State of Iowa v. Patrick Scullark

IN THE COURT OF APPEALS OF IOWA

No. 23-1218
Filed August 21, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

PATRICK SCULLARK,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.

A defendant appeals his convictions for possession of methamphetamine

with intent to deliver and failure to affix a tax stamp. REVERSED AND

REMANDED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden (until withdrawal) and

Timothy M. Hau, Assistant Attorneys General, for appellee.

Considered by Tabor, C.J., and Badding and Buller, JJ.
2

TABOR, Chief Judge.

“All the stuff you’re handing her, I’m searching, just so you know.” That’s

what Waterloo Police Officer Jacob Bolstad told Patrick Scullark as he handcuffed

and arrested him on an assault charge. And the officer was true to his word—

seizing and searching the fanny pack Scullark passed to his friend. Inside

Scullark’s fanny pack, police found cash and twenty-three grams of

methamphetamine. Scullark moved to suppress the drugs, alleging the

warrantless search of the fanny pack violated his constitutional rights. The district

court denied the motion, finding a valid search incident to Scullark’s arrest.

Scullark now challenges that ruling.

Because Scullark had no realistic ability to access the fanny pack after he

was handcuffed and escorted to the patrol car, the search did not meet the

incident-to-arrest exception to the warrant requirement. Thus, we reverse the

suppression ruling and remand for further proceedings.

I. Facts and Prior Proceedings

A former girlfriend accused Scullark of throwing a watch, hitting her in the

face, and causing a laceration. She alerted Officer Bolstad to the address where

Scullark was moving. The officer located Scullark outside that house, talking on

the phone, “pretty agitated” and “emotional.” Officer Bolstad recorded their

encounter on his body camera. The officer heard Scullark say he was on parole

and didn’t want to go back to jail. When Scullark noticed the officer approaching

“he decided to bolt inside of the residence.” The officer ordered Scullark to stop,

but he ignored that command. So the officer followed him inside.
3

Scullark was crying and repeating that he didn’t do anything wrong. In fact,

he was so overwrought he crumpled to the floor. The officer recalled trying “to

keep him calm and deescalate the situation because ultimately he was going to be

going to jail for domestic assault.”

When Officer Bolstad broke the news to Scullark that he was under arrest,

Scullark was wearing a fanny pack around his waist. The officer estimated that it

was ten by five inches—big enough to hold a small firearm or a knife. Before he

was handcuffed, Scullark told the officer, “don’t touch me right now” and handed

the fanny pack to his friend, Tammy, who was standing nearby. Bolstad did not

protest the handoff because he was the only officer present and did not want to

“escalate the situation.”

A few seconds later, Officer Bolstad handcuffed Scullark and informed him

that the police would search the items passed to Tammy. By then, Tammy had

taken three or four steps away from Scullark. The officer said: “Tammy, you stay

over here with that.” She then set the fanny pack down on a plastic tub next to a

laundry basket just across the threshold of an adjoining room. As Scullark

continued to lament—“I can’t go to jail bro”—he walked toward the spot where

Tammy left the fanny pack. Bolstad told him to stop and tightened the handcuffs.

The officer later conceded that Scullark could not have reached the fanny pack at

that point because his hands were cuffed behind his back.

The officer then picked up the fanny pack and carried it outside while

escorting Scullark to the waiting patrol car. Tammy and another friend of Scullark

joined them outside. By then, at least two other officers had arrived at the scene.

As Officer Bolstad stood with Scullark just outside the open back door of his patrol
4

car, the officers searched the fanny pack. Bolstad later testified: “And while we

were searching the bag, [we] located a large amount of money, an amount of

drugs, and I don't really recall what else was in the bag.”1

Based on that discovery, the State charged Scullark with possession of

methamphetamine with intent to deliver, a class “B” felony, in violation of Iowa

Code section 124.401(1)(b)(7) (2022) and failure to affix a drug tax stamp, a class

“D” felony, in violation of section 453B.12. He moved to suppress the evidence

seized by the officers, alleging a violation of his rights under the Fourth

Amendment of the federal constitution and article 1, section 8 of the Iowa

Constitution. The court denied his motion.

Scullark then entered a conditional guilty plea to the charged offenses,

reserving his right to raise the suppression issue on appeal. The court entered

judgment and sentence—from which Scullark now appeals.

II. Jurisdiction/Conditional Guilty Plea

Traditionally, when defendants enter a guilty plea, they waive “all defenses

and challenges not intrinsic to the voluntariness of the plea.” State v. Tucker, 959

N.W.2d 140, 146 (Iowa 2021). To some degree, that changed effective July 1,

2023. Now defendants may enter conditional guilty pleas to preserve their

1 Officer Bolstad’s bodycam footage shows Scullark standing by the patrol car,

talking to his mother on a cell phone held by one of his friends. He complains that
the police have “his wallet with all of his credit cards in it” and “two hundred dollars
for his light bill.” At that point, an officer hands Scullark’s friend a wad of cash.
Then, before placing Scullark in the backseat, Officer Bolstad asks: “Patrick, is
there anything else you want them to have out of that thing?” Scullark ignores the
question. So the officer tells him: “Get in the car, we’re done.” Scullark then tells
his friend to “get the wallet.” Bolstad responds: “She’s not getting the wallet. We’re
taking all that stuff to the jail with you.” It is unclear from the recording when the
officers find the methamphetamine.
5

potential appellate challenges to adverse rulings on a pretrial motion. Iowa R.

Crim. P. 2.8(2)(b)(9)2; Iowa Code § 814.6(3).3 But under the statutory language,

we have jurisdiction over an appeal from a conditional plea only when “appellate

adjudication of the reserved issue is in the interest of justice.”4 Id. § 814.6(3)

At the July 20, 2023 plea hearing, the State consented to Scullark’s request

to enter a conditional guilty plea to reserve the right to contest the denial of his

motion to suppress on appeal. The court accepted the plea and advised Scullark

of his right to appeal. Now Scullark urges appellate review of his suppression issue

“is in the interest of justice” under section 814.6(3). See generally Iowa R. App. P.

