State of Iowa v. Jasmaine R. Warren ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–0267
Submitted October 15, 2020—Filed March 5, 2021
STATE OF IOWA,
Appellee,
vs.
JASMAINE R. WARREN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Judge.
The defendant seeks further review of a court of appeals decision
affirming her conviction for driving while revoked. DECISION OF COURT
OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT
COURT JUDGMENT AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which
McDonald, Oxley, and McDermott, JJ., joined. Mansfield, J., filed a
special concurrence. Appel, J., filed a dissenting opinion. Waterman, J.,
took no part in the consideration or decision of the case.
Gina Messamer (argued) of Parrish Kruidenier Dunn Boles Gribble
Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.
2
Thomas J. Miller, Attorney General, Israel Kodiaga (argued),
Assistant Attorney General, John P. Sarcone, County Attorney, and
Kailyn M. Heston, Assistant County Attorney, for appellee.
3
CHRISTENSEN, Chief Justice.
Is it unconstitutional for an officer to enforce a parking violation
after he observes a driver illegally park her vehicle, leaving the vehicle
sticking out of the driveway and into the road? If the officer smells
marijuana and observes signs of the driver’s intoxication when he stops
the driver to enforce the parking violation, is it unconstitutional for the
officer to inquire about the driver’s intoxication when the officer could have
enforced the parking violation by placing a citation on the driver’s window
instead of stopping her? If the officer asks the defendant for her license
while he’s enforcing the parking violation and discovers the driver’s license
is revoked, is it unconstitutional to extend his stop to enforce that
violation? Is there any legally meaningful distinction between a parking
and a moving violation for Terry stop purposes? These are the questions
we must answer in this case.
Following a seizure and arrest made under these circumstances, the
State charged the defendant with operating while intoxicated (OWI) and
driving while license revoked. The defendant chose a bench trial, and the
district court convicted the defendant on both charges. On appeal, the
court of appeals reversed her OWI conviction due to insufficient evidence
and remanded it for a new trial because the district court did not specify
which OWI theory its verdict rested upon when the evidence did not
support each theory the State presented. However, it affirmed her driving
while revoked conviction, rejecting the defendant’s claim that trial counsel
was ineffective for not seeking suppression of the evidence on the basis
that she was subjected to an unconstitutional seizure. Specifically, the
defendant argued parking violations should be treated differently from
moving violations such that parking violations do not supply law
4
enforcement with reasonable suspicion or probable cause for a seizure.
She also argued the officer impermissibly prolonged the seizure.
On further review, we vacate the part of the court of appeals decision
reversing Warren’s OWI conviction because substantial evidence supports
the district court’s verdict finding Warren guilty of OWI. However, we
affirm the court of appeals decision that Warren’s counsel was not
ineffective in declining to seek suppression of the evidence on the basis
that she was subjected to an unconstitutional seizure, as the officer had
probable cause to seize the defendant based on his observation of her
traffic violation. Thus, we answer the aforementioned questions as follows:
1. No.
2. No.
3. No.
4. Not under the circumstances before us.
I. Background Facts and Proceedings.
Around 2:30 a.m. on May 4, 2018, Jasmaine Warren was operating
a motor vehicle in Des Moines. Officer Jeremy Engle of the Des Moines
Police Department was on routine traffic patrol when he observed Warren’s
vehicle turn southbound and begin to rapidly accelerate. Officer Engle
followed the vehicle onto Corning Avenue, where Warren pulled into a
driveway and parked illegally in a no-parking zone with the back end of
her vehicle sticking out into the street. Warren had attempted to park her
vehicle behind another vehicle in the driveway, but most of her vehicle
could not fit in the driveway and part of it stuck out into the roadway.1
1In her brief, Warren claims her “vehicle was almost entirely parked in the
driveway of the residence,” although she concedes it blocked the sidewalk. It is unclear
from the body camera footage that there is any sidewalk on that street, as the footage
only shows grass leading to the curb in front of a fence in the area next to the driveway
where Warren attempted to park. However, it is clear that most of Warren’s vehicle was
not parked in the driveway of the residence because, in the house next to the driveway,
5
Before Officer Engle could make contact with Warren, another police
officer pulled in behind her and activated his overhead lights. Officer Engle
followed suit to advise Warren she could not park her vehicle that way.
Officer Engle noted Warren “seemed like she wanted to . . . get inside
quickly.” He advised her she could not park the vehicle where she did and
asked if she had her license, registration, and proof of insurance. As
Warren opened her car door to retrieve the requested documents, Officer
Engle “smelled a strong odor of marijuana emitting from her vehicle.” He
also noticed Warren had bloodshot, watery eyes and droopy eyelids, and
he could smell marijuana and “a faint odor of alcohol” on Warren.
Warren provided Officer Engle with her identification, which
declared it was “identification only,” and she told him her license was
suspended. She did not provide her registration and insurance. After
receiving Warren’s identification, Officer Engle asked Warren why the
vehicle smelled like marijuana.2 Warren responded, “Yeah, we smoke,
that’s all. Least I’m honest, shit,” and laughed.
Officer Engle again asked Warren if she had her registration and
insurance, and Warren opened the driver’s side door of the vehicle to look
for those documents. As she opened the door, she exclaimed, “Ooh, it is,
it does smell like weed,” to which Officer Engle responded, “Yeah, it does.”
Warren said, “Sorry!” and laughed. Warren eventually provided Officer
Engle with a document she claimed was her registration that had an old
the fence enclosing the end of the front yard from the street aligns with Warren’s front
bumper. At a minimum, the back end of the vehicle protrudes into the street. Her vehicle
blocks the view of part of another police officer’s vehicle, which is parked along the curb
perpendicular to Warren’s vehicle. Warren’s application for further review acknowledges
that part of her vehicle was in the roadway, stating, “Ms. Warren pulled her vehicle
halfway into a driveway—leaving the rear portion of the vehicle sticking out into the street
. . . .”
2Itis at this point in the encounter that Officer Engle’s body camera begins
capturing video footage, which was later admitted as evidence at Warren’s trial.
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address on it and told Officer Engle that she did not have her insurance
with her.
Officer Engle went to his vehicle with Warren to verify her driving
status through the National Crime Information Center on his dash
computer. In the process, he explained to Warren that she could not “be
driving and smoking weed.” Warren clarified that she was not smoking
and driving at the same time, as she had only smoked while at work and
had just left work before driving. Officer Engle then discovered and
informed Warren that her license was revoked, not suspended as she had
claimed.
Warren became upset and defensive, asking Officer Engle if she had
to go to jail. He questioned her about how long before the stop she had
smoked marijuana or consumed alcohol. Warren said it was “hours ago,
like hours, three, four” hours before driving that she had consumed
alcohol. She provided varying time frames that included an hour and a
half, an hour, and forty-five minutes prior to the stop regarding her
marijuana use. Officer Engle asked Warren if she would participate in
field sobriety testing, but Warren responded that she did not want to take
any tests and instructed Officer Engle to take her to jail. He subsequently
asked Warren if she would take a preliminary breath test, which Warren
also refused.
Warren initially laughed when Officer Engle explained that she could
not smoke marijuana and then operate a motor vehicle, but she quickly
became more upset when Officer Engle informed her he was arresting her
for operating while intoxicated (OWI) after she refused the field sobriety
and preliminary breath testing. Officer Engle transported Warren to the
police station, where he read her the appropriate implied consent notice
and requested a urine specimen to check for drugs or alcohol. Warren
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refused to provide a urine specimen, explaining she had Methadone in her
system and “smoked more weed than [she drank] anything.”
The State formally charged Warren by trial information with second-
offense OWI, an aggravated misdemeanor, in violation of Iowa Code section
321J.2 (2018), and driving while license was revoked, a serious
misdemeanor, in violation of Iowa Code section 321J.21.3 The trial
information did not specify which subsection of section 321J.2 Warren
allegedly violated. Instead, the State presented two theories at trial—
Warren operated a motor vehicle while either “under the influence of an
alcoholic beverage or other drug, or a combination of such substances,” or
“while any amount of controlled substances is present in the person as
measured in the person’s blood or urine.”
The case proceeded to a bench trial, and the district court found
Warren guilty as charged on November 14, 2018. The district court’s
written findings regarding the OWI charge state,
Based upon the entire review of the evidence presented,
including State’s Exhibit 1 [(Officer Engle’s body camera
footage)] and State’s Exhibit 2 [(a certified abstract of Warren’s
driving record authored by the Department of
Transportation)], and the admission of the Defendant during
closing argument,4 the Court finds that the Defendant is guilty
beyond a reasonable doubt of operating a motor vehicle while
intoxicated in violation of Iowa Code Section 321J.2. The
Court finds credible Officer Engle’s observations and opinion
as to the impairment of Ms. Warren on May 4, 2018, which is
further supported by the body camera footage in State’s
Exhibit 1.
The district court did not specifically state which OWI theory it found
Warren guilty under in its ruling. For Warren’s OWI conviction, the district
3She was separately charged in simple misdemeanor cases with the parking
violation and failure to provide proof of financial liability.
4Regarding the OWI charge, Warren’s counsel made no admission on her behalf.
Counsel only agreed that Warren was operating her motor vehicle while her license was
revoked and had illegally parked that vehicle.
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court sentenced her to a two-year indeterminate term of incarceration and
an $1875 fine. For the driving while revoked conviction, the district court
sentenced Warren to a one-year term of incarceration to run concurrent
with her OWI sentence and a fine of $1000.
