State of Iowa v. Kyra Rose Bauler

• Court: Supreme Court of Iowa
• Decided: June 28, 2024
• Docket: 22-1232
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 22–1232

Submitted November 15, 2023—Filed June 28, 2024

STATE OF IOWA,

Appellee,

vs.

KYRA ROSE BAULER,

Appellant.

Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,

Judge.

A defendant appeals the denial of her motion to suppress, challenging the

stop of her vehicle, the open-air dog sniff performed on her vehicle, and the

search of her purse. AFFIRMED.

Mansfield, J., announced the judgment of the court and delivered an

opinion, in which Christensen, C.J., and Waterman, J., joined. McDonald, J.,

filed a special concurrence in which May, J., joined, and Oxley, J., joined as to parts I–II but not the judgment. Oxley, J., filed a dissenting opinion, in which

McDermott, J., joined as to parts II–VI. McDermott, J., filed a dissenting opinion.

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye (argued),

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Joshua A. Duden (argued), Assistant

Attorney General, for appellee. 2

MANSFIELD, Justice. I. Introduction.

We are called upon to decide whether the United States or the Iowa

Constitution was violated when a K-9 handler and his trained canine

momentarily made contact with the exterior of a vehicle while performing an

open-air dog sniff. We conclude that ruff justice is inevitably going to be rough

justice, and that the legality of a dog sniff does not turn on the fine point of

whether the handler or the dog briefly touched the outside of the vehicle, so long

as there was no entry into the private space inside the vehicle. As the United

States Supreme Court has said, dog sniffs are “sui generis” because they reveal

no protected information about the target of the sniff—only the presence or

absence of contraband. Illinois v. Caballes, 543 U.S. 405, 409 (2005); United

States v. Place, 462 U.S. 696, 707 (1983). Thus, details about how the dog is

performing the sniff should not matter so long as the dog is in a place where

police have a right to be. In fact, we should want the dog to do what it needs to

do to assure the results of the sniff are as accurate as possible. Accordingly, we

affirm the order denying the motion to suppress and affirm the defendant’s

convictions and sentence. II. Facts and Procedural History.

On a cold evening in January 2021, Plymouth County Deputy Sheriff

Jaycee Vander Berg was on patrol when she noticed a car driving north on

Highway 75 at approximately fifty-five miles per hour where the posted speed

limit was sixty-five miles per hour. The car was proceeding slower than most

vehicles in heavy traffic. Vander Berg followed the vehicle as it exited the highway

and entered the parking lot of a gas station in Hinton. Vander Berg ran the plates

on the vehicle. She learned that the car was registered to Kyra Bauler and that Bauler had a history of drug offenses. 3

Vander Berg continued to follow the vehicle as it left the gas station and

kept going north on Highway 75. The posted speed limit was sixty-five miles per

hour, but the car was now driving forty-five miles per hour. Traffic was still

heavy, and Vander Berg observed that the car’s low speed was creating traffic

problems. She witnessed vehicles “trying to get around” the vehicle. Vander Berg

described the situation as “kind of messy” and creating a “hazard.” Vander Berg

also saw the vehicle cross the centerline multiple times and ride along the fog

line for some time.

At this point, Vander Berg intended to stop the vehicle, but she waited to

see if the vehicle would take the upcoming exit because she believed that a stop

off of the highway would be safer. The vehicle did take the next exit, and

Vander Berg began to pull closer to the vehicle to make the stop. While this was

going on, Vander Berg contacted Officer Bob Rohmiller of the Le Mars Police

Department and asked him to bring his canine to the scene. Vander Berg

believed that “drug related activity [was] taking place,” and she wanted Rohmiller

to conduct a dog sniff of the vehicle.

After contacting Rohmiller, Deputy Vander Berg stopped the vehicle. The

driver of the vehicle was indeed Bauler. Vander Berg approached the driver’s side of the vehicle. Bauler asked why she was being stopped. Vander Berg informed

Bauler that the reason for the stop was her crossing the center line three times,

crossing the fog line once, and driving forty-five miles per hour in a sixty-five

miles per hour zone. Vander Berg added, “[T]here’s reason to believe that

potentially you could be impaired in some sort of way.” Vander Berg requested

Bauler’s driver’s license and proof of insurance. Bauler handed Vander Berg her

license but could not immediately produce proof of insurance, and Vander Berg

asked Bauler to come with her to the front interior of her patrol car with the stack of papers she was ruffling through. Bauler complied with this request, and 4

she brought her purse with her. Vander Berg noticed that Bauler was sweating

and thought it was “odd” because the temperature was below freezing.

In the patrol car, Bauler said she didn’t have the proof of insurance with

her in the vehicle but did have insurance coverage. Vander Berg said she would

issue a citation for failure to provide proof of insurance that could be cured by

providing proof of insurance. After Vander Berg had called in Bauler’s driver’s

license, and while she was still writing up the citation and the warning for the

lane violations, Rohmiller arrived at the scene with his canine. This was less

than ten minutes into the stop.

Rohmiller also noted Bauler’s appearance in the patrol car. He observed

that Bauler’s eyes were bloodshot, her eyelids were droopy, and she was easily

agitated. Rohmiller and Vander Berg asked Bauler for permission to search her

vehicle. Bauler refused. Rohmiller directed the dog to conduct an open-air sniff

around the exterior of Bauler’s car. Rohmiller led the dog around Bauler’s car at

least twice. During the open-air sniff, Rohmiller’s hand touched the car’s exterior

on several occasions to direct and “detail” the canine where to sniff. The dog’s

paws touched the car’s exterior several times. While Bauler was seated in the

patrol car with Vander Berg, she saw the dog’s paws touching the car and complained. Vander Berg responded that she had worked with that dog, and it

“doesn’t have his claws out or nothing.” Bauler acknowledged that but said, “It’s

a dog.”

There is no evidence that the dog’s paws in any way damaged Bauler’s

vehicle. At no point during the open-air sniff did either Rohmiller or the dog enter

Bauler’s vehicle.

The dog alerted to the presence of drugs on the passenger side of Bauler’s

car. At this point, Vander Berg converted the traffic stop into a drug investigation. The peace officers searched Bauler’s vehicle and her purse. They 5

found a methamphetamine pipe, a makeup container with white crystalline

residue, a small vial with powdery residue, and two small, taped packages. With

Bauler’s consent, the officers searched the packages and found a scale with white

powder residue consistent with methamphetamine. Vander Berg placed Bauler

under arrest and transported her to the Plymouth County Jail. During the

booking process, jail personnel discovered Bauler had concealed on her body two

clear plastic baggies holding 6.89 grams of methamphetamine.

The State charged Bauler in two separate criminal cases. In the first case,

she was charged with operating while intoxicated (OWI), first offense, in violation

of Iowa Code section 321J.2(2)(a) (2021). In the second case, she was charged

with possession with intent to deliver more than five grams of

methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7);

introduction of contraband into a correctional facility, in violation of Iowa Code

section 719.7(3)(a); and possession of a controlled substance, third offense, in

violation of Iowa Code section 124.401(5).

Bauler moved to suppress evidence under the Fourth Amendment to the

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

constitutions protect persons against unreasonable searches and seizures. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. In the OWI case, Bauler argued

Vander Berg did not have legal cause to initiate a traffic stop. In the drug case,

Bauler reiterated her argument regarding the legality of the traffic stop. She also

argued that the open-air sniff around the exterior of her vehicle was an

unconstitutional search because Rohmiller and the dog touched the exterior of

her vehicle without having a search warrant. The district court denied the

motions to suppress.

The State and Bauler then agreed that the State would dismiss the charge of possession with intent to deliver and hold a trial on the minutes for the 6

remaining charges. Following a trial on the minutes, the district court found

Bauler guilty on the three remaining counts. Bauler timely filed this appeal. We

retained the appeal.

III. Standard of Review.

“We review the district court’s denial of a motion to suppress based on

deprivation of a constitutional right de novo.” State v. Arrieta, 998 N.W.2d 617,

620 (Iowa 2023). We independently evaluate the entire record and consider the

totality of the circumstances. Id. We defer to the findings of fact made by the

district court, “but we are not bound by them.” Id.

IV. Legal Analysis.

On appeal, Bauler raises three search-and-seizure arguments. First, she

challenges Deputy Vander Berg’s traffic stop of her vehicle. Second, she

challenges the dog sniff performed by Officer Rohmiller’s canine. Third, she

challenges the search of her purse.

A. The Traffic Stop of the Vehicle. We first address the constitutionality

of the traffic stop. 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” article I, section 8 and the Fourth Amendment. State v. Warren, 955 N.W.2d 848, 859

(Iowa 2021) (alteration in original) (quoting Whren v. United States, 517 U.S. 806,

809–10 (1996)). A traffic stop is reasonable and thus constitutional “when

supported by probable cause or reasonable suspicion of a crime.” State v. McIver,

858 N.W.2d 699, 702 (Iowa 2015). “Probable cause exists if the totality of the

circumstances as viewed by a reasonable and prudent person would lead that

person to believe that a crime has been or is being committed and that the

arrestee committed or is committing it.” State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004) (quoting State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990)). 7

Reasonable suspicion exists when “all the circumstances confronting the officer

at the time give rise to a reasonable belief that criminal activity may be afoot.”

McIver, 858 N.W.2d at 702. “When a peace officer observes any type of traffic

offense, the violation establishes both probable cause to stop the vehicle and

reasonable suspicion to investigate.” Id.; see also Tague, 676 N.W.2d at 201

(“When a peace officer observes a violation of our traffic laws, however minor, the

officer has probable cause to stop a motorist.”).

Under Iowa law, it is a simple misdemeanor to drive at a speed “less than

is reasonable and proper, having due regard to the traffic.” Iowa Code

§ 321.285(1), (8). In addition, Iowa Code section 321.294 provides that “[a]

person shall not drive a motor vehicle at such a slow speed as to impede or block

the normal and reasonable movement of traffic.” Section 321.294 allows an

officer “to enforce this provision by directions to drivers”—an act that presumably

requires stopping the vehicle. A driver’s failure to comply with said directions

shall be a simple misdemeanor. Id. Bauler’s abnormally slow driving

“impede[d] . . . the normal and reasonable movement of traffic,” id., and

demonstrated a lack of “due regard to the traffic,” id. § 321.285(1). As Deputy

Rohmiller put it, Bauler came to her attention “because she was driving differently than all the vehicles around her and in a poor driving behavior.”

Bauler has two rejoinders. She argues that there was no minimum speed

limit on that segment of Highway 75. But neither section 321.285 nor

section 321.294 requires a violation to be triggered by a motorist driving below

the posted speed limit. Instead, the statutes require only a certain effect on traffic

and safety. Here, Vander Berg testified that Bauler’s slow driving was impeding

the normal flow of traffic in violation of the statute. Vander Berg witnessed cars

continually changing lanes and “fighting” to pass Bauler’s slow-moving vehicle. Vander Berg testified it was “kind of messy” and Bauler’s slow driving was 8

creating a “hazard.” That was sufficient to establish probable cause for the traffic

stop. See id. §§ 321.285(1), .294.

Bauler also contests the sincerity of Vander Berg’s stated justifications for

the traffic stop. Bauler contends that Vander Berg’s observations were

undermined by her own decision to follow Bauler for fifteen minutes, or roughly

eleven miles, at the same slow speed without stopping her. In Bauler’s view,

Vander Berg’s delay in initiating the stop demonstrated that she didn’t believe

there was a genuine driving hazard. But “[t]he motivation of the officer stopping

the vehicle is not controlling in determining whether reasonable suspicion

existed. The officer is therefore not bound by his real reasons for the stop.”

State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019) (quoting State v. Kreps,

650 N.W.2d 636, 641 (Iowa 2002)). Beyond that, Vander Berg provided a

reasonable explanation for the delay. She decided to wait to initiate the stop

because it “would be safer off the highway than on it.”

For the foregoing reasons, we conclude the district court properly

overruled Bauler’s objections to the stop of her vehicle. Because we find that

Vander Berg had probable cause to pull over Bauler’s vehicle due to its unusually

slow speed, we need not and do not decide whether there were other legally sufficient reasons for the stop.

B. The Dog Sniff of the Vehicle. We next consider the legality of the dog

sniff. Bauler concedes that an open-air dog sniff that takes place outside a vehicle

does not violate the Fourth Amendment to the United States Constitution or

article I, section 8 of the Iowa Constitution. See, e.g., State v. Bergmann,

633 N.W.2d 328, 334 (Iowa 2001) (“[A] dog sniff that occurs outside a vehicle is

not a search under the meaning of the Fourth Amendment.”). However, she

contends that “[b]ecause both Officer Rohmiller and the dog physically trespassed on Bauler’s car with the purpose of obtaining evidence, the sniff of 9

the vehicle constituted a search.” She raises this argument both under the

Fourth Amendment and under article I, section 8.

