State of Iowa v. Lee Allen Breuer , 808 N.W.2d 195 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 09–1170
Filed January 6, 2012
STATE OF IOWA,
Appellee,
vs.
LEE ALLEN BREUER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Jasper County, Darrell J.
Goodhue, Judge.
On further review, defendant claims the court of appeals erred in
affirming the district court’s denial of defendant’s motion to suppress.
AFFIRMED.
Richard E. H. Phelps II of Phelps Law Office, Mingo, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers,
Assistant Attorney General, Steven Johnson, County Attorney, and
Michael K. Jacobsen, Assistant County Attorney, for appellee.
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APPEL, Justice.
In this case, we consider whether the withdrawal of a blood
specimen pursuant to a search warrant violates the search and seizure
provisions of the Iowa or United States Constitutions when the warrant
is not physically present during the withdrawal. For the reasons
expressed below, we conclude this case presents no constitutional
violation.
I. Factual and Procedural Background.
The material facts are undisputed. Lee Allen Breuer was the
apparent driver in a one-car accident on Highway 6 in Jasper County.
When Lieutenant Dennis Stevenson of the Jasper County Sheriff’s Office
arrived at the scene, he saw an overturned vehicle in a ditch along the
side of the highway. Breuer was attempting to assist a passenger in the
overturned vehicle.
At the scene, Stevenson rendered assistance. He detected an odor
of alcohol about Breuer and observed that Breuer was unsteady on his
feet. Stevenson also observed a number of beer cans lying in and around
the car.
Breuer and the passenger were transported to Grinnell Regional
Medical Center. At the hospital, Deputy Sheriff Aaron Groves asked
Breuer to provide a breath test, but Breuer refused to provide a sample.
Groves invoked implied consent procedures, including reading Breuer
the implied consent advisory required by Iowa law. Breuer refused to
provide a blood or urine test.
Following Breuer’s refusals, Stevenson met with a magistrate in
Newton and obtained a warrant authorizing withdrawal of a blood
specimen from Breuer. See Iowa Code § 321J.10 (2009). After he
obtained the warrant, Stevenson called Groves at the hospital in Grinnell
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and advised Groves he had obtained the warrant and was en route to the
hospital. Before Stevenson arrived at the hospital with the warrant,
Groves informed Breuer that a search warrant had been obtained and
demanded that Breuer submit to a blood draw. Breuer initially refused,
but after Groves advised him that the blood would be withdrawn by force
if necessary, Breuer acquiesced and a specimen was withdrawn.
Ten to fifteen minutes after the blood draw, Stevenson arrived at
the hospital with the search warrant. Breuer was then advised that the
warrant had arrived and a copy of it was placed with his belongings at
the hospital. The alcohol content from the specimen provided by Breuer
was 0.171, well over the legal limit for intoxication.
The passenger in Breuer’s vehicle died as a result of injuries
sustained in the accident. The State charged Breuer with homicide by
vehicle in violation of Iowa Code section 707.6A(1). Breuer filed a motion
to suppress the results of the blood draw, which the district court
denied. The court of appeals affirmed. Breuer filed a motion for further
review, which we granted.
II. Standard of Review.
The standard of review of the constitutional issues raised in this
case is de novo. State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010).
III. Discussion.
A. Introduction. The parties agree that the blood draw could
only legally be accomplished with a warrant. The parties also do not
dispute that the search warrant was supported by probable cause and
was otherwise valid. The sole issue presented in this appeal, therefore, is
whether a blood draw pursuant to Iowa Code section 321J.10 is valid
under the Fourth Amendment and article I, section 8 of the Iowa
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Constitution when the search warrant for the blood specimen is obtained
but not physically present during the withdrawal.
B. Federal Caselaw. The Fourth Amendment of the United States
Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV. As we have noted, the Fourth Amendment
contains both a Warrant Clause and a Reasonableness Clause. State v.
