State of Iowa v. Andrew Jay Porter

In the Iowa Supreme Court

No. 24–1254

Submitted December 16, 2025—Filed March 27, 2026

State of Iowa,

Appellee,

vs.

Andrew Jay Porter,

Appellant.

Appeal from the Iowa District Court for Polk County, Scott J. Beattie,

judge.

Discretionary review from the denial of the defendant’s motion to suppress

evidence obtained allegedly in violation of his constitutional right to be free from

unreasonable searches. Affirmed.

McDonald, J., delivered the opinion of the court, in which Christensen,

C.J., and Waterman, Mansfield, and May, JJ., joined. McDermott, J., filed a

dissenting opinion, in which Oxley, J., joined.

David V. Newkirk (argued) of Branstad & Olson Law Office, Des Moines,

for appellant.

Brenna Bird, Attorney General, and Nicholas E. Seifert (argued), Assistant

Attorney General, for appellee.  2

McDonald, Justice.

Andrew Porter was in the right place but at the wrong time. He arrived at

his longtime friend’s house early one morning at the same time peace officers

were surveilling the house as a suspected drug house. The peace officers

observed Porter arrive, and they watched him enter the house carrying a

backpack. Shortly after Porter arrived, the officers breached the house and

executed a premises warrant to search for evidence of controlled substances. As

part of the search of the house, the officers searched the backpack Porter had

carried into the home. They found methamphetamine and marijuana inside the

backpack. Porter was arrested and charged with several drug offenses. He moved

to suppress evidence of the drugs found in the backpack. The district court

denied the motion, and we granted Porter’s application for discretionary review.

The question presented in this case is whether the federal or state constitutional

right to be free from unreasonable searches prohibits peace officers executing a

search warrant from searching a backpack on the premises capable of containing

evidence identified in the search warrant. On our de novo review, see State v.

Amble, 22 N.W.3d 265, 270 (Iowa 2025), we conclude the answer is no.

I.

During the months of September and October 2023, the Mid-Iowa

Narcotics Enforcement Task Force developed probable cause to believe that

methamphetamine and other controlled substances were being dealt out of a

house at 3601 Woodland Avenue in Des Moines. The house was owned by Four

Seasons Apartments LLC, but it was rented or occupied by George Civitate. On

three separate occasions in October 2023, peace officers used a confidential

informant to conduct controlled buys inside the house at 3601 Woodland  3

Avenue. On each occasion, the informant entered the house, purchased

methamphetamine in the living room of the house, and then left the house.

Based on the task force’s surveillance of the house, Officer Brad Frick

applied for a search warrant to search the premises for evidence relevant to the

use and distribution of controlled substances. The application stated, “Based on

the above-described investigation, . . . it is this affiant’s belief that items of

evidence listed and sought by this warrant and which are relevant to the use

and/or distribution of controlled substances will be found at the following

locations . . . 3601 Woodland Ave., Des Moines . . . .” The application provided a

thorough physical and legal description of 3601 Woodland Avenue, including a

map of the relevant area and a picture of the house. The application further

stated that Officer Frick knew, based on his training and experience, that the

activity observed at the house was “consistent with the ongoing use and/or

distribution of illegal drugs, specifically, methamphetamine, utilizing 3601

Woodland Ave,[] Des Moines.” In addition to searching the premises, the

application sought additional authority to search Civitate’s person and any

vehicles on the premises owned by or connected to Civitate.

A neutral and detached magistrate issued a premises search warrant for

3601 Woodland Avenue. The magistrate found “probable cause to believe that

the Items Sought are located in the places indicated and that the information

provided justifie[d] the issu[ance] of a search warrant.” The search warrant

commanded law enforcement officials to “make an immediate search of such

property” and take any evidence into custody. The warrant also commanded the

officers “to make immediate search of the described place, persons, and vehicles

for the specified property” and to “seize the specified property if found.”  4

The task force planned to execute the warrant on the morning of

November 2. Officer Frick led the search warrant team. He arrived at 3601

Woodland Avenue early that morning to conduct surveillance. At approximately

7:55 a.m., Officer Frick observed Porter arrive at the house in a red car. Officer

Frick observed Porter exit the vehicle, carrying a gray duffel bag, a blue

backpack, and a blanket. Porter also had a dog with him. Porter entered the

residence through the back door.

The assembled law enforcement officers executed the search warrant

approximately forty minutes after Porter entered the house. They knocked on the

door and announced their presence. Receiving no response, they breached the

door and entered the house. They found Civitate and Porter in the living room.

The backpack Porter had carried into the house was positioned in the corner of

the living room, outside of Porter’s immediate proximity and reach. After the

officers placed Porter in handcuffs, they sat him on the couch. Another

individual, Jennifer Spieker, was located upstairs. The officers detained Civitate,

Porter, and Spieker in the living room, provided them copies of the search

warrant, and advised them of their Miranda rights. By this time, the peace

officers had learned that Porter was on parole for controlled substances offenses

and had an outstanding parole warrant. They were thus going to arrest him

regardless of what the premises search revealed.

At approximately 9 a.m., officers took Porter outside to question him in a

police van parked in front of the house. When an officer asked Porter why he had

come to the house that morning, Porter explained that he had come to play

drums with his longtime friend Civitate. When asked what he had “come here

with,” Porter mentioned only a gray duffel bag with “dog stuff” in it. An officer

asked about the backpack. Porter responded, “I don’t know about that.” When  5

an officer stated that he saw Porter enter the house with the backpack, Porter

denied ownership. After a couple of minutes, Porter asked to end the interview.

The officers respected his request, and they escorted Porter back into the house

and sat him on a couch in the living room, handcuffed.

While Porter was seated on the couch, the task force continued to search

the house. One officer approached the blue backpack and asked, “Whose bag is

this?” The officer asked Porter directly if it was his backpack, and Porter shook

his head from side-to-side, indicating “no.” An officer continued, “Does it have

your inhaler in it?” Porter said, “No.” The officer asked, “Just drugs?” “I don’t

know none of that,” Porter responded. The officer then searched a jacket draped

over the backpack and found a cellphone in the pocket. Porter acknowledged the

cellphone was his. The officer then searched the backpack. He found

approximately seventy-eight grams of methamphetamine packaged in seven

separate baggies, marijuana, and drug paraphernalia. In addition to the drugs

found in the backpack, the task force found additional methamphetamine in the

living room where the officers first observed Porter as they entered the house.

Porter was arrested and charged with conspiracy to deliver a controlled

substance, methamphetamine, enhanced, in violation of Iowa Code

section 124.401(1)(b)(7) (2023); possession of a controlled substance,

methamphetamine, with intent to deliver, enhanced, in violation of Iowa Code

section 124.401(1)(b)(7); failure to possess a drug tax stamp, in violation of Iowa

Code sections 453B.3 and 453B.12; and possession of a controlled substance,

marijuana, enhanced, in violation of Iowa Code section 124.401(5).

