State of Iowa v. Jesse Jon Harbach

• Court: Supreme Court of Iowa
• Decided: February 16, 2024
• Docket: 22-0162
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 22–0162

Submitted October 10, 2023—Filed February 16, 2024

STATE OF IOWA,

Appellant,

vs.

JESSE JON HARBACH,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Delaware County, Monica Zrinyi

Ackley, Judge.

A criminal defendant seeks further review of the court of appeals decision

reversing the district court’s suppression of evidence following a Franks v.

Delaware hearing. COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED.

Oxley, J., delivered the opinion of the court, in which Christensen, C.J., McDonald, and May, JJ., joined. Waterman, J., filed a dissenting opinion, in

which Mansfield and McDermott, JJ., joined.

Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellant.

Martha Lucey, State Appellate Defender, and Maria Ruhtenberg, Assistant

Appellate Defender, for appellee. 2

OXLEY, Justice. The law favors warrants. And when a neutral judge issues a warrant based

on an officer’s sworn affidavit detailing facts that support probable cause, that

affidavit is presumed to be true. Therefore, a defendant seeking to exclude facts

included in a warrant application as untrue must not only show the facts to be

false but must also show that the false statements were either included

(1) intentionally to mislead the issuing judge, or (2) with reckless disregard for

whether they would be misleading.

In this case, an officer investigating a one-vehicle rollover accident sought

a warrant for a blood draw from the driver, who was taken to the hospital. The

warrant was granted, and the subsequent blood draw revealed

methamphetamine but no alcohol. The driver moved to suppress evidence from

the blood draw, which the district court granted. The district court relied on the

officer’s bodycam video to conclude that the officer lied when he claimed he could

smell alcohol on the defendant and that the defendant’s eyes were blurry and

his speech slurred. Excising those statements from the warrant application

under Franks v. Delaware, see 438 U.S. 154, 155–56 (1978), the district court

concluded the remaining statements about the accident were insufficient to establish probable cause to issue a warrant and granted the motion to suppress.

But a bodycam video is not a de novo review for probable cause based on

everything the officer knows. The Franks v. Delaware standard sets a high bar

for concluding that an officer intentionally or recklessly included false

information in an affidavit to support reconsidering whether the neutral

magistrate reviewing the warrant application properly issued the warrant. And

when intentionally false statements are properly excised under the Franks

standard, the reviewing court is limited to reviewing the remaining facts included 3

in the warrant application to determine whether the warrant was supported by

probable cause.

Applying the proper standard, we conclude the warrant affidavit

established probable cause to support the warrant, and we reverse the district

court’s order suppressing the evidence.

I. Background.

Around 5:30 p.m. on May 21, 2021, Jesse Harbach was driving near Delhi,

Iowa, when he was thrown from his truck in a one-vehicle rollover accident.

When Deputy Mitch Knipper arrived on the scene, Harbach was lying on a

backboard receiving medical treatment. Knipper questioned Harbach about the

accident and whether he had been drinking. Based on his observations, Knipper

applied for a warrant to obtain “[a] blood, urine, and/or breath specimen from”

Harbach. A judge granted the warrant application for a blood draw.

Harbach was taken to Manchester Regional Medical Center, where he was

originally treated. Deputy Knipper informed the Manchester medical center of

the warrant, but a blood draw was not taken at that time because Harbach was

“uncooperative and resistant,” and medical personnel warned of additional

internal injuries if they continued their attempt to take the blood draw. Harbach was then airlifted to St. Luke’s Hospital in Cedar Rapids.

Knipper applied for a second search warrant directed to St. Luke’s

Hospital. The accompanying affidavit described the one-vehicle rollover accident

as occurring at 5:30 p.m. on a May afternoon: “There were skid marks from the

defendant’s vehicle approaching the intersection, and skid marks around the

corner of the intersection. The vehicle then entered the ditch and rolled at least

one time, landing on its top.” Knipper also checked boxes on the preprinted form,

identifying the following observations of impairment and results of field sobriety tests: 4

Based on this application, a second warrant was issued, and a blood draw was

taken from Harbach at St. Luke’s Hospital in Cedar Rapids approximately three

hours after the accident. The blood sample was sent to the Department of

Criminal Investigation (DCI) lab. The DCI report identified 634 NG/ML of

methamphetamine in Harbach’s blood but no alcohol. Harbach was

subsequently charged with operating while intoxicated in violation of Iowa Code

§ 321J.2 (2021). Harbach filed a motion to suppress evidence obtained from the blood draw,

which asserted the deputy’s application was based only on his claims that he

smelled alcohol and observed Harbach with bloodshot eyes and slurred speech.

Noting that the DCI test results of the blood draw reported no alcohol, Harbach

argued that Knipper’s allegation that he smelled alcohol was false, leaving

inadequate facts to support issuing the warrant. In response, the State argued

that Harbach could not establish that the deputy intentionally made false 5

statements or that a material statement made by the deputy was “false, whether

intentional or not,” quoting State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).1

The district court held a suppression hearing on January 4, 2022. At the

hearing, Deputy Knipper testified about his observations at the scene of the

accident and his statements in the search warrant application. Knipper testified

that Harbach was receiving medical treatment near the wrecked vehicle when he

arrived at the scene. Knipper briefly spoke with Harbach, who confirmed he was

the only person in the vehicle. Harbach mentioned he had an issue with his

brakes, and he thought the truck had rolled on top of him. Knipper spoke with

Harbach a second time while he was receiving medical treatment in the back of

an ambulance. Knipper asked Harbach if he had been drinking, but, according

to Knipper, “he was not very forthcoming with any answers.” Knipper testified

that he could only smell gasoline near the accident scene, but inside the

ambulance, he observed that Harbach “had watery, bloodshot eyes, his speech

was somewhat, somewhat mumbled and slurred, and I detected the odor of

alcoholic beverages coming from his person.”