Ochoa, 792 N.W.2d 260, 268 (Iowa 2010). Neither the Warrant Clause
nor the Reasonableness Clause specifically requires that an officer
conducting a search have physical possession of a warrant at the time of
the search. U.S. Const. amend. IV; see also United States v. Banks, 540
U.S. 31, 35, 124 S. Ct. 521, 524–25, 157 L. Ed. 2d 343, 352 (2003)
(observing “[t]he Fourth Amendment says nothing specific about
formalities in exercising a warrant’s authorization”). Further, no party
has identified any historical materials to assist in our analysis of the
narrow question before us.
The United States Supreme Court has not directly addressed
whether the Fourth Amendment requires a search warrant to be
physically present at the place to be searched when the warrant is
executed. In two cases, however, the Court has at least implied the
Fourth Amendment imposes no such requirement.
In Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d
1068 (2004), the Court explained that the particularity requirement of
the Fourth Amendment serves two purposes: to prevent general searches
and to assure “the individual whose property is searched or seized of the
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lawful authority of the executing officer, his need to search, and the
limits of his power to search.” Groh, 540 U.S. at 561, 124 S. Ct. at 1292,
157 L. Ed. 2d at 1081 (citation and internal quotation marks omitted).
While recognizing the dual purposes of the particularity requirement, the
Court noted that “neither the Fourth Amendment nor Rule 41 of the
Federal Rules of Criminal Procedure requires the executing officer to
serve the warrant on the owner before commencing the search.” Id. at
562 n.5, 124 S. Ct. at 1292 n.5, 157 L. Ed. 2d at 1081 n.5.
The Court essentially repeated this observation in United States v.
Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006). In
Grubbs, the Court noted, in the context of a challenge to an anticipatory
search warrant, that neither the Fourth Amendment nor the Federal
Rules of Criminal Procedure requires the executing officer to present the
property owner with a copy of the warrant before conducting the search.
Grubbs, 547 U.S. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205.
According to the Grubbs Court, the particularity requirement of the
Fourth Amendment does “not protect an interest in monitoring
searches.” Id. (citation and internal quotation marks omitted).
The vast majority of federal lower courts have found, in a wide
variety of settings, that physical presence of a warrant is not required to
support a search under the Fourth Amendment. See, e.g., United States
v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (“[W]e know from
Grubbs and earlier decisions . . . that, whatever the most prudent course
may be, the fourth amendment does not require officers to have a
warrant in hand when searching.”); United States v. Hepperle, 810 F.2d
836, 839 (8th Cir. 1987); United States v. Bonner, 808 F.2d 864, 869 (1st
Cir. 1986); United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981).
Some cases suggest the better practice is to serve the search warrant
6
prior to the search when it is practicable and in keeping with the ends of
justice to do so. See, e.g., Hepperle, 810 F.2d at 839 (“While it may be
foolhardy to proceed in the absence of the physical presence of the
warrant, it is not unconstitutional.”); see also Model Code of Pre-
Arraignment Procedure § SS 220.3(4), at 130 (1975). There is also some
suggestion in the caselaw that the Federal Rules of Criminal Procedure
require officers to leave a copy of the warrant when the officers conclude
the search or when they vacate the premises. See United States v.
Simons, 206 F.3d 392, 402–03 (4th Cir. 2000) (holding search team
violated Rule 41 by failing to leave a copy of the warrant or receipt of
items taken following the search, but concluding the violation did not
have a constitutional dimension); see also Fed. R. Crim. P. 41(f).