Porter filed a motion to suppress evidence obtained from the search of his

backpack. He claimed that the search of the backpack violated his constitutional

right to be free from unreasonable searches as protected by the Fourth  6

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

Constitution. After reviewing the bodycam footage and hearing testimony from

two of the officers involved in executing the warrant, the district court denied

Porter’s motion to suppress evidence. We granted discretionary review to assess

Porter’s federal and state constitutional claims.

II.

The Fourth Amendment provides, “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

The United States Supreme Court holds that the Fourth Amendment applies to

the states and state actors via the Due Process Clause of the Fourteenth

Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also State v. Pickett,

573 N.W.2d 245, 247 (Iowa 1997).

On its face, the Fourth Amendment does not require government officials

to obtain warrants prior to conducting a search for evidence of criminal

wrongdoing. “What it explicitly states regarding warrants is by way of limitation

upon their issuance rather than requirement of their use.” California v. Acevedo,

500 U.S. 565, 581 (1991) (Scalia, J., concurring in the judgment). Nonetheless,

the Supreme Court holds that government officials looking for evidence of

criminal activity must obtain a warrant prior to conducting a search.

Carpenter v. United States, 585 U.S. 296, 316 (2018). The Supreme Court further

holds that warrantless searches for evidence of crime are unreasonable within

the meaning of the Fourth Amendment and thus unconstitutional unless the

search falls within an exception to its warrant requirement. Id. at 316–17;  7

Flippo v. West Virginia, 528 U.S. 11, 13–14 (1999) (per curiam) (“A warrantless

search by the police is invalid unless it falls within one of the narrow and well-

delineated exceptions to the warrant requirement . . . .” (citation omitted)). The

word “search” is a term of art within the Supreme Court’s Fourth Amendment

jurisprudence. Whether a search has occurred is a threshold test the Court uses

to determine whether government officials needed to obtain a warrant prior to

obtaining the evidence of criminal wrongdoing. See Carpenter, 585 U.S. at 304.

As relevant here, a constitutional search occurs only when government officials

intrude into an area or an effect where a person has a reasonable expectation of

privacy. See id; Minnesota v. Carter, 525 U.S. 83, 91–92 (1998) (Scalia, J.,

concurring) (explaining that the expectation-of-privacy-test is a “threshold

question whether a search or seizure covered by the Fourth Amendment has

occurred”).

The parties’ arguments in this case center on the threshold question of

whether the peace officers searched the backpack within the meaning of the

Fourth Amendment. The State contends that there was no search here and no

warrant was required. It argues that Porter had no reasonable expectation of

privacy in the backpack because he abandoned it when he denied owning it or

having any knowledge of it. See State v. Bumpus, 459 N.W.2d 619, 625 (Iowa

1990). Porter maintains there was a constitutional search here and that a

warrant was required. Porter insists that he had a reasonable expectation of

privacy in the backpack because he did not abandon it for Fourth Amendment

purposes despite denying ownership or knowledge of it. Porter argues that to the

extent he abandoned the backpack he was effectively compelled to do so because

of the coercive circumstances involved in the search of the house.  8

By focusing on whether a Fourth Amendment “search” occurred and

whether a warrant was required, the parties have made a category error. The

abandonment doctrine addresses whether a person retains a reasonable

expectation of privacy in property the person has disclaimed, but that doctrine

matters only when the government conducts a warrantless search and must

justify its actions through an exception to the warrant requirement. Here, the

officers were not acting without a warrant; they were executing one. The relevant

question is not whether Porter retained a privacy interest in the backpack

requiring the issuance of a warrant, but whether the backpack fell within the

scope of the warrant the magistrate had already issued. The parties have thus

mistakenly treated this case as a warrantless-search case when it is a scope-of-

the-warrant case.

Arizona recently dealt with the same category error problem in State v.

Garcia-Loera, No. 2 CA–CR–2018–0220, 2019 WL 3491230, at *2–4 (Ariz. Ct.

App. July 31, 2019). In that case, the defendant was charged with various drug

offenses after police officers found heroin and drug paraphernalia in the

defendant’s purse while executing a premises search warrant of a mobile home

where she was a guest. Id. at *1. The defendant moved to suppress the evidence.

Id. at *2. She argued that the search of her purse was a warrantless search. Id.

at *3. The court rejected that framing of the legal issue and concluded the proper

legal issue was whether “the search of the purse was proper because it was

within the scope of the premises warrant.” Id. The court concluded that the

search of the purse was within the scope of the premises warrant because the

purse was a container not in the defendant’s physical possession capable of

containing evidence identified in the warrant. Id. at 4 (“Under the premises

search warrant, officers could search all containers in the mobile home in which  9

the items sought—including marijuana, money, and weapons—could be found.

Because there was no evidence establishing that [the defendant’s] purse was in

her possession when the SWAT team entered the mobile home, officers could

search the purse pursuant to the warrant.” (citation omitted)).

As in Garcia-Loera, we do not focus on whether the peace officers needed

to obtain a search warrant since they already had one; instead, we focus on the

relevant question of whether the search of the backpack was within the scope of

the premises warrant.1 On this issue, it is Porter’s burden to prove the officers

exceeded the scope of the warrant. See State v. Farber, 314 N.W.2d 365, 367

(Iowa 1982) (en banc) (noting the burden of proof is on the defendant challenging

the execution of the search warrant); State v. Garrett, 183 N.W.2d 652, 656 (Iowa

1971) (holding the defendant carries the burden of proof to show the search

warrant was invalidly issued or evidence was illegally obtained with the warrant).

This rule follows from the presumption of regularity that arises out of the fact

that a neutral and detached magistrate has already determined that probable

cause existed to search for evidence of criminal wrongdoing. State v. Walker, 258

P.3d 1228, 1236 (Or. 2011) (en banc).

Porter has failed to carry his burden of establishing the peace officers’

search of the backpack fell outside the scope of the premises warrant. The

issuing magistrate found there was probable cause to search the premises at

3601 Woodland Avenue, and the magistrate commanded the officers to “make

an immediate search of such property” to obtain evidence of controlled

1As this court unanimously explained last term, the court has an independent duty to

correctly state the law despite the parties’ arguments and concessions. See Christensen v. Iowa Dist. Ct., 21 N.W.3d 529, 532 (Iowa 2025) (“[F]or courts to proclaim a governing legal precedent based on an adverse party’s concession on a point of law creates a significant risk of establishing a bad law, and all the more so when the concession is inferred solely based on the adverse party’s failure to argue the point.” (alteration in original) (quoting Art & Antique Dealers League of Am., Inc. v. Seggos, 121 F.4th 423, 438 (2d Cir. 2024))).  10

substances and controlled substances distribution. Pursuant to the instructions

in the premises warrant and the Code, the law enforcement officials executing

the warrant were legally required to search anything on the premises at the time

of execution that could contain evidence and “[t]o prevent the disposal or

concealment of any property subject to seizure described in the warrant.” Iowa

Code § 808.7(2).