6.103(2)(a) (requiring appellant’s brief, in appeal from judgment of sentence

2 The rule states:

With the consent of the court and the prosecuting attorney, a
defendant may enter a conditional plea of guilty, reserving in writing
the right to have an appellate court review an adverse determination
of a specified pretrial motion. A defendant who prevails on appeal
may then withdraw the plea.
Iowa R. Crim. P. 2.8(2)(b)(9).
3 The statute provides:

A conditional guilty plea that reserves an issue for appeal shall only
be entered by the court with the consent of the prosecuting attorney
and the defendant or the defendant's counsel. An appellate court
shall have jurisdiction over only conditional guilty pleas that comply
with this section and when the appellate adjudication of the reserved
issue is in the interest of justice.
Iowa Code § 814.6(3).
4 One commentator offers this insight into the cross-over between the new statute

and the rule:
Curiously, the original language of the rule as approved by the Court
in 2023 stated explicitly that an approved conditional guilty plea
constituted good cause to appeal the ruling on the motion,
circumventing the Iowa Code § 814.5(1)(a)(3) bar on appeals of
guilty pleas. In the final manifestation of the rule, this language was
stricken. The value of preserving an issue for a prohibited appeal
remains to be seen.
4A B. John Burns, Iowa Practice Series: Criminal Procedure § 12:3 n.105 (Mar.
2024) [hereinafter Criminal Procedure].
6

following a guilty plea, to include a jurisdictional statement establishing “grounds

that establish ‘good cause’ for purposes of Iowa Code section 814.6(1)(a)(3)”).

Recognizing that the “interest of justice” is undefined in chapter 814, Scullark asks

us to adopt this common meaning: “the proper view of what is fair and right in a

matter in which the decision-maker has been granted discretion.” Interests of

Justice, Black’s Law Dictionary (11th ed. 2019). From there, Scullark argues that

fairness favors appellate adjudication for three reasons: (1) correct resolution of

this constitutional question is valuable not only to him “but to all Iowans”; (2) he

has no other avenue for relief; and (3) review would serve “the general purpose”

of “good cause” under the statutory scheme. See State v. Treptow, 960 N.W.2d

98, 109 (Iowa 2021) (describing “good cause” as “a legally sufficient reason” which

in turn means “a reason that would allow a court to provide some relief”).

We agree that adjudication of the suppression issue is in the interest of

justice.5 Reviewing this contested constitutional claim—whether the officer acted

legally in conducting the warrantless search of Scullark’s fanny pack—fulfills the

quintessential purpose of the newly enacted scheme of conditional guilty pleas.

Because it is “fair and right” that we decide the reserved issue, we have jurisdiction

to proceed. See Criminal Procedure § 12:3 n.105 (“The ‘interest of justice’ finding

must be the good cause standard for permitting the appeal of a conditional plea to

go ahead.”).

5 In its appellee’s brief, the State notes that Scullark is appealing from a conditional

guilty plea but does not contest our jurisdiction to adjudicate the suppression issue.
See Iowa R. App. P. 6.103(2)(b) (stating if appellee is dissatisfied with appellant’s
jurisdictional statement, it may include its own jurisdictional statement in its brief or
may move to dismiss for lack of good cause). From its lack of response, we
presume that the State is satisfied with Scullark’s jurisdictional statement.
7

III. Scope and Standards of Review

This appeal involves the constitutional right to be free from unreasonable

searches and seizures. Thus, we review the suppression ruling de novo. State v.

Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). That standard means that we

independently evaluate “the totality of the circumstances as shown by the entire

record.” State v. Baker, 925 N.W.2d 602, 609 (Iowa 2019) (citation omitted). “We

give deference to the district court’s factual findings, but they do not bind us.” Id.

Scullark contests the warrantless search of his fanny pack under the federal

and state constitutions. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. The

district court decided to “analyze the search of the fanny pack under both of those

constitutions as one” asserting that the defense did not provide “any argument or

basis to distinguish between the federal and state constitution as it pertains to

these particular protections.” On appeal, Scullark challenges that assertion,

insisting his trial attorney did distinguish between precedent decided under the

state constitution, see Gaskins, 866 N.W.2d at 14, and federal caselaw, see

Arizona v. Gant, 556 U.S. 332 (2009). We agree that Scullark raised article I,

section 8 as an independent ground for relief in the suppression proceedings. So,

as appropriate, we may apply a different standard to his claims under the Iowa

Constitution. See State v. Vance, 790 N.W.2d 775, 789 (Iowa 2010) (declining to

“blindly follow federal precedent on issues of Iowa constitutional law”).

IV. Analysis

A search conducted without prior judicial approval is per se unreasonable

unless the State can show that a recognized exception to the warrant requirement

applies. Gaskins, 866 N.W.2d at 7. Here, the State relies on the exception for
8

searches incident to arrest. That exception “derives from interests in officer safety

and evidence preservation that are typically implicated in arrest situations.” Gant,

556 U.S. at 338; accord Gaskins, 866 N.W.2d at 8. “The search-incident-to-arrest

exception to the warrant requirement must be narrowly construed and limited to

accommodating only those interests it was created to serve.” State v. McGrane,

733 N.W.2d 671, 677 (Iowa 2007).

More than four decades ago, the United States Supreme Court articulated

the twin rationales for allowing police to search incident to arrest:

When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his escape.
Otherwise, the officer’s safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the
arrestee’s person in order to prevent its concealment or destruction.

Chimel v. California, 395 U.S. 752, 762–63 (1969).

But Chimel did not limit the scope to the arrestee’s person:

And the area into which an arrestee might reach in order to grab a
weapon or evidentiary items must, of course, be governed by a like
rule. A gun on a table or in a drawer in front of one who is arrested
can be as dangerous to the arresting officer as one concealed in the
clothing of the person arrested. There is ample justification,
therefore, for a search of the arrestee's person and the area ‘within
his immediate control’—construing that phrase to mean the area
from within which he might gain possession of a weapon or
destructible evidence.