Warren appealed, arguing there was insufficient evidence to sustain
her OWI conviction and trial counsel was ineffective in failing to seek
suppression of the evidence on the basis that she was subjected to an
unconstitutional seizure. We transferred the case to the court of appeals,
which reversed Warren’s OWI conviction due to insufficient evidence and
remanded the matter for a new trial because the district court did not
specify which OWI theory its verdict rested upon when the evidence did
not support each theory the State presented. The court of appeals affirmed
Warren’s conviction for driving while revoked, rejecting her ineffective-
assistance claim. Warren sought further review, which we granted.
II. Standard of Review.
We evaluate sufficiency-of-the-evidence claims for substantial
evidence, upholding a verdict if substantial evidence supports it. State v.
Trane, 934 N.W.2d 447, 455 (Iowa 2019). “Evidence is substantial if it
would convince a rational trier of fact the defendant is guilty beyond a
reasonable doubt.” State v. Folkers, 941 N.W.2d 337, 338 (Iowa 2020)
(quoting State v. Hearn, 797 N.W.2d 577, 579–80 (Iowa 2011)). We view
“the evidence in the light most favorable to the verdict, including all
legitimate inferences and presumptions that may fairly and reasonably be
deduced from the evidence in the record.” Id. “To the extent our review
also requires us to interpret the meaning and scope of a particular statute,
our review is for correction of errors at law.” State v. Anspach, 627 N.W.2d
227, 231 (Iowa 2001) (en banc).
9
Further, claims of ineffective assistance are grounded in the Sixth
Amendment of the United States Constitution and article I, section 10 of
the Iowa Constitution. State v. Ross, 941 N.W.2d 341, 345 (Iowa 2020).
Though Senate File 589, which took effect on July 1, 2019, eliminated the
ability to pursue ineffective-assistance claims on direct appeal, we may still
decide those ineffective-assistance claims on direct appeal in which the
appeal was already pending on July 1, 2019, if “the record is adequate to
warrant a ruling.” Id.; see also State v. Macke, 933 N.W.2d 226, 231–32
(Iowa 2019) (explaining the scope of Senate File 589). Warren’s notice of
appeal was file-stamped February 14, 2019, so her challenge is properly
before us on direct appeal. We review ineffective-assistance claims de novo.
State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019).
III. Analysis.
A. The Sufficiency of the Evidence Supporting Warren’s OWI
Conviction. Warren maintains the State’s evidence was insufficient to
establish she violated Iowa Code section 321J.2(1)(c) beyond a reasonable
doubt because the State failed to provide any test results concerning the
presence of a controlled substance in her blood or urine. Under section
321J.2(1), a person commits an OWI by operating a motor vehicle in any
of the following conditions:
a. While under the influence of an alcoholic beverage or other
drug or a combination of such substances.
b. While having an alcohol concentration of .08 or more.
c. While any amount of a controlled substance is present in
the person, as measured in the person’s blood or urine.
“Each prong uses a different theory and primarily relies on different
evidence.” State v. Myers, 924 N.W.2d 823, 828 (Iowa 2019). While the
first prong, section 321J.2(1)(a), “primarily utilizes evidence of a person’s
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conduct and demeanor,” the other two prongs, sections 321J.2(1)(b) and
(c), “require evidence derived from a test, not conduct.” Id.
The State presented two theories of Warren’s guilt for the OWI: that
Warren operated a motor vehicle “[w]hile under the influence of an alcoholic
beverage or other drug or a combination of such substances” under section
321J.2(1)(a) or “[w]hile any amount of a controlled substance [was] present
in [her] person, as measured in the person’s blood or urine” under section
321J.2(1)(c). Warren contends her conviction must be vacated because she
was charged with alternative theories of committing the offense, there was
insufficient evidence to support one of the theories, and the district court
entered a general verdict. We disagree.
The cases upon which Warren relies relate to jury verdicts. In our
general jury verdict cases, “we have emphasized that reversal is required
because there was no way in which we could determine whether the jury’s
verdict was based upon the flawed jury instruction.” State v. Shorter, 893
N.W.2d 65, 76 (Iowa 2017). The deficit in information regarding the basis
for the jury’s verdict precluded judicial review and required reversal and
remand for new trial. See State v. Tyler, 873 N.W.2d 741, 753–54 (Iowa
2016) (explaining reversal was required because we had “no way of
knowing” what theory the jury returned a guilty verdict (quoting State v.
Smith, 739 N.W.2d 289, 295 (Iowa 2007))); State v. Lathrop, 781 N.W.2d
288, 297 (Iowa 2010) (“When circumstances make it impossible for the
court to determine whether a verdict rests on a valid legal basis or on an
alternative invalid basis, we give the defendant the benefit of the doubt and
assume the verdict is based on the invalid ground.”); Smith, 739 N.W.2d at
295 (“[W]e are still required to reverse these convictions and remand the
case to the district court for a new trial on these charges, because the
general verdict returned by the jury did not reveal the basis for its guilty
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verdict.”); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), superseded
in part by statute, 2011 Iowa Acts ch. 8, § 2 (codified at Iowa Code section
622.10(4)(a)(2) (2013)), as recognized in State v. Leedom, 938 N.W.2d 177,
190 (Iowa 2020) (“When a general verdict does not reveal the basis for a
guilty verdict, reversal is required.”); State v. Pilcher, 242 N.W.2d 348, 354–
56 (Iowa 1976) (en banc) (holding reversal was required when general
verdict did not specify the alternative upon which the jury based its verdict
and one of the alternatives was unconstitutional).
There is no such deficit in information in bench trials, generally, and
in this case, particularly. “[F]indings of fact in jury-waived cases shall have
the effect of a special verdict.” Iowa R. App. P. 6.907; see State v. Fordyce,
940 N.W.2d 419, 425 (Iowa 2020). “The district court’s finding of guilt is
binding upon us unless we find there was not substantial evidence in the
record to support such a finding.” State v. Torres, 495 N.W.2d 678, 681
(Iowa 1993) (en banc). Substantial evidence means “such evidence as
could convince a rational trier of fact that the defendant is guilty beyond
a reasonable doubt.” State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).
In determining whether there was substantial evidence, we view the record
evidence in the light most favorable to the State. Id. at 338.
When the evidence is viewed in the light most favorable to the State,
the district court’s finding of guilt is supported by substantial evidence.
The district court found Warren was “guilty beyond a reasonable doubt of
operating a motor vehicle while intoxicated.” In support of that finding,
the district court credited “Officer Engle’s observations and opinion as to
the impairment of Ms. Warren on May 4, 2018, which is further supported
by the body camera footage in State’s Exhibit 1.” It was “Officer Engle’s
opinion that the behavior and the appearance of the Defendant indicated
that she was using marijuana and that she was under the influence of that
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drug and/or a combination of alcohol.” It is clear from the district court’s
written findings and verdict the district court found Warren guilty of
violating Iowa Code section 321J.2(1)(a). Officer Engle’s opinion and the
body camera footage is substantial evidence in support of the verdict
actually rendered. See Myers, 924 N.W.2d at 831 (stating conduct and
demeanor evidence and opinion evidence are sufficient to “support a
conviction” for operating while intoxicated); State v. Truesdell, 679 N.W.2d
611, 616 (Iowa 2004) (finding witnesses’ and police officers’ reports
regarding defendant’s erratic driving and behavior supported a finding that
he was under the influence of alcohol when he operated his vehicle).
It is a fundamental rule of Iowa law that an appellate court will not
disturb the judgment of the district court where the record shows that the
error cannot operate to the prejudice of the party attacking the judgment.
This has been the law governing this jurisdiction since the first term of the
territorial supreme court. See Harrell v. Stringfield, Morris 18, 19 (Iowa
1839) (holding defective jury verdict did not require reversal where the
intent of the jury was clear and stating “we are determined not to disturb
proceedings in [the trial] courts[] for technical errors which can work no
possible harm”). It is still the law now. There is no prejudice here because
we can determine the district court found the defendant guilty under a
theory supported by sufficient evidence. Therefore, we affirm the district
court’s judgment on this issue.
B. Warren’s Ineffective-Assistance-of-Counsel Claim. Warren
claims her trial counsel was ineffective for failing to seek suppression of the
evidence based on what she argues was an illegal seizure in violation of the
Fourth Amendment of the United States Constitution and article I, section
8 of the Iowa Constitution. Iowa Code section 814.7, which eliminated the
ability to pursue ineffective-assistance claims on direct appeal, does not
13
apply to Warren’s appeal because her appeal was already pending before
that section took effect on July 1, 2019. See Macke, 933 N.W.2d at 231–
32. We generally preserve claims of ineffective assistance for
postconviction-relief proceedings to allow the parties “to develop an
adequate record of the claims” and “the attorney charged with ineffective
assistance with the ‘opportunity to respond to defendant’s claims.’ ” State
v. Harrison, 914 N.W.2d 178, 206 (Iowa 2018) (quoting State v. Soboroff,
798 N.W.2d 1, 8 (Iowa 2011)). However, we may resolve ineffective-
assistance claims on direct appeal if we determine the record is adequate
to do so. Id. The State does not dispute the adequacy of the record to
decide Warren’s claim, and we find the record adequate to warrant a ruling.
To succeed on her ineffective-assistance claim, Warren “must prove
(1) counsel failed to perform an essential duty and (2) prejudice resulted.”
Brown, 930 N.W.2d at 855. We presume counsel performed his or her
duties competently and “measure counsel’s performance against the
standard of a reasonably competent practitioner.” Id. (quoting State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008)). Counsel need not predict
changes to the existing law or raise issues that lack merit, but he or she
must be reasonably diligent in determining which issues warrant raising.
