State of Iowa v. Randall Lee Pals

               IN THE SUPREME COURT OF IOWA
                              No. 09–0064

                         Filed October 28, 2011


STATE OF IOWA,

      Appellee,

vs.

RANDALL LEE PALS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Worth County, Bryan H.

McKinley (motion to suppress), John S. Mackey (bench trial) and

Colleen D. Weiland (sentencing), Judges.



      Defendant appeals conviction and argues marijuana found in his

vehicle after search during traffic stop should have been suppressed.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant

Attorney General, and Jeffrey H. Greve, County Attorney, for appellee.
                                    2

APPEL, Justice.

      Randall Pals’ vehicle was searched during a traffic stop and the

police officer discovered marijuana.      Pals moved to suppress the

evidence, challenging the legality of the traffic stop and search under the

search and seizure clauses of the Iowa and Federal Constitutions. The

district court denied the motion to suppress, and Pals was convicted at a

bench trial of possession of a controlled substance in violation of Iowa

Code section 124.401(5) (2007). Pals appealed, arguing the district court

erred in denying his motion to suppress. The court of appeals affirmed.

We granted further review. For the reasons expressed below, we vacate

the decision of the court of appeals, reverse the judgment of the district

court, and remand for further proceedings.

      I. Background Facts and Prior Proceedings.

      On August 18, 2007, Worth County Deputy Sheriff Mark Wubben

received a complaint that two dogs, a Brittany spaniel (Brittany) and a

Labrador retriever (Lab), were running loose in Joice, Iowa.      Wubben

observed the dogs running loose and noticed they did not have tags or

collars. While he was looking for the dogs, Wubben saw a white truck

with a red topper driving around that appeared to be searching for the

dogs. Wubben spoke to a friend of Randall Pals who advised him that

the dogs belonged to Pals. Wubben was unable to locate the dogs or Pals

at that point, so he left town and headed toward Rice Lake.

      On the highway, Wubben encountered Pals’ truck coming from the

opposite direction. He ran the plates and confirmed the truck belonged

to Pals.   Wubben began to follow Pals and noticed the Brittany in the

back of the truck, but he did not see the Lab. Wubben pulled Pals over

to advise Pals that the dogs needed tags and collars and that a Joice

municipal ordinance prohibited dogs running at large.
                                     3

      Wubben remarked, “I see you found one of them before I did” to

Pals, and Pals acknowledged the two dogs belonged to him. Pals said he

recovered both dogs and explained that the Lab was in a kennel in the

back of the truck.    Wubben testified the kennel was not visible from

outside of the truck and he never saw the Lab before stopping Pals’

vehicle.

      Wubben requested Pals’ driver’s license and went back to his

patrol car where he contacted his lieutenant. Wubben was advised to

provide a verbal warning about the dogs.        Wubben returned to Pals’

vehicle and asked for proof of insurance, which Pals was unable to

produce. Wubben then asked Pals to come back to his patrol car.

      Pals sat in the front passenger seat of Wubben’s patrol car.

Wubben told Pals that Pals needed to update his address on his driver’s

license. Wubben explained the need for tags and collars on the dogs and

gave Pals a verbal warning. He also discussed the necessity of having

proof of insurance in the vehicle and explained that Pals would alleviate

the need for a no-insurance ticket if Pals would call the sheriff’s office

with his insurance policy number and expiration date. Pals agreed to do

so.

      Wubben then asked Pals, “Say you don’t have anything, any

weapons or drugs or anything like that in your vehicle, do you? Do you

care if I take a look?” Wubben testified that Pals said, “[S]ure, go ahead.”

Wubben and Pals exited the patrol car and approached Pals’ vehicle.

Wubben began the search and, within two minutes, discovered a half

gram of marijuana in the truck. At the conclusion of the search, Pals

was handcuffed, advised of his Miranda rights, and placed under arrest.

      Pals was charged with possession of a controlled substance,

marijuana, a serious misdemeanor, in violation of Iowa Code section
                                             4

124.401(5). Pals filed a motion to suppress the evidence, claiming: (1) he

was still seized at the time of the search and the consent was not

voluntarily given, and (2) Wubben lacked probable cause and exigent

circumstances to search the vehicle.                The district court denied the

motion to suppress and subsequently found Pals guilty of possession of a

controlled substance. Pals appealed, and the court of appeals affirmed

the conviction. Pals sought further review, which we granted.

       II. Scope of Review.

       Pals argues the district court should have granted his motion to

suppress on federal and state constitutional grounds.                    Therefore, this

court’s review is de novo.          State v. Lane, 

726 N.W.2d 371, 377

 (Iowa

2007). This review requires “an independent evaluation of the totality of

the circumstances as shown by the entire record.” State v. Turner, 

630 N.W.2d 601, 606

 (Iowa 2001) (internal quotation marks omitted).                        The

court gives “deference to the factual findings of the district court due to

its opportunity to evaluate the credibility of the witnesses, but [is] not

bound by such findings.” Lane, 

726 N.W.2d at 377

.

       III. Issues Presented.

       Pals presents three search and seizure claims in this appeal. 1 Pals

first challenges the constitutionality of a traffic stop that is supported

only by reasonable suspicion of a completed civil infraction.                     Second,

Pals suggests that there were no articulable facts to give rise to

reasonable suspicion of some separate illegal activity that would justify

the request to search Pals’ vehicle. Third, Pals asserts that, even if the

traffic stop was valid, his consent to the search of his car cannot be

        1Pals also asserts that he received ineffective assistance of counsel when his trial

counsel failed to file a motion to dismiss on speedy trial grounds. Because we reverse
the district court’s judgment on other grounds, we need not address this issue. See
State v. Bogan, 

774 N.W.2d 676, 684

 (Iowa 2009).
                                     5

considered free and voluntary because it was coerced under the facts and

circumstances presented in this case.

        Pals brings these claims under both the Fourth Amendment to the

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

Constitution. While these provisions use nearly identical language and

were generally designed with the same scope, import, and purpose, we

jealously protect this court’s authority to follow an independent approach

under our state constitution. State v. Ochoa, 

792 N.W.2d 260, 267

 (Iowa

2010). In Ochoa, we explained:
        [W]hile United States Supreme Court cases are entitled to
        respectful consideration, we will engage in independent
        analysis of the content of our state search and seizure
        provisions. . . . The degree to which we follow United States
        Supreme Court precedent, or any other precedent, depends
        solely upon its ability to persuade us with the reasoning of
        the decision.

Id.

    Our approach to independently construing provisions of the Iowa

Constitution that are nearly identical to the federal counterpart is well

supported in our case law and the law of other jurisdictions. See, e.g.,

Ochoa, 

792 N.W.2d at 267

; State v. Cline, 

617 N.W.2d 277, 285

 (Iowa

2002), overruled on other grounds by Turner, 

630 N.W.2d at 606

. Even

where a party has not advanced a different standard for interpreting a

state constitutional provision, we may apply the standard more

stringently than federal case law.    State v. Bruegger, 

773 N.W.2d 862, 883

 (Iowa 2009).     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. Ochoa, 

792 N.W.2d at 267

.
                                            6

       IV. Merits.

       A. Introduction.        The question of permissible scope of searches

and seizures by law enforcement in the context of minor infractions is a

major issue in criminal law today. The proper scope of police authority

in the context of routine traffic stops has been the subject of countless

commentaries, 2 many cases, 3 and a number of consent decrees. 4                       In

particular, use of minor traffic infractions as a springboard to consent

searches has generated charges of abuse and racial profiling. 5 Alleged

abuses by law enforcement authorities in the context of traffic stops have

led to calls for major reform of police practices and even the

abandonment of consent searches as a result of vehicle stops altogether.