1. The dog sniff under the Fourth Amendment. The United States Supreme

Court has addressed the legality of canine sniffs on several occasions. United

States v. Place involved a canine sniff of luggage. 462 U.S. at 706–07. The Court

held that “exposure of respondent’s luggage, which was located in a public place,

to a trained canine—did not constitute a ‘search’ within the meaning of the

Fourth Amendment.” Id. at 707. The Court reasoned that a canine sniff of

luggage did not violate an expectation of privacy because it does “not expose

noncontraband items that otherwise would remain hidden from public view, as

does, for example, an officer’s rummaging through the contents of the luggage.”

Id. “Moreover, the sniff discloses only the presence or absence of narcotics, a

contraband item. Thus, despite the fact that the sniff tells the authorities

something about the contents of the luggage, the information obtained is

limited.” Id. The Court concluded that “the canine sniff is sui generis” because

“no other investigative procedure . . . is so limited both in the manner in which

the information is obtained and in the content of the information revealed by the

procedure.” Id. In City of Indianapolis v. Edmond, the Court addressed the legality of a

road checkpoint at which dog sniffs were performed. 531 U.S. 32, 40 (2000). The

Court concluded that the checkpoint stop violated the Fourth Amendment

because its purpose was general investigation rather than road safety. See id. at

41–42. But the Court reiterated that “[t]he fact that officers walk a

narcotics-detection dog around the exterior of each car at the Indianapolis

checkpoints does not transform the seizure into a search.” Id. at 40. “Just as in

Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence 10

of narcotics.” Id. The Court reasoned that a dog sniff around the car is “much

less intrusive than a typical search.” Id. (quoting Place, 462 U.S. at 707). So, the

problem in Edmond was the stop, not the sniff.

The Court next addressed dog sniffs in Illinois v. Caballes, 543 U.S. 405.

That case involved a warrantless canine sniff around the exterior of a vehicle

during a lawful traffic stop. Id. at 406. The Court held that a dog sniff of the

exterior of a vehicle during a lawful traffic stop does not violate the Fourth

Amendment. See id. at 409–10. Specifically, the Court reiterated that dog sniffs

are “sui generis” because they only reveal the presence or absence of contraband.

Id. at 409 (quoting Place, 462 U.S. at 707). The Court concluded, “[T]he use of a

well-trained narcotics-detection dog . . . during a lawful traffic stop, generally

does not implicate legitimate privacy interests.” Id. That language, we believe,

controls this case and forecloses Bauler’s constitutional challenge.

Bauler does not discuss or even cite Caballes. Instead, she relies on two

post-Caballes decisions. In United States v. Jones, the Court held “that the

Government’s installation of a GPS device on a target’s vehicle, and its use of

that device to monitor the vehicle’s movements, constitute[d] a ‘search’ ” within

the meaning of the Fourth Amendment and was thus unlawful when done without a warrant. 565 U.S. 400, 404 (2012) (footnote omitted). In reaching that

conclusion, the Court relied on common law concepts of trespass. See id. at

404–11. The Court explained that the Fourth Amendment embodies a “particular

concern for government trespass upon the areas (‘persons, houses, papers, and

effects’) it enumerates.” Id. at 406. The legality of an officer’s warrantless conduct

could thus be decided using a “common-law trespassory test.” Id. at 409. The

Court reasoned that the government’s “physical intrusion” failed that test. Id. at

404. 11

Jones did link its Fourth Amendment analysis to common law concepts of

trespass. See id. at 404, 409. But “[i]t is important to be clear about what

occurred . . . : The Government physically occupied private property for the

purpose of obtaining information.” Id. at 404. The government attached an

electronic tracking device to the undercarriage of Jones’s vehicle and tracked his

movements for twenty-eight days. Id. at 403. During that time, the government

collected more than 2,000 pages of data regarding Jones’s movements. Id. The

Court repeatedly emphasized that affixing or mounting a GPS device to a vehicle

for twenty-eight days was a “physical intrusion.” Id. at 404. “[W]hen the

Government does engage in physical intrusion of a constitutionally protected

area in order to obtain information, that intrusion may constitute a violation of

the Fourth Amendment.” Id. at 407 (quoting United States v. Knotts, 460 U.S.

276, 286 (1983) (Brennan, J., concurring)).

The dog sniff of Bauler’s vehicle did not involve an extended physical

occupation or physical intrusion akin to that in Jones. Instead, it involved only

fleeting contact with the exterior of a vehicle. A federal district court found “no

authority for the proposition that the momentary light touch of the exterior of a

vehicle or other personal conveyance by a dog—or a person, for that matter—on a public roadside, amounted to a trespass at common law.” United States v.

Acuna, No. 21–10035–01, 02–JWB, 2022 WL 3081419, at *6 (D. Kan. Aug. 3,

2022). Minimal contact with the exterior of a vehicle does “not rise to the level of

a constitutionally cognizable infringement.” United States v. Olivera-Mendez,

484 F.3d 505, 511–12 (8th Cir. 2007) (quoting Caballes, 543 U.S. at 409).

Further, unlike in Jones, the search in this case could not reveal any legal

activity. “[T]he tracker in Jones monitored the defendant’s every movement,

providing the government evidence of both his legal and illegal activities. Jones did not state that an intrusion onto an individual’s [personal] property to gather 12

only information about illegal activity was an unconstitutional search.”

Oprisko v. Dir. of the Dep’t of Corrs., 795 S.E.2d 739, 745 (Va. 2017) (citation

omitted). Jones does not alter the conclusion that we must reach based on

Caballes.

Bauler also relies on Florida v. Jardines, 569 U.S. 1 (2013). In that case,

the Court held a peace officer conducted an unconstitutional search when the

officer walked onto a homeowner’s porch with a drug-sniffing dog to investigate

the contents of the home. Id. at 9–10. The Court explained an officer acting

without a warrant had the right to do what “any private citizen might do.” Id. at

8 (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)). The Court explained that

a private citizen had an implied license that “permit[ed] the visitor to approach

the home by the front path, knock promptly, wait briefly to be received, and then

(absent invitation to linger longer) leave.” Id. There was no implied license,

however, to introduce “a trained police dog to explore the area around the home

in hopes of discovering incriminating evidence.” Id. at 9. “[S]ocial norms that

invite a visitor to the front door do not invite him there to conduct a search.” Id.

Because the police gathered information “by physically entering and occupying”

the curtilage of Jardines’s home, the police conducted an unconstitutional warrantless search. Id. at 6.

Critical to the holding in Jardines was that the conduct involved a trespass

onto real property—specifically, the home. Id. “[W]hen it comes to the Fourth

Amendment, the home is first among equals.” Id. The Court explained that at the

Founding, the “law [held] the property of every man so sacred, that no man

[could] set his foot upon his neighbour’s close without his leave.” Id. at 8 (quoting

Entick v. Carrington (1765) 95 Eng. Rep. 807, 817 (KB)). In other words, any

unauthorized intrusion onto real property constituted a trespass at common law. See 3 William Blackstone, Commentaries *209 (“[E]very entry . . . without the 13

owner’s leave, and especially if contrary to his express order, is a trespass or

transgression . . . . Every unwarrantable entry on another’s soil the law entitles

a trespass by breaking his close . . . .”).

Unlike Jardines, this case does not involve a physical trespass onto real

property. See Jardines, 569 U.S. at 3–4. Jardines has no application to a canine

sniff conducted around the exterior of a vehicle in a public place during a lawful

traffic stop. See United States v. Moore, No. 22–30009, 2023 WL 6937414, at *3

(9th Cir. Oct. 20, 2023) (“Although law enforcement may not conduct a dog sniff

of a person’s home or its immediate surroundings without a warrant, police are

not required to obtain a warrant before conducting a dog sniff of a vehicle during

a lawful traffic stop.” (citations omitted)); United States v. Bain, 874 F.3d 1, 15

(1st Cir. 2017) (explaining that Jardines was different from Caballes “because it

concerned a house rather than an effect”); United States v. Winters, 782 F.3d

289, 305 (6th Cir. 2015) (“Jardines does not call Caballes and its progeny into

doubt.”); United States v. Seybels, 526 F. App’x 857, 859 n.1 (10th Cir. 2013)

(noting that Jardines “was based on property rights not implicated in the traffic

stop context and, hence, did not undermine Caballes”); United States v. Lewis,

No. 1:15–CR–10–TLS, 2017 WL 2928199, at *6 (N.D. Ind. July 10, 2017) (“Jardines did not purport to overrule Caballes and the well-settled proposition

that a dog sniff is not a Fourth Amendment search if it is conducted by law

enforcement from an area they have a legal right to be. Neither has any other

Supreme Court decision.”); United States v. Cordero, No. 5:13–cr–166, 2014 WL

3513181, at *9 (D. Vt. July 14, 2014) (“Jardines did not reverse the Court’s

decisions holding that canine sniffs during traffic stops do not implicate the

Fourth Amendment . . . .”); United States v. Taylor, 979 F. Supp. 2d 865, 881–82

(S.D. Ind. 2013) (stating that “nothing in Jardines disturbed th[e] well-settled proposition” that “dog sniffs conducted by law enforcement from an area they 14

have a legal right to be do not constitute a Fourth Amendment search” ); State

v. Miller, 766 S.E.2d 289, 293 (N.C. 2014) (“Nonetheless, insofar as Place,

Edmond, and Caballes encourage police to utilize dog sniffs in the public sphere,

the Court’s recent decision in [Jardines] places police on a much shorter leash

when employing dog sniffs in and around the home.”); State v. Candler,

No. 2015AP2212–CR, 2016 WL 7234714, at *3 (Wis. Ct. App. Dec. 14, 2016) (per

curiam) (“But Jardines did not expressly or impliedly overrule Caballes or any

state cases relying on it. . . . Rather, Jardines was based on property rights, and

the fact that—unlike the public spaces surrounding a vehicle—the curtilage of a

home is a constitutionally protected area.” (citation omitted)).

Even when read together, Jones and Jardines do not support Bauler’s

contention that mere touch of a car in a public place by an officer or a canine

violates the Fourth Amendment:

This momentary touching is materially different from the officers’ physical intrusion to conduct a search on the porch of a home in Jardines and even from the physical attachment of a tracking device to the undercarriage of a vehicle in Jones. It is one thing to say property law has conferred upon the owner of a vehicle the right or reasonable expectation of excluding others from physically attaching a tracking device to his car without consent. But it is qualitatively different to suggest property law has conferred a right or expectation of precluding any person or dog from momentarily touching the exterior of a vehicle or other conveyance located in a public place. At common law, “[t]he interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel.” Rather, liability arises only if intermeddling with the chattel “is harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected . . . .” The absence of any trespass analog to these facts distinguishes Jones and Jardines and supports a finding that the sniff did not violate Defendants’ Fourth Amendment rights. 15

Acuna, 2022 WL 3081419, at *6 (alteration and omission in original) (citation

omitted) (quoting 1 Restatement (Second) of the Law of Torts § 218 cmt. e, at 421

(Am. L. Inst. 1965) [hereinafter Restatement (Second)])

Although Jones and Jardines, properly understood, do not support

Bauler’s federal constitutional claim, her reliance on those cases is problematic

for an additional reason: this court is bound to follow Caballes despite any

subsequent doctrinal developments. The Supreme Court has explained that “[i]f

a precedent of th[e] Court has direct application in a case,” then courts “should

follow the case which directly controls, leaving to th[e] Court the prerogative of

overruling its own decisions.” Mallory v. Norfolk S. Ry., 600 U.S. 122, 136 (2023)

(quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484

(1989)). This is true even if other courts think the controlling precedent is in

tension with “some other line of decisions.” Id. (quoting Rodriguez, 490 U.S. at

484). Although Bauler does not cite Caballes, it is clearly the controlling case for

resolving this appeal. There, the Court held that “[a] dog sniff conducted during

a concededly lawful traffic stop that reveals no information other than the

location of a substance that no individual has any right to possess does not

violate the Fourth Amendment.” Caballes, 543 U.S. at 410. Those are the facts of this case. If there is a tension between Caballes and the Supreme Court’s

subsequent Fourth Amendment jurisprudence as articulated in Jones and

Jardines, it is, per the Supreme Court’s own instruction, for the Supreme Court

to resolve.1

1Furthermore, to read tea leaves, one must look at the entire teacup. In Rodriguez v. United States, which was decided after Jones and Jardines, the Supreme Court addressed a follow-on issue raised by Caballes. See 575 U.S. 348, 350–51 (2015). The Court discussed Caballes at some length, certainly leaving the impression that Caballes was still good law. See id. at 350–51, 353–54. Indeed, the Court reiterated Caballes’s holding in the first sentence of its Rodriguez opinion. Id. at 350 (“In Illinois v. Caballes, this Court held that a dog sniff conducted 16

We find the dog sniff of Bauler’s vehicle did not violate the Fourth

Amendment, notwithstanding the brief touching of the exterior of the vehicle.

