State of Iowa v. Brent Alan Hauge

• Court: Supreme Court of Iowa
• Decided: April 22, 2022
• Docket: 20-1568
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 20–1568

Submitted October 8, 2021—Filed April 22, 2022

STATE OF IOWA,

Appellee,

vs.

BRENT ALAN HAUGE,

Appellant.

Appeal from the Iowa District Court for Plymouth County, Daniel P.

Vakulskas, District Associate Judge.

The defendant challenges his conviction for possession of

methamphetamine, second offense, in violation of Iowa Code section 124.401(5),

arguing he was subjected to an impermissible search. AFFIRMED.

Christensen, C.J., delivered the opinion of the court, in which Waterman,

Mansfield, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed a

dissenting opinion.

Martha J. Lucey, State Appellate Defender, and Ashley C. Stewart (argued),

Assistant Appellate Defender, for appellant. 2

Thomas J. Miller, Attorney General, Thomas E. Bakke (argued), Assistant

Attorney General, for appellee. 3

CHRISTENSEN, Chief Justice.

Late one summer night, three friends went for a ride in a two-door vehicle

and headed out on the highway to look for adventure in whatever came their

way. Little did they know that adventure for the three friends—a speeding driver,

a back-seat passenger with an outstanding arrest warrant, and a front-seat

passenger—would result in the arrest of both passengers when law enforcement

officers stopped their two-door vehicle for speeding around 10:30 p.m. along

Highway 75. One officer talked to the driver and the other officer went to the

passenger side to talk to the front- and back-seat passengers. Instead of

acknowledging the officer shining his flashlight into the passenger-side window

right next to him, the front passenger stared straight ahead “like a statue” and

then proceeded to use the light from the officer’s flashlight to retrieve a lottery

ticket from the door holder and examine it. The front passenger initially resisted

giving the officer his identification, but both passengers eventually provided that

information, which led the officers to discover the back-seat passenger had a

warrant for her arrest relating to a conviction for domestic abuse assault with a

weapon.

To safely effectuate the arrest of the back-seat passenger, the officers

asked the driver and front passenger to exit the two-door vehicle so the back-

seat passenger could exit. Once the front passenger exited the vehicle, one of the

officers asked him if he had any weapons on him, to which the passenger

responded he did not, and then the officer asked him if he could “check [him] for

weapons real quick.” The passenger responded, “Yup,” and the officer’s pat-down 4

revealed a methamphetamine pipe and a baggie containing methamphetamine,

leading to the passenger’s criminal charge of possession of methamphetamine,

second offense, in violation of Iowa Code section 124.401(5) (2019), an

aggravated misdemeanor.

The passenger moved to suppress all evidence obtained after the exit order,

arguing law enforcement acted unreasonably under the Fourth Amendment to

the United States Constitution and article I, section 8 of the Iowa Constitution

by ordering him out of the vehicle. He also claimed his consent to the pat-down

was not voluntary under article I, section 8 of the Iowa Constitution because the

officer did not inform him that he could decline the search. The district court

denied the motion to suppress and later convicted the passenger. We affirm the

district court judgment because the officer’s order for the passenger to exit the

vehicle was necessary to facilitate the lawful arrest of the back-seat passenger.

Further, consistent with federal precedent and the vast majority of states, we

hold there is no requirement under the Iowa Constitution that subjects of a

search must be informed of their right to decline the search in order for their

consent to be voluntary. We affirm the district court’s conclusion that the

passenger’s consent was voluntary based on the totality of the circumstances.

I. Background Facts and Proceedings.

Around 10:30 p.m. on June 14, 2019, Brent Hauge was a front-seat

passenger in a two-door vehicle when Officer Colin Scherle of the Merrill Police

Department stopped the vehicle for speeding along Highway 75 in Plymouth

County, Iowa. Deputy Kyle Petersen of the Plymouth County Sheriff’s 5

Department was driving in the area and stopped to assist Officer Scherle with

the traffic stop. Officer Scherle’s dash camera captured the stop, though it is

difficult to hear most of the officers’ conversation with the vehicle’s occupants.

As Officer Scherle approached the driver’s side to talk to the driver, Deputy

Petersen approached the passenger’s side. Deputy Petersen used his flashlight

to see all of the occupants and observed Hauge in the front passenger seat and

a female in the back seat. Hauge did not initially acknowledge Deputy Petersen’s

presence, staring straight ahead “like a statue” instead and then reaching into

the passenger door holder to pull out what appeared to be a lottery ticket. Hauge

held the lottery ticket up, using the light from Deputy Petersen’s flashlight to

view it, then placed it back in the door holder. After returning the lottery ticket

to the door holder, Hauge began to stare straight down at the floor and continued

to avoid eye contact with Deputy Petersen.

Deputy Petersen asked the passengers for their identification information,

and Hauge responded by asking if he was being detained. Deputy Petersen

explained he was not being detained, and Hauge provided Deputy Petersen with

his identification card. Deputy Petersen also retrieved the back-seat passenger’s

information and then worked with Officer Scherle to check the license and

warrant status of all three occupants. Upon discovering the back-seat passenger

had a warrant for her arrest due to an overdue mittimus relating to a conviction

for domestic abuse assault with a weapon, the officers decided to ask the

occupants to exit the two-door vehicle so they could safely arrest the back-seat

passenger. 6

When Deputy Petersen ordered Hauge to exit the vehicle, Hauge did not

immediately exit and asked if he was being detained. Deputy Petersen informed

Hauge that he was being detained and again asked Hauge to exit the vehicle.

Hauge exited the vehicle and Deputy Petersen asked Hauge if he had any

weapons, to which Hauge indicated that he did not. Deputy Petersen

subsequently asked Hauge if it was okay to “check [him] for weapons real quick.”

Hauge swiftly responded, “Yup,” and set the soda he was holding down so Deputy

Petersen could perform the pat-down.

During the pat-down, Deputy Petersen felt an object “bulging out of

[Hauge’s] pocket,” which he believed was a methamphetamine pipe based on the

object’s “size and length” and his training and experience. When Deputy Petersen

went to retrieve the object from Hauge’s pocket, he discovered a

methamphetamine pipe and what was later confirmed to be a baggie containing

methamphetamine. The State charged Hauge with possession of

methamphetamine, second offense, in violation of Iowa Code section 124.401(5),

an aggravated misdemeanor.

Hauge moved to suppress all evidence obtained during the search and

seizure, arguing law enforcement obtained it illegally in violation of his rights

under the Fourth Amendment to the United States Constitution and article I,

section 8 of the Iowa Constitution. Hauge argued that the officers lacked

reasonable suspicion to order him out of the vehicle or to believe Hauge was

armed or dangerous to justify the pat-down and that Hauge’s consent to the pat-

down was not voluntary. During the hearing, Deputy Petersen testified that he 7

initially became suspicious of Hauge when Hauge did not make any attempt to

acknowledge Deputy Petersen and focused instead on a lottery ticket after

Deputy Petersen approached the vehicle. Deputy Petersen explained, “Through

my training, experience, and knowledge I’ve noticed that individuals that don’t

want to make eye contact, don’t want to engage in any conversation, things of

that nature, maybe more nervous around people, typically could potentially have

criminal activity afoot.” Deputy Petersen noted that it struck him as “very odd”

that Hauge retrieved the lottery ticket from the door holder and used Deputy

Petersen’s flashlight to view the ticket, reasoning, “It mean[t] to me that he

recognized my presence at the stop but didn’t, once again, want to make contact

with me or eye contact or anything of that nature, which, once again, raised red

flags.”

Deputy Petersen discussed various reasons for ordering Hauge out of the

vehicle, including the nature of the back-seat passenger’s conviction for domestic

abuse with a weapon, Hauge’s furtive movements of reaching into the door holder

out of Deputy Petersen’s eyesight multiple times, his choice not to acknowledge

Deputy Petersen’s presence, and his resistance to provide his identification. He

expressed similar concerns when testifying about why he believed Hauge had

weapons on him. Officer Scherle also testified about the safety concerns that led

to the exit order. He acknowledged that the back-seat passenger could have

exited the driver’s side of the two-door vehicle but believed that it was safer to

exit through the passenger side door where Hauge was seated. The video shows 8

that the car was pulled over on the shoulder of a busy highway (U.S. 75) just

slightly off the roadway.1

The district court denied Hauge’s motion to suppress the evidence of the

methamphetamine pipe and methamphetamine. Although the district court

concluded Deputy Petersen did not have reason to believe Hauge was armed to

justify the pat-down under the officer-safety exception to the warrant

requirement, it reasoned the pat-down was allowed because Hauge voluntarily

consented to it. It also determined the scope of the pat-down search was lawful

under the plain-feel exception because the identity of the object in Hauge’s

pocket was immediately apparent during the pat-down. During Hauge’s bench

trial, he orally moved the district court to reconsider its ruling on his motion to

suppress. In its written verdict, the district court denied Hauge’s motion to

reconsider and found Hauge guilty of possession of methamphetamine, second

offense, in violation of Iowa Code section 124.401(5), an aggravated

misdemeanor. Hauge 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,

1Hauge also challenged the validity of the traffic stop in his motion to suppress, but he withdrew that challenge at the conclusion of the suppression hearing. He amended the motion to suppress at the conclusion of the hearing to claim that he was subject to a custodial interrogation after he was put in handcuffs and that Deputy Petersen asked him what the object in his pocket was. The district court concluded Hauge was subject to a custodial interrogation without being provided his Miranda rights and granted Hauge’s motion to suppress concerning his answer to the object’s identity, though it was not clear from the evidence how Hauge responded. The State does not challenge that ruling on appeal. 9

our standard of review is de novo.” State v. Brown, 930 N.W.2d 840, 844 (Iowa

2019) (quoting State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017)). We review the

entire record to independently evaluate the totality of the circumstances and

examine each case “in light of its unique circumstances.” Id. (quoting State v.

Kurth, 813 N.W.2d 270, 272 (Iowa 2012)). In doing so, “[w]e 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.” Brown, 890 N.W.2d at 321

(quoting In re Prop. Seized from Pardee, 872 N.W.2d 384, 390 (Iowa 2015)).

III. Analysis.

Hauge raises two issues on appeal. First, he contends the district court

erred in denying his motion to suppress the evidence obtained from Deputy

Petersen’s warrantless search and seizure because Deputy Petersen lacked

justification to order him out of the vehicle. Second, Hauge maintains his

consent to the pat-down was not voluntary.

A. Deputy Petersen’s Authority to Order Hauge Out of the Vehicle. On

appeal, Hauge acknowledges the initial stop of the vehicle was valid due to the

driver’s traffic violation, and the State does not contest Hauge’s claim that he

was seized during the traffic stop under the Fourth Amendment to the United

States Constitution and article I, section 8 of the Iowa Constitution. See, e.g.,

State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021) (“The ‘[t]emporary 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’ the Fourth Amendment.” (alteration in original) (quoting Whren 10

v. United States, 517 U.S. 806, 809–10 (1996))). The parties also agree that

Deputy Petersen’s order for Hauge to exit the vehicle was lawful under the Fourth

Amendment. Nevertheless, they disagree about whether Deputy Petersen had the

authority to order Hauge out of the vehicle under article I, section 8 of the Iowa

Constitution.2 Hauge asks us to interpret article I, section 8 of the Iowa

Constitution more broadly than the Fourth Amendment to the United States

Constitution. Specifically, he urges us to apply our 1990 holding in State v.

Becker, 458 N.W.2d 604 (Iowa 1990), abrogated on other grounds by Knowles v.

Iowa, 525 U.S. 113 (1998), under the Iowa Constitution so that an officer cannot

order a passenger out of the vehicle during a lawful traffic stop “unless some

articulable suspicion exists concerning a violation of law by that person, or

unless further interference with the passenger is required to facilitate a lawful

arrest of another person or lawful search of the vehicle.” Id. at 607.

In Becker, we concluded a state trooper violated a vehicle passenger’s

Fourth Amendment rights by ordering the passenger from the vehicle. Id. at

607–08. We reasoned there were different interests in privacy rights and officer

safety concerning the driver and passenger, noting a person in the driver’s

position who is “known to the officer to have violated the traffic laws” is

2In addition to challenging Hauge’s argument on the merits, the State argues Hauge failed to preserve error on this claim because he never challenged the lawfulness of the officer’s exit order in his motion to suppress. We conclude the issue was at least minimally preserved because the district court declared in its ruling on Hauge’s motion to suppress that “it was reasonable for the officers to ask the Defendant to exit the vehicle to allow them to gain access to the [backseat passenger], as it was a two door vehicle.” See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002) (“The claim or issue raised does not actually need to be used as the basis for the decision to be preserved, but the record must at least reveal the court was aware of the claim or issue and litigated it.”). 11

“technically subject to full custodial arrest” and law enforcement’s intrusion into

the driver’s privacy is justified. Id. at 607. In contrast, “[t]he resulting intrusion

on the passenger which flows from the initial stop is an unavoidable consequence

of action justifiably taken against the driver.” Id. Thus, we held, “Further

intrusion on the passenger is not justified . . . unless some articulable suspicion

exists concerning a violation of law by that [passenger], or unless further

interference with the passenger is required to facilitate a lawful arrest of another

person or lawful search of the vehicle.” Id. Because “there was no articulable

suspicion of wrongdoing on [the passenger’s] part or any need to move him in

order to facilitate arrest of the driver or search of the vehicle,” the evidence

obtained after the state trooper ordered the passenger from the car required

suppression. Id. at 607–08. Becker only interpreted the issue under the Fourth

Amendment, and the United States Supreme Court later overruled this decision

in Maryland v. Wilson, 519 U.S. 408 (1997), when it held an officer may order a

vehicle passenger out of the vehicle during the course of a routine traffic stop for

any reason regardless of whether the officer has reason to suspect foul play or

anything problematic about the passenger. Id. at 414–15.

We need not address Hauge’s request for us to depart from federal

precedent by applying the heightened standard established in Becker under the

Iowa Constitution because Deputy Petersen was authorized to order Hauge out

of the vehicle even under that heightened standard that Hauge requests in order

to facilitate the lawful arrest of the back-seat passenger. The back-seat

passenger had an active arrest warrant for a conviction involving a dangerous 12

weapon, and she could not exit the two-door vehicle unless the driver or

passenger exited the vehicle. Although Deputy Petersen technically could have

only ordered the driver to exit so that the back-seat passenger could exit from

the driver’s side, it is reasonable for him to ask the front-seat passenger to exit

instead because of safety concerns. In particular, the vehicle was stopped late at

night alongside the highway with the driver’s-side door facing the lane of

oncoming traffic. Meanwhile, the passenger-side door where Hauge was located

presented the safer option because it allowed the back-seat passenger to exit

toward the highway’s shoulder and avoid potentially stumbling into oncoming

traffic.

“[C]onstitutional search and seizure provisions do not require the least

intrusive action possible. Instead, they require a measure of ‘reasonableness,

under all the circumstances.’ ” State v. Jones, 666 N.W.2d 142, 149 (Iowa 2003)

(citations omitted). Allowing officers to exercise command of the situation

minimizes the risk of harm to law enforcement officers and the vehicle occupants

alike. Wilson, 519 U.S. at 414–15. Here, it was reasonable for the officers to avoid

putting the safety of the exiting back-seat passenger at risk when they asked

Hauge to step out of the vehicle for the back-seat passenger to exit instead of

requiring the back-seat passenger to exit into oncoming traffic.

As we held in Becker, further intrusion of the passenger is justified if it “is

required to facilitate a lawful arrest of another person.” 458 N.W.2d at 607. This

is exactly what happened here, and thus, Deputy Petersen did not violate 13

Hauge’s constitutional right under article I, section 8 when he ordered Hauge

out of the vehicle.

B. The Voluntariness of Hauge’s Consent. Hauge argues his consent to

the pat-down was involuntary because the officers never advised him of his right

to decline consent. In doing so, Hauge asks us to depart from federal precedent

to adopt a knowing-and-voluntary standard for consensual searches and

seizures under article I, section 8 that requires law enforcement to expressly

advise individuals of their right to decline to consent to a search. Alternatively,

Hauge argues that his consent was involuntary even if we decline to adopt his

requested knowing-and-voluntary standard because the totality of the

circumstances shows his consent to the pat-down was the product of coercion.

1. Error preservation. The State contests error preservation on Hauge’s

request for us to adopt a per se requirement that officers advise an individual of

their right to decline a search under the Iowa Constitution to establish the

voluntariness of consent. According to the State, this argument was neither

raised nor ruled upon below and Hauge’s passing reference to the Iowa

Constitution is inadequate to preserve error for this argument. Hauge maintains

he preserved error through the district court’s denial of his motion to suppress.

When there are parallel constitutional provisions in the federal and state constitutions and a party does not indicate the specific constitutional basis, we regard both federal and state constitutional claims as preserved . . . . Even in these cases in which no substantive distinction has been made between state and federal constitutional provisions, we reserve the right to apply the principles differently under the state constitution compared to its federal counterpart. 14

State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015) (omission in original) (quoting King

v. State, 797 N.W.2d 565, 571 (Iowa 2011)). Hauge cited the Fourth Amendment

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

in his motion to suppress and argued his consent was not voluntary under these

provisions. The district court’s suppression ruling does not cite the federal or

state constitutional provision in denying Hauge’s motion, though it cites to both

federal and state precedent and its reasoning shows it analyzed the

constitutional issues presented. See Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012) (“If the court’s ruling indicates that the court considered the issue

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 540

(Iowa 2002))). Under our lenient rules of error preservation, this was adequate

for Hauge to preserve his argument under the Iowa Constitution.

2. Establishing consent to search. Hauge asks our court to depart from

federal precedent to adopt a heightened standard for consensual searches and

seizures under article I, section 8 of the Iowa Constitution. Alternatively, he

claims his consent was not voluntary under our existing standard analyzing

consensual searches under the totality of the circumstances.

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. 15

Evidence obtained in violation of this provision is inadmissible. Warren,

955 N.W.2d at 859. The warrant requirement is the fundamental protection

against unreasonable searches and seizures. State v. Reinier, 628 N.W.2d 460,

464 (Iowa 2001) (en banc). Nevertheless, consensual searches are a well-

established exception to the warrant requirement and do not violate the Federal

or State Constitution. Id. at 464–65; see also State v. Reinders, 690 N.W.2d 78,

82 (Iowa 2004) (concluding there was no basis to distinguish the protections

afforded by the Iowa Constitution from those afforded by the United States

Constitution concerning consensual searches).