Id.
To show counsel failed to perform an essential duty, Warren must
demonstrate her counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). Prejudice occurs if “there is a reasonable probability
that, but for the counsel’s unprofessional errors, the result of the
proceeding would have been different.” Brown, 930 N.W.2d at 855
(quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)). Accordingly, we
14
must examine the merits of Warren’s argument that she was subjected to
an unconstitutional seizure to determine whether her trial counsel was
ineffective in declining to file a motion to suppress evidence stemming from
that seizure.
Both the Fourth Amendment to the United States Constitution and
article I, section 8 of the Iowa Constitution protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Iowa Const.
art. I, § 8. Evidence obtained in violation of either of these constitutional
provisions is inadmissible. State v. Christopher, 757 N.W.2d 247, 249
(Iowa 2008). We ordinarily “interpret the scope and purpose of the Iowa
Constitution’s search and seizure provisions to track with federal
interpretations of the Fourth Amendment” due to their nearly identical
language, though we remain cognizant of our duty to independently
interpret the Iowa Constitution. Brown, 930 N.W.2d at 847 (quoting
Christopher, 757 N.W.2d at 249).
“When, as here, a defendant raises both federal and state
constitutional claims, the court has discretion to consider either claim first
or consider the claims simultaneously.” State v. Pals, 805 N.W.2d 767,
772 (Iowa 2011). Warren argues the seizure violated her rights under the
Federal and State Constitutions and emphasizes the need for Iowa’s
“defense attorneys [to] present arguments under the [S]tate [C]onstitution
when the [F]ederal [C]onstitution does not adequately protect a client’s
rights.” However, she does not actually ask us to depart from Fourth
Amendment precedent to reach a different conclusion under article I,
section 8, nor does she separately brief or analyze her state constitutional
argument. Consequently, we will consider Warren’s federal and state
constitutional claims simultaneously, applying the federal standards as
outlined by the United States Supreme Court governing the Fourth
15
Amendment. See State v. Tyler, 830 N.W.2d 288, 291–92 (Iowa 2013)
(“Where a party raises both state and federal constitutional claims but
does not argue that a standard independent of the federal approach should
be employed under the state constitution, we ordinarily apply the
substantive federal standards but reserve the right to apply the standard
in a fashion different from federal precedent.”).
The “[t]emporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and for a limited
purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of” the
Fourth Amendment. Whren v. United States, 517 U.S. 806, 809–10, 116
S. Ct. 1769, 1772 (1996); see also Pals, 805 N.W.2d at 773. The State
acknowledges Officer Engle seized Warren when he stopped to investigate
Warren’s traffic violation, but it insists it was a lawful seizure supported
by probable cause because the officer witnessed Warren commit a parking
violation.
Warren presents two theories as to why the seizure was
unconstitutional. First, Warren argues the police had no reasonable
suspicion or probable cause to stop and seize her because they had
witnessed a completed parking violation rather than a moving violation.
Warren maintains Officer Engle should have left a parking citation—
presumably in the name of the vehicle’s registered owner after running the
vehicle’s license plates—on the vehicle’s windshield instead of seizing her.
Second, Warren insists that even if the seizure was appropriate to issue
the parking citation, Officer Engle unlawfully extended the traffic stop by
requesting Warren’s license, registration, and insurance information when
he could have placed a written citation on her vehicle without the
requested information instead.
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1. Probable cause and parking violations. Generally, police officers
have probable cause to stop a motorist if they witness the motorist
commit a traffic violation. Brown, 930 N.W.2d at 855; see also Whren,
517 U.S. at 810, 116 S. Ct. at 1772 (“As a general matter, the decision to
stop an automobile is reasonable where the police have probable cause
to believe that a traffic violation has occurred.”). Here, Warren does not
contest Officer Engle witnessed her commit a parking violation that
constitutes a simple misdemeanor offense in violation of Iowa Code
section 321.358. That section provides, “No person shall stop, stand, or
park a vehicle, except when necessary to avoid conflict with other traffic
or in compliance with the directions of a police officer or traffic-control
device, in” any one of the fifteen statutorily specified places, except under
specified circumstances that are inapplicable here. Iowa Code § 321.358.
Nonetheless, Warren asks us to distinguish between moving and parking
violations for constitutional purposes, relying on “[c]ourts from other
jurisdictions [that] have concluded parking violations do not supply
reasonable suspicion or probable cause for a seizure” in her argument
that “[t]he completed parking violation did not authorize Officer Engle to
seize Ms. Warren and question her.”
Despite asking us for a bright-line distinction between moving and
parking violations in her brief, Warren changed course during her oral
argument before our court. Instead of arguing for the bright-line
distinction between moving and parking violations advocated for in her
brief, Warren declared instead “that this court can . . . carve out parking
violations that create a safety risk” as a community-caretaking function
while holding seizures for other parking violations are unconstitutional.
We cannot address Warren’s proffered community caretaking exception
because we do not decide or consider arguments raised for the first time
17
during oral argument. Dilley v. City of Des Moines, 247 N.W.2d 187, 195
(Iowa 1976) (en banc).
It would be especially unfair to do so in this case because the State
has the burden to prove the community caretaking exception to the
warrant requirement, see State v. Coffman, 914 N.W.2d 240, 257–58 (Iowa
2018), and it had no reason to brief that argument on appeal. In addition
to the absence of briefing, we cannot fairly address the community
caretaking exception because this case is before us on an ineffective-
assistance claim without the benefit of a motion to suppress hearing to
illuminate Officer Engle’s intent behind the seizure, which is fundamental
to the community caretaking analysis. See id. Therefore, we are left only
to rule on Warren’s request for a bright-line distinction between moving
violations and all parking violations. Based on the arguments before us,
we cannot draw that line and save for another day the issue of whether
there is a constitutional distinction between parking violations that pose
a safety threat and nonthreatening parking violations.
Warren’s argument that the seizure was unconstitutional because
Officer Engle could have left a citation on her vehicle without seizing her
conflates what Officer Engle could have done and what he should have
done. There is no germane authority for Warren’s requested constitutional
distinction between moving and parking violations. In Whren v. United
States, the United States Supreme Court held that a traffic stop was
reasonable under the Fourth Amendment where the officers had probable
cause to believe the petitioner violated civil traffic regulations. 517 U.S. at
810, 116 S. Ct. at 1772. Whren involved a moving violation, but nothing
in the Supreme Court’s opinion suggests its holding that “the decision to
stop an automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred” is limited to moving violations.
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Id. On the contrary, the Supreme Court in Whren specifically rejected the
argument that different types of traffic violations should be distinguished
in justifying a traffic stop such that the “infraction itself can no longer be
the ordinary measure of the lawfulness of enforcement.” Id. at 818, 116
S. Ct. at 1777.
As the United States Court of Appeals for the Seventh Circuit
reasoned in concluding Whren did not establish a special rule for moving
violations,
[I]f police may pull over a vehicle if there is probable cause
that a civil traffic violation has been committed, then [the
police] surely did not violate the Fourth Amendment by
walking up to [a suspect], who was sitting in a car that rested
in a spot where it was violating one of [a city’s] parking
regulations.
United States v. Johnson, 874 F.3d 571, 574 (7th Cir. 2017) (en banc)
(alterations in original) (quoting United States v. Thornton, 197 F.3d 241,
248 (7th Cir. 1999)), cert denied, 139 S. Ct. 58 (2018). “The stop of a
moving vehicle is more intrusive than approaching a parked car.” Id.
Warren points to two state courts that have concluded parking
violations do not supply reasonable suspicion or probable cause for a
seizure, but these holdings represent outliers in the national caselaw on
this issue. See State v. Holmes, 569 N.W.2d 181, 185 (Minn. 1997) (en
banc); State v. Medlar, 638 N.E.2d 1105, 1109–10 (Ohio Ct. App. 1994);
but see State v. Eason, 69 N.E.3d 1202, 1210 (Ohio Ct. App. 2016)
(affirming the district court’s denial of defendant’s motion to suppress
because an officer’s observation of defendant’s parking violation “served
as a lawful basis to stop the vehicle”). They are also factually
distinguishable from the circumstances in this case. For example, in State
v. Holmes, which Warren cites, the Minnesota Supreme Court determined
reasonable suspicion of a parking violation did not justify the seizure of a
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defendant after a parking monitor “already had enforced” the parking
violation “by issuing [a] ticket and ordering [a] tow” before the police officer
even arrived on the scene. 569 N.W.2d at 185. Meanwhile, this case
involves an officer approaching and temporarily seizing Warren to enforce
the parking violation in the first instance as opposed to the already
enforced violation in Holmes.
In contrast to the two cases Warren cites, every federal court of
appeals that has considered this issue has held that a parking violation,
even if punishable only as a civil infraction, is a traffic violation that
constitutes probable cause to stop the motorist. See Johnson, 874 F.3d at
573–74 (7th Cir. 2017) (concluding there is no “special rule” distinguishing
moving and parking violations and upholding the officer’s seizure of the
defendant after witnessing the defendant park illegally); United States v.
Choudhry, 461 F.3d 1097, 1101–04 (9th Cir. 2006) (holding an officer’s
observation of a parking violation under California’s civil-administrative
enforcement provided reasonable suspicion for the officer to seize the
vehicle’s occupants), cert. denied, 549 U.S. 1236 (2007); Flores v. City of
Palacios, 381 F.3d 391, 402–03, 403 n.9 (5th Cir. 2004) (holding the officer
had authority to detain the defendant after observing her park on the
wrong side of a two-way street in violation of state law); United States v.