The search of the backpack pursuant to the premises warrant and the

Code did not violate the Fourth Amendment. The magistrate issued the premises

warrant based “upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized” as the Fourth Amendment requires. U.S. Const. amend. IV. “A lawful

search of fixed premises generally extends to the entire area in which the object

of the search may be found and is not limited by the possibility that separate

acts of entry or opening may be required to complete the search.” United States v.

Ross, 456 U.S. 798, 820–21 (1982). A premises warrant “that authorizes an

officer to search a home for illegal weapons also provides authority to open

closets, chests, drawers, and containers in which the weapon might be found. A

warrant to open a footlocker to search for marihuana would also authorize the

opening of packages found inside.” Id. at 821. When law enforcement officers

execute a premises warrant, “nice distinctions between closets, drawers, and

containers, in the case of a home . . . must give way to the interest in the prompt

and efficient completion of the task at hand.” Id. The Supreme Court has made

clear that this “rule applies equally to all containers.” Id. at 821–22. The rationale

for the rule “is not that the owner of the property is suspected of crime but that

there is reasonable cause to believe that the specific ‘things’ to be searched for

and seized are located on the property to which entry is sought.” Wyoming v.  11

Houghton, 526 U.S. 295, 302 (1999) (quoting Zurcher v. Stanford Daily, 436 U.S.

547, 556 (1978)).

The Supreme Court has created an exception to the broad scope of a

premises warrant: government officials executing a premises warrant are not

allowed to search the persons of mere visitors who happen to be present at the

time the warrant is executed. The leading case is Ybarra v. Illinois, 444 U.S. 85

(1979). In that case, the police obtained a warrant to search a tavern and its

bartender based on probable cause that the bartender was engaged in the sale

of heroin on the premises. Id. at 88. When the officers arrived at the

establishment to execute the warrant, they patted down and frisked the

customers present at the tavern, including Ybarra. Id. After conducting two pat-

downs and frisks of Ybarra, the officers found a cigarette pack on his person that

contained six tinfoil packets of heroin. Id. at 88–89. The Supreme Court held

that the search was unconstitutional. Id. at 96. “[A] person’s mere propinquity

to others independently suspected of criminal activity does not, without more,

give rise to probable cause to search that person.” Id. at 91. When executing a

premises warrant, “a search . . . of a person must be supported by probable

cause particularized with respect to that person.” Id.

Although Ybarra addressed only the search of a person’s body, its rationale

extends to items in the person’s physical possession. By physical possession, we

mean that the person is holding, wearing, or carrying the item. When a person

holds, wears, or carries an item, a search of that item is functionally a search of

the person. The intrusion is comparable because the officer must approach the

person, interact with the person’s body or immediate space, and examine

something the person controls. For this reason, items in the physical possession

of a person are extensions of the person for purposes of the Ybarra exception.  12

See State v. Scullark, 23 N.W.3d 49, 57 (Iowa 2025) (“We conclude that because

the fanny pack was attached to his person at the time of the arrest, this is a

search of the person . . . .”); see also Curd v. City Ct., 141 F.3d 839, 843 (8th Cir.

1998) (concluding that personal items like bags, purses, and wallets are

“immediately associated” with the person); United States v. Graham, 638 F.2d

1111, 1114 (7th Cir. 1981) (“Containers such as [clothing pockets, purses, or

shoulder bags], while appended to the body, are so closely associated with the

person that they are identified with and included within the concept of one’s

person.”); State v. Andrews, 549 N.W.2d 210, 215 (Wis. 1996) (“This proscription

against search of the person of an individual whose search is not specifically

authorized in the warrant has been expanded to bar searches of items worn by

or otherwise ‘in the immediate possession of’ a person because those items are

considered extensions of the person.”).

This limited exception is not applicable here. When the task force entered

the house, the backpack was in the corner of the living room, several feet from

where Porter was positioned on the floor. Porter never held, wore, or carried the

backpack during the execution of the warrant. Indeed, he repeatedly disclaimed

any connection to it. Under these circumstances, the backpack was no different

from any other container on the premises, and the peace officers were authorized

to search it pursuant to the premises warrant.

We decline to extend the Ybarra exception to personal effects or other items

on the premises that may belong to a person not identified in the search warrant

but not in the physical possession of that person. First, there is a qualitative

difference between the search of a person and an unattended effect. A search of

the person requires physical contact with or, at a minimum, close physical

intrusion upon the human body. Such searches can be degrading in ways that  13

opening a container simply is not. Because “searches of a person involve a higher

degree of intrusiveness, [they] require justification in addition to that provided

by the probable cause that supports a premises warrant.” State v. Gilstrap, 332

P.3d 43, 46 (Ariz. 2014). But this rationale does not extend to personal effects

not in the physical possession of a person. The search of such an item, while still

a search, is qualitatively less intrusive and does not require the particularized

probable cause that Ybarra demands. As we explained in State v. Scullark,

searches of a “person are treated differently from a search” of other areas or

items. 23 N.W.3d at 55.

Second, the physical-possession rule follows from the probable cause

determination made in support of issuing a premises warrant. The constitutional

text requires that a warrant “particularly describ[e] the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV. A premises warrant

satisfies this requirement by identifying a specific location and the evidence

expected to be found at that location. The magistrate’s probable cause finding is

directed to the place and not any particular person or persons who may be

present when the warrant is executed. The magistrate need not know, and

typically will not know, who will be on the premises or what containers will be

present. What matters is that there is probable cause to believe the specified

evidence may be found at the specified location. A premises warrant issued to

find evidence of controlled substances in a house thus “permits the police to

search everywhere in the house, because ‘everywhere’ is where the contraband

may be hidden.” United States v. Bishop, 910 F.3d 335, 336–37 (7th Cir. 2018).

This necessarily includes containers on the premises capable of concealing the

objects of the search, regardless of who owns them. A backpack in the corner of

the room not in the physical possession of any person is simply another  14

container on the premises legally undifferentiated for Fourth Amendment

purposes from closets, drawers, or any other repository within the scope of the

warrant. See Ross, 456 U.S. at 821.

Third, the conclusion that the scope of the warrant includes any personal

effects not in the physical possession of a person not identified in the warrant is

supported by Iowa caselaw. Iowa appellate decisions have repeatedly held that

the Fourth Amendment does not require peace officers executing a premises

warrant to obtain separate warrants for each separate thing on site that could

contain evidence of criminal wrongdoing as identified in the warrant. See, e.g.,

State v. Stockman, No. 20–1360, 2022 WL 109183, at *6–7 (Iowa Ct. App.

