In State v. Bauler, the Iowa Supreme Court considered whether the U.S. or Iowa Constitutions were violated when a police canine momentarily touched the exterior of a vehicle during an open-air sniff for drugs.[1] This decision is the latest in a series of cases that have divided the court over the relationship between the Fourth Amendment and the Iowa Constitution’s search and seizure provision, Article I, Section 8.[2] Four separate opinions in this case help to define the Iowa Justices’ areas of agreement and disagreement concerning the meaning of Article I, Section 8.

In January 2021, an officer on highway patrol observed a vehicle driving under the speed limit in heavy traffic and ran its plates.[3] Upon doing so, she discovered that the registered owner, Kyra Rose Bauler, had a history of drug offenses.[4] The officer witnessed the car cross the centerline multiple times, ride along the fog line, and eventually take an exit off the highway.[5] The officer followed to make a stop and requested that another officer bring a canine to the scene due to suspected drug activity.[6] At the stop, officers confirmed that Bauler was driving and led the dog around her vehicle at least twice to conduct an open-air sniff, during which “[t]he dog’s paws touched the car’s exterior several times.”[7] After the dog alerted, officers searched Bauler’s car and found drugs and drug paraphernalia.[8]

Bauler was charged with two separate criminal violations arising from the presence of drugs in her vehicle: operating while intoxicated (OWI) and possession with intent to deliver more than five grams of methamphetamine.[9] She moved to suppress the evidence, arguing that the dog’s physical contact with her vehicle during the open-air sniff was a warrantless search in violation of the Fourth Amendment and Article I, Section 8 of the Iowa Constitution.[10]

Justice Edward Mansfield announced the judgment of the court in an opinion joined in full by Justice Thomas Waterman and Chief Justice Susan Christensen.[11] Beginning with the Fourth Amendment, Justice Mansfield concluded[12] that Illinois v. Caballes, which upheld the constitutionality of a dog sniff used to locate illegal substances at a lawful traffic stop,[13] was controlling and had not been undermined by United States v. Jones[14] or Florida v. Jardines.[15]

Next, Justice Mansfield addressed Bauler’s arguments under Article I, Section 8. Justice Mansfield wrote that, under the court’s decision in State v. Wright, a warrantless search violates Article I, Section 8 if it either conflicts with positive law, such as a statute or ordinance, or constitutes a “common law trespass.”[16] Bauler pressed a claim under only the latter theory.[17] While agreeing that the officer “technically committed a common law trespass” on Bauler’s car, Justice Mansfield wrote that it “makes no sense” to extend “common law concepts derived from human interactions” to dog sniffs,[18] especially because “[d]og sniffs do not go back that far in time.”[19] The court therefore declined to apply Wright’s trespass analysis to dog sniffs.

In a concurring opinion, joined in full by Justice David May and in part by Justice Dana Oxley, Justice Christopher McDonald separately addressed Bauler’s claim under Article I, Section 8.[20] In the sections on behalf of all three justices, Justice McDonald emphasized that the court’s decision in Wright had “declined to follow the Supreme Court’s Fourth Amendment jurisprudence and instead returned to a more textual and historically sound approach to search-and-seizure issues under the Iowa Constitution.”[21] Justice McDonald criticized the plurality opinion for “attempt[ing] to walk back this court’s independent approach to search-and-seizure jurisprudence,” contrary to the court’s recent decisions applying and interpreting Article I, Section 8—including subsequent decisions that “reaffirmed Wright in totality.”[22] Accordingly, Justice McDonald cautioned that, while “[c]ontrary to the plurality’s desire,” district courts are duty-bound to continue applying Wright’s “framework for evaluating claims under article I, section 8.”[23] Justice McDonald nevertheless concluded that while the dog-sniff was a “search,” the dog’s “quick and momentary touch” was not a trespass because it neither violated nor invaded Bauler’s right to possess her car.[24] Finally, in a brief section joined by only Justice May, Justice McDonald agreed with the plurality that Bauler’s Fourth Amendment claim was without merit.[25]