       A number of jurisdictions have entered into consent decrees that

provide a framework to control the exercise of police authority during

       2See, e.g., David A. Harris, “Driving While Black” and All Other Traffic Offenses:
The Supreme Court and Pretextual Traffic Stops, 

87 J. Crim. L. & Criminology 544

(1997); Eamon Kelly, Race, Cars and Consent: Reevaluating No-Suspicion Consent
Searches, 2 DePaul J. for Soc. Just. 253 (2009) [hereinafter Kelly]; Wayne R. LaFave,
The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth
Amendment, 

102 Mich. L. Rev. 1843

 (2004); David A. Sklansky, Traffic Stops, Minority
Motorists, and the Future of the Fourth Amendment, 

1997 Sup. Ct. Rev. 271

 (1997);
George C. Thomas III, Terrorism, Race and a New Approach to Consent Searches, 

73 Miss. L.J. 525

 (2003); Robert H. Whorf, Consent Searches Following Routine Traffic
Stops: The Troubled Jurisprudence of a Doomed Drug Interdiction Technique, 

28 Ohio N.U. L. Rev. 1

 (2001); Erica Flores, Comment, “People, Not Places”: The Fiction of
Consent, the Force of the Public Interest, and the Fallacy of Objectivity in Police
Encounters with Passengers During Traffic Stops, 

7 U. Pa. J. Const. L. 1071

 (2005).
       3See  Thomas Fusco, Annotation, Permissibility Under Fourth Amendment of
Detention of Motorist by Police, Following Lawful Stop for Traffic Offense, to Investigate
Matters Not Related to Offense, 

118 A.L.R. Fed. 567

 (1994) (collecting cases).
       4See Consent Decree at 12, Wilkins v. Md. State Police, Civil Action No. CCB-93-
468 (D. Md. 2003), available at http://www.clearinghouse.net/chDocs/public/PN-MD-
0003-0012.pdf; Consent Decree at ¶ 28, U.S. v. New Jersey, Civil No. 99-5970(MLC)
(D.N.J. 1999), available at http://www.nj.gov/oag/jointapp.htm.
       5Studies in Illinois, Rhode Island, Minnesota, and by the Department of Justice

have all shown that minority drivers are the subjects of consent searches at a far higher
rate than whites even though consent searches of whites are more likely to produce
contraband. See Kelly, 2 DePaul J. for Soc. Just. at 273–75.
                                           7

traffic stops. The consent decrees are variable. Some have prohibited

law enforcement from seeking consent to search as a result of minor

traffic infractions. 6   Others have allowed consent searches if there is

particularized suspicion. 7 In some jurisdictions, reporting requirements

have been imposed to inhibit the development of arbitrary police

practices. 8    In Iowa, one municipality has entered into a confidential

settlement with the Iowa Civil Rights Commission related to alleged racial

profiling in traffic stops. 9 In addition to consent decrees, a number of

jurisdictions have initiated limitations on consent searches pursuant to

traffic stops as a matter of policy.

       This case involves a stop to investigate an ongoing minor infraction

of a municipal ordinance. Although it does not involve a stop for a minor

       6For  example, in 2003, the California Highway Patrol (CHP) reached a class
action settlement in a case alleging racial profiling. The agreement required the CHP to
extend its self-imposed, preexisting moratorium on consent searches for an additional
three years. Terms and Conditions of Settlement Agreement at 6, Rodriguez v. Cal.
Highway Patrol, Case No. C 99-20895-JF/HRL (N.D. Cal. 2003), available at
www.aclunc.org/cases/landmark_cases/asset_upload_file723_6239.pdf; see also David
John Housholder, Reconciling Consent Searches and Fourth Amendment Jurisprudence:
Incorporating Privacy Into the Test for Valid Consent Searches, 

58 Vand. L. Rev. 1279

,
1302–03 (2005).
       7See, e.g., Consent Decree at ¶ 28, U.S. v. New Jersey, Civil No. 99-5970(MLC)
(D.N.J. 1999), available at http://www.nj.gov/oag/jointapp.htm (providing that the New
Jersey State Police would request consent to search a motor vehicle “only where
troopers can articulate reasonable suspicion that a search would reveal evidence of a
crime”).
       8ConsentDecree at 7, Wilkins v. Md. State Police, Civil Action No. CCB-93-468
(D. Md. 2003), available at http://www.clearinghouse.net/chDocs/public/PN-MD-
0003-0012.pdf.
       9Press Release, Iowa Civil Rights Commission, Racial Profiling Complaint Ends
in Settlement with Iowa Law Enforcement Agency (April 13, 2011), available at
www.state.ia.us/government/crc/docs/RacialProfilingApril2011.pdf.        Iowa    law
enforcement authorities are aware of the problem of racial profiling and have taken
measures to address the issue. In 2004, the Iowa Department of Public Safety held a
series of community meetings regarding racial profiling. Iowa Department of Public
Safety, Iowa’s Highways and Racial Profiling: Community Conversations 5 (2004),
available at http://www.dps.state.ia.us/commis/pib/Releases/2004/full_report.pdf.
The Department subsequently developed a number of recommendations to address the
public’s concerns of racial profiling in Iowa. 

Id.

 at 14–15.
                                       8

traffic violation, many of the concerns that arise in the setting of a

routine traffic stop apply here with equal force. We consider the issues

with due regard to the legitimate needs of law enforcement, but with a

recognition that our constitutional limitations on searches and seizures

by law enforcement protect fundamental values of liberty and human

dignity and are a bulwark against arbitrary governmental intrusions into

the lives of citizens.

       B. Legality of the Initial Stop. We first consider the legality of

the initial stop in this case. Pals was stopped in his vehicle by Wubben

based on the officer’s belief that Pals was violating a Joice municipal

ordinance.    Pals argues Wubben was without authority to detain him

initially because he was suspected only of violating a minor civil

infraction—allowing his dogs to run loose—and because the civil

infraction was already completed. The State contends Wubben had an

objectively reasonable basis to believe the infraction was ongoing because

he only saw one of Pals’ two dogs in the truck.

       “The   Fourth     Amendment’s       protection    against     unreasonable

intrusions on a person’s liberty arises when an officer seizes a person.”

State v. Reinders, 

690 N.W.2d 78, 82

 (Iowa 2004) (internal quotation

marks omitted). “Temporary 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

this   provision”    and   therefore   must     be      reasonable    under     the

circumstances. Whren v. United States, 

517 U.S. 806

, 809–10, 

116 S. Ct. 1769, 1772

, 

135 L. Ed. 2d 89, 95

 (1996).             “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.”             

Id. at 810

, 

116 S. Ct. at 1772

, 

135 L. Ed. 2d at 95

. Pals was not accused of
                                     9

violating a civil traffic law, however.   Instead, Pals was suspected of

violating a Joice municipal ordinance.

      Under certain circumstances, police may detain persons in the

absence of probable cause if the police have reasonable suspicion to

believe criminal activity is taking place. In Terry v. Ohio, 

392 U.S. 1

, 20–

27, 

88 S. Ct. 1868

, 1879–83, 

20 L. Ed. 2d 889

, 905–09 (1968), the

Supreme Court applied a balancing test, weighing the individual’s right

to autonomy and freedom against the government’s interest in effective

crime prevention and detection and in the officers’ need to protect

themselves.   The Court held police may seize a person on less than

probable cause when they suspect the person is about to commit a

crime. Terry, 

392 U.S. at 23

, 

88 S. Ct. at 1881

, 

20 L. Ed. 2d at 907

.

      Under Terry, police may stop a moving automobile in the absence

of probable cause to investigate a reasonable suspicion that its

occupants are involved in criminal activity. See United States v. Brignoni-

Ponce, 

422 U.S. 873, 881

, 

95 S. Ct. 2574, 2580

, 

45 L. Ed. 2d 607

, 616–

17 (1975). The Court has also held that police may stop an automobile

based on reasonable suspicion to investigate a serious past crime.

United States v. Hensley, 

469 U.S. 221, 229

, 

105 S. Ct. 675, 680

, 

83 L. Ed. 2d 604, 612

 (1985).

      Pals argues that, because a violation of the dogs-on-the-loose

ordinance was not a serious crime or felony, he could not be stopped by

Wubben for its violation. He points to the language of Hensley, which

states:

             We need not and do not decide today whether Terry
      stops to investigate all past crimes, however serious, are
      permitted.   It is enough to say that, if police have a
      reasonable suspicion, grounded in specific and articulable
      facts, that a person they encounter was involved in or is
                                     10
      wanted in connection with a completed felony, then a Terry
      stop may be made to investigate that suspicion.

Id.

   Pals’ contention is that Wubben’s stop was improper because
reasonable suspicion of a completed civil infraction is insufficient to

justify a seizure under the Federal and Iowa Constitutions.

      Federal courts are divided on the issue of whether the Fourth

Amendment per se prohibits police from stopping a vehicle based only on

reasonable suspicion of a completed misdemeanor or civil infraction.

Compare Gaddis ex rel. Gaddis v. Redford Twp., 

364 F.3d 763

, 771 n.6

(6th Cir. 2004) (holding police may not make a stop with only reasonable

suspicion of a “mere completed misdemeanor”), with United States v.

Hughes, 

517 F.3d 1013

, 1017–18 (8th Cir. 2008) (applying a balancing

test), and United States v. Grigg, 

498 F.3d 1070, 1081

 (9th Cir. 2007)

(same). However, even those courts that apply a balancing test often find

reasonable suspicion of a completed misdemeanor to be insufficient to

justify a stop under the Fourth Amendment. See, e.g., Hughes, 

517 F.3d at 1018

 (concluding reasonable suspicion of completed trespass—a

misdemeanor under state law—insufficient to justify Terry stop); Grigg,

498 F.3d at 1081–82 (holding unreasonable a traffic stop based on a

complaint that the driver had been playing his stereo at an excessive

volume earlier in the day).

      We need not address this issue, however, because Pals was not

pulled over based on reasonable suspicion of a completed civil infraction.

