evidence.” State v.
Fordyce, 940 N.W.2d 419, 425 (Iowa 2020). In determining whether there is
substantial evidence in support of the district court’s findings and verdict, “we
view the evidence in the light most favorable to the State.” Id. Here, when the
evidence is viewed in the light most favorable to the district court’s findings and
verdict, there is substantial evidence supporting Mumford’s conviction for
possession of marijuana. 16
III.
After the district court issued its findings and verdict, Mumford filed a motion in arrest of judgment. Her motion in arrest of judgment challenged the sufficiency of the evidence supporting her conviction for possession of marijuana on the same grounds discussed above. The district court denied the motion. Mumford contends the district court erred or abused its discretion in denying Mumford’s motion in arrest of judgment. We disagree. “A motion in arrest of judgment may not be used to challenge the sufficiency of evidence.” State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990); see also State v. Oldfather, 306 N.W.2d 760, 762 (Iowa 1981) (stating that a motion in arrest of judgment cannot be used to challenge the sufficiency of the evidence); State v. Moore, No. 18–0755, 2019 WL 1486604, at *3 n.7 (Iowa Ct. App. Apr. 3, 2019) (“Iowa Rule of Criminal Procedure 2.24(3) does not permit a challenge to the sufficiency of the evidence in a motion in arrest of judgment.”); State v. Wetter, No. 17–1418, 2018 WL 5839941, at *1 n.2 (Iowa Ct. App. Nov. 7, 2018) (“A motion in arrest of judgment may not be used to challenge the sufficiency of evidence.” (quoting Oldfather, 306 N.W.2d at 762)); State v. Howard, No. 16–1990, 2017 WL 4049524, at *3 n.3 (Iowa Ct. App. Sept. 13, 2017) (stating the same). Accordingly, the district court did not err in denying the motion in arrest of judgment. IV. The district court did not err in denying Mumford’s motion to suppress evidence. The evidence, when viewed in the light most favorable to the district court’s verdict, is sufficient to establish Mumford was in possession of marijuana. The district court did not err in denying Mumford’s motion in arrest of judgment challenging the sufficiency of the evidence. Affirmed. 17
Christensen, C.J., and Waterman, Mansfield, and May, JJ., join this
opinion. Oxley, J., files a dissenting opinion, in which McDermott, J., joins.
McDermott, J., files a dissenting opinion. 18
#23–1075, State v. Mumford
Oxley, Justice (dissenting).
The majority continues to hide behind Illinois v. Caballes, 543 U.S. 405,
409 (2005), even though its Katz-based holding “is irrelevant to” a
property-based Fourth Amendment challenge. State v. Bauler, 8 N.W.3d 892,
913 (Iowa 2024) (Oxley, J., dissenting); see also Florida v. Jardines, 569 U.S. 1,
11 (2013) (“The Katz reasonable-expectations test . . . is unnecessary to consider
when the government gains evidence by physically intruding on constitutionally
protected areas.”); United States v. Jones, 565 U.S. 400, 409 (2012) (“[T]he Katz
reasonable-expectation-of-privacy test has been added to, not substituted for, the
common-law trespassory test.” (alteration in original)).
Caballes has even less to say in this case where Orozco, the drug dog, did
not alert until after breaking the plane of the passenger window and putting his
nose inside the vehicle. See State v. Randall, 496 P.3d 844, 853 (Idaho 2021)
(“Though the Supreme Court has not directly addressed the question, Jones and
Jardines make clear that a drug dog’s trespass into a car during an exterior sniff
converts what would be a non-search under Caballes into a search.”). Caballes
did not involve the interior of a vehicle. Rather, it merely approved of a “free air
sniff,” which the Supreme Court has described as “an exterior sniff of an
automobile [that] does not require entry into the car,” where the dog “simply
walks around a car.” City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000)
(emphasis added) (describing a free air sniff used at a checkpoint found to be
unconstitutional); see also State v. Bergmann, 633 N.W.2d 328, 334–35
(Iowa 2001) (“[W]e are persuaded by the following long-standing viewpoint.