Knipper’s bodycam video was admitted into evidence and viewed by the

district court during the suppression hearing. The video showed that when Knipper arrived at the scene, Harbach was already strapped to a backboard,

receiving medical treatment, and wearing a neck brace. Harbach had visible

injuries to his face and was in obvious pain anytime he was moved. Paramedics

and nearby witnesses told Deputy Knipper that Harbach had swerved to avoid

an Amish buggy. Witnesses stated that they heard tires squealing and saw an

Amish buggy in the road but that the buggy driver had left the scene. Knipper

1This is a misstatement of the law. The State’s resistance quoted a part of Groff discussing

State v. Boyd, which, as discussed below, we overruled in Groff. See 323 N.W.2d at 208 (overruling State v. Boyd, 224 N.W.2d 609, 616 (Iowa 1974)). 6

can be heard on the video telling two other officers that he could only smell

gasoline by the scene but that he’s “gonna guess it’s a 55.”2

Knipper followed as paramedics moved Harbach to the back of an

ambulance. Knipper can be heard on the bodycam video asking Harbach his date

of birth and where he was driving from. Harbach provided his birthdate but then

responded, “I can’t talk right now. It hurts to talk.” One of the medical personnel

asked Knipper to move because he was in the way of Harbach’s treatment.

Knipper left the ambulance briefly, but then he re-entered and asked Harbach

again where he had been coming from. In response to being asked a second time,

Harbach shook his head and told a paramedic: “Tell this guy to quit questioning

me; it hurts.” Knipper asked Harbach if he had anything to drink that day.

Harbach did not immediately answer but eventually responded that he did not.

The State also offered into evidence a medical report from the Manchester

medical center showing an ethanol level of “42.”

That report was not sent to DCI, and Knipper testified that he did not know what the ethanol level meant or whether it translated to blood alcohol content level.

The State argued it translated to a .042 BAC reading.

Relying on its review of the bodycam video, the district court concluded

that Harbach’s speech was not slurred and he did not have bloodshot or watery

eyes. The court also took issue with Knipper’s statement in the affidavit that he

smelled alcohol on Harbach, concluding, “It is unclear what [Knipper] could

2The parties do not dispute that “55” is a reference to a suspected drunk driver. See Ass’n

of Pub. Commc’ns Officers, Official Ten Code List, http://www.njsoa.org/pdfs/tencode.pdf [https://perma.cc/ZXC3-SLMP]. 7

smell in the ambulance given all the medical supplies contained inside and the

equipment being used on the Defendant.” Noting that the St. Luke’s blood draw

did not show any alcohol in Harbach’s system, the district court surmised: “It

begs the question then, how could one smell what is not present?” After

extracting the “offensive statements” from the warrant application, the district

court concluded that the remaining content proved only an accident, not

Knipper’s assumption that the defendant had been drinking. Where bystanders

told Knipper they heard squealing tires and saw the Amish buggy but “[t]here

was no indicia of drinking about the person of the Defendant,” probable cause

was lacking to support the warrant for a blood draw. As a result, the district

court granted Harbach’s motion to suppress and struck the evidence gathered

pursuant to the warrant.

The State sought discretionary review of the district court’s suppression

order. We granted the application and transferred the case to the court of

appeals. On its de novo review, the court of appeals determined the only

statement that was shown to be intentionally false or misleading was Knipper’s

assertion on the preprinted form that Harbach refused the preliminary breath

test and horizontal gaze nystagmus (HGN) test. Setting those facts aside, the court of appeals concluded that the remaining content established probable

cause for issuance of the warrant and reversed the district court’s suppression

order.

We granted Harbach’s application for further review to determine whether

the district court properly applied the Franks v. Delaware standard for reviewing

a warrant affidavit.

II. Analysis.

A search warrant may issue only upon a showing of probable cause. See U.S. Const. amend. IV; Iowa Const. art. I, sec. 8. We review suppression rulings 8

raising constitutional questions de novo. State v. Bracy, 971 N.W.2d 563, 567

(Iowa 2022). “However, we do not make an independent determination of

probable cause . . . .” Id. (quoting State v.McNeal, 867 N.W.2d 91, 99 (Iowa

2015)). When a defendant challenges a warrant as lacking probable cause, “we

review the information actually presented to the judge and determine whether

the issuing judge had a substantial basis for concluding that probable cause

existed.” State v. Baker, 925 N.W.2d 602, 613 (Iowa 2019); see also Bracy, 971

N.W.2d at 564 (describing our standard of review as deferential).

The general procedure for obtaining a search warrant is as follows: an

officer submits a sworn affidavit providing a recitation of facts to the court, and

a judge determines whether those facts establish probable cause to issue a

search warrant. The affidavit’s purpose is “to provide a neutral and detached

magistrate with objective facts upon which [s]he can make an independent

determination of probable cause.” Groff, 323 N.W.2d at 210. From the

information provided in the affidavit, the issuing court makes a “practical,

common-sense” determination of whether it would convince a person of

reasonable prudence that evidence of a crime could be located at the place to be

searched. Baker, 925 N.W.2d at 613 (quoting State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997)).

A defendant can challenge a warrant by claiming the facts recited in the

affidavit do not establish probable cause that the search will reveal evidence of

a crime. See Bracy, 971 N.W.2d at 568. When a defendant has reason to believe

the warrant application contains false or misleading statements, he can also

challenge the warrant by challenging the veracity of the application. See Franks,

438 U.S. at 155–56; Baker, 925 N.W.2d at 614; Groff, 323 N.W.2d at 209.

Affidavits included in search warrant applications are presumed to be true. Groff, 323 N.W.2d at 209. To overcome that presumption, a defendant 9

challenging the veracity of a warrant application must make a “substantial

preliminary showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in the warrant

affidavit.” Franks, 438 U.S. at 155–56; see also Baker, 925 N.W.2d at 614 (noting

the preliminary showing must generally be made under oath). If that preliminary

showing is made, the court holds a hearing—referred to as a “Franks hearing”—

where evidence may be presented to show whether the statements are knowingly

or recklessly false. Franks, 438 U.S. at 155–56. A defendant may also challenge

the warrant application as intentionally omitting material facts that, if included,

would cast doubt on the existence of probable cause. State v. Green, 540 N.W.2d

649, 656 (Iowa 1995).