2. The dog sniff under article I, section 8. “We generally ‘interpret the scope

and purpose of the Iowa Constitution’s search and seizure provisions to track

with federal interpretations of the Fourth Amendment’ because of their nearly

identical language.” Brown, 930 N.W.2d at 847 (quoting State v. Christopher,

757 N.W.2d 247, 249 (Iowa 2008)). There are exceptions, though, and one of

those exceptions involves trash put out for collection. In State v. Wright, this

court held—contrary to federal Fourth Amendment precedent—that a police

officer violated article I, section 8 of the Iowa Constitution when he removed trash

from a garbage can that had been put out for collection. 961 N.W.2d 396, 419

(Iowa 2021). Bauler argues that Wright enables her to prevail under article I,

section 8 even if her Fourth Amendment claim might be unsuccessful.

We begin by summarizing Wright. It is important to note that some of the

lead opinion in Wright—specifically parts II, III, and IV(A), including

footnote 5—did not have the support of a majority. See id. at 420 (Appel, J.,

specially concurring). In the portions of the opinion that had the support of a

majority, this court decided: (1) that the defendant had not abandoned the garbage because a local ordinance prohibited anyone from taking or collecting

any solid waste which has been put for collection “unless such person is an

authorized solid waste collector,” id. at 415–16 (quoting Clear Lake, Iowa, Code

of Ordinances § 105.11(4) (2003)); (2) that the officer committed a trespass

because he violated this ordinance, id. at 416–17; and (3) that the officer also

violated the defendant’s reasonable expectations of privacy because the

defendant had a reasonable expectation of privacy based on the ordinance, id.

during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures.” (citation omitted)). 17

at 418–19.2 In other words, Wright appeared to hang its hat primarily on the

terms of a local ordinance prohibiting “scavenging.” See id. at 415–17. In doing

so, Wright incorporated concepts set forth in a 2016 law review article—William

2The dissenters maintained that the majority had read the ordinance out of context and

without its title and headings: The ordinance making it unlawful to rummage through other people’s garbage cans is intended to prevent some of the adverse side effects of rummaging, such as items being removed from garbage cans and ending up as litter on the ground. It is not intended to confer some kind of higher privacy status on garbage that it would not otherwise have. We know this because the stated purpose of this chapter is “to protect the citizens of the City from such hazards to their health, safety and welfare as may result from the uncontrolled disposal of solid waste.” It is also important to review the Clear Lake ordinance as a whole. It reads, Prohibited Practices. It is unlawful for any person to: 1. Unlawful Use of Containers. Deposit refuse in any solid waste containers not owned by such person without the written consent of the owner of such containers. 2. Interfere with Collectors. Interfere in any manner with solid waste collection equipment or with solid waste collectors in the lawful performance of their duties as such, whether such equipment or collectors be those of the City, or those of any other authorized waste collection service. 3. Incinerators. Burn rubbish or garbage except in incinerators designed for high temperature operation, in which solid, semisolid, liquid or gaseous combustible refuse is ignited and burned efficiently, and from which the solid residues contain little or no combustible material, as acceptable to the Environmental Protection Commission. 4. Scavenging. Take or collect any solid waste which has been placed out for collection on any premises, unless such person is an authorized solid waste collector. 5. Burn Barrels. Burn solid waste in any burn barrel or other type of container. 6. Landscape Waste. Burn any landscape waste/yard waste. Ordinance 105.11(4) is thus part of a list of “Prohibited Practices.” The entire list is aimed at activities that interfere with the orderly collection of trash and lead to unsanitary conditions. Public health is the concern, not private property. Hence, the Clear Lake ordinance doesn’t alter the reality that trash is trash. Wright, 961 N.W.2d at 460–61 (Mansfield, J., dissenting) (first quoting Clear Lake, Iowa, Code of Ordinances § 105.01; and then quoting id. § 105.11). 18

Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment,

129 Harv. L. Rev. 1821 (2016) [hereinafter Baude & Stern]. See Wright,

961 N.W.2d at 416–17.

Bauler argues that Wright compels the dog sniff to be invalidated in this

case. However, unlike in Wright, where a local ordinance prohibited scavenging

from garbage cans, there is no statute or ordinance that prohibits touching a

car.

Criminal trespass is defined in Iowa Code section 716.7(2)(a),

subparagraphs (1)–(7). Three of those subparagraphs relate to property not at

issue here. See Iowa Code § 716.7(2)(a)(5) (railway property), (6) (public utility

property), (7) (dwellings). Another three subparagraphs criminalize the “entering”

or “remaining” upon property. See id. § 716.7(2)(a)(1), (2), (3). The remaining

subparagraph provides that a trespass includes “[b]eing upon or in property and

wrongfully using, removing therefrom, altering, damaging, harassing, or placing

thereon or therein anything animate or inanimate, without the implied or actual

permission of the owner, lessee, or person in lawful possession.” Id.

§ 716.7(2)(a)(4). There is no evidence Rohmiller or the dog committed any of these

acts. There is also no evidence of wrongful use, alteration, or damage. And “placing,” as used in this statute, means putting something on the property and

not merely touching the property. See State v. Geddes, 998 N.W.2d 166, 180–81

(Iowa 2023). So, this aspect of Wright is a dead end for Bauler.

Yet Bauler insists that Officer Rohmiller—and the dog under his

supervision—committed a common law trespass which also constitutes a search

under Wright. She notes that Wright has the following expansive language, which

also appears in a portion of the opinion that had majority support:

Article I, section 8 precludes a peace officer from engaging in general criminal investigation that constitutes a trespass against a citizen’s 19

house, papers, or effects. No department of the government can circumvent this constitutional minimum.

961 N.W.2d at 417.

This is Wright’s second theory. It is different from a positive law theory;

instead, it resembles the “trespass theory” that the authors of the 2016 law

review article distinguished. See Baude & Stern, 129 Harv. L. Rev. at 1833–36

(“Distinguishing the Trespass Theory.”). While the legislature can change positive

law (and recently has done so in the area of trash pulls, see 2022 Iowa Acts

ch. 1022, § 1 (codified at Iowa Code § 808.16 (2023))), the foregoing passage from

Wright indicates that article I, section 8 protections against trespass are supreme

and that the legislature is powerless to circumvent them.

Notably, in State v. Burns, our court had to apply Wright in another trash

case, involving a used drinking straw that had been left behind by a suspect,

picked up by police, and then subjected to DNA identity testing. 988 N.W.2d 352,

358, 365–67 (Iowa 2023). Indeed, the defendant made Wright the centerpiece of

his argument in Burns. Id. at 365–67. That’s not surprising because Burns—like

Wright—was a trash case.

In Burns, our court evaluated and rejected the defendant’s claims under

both the positive law and the trespass theories of Wright. Id. at 366–67. We first found that the police didn’t violate article I, section 8 under the positive law

theory because the statute that limited DNA testing by the public exempted law

enforcement officers. Id. at 366. Query whether this was actually consistent with

Wright, which quoted Baude & Stern with approval, stating that “Fourth

Amendment protection . . . is warranted when government officials either violate

generally applicable law or avail themselves of a governmental exemption from it.”

Wright, 961 N.W.2d at 416 (emphasis added) (quoting Baude & Stern, 129 Harv. L. Rev. at 1825–26). Wright indicates that the government can’t get around 20

article I, section 8 limits flowing from a generally applicable statute by exempting

itself from that statute. Id. But we concluded otherwise in Burns. 988 N.W.2d at

366–67.

In Burns, we then turned to “the trespass standard set forth in Wright.” Id.

at 367. And we found the police actions didn’t violate article I, section 8 under

Wright’s trespass theory because the straw was no longer the defendant’s

property when the police seized and tested it. Id.3

Here, Bauler presses an argument under the Wright trespass theory. She

contends that Officer Rohmiller, via the dog, “physically intruded” on her car and

thus violated article I, section 8. She points to the recent decision by the Idaho

Supreme Court in State v. Dorff, 526 P.3d 988 (Idaho 2023). Dorff, like this case,

involved a dog sniff where the dog made brief contact with the exterior of a vehicle

while performing its sniff. Id. at 991–92. The Idaho court concluded that such a

sniff violated the Fourth Amendment. Id. at 999. The court discussed the

common law of trespass at great length. Id. at 994–97. Based on that discussion,

the court ultimately concluded, by a narrow majority, that the defendant’s

Fourth Amendment rights were violated because the drug dog “intermeddled

with (and thereby trespassed against) Dorff’s vehicle for the purpose of obtaining information.” Id. at 998.

Although we think the Idaho Supreme Court erred in its ultimate

conclusion, it was correct about the common law of trespass. The Restatement

of Torts is clear. Section 217, “Ways of Committing Trespass to Chattel,” explains

that any “intermeddling” amounts to trespass and “ ‘[i]ntermeddling’ means

3Two of the three justices remaining on our court who had joined the Wright majority dissented in Burns and didn’t discuss Wright. See 988 N.W.2d at 382–88 (Oxley, J., dissenting); id. at 388–99 (McDermott, J., dissenting). They found instead that the search violated the Fourth Amendment. Id. at 392–95 (McDermott, J., dissenting). 21

intentionally bringing about a physical contact with the chattel.” Restatement

(Second) § 217, at 417; id. § 217 cmt. e, at 419.4 Accordingly, if the handler

guides the dog so that the dog is highly likely to make even brief contact with the

vehicle, intermeddling has occurred.5

We also agree with the Idaho Supreme Court that whether a trespass has

occurred is a different question from whether the person who suffered the

trespass has a cause of action. See Dorff, 526 P.3d at 996 (“[W]hether a ‘trespass’

was actionable in the absence of damages at common law is beside the point for

purposes of determining legal relations under the Fourth Amendment.”). No

damages may mean no lawsuit. We doubt the defendant in Wright could have

sued for deprivation of his garbage, but that did not affect the majority’s

conclusion that an article I, section 8 violation had occurred. The Restatement

makes the very same point:

A trespass, though not actionable under the rule stated in §§ 218-220, may nevertheless be important in the determination of the legal relations of the parties. Thus, the fact that one person is committing a trespass to another’s chattel, while it may not be actionable because it does no harm to the chattel or to any other legally protected interest of the possessor, affords the possessor a

4Section 217 reads in full:

A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another. Restatement (Second) § 217, at 417. 5We frequently rely on the Restatement of Torts as a source of the common law of

trespass. See, e.g., White v. Harkrider, 990 N.W.2d 647, 655 (Iowa 2023); Nichols v. City of Evansdale, 687 N.W.2d 562, 567–68 (Iowa 2004); Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 301–02 (Iowa 1994), abrogated on other grounds in Barreca v. Nickolas, 683 N.W.2d 111 (Iowa 2004); City of Des Moines v. Webster, 861 N.W.2d 878, 883–84 (Iowa Ct. App. 2014). 22

privilege to use force to defend his interest in its exclusive possession.

Restatement (Second) § 217 cmt. a, at 417.

So we think Officer Rohmiller (both personally and via the dog) technically

committed a common law trespass here. If Wright is applied, the dog sniff here

does not survive.

In our view, though, Wright does not apply to dog sniffs. A dog sniff is far

removed from a human trash pull. The existing Fourth Amendment precedent is

sound and should apply under article I, section 8.6 As noted, it holds that dog

sniffs are “sui generis” because they only detect contraband. See Caballes,

543 U.S. at 409; Place, 462 U.S. at 707.

Obviously, a dog is not the same as a human. No one cares if a dog

examines their cell phone or follows them into the bathroom. So applying

common law concepts derived from human interactions in an anthropomorphic

manner to dog sniffs makes no sense.7 When a handler, in the course of an

otherwise lawful exterior dog sniff, briefly touches and allows the dog to briefly

touch the outside of the vehicle, that innocuous occurrence should be considered

a nonevent. Would anyone complain if a dog sniffing parked cars for explosives

outside our state capitol building briefly put its paws on one of those vehicles? If there’s an issue, it’s the dog sniff itself, not the paws. A dog sniff that takes

place in the open air, and does not go beyond the normal scope of a dog sniff, is

as valid under article I, section 8 as it is under the Fourth Amendment.

6See, e.g., State v. Cyrus, 997 N.W.2d 671, 676 (Iowa 2023) (“[The defendant] argues we

should construe the Iowa clause as providing greater protection against seizures than the Fourth Amendment. Because the federal and Iowa search and seizure clauses are worded nearly identically and we are not persuaded to apply them differently in this case, we will analyze both provisions together.”). 7This is one reason why we, unlike the authors of many judicial opinions, haven’t referred

to the dog by name. The issue isn’t a lack of affection for the dog or respect for its skills. It’s that naming the dog can lead to a mindset in which the dog takes on human traits for legal purposes. 23

This is the very point made by the dissenters in Dorff. Three justices joined

the majority in Dorff, whereas two dissented. See Dorff, 526 P.3d at 999; id. at

999 (Moeller, J., dissenting); id. at 1002 (Bevan, C.J., dissenting). Both

dissenting opinions took note of the sui generis nature of dog sniffs and the ways

drug dogs are trained to use their body to pick up scents. Id. at 1001 (Moeller,

J., dissenting) (“While a dog’s paws convey no olfactory information, they allow

the dog to sniff higher . . . just as pressing their nose against a door crack allows

a drug dog to detect faint smells, [and] wagging their tails against the car may

stir the scent emanating from the car around them.”); id. at 1002 (Bevan, C.J.,

dissenting) (“ ‘I do not believe that a drug-detection dog’s instinctive action

instantaneously transmutes a warrantless, exterior sniff into an

unconstitutional search.’ It remains my view that a dog’s instinct to jump cannot

be imputed to its officer-handler when the dog acts without instruction.” (quoting

State v. Howard, 496 P.3d 865, 872 (Idaho 2021) (Bevan, C.J., dissenting))). In

their view, “[t]his minimal contact outside the vehicle is not police misconduct;

it’s just a dog behaving like a dog.” Id. at 1001 (Moeller, J., dissenting). Those

dissents are persuasive to us.

