IA: Failure to advise of right to refuse consent was important to totality determination of consent; declining to adopt per se rule, but almost

Failure to advise the defendant that he had a right to refuse to consent to a search of his car was an important factor under the state constitution [not a per se rule], and here led to a finding the search was not voluntary under the totality. State v. Pals, 805 N.W.2d 767 (Iowa Sup. 2011):

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.

. . .

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, many cases, and a number of consent decrees. In particular, use of minor traffic infractions as a springboard to consent searches has generated charges of abuse and racial profiling. 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 traffic stops. The consent decrees are variable. Some have prohibited law enforcement from seeking consent to search as a result of minor traffic infractions. Others have allowed consent searches if there is particularized suspicion. In some jurisdictions, reporting requirements have been imposed to inhibit the development of arbitrary police practices. In Iowa, one municipality has entered into a confidential settlement with the Iowa Civil Rights Commission related to alleged racial profiling in traffic stops. In addition to consent decrees, a number of jurisdictions have initiated limitations on consent searches pursuant to traffic stops as a matter of policy.

. . .

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).

. . .

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. Our analysis in 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. (footnotes omitted)