IN THE SUPREME COURT OF IOWA
No. 20–1549
Submitted October 12, 2022—Filed April 7, 2023
STATE OF IOWA,
Appellee,
vs.
SANTOS RENE TORRES,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Warren County, Brendan Greiner
(suppression motion); Kevin Parker (bench trial), District Associate Judges.
Defendant seeks further review of court of appeals decision affirming his
conviction for operating while intoxicated and rejecting his challenge to a
warrantless entry into his home. DECISION OF COURT OF APPEALS AND
DISTRICT COURT JUDGMENT AFFIRMED.
Waterman, J., delivered the opinion of the court, in which
Christensen, C.J., and Mansfield, Oxley, and McDermott, JJ., joined.
McDonald, J., filed a special concurrence. May, J., took no part in the
consideration or decision of the case.
Benjamin D. Bergmann (argued) of Parrish Kruidenier Dunn Boles Gribble
Gentry Brown & Bergmann L.L.P., Des Moines, for appellant. 2
Brenna Bird, Attorney General, Genevieve Reinkoester (argued), Assistant
Attorney General, for appellee. 3
WATERMAN, Justice.
In State v. Abu Youm, ___ N.W.2d ___ (Iowa 2023), decided today, we
harmonized Caniglia v. Strom, 141 S. Ct. 1596, 1599 (2021), with precedent
allowing police to enter a home without a warrant under exigent circumstances.
In this appeal, we determine whether police needed a warrant to enter a home to
assist (and protect) a social worker investigating child endangerment. The
defendant was drinking at a local establishment when a phone call from his wife
prompted him to rush home. She had been arrested for child endangerment and
was handcuffed in a squad car when he arrived. Officers suspected he was
intoxicated and knew he was agitated. They followed him inside where a lone
social worker was interviewing three young children. He was arrested for
operating a motor vehicle while intoxicated, second offense; harassment of a
public official; and interference with official acts.
He moved to suppress evidence on the grounds that the police violated his
rights under the Fourth Amendment and Iowa Constitution by seizing him and
entering the home without a warrant. The district court denied his motion and
convicted him in a trial on the minutes of testimony. He appealed, and we
transferred the case to the court of appeals, which affirmed over a dissent. We
granted the defendant’s application for further review.
On our review, we determine that the police did not seize the defendant
before he entered the home and their warrantless entry was justified to protect
and assist the social worker under the exigent circumstances. We affirm the
denial of his motion to suppress and his conviction. 4
I. Background Facts and Proceedings.
On the evening of June 27, 2019, a 911 caller reported a small child
hanging out of a second-story window of a home in Carlisle. The window was
only partially covered by a broken screen. Officer Zach Buehrer of the Carlisle
Police Department responded to the call and spoke with the child’s mother, who
became aggressive. Officer Buehrer notified the Iowa Department of Human
Services (DHS) and arrested the mother. Officer Buehrer requested backup to
help him handle the scene, which included three children, ages nine, six, and
four; the children’s grandmother; a responding social worker from DHS; and the
mother who had been arrested. Warren County Sheriff’s Deputy Derek Konrad
arrived and helped corral the children who were running in and out of the house.
The mother called her husband, Santos Rene Torres, and told him that
she had been arrested at their home. Torres drove home from a restaurant where
he had been drinking. Officers met Torres upon his arrival and told him where
to park his truck to avoid blocking traffic. Torres was agitated and uncooperative,
and officers suspected that he had been drinking. Accompanied by the officers,
Torres approached the squad car in which his wife was secured. After a brief
conversation, Officer Buehrer put his hand on Torres’s shoulder and said, “Let’s
go,” to move him away. Torres remained free to move about and walked inside
the house. Officer Buehrer knew the social worker from DHS was inside
investigating the child endangerment incident and thought it best to keep an eye
on Torres. Officer Buehrer followed Torres inside without being invited in or told
not to enter. 5
Inside, Torres’s mother-in-law was looking after the children while Kate
Roy, a Child Protective Worker (CPW) with DHS, interviewed them.
Deputy Konrad also entered the home to assist with the children so that they
would not interrupt the conversation or wander out of the house. Torres walked
around inside, accompanied by an officer. After Torres spent time alone in a
bathroom, Officer Buehrer patted him down for weapons. When Torres spoke to
Roy, she noticed he was blinking and speaking slowly, leaning forward, and
appeared to have bloodshot eyes. Roy asked Torres if he was under the influence
of any substances; Torres said no. Deputy Konrad also noticed that Torres
smelled of alcohol, his eyes were bloodshot, and his speech was slurred.