Jan. 12, 2022) (holding that “officers were authorized to search [the defendant’s]

purse found in the master bedroom where she was located when the search

commenced” because “[s]uch search was lawful under the Fourth Amendment”);

State v. Barbosa-Quinones, No. 08–1830, 2009 WL 4111127, at *7 (Iowa Ct. App.

Nov. 25, 2009) (“[T]he defendant’s purse was an item that could be searched, as

it was in the residence to be searched where the defendant lived and could have

reasonably concealed items of the kind portrayed in the warrant.”); State v.

Fisher, No. 99–1098, 2000 WL 1724552, at *4 (Iowa Ct. App. Nov. 20, 2000)

(“[U]nder the warrant, police could search all places small enough to conceal

matches. . . . Because of the small items detailed in the warrant, the officers

could legitimately conduct a thorough search of [the defendant’s] room and all

of its contents.”); Munz v. State, 382 N.W.2d 693, 699 (Iowa Ct. App. 1985)

(“[E]ven if the warrant-executing officers did in fact search jars and canisters of

foodstuffs, as [the defendant] alleges, these were legitimate locations to be

searched given the size of the objects [(photographs)] to be seized.”).  15

Finally, our conclusion is supported by persuasive authorities from other

jurisdictions that have considered the same issue. The Arizona Supreme Court’s

decision in State v. Gilstrap is particularly instructive. 332 P.3d 43. There, police

executing a premises warrant searched a visitor’s purse that was not in her

physical possession. Id. at 44. The court held the search was within the scope of

the warrant. Id. at 47. The court explained that the physical-possession test

“aligns with the Supreme Court’s decisions in Ybarra and Wyoming v. Houghton”

because “Ybarra limits the principle that a premises warrant authorizes police

to search any item that might contain the object of the search by holding that

the warrant does not authorize the search of a person it does not name.” Id. at

46. The court further observed that the physical-possession test is simple,

precise, and offers better guidance to law enforcement than alternative

approaches. Id.

Other state courts agree. See Commonwealth v. Reese, 549 A.2d 909, 911

(Pa. 1988) (“[T]he police are not prohibited from searching a visitor’s personal

property (not on the person) located on premises in which a search warrant is

being executed when that property is part of the general content of the premises

and is a plausible repository for the object of the search.”); State v. Merritt, 567

S.W.3d 778, 783 (Tex. Ct. App. 2018) (adopting physical-possession test);

Andrews, 549 N.W.2d at 218 (“[P]olice can search all items found on the premises

that are plausible repositories for objects named in the search warrant, except

those worn by or in the physical possession of persons whose search is not

authorized by the warrant, irrespective of the person’s status in relation to the

premises.”).

Federal circuit courts have reached the same conclusion. See United

States v. Gonzalez, 940 F.2d 1413, 1420 (11th Cir. 1991) (holding that a  16

premises warrant authorized the search of a visitor’s briefcase because the

briefcase “could easily contain” items sought in warrant); United States v.

Johnson, 475 F.2d 977, 979 (D.C. Cir. 1973) (holding that a visitor’s purse on a

coffee table was within the scope of the premises warrant because the purse “was

not being ‘worn’ by appellee and thus did not constitute an extension of her

person”); United States v. Teller, 397 F.2d 494, 497–98 (7th Cir. 1968) (holding

that a purse placed on a bed was “merely another household item subject to the

lawful execution of the search warrant” once the owner set it down and left the

room).

For the reasons set forth above, we hold that during the execution of a

premises search warrant, the search of an item capable of containing the objects

of the search and not in the physical possession of a person is within the scope

of the warrant and that such search is not prohibited by the Fourth Amendment.

III.

Having resolved Porter’s federal constitutional claim, we next address his

state constitutional claim. Article I, section 8 provides that “[t]he right of the

people to be secure in their persons, houses, papers and effects, against

unreasonable seizures and searches shall not be violated; and no warrant shall

issue but on probable cause, supported by oath or affirmation, particularly

describing the place to be searched, and the persons and things to be seized.”

Iowa Const. art. I, § 8. The text of article I, section 8 is materially

indistinguishable from the Fourth Amendment to the Federal Constitution. That

fact “does not compel us to follow the construction placed on the language by

the United States Supreme Court.” State v. Mumford, 14 N.W.3d 346, 349 (Iowa

2024) (quoting State ex rel. Kuble v. Bisignano, 28 N.W.2d 504, 508 (Iowa 1947)).  17

Porter relies on State v. Brown, 905 N.W.2d 846 (Iowa 2018), in support of

his argument that the search of the backpack was in violation of the state

constitution. In Brown, the defendant was visiting a residence that was subject

to a narcotics search warrant. Id. at 847. The defendant was not named in the

warrant, but she was present at the house when the officers arrived to execute

it. Id. The officers found the defendant and others in a room having recently

smoked methamphetamine and detained them. Id. at 847, 850. The defendant’s

purse was located directly in front of her when she was detained. Id. at 849. The

officers searched the purse and found the defendant’s identification and some

marijuana. Id. at 847, 850. Brown never denied it was her purse. Id. This court

acknowledged that “the general rule is that a valid search warrant authorizing a

search includes the right to search a container found on the premises.” Id. at

848. Nonetheless, this court held that the search of her purse violated article I,

section 8, based on a theory of constructive possession. Id. at 855. (“In order to

avoid unconstitutional[ity], any test based on possession must, at a minimum,

also include within its scope property that is not in the actual possession of the

unnamed person but is constructively possessed by the person.”).

The Brown majority committed a category error by framing that case as a

warrantless-search case. Id. at 854. Like this case, Brown was not a warrantless-

search case. Instead, it was a case involving the scope of a search warrant. See

id. at 847. Indeed, the three-justice dissent concluded that Brown did not meet

her burden of proof to show that the purse was outside the scope of the premises

search warrant. Id. at 858 & n.6 (Waterman, J., dissenting, joined by Mansfield

and Zager, JJ.). The Brown majority’s error was predicated on a fundamental

misunderstanding of search warrants. The search warrant issued in that case

was a premises warrant. See id. at 847 (majority opinion). Under that type of  18

warrant, the scope of a lawful search is “defined by the object of the search and

the places in which there is probable cause to believe that it may be found.”

Maryland v. Garrison, 480 U.S. 79, 84 (1987) (quoting Ross, 456 U.S. at 824).