Id. at 763.

In upholding the search of Scullark’s fanny pack, which he was wearing just

before his arrest, the district court cited Chimel, as well as two of our unpublished

cases: State v. Jones, No. 02-1972, 2003 WL 22699655 (Iowa Ct. App. Nov. 17,

2003) and State v. Allen, No. 06-1770, 2007 WL 2964316 (Iowa Ct. App. Oct. 12,
9

2007). We start with those now-dated cases. More than twenty years ago, our

court upheld the search of a backpack that officers removed from Jones as he was

resisting arrest. Jones, 2003 WL 22699655, at *1. We reasoned that the right to

search incident to arrest continued even if the backpack were no longer accessible

to Jones at the time of the search—as long as it was within his reach at the time

of his arrest. Id.

Using the same rationale, we upheld the search of a backpack sitting on the

floor next to Allen when he was arrested. Allen, 2007 WL 2964316, at *4 (relying

on automobile-search case, New York v. Belton, 453 U.S. 454 (1981)). Belton

allowed the search of containers within a motorist’s reach at the time of the arrest,

and defined a container as any object that held another object, including those

located within the passenger compartment of the automobile. 453 U.S. at 460 n.4.

The trouble with the district court’s reliance on Jones and Allen is that those

cases predate the recasting of Belton in Gant. In that 2009 decision, the supreme

court declined “[t]o read Belton as authorizing a vehicle search incident to every

recent occupant’s arrest” and warned that such a broad interpretation would

“untether the rule from the justifications underlying the Chimel exception.” Gant,

556 U.S. at 343. Gant held that, under the Chimel rationale, police could search

a vehicle incident to a recent occupant’s arrest only when the arrestee was

“unsecured and within reaching distance of the passenger compartment at the time

of the search.”6 Id. And that was not Gant’s situation. “Unlike in Belton, which

6 Gant also included a second holding that did not flow from Chimel. The Court
concluded that “circumstances unique to the vehicle context justify a search
incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.’” Gant, 556 U.S. at 343 (quoting
10

involved a single officer confronted with four unsecured arrestees, the five officers

in this case outnumbered the three arrestees, all of whom had been handcuffed

and secured in separate patrol cars before the officers searched Gant’s car.” Id.

at 344. As its bottom line, Gant rejected the notion that searches incident to arrest

were reasonable regardless of “the possibility of access” in any case. Id. And “the

most important characteristic of Gant’s ‘possibility of access’ rule is that it is to be

applied ‘at the time of the search’ rather than at some earlier time.” 3 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.1(c) (6th

ed. 2024).

Our supreme court discussed Gant at length in Gaskins. 866 N.W.2d

at 11−14. After doing so, it held that opening a locked safe in Gaskin’s vehicle was

not a valid search incident to arrest. Id. at 14. Gaskins rejected the Belton rule

that authorized warrantless searches of containers regardless of the Chimel

considerations of officer safety and protecting evidence. Id. at 12. Instead, the

court sided with jurisdictions that viewed the search-incident-to-arrest exception as

“a rule of reasonableness anchored in the specific circumstances facing an officer.”

See State v. Rowell, 188 P.3d 95, 101 (N.M. 2008); accord Gaskins, 866 N.W.2d

at 12–13 (citing Rowell, 188 P.3d at 101 (refusing to draw “artificial lines” unrelated

to the Chimel rationales), and State v. Valdez, 224 P.3d 751, 758–59 (Wash. 2009)

(“The search incident to arrest exception, born of the common law, arises from the

necessity to provide for officer safety and the preservation of evidence of the crime

Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)). In
Gaskins, our supreme court rejected that evidence-gathering purpose of the
search-incident-to-arrest exception under the Iowa Constitution. 866 N.W.2d at
13. The evidence-gathering rationale is not at issue here.
11

of arrest, and the application and scope of that exception must be so grounded

and so limited.”)). In the end, the Iowa Supreme Court approved Gant’s “reaching

distance” rationale “as an appropriate limitation on the scope of searches incident

to arrest under article I, section 8 of the Iowa Constitution because that limitation

is faithful to the underlying justifications for warrantless searches incident to

arrest.” Gaskins, 866 N.W.2d at 13.

Returning to Jones, before Gant and Gaskins, our court said: “[W]e have

considered the following facts cited by Jones: 1) at least four police officers were

at the scene of the arrest, 2) Jones was handcuffed, and 3) Jones was in the squad

car at the time of the search. These facts do not mandate a different result.” 2003

WL 22699655, at *1. After Gant and Gaskins, those facts would mandate a

different result. Because Jones was neither unsecured nor within reaching

distance of his backpack at the time of the search, the police intrusion was

untethered from the justifications underlying the Chimel exception. See Gant, 556

U.S. at 343. The same holds true in Allen’s case. Police did not search his

backpack until they “gained control” of him and placed him in the patrol car. Allen,

2007 WL 2964316, at *4.

With the restrictive reading of Belton in Gant and Gaskins, we must rethink

the decisions in Jones and Allen. Commentators agree that the exception has

narrowed. See 3A Charles Allen Wright, Arthur R. Miller, & Sarah N. Welling, Fed.

Prac. and Proc. § 676 (4th ed. 2024) (“The appellate courts have generally applied

this test to allow police to search within the defendant's grab area even when the

defendant’s literal ability to grab is limited by guards or handcuffs, but this authority
12

may be curtailed in the wake of the 2009 case, Arizona v. Gant, which limited

searches incident to arrest in the context of automobiles.” (footnotes omitted)).

But does Gant apply outside the vehicle context? Justice Alito thought so,

writing: “there is no logical reason why the same rule should not apply to all

arrestees.” Gant, 556 U.S. at 364 (Alito, J., dissenting). And many federal and

state courts view Gant as imposing limits on any search incident to arrest. See,

e.g., United States v. Davis, 997 F.3d 191, 198 (4th Cir. 2021) (rejecting search-

incident-to-arrest justification because Davis was “handcuffed and face-down” and

“not within reaching distance of the backpack next to him”); United States v. Knapp,

917 F.3d 1161, 1169 (10th Cir. 2019) (finding search of purse was invalid as

incident to arrest because “not only were Ms. Knapp's hands cuffed behind her

back, Officer Foutch was next to her, and two other officers were nearby.

