Iowa high court trashes illegal search
In a June decision regarding an Iowa criminal law case, the state's highest court held it violates the state constitution for police to search trash bags set out for collection without a warrant. The case started when a police officer heard a rumor the criminal defendant was selling illegal drugs—so the police took his trash, rifled through it, and used the contents to apply for a warrant. Police commonly call this a trash "grab" or "rip." Police seized drugs pursuant to the search warrant and arrested the defendant for possession of narcotics. Now, the defendant will get another chance to argue that the warrant used to search his house does not have enough probable cause without the trash rip, which has been found unconstitutional. If a lower judge agrees that not enough else supports the warrant, even the drugs seized in the defendant's house may also be excluded. That would likely be fatal to the criminal prosecution.
The Wright decision is one of a line of cases that represents a changing of the guard at the Iowa Supreme Court. Conventional wisdom would have predicted two polar opposite justices pitted against one another—the last holdout from a previous “living constitution” era and a newer, more conservative “originalist” justice building his reputation. But in a plot twist, those two polar opposites joined forces to hold it is illegal for police to search trash set out for collection without a warrant. They got there in very different ways.
In the 2000s, the Iowa Supreme Court “found” long unearthed criminal search and seizure protections in the Iowa Constitution it held were greater than those contained in the US Constitution. It determined that the Iowa Constitution must evolve and adapt to standards of privacy that are today reasonable. Such older Iowa Supreme Court findings, usually led by Justice Appel, gauged these newfound rights and thus increased protections for criminal defendants.
But the Iowa Supreme Court justices who supported those criminal law decisions are nearly all gone from the court—except for Justice Appel himself. Since that time, as Justices were replaced one-by-one, conventional wisdom forecast that the Iowa Supreme Court would move away from its older, more protective state constitutional judicial philosophy and decide cases more favorably to law enforcement. But the Wright decision demonstrates why that view may be over simplified in at least this one case.
Justice Christopher McDonald joined the Iowa Supreme Court in 2019. Since his elevation to Iowa’s highest court, he signaled that he did not believe the Iowa Constitution has to provide more protection than the US Constitution—to become a “one way ratchet up," in his words. It could provide fewer protections, for example, he wrote. Under those circumstances, the federal constitution would apply.
But Justice McDonald has now written the Wright decision, providing a clearer window into his developing jurisprudence-- if not the overall direction of the court.
“The right question is what the [Iowa Constitution] means and how it applies to the case at hand,” he wrote, quoting an earlier case.
Warrantless searches and seizures cannot typically be unreasonable, based on the language of both the federal and state constitutions. Like the fine print in every advertisement, exceptions apply. But Justice McDonald disagreed with those who would define “reasonable” relative to the times in which we live.
“At the time of America’s founding, the prohibition against ‘unreasonable’ seizures and searches had a particular meaning,” writes Justice McDonald-- and that meaning does not change.
“The Fourth Amendment did not refer to reasonableness in a relativistic, balancing sense,” he wrote, adding “[o]riginally, the word ‘unreasonable’ in the Fourth Amendment likely meant ‘against reason’—as in ‘against the reason of the common law,’ ” wrote Justice McDonald.
Justice McDonald noted that what was “unreasonable” seemed to change from fixed, traditional standards beginning during prohibition, when Justice Taft of the United States Supreme Court suggested some unwarranted searches might not be unreasonable because of the changing times. Through the Iowa Supreme Court’s history of tracking these federal changes, it followed this same relativistic approach, wrote Justice McDonald.
In Wright, Justice McDonald aimed his fountain pen squarely at the idea that the right to privacy is evolving. He suggested that even the United States Supreme Court was grappling with an untethered Fourth Amendment approach to address police conduct, which attempts to balance police interests with "legitimate expectations of privacy." He called this system “a mess,” quoting at least one United States Supreme Court justice who concurs. Instead, he suggested that the common law has always proscribed police conduct with the standard applicable to everyday civilians and this standard is unchanging.
"A peace officer acting without a warrant had the right to do what ‘any private citizen might do,’” he writes. As Justice Christiansen noted in her dissent, this also means that a police officer cannot do what would be illegal for a private citizen to do—including go through your neighbor’s trash, or anything that ““would be unlawful for a similarly situated private actor to perform.”
Justice Appel, the lone champion of his line of cases still left on the court, agreed with some but not all of Justice McDonald’s reasoning. He concurred with the decision holding the trash search illegal, but wrote separately and excluded his support where Justice McDonald argued “unreasonable searches” had an unchanging meaning.
“I am not what is generally loosely referred to as an originalist. The law is never static. It always evolves. And the founders certainly believed that to be the case,” wrote Justice Appel.
Moreover, Justice Appel noted that deciding cases has to be “more than simple historical application of common law traditions in light of modern innovations like the telephone.”
Justices Oxley and McDermott, however, joined Justice McDonald’s entire opinion while Justices Waterman, Mansfield, and Chief Justice Christiansen dissented.
Chief Justice Christiansen accused Justice McDonald’s opinion of upending police work by hamstringing law enforcement officers with civilian lawsuit standards. Chief Justice Christiansen also argued that no one has a “legitimate expectation of privacy” in garbage they set out on the curb.
Justice Waterman, agreeing with Chief Justice Christiansen, added that the new private person standard, “has never been recognized by any court or dissent in the country.”
Instead, Justice Waterman argued that the Wright decision is a bromide of “faux originalism” and “living constitutionalism,” with a pinch of “ahistorical analysis.”
Because of the fractured nature of the Wright opinion, we're not likely to know exactly what it means or does not mean until the justices interpret it in a future case. Only three justices agreed with all of it while one agreed with some of it. Three others opposed it entirely.
In any case, the Wright defendant will get another bite at the apple, where he can argue the warrant cannot be supported without the illegally seized and searched trash evidence.
Note: David A. Cmelik Law PLC had no role in the Wright decision.