The federal precedent governing consent searches under the Fourth

Amendment is Schneckloth v. Bustamonte, 412 U.S. 218 (1973). There, the

United States Supreme Court considered what the prosecution must prove to

demonstrate an individual “voluntarily” consented to a search. Id. at 223. The

Court declined to adopt a per se rule that an individual must have knowledge of

the right to refuse consent in order for the consent to be “voluntary” under the

Fourth Amendment, explaining, “[K]nowledge of the right to refuse consent is

one factor to be taken into account, [but] the government need not establish such

knowledge as the sine qua non of an effective consent.” Id. at 227. The Court

declared, “[T]he near impossibility of meeting this prosecutorial burden suggests

why this Court has never accepted any such litmus-paper test of voluntariness.”

Id. at 230. It acknowledged one alternative to proving a subject knew of the right

to refuse would be to advise the subject of that right before eliciting consent, as

Hauge urges us to require under the Iowa Constitution. Id. at 231. But it rejected 16

that alternative, stressing that consent searches “normally occur on the highway,

or in a person’s home or office, and under informal and unstructured conditions”

that “are a far cry from the structured atmosphere of a trial where, assisted by

counsel if he chooses, a defendant is informed of his trial rights.” Id. at 232.

Further, the Court articulated that “these situations are still immeasurably, far

removed from ‘custodial interrogation’ where, in Miranda v. Arizona, we found

that the Constitution required certain now familiar warnings as a prerequisite to

police interrogation.” Id. (citation omitted).

Likewise, the Court rejected the argument Hauge makes here that consent

to search should be treated like a waiver of a trial right, as the right to counsel

was treated in Johnson v. Zerbst, 304 U.S. 458, 464 (1938), in which the

Supreme Court held the waiver of that right requires the State to demonstrate

“an intentional relinquishment or abandonment of a known right or privilege.”

Schneckloth, 412 U.S. at 243–45. The Court frankly proclaimed, “Nothing, either

in the purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial

rights, or in the practical application of such a requirement suggests that it ought

to be extended to the constitutional guarantee against unreasonable searches

and seizures” because the protections of the Fourth Amendment “have nothing

whatever to do with promoting the fair ascertainment of truth at a criminal trial.”

Id. at 241, 242. “The guarantees of the Fourth Amendment stand ‘as a protection

of quite different constitutional values—values reflecting the concern of our

society for the right of each individual to be let alone.’ ” Id. at 242 (quoting Tehan

v. United States ex rel. Shott, 382 U.S. 406, 416 (1966)). Ultimately, the court 17

held that “whether a consent to a search was in fact ‘voluntary’ or was the

product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances” and the individual’s

knowledge of the right to refuse is but one factor to consider among all the

circumstance’s. Id. at 227.

For decades, we analyzed the validity of an individual’s consent in search

and seizure cases under the Fourth Amendment precedent established in

Schneckloth. See State v. Pals, 805 N.W.2d 767, 779–80 (Iowa 2011) (citing

numerous consensual search cases from our court dating back to 1975 that did

not depart from federal precedent). In State v. Reinders, we examined the validity

of a defendant’s consent to a search of his person and confirmed there was “no

basis to distinguish the protections afforded by the Iowa Constitution from those

afforded by the federal constitution under the facts of [the] case.” 690 N.W.2d at

82. In interpreting article I, section 8 coextensive with the Fourth Amendment,

we have recognized certain factors that the court may consider in determining

whether the prosecution met its burden to prove the consent was voluntary with

no one factor being determinative. State v. Lane, 726 N.W.2d 371, 378 (Iowa

2007). These factors include

personal characteristics of the [consenter], such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of the detention or questioning, the substance of any discussion between the [consenter] and police preceding the consent, whether the [consenter] was free to leave or was subject to restraint, and whether the [consenter’s] contemporaneous reaction to the search was consistent with consent. 18

Id. (alterations in original) (quoting United States v. Va Lerie, 424 F.3d 694, 709

(8th Cir. 2005)).

More recently in State v. Pals, a majority of our court criticized the federal

approach to consensual searches, noting four states have adopted a heightened

knowing-and-voluntary standard to analyze the voluntariness of an individual’s

consent and “[t]he academic commentary on [the federal approach] has been

generally unfavorable.” 805 N.W.2d at 779, 781–82. Yet, we declared, “An

evaluation of such a per se requirement that police advise an individual of his or

her right to decline to consent to a search . . . is reserved for another day.” Id. at

782. Instead, the majority applied “an Iowa version of the [federal] ‘totality of the

circumstances’ test,” id., purportedly “insist[ing] on a more realistic analysis of

what amounts to ‘voluntary consent,’ ” State v. Baldon, 829 N.W.2d 785, 823

(Iowa 2013) (Appel, J., specially concurring) (citing Pals, 805 N.W.2d at 782–83).

A few months later, in State v. Lowe, we again did not adopt a per se

requirement that law enforcement must advise individuals of their right to refuse

a search. 812 N.W.2d 554, 572–75 (Iowa 2012). In a separate opinion, Justice

Appel, who authored the Pals majority opinion, specifically explained that the

“Schneckloth-type-totality-of-the-circumstances test” adopted in Pals does not

hold the failure to inform a suspect of the right to refuse consent is dispositive.

Id. at 589 (Appel, J., concurring in part and dissenting in part). Hauge relies on

the criticisms of Schneckloth that the majority discussed in Pals in urging us to

now adopt a knowing-and-voluntary standard to analyze the voluntariness of an 19

individual’s consent, which would require law enforcement to advise an

individual of the right to refuse a search.

In asking us to depart from federal precedent to adopt a per se requirement

that law enforcement must advise individuals of their right to refuse consent

under the Iowa Constitution, Hauge is also asking us to overturn our article I,

section 8 precedent. We have long interpreted article I, section 8 coextensive with

the Fourth Amendment in analyzing consent searches. See, e.g., Reinders,

690 N.W.2d at 82. Even in proclaiming to use a “more realistic analysis” than

the federal precedent to examine the totality of the circumstances in Pals, we

examined the totality of the circumstances in a manner similar to that used by

the Supreme Court in Schneckloth: with no one factor being determinative of the

outcome. Baldon, 829 N.W.2d at 823; see also Pals, 805 N.W.2d at 782–83. We

also applied a totality-of-the-circumstances test a few months later in Lowe,

reiterating, “The question of voluntariness requires the consideration of many

factors, although no one factor itself may be determinative.” 812 N.W.2d at 572

(majority opinion) (emphasis added). “Though it is ‘our role as a court of last

resort . . . to occasionally reexamine our prior decisions, we must undertake this

weighty task only for the most cogent reasons and with the greatest caution.’ ”

Brown, 930 N.W.2d at 854 (omission in original) (quoting Kiesau v. Bantz,

686 N.W.2d 164, 180 (Iowa 2004) (Cady, J., dissenting), overruled on other

grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016)). We

are not persuaded that those reasons exist in this situation. 20

The four states that Hauge relies on for departure—Arkansas, Mississipi,

New Jersey, and Washington—are outliers on this issue. See Pals, 805 N.W.2d

at 779. The overwhelming majority of other states continue to follow Schneckloth

and many that have been asked to adopt Hauge’s proposed per se requirement

as a matter of state constitutional law have rejected it. See, e.g., State v. Flores,

185 P.3d 1067, 1070–71 (N.M. Ct. App. 2008) (collecting cases of states that have

rejected a per se requirement); Commonwealth v. Cleckley, 738 A.2d 427, 432

(Pa. 1999) (“Those states that have addressed this issue, however, have, for the

most part, rejected the notion that knowledge of one’s right to refuse consent to

a warrantless search is required under the applicable state constitution, opting

instead to follow the federal voluntariness standard which focuses on the totality

of the circumstances as opposed to any one factor.”). That the majority of other

states have analyzed this issue and declined to depart from the federal standard

speaks to the persuasiveness of the federal standard. Cf. Gaskins, 866 N.W.2d

at 33 (Appel, J., concurring specially) (“What is critical with state constitutional

precedents in other states, as with all cited authority, is the underlying

persuasive power of the reasoning.”).

Further, the leading case for adopting Hauge’s per se requirement, State

v. Ferrier, 960 P.2d 927, 932–33 (Wash. 1988), is based on what we have

described time and again as a “substantially different search and seizure

provision of the Washington Constitution.” Brown, 930 N.W.2d at 853; see also

State v. Storm, 898 N.W.2d 140, 153 (Iowa 2017) (“Washington’s constitution

also contains an express right to privacy. The Washington Supreme Court relied 21

on that privacy provision to require exigency. The Iowa Constitution lacks a

separate privacy provision.” (citations omitted)). Even many of those states that

have an explicit right to privacy provision in their state constitution have rejected

the argument that law enforcement must inform individuals of their right to

refuse consent to search. See State v. Forrester, 541 S.E.2d 837, 841 (S.C. 2001)

(“Eight of the nine other states that have an explicit right to privacy provision

contained in their constitution have rejected Forrester’s argument that suspects

must be informed of their right to refuse consent to search.”). Moreover, two of

the four states that Hauge cites for support have not gone so far as to adopt a

per se requirement that law enforcement must advise an individual of the right

to refuse a search; rather, they only require a showing that the consenting

individual was aware of the right to refuse consent. See Graves v. State,

708 So. 2d 858, 864 (Miss. 1997) (en banc); State v. Johnson, 346 A.2d 66, 68

(N.J. 1975). Overall, there is nothing compelling in the states Hauge cites that

merits our departure from federal precedent in this case.

Additionally, Hauge’s test is unworkable and contradicts the need to

“balance[] the competing interests of legitimate and effective police practices

against our society’s deep fundamental belief that the criminal law cannot be

used unfairly.” Lowe, 812 N.W.2d at 572; see also Welch v. Iowa Dep’t of Transp.,

801 N.W.2d 590, 601 (Iowa 2011) (“Law enforcement officials have to make many

quick decisions as to what the law requires where the stakes are high, involving

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

Consent searches are a valuable law enforcement tool that protects the security 22

of all. See Schneckloth, 412 U.S. at 225 (“Without such investigation, those who

were innocent might be falsely accused, those who were guilty might wholly

escape prosecution, and many crimes would go unsolved. In short, the security

of all would be diminished.”). “To approve such searches without the most careful

scrutiny would sanction the possibility of official coercion; to place artificial

restrictions upon such searches”—as Hauge asks us to do—“would jeopardize

their basic validity.” Id. at 229.

We have already discussed the differences between search and seizure

rights and trial rights as well as the problems with Hauge’s per se requirement

in our discussion of Schneckloth. In short, requiring an officer to inform the

subject of a search of the right to refuse can be summarized as impractical and

unrealistic. Consent searches are usually conducted by law enforcement officers

in unstructured environments, like alongside Highway 75 in this case. Id. at 232.

“It would be unrealistic to expect that in the informal, unstructured context of a

consent search, a policeman, upon pain of tainting the evidence obtained, could

make the detailed type of examination demanded by Johnson”—“an examination

that was designed for a trial judge in the structured atmosphere of a courtroom.”

Id. at 244, 245. Any rule requiring the State to prove the subject of the search

knew they had the right to refuse consent—whether that requires a per se

requirement that law enforcement inform the subject of this right or not—“would,

in practice, create serious doubt whether consent searches could continue to be

conducted.” Id. at 229. We should “not handicap our police by imposing a

de facto requirement to give such a warning [that the subject can refuse consent] 23

during pedestrian Terry stops or routine traffic stops.” Pals, 805 N.W.2d at 789

(Waterman, J., dissenting).

Further, despite the academic criticism of Schneckloth that Hauge cites

from the majority opinion in Pals, Hauge offers no insight into how his proffered

approach will alleviate those concerns. Critics of Schneckloth focus primarily on

the lack of clarity and predictability in the Schneckloth test and question whether

a per se requirement that officers must warn individuals of their right to refuse

would actually “be an unreasonable burden on law enforcement.” Id. at 781–82

(majority opinion). If anything, law enforcement’s increased use of body and dash

camera technology strengthens the case for the Schneckloth test because the

availability of that video makes it easier for courts to analyze the totality of the

circumstances by viewing the actual record of what happened in reviewing a

motion to suppress. We had it in this case, for example.

Hauge’s proposed rule only works in one direction: “If the advice was not

given, then the search is invalid. If it was given, the search could still be invalid

if the consent is shown to be involuntary for some other reason.” Lowe,

812 N.W.2d at 582 (Waterman, J., concurring specially). Thus, in those

situations when the officer informs individuals that they are free to refuse the

search and those individuals consent anyway, courts are still left to engage in

this allegedly unclear and unpredictable totality-of-the-circumstances analysis.

It also creates a new form of unpredictability “resulting from the break with Iowa

and federal search and seizure precedent and the lack of clarity over how far the

new advance warning requirement would be extended in future cases.” Id. 24

Moreover, Hauge has offered no information to suggest creating a new

per se requirement that officers must advise individuals of their right to refuse

consent is not an unreasonable burden on law enforcement as some critics of

Schneckloth maintain. We have no information from law enforcement about the

practicality of implementing this requirement in Iowa, but it is also not our role

to change the laws governing law enforcement policy when existing policies are

constitutional because we leave policy decisions to the legislature. Brown,

930 N.W.2d at 849 (“[I]t is our job to interpret the Iowa Constitution and not to

set policy for the State of Iowa.”). “Our elected legislature, in its wisdom, can

impose by statute a requirement that police tell drivers they have a right to say

no and go when asked for permission to search the vehicle.” Pals, 805 N.W.2d at

788–89 (Waterman, J., dissenting). But we do not reinterpret our state

constitution simply because there may be benefits to using a different law

enforcement practice.

We also do not reinterpret our state constitution merely because the

doctrine at issue is subject to academic criticism. Like virtually every other

concept of search and seizure jurisprudence, academic scholars disagree on the

merits of consent searches and some scholars advocate for consent searches and

highlight the doctrine’s merits. See, e.g., Daniel R. Williams, Misplaced Angst:

Another Look at Consent-Search Jurisprudence, 82 Ind. L.J. 69, 91–94 (2007);

Note, The Fourth Amendment and Antidilution: Confronting the Overlooked

Function of the Consent Search Doctrine, 119 Harv. L. Rev. 2187, 2197 (2006). 25

“[W]e do not make our determination by a majoritarian numbers game.” Gaskins,

866 N.W.2d at 33.

In conclusion, nothing Hauge argues justifies disregarding decades worth

of Iowa precedent employing a totality-of-the-circumstances test to analyze

consent searches or that a departure from federal precedent is necessary under

article I, section 8 of the Iowa Constitution. Accordingly, there is no per se

requirement to inform individuals that they are free to refuse consent to a search

or to show that individuals knew they had the right to refuse consent. Deputy

Petersen did not violate Hauge’s constitutional right under article I, section 8

when he did not inform Hauge that he could decline the request to search.

3. Whether Hauge’s consent was voluntary under our existing caselaw.

Hauge contends his consent was involuntary under the “Iowa version” of the

Schneckloth totality-of-the-circumstances test that a majority of the court

adopted in Pals. 805 N.W.2d at 782–83 (majority opinion). There, a law

enforcement officer conducted a traffic stop of Pals to enforce a municipal

ordinance. Id. at 770. When Pals was unable to produce proof of insurance, the

officer asked Pals to come back to his patrol car. Id. The officer subjected Pals to

a pat-down search before detaining Pals in the patrol car, where Pals sat in the

front passenger seat while the officer informed Pals that he needed to update the

address on his driver’s license, warned him about the municipal infraction he

had violated, and instructed him to call the sheriff’s office with his insurance

policy information to alleviate the need for a no-insurance ticket. Id. After Pals

agreed to do so, the officer asked Pals, “Say you don’t have anything, any 26

weapons or drugs or anything like that in your vehicle, do you? Do you care if I

take a look?” Id. Pals responded, “[S]ure, go ahead.” Id. (alteration in original).

The search of the vehicle revealed marijuana, which led to Pals’s conviction for

possession of a controlled substance after the district court denied his motion to

suppress the evidence. Id. at 770–71.

On appeal, a majority of our court concluded that Pals did not voluntarily

consent to the search of his vehicle under article I, section 8 of the Iowa

Constitution. The majority considered four factors, including the “projected

authority” the officer exerted over Pals during the pat-down search and the

“inherently coercive” setting of Pals’s detainment in the police vehicle on the side

of a public highway. Id. at 782–83. Additionally, it observed that the officer had

not advised Pals that the officer had “concluded business related to the stop at

the time he asked for consent,” which would have made the stop “a less coercive

voluntary encounter,” and the “lack of closure of the original purpose of this stop

makes the request for consent more threatening.” Id. at 783. Finally, the majority

asserted,

The lack of any statement that Pals was free to leave or that he could decline to give his consent to the search in this case is, at a minimum, a strong factor cutting against the voluntariness of the search, particularly in the context of a traffic stop where the individual is seized in the front seat of a police car. A warning of rights would serve to significantly neutralize the coercive setting in this case.

Id. (citation omitted).

In doing so, it proclaimed to apply an “Iowa version” of the Schneckloth

totality-of-the-circumstances test, which it explained was similar to the Ohio 27

Supreme Court’s ruling in State v. Robinette, 685 N.E.2d 762 (Ohio 1997). Pals,

805 N.W.2d at 782–83. In Robinette, the Ohio Supreme Court held,

Once an individual has been unlawfully detained by law enforcement, for his or her consent to be considered an independent act of free will, the totality of the circumstances must clearly demonstrate that a reasonable person would believe that he or she had the freedom to refuse to answer further questions and could in fact leave.

685 N.E.2d at 771.

It is important to note that the State seeks to differentiate this case from

Pals on factual grounds, but it stops short of asking us to overrule Pals. We do

need to clarify what exactly the “Iowa version” of the Schneckloth test requires

because Pals offers little insight into how this “Iowa version” differs to provide

more protection than Schneckloth and how courts should apply it to analyze

consent searches. See Est. of McFarlin v. State, 881 N.W.2d 51, 59 (Iowa 2016)

(“We do not ordinarily overrule our precedent sua sponte.”). In a later case, one

member of the Pals majority described the “Iowa version” as “insist[ing] on a

more realistic analysis of what amounts to ‘voluntary consent.’ ” Baldon,

829 N.W.2d at 823. This appears to derive from the language in Robinette that

“the totality of the circumstances must clearly demonstrate that a reasonable

person would believe that he or she had the freedom to refuse to answer further

questions and could in fact leave,” 685 N.E.2d at 771 (emphasis added), perhaps

giving the Pals majority the impression that the Ohio Supreme Court applied a

more heightened totality-of-the-circumstances analysis than the Supreme Court

in Schneckloth. But the Ohio Supreme Court cited Schneckloth for that principle

and made clear in Robinette that the Ohio Constitution’s search and seizure 28

provision “affords protections that are coextensive with those provided by the

Fourth Amendment” and “the totality-of-the circumstances test is controlling in

an unlawful detention to determine whether permission to search a vehicle is

voluntary.” Id.