Moreover, the purse was closed and three to four feet behind her, and officers had

maintained exclusive possession of it since placing her in handcuffs”); United

States v. Stanek, 536 F. Supp. 3d 725, 740 (D. Haw. 2021) (“There was no threat

that Stanek could have broken free and accessed his bag, and the Government

has never asserted that Stanek could have destroyed evidence stored in the bag

or pulled a weapon out of it.”); United States v. Moffitt, No. 2:22-cv-00067, 2023

WL 4197110, at *6 (D. Vt. June 27, 2023) (finding government did not prove

search-incident-to-arrest exception because “[w]hen the fanny pack was briefly

opened and visually searched, [Moffitt] was handcuffed, in the process of being

ankle cuffed, and was surrounded by law enforcement officers”); United States v.

Williams, No. 2:19-cv-401, 2020 WL 4341722, at *11 (N.D. Ala. June 10, 2020)

(“Once the officers took possession of the bag, handcuffed Williams, and had
13

begun to lead him away from the bag, there is no basis for concluding that the bag

remained within Williams grab area.”); United States v. Morillo, No. 08-cr-676,

2009 WL 3254429, at *13 (E.D.N.Y. Aug. 12, 2009) (rejecting search-incident-to-

arrest exception because “officers credibly testified that [Morillo] had been

handcuffed and placed up against the back passenger side of the police car, while

they conducted a search of his backpack at the rear of the vehicle”); Jean v. State,

369 So. 3d 1235, 1240–41 (Fla. Dist. Ct. App. 2023) (finding that after officers

removed backpack and fanny pack from Jean and placed them on hood of patrol

car, a search based on officer safety or destruction of evidence was no longer

justified); State v. Ortiz, 539 P.3d 262, 268 (N.M. 2023) (denying search-incident-

to-arrest exception when officer searched defendant’s purse after she “had been

arrested and was in handcuffs”); State v. Lelm, 962 N.W.2d 419, 424 (N.D. 2021)

(finding search-incident-to-arrest exception did not apply because “[o]nce

detained, Lelm’s backpack was no longer within his reach”).

Turning back to Iowa authority, even before Gant and Gaskins, our supreme

court recognized that outside the context of vehicle searches, a search could be

justified only as incident to arrest when it was conducted in an “area into which an

arrestee might reach in order to grab a weapon or evidentiary items.” See State

v. Canas, 597 N.W.2d 488, 493 (Iowa 1999), abrogated on other grounds by State

v. Turner, 630 N.W.2d 601 (Iowa 2001) (quoting Chimel, 395 U.S. at 763). Canas

was standing about four feet from an unzipped bag on a nightstand in his hotel

room when he was arrested. Id. at 491. But because he was not in the motel room

when the officers searched the bag, their conduct was not permitted under the

incident-to-arrest exception. Id. at 493. Like Canas, Scullark was separated from
14

his fanny pack when police searched it. His fanny pack was no longer in an area

“into which an arrestee might reach in order to grab a weapon or evidentiary items.”

See id. (quoting Chimel, 395 U.S. at 763).

Having shown that Gant and Gaskins—as well as Canas—limit the scope

of the search-incident-to-arrest exception, we still must tie up a couple loose ends.

Beyond Jones and Allen, the district court relied on a third unpublished case: State

v. Saxton, No. 14-0124, 2014 WL 7343522 (Iowa Ct. App. Dec. 24, 2014). There,

our court approved the search of a backpack that was in Saxton’s immediate

possession when he was arrested. Id. at *2. We held: “The fact that he ran and

was not subdued until he had put a distance between his person and the backpack

is not material as long as the search was contemporaneous with the arrest.” Id.

Scullark argues that because Saxton predated Gaskins, it would come out

differently today. He contends: “Accessibility, not merely contemporaneity, is the

defining characteristic of the search incident to arrest exception under the Iowa

Constitution.”

The State responds that the supreme court denied further review in Saxton

after deciding Gaskins. And adds that Gaskins “did not change the analysis for

searches incident to arrest when the purpose is officer safety or the prevention of

the destruction of evidence.”7 See Gaskins, 866 N.W.2d at 15. The first response

makes no difference because denial of further review has no precedential value.

See Iowa Ct. R. 21.27(3). The State’s second point is true as far as it goes. But

7 The State does not argue that Scullark’s fanny pack was part of his “person” and

could be searched just as the pockets of his clothing. See Knapp, 917 F.3d at
1166−67 (discussing United States v. Robinson, 414 U.S. 218 (1973)).
15

nothing in our record shows that the search of Scullark’s fanny pack was necessary

for their safety or to prevent him from destroying evidence of the assault.

What the record does show is that Officer Bolstad believed from the start

that he was entitled to search the fanny pack because he was making an arrest,

telling Scullark as he handcuffed him that everything that he was passing to his

friend would be inspected. But the notion of police entitlement to search

someone’s nearby personal effects whenever they execute an arrest has been

debunked by the United States Supreme Court. First by Justice Scalia in his

special concurrence in Thornton v. United States:

[C]onducting a Chimel search is not the Government’s right; it is an
exception—justified by necessity—to a rule that would otherwise
render the search unlawful. If “sensible police procedures” require
that suspects be handcuffed and put in squad cars, then police
should handcuff suspects, put them in squad cars, and not conduct
the search. Indeed, if an officer leaves a suspect unrestrained
nearby just to manufacture authority to search, one could argue that
the search is unreasonable precisely because the dangerous
conditions justifying it existed only by virtue of the officer's failure to
follow sensible procedures.

541 U.S. at 627 (Scalia, J., concurring).

And then by Justice Stevens in Gant:

The fact that the law enforcement community may view the State’s
version of the Belton rule as an entitlement does not establish the
sort of reliance interest that could outweigh the countervailing
interest that all individuals share in having their constitutional rights
fully protected. If it is clear that a practice is unlawful, individuals’
interest in its discontinuance clearly outweighs any law enforcement
“entitlement” to its persistence.