‘Having the trained dog sniff the perimeter of [defendant’s] vehicle . . . did not of
itself constitute a search.’ ‘[T]he airspace around the car is not an area protected 19
by the Fourth Amendment.’ ” (second and third alteration in original)
(emphasis added) (first quoting United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.
1994); and then quoting Casey v. State, 542 S.E.2d 531, 535 (Ga. Ct. App.
2000))).
Even the State recognizes that this appeal “presents a distinct ‘interior
sniff’ component of . . . Fourth Amendment jurisprudence.” Nonetheless, the
majority refuses to address the distinction between the interior and exterior of a
vehicle. I respectfully dissent from its conclusion that Mumford’s Fourth
Amendment rights were not violated.
In State v. Bauler, a majority of our court concluded that a drug dog’s
“[m]inimal contact with the exterior of a vehicle” does not violate the Fourth
Amendment. 8 N.W.3d at 900 (plurality opinion); id. at 913 (McDonald, J.,
concurring specially). The plurality explicitly conditioned its Fourth Amendment
holding: “so long as there was no entry into the private space inside the vehicle.”
Id. at 895. Faced with that exact scenario here, the majority now dismisses the
property-based challenge by characterizing the drug dog’s actions as involving
an “almost imperceptible entry into the open window of the vehicle.”
But that distinction is critical in Fourth Amendment jurisprudence. “The
inside of a car . . . is typically a different story. Police ordinarily cannot search
the interior of an automobile unless they have probable cause to believe that the
vehicle contains contraband or other evidence of a crime.” United States v.
Pulido-Ayala, 892 F.3d 315, 317–19 (8th Cir. 2018) (concluding that probable
cause to search the vehicle existed “before the [drug] dog entered the interior”
based on the drug dog “immediately” pulling the canine officer toward the open
passenger door such that there was no unlawful search when the dog jumped 20
into the defendant’s vehicle); see also United States v. Ngumezi, 980 F.3d 1285,
1289 (9th Cir. 2020) (“Although the intrusion here may have been modest, the
Supreme Court has never suggested that the magnitude of a physical intrusion
is relevant to the Fourth Amendment analysis. . . . [W]e apply a bright-line rule
that opening a door and entering the interior space of a vehicle constitutes a
Fourth Amendment search.”).
Rather than tackle that question, the majority here continues to hide
behind Caballes even where federal courts do not. See, e.g., United States v.
Newberry, No. 24–CR–1026–LTS, 2024 WL 4590159, at *13–17 (N.D. Iowa
Oct. 28, 2024) (finding that “the Government conducted a warrantless and
unreasonable search of Defendant’s vehicle” when a drug dog’s nose and head
entered the open driver’s window); United States v. Handley,
No. 23–CR–57–CJW–MAR, 2024 WL 1536750, at *6–7 (N.D. Iowa Apr. 9, 2024)
(concluding that the defendant’s Fourth Amendment rights were violated when
a drug dog stuck its nose inside a vehicle—breaking the plane of the driver’s
window by four to six inches—before alerting, and noting the “important
distinction between cases where the government has probable cause to search a
vehicle before a dog enters the interior of a vehicle, based on the dog’s strong
reactions while outside the vehicle, and cases where the dog gives no strong
reaction or final indication until after entering the interior of the vehicle,” as
discussed by the Eighth Circuit in Pulido-Ayala); United States v. Buescher,
691 F. Supp. 3d 924, 936 (N.D. Iowa 2023) (“While some courts have found no
Fourth Amendment violation when a drug-sniffing dog breaks the plane of an
open window, those decisions were largely prior to Jones and Jardines.”); United
States v. Joshua, 564 F. Supp. 3d 860, 877 (D. Alaska 2021) (“[The] K-9 put her
paws inside the door of the Porsche and extended the upper half of her body into 21
the vehicle. The K-9 then alerted to the scent of controlled substances. The
search exceeded the scope of a Terry stop and amounted to an illegal search.”);
see also Randall, 496 P.3d at 856 (“[T]hough an exterior sniff of a car is not a
search under Caballes, it becomes a search under Jones when a drug dog
trespasses into the car’s interior.”); State v. Organ, 697 S.W.3d 916, 919–21 (Tex.