There is another reason why invoking technicalities of common law trespass to define the scope of a lawful dog sniff does not make sense. Dog sniffs

do not go back that far in time. See Charles L. W. Helm, Note, A Huff and a Puff

is No Longer Enough: How the Supreme Court Built a House of Bricks with Its

Decision in Florida v. Jardines, 9 Liberty U. L. Rev. 1, 11 (2014) (“[T]he true

beginning of the modern K-9 unit was not until 1888 when the London

Metropolitan Police Force utilized two bloodhounds in an attempt to track and

capture the infamous Jack the Ripper.”).

Certainly independent state constitutional interpretation serves an important role, but in search-and-seizure law there should be a good reason 24

before we subject Iowa law enforcement to two different standards of conduct,

depending on whether the case has landed in federal or state court. See State v.

Baldon, 829 N.W.2d 785, 842 (Iowa 2013) (Mansfield, J., dissenting). We decline

to require the adoption of two different courses of K-9 instruction in Iowa—one

for dogs that will be working on federal cases, and another for dogs working for

the state. We hold that the dog sniff of Bauler’s vehicle did not violate article I,

section 8. “[T]he use of a well-trained narcotics-detection dog . . . during a lawful

traffic stop, generally does not implicate legitimate privacy interests.” Caballes,

543 U.S. at 409.8

C. The Search of the Purse. Bauler challenges the warrantless search of

her purse, which she had removed from the vehicle prior to the canine sniff. We

conclude Bauler did not preserve error on this issue. “Even issues implicating

constitutional rights must be presented to and ruled upon by the district court

in order to preserve error for appeal.” Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322

(Iowa 2013). Even when a defendant properly raises an issue before the district

court, “[i]f the court does not rule on an issue and neither party files a motion

requesting the district court to do so, there is nothing before us to review.”

Stammeyer v. Div. of Narcotics Enf’t, 721 N.W.2d 541, 548 (Iowa 2006). Bauler did not raise the search of her purse in her motions to suppress.

Bauler’s motion to suppress in the drug case discussed only the legality of the

traffic stop and Rohmiller’s and the dog’s contact with her vehicle during the

open-air sniff. The word “purse” does not even appear in that motion. Meanwhile,

8We do not decide whether a dog sniff wherein a dog has been previously trained to put

its head inside the car and in fact does so has violates the Fourth Amendment or article I, section 8. See, e.g., United States v. Corbett, ___ F. Supp. 3d ___, ___, 2024 WL 780441, at *17 (S.D.W. Va. Feb. 26, 2024) (gathering and discussing caselaw on this point); United States v. Buescher, No. 23–CR–4014–LTS–KEM, 2023 WL 5964940, at *4 (N.D. Iowa June 29, 2023) (same). Those are not the facts here. 25

Bauler’s motion to suppress in the OWI case challenged only the legality of the

traffic stop.

Bauler nevertheless contends that she preserved error on the purse by

bringing the matter briefly to the court’s attention during the trial on the

minutes. There, Bauler’s counsel said the following:

Again, I wasn’t trial counsel at the suppression hearing, but to preserve that issue, as the Court reviews the evidence submitted for trial purposes, we’d also ask that the Court review its decision on the motion to suppress filed October 15 of 2021 and its ruling on December 29, 2021, and take that as a renewed motion to suppress, when the Court has full review of all the evidence.

In particular -- While I know the Court’s ruling dealt with this issue, the legitimacy or illegitimacy of the initial traffic stop, the credibility of the officer, and particularly the probable cause that may or may not have existed before the independent search of her purse, which was separate from any K-9 sniff of the vehicle, just have the Court review that as all of its grounds for the search, and just indicate in its ruling on the minutes any additional findings the Court may have having reviewed the full file.

Assuming arguendo that Bauler could have properly raised this new issue

during the trial on the minutes, error is nonetheless not preserved because the

district court never decided the issue. In its verdict, the district court didn’t

discuss the constitutionality of the stop, the canine sniff, or the search of the purse. The district court merely noted the parties’ agreement that Bauler

preserved the “right to pursue an appeal on the issues raised in the Motion(s) to

Suppress,” of which the search of the purse was not one. “When a district court

fails to rule on an issue properly raised by a party, the party who raised the issue

must file a motion requesting a ruling in order to preserve error for appeal.”

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (quoting Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002)). There was no ruling on this issue in the

district court. Bauler failed to preserve error. 26

V. Conclusion.

For the foregoing reasons, we affirm Bauler’s convictions and sentence.

AFFIRMED. Christensen, C.J., and Waterman, J., join this opinion. McDonald, J., files

a special concurrence, in which May, J., joins, and Oxley, J., joins as to parts I–II

but not the judgment. Oxley, J., files a dissenting opinion, in which McDermott,

J., joins as to parts II–VI. McDermott, J., files a dissenting opinion. 27

#22–1232, State v. Bauler

MCDONALD, Justice (concurring specially). I concur only in the judgment. I write separately to address Bauler’s claim

that the canine sniff of the exterior of her vehicle in a public place violated

article I, section 8 of the Iowa Constitution.

I.

Article I, section 8 provides that “[t]he right of the people to be secure in

their persons, houses, papers and effects, against unreasonable seizures and

searches shall not be violated.” Iowa Const. art. I, § 8. The text of the “Fourth

Amendment to the United States Constitution is materially indistinguishable

from article I, section 8.” State v. Wright, 961 N.W.2d 396, 404 n.3 (Iowa 2021).

Although the provisions are materially indistinguishable, the analysis under

each provision is different. “Article I, section 8, as originally understood, was

meant to provide the same protections as the Fourth Amendment, as originally

understood, but the Supreme Court’s interpretation and construction of the

Fourth Amendment has deviated from the text and original meaning.” Id. at 412.

In State v. Wright, we declined to follow the Supreme Court’s Fourth Amendment

jurisprudence and instead returned to a more textual and historically sound approach to search-and-seizure issues under the Iowa Constitution. Id. at 408.

The plurality opinion in this case attempts to walk back this court’s

independent approach to search-and-seizure jurisprudence, stating that we

generally interpret article I, section 8 to track federal interpretations of the

Fourth Amendment. This statement is contrary to what this court has done

under article I, section 8 and contrary to this court’s most recent pronouncement

in State v. Burns, where we stated that the Supreme Court’s interpretation of the

Fourth Amendment “should not govern our interpretation of section 8.” 988 N.W.2d 352, 360 (Iowa 2023). 28

In addition to trying to walk back this court’s search-and-seizure

jurisprudence generally, the plurality opinion attempts to walk back this court’s

analysis in Wright as if it were not settled law, but the plurality opinion fails to

mention that this court reaffirmed Wright in totality in State v. Kuuttila,

965 N.W.2d 484, 486 (Iowa 2021), and State v. Hahn, 961 N.W.2d 370, 372 (Iowa

2021). In Burns, we then applied the Wright framework outside the home and

concluded that it provided the defendant with no relief because “the police did

not trespass against or otherwise seize or search Burns’s person, his house, his

papers, or his effects.” 988 N.W.2d 352 at 367. Contrary to the plurality’s desire,

Wright is a controlling framework for evaluating claims arising under article I,

section 8, as reaffirmed in Kuuttila, Hahn, and Burns. District courts are thus

“duty-bound to apply it.” State v. Laub, 2 N.W.3d 821, 828 (Iowa 2024)

(discussing vertical stare decisis).

II.

Bauler contends that the canine sniff of her vehicle in a public place

constituted a physical trespass against her personal property and violated her

constitutional rights as articulated in Wright. In the context of a general criminal

investigation, the Wright framework is straightforward. First, the court must determine whether the officer engaged in “a seizure or search within the meaning

of article I, section 8.” Wright, 961 N.W.2d at 413. If so, the court must determine

whether the seizure or search involved those things enumerated in the

constitution—persons, houses, papers, and effects. See id. at 414. If so, the court

must determine whether the seizure or search involved the defendant’s person

or the defendant’s houses, papers, and effects. See Burns, 988 N.W.2d at 367

(stating “that each person has the right to be secure against unreasonable

searches and seizures in his own person, house, papers, and effects.” (quoting Wright, 961 N.W.2d at 415)). Finally, if an officer engaged in general criminal 29

investigation conducted a warrantless search of the defendant’s constitutionally

protected person, house, paper, or effects, the court must determine whether the

search was reasonable within the meaning of article I, section 8. See Wright,

961 N.W.2d at 416.

I have little trouble concluding that Rohmiller and Ace’s examination of

the exterior of the vehicle was a search within the meaning of the Iowa

Constitution. There is no evidence that “search” was a “term[] of art at the time

of the founding.” Id. at 413. “Search” should thus be given its ordinary meaning.

Id. Historical dictionaries defined “search” as “an examination conducted for the

‘purpose of discovering proof of . . . guilt in relation to some crime.’ ” Id. (quoting

2 John Bouvier, A Law Dictionary 498 (3d ed. 1848)). A search meant “[t]o look

over or through for the purpose of finding something; to explore; to examine by

inspection; as, to search the house for a book; to search the wood for a thief.” Id.

(alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 32 n.1 (2001)).

A canine unit walking around the exterior of a vehicle for the purpose of detecting

contraband inside the vehicle is a search within the ordinary meaning of the

word “search.”

There is no dispute that Bauler’s vehicle is an effect within the meaning of the constitution and that the vehicle belonged to Bauler. The modern

understanding of the term effects is “[m]ovable property; goods.” Effects, Black’s

Law Dictionary 651 (11th ed. 2019). This is consistent with the original meaning

of the constitution. See Wright, 961 N.W.2d at 414 (“The Framers would have

understood the term ‘effects’ to be limited to personal, rather than real,

property.” (quoting Oliver v. United States, 466 U.S. 170, 177 n.7 (1984))). “It is

beyond dispute that a vehicle is an ‘effect’ as that term is used” in our

search-and-seizure jurisprudence. United States v. Jones, 565 U.S. 400, 404 (2012). There is also no dispute that the car belonged to Bauler and that she was 30

in possession of the vehicle at the time of the traffic stop. Cf. Burns, 988 N.W.2d

at 367 (holding that Wright did not apply because the subject evidence no longer

belonged to the defendant when confiscated).

The final step in the Wright analysis is whether the warrantless search of

the exterior of Bauler’s vehicle was unreasonable within the meaning of article I,

section 8. 961 N.W.2d at 416. Under Wright, the word “unreasonable” is not used

“in a relativistic, balancing sense.” Id. at 404. Instead, the court must determine

whether the search was “unlawful, tortious, or otherwise prohibited” as judged

by the positive law of this state. Id. at 416 (explaining that a warrantless search

may be unlawful if it violates “ ‘democratically legitimate sources of [positive]

law’—statutes, rules, regulations, orders, ordinances, judicial decisions, etc.”

(alteration in original) (quoting Carpenter v. United States, 585 U.S. 296, 398

(2018) (Gorsuch, J., dissenting))). Stated differently, under Wright, when an

officer conducts a criminal investigatory search, and the search is not in violation

of Iowa law, the officer has no need or legal obligation to obtain a search warrant

to legally justify the search. Id. (citing William Baude & James Y. Stern, The

Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1825

(2016) (concluding that an officer does not need the legal justification of a search warrant unless the officer has “done something that would be tortious, criminal,

or otherwise a violation of some legal duty”)); Danielle D’Onfro & Daniel Epps,

The Fourth Amendment and General Law, 132 Yale L.J. 910, 935 (2023)

(explaining that where the officer’s conduct is not in violation of the law, “the

analysis stops”).

The positive law framework adopted in Wright for assessing the legality of

a general criminal investigation has long been the law of this state. Prior to this

court’s adoption of the exclusionary rule in 1965, there was no freestanding body of state constitutional search-and-seizure jurisprudence that allowed judges to 31

impose their personal views on when a peace officer’s conduct went too far. See

Burns, 988 N.W.2d at 379–81 (McDonald, J., concurring). Instead, a peace

officer’s conduct was regulated by the positive law of this state, including

statutes, ordinances, and the generally applicable law as announced by this

court. The positive law was enforced by criminal prosecutions and civil suits

against allegedly offending peace officers. With respect to civil suits, as we

explained last term, an aggrieved person had no independent constitutional

claim but “could pursue an action for damages against local law enforcement”

because “[a] trespassing officer [was] liable for all wrong done in an illegal search

or seizure.” Burnett v. Smith, 990 N.W.2d 289, 300 n.5 (Iowa 2023) (quoting

State v. Tonn, 191 N.W. 530, 535 (Iowa 1923), abrogated by State v. Hagen, 137

N.W.2d 895 (Iowa 1965)). “[T]he notion was simply that the victim of a wrongful

search could pursue a common law trespass claim.” Id. “[T]hese causes of action

did not depend on the existence of article I, section 8, but were traditional

common law claims and would have gone forward even if article I, section 8 were

not part of our constitution.” Id. at 297 (alteration in original) (quoting Godfrey v.