556 U.S. at 349.

As its final defense of the suppression ruling, the State points to State v.

Schiebout, No. 18-1662, 2019 WL 4309062 (Iowa Ct. App. Sept. 11, 2019), a post-
16

Gaskins decision in which our court upheld the warrantless seizure of an arrestee’s

purse. But Schiebout is distinguishable from this case. While being arrested on

an outstanding warrant, Schiebout abandoned her purse on the ground outside a

church. Id. at *1. Finding that suspicious, police seized the purse. Id. Schiebout

then “grabbed the purse” from the deputy and gave it to her mother. Id. “The

deputy responded by taking the purse away from Schiebout’s mother.” Id. Our

court found the purse was accessible to Schiebout at the time of the deputy’s

seizure “as demonstrated by her ability to grab the purse and hand it to her

mother.” Id. at *2. We viewed Schiebout’s conduct as exemplifying the need to

seize the purse incident to her arrest to preserve evidence. Id. Notably, the deputy

did not search Schiebout’s purse after placing her in the patrol car. Instead, he

transported it to the sheriff's office where a drug-sniffing dog indicated the purse

contained illegal drugs. Id. at *1. “The deputy then sought and obtained a search

warrant for the purse. The subsequent search revealed several individual baggies

of methamphetamine.” Id.

By contrast, when police seized Scullark’s fanny pack, he was already in

handcuffs and—by the officer’s admission—could not reach the pack or its

contents.8 And not only did police seize the fanny pack, put they went ahead and

8 The Tenth Circuit adopted a four-factor test to determine the propriety of a search

incident to arrest: “(1) whether the arrestee is handcuffed; (2) the relative number
of arrestees and officers present; (3) the relative positions of the arrestees, officers,
and the place to be searched; and (4) the ease or difficulty with which the arrestee
could gain access to the searched area.” Knapp, 917 F.3d at 1168–69. The court
added: “the degree to which arresting officers have separated an article from an
arrestee at the time of the search is an important consideration.” Id. at 1169.
Applying these criteria, the search of Scullark’s fanny pack was not valid incident
to his arrest.
17

searched it outside the patrol car without a warrant. As in Gaskins, the safety of

the officers was not endangered by the contents of an item that the arrestee could

not realistically access. See 866 N.W.2d at 14. On this record, we find that the

State failed to prove the warrantless search was reasonable. Thus, we reverse

the suppression order and remand for further proceedings.

REVERSED AND REMANDED.

Badding, J., concurs; Buller, J., dissents.
18

BULLER, Judge (dissenting).

Unlike the majority, I would not voyage into uncharted waters and resolve

the issue related to construction of Iowa Code section 814.6(3) (2023), nor would

I depart from existing case law to establish a new limitation on searches incident

to arrest. I would instead decide only the questions before us, in a narrow way

consistent with our unpublished cases, and leave for another day the new code

provision’s meaning or the constitutional search question that—contrary to the

impression one may gather from the majority opinion—has sharply divided courts.

Because I believe the search finding methamphetamine in the defendant’s fanny

pack was constitutionally reasonable, I dissent from the reasoning and outcome of

the majority opinion.

First, I do not join the majority’s analysis on the meaning of “appellate

adjudication of the reserved issue is in the interest of justice” in Iowa Code

section 814.6(3). This is an issue of first impression before both this court and the

supreme court. In his brief, Scullark offers a proposed construction of the statute

that serves him. The State did not meaningfully address the issue in its brief, which

I interpret as a concession that resolution of this particular conditional-guilty-plea

appeal is in the interest of justice rather than wholesale agreement with the

defendant’s reading of the statute. I would accept the State’s concession and go

no further, finding this case satisfied the jurisdictional prerequisite of

section 814.6(3). And I note this was the approach taken by a unanimous panel

of our court in another case decided earlier this month. See State v. Sampson,

No. 23-1348, 2024 WL 3688526, at *1 n.2 (Iowa Ct. App. Aug. 7, 2024). I reject
19

the majority’s proposed gloss on the statute and reserve judgment on that issue

until presented with full briefing from both sides.

Second, I would not discard our unpublished cases as the majority does,

nor would I set off in a new direction based on out-of-state authorities regarding

searches incident to arrest. In expanding Gant beyond the context of automobile

searches, and thus adopting a time-of-search rather than time-of-arrest rule, the

majority reaches beyond the briefs to decide another issue of first impression in

Iowa. And it does so by picking and choosing which precedent to follow—relying

on a Gant dissent and a one-sided smattering of authorities from other

jurisdictions.

For me, the dispositive United States Supreme Court precedent is one the

majority relegates to a parenthetical citation in a footnote: United States v.

Robinson, 414 U.S. 218 (1973). There, the Supreme Court upheld a warrantless

search of a cigarette pack even though the police had already taken the pack from

the arrestee and thereby limited or eliminated his ability to access it at the time of

the search. Id. at 235. The Court reasoned: “The justification or reason for the

authority to search incident to a lawful arrest rests quite as much on the need to

disarm the suspect in order to take him into custody as it does on the need to

preserve evidence on his person for later use at trial.” Id. at 234. Thus “[i]t is the

fact of the lawful arrest which establishes the authority to search,” and such a

search is reasonable under the Fourth Amendment. Id. at 235.

There is no question Robinson remains good law. It was discussed at

length in Riley v. California, where the Court described its holding in Robinson as

“conclud[ing] that the search of Robinson was reasonable even though there was
20

no concern about the loss of evidence, and the arresting officer had no specific

concern that Robinson might be armed.” 573 U.S. 373, 384 (2014) (noting the

Robinson “exception was limited to personal property immediately associated with

the person of the arrestee” (cleaned up)). The Court, after exempting cell phones

from searches incident to arrest, observed Robinson’s “categorical rule” otherwise

“strikes the appropriate balance in the context of physical objects.” 573 U.S.

at 386. And two years later in Birchfield v. North Dakota, the Court again reiterated

the rule from Robinson and noted Riley “reaffirmed . . . and explained how the rule

should be applied.” 579 U.S. 438, 460 (2016) (“In Robinson itself, [the fact of lawful

arrest] meant that police had acted permissibly in searching inside a package of

cigarettes found on the man they arrested.”). In my view, Robinson’s categorical

rule controls and this is an easy case.