Additionally, Schneckloth itself requires courts to “carefully scrutinize[]”

the conditions that led to the consent in determining whether the consent was

voluntary. 412 U.S. at 248. It is arbitrary and of no help to lower courts for us

to simply say the “Iowa version” of the Schneckloth test requires courts to even

more carefully scrutinize the circumstances than a federal court would scrutinize

the same situation, especially when analyzing the totality of the circumstances

is inherently subjective and limited to the unique facts of each case. All things

considered, any difference between the “realistic analysis” set forth in Pals under

the Iowa Constitution and the “careful[] scrutin[y]” required in Schneckloth under

the Fourth Amendment boils down to semantics.

Regardless of how the totality-of-the-circumstances test is described, each

case requires a conscientious examination of the conditions in which the consent

was given with no one condition being dispositive. Going forward, courts should

continue to apply our decades of precedent analyzing consent searches under

the totality-of-the-circumstances test established in Schneckloth, which we have

held involves considering an unlimited universe of factors, including

personal characteristics of the [consenter], such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of detention or questioning, the substance of any discussion between the [consenter] and police preceding the consent, whether the 29

[consenter] was free to leave or was subject to restraint, and whether the [consenter’s] contemporaneous reaction to the search was consistent with consent.

Lane, 726 N.W.2d at 378 (quoting Va Lerie, 424 F.3d at 709) (alterations in

original).

Relying on Pals, Hauge points to the following four factors in claiming his

consent was not voluntary: (1) the projected authority Deputy Petersen displayed

over Hauge in ordering him out of the vehicle, (2) the setting of the traffic stop

on a public road, (3) that Deputy Petersen never informed Hauge that he was

free to leave or could refuse to consent to the search, and (4) the lack of closure

of the original purpose of the stop. Hauge is correct that we relied on these four

factors in determining consent was not voluntary in Pals, but he errs in treating

these four factors as dispositive and overlooks factual differences in his case

from Pals.

The consent at issue in Pals to search the vehicle occurred after Pals had

already consented to and endured a pat-down search, obeyed commands to

empty his pockets, been detained in a police vehicle away from his vehicle parked

on the side of the highway, and already received a verbal warning from the officer

for the civil infraction responsible for the traffic stop. Id. at 770, 782–83. In

contrast, Deputy Petersen displayed limited authority over Hauge prior to asking

him if he had any weapons on him and whether he could check Hauge for

weapons. He merely asked Hauge for identification and to exit the vehicle. Hauge

seemingly was not intimidated by this projected authority because he responded

assertively and questioned whether he was being detained. Notably, Deputy 30

Petersen informed Hauge that he was being detained after Hauge did not

immediately exit the vehicle, but this alone is not dispositive because the words

“detention” and “seizure” are interchangeable. See, e.g., Warren, 955 N.W.2d at

859; Lowe, 812 N.W.2d at 571 (majority opinion) (“After reviewing the totality of

the circumstances, we determine that Audsley was not ‘seized’ or detained in

violation of the Fourth Amendment.”); State v. Kreps, 650 N.W.2d 636, 641 (Iowa

2002) (“Such a stop [for investigatory purposes] and a subsequent detention—

even though temporary and for a limited purpose—is a ‘seizure’ within the

meaning of the Fourth Amendment.”); State v. Gully, 346 N.W.2d 514, 516 (Iowa

1984) (en banc) (equating seizures to “brief, on-the-spot detentions”).

As we noted in State v. Warren, a “ ‘[t]emporary 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’

the Fourth Amendment.” 955 N.W.2d at 859 (alteration in original) (quoting

Whren, 517 U.S. at 809–10. By this logic, Deputy Petersen was not being

misleading when he told Hauge that he was being detained because Hauge was

briefly being seized as part of a lawful traffic stop for a brief period to investigate

a traffic violation. This intrusion was justified to facilitate the lawful arrest of the

back-seat passenger. Becker, 458 N.W.2d at 607.

In any event, Deputy Petersen only informed Hauge that he was being

detained as far as Hauge was required to exit the vehicle. It was after Hauge

exited the vehicle that Deputy Petersen asked Hauge if he had any weapons on

him and whether he could check Hauge for any weapons. Ultimately, “[t]here is 31

no evidence of threats or physical intimidation,” and “[t]he record does not

disclose that the officers made any misrepresentations” to Hauge about their

authority to search Hauge without his consent or attempted to create the false

impression that there would be no adverse consequences resulting from the

search. Lowe, 812 N.W.2d at 574; see also Reinier, 628 N.W.2d at 469 (“These

comments [the officers made about not looking for small drug quantities] bear

upon the voluntariness of the consent because they are limitations on the nature

of the crime under investigation and the objects sought by the search. The

comments also tend to minimize the seriousness of possessing drugs for personal

use or casual sales, and subtly create a false belief that no adverse consequences

will result from a search if there is no meth lab in the house and the occupants

are not major dealers.” (citation omitted)).

Unlike the individual in Pals, Hauge was allowed to stand next to the

vehicle instead of being detained in Deputy Petersen’s police vehicle when

Deputy Petersen sought his consent and Hauge immediately answered “Yup”

without any hesitation and set his soda down to help facilitate the search. See

Lane, 726 N.W.2d at 378 (listing the consentor’s contemporaneous reaction to

the request to search as a factor to consider). Further, Deputy Petersen only had

to ask Hauge once for consent, and he did it in a casual manner instead of

commanding it. See Lowe, 812 N.W.2d at 574 (considering the number of times

the officers asked for consent before the consent was granted). Although the

traffic stop was not completed, the time between when Officer Scherle made the

traffic stop and Deputy Petersen asked Hauge for consent to search was only a 32

matter of a few minutes. See id. (noting the duration of the questioning as a

factor in determining the voluntariness of consent). Nothing in the record

suggests Hauge was not of sound mind or too impaired to consent, and his

questions to Deputy Petersen suggest he was aware of his rights even though

Deputy Petersen did not inform him that he could decline the pat-down.

Cumulatively, Hauge’s behavior was consistent with consent, and the

interaction between Hauge and Deputy Petersen was fairly benign leading up to

the request to search. Therefore, we affirm the district court’s denial of Hauge’s

motion to suppress the evidence obtained from the consensual search and

Hauge’s subsequent conviction.

IV. Conclusion.

We affirm the district court’s denial of Hauge’s motion to suppress and

Hauge’s conviction for the aforementioned reasons.

AFFIRMED.

Waterman, Mansfield, McDonald, Oxley, and McDermott, JJ., join this

opinion. Appel, J., files a dissenting opinion. 33

#20–1568, State v. Hauge

APPEL, Justice (dissenting).

I respectfully dissent. This case on the surface is a run-of-the-mill traffic

stop in rural Iowa. But run-of-the-mill cases can have profound implications for

the larger system of law. As will be seen below, that is the case here.

This warrantless search case arising out of a routine traffic stop is a

companion case to State v. Williams.3 The search and seizure concepts described

in the Williams introduction are fully applicable here. Namely, that the search

and seizure provisions of our constitutions are designed to restrain government

power, that broad discretionary government power to search and seize is

anathema to constitutional principles, that our search and seizure provisions

assign to the judicial branch—and not police officers—the power to draw the

lines in the context of the search and seizure power of government, and that any

exceptions to the discretional limiting and constitutionally required warrant

requirement based on probable cause should be narrowly drawn to not engulf

any of the above principles.

This case also involves a “consent” search. A few introductory comments

will set the stage for a more detailed review of this important issue.

First, “consent” searches are now pervasive. Although there is no precise

data, one source from the police estimated that up to ninety percent of searches

3State v. Williams, ___ N.W.2d ___ (Iowa 2022). 34

are now based on consent.4 If so, all the other efforts to limit and control

government power to search and seize become largely meaningless.5 The bottom

line here is that the scope and interpretation of search and seizure principles in

the context of consent searches is critically important if the historic protections

to liberty and indiscriminate treatment are to have any meaning in the daily life

of our nation.

Second, other areas of law may inform how to structure any concept of

consent in the context of search and seizure. For example, the United States

Supreme Court’s approach to the consent search under the Fourth Amendment

in Schneckloth v. Bustamonte can only be fully understood when compared to its

approach to the coerced confessions under the Fifth Amendment in Miranda.

The scope of application of the Fourth Amendment’s search and seizure

principles is influenced by the equality principles welded onto our Constitution

in the Fourteenth Amendment. Finally, what does the approach to waiver in the

Sixth Amendment context offer in the analysis? We ought not to put on narrow

blinders that prevent us from viewing the consent question from a broader

perspective.

Third, the warrant requirement based on probable cause by a neutral

magistrate is the heart of search and seizure law. Contrary to suggestions in

4Richard Van Duizend, L. Paul Sutton, & Charlotte A. Carter, The Search Warrant Process

19 (1984) (available at https://ncsc.contentdm.oclc.org/digital/api/collection/criminal/id/ 3/download [https://perma.cc/F4YF-U4RV]). 5George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees

the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1505 (2005). 35

recent caselaw,6 “reasonability” in the modern, pragmatic sense is not the

touchstone of the Fourth Amendment or article I, section 8 of the Iowa

Constitution. It just ain’t so. As Professor Thomas Y. Davies has shown,7 the

term “reasonability” used by contemporary authorities means “contrary to

reason” or “unlawful.”8 Reasonability was not the accordion concept to be

employed as a flexible tool to dismantle the immutable, constitutionally based

search and seizure protections to advance criminal law enforcement’s policy goal.

For years, we repeatedly recognized that the heart of search and seizure law was

the warrant requirement based on probable cause. I adhere to the view that what

has been called the “warrant preference approach” to search and seizure law is

the best approach.

Fourth, I do not agree with the United States Supreme Court’s

characterization of consent as an “exception” to the warrant and probable cause

requirement if police act reasonably.9 This framework is incorrect. In my view,

the situation is far simpler and more consistent with other areas of law. When a

person knowingly and intelligently declines to assert search and seizure rights,

a waiver occurs. There is no search where the property owner provides the

government with permission to look around. The terms of the Fourth

6Illinois v. Rodriguez, 497 U.S. 177, 183–86 (1990). 7Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 736 (1999). 8Id. at 742. 9Illinois v. Rodriguez, 497 U.S. at 186. 36

Amendment or article I, section 8 of the Iowa Constitution related to search and

seizure are not implicated when the holder of the right waives that right.

Fifth, it is wrongheaded and certainly ahistorical to evaluate the propriety

of search and seizure law through the lens of its impact on the admission of

evidence in a criminal trial. The purpose of search and seizure law is not to

provide for fair trials or even to structure the process of criminal trials. Instead,

the purpose is to limit arbitrary government power to search and seize. The

exclusionary rule is simply a remedy that flows from a violation of search and

seizure law through the arbitrary exercise of government power. So, in evaluating

an approach to search and seizure, the fundamental question is whether the

approach serves to eliminate broad discretion in the hands of government

officials and avoids discriminatory application of government power. If the

approach to search and seizure law encourages, or does not contain, the

potential of arbitrary exercise of government power, it is time to reevaluate the

approach.

Sixth, search and seizure is the last area of the law where we should

reflexively follow the path of the United States Supreme Court. The United States

Supreme Court has handed down a series of cases—Whren v. United States,10

Terry v. Ohio,11 Atwater v. City of Lago Vista,12 to name just a few—that

dramatically undercut constitutional protections in the name of pragmatic needs

10Whren v. United States, 517 U.S. 806 (1996). 11Terry v. Ohio, 392 U.S. 1 (1968). 12Atwater v. City of Lago Vista, 532 U.S. 318 (2001). 37

of law enforcement. These cases, and many others, simply are not the persuasive

authority for us to follow under the Iowa Constitution. Although in the past we

engaged in what amounted to lockstep, or near lockstep, with the federal

precedent in the search and seizure area, we abandoned that historical and

discredited approach in State v. Ochoa.13 Of course, it never made sense from a

logical or historical point of view to abandon our federalist system, a system

specifically designed to promote diversity in order to promote uniformity of Iowa

law with the highly diluted individual rights approaches of the United States

Supreme Court. We have given the lockstep interpretations of Iowa constitutional

law, particularly in the area of search and seizure, a respectful burial.14 That

grave should be left unmolested. The court has the power to dig it up, but we

should recognize the unquestionably independent nature of the Iowa state

constitution, our general obligation as judges to uphold its independent

provisions, and our specific historic precedents that demand that we approach

the search and seizure provisions in the Iowa Constitution with a broad and

liberal spirit.

Finally, I do not approach constitutional provisions related to search and

seizure with a wistful sense of regret. The search and seizure provisions of our

constitutions should not be regarded as unfortunate historical oddities to be

neutered and cauterized by courts to advance contemporary majoritarian public

policy goals of prohibition, drug enforcement, or criminal law generally. I regard

13State v. Ochoa, 792 N.W.2d 260, 264–67 (Iowa 2010). 14See id. 38

search and seizure limitations as a fundamental bulwark protecting individual

liberty that is at the very heart of our constitutional scheme. I subscribe to the

memorable words of Justice Jackson, written after he served as Chief Prosecutor

at Nuremberg:

These . . . are not mere second-class rights but belong in the catalogue of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.15

Even before the collapse of legal order in central Europe in the twentieth

century, we recognized that the search and seizure provisions of the Iowa

Constitution should be interpreted in “a broad and liberal spirit” to protect

citizens.16 In candor, the majority does not attempt to claim that it interprets our

search and seizure provisions in a “broad and liberal spirit.” I object not to the

majority’s application of its “broad and liberal spirit” but to its abandonment.

I. Introduction.

A. Facts. On June 14, 2019, at about 10:30 p.m., Officer Scherle was

traveling on Highway 75 in Merrill, Iowa, when he passed a vehicle. At a

suppression hearing in the case, Officer Scherle testified that all occupants of

the vehicle were staring at him as they passed, with the back, female passenger

15Brinegar v. United States, 338 U.S. 160, 180–81 (1949) (Jackson, J., dissenting). 16State v. Height, 91 N.W. 935, 937 (Iowa 1902). 39

continuing to look at him. Officer Scherle followed the vehicle on the highway

and noticed the vehicle overtaking another vehicle. Officer Scherle clocked the

vehicle speeding and initiated a traffic stop. Another officer, Deputy Peterson,

arrived at the scene to assist.

Deputy Peterson noticed Brent Hauge, the front-seat passenger in the

vehicle. Peterson testified that Hauge was looking at the floor and did not attempt

to make eye contact with him. Peterson stated that he saw Hauge grab a lottery

ticket from the door compartment and stare at it, assisted by the light Deputy

Peterson was shining in his direction.

Officer Scherle learned from a background check that the backseat female

passenger had a mittimus warrant for her arrest for failure to serve a sentence

arising out of a charge of domestic abuse with a deadly weapon. At that point,

officers decided to ask all persons to exit the vehicle. Deputy Peterson testified

that Hauge was asked to leave the front seat because he was “reaching multiple

times out of my line of sight, the deflection, [and] not wanting to make eye

contact.” Deputy Peterson, however, did not notice any objects on Hauge’s

person.

Once outside the vehicle, Deputy Peterson asked Hauge if he had any

guns. Hauge stated he did not. Deputy Peterson told Hauge, however, that while

he was not under arrest, he was detained. He then patted Hauge down and, while

doing so, felt an object in the front right pocket. Deputy Peterson testified that

he recognized the object as a pipe and a small plastic bag of a crystal-like 40

substance believed to be methamphetamine. Hauge was charged with possession

of methamphetamine, second offense.

Hauge filed a motion to suppress the evidence uncovered by Deputy

Peterson in his pat-down search. After a hearing, the district court concluded

that Deputy Peterson did not have reason to believe that Hauge had a weapon

and therefore was not allowed to complete a pat-down. However, the district

court concluded that Hauge consented to the search and, as a result, a

reasonable basis for the pat-down was not required. The district court further

concluded that the scope of the pat-down was not exceeded when Deputy

Peterson searched Hauge’s pocket based on the “plain feel” exception to the

warrant requirement. Finally, the district court concluded that because Hauge

was not provided with Miranda rights after being detained, any statements made

by him pertaining to the identification of the object found in his pocket would

not be admissible. After a bench trial, Hauge was found guilty. He appealed.

B. Issues on Appeal. Hauge raises several issues on appeal. First, he

maintains that the officers had no authority to order him out of the vehicle.

Although he recognizes that the United States Supreme Court has embraced the

view that passengers may automatically be asked to exit a stopped vehicle in

Maryland v. Wilson17 and Pennsylvania v. Mimms,18 he notes that prior to these

federal cases, we required in State v. Becker19 that the state show that law

17Maryland v. Wilson, 519 U.S. 408, 413–15 (1997). 18Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam). 19State v. Becker, 458 N.W.2d 604, 607–08 (Iowa 1990), abrogated on other grounds by

Knowles v. Iowa, 525 U.S. 113 (1998). 41

enforcement has reasonable suspicion that a passenger has committed a crime

before being ordered to exit a vehicle. Hauge urges us not to follow the federal

precedent but instead to adhere to our original approach in Becker.

Second, Hauge challenges the district court’s finding that he voluntarily

consented to search. He cites extensively this court’s discussion of the consent

issue in State v. Pals.20 In Pals, we noted that other states, under their state

constitutions, have required a Miranda-type statement that persons have a right

to refuse consent.21 He further notes that even if such a statement is not

required, we should nonetheless apply the “knowing and voluntary” test utilized

by the United States Supreme Court in Johnson v. Zerbst.22 Finally, even if we

do not adopt a Johnson waiver standard, Hauge urges that we apply the totality-

of-the-circumstances test of Schneckloth v. Bustamonte23 “with teeth,” just as we

did in Pals.