Instead, Pals was detained based on probable cause of an ongoing civil

infraction. It is well settled that a police officer may pull over a car based

on probable cause of an ongoing civil infraction. See Whren, 

517 U.S. at 810

, 

116 S. Ct. at 1772

, 

135 L. Ed. 2d at 95

.         Probable cause exists

where “ ‘the facts and circumstances within [the officer’s] knowledge and
                                    11

of which [he] had reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief that’ an

offense has been or is being committed.” Brinegar v. United States, 

338 U.S. 160

, 175–76, 

69 S. Ct. 1302

, 1310–11, 

93 L. Ed. 1879

, 1890 (1949)

(quoting Carroll v. United States, 

267 U.S. 132, 162

, 

45 S. Ct. 280, 288

,

69 L. Ed. 543, 555

 (1925)); see also State v. Freeman, 

705 N.W.2d 293, 298

 (Iowa 2005) (“Probable cause is present ‘if the totality of the

circumstances as viewed by a reasonable and prudent person would lead

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

that the arrestee committed or is committing it.’ ” (quoting State v.

Bumpus, 

459 N.W.2d 619, 624

 (Iowa 1990))).

      Wubben had probable cause to believe Pals was committing an

ongoing violation of the municipal ordinance. Wubben observed the dogs

running around town, observed Pals’ truck appearing to search for the

dogs, spoke to a friend of Pals who confirmed the dogs belonged to Pals,

and later observed only one of the dogs in the back of Pals’ truck.

      Pals argues the record shows the infraction was completed because

Wubben is heard on the recording of the stop stating, “I saw him uptown

scooping them up.”    Wubben testified at the hearing he saw only the

Brittany in the back of the truck and not the Lab. When Wubben first

approached Pals’ truck, he stated, “I see you found one of them before I

did.” Pals replied that he had recovered both dogs and both were in the

back of his truck. Wubben followed up and asked specifically about the

Lab, and Pals stated the dog was in a kennel in the back.         Wubben

testified that the kennel was not visible and that he never actually saw

the Lab before stopping Pals’ vehicle. Based on this record, Wubben saw

only one of the dogs in the truck at the time of the stop and
                                       12

consequently, did not know the location of the other dog that had been

wandering around town in violation of the civil ordinance.

      We therefore conclude that Wubben had probable cause under the

Fourth Amendment to believe that an ongoing civil offense was occurring

with respect to the Lab.      We find the federal authorities cited above

persuasive and come to the same conclusion with respect to Pals’ state

constitutional claim under article I, section 8 of the Iowa Constitution.

      C. Legality of Expansion of Seizure for Investigation Unrelated

to Purposes of Stop. In Berkemer v. McCarty, 

468 U.S. 420, 439

, 

104 S. Ct. 3138, 3150

, 

82 L. Ed. 2d 317, 334

 (1984), the Supreme Court

concluded that a traffic stop was more analogous to a Terry-type stop

than a formal arrest.     As a result, the federal courts and many state

courts have sought to apply Terry principles in evaluating searches and

seizures arising from traffic stops.

      In Terry, the Supreme Court emphasized that even a frisk for

weapons, which takes only a few seconds, is “a serious intrusion upon

the sanctity of the person, which may inflict great indignity and arouse

strong resentment.” Terry, 

392 U.S. at 17

, 

88 S. Ct. at 1877

, 

20 L. Ed. 2d at 903

. As a result, Terry emphasized that “[t]he scope of the search

must be ‘strictly tied to and justified by’ the circumstances which

rendered its initiation permissible.”       

Id. at 19

, 

88 S. Ct. at 1878

, 

20 L. Ed. 2d at 904

 (quoting Warden v. Hayden, 

387 U.S. 294, 310

, 

87 S. Ct. 1642, 1652

, 

18 L. Ed. 2d 782, 794

 (1967) (Fortas, J., concurring)).

As a result, under traditional application of the exclusionary rule,

“evidence may not be introduced if it was discovered by means of a

seizure and search which were not reasonably related in scope to the

justification for their initiation.” Id. at 29, 

88 S. Ct. at 1884

, 

20 L. Ed. 2d at 910

.
                                      13

      The scope of search and seizure limitations frequently arises where

law enforcement has no reasonable suspicion to believe that criminal

activity unrelated to the purposes of the underlying stop is afoot but the

police expand their inquires into unrelated subjects. The federal courts

are divided on the issue.       Some federal circuit courts have held that

reasonable suspicion of criminal activity for matters outside the scope of

the purposes of a traffic stop is not required as long as the duration of

the stop is not extended. See, e.g., United States v. Olivera-Mendez, 

484 F.3d 505, 510

 (8th Cir. 2007) (upholding drug inquiry during traffic stop

when duration of stop not extended); United States v. Hernandez, 

418 F.3d 1206

, 1209 n.3 (11th Cir. 2005).          Other circuits, however, have

taken a somewhat different view. See, e.g., United States v. Blair, 

524 F.3d 740, 752

 (6th Cir. 2008) (stating Terry-type stop must be reasonably

related in scope to the circumstances which justified the interference in

the first place); United States v. Henderson, 

463 F.3d 27, 45

 (lst Cir.

2006) (holding the scope and duration must be reasonably related to the

purpose of the vehicle stop).

      Cases considering whether Terry-type limitations apply with

respect   to   consent   searches     during    traffic   stops   under   state

constitutional search and seizure provisions are mixed. The cases from a

substantial number of state courts support the proposition that a seizure

pursuant to a traffic stop must be limited in scope and that any effort to

obtain consent for a search unrelated to the purpose of the stop requires

at least reasonable suspicion of criminal activity.        See, e.g., Brown v.

State, 

182 P.3d 624, 634

 (Alaska Ct. App. 2008); State v. Estabillio, 

218 P.3d 749

, 757–61 (Haw. 2009); Commonwealth v. Torres, 

674 N.E.2d 638

,

641–43 (Mass. 1997); State v. Fort, 

660 N.W.2d 415, 419

 (Minn. 2003);

State v. Carty, 

790 A.2d 903

, 908–09 (N.J.), modified, 

806 A.2d 798

 (N.J.
                                      14

2002); State v. McClendon, 

517 S.E.2d 128, 132

 (N.C. 1999); McGaughey

v. State, 

37 P.3d 130

, 137–41 (Okla. Crim. App. 2001); State v.

Cunningham, 

954 A.2d 1290

, 1298–1301 (Vt. 2008). These cases cite the

fear of potential abuse of traffic stops as nearly all vehicles, if followed for

any substantial amount of time, commit minor traffic offenses that could

serve as a springboard to intrusive consent searches.

      Other states, however, have declined to impose a requirement that

officers have reasonable suspicion unrelated to the traffic stop before

they may request consent to search the vehicle.            See, e.g., State v.

Jenkins, 

3 A.3d 806, 826

 (Conn. 2010); State v. Snell, 

99 P.3d 191, 193

(Mont. 2004); State v. Carbo, 

864 A.2d 344, 346

 (N.H. 2004).             These

cases generally follow the federal approach in holding that consent

searches in the context of traffic stops are valid provided that the

duration of the seizure is not materially extended.

      In light of the substantial split of authority over the issue of the

proper scope of searches in the context of automobile stops, we

requested supplemental briefing from the parties on the issue.           In its

response, the State argues that the issue was not properly preserved. In

the district court, the defendant framed the issue as whether there was

probable cause to conduct the search. The district court did not address

the probable cause issue, finding that the consent was valid. Under the

circumstances, the State argues that it was deprived of an evidentiary

opportunity to present evidence that there was, in fact, sufficient

particularized suspicion to support the search. See DeVoss v. State, 

648 N.W.2d 56, 63

 (Iowa 2002).         In light of the substantial question of

preservation of error, we decline to address the issue.

      D. Voluntariness of Consent. Pals argues that the district court

erred in denying his motion to suppress because his consent to search
                                    15

the vehicle was involuntary. Specifically, Pals asserts that the totality of

the circumstances, particularly the coercive nature of the traffic stop,

demonstrate that his consent was not the product of a free and

unconstrained choice. We agree with Pals.

      1. Approach of the United States Supreme Court to consent

searches.   The starting point in the modern federal law of consent to

search is Schneckloth v. Bustamonte, 

412 U.S. 218

, 

93 S. Ct. 2041

, 

36 L. Ed. 2d 854

 (1973).    In Schneckloth, the defendant was stopped by

Officer James Rand who observed that one headlight and the license

plate light were burned out on the vehicle. Schneckloth, 

412 U.S. at 220

,

93 S. Ct. at 2044

, 

36 L. Ed. 2d at 858

.           Rand requested the six

occupants to step out of the car. 

Id.

 After the occupants complied, two

additional police officers arrived. 

Id.

 Rand then asked an occupant, who

was the car owner’s brother, if he could search the car.          

Id.

   The

occupant responded, “Sure, go ahead.” 

Id.

 While searching the car, the

police found three checks that had been stolen from a carwash wadded

up under the left rear seat. 

Id. at 220

, 

93 S. Ct. at 2044

, 

36 L. Ed. 2d at 859

. The defendant was charged with possessing a check with intent to

defraud.    