Deputy Konrad asked Torres to step outside for field sobriety tests. Torres
and Deputy Konrad went outside, but Torres refused to perform the sobriety
tests. Torres admitted, however, that he had had been drinking before he drove
home. As Deputy Konrad began to handcuff Torres, he resisted and reached deep
into his front pants pocket with a free hand. Other officers helped subdue Torres,
handcuff him, and place him in the back of Deputy Konrad’s squad car. Torres
repeatedly called Deputy Konrad a racist and said, “Racist cops like you are why
people kill cops.” Torres refused a preliminary breath test. Torres was advised
he was under arrest and was read his Miranda rights.
Torres was charged with operating while intoxicated, second offense. See
Iowa Code § 321J.2(2)(b) (2019). Torres stipulated that he previously had been
convicted of operating while intoxicated. He was also charged with two simple 6
misdemeanors: harassment of a public official and interference with official acts.
See id. § 718.4; id. § 719.1(1)(b).
Torres filed a motion to suppress evidence that he argued was collected in
violation of the Fourth Amendment to the United States Constitution and
article I, section 8 of the Iowa Constitution. At the suppression hearing, he
contended that he was illegally seized, that the officers lacked grounds to enter
his home without a warrant, and that evidence of his statements and
observations of his intoxication should be suppressed. The district court denied
Torres’s motion. In its ruling, the district court considered both the community
caretaking exception and exigent circumstances to justify the officers’
warrantless entry into Torres’s house:
In responding to a call for a child hanging out of a second story window, the officers had every reason to enter the home to assess the safety of the children. The officers were exercising a bona fide community caretaking function when they did so. The Court additionally finds the officers were entering the home under exigent circumstances such that a failure to enter the home might subject the child to harm or neglect. The exigency continued after the officers took the mother into custody and DHS attempted to find a suitable parent or placement for the children. . . .
Officers clearly had reasonable suspicion the defendant was under the influence of alcoholic beverage once he exited his car and began his interaction with the officers. The officers continued with their community caretaking responsibilities by remaining with the defendant as he was interviewed by DHS. The Court believes, under these circumstances, it was incumbent upon the officers to remain near the defendant; the defendant was suspected of being intoxicated, responded to a child endangerment investigation, and most importantly, was visibly agitated at the prospect of his children being removed. In fact, the officers would have been derelict in their duty to leave the defendant unattended in this situation.
. . . The children were still in the presence of the home during the Department’s investigation. Therefore, officers were still acting 7
within their community caretaking function by assisting Ms. Roy in finding a placement for the children while the mother was in custody.
Torres waived his right to a jury trial, and the case proceeded to a bench
trial on the minutes of testimony. The district court found Torres guilty and
sentenced him to two years in prison with all but seven days suspended and
credit for seven days served.
Torres appealed, and we transferred the case to the court of appeals. In
his appellate brief, Torres emphasized the seizure issue, arguing that he was
seized without reasonable suspicion from the moment officers told him where to
park his truck. On that ground, Torres argued that the district court should have
suppressed evidence of his intoxication. His initial appellate brief argued the
police lacked justification to enter his home without a warrant, and argued the
district court erred in finding “that officers were engaged in community
caretaking by seizing Mr. Torres and in entering Mr. Torres’s home.” Caniglia
was decided after his appellate proof brief was filed, and both the State’s brief
and Torres’s reply brief argued Caniglia.
The court of appeals affirmed his conviction over a dissent. The majority
determined that Torres was not seized or subjected to a custodial interrogation
before entering his home and that the police were justified in following him inside
to protect the social worker:
As the State explains, the officers did not enter the house to search or seize evidence. Instead, Officer Buehrer followed Torres inside to ensure everyone’s safety and Deputy Konrad entered the home to mind the children while Roy spoke to Torres. In the throes of the child-endangerment investigation, that law enforcement 8
response was prudent and did not violate Torres’s rights under the Fourth Amendment.
The majority also found the evidence sufficient to affirm his conviction.