The State resists. The State urges us to accept the federal authority of

Wilson24 and Mimms25 with respect to the power of officers to order passengers

to exit the vehicle. In the alternative, the State claims that even under the more

stringent test in Becker,26 the State had a sufficient cause to order Hauge to exit

because the person with the outstanding warrant was seated in the backseat of

20State v. Pals, 805 N.W.2d 767, 777–84 (Iowa 2011). 21Id. at 779. 22Johnson v. Zerbst, 304 U.S. 458, 464 (1938). 23Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973). 24Wilson, 519 U.S. at 413–15. 25Mimms, 434 U.S. at 111. 26Becker, 458 N.W.2d at 607–08. 42

a two-door vehicle and it would have been less safe to have her exit on the driver’s

side adjacent to the roadway. On the issue of the pat-down search, the State

asserts that Hauge voluntarily consented to the search. Finally, in any event, the

State asserts, contrary to the findings of the district court, that there was

sufficient reasonable suspicion that Hauge was armed and dangerous.

The majority declines to address the larger issue of per se authority to

order passengers to exit a stopped vehicle under Wilson and Mimms. Instead, the

majority concludes the exit of Hauge was necessary in order to facilitate the

release of the backseat passenger. Once lawfully removing Hague from the

vehicle, the remaining dispositive issue for the majority is whether Hauge

lawfully consented to the pat-down search that resulted in the discovery of the

pipe and plastic bag with meth-like crystals.

For the following reasons, I dissent from the majority’s view that Hauge in

this case voluntarily consented to the search. As a result, I would vacate his

conviction and remand the matter to the district court.

II. Overview of Consent Searches.

A. Concept of Consent, Voluntariness, and Coercion in the Law. The

meanings of the closely related and overlapping concepts of consent, waiver,

voluntariness, and coercion have arisen in a number of legal contexts. For

instance, there is the concept of “informed consent” with respect to medical

procedures.27 As a general proposition, in order to obtain valid consent for

27See, e.g., Andersen v. Khanna, 913 N.W.2d 526, 537 (Iowa 2018). 43

invasive medical procedures, the patient must give what has been called

“informed consent.”28 “Informed consent” means that the patient is advised of

the nature of the procedure, the probable benefits, the risks and hazards, and

the anticipated benefits.29 Informed consent promotes personal autonomy and

personal choice.30 For purposes of informed consent for a medical procedure,

there is no such thing as consent by ignorant people.

The effectiveness of consent has been explored in the context of power

imbalances in a number of settings.31 For example, under the law of contracts,

the doctrine of contracts of adhesion invalidates provisions apparently agreed to

when the power imbalance is overwhelming.32 A contract of adhesion is “[a]

standard-form contract prepared by one party, to be signed by another party in

a weaker position, usually a consumer, who adheres to the contract with little

choice about the terms.”33 The terms of a contract of adhesion may not be

enforced where “there is a disturbing showing of unfairness, undue oppression,

or unconscionability.”34

28Id.

29Christo Lassiter, Consent to Search by Ignorant People, 39 Tex. Tech. L. Rev. 1171, 1192

(2007) [hereinafter Lassiter]. 30Washington v. Glucksberg, 521 U.S. 702, 724–25 (1997). 31Lassiter, 39 Tex. Tech. L. Rev. at 1189–91 (discussing power imbalance as a basis to

vitiate consent). 32Zigrang v. U.S. Bancorp Piper Jaffray, Inc., 123 P.3d 237, 240 (Mont. 2005). 33Adhesion Contract, Black’s Law Dictionary 403 (11th ed. 2019). 34Vladimir R. Rossman & Morton Moskin, eds., Commercial Contracts: Strategies for

Drafting and Negotiating § 8.06[A] (2d ed. 2021 & 2022-1 Supp.) (quoting Klos v. Lotnicze, 133 F.3d 164, 169 (2d Cir. 1997)). 44

The question of power imbalances on consent has been explored in other

areas of law. With respect to sexual conduct, there has been some recent

evolution of law to explicitly recognize the role of power imbalances on the

question of consent.35 Feminists argue that power imbalance can explain why a

woman does not say “no” or does not physically resist an unwanted sexual

encounter.36 The goal of rape law, according to the theory, is to promote

autonomy and self-determination.37 Because of the power imbalance, according

to the theory, what is important for rape law’s purposes is “nonconsent,” not

“noncoercion” in the physical sense.38

The above examples show that “consent” can involve the consideration of

relationships as well as specific verbal content. Consent is a fairly demanding

concept; it implies that the person alleged to be consenting has a real choice in

the matter at hand. The concept of consent is tied to the goal of preserving a

“true choice”39 and the personal autonomy of the individual.

The term “voluntary” sometimes appears in conjunction with, or separately

from, the term consent. The term “voluntary” is also not necessarily precise. It is

35Lassiter,39 Tex. Tech. L. Rev. at 1190 n.141 (“Feminist scholars argue that women are unable to freely consent to heterosexual relations because women have been raised from childhood to accept the dominant power of men and to be sexually submissive.”). 36Josephine Ross, Blaming the Victim: ‘Consent’ Within the Fourth Amendment and Rape

Law, 26 Harv. J. Racial & Ethnic Just. 1, 43–61 (2010). 37Id. at 12. 38Id. at 12–13. 39Emps. of Dep’t of Pub. Health & Welfare v. Dep’t of Pub. Health & Welfare, 411 U.S. 279, 296 (1973) (Marshall, J., concurring in the result) (noting that the state could not have a true choice at all if it had to choose between consenting to federal suits or stopping some important public services; this lack of true choice meant the state did not consent). 45

sometimes narrowly claimed that an act is voluntary if there is a lack of

coercion.40 But what amounts to coercion? Further, coercion is sometimes said

to be determined by a totality-of-circumstances-type test. Whether an act is

“voluntary” or “involuntary” because of some coercive pressure is not something

that can be decided by any formula. Judges who generally agree on the facts in

a voluntariness context may sharply disagree on their significance in

determining voluntariness.41

Finally, there is the term “waiver,” a species, if you will, of consent. The

United States Supreme Court considered a case where the defendants did not

have the assistance of counsel during the trial in Johnson v. Zerbst.42 The

defendant had been convicted of possessing and uttering counterfeit money and

did not have a lawyer at trial.43 On collateral attack, the federal district court

ruled that the lack of counsel at trial was a matter that could be raised only on

appeal, not in a collateral proceeding.44 The United States Court of Appeals for

the Fifth Circuit affirmed.45

40Schneckloth, 412 U.S. at 227. 41See State v. Baldon, 829 N.W.2d 785, 803 (Iowa 2013) (resulting in a 4–3 divide on issue of voluntariness of consent to search in parole agreement which must be executed to obtain release); State v. Iowa Dist. Ct., 801 N.W.2d 513, 528–29 (Iowa 2011) (resulting in a 4–3 split on whether requirement that defendant attend sex offender treatment program, where admitting past behavior is a part of the program, in order to earn good time credits violates privilege against self-incrimination). 42Johnson, 304 U.S. 458. 43Id. at 459. 44Id.

45Id. 46

In a short opinion by Justice Black, the Supreme Court first resolved the

jurisdictional question by concluding that if the defendant was deprived of

counsel at trial, the proceeding was void and the courts without jurisdiction.46

Thus, the lack of counsel at the underlying trial could be addressed on collateral

attack.47 Justice Black then proceeded to address the question of whether the

defendant waived his right to counsel. Justice Black noted that “courts indulge

every reasonable presumption against wavier” of fundamental constitutional

rights and that courts “do not presume acquiescence in the loss of fundamental

rights.”48 According to Justice Black:

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.49

As plainly seen above, “waiver” includes a requirement that it be

knowledgeable—meaning that a person must know of the available options and

their consequences—and it must be intelligent, which certainly means

something like reasonable under the circumstances. It has both subjective

(knowledge) and objective (reasonable under the circumstances) components.

46Id. at 463 (“The Sixth Amendment withholds from federal courts, in all criminal

proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” (footnote omitted)). 47Id. at 464. 48Id.(first quoting Aetna Ins. v. Kennedy to Use of Bogash, 301 U.S. 389, 393 (1937), second quoting Ohio Bell Tel. Co. v. Pub. Utils. Comm’n of Ohio, 301 U.S. 292, 307 (1937)). 49Id. 47

The terms “consent,” “voluntary,” “coercion,” and “waiver” are all obviously

related and overlapped. In court opinions, they may be used with a lack of

precision. Even within one judicial opinion, the terms may be used

inconsistently. Further, the totality-of-circumstances-type test applying those

terms is often itself vague and lacking in predictability.

B. “Consent,” Interrogation, and the Rise of Miranda v. Arizona.

1. Pre-Miranda approach. In the years prior to Miranda v. Arizona,50 the

state and federal courts reviewed the voluntariness of confessions in many cases.

As a general matter, the courts utilized a loosely described “totality of the

circumstances” voluntariness test that considered all of the facts and the

circumstances of the case.51 It was not unusual that in many cases (including

those involving the death penalty) that state courts upheld even questionable

interrogation methods.52

The dean of search and seizure law, Professor Yale Kamisar, has pointed

to Davis v. North Carolina53 as an example of how the “totality of the

circumstances” approach worked, or did not work.54 In Davis, the defendant was

held incommunicado by police for sixteen days.55 Davis was advised of his right

50Miranda v. Arizona, 384 U.S. 436 (1966). 51Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It—And What Happened to It, 5 Ohio St. J. Crim. L. 163, 163 (2007) [hereinafter Kamisar]. 52Id. at 167–68 (pointing out that lower courts are often prone to accepting police’s claims

and easily rejecting defendants’ versions of the story; noting also that in many death penalty cases that eventually made it to the Supreme Court, state courts upheld even the most outrageous interrogation methods). 53Davis v. North Carolina, 384 U.S. 737 (1966). 54Kamisar, 5 Ohio St. J. Crim. L. at 166–68. 55Davis, 384 U.S. at 739. 48

not to make a statement only on the sixteenth day, and only after he had already

confessed orally before he was to sign his written statement.56 He was later

convicted and sentenced to death.57 The interrogation, however, was upheld as

voluntary by the state and federal courts in North Carolina.58 In short, under the

“totality of the circumstances,” the state’s utter determination to uphold the

conviction could overshadow objective facts that point in the direction of the lack

of voluntariness.

The Supreme Court reviewed the case and ultimately reversed the

conviction.59 Professor Kamisar questioned how many coerced confessions were

found voluntary in the lower courts and yet were not reversed because of the

narrow channels provided by the often discretionary appellate review process.60

Certainly, a case-by-case review of many confession cases by the United States

Supreme Court was simply not possible while lower courts, even in death penalty

cases like Davis, were inclined to uphold even very coercive police practices.61

Professor Kamisar graced the pages of the Iowa Law Review with commentary

that explored the unmanageability problem.62

56Id. at 739–40. 57Id. at 738. 58Id. at 738–39. 59Id. at 752–53. 60Kamisar, 5 Ohio St. J. Crim. L. at 168 (noting that in the thirty years pre-Miranda, among all the state confession cases, “[o]nly one condemned person out of four had his case reviewed by the highest court in the land and only one out of eight obtained a reversal”). 61Id. at 168–69. 62Yale Kamisar, Gates, ‘Probable Cause,’ ‘Good Faith,’ and Beyond, 69 Iowa L. Rev. 551,

570–71 (1984). 49

In addition to the impracticability of case-by-case review of confession

cases, the spongy nature of the test of voluntariness complicated appellate

review. The pre-Miranda voluntariness cases came to different conclusions on

facts that seem hardly distinguishable.63 As noted by Professor Geoffrey Stone,

the inability “to articulate a clear and predictable definition of ‘voluntariness,’

the apparent persistence of state courts in utilizing the ambiguity of the concept

to validate confessions of doubtful constitutionality, and the resultant burden

on its own workload” were factors that led the Supreme Court to seek to develop

a more manageable test.64

2. Bright-line Miranda v. Arizona rule to regulate interrogations. The rest,

as they say, is history. The Supreme Court decided Miranda. The Court required

that when a suspect was in custody, the now well-known Miranda warning must

be given. The Court resolved the problem of its inability to review a plethora of

cases and the ambiguity of its prior cases with a rule of disclosure. The inability

of the Supreme Court to review the many cases, particularly in southern states,

where coerced confessions were upheld under plastic application of the “totality

of the circumstances” test, was resolved in favor of a “bright line” rule.

63Professor Brian R. Gallini invites us to compare as virtually indistinguishable Spano v.

New York, 360 U.S. 315, 323–24 (1959) (concluding that a confessing defendant’s will was overborne by police tactics that included exploitation of defendant’s poor education and emotional nature, relied on multiple lengthy interrogations, denied counsel, and relied on trickery from a false friend), with Lisenba v. California, 314 U.S. 219, 292 (1941) (concluding that an uneducated defendant’s confession was voluntary notwithstanding police interrogation, physical contact, sleep deprivation, prolonged interrogation, and denial of counsel). See Brian R. Gallini, Schneckloth v. Bustamonte: History’s Unspoken Fourth Amendment Anomaly, 79 Tenn. L. Rev. 233, 243 n.75 (2012) [hereinafter Gallini]. 64Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. 99,

102–03 (1977). 50

Much has been written about Miranda, and I make only a few salient

points here. Quoting Weems v. United States, Chief Justice Warren emphasized

that with respect to individual rights, “[t]he meaning and vitality of the

Constitution have developed against narrow and restrictive construction.”65 The

Chief Justice noted that those who framed the Constitution and the Bill of Rights

“were ever aware of subtle encroachments on individual liberty”66 and “knew that

‘illegitimate and unconstitutional practices get their first footing . . . by silent

approaches and slight deviations from legal modes of procedure.’ ”67 The privilege

against incrimination “has consistently been accorded a liberal construction.”68

Chief Justice Warren reviewed the history of brutal confessions revealed

by the Wickersham Report69 but noted that the modern practice of in-custody

interrogation involves psychological rather than physical coercion.70 Yet, the

right against self-incrimination was part of a larger principle, namely, the

individual’s substantive right “to a private enclave where he may lead a private

life.”71

65Miranda, 384 U.S. at 443–44 (quoting Weems v. United States, 217 U.S. 349, 373 (1910)). 66Id. at 459. 67Id. (omission in original) (quoting Boyd v. United States, 116 U.S. 616, 635 (1886), overruled in part on other grounds by Warden v. Hayden, 387 U.S. 294 (1967)). 68Id. at 461. 69Id. at 445. 70Id. at 448. 71Id. at 460 (quoting United States v. Grunewald, 233 F.2d 556, 581–82 (2d Cir. 1956)

(Frank, J., dissenting), rev’d, 353 U.S. 391 (1957)). 51

In considering whether the privilege against self-incrimination had been

violated in cases before the Court, Chief Justice Warren repeatedly used the

concept of waiver. The Chief Justice favorably cited Johnson v. Zerbst, noting

that the Court had “always set high standards of proof for the waiver of

constitutional rights.”72 Reasoning from Johnson, the Chief Justice observed that

“a valid waiver will not be presumed simply from the silence of the accused.”73

The Chief Justice noted that “there is no room for the contention that the

privilege is waived if the individual answers some questions or gives some

information” prior to invoking his right to remain silent.74 Any evidence that the

person was threatened, tricked, or cajoled into “waiver” would show that the

defendant “did not voluntarily waive his privilege.”75 The Chief Justice stressed

that “[t]he warnings required and the waiver necessary . . . are . . . prerequisites

to the admissibility of any statement made by a defendant.”76

In one passage, however, the Chief Justice used the language of

voluntariness. According to the Chief Justice, “[a]ny statement given freely and

voluntarily without any compelling influences is, of course, admissible.”77 It

seems, however, that the ambiguous phraseology was not designed to depart

72Id. at 475. 73Id.

74Id. at 475–76. 75Id. at 476. 76Id.

77Id. at 478. 52

from the requirements of waiver under Johnson but merely to restate some of the

elements required in the context of the case.

In order to address the central question of whether in-custody

interrogations were unconstitutional, the Chief Justice developed a mandatory

four-pronged warning requirement. The Chief Justice declared:

[W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact.78

Clearly, the Warren Court was aware of the problems of the pre-Miranda,

case-by-case method in trying to determine the constitutionality of in-custody

interrogation and sought to add a sharper element to the mix. In addition, the

Chief Justice noted that “a warning at the time of the interrogation is

indispensable to overcome [the] pressures and to insure that the individual

knows he is free to exercise the privilege at that point in time.”79 Again, the Chief

Justice was sensitive to the psychological pressures that could be placed on a

criminal defendant.

3. Aftermath of Miranda. At the time, it would be an understatement to say

that the reaction to Miranda in law enforcement quarters was highly critical and

way out of proportion. The proverbial sky has fallen many times when a court

decision viewed by law enforcement as favorable to a criminal defendant appears.

78Id. at 468–69 (footnote omitted). 79Id. at 469. 53

Miranda was no exception. For example, the police chief of Los Angeles declared

that “all confessions would soon be worthless.”80 Other police officials declared

that they would be forced to fight criminals “with two hands tied behind their

back.”81 These dire predictions were ideologically but not empirically based. After

Miranda, a raft of studies were conducted, with the vast majority concluding that

Miranda’s impact was marginal on the number of confessions police were able to

obtain from the accused in custody.82

Nonetheless, after the urban unrest in 1967 and 1968, “law and order”

was a politically attractive theme and helped President Nixon win the

presidency.83 After his election on a “law and order” platform, President Nixon

proceeded to fill vacancies on the Supreme Court with persons unsympathetic

to Miranda.84 As a result, a process began in the Burger Court, and extended

into the Rehnquist Court, that has whittled away the scope of Miranda.85 Yet, in

80SeeGallini, 79 Tenn. L. Rev. at 250–51, 251 n.136 (quoting Brian Palmer, What Happens When Your Miranda Rights Are Revoked?, Slate.com (May 10, 2010), http://www.slate.com/id/2253499/ [https://perma.cc/YM5D-9A2Q]). 81Id. at 250 & n.134 (quoting Stephen L. Wasby, Continuity and Change: From the Warren

Court to the Burger Court 183 (1976)). 82Id. at 272–73; see Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-

First Century, 99 Mich. L. Rev. 1000, 1007–09 & nn.41–51 (2001); Stephen J. Schulhofer, Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500, 502 (1996) [hereinafter Schulhofer]; George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A “Steady State” Theory of Confessions, 43 UCLA L. Rev. 933, 942–43 (1996). 83Gallini, 79 Tenn. L. Rev. at 252. 84Id. at 253. 85See,e.g., Oregon v. Hass, 420 U.S. 714, 723–24 (1975) (holding that statements made after Miranda warnings not honored may be used for impeachment); Harris v. New York, 401 U.S. 222, 226 (1971) (holding that statements obtained without Miranda warnings may be used for impeachment). 54

the end, the main thrust of Miranda was embraced as part of our constitutional

culture in Dickerson v. United States.86

4. Implications for law of search and seizure. One might ask what relevance

Miranda, based on constitutional protections against self-incrimination, has in

the context of search and seizure law. The similarities, however, are clear. The

totality-of-the-circumstances test of “consent” or “voluntariness” in the pre-

Miranda era was, as pointed out by an experienced federal judge, “exactly the

same test of the voluntariness of the consent, as determined from the totality of

the circumstances, that supposedly proved impossible and unwieldy as a

measure of the admissibility of confessions.”87 How, then, did an utterly

unmanageable, completely inadequate test used for self-incrimination cases—a

test that also produced unpredictable results and could not be adequately

supervised with discretionary appeals—all of a sudden become acceptable for

search and seizure cases? Are the constitutional rights protecting the security of

citizens from arbitrary government search and seizure of lesser importance than

a criminal defendant’s interest in avoiding involuntary confessions? Can it be

that the right of citizens to be secure in the persons, homes, papers, and effects

shrivels away with the assertion of an important government interest? Isn’t the

need for search and seizure protections the highest when government claims are

the strongest? And, if the predictions of the terrible pragmatic impact on the

86Dickerson v. United States, 530 U.S. 428, 438–40 (2000). 87Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233, 234

(2007) [hereinafter Lynch]. 55

ability of the state to obtain confessions proved wrong, why would “the sky is

falling” predictions be right under search and seizure law?