Id. at 219

, 

93 S. Ct. at 2044

, 

36 L. Ed. 2d at 858

.          In

determining whether the consent search was valid, the Schneckloth Court

considered whether consent in a search required a knowing and

voluntary waiver of constitutional rights such as that required in

Johnson v. Zerbst, 

304 U.S. 458

, 

58 S. Ct. 1019

, 

82 L. Ed. 1461

 (1938),

which held that a waiver of the right to counsel in a federal trial was

invalid unless the high standard of waiver was met. Id. at 235, 93 S. Ct.

at 2051–52, 

36 L. Ed. 2d at 867

.

      The Supreme Court in Schneckloth concluded that the knowing

and voluntary waiver standards of Zerbst did not apply in determining
                                     16

the validity of a consent search. 

Id.

 at 235–46, 93 S. Ct. at 2051–58, 36

L. Ed. 2d at 867–74.     The Schneckloth Court contrasted the right in

Zerbst, which impacted a right designed to guarantee a fair trial and the

reliability of the truth-determining process, with the right involved under

the Fourth Amendment. 

Id.

      Instead of requiring a Zerbst-type waiver, the Supreme Court held

that the standard for determining the validity of a consent to search is

whether the consent was voluntarily given and not a result of duress or

coercion, expressed or implied. 

Id.

 at 247–48, 93 S. Ct. at 2058–59, 36

L. Ed. 2d at 874–75. Voluntariness is a question of fact to be determined

by all the circumstances. 

Id.

 at 248–49, 

93 S. Ct. at 2059

, 

36 L. Ed. 2d at 875

. “[W]hile the subject’s knowledge of a right to refuse is a factor to

be taken into account,” it is not a prerequisite for obtaining voluntary

consent. 

Id. at 249

, 

93 S. Ct. at 2059

, 

36 L. Ed. 2d at 875

.

      The Schneckloth majority reasoned that a search authorized by

consent may be the only means of obtaining important and reliable

evidence. 

Id.

 at 227–28, 

93 S. Ct. at 2048

, 

36 L. Ed. 2d at 863

. Further,

the majority stated that requiring a Miranda-type waiver in Fourth

Amendment cases would be “thoroughly impractical.” 

Id.

 at 231–32, 93

S. Ct. at 2049–50, 36 L. Ed. 2d at 865–66.

      Justice Marshall dissented in Schneckloth.           Justice Marshall

challenged   the   majority   view   that   a   suspect   may   relinquish   a

constitutional right without knowing that he or she may refuse to accede

to the police request. 

Id.

 at 284–90, 93 S. Ct. at 2077–80, 36 L. Ed. 2d

at 895–99 (Marshall, J., dissenting).       The issue, according to Justice

Marshall, was not whether the consent was “coerced,” but whether a

citizen has chosen to exercise or forgo constitutional rights. 

Id.

 at 282–

83, 

93 S. Ct. at 2076

, 36 L. Ed. 2d at 894–95.
                                    17

      The Supreme Court considered the application of Schneckloth in

the context of a traffic stop in Ohio v. Robinette, 

519 U.S. 33

, 

117 S. Ct. 417

, 

136 L. Ed. 2d 347

 (1996). In Robinette, a motorist was stopped as a

result of a speeding violation. Robinette, 

519 U.S. at 35

, 

117 S. Ct. at 419

, 

136 L. Ed. 2d at 352

.       The officer obtained Robinette’s driver’s

license and determined, as a result of a computer check, that Robinette

had no previous violations. 

Id.

 He then asked Robinette to step out of

the car, issued a verbal warning, and returned the driver’s license. 

Id.

At this point, the officer turned on his video camera and asked Robinette,

“One question before you get gone:         [A]re you carrying any illegal

contraband in your car? Any weapons of any kind, drugs, anything like

that?” 

Id.

 at 35–36, 

117 S. Ct. at 419

, 

136 L. Ed. 2d at 352

 (internal

quotation marks omitted). After receiving a negative response, the officer

asked for permission to search the car. 

Id. at 36

, 

117 S. Ct. at 419

, 

136 L. Ed. 2d at 352

. After Robinette consented, drugs were found pursuant

to the search. 

Id.

      Robinette challenged the search on the ground that his consent

was not voluntary under Schneckloth. 

Id. at 35

, 

117 S. Ct. at 419

, 

136 L. Ed. 2d at 352

. The Ohio Supreme Court ruled that the search was

invalid, holding that when a suspect is stopped for a traffic offense, he or

she must be informed that they are free to go before an officer may

engage in a consensual interrogation. 

Id. at 36

, 117 S. Ct. at 419–20,

136 L. Ed. 2d at 353

.

      The United States Supreme Court reversed.        The majority of the

Court held that there was no “per se” rule for voluntariness in the setting

of a traffic stop and remanded the case to the Ohio Supreme Court for

further proceedings.    Robinette, 519 U.S. at 39–40, 

117 S. Ct. at 421

,

136 L. Ed. 2d at 354–55.
                                   18

      The majority opinion in Robinette drew two separate opinions.

Justice Ginsburg concurred, but noted that the Ohio Supreme Court was

free to establish a per se rule determining the voluntariness of consent

searches in automobile stops on state constitutional grounds. 

Id.

 at 40–

45, 117 S. Ct. at 422–24, 136 L. Ed. 2d at 355–58 (Ginsburg, J.,

concurring). Justice Stevens dissented, explaining that he would affirm

the judgment of the Ohio Supreme Court because the officers obtained

the consent during an illegal detention. 

Id. at 51

, 

117 S. Ct. at 427

, 

136 L. Ed. 2d at 362

 (Stevens, J., dissenting).     Further, Justice Stevens

agreed with Justice Ginsburg that the Ohio Supreme Court could require

officers to inform suspects that they are free to go before engaging in

consensual interrogation under the Ohio Constitution. 

Id.

 at 51–52, 117

S. Ct. at 427–28, 136 L. Ed. 2d at 362–63.

      To some extent, the views of both Justice Stevens and Justice

Ginsburg were vindicated when the case was remanded to the Ohio

Supreme Court. On remand, the Ohio Supreme Court again found that

the consent to search was involuntary. State v. Robinette (Robinette III),

685 N.E.2d 762, 771

 (Ohio 1997). The Ohio Supreme Court emphasized

that it did not adopt a per se requirement that all motorists must be

informed of their right to leave, but held under the totality of the

circumstances in the case before it that the consent was invalid.      

Id.

Further, the Ohio Supreme Court clarified that its holding was based

upon the search and seizure provisions of the Ohio Constitution. Id.

      2. Independent state constitutional approaches to voluntariness of

consent searches. There is no question that state courts, as noted by

Justice Ginsburg in Robinette, are free to develop their own search and

seizure law under their state constitutions. See Ochoa, 

792 N.W.2d at 19

267.     This principle has been vividly illustrated in the aftermath of

Schneckloth.

       A number of state supreme courts have followed Schneckloth in

deciding cases under their state constitutions.        Many of these states,

unlike    Iowa,   have   adopted   a      lockstep   approach   whereby   the

constitutional decisions of the United States Supreme Court are deemed

authoritative on matters of state constitutional law under similar

constitutional provisions. See, e.g., Scott v. State, 

782 A.2d 862

, 876–77

(Md. 2001); State v. Osborne, 

402 A.2d 493, 497

 (N.H. 1979);

Commonwealth v. Cleckley, 

738 A.2d 427, 433

 (Pa. 1999); State v. Cox,

171 S.W.3d 174

, 183–84 (Tenn. 2005); State v. Rodgers, 

349 N.W.2d 453, 459

 (Wis. 1984).

       Several states, however, have rejected the Schneckloth approach

and required that, in order for a search or seizure to be valid based on

consent, the subject must provide a knowing and voluntary waiver under

Zerbst. See, e.g., State v. Brown, 

156 S.W.3d 722

, 731–32 (Ark. 2004)

(concluding that officers performing knock-and-talk procedure must

inform the subject of his or her right to refuse consent to the search);

Penick v. State, 

440 So. 2d 547, 551

 (Miss. 1983) (holding the

voluntariness requirement requires a showing that the defendant knew of

his or her right to refuse); State v. Johnson, 

346 A.2d 66, 68

 (N.J. 1975)

(holding individual must have knowledge of right to refuse consent in

order for consent to be deemed voluntary); State v. Ferrier, 

960 P.2d 927

,

932–33 (Wash. 1998) (stating that, under state constitution, knock-and-

talk procedure to acquire consent requires officers to inform the subject

of his or her right to refuse consent).

       Other states have not required a knowing and voluntary waiver,

but have employed a Schneckloth-type “totality of the circumstances” test
                                     20

in a fashion more demanding than the United States Supreme Court. In

Robinette III, for instance, the Ohio Supreme Court, by expressly stating

that its Schneckloth-type analysis was based on state constitutional

grounds, impliedly recognized that the United States Supreme Court

could well have been less demanding in its application of the Schneckloth

test.    See Robinette III, 685 N.E.2d at 771–72.        Such a relatively

demanding approach to evaluating the “totality of the circumstances”

might be characterized as Schneckloth “with teeth” test. See also State v.