App. 2024) (holding that a drug dog’s “interior sniff of [defendant’s] car violated
[his] Fourth Amendment rights” under a physical-intrusion analysis after
recognizing that the “six federal appellate courts” that had “concluded that a
dog’s entry into a vehicle . . . did not implicate the Fourth Amendment” were
either “decided before or did not discuss” Jones and Jardines); State v. Campbell,
5 N.W.3d 870, 876–79 (Wis. Ct. App. 2024) (applying Jones and Jardines to
conclude that the defendant “had a property interest in the interior of her vehicle
under the common-law trespassory test” and that her Fourth Amendment rights
were violated when a drug dog alerted after entering her vehicle despite the
Wisconsin Supreme Court’s prior reliance on Caballes to conclude that an
occupant of a vehicle has no expectation of privacy in the air space around a
vehicle).
That Orozco’s entry inside the vehicle here was “almost imperceptible” is
of no moment. See State v. Wright, 961 N.W.2d 396, 413–14 (Iowa 2021)
(“A constitutional search occurs whenever the government commits a physical
trespass against property, even where de minimis, conjoined with ‘an attempt to
find something or to obtain information.’ ” (quoting Jones, 565 U.S. at 408 n.5)).
Officer Dekker testified that the drug dog’s “nose went inside the
vehicle . . . through an open window” on the passenger side, a point the State
concedes on appeal. As the majority notes, it was not until “[a]fter the dog’s nose
entered the vehicle[ that] the dog alerted to the presence of controlled 22
substances.” Officer Dekker could not have stuck his own head into the interior
space of Mumford’s vehicle to smell for drugs without violating the Fourth
Amendment. See, e.g., United States v. Montes-Ramos, 347 F. App’x 383, 388
(10th Cir. 2009) (holding that a police officer who leaned his head approximately
two inches into the defendant’s car and sniffed for marijuana engaged in a search
even if it was minimal because “[t]he fact that the intrusion was minimal does
not affect the analysis”); United States v. Ryles, 988 F.2d 13, 15 (5th Cir. 1993)
(holding that an officer who “pierced the airspace inside the vehicle” when he
leaned inside an open window and smelled burnt marijuana engaged in a search
for Fourth Amendment purposes); Buescher, 691 F. Supp. 3d at 939 (“Kerr
himself would not have been constitutionally permitted to enter the vehicle
without a warrant. Similarly, K-9 Gus’ entry into the open window was a trespass
with an intent to obtain information.” (citation omitted)); United States v.
Francisco Estrella, 2021 WL 413513, at *13 (D. Conn. Feb. 5, 2021) (“Putting [the
officer’s] hand and arm inside Mr. Francisco-Estrella’s vehicle to photograph its
contents is no different than an officer putting his head inside a vehicle to smell
its contents.”); see also State v. Petersen, 994 N.W.2d 410, 416 (N.D. 2023)
(holding that the officer engaged in an unreasonable search under the Fourth
Amendment by “opening the semi door and stepping onto the running boards,”
where, “[f]rom this unlawful intrusion into Petersen’s vehicle, the officers were
able to obtain information they would not otherwise have been able to obtain,
such as the odor of alcohol emanating from Petersen and his bloodshot watery
eyes”); cf. United States v. Aguirre, No. 1:23–CR–00187–DCN, 2024 WL 4434281,
at *7 (D. Idaho Oct. 7, 2024) (concluding that a vehicle search was reasonable
and constitutionally permissible because the officer did not break the plane of
the car’s interior and recognizing a distinction between an exterior search of a 23
vehicle and “entering the interior space of a vehicle” as discussed by the Ninth
Circuit in Ngumezi (emphasis omitted)). Orozco, as Officer Dekker’s
instrumentality, could not do what the officer could not do himself. See
Pulido-Ayala, 892 F.3d at 318 (“A drug dog is an instrumentality of the
police . . . .”).