C. Consent, Search and Seizure, and the Rise of Schneckloth v.

Bustamonte.

1. Development of law of consent to search to avoid liability. For those

interested in the relationship between common law and constitutional provisions

related to search and seizure, there is much to learn. As has been pointed out

by Fourth Amendment scholar George C. Thomas III,88 one of the earliest

purposes of warrants was to shield government officials from tort suits. 89 In an

early state case, Banks v. Commonwealth,90 the court recognized that a search

“with the knowledge and permission of the one lawfully in possession” of a

warrant would not be unlawful.91 But what about a warrantless search? Would

not a common law trespass action be available?

Perhaps these questions could be answered by an early Iowa case showing

the role of consent in a warrantless-search case. In McClurg v. Brenton,92 the

mayor recruited a team of royal bloodhounds to search a home for stolen

chickens without a warrant at ten or eleven o’clock at night.93 This group of

88George C. Thomas III, The Common Law Endures in the Fourth Amendment, 27 Wm. &

Mary Bill Rts. J. 85, 85–87 (2018) (discussing the common law protection of privacy, property, and liberty in colonial America and its influence on the drafting of the Fourth Amendment; arguing for the idea that Fourth Amendment issues should be decided by asking whether a ruling would reflect “the privacy/security balance favored by the founders”). 89Id. at 90–93. 90Banks v. Commonwealth, 227 S.W. 455 (Ky. Ct. App. 1921). 91Id. at 457. 92McClurg v. Brenton, 98 N.W. 881 (Iowa 1904). 93Id. at 881. 56

people approached the home of McClurg.94 The Mayor announced that he was

the mayor.95 That was a mistake. McClurg sued in trespass and sought

compensatory and punitive damages.96 The defendants claimed consent.97 The

trial court granted a directed verdict on the consent theory.98

The McClurg court emphasized that no amount of incriminating evidence

justifies the search of a residence for stolen goods without a warrant 99 The

McClurg court noted that under the circumstances, it was doubtful that any

alleged consent would be truly voluntary.100 The directed verdict on grounds of

consent was reversed in light of evidence that showed the search was conducted

under color of authority.101 In McClurg, consent was not regarded as “an

exception” to the warrant requirement, but rather a defense to a tort claim based

on invasion of privacy.

2. United States search and seizure cases prior to Schneckloth v.

Bustamonte. The United States Supreme Court first brushed by the issue of

waiver or consent in a search and seizure context in Amos v. United States.102 In

Amos, federal officers arrived at the home of the defendant, informed the

94Id.

95Id. at 882. 96Id.

97Id. at 881. 98Id.

99Id. at 883. 100Id.

101Id.

102Amos v. United States, 255 U.S. 313 (1921). 57

defendant’s wife that they were federal officers and that they had come to search

the residence for violations of revenue law.103 The wife provided access to the

home and the curtilage.104 The agents discovered illegal whisky.105

According to the Amos Court, a warrantless search of the home was

unreasonable.106 The Amos Court declared:

The contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained. . . . [I]t is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.107

Notably, the Amos Court utilized the term “waiver” throughout the opinion.

The term “consent” is nowhere to be found. The Amos Court, foreshadowing

developments in the social sciences, emphasized that “under the implied

coercion . . . presented, no . . . waiver was intended.”108

The Supreme Court considered the issue of consent in Davis v. United

States.109 In Davis, authorities suspected that the accused was unlawfully selling

gasoline at above-market prices without requiring the necessary coupon that the

law required.110 Officials at the scene demanded that the accused produce

103Id. at 315. 104Id.

105Id.

106Id. at 315–17. 107Id. at 317. 108Id.

109Davis v. United States, 328 U.S. 582 (1946). 110Id. at 585. 58

gasoline coupons in his possession.111 The accused eventually was talked into

it.112 In an opinion written by Justice Douglas, the Supreme Court stated that

“[t]he strict test of consent” did not apply where the officials sought public

inspection at a place of business where the documents were required to be

kept.113

Justice Frankfurter, joined by Justices Murphy and Rutledge, filed a

spirited dissent.114 Justice Frankfurter noted that the majority determined that

the consent was voluntary because of the nature of the object being sought.115

According to Justice Frankfurter, this made no sense: “To make voluntariness

turn on the nature of the quest instead of on the nature of the response of the

person in control of the sought documents, is to distort familiar notions on the

basis of which the law has heretofore adjudged legal consequences.”116 Further,

Justice Frankfurter noted that the warrantless search exposed the legal system

to what scholars would currently describe as hindsight bias:

It cannot be that the Constitution meant to make it legally advantageous not to have a warrant, so that the police may roam freely and have the courts retrospectively hold that the search that was made was “reasonable,” reasonableness being judged from the point of view of obtaining relevant evidence.117

111Id.

112Id. at 586. 113Id. at 593. 114Id. at 594 (Frankfurter, J., dissenting). 115Id. at 594–95. 116Id. at 600. 117Id. at 595; see also Tracey Maclin, The Good and Bad News About Consent, 39

McGeorge L. Rev. 27, 41 (2008) [hereinafter Maclin]. 59

Iowa Law School dean Wiley Rutledge agreed in a separate opinion,

observing, “[T]he search followed on consent given in the reasonable belief that

it was necessary to avoid the breaking and entry. I think it was therefore in no

better case legally than if in fact the breaking and forceable entry had

occurred.”118

In another pre-Schneckloth case, Stoner v. California, the Court seems to

use the language of waiver.119 The question in Stoner was whether a hotel clerk

could authorize a warrantless search of Stoner’s room.120 According to the Stoner

Court, “[i]t was a right . . . which only [Stoner] could waive by word or deed,

either directly or through an agent.”121

A few years later, the Supreme Court decided Zap v. United States.122 In

Zap, a contractor for the Navy objected to government seizure of a check that

showed that he filled in an amount for expenses allegedly incurred by a test

pilot.123 In a contract with the Navy, the defendant specifically agreed to permit

inspection of accounts and records related to the work.124 The government

demanded the production of the check pursuant to the terms of the contract.125

118Davis, 328 U.S. at 623 (Rutledge, J., dissenting). 119Stoner v. California, 376 U.S. 483, 489 (1964) (suggesting that giving consent to let the police in was not the right of the night clerk’s and that such consent could only be waived by word or deed of the petitioner). 120Id. at 486–87. 121Id. at 489. 122Zap v. United States, 328 U.S. 624 (1946), vacated, 330 U.S. 800 (1947) (per curiam). 123Id. at 626. 124Id. at 626–27. 125Id. at 627. 60

In an opinion by Justice Douglas, the Supreme Court noted that Fourth

Amendment rights “may be waived” and that “when petitioner, in order to obtain

the government’s business, specifically agreed to permit inspection of his

accounts and records, he voluntarily waived such claim to privacy which he

otherwise might have had as respects business documents related to those

contracts.”126 Interestingly, unlike in Davis, Justice Douglas used the term

“waiver” and not the language of “voluntariness.”

As in Davis, Justice Frankfurter, along with Justices Murphy and

Rutledge, dissented.127 Justice Frankfurter argued that the search might have

been valid but that the seizure of the check was not.128 Because there was no

warrant with items to be seized described with particularity, there was no

judicially approved right to seize anything.129

In any event, the mandate in Zap was recalled and there is thus no reliable

precedent arising from the case.130 Yet, it is interesting to note that Justice

Douglas wrote both Davis and Zap and that Justice Frankfurter objected to

Justice Douglas’s handling of “voluntariness” in Davis but not his “waiver”

analysis in Zap.

The above cases demonstrate a couple of points. First, prior to

Schneckloth, the precedents of the United States Supreme Court, with the

126Id. at 628. 127Id. at 630 (Frankfurter, J., dissenting). 128Id. at 632. 129Id. at 632–33. 130See Zap, 330 U.S. 800. 61

exception of Davis, utilized the language of “waiver” in the search and seizure

context. Although Justice Douglas used the language of “voluntariness” in Davis,

he shifted to “waiver” in Zap. Overall, prior precedent pointed generally in the

direction of waiver when constitutional rights were involved, including the rights

against arbitrary government searches and seizures. To the extent it did not,

Justice Frankfurter and Dean Rutledge had the better argument.

III. Justice Stewart, Backlash, and the Birth of Schneckloth v. Bustamonte.

A. Introduction. In 1971, the United States Supreme Court visited the

issue of consent in a search and seizure case in Schneckloth v. Bustamonte.131

Since Miranda was decided in 1966, two important historical developments

occurred. First, the Warren Court was subjected to withering criticism because

of Miranda.132 The slogan “Impeach Earl Warren” emerged.133 Second, the

makeup of the United States Supreme Court changed through the politics of the

appointment process. President Nixon attacked Miranda and stressed the need

to appoint Supreme Court Justices with a different point of view.134 He had that

opportunity with the appointments of Warren Burger, Lewis Powell, and William

Rehnquist. One of the questions in Schneckloth was whether President Nixon

had accomplished his political goal of reshaping the United States Supreme

Court.

131Schneckloth, 412 U.S. 218. 132See Gallini, 79 Tenn. L. Rev. at 251–53. 133Id. at 283 n.389. 134Id. at 252–53. 62

B. Court of Appeals Opinion in Schneckloth. Schneckloth involved a

traffic stop where a headlight and a license plate light were burned out.135 The

driver could not produce a driver’s license.136 A passenger produced a driver’s

license and stated that the car belonged to his brother.137 The driver and the five

passengers were standing outside the automobile when additional police officers

arrived at the scene.138 When the officers asked if they could search the car, one

of the passengers gave consent139 and said “Sure, go ahead.”140 Police found

evidence under the rear seat indicating that the car had been stolen.141

The Ninth Circuit Court of Appeals held that the consent was invalid.142

According to the Ninth Circuit, the state had to show both an absence of coercion

and that the subject knew consent could be refused.143 The Ninth Circuit

reasoned that consent could not be presumed from a verbal agreement because

“a reasonable person might read an officer’s ‘May I’ as the courteous expression

of a demand backed by force of law.”144

135Bustamonte v. Schneckloth, 448 F.2d 699, 699 (9th Cir. 1971), rev’d, 412 U.S. 218 (1973). 136Id.

137Id.

138Id. at 699–700. 139Id. at 700. 140Schneckloth, 412 U.S. at 220. 141Bustamonte, 448 F.2d at 700. 142Id. at 701. 143Id. at 700. 144Id. at 701. 63

C. Justice Stewart’s Majority Opinion in Schneckloth. In any event,

Justice Stewart, a bitter dissenter in Miranda, wrote the majority opinion for the

Supreme Court on certiorari. Justice Stewart did not canvass the traditional

scope or application of search and seizure constitutional protections. Instead,

Justice Stewart emphasized that “the community has a real interest in

encouraging consent, for the resulting search may yield necessary evidence for

the solution and prosecution of crime, evidence that may insure that a wholly

innocent person is not wrongly charged with a criminal offense.”145 The

implication was that requiring that the state show both that there was no

coercion and that the suspect knew they had the option of not consenting was

rejected on the pragmatic ground that convictions could be lost.

According to Justice Stewart,

Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.146

Justice Stewart further observed that the “vulnerable subjective state of the

person who consents”147 is relevant to the inquiry, including “evidence of

minimal schooling, low intelligence, and the lack of any effective warnings to a

145Schneckloth, 412 U.S. at 243. 146Id. at 248–49. 147Id. at 229. 64

person of his rights.”148 Finally, Justice Stewart stated that the voluntariness

test required “the most careful scrutiny” of police conduct.149

In contrast to Miranda, Justice Stewart declared that it would be unduly

burdensome to require police to obtain a traditional waiver in each and every

case.150 He emphasized that in the Miranda custodial context, the police are often

not on the open road but at the police station where they have control of the

situation.151 Yet, Justice Stewart did not recognize that most custodial arrests

commence in the field as well. Indeed, this case is “Exhibit A” as to the fallacy of

Justice Stewart’s reasoning. Here, as is often the case, the Miranda requirement

was triggered by custody in the field. Because of the failure to give Miranda

rights, evidence of Hauge’s statements was suppressed. If it is not “unduly

burdensome” to require that Miranda be given in the field after a custodial arrest,

why is it unduly burdensome to advise a person in the field that they have the

right to refuse consent to search? The reasoning collapses.

D. Schneckloth Dissents. Three Justices dissented in Schneckloth.

Justice Douglas, in a brief opinion, wrote that he thought whether the verbal

expression of the officer should be regarded as a “courteous expression of a

demand backed by force of law”152 should be remanded to the district court for

further development. Justice Brennan briefly wrote that “[i]t wholly escapes me

148Id. at 248. 149Id. at 229. 150Id. at 243. 151Id. at 247. 152Id. at 275–76 (Douglas, J., dissenting). 65

how our citizens can meaningfully be said to have waived something as precious

as a constitutional guarantee without ever being aware of its existence.”153

Justice Marshall dissented in more detail. He viewed the essential issue in

the case as “whether a simple statement of assent to search, without more,

should be sufficient to permit the police to search and thus act as a

relinquishment of [a citizen’s] constitutional right to exclude the police.”154

Justice Marshall began his analysis by noting that the substantive

question under the Fifth Amendment is whether a person is free from

compulsion.155 According to Justice Marshall, the focus, necessarily, is not on

knowledge, but on compulsion.156

But to Justice Marshall, the question in the Fourth Amendment context is

not part of the substantive meaning of the Fourth Amendment but instead was

whether and under what conditions a person may elect not to assert the

fundamental right to be free from government intrusion absent satisfaction of

Fourth Amendment requirements.157 For Justice Marshall, the question is not

whether the state has shown there was no coercion but whether there has been

an affirmative showing of consent.158

153Id. at 277 (Brennan, J., dissenting). 154Id. at 278 (Marshall, J., dissenting) (footnote omitted). 155Id. at 280–81. 156Id. at 281. 157Id. at 282. 158Id. at 283. 66

On the issue of consent, Justice Marshall stated that it must involve “a

meaningful choice.”159 Justice Marshall found it “incomprehensible” that a

decision made without knowledge is a choice at all.160 Because concrete proof of

knowledge is hard to establish, Justice Marshall would put the burden on the

state to show that suspects knew they had a right to refuse to consent and that

any invocation of their right to dissent would be respected.161

On the question of the undue burden on law enforcement, Justice

Marshall noted the FBI routinely advised suspects that they had a right to refuse

consent and that the caselaw showed that informing suspects of their rights does

not disrupt “the casual flow of events.”162 Justice Marshall further noted that the

evidence suggested that “nothing disastrous” would result if police informed

subjects that they had a right to refuse consent.163

Justice Marshall pointed out that the “practicality” talked about in the

majority opinion was really “the continued ability of the police to capitalize on

the ignorance of citizens so as to accomplish by subterfuge what they could not

achieve by relying only on the knowing relinquishment of constitutional

rights.”164 “Of course it would be ‘practical’ for the police,” Justice Marshall

159Id. at 284–85. 160Id. at 285. 161Id. at 286. 162Id. at 287. 163Id. at 287–88. 164Id. at 288. 67

noted, “even though the constitutional rights of innocent people also go by the

board.”165

In conclusion, Justice Marshall marked that the Fourth Amendment

protection against searches without probable cause was now available only “to

the sophisticated, the knowledgeable, and . . . the few.”166 Justice Marshall

believed that the Fourth Amendment protections were not designed to shrink

before law enforcement interests and that the balance between law enforcement

and citizen interests had already been struck by the Founders and was not for

the court to restrike.167

E. Structural Problems with Schneckloth.

1. Vague nature of test. The first problem with Schneckloth is precisely the

same problem that arose in the context of Miranda, namely, that it provides an

unworkable test. Under the “totality of the circumstances” approach to consent

as that term is used in Schneckloth, everything is relevant and nothing is

determinative. That makes it next to impossible for the test to have any predictive

value. By retreating into a Rorschach-type test of “totality of the circumstances,”

it is the conclusion that prevails without analysis of the weight of various factors

or how courts are to go about the determination of “voluntariness.” For example,

although Schneckloth declares that courts should consider the totality of the

165Id.

