If you thought Iowa was boring—perhaps the sixth most boring state—well, that certainly isn’t the case when it comes to search and seizure law. Witness the Iowa Supreme Court’s June 13, 2025, decision in State v. Amble, No. 23-2114, which permits Iowa police unfettered residential trash pulls, and which raises a host of fascinating issues, including separation of powers in interpreting a constitution.
Here’s my initial take—
Not Exactly a Science – the Who’s Who of Iowa Search and Seizure
From statehood in 1846 until the year 2000, the Iowa Supreme Court seemed to interpret its state constitutional search and seizure analog (Article 1, Section 8) in lockstep with the federal Fourth Amendment: “[G]iven the similar wording of the Fourth Amendment and Iowa’s search and seizure clause, these provisions are generally considered,” said the court in 2000, “to be identical in scope, import, and purpose.” But in that case this changed, with the court unanimously rejecting, as a matter of state constitutional law, the ‘good-faith’ (reasonable reliance) exception to the Fourth Amendment’s exclusionary rule:
[A]lthough this court cannot interpret the Iowa Constitution to provide less protection than that provided by the United States Constitution, the court is free to interpret our constitution as providing greater protection for our citizens’ constitutional rights. … [O]ur court would abdicate its constitutional role in state government were it to blindly follow federal precedent on an issue of state constitutional law.
As to that second sentence, that’s precisely right. And predictably, with the monolith lockstep thus fractured, further cracks would follow. In 2010, in State v. Ochoa, the court cited my own early work in the course of asserting a more vigorous doctrine of independent construction, concluding with this:
[W]e now hold that, while United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions. A Fourth Amendment opinion of the United States Supreme Court, the Eighth Circuit Court of Appeals, or any other federal court is no more binding upon our interpretation of article I, section 8 of the Iowa Constitution than is a case decided by another state supreme court under a search and seizure provision of that state’s constitution. The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision. When both federal and state constitutional claims are raised, we may, in our discretion, choose to consider either claim first in order to dispose of the case, or we may consider both claims simultaneously.
Strong words. Thus, in an extended analysis—and without dissent—the Ochoa court rejected a permissive Fourth Amendment doctrine of parolee search.
And the departures kept coming. Most relevantly, in 2021 in State v. Wright, the court rejected the longstanding Fourth Amendment rule that there is no federal constitutional constraint on residential trash pulls of garbage left for collection (California v. Greenwood). But the Wright opinion was far from unanimous. It was a 4-3 split, with three independently written dissents. What happened between Ochoa and Wright to explain that divergence?
Well, in 2011—just after that unanimous Ochoa opinion—a new sheriff came to town: Thomas D. Waterman. And when the Iowa Supreme Court shortly thereafter again diverged from the Fourth Amendment in 2014 in State v. Short, Justice Waterman dissented, and with gusto. He decried the Ochoa court’s “chest-thumping assertion of judicial power” that had since “metastasized” in cases that followed, calling the court back to lockstep interpretation of its state analog.
And what a difference a new sheriff (or sheriffs) and a few years can make. Today (the time of Amble), Justice Waterman writes for a nearly unanimous court, with only a lone, solo dissent, bringing Iowa constitutional law back into coherence with the dog that is California v. Greenwood, 486 U.S. 35 (1988). So it goes.
The Sins of The Fathers – Greenwood
Greenwood permits police, as a matter of Fourth Amendment law, to comb through residential garbage left for municipal trash collection without any constitutional restraint. Greenwood is old: from 1988. Greenwood is normatively terrible: First, it makes a federal constitution only the relatively wealthy can love, as they can largely protect themselves from such intrusions with sophisticated systems of surveillance cameras. Second, the doctrine by analogy could do great harm—if persons have no reasonable expectation of privacy in their trash because it is left for collection, then by analogy persons could have no reasonable expectation of privacy in their internet communications which are left for their service providers.
As I worked out many years ago, this should not be the rule, because the Supreme Court’s so-called third party doctrine should apply only where information is provided to a third party for that party’s use. Such a ‘limited third party doctrine,’ as I termed it, remains deeply problematic, to be sure, and Carpenter v. United States, 585 U.S. 296 (2018), takes the obviously better part. But a limited third party doctrine avoids catastrophe—in any event, I won’t rehash here my decades-long scholarly discussion of all that.
Before getting back to Greenwood and what ought to be the constitutional rule in a moment, let’s take a brief look at what Iowa did between Wright in 2021 (providing state constitutional restraint on residential trash pulls) and Amble in 2025 (reversing course).
Whose job is it anyway? – From Wright to Iowa Code 808.16 to Amble
So, again, in Wright (2021), the Iowa Supreme Court held that its state constitution forbids warrantless residential trash pulls.