There are a few outliers in the federal cases. One is United States
v. Gantt, 194 F.3d 987 (9th Cir. 1999), overruled on other grounds by
United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008). In Gantt,
the Ninth Circuit held that the Federal Rules of Criminal Procedure
required federal agents to possess a search warrant before commencing a
search. Gantt, 194 F.3d at 1001. Although the court rested its decision
on the Federal Rules of Criminal Procedure, it noted that the physical
presence of the search warrant at the outset of the search advanced the
Fourth Amendment’s particularity requirement by assuring the property
owner of the lawfulness of the search and by giving “notice to the person
subject to the search what the officers are entitled to seize.” Id. at 1001–
02 (citation and internal quotation marks omitted). But even Gantt
recognizes that a search warrant need not be physically present where
exigent circumstances exist. Id. at 1004–05. Precedent from the Ninth
Circuit also suggests the court may have reached a different conclusion
had its analysis been restricted to the Fourth Amendment inquiry. See
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United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978) (reasoning
the Fourth Amendment was not offended even though the search
warrant was absent during the search of the defendant’s residence).
Additionally, Grubbs and Groh cast doubt on Gantt’s continuing validity.
See United States v. Mann, 389 F.3d 869, 875 n.1 (9th Cir. 2004) (stating
“dicta in . . . Groh . . . casts serious doubt both on our interpretation of
Rule 41 and our reasoning in Gantt”).
C. Caselaw from Other States. Several state courts have
addressed the issue presented in this case. State v. Cavanaugh, 635
A.2d 1382 (N.H. 1993), is the leading case holding that physical presence
of a search warrant is not required. In Cavanaugh, officers began to
search the defendant’s home after being informed by radio that a search
warrant had been obtained. Cavanaugh, 635 A.2d at 1383. The warrant
arrived at the home fifteen minutes after the search began. Id. The
defendant argued the search was invalid because the officers did not
have physical possession of the warrant when they initiated the search.
Id.
The New Hampshire Supreme Court characterized the federal law
on the issue as “settled” and, interpreting the New Hampshire
Constitution, held that a warrant need not be physically present when a
search is commenced. Id. at 1384–85. The court rejected the notion that
the delivery of the warrant to the party being searched would help ensure
police act within the scope of the warrant. Id. The court reasoned that
the police have the “absolute responsibility” to stay within the scope of
the warrant regardless of the knowledge of the property owner. Id. at
1385.
An approach similar to that of the New Hampshire Supreme Court
has been followed in a number of states. See, e.g., People v. Rodrigues-
8
Fernandez, 286 Cal. Rptr. 700, 707 (Ct. App. 1991); State v. Gomez, 623
P.2d 110, 117–18 (Idaho 1980); State v. Mims, 524 So. 2d 526, 535–36
(La. Ct. App. 1988); People v. Mahoney, 448 N.E.2d 1321, 1322–23 (N.Y.
1983); Green v. State, 880 S.W.2d 198, 201 (Tex. Ct. App. 1994); see also
2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 4.12, at 811 (4th ed. 2004) (stating the prevailing view in
state and federal cases is that officers need only exhibit or deliver
warrant before post-search departure).
A different view, however, was advanced in Commonwealth v.
Guaba, 632 N.E.2d 1217 (Mass. 1994). In Guaba, the Supreme Judicial
Court of Massachusetts held that searches conducted before the arrival
of the search warrant are per se unreasonable. Guaba, 632 N.E.2d at
1222–23. The court concluded that the purposes of the particularity
requirement could only be achieved if the officers possessed the warrant
in hand at the time of the search. Id. The failure of officers to physically
possess a search warrant prior to the search, the Guaba court reasoned,
fails “to put the occupant whose premises are to be searched on notice of
the police’s authority to search and the reasons for the search.” 1 Id. at
1223.
D. Iowa Caselaw. Article I, section 8 and the Fourth Amendment
contain nearly identical language. 2 Although we have not considered the
1The Supreme Judicial Court of Massachusetts has since limited the scope of
this “notice” rationale. In Commonwealth v. Valerio, 870 N.E.2d 46, 55–56 (Mass.
2007), the court held that, although officers must physically possess the warrant before
starting the search, in light of Grubbs, actual written notice of the officers’ authority to
search need not be given unless the property owner requests to examine the warrant.