State, 898 N.W.2d 844, 888 (Iowa 2017) (Mansfield, J., dissenting), overruled by

Burnett, 990 N.W.2d 289); Lennette v. State, 975 N.W.2d 380, 405 (Iowa 2022) (McDonald, J., concurring) (“By the time the citizens of Iowa ratified the Iowa

Constitution in 1857, it was well established throughout the country that

government officials could be, and regularly were, subject to nonconstitutional

causes of action for monetary damages.”).

Wright re-established a link between the historical positive law approach

to regulating peace officer conduct and the constitutional text. “The original

meaning of article I, section 8 was to prohibit an officer engaged in general

criminal investigation from committing a trespass against a citizen’s person, house, papers, and effects without first obtaining a warrant.” Wright, 961 N.W.2d 32

at 412 n.5. We further explained that a legal trespass—a legal injury or legal

wrong caused by a violation of the generally applicable law—could thus change

over time without altering the meaning of the general constitutional prohibition

against unreasonable searches and seizures. See id. (“The scope of what

constitutes a trespass has changed, not the meaning of article I, section 8.”).

Applying that framework in Wright, we held that the officer’s search of the

defendant’s garbage was unconstitutional because it violated positive law,

specifically a municipal ordinance that made it a crime for anyone other than a

licensed collector to access garbage set out on the curb. See id. at 417. This

positive law approach was subsequently reaffirmed in Kuuttila, 965 N.W.2d at

486, and Hahn, 961 N.W.2d at 372.

Under the Wright framework, Bauler contends that the open-air sniff

around the exterior of her vehicle was unlawful because Rohmiller and Ace

“physically intruded” upon her car. Bauler contends that touching her vehicle

without her consent constituted a trespass to chattels. The best case in support

of Bauler’s argument is State v. Dorff, 526 P.3d 988 (Idaho 2023). In Dorff, an

officer initiated a traffic stop of a vehicle. Id. at 991. As in this case, law

enforcement used a canine unit to determine whether there was contraband in the vehicle. See id. The canine unit “never entered the interior compartment of

the vehicle.” Id. During the investigation, however, the canine unit sniffed the

vehicle’s seams and touched the vehicle on three occasions, including one

occasion where the canine planted “his front paws to stand up on the door and

window as he sniffed the vehicle’s upper seams.” Id. The Idaho Supreme Court

concluded the warrantless open-air sniff violated the Fourth Amendment. Id. at

999. The court reasoned that physical contact with chattel that amounts to

“intermeddling” with the chattel constitutes a trespass to chattel. See id. at 997. In the court’s view, the canine’s touches were “forms of ‘intermeddling’ [that] 33

violate[d] the dignitary interest in the inviolability of a chattel”—“[m]ore

specifically, and depending on the circumstances, such ‘intermeddling’ violate[d]

the rights to possess, use, or exclude, or some combination of these rights.” Id.

at 998. In reaching that conclusion, Dorff relied heavily on Blackstone, the

Restatement (First) of Torts, and general common law. See id. at 997–99.

The reasoning of Dorff does not support Bauler’s argument under article I,

section 8 of the Iowa constitution. Under Wright, the court does not look to

Blackstone, the Restatements, or general law concepts to determine the legality

of a criminal investigatory search, as the Idaho Supreme Court did. Instead, this

court must look to the law of this state. After all, peace officers in this state are

not charged with knowing and complying with the common law of England, the

Restatements, or general law concepts applicable in other jurisdictions; instead,

they are charged with knowing and complying with the law of this jurisdiction.

See Spano v. New York, 360 U.S. 315, 320–21 (1959) (noting “the deep-rooted

feeling that the police must obey the law while enforcing the law; that in the end

life and liberty can be as much endangered from illegal methods used to convict

those thought to be criminals as from the actual criminals themselves”); United

States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (“We also note the fundamental unfairness of holding citizens to ‘the traditional rule that

ignorance of the law is no excuse,’ Bryan v. United States, [524 U.S. 184, 196]

(1998), while allowing those ‘entrusted to enforce’ the law to be ignorant of it.”);

Pierce v. Green, 294 N.W. 237, 248 (Iowa 1940) (“All the officers of the

government, from the highest to the lowest, are creatures of the law and are

bound to obey it.”).

Rohmiller and Ace’s quick and momentary touch of Bauler’s vehicle in a

public place is not unlawful and is thus not of any constitutional significance under Wright. A trespass is “[a]n unlawful act committed against the person or 34

property of another.” Trespass, Black’s Law Dictionary 1810 (11th ed. 2019)

(emphasis added); see Dan B. Dobbs, The Law of Torts § 60, at 122 (2000) (“The

tort of trespass to chattels, known in old law as trespass de bonis asportatis, is

committed by intentionally interfering with the plaintiff’s possession in a way

that causes legally recognizable harm.”). Under Iowa law, trespass against

personal property “involve[s] the idea of the violation of a possessory right, as

well as forceful damage.” Bever v. Swecker, 116 N.W. 704, 705 (Iowa 1908).

“Unless the right of possession was somehow violated or invaded, the action of

trespass [does] not lie.” Id. This requires something more than the brief physical

touch that occurred here. See, e.g., Podraza v. City of Carter Lake, 524 N.W.2d

198, 199–200 (Iowa 1994) (affirming jury verdict for trespass against a chattel

where the defendant tore down the plaintiff’s privacy fence); N.Y. Life Ins. v. Clay

County, 267 N.W. 79, 81 (Iowa 1936) (stating trespass to personal property

requires the violation of a possessory right as well as forceful damage); Welch v.

Jenks, 12 N.W. 727, 728 (Iowa 1882) (reversing dismissal of claim for wrongful

taking of corn); Patterson v. Clark, 20 Iowa 429, 430–31 (1866) (involving

trespass action for taking possession of wagon); Ralston v. Black, 15 Iowa 47, 49

(1863) (stating trespass to chattel occurs only where there is an “unlawful intermeddling with, or an exercise or claim of dominion over property”); Dyson v.

Ream, 9 Iowa 51, 51–53 (1859) (affirming verdict where the defendant wrongfully

took possession of the plaintiff’s corn).

At oral argument, Bauler raised a contention that Rohmiller and Ace’s

search of her vehicle constituted a criminal trespass. I disagree. Criminal

trespass is defined in Iowa Code section 716.7(2)(a), subparagraphs (1)–(7). Three

of those subparagraphs relate to property not at issue here. See Iowa Code

§ 716.7(2)(a)(5) (railway property), (6) (public utility property), (7) (dwellings). Three of the subparagraphs criminalize the “entering” or “remaining” upon 35

property, which are not applicable here. See id. § 716.7(2)(a)(1), (2), (3). The

remaining subparagraph provides that a trespass includes “[b]eing upon or in

property and wrongfully using, removing therefrom, altering, damaging,

harassing, or placing thereon or therein anything animate or inanimate, without

the implied or actual permission of the owner, lessee, or person in lawful

possession.” Id. § 716.7(2)(a)(4). There is no evidence Rohmiller or Ace violated

this provision. There was no evidence of wrongful use, alteration, or damage.

And “placing,” as used in this statute, means affixing something to the property

and not merely touching the property. See State v. Geddes, 998 N.W.2d 166, 180 (Iowa 2023) (stating that the trespass statute requires “plac[ing] something”

on the property and not “mere door-knocking”).

In sum, I conclude there was no violation of the Iowa Constitution as

analyzed under the Wright framework. Law enforcement officers searched

Bauler’s protected effect, her vehicle, without first obtaining a search warrant.

The Iowa Constitution does not require officers conducting general criminal

investigations to obtain a search warrant in all circumstances. The constitution

provides only that “[t]he right of the people to be secure in their persons, houses,

papers and effects, against unreasonable seizures and searches shall not be violated.” Iowa Const. art. I, § 8. Generally, an officer conducting a criminal

investigatory search need not obtain a warrant prior to conducting that search

unless the search would be “unlawful, tortious, or otherwise prohibited” under

Iowa law. Wright, 961 N.W.2d at 416. In this case, Rohmiller’s and Ace’s

momentary touching of Bauler’s vehicle in a public place during a lawful traffic

stop was not unlawful, tortious, or otherwise prohibited under Iowa law. Thus,

law enforcement had no obligation to obtain a search warrant prior to conducting

the search. 36

III.

I conclude the remainder of Bauler’s state and federal constitutional

claims are without merit. In the interest of brevity, I will not address them

separately. I concur in the judgment.

May, J., joins this special concurrence. Oxley, J., joins parts I and II of

this special concurrence. 37

OXLEY, Justice (dissenting). As we noted in State v. Wright, “[c]urrent Fourth Amendment

jurisprudence is a mess.” 961 N.W.2d 396, 410 (Iowa 2021). Be that as it may,

we have an obligation to apply that federal jurisprudence as laid out by the

United States Supreme Court. A proper application of federal precedent reveals

that Illinois v. Caballes, 543 U.S. 409 (2005), is irrelevant to Bauler’s Fourth

Amendment challenge and that a different result is compelled by United States

v. Jones, 565 U.S. 400 (2012), and Florida v. Jardines, 569 U.S. 1 (2013). I must

therefore respectfully dissent from the plurality’s conclusion that use of the drug

dog was not an unreasonable search under the Fourth Amendment to the United

States Constitution. I would hold that Bauler’s Fourth Amendment rights were

violated and would reverse the district court’s denial of her motion to suppress

evidence obtained following the dog’s alert.

I. The Drug Dog Sniff Did Not Violate Article I, Section 8 of the Iowa Constitution Under Our Independent State Law Analysis.

Bauler argues that the officer violated her rights under article I, section 8

of the Iowa Constitution when he directed the dog to jump up onto her car,

relying on State v. Wright, 961 N.W.2d 396 (Iowa 2021). I agree with the special

concurrence that when we parted ways with federal search-and-seizure

jurisprudence in Wright, we made a clean cut. Applying Wright to Bauler’s claim

here, I also agree with the special concurrence that her claim fails. I therefore

join parts I and II of the special concurrence.

Having rejected Bauler’s state constitutional claim, I turn to her federal

claim. And here, I part ways with the plurality’s Fourth Amendment analysis as

further explained below. 38

II. Caballes Has Nothing to Say in a Property-Based Analysis of the Fourth Amendment.

Two important developments prevent us from relying on Caballes to decide

Bauler’s Fourth Amendment challenge. First, the United States Supreme Court

revived9 a property-based approach for determining whether a search occurred

under the Fourth Amendment. See Jones, 565 U.S. at 405–06 (describing

pre-Katz10 jurisprudence and noting that later cases, including Katz, had “devi-

ated from that exclusively property-based approach”). The Court made clear that

the property-based approach is independent of the Katz expectation-of-privacy framework. See id. at 409 (“[T]he Katz reasonable-expectation-of-privacy test has

been added to, not substituted for, the common-law trespassory test.”); see also

Jardines, 569 U.S. at 11 (“The Katz reasonable-expectations test . . . is unnec-

essary to consider when the government gains evidence by physically intruding

on constitutionally protected areas.”). Second, the Supreme Court clarified that

even though a drug dog can only detect contraband, its use nevertheless consti-

tutes an illegal search under the Fourth Amendment when the drug sniff occurs

in a constitutionally protected space. See Jardines, 569 U.S. at 11 (holding that

officers conducted a search by taking a drug-detection dog onto an individual’s

front porch).

It is true that officers are allowed to conduct an open-air sniff with a

drug-detection dog by “simply walk[ing] around a car,” City of Indianapolis v.

9Commentators have challenged whether Jones revived something or created something

new. See Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 81–86 (2012) (describing early cases and concluding that “[t]he widespread belief that pre-Katz decisions adopted a trespass test appears to be incorrect”). In any event, it is our obligation to apply Jones, not question its historical accuracy. See State v. Brown, 930 N.W.2d 840, 858 (Iowa 2019) (McDonald, J., concurring specially) (“The [United States] Supreme Court is the final arbiter of the meaning of the Federal Constitution.”). 10Katz v. United States, 389 U.S. 347, 353 (1967) (recognizing “that the Fourth Amendment protects people—and not simply ‘areas'—against unreasonable searches and seizure”); id. at 361 (Harlan, J., concurring) (setting forth the Katz two-part test). 39

Edmond, 531 U.S. 32, 40 (2000), during an otherwise lawful traffic stop without

offending the Fourth Amendment, see Caballes, 543 U.S. at 409. The Caballes

search analysis is based on the “reasonable expectation of privacy” test described

in Katz for determining whether police conduct amounts to a search. See id. at

407–08.

But there are limits on the use of a drug dog during a routine traffic stop.