Even though the constitution protects “the owner of every container that

conceals its contents from plain view,” Ross, 456 U.S. at 822–23, “[a] container

that may conceal the object of a search authorized by a warrant may be opened

immediately; the individual’s interest in privacy must give way to the magistrate’s

official determination of probable cause” with respect to the place to be searched,

id. at 823. But the Brown court ignored this black letter law and instead treated

the probable cause determination as extending only to the specific person

identified in the warrant. 905 N.W.2d at 853 (“[A] search of the possessions of a

third party at a residence is unconstitutional when the warrant does not support

probable cause to search that particular person . . . .”); id. at 854 (discussing the

“problematic nature of basing a search of Brown’s purse on a warrant that did

not establish probable cause to search her belongings”).2

Setting aside the category error, Brown does not entitle Porter to any relief

on his state constitutional claim as this case is distinguishable from Brown in

two respects. The first is the location of the backpack in relation to Porter. Brown

appears to be a case where the defendant was in actual possession of the purse

at the time the police entered the residence to execute the warrant. Brown argued

that a photograph from the scene showed the purse right beside her, which made

it an extension of her person. Id. at 849. The state conceded that a photograph

showed Brown handcuffed and on her knees with the purse on the floor directly

2The dissent makes the same error as the Brown court regarding search warrant law, wholly ignoring the Supreme Court’s opinions regarding the basis for obtaining and the scope of items to be seized pursuant to a search warrant as articulated in United States v. Ross, 456 U.S. at 820, Wyoming v. Houghton, 526 U.S. at 302, and Maryland v. Garrison, 480 U.S. at 84, none of which are discussed or cited in the dissent.  19

in front of her knees. Id. at 850. And the Brown court concluded that the search

of Brown’s purse was a prohibited search of her person. Id. at 852–54. In

contrast, Porter was not in physical possession of the backpack when the police

entered the house to execute the warrant or at any other time while the police

were executing the warrant. Indeed, the backpack was not even in his immediate

proximity. The bodycam footage shows the backpack was in the corner of the

living room far outside of Porter’s reach. Under these circumstances, the search

of the backpack could not be considered a prohibited search of his person or the

search of something in his constructive possession.

Second, even if we were to treat this as a warrantless search case involving

a threshold test relating to Porter’s expectation of privacy in the backpack, as in

Brown, the State correctly argues that Porter abandoned the backpack for the

purposes of the Fourth Amendment and article I, section 8 when he repeatedly

disclaimed any knowledge of or possessory interest in the backpack. See United

States v. Williams, 669 F. Supp. 3d 8, 21 (D.D.C. 2023) (“As [the officer]

approached the backpack but before he searched it, he asked [the defendant],

‘Is this your backpack right here?’ [The defendant] replied, ‘Nah.’ . . . By denying

to [the officer] that the backpack was his, [the defendant] disclaimed the

backpack and forfeited his expectation of privacy in it.” (citations omitted));

State v. Huffman, 820 P.2d 329, 331 (Ariz. Ct. App. 1991) (“A denial of

ownership, when questioned, constitutes abandonment.”); State v. Nabarro, 525

P.2d 573, 576 (Haw. 1974) (“Personal belongings brought by their owner on a

visit to a friend’s house retain their constitutional protection until their owner

meaningfully abdicates control or responsibility.”); People v. Hejka, 303 N.E.2d

433, 439 (Ill. App. Ct. 1973) (“[W]hen [the defendant] relinquished the bag he

also relinquished whatever standing he might otherwise have had to challenge  20

the legality of a subsequent search of the envelope.”); King v. State, 987 So. 2d

490, 493 (Miss. Ct. App. 2008) (“When [the defendant] denied ownership of the

box, he relinquished the ability to object to its search and seizure.”);

Commonwealth v. Wall, No. 974 EDA 2014, 2016 WL 1082773, at *2 (Pa. Super.

Ct. Mar. 18, 2016) (“[W]hen [the defendant] chose not to assert his ownership of

the bag when questioned directly, he thereby failed to demonstrate an attempt

to preserve the bag and its contents as private . . . [and] voluntarily relinquished

his interest in the bag . . . .” (citation omitted)); State v. Fournier, 448 A.2d 1230,

1233 (R.I. 1982) (“In the present case, the jacket had been abandoned because

defendant had disclaimed ownership of it. Under such circumstances, defendant

has no standing to challenge the search.”); Marshall v. State, No. 05–11–01591–

CR, 2013 WL 1281891, at *8 (Tex. Ct. App. Mar. 22, 2013) (“Because appellant

disclaimed any ownership, if there was no police misconduct to force him to deny

the suitcase, then there was no unlawful search.”); Robinson v. Commonwealth,

No. 0521–97–1, 1998 WL 49076, at *2 (Va. Ct. App. Feb. 10, 1998) (“When

questioned regarding the bag, he disclaimed ownership. When [the officer] stated

that because no one owned the bag, she was going to examine its contents, [the

defendant] did not object. [He] thus manifested a lack of expectation of privacy

in the bag and abandoned it for Fourth Amendment purposes.”); Andrews v.

State, 40 P.3d 708, 713 (Wyo. 2002) (“[The defendant’s] words and actions

demonstrated that he disavowed any ownership or interest in the bag. The

framers of the United States and Wyoming constitutions and the citizens who

ratified them surely did not intend that a defendant could unequivocally

renounce any interest in the property and then later claim a constitutional

violation when the officer relies on the defendant’s statement and searches the

property.”).  21

As the cases cited above demonstrate, a person who verbally disclaims to

law enforcement officials any interest in an item being searched cannot later

claim standing to challenge the legality of the search. Thus, the officers’

knowledge that Porter carried the backpack into the house at an earlier point in

time is not relevant to the legal issue as presented in Brown, which is whether

he maintained an interest in the backpack at the time of the search.

In sum, the peace officers’ conduct in this case was not clearly and

palpably in violation of the state constitution. They applied for a search warrant

through the procedures set forth in the Code. A neutral and detached magistrate

issued the search warrant based on probable cause to believe that there was

evidence of criminal wrongdoing at the premises specified in the warrant, 3601

Woodland Avenue. The officers executed the search warrant at that location

according to the instructions in the warrant and the Code. The backpack was

not attached to or in the physical possession of a person at the time it was

searched and thus was encompassed within the scope of the warrant. The

conclusion that the backpack was within the scope of the warrant was reinforced

by Porter’s own denial that he had knowledge of, ownership of, or any possessory

interest in the backpack. This was model law enforcement conduct in accord

with the state constitution and the Code.

IV.

For the reasons expressed above, we affirm the district court’s denial of

Porter’s motion to suppress.

Affirmed.

Christensen, C.J., and Waterman, Mansfield, and May, JJ., join this

opinion. McDermott, J., files a dissenting opinion, in which Oxley, J., joins.  22

#24–1254, State v. Porter

McDermott, Justice (dissenting).