Copeland, 321 F.3d 582, 594 (6th Cir. 2002) (“[A]n officer can effect a stop
based upon a driver’s failure to comply with Michigan’s parking
regulations . . . .”); see also United States v. Spinner, 475 F.3d 356, 358
(D.C. Cir. 2007) (acknowledging federal circuits “have found no legally
meaningful distinction between a parking and a moving violation” for Terry
stop purposes, but finding it unnecessary to address the issue). To
illustrate, in United States v. Choudhry, the Ninth Circuit affirmed the
district court’s denial of a motion to suppress evidence obtained during
20
law enforcement’s investigatory traffic stop of a vehicle to enforce a parking
violation in California. 461 F.3d at 1101. There, police officers observed
a vehicle parked illegally and saw the vehicle’s occupants make “hurried
movements” that led the officers to believe the occupants were engaging in
possibly illegal activity. Id. at 1098–99. Consequently, the officers turned
on their emergency vehicle lights and seized the occupants for
investigatory purposes. Id.
During the seizure, one officer questioned the driver while another
officer questioned the passenger through the passenger side window. Id.
at 1099. Through the window, the officer smelled the “faint odor of burnt
marijuana” and ordered the passenger out of the vehicle, subsequently
performing a pat-down search that revealed marijuana in the passenger’s
pants pocket. Id. The passenger then informed the officer that he had
found a gun and placed it inside the driver’s vehicle, the officer discovered
the gun under the passenger seat, and the passenger later pled guilty to
possession of a firearm by a felon. Id.
The Ninth Circuit concluded the parking violation justified the
officers’ investigatory stop of the vehicle, rejecting the respondent’s
argument that a parking violation should not be considered a traffic
violation that provides probable cause to stop a motorist. Id. at 1101–03.
The court explained the California Vehicle Code authorized municipalities
to establish parking enforcement agencies and contract with public and
private agencies to process parking citations, and California law also
authorized police to enforce parking violations. Id. at 1101. It elaborated
that the California rules governing parking regulations and the provisions
granting local authorities the power to establish parking restrictions were
contained in the same division of the Vehicle Code as moving violations.
Id. at 1103. Accordingly, the court reasoned, “so long as [the officers] had
21
reasonable suspicion to believe that [the driver] ‘violated the traffic code,’
the stop was ‘reasonable under the Fourth Amendment [and] the evidence
thereby discovered admissible.’ ” Id. at 1102 (final alteration in original)
(quoting Whren, 517 U.S. at 819, 116 S. Ct. at 1777).
Numerous other courts that have addressed this issue under
comparable circumstances have also concluded police have at least
reasonable suspicion to stop a motorist after witnessing the motorist
commit a parking violation.5 For instance, in Davis v. City of Albia, the
5See, e.g., Davis v. City of Albia, 434 F. Supp. 2d 692, 702–05 (S.D. Iowa 2006)
(concluding an officer had probable cause to make a warrantless arrest of the defendant
after witnessing the defendant commit a misdemeanor parking offense); Fullenwilder v.
State, 946 So. 2d 899, 903 (Ala. Crim. App. 2006) (concluding officer had reasonable
suspicion to authorize a warrantless investigatory stop of the defendant based in part on
the defendant’s parking violation); People v. Bennett, 128 Cal. Rptr. 3d 595, 603 (Ct. App.
2011) (holding officer’s seizure of the defendant was reasonable to enforce the defendant’s
parking violation); State v. Arevalo, 112 So. 3d 529, 531–32 (Fla. Dist. Ct. App. 2013)
(“The deputy observed appellee park in a grassy area marked with ‘do not park’ signs,
which provided the deputy with probable cause to conduct a traffic stop.”); Haynes v.
State, 937 N.E.2d 1248, 1251–52 (Ind. Ct. App. 2010) (“Because Officer McCollum had
probable cause to believe Haynes had committed [a parking] infraction, his detention of
Haynes was reasonable and did not violate either the state or federal constitutions.”);
State v. Gross, 184 P.3d 978, 987–88 (Kan. Ct. App. 2008) (concluding officers had
reasonable suspicion that driver parked illegally, thereby justifying the officers’ brief
detention of the driver to issue him a ticket for the parking violation); Back v.
Commonwealth, No. 2019–CA–000591–MR, No. 2019–CA–000601–MR, 2020 WL
2095894, at *2 (Ky. Ct. App. May 1, 2020) (acknowledging probable cause supported
traffic stop of defendant to enforce a parking violation); State v. Hardeman, 906 So. 2d
616, 621–22 (La. Ct. App. 2005) (holding officer had probable cause to stop the
defendant’s car based on a traffic violation); Herring v. State, 16 A.3d 246, 254–55 (Md.
Ct. Spec. App. 2011) (holding probable cause justified an officer’s seizure of the defendant
for a parking violation); People v. Ingram, 312 N.W.2d 652, 654 (Mich. 1981) (per curiam)
(“Having ascertained that the defendant was the owner of the [illegally-parked] car, the
officer requested his driver’s license so that the parking citation could be issued to him.
Given the compliance with this request, and the response to the officer’s questions, the
seizure of the weapon and the arrest of the defendant were not constitutionally
impermissible.” (footnote omitted)); State v. Milton, No. A–16–289, 2017 WL 582715, at *4
(Neb. Ct. App. Feb. 14, 2017) (holding officer’s observation of a parking violation “g[ave]
rise to probable cause to initiate a stop of the vehicle”); People v. Morgan, 781 N.Y.S.2d
652, 653 (App. Div. 2004) (concluding it was valid for police to stop defendant’s car based
on a parking violation); State v. Hawley, 540 N.W.2d 390, 393 (N.D. 1995) (holding officer
had reasonable suspicion to make investigative stop because “a reasonable person
[would] suspect that [defendant’s vehicle] may be illegally parked”); Eason, 69 N.E.3d at
1209–11 (concluding an officer’s observation of defendant’s parking violation “served as
a lawful basis to stop the vehicle”); State v. Hall, 241 P.3d 757, 758–59 (Or. Ct. App. 2010)
22
United States District Court for the Southern District of Iowa upheld the
officer’s warrantless arrest of an individual who the officer observed
parking illegally in a persons with disabilities parking space. 434 F. Supp.
2d 692, 702–05 (S.D. Iowa 2006). The court explained the officer could
conduct “a warrantless arrest of [the driver] without violating either Iowa
law or the Fourth Amendment” because the officer witnessed the
defendant “commit[] the misdemeanor public offense of improper use of a
persons with disabilities parking permit.” Id. at 703. The court further
recognized “an officer may lawfully require the driver of a vehicle already
stopped to remain outside the vehicle during the brief period of detention
required to issue a citation.” Id. at 704. In doing so, it rejected a claim
similar to Warren’s that the officer did not have to detain the driver
because the officer could have filed the parking citation with the court “as
in cases where the driver is not present” instead. Id. at 705.
Here, as in Choudhry and Davis, Warren committed a traffic
violation that the Iowa Code authorizes police to enforce. Specifically, her
parking violation constitutes a simple misdemeanor criminal offense that
Officer Engle was authorized by law to arrest Warren for committing in his
presence in lieu of issuing a citation. See Iowa Code § 321.482; id. at
§ 804.7(1) (authorizing a peace officer to arrest an individual for
(concluding police stop of defendant’s vehicle was justified because they had probable
cause to believe defendant committed a parking violation); Commonwealth. v. Bozeman,
205 A.3d 1264, 1273–74 (Pa. Super. Ct. 2019) (finding police had probable cause to stop
defendant’s motor vehicle after observing the defendant’s parking violation); State v.
Zelek, No. M2007–01776–CCA–R3–CD, 2009 WL 890904, at *6–7 (Tenn. Crim. App. Apr.
3, 2009) (“[T]he officer had probable cause that a parking violation had occurred and
could make a constitutional stop of the car.”); Williams v. State, 726 S.W.2d 99, 100–01
(Tex. Crim. App. 1986) (en banc) (holding probable cause to arrest the defendant for a
parking violation justified the warrantless search of the defendant’s vehicle incident to
arrest); State v. Iverson, 871 N.W.2d 661, 674–75 (Wis. 2015) (holding an officer may
conduct an investigatory stop of a vehicle based on reasonable suspicion of a nontraffic
civil forfeiture offense).
23
committing or attempting “a public offense . . . in the peace officer’s
presence)”; see also id. at § 701.2 (“A public offense is that which is
prohibited by statute and is punishable by fine or imprisonment.”). That
Officer Engle had the discretion to leave Warren a written citation on the
vehicle’s windshield instead of stopping her to enforce her parking
violation does not render his decision to briefly seize her unconstitutional.
Cf. State v. Orozco, 573 N.W.2d 22, 24–25 (Iowa 1997) (en banc) (per
curiam) (holding a statute allowing for the release or arrest of a defendant
after being issued a citation for a traffic violation did not “negate[] the
[officer’s] authority to arrest for a public offense” committed in the officer’s
presence).