The dissenting judge relied on Caniglia to conclude the officers’
warrantless entry into the home could not be justified by exigent circumstances
or under the community caretaking exception to the warrant requirement. Torres
applied for further review, emphasizing the warrantless entry issue, and quoted
the dissenting judge arguing that Caniglia foreclosed the officers’ ability to enter
his house without a warrant. We granted Torres’s application for further review.1
II. Standard of Review.
We exercise our discretion to limit our review to (1) the seizure and (2) the
warrantless entry issue. The court of appeals decision shall stand as the final
opinion in this appeal on (1) the custodial interrogation claim under the Fifth
1We respectfully disagree with our colleague’s conclusion that Torres forfeited his claim that the warrantless entry into his home by police was unjustified. Torres did argue he was first seized outside the home, but we cannot only address that issue and go no further, as our colleague urges. The issues are intertwined. See Feld v. Borkowski, 790 N.W.2d 72, 84–85 (Iowa 2010) (Appel, J., concurring in part and dissenting in part) (finding “no insurmountable obstacle” to reviewing two intertwined issues where the district court had ruled on both and the factual record was adequately developed). Indeed, Torres went on to argue that he was seized inside his home. The State’s appellate brief nowhere argued that Torres forfeited the issue of warrantless entry. Rather, the State acknowledged Torres’s alleged constitutional violations raised in district court and on appeal included that he was seized inside his home when officers entered without a warrant or his permission. The State argued the district court correctly denied Torres’s motion to suppress, in part because “exigent circumstances permitted the officers to enter the home.” Torres, having raised the claim below, is free to support it on appeal with additional legal arguments, including cases decided while his appeal is pending. We “distinguish[] between a claim, which must be raised below and argued in briefs on appeal, and an argument in support of a preserved claim.” Feld, 790 N.W.2d at 84. The court of appeals decided the warrantless entry claim without questioning forfeiture, and as the dissenting judge observed, Torres “explicitly challenged every aspect of the officers’ interactions with him, thereby preserving error.” At oral argument in our court, Torres’s counsel continued to stress that he was seized before entering his home, but counsel made clear Torres was not abandoning his unlawful warrantless entry claim. 9
Amendment and (2) the sufficiency of the evidence. See State v. Montgomery, 966
N.W.2d 641, 649 (Iowa 2021).
“When a defendant challenges a district court’s denial of a motion to
suppress based upon the deprivation of a state or federal constitutional right,
our standard of review is de novo.” State v. Hauge, 973 N.W.2d 453, 458 (Iowa
2022) (quoting State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019)). “We review the
entire record to independently evaluate the totality of the circumstances . . . .”
Id. “[W]e give deference to the district court’s fact findings due to its opportunity
to assess the credibility of the witnesses, but we are not bound by those
findings.” Id. (quoting State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017)). “In
seeking to sustain an exception to the warrant requirement, the state bears the
burden of proof.” State v. Wilson, 968 N.W.2d 903, 909 (Iowa 2022).
III. Analysis.
A. Whether Officers Made an Unreasonable Seizure of Torres. Torres
argues that he was unreasonably seized in violation of his Fourth Amendment
rights and article I, section 8 of the Iowa Constitution prohibiting unreasonable
searches and seizures. See State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001).2
We first address when Torres was seized. The question of seizure considers
the totality of the circumstances and turns on whether a reasonable person in
those circumstances would feel free to leave. United States v. Mendenhall, 446
U.S. 544, 553–54 (1980). “The defendant has the burden of proof as to whether
2Torres does not argue for a separate analysis under article I, section 8 of the Iowa
Constitution. 10
a seizure occurred.” State v. Fogg, 936 N.W.2d 664, 668 (Iowa 2019). We
conclude that Torres was not seized before he entered the house.
Torres argues that he was seized as soon as officers told him where to park
his truck. He relies on United States v. Beauchamp, 659 F.3d 560, 566–67 (6th
Cir. 2011). According to Torres, officers seized him by directing his actions on a
street where two squad cars were already parked in a manner that restricted the
flow of traffic. We disagree. Beauchamp is easily distinguished on its facts. There,
an officer instructed Beauchamp to stop and come meet him where he was
standing so that he could question him. Id. at 566. By contrast, Torres drove
himself to the scene. The dashcam video shows that the street on which Torres
lives is narrow—passing vehicles slowly edge by the parked squad car. A
reasonable driver would not mistake police direction where to park as a seizure.