If the court finds that any misstatements or material omissions were made

either intentionally or with reckless disregard for the truth, the false statements

are excised, the omitted statements are added, and the affidavit’s remaining

content is examined to determine whether it establishes probable cause to

support issuing the search warrant. Id. Although we apply a preponderance of

the evidence standard to determine whether the defendant has shown the officer

intentionally or recklessly included false statements, see Groff, 323 N.W.2d at 206–07 (adopting the Franks standard, which applied a preponderance of the

evidence standard), “[a] showing of deliberate or reckless falsehood is ‘not lightly

met,’ ” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010) (quoting United

States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987)). We adopted the Franks

standard for testing claims of veracity in search warrant affidavits in State v.

Groff, where we overruled our precedent that allowed a warrant based on

materially false statements to be invalidated even when the misstatements were

a product of a good faith or innocent mistake. See 323 N.W.2d at 208 (overruling State v. Boyd, 224 N.W.2d 609, 616 (Iowa 1974)). We adopted the Franks 10

standard because it “more properly promotes the deterrence function of the rule

by permitting veracity challenges only to those false statements that were

tendered in bad faith by the affiant.” Id. Thus, “excision . . . should occur only in

the situation described in Franks v. Delaware: when statements in the warrant

application were intentionally or recklessly false.” Bracy, 971 N.W.2d at 565.

A. District Court Proceedings and Analysis. In his motion to suppress,

Harbach alleged that the affidavit “contained a false allegation that the Deputy

smelled alcohol, when the test results ultimately showed that there was no

alcohol in the blood.” He made no allegation—and offered no proof—of deliberate

falsehood or reckless disregard for the truth of the statements that would entitle

him to a hearing. See Groff, 323 N.W.2d at 209 (describing the preliminary

showing required to mandate an evidentiary hearing). Although the State waived

any procedural challenges by not objecting to the lack of a preliminary showing,

it did challenge whether any purportedly false statements contained in the

affidavit were made intentionally or with reckless disregard for the truth.

Therefore, the ultimate veracity issue was not waived by the State.

Upon concluding the warrant contained “false statements,” the district

court proceeded to analyze whether the affidavit supported probable cause without the false statements. The district court found that Deputy Knipper

“made an assumption as to the reason for the accident” and that his “attitude

adjusted to conclude the Defendant was drinking” when he learned the

defendant’s identity. But these findings do not indicate whether the challenged

statements were intentionally or recklessly false. The district court erred by

excising any statements it concluded were false without first finding that they

were made recklessly or intentionally. The district court’s analysis seemingly

applied the more relaxed standard under State v. Boyd that we overruled in Groff when we adopted the Franks framework. See Groff, 323 N.W.2d at 208. We apply 11

the correct legal standard to determine whether any statements in the

application were in fact false, and if so, whether they were made with an intent

to mislead or with reckless disregard for the truth. See State v. Seager, 341

N.W.2d 420, 425 (Iowa 1983) (recognizing that the district court applied the Boyd

standard and moving on to apply Groff on appeal).

B. Deliberate or Recklessly False Statements. In challenging the

veracity of a warrant application, the defendant must identify the specific

portions of the affidavit claimed to be false. Groff, 323 N.W.2d at 209. In his

motion to suppress, Harbach argued that Knipper’s statement in the affidavit

that he observed the smell of alcohol was false. Additionally, he argued that

Knipper’s observations of bloodshot and watery eyes were a result of his injuries,

not intoxication, which made Knipper’s omission of Harbach’s condition from the

accident a material misrepresentation that casts doubt on the existence of

Because the statement must be both (1) false within the meaning of Franks

and (2) made with intent or reckless disregard for the truth, we often address the

issues together. Even if a statement is shown to be false, it will only be excised

from the affidavit if made intentionally or with reckless disregard for the truth. See, e.g., id. at 210–12 (concluding that even if an affidavit included a statement

that the defendant owned—rather than farmed—a field where plants appearing

to be marijuana were grown, the statement could not be excised where the

evidence established only that the officer was negligent in not verifying certain

information included in a warrant application). We consider each of the

statements Harbach claims to be false.

1. Smell of alcohol coming from Harbach. Harbach argues that the

toxicology report showing no alcohol in his blood proves that Knipper lied about smelling alcohol on Harbach in the ambulance. The district court agreed, 12

surmising, “[H]ow could one smell what is not present?” As an initial matter, we

reject the State’s argument, premised on Justice Stevens’s dissent in Illinois v.

Gates, see 462 U.S. 213, 293 (1983) (Stevens, J., dissenting) (explaining that

“subsequent events may [not] be considered in evaluating the warrant”), that the

district court should not have considered matters outside the application when

determining the search warrant’s validity. There is a difference between the

analysis for determining whether probable cause supported the warrant (which

is limited to the facts before the issuing judge) and the analysis for determining

the truthfulness of statements in a warrant application. See Green, 540 N.W.2d

at 657 (“[I]n determining whether misrepresentation was intentional or material

the surrounding facts are relevant and may be considered.” (quoting State v.

Paterno, 309 N.W.2d 420, 424 (Iowa 1981))). Thus, the district court properly

considered the results of Harbach’s blood draw in determining whether Knipper’s

statement that he smelled alcohol was false.