As officers waited outside George Civitate’s house to move on the execution

of a search warrant, a man pulled up in a car and parked along the street outside

the house. They watched the man—later identified as Andrew Porter—exit his

car, put on a blue backpack, take his dog by its leash, walk to Civitate’s door,

and enter. The officers’ search warrant didn’t mention Porter. Indeed, they didn’t

know Porter, and they had no idea that Porter would happen to visit Civitate at

almost the exact moment of their planned entry to execute the warrant.

Once inside the house, officers searched Porter’s backpack. They did so

despite knowing that the backpack belonged not to Civitate but to Porter; they

saw Porter remove it from his car, put it on, and bring it into the house; they saw

it resting next to the couch where Porter sat, under the jacket they’d seen him

wearing; they repeatedly asked Porter about its contents. We’re here on this

appeal because Porter was ultimately convicted of possessing drugs the officers

found in the backpack because it was, indeed, his backpack.

Porter asserts a constitutional violation in the officers’ search of his

backpack. We return to constitutional first principles: before a state official may

search or seize “persons, houses, papers and effects,” the official must first

obtain a warrant, which must be based on probable cause, supported by an oath

or affirmation, and specifically describe the place to be searched and the items

or persons to be seized. Iowa Const. art. I, § 8. Mere visitors to a place—and

personal effects known to belong to them—do not fall within the scope of a

warrant to search that place unless the visitor or their effects are specifically

mentioned in the warrant. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979); State v.

Brown, 905 N.W.2d 846, 847 (Iowa 2018). That’s because probable cause is  23

always absent if there’s no knowledge at the time a warrant is issued of any

connection between the visitor and the place to be searched. See State v.

Jamison, 482 N.W.2d 409, 413 (Iowa 1992) (en banc), overruled in part on other

grounds by, State v. Heminover, 619 N.W.2d 353 (Iowa 2000) (en banc). After all,

how can probable cause exist to search a third party or their effects if their

presence at the scene was never contemplated by the officer who sought the

warrant or the judge who signed it?

Today, the court holds that Porter’s backpack fell within the coverage of

the search warrant as written despite nothing in the warrant authorizing a

search or seizure of Porter or his belongings. In so doing, the majority boldly goes

where no one in this case has gone before, or has even asked to go. Neither the

State in its arguments below or on appeal, nor the district court in its ruling on

Porter’s motion to suppress, hint at any assertion that the search of Porter’s

backpack was permitted under the warrant itself. The State’s arguments and the

district court’s holding instead focus on an abandonment theory, and in

particular that Porter’s answers to officers’ questions at the scene indicated an

intent to relinquish or disclaim his ownership of the backpack. In an alternative

argument, the State doubles down on its rejection of the notion that the warrant

itself authorized the backpack’s search, asserting instead—to quote its own

brief—that “officers had valid bases for the search that were separate and distinct

from the search warrant.” (Emphasis added.) The majority hardly discusses the

fighting issue raised by the parties in this case—abandonment—on its way to

deciding the case on a ground no one presented.

Reliance on the warrant to justify the search here is, in my view,

unavailing. The only person mentioned as a target of the search in the warrant

is Civitate himself. The warrant describes Civitate at length, both as to physical  24

characteristics and personally identifiable information (including his date of

birth, social security number, and driver’s license number). The warrant

authorizes a search of Civitate’s residence; no one else’s. It describes “vehicles

registered to George Civitate” as within the property covered, and gives the make,

model, color, and license plate for each of Civitate’s three vehicles.

An officer’s affidavit used to support the warrant application mentions only

Civitate in connection with the drug distribution under investigation, describing

information from a confidential informant (CI) “that a male known to the CI as

George Civitate is involved in the sale and distribution of methamphetamine in

the Des Moines” metro area. The affidavit explains how the officer confirmed

Civitate’s address using a combination of Civitate’s department of transportation

records, the county assessor’s website, utility billing records, and information

from the CI. The application lists only Civitate’s criminal history and only

Civitate’s vehicle registration history. It details several undercover drug buys that

the officer facilitated between the CI and only Civitate, all at Civitate’s house.

Nothing in the warrant mentions or even alludes to Porter. The officers

who entered Civitate’s house to execute the warrant knew nothing about the man

who’d just arrived beyond what they had observed. They did not know his name,

his reason for being there, or his connection to Civitate.

Our precedents make clear that warrants do not extend to the bags of

visitors who happen to be present at a house where a warrant is being executed.

In State v. Brown, police obtained a warrant to search a man named Jeffrey

Sickles and the house where he lived. 905 N.W.2d at 847. But when officers

executed the warrant, they found several others present as well. Id. The officers

had no basis to associate these people with the house. Id. After officers

handcuffed the visitors and brought them to a different room, one of the officers  25

searched a purse that had been on the floor next to one of the visitors when the

officers entered. Id. The officer found marijuana in the purse, and the state

charged the purse’s owner with possession of marijuana. Id. The defendant

argued that the search of her purse violated her rights under both the State and

Federal Constitutions. Id. at 847–50. On appeal, we reversed the denial of her

motion to suppress evidence from the search, applying the principle derived from

our prior cases that “a search of the possessions of a third party at a residence

is unconstitutional when the warrant does not support probable cause to search

that particular person.” Id. at 853.

Brown’s holding, as we elaborated, built on precedents from prior cases.

In an earlier case, State v. Jamison, police obtained a search warrant that

covered the residence of a man named Terry Rodriguez “and the person and

vehicles of any other subjects at the residence after the signing of the search

warrant.” 482 N.W.2d at 411 (emphasis omitted). Shortly after obtaining the

warrant, officers saw a man named Anthony Jamison enter Rodriguez’s house

and then leave several minutes later. Id. Police stopped Jamison’s vehicle and

searched it, finding cocaine in a paper wrapper on the floorboard. Id. In reversing

the district court’s denial of Jamison’s motion to suppress, we noted the lack of

evidence establishing any nexus between Jamison or his vehicle “and the

existence of criminal activity at the targeted premises.” Id. at 413. We concluded

that “[i]f a warrant calls for the search of multiple places or persons, probable

cause must exist as to each location or person sought to be searched under

authority of the warrant.” Id. at 412.

Likewise, in State v. Fleming, police obtained a search warrant for the

residence of a man named Andrew Nearman. 790 N.W.2d 560, 562 (Iowa 2010).

In conducting the search, officers entered a bedroom rented by a man named  26

Joshua Fleming and found a baggie of marijuana in the closet. Id. The search

warrant made no mention of Fleming; it named only Nearman. Id. When the state

charged Fleming with possession of marijuana, he moved to suppress the

evidence from the search. Id. The district court denied the motion, concluding

that the warrant extended to the entire residence, including Fleming’s rented

room. Id. at 563. We reversed, finding that the officers were on notice that

Fleming rented the bedroom and had no reason to believe that Nearman had

access to it. Id. at 567–68. Because the warrant named only Nearman, we held

that the state needed to make an independent showing of probable cause to

search Fleming’s room, but had failed to do so. Id. at 568.