In a dissenting opinion, Justice Dana Oxley began by agreeing with the concurrence’s Article I, Section 8 analysis.[26] But in sections joined by Justice Matthew McDermott, she concluded that Bauler’s Fourth Amendment claim succeeded under the U.S. Supreme Court’s decisions in Jones and Jardines.[27] Specifically, Justice Oxley noted that Caballes was decided under the “reasonable-expectation-of-privacy” test—before Jones clarified that searches may also violate a “common-law trespassory test.”[28] Justice Oxley concluded that directing a dog to “jump up onto the outside of Bauler’s vehicle so he could smell the upper door areas” could not be distinguished from cases prohibiting officers from “touching or attaching something to the outside of a vehicle for the express purpose of obtaining information.”[29]

In a separate dissenting opinion, Justice McDermott concluded that the search violated Bauler’s rights under Article I, Section 8 of the Iowa Constitution.[30] Although Justice McDermott agreed with the plurality that Bauler’s claim failed under Wright’s positive law test,[31] he wrote that the search was nevertheless unlawful under Wright’s common-law trespassory test.[32] Specifically, Justice McDermott noted that the Restatement (Second) of Torts defines “trespass to chattel” as “intermeddling” with another’s property, which is in turn defined as “intentionally bringing about a physical contact.”[33] Accordingly, Justice McDermott concluded that the officer violated Article I, Section 8 by “guid[ing] the dog to enable it to climb onto the side of [Bauler’s] vehicle to sniff.”[34]

Together, these four opinions add definition to the court’s ongoing discussion about the meaning of Article I, Section 8. Although six justices agreed that the search did not violate Article I, Section 8, there was sharp disagreement over the rationale: three justices questioned whether Wright even applied to the dog sniff, while four justices emphasized Wright’s continuing application and the court’s independent approach to search and seizure. It is unclear to what degree those disagreements are being driven by the unique facts of recent cases: Wright and Burns raised thorny issues about abandonment because they involved warrantless searches of trash,[35] while Bauler involved a search technique that the plurality described as sui generis.[36]

 

 

[1] State v. Bauler, 8 N.W.3d 892 (Iowa 2024).

[2] See State v. Burns, 988 N.W.2d 352 (Iowa 2023); State v. Wright, 961 N.W.2d 396 (Iowa 2021).

[3] Bauler, 8 N.W.3d at 895.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 896.

[8] Id.

[9] Id.

[10] Id. at 896–97.

[11] Id. at 908.

[12] Id. at 899–902.

[13] 543 U.S. 405 (2005).

[14] 565 U.S. 400 (2012) (holding that warrantless installation of GPS device on vehicle was a “trespass” in violation of the Fourth Amendment).

[15] 569 U.S. 1 (2013) (holding that an officer’s warrantless entry onto a homeowner’s porch with a drug-sniffing dog violated the Fourth Amendment)

[16] Bauler, 8 N.W.3d at 903–05 (citing State v. Wright, 961 N.W.2d 396 (Iowa 2021)).

[17] Id. at 905.

[18] Id. at 906.

[19] Id. at 907.

[20] Id. at 908–09 (McDonald, J., concurring specially).

[21] Id.

[22] Id. at 909.

[23] Id.

[24] Id. at 912.

[25] Id. at 913.

[26] Id. at 914 (Oxley, J., dissenting).

[27] Id. at 914–15.

[28] Id. at 914.

[29] Id. at 921.

[30] Id. at 925 (McDermott, J., dissenting).

[31] Id. at 926.

[32] Id. at 926–27.

[33] Id.

[34] Id.

[35] Wright, 961 N.W.2d at 415; Burns, 988 N.W.2d at 361. Wright involved warrantless searches of garbage bags, and Burns concerned a discarded straw.

[36] Bauler, 8 N.W.3d at 906.

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