The district court found that Knipper “made an assumption as to the

reason for the accident,” and from that observation, it concluded that Knipper

must have lied about smelling alcohol: “When he found out who the driver was,

the deputy’s attitude adjusted to conclude [Harbach] was drinking.” Even so, it is an officer’s job to investigate an accident scene, which may include probing

into any suspicions arising from their prior history with an individual. Deputy

Knipper’s suspicion that Harbach was drinking based on his prior experience

with Harbach alone would not have provided probable cause to support a

warrant. But that prior knowledge did alert Knipper to look for signs of

intoxication, which would have included ascertaining whether Harbach smelled

of alcohol. That his suspicions were heightened once he learned Harbach’s

identity does not support the conclusion that Knipper falsified statements in the affidavit. 13

The district court relied on the blood draw results to determine that

Knipper lied about smelling alcohol. But the results of the blood draw alone are

not enough to prove that the statement was intentionally or recklessly false. The

blood draw was taken after Harbach was airlifted from the Manchester medical

center to St. Lukes Hospital in Cedar Rapids, which Knipper testified was

approximately three hours after he observed the smell of alcohol. Given the

relatively quick dissipation of alcohol from the bloodstream, see, e.g., State v.

Johnson, 744 N.W.2d 340, 344 (Iowa 2008) (holding that the natural dissipation

of alcohol provided exigent circumstances to support warrantless blood draw

following serious accident where “more than two and a half hours passed

between the time of the accident and the time Johnson’s blood was drawn”), the

fact that a blood draw taken hours later reported no alcohol does not establish

that Knipper lied when he said he smelled alcohol coming from Harbach, let

alone that any misstatement was intentional.

Based on its review of the bodycam video, the district court also discredited

Knipper’s claim to have smelled alcohol because he was only in the ambulance

for a short time and it was “unclear what [Knipper] could smell in the ambulance

given all the medical supplies contained inside.” But video footage sheds no light on what an officer can smell. Officer Knipper had extensive training and

experience investigating OWIs, including what an alcoholic beverage smells like

on a driver’s breath. Knipper testified he was within a foot-and-a-half of Harbach

when he was inside the back of the ambulance. Harbach presented no evidence

that smells emanating from other medical supplies inside the ambulance were

so strong they would have prevented Knipper from smelling alcohol coming from

Harbach. Nor was there any evidence that the smell of medical supplies could be

mistaken for the smell of an alcoholic beverage such that the medical supplies could have been the source of the alcohol Knipper smelled. And the district court 14

certainly couldn’t tell either of those things from viewing the bodycam footage.

Further, for purposes of determining whether Harbach showed that Knipper’s

statement that he smelled alcohol was in fact false, we cannot ignore that the

serum report from the Manchester medical center—taken much closer in time to

the accident—showed an ethanol level of 42. We can take judicial notice that an

ethanol level computes to a .042 blood alcohol content.3 That Knipper was

unaware of that fact is irrelevant, as he did not rely on that report to support the

warrant application. But it does refute the district court’s reliance on the later

lab report that showed no alcohol in Harbach’s blood three hours after the

accident to conclude that Knipper could not “smell what is not present.”

Even so, to the extent the district court was suggesting that Knipper’s

smell of alcohol could have been from medical supplies in the ambulance rather

than from Harbach’s person, that fact would not make the statement that he

smelled alcohol false. It would only make Knipper mistaken as to the source. But

a mistake does not rise to the level of an intentional or reckless falsehood. See

Groff, 323 N.W.2d at 210–12 (concluding that the officer’s negligence in failing

to verify information included in a warrant application did not satisfy the Franks

requirement that the statement be included intentionally or with reckless disregard for the truth). That other explanations might exist for an officer’s

observations is insufficient to establish the statement’s falsity. See id. Harbach

failed to establish that Knipper’s statement that he smelled alcohol was false, let

alone that it was intentionally false, and it should not have been excised from

the warrant application.

3See Preeti Dalawari, Ethanol Level, Medscape (Nov. 19, 2019), https://emedicine.medscape.com/article/2090019-overview?form=fpf [https://perma.cc/G2PB-QEPF] (“To convert serum ethanol level to BAC, move the decimal point 3 places to the left. Example, a 100 mg/dL serum ethanol level is equivalent to a 0.10 (g/dL) BAC.”). 15

2. Bloodshot, watery eyes and slurred, mumbled speech. Based on the

district court’s review of the bodycam video, it also concluded that Harbach did

not have bloodshot, watery eyes or slurred, mumbling speech. We acknowledge

that an officer’s bodycam footage can provide valuable information to a court

reviewing events that are otherwise only available through witness testimony. It

is tempting for a reviewing court to make its own determination of whether

probable cause exists to support a warrant after watching a bodycam video. But

that is not the purpose, nor the function, of a Franks hearing. As a general

matter, obtaining a warrant from a neutral judge is the preferred method of

obtaining evidence. In the context of challenges to a warrant affidavit—which

starts with a presumption of truthfulness—courts must be careful not to simply

conduct their own de novo review for probable cause based on what can be seen

on a bodycam video. See Gates, 462 U.S. at 236 (“[W]e have repeatedly said that

after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take

the form of de novo review. A magistrate’s ‘determination of probable cause

should be paid great deference by reviewing courts.’ ‘A grudging or negative

attitude by reviewing courts toward warrants’ is inconsistent with the Fourth

Amendment’s strong preference for searches conducted pursuant to a warrant, [and] ‘courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a

hypertechnical, rather than a commonsense, manner.’ ” (second and third

alteration and omission in original) (quoting Spinelli v. United States, 393 U.S.

410, 419 (1969), abrogated in part on other grounds by Gates, 462 U.S. at 214,

and United States v. Ventresca, 380 U.S. 102, 108, 109 (1965))).

The district court determined that Knipper lied when he said Harbach’s

eyes were bloodshot and watery because it did not believe the video showed that.