Neither Jamison nor Fleming gets a mention in the majority opinion here.

The majority nonetheless claims that its conclusion—“that the scope of the

warrant includes any personal effects not in the physical possession of a person

not identified in the warrant”—is “supported by Iowa caselaw.” But the majority

cites no Iowa Supreme Court case on this point. Instead, the majority cites one

published and three unpublished court of appeals decisions, none of which are

precedential to us. None in fact apply here in any event, as none dealt with

evidence seized from a visitor to a property subject to search under a warrant,

or someone otherwise unidentified in the warrant. See State v. Stockman, No. 20–

1360, 2022 WL 109183, at *7 (Iowa Ct. App. Jan. 12, 2022) (“Stockman was no

mere visitor or passerby. . . . Stockman’s admission that she used

methamphetamine with [the target of the warrant] at this residence was included

in the application for the search warrant.”); State v. Barbosa-Quinones, No. 08–

1830, 2009 WL 4111127, at *7 (Iowa Ct. App. Nov. 25, 2009) (finding “no

evidence that the defendant was a mere visitor, or even that the officers knew

the purse belonged to the defendant”); State v. Fisher, No. 99–1098, 2000 WL  27

1724552, at *1 (Iowa Ct. App. Nov. 20, 2000) (involving no visitor whatsoever but

simply a search warrant for the defendant’s own residence); Munz v. State, 382

N.W.2d 693, 701 (Iowa Ct. App. 1985) (same). Stated simply, none of the court

of appeals cases that the majority cites support the majority’s holding here.

Brown is a different matter. Brown is not simply persuasive authority on

the question the majority reaches for here; it is binding precedent. The State

does not ask us to overrule Brown or any other case. And the majority, for its

part, does not expressly overrule Brown on its own initiative. But it hollows out

Brown’s holding through revisionist analysis, calling Brown “predicated on a

fundamental misunderstanding of search warrants” and asserting that the court

committed a “category error” by “framing that case as a warrantless-search case”

instead of one “involving the scope of a search warrant.”

The majority misconstrues Brown. We focused extensively in Brown on the

search warrant’s scope. 905 N.W.2d at 851–54. We rejected the state’s argument

that the defendant in Brown was subject to search under that warrant,

concluding that the failure to identify a third party in a warrant to search a

residence means that “that party continues to have expectations of privacy when

a search warrant is executed on a residence in which they are present.” Id. at

852. And this protection extends to the third party’s belongings, even when they

do not maintain actual possession of their belongings at all moments. Id. at 854–

55.

In the majority’s telling, we concluded in Brown “that the search of Brown’s

purse was a prohibited search of her person.” (Emphasis added.) But this

interpretation misses the core of our holding. Our conclusion rested on the fact

that the officer conducted a warrantless search of an “effect”—the purse—despite

being on notice that it belonged to a visitor who maintained constructive  28

possession of it. 905 N.W.2d at 856. We held that the defendant’s close proximity

to her purse under the circumstances (“located right next to the kneeling Brown”)

was sufficient to establish that the purse belonged to her, and not the man

named in the warrant, making its search unlawful. Id.

The majority here refers to Porter’s backpack as an “unattended effect”

despite the State’s concession in its brief to the contrary—that “the blue

backpack was in an area within Porter’s ‘immediate control’ at the time of his

arrest.” In greenlighting an officer’s search of any visitor’s bag not in direct

physical contact with its owner, the majority attempts to roll back the odometer

on the question settled in Brown and pivot to an “approach [that] has been rightly

criticized.” 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 4.10(b), at 934 (6th ed. 2020) [hereinafter LaFave]; see also

Hummel-Jones v. Strope, 25 F.3d 647, 651 (8th Cir. 1994) (rejecting the argument

that officers could search visitors’ personal bags “merely because those bags are

not in the visitors’ hands”). As Professor LaFave explains, to safeguard a visitor’s

independent privacy rights, officers “must take into account their own knowledge

about the possession of personal effects found at the scene in determining what

the warrant is intended to cover.” 2 LaFave § 4.10(b), at 935.

Porter didn’t forfeit his privacy rights in the backpack simply because he

had placed it next to the couch where he sat. In Brown, we criticized the actual-

possession test that the majority adopts today as fanciful, stating that the notion

“that a visitor loses all reasonable expectations of privacy when visiting a

premises by hanging a coat on a rack or placing a purse on a chair or on the

floor, simply does not comport with reality.” 905 N.W.2d at 854–55 (citing United

States v. Micheli, 487 F.2d 429, 431 (1st Cir. 1973)). The majority’s reversal about

what reality will bear perhaps gives life to Bob Dylan’s complaint that “[r]eality  29

has always had too many heads.” Bob Dylan, Cold Irons Bound, on Time Out of

Mind (Columbia Recs. 1997). In any event, the majority’s embrace of the actual-

possession test today is irreconcilable with our ringing rejection of it as a

“completely unrealistic” rule that “cannot possibly pass constitutional muster

under article I, section 8 of the Iowa Constitution.” Brown, 905 N.W.2d at 855.

Applying an actual-possession test also creates a legal double standard,

making constructive possession sufficient to find someone guilty of possessing

contraband, yet making constructive possession insufficient for the person to

claim protection from an officer’s warrantless search. We identified this problem

in Brown, too, calling it “unprincipled in the extreme” to apply “an expansive

conception of constructive possession for purposes of upholding criminal

convictions, but then apply a narrow view of constructive possession for the

purpose of defeating search and seizure rights asserted by a suspect.” Id. at 855–

56. Suffice it to say, nothing in the constitution compels this possessory dice-

loading in favor of the State that we previously rejected.

Further, the majority points to a statute, Iowa Code § 808.7(2) (2023), that

it asserts “legally required” the officers executing the warrant to search the

backpack because it might have contained evidence described in the warrant.