166Id. at 289. 167Id. at 290. 68

circumstances, including “the state of the accused’s mind,”168 the amorphous

tests permit courts to concentrate on what a reasonable person would perceive

as a search request.169 The focus may be on the tone of voice of police, even

though, as pointed out by Justice Souter in United States v. Drayton, a person

who projects authority has no need to shout.170 The Schneckloth formulation

permits courts to focus on whether the police acted reasonably, used a calm tone

of voice, and did not engage in direct coercion, rather than the true state of mind

of the citizen. Further, Schneckloth seems to permit the courts to consider factors

such as the need of the prosecution to obtain convictions, a factor that has

nothing at all to do with consent. The accordion and unweighted nature of the

Schneckloth factors and the inclusion of factors that have nothing to do with the

consent of the specific individual have prompted scholars to declare that the

notion of consent is “a fiction of the crudest sort—a mere device for attaining the

desired legal consequence.”171

In short, remarkably, Schneckloth permits the use of an unworkable

standard nearly identical, but more insidious, than the one rejected in

Miranda.172 Thus, in Schneckloth, the Supreme Court approved of a standard

168Id. at 227 (majority opinion). 169Roseanna Sommers & Vanessa K. Bohns, The Voluntariness of Voluntary Consent:

Consent Searches and the Psychology of Compliance, 128 Yale L.J. 1962, 1969 (2019) [hereinafter Sommers & Bohns]. 170United States v. Drayton, 536 U.S. 194, 212 (2002) (Souter, J., dissenting). See generally Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002) [hereinafter Nadler] (examining Fourth Amendment consent cases with evidence from social science). 171Nadler, 2002 Sup. Ct. Rev. at 156. 172Lynch, 5 Ohio St. J. Crim. L. at 235. 69

with respect to Fourth Amendment rights that was found inadequate to protect

rights under the Fifth Amendment. The Fourth Amendment rights also receive

less protection than rights under the Sixth Amendment. I have no doubt the

federal and Iowa Framers would not have agreed with this proposition.

2. Objective factors trump subjective questions. Although Schneckloth

permitted consideration of subjective factors in the totality-of-the-circumstances

test, it opened the door for objective factors to override and diminish subjective

factors. The totality-of-the-circumstances test gave rise to the oddball possibility

that consent could be considered voluntary not because of the understanding of

the suspect but because the objective behavior of the police officer is considered

“reasonable.” And, in determining the degree of coercion—a factor in the

“voluntariness” test—the question is not focused on the state of mind of the

person being searched but the reasonableness of the conduct of the police

officer.173

Obviously, the “voluntariness” test under Schneckloth does not require

knowledge of the options available and the consequences of complying or

noncomplying. Rather than referring to consent as “voluntary,” a more accurate

description of the Schneckloth consent doctrine is that “ignorant acquiescence”

is sufficient if police act reasonably. But this makes little sense. If a person,

without coercion, walks onto a farmer’s field and falls into a hidden sinkhole,

has the citizen “voluntarily” chosen to assume the risk of a hazard that they did

173Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding

the Consent Searches Doctrine, 80 Ind. L.J. 773, 822 (2005) [hereinafter Simmons]. 70

not know existed? Does a citizen “voluntarily” choose to surrender a right about

which the citizen has no knowledge? Really?

3. Capitalizing on ignorance. Because a consent search under Schneckloth

does not require the state to show that the individual knew of their right to refuse

consent to search, critics claim it permits the state to capitalize on the ignorance

of criminal suspects.174 Justice Marshall, in his dissent, focused on the

“peculiar”175 nature of voluntariness without knowledge of one’s right to refuse

consent. As noted by Justice Goldberg in Escobedo v. Illinois:

We have . . . learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights.176

Justice Marshall also correctly observed, as no one can really deny, that

the government in Schneckloth sought a license to take advantage of a person’s

ignorance provided that the officers involved speak in a conversational tone and

are generally polite. But the constitutional goal of search and seizure restrictions

is not to promote good manners. Search and seizure restrictions are designed to

protect the security of our bodies by ensuring that genitalia cannot generally or

arbitrarily be patted down by strangers, that personal autonomy and privacy are

protected from arbitrary government interference, and that the security provided

174Susan A. Bandes, Police Accountability and the Problem of Regulating Consent Searches, 2018 U. Ill. L. Rev. 1759, 1762 (2018) [hereinafter Bandes]. 175Schneckloth, 412 U.S. at 289 n.13 (Marshall, J., dissenting). 176Escobedo v. Illinois, 378 U.S. 478, 490 (1964). 71

by the constitution in our homes, papers, persons, and effects is a reality in day-

to-day life.

In short, a gentleman thief may be entertaining, but is still as much of a

thief as a coarser character. Similarly, a polite officer who violates search and

seizure law by doing an impermissible search commits the same violation as a

gruff officer who is less sympathetic but engages in the same illegal conduct. A

person who cuts your constitutional throat may be very nice about it, but that

shouldn’t matter in determining whether a constitutional violation occurred,

should it? So I say enough about the talk about manners. We need more talk

about substance.

4. Pragmatic goal of obtaining convictions. The Schneckloth majority seemed

to suggest that a waiver standard would lead to fewer convictions.177 Most

consent searches, of course, yield nothing, and as a result, nothing would be lost

in these cases by informing a citizen of the right to refuse consent. In cases where

incriminating evidence was uncovered through a “consent” search, the same

evidence might well have been available through a search incident to arrest or

other lawful means. So the alleged losses resulting from advising citizens of their

constitutional rights at the time Schneckloth was decided were quite speculative

at best.

However, as has been stated by one scholar, the “appropriate metric” of

search and seizure law cannot be “high clearance rates.”178 If that were the

177Schneckloth, 412 U.S. at 245–46 (majority opinion). 178Bandes, 2018 U. Ill. L. Rev. at 1764. 72

metric, our entire constitutional structure as it relates to criminal prosecutions

would be pulled down. The right to counsel, the right to a jury trial, the right to

a speedy trial, the right to fair notice, and the right to be free from arbitrary

government search and seizure all, to some degree, on some occasions, make

criminal prosecution more difficult.

I am convinced that the Founders would have been shocked by the

relaxation of search and seizure principles to promote law enforcement. Indeed,

that is exactly what general warrants and writs of assistance were designed to

do: make revenue collection of the Crown more efficient and effective. Collecting

revenues from colonists to defray the cost of an expensive empire was a high

priority of the Crown; in the view of British enforcers and their local enablers,

personal liberties fell to the wayside in order to satisfy the pragmatic demands

of the government. In short, the royalists weighed the pressing needs of the

Crown against the rights of colonists, and they concluded that the needs of the

Crown prevailed. That is the kind of reasoning employed by today’s majority.

The idea that the contours of Bill of Rights provisions should be shaved to

advance government policy or enforce laws is inconsistent with the traditional

view of Frankfurter and others that hindsight does not shape the scope of

constitutional rights. As noted in Mincey v. Arizona:

[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and 73

property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.179

Further, as noted by Professor Susan Bandes, Schneckloth relied on two

questionable empirical assumptions. First, the assumption was that without

consent searches, there would be a drop in the resolution of crimes.180 Second,

if persons were advised of their right to refuse consent, there would be a

precipitous drop in consent searches.181 The Supreme Court had no empirical

evidence to support these “sky is falling” speculations and, as will be seen below

(and to no one’s surprise), the speculations have been shown to be demonstrably

incorrect.

So, it is imperative that we avoid shortcuts and “wink wink” efficiencies

under pressure from the government in order to promote law enforcement

policies. Indeed, the Framers knew there would be majoritarian political

pressures to the contrary, and that is why search and seizure principles were

cemented into our constitutions. We must view constitutional principles as not

so pliable to bend under every pragmatic pressure. Otherwise, for instance, “in

our zeal to conduct a war on drugs, the Constitution is the principal victim.”182

5. Consent searches as inherently coercive. Many scholars have noted that

the interactions between police and citizens are inherently coercive. In a seminal

piece of scholarship, Professor Marcy Strauss acknowledged the “simple truism

179Mincey v. Arizona, 437 U.S. 385, 393 (1978) (citation omitted). 180Bandes, 2018 U. Ill. L. Rev. at 1765. 181Id.

182United States v. Barona, 56 F.3d 1087, 1099 (9th Cir. 1995) (Reinhardt, J., dissenting). 74

that many people, if not most, will always feel coerced by police ‘requests’ to

search.”183

At the time of Schneckloth, there was a body of authority suggesting that

an encounter between a police officer and a citizen might be sufficiently

unbalanced to impact the issue of consent. Indeed, the Ninth Circuit was onto

this theory, recognizing the obvious truth that the phrase “May I” used by a

person of authority may be a command.184 And, of course, in Miranda, the court

recognized the inherently coercive nature of custodial interrogation even without

physical coercion.185 The majority in Schneckloth seemed well aware of the

possibility of informal coercion but simply regarded it as a factor in the “totality

of the circumstances” stew that could be overwhelmed by the strong prices of

pragmatism and the need to obtain convictions. While Miranda recognized

psychological coercion and developed a remedy for it, Schneckloth recognized

psychologic coercion and relegated it to insignificance.

6. Wide discretion in multifactor test provides environment for arbitrary

enforcement. It is universally recognized that traffic violations are so ubiquitous

and unavoidable that police can stop just about everyone on the open road by

simply following a vehicle for a period of time. Because of this, this police

183Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 221 (2002) [hereinafter Strauss]. 184Bustamonte, 448 F.2d at 701. 185Miranda, 384 U.S. at 467. 75

authority has been regarded as a modern general warrant for police to seize

motorists on the open road.186

On top of the extraordinarily broad discretion to stop vehicles based on

the most minor equipment violation, Schneckloth added another remarkable

layer of police discretion: the extraordinarily broad discretion to seek “consent”

to search from any motorist who has been selectively stopped over traffic

violations. The risk of arbitrary search and seizure posed by the combination of

the judicially unregulated power to pull people over with the judicially

unregulated efforts to seek consent presents a geometric rather than a

mathematical proposition. These double-barreled general discretions would have

shocked the Framers who resisted arbitrary police power and insisted on strong

judicial supervision through the warrant and probable cause requirements.

7. Reasonable person as intelligent, white, and male. Schneckloth’s analysis

emphasizes what a reasonable person would believe in light of the nature of the

police encounter. But, how the “reasonable person” would behave or feel during

interaction with police is effectively judged from “the perspective of the middle-

class white person expecting police protection rather than the poor person

familiar with police abuse.”187

186Barbara C. Salken, The General Warrant of the Twentieth Century?, A Fourth

Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 16 Pace L. Rev. 97, 141–42 (1997). 187Andrew E. Taslitz, Respect and the Fourth Amendment, 94 J. Crim. L. & Criminology

15, 56 (2003). 76

This case does not involve an African-American. Nonetheless, the

principles in this case will apply to African-Americans. If so, it is essential that

our approach to “consent” or “waiver” is broad enough to take into account

cultural factors that affect the exercise of constitutional rights. For instance,

there is a general fear and distrust of law enforcement in the African-American

community. As noted by Justice Sotomayor in Utah v. Strieff,

For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.188

As noted by Minnesota Supreme Court Justice Alan Page, “I speak from the

perspective of an African-American male who was taught by his parents that, for

personal safety, . . . it is best to comply carefully and without question to the

officers’ request.”189 Or, consider the comment of Judge Julia Mack, the first

African-American woman to serve on the District of Columbia Court of Appeals,

who has observed that “no reasonable innocent black male (with any knowledge

of American history) would feel free to ignore or walk away” from police officers

conducting a bus sweep.190 In short, African-Americans act out of fear of how an

officer with a gun will react to them. They may believe that consenting to requests

is the only way a Black person can demonstrate innocence. Thus, the

“reasonable person” factor suggested in Schneckloth is overbroad and does not

188Utah v. Strieff, 579 U.S. 232, 254 (2016) (Sotomayor, J., dissenting). 189State v. Harris, 590 N.W.2d 90, 106 n.4 (Minn. 1999) (en banc) (Page, J., dissenting). 190In re J.M., 619 A.2d 497, 513 (D.C. 1992) (en banc) (Mack, J., dissenting, but

concurring in the order of remand). 77

consider the realities of the Black experience in the search and seizure situation.

The point here is that a stereotyped conception of a universally applicable

“reasonable person” is not the proper way to approach consent.

8. Obtaining knowing, voluntary consent is not “thoroughly impractical.”

Justice Stewart in Schneckloth stated that it would be “thoroughly impractical”

to require a Miranda-type warning by police seeking consent to search.191 The

claim had no empirical support when made, and even less so today. Police

officers routinely issue traffic citations that document violations and provide

notice to violators about necessary court proceedings. The FBI, as pointed out

by Justice Marshall, had informed investigation subjects of their right to decline

when asking for consent to search with no apparent difficulties.192

At the time Schneckloth was decided, there was no reason why law

enforcement could not document that they advised drivers about their right to

decline a request for a search and that a refusal would be honored. As Drake

Professor James Adams noted, the notion that warnings were thoroughly

impractical “strains credulity.”193 Perhaps, as Justice Stewart candidly stated,

there was a lack of will, or a desire, to issue warnings to advance the goals of law

enforcement. It is, therefore, hard to take at face value the impracticability

argument.

191Schneckloth, 412 U.S. at 231. 192Id. at 287 (Marshall, J., dissenting). 193James A. Adams, Search and Seizure As Seen by Supreme Court Justices: Are They

Serious or Is This Just Judicial Humor?, 12 St. Louis U. Pub. L. Rev. 413, 473 (1993). 78

9. Summary. For all the above reasons, it is my view that Schneckloth was

wrongly decided. Since Schneckloth, there have been additional developments

that require us to step back and take another look at the case. First, the

subsequent caselaw indicates—apparent even at the time of the decision—that

Schneckloth factors are highly malleable. Second, our empirical knowledge about

matters such as social psychology and racial profiling has dramatically increased

and yet offered no support for Schneckloth. Finally, experience and technological

innovation have destroyed any plausible assertion that informing citizens of their

constitutional rights is thoroughly impracticable. If Schneckloth was fictitious

when decided, and has become even more surreal in light of modern

developments, its indefensible logic must be rejected.

IV. Empirical Developments Since Schneckloth.

A. Empirical Evidence on Whether Warnings Are “Thoroughly

Impractical.” The notion that notifying a person of the right to refuse consent

was “thoroughly impractical” was never convincing. Experience in the years

following Schneckloth has demolished the argument. Not surprisingly, in

response to caselaw, law enforcement authorities in New Jersey developed a

consent to search form that advised individuals of their right to refuse consent

to search. Such consent forms have emerged in many jurisdictions.

Scholars Nancy Leong and Kira Suyeishi conducted a survey published in

2013 of state police departments regarding the use of consent to search forms.194

194Nancy Leong & Kira Suyeishi, Consent Forms and Consent Formalism, 2013 Wis. L.

Rev. 751, 752–54 (2013). 79

Based on their responses, they determined that only four state police

departments do not use consent forms.195 Fifteen state police departments use

forms but they are not mandatory in all instances.196 One state (Texas) reported

the unusual arrangement that whether to use a consent form is up to the district

attorney.197

Leong and Suyeishi noticed that in five states, the state police departments

used either a consent form or an audio or visual recording.198 Twelve states

required officers to use consent forms.199 Louisiana required that two officers be

present in addition to obtaining consent prior to a consent search.200

In addition to these state practices by state police departments, many local

jurisdictions have adopted policies related to written consent forms. Written

consent forms have been utilized by numerous state police departments across

the country such as St. Paul, Minnesota; Austin, Texas; and several

communities in North Carolina.201 Numerous settlements between police

departments and the Department of Justice have required knowing consent to

be obtained after traffic stops. Obviously, experience demonstrates that it is not

impractical to document informed consent on the street. Finally, the 2015

195Id. at 774. 196Id. at 775. 197Id. at 776. 198Id. at 776–77 (including Idaho, Nevada, Oklahoma, South Dakota, and West Virginia). 199Id. at 777 (including Arkansas, Arizona, California, Colorado, Hawaii, Iowa, Louisiana, Maryland, New Jersey, Ohio, Vermont, and Washington). 200Id.

201Bandes, 2018 U. Ill. L. Rev. at 1775. 80

President’s Task Force Final Report on Twenty-First Century Policing

recommended that officers obtain written acknowledgment that a person has a

right to refuse consent when there is no warrant or probable cause.202

Further, the advent of personal video and dashcams have made it plain

vanilla standard for police to record the interaction between police and a

motorist. Indeed, in this very case, videocam evidence is available. In New Jersey,

for instance, all motor vehicle stops must be video recorded.203 The idea that

determining what in fact happened as part of the encounter is an impossible or

even difficult undertaking is simply no longer true. Just as videos of Miranda

warnings and subsequent interrogations often assist law enforcement, one could

expect the same to be true with respect to consent-to-search transactions.

It is doubtful that impact on convictions is an appropriate measure of the

scope of a constitutional right. Yet, even if it were, as with Miranda, there is a

body of empirical evidence that demonstrated that the fear that invocation of

constitutional rights would dramatically tie the hands of law enforcement and

prevent effective prosecution is simply untrue.204 For example, a study of the

impact of warning requirements for searches in Ohio reveals that such impact

202Office of Cmty. Oriented Policing Servs., Final Report of the President’s Task Force on 21st Century Policing 27 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf [https://perma.cc/B8MZ-GBA6] (cited in Diana R. Donahoe, Not-So-Great Expectations: Implicit Racial Bias in the Supreme Court’s Consent to Search Doctrine, 55 Am. Crim. L. Rev. 619, 660 & n.311 (2018)). 203Matthew Phillips, Effective Warnings Before Consent Searches: Practical, Necessary, and Desirable, 45 Am. Crim. L. Rev. 1185, 1199–200 (2008) [hereinafter Phillips]. 204Id. at 1203–10. 81

was small.205 In New Jersey, where consent forms have been used for some time,

law enforcement monitors over fifteen reporting periods from 1999 to 2007

concluded that 88.3% of the motorists consented to search.206 So, the available

empirical evidence undercuts a claim that advising a person of the right to refuse

consent leads to a dramatic decrease in consent searches. In this regard, the

evidence is much like that regarding Miranda warnings, which appear to have a

limited collective impact on the statistical willingness of persons in custody to

talk to police.207 The law enforcement sky has not fallen with Miranda, and it

would not fall by advising persons of their right to refuse consent to search.

The bottom line is that advising a person that they have a right to withhold

consent to search and that the refusal would be honored is not “thoroughly

impractical.” Indeed, it never was. Subsequent events demonstrate that it’s time

for this charade to come to an end. The legitimacy of the law is undermined when

it rests on such unsupported reasoning.