An officer cannot validly extend the stop beyond the time needed to complete the

legitimate mission of the initial seizure, which is resolving the traffic infraction.

See Rodriguez v. United States, 575 U.S. 348, 357 (2015). This limitation is crit-

ical because the Caballes line of cases allows the use of a drug-detection dog

without any type of suspicion. This is an important distinction from situations

involving some level of suspicion that illegal drugs are present. In cases like

United States v. Place, the Supreme Court recognized that where there is reason-

able suspicion that an individual is trafficking drugs to justify a Terry-type de-

tention of their luggage, officers may use a drug dog to determine whether the

luggage contains contraband given the minimal additional intrusion on the per-

son’s privacy interests since the dog can detect only contraband. See

462 U.S. 696, 706–07 (1983). Running through this line of cases is the notion that a drug sniff by a trained canine is a lesser intrusion—but it is an intrusion

nonetheless. See id. at 707 (“A ‘canine sniff’ . . . is much less intrusive than a

typical search.” (emphasis added)).

III. Jones Recognized a Distinct Property-Based Test for Determining Whether a Search Occurred, and Jardines Extended That Analysis to Dog Sniffs.

In United States v. Jones, police officers attached a GPS device to the

underside of Jones’s Jeep while it was in a public parking lot and then used it to track his movements over the next twenty-eight days. 565 U.S. at 403. In 40

defending the conviction against Jones’s Fourth Amendment challenge, the

government argued that the Court’s precedent established that “Jones had no

‘reasonable expectation of privacy’ in the area of the Jeep accessed by

Government agents (its underbody) and in the locations of the Jeep on the public

roads, which were visible to all.” Id. at 406. The Court had previously rejected

challenges to government tracking of an individual’s whereabouts in two different

cases, both involving a package containing a beeper tracking device that found

its way inside the defendant’s vehicle. See id. at 408–10 (discussing United States

v. Karo, 468 U.S. 705 (1984), and United States v. Knotts, 460 U.S. 276 (1983)).

The Court addressed—but did not overrule—both cases in clarifying that

the Katz expectation-of-privacy test was not the only way to identify whether a

search had occurred. See id. In United States v. Knotts, the defendant challenged

the government’s use of a beeper to track his vehicle to a cabin as violating the

Fourth Amendment. 460 U.S. at 277. The beeper had been placed in a five-gallon

drum of chloroform purchased by Knotts’s codefendant. Id. The Jones Court ex-

plained that “there had been no infringement of Knotts’ reasonable expectation

of privacy since the information obtained—the location of the automobile carry-

ing the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public.”

565 U.S. at 408–09 (discussing Knotts, 460 U.S. at 281–82).

The second beeper case discussed in Jones, United States v. Karo, “ad-

dressed the question left open by Knotts”: whether installation of the beeper

“amounted to a search or seizure.” Id. at 409 (discussing Karo, 468 U.S. at 713).

In Karo, officers placed the beeper in a container of ether (used to extract cocaine

from clothing) that a government informant then sold to individuals under in-

vestigation by the Drug Enforcement Administration (DEA). See 468 U.S. at 708. When the defendants evaded other surveillance techniques, DEA agents used 41

the beeper to follow the movement of the container—and ultimately the

drugs—over the next four-and-a-half months until it finally arrived at a house

rented by three of the codefendants. Id. at 708–10. The Jones Court concluded

that “the installation ‘with the consent of the original owner [did not] constitute[]

a search or seizure . . . when the container [wa]s delivered to a buyer having no

knowledge of the presence of the beeper’ ” because the government “came into

physical contact with the container only before it belonged to the defendant

Karo.” 565 U.S. at 409–10 (omission in original) (quoting Karo, 468 U.S. at 707).

The length of the surveillance in Jones was not a basis for distinguishing

Karo, nor could it have been since Karo involved an even longer period of sur-

veillance. Rather, Jones distinguished Karo’s holding because it addressed only

the Katz reasonable-expectation-of-privacy test, not a common law trespassory

test. Id. at 409. The Supreme Court concluded that Karo supported its separate

property-based conclusion based on one critical difference: Jones “possessed the

Jeep at the time the Government trespassorily inserted the information-gather-

ing device, [putting him] on much different footing” than the defendants in Karo.

Id. at 410. Although the Jones Court discussed the twenty-eight-day period that

officers were able to surveil Jones, the fact that Jones possessed the vehicle when the government trespassed on it was the defining difference, not the extent of the

surveillance. Id.

Having explained the bases for its holdings in Knotts and Karo, there was

no need to address the government’s argument that Jones lacked an expectation

of privacy “because Jones’s Fourth Amendment rights do not rise or fall with the

Katz formulation.” Id. at 406. “At bottom, we must ‘assur[e] preservation of that

degree of privacy against government that existed when the Fourth Amendment

was adopted.’ ” Id. (alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)). Looking to the text of the Fourth Amendment, which protects 42

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures,” the Court found the case

straightforward. Id. at 404 (alteration in original) (quoting U.S. Const.

amend. IV). “It is beyond dispute that a vehicle is an ‘effect’ as that term is used

in the Amendment,”11 and “[t]he Government physically occupied private

property for the purpose of obtaining information” by attaching the GPS device

to the Jeep’s undercarriage. Id.; see also id. at 410. Thus, these two

factors—(1) physically occupying a person’s effect (the Court also describes the

government’s actions as a “physical intrusion”) (2) for the purpose of obtaining

information—constitute a search under the Fourth Amendment. Id. at 404–05.

The second case that directs the analysis here is Florida v. Jardines,

569 U.S. 1. In Jardines, the Court built on its property-based analysis in Jones

to hold that officers violated a defendant’s Fourth Amendment rights when they

brought a drug-sniffing dog onto his porch because they physically entered and

occupied the curtilage of his home “to engage in conduct not explicitly or implic-

itly permitted by the homeowner.” Id. at 5–6. Notably, the Court recognized that

the act of entering the curtilage was not itself unconstitutional since an officer

could approach a home and knock on its front door without a warrant “precisely because that is ‘no more than any private citizen might do.’ ” Id. at 8 (quoting

Kentucky v. King, 563 U.S. 452, 469 (2011)). “But introducing a trained police

dog to explore the area around the home in hopes of discovering incriminating

evidence is something else.” Id. at 9.

11This was important to the portion of the Court’s analysis that distinguished Oliver v.

United States, 466 U.S. 170 (1984), because an open field is not a constitutionally protected space. Jones, 565 U.S. at 410–11 (“Quite simply, an open field . . . is not one of those protected areas enumerated in the Fourth Amendment. The Government’s physical intrusion on such an area—unlike its intrusion on the ‘effect’ at issue here—is of no Fourth Amendment significance.” (citations omitted)). 43

Of import here, the Court rejected Jardines’s reliance on Caballes and its

progeny for the same reason it had rejected reliance on Knotts and Karo in Jones:

both lines of cases applied the Katz expectation-of-privacy framework to deter-

mine whether a search occurred. Id. at 10–12 (noting the government’s argument

in Jones that there is no expectation of privacy in one’s public movements was

“a proposition with at least as much support in our case law as the one [about

dog sniffs] the State marshals here”). The fact that a drug dog can only detect

contraband played no part in the Court’s analysis12 because the defendant’s ex-

pectations of privacy are simply irrelevant to Jones’s property-based approach.

Id. at 10–11 (“Thus, we need not decide whether the officers’ investigation of

Jardines’ home violated his expectation of privacy under Katz.”).

Critically, the Supreme Court made clear that the Katz expectation-of-pri-

vacy test and the Jones property-based analysis are separate and distinct meth-

ods for determining whether there has been a search for Fourth Amendment

12Jardines began in the Florida state courts, where the Florida Supreme Court faced a

split among lower courts on the issue of whether taking a drug dog along for a “knock and talk” violated the Fourth Amendment. Jardines v. State, 73 So. 3d 34, 35 (Fla. 2011), aff’d on other grounds, 569 U.S. 1. Up to that time, “[a] vast majority of federal and state courts ha[d] interpreted the United States Supreme Court’s decisions as holding that dog sniffs are not searches under the Fourth Amendment, even in the context of private residences.” Id. at 66–68 (Polston, J., dissenting) (footnotes omitted). In siding with cases finding a Fourth Amendment violation, the Florida Supreme Court concluded that a dog sniff at a person’s front door “does not only reveal the presence of contraband, as was the case in the federal ‘sui generis’ dog sniff cases discussed above, but it also constitutes an intrusive procedure that may expose the resident to public opprobrium, humiliation and embarrassment, and it raises the specter of arbitrary and discriminatory application.” Id. at 49 (majority opinion) (“Given the special status accorded a citizen’s home under the Fourth Amendment, we conclude that a ‘sniff test,’ such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a ‘search’ within the meaning of the Fourth Amendment.”). Although that judgment was ultimately affirmed, the United States Supreme Court did not affirm on the basis used by the Florida Supreme Court—that the home’s “special status” entitled it to greater privacy protections than an individual’s vehicle on the side of the road or her luggage in an airport, id. Instead, the Supreme Court applied the distinct property-based analysis it had used in Jones—which involved a vehicle—that “keeps easy cases easy[:] That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.” Jardines, 569 U.S. at 11. 44

purposes. See United States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016)

(“[T]he fact the government’s conduct doesn’t trigger Katz doesn’t mean it doesn’t

trigger the Fourth Amendment.”); United States v. Thomas, 726 F.3d 1086, 1092

(9th Cir. 2013) (describing Jones as a watershed opinion that “changed the ju-

risprudential landscape by holding that [Katz] was not the exclusive rubric”);

see also United States v. Poller, 682 F. Supp. 3d 226, 232 (D. Conn. 2023) (de-

scribing Jones as “[a] second test for deciding whether a ‘search’ has occurred”).

Indeed, “[l]ower courts recognized Jones as a sea change.” United States v. Rich-

mond, 915 F.3d 352, 357 (5th Cir. 2019); see also United States v. Sweeney, 821

F.3d 893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived

a ‘property-based approach’ to identify unconstitutional searches.” (quoting

Jones, 565 U.S. at 405)); United States v. Katzin, 769 F.3d 163, 181 (3d Cir.

2014) (en banc) (explaining that “Jones fundamentally altered [the] legal land-

scape by reviving—after a forty-five year hibernation—the Supreme Court’s prior

trespass theory”); Oprisko v. Dir. of the Dep’t of Corrs., 795 S.E.2d 739, 745 (Va.

2017) (recognizing that “Jardines announced a new rule” that applies only pro-

spectively). As the Supreme Court describes its holding in Jones, “[t]he [Fourth]

Amendment establishes a simple baseline . . . : When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a

“search” within the original meaning of the Fourth Amendment’ has ‘undoubt-

edly occurred.’ ” Jardines, 569 U.S. at 5 (emphasis added) (quoting Jones,

565 U.S. at 406 n.3). “One virtue of the Fourth Amendment’s property-rights

baseline is that it keeps easy cases easy. That the officers learned what they

learned only by physically intruding on [constitutionally protected] property to

gather evidence is enough to establish that a search occurred.” Id. at 11. 45

IV. Faithful Application of Federal Precedent Following Jones and Jardines Reveals That Officer Rohmiller Violated the Fourth Amendment.

Employing the two-part test identified in Jones and Jardines, there is no

doubt that Officer Rohmiller was attempting to search (gather incriminating in-

formation) by directing Ace to sniff Bauler’s vehicle for drugs. Nor is there any

doubt that Bauler’s vehicle is an effect. See Jones, 565 U.S. at 404 (“It is beyond

dispute that a vehicle is an ‘effect’ . . . .”). That the only thing Ace could do is

detect contraband is irrelevant to a property-based analysis—it is enough that

Ace was used to gather information. See Jardines, 569 U.S. at 10–11. The fighting issue is whether Officer Rohmiller, through his use of Ace to gather in-

formation, physically intruded or encroached on Bauler’s car.

In Jones, officers “encroached” on the exterior of a vehicle by attaching a

GPS device to its undercarriage for purposes of gathering information. 565 U.S.

at 410; see also Jardines, 569 U.S. at 11 (identifying the intrusion in Jones as

physically mounting a GPS to the automobile). The plurality here distinguishes

Jones by adding a new requirement not placed there by the Supreme Court: that

the trespass was an “extended physical occupation or physical intrusion” as

opposed to the “fleeting contact with the exterior of a vehicle” involved here.

(Emphasis added.) The relevant question is not the extent of the trespass but

rather the gathering of information through a physical intrusion. See Jones,

565 U.S. at 418–19 (Alito, J., concurring in the judgment) (recognizing that

attaching the GPS to the Jeep’s undercarriage “might have provided grounds in

1791 for a suit for trespass to chattels”). Ace did not merely brush his tail against

Bauler’s vehicle as he passed by during his open-air sniff. He jumped up on the

vehicle in several places (so much so that Bauler complained about him

scratching her vehicle as she watched from Deputy Vander Berg’s squad car) so he could reach the places that Officer Rohmiller was directing him to sniff. 46

Whether Ace’s actions amounted to a physical intrusion or encroachment of

Bauler’s effect determines the existence of a Fourth Amendment violation here.