Further, similar to Choudhry, Warren’s violation of Iowa Code
section 321.358 for parking illegally is contained in the same Code
chapter—entitled “Motor Vehicles and the Law of the Road”—that covers
moving violations, which also includes laws governing such matters as
reckless driving, eluding, and speed restrictions. See generally Iowa Code
chapter 321; see also Choudhry, 461 F.3d at 1103 (declining to distinguish
between parking and moving violations for constitutional purposes partly
because the California Vehicle Code treated parking regulations as part of
its general traffic laws); Copeland, 321 F.3d at 594 (declining to distinguish
between parking and moving violations for constitutional purposes partly
because the parking violation at issue was “set forth under the general
traffic laws of the Michigan Vehicle Code”). Had the legislature intended
to treat parking violations different from other traffic violations for
purposes of enforcement, it could have distinguished them accordingly.
That it declined to do so speaks to its intent to treat parking and moving
violations in the same manner. See State v. Iowa Dist. Ct., 730 N.W.2d
677, 679 (Iowa 2007) (“When a proposed interpretation of a statute would
24
require the court to ‘read something into the law that is not apparent from
the words chosen by the legislature,’ the court will reject it.” (quoting State
v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999))). Ultimately, Warren’s
contention that the seizure was unconstitutional because Officer Engle
exercised his lawful discretion to briefly seize and investigate her about
the parking violation instead of leaving a written ticket boils down to a
policy disagreement with the legislature’s decision to designate her parking
conduct as an enforceable offense. But “it is our job to interpret the Iowa
Constitution and not to set policy for the State of Iowa.” Brown, 930
N.W.2d at 849.
Just as the Supreme Court in Whren declined to distinguish
different types of traffic violations that would prevent certain violations in
themselves from serving as “the ordinary measure of the lawfulness of
enforcement,” we reject Warren’s request to distinguish between different
moving and parking violations for constitutional purposes. 517 U.S. at
818, 116 S. Ct. at 1777. Because Officer Engle witnessed Warren commit
a traffic violation by parking illegally, he had probable cause to stop
Warren to enforce that violation. Thus, the seizure was constitutional
under the Fourth Amendment of the United States Constitution and article
I, section 8 of the Iowa Constitution, and Warren’s counsel was not
ineffective for declining to file a meritless motion to suppress on this
ground.
2. The scope of the seizure. Warren argues that, even if probable
cause existed to stop her to enforce her parking violation, the stop
exceeded constitutional bounds when Officer Engle asked Warren for her
license, registration, and insurance information because he could have
enforced Warren’s parking violation by placing a citation on the vehicle. If
asking Warren to produce this information did not unlawfully exceed the
25
scope of the seizure, Warren further maintains Officer Engle’s inquiry of
Warren about her activities that night exceeded the scope. We disagree.
As we have already explained, Officer Engle had probable cause to
seize Warren to enforce the parking violation he witnessed her commit.
“Once lawfully stopped, inquiries reasonably related to the mission of
addressing the traffic infraction ‘and attend[ing] to related safety concerns’
are permissible.” State v. Salcedo, 935 N.W.2d 572, 578 (Iowa 2019)
(alteration in original) (quoting Rodriguez v. United States, 575 U.S. 348,
354, 135 S. Ct. 1609, 1614 (2015)). These inquiries reasonably include
“asking for the driver’s license and registration.” Id. (quoting State v.
Aderholdt, 545 N.W.2d 559, 563–64 (Iowa 1996)); see also Rodriguez, 575
U.S. at 355, 135 S. Ct. at 1615 (“Typically such inquiries involve checking
the driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof
of insurance.”). “These checks serve the same objective as enforcement of
the traffic code: ensuring that vehicles on the road are operated safely and
responsibly.” Rodriguez, 575 U.S. at 355, 135 S. Ct. at 1615. Ultimately,
the stop may “last no longer than is necessary to effectuate” its purpose of
addressing the traffic infraction. Id. at 354, 135 S. Ct. at 1614.
Here, the purpose of Officer Engle’s stop was to address Warren’s
parking violation. As we have held time and again, “when there is a valid
ongoing traffic stop[,] officers may properly seek driver’s identification,
registration, and insurance information” as Officer Engle did in this case.
State v. Coleman, 890 N.W.2d 284, 299 (Iowa 2017). Warren’s claim that
Officer Engle impermissibly extended the stop by asking for Warren’s
license, registration, and insurance information because he could have
enforced Warren’s violation “by way of a citation placed on the vehicle”
overlooks Officer Engle’s need to at least identify the person he witnessed
26
commit the parking violation. This is especially so given Warren’s parking
violation places the liability on the vehicle’s driver at the time of the
offense, who could differ from the vehicle’s registered owner. See Iowa
Code § 321.358. Even if the owner of the vehicle and the driver are the
same individual, the officer is typically not aware of this fact without
inquiring into the driver’s identity. Under these circumstances, Officer
Engle’s initial request for Warren’s license, registration, and insurance
information was permissible because it was “reasonably related to the
mission of addressing the traffic infraction ‘and attend[ing] to related
safety concerns.’ ” Salcedo, 935 N.W.2d at 578 (Iowa 2019) (alteration in
original) (quoting Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614 (2015)).
Therefore, Warren’s counsel was not ineffective for declining to file a
motion to suppress on this ground.
Moreover, Officer Engle did not unlawfully exceed the scope of the
seizure by asking Warren for her registration and insurance information
or about her activities that night after Warren provided only her
identification. Although Officer Engle had already obtained the identifying
information he needed at that point to enforce Warren’s parking violation,
law enforcement may expand a reasonable investigation “to satisfy
suspicions of criminal activity unrelated to the traffic infraction based
upon responses to reasonable inquiries.” Id. To do so, “the officer must
identify ‘specific and articulable facts which, taken together with rational
inferences from those facts,’ amount to reasonable suspicion that further
investigation is warranted.” Id. (quoting United States v. Murillo-Salgado,
854 F.3d 407, 415 (8th Cir. 2017), cert. denied, 138 S. Ct. 245 (2017)). We
consider all of the circumstances before the officer at the time of the stop
to determine whether the officer had reasonable suspicion to expand the
investigation beyond the traffic stop’s mission. Id.
27
In this case, Officer Engle was quickly confronted with
circumstances amounting to reasonable suspicion that warranted further
investigation. When Warren gave Officer Engle her identification, she
informed him her license was suspended. This provided Officer Engle with
reasonable suspicion of an additional violation—driving while license is
suspended—before he had resolved the original purpose of the stop to
enforce Warren’s parking violation. “[D]rivers without licenses are
presumably the less safe drivers whose propensities may well exhibit
themselves.” Delaware v. Prouse, 440 U.S. 648, 659, 99 S. Ct. 1391, 1399
(1979). Officer Engle was reasonably “attend[ing] to related safety
concerns” when he asked Warren for her registration and insurance
information as part of his investigation, so he did not impermissibly extend
the scope of the seizure simply by asking for these documents after Warren
had already provided her identification. Salcedo, 935 N.W.2d at 578
(alteration in original) (quoting Rodriguez, 575 U.S. at 355, 135 S. Ct. at
1614).
Nor did Officer Engle impermissibly extend the scope of the seizure
by asking Warren about her activities that night. Officer Engle had
reasonable suspicion that Warren was driving while intoxicated almost
immediately upon seizing her. We have previously held the odor of
marijuana drifting from a vehicle provides probable cause to search the
vehicle, so it logically follows that the same circumstances provide
reasonable suspicion to continue a valid ongoing traffic stop. See State v.
Eubanks, 355 N.W.2d 57, 59 (Iowa 1984) (“The patrolman smelled the odor
of marijuana drifting from the car when he approached defendant, who
was seated behind the steering wheel. The odor of that controlled
substance in the automobile gave the patrolman reasonable cause to
conduct a comprehensive search of the car.”).
28
Officer Engle testified that he “smelled a strong odor of marijuana
emitting from [Warren’s] vehicle” when Warren opened her car door to
retrieve the requested documents. Officer Engle also noticed Warren had
bloodshot, watery eyes and droopy eyelids, and he could smell “a faint odor
of alcohol” on Warren. Officer Engle’s suspicions were confirmed when
Warren herself exclaimed, “Ooh, it does smell like weed,” when she opened
the door. These observations occurred while Officer Engle was still
effectuating the purpose of the original stop to enforce Warren’s traffic
infraction and provided Officer Engle with “reasonable suspicion that
further investigation [was] warranted.” Salcedo, 935 N.W.2d at 578
(quoting Murillo-Salgado, 854 F.3d at 415). Consequently, Officer Engle’s
seizure was constitutional, and Warren’s counsel was not ineffective for
choosing not to file a motion to suppress on this ground.
The special concurrence and dissent raise important issues, but
those issues are not before us to decide in this case because they were not
raised or briefed by the parties. Though Warren raises a concern in her
application for further review about the impact that the lack of distinction
between parking and moving violations may have on racial profiling, she
does not allege that the police engaged in racial discrimination or racial
profiling, that the police stopped her due to implicit bias, or that the stop
in this case was pretextual. “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,” State v. Shackford, 952 N.W.2d 141, 147–48 (Iowa
2020), and the words race, discrimination, bias, and pretext do not even
appear in her briefs.
In summary, Officer Engle had probable cause to seize Warren to
enforce her parking violation and did not exceed the scope of his seizure
by asking for her license to enforce that violation. Likewise, Officer Engle
29
had reasonable suspicion of other criminal activity to justify expanding his
investigation based on Warren’s suspended license, the smell of
marijuana, Warren’s signs of intoxication, and Warren’s admissions.
Under these circumstances, Warren’s trial counsel was not ineffective in
choosing not to pursue a meritless motion to suppress, so we affirm her
conviction for driving while revoked.