2Article I, section 8 provides:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable seizures and searches shall not be violated;
and no warrant shall issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be searched, and the
persons and things to be seized.
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precise issue before us, we have decided several cases that help guide
our analysis. In Bailey v. Lancaster, 470 N.W.2d 351, 358 (Iowa 1991),
we stated that the Reasonableness Clause is a safeguard against
unreasonable execution of search warrants. Thus, even if police officers
have a search warrant, the search must be executed in a reasonable
manner. Id.; see also State v. Kubit, 627 N.W.2d 914, 921 (Iowa 2001)
(stating the knock-and-announce rule is governed by the Reasonableness
Clause), abrogated on other grounds by State v. Turner, 630 N.W.2d 601,
606 n.2 (Iowa 2001).
Further, our interpretation of article I, section 8 has “generally
endorsed the warrant-preference requirement.” Ochoa, 792 N.W.2d at
285. “All other things being equal,” we have explained, the “historical
context of the Fourth Amendment suggests a preference for particularity
as a tool to cabin police power.” Id. at 273. The requirement that a
warrant “particularly describ[e] the place to be searched, and the persons
and things to be seized,” is a reflection of this preference for particularity.
See Iowa Const. art. I, § 8; Ochoa, 792 N.W.2d at 273.
The particularity requirement, which is related to the probable
cause requirement, “ensures that nothing is ‘left to the discretion of the
official executing the warrant.’ ” State v. Randle, 555 N.W.2d 666, 669
(Iowa 1996) (quoting State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995));
see also State v. Mehner, 480 N.W.2d 872, 875 (Iowa 1992). In doing so,
the particularity requirement “guards the right of privacy from arbitrary
police intrusion.” State v. Prior, 617 N.W.2d 260, 263 (Iowa 2000). Also,
particularity minimizes “the risk that the officers executing search
warrants will by mistake search a place other than the place intended by
the magistrate.” Mehner, 480 N.W.2d at 875.
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E. Analysis. Although Breuer recognizes we are free to interpret
article I, section 8 differently from the Fourth Amendment, Ochoa, 792
N.W.2d at 267, he does not advance a reason for doing so in this case.
Under these circumstances, we ordinarily consider “the substantive
standards under the Iowa Constitution the same as those developed by
the United States Supreme Court under the Federal Constitution.”
Simmons v. State Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010).
However, even when the parties advance no substantive distinction, we
may apply the principles differently. Id.
At the outset, we note that Iowa has no express constitutional,
statutory, or procedural provision requiring a search warrant to be
physically present before a search may begin. Like the Fourth
Amendment, neither the Reasonableness Clause nor the Warrant Clause
of article I, section 8 mentions whether the warrant must be physically
present during the search. Likewise, Iowa Code section 808.5, which
governs the manner in which search warrants are to be executed, is
silent on the issue. See Iowa Code § 808.5. Also, Iowa Code section
808.8 requires officers to provide a receipt or inventory of items taken
after the search, but it creates in the officers no obligation to possess or
present the warrant before the search begins. See id. § 808.8.
Furthermore, the Iowa Rules of Criminal Procedure contain no rule
explicitly requiring officers to be in physical possession of the search
warrant before they may begin searching.
Breuer, in part, relies on Iowa Code section 321J.10(3)(b), which
requires a duplicate warrant to be made if the warrant to obtain a blood
specimen is obtained by telephone. Breuer argues that such a
requirement for a duplicate warrant would be meaningless if the officers
were not required to possess the warrant before the blood draw. This
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argument overlooks other important objectives served by requiring the
duplicate warrant. The duplicate-warrant requirement “preserve[s] the
integrity of the record for review in any ensuing criminal litigation,”
“requires the issuing Judge to focus specifically and deliberately on the
warrant’s particular description,” and “insures that the search is only as
extensive as the invasion of privacy that was actually authorized.” People
v. Crandall, 489 N.Y.S.2d 614, 618 (App. Div. 1985); see also Cazares-
Olivas, 515 F.3d at 729–30 (holding that the agents’ failure to possess
duplicate warrant required by the federal telephonic-warrant procedure
did not violate the Fourth Amendment).