Nemeti, 

472 N.W.2d 477, 478

 (S.D. 1991) (requiring the state to establish

voluntariness “by clear and convincing evidence that the search was the

result of a free, intelligent, unequivocal and specific consent without any

duress or coercion, actual or implied”).

        3. Iowa case law on consent searches. We have confronted the

issue of voluntary consent in many search and seizure cases. We have

not generally explored whether the court should adopt the Supreme

Court’s Schneckloth standard under article I, section 8 of the Iowa

Constitution or whether we should follow an independent path. In nearly

all of our search and seizure cases involving consent, it appears that

either the parties did not raise state constitutional claims, or if they did,

they did not suggest that article I, section 8 of the Iowa Constitution

should be given a different interpretation than the federal counterpart.

See Lane, 726 N.W.2d at 378–80 (holding that defendant’s girlfriend

consented to search, but no mention of claim under Iowa Constitution);

see also State v. Reinier, 

628 N.W.2d 460

, 467–69 (Iowa 2001) (holding

that state failed to establish voluntary consent in the context of a “knock

and talk” under the Fourth Amendment and article I, section 8 of the

Iowa Constitution without an independent discussion of the Iowa

Constitution); State v. Horton, 

625 N.W.2d 362, 364

 (Iowa 2001) (stating
                                     21

that search was not supported by consent under Schneckloth without

discussing state constitution); State v. Manna, 

534 N.W.2d 642

, 643–44

(Iowa 1995) (discussing only the Fourth Amendment in determining

whether the consent was voluntary); State v. Oakley, 

469 N.W.2d 681, 683

 (Iowa 1991) (same); State v. Myer, 

441 N.W.2d 762

, 765–66 (Iowa

1989) (same); State v. Folkens, 

281 N.W.2d 1

, 3–4 (Iowa 1979) (same);

State v. Ege, 

274 N.W.2d 350, 353

 (Iowa 1979) (discussing Schneckloth

without reference to article I, section 8); State v. Jones, 

274 N.W.2d 273

,

275–76 (Iowa 1979) (mentioning in passing article I, section 8 and citing,

without analysis, Schneckloth for the proposition that valid consent is an

exception to the warrant requirement); State v. Carter, 

267 N.W.2d 385, 385

 (Iowa 1978) (stating sole issue was constitutionality of consent

search under Fourth Amendment); State v. Bakker, 

262 N.W.2d 538

,

546–47 (Iowa 1978) (discussing consent in context of Fourth Amendment

only); Bettuo v. Pelton, 

260 N.W.2d 423

, 425–27 (Iowa 1977) (same); State

v. Ahern, 

227 N.W.2d 164

, 165–67 (Iowa 1975) (mentioning only Fourth

Amendment in applying Schneckloth).

      In Reinders, however, we did consider claims brought under both

the Fourth Amendment and article I, section 8 of the Iowa Constitution

in a search and seizure case involving consent. Reinders, 

690 N.W.2d at 81

.   The accused in Reinders was approached by police in a K-Mart

parking lot. 

Id. at 80

. After asking the accused about his activities and

requesting identification, police asked for consent to search.      

Id.

   The

court found the consent valid, noting that there was “no show of

authority, no intimidation, and no use of physical force . . . . The officers

simply engaged him in conversation and asked for identification.” 

Id. at 83

.   While the opinion states that the court found “no basis to

distinguish the protections afforded by the Iowa Constitution,” it is not
                                    22

clear from the opinion precisely what distinctive arguments, if any, were

raised on appeal. See 

id. at 82

.

         We have also considered the validity of consent in search and

seizure cases involving automobiles. In State v. Smith, 

217 N.W.2d 633, 634

 (Iowa 1974), we were asked if a consent was voluntary during a

traffic stop.     In Smith, the defendant alighted from his car and

approached the officers after being pulled over.    Smith, 

217 N.W.2d at 634

. After reviewing the defendant’s driver’s license, an officer asked if

the officers could search the car. 

Id.

 The search was found voluntary

under Schneckloth. 

Id. at 635

. Further, in a case prior to Schneckloth,

we held that a consent to search during a vehicle stop was voluntary

under the Fourth Amendment after the driver was asked to step out of

the car even though the officer had drawn his gun when approaching the

vehicle as a precaution in light of reports of an armed suspect. State v.

Baych, 

169 N.W.2d 578, 583

 (Iowa 1969), overruled on other grounds by

State v. Erickson, 

362 N.W.2d 528, 530

 (Iowa 1985).

         4. Academic commentary on consent searches pursuant to traffic

stops.    The academic commentary on Schneckloth has been generally

unfavorable and has attacked the basic premises of the decision as

applied in a traffic stop case. A number of commentators simply seem to

side with Justice Marshall’s dissent, noting the irony in finding a

“voluntary consent” even when the individual does not realize that he or

she has a right to refuse.     See Arnold H. Loewy, Knowing “Consent”

Means “Knowing Consent”:        The Underappreciated Wisdom of Justice

Marshall’s Schneckloth v. Bustamonte Dissent, 

79 Miss. L.J. 97

, 104–08

(2009).

         Many of the academic commentators, however, also attack the lack

of stringent application of the Schneckloth test in the context of a traffic
                                        23

stop. See, e.g., Morgan Cloud, Ignorance and Democracy, 

39 Tex. Tech L. Rev. 1143

, 1160–61 (2007) (criticizing the Supreme Court’s application of

Schneckloth in Florida v. Jimeno, 

500 U.S. 248

, 

111 S. Ct. 1801

, 

114 L. Ed. 2d 297

      (1991));   Eamon     Kelly,   Race,   Cars    and   Consent:

Reevaluating No-Suspicion Consent Searches, 2 DePaul J. for Soc. Just.

253, 258 (2009) (noting the broad discretion given to officers to utilize

consent searches after Schneckloth); Tracey Maclin, The Good and Bad

News About Consent Searches in the Supreme Court, 

39 McGeorge L. Rev. 27

,   57    (2008)    (observing   that      post-Schneckloth     decisions   have

“transformed [Schneckloth] from its self-described narrow, fact-specific

holding to a ruling that adopts a presumption of valid consent whenever

the police ask for consent and there is assent”). Commentators have also

criticized the “totality of the circumstances” test of Schneckloth as lacking

in predictability.     For instance, Professor LaFave has noted that the

voluntariness issue under the Fifth Amendment proved so problematic

that Miranda warnings were required. 4 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 8.2, at 51 (4th ed. 2004).

Professor LaFave sees the same problem in the context of the Fourth

Amendment in light of “the inherent ambiguity” of the Schneckloth test.

Id. at 54; see also Marcy Strauss, Reconstructing Consent, 

92 J. Crim. L. & Criminology 211

, 220–21 (2002) [hereinafter Strauss] (characterizing

the Schneckloth test as vague and providing little guidance to courts).

      Commentators have repeatedly noted that a traffic stop gives rise

to an element of compulsion.         See, e.g., Strauss, 92 J. Crim. L. &

Criminology at 219 n.29 (noting motorists are often asked for consent

under “unfamiliar and intimidating” circumstances); Peter M. Tiersma &

Lawrence M. Solan, Cops and Robbers: Selective Literalism in American

Criminal Law, 38 Law & Soc’y Rev. 229, 243 (2004) [hereinafter Tiersma]
                                     24

(stating a request to search may be interpreted as an order to comply due

to the “inherently coercive nature of a traffic stop”); Robert H. Whorf,

Consent   Searches    Following   Routine   Traffic   Stops:   The   Troubled

Jurisprudence of a Doomed Drug Interdiction Technique, 

28 Ohio N.U. L. Rev. 1

, 22 n.121 (2001) [hereinafter Whorf] (citing the “overall coercive

nature of the routine traffic stop” as a plausible explanation for the

acquiescence to search); Erica Flores, Comment, “People, Not Places”:

The Fiction of Consent, The Force of the Public Interest, and the Fallacy of

Objectivity in Police Encounters with Passengers During Traffic Stops, 

7 U. Pa. J. Const. L. 1071

, 1081 (2005) [hereinafter Flores] (observing that a

traffic stop creates “an inherently coercive environment”); Carla R. Kock,

Note, State v. Akuba: A Missed Opportunity to Curb Vehicle Searches of

Innocent Motorists on South Dakota Highways, 

51 S.D. L. Rev. 152

, 182

(2006) [hereinafter Kock] (“[T]he reality of traffic stops as state-sponsored

exercises of power that contain inherently coercive elements deserves

attention from the courts.”).