IV. Conclusion.
We vacate the part of the court of appeals decision reversing
Warren’s OWI conviction and remanding the matter for a new trial on that
count. We otherwise affirm the decision of the court of appeals and the
judgment of the district court.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
McDonald, Oxley, and McDermott, JJ., join this opinion. Mansfield,
J., files a special concurrence. Appel, J., files a dissenting opinion.
Waterman, J., takes no part.
30
#19–0267, State v. Warren
MANSFIELD, Justice (specially concurring).
I am beginning to wonder if law school academics have it backwards.
Maybe the problem is not the pretextual stop; it’s the stop without another
stated motive. When the police detain someone over a minor, seemingly
trivial offense because they are investigating a more serious crime, that is
a traditional, often necessary method of law enforcement. But when police
take an action they would not normally take in response to something
minor, and they don’t argue it was pretextual, we ought to be more
concerned. That’s clearly a situation where implicit bias and
discriminatory assumptions can take over.
This case may illustrate that point, although it is difficult to draw
firm conclusions because no motion to suppress was filed below.
Officer Engle wasn’t investigating anything in particular when he
and a fellow officer stopped their respective patrol cars on Corning Avenue
and detained Jasmaine Warren. Officer Engle didn’t suspect Warren of
committing some other offense. Still, he detained her over a violation that
normally would have been handled with a piece of paper on a windshield.
Here are the facts as related by Officer Engle himself in his police report:
While traveling northbound on 6th Ave, I observed a
silver car drive from the east and turn southbound onto 6th
Ave. It appeared the vehicle was accelerating very quickly,
which my in-car radar also indicated. I turned around on the
vehicle, and I observed it turning eastbound onto Corning Ave.
I observed the vehicle partially pull into a driveway and park.
There were signs indicating there was no parking on the south
side of Corning Ave at that location. A substantial portion of
her vehicle was in the roadway. The defendant exited the
vehicle and proceeded to walk to the house. I made contact
with the defendant and advised her she could not park her
vehicle like that. I then asked her for her license, registration,
and proof of insurance. The defendant stated it was in her
vehicle and she walked over to it and opened the door. I could
smell a strong odor of marijuana emitting from the vehicle.
31
What’s missing from this narrative is the why. Why did Officer Engle
follow this motorist and, after she parked, why did he detain her?
Critics of the United States Supreme Court’s unanimous decision in
Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996), and our
decision in State v. Brown, 930 N.W.2d 840 (Iowa 2019), argue that any
separation between the legal reason for the stop and the real reason for
the stop should render the stop invalid. See Brown, 930 N.W.2d at 871
(Appel, J., dissenting). They would argue that evidence obtained from
detaining Warren should be suppressed if the police’s real motive for
detaining her wasn’t her irregular parking. If the police weren’t really
concerned with the fact that the rear of her vehicle was sticking out into
Corning Avenue, their actions were unconstitutional. Again, any
disconnect between the legal basis for the stop and the actual reason for
the stop would render the stop unlawful.
Implicit bias and discriminatory assumptions are not issues that
should be swept away, disregarded, or merely brushed to the side. They
deserve to be tackled head-on. On this point I fully agree with the Whren
critics. And I find the following, broad definition of racial profiling helpful:
Police engage in racial profiling when they select persons of a
specific race for attention because they assume that those
persons are more likely to commit or have committed a
targeted crime or crime generally than a White or other
majority person.
Jeffrey Fagan & Amanda Geller, Profiling and Consent: Stops, Searches,
and Seizures After Soto, 27 Va. J. Soc. Pol’y & L. 16, 31 (2020).
Yet I’d consider a different approach than many of the critics
advocate. For one thing, pretextual enforcement of the law is sometimes
necessary. Pursuing lesser but easier to prove offenses is a tried-and-true
strategy for tackling more serious crimes that would otherwise remain
32
unsolved. Not surprisingly, pretextual law enforcement has been valuable
in catching very powerful criminals who might have the resources and
allies to thwart the government. Pretextual law enforcement isn’t always
the enemy of the poor and the friend of the elite.
At the same time, in a trial about purpose and intent, allegations of
racially motivated traffic stops at times receive “cold shoulder” treatment.
Courtroom discussions about race are uncomfortable and less than
candid, leaving race to fill the role of being the elephant in the room. See
Sherri Lee Keene, Raising Arguments About the Potential Influence of
Implicit Racial Bias in Police Stops, 32 Crim. Just. 35, 35 (2017). This
makes proving racial bias very challenging.
Let me mention one case that illustrates the difficulties the justice
system sometimes has in dealing with issues of race head-on. It involves
our own court. Eight years ago, in State v. Tyler, 830 N.W.2d 288 (Iowa
2013), we reversed the conviction of a Black man driving an Escalade at
night in a suburb of Des Moines who had been pulled over for having a
tinted license plate cover. Consistent with the manner in which the
attorneys had briefed and argued the case, our opinion treated the
constitutional question antiseptically and race was never mentioned. Yet
the case had racial profiling implications. See, e.g., RIGHTS VIOLATED:
Retrial for Convicted Drunk Driver, WHO 13 (April 30, 2013, 10:27 PM),
who13.com/news/retrial-man-convicted-of-owi-gets-retrial-because-
rights-violated/ [https://perma.cc/KE49-Y4AB].
So pretextual stops themselves aren’t necessarily the problem, and
making them unlawful isn’t necessarily the solution. Rather, I believe a
greater dilemma arises when, as here, the official reason for the stop is the
only apparent reason. In my view, it would be more reassuring in a case
like this if the police could give another, actual reason for the stop.
33
Exposing the pretext, if there is one, could provide some assurance that
the stop was not simply based on stereotyping, racial profiling, or whim.
In other words, in the case of a parking violation—i.e., the type of
violation normally handled without a personal interaction between citizen
and law enforcement—I would ask law enforcement to provide their real
reason for the detention.
This also addresses the other major problem with the critique of
Whren and Brown. There are often considerable practical difficulties in
determining the actual motive for a stop when the motorist has committed
a minor offense. Brown, 930 N.W.2d at 848. If the officer insists that the
minor offense was the real reason for the stop, how does one prove
otherwise without a complicated and sometimes pointless inquiry into
state of mind? I believe the answer is not just to shift the burden to law
enforcement, but to change the nature of the burden-shifting. That is,
instead of the State having to prove the officer did not have a racial motive,
the State would have to come forward with a legitimate, substantial
nondiscriminatory basis for the officer’s actions unrelated to the technical
violation. This resembles what actors are sometimes required to do
elsewhere in discrimination law.6
Thus, the rule of law would work like this: For a parking violation or
other violation that is normally processed without a seizure of the person,
the burden shifts to law enforcement to provide some substantial reason
for the seizure other than the violation itself.
Community caretaking can be one justification. See, e.g., State v.
Coffman, 914 N.W.2d 240, 244 (Iowa 2018). For example, if the parking
6In Brown, the defendant argued for a different type of burden-shifting test, which
we rejected. 930 N.W.2d at 848. There the burden would fall on law enforcement to show
a nonpretextual reason for the stop. Id. As we explained, this kind of burden-shifting
just repackages the intent inquiry; it doesn’t supersede it.
34
violation impedes traffic or threatens safety, the officer can confront the
motorist and demand immediate action to move the vehicle.
Also, as I’ve already suggested, if law enforcement can explain that
it was conducting a bona fide investigation of a more serious crime, this
may justify detaining the motorist briefly, but no more than is necessary
to process the parking violation. Pretext is ok when law enforcement is
willing to give an additional reason for the stop.
But this approach still leaves a category of cases where suppression
would be granted. Those would be the cases where law enforcement can’t
provide, or isn’t willing to provide, another reason for the stop. In those
circumstances, there is no suspicion of specific, serious wrongdoing; there
is just heightened interest. Heightened interest too often translates into
race-based harassment.
An example of such a case may be United States v. Johnson, 874
F.3d 571 (7th Cir. 2017) (en banc). There, as here, police officers in two
patrol cars carried out a nighttime stop based on a minor parking
violation—in that case, a vehicle parked within fifteen feet of a crosswalk.
Id. at 572. Reading the Seventh Circuit’s opinion, no motive for the stop
appears other than the parking violation. Id. at 572–75. So this stop
would be a problem.
Nevertheless, the present case is in some ways more concerning than
Johnson. In Johnson, the vehicle’s occupants were still in the vehicle,
giving the officer a reason to approach and engage with them in order to
deal with the parking violation. Id. at 572. But here, Warren had exited
her vehicle. Instead of leaving a ticket on top of the car, Officer Engle
tracked down Warren—seemingly not the normal way of handling a
parking violation.
35
Adopting the burden-shifting approach that I’ve outlined requires
us, I believe, to acknowledge two points. First, vehicle owners may be held
vicariously liable for parking violations they didn’t personally commit. See
generally Iowa City v. Nolan, 239 N.W.2d 102 (Iowa 1976) (en banc); see
also Des Moines, Iowa, Code of Ordinances § 114-485.01 (2020). Second,
vehicles themselves can be held “liable” for parking violations in the sense
that those vehicles can be impounded or towed. See Des Moines, Iowa,
Code of Ordinances § 114-485.11. These two propositions mean that there
usually isn’t a need for the officer to deal personally with the driver who
actually committed the parking violation. Indeed, many of us have
experienced this situation personally: the parking-ticket-writer who
doesn’t engage with us even when we are in the immediate process of
walking away from or returning to our illegally parked vehicle.7
The topic of race should not be neglected in this case. The strained
relationship between law enforcement and minority communities must not
go unnoticed. Traditionally police officers have operated under a reactive
form of policing. Under this form they rely on the squad car to police urban
centers, which contributes to the perception that police departments
7It is notable that just to the north of us, the Minnesota Supreme Court has
restricted seizures of motorists for parking violations:
A police officer who has probable cause to believe that a person has
committed a parking violation can stop the person only if the stop is
necessary to enforce the violation, for example, if a person is attempting to
drive off with an illegally parked car before the officer can issue the ticket.