While a good view of Harbach’s eyes in the video might have corroborated Knipper’s observation, the video is not so clear or the angle so direct that one 16

could conclude that Harbach’s eyes were not in fact bloodshot such that Knipper

was lying when he made that statement in the affidavit. Again, it is not the

officer’s burden to corroborate his affidavit; it is the defendant’s burden to prove

the affidavit contains intentionally false statements. See Groff, 323 N.W.2d at

207–08. The same is true with respect to the district court’s belief that Harbach’s

speech was not slurred or mumbling. The audio from the bodycam is not so clear

to capture everything that Harbach said. And critically, the district court

conceded that “[a]t times [Harbach] was muttering,” so it agreed with the fact of

muttering speech. Nonetheless, the district court provided an alternate

explanation—that Harbach “was muttering due to the pain” as apparently

revealed by the fact that he was strapped down to a backboard in a neck brace.

Whether there was another explanation for muttered speech is a different issue

from whether the video shows that Knipper had to have been lying when he said

Harbach’s speech was slurred or mumbling.

Even though bodycam footage can be useful, courts should be careful in

relying on the footage when determining specific facts that are not easily

observable from the video. This is especially true in the context of Franks

challenges, where the statement need not only be false but must also be made with intentional or reckless disregard for the truth. Small details such as

bloodshot or watery eyes are not clearly observable from the footage. The

bodycam video does not support the district court’s conclusion that Knipper was

lying when he stated that Harbach had bloodshot, watery eyes and that his

speech was slurred and mumbled.

3. Misrepresentation by omission. The Franks doctrine applies to

“situations involving the omission of crucial information from a warrant

application as well as the inclusion of inaccurate information.” State v. Poulin, 620 N.W.2d 287, 289 (Iowa 2000) (en banc). When a defendant challenges 17

omitted information, he must show “(1) that facts were omitted with the intent

to make, or in reckless disregard of whether they make, the affidavit misleading;

and (2) that the affidavit, if supplemented by the omitted information, could not

support a finding of probable cause.” United States v. Johnson, 75 F.4th 833,

841 (8th Cir. 2023) (quoting United States v. Conant, 799 F.3d 1195, 1200 (8th

Cir. 2015)). “Reckless disregard requires showing that the officer ‘must have

entertained serious doubts as to the truth of his statements or had obvious

reasons to doubt the accuracy of the information.’ ” Id. at 841–42 (quoting United

States v. Reed, 921 F.3d 751, 756 (8th Cir. 2019)); see also United States v.

Hines, 62 F.4th 1087, 1094 (8th Cir. 2023) (“[R]eckless disregard for the truth

may be inferred . . . only when the material omitted would have been clearly

critical to the finding of probable cause.” (omission in original) (quoting United

States v. Randle, 39 F.4th 533, 537–38 (8th Cir. 2022)).

Thus, a defendant may challenge the warrant application as deliberately

omitting a material fact that would cast serious doubt on the existence of

probable cause if it had been included. Green, 540 N.W.2d at 656. Upon

determining that the omissions were material and intentionally (or at least

recklessly) excluded to make the application misleading, the court then includes that information in assessing whether the application establishes probable

cause. See Franks, 438 U.S. at 156; United States v. Buchanan, 167 F.3d 1207,

1210 (8th Cir. 1999).

An officer is not required to include all facts in the warrant application,

even those exculpatory to the defendant. See State v. Ripperger, 514 N.W.2d 740,

745 (Iowa Ct. App. 1994). The core inquiry is whether the issuing judge was

presented with sufficient evidence to determine whether probable cause existed

under the totality of the circumstances. Id. at 746. In State v. Ripperger, the defendant argued the warrant application left out critical facts that tended to 18

show his innocence. Id. at 745. In that case, the defendant pointed to the officer’s

testimony that the officer “felt he had no duty to include facts in the warrant

application which tended to show that the suspect (Ripperger) was not guilty” to

establish that the officer had intentionally omitted material information. Id. Our

court of appeals concluded that the officer’s concentration on facts supporting

probable cause was not fatal to the warrant as long as the evidence presented

did not prevent the judge “from exercising his function of independently

reviewing the facts to determine whether probable cause existed.” Id.

In State v. Green, officers obtained a warrant to search the defendant’s

home after his girlfriend, Rosemary McGivney, was reported missing. 540 N.W.2d

at 653. The warrant application in Green included a copy of a missing persons

report, the officer’s observations that McGivney’s car was present at Green’s

residence, Green’s refusal to allow officers to search his residence, and

information about a number of domestic abuse calls at the residence when Green

and McGivney lived together as facts to support probable cause. Id. at 655–56.

Green argued that the officer deliberately omitted Green’s assertion that he

bought McGivney’s car—an explanation for why it was in his garage—and that

the omission cast doubt on the existence of probable cause. Id. at 657. We concluded that this omission was immaterial because the judge did not rely on

the car’s presence at Green’s house in determining whether probable cause

existed for the warrant, so the presence of an alternate explanation would not

have mattered. Id.

In district court, Harbach challenged the affidavit for omitting information

about his physical condition. Harbach pointed out that while the affidavit

included observations of impairment, such as bloodshot and watery eyes, it

omitted the fact that he suffered an eye injury as a result of the accident. However, this assertion is not entirely accurate. Although Knipper did not specify 19

that Harbach had scrapes on his face, as can be seen in the bodycam footage,

he did state that Harbach had “injuries consistent with” being in a rollover

accident. That Harbach had scrapes around his eyes does not detract from the

fact that his eyes were bloodshot and watery, which provides evidence of

intoxication. Green and Ripperger establish that a warrant affiant need not

include all exculpatory information or facts that could provide an alternate

explanation for the stated observations. The observation of bloodshot and watery

eyes does not become misleading simply because there may be an alternate

explanation that was not explicitly included in the warrant application. The judge

only needs to receive the information necessary to determine whether probable

cause exists under the totality of the circumstances.