      In addition, commentators have challenged the assumption of

Schneckloth that providing a knowledge requirement could jeopardize the

continued viability of consent searches.      One study, after examining

consent searches in Ohio, concludes that advising a motorist that he or

she is free to leave or that the motorist was free to refuse to allow the

search would not have a significant impact on the number of consent

searches. Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on

“Voluntary” Waiver of Fourth Amendment Rights, 

44 How. L.J. 349

, 370–

71 (2001); see also Steven L. Chanenson, Get the Facts, Jack! Empirical

Research and the Changing Constitutional Landscape of                Consent

Searches, 

71 Tenn. L. Rev. 399

, 465–66 (2004); Matthew Phillips,
                                        25

Effective Warnings Before Consent Searches: Practical, Necessary, and

Desirable, 

45 Am. Crim. L. Rev. 1185

, 1201 (2008) [hereinafter Phillips].

       Further, academic commentators also question whether giving

appropriate warnings would be an unreasonable burden on law

enforcement. While Schneckloth declares that such a requirement would

be “thoroughly impractical,” Schneckloth, 

412 U.S. at 231

, 

93 S. Ct. at 2050

, 36 L. Ed. 2d at 865–66, this assertion does not seem to be true.

Indeed, police in New Jersey have been required to give such warnings in

any routine traffic stop prior to seeking consent to search. See Phillips,

45 Am. Crim. L. Rev. at 1197–1206; see also James A. Adams, Search

and Seizure as Seen by Supreme Court Justices: Are They Serious or Is

This Just Judicial Humor, 

12 St. Louis U. Pub. L. Rev. 413

, 446–47

(1993); Eugene E. Smary, Note, The Doctrine of Waiver and Consent

Searches, 

49 Notre Dame L. Rev. 891

, 903 (1974).

       5. Determination of validity of consent searches under article I,

section 8 in this case.      In this case, we need not decide whether a

knowing or intelligent waiver of search and seizure rights, such as that

adopted in New Jersey, Washington, Mississippi, or Arkansas, is required

to establish consent under article I, section 8 of the Iowa Constitution.

An evaluation of such a per se requirement that police advise an

individual of his or her right to decline to consent to a search, as is urged

by LaFave and others, is reserved for another day.

       Instead, we decide the case on a narrower ground. We hold, even

if we apply an Iowa version of the Schneckloth-type “totality of the

circumstances” test, the consent cannot be considered voluntary in this

case under article I, section 8 of the Iowa Constitution. 10 Our analysis in

       10Our  holding is not based upon the Fourth Amendment of the United States
Constitution, but on the independent grounds provided by article I, section 8 of the
Iowa Constitution.
                                    26

this case is similar to that of the Ohio Supreme Court when it addressed

the consent issue on remand from the United States Supreme Court in

Robinette III.

      First, we note that Wubben subjected Pals to a pat-down search,

which included a command to empty Pals’ pockets, before detaining Pals

in the police cruiser.   There is nothing in the record to suggest that

Wubben detected danger from Pals, who was stopped over a civil

infraction. The pat-down search, however, projected authority over Pals

and is a factor to be considered in determining the voluntariness of the

search.

      Second, we note that Pals was detained in the police vehicle at the

time of the consent to search. We are thus not faced with a voluntary

encounter in a public area, Reinders, 

690 N.W.2d at 80

, or an encounter

on the familiar surroundings of the threshold of one’s home. Instead,

Pals found himself seized in the front seat of a squad car with his own

vehicle parked on the side of a public highway.      See United States v.

Mendenhall, 

446 U.S. 544, 554

, 

100 S. Ct. 1870, 1877

, 

64 L. Ed. 2d 497, 509

 (1980) (stating that a person is “seized” within the meaning of the

Fourth Amendment when, “in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that

he was not free to leave”). While the fact that a person is seized is not

necessarily determinative under a totality of the circumstances test,

Ahern, 

227 N.W.2d at 166

, we agree with the cases and commentators

that view the setting of a traffic stop on a public road as inherently

coercive. See Brown, 

182 P.3d at 626

 (stating motorists who have been

stopped for a traffic violation do not act from a position of psychological

independence); Robinette III, 

685 N.E.2d at 771

 (citing impliedly coercive

nature of traffic stop); Strauss, 92 J. Crim. L. & Criminology at 219 n.29;
                                     27

Tiersma, 38 Law & Soc’y Rev. at 243; Whorf, 28 Ohio N.U. L. Rev. at 7

(citing coercion inherent in consent searches after routine traffic stops);

Flores, 7 U. Pa. J. Const. L. at 1095; Kock, 51 S.D. L. Rev. at 182. In

this setting, police plainly have the upper hand and are exerting

authority in a fashion that makes it likely that a citizen would not feel

free to decline to give consent for a search even though the search is

unrelated to the rationale of the original stop.

      Third, we note that Pals was never advised that he was free to

leave or that he could voluntarily refuse consent without any retaliation

by police. Under the Schneckloth-type approach, such a warning is not

always required.      Nonetheless, it still is an important factor in

determining whether a consent to search is truly voluntary. The lack of

any statement that Pals was free to leave or that he could decline to give

his consent to the search in this case is, at a minimum, a strong factor

cutting against the voluntariness of the search, particularly in the

context of a traffic stop where the individual is seized in the front seat of

a police car. See Brown, 

182 P.3d at 634

 (citing lack of statements that

individual was free to leave or to decline consent to search as factors to

find consent involuntary in traffic stop case). A warning of rights would

serve to significantly neutralize the coercive setting in this case.

      Fourth, Wubben had not advised Pals that he had concluded

business related to the stop at the time he asked for consent. By not

advising Pals that the business relating to the stop was concluded,

Wubben conveyed the impression that Pals might receive more favorable

treatment if he consented to the search.           The lack of closure of the

original purpose of the stop makes the request for consent more

threatening. See 

id. at 631

 (noting motorists have a “strong interest in

catering to the officer’s wishes until the officer announces [his or her]
                                    28

decision whether to issue a citation or only a warning”); Carty, 790 A.2d

at 908–09 (same); see also George E. Dix, Waiver in Criminal Procedure: A

Brief for More Careful Analysis, 

55 Tex. L. Rev. 193

, 251–60 (1977) (citing

anticipation of unfavorable exercise of official discretion as a factor in

consent-to-search cases). If Wubben had advised Pals that he was free to

go, the stop would have become a less coercive voluntary encounter.

      In light of these factors, we conclude that the consent was not

voluntary under article I, section 8 of the Iowa Constitution. To conclude

otherwise would require us to give too much weight to words spoken by

an individual and ignore the surrounding conditions strongly pointing to

involuntariness of the consent.

      The record in this case further demonstrates that there was no

break between the illegal action and the evidence subsequently obtained.

As a result, there is no attenuation of the taint sufficient to avoid

exclusion of the evidence obtained as a result of the unlawful search.

Lane, 726 N.W.2d at 380–81; Reinier, 

628 N.W.2d at 467

 n.3.

      V. Conclusion.

      For the above reasons, we conclude that the district court erred by

refusing to grant Pals’ suppression motion. As a result, the judgment of

the district court is reversed and the case remanded to the district court

for further proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Waterman, J., who dissents, and

Mansfield, J., who takes no part.
                                      29

                                                   #09–0064, State v. Pals

WATERMAN, Justice (dissenting).

      I respectfully dissent, both to voice my disagreement with the

majority’s fact-specific outcome in this case and, more broadly, to protest

my brethren’s divergence from our own precedent and well-settled federal

constitutional precedent. I would affirm the district court decision and

Judge Mansfield’s well-reasoned majority opinion of our court of appeals

that correctly held Pals voluntarily consented to the search of his truck

during a fairly benign encounter with Deputy Wubben. The deputy did

not violate Pals’ constitutional rights by asking for permission to search

his truck after a legitimate traffic stop.   The validity of this consent

search is solidly grounded on Fourth Amendment search and seizure

caselaw, and there is no good reason to hold otherwise under article I,

section 8 of the Iowa Constitution.

     I. Pals Waived Any Claim the Iowa Constitution Provides
Broader Protection Against Searches and Seizures Than the Fourth
Amendment.

      Today’s divergence from federal authorities was not advocated by

any party until our court requested supplemental briefing this year.

Although Pals’ appellate brief raised both the federal and Iowa

constitutional search and seizure provisions, he never argued our state

constitution provided broader protection.    To the contrary, he merely

stated:

      The search and seizure clause of the Iowa Constitution is
      substantially identical in language to the Fourth
      Amendment.      See Iowa Const. art. I, § 8.     The Court
      consistently interprets the scope and purpose of article I,
      section 8 of the Iowa Constitution to be the same as federal
      interpretations of the Fourth Amendment.        Breuer, 577
      N.W.2d at 44.
                                        30

The State’s appellate brief did not mention article I, section 8 nor did

Pals’ application for further review. Thus, the majority proceeded with its

independent analysis under the Iowa Constitution without the urging of

any party. The majority thereby altered our practice of using only the

federal analysis in addressing constitutional issues when neither party

had argued the Iowa Constitution requires a different approach.                See,

e.g., Reilly v. Iowa Dist. Ct., 

783 N.W.2d 490, 494

 (Iowa 2010) (“Because

Reilly has not advanced a standard for interpreting the due process

clause   under    the     Iowa    Constitution   different   from    its   federal

constitutional counterpart, we will apply the general principles as

outlined by the United States Supreme Court.”); State v. Bruegger, 

773 N.W.2d 862, 883

 (Iowa 2009) (applying Federal Eighth Amendment

framework because defendant “has not advanced a standard for

interpreting the cruel and unusual punishment provision under the Iowa

Constitution differently”); In re Det. of Garren, 

620 N.W.2d 275

, 280 n.1

(Iowa 2000) (refusing to deviate from federal analysis in considering state

constitutional claim because appellant “ha[d] suggested no legal

deficiency in the federal principles . . . nor ha[d] he offered an alternative

test or guidelines”).