Until now, our unpublished case law agreed with my assessment. See

State v. Schiebout, No. 18-1662, 2019 WL 4309062, at *2–3 (Iowa Ct. App.

Sept. 11, 2019); State v. Saxton, No. 14-0124, 2014 WL 7343522, at *3 (Iowa Ct.

App. Dec. 24, 2014); State v. Allen, No. 06-1770, 2007 WL 2964316, at *3 (Iowa

Ct. App. Oct. 12, 2007); State v. Jones, No. 02-1972, 2003 WL 22699655, at *1

(Iowa Ct. App. Nov. 17, 2003). In twisting past these on-point decisions, the

majority points to State v. Canas, 597 N.W.2d 488 (Iowa 1999). But not

convincingly. Canas only supports the majority opinion if you ignore the facts.

Police arrested Canas outside a hotel room, and the supreme court unsurprisingly

concluded the officers could not later enter the room and search it without a

warrant. 597 N.W.2d at 491, 493. It is, of course, black-letter United States

Supreme Court law that police may not enter a residence to conduct a warrantless
21

search when an arrest is made outside the home. See Vale v. Louisiana, 399

U.S. 30, 33–34 (1970) (“If a search of a house is to be upheld as incident to an

arrest, that arrest must take place inside the house[.]”). And our supreme court

expressly cited Vale for this proposition in Canas, 597 N.W.2d at 493. I think it’s

beyond reasonable debate that Canas regulates arrests outside a residence, not

searches of containers on or near a person—and the leading treatise supports my

reading. See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 6.3 n.1 (6th ed. 2024) [hereinafter “LaFave”]. With our unpublished

cases universally coming out the other way, and Canas’s facts inapposite at best,

the majority scraps existing case law and invokes out-of-state authorities to fashion

a new-to-Iowa limitation on searches incident to arrest. I strongly disagree with

this endeavor.

This departure from the fact-bound analysis in our unpublished cases

unnecessarily launches us into the middle of a nationwide dispute over whether

the search-incident-to-arrest analysis should turn on whether the searched

container is accessible to the arrestee at the time of the arrest or the time of the

search. In other words, is the scope of searches incident to arrest subject to a

“time-of-arrest” or “time-of-search” limitation?

In answering this question, the majority opinion gives a lopsided and

incomplete recitation of where other courts have landed. While there is some

authority that supports the majority’s position, the majority opinion curiously omits

from discussion the equal or greater number of state and federal appellate courts

that have expressly come out the other way and held that a container in the

arrestee’s possession at the time of arrest may be searched without a warrant,
22

regardless of whether the arrestee could access the container at the time of the

search. See, e.g., Commonwealth v. Bembury, 677 S.W.3d 385, 406 (Ky. 2023)

(“[W]e conclude that a container capable of carrying items, such as a backpack,

can be considered part of an arrestee’s ‘person’ for the purposes of a search

incident to lawful arrest.”), cert. denied sub nom. Bembury v. Kentucky, 144

S. Ct. 1459 (2024)9; United States v. Perez, 89 F.4th 247, 261 (1st Cir. 2023) (re-

affirming as law of the circuit that the search of “personal property carried by an

arrestee at the time of the arrest” is permissible per United States v. Eatherton,

519 F.2d 603, 610 (1st Cir. 1975) (affirming search of a briefcase incident to arrest

even though the arrestee “had been subdued and the case removed from his

possession and beyond his possible reach”)); Price v. State, 662 S.W.3d 428, 438

(Tex. Crim. App. 2020) (adopting a time-of-arrest rule, at least for containers in the

arrestee’s immediate possession that would inevitably be taken to the stationhouse

upon arrest); State v. Brownlee, 461 P.3d 1015, 1021–22 (Or. Ct. App. 2020)

(taking a time-of-arrest approach and expanding the scope of the search incident

to items possessed at the time of arrest and items or area “immediately associated

with the arrestee at that time”); Greene v. State, 585 S.W.3d 800, 806–08

(Mo. 2019) (rejecting expansion of Gant beyond automobiles, applying Robinson

and its progeny to affirm “a reasonably delayed search of items found on a

9 The defendant in Bembury petitioned for certiorari on this very issue. The petition

described the time-of-arrest vs. time-of-search issue as concerning “a deep split
among federal and state lower courts.” Petition for Writ of Certiorari, Bembury v.
Kentucky, No. 23-802 (2024), 2024 WL 305621, at *11, *13–24. Kentucky’s brief
in opposition acknowledged the divide among courts but urged that case did “not
cleanly contribute to [the] split.” Brief in Opposition, Bembury v. Kentucky,
No. 23-802 (2024), 2024 WL 1421514, at *23.
23

defendant’s person at the time of arrest”—specifically a cigarette pack); United

States v. McLaughlin, 739 F. App’x 270, 275–76 (5th Cir. 2018) (affirming search

of envelope on defendant’s person at time of arrest, even though defendant could

not access envelope after he was “handcuffed and beyond reaching distance”);

State v. Mercier, 883 N.W.2d 478, 493 (N.D. 2016) (“Because Mercier had the

backpack in his actual possession immediately preceding his lawful arrest, we

conclude a search thereof was reasonable.”)10; People v. Cregan, 10

N.E.3d 1196, 1203–07 (Ill. 2014) (holding objects and containers physically

possessed by arrestees at the time of arrest are subject to search incident to

arrest); State v. Adams, 45 N.E.3d 127, 159 (Ohio 2015) (“[T]he right to search

incident to arrest exists even if the item is no longer accessible to the arrestee at

the time of the search. As long as the arrestee has the item within his immediate

control near the time of the arrest, the item can be searched.” (citation omitted));