B. Developments in Social Psychology. Since Schneckloth, there has

been an “ever-widening gap between Fourth Amendment consent jurisprudence

. . . and scientific findings about the psychology of compliance.”208 Milgram’s209

205Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on the “Voluntary” Waiver of Fourth Amendment Rights, 44 How. L.J. 349, 366–67 (2001) [hereinafter Lichtenberg]. 206Phillips, 45 Am. Crim. L. Rev. at 1201. 207See Schulhofer, 90 Nw. U. L. Rev. at 502 (“For all practical purposes, Miranda’s empirically detectable harm to law enforcement shrinks virtually to zero.”). 208Nadler, 2002 Sup. Ct. Rev. at 155. 209Stanley Milgram, Obedience to Authority: An Experimental View 13–26 (1974). 82

and Brickman’s210 studies of obedience, published just after Schneckloth,

showed “people will obey authority even when it is not in their own best interest

to do so.”211 Although Milgram’s and Brickman’s studies were conducted in a

laboratory setting and did not involve traffic stops, the obedience theory

advanced by the studies indicated that humans tend to comply with what they

see as an authority at a rate higher than expected.212

There is empirical evidence to support the notion that obedience theory

concretely applies in the context of traffic stops and requests for consent

searches by police. In an often-cited study on traffic stops and consent searches

in Ohio, Illya Lichtenberg reached a number of conclusions.213 As summarized

by Tracey Maclin, Lichtenberg’s research revealed:

[M]otorists in Ohio consent to searches of their automobiles during traffic stops “for one primary reason: fear of reprisal if they refused.” His data also revealed that motorists were “unaware of their legal right to refuse,” believed that “refusals [to allow searches] are futile,” “fear[ed] police reprisal or added inconvenience from a refusal,” and “[a]lmost none of the subjects [surveyed] felt that the officer would honor their decision to refuse.” In other words, “most motorists believed that the search [would] be conducted with or without their consent.”214

210Leonard Bickman, The Social Power of a Uniform, 4 J. Applied Soc. Psych. 47–61 (1974). 211Strauss, 92 J. Crim. L. & Criminology at 236. 212Id. at 239–40. 213Lichtenberg, 44 How. L.J. at 373–74. 214Maclin, 39 McGeorge L. Rev. at 79 (second, third, fourth, fifth, sixth alteration in original) (footnotes omitted) (quoting Illya Dionysus Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry Into the “Consensual” Police-Citizen Encounter 250, 275 (Oct. 1999) (unpublished Ph.D. dissertation, Rutger’s University)). 83

Many scholars have concluded that encounters between police and individuals

in the context of traffic stops are so imbalanced that any notion of voluntary

consent is doubtful.215

Language theory echoes the social-psychological finding on obedience.

What a police officer phrases gently as a request may well be interpreted as a

command. As Janice Nadler has persuasively argued in a seminal article written

more than twenty-five years after Schneckloth, a boss who says to a subordinate

employee “try not to be late again” is not likely to be perceived as making a

suggestion regardless of the language utilized.216 In other words, “those who have

authority apparently need not activate coercive potential through their

discourse[; t]heir roles are sufficient to do so.”217 A uniformed officer’s request

“however gently phrased, is likely to be taken by even the toughest citizen as a

command.”218 Certainly, when a uniformed officer approaches a vehicle with

215See, e.g., Adrian J. Barrio, Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court’s Conception of Voluntary Consent, 1997 U. Ill. L. Rev. 215, 247 (1997) [hereinafter Barrio] (“[T]he weight of scientific authority suggests that a suspect’s ignorance of fundamental Fourth Amendment rights must be viewed as a state of mind that renders a suspect’s consent involuntary.”); John M. Burkoff, Search Me?, 39 Tex. Tech. L. Rev. 1109, 1138 (2007) [hereinafter Burkoff] (“[M]ost people do not expect that they have ‘the right not to accede a police officer’s request that a search be authorized.’ ”); Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1902 (2004) (“It is . . . nonsensical for courts to continue their embrace of the . . . position that a reasonable motorist, having been seized, would conclude he was free to leave (even though not told so) in the face of ongoing police interrogation.”); Maclin, 39 McGeorge L. Rev. at 28 (“[E]veryone . . . knows . . . [that] a police ‘request’ to search a bag or automobile is understood by most persons as a ‘command.’ ”). 216Nadler, 2002 Sup. Ct. Rev. at 188–90. 217Id. at 189 (quoting Jennifer L. Vollbrecht, Michael E. Roloff, & Gaylen D. Paulson,

Coercive Potential and Face Threatening Sensitivity: The Effects of Authority and Directives in Social Confrontations, 8 Int’l. J. Conflict Mgmt. 235, 244 (1997)). 218H. Richard Uviller, Tempered Zeal: A Columbia Law Professor’s Year on the Streets with

the New York City Police 81 (1988). 84

flashing emergency lights on an open road and says, “Can I please see your

license and registration?” the officer is not seeking consent but has made a

command.219 What is literally phrased as a request from a person in authority

does not imply a right to refuse, as stated in Schneckloth. That concept is simply

wrong.220

It thus seems clear that the treatment of the officer’s language in

Schneckloth was very dubious.221 The officer never made a specific request for

consent to search but simply asked if the trunk could be opened. Although

phrased as a question, the impact of these words on a person pulled over at the

roadside is a command to open the trunk, not a request for permission.222

C. Remarkable Applications of Schneckloth. The Schneckloth test, as

applied by the lower courts, has proven to be insufficiently protective of

219See Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L. Rev. 509, 530 (2015). 220See Peter M. Tiersma & Lawrence M. Solan, Cops and Robbers: Selective Literalism in American Criminal Law, 38 Law & Soc’y Rev. 229, 239–48 (2004) (noting that commands and requests are often indistinguishable—“when someone in a position of power ‘asks’ or ‘requests’ us to do something, it will normally be interpreted as a command”). 221See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(i) (6th ed. 2020) (“Perhaps the most telling criticism of [the] ruling in Schneckloth . . . is that the Court ‘misapprehended the potential for psychological coercion in the context of consent searches.’ . . . [T]here is much to be said for the conclusion that to ‘curb the coercive power of police authority, the police officer should be required to advise the suspect of his right to withhold consent prior to requesting his permission to search.’ ” (quoting Barrio, 1997 U. Ill. L. Rev. at 218, 247)); Nadler, 2002 Sup. Ct. Rev. at 155 (noting that “the ever-widening gap between Fourth Amendment consent jurisprudence . . . and scientific findings about the psychology of compliance and consent”); Simmons, 80 Ind. L.J. at 775 (stating that the nearly unanimous condemnation “threatens to undermine the integrity of judicial review of police behavior”); see also State v. Jenkins, 3 A.3d 806, 876–78 (Conn. 2010) (Palmer, J., dissenting). 222Strauss,92 J. Crim. L. & Criminology at 235 (noting that Schneckloth “ignor[es] the most significant factor of all: the inevitability that individuals will feel coerced simply by virtue of dealing with an authority figure like the police”); Barrio, 1197 U. Ill. L. Rev. at 247; see also Jenkins, 3 A.3d at 876–78. 85

constitutional search and seizure protections.223 Remarkably, in United States v.

Barnett, the First Circuit Court of Appeals held that a consent to search was

voluntary when seven or eight officers held the suspect at gunpoint.224

Unfortunately, Barnett is not an outlier. In United States v. Perea, five officers

surrounded the defendant, drew their guns, pointed the police vehicles’

spotlights in his face, and handcuffed him.225 And miraculously, the court held

that the consent obtained was voluntary.226 In Manzi v. State, the Texas appellate

court affirmed a conviction based upon a search where law enforcement arrested

the defendant at gunpoint, handcuffed him, and told him his girlfriend would be

arrested if he did not consent to search.227 It seems some courts find Schneckloth

sufficiently “murky and ill-defined” to accommodate these fact patterns.228

D. Data on Disproportionate Impact. As noted above, this case does not

involve a minority driver. But, wide-open, discretionary traffic stops combined

with wide-open, discretionary requests for consent searches create a regime that

permits, if not promotes, racial disproportionality. Since Schneckloth was

decided, a body of empirical information has been gathered from multiple

jurisdictions that collectively adds greater depth to our understanding of racial

223See generally Burkoff, 39 Tex. Tech. L. Rev. at 1127 n.66 (identifying several state and

federal cases where the defendant was held to have voluntarily consented inherently coercive circumstances such as being handcuffed and held at gunpoint). 224United States v. Barnett, 989 F.2d 546, 555–56 (1st Cir. 1993). 225United States v. Perea, 374 F. Supp. 2d 961, 968–69 (D.N.M. 2005). 226Id. at 977–79. 227Manzi v. State, 56 S.W.3d 710, 713–14, 719 (Tex. App. 2001). 228Sommers & Bohns, 128 Yale L.J. at 1969. 86

profiling. In isolation, each study has its limitations, but collectively, they offer

persuasive evidence that racial profiling is a real problem.

Perhaps not surprisingly, post-Schneckloth statistical studies show that

African-Americans are disproportionately stopped for traffic violations. Studies

involving drivers in Colorado,229 Florida,230 Illinois,231 Maryland,232 and New

Jersey,233 all show that African-Americans are stopped for minor traffic violations

at a rate markedly disproportionate compared to white drivers. A recent study

suggests that when Washington caselaw expanded police discretion to make

traffic stops, the number of African-American drivers stopped increased

disproportionately compared to white drivers.234 The authors conclude that the

data are a “sobering reminder” that standards granting police discretion “may

come at the cost of inequality in our justice system.”235

229David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court

and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 568–69 (1997). 230Id. at 561–63. 231See Racial Disparity in Consent Searches and Dog Sniff Searches, ACLU Illinois

(Aug. 13, 2014), https://www.aclu-il.org/en/publications/racial-disparity-consent-searches- and-dog-sniff-searches (noting that Black and Hispanic motorists are almost twice as likely to be consent searched yet white motorists were 49% more likely than Black motorists and 56% more likely than Hispanic motorists to be found with contraband). 232See Samuel R. Gross & Katherine Y. Bames, Road Work: Racial Profiling and Drug

Interdiction on the Highway, 101 Mich. L. Rev. 651, 687, 689 (2002) (finding that Black drivers are stopped twice as often as white drivers on I-95 and are much more likely to be searched even though the rate at which drugs are found is about the same as for whites). 233Statev. Soto, 734 A.2d 350, 352–54 (N.J. Super. Ct. Law Div. 1996) (discussing studies performed to prove allegedly discriminatory enforcement of traffic laws by the New Jersey state police). 234Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637, 655–57, 683–90 (2021). 235Id. at 705. 87

Studies also show that African-Americans are asked to consent to searches

more often than white drivers are. As we noted in Pals, statistical studies in

Illinois, Minnesota, and Rhode Island and a study by the Department of Justice

all show that minority drivers are the subject of consent searches at a far higher

rate than whites even though consent searches of whites were more likely to

produce contraband.236 Since then, a recent meta-study of eight states shows

that Black drivers stopped were 2.4 times, and Hispanic drivers 2.2 times, more

likely to be asked for consent searches than white drivers.237

These data collectively suggest that the nearly unlimited authority to make

discretionary stops for traffic violations and the unlimited discretionary

authority to expand the stops to the investigation of drugs combine to

disproportionately affect African-Americans.

While many of the statistical studies are outside Iowa, there is a reason

for concern in this state. In Iowa City, a study showed that minority drivers were

stopped disproportionately to white drivers and that they were 3.45 times more

236Eamon Kelly, Race, Cars and Consent: Reevaluating No-Suspicion Consent Searches,

2 DePaul J. Soc. Just. 253, 274 (“[W]hite drivers were more likely to yield contraband than searches of minority drivers. The Rhode Island study found that 23.5% of all searches of white drivers revealed contraband. Yet, Rhode Island law enforcement officers only found contraband in 17.8% of the searches of minority motorists. The Minnesota study noted ‘disparities in discretionary search rates are particularly troubling’ because there was a lower probability that these discretionary searches would yield contraband. Overall, the Minnesota study found 24% of discretionary searches of whites produced contraband compared to only 11% for African Americans, 12% for Asian Americans[,] and 9% for Latinos. In Illinois, consent searches of minorities were half as likely to uncover contraband as searches of whites .” (footnotes omitted) (quoting Council on Crime & Justice & Inst. on Race & Poverty, Minnesota Statewide Racial Profiling Report: All Participating Jurisdictions 1 (2003), https://static.prisonpolicy.org/ scans/ccj/Racial%20Profiling%20Study.pdf [https://perma.cc/QYS2-FNHN])). 237Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across

the United States, 4 Nature Hum. Behav. 736, 738 (2020), https://www.nature.com/ articles/s41562-020-0858-1 [https://perma.cc/449P-D2T6]. 88

likely to be asked to consent to search during the vehicle stop.238 A recent traffic

stop study of Iowa State University and Ames police also found disproportionality

in arrest.239 The study showed that people of color, excluding Asians, were 46%

more likely to be arrested by the police while driving.240 Although the Iowa

studies are fragmentary, they are consistent with the larger body of data strongly

suggesting that African-Americans are disproportionately stopped and searched

by police.

We should not be surprised by these developments. Lord Acton’s phrase

that “[p]ower tends to corrupt and absolute power corrupts absolutely”241 may

be remodeled to say, in the context of traffic stops, “police discretion leads to

arbitrary searches and seizures and the greater the discretion, the greater the

problem.”

238Mitchell Schmidt, Study Shows Racial Disparity In Traffic Stops By ICPD, Iowa City Press-Citizen (June 17, 2014), https://www.press- citizen.com/story/news/local/2014/06/17/ study-shows-racial-disparity-traffic-stops- icpd/10705257 [https://perma.cc/DG2Z-KBD7] (citing Chris Branum, Robert Perfetti, & Matt Lint, Iowa City Police Department Traffic Study: 2005, 2006, 2007, 2010, 2011, & 2012, St. Ambrose Univ. 54 (2014), https://www8.iowa- city.org/weblink/0/doc/1481387/Electronic.aspx [https://perma.cc/C43S- KHGG]). The data on whether each search was based on consent or probable cause was incomplete, however, preventing definitive conclusions from being made. 239Danielle Gehr, Ames, ISU Police Study Finds Disproportional Arrest Data But Little Evidence of Traffic Stop Bias, Ames Tribune (Feb. 11, 2022), https://www.amestrib.com/ story/news/2022/02/11/racial-profiling-ames-isu-pd-release-traffic-stop-bias-study-results /6750068001/ [https://perma.cc/6S8H-6E4F]. 240Id.

241Letterfrom John Emerich Edward Dalberg to Archbishop Mandell Creighton (Apr. 5, 1887), https://history.hanover.edu/courses/excerpts/165acton.html [https://perma.cc/2JX8- 8K3K]. 89

V. State Constitutional Alternatives to Schneckloth (Fourteen Departures).

A. Introduction. Article I, section 8 of the Iowa Constitution is similar,

though not identical, to the Fourth Amendment to the United States

Constitution. As a state supreme court, we are the final arbiter of the meaning

of the state constitution. The question is whether we should take an approach

to consent searches that departs from Schneckloth and its progeny. As the United

States Supreme Court has dramatically lessened the scope of protections under

the Fourth Amendment, some state supreme courts have resisted. Indeed,

according to one recent study, there are 125 cases in a total of thirty-seven states

involving questions where federal search and seizure precedent was “[n]ot

followed on state law grounds.”242 Only thirteen states remain, either through

express holding or through lock-stepping state constitutional interpretation to

federal caselaw.243 Iowa has been listed in the study as “not following” federal

search and seizure precedent on fourteen occasions, making it fall in the middle

of the pack of states engaged in independent state constitutional

interpretation.244

These state court cases are a virtual cornucopia of material to highlight

interpretive options that are available under state law. In order to enlighten the

242LaKeith Faulkner & Cristopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197, 198 (2020) [hereinafter Faulkner & Green]. The authors do not include in their study occasions where state courts have, according to Westlaw, merely distinguished federal precedent. See also Michael J. Gorman, Survey: State Search and Seizure Analogs, 77 Miss. L.J. 417 (2007). 243Faulkner & Green at 212. 244Id. at 211 & n.163. 90

discussion, I review cases in other states that depart from Schneckloth v.

Bustamante to gain insight on the best course for Iowa in this case. As will be

seen below, at least fourteen states, including Iowa, have decided to depart in

some fashion from the federal model in considering search and seizure issues

under their state constitutions related to consent searches.

B. New Jersey: Double-Barreled Adoption of Waiver and Reasonable

Suspicion Requirements for Consent Searches. Shortly after the United States

Supreme Court decided Schneckloth, the New Jersey Supreme Court in State v.

Johnson245 considered a question of consent to search under article I, section 7

of the New Jersey Constitution. Like article I, section 8 of the Iowa Constitution,

the search and seizure provision of the New Jersey Constitution was “taken

almost verbatim” from the Fourth Amendment.246

In Johnson, the New Jersey Supreme Court determined to use the

traditional waiver principles in connection with consent searches.247 According

to the Johnson court, “Many persons, perhaps most, would view the request of a

police officer to make a search as having the force of law.”248 The Johnson court

stated that police would not necessarily be required to advise the person of the

right to refuse consent in all instances, but the burden of proving knowledge

245State v. Johnson, 346 A.2d 66 (N.J. 1975). 246Id. at 68 n.2. 247Id. at 68. 248Id. 91

rested with the state.249 As a result of the ruling, however, the New Jersey state

police developed a consent to search form to conform to the Johnson ruling.250

Still, this is not the end of the story. The New Jersey Supreme Court again

revisited this issue in State v. Carty.251 In Carty, the New Jersey court held that

in the context of a traffic stop, even the protections of an explicit warning from

police were insufficient.252 According to the Carty court, “where the individual is

at the side of the road and confronted by a uniformed officer seeking to search

his or her vehicle, it is not a stretch of the imagination to assume that the

individual feels compelled to consent.”253

The Carty court cited data that even with warnings developed in

New Jersey, up to ninety-five percent of motorists agreed to consent searches.254

The Carty court concluded that warnings alone are not sufficient to overcome

the inherent coerciveness of a traffic stop.255 “[W]here the individual is at the side

of the road and confronted by a uniformed officer . . . , it is not a stretch of the

imagination to assume that the individual feels compelled to consent.”256 The

first-tell-then-ask rule and the Johnson standard, according to the Carty court,

“are either not voluntary because people feel compelled to consent for various

249Id.

250State v. Carty, 790 A.2d 903, 907 (N.J. 2002) (describing the consent form developed in response to Johnson). 251Id. at 905. 252Id. at 911. 253Id. at 910. 254Id. at 910–11. 255Id. at 911. 256Id. at 910. 92

reasons, or are not reasonable because of the detention associated with

obtaining and executing the consent search.”257

As a result, the Carty court declared that before police could seek a

consent search in the context of an automobile stop, there must first be

reasonable and articulable suspicion that would satisfy Terry v. Ohio.258 The

Carty court declared:

The requirement of reasonable and articulable suspicion is derived from our State Constitution and serves to validate the continued detention associated with the search. It also serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop.259

C. Ohio: Totality of the Circumstances “With Teeth.” The Ohio

Supreme Court has departed from the approach of the United States Supreme

Court in the context of a consent search arising from a traffic stop. In Ohio v.

