Parole and Consent Searches in Iowa

      The Iowa Supreme Court recently handed down a 116 page opinion (including concurrence and dissent) in State v. Baldon, addressing whether a parole agreement which contains a provision requiring the parolee to agree and consent to searches of him and his property at anytime constituted valid consent to search under Article 1, Section 8 of the Iowa Constitution.  In the lengthy but logical and well reasoned opinion, the Court found that such an agreement cannot be voluntary under Article 1, Section 8 of the Iowa Constitution to create a valid exception to the warrant requirement.   In reaching this conclusion the Court went through an extremely thorough analysis of the history of the Fourth Amendment of the United States Constitution and the cases addressing consent in that regard, as well as the historical underpinnings of Article 1, Section 8 and the cases addressing that constitutional provision.  The Court then ultimately decided that the parole agreements were to coercive in nature and therefore could not be used to excuse the warrant requirements of Article 1, Section 8 of the Iowa Constitution.
      In this authors opinion, the most interesting part of this opinion was the concurrence authored by Justice Apple wherein he reviews at depth the right, power, and duty of the Iowa Supreme Court to apply their own interpretation of the Iowa Constitution and depart from the holdings of the United States Supreme Court.  Justice Apple's position as it relates to interpreting the Iowa Constitution is best summarized when he stated "the notion that member of the United States Supreme Court have some kind of superior wisdom that we must show deference to when interpreting provisions of the Iowa Constitution is doubtful at best." After reading this concurrence, one becomes hard pressed to argue that this is not the correct decision.
      The Iowa Supreme Court needs to be applauded for this well thought out, researched, and reasoned opinion.  This opinion is so well written and contains so much history surrounding State and Federal Constitutions that it should be required reading for all attorneys, law students, and citizens of Iowa.  To read the full opinion click here.

Wife Can't Consent to Search Where Husband Objects

An estranged and allegedly battered wife cannot consent to the search of the family residence when the husband objects and demands that law enforcement obtain a search warrant.

On May 29th, the Iowa Court of Appeals in State v. Jackie Brandon followed the United States Supreme Court's decision in Georgia v. Randolph in holding that the consent to search by one occupant of a residence could not override a specific refusal to consent of another occupant or owner who is present on the property to be searched. According to Justice Zimmer, Mr. Brandon's inquiry of the officers as to whether or not they had a search warrant was a sufficient challenge to the officers authority to remain in the residence. Their subsequent actions in placing Mr. Brandon under arrest and removing him from the residence clearly established that any further objection or inquiry regarding the need for a search warrant would have been futile. Thus, Mr. Brandon's question as to whether or not the officer's had a search warrant was sufficient to establish that he objected to the search of his residence.

It is important to note however that in different circumstances, a mere question as to whether or not a search warrant was obtained may not always be sufficient to establish the "express refusal of consent" required by Georgia v. Randolph. When law enforcement seeks to conduct a search and a person wants to voice an objection, using manners and being polite is not necessarily advised. The individual should be clear and forceful with the language used to express their objection to the search. While physical resistance is unacceptable, a profanity laced objection never fails to get the point across.

In conclusion, probably the best part of the Court of Appeals decision in Brandon is the fact that one of the officers was caught lying and the Court of Appeals felt it important enough to note and publish. Often times these "misstatements" by law enforcement get swept under the rug. Not this time. Justice Zimmer stated: "Deputy Alan Johannes testified at the suppression hearing. Initially he testified that the defendant was in jail when Terri gave her consent to search the Brandon's home. However, after being shown documents that clearly revealed the defendant was not in custody, the deputy recalled that Brandon was present in the living room of his home when deputies arrived to conduct a search."

The full opinion can be found at http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20080529/8-243.pdf