Furthermore, there is no indication that Knipper intentionally or recklessly

omitted information about Harbach’s physical condition in an attempt to mislead

the judge. On this point, we find the Michigan Court of Appeals decision in People

v. Sternberg, No. 217022, 1999 WL 33436061 (Mich. Ct. App. Sept. 3, 1999) (per

curiam), to be instructive. In that case, the trial court granted the defendant’s

motion to suppress her blood test results following a car accident because the

affidavit failed to include the officer’s observation that the defendant’s emotional condition—not intoxication—may have caused her watery eyes and the omission

constituted a material misrepresentation. Id. at *1. The appellate court

disagreed, concluding that the defendant had not established that the officer

made this omission with intentional or reckless disregard for the truth. Id. at *2.

Rather, the officer testified it was unclear whether the defendant’s watery eyes

and flushed face were more closely related to the accident or her emotional

condition. Id.

At the suppression hearing, Deputy Knipper testified that he did not know the physiological effects of car accidents on the human body when asked if it 20

was common for people to have bloodshot eyes following an accident. This does

not rise to the level of a deliberate omission of facts about Harbach’s physical

condition from the accident. The issuing judge knew that Harbach sustained

physical injuries because the warrant application stated that he had “injuries

consistent with being involved in a motor vehicle accident.” Knipper also

described the accident as a “one-vehicle rollover” and stated that the vehicle

rolled at least once, landing on its top. The deputy’s failure to include every detail

about Harbach’s injuries does not make the affidavit misleading.

We conclude that Knipper’s description of the nature of the accident and

his statement that Harbach suffered injuries consistent with being in a rollover

vehicle accident sufficiently apprised the issuing court of his condition. None of

the omitted information made the affidavit misleading.

4. Refusal to submit to preliminary tests. The warrant application stated

that Harbach “refused” to take a preliminary breath test or an HGN test. Harbach

did not challenge these statements in his motion to suppress, and the district

court did not consider whether Knipper’s assertions that Harbach refused those

tests were intentionally or recklessly false. The court of appeals nonetheless

reviewed the video and concluded that Knipper never asked Harbach to perform either an HGN or a breath test, so his assertion that Harbach refused these tests

was intentionally or recklessly false. As a result, the court of appeals concluded

that statement should have been excised from the affidavit before assessing

whether probable cause was supported. It nonetheless concluded that even

without this information, the affidavit provided sufficient probable cause to issue

the warrant.

We question whether this issue is even properly before us. In his motion

to suppress, Harbach argued that Knipper’s observations that he smelled alcohol and observed Harbach’s bloodshot eyes and slurred speech were false such that 21

Knipper lacked the requisite suspicion to even conduct field sobriety tests. But

Harbach never complained to the district court that he in fact was never

requested to take the tests. Nonetheless, like the court of appeals, we remove

these statements in determining whether there was probable cause to support

issuing the search warrant.

C. Probable Cause. After excising the information regarding Harbach’s

refusal to consent to preliminary tests, our task is to determine whether the

search warrant application on its face established probable cause to issue the

warrant. See ONeil v. United States, 966 F.3d 764, 771 (8th Cir. 2020) (explaining

that “only the information found within the four corners of the affidavit may be

considered” in assessing probable cause and holding that even after the false

information was excised, the remaining information contained in affidavit

supported probable cause (quoting United States v. Wells, 347 F.3d 280, 286 (8th

Cir. 2003))); see also Bracy, 971 N.W.2d at 567 (explaining that “we examine only

the information actually presented to the [issuing] judge” without “strictly

scrutiniz[ing] the sufficiency of the underlying affidavit,” which we interpret “in

a common sense, rather than a hypertechnical, manner,” and we “decide close

cases in favor of upholding the validity of the warrant” (first and second quoting McNeal, 867 N.W.2d at 99, 100; third quoting Gogg, 561 N.W.2d at 364; and

fourth quoting Baker, 925 N.W.2d at 614)).

Even without considering the excised information regarding the refusal to

consent to testing, the remainder of the search warrant application established

probable cause. Harbach was involved in a single-vehicle accident on a sunny

day. The officer observed that he had bloodshot and watery eyes and that his

speech was slurred and mumbled. And most importantly, the officer smelled an

alcoholic beverage coming from his person. With respect to this last fact, contrary to the district court and the dissent’s assertion, there is no evidence in this 22

record that that statement was false. Indeed, both the district court and the

dissent ignore the medical test taken closer to the time of the accident showing

Harbach had a blood alcohol content of .042. The remaining facts in the warrant

affidavit are sufficient to establish probable cause. See State v. Wenzel, 987

N.W.2d 473, 483 (Iowa Ct. App. 2022) (holding probable cause for a search

warrant was established based on the defendant’s bloodshot eyes, slurred

speech, poor driving, and rejection of field sobriety tests that were facts included

in the application); see also State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992)

(stating that the odor of alcohol on the defendant’s breath and bloodshot, watery

eyes is sufficient to support a finding of probable cause in a drunk driving

context (citing State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981))).

III. Conclusion.

The district court’s suppression order is reversed, and the case is

remanded for further proceedings consistent with this opinion.

COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED. Christensen, C.J., and McDonald and May, JJ., join this opinion.

Waterman, J., files a dissenting opinion, in which Mansfield and McDermott, JJ., join. 23

#22–0162, State v. Harbach

WATERMAN, Justice (dissenting). Imagine you find several pieces of rancid meat in your bowl of stew. Would

you remove them and keep eating or discard the entire bowl? The district court

correctly discarded the bowl. I would affirm the district court’s ruling granting

the defendant’s motion to suppress after the court found Deputy Knipper

intentionally or recklessly made materially false statements and omissions in his

warrant application. My colleagues in the majority, and on the panel of the court

of appeals, err by reversing that ruling. They strain to save the warrant

application despite its rancid pieces. Not me. Once all the false statements are

removed, the remainder falls short of establishing probable cause. I respectfully

dissent.