State v. Byrd, 310 P.3d 793, 798 (Wash. 2013) (surveying in-state cases and

noting, “Washington courts have long applied this [time-of-arrest] rule, holding that

searches of purses, jackets, and bags in the arrestee’s possession at the time of

arrest are lawful under both the Fourth Amendment and article I, section 7 [of the

Washington Constitution].”); People v. Marshall, 289 P.3d 27, 31 (Colo. 2012)

(rejecting expanding Gant to searches of a person and holding, in the context of a

backpack possessed at the time of arrest but not searched until the defendant was

10 The majority cites a different North Dakota case: State v. Lelm, 962 N.W.2d 419

(N.D. 2021). But Lelm involved search of a bag inside an automobile and thus
implicated Gant. Id. at 422 (noting Lelm was a passenger and the backpack was
“on his lap” while inside the car). This case concerns search of a person and his
effects—not an automobile. And Lelm did not purport to overrule Mercier, which
remains the applicable North Dakota authority.
24

secured inside a patrol vehicle, “[t]hat [the defendant] was secure has no bearing

on the analysis in this case because [the defendant] forfeited his expectation of

privacy in the backpack when he was arrested”); United States v. Perdoma, 621

F.3d 745, 750–53 (8th Cir. 2010) (affirming search incident to arrest of a bag after

the defendant was handcuffed and an officer “had taken control of the bag,” when

the bag remained in the vicinity of where the defendant was arrested).

These cases largely speak for themselves, but a few highlights stick out:

• From an originalist or historical perspective, it seems clear the
Framers would have no constitutional concerns over a search incident
to arrest of “luggage” or “saddlebags” in a person’s possession. E.g.,
Price, 662 S.W.3d at 435 (citing Birchfield’s discussion of the Fourth
Amendment’s original meaning); Mercier, 883 N.W.2d at 487–88 (same).

• The time-of-arrest rule follows logically from Robinson and is
consistent with all existing United States Supreme Court precedent.
E.g., Bembury, 677 S.W.3d at 404–06; Mercier, 883 N.W.2d at 488–89;
Cregan, 10 N.E.3d at 1202–03; Marshall, 290 P.3d at 29–30.

• The best reading of Gant is that it does not extend beyond
automobiles to the search incident to arrest of a person and his or her
effects. E.g., Mercier, 883 N.W.2d at 489 (“Nothing in the Court’s opinion
in Gant, however, suggested it was meant to limit or abrogate the Robinson
holding of a search of the arrestee incident to arrest.”), 490 (“Because the
Supreme Court’s decision in Gant does not restrict the lawful search of an
arrestee, there is no requirement that the arrestee be within reaching
distance or have the item within his immediate control once it is seized as
part of the lawful arrest.”); Cregan, 10 N.E.3d at 1202 (rejecting a “broad”
reading of Gant and noting it only “clarified and limited the search-incident-
to-arrest exception as applied to vehicles”); Byrd, 310 P.3d at 794 (holding
Gant did not “restrict[ ] searches of the arrestee’s person”); Marshall, 289
P.3d at 30 (rejecting expansion of Gant and noting “a factual distinction
between searches of cars and persons”).

• And practical considerations support the time-of-arrest rule because
it permits officers to secure suspects without drawing artificial lines
between a person and their pockets or immediate possessions (which
may understandably be secured in the course of an arrest to ensure
officer safety). E.g., Byrd, 310 P.3d at 798 (“The time of arrest rule reflects
the practical reality that a search of the arrestee’s ‘person’ to remove
weapons and secure evidence must include more than his literal
25

person[,] . . . [and] the same exigencies that justify searching an arrestee
prior to placing him into custody extend not just to the arrestee’s clothes,
however we might define them, but to all articles closely associated with his
person.”); see also LaFave, § 5.5(a) n.4 (“The ‘time of arrest’ rule is a
common-sense way to determine whether a container capable of carrying
items, such as a backpack, is considered part of an arrestee’s person and
therefore subject to being searched upon lawful to arrest . . . ”).11

It is not clear why the majority overlooks these decisions and their (in my

view) convincing analysis. But an answer can perhaps be found in footnote seven

of the majority opinion, where the majority claims “[t]he State does not argue that

Scullark’s fanny pack was part of his ‘person’ and could be searched just as the

pockets of his clothing.” This is quite a myopic and hyper-technical reading of the

briefing. The State’s position at the suppression hearing and on appeal was that

this was a lawful search incident to arrest. This is at least as specific as Scullark’s

motion to suppress—which cited no case law but instead vaguely asserted the

search was “in violation of the Fourth Amendment to the Constitution of the United

States and article I, section 8 of the Iowa Constitution.” And the rationale of this

dissent is essentially the rationale adopted by the district court, drawing on our

unpublished cases. Again curiously, the majority opinion has no trouble expanding

the defendant’s argument to embrace this issue of first impression (for example,

more than half of the cases cited by the majority do not appear in either party’s

11 The majority cites a different portion of LaFave’s treatise and claims it supports

the decision to reverse here. See LaFave, § 7.1(c). Not so. The portion of the
treatise cited by the majority comes from a chapter titled: “Search and Seizure of
Vehicles.” And it draws on the “quite specific” language from Gant regulating those
who are “unsecured and within reaching distance of the passenger compartment.”
Id. (quoting Gant, 556 U.S. at 343). At risk of beating a dead horse to make an
obvious point, this is not a vehicle case. This case is about search of a person
and his personal effects. Perhaps unsurprisingly, the chapter of LaFave’s treatise
I cite is titled: “Seizure and Search of Persons and Personal Effects.” Id. § 5.5(a).
And it does not adopt the position claimed by the majority. See id.
26

briefs), yet it interprets the State’s position and the district court ruling in an

artificially narrow way. If we are going to drift beyond the briefs and start

freelancing our research, we ought to at least do so in a way that is fair to all parties

and the district judge whose work we are reviewing.