Nor is this a case where the drug dog’s actions could be considered
“instinctual,” to the extent that distinction matters. See Randall, 496 P.3d at
853–55 (discussing cases distinguishing between a drug dog being encouraged
to enter a vehicle and instinctually doing so and holding “that [the drug dog’s]
motivation, instinctual or otherwise, is irrelevant[ because t]he proper inquiry is
whether [the officer] had probable cause to believe illegal drugs were in [the
defendant’s] car before [the drug dog] jumped through the window”). Officer
Dekker gave Orozco a trained command to conduct a “scan search”—i.e., Officer
Dekker encouraged the dog to search the entire vehicle, giving it full range to
search Mumford’s vehicle, including by jumping up on both sides of the vehicle
and sticking its head into the open window as it was trained to do in performing
a scan search. Indeed, while actively engaged in that pursuit, Orozco exhibited
a “high final” alert in this case by “stand[ing] high and look[ing] at” Officer Dekker
immediately after sticking his nose through the window and while his feet were
still on the side of the car. Orozco did as he was trained to do.
Finally, the majority ducks the hard work by suggesting we are bound by
the federal exclusionary rule in any event. But exclusion is proper under federal
law if the drug dog acted on its training, as happened here. See Handley,
2024 WL 1536750, at *9 (distinguishing Buescher, which excluded evidence 24
obtained following the dog’s entry into the vehicle, on the basis that “the
drug-sniffing dog in that case was trained to enter the open windows of vehicles”);
see also Jardines, 569 U.S. at 5 (affirming the Florida Supreme Court’s exclusion
of evidence obtained by warrant determined to be invalid because it was based
on a drug dog’s alert at the defendant’s front door, in violation of the Fourth
Amendment). It is not a basis for avoiding the Fourth Amendment analysis.
I would hold that Mumford’s Fourth Amendment rights were violated and
that the district court erred in denying her motion to suppress evidence obtained
following the drug dog’s alert.
McDermott, J., joins this dissent. 25
McDermott, Justice (dissenting).
Mumford argues that her search-and-seizure protections under both the
United States Constitution and the Iowa Constitution were violated when a police
dog climbed onto the side of her vehicle and thrust its head into the passenger
compartment to sniff for drugs. On the challenge under the federal constitution,
I join Justice Oxley’s dissent and would hold that the search violated the Fourth
Amendment. On the challenge under our state constitution, which Justice Oxley
does not address, I would hold that the search also violated article I, section 8 of
the Iowa Constitution.
We interpret the Iowa Constitution independent of the Supreme Court’s
interpretation of the United States Constitution, even when provisions of the two
constitutions contain nearly identical language. State v. Brown, 890 N.W.2d 315,
322 (Iowa 2017). As a result, provisions in the Iowa Constitution may offer
greater or lesser protection than comparable provisions in the United States
Constitution. State v. Wright, 961 N.W.2d 396, 403–04 (Iowa 2021). On questions
involving the Iowa Constitution, the supreme court in Iowa, not Washington, has
the final word on its interpretation. See McClure v. Owen, 26 Iowa 243, 249
(1868).
Article I, section 8 of the Iowa Constitution states:
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.
This language divides the analysis into four questions: (1) Is the subject of the
alleged intrusion a person, house, paper, or effect? (2) If so, was it searched or
seized? (3) If so, was it the defendant’s (“their”) pferson, house, paper, or effect? 26
(4) If so, was the search or seizure unreasonable? See Orin S. Kerr, Katz as
Originalism, 71 Duke L.J. 1047, 1052 (2022).