      “Our obligation on appeal is to decide the case within the

framework of the issues raised by the parties.” Feld v. Borkowski, 

790 N.W.2d 72, 78

 (Iowa 2010). We should “do no more and no less.” 

Id.

The   majority   in     this   case   unnecessarily   overturns     existing   law

sua sponte. In so doing, the majority violates the admonition so recently

reiterated in Feld:

      [I]n the absence of the most cogent circumstances, we do not
      create issues or unnecessarily overturn existing law
      sua sponte when the parties have not advocated for such a
      change.     In this case, we are restrained to apply the
                                   31
      controlling law as advocated by the parties, and we do not
      consider or forecast whether or not that controlling law
      should be abandoned or changed . . . .

Id.

 at 78 n.4 (citations omitted). The restraint exercised by our court in

Feld should have been employed here.

      Accordingly, our court should have found Pals waived any claim of

greater protection under article I, section 8 when he failed to brief and

argue that proposition and, instead, stated both provisions are

“consistently interpret[ed] . . . to be the same.”   See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be

deemed waiver of that issue.”); see also State v. Jewett, 

500 A.2d 233, 234

 (Vt. 1985) (declining to reach state constitutional search and seizure

question raised by the parties because “neither party has presented any

substantive analysis or argument”).

      II. Pals Voluntarily Consented to the Search.

      The majority correctly concludes that Wubben’s initial stop of Pals

was lawful based on probable cause of an ongoing civil infraction—dogs

at large. Appellate de novo review of the encounter is facilitated by the

DVD recording from the patrol car’s dash camera.       Judge Mansfield’s

decision accurately describes Wubben’s interactions with Pals leading up

to the consent search:

            At about 2:00 p.m. Wubben returned on foot to Pals’s
      vehicle and asked Pals for his proof of insurance.
      Approximately three minutes elapsed as Pals looked
      unsuccessfully for his insurance card.        At that point,
      Wubben asked Pals to step into the front of his patrol car. In
      a cordial way, he asked Pals if he could pat him down for
      weapons before he got into the car.
            At approximately 2:05 p.m., Wubben and Pals entered
      the front of the patrol car. Once in the car, Wubben and
      Pals discussed where Pals currently resided and the need for
      Pals to change the address on his driver’s license. For most
      of the next five minutes or so, the pair engaged in friendly
      chatter about where Pals worked, golf, the rainy weather, a
                                    32
      washed-out golf tournament, and Pals’s activities of that day
      and plans to go to a casino.         Most of this friendly
      conversation was initiated by Pals. The need for rabies tags
      was also discussed. During that time, Wubben apparently
      prepared some kind of paperwork regarding the failure to
      have proof of insurance, while assuring Pals that he could
      call in his insurance information to the sheriff’s office and
      avoid fifty dollars in court costs. At around 2:11 p.m.,
      Wubben casually asked Pals if he could look in his vehicle,
      and Pals consented. Both got out of the patrol car and went
      to the truck.
            At 2:12 p.m., Pals opened the driver’s door for
      Wubben. Pals was asked to step in front of the truck, and
      he complied. After less than two minutes of searching the
      passenger compartment of the truck, Wubben said, “Oh
      man.” Pals responded, “What have you got?” Wubben
      replied, “Green stuff.” . . . In total, a half gram of marijuana
      was retrieved from the truck. Pals denied the marijuana was
      his and denied knowing it was in the truck. Pals then
      assisted Wubben’s continuation of the search by opening the
      passenger door of the truck and pulling the seat forward.

      The State proved Pals’ consent was voluntary under the totality of

the circumstances. See State v. Lane, 

726 N.W.2d 371, 378

 (Iowa 2007).

These factors include

      “personal characteristics of the [consenter], such as age,
      education, intelligence, sobriety, and experience with the
      law; and features of the context in which the consent was
      given, such as the length of detention or questioning, the
      substance of any discussion between the [consenter] and
      police preceding the consent, whether the [consenter] was
      free to leave or was subject to restraint, and whether the
      [consenter’s] contemporaneous reaction to the search was
      consistent with consent.”

Id.

 (quoting United States v. Va Lerie, 

424 F.3d 694, 709

 (8th Cir. 2005)

(emphasis added) (citation omitted)). Pals was forty-six years old with a

high school education.        He was sober and had no difficulties

communicating with Wubben. The twenty-minute traffic stop was not so

long as to result in duress. Pals’ behavior was consistent with consent,

including that he opened the vehicle doors and pulled the seat forward

for Wubben.    I agree with the court of appeals’ summary of the fairly
                                    33

benign interaction between Wubben and Pals leading up to the search of

his vehicle:

             Although Pals was subjected to a pat-down search and
      was in the police car when consent was given, the
      circumstances as a whole leave no doubt that his consent
      was voluntary. The encounter between Pals and Wubben
      was relatively brief and cordial. The two engaged in very
      amicable discussion, with most of the conversation being
      initiated by Pals. Pals sat in the front seat of the police car
      and was not in handcuffs. Wubben’s request for consent
      was completely devoid of any coercion, undue pressure, or
      threats. After providing consent, Pals opened the driver’s
      side door for Wubben. Accordingly, we conclude Pals’s
      consent was voluntary.

      I would hold Pals’ consent was voluntary under both the Fourth

Amendment and article I, section 8 of the Iowa Constitution.            The

framers of the Iowa Constitution chose to use virtually identical language

to duplicate the same constitutional protection against unreasonable

searches and seizures as the Fourth Amendment. State v. Nelson, 

231 Iowa 177, 185

, 

300 N.W. 685, 689

 (1941) (Mitchell, J., dissenting) (article

I, section 8 was the Fourth Amendment “reenacted” in Iowa to apply to

the state). Accordingly, we have long given these counterpart provisions

the same meaning; see also State v. Breuer, 

577 N.W.2d 41, 44

 (Iowa

1998) (“ ‘[T]he language of those clauses is substantially identical and we

have consistently interpreted the scope and purpose of article I, section

8, of the Iowa Constitution to track with federal interpretations of the

Fourth Amendment.’ ” (quoting State v. Showalter, 

427 N.W.2d 166, 168

(Iowa 1988))). Federal authorities are therefore persuasive in construing

our Iowa Constitution. See generally People v. Caballes, 

851 N.E.2d 26, 45

 (Ill. 2006) (reaffirming “limited lockstep” approach to construe search

and seizure provision of Illinois Constitution consistent with federal case

law); Robert F. Williams, The Law of American State Constitutions 194
                                       34

(2009) (The “clear majority” of “state courts decide to follow, rather than

diverge from, federal constitutional doctrine.”).

        The   majority   incorrectly   holds   Pals’   consent   under   these

circumstances cannot be considered voluntary under article I, section 8

of the Iowa Constitution for four reasons. First, Wubben gave Pals a pat-

down search and had Pals empty his pockets.             The majority cites no

authority holding a pat-down search of the driver renders his consent to

search his vehicle involuntary.        Courts have repeatedly held persons

subject to pat-down searches nevertheless voluntarily consented to

searches of their homes or vehicles. See, e.g., United States v. Pedroza,

269 F.3d 821, 827

 (7th Cir. 2001) (“[E]ven assuming that the pat-down

search was illegal . . . there was ample evidence that [the suspect’s]

consent to the search of his home and his [vehicle] resulted from an

independent act of free will and not from any exploitation of the

questionable pat-down search.”); United States v. Zubia-Melendez, 

263 F.3d 1155, 1163

 (10th Cir. 2001) (holding suspect’s consent to police

vehicle search voluntary despite prior frisk); United States v. Kikumura,

918 F.2d 1084, 1093

 (3d Cir. 1990) (finding suspect voluntarily

consented to a search of his glove compartment despite prior pat-down

search), overruled on other grounds by United States v. Grier, 

449 F.3d 558, 570

 (3d Cir. 2006).