State v. Holmes, 569 N.W.2d 181, 185 (Minn. 1997) (en banc). The majority finds State
v. Holmes distinguishable because a parking monitor had already issued a ticket and
called for a tow when the police officer arrived who seized the defendant. But the full
facts are that the car had seven additional unpaid parking tickets. Id. at 182. As a result,
the monitor was ordered to call for the tow and had to remain with the car until the tow
arrived. Id. Before the tow came, the defendant showed up with a friend and got in the
vehicle. Id. The monitor “felt intimidated” by the defendant and called for police
assistance. Id. at 183. Considering the overall facts of Holmes, it is difficult to say a
greater need for a personal encounter existed in this case than in Holmes.
36
constitute an occupying force within communities of color. See Anthony
C. Thompson, Stopping the Usual Suspects: Race and the Fourth
Amendment, 74 N.Y.U. L. Rev. 956, 1009 (1999). This reactive form of
police interaction within communities of color can fuel adversarial
relations with residents of these communities. Id. As a result, our court
should be cognizant of the deeply rooted mistreatment and prejudice of
law enforcement toward the African–American community that has
plagued the nation. Given the history between law enforcement and
African–Americans, many feel it is practically impossible to prove in court
successfully that an officer has abused their authority. There seem to be
never-ending hurdles one has to overcome. When claims of abuse arise,
they are often easily dismissed, usually resulting in giving the officer the
benefit of doubt. An officer’s suspicion of illicit activity is enough for a
stop, but a defendant’s suspicion of racial discrimination is not enough to
invalidate a stop. Instead concrete, specific, and direct examples must be
used to prove race played a factor. These interactions between police
officers and African–Americans bring on trauma from past generations and
can even include personal experiences of the individual. Knowing this
history creates a constant awareness and urgency for “African Americans
[to] walk a path uniquely wrought with peril, where one bad choice—
forgiven in others—can spiral in ways non-minorities are much less likely
to experience.” Alfredo Parrish, Racial Disparity in Iowa’s Criminal Justice
System 150 Years After Clark, 67 Drake L. Rev. 251, 253 (2019).
My ideas are far from original. A published critique of the Johnson
decision has proposed that detentions for parking violations should be
measured against a “reasonable officer” standard: “Would a reasonable
officer have made the seizure?” If not, the stop is illegal. Stephen D.
Hayden, Note, “Parking While Black”: Pretextual Stops, Racism, Parking,
37
and an Alternative Approach, 44 S. Ill. U. L.J. 105, 135–36 (2019). This
seems to be a similar effort to allow some room for pretext but to put an
explanatory burden on law enforcement to get the real reason for the stop
out on the table.
Recently, the Massachusetts Supreme Judicial Court adopted a
burden-shifting approach for persons allegedly subjected to racially
motivated stops. Commonwealth v. Long, 152 N.E.3d 725, 731 (Mass.
2020). This allows the defendant to point to specific facts presenting “a
reasonable inference that the officer’s decision to initiate the stop was
motivated by race or another protected class.” Id. Having done so, the
burden shifts to the state to rebut the inference. Id. This Batson-
challenge-to-a-traffic-stop approach wouldn’t necessarily ban pretextual
stops but would certainly require a substantial race-neutral pretext.
In Commonwealth v. Long, two Boston police officers were driving in
an unmarked car. Id. at 732. While in the unmarked car, the officers
noticed a Mercedes being driven by a Black man on a residential street.
Id. The officers indicated no traffic infraction occurred after initially
deciding to follow the vehicle. Id. It wasn’t until after watching the car
pass that the police decided to enter the vehicle’s license plate number into
their onboard computer. Id. Results indicated the vehicle was registered
to a Black woman and lacked an inspection sticker, so the police stopped
the vehicle. Id. After initiating the traffic stop, it was discovered the
defendant’s license was suspended, he had outstanding warrants, and a
subsequent search of the vehicle led to the discovery of a gun. Id. The
defendant was later charged with several firearm offenses. Id.
A motion to suppress evidence from the traffic stop was denied by
the trial judge. Id. at 733. Both officers testified that they were aware of
thefts, vandalism, and shootings in the vicinity, later deciding to tow and
38
impound what they deemed to be a high-end vehicle, which did not belong
to the defendant. Id. at 732. During the suppression hearing, the
defendant presented testimony from an expert in statistics. Id. at 733.
The expert presented datasets as evidence to show that the traffic stop was
racially motivated. Id. The trial court found the defendant did not meet
his burden to show a reasonable inference of racial discrimination. Id. On
interlocutory review, the Supreme Judicial Court reversed, and in so
doing, considerably broadened the range of evidence that could be used to
establish an inference of racial motivation. Id. at 738–40.
Long provides a different solution than I am proposing, but it shares
the basic notion of shifting the burden to law enforcement to explain the
“why.” Presently, in Iowa, the burden falls entirely on the defendant to
prove that racial profiling occurred. I believe that in order to find a seizure
of someone over a parking violation reasonable under article I, section 8,
it may be appropriate to require law enforcement to advance a substantial
objective justification entirely divorced from racial considerations.
Having said this, the present case comes to us on appeal by way of
ineffective assistance. No challenge was raised below to Warren’s seizure.
Even on appeal, Warren argues only for one thing: a categorical rule that
completed parking violations do not justify a seizure under either the
Fourth Amendment to the United States Constitution or article I, section
8 of the Iowa Constitution. Warren makes no effort to distinguish the two
constitutional provisions nor any effort to distinguish among parking
violations based on the factual circumstances.
I cannot say that trial counsel breached an essential duty here. Yet
I encourage counsel to continue to raise issues relating to racial
discrimination in the administration of justice, as appellate counsel has
done so here. For the foregoing reasons, I concur in the majority opinion
39
except for its determination that the stop of Warren complied with article
I, section 8. On that point, I concur in the judgment.
40
#19–0267, State v. Warren
APPEL, Justice (dissenting).
I respectfully dissent.
The question in this case is whether a completed parking violation
is a sufficient basis for an intrusive police seizure under the Fourth
Amendment of the United States Constitution or article I, section 8 of the
Iowa Constitution. It may seem like a minor matter. It is not. Whenever
law enforcement is granted broad and virtually unlimited discretion to
search and seize, the prospect of arbitrary enforcement necessarily arises.8
8The claim that a minor traffic violation is not a basis for an intrusive seizure was
clearly raised in the district court. One of the arguments supporting prohibiting such
stops is that it gives rise to arbitrary police action. The argument is that the general
authority to make seizures based on minor and widespread violations permits seizures
based upon racial profiling and other arbitrary reasons. It is based on the notion that
search and seizure law abhors general discretion in the hands of law enforcement. There
need not be a specific claim of racial profiling in this case to permit the argument to be
made that a general authority to engage in search and seizure may lead to it. I fear that
the majority is characterizing an argument as an issue which needs to be preserved.
Such restrictions do not seem to apply against the State. Wagner v. State, 952 N.W.2d
843, 858 (Iowa 2020) (considering a severance argument and developing a judicial
nonstatutory tort claims framework despite the arguments not being raised below).
Apparently, however, under the majority opinion, this case stands for very little.
Under the majority approach to preservation, a future party may challenge a seizure for
a minor traffic violation on identical facts if the party specifically raises the argument that
such a broad-based authority to seizure could give rise to racial profiling. That, of course,
is precisely the point made in this dissent. In my view, a prophylactic rule is required to
prevent racial profiling and other arbitrary seizures. The defendant is not required to
make an actual showing of racial profiling or other arbitrary conduct to support this
across the board, prophylactic rule. Apparently, the position advanced in this dissent
remains alive for another day if the defendant’s lawyer uses the magic words “race,
discrimination, bias, and pretext.”
A separate argument that I agree was not preserved is whether the erroneous and
flawed doctrine announced by the United States Supreme Court in Whren v. United States
applies to minor traffic violations. 517 U.S. 806, 816–19, 116 S. Ct. 1769, 1776–77
(1996). The United State Supreme Court has not so held, and neither have we. It might
be possible, in a future case, to recover some of the ground lost in the majority’s decision
by rejecting Whren in the context of parking violations and permitting a defendant to
show that the stop was, in fact, pretextual. Whether such intimations prove to be a
mirage remains to be seen.
41
As Professor Amsterdam noted in his seminal search and seizure
work many years ago, avoiding “arbitrary search and seizures” was a
central goal. Anthony G. Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn. L. Rev. 349, 417 (1974). The notion of cabining
arbitrary exercise of discretion by government officials is a theme that
surfaces repeatedly in search and seizure cases. See, e.g., Skinner v. Ry.
Lab. Execs., 489 U.S. 602, 613–14, 109 S. Ct. 1402, 1411 (1989) (“The
amendment guarantees the privacy, dignity, and security of persons
against certain arbitrary and invasive acts by officers of the Government
or those acting at their direction.”); United States v. Martinez-Fuerte, 428
U.S. 543, 554, 96 S. Ct. 3074, 3081 (1976) (“Limits on search-and-seizure
powers . . . prevent arbitrary and oppressive interference by enforcement
officials . . . .”); Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727,
1730 (1967) (“The Basic purpose of this Amendment, as recognized in
countless decisions of this Court, is to safeguard the privacy and security
of individuals against arbitrary invasions by governmental officials.”).