But § 808.7(2) merely provides that in executing a search warrant, officers may

search any person or thing present at the time of the search “[t]o prevent the

disposal or concealment of any property subject to seizure described in the

warrant.” Id. This statute does not apply here, both because the State never

argues that Porter’s backpack was used for “disposal or concealment” of

Civitate’s drugs (let alone that its search was necessary on that basis), and

because Porter’s backpack was never “described in the warrant,” which targets

only Civitate. Id.  30

Turning to the abandonment issue—the issue that the parties actually

raised and the district court actually ruled on—I would hold that the State failed

to meet its burden. The relevant facts here were all captured on officer bodycam

videos. After police entered the house and handcuffed Civitate, Porter, and a

woman who had been sleeping upstairs, officers began separately interviewing

each of them by turns in a van parked outside. During his interview, Porter

stated that he did not live at the house. When asked if he brought anything with

him, Porter claimed that he’d brought only his dog. When asked about the blue

backpack that he’d carried into the house, Porter responded, “I don’t know about

that,” and claimed that he’d only brought “dog stuff” with him. Shortly after,

Porter told the officers that he wanted to speak with an attorney and cut off the

interview. Officers then brought him back inside, and he sat handcuffed on the

living room couch while officers continued searching the house.

While Porter remained seated on the couch, one of the officers at the scene,

Officer Galetich, picked up the blue backpack and (notwithstanding the prior

declaration that he wished to speak to a lawyer) asked Porter, “Whose bag is

this? Is this your bag?” Porter shook his head side-to-side and made a sound

indicating “no.” A second officer then asked, “Is that the bag he carried in?” A

third officer responded, “Yeah, that’s the backpack he carried in.” When Porter

experienced a spell of heavy breathing, Officer Galetich, still holding the

backpack, asked Porter, “Does it have your inhaler in it?” Porter replied, “No.”

Another officer then asked, “Just drugs?” Porter replied, “I don’t know none of

that.” One of the officers responded, “Be honest.” Officer Galetich then searched

the jacket that Porter had been wearing outside and that he had placed on top

of the backpack, finding a cellphone and the keys to Porter’s car in the pocket.

Porter acknowledged that the cellphone was his. Shortly after, Officer Galetich  31

searched the backpack. During the search of the house, Officer Galetich referred

to the blue backpack as belonging to Porter at least two different times.

The State argues that Porter’s answers to the officers’ questions indicated

his intent to abandon the backpack, thus totally forfeiting any privacy rights in

it. But under Iowa law, whether property has been abandoned hinges on whether

a person voluntarily abandons the thing in question. State v. Bumpus, 459

N.W.2d 619, 625 (Iowa 1990). “Abandonment is shown by proof that the owner

intends to abandon the property and has voluntarily relinquished all right, title

and interest in the property.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400,

406 (Iowa 1995) (en banc). Determining “whether a person has voluntarily

abandoned property” is thus a question of intent, and intent “may be inferred

from words, acts, and other objective facts.” Bumpus, 459 N.W.2d at 625.

In State v. Bumpus, we found abandonment where the defendant

committed an affirmative physical act of separation; in that case, throwing a

pouch over a fence while fleeing police. Id. But unlike the defendant in Bumpus,

there was no physical relinquishment here by Porter. The backpack was next to

the couch where he sat and, as the State concedes, “in an area within Porter’s

‘immediate control’ at the time of his arrest.” The alleged abandonment was

purely verbal. And while some federal courts have accepted verbal disclaimers

as abandonment, see United States v. Ferebee, 957 F.3d 406, 413–14

(4th Cir. 2020), we should be wary of accepting abandonment-by-speech under

circumstances like those here, see United States v. Lopez-Cruz, 730 F.3d 803,

808–09 (9th Cir. 2013).

The officers had objective knowledge that the backpack belonged to Porter.

As mentioned, the bodycam footage shows an officer asking if the backpack was

the one Porter carried in, and another confirming it was, shortly before they  32

searched the backpack. At the suppression hearing, the lead officer executing

the warrant agreed that he “knew it was [Porter’s] backpack” and “had every

reason to think that’s his backpack” after seeing him walk in with it. In our

search-and-seizure analysis, we generally look to the objective reasonableness

of an officer’s conduct. Given that the officers knew that Porter brought the

backpack into the house and saw it sitting beside the couch where he sat when

they entered, treating the backpack as “abandoned” was objectively

unreasonable under the circumstances.

Abandonment also requires a voluntary relinquishment of ownership.

Benjamin, 534 N.W.2d at 406. Porter’s answers about the backpack occurred

while he was detained, handcuffed, and being interrogated. He had already

invoked his right to silence when officers reinitiated questioning about the

backpack inside the house. His denial of ownership under the circumstances

strikes me as less a waiver of privacy and more a refusal to incriminate himself.

If we allow police to bypass the warrant requirement by badgering detained

visitors until they deny ownership of a bag the officers know is theirs, we create

a perverse incentive for officers to interrogate visitors to manufacture an

abandonment excuse, circumventing the rule that visitors’ effects are protected.

I’m similarly unpersuaded by the State’s fallback argument that even if

not abandoned, the backpack would have been searched as part of a search

incident to Porter’s arrest based on an outstanding arrest warrant. The key

elements of timing and proximity work against the State’s argument on this

point. Under Chimel v. California, a search incident to arrest is limited to the “the

area into which an arrestee might reach” to prevent accessing weapons or

destroying evidence. 395 U.S. 752, 762–63 (1969); see also United States v.  33

Robinson, 414 U.S. 218, 235–36 (1973); State v. Gaskins, 866 N.W.2d 1, 14 (Iowa

2015).

But Porter’s proximity to the backpack at the time of the search itself is

complicated here by the officers’ repeated movement of Porter during the

execution of the warrant. Recall that Porter was removed from the house,

interrogated in a van, and then brought back to the living room where the

backpack was located. Officers can’t manufacture authority to search by

manipulating the circumstances of the arrest. See United States v. Chadwick,

433 U.S. 1, 11–16 (1977), abrogated on other grounds by, California v. Acevedo,

500 U.S. 565 (1991). By returning Porter to the proximity of the backpack after

he had been secured elsewhere, the State relies on a Chimel justification of its

own creation that did not exist when, shortly before, officers had detained the

handcuffed Porter in a van for interrogation. Officers cannot rely on officer-safety

or evidence-destruction rationales to defend the search of the backpack here.

Our constitutional search and seizure protections are “not mere second-

class rights” but rather “indispensable freedoms.” Brinegar v. United States, 338

U.S. 160, 180 (1949) (Jackson, J., dissenting). As indispensable freedoms, they

do not fade away when visiting someone else’s home, even when police separately

have probable cause to search that home. In upholding this search today, the

majority first recharacterizes Brown’s holding and then distinguishes the effigy

left in its place. Unfortunately, Brown’s key holding protecting the privacy rights

of visitors in their possessions under the Iowa Constitution is nowhere to be

found in the majority’s opinion, despite the parallel facts presented here. Officers

carrying out a search warrant must respect the constitutional privacy rights of

people not named in a warrant, including their right to privacy in their personal

property. Because I would rely on our precedents to find the search of Porter’s  34

backpack unlawful, I would reverse the district court’s denial of Porter’s motion

to suppress. I thus respectfully dissent.

Oxley, J., joins this dissent.