We have no doubt that fans attending a basketball game at Hilton Coliseum do
not think they are being seized by traffic control officers directing them where to
park.
Next, Torres argues he was seized while he spoke to his wife who sat
handcuffed in a squad car. Officer Buehrer put his hand on Torres’s shoulder
and told him, “Let’s go,” three times. Torres contends he was seized by this
application of physical force. He relies on California v. Hodari D., 499 U.S. 621,
629 (1991). We disagree. First, Hodari D. involved a suspect who was fleeing
police; Torres made no attempt to flee. See id. at 622–23. Second, Hodari D.
involved police who were attempting to confine a suspect in one place for 11
investigatory purposes; Torres was free to move about. See id. at 623. Third, the
hand on Torres’s shoulder differs from the tackle in Hodari D. See id.
[P]hysical contact is acceptable if it is consensual, “a normal means of attracting a person’s attention” or obviously serves some nonseizure purpose. And a seizure does not occur merely because the officer has for some understandable reason requested that the encounter be moved to a different yet nonintimidating location.
4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 9.4(a), at 600–01 (6th ed. 2020) (footnotes omitted); see also Martinez v.
Nygaard, 831 F.2d 822, 826–27 (9th Cir. 1987) (holding contact on shoulder to
get attention was not a seizure); United States v. Collis, 766 F.2d 219, 220–21
(6th Cir. 1985) (per curiam) (tapping the arm, displaying law enforcement
credentials, and requesting a move to a different public location was not a
seizure). A hand on the shoulder is a normal means of getting attention that may
be employed by any sensible person, whether peace officer or not. And the
officers’ intent to move Torres to another location on his own property is a
“nonintimidating location.”
The relevant inquiry is whether a reasonable person in view of all the
circumstances would feel free to leave. Mendenhall, 446 U.S. at 554. Here,
Torres’s own characterization of the police officers’ actions is telling. Torres
complains that officers “followed” him around his yard and into his house, but
Torres came to the scene of his own volition and continued to chart his own path
on his own property. Police did not seize him by shadowing his movements.
Under these circumstances—the direction where to park, the hand on the
shoulder, and the shadowing him around the house—we conclude that a 12
reasonable person in Torres’s position would have felt free to leave up until the
pat-down search after his bathroom visit. Police have the prerogative to control
the scene of an ongoing investigation. Am. C.L. Union of Ill. v. Alvarez, 679 F.3d
583, 607 (7th Cir. 2012). “[A] sensible person would not expect a police officer to
allow people to come and go freely from the physical focal point of an
investigation into faulty behavior or wrongdoing.” Brendlin v. California, 551 U.S.
249, 257 (2007). In this case, that scene and focal point necessarily includes the
area where the officers parked their vehicles, where Torres’s wife was detained,
and where the DHS child endangerment investigation was ongoing. Those places
include the street, the yard, and the interior of the home. Not to mention Torres
was literally on his home turf and was allowed to walk around. We hold that
Torres was not seized until after he entered his home and emerged from the
bathroom.
Upon exiting the bathroom, officers patted Torres down. A pat down is a
seizure for Fourth Amendment purposes. Terry v. Ohio, 392 U.S. 1, 19 (1968).
This “Terry” seizure must be supported by reasonable suspicion that the subject
is concealing weapons or contraband. See id. at 21–22.
In our view, the officers had a reasonable suspicion to pat Torres down
when he exited the bathroom. Torres knows his home better than anyone, and
it is reasonable to believe that he might have a weapon concealed in his
bathroom. Weapons can be conveniently concealed under linens3 or behind the
3See, e.g., United States v. Lewitzke, 176 F.3d 1022, 1029 (7th Cir. 1999) (discussing the location of defendant’s hidden firearms, including “behind towels and sheets in a bathroom closet”). 13
toilet4 until they are retrieved. Torres remained inside the bathroom for a
significant amount of time where he could not be seen. Torres remained agitated
when he emerged. Under the totality of the circumstances, we conclude that the
officers possessed the requisite reasonable suspicion to pat him down for
weapons.