We agree with the prevailing view that neither the Fourth
Amendment nor article I, section 8 requires a search warrant to be
physically present at the place to be searched before the search may
begin. We are unpersuaded by the reasoning in Guaba insofar as it
presupposes the Fourth Amendment or article I, section 8 creates in
property owners a constitutionally protected interest in monitoring
searches executed pursuant to a valid search warrant. See Grubbs, 547
U.S. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205. The Fourth
Amendment and article I, section 8
protect[] property owners not by giving them license to
engage the police in a debate over the basis for the warrant,
but by imposing, ex ante, the “deliberate, impartial judgment
of a judicial officer . . . between the citizen and the police,”
and by providing, ex post, a right to suppress evidence
improperly obtained and a cause of action for damages.
Id. (quoting Wong Sun v. United States, 371 U.S. 471, 481–82, 83 S. Ct.
407, 414, 9 L. Ed. 2d 441, 451 (1963)); cf. In re Detention of Shaffer, 769
N.W.2d 169, 174–75 (Iowa 2009) (“[I]t is a fundamental principle of law
that, when a court has authority to make an order and jurisdiction over
the subjects of the order, an order by the court must be obeyed
12
regardless of the substantive legality of the order[.]”); Smith v. State, 542
N.W.2d 567, 569 (Iowa 1996) (stating that “one may be guilty of the
crime of resisting arrest even if the initial arrest is illegal”). It is the
responsibility of the officers executing the search warrant to stay within
the scope of the warrant. See Cavanaugh, 635 A.2d at 1385. Officers
who fail to do so risk suppression of valuable evidence and create in the
property owner a cause of action for damages. See 42 U.S.C.A. § 1983
(West, Westlaw through P.L. 112-54 (excluding P.L. 112-40)); State v.
Schrier, 283 N.W.2d 338, 342 (Iowa 1979) (stating illegally seized
evidence is “inadmissible in a prosecution, no matter how relevant or
probative the evidence may be”). While it may be ill-advised to proceed
without the warrant in hand, neither the Fourth Amendment nor article
I, section 8 is violated when officers commence a search without physical
possession of a search warrant.
This is especially true in a case such as this where little was left to
the discretion of the officers. The warrant was supported by probable
cause and signed by a neutral, detached magistrate. See State v.
Fremont, 749 N.W.2d 234, 237 (Iowa 2008). The search warrant
particularly described who was to be searched (Breuer) and what was to
be seized (a blood specimen). The search began only after the officer
executing the warrant had been advised by the officer procuring the
warrant that the warrant had been signed by a magistrate and was “in
hand.” Following the search, the officers provided Breuer a copy of the
warrant by placing it with Breuer’s possessions.
Additionally, the officers’ discretion in executing the warrant was
circumscribed by statute. Iowa Code section 321J.11 contains the
procedure by which a blood specimen may be obtained. It states that a
blood specimen may be withdrawn only by a “licensed physician, licensed
13
physician assistant as defined in section 148C.1, medical technologist, or
registered nurse.” Iowa Code § 321J.11. The person withdrawing the
blood specimen must be acting at the request of a peace officer. Id.
Section 321J.11 further provides that “[o]nly new equipment kept under
strictly sanitary and sterile conditions shall be used for drawing blood.”
Id. Under these circumstances, we are satisfied that the executing
officer’s discretion was sufficiently cabined such that Breuer was
protected from arbitrary police intrusion. See Mehner, 480 N.W.2d at
875; see also Randle, 555 N.W.2d at 669.
Breuer further argues that the knock-and-announce principle
counsels us to consider, as part of the reasonableness analysis, the
physical presence of the warrant. The knock-and-announce rule became
part of the Fourth Amendment reasonableness inquiry in Wilson v.
Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 1916, 131 L. Ed. 2d 976,
980 (1995). In Wilson, the Court reasoned that the knock-and-announce
rule was firmly rooted in our common law tradition and concluded:
Given the longstanding common-law endorsement of the
practice of announcement, we have little doubt that the
Framers of the Fourth Amendment thought that the method
of an officer’s entry into a dwelling was among the factors to
be considered in assessing the reasonableness of a search or
seizure. Contrary to the decision below, we hold that in
some circumstances an officer’s unannounced entry into a
home might be unreasonable under the Fourth Amendment.
Wilson, 514 U.S. at 934, 115 S. Ct. at 1918, 131 L. Ed. 2d at 982.
The knock-and-announce rule is codified at Iowa Code section
808.6. We have also recognized the common law origins of the statutory
knock-and-announce requirement and that it embodies the
reasonableness requirement of the Fourth Amendment. State v. Brown,
253 N.W.2d 601, 602 (Iowa 1977). Moreover, we have stated that the
knock-and-announce rule advances three purposes: “To avoid property
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damage resulting from forcible entry, to prevent violence and personal
injury, and to protect the privacy of occupants.” State v. Farber, 314
N.W.2d 365, 369–70 (Iowa 1982).
The common law origin of the knock-and-announce rule and its
acceptance into early American law were the salient, if not the
dispositive, factors of the Court’s decision in Wilson. See Wilson, 514
U.S. at 934, 115 S. Ct. at 1918, 131 L. Ed. 2d at 982. Yet Breuer fails to
cite any authority suggesting that common law courts required officers to
be in physical possession of a search warrant before a lawful search
could begin. In fact, there is some authority for the proposition that
common law courts were more concerned that officers gave notice prior
to entry and less concerned with what form of notice was provided. See,
e.g., Case of Richard Curtis, (1757) 168 Eng. Rep. 67, 68 (“[N]o precise
form of words is required in a case of this kind. It is sufficient that the
party hath notice, that the officer cometh not as a mere trespasser, but
claiming to act under a proper authority.”).
Here, Groves provided sufficient notice of his authority and intent
to withdraw a specimen of Breuer’s blood. The physical absence of a
search warrant may theoretically increase the potential for confrontation
and violence, see Hepperle, 810 F.2d at 839, but the mere potential for
violence in this context, without more, is insufficient to invalidate the
search. Unlike the knock-and-announce context, the relationship
between the absence of a search warrant and unnecessary property
damage and violence is too tenuous to implicate either article I, section 8
or the Fourth Amendment.
It may be that the use of force exhibited by officers in executing a
search warrant pursuant to Iowa Code section 321J.10 could offend the
Reasonableness Clause of article I, section 8 or the Fourth Amendment.
15
In this case, however, Breuer’s search-and-seizure rights were not
offended by the methods Groves employed to execute the search warrant.
At no point did Breuer request to see the warrant, and he did not
question the veracity of Groves’ assertion that a warrant had been
obtained. Once Stevenson obtained the warrant, Groves advised Breuer
that a warrant had been secured. Breuer then stated that he thought he
could refuse. Groves explained that, because a warrant authorized a
blood draw, Breuer’s consent was no longer required and force would be
used if necessary. See State v. Owens, 418 N.W.2d 340, 344 (Iowa 1988)
(permitting use of physical force to withdraw blood from a suspected
drunk driver). Once the warrant arrived a few minutes later, a copy was
left in Breuer’s hospital room. Under these facts, the seizure of Breuer’s
blood for chemical testing was reasonable.
IV. Conclusion.
For these reasons, we conclude that neither the Fourth
Amendment nor article I, section 8 required the search warrant to be
physically present before the search could begin. We, therefore, affirm
the district court and court of appeals.
AFFIRMED.
All justices concur except Mansfield, J., who takes no part.