Courts around the country have grappled with the issue of whether a drug

dog that jumps up on a vehicle or sticks its nose into the vehicle’s interior to

enable it to smell for drugs goes beyond what Caballes permits. Even before

Jardines, the federal courts of appeals that addressed the issue qualified their

“holding[s] that a dog’s instinctive jump into a car does not violate the Fourth

Amendment” by adding: “as long as the canine enters the vehicle on its own

initiative and is neither encouraged nor placed into the vehicle by law enforce-

ment.” United States v. Sharp, 689 F.3d 616, 619–20 (6th Cir. 2012) (discussing,

and joining, the holdings in United States v. Pierce, 622 F.3d 209, 213–14 (3d Cir.

2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); and United

States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989)). Following Jones and

Jardines, courts have either avoiding deciding the issue, see, e.g., United States

v. Pulido–Ayala, 892 F.3d 315, 318–19 (8th Cir. 2018) (recognizing that where

an officer cannot ordinarily search the interior of a vehicle, it is questionable

whether a drug dog that jumps inside a vehicle has violated the Fourth Amend-

ment but declining to “explore the problem further” because the officer had prob- able cause to search the car before the entry based on the dog’s “strong reaction”

of “immediately” pulling the officer to the open passenger door coupled with the

driver’s “suspicious reaction to the drug checkpoint”); Thomas, 726 F.3d at

1092–93 (recognizing that post-Jones, “it is conceivable that by directing the

drug dog to touch the truck and toolbox [by jumping into the back of the pickup]

in order to gather sensory information about what was inside, the border patrol

agent committed an unconstitutional trespass or physical intrusion” but declin-

ing to decide the issue by applying the “ ‘faith-in-caselaw’ exception to the exclu- sionary rule” (quoting Caleb Mason, New Police Surveillance Technologies and the 47

Good-Faith Exception: Warrantless GPS Tracker Evidence After United States v.

Jones, 13 Nev. L.J. 60, 66 (2012))), or found the Fourth Amendment violated,

see, e.g., United States v. Buescher, 691 F. Supp. 3d 924, 930, 936, 939

(N.D. Iowa 2023) (granting motion to suppress and holding that canine’s actions

of “insert[ing] his head into the open window of [a] vehicle” as the dog hung on

the side of the car door to sniff for drugs was “[t]he same conduct” of “physically

occup[ying] private property for the purpose of obtaining information” that oc-

curred in Jones and noting that prior cases that “found no Fourth Amendment

violation when a drug-sniffing dog breaks the plane of an open window . . . were

largely prior to Jones and Jardines” (third quoting Jones, 565 U.S. at 404)); State

v. Dorff, 526 P.3d 988, 998–99 (Idaho 2023) (holding that use of drug dog during

a traffic stop violated the Fourth Amendment under Jones where it “jumped up

onto the door, and planted his two front paws on the door (and then the window)

as he sniffed the upper seams of the vehicle,” actions the court described as

“intermeddling” by “violat[ing] the dignitary interest in the inviolability of a chat-

tel”), cert. denied, 144 S. Ct. 249 (2023).

Given this struggle, cases applying Jones outside of the drug-sniff context

help explore its parameters. Since Jones, federal courts have been very exacting in applying Jones’s holding to an officer’s contact with an individual’s effects,

particularly vehicles. In United States v. Richmond, an officer conducting a traffic

stop “pushed on [a] tire” he had noticed wobbling, which produced a “solid

thumping noise,” indicating that “something besides air was inside.” 915 F.3d at

354. The defendant consented to a search, which ultimately led to the removal

of the tires and the discovery of secret compartments containing methampheta-

mine. Id. at 355. With respect to “the ‘reasonable expectation of privacy’ ques-

tion,” the court concluded it was bound by its precedent, United States v. Muniz- Melchor, 894 F.2d 1430, 1435 (5th Cir. 1990), which held that tapping a propane 48

tank in the back of a pickup truck was not a search under a Katz reasonable-

expectations analysis, even if it was technically a trespass. Richmond, 915 F.3d

at 356. Pushing on the tire would not violate an expectation of privacy since an

attendant putting air in the tire would be expected to do the same. Id. Critically,

though, the court noted that “a precedent binds us only as far as it goes,” and it

went on to address whether pushing on the tire was nonetheless a search under

Jones’s property-based approach. Id. at 356–57. “In terms of the physical intru-

sion, [the court saw] no difference between the Jones device touching the car and

an officer touching the tire.” Id. at 358.

The United States Court of Appeals for the Fifth Circuit is not alone in its

strict application of Jones. An officer who physically grasped a vehicle’s door

handle to open it was found to have engaged in “an intrusion, however slight,

that generally constitutes a search.” McHam v. State, 746 S.E.2d 41, 47–49 (S.C.

2013), abrogated on other grounds by Smalls v. State, 810 S.E.2d 836 (S.C. 2018).

Swabbing the door handle of a car parked in a public location to collect the

driver’s DNA was determined to be a search. See Schmidt v. Stassi,

250 F. Supp. 3d 99, 101 (E.D. La. 2017). A parole officer who inserted a parolee’s

key into the door lock of a minivan (an effect) to ascertain the van’s owner was found to have engaged in a search under post-Jones and Jardines Fourth

Amendment jurisprudence. See United States v. Dixon, 984 F.3d 814, 820–21

(9th Cir. 2020). Similarly, testing a key in an apartment door lock to see if it fits

has been determined to be a search under Jardines. See United States v. Bain,

874 F.3d 1, 15 (1st Cir. 2017). Touching the hood of a vehicle to check if it was

still warm on a cold winter morning was found to be a search—despite being a

minimal physical intrusion—because it was done for information-gathering pur-

poses. United States v. Owens, 917 F.3d 26, 36–37 (1st Cir. 2019) (concluding that the search did not violate the Fourth Amendment because it fell within the 49

exigent circumstances exception to the warrant requirement). Federal courts

have even held that chalking a vehicle’s tires to discern how long it was parked

in one location constituted a search under Jones. See Taylor v. City of Saginaw,

922 F.3d 328, 333 (6th Cir. 2019); cf. Verdun v. City of San Diego, 51 F.4th 1033,

1037 (9th Cir. 2022) (holding that even if chalking a tire is a search, it was a

reasonable administrative search), cert. denied, 144 S. Ct. 73 (2023).

The Idaho Supreme Court addressed this exact situation and found a

Fourth Amendment violation under Jones and Jardines when a drug dog jumped

up on the side of a vehicle to sniff the upper seams of the vehicle before signaling

its alert to drugs. Dorff, 526 P.3d at 996–98. In determining whether the dog had

physically intruded or trespassed on the defendant’s vehicle, the court relied on

both the First and Second Restatements of Torts, which recognize that “whether

a ‘trespass’ was actionable in the absence of damages at common law is beside

the point for purposes of determining legal relations under the Fourth Amend-

ment.” Id. at 996 (citing Restatement (First) of Torts § 217 cmt. a (1934)); see also

Restatement (Second) of Torts § 217 cmt. a, at 417 (Am. L. Inst. 1965) (moving

same principle into the Second Restatement).

I see no defensible distinction between these cases and Rohmiller’s actions of directing Ace to jump up onto the outside of Bauler’s vehicle so he could smell

the upper door areas. Jones, McHam, Schmidt, Dixon, Owens, Taylor, and Dorff

each involved an officer touching or attaching something to the outside of a ve-

hicle for the express purpose of obtaining information. That the information

sought here was the smell of illegal drugs does not make it any less of a search,

a point made clear by Jardines.

Here, it is critical to remember that this was a suspicionless investigation

for drugs. Bauler was detained for a traffic stop solely based on driving slowly 50

and crossing the center line. The scope of an investigation turns on the permis-

sible basis for an officer’s presence in a particular place. In New York v. Class,

an officer conducting a routine traffic stop reached inside the vehicle to move

papers that were obscuring the VIN, which was required to be visible from the

outside. See 475 U.S. 106, 108 (1986). As the officer reached in, he saw the

handle of a gun sticking out from under the driver’s seat, and the driver was

arrested. Id. The Supreme Court agreed this constituted a search, id. at 115, but

it ultimately concluded the search was “sufficiently unintrusive to be constitu-

tionally permissible” because “the officer simply reached directly for the unpro-

tected space where the VIN was located to move the offending papers,” id. at 119.

Critical to the Court’s analysis was the fact that the intrusion was directly re-

lated—and limited—to the officer’s legitimate purpose of investigating the traffic

violation. Id.

Compare that case to Arizona v. Hicks, where officers investigating a shoot-

ing entered a neighboring apartment without a warrant to look for the shooter,

other victims, and a weapon. See 480 U.S. 321, 323 (1987). Once inside, the

officers noticed expensive stereo equipment they suspected was stolen. Id. Alt-

hough recording serial numbers from the equipment that were in plain view did not raise Fourth Amendment concerns, the Supreme Court concluded that the

officers engaged in an unconstitutional search when they moved a turntable to

locate its serial number on the underneath side. Id. at 324–25. The Court re-

jected Justice Powell’s dissenting position that moving the turntable was no dif-

ferent than reading the serial numbers that could be seen without touching the

equipment, emphasizing that “the ‘distinction between “looking” at a suspicious

object in plain view and “moving” it even a few inches’ is much more than trivial

for purposes of the Fourth Amendment.” Id. at 325. From this analysis came the well-known line: “A search is a search, even if it happens to disclose nothing but 51

the bottom of a turntable.” Id. The officers’ observation of the serial numbers in

plain view was similar to the gun sighting in Class—it was constitutionally per-

missible because the officers were lawfully in the place to see the serial numbers,

even if for a purpose unrelated to the stereo equipment. But even a minimal

intrusion on a person’s effects—such as moving a turntable—beyond the scope

of an officer’s valid purpose is impermissible. Id.

Officer Rohmiller’s use of Ace here is analogous to the difference identified

in Hicks between recording the serial numbers in plain view without touching

anything and moving the turntable to locate a serial number on the bottom side.

Bauler was lawfully detained for a traffic violation, so the officers’ investigation

was limited to that purpose. Caballes allows an officer to walk a drug dog around

the outside of a vehicle during a traffic stop to conduct an “open air sniff” because

the dog, as an extension of the officer, is merely smelling the air in the area where

he is permitted to be by virtue of the traffic stop. See 543 U.S. at 409–10. But

the physical intrusion onto the vehicle that assists the officer in gathering infor-

mation unrelated to the purpose of the stop is “much more than trivial for pur-

poses of the Fourth Amendment.” Hicks, 480 U.S. at 325. As in Hicks, Ace’s

physical intrusion onto Bauler’s vehicle that allowed him to reach the area where he could smell the drugs was a search for Fourth Amendment purposes. See id.

Once a search is identified, the analysis then turns to whether the

warrantless search was nonetheless reasonable. Under federal law, privacy

expectations only come into play in identifying whether there has been a search;

they do not inform the reasonableness of a warrantless search. Rather,

reasonableness under the Fourth Amendment turns on whether there is a valid

exception to the warrant requirement. See Riley v. California, 573 U.S. 373, 382

(2014) (“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”). The State does not argue that 52

any exceptions to the warrant requirement would apply here, and I am aware of

none. Officer Rohmiller therefore violated Bauler’s Fourth Amendment rights.

V. We Cannot Duck Application of Jones and Jardines.

The plurality asserts that Caballes dictates the Fourth Amendment anal-

ysis and avoids addressing the impact of Jones and Jardines on drug-sniff cases

under a property-based approach. The plurality ducks the issue under the prem-

ise that it is not for us to ignore controlling United States Supreme Court

cases—even if its subsequent cases foreshadow a case’s demise. I do not disagree

with that sentiment, but it does not apply here because “[t]he two precedents sit

comfortably side by side.” Mallory v. Norfolk S. Ry., 600 U.S. 122, 137 (2023)

(rejecting party’s argument that International Shoe Co. v. Washington, 326 U.S.

310 (1945), “seriously undermined Pennsylvania Fire[ Insurance Company of

Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917)]’s foundations”

because “[t]he two precedents sit comfortably side by side”); see also Consumers’

Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th 342, 356 (5th Cir. 2024)

(Jones, J., concurring in part and dissenting in part) (“Naturally, though, one

decision does not overrule another if ‘two precedents sit comfortably side by

side.’ ” (quoting Mallory, 600 U.S. at 137)). In Mallory, the Supreme Court explained that International Shoe did not

undermine Pennsylvania Fire; “all International Shoe did was stake out an

additional road to jurisdiction over out-of-state corporations.” 600 U.S. at 138.

The same is true in the Supreme Court’s Fourth Amendment jurisprudence. “The

Katz reasonable-expectations test ‘has been added to, not substituted for,’ the

traditional property-based understanding of the Fourth Amendment, and so is

unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas.” Jardines, 569 U.S. at 11 (quoting 53

Jones, 565 U.S. at 409) (majority opinion). While Caballes controls under a

privacy-based approach, it says nothing of the distinct property-based approach.