B. Whether an Exception to the Warrant Requirement Justifies the
Warrantless Entry into Torres’s House. We next decide whether the
warrantless entry into the house was unconstitutional under these
circumstances. “[P]olice intrusion into the home implicates the very core of the
Fourth Amendment to the United States Constitution and article I, section 8 of
the Iowa Constitution.” Wilson, 968 N.W.2d at 911. Few exceptions will allow
police to intrude into the home. Id. at 913. The district court relied on the
community caretaking exception and exigent circumstances to reject Torres’s
challenge to the warrantless entry into his home. See Cady v. Dombrowski, 413
U.S. 433, 441 (1973).
On further review, Torres relies on Caniglia to argue exigent circumstances
did not exist because his mother-in-law was tending to the children. See
141 S. Ct. at 1603–05 (Kavanaugh, J., concurring) (noting that unattended
children inside a home can create exigent circumstances). Caniglia is factually
inapposite. In Caniglia, the house was unoccupied at the time of the search, and
the individual who presented a risk of harm had left in an ambulance. Id. at
4See, e.g., The Godfather (3/9) Movie CLIP – Killing Sollozzo and McCluskey (1972) HD,
YouTube (Nov. 22, 2011), https://www.youtube.com/watch?v=ppjyB2MpxBU. 14
1598 (majority opinion). By contrast, Torres entered his home when a child
endangerment investigation was in progress and a lone, female social worker was
interviewing the three young children inside. Police have a statutory duty to
protect and assist social workers conducting child endangerment investigations
in the family home. See Iowa Code § 232.71B(3)(a). The officers had reason to
believe Torres was intoxicated and belligerent and posed a risk to the safety of
CPW Roy and to the integrity of her investigation.
In Abu Youm, ___ N.W.2d at ___, we explain how exigent circumstances
may continue to justify a warrantless entry into a home after Caniglia. Most
notably, on remand for reconsideration in light of Caniglia, the United States
Court of Appeals for the Eighth Circuit reaffirmed that exigent circumstances
justified a warrantless entry to protect children inside a Dubuque home. United
States v. Sanders, 4 F.4th 672, 678 (8th Cir. 2021) (determining “the officers
reasonably believed that [warrantless] entry was necessary to either provide
emergency assistance to the child who was heard crying or to prevent an
imminent assault”). Other courts have held that officers’ warrantless entries are
justified by exigent circumstances after Caniglia. See, e.g., Gaetjens v. City of
Loves Park, 4 F.4th 487, 493 (7th Cir. 2021) (holding that emergency aid
exception justified warrantless entry for a wellness check); Gonzalez v. Scaletta,
No. 17–cv–7080, 2021 WL 4192065, at *1, *8, *19 (N.D. Ill. Sept. 15, 2021)
(dismissing illegal entry claim because police had received reports of suicidal
individual and no response to their knocks); Parsons v. Velasquez, 551 F. Supp.
3d 1085, 1197 (D.N.M. 2021) (“No reasonable jury could conclude other than 15
that exigent circumstances existed here, given that the Defendants reasonably
believed that M. Parsons was experiencing a medical emergency . . . .”).
At bottom, it would have been imprudent for the officers to allow the visibly
agitated and intoxicated Torres to enter his house unsupervised where CPW Roy
was carrying on the DHS investigation that had just prompted his wife’s arrest.
We have observed that police “routinely assist” DHS workers by ensuring their
safety while they investigate. State v. Kern, 831 N.W.2d 149, 156 (Iowa 2013).
That police duty continues until the children are removed from the home. See
id. at 173–74. As noted, police have an affirmative grant of statutory authority
to assist DHS workers in their investigations. See Iowa Code § 232.71B(3)(a). The
safety of this DHS worker in particular was a reasonable concern to the officers:
Roy, as a CPW, was a key player in the process that had resulted in the arrest of
Torres’s wife and threatened the removal of the children from his home. And
there was more than a mere chance that Torres would encounter Roy—it was a
certainty given DHS’s duty to determine whether placement of the children with
Torres himself would be suitable. See id. § 232.71B (“Duties of the department
upon receipt of report.”). It requires no stretch of the imagination to understand
how that confrontation might take a turn for the worse. See, e.g., Illinois Child
Welfare Worker Fatally Stabbed During Home Visit; Suspect Charged with Murder,
NBC News (Jan. 6, 2022, 11:16 AM), https://www.nbcnews.com/news/us-
news/illinois-child-welfare-worker-fatally-stabbed-home-visit-suspect-charg-
rcna11160 [https://perma.cc/G8HE-R9GJ]. We agree with the district court 16
that “the officers would have been derelict in their duty to leave [Torres]
unattended in this situation.”