In State v. Wright, we examined whether the police officer’s conduct in
accessing the defendant’s trash bin violated positive law—meaning some existing
enacted law or legal doctrine recognized by courts—to determine whether the
officer infringed the defendant’s rights under article I, section 8. 961 N.W.2d at
416–17. A municipal ordinance made it a crime for anyone other than a licensed
trash collector to access a trash bin set out for collection. Id. at 417. In our
analysis of the reasonableness of the search, we considered whether the
existence of the ordinance meant that the officer had committed a trespass when
he accessed the trash bin on the defendant’s property without a warrant. Id. at
416. People may reasonably expect that an officer will not engage in conduct that
is “unlawful, tortious, or otherwise prohibited” regarding their “persons, houses,
papers and effects.” Id.; Iowa Const. art. I, § 8. We thus held that the officer
violated the defendant’s reasonable expectation of privacy when the officer
committed a trespass to access the trash bin. Wright, 961 N.W.2d at 419.
The appeal in this case comes on the heels of another case in which we
analyzed whether a vehicle search involving a police dog violated the Iowa
Constitution. In State v. Bauler, a split majority of our court found no violation
of article I, section 8 despite the officer enabling the police dog to climb with its
front two paws onto the vehicle’s side paneling to sniff for drugs. 8 N.W.3d 892,
902–07 (Iowa 2024) (plurality opinion). A three-justice plurality contended that
our holding in Wright did not apply to “dog sniff” cases at all, which the plurality
deemed “sui generis” because a drug dog detects only contraband. Id. at 906.
Three other justices, in a special concurrence, accused the plurality of trying “to
walk back this court’s analysis in Wright.” Id. at 909 (McDonald, J., concurring 27
specially). These specially concurring justices applied Wright’s analysis but
concluded that the police dog’s climb onto the side of the vehicle was nonetheless
constitutional. Id. at 912–13.
I dissented in Bauler, having concluded both that Wright’s analysis applies
to vehicle searches and that the officer’s conduct permitting the police dog to
climb onto the side of the vehicle to sniff constituted a physical trespass that
made the search unconstitutional. Id. at 924 (McDermott, J., dissenting). Under
the common law, a person commits a “trespass to chattel” when the person
unlawfully “intermeddles” with another’s personal property. See Restatement
(Second) of Torts § 217 cmt. e, at 417, 419 (Am. L. Inst. 1965). To “intermeddle”
with another’s personal property is to “intentionally bring[] about a physical
contact” with the property. Id. at 417. When the officer guided the police dog to
climb up onto the side of the vehicle, the officer “intermeddled” with Bauler’s
personal property and thus committed a trespass. See State v. Dorff, 526 P.3d
988, 997–98 (Idaho 2023). Whether the property owner could or would sue for
the trespass is immaterial for purposes of determining the relative rights of the
parties under article I, section 8. See id. at 996. The trespass on Bauler’s “effect”
(the vehicle) violated a reasonable expectation of privacy. See Bauler, 8 N.W.3d
at 927 (McDermott, J., dissenting).
Because the officer in Bauler had no warrant, and no recognized exception
to the warrant requirement applied, I would have held that the district court
erred in failing to exclude the fruits of the improper search under the Iowa
Constitution. Although the three-justice plurality in Bauler disagreed about
whether Wright applied, it agreed with this trespass analysis and what it would
mean in the case, concluding that “[i]f Wright is applied, the dog sniff here does
not survive.” Id. at 905–06 (plurality opinion). 28
The analytical groupings in Bauler are worth highlighting. Four justices
(the three-justice plurality and me) concluded that if Wright’s
property-rights-based analysis applied to dog-sniff cases, then the police dog’s
climb onto the side of the vehicle constituted a trespass. Id.; id. at 926–27
(McDermott, J., dissenting). Four justices (the three specially concurring justices
and me) concluded that Wright’s analysis did in fact apply to the case. Id. at 909
(McDonald, J., concurring specially) (“Wright is a controlling framework for
evaluating claims arising under article I, section 8 . . . .”); id. at 926 (McDermott,
J., dissenting). This means, curiously, that numerical majorities on this court
would have concluded that Wright applied and that the State violated Bauler’s
search-and-seizure protections under Wright.