I’ll start with the facts. As the district court noted, Deputy Knipper’s

attitude changed when he learned the driver was Jesse Harbach. He jumped to

the conclusion that the accident involved drunk driving before he got close

enough to talk to Harbach. Remarkably, Deputy Knipper’s warrant application

never disclosed the fact that upon his arrival at the scene of the rollover accident,

Harbach was already strapped onto a stretcher with a neck brace. That omission is materially misleading. The deputy’s own bodycam video captured his entire

interaction with Harbach and disproves material statements in his warrant

application. Here is where I land based on my own de novo review of the record,

including the video:

• Deputy Knipper wrote that Harbach refused the preliminary breath test

(PBT) and horizontal gaze nystagmus (HGN) test. Those tests were never

offered, and one cannot refuse a test that was never offered. As the court

of appeals determined, the deputy’s false statement regarding the test 24

refusals was made intentionally or recklessly. The majority concedes that

his statement must be excised under Franks.

• Deputy Knipper wrote that he smelled alcohol on Harbach’s breath. On

video, Deputy Knipper states twice he could only smell gasoline. Inside the

ambulance, Deputy Knipper never says aloud that he smelled alcohol.

Harbach’s subsequent blood test showed zero alcohol in his bloodstream.

As the district court stated, “[H]ow could one smell what is not present?” I

agree with the district court that the deputy’s statement about smelling

alcohol on Harbach was false and made intentionally or recklessly.

• Deputy Knipper checked boxes indicating Harbach had “bloodshot eyes”

and “watery eyes.” I agree with the district court that the video “does not

show a person with bloodshot or watery eyes.”

• Deputy Knipper wrote that Harbach “refused to answer any questions.”

(Emphasis added.) This statement, too, is false and made knowingly or

recklessly. In fact, Harbach volunteered his version of the accident: that

he swerved to avoid an Amish buggy, as independent witnesses confirmed

at the scene. And when Knipper asked him if he had anything to drink,

Harbach answered no. When pressed with more questions, Harbach begged off due to his pain. Harbach had to be airlifted to Cedar Rapids for

treatment.

• Deputy Knipper checked boxes indicating Harbach had “slurred speech”

and “mumbling speech.” I agree with the district court that the video

disproves those claims.

I agree with the district court that once Deputy Knipper’s false or recklessly

untrue statements are excised from the warrant application, all that’s left is the

mere fact that Harbach was in an accident, injuring only himself. We have never 25

held that an accident alone is sufficient to establish probable cause. Do we want

any driver who gets in an accident to be subject to a forcible blood draw?

The district court, upon hearing Deputy Knipper testify in person at the

suppression hearing and after viewing the bodycam video, made factual findings

and credibility determinations. The district court found that Deputy Knipper

knowingly made false or recklessly untrue statements in his warrant application.

I reach the same conclusion after reviewing the transcript of his testimony and

watching the same video. While our appellate review of a Franks determination

is de novo, we can and should give weight to the district court’s credibility

determinations based on live testimony. State v. Baker, 925 N.W.2d 602, 609

(Iowa 2019) (“We give deference to the district court’s factual findings, but they

do not bind us.” (quoting State v. Scheffert, 910 N.W.2d 577, 581 (Iowa 2018)));

State v. Simpson, 528 N.W.2d 627, 634 (Iowa 1995) (en banc) (“We defer to the

trial court on matters of credibility of witnesses” who testify live at a Franks

hearing), overruled on other grounds by State v. Webb, 648 N.W.2d 72 (Iowa

2002). The majority fails to give appropriate deference to the district court’s

credibility and factual findings.

Instead, the majority is overly deferential to the contents of the warrant affidavit, even after acknowledging part of it must be excised as false. And the

State’s appellate brief relies on “the cardinal rule that the court does not consider

matters that are subsequent to the warrant to determine the validity of the

issuance of the warrant.” It is true that when reviewing the magistrate’s issuance

of a search warrant, we consider only the information in the warrant application.

See State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995) (en banc) (“[A]ny probable

cause review in response to a motion to suppress must be made upon the basis

of the information presented to the magistrate at the time the warrant was issued . . . .” (alteration in original) (quoting 1 Wayne R. LaFave, Search and Seizure: A 26

Treatise on the Fourth Amendment § 3.1(d) (2d. ed. 1987))). But in a Franks

hearing, new information outside the four corners of the application can and

should be considered on the issue of whether statements in the application are

false and whether false information was submitted intentionally or recklessly.

See United States v. Finley, 612 F.3d 998, 1003 n.7 (8th Cir. 2010) (“Refusing to

consider evidence from beyond the affidavit would contravene the purpose of a

Franks hearing and run contrary to common sense.”). In many cases, that

additional information includes the officer’s bodycam video and subsequent lab

results. As the Texas Court of Criminal Appeals aptly observed:

When a challenge is made as to whether a search warrant affidavit is legally sufficient to show probable cause, the trial court is limited to the “four corners” of the affidavit. See Gaston v. State, 440 S.W.2d 297, 302 (Tex. Crim. App. 1969). This is entirely different from a challenge to the truthfulness of a warrant affidavit and whether the affiant made knowing misrepresentations to establish probable cause. When the defendant challenges the warrant affidavit on the ground that it contains known falsehoods, as is the case here, the trial court is not limited to the “four corners” of the affidavit. See generally, George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure §§ 6.36–6.43 (2d ed. 2001). Limiting a falsity challenge to the four corners of the warrant affidavit negates the underlying challenge and raises serious due process concerns. See Franks v. Delaware, 438 U.S. 154, 156 (1978) (stating that “if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request”) (emphasis added). Thus, if a defendant has made a substantial preliminary showing of deliberate falsity, the trial court is required to go behind the “four corners” of the affidavit in a Franks evidentiary hearing.

Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003) (parallel citations

omitted).

The majority itself relies heavily on an unexplained Manchester lab test

never mentioned in either warrant application. That document refers to an

“ethanol level” of “42.” The district court gave that no weight. The court of appeals also gave “no weight” to that report “because the record is devoid of any 27

explanation of the medical or scientific significance of that information.” Without

citing any case authority, the majority takes judicial notice to convert that

number to a .042 blood alcohol content for Harbach. That is error. In State v.

Washington, we addressed the limited nature of appellate judicial notice:

[No] appellate court should ever take judicial notice of any facts that might control constitutional adjudication without informing all counsel and sending the case back to the trial court to give counsel an opportunity to show the erroneous or irrelevant nature of the facts judicially noticed.

832 N.W.2d 650, 656 (Iowa 2013) (alteration in original) (quoting City of Council

Bluffs v. Cain, 342 N.W.2d 810, 813–14 (Iowa 1983)). The State, as the proponent

of the Manchester lab report, failed to lay any foundation for its admissibility.

See State v. Wolfe, 369 N.W.2d 458, 459 (Iowa Ct. App. 1985) (holding that breath

test results should not have been admitted into evidence because the accuracy

and reliability of the testing method was not proved by the State as the proponent

of the evidence). Like the district court, I instead rely on the unchallenged Iowa

Division of Criminal Investigation lab report showing Harbach had zero alcohol

in his bloodstream.

The majority tries to minimize the material omissions from the application,

most notably that when Deputy Knipper first spoke with Harbach, he was strapped to a backboard, wearing a neck brace, and receiving medical attention.

Then, when the deputy spoke with Harbach a second time, Harbach was inside

the ambulance, still on the backboard and in a neck brace, receiving further

medical treatment. These intentional omissions are “critical.” 2 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.4(b), at 677

(6th ed. 2020). “Any reasonable person would have known that this was the kind

of thing the judge would wish to know.” United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993) (holding that the officer materially misled the magistrate 28

when the officer stated in his affidavit that the police dog showed an interest in

a box but omitted the fact that the police dog did not alert to the box).

The majority also downplays demonstrably false statements, such as

Harbach’s refusal to take the PBT or HGN tests. The majority questions error

preservation because Harbach’s motion to suppress did not explicitly mention

them. Yet Harbach successfully challenged the veracity of the warrant

application in the district court and won the ruling granting his motion to

suppress. As appellee, he was not even required to file an appellate brief. Iowa

R. App. P. 6.903(3) (allowing appellee to waive filing a brief). The State does not

argue Harbach failed to preserve error. No rule of error preservation precludes

our consideration of any part of the record supporting Harbach as appellee.

Harbach claimed, and the district court agreed, that he was entitled to

suppression based on false statements or omissions made intentionally or

recklessly. On our de novo review, we can consider any statement in the warrant

application, even if Harbach did not specifically cite it below. See Feld v.

Borkowski, 790 N.W.2d 72, 83 (Iowa 2010) (Appel, J., concurring in part and

dissenting in part) (explaining that “once a claim is properly presented, a party

is not limited to arguments presented below”). Bodycam video is especially important in Franks hearings when the

officer’s credibility is at issue. The majority downplays the video; I embrace it, as

did the district court. The bodycam video exposed false statements by Deputy

Knipper, including that Harbach refused the PBT and HGN tests that in fact he

never offered him and that Harbach refused to answer “any” questions. And the

video exposed his material omissions about Harbach being strapped to a

stretcher and neck brace. Without that video, our search for the truth is

hindered. Our court has relied on our own review of bodycam video in other decisions. See, e.g., State v. Park, 985 N.W.2d 154, 170, (Iowa 2023) (relying on 29

our court’s “independent review of the bodycam video” to evaluate Miranda

claims). In many cases, dashcam and bodycam video corroborates the officer’s

testimony at a suppression hearing. See State v. Abu Youm, 988 N.W.2d 713,

717 (Iowa 2023) (concluding officers testified consistent with their bodycam video

supporting emergency aid exception to warrant requirement). But see id. at 729

(McDermott, J., dissenting) (concluding bodycam video showed lack of urgency).

At times, the officer will be impeached by the officer’s own bodycam, as happened

here. See State v. Chauvin, 989 N.W.2d 1, 19–20 (Minn. Ct. App. 2023) (finding

video refuted Officer Chauvin’s claim that his knee was not on George Floyd’s

neck).

Nothing in Deputy Knipper’s bodycam video corroborates his claims that

he was close enough to smell an alcoholic beverage on Harbach’s person, that

Harbach’s speech was slurred, or that his eyes were bloodshot or watery. After

the video affirmatively showed the deputy lied about Harbach refusing the PBT

or HGN tests and about Harbach refusing to answer any questions, why believe

the rest of his claims? Do you eat more stew after finding a rancid piece of meat?

I fear today’s opinion will undermine Franks. The warrant application was

replete with false statements. I would affirm the suppression ruling to support the purpose of Franks: incentivizing truthful warrant applications and deterring

false statements in them. See Franks, 438 U.S. at 168 (“[T]hat a warrant not

issue ‘but upon probable cause, supported by Oath or affirmation,’ would be

reduced to a nullity if a police officer was able to use deliberately falsified

allegations to demonstrate probable cause, and, having misled the magistrate,

then was able to remain confident that the ploy was worthwhile.”); State v. Groff,

323 N.W.2d 204, 208 (Iowa 1982) (adopting Franks for Iowa constitutional claims

to better serve its purpose: “to deter constitutionally violative police conduct”). For these reasons, I am unable to join the majority opinion. 30

Mansfield and McDermott, JJ., join this dissent.