No officer entered Torres’s home before he did. The officers did not enter
the house to search or seize evidence but rather to safeguard CPW Roy and her
investigation. Torres does not question her lawful authority. Police entered the
home only after the visibly agitated and intoxicated Torres walked in and thereby
created the exigency. Officers had no time to secure a warrant to follow Torres
into the home. They did not need a warrant given their statutory duty to
safeguard CPW Roy inside the home and given the exigency presented by his
behavior.
We hold the officers’ warrantless entry in the home under these exigent
circumstances did not violate Torres’s rights under the Fourth Amendment or
article I, section 8 of the Iowa Constitution.
IV. Disposition
For the foregoing reasons, we affirm the decision of the court of appeals
and the judgment of the district court.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Christensen, C.J., and Mansfield, Oxley, and McDermott, JJ., join this
opinion. McDonald, J., files a special concurrence. May, J., takes no part. 17
#20–1549, State v. Torres
McDONALD, J. (concurring specially)
I concur in the judgment. I write separately because I would not reach the
question of whether the officers’ warrantless entry into the home was legally
justified under the community caretaking doctrine.
Torres did not raise this issue in his main brief. The appellant’s failure to
raise an issue in his main brief constitutes forfeiture of the issue. Morris v.
Steffes Grp., Inc., 924 N.W.2d 491, 498 (Iowa 2019) (holding “unbriefed issues”
were waived); State v. Seering, 701 N.W.2d 655, 661–62 (Iowa 2005) (holding
party waived issues on appeal even though issues were preserved in district court
because issues were not presented in brief), superseded by statute on other
grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa Code § 692A.103 (Supp.
2009)); Goodenow v. City Council, 574 N.W.2d 18, 27 (Iowa 1998) (declining to
address issue where plaintiffs did not raise issue “in their initial brief”);
Parkhurst v. White, 118 N.W.2d 47, 49 (Iowa 1962) (holding party waived issue
not argued on appeal); Am. Mut. Liab. Ins. v. State Auto. Ins., 72 N.W.2d 88, 93
(Iowa 1955) (declining to express opinion on issue not raised).
Nor did Torres raise this issue in his reply brief. In his reply brief, Torres
noted that the State relied on Caniglia v. Strom, 141 S. Ct. 1596 (2021). His
position, however, was that “the analysis in Caniglia is not relevant to this
case.” (Emphasis added.) Contrary to the majority’s contention, Torres never
argued that Caniglia or the community caretaking doctrine were relevant in this 18
appeal. To resolve this appeal, we need only address the issues actually
presented.
It is not clear Torres even raised this issue in his application for further
review. Torres’s position on further review is that he “was seized shortly after he
arrived at the scene.” During oral argument, Torres’s counsel stated he was not
challenging the entry into the home, as such, but the seizure of his client upon
arriving at the scene. Setting that aside, even if Torres had raised this issue in
his application for further review, this court generally does not address issues
raised for the first time on further review. See, e.g., State v. Warren, 955 N.W.2d
848, 867 (Iowa 2021) (“We generally will not consider issues raised for the first
time in a reply brief in an appeal, let alone in an application for further review.”
(quoting State v. Schackford, 952 N.W.2d 141, 147–48 (Iowa 2020))); Alcala v.
Marriott Int’l, Inc., 880 N.W.2d 699, 711–12 (Iowa 2016) (declining to address
issue raised for first time on further review); Richardson v. Commodore, Inc., 599
N.W.2d 693, 696 n.2 (Iowa 1999) (“Richardson argued for the first time in his
application for further review that the doctrine of res ipsa loquitur applies. We
do not consider this issue because it was not timely raised.”), abrogated on other
grounds by Koenig v. Koenig, 766 N.W.2d 635 (Iowa 2009). Issues raised for the
first time on further review should be left “to another case and another day.”
Shackford, 952 N.W.2d at 148 (quoting State v. Gross, 935 N.W.2d 695, 704
(Iowa 2019)). 19
Rather than reaching out to resolve an issue adversely to the defendant
when he specifically argued that the issue was not relevant to this appeal, I would
follow our precedents and decline to resolve the issue.