Robinette, a police officer made a traffic stop of a speeder, Robinette.260 Robinette

produced a valid license and registration.261 The detective asked Robinette to

step toward the back so the detective could videotape a warning for the speeding

violation.262 After videotaping the warning, the detective turned to Robinette and

the following colloquy occurred:

257Id. at 911. 258Id. at 912. 259Id.

260Ohio v. Robinette, 519 U.S. 33, 35 (1996). 261Id.

262Id. 93

[Q.] One question before you get gone. Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?

[A.] No.

[Q.] Can I search your car?

[A.] Yes.263

The search produced marijuana, and, after a dog sniff, one dose of meth.264

Robinette was charged with drug crimes and was convicted.265 The Ohio

Court of Appeals reversed on the ground that law enforcement extended the stop

beyond that needed to resolve the traffic infraction.266 The Ohio Supreme Court

affirmed on a different ground. According to the Ohio Supreme Court, Robinette

was entitled to a declaration that he was free to go before the officer engages in

a casual encounter regarding drugs.267 In other words, the approach of the Ohio

Supreme Court was “first tell, then ask.” The ruling was based on both the

Fourth Amendment and the search and seizure provision of article I, section 14

of the Ohio Constitution.

The United States Supreme Court reversed the Ohio Supreme Court with

respect to the Fourth Amendment.268 According to the Robinette Court, there is

no per se requirement that drivers be advised that they may leave to support the

263See Lassiter, 39 Tex. Tech. Rev. at 1182 & n.90 (quoting videotape on file with author). 264Id. at 1183. 265Robinette, 519 U.S. at 36. 266State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995), rev’d, 519 U.S. 33 (1996). 267Id. at 699. 268Robinette, 519 U.S. at 35. 94

validity of the consent to search under the Fourth Amendment.269 The Supreme

Court repeated language from Schneckloth that knowledge of a right to refuse

was a factor in the totality-of-the-circumstances calculation and that requiring

a warning “would be thoroughly impractical.”270 The Supreme Court vacated the

judgment of the Ohio Supreme Court and remanded the case for further

proceedings.

On remand, the Ohio Supreme Court took a different tact.271 The Ohio

Supreme Court backed off from its previous declaration that a statement that

the driver is free to leave is mandatory.272 However, the Ohio Supreme Court

emphasized that many law enforcement agencies engage in the practice of

obtaining written consent.273 Further, the Ohio Supreme Court emphasized that

the lack of any warning weighs heavily in the mix of determining the totality of

the circumstances.274 Ultimately, the Ohio Supreme Court affirmed its prior

result on different grounds.275 This time, however, the Ohio Supreme Court relied

solely on the Ohio Constitution, thereby avoiding further United States Supreme

Court review.276 Robinette represents an application of the totality-of-the-

circumstances test of Schneckloth “with teeth.”

269Id. at 39–40. 270Id.

271State v. Robinette, 685 N.E.2d 762, 766–67 (Ohio 1997). 272Id. at 771. 273Id. at 771 n.6. 274See id. at 771 & n.6. 275Id. at 771–72. 276Id. at 771. 95

D. Mississippi: Knowledgeable Waiver. The Mississippi Supreme Court

has rejected Schneckloth.277 In declining to follow Schneckloth, the Mississippi

Supreme Court declared that “[t]he words of our Mississippi Constitution are not

balloons to be blown up or deflated every time, and precisely in accord with the

interpretation the [United States] Supreme Court, following some tortuous trial,

is constrained to place upon similar words in the U.S. Constitution.”278

According to the Mississippi Supreme Court, under article III, section 23 of the

Mississippi Constitution, waiver of search and seizure rights “is defined as

consent where the defendant knows that he or she has a right to refuse, being

cognizant of his or her rights in the premises.”279

E. Washington State and Arkansas: Warning for Knock and Talk. Two

states provide that in order for consent in the context of a “knock and talk” to be

valid, law enforcement must inform the subjects of their right to refuse the

search. In State v. Ferrier, the Washington Supreme Court noted that any knock

and talk is coercive to some degree.280 “We would simply go further to state the

obvious,” the Ferrier court declared, “that the only sure way to give . . . protection

substance is to require a warning of its existence.”281 Similarly, in State v. Brown,

the Arkansas Supreme Court held that during a knock and talk, the state must

277SeeGraves v. State, 708 So. 2d 858, 863 (Miss. 1997) (en banc); State v. Penick, 440 So. 2d 547 (Miss. 1983). 278Penick, 440 So. 2d at 552. 279Graves, 708 So. 2d at 864. 280State v. Ferrier, 960 P.2d 927, 933 (Wash. 1998) (en banc). 281Id. 96

first inform the homeowner of his right to refuse consent.282 A knock and talk,

of course, is not the same factual context as a driver stopped on the road, but

the reasoning of these cases tends to support a warning of some kind to support

a waiver of constitutional rights.

F. Alaska, Maryland, Minnesota, New Hampshire, North Carolina, and

Ohio: Requirement of Independent Reasonable Suspicion to Permit

Questioning Beyond Scope of the Traffic Stop. The United States Supreme

Court in Rodriguez v. United States has determined that while the duration of a

traffic stop may not be extended to conduct an unrelated investigation, there are

no limitations regarding the scope of the investigation while the traffic stop is

being conducted.283 Several states have rejected that approach and held that

before police may pursue a consent search for drugs, there must be independent

reasonable suspicion that a drug or other violation is occurring.284

G. South Dakota and Texas: “Clear and Convincing Evidence.” The

South Dakota Supreme Court has not required a Miranda-type warning in the

context of consent searches; however, it requires that the state must establish

“by clear and convincing evidence” that the search was a result of “free,

intelligent, unequivocal[,] and specific consent without any duress or coercion,

282State v. Brown, 156 S.W.3d 722, 731–32 (Ark. 2004). 283Rodriguez v. United States, 575 U.S. 348, 354 (2015). 284Ferrisv. State, 735 A.2d 491, 499–500 (Md. 1999); State v. Fort, 660 N.W.2d 415, 418– 19 (Minn. 2003) (en banc); State v. McClendon, 517 S.E.2d 128, 132 (N.C. 1999); State v. McKinnon-Andrews, 846 A.2d 1198, 1203 (N.H. 2004); State v. Retherford, 639 N.E.2d 498, 507 (Ohio Ct. App. 1994). 97

actual or implied.”285 Similarly, a court of appeals in Texas has held that in order

to prove consent to search, the state must prove consent by “clear and convincing

evidence.”286

VI. Iowa Law of Consent in Search and Seizure.

There are several of our cases involving consent to search that bear on the

questions posed in this appeal. As a general matter, as will be seen below, Iowa

cases require a showing of particularity and that any claim of consent to a search

must recognize the power dynamic between the police and the average citizen.

A. State v. Cullison: Rejection of Socio-Juristic Reasoning and

Recognition of Unequal Bargaining Power in Consent Context. In State v.

Cullison, we considered whether a parolee could be subject to a search of his

home without a warrant.287 We said no. We refused to dilute search and seizure

rights based upon “socio-juristic rationalization, i.e., protection of the public.”288

Thus, the state’s interest in obtaining convictions was not sufficient to support

the state’s proposed dilution of parolee rights. To permit such a broad rule that

subjects parolees to discretionary searches was akin to the hated general

warrant of the revolutionary era. Further, we rejected the notion that parolees’

rights were dependent upon some kind of contract, pointing out that the power

dynamic between the parties meant that “one side has all the bargaining

285State v. Nemeti, 472 N.W.2d 477, 478 (S.D. 1991). 286State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997) (en banc). 287State v. Cullison, 173 N.W.2d 533, 535 (Iowa 1970). 288Id. at 536. 98

power.”289 The constitutional recognition of the need to avoid broad classes

subject to discretionary police searches, as well as the recognition of the realities

of the power dynamic in the context of consent, were themes repeated in our

other cases.

B. State v. Ochoa: Rejection of Impracticability as Eviscerating

Warrant Requirement; Mere Acquiescence to Police is Not Consent. In State

v. Ochoa, we considered the continued validity of Cullison principles in the wake

of innovations by the United States Supreme Court that dramatically cut back

on search and seizure protections of parolees under the Fourth Amendment.290

In Ochoa, the state sought to justify a warrantless search of a parolee when there

was no claim of individualized suspicion.291

We refused to follow the eviscerating innovations of the United States

Supreme Court that found getting a warrant impractical.292 We repeated our

often expressed endorsement of the warrant preference requirement, noting that

“[w]e have repeatedly stated that warrantless searches and seizures that did not

fall within one of the ‘jealously and carefully drawn exceptions’ are

289Id. at 537 (quoting People v. Hernandez, 40 Cal. Rptr. 100, 103 (Ct. App. 1964)). 290Ochoa, 792 N.W.2d at 285–86. 291Id. at 263–64. 292Id. at 281–83, 287–91 (discussing Griffin v. Wisconsin, 483 U.S. 868 (1987), United

States v. Knights, 534 U.S. 112 (2001), and Samson v. California, 547 U.S. 843 (2006), and rejecting their approach in interpreting the Iowa Constitution). 99

unreasonable.”293 Instead, we stuck to our guns and required a warrant to

support a search of a parolee.294

We did briefly consider the question of whether Ochoa had consented to

the search.295 We held that the mere acquiescence to a show of government

authority was not sufficient to support the search in the case.296

C. State v. Pals: At a Minimum, Schneckloth “With Teeth.” In Pals v.

State,297 we considered, among other things, the validity of consent to search by

the driver of a vehicle who was seized by police on the open road, held in a police

car, patted down for weapons, not told that he was free to leave, and who had

surrendered his license to the officer.298

We extensively canvassed the caselaw and academic commentary related

to the issue of consent to search in traffic stops, and ultimately found it sufficient

to apply Schneckloth “with teeth.” We noted that, at a minimum, the failure of

the state to advise Pals that he was “free to go” was “a strong factor cutting

against the voluntariness of the search, particularly in the context of a traffic

stop where the individual is seized in the front seat of a police car.”299

293Id. at 285 (quoting State v. Strong, 493 N.W.2d 834, 836 (Iowa 1992)). 294Id. at 291. 295Id. at 291–92. 296Id. at 292. 297Pals, 805 N.W.2d 767. 298Id. at 770–71. 299Id. at 783. 100

We reserved for another day the question of whether consent required

knowing and intelligent waiver such as that required in Johnson v. Zerbst.300 We

declared we would insist on a stricter application of Schneckloth than under

United States Supreme Court precedent. And yet, by adopting the multifactor

approach, our decision in Pals did not establish clearer rules than Schneckloth.

It merely synched up the application of the rules in a fashion more consistent

with human psychology.

D. State v. Baldon: Recognizing Disparate Power Relationships in the

Context of Consent. In State v. Baldon, we considered whether a parole

agreement signed by a parolee as a condition of release could be considered the

basis for voluntary consent under Schneckloth.301 We held that such an

agreement could not be considered the basis for voluntary consent.302

In our analysis, we canvassed the caselaw, noting that in a number of

cases, courts “rejected consent derived from parole agreements as a theory for

upholding searches” as a condition of parole because “such a condition is

coercive and, therefore, involuntary.”303 We noted that in Cullison, we observed

that the state “has all of the bargaining power” with respect to parole

agreements.304

300Id. at 782. 301Baldon, 829 N.W.2d at 791. 302Id. at 803. 303Id. at 792–96. 304Id. at 796 (quoting Cullison, 173 N.W.2d at 537). 101

We further cited the LaFave treatise for the proposition that “ ‘the location

and conditions’ of even a brief detention may be such as to foreclose a finding of

voluntary consent.”305 We concluded consent under all the circumstances “is not

real.”306

E. State v. Short: Rejecting United States Supreme Court Precedents

that Warrant Requirement was Impractical. In State v. Short, we considered

once again whether the warrant requirement applied to a search of a

probationer’s apartment under article I, section 8 of the Iowa Constitution.307 In

this case, however, the state asserted that although a warrant was not obtained,

the state had reasonable suspicion that a crime had occurred.308 We reaffirmed

the principles of Cullison, rejected the notion that search and seizure protection

should be diluted for parolees, and held that a warrantless search even with

reasonable suspicion was invalid under the Iowa Constitution.309

In the analysis, we noted that the United States Supreme Court in a

number of cases has suggested that it was “impracticable” to obtain a warrant

to search the home of a parolee or probationer.310 We rejected the notion that

305Id. at 798 (quoting 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 8.2(b) (5th ed. 2012)). 306Id. at 802. 307State v. Short, 851 N.W.2d 474, 481 (Iowa 2014). 308Id. at 478–79. 309Id. at 506. 310Id. at 497–99. 102

the alleged impracticality provided an exception to the warrant requirement.311

We held that such notion “was wrong then and it is even more wrong today.”312

F. Summary. Yes, the law moves slowly. Yet, the train of cases from

Cullison to Ochoa to Pals to Baldon to Short shows a trend to recognize the

strength of the warrant requirement and the need to recognize the reality of

power dynamics in considering the question of consent. These cases set the stage

for the consideration of questions raised in this case: whether the Johnson v.

Zerbst-type approach should be applied, and, under the circumstances

presented, whether specific warnings should be required.

VII. Discussion.

A. Requirement of Knowledge of the Right to Refuse Consent. In light

of the above discussion, I certainly agree with Hauge that knowledge of the

existence of the right to refuse consent is a necessary requirement for a so-called

consent search. I come to this conclusion for several reasons. For starters, the

general approach to “consent” in the search and seizure area, at least prior to

Schneckloth’s innovations, was waiver. Waiver is the theory that works in the

context of the surrender of a precious constitutional right: the right to be secure

in your person, possessions, property, and home.

Further, the reengineering required to make consent an “exception” to the

warrant requirement subject to the “reasonability” clause of article I, section 8

of the Iowa Constitution is illogical and cannot be justified. A decision regarding

311Id. at 505. 312Id. 103

whether to surrender a right has nothing at all to do with the scope of the

underlying right. Instead, the question here is whether the holder of a precious

constitutional right—namely Hauge—had decided to surrender the right and

therefore give the state permission to search. If he knowingly and intelligently

surrenders his right—the security in his person, property, and effects—such

consent may pass the muster. Otherwise, the right to be secure from the state’s

desire to search and seize remains intact.

What the State wants to do in this case, as was true in Schneckloth, is take

advantage of the ignorance of a person in order to conduct a search that they

otherwise could not constitutionally conduct. In the State’s view, the fact that

Hauge was not informed of his constitutional right is a good thing that advances

public policy. That is an extraordinary proposition. Justices Brennan and

Marshall were mystified fifty years ago how the court could consider the

unknowing surrender of a right “voluntary.” I share their mystification fifty years

later. I think it is clear under the record that the State failed to establish that

Hauge knew he had the right to refuse the search.

B. Requirement of Disclosure of the Right to Refuse. Further, there is

the question of whether we should require a simple warning, namely, that Hauge

had a right to refuse consent and that any such refusal would be honored. There

are clear advantages to requiring such a warning. It is often not clear under all

the facts and circumstances whether a person has knowledge of their right to

refuse consent. But, a requirement to inform a suspect of their rights gives rise

to a simple factual issue that will ensure that a suspect has at last been informed 104

of their right to decline consent. This type of warning protected the Fifth

Amendment rights in Miranda, and it would protect Fourth Amendment rights

in this case.

The real question is what value a consent advisory would have if the

empirical evidence shows that most persons consent to search anyway. Perhaps

so, and yet, substantial logic and normative value require that one knowingly

and voluntarily surrender constitutional rights.

The State declares in a conclusory fashion that requiring a warrant would

be unduly burdensome. That is the same claim that was made in Miranda, and

it has been proven without merit. Countless jurisdictions have utilized consent

in a variety of forms. The State cannot simply declare that a process is

“burdensome” and thereby overcome constitutional commands. If the mere

incantation of “burdensome” is utilized, the burden plainly is on the State to

show why this is so.

C. Alternative Approach: Schneckloth with “Teeth.” A third basis for

reversal is a straightforward application of the totality-of-the-circumstances test

in Pals. One of the instabilities of Schneckloth is that it does not assign any

weight to the factors, thereby permitting a summary of factors and a conclusion

without any analysis. That is exactly what the majority does in this case. But, in

Pals, we emphasized that the failure to provide disclosure of the right to dissent

was a factor that should be “strongly” considered in the voluntariness analysis.

Here, the officer explicitly stated that Hauge was not free to go. In Ohio v.

Robinette, this factor would be dispositive under its Schneckloth with “teeth” 105

approach. At that point in time, Hauge had been removed from the vehicle and

there was no basis to detain him. Hauge had the right to simply walk away.

Nonetheless, the officers made clear to him that they were exercising coercive

power over him and that he was not free to go.

The coercive power of law enforcement is plainly at work as he was seized—

the officer was holding onto Hauge’s driver’s license. And, in light of what we

know about human behavior, Hauge’s testimony that he thought he had no

choice but to submit to the show of authority certainly has the ring of truth. The

fact that the officer was polite does not save the day for the State, as a person

with clear authority often speaks in a soft voice.

Additionally, note the language. The officer asked him if he could “check

[him] for weapons real quick.” Although phrased politely, who would think the

phrase was anything other than a statement of what the officer intended to do.

“Yup” was simply an acknowledgment of the officer’s plan.

VIII. Conclusion.

In summary, the best framework for evaluating surrender of constitutional

rights is the waiver doctrine of Johnson v. Zerbst. The search and seizure

protections of article I, section 8 of the Iowa Constitution are not secondary

organs but are at the heart of our form of government. We should not seek a

work-around to encourage the unknowing surrender of constitutional rights,

and our government should not be in the business of obtaining convictions based

upon a failure to recognize them. In order to ensure that the individual

constitutional rights to be secure in their person, houses, papers, and effects, I 106

would require disclosure, similar but shorter than that required by Miranda, that

a person has the right to refuse consent and that that right will be respected.

Further, on the facts of this case, the State has failed to show waiver under the

Johnson v. Zerbst formula. Further still, even applying the Schneckloth “with

teeth” approach in Pals, the State has failed to meet its burden of showing

“voluntariness.”

For all of the above reasons, I would reverse the district court and remand

the case for further proceedings.