        Second, the majority relies on the fact Pals gave his consent while

seated in the front seat of the squad car. The majority views this setting

as “inherently coercive,” relying on several commentators and the

decisions of just two other state appellate courts representing a minority

view. I disagree that sitting in the front seat of the squad car coerced

Pals.    As Judge Mansfield noted, “This factor alone is not sufficient,

however; otherwise, any consent given by a person in detention would be
                                    35

invalid.” The Supreme Court has made clear that even arrest does not

thwart what otherwise appears to be a valid subsequent consent. United

States v. Watson, 

423 U.S. 411, 425

, 

96 S. Ct. 820, 828

, 

46 L. Ed. 2d 598

, 609–10 (1976) (“[T]o hold that illegal coercion is made out from the

fact of arrest and the failure to inform the arrestee that he could

withhold consent would not be consistent with Schneckloth and would

distort the voluntariness standard that we reaffirmed in that case.”). Our

court likewise held that a defendant who is incarcerated may voluntarily

consent to a search of his vehicle. State v. Gates, 

260 Iowa 772

, 775–77,

150 N.W.2d 617

, 619–20 (1967).        If someone in jail can voluntarily

consent to a search of his car, so too can a citizen seated in a squad car.

      Placing a suspect on the back seat, where the car doors cannot be

opened from the inside, treats him like a prisoner. The front seat, where

Pals sat talking with Wubbens, is much less threatening. Citizens pulled

over for speeding or other traffic offenses routinely find themselves in the

front seat of a squad car. Wubben confronted Pals with fairly innocuous

infractions—violation of an ordinance prohibiting dogs at large and

failure to produce proof of insurance. They amicably talked through the

resolution of those matters.     The video shows no intimidation.       The

district court, upon viewing the DVD and hearing Wubben’s testimony in

person, found Pals’ consent to be voluntary. We give deference to the

district court’s credibility determination finding Pals’ consent was

voluntary. State v. Turner, 

630 N.W.2d 601, 606

 (Iowa 2001). The court

of appeals majority, viewing the same DVD, and Judge Doyle’s dissent all

agreed that “Wubben’s request for consent to search the truck was

completely devoid of any coercion, undue pressure, or threats, and that

Pals’s consent was voluntary.”     In State v. Reinders, three policemen

arriving in two squad cars accosted a pedestrian late at night under
                                     36

circumstances notably more coercive than Pals’ amiable daytime chat

with Wubben, yet this court unanimously found the consent search valid

under both the Fourth Amendment and article I, section 8 of the Iowa

Constitution.   

690 N.W.2d 78

, 82–84 (Iowa 2004).           Today’s holding

cannot be reconciled with Reinders.           We should follow our own

precedent, not a minority view expressed by courts in other states.

      Third, the majority relies on the fact Wubben did not advise Pals

he could say no and go. Controlling federal authority does not require

such statements. See, e.g., United States v. Drayton, 

536 U.S. 194, 207

,

122 S. Ct. 2105, 2113

, 

153 L. Ed. 2d 242, 255

 (2002) (“[A] presumption

of invalidity [does not] attach[] if a citizen consented [to a search] without

explicit notification that he or she was free to refuse to cooperate.

Instead, . . . the totality of the circumstances must control, without

giving extra weight to the absence of this type of warning.”); 4 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(i),

at 110–11 (4th ed. 2004) (“[V]alid consent may be established without a

showing that the police advised the consenting party of his Fourth

Amendment rights or that this party was otherwise aware of those

rights.”). Our own precedent does not require police to advise persons

they can say no to a request to search. Reinders, 

690 N.W.2d at 82

 (“An

individual’s response [to police questioning and requests to search] is

considered consensual, even though the person has not been advised

that he is free to refuse to respond.”). Further, Wubben asked to search

in a casual way: “Say you don’t have anything, any weapons or drugs or

anything like that in your vehicle, do you? Do you care if I take a look?”

Because Wubben phrased this as a question rather than a command,

Pals should have understood he could say no.
                                    37

      Today the majority acknowledges the Schneckloth v. Bustamonte

Court concluded it would be “thoroughly impractical,” 

412 U.S. 218

,

227–31, 

93 S. Ct. 2041

, 2048–50, 

36 L. Ed. 2d 854, 863

 (1973), to

require Miranda-type warnings for traffic-stop consent searches. Indeed,

the United States Supreme Court recently reiterated that “Miranda is to

be enforced ‘only in those types of situations in which the concerns that

powered the decision are implicated.’ Thus, the temporary and relatively

nonthreatening detention involved in a traffic stop or Terry stop does not

constitute Miranda custody.’ ”   Maryland v. Shatzer, 

599 U.S. ___

, ___,

130 S. Ct. 1213, 1224

, 

175 L. Ed. 2d 1045, 1058

 (2010) (quoting

Berkemer v. McCarty, 

468 U.S. 420, 437

, 

104 S. Ct. 3138

, 3148–49, 

82 L. Ed. 2d 317, 333

 (1984)) (other citation omitted).     There is no valid

reason to break from this precedent.

      The majority “reserve[s] for another day” the question whether to

impose a “per se requirement that police advise an individual of his or

her right to decline to consent to a search.” Yet, as a practical matter, by

holding Pals’ consent involuntary under the record in this case, the

majority today effectively invalidates any consent search following a pat

down or detention unless the suspect was first told he can say no and go.

      Our elected legislature, in its wisdom, can impose by statute a

requirement that police tell drivers they have a right to say no and go

when asked for permission to search the vehicle.       I do not believe we

should construe our state constitution to impose such a requirement

lacking in our prior precedent and settled Federal Fourth Amendment

caselaw.

      Finally, the majority finds the “lack of closure of the original

purpose of this stop makes the request for consent more threatening.” I

disagree.   Pals and Wubben had already talked through resolutions of
                                     38

the dog and insurance matters.       Even if their discussion fell short of

“closure,” Wubben made no suggestion of harsher treatment on those

minor infractions if Pals refused permission to search.

      Consent searches are an important law enforcement tool. Police,

with some regularity, capture large quantities of narcotics after the driver

gives permission to search his vehicle.       Common sense dictates that

persons traveling with contraband are more likely to refuse permission to

search if told they have the right to do so. I would not handicap our

police by imposing a de facto requirement to give such a warning during

pedestrian Terry stops or routine traffic stops.

      Pals’ consent would be found voluntary under our court’s

precedent and under the applicable Fourth Amendment decisions of the

United States Supreme Court.       I would honor stare decisis and apply

that precedent here to promote the predictability, legitimacy, and

stability of our state law.   See Kiesau v. Bantz, 

686 N.W.2d 164, 180

(Iowa 2004) (Cady, J., dissenting) (“It nearly goes without saying that the

doctrine of stare decisis is one of the bedrock principles on which this

court is built.   It is an important restraint on judicial authority and

provides needed stability in and respect for the law.”). We should not

diverge from well-settled Federal Fourth Amendment precedent unless

doing so is justified by differences in the text, structure, or history of the

Iowa provision. See generally State v. Schwartz, 

689 N.W.2d 430

, 438–

45 (S.D. 2004) (Konenkamp, J., concurring in result) (discussing need for

neutral divergence standards). No such grounds for divergence exist in

this case.
                                      39
      III. Deputy Wubben Did Not Impermissibly Expand the Scope
of His Investigation.
      The majority concludes Pals did not preserve for review the claim
Wubben improperly expanded the scope of his investigation by asking to

search without a reasonable suspicion. I will nevertheless address this

issue to respond to the majority’s dicta. The majority incorrectly asserts

federal courts are “divided” on this issue and overlooks controlling

Fourth Amendment decisions by the United States Supreme Court in the

last six years: Arizona v. Johnson, 

555 U.S. 323

, 333–34, 

129 S. Ct. 781, 788

, 

172 L. Ed. 2d 694, 704

 (2009); Muehler v. Mena, 

544 U.S. 93

, 100–

01, 

125 S. Ct. 1465

, 1471–72, 

161 L. Ed. 2d 299

, 308–09 (2005); Illinois

v. Caballes, 

543 U.S. 405, 410

, 

125 S. Ct. 834, 838

, 

160 L. Ed. 2d 842, 848

 (2005). The majority also fails to mention our decision in State v.

Smith, 

683 N.W.2d 542

, 546–48 (Iowa 2004), which is directly on point.

      I would adopt the well-reasoned court of appeals opinion that

applies this court’s decision in Smith, as well as Johnson, Muehler, and

Caballes       to   reject   Pals’   contention   that   Deputy    Wubben

unconstitutionally expanded the scope of his investigation by asking for

permission to search the vehicle. State v. Pals, 

2010 WL 447322

, **6–7

(Iowa Ct. App. 2010).

      This court unanimously decided Smith seven years ago. Smith is

dispositive.    Under Smith, and now-settled Federal Fourth Amendment

caselaw (Johnson, Mena, and Caballes), merely asking permission to

search is not a seizure. We could not hold Wubben unconstitutionally

expanded the scope of his investigation without overruling Smith. This

case involves no allegation of profiling (Pals is Caucasian)—a justification

other courts have relied on to prohibit police from expanding the scope of

their search absent reasonable suspicion. Nor does the record include
                                       40

any evidence of profiling by Iowa law enforcement.   There is no valid

reason to overrule Smith.

      V. Conclusion.

      For the foregoing reasons, I would affirm the decisions of the

district court and court of appeals.