If forced to decide this issue of first impression, I would find the time-of-

arrest authorities compelling, consistent with constitutional principles and

precedent, and workable in practice. The time-of-arrest rule would require we

affirm here, as even the majority acknowledges Scullark was “wearing [the] fanny

pack around his waist” when arrested. For the reasons expressed in the cited

authorities and United States Supreme Court case law, I believe the time-of-arrest

rule is what this court or our supreme court should adopt in an appropriate case.

But I see another error in the majority’s analysis, independent of the time-

of-arrest and time-of-search question: the majority delves into subjective review of

the arresting officer’s intent and beliefs about the proper scope of the search. The

majority opinion opens by quoting the officer and later opines “nothing in our record

shows that the search of [the] fanny pack was necessary for [officer] safety.” But,

under controlling case law, these subjective case-by-case inquiries are neither

permissible nor relevant. The Supreme Court in Robinson expressly rejected both

consideration of officers’ “subjective fear” that an arrestee was armed and any form

of “case-by-case adjudication,” instead favoring a bright-line rule. 414 U.S.

at 235-36. In other words, the validity of a search incident to arrest does not

depend on “the probability in a particular arrest situation that weapons or evidence

[will] in fact be found.” Id. at 235; see also Michigan v. DeFillippo, 443 U.S. 31, 35

(1979) (“The constitutionality of a search incident to an arrest does not depend on
27

whether there is any indication that the person arrested possesses weapons or

evidence.”). This portion of the Robinson analysis, like what was discussed above,

is still good law: it was discussed at length in Birchfield, where the Court described

Riley as having “reaffirmed ‘Robinson’s categorical rule’” and emphasized the

legality of a search incident to arrest “does not depend on whether a search of a

particular arrestee is likely to protect officer safety or evidence.” Birchfield, 579

U.S. at 460; see also State v. Wissing, 379 P.3d 413, 420–22 (Kan. Ct. App. 2016)

(citing Robinson and Birchfield to reach the same conclusion). The majority errs

and diverges from controlling authority when it analyzes the record contrary to

these holdings.

As a policy matter, I am also troubled by implications the majority opinion

will have for officer safety. The officer in this case testified he did not protest or

physically interfere with Scullark handing the fanny pack to his friend because the

officer “didn’t want to escalate the situation because [he] was the only officer inside

the residence at that time.” Under the time-of-search rule, the next police officer

facing the facts of this case would have to weigh escalating the use of force against

potentially forfeiting a search of the container for weapons or contraband incident

to arrest. In contrast, under the time-of-arrest rule, police officers are not forced to

make this spit-second calculation that could potentially result in injury or loss of life

and can instead rely on the bright-line categorical rule that items and containers in

the suspect’s possession at time of arrest are subject to search—whether the

search happens before or immediately after the suspect is safely restrained and

no longer an immediate threat. I also view the officer’s conduct on the body

camera differently than the majority, as it seems clear on my viewing that the officer
28

was doing his best to de-escalate a highly charged encounter in which he was the

only officer in the house and nonetheless allowed Scullark’s friends to surround

him and engage with Scullark—even while Scullark was uncooperative. It runs

counter to principles of reasonableness for us to suppress evidence because the

officer chose not to escalate and use greater force during Scullark’s arrest.

As a penultimate note, it is also unclear to me whether the majority grounds

its decision under the state or federal constitution or perhaps both. Part of the

confusion may flow from the majority’s reliance on State v. Gaskins—which is, in

my opinion, precedent of questionable vitality. See 866 N.W.2d 1 (Iowa 2015);

see also State v. Kilby, 961 N.W.2d 374, 382 (Iowa 2021) (overruling a case that

“relied heavily” on Gaskins). I do not believe Gaskins compels or supports the

result in this case. First, Gaskins is easy to distinguish, as it involved search of a

locked safe within the defendant’s car when the defendant and his passenger were

secured in a separate police vehicle—as opposed to a bag within the actual

possession of a suspect or his friend. See 866 N.W.2d at 7–8, 14. And the

Gaskins court specifically reserved for another day cases “in which the security of

an arresting officer is implicated” or “when the arrested person is within reach of

contraband and thus able to attempt to destroy or conceal it.” Id. at 15.

But if, as the majority seems to conclude, Gaskins undermines federal

cases like Robinson or requires the suppression of evidence on the facts of this

case under the state constitution, it probably ought to be overruled. Gaskins was

sharply divided and deeply fractured, with a four-justice majority, a two-justice

special concurrence, a three-justice special concurrence, and two three-justice

dissents. See generally id. As one of the Gaskins dissenters observed, the
29

rationale in that case—even more so if expanded to the facts here—“unduly

restricts police searches and creates practical problems undermining public

safety.” Id. at 38 (Waterman, J., dissenting). Or, as the other dissent put it, the

rule adopted by the Gaskins majority “compromises officer safety and creates an

additional opportunity for the destruction or concealment of evidence.” Id. at 60

(Zager, J., dissenting). In reading the Gaskins majority and concurrences’ many

pages, there is little or no textual grounding in either constitution. See id. at 52-53,

52 n.27 (Waterman, J., dissenting) (quoting the State’s brief to comment on the

text: “One expects that, if the semicolon in Article I, section 8 fundamentally altered

the meaning of that provision, this argument would have emerged at some point

within the first 150 years this Court interpreted the Iowa Constitution—not for the

first time in 2010.”). I believe Gaskins was wrongly decided. And while it is my

duty as an intermediate appellate judge to apply supreme court precedent, I

disagree with the majority that Gaskins supports the outcome here.

Last, a return to the facts and the issue at the heart of all this legal wrangling.

Scullark was lawfully arrested with methamphetamine in a fanny pack around his

waist, and he handed the pack to his friend in a bid to prevent police from finding

his drugs. Both the Fourth Amendment and article I, section 8 permit reasonable

searches. The majority concludes it was constitutionally unreasonable for police

to secure a potentially dangerous suspect and search a fanny pack the suspect

handed to his friend after the arrest. I disagree, as I believe our constitutions—to

say nothing of our case law and historical practice—permit this commonsense

policework.