At the outset, a stop by police, even for a parking violation, is
intrusive to the sanctity of the individual. Further, stops by police may
lead to escalating events with very unsatisfactory results. Among other
things, stops can lead to: investigation outside the scope of the original
stop; requests for broad “consent search” under circumstances that hardly
seem voluntary; and, if the United States Supreme Court precedent were
to be followed, a full custodial arrest even if permissible sanctions for the
underlying infraction do not include imprisonment.9 Further, the ubiquity
9In Atwater v. City of Lago Vista, a majority of the United States Supreme Court
came to the astonishing conclusion that a person may be arrested and carted off to jail
for an offense where the criminal penalty carries no jail time. 532 U.S. 318, 354, 121
S. Ct. 1536, 1557 (2001). This court has never approved the approach of Atwater, and
the proposition has been subject to scorching academic criticism. See generally, e.g.,
42
of parking violations poses an obvious problem of discriminatory
enforcement that is anathema to our constitutional protections against
arbitrary search and seizures. See, e.g., Devon W. Carbado, From Stopping
Black People to Killing Black People: The Fourth Amendment Pathways to
Police Violence, 105 Calif. L. Rev. 125, 127–30 (2017); Stephen D. Hayden,
Note, “Parking While Black”: Pretextual Stops, Racism, Parking, and an
Alternative Approach, 44 S. Ill. U. L.J 105, 107–09, 133–35 (2019).
In order to understand the issue in full context, it is necessary to
fully understand the interaction of three United States Supreme Court
cases: Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), Whren v. United
States, 517 U.S. 806, 116 S. Ct. 1769 (1996), and Atwater v. City of Lago
Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001). When Terry and Whren
operate together, unacceptable results ensue. Terry establishes a low
standard for seizure for investigative purposes. 392 U.S. at 20–27, 88
S. Ct. at 1879–83. Whren permits pretextual use of Terry stops even for
ubiquitous traffic violations. 517 U.S. at 817–19, 116 S. Ct. at 1776–77.
Taken together, they give law enforcement the power to stop virtually any
motorist. The sweeping and undisciplined exercise of the discretion
created and permitted by Terry and Whren then combines with Atwater,
which stunningly permits law enforcement to engage in a full custodial
arrest—even if the violation giving rise to the arrest does not have
incarceration as a potential sanction. Atwater, 532 U.S. at 354, 121 S. Ct.
at 1557; see also Jason M. Katz, Note, Atwater v. City of Lago Vista: Buckle-
Up or Get Locked-Up: Warrantless Arrests for Fine-Only Misdemeanors
Under the Fourth Amendment, 36 Akron L. Rev. 491, 544 (2003).
Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment
Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221 (1989).
43
This remarkable broad and consequential government power is
highly troublesome in light of recent scholarship on implicit bias. The
scholarship demonstrates that all of us carry implicit biases that can
impact the manner in which we engage in decisions. See, e.g., Mark W.
Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The
Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and
Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 149 (2010). Implicit bias
often has a racial dimension. See Charles R. Lawrence III, The Id, the Ego,
and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev.
317, 322 (1987). It is no answer to say that the African-American
defendant in this case must prove “invidious discrimination” as such a
demonstration would be virtually impossible in this case or in any case.
See State v. Brown, 930 N.W.2d 840, 918–19 (Iowa 2019) (Appel, J.,
dissenting).
Indeed, when it comes to traffic stops, there is ample evidence that
the stops are often pretextual and that race plays a role. Over twenty years
ago, David Harris, in influential scholarship, wrote that rules have been
relaxed as part of the war on drugs and that African-American and
Hispanics pay the largest price. See David A. Harris, Car Wars: The Fourth
Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556, 582–85
(1998); David A. Harris, “Driving While Black” and All Other Traffic
Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. &
Criminology 544, 582 (1997); see also State v. Pals, 805 N.W.2d 767, 772–
73 nn.4–9 (2011) (reviewing consent orders arising from claims of
disproportionate enforcement in traffic stops.).
The nation’s leading scholar of criminal law and procedure, Wayne
LaFave, has addressed the problem of virtually unlimited government
power to seize for ubiquitous minor infractions. 4 Wayne R. LaFave,
44
Search and Seizure: A Treatise on the Fourth Amendment § 9.2(c) (6th ed.
Sept. 2020 Update). LaFave suggests that Terry-type seizures should be
expressly limited to “serious offenses.” Id. Presumably, LaFave would not
classify traffic offenses as “serious offenses.” If the LaFave approach were
applied by the majority, the officer in this case should have simply issued
a citation for the parking violation and left the scene.
There is at least some authority for LaFave’s approach in two
heartland state courts. In State v. Holmes, the Supreme Court of
Minnesota considered whether a parking violation can give rise to a stop
by police. 569 N.W.2d 181, 184–86 (Minn. 1997) (en banc). The Holmes
court concluded that a stop may be made only if the stop is necessary to
enforce the violation. Id. at 185–86. Similarly, in State v. Medlar, an Ohio
appellate court concluded that where a parking violation had been
completed (a truck parked in a fire lane), the violation is complete and
there is nothing to investigate. 638 N.E.2d 1105, 1109–10 (Ohio Ct. App.
1994) (“At this point [the officer] should have placed the citation on the
vehicle. There was nothing further to investigate.”).
The central question, it seems to me, is whether we are going to
adopt a bright-line rule regarding stops for parking violations or, instead,
engage in a granular, case-by-case analysis of the reasonableness of the
seizure. In my view, a bright-line makes the most sense—namely, with
respect to completed parking violations, the officer should simply write a
citation, place it on the windshield, and move on.
The founders of both the United States Constitution and the Iowa
Constitution had a very skeptical view of state power. When it came to
state power, they were cynics. They believed that government needed to
be restrained by enshrining the Iowa Bill of Rights in the first substantive
45
article of the Iowa Constitution and through the separation of powers
among three branches of government.
In regulating police behavior, the problem in search and seizure law
is not primarily a problem of “bad apples” among our police. The problem
is one of broad police discretion not subject to discipline or regulation. The
founders believed that power corrupts and absolute power corrupts
absolutely. Broad unfettered power was anathema to them. That is why
they so opposed the hated general warrant and any functional equivalent.
See State v. Ochoa, 792 N.W.2d 260, 269–75 (Iowa 2010).
In the modern context, if police have broad discretion to enforce (or
not enforce) ubiquitous parking violations, the problem of implicit bias,
which this court has forthrightly recognized in Pippen v. State, 854 N.W.2d
1, 6–7 (Iowa 2014), comes into play. In other words, when police have
broad general power to search but are, like all of us, subject to implicit
bias, the problem of arbitrary enforcement of search and seizure becomes
a systemic problem—not a one-time knockoff. The rule advocated by
LaFave and implemented by Medlar and Holmes mitigates against the
systemic arbitrariness from leaking into enforcement of minor parking
violations.
Of course, in this case, one gets the very strong sense that the
actions of the officers were not motivated by a parking violation. Two
squad cars emerged at the driveway of the residence, one with emergency
lights engaged. They were not likely racing to the scene to prevent a rash
of parking violations that threatened the well-being of Gotham City. The
show of force demonstrates that the officers had other hunches, and were
using the parking violation as leverage to further expand their
investigation and see what it might turn up. See United States v. Guzman,
864 F.2d 1512, 1515 (10th Cir. 1988) (“The classic example [of a pretextual
46
stop] occurs when an officer stops a driver for a minor traffic violation in
order to investigate a hunch that the driver is engaged in illegal drug
activity.”). They had a hunch, used the parking violation as a mechanism
to investigate, and achieved their goal.
It is true, unfortunately, that our recent 4–3 decision in State v.
Brown adopts the Supreme Court approach in Whren. 930 N.W.2d at 854.
My views were canvassed in my dissent in Brown and need not be repeated
here. Id. at 871–928 (Appel, J., dissenting). But the Supreme Court has
never applied Whren in the context of a parking violation. Neither have
we. But that issue has not been squarely addressed in the briefing in this
case.
In any event, even better than declining to apply Whren to completed
parking violations, we should mitigate the problems of discriminatory
enforcement and escalation initiated by parking violations by adopting
under article I, section 8 of the Iowa Constitution a prophylactic rule that
when a parking violation is completed, police officers should simply write
a citation, place it on the windshield, and move on. Indeed, the history of
criminal procedure in the United States has largely been adoption of a
series of generally applicable rules like that in Gideon v. Wainwright, 372
U.S. 335, 83 S. Ct. 792 (1963), and Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602 (1966), that are designed to provide prophylactic protection in
light of grave injustices to African-Americans in the past. See generally
Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99
Mich. L. Rev. 48 (2000) (tracing the roots of modern criminal procedure
law derived from injustices against African-Americans in the Jim Crow
South).
As Justice Wiggins eloquently observed only a few years ago, the
racial disparity in Iowa’s prisons is disgraceful. State v. Williams, 929
47
N.W.2d 621, 638 (Iowa 2019) (Wiggins, J., concurring in part and
dissenting in part). Justice Wiggins noted that African-Americans make
up 3.1% of Iowa’s population but 25.8% of Iowa’s prison population. Id.
The fact that Iowa prisons show a very disturbing degree of racial
disproportionality suggests there is a need for prophylactic rules to
mitigate against arbitrary and disproportionate enforcement of the law. I
would provide one in this case.