See United States v. Lewis, 38 F.4th 527, 534–35 (7th Cir. 2022) (recognizing

that “[t]he Supreme Court has sometimes held that the use of drug-sniffing dogs

constitutes a search,” and comparing Jardines, 569 U.S. at 11–12, as applying

a property-based approach with Caballes, 543 U.S. at 410, as applying a privacy-

based approach). Caballes therefore does not allow us to avoid addressing

Bauler’s property-based Fourth Amendment challenge. See Free Speech Coal.,

Inc. v. Att’y Gen. U.S., 825 F.3d 149, 164 (3d Cir. 2016) (“We do not disagree with

the dissent that ‘[i]f a precedent of this Court has direct application in a case,

yet appears to rest on reasons rejected in some other line of decisions, the Court

of Appeals should follow the case which directly controls.’ Our disagreement is

with which Supreme Court case directly controls. Because the secondary effects

doctrine is inapplicable here, [City of] Renton [v. Playtime Theatres, Inc., 475 U.S.

41 (1986),] does not control.” (first alteration in original) (quoting Rodriguez de

Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))). Thus, the

conclusion that there was no violation of the Fourth Amendment under Caballes

does not end the analysis. That would be like refusing to analyze a claimed violation of a state constitutional provision after concluding a similar federal

constitutional provision was not violated. They are two distinct tests, and both

must be analyzed.

Here, the plurality’s analysis of the Fourth Amendment issue is flawed by

its misplaced reliance on Caballes, which is simply “unnecessary to consider”

under a property-based Fourth Amendment challenge. Jardines, 569 U.S. at 11.

Bauler does not argue that Jardines overruled Caballes, so the plurality’s string

cite of cases that say as much—but do not involve a challenge to a drug dog directed to jump up on a vehicle to search for the smell of drugs—adds little to 54

the analysis. See, e.g., United States v. Moore, No. 22-30009, 2023 WL 6937414,

at *3 (9th Cir. Oct. 20, 2023) (finding no Fourth Amendment violation where

dog’s alert outside of the vehicle provided probable cause for a search before the

dog leapt inside the vehicle); Bain, 874 F.3d at 15 (holding that officers violated

Fourth Amendment when they used house key taken from defendant to deter-

mine which condominium unit he had stayed in, citing Jardines to conclude

outside lock was protected as part of the curtilage); United States v. Lewis, No.

1:15–CR−10–TLS, 2017 WL 2928199, at *6–8 (N.D. Ind. July 10, 2017) (holding

that officer’s use of drug dog on open walkway outside of second-floor hotel room

did not violate Fourth Amendment). And I agree that Caballes controls when a drug dog conducts an open-air sniff by “simply walk[ing] around a car,” City of Indianapolis, 531 U.S. at 40 (explaining that an open-air sniff did not transform a checkpoint seizure into a search), such that there is no claim that the dog physically trespassed on the defendant’s property for purposes of obtaining information, and therefore there is no basis for a property-based Fourth Amendment violation, see Dorff, 526 P.3d at 998 (“Notably, when a drug dog simply sniffs the air surrounding a vehicle, it is not a ‘search’ under the Fourth Amendment’s ‘reasonable expectation of pri- vacy’ test because there is no ‘privacy’ interest in the free-air that surrounds a vehicle.” (citing Caballes, 543 U.S. at 409–10)). The plurality’s citation to cases falling into that category likewise adds little to the discussion. See, e.g., United States v. Winters, 782 F.3d 289, 294, 304–06 (6th Cir. 2015) (applying Caballes to conclude no Fourth Amendment violation where drug dog “immediately alerted to the presence of narcotics near the passenger-side door”); United States v. Seybels, 526 F. App’x 857, 859 & n.1 (10th Cir. 2013) (rejecting argument that Jardines overruled Caballes in a case where the facts did not indicate the dog touched the vehicle); United States v. Cordero, No. 5:13–cr–166, 2014 WL 55

3513181, at *8–9 (D. Vt. July 14, 2014) (same); State v. Candler, No. 2015AP2212–CR, 2016 WL 7234714, at *3 (Wis. Ct. App. Dec. 14, 2016) (per curiam) (same, rejecting suggestion that Jardines would recognize a curtilage- type protection of the space surrounding a vehicle); see also United States v. Olivera-Mendez, 484 F.3d 505, 511–12 (8th Cir. 2007) (concluding in a pre- Jardines case that minimal contact with the exterior of a vehicle does “not rise to the level of a constitutionally cognizable infringement” (quoting Caballes, 543 U.S. at 409)). Caballes simply does not speak to a property-based Fourth Amendment challenge, and the plurality failed to do the hard work required by federal precedent by hiding behind it. VI. Conclusion. It is important to recognize that the physical intrusion here was not a cas- ual brush of the vehicle that did not aid Ace in detecting drugs, as suggested by the plurality. See, e.g., Dorff, 526 P.3d at 997 (“Intermeddling is the difference between someone who brushes up against your purse while walking by—and someone who, without privilege or consent, rests their hand on your purse or puts their fingers into your purse before your eyes or behind your back. It is also the difference between a dog’s tail that brushes against the bumper of your ve- hicle as it walks by—and a dog who, without privilege or consent, approaches your vehicle to jump on its roof, sit on its hood, stand on its window or door—or enter into your vehicle.”). Jumping up onto Bauler’s vehicle enabled Ace to reach the top of the door where Rohmiller directed him to sniff, after which he imme- diately provided investigative information to Rohmiller by alerting to the smell of drugs. With this important limitation, I would conclude that Officer Rohmiller en- gaged in an unconstitutional search of Bauler’s car under the Fourth Amend- ment and reverse the denial of her motion to dismiss. 56

McDermott, J., joins parts II through VI of this dissent. 57

MCDERMOTT, Justice (dissenting). Bauler argues that the dog’s climb onto the side of his vehicle while sniffing

for drugs violated his search-and-seizure rights under both the United States

Constitution and the Iowa Constitution. On the challenge under the United

States Constitution, I join parts II through VI of Justice Oxley’s dissent and

would hold, for the reasons she explains, that the search violated the Fourth

Amendment under the United States Supreme Court’s precedents. But on

Bauler’s challenge under our state constitution, I part ways with all my col-

leagues, and would hold that the search also violated article I, section 8 of the

Iowa Constitution.

We interpret the Iowa Constitution independent of the Supreme Court’s

interpretation of the United States Constitution, even when provisions of the two

constitutions contain similar language. State v. Wright, 961 N.W.2d 396, 402–03

(Iowa 2021). As a result, provisions in the Iowa Constitution may offer greater or

lesser protection than comparable provisions in the United States Constitution.

Id. at 403–04. “On questions of state constitutional law, the Supreme Court ‘is,

in law and in fact, inferior in authority to the courts of the States.’ ” Id. at 403 (quoting McClure v. Owen, 26 Iowa 243, 249 (1868)). In State v. Wright, for in-

stance, we interpreted article I, section 8 of the Iowa Constitution to provide

greater protection from a police officer’s warrantless search of a citizen’s trash

bin than the Supreme Court has held exists under the Fourth Amendment. Com-

pare Wright, 961 N.W.2d at 419, with California v. Greenwood, 486 U.S. 35,

43–44 (1988).

Article I, section 8 states in relevant part that “[t]he right of the people to

be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated.” This language divides the analysis 58

into four questions: (1) Is the subject of the alleged intrusion a person, house,

paper, or effect? (2) If so, was it searched or seized? (3) If so, was it the defend-

ant’s (“their”) person, house, paper, or effect? (4) If so, was the search or seizure

unreasonable? Orin S. Kerr, Katz as Originalism, 71 Duke L.J. 1047, 1052

(2022).

A main feature of the approach we used in Wright does considerable work

in the analysis of the state constitutional claim in this case. In Wright, we exam-

ined whether the police officer’s conduct in accessing the defendant’s trash bin

violated positive law—meaning some existing enacted law or legal doctrine rec-

ognized by courts—in analyzing whether the officer infringed the defendant’s

rights under article I, section 8. 961 N.W.2d at 416–17. A municipal ordinance

made it a crime for anyone other than a licensed trash collector to access a trash

bin set out for collection. See id. at 417. We considered positive law—specifically,

whether the existence of the ordinance meant that the officer committed a tres-

pass when accessing the trash bin on the defendant’s property—in our analysis

of the reasonableness of the search. Id. at 416. People may reasonably expect

that an officer will not engage in conduct that is “unlawful, tortious, or otherwise

prohibited” regarding their “persons, houses, papers and effects.” Id.; Iowa Const. art. I, § 8. The officer violated the defendant’s reasonable expectation of

privacy, we held, when the officer committed a trespass to access the trash bin.

Wright, 961 N.W.2d at 419.

But positive law is not the only approach for analyzing compliance with

article I, section 8. The “reasonable expectation of privacy” test from Justice Har-

lan’s concurring opinion in Katz v. United States remains the overarching test for

determining whether a search-and-seizure violation has occurred. 389 U.S. 347,

360–61 (1967) (Harlan, J., concurring). “Although the courts speak of a single ‘reasonable expectation of privacy’ test,” the label includes “several distinct but 59

coexisting approaches.” Orin S. Kerr, Four Models of Fourth Amendment Protec-

tion, 60 Stan. L. Rev. 503, 506 (2007). A positive law model is one of several

approaches that courts have used to identify whether a particular police action

constitutes a search requiring a warrant. Id. at 506–08, 516.

What constitutes a “search” of “persons, houses, papers and effects” must

bear the same meanings—to have all the same dimensions and coverage—that

they had when article I, section 8 was enacted. See Kyllo v. United States,

533 U.S. 27, 34 (2001) (Scalia, J.) (discussing the same principle under the

Fourth Amendment). Courts confront the constant challenge of applying a con-

stitutional search-and-seizure protection enacted in 1857 to current circum-

stances even though technological change presents circumstances that people

living when the Iowa Constitution was enacted wouldn’t have fathomed. In State

v. Burns, for instance, we recently had to apply the Fourth Amendment and ar-

ticle I, section 8 to a challenge involving DNA evidence. 988 N.W.2d 352, 360–61

(Iowa 2023). DNA was still many years from its discovery when the Iowa Consti-

tution was enacted; even as late as the 1930s, the idea that you could pluck a

gene and the DNA that composed it “from your body and take it away for study

was as absurd to many [scientists] as the idea that scientists today might cap- ture a stray thought and examine it under a microscope.” Bill Bryson, A Short

History of Nearly Everything 402 (2003).

The Katz test serves “as a means of identifying modern equivalents to the

physical-entry invasions that occurred” when the Constitution was enacted and

thus provides “technology neutrality” in what the Constitution protects. Kerr,

Katz as Originalism, 71 Duke L.J. at 1050. A modern-day action violates a rea-

sonable expectation of privacy—and is thus unconstitutional—if a founding-era

equivalent action would have violated the Constitution. Id. So, for instance, even though thermal imaging was unknown in 1791, the Supreme Court in Kyllo v. 60

United States recognized that using thermal imaging technology to observe ac-

tivity within a house is a “search” under the Fourth Amendment on par with a

physical inspection. 533 U.S. at 40.

The plurality contends that Wright’s holding does not apply in this case

because “Wright does not apply to dog sniffs” since dog sniffs are “sui generis.”

Setting aside that such a notion is belied by the holding in Florida v. Jardines,

569 U.S. 1, 10–12 (2013)—in which the Supreme Court held that use of a

drug-sniffing dog to investigate around a house without a warrant violated the

Fourth Amendment—the plurality gives Wright too narrow a reading. In Wright,

we properly considered whether the officer’s conduct violated any positive law in

accessing the trash bin. See 961 N.W.2d at 418–19. This aspect of Wright’s hold-

ing isn’t limited to cases involving trash or questions about whether property has

been abandoned.

But the plurality goes on to consider if Wright’s holding did apply in this

case, whether the dog’s climb onto the side of Bauler’s vehicle to sniff for drugs

would violate article I, section 8 under a positive law approach. And on this anal-

ysis, I agree with the plurality.

A person commits “trespass to chattel” (in other words, unlawful interfer- ence with another’s personal property) under the common law when he “inter-

meddles”—defined as “intentionally bringing about a physical contact”—with

someone’s personal property. Restatement (Second) of Torts § 217 cmt. e, at 419

(Am. L. Inst. 1965). When the police officer guided the dog to enable it to climb

onto the side of the vehicle to sniff, the officer “intermeddled” with Bauler’s per-

sonal property and thus committed a trespass to chattel. See State v. Dorff,

526 P.3d 988, 997–98 (Idaho 2023). Whether Bauler could or would sue for the

trespass is immaterial for purposes of determining the relative rights of the par- ties under article I, section 8. See id. at 996. The officer’s trespass on Bauler’s 61

“effect” (the vehicle) violated a reasonable expectation of privacy. The officer had

no warrant, and no recognized exception to the warrant requirement applies. As

a result, the district court erred, in my view, in failing to exclude the fruits of the

improper search under article I, section 8.

I thus respectfully dissent and would hold that the officer’s actions violated

the search-and-seizure protections of both the Fourth Amendment to the United

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