The facts in this case are materially identical to Bauler—only more
egregious. We left open the question in Bauler about “whether a dog sniff wherein
a dog has been previously trained to put its head inside the car and in fact does
so has violate[d] the Fourth Amendment or article I, section 8.” Id. at 907 n.8
(plurality opinion). In this case, we now have the police dog not only climbing up
and placing its paws on the vehicle, but a step beyond, with the dog also plunging
its head through the open window and into the passenger compartment.
The majority finds all this climbing, pawing, and plunging by police dogs
onto and into cars “of no constitutional import.” I doubt many car owners would
agree. The sight of a dog propped up on the side of one’s car, literally pawing its
panels to gain position as it noses the car’s crevices and crannies, presents an
alarming picture. More importantly, it constitutes an illegal trespass. That
trespass expands further when a police dog also thrusts its head into the
passenger compartment. Until today, we had only sanctioned a police dog’s sniffs
of the free air outside a vehicle. See State v. Bergmann, 633 N.W.2d 328, 334–35 29
(Iowa 2001). The air inside a vehicle’s cabin is in no sense “free” air—a point
made obvious when a police dog needs to insert its head into the cabin to take it
in. Despite the majority’s repeated attempts to minimize the intrusive conduct
here, most drivers, I suspect, would find the prospect of a police dog with its
paws up on their door panel and its snout in their passenger compartment a
significant, distressing, and embarrassing invasion.
Equally worrisome, in pondering the majority’s approval today of this
further incursion on the rights of citizens in vehicles, I struggle to find any
limiting principle. May a police dog climb completely onto the hood or trunk or
roof on all four legs to sniff about? Or, to twist the line in George Orwell’s Animal
Farm, are two legs good but four legs bad? On what rationale would such a
distinction rest after today? And may police now direct their dogs to climb
completely inside the passenger compartment too? On this question, if a police
dog’s actual searching tool—its nose—presents no constitutional problem inside
a car, why would the rest of its body? Having now approved as constitutional
what four justices of this court would agree is in fact a trespass, I fail to see how
the court in a future case draws any line to find police dog searches involving a
vehicle unconstitutional.
But unconstitutional it certainly is. The target of the search—Mumford’s
car—is an “effect.” See United States v. Jones, 565 U.S. 400, 404 (2012) (“It is
beyond dispute that a vehicle is an ‘effect’ as that term is used” in our
search-and-seizure cases). The officer conducted a “search” of the car when he
directed the dog to sniff for drugs. See Wright, 961 N.W.2d at 413 (defining a
“search” as “an examination conducted for the ‘purpose of discovering proof
of . . . guilt in relation to some crime.’ ” (quoting 2 John Bouvier, A Law
Dictionary 498 (3d ed. 1848))). The search was unreasonable because the officer 30
committed a common law trespass to personal property. As we held in Wright,
citizens may reasonably expect that an officer will not engage in conduct that is
“unlawful, tortious, or otherwise prohibited” when conducting a warrantless
investigation. 961 N.W.2d at 416.
The majority contends that even if the State violated the Fourth
Amendment in conducting the search of Mumford’s vehicle, the evidence would
still come in because the officer acted in good faith. I join Justice Oxley’s view on
the good-faith exception’s applicability in this case under the Fourth
Amendment. But no matter what the result under the Fourth Amendment, the
good-faith exception clearly has no bearing on Mumford’s challenge under article
I, section 8. We do not recognize such an exception under the Iowa Constitution.
State v. Cline, 617 N.W.2d 277, 293 (Iowa 2000) (en banc) (declining to adopt a
good-faith exception to the exclusionary rule for unconstitutional searches
because “[t]o do so would elevate the goals of law enforcement above our citizens’
constitutional rights”), abrogated on other grounds by State v. Turner, 630
N.W.2d 601, 606 n.2 (Iowa 2001).
I thus respectfully dissent and would hold that the officer’s actions violated
the search-and-seizure protections of both the Fourth Amendment to the United
States Constitution and article I, section 8 of the Iowa Constitution, and that the
district court erred in failing to suppress the fruits of the unlawful search
accordingly.