The Iowa legislature then passed a most remarkable law. Iowa Code 808 governs Search and Seizure, and the new 808.16 (effective July 1, 2022) provides as follows:
808.16 Exception to search warrant requirement — garbage searches.
1. It is the public policy of this state that a person has no reasonable expectation of privacy in garbage placed outside of the person’s residence for waste collection in a publicly accessible area.
2. A city or county shall only adopt an ordinance or a regulation concerning waste management and sanitation for the purposes of promoting public health and cleanliness. An ordinance or a regulation adopted by a city or county shall not be construed by a person to create a reasonable expectation of privacy in garbage placed outside of the person’s residence for waste collection in a publicly accessible area.
3. Garbage placed outside of a person’s residence for waste collection in a publicly accessible area shall be deemed abandoned property and shall not be considered to be constitutionally protected papers or effects of the person.
4. A peace officer may conduct a search and may seize garbage placed outside of a person’s residence for waste collection in a publicly accessible area without making an application for a search warrant.
Wow. Now, one the one hand, a legislature can certainly opine on what it believes is the correct interpretation of a constitution… so long as it recognizes the jurisdiction’s high court is the ultimate arbiter. (An executive—a governor or president—can certainly do the same.) Still, this “four-pronged belt-and-suspenders approach,” as the Iowa Supreme Court would appropriately term it, is a remarkable attempt to reject that court’s Wright decision, meaning it is a remarkable attempt to reject the Iowa Supreme Court’s interpretation of the Iowa constitution.
So, what did that Court make of the law? Well, we know where Justice Waterman stands on the constitutional substance—no chest thumper, ‘let’s be lockstep’ he—and that’s what it seems to take, as he wrote in Amble (2025) for six Justices, rejecting the holding of Wright and permitting constitutionally unregulated residential trash pulls.
The Amble court relied upon a single provision of that Iowa law, and in three steps: (1) the legislature was free in 808.16(3), said the court, to declare trash left for collection abandoned; (2) that abandonment removes a critical linchpin from Wright, namely that a then-existing-municipal law restricting garbage left from collection against scavengers created a reasonable expectation of privacy; and (3) there is thus no longer state constitutional restriction on residential trash pulls. As for the remarkable remainder of 808.16? The court held it could, and therefore should, avoid that constitutional separation of powers question.
That is super interesting—as is, for search and seizure geeks, whether Amble’s interpretation of Wright is credible. There is a great deal going on there. But it’s nearing time to wrap up this single blog post, and so let me finish with how I believe courts ought to confront residential trash pulls, including under the federal Fourth Amendment. In other words, if we could scrap Greenwood, how ought things to look?
So what’s it all mean? – The Better Path
After United States v. Jones, 565 U.S. 400 (2012), we know there is a Fourth Amendment search when police physically intrude into a constitutionally protected area in order to obtain information. The question here, then, is whether residential trash left for municipal collection is a protected area. The answer, I submit, ought to be ‘yes,’ so long as Iowans generally do not root through each others’ trash. (And if they do… what the heck is wrong with Iowans?)
As I have developed in the context of working out the constitutional restraints on drone flight, “government surveillance does not pass Fourth Amendment muster merely because unrelated private persons could obtain the relevant information, but rather only if they routinely do obtain that information. Only in the latter case is it unreasonable to expect privacy.”
So, the matrix should look like this—
| Do Iowans routinely root through others’ trash? | |||
| Yes | No | ||
| Does the positive law permit Iowans to root through others’ trash? | Yes | No search – It is not reasonable to expect privacy in residential trash left for collection | Search – It is reasonable to expect privacy when unrelated private persons do not routinely obtain that information |
| No | Search – It is reasonable to expect police to obey positive law (but see the horrible ‘open fields’ 4th Am caselaw and Virginia v. Moore) | Search – It is doubly reasonable to expect privacy | |
Iowa Code 808.16 might put Iowa in that top row, but, critically: (1) it is not clear, as 808.16(2) seems to permit restrictive trash laws—the Iowa legislature solely wants to deny those laws constitutional relevance, hence raising a serious separation of powers issue, and, regardless (2) constitutional protection still ought to depend upon what Iowans routinely do, not merely what the law permits them to do.
Putting the same chart into words,
1. If citizens of Iowa do routinely go through others’ trash (why?!), but municipal law says they cannot, it is reasonable to expect police to obey the positive law, and thus a residential trash pull ought to be a search. (But this reasonable interpretation runs into Supreme Court Fourth Amendment caselaw, both the ‘open fields’ cases and the detestable Virginia v. Moore. I’m not asserting this is Fourth Amendment law; it should be, and thus is there for states in interpreting their own constitutions.)
2. If citizens of Iowa do not routinely go through others’ trash, then, it is reasonable to expect such privacy against the police, especially if doing so violates positive law. So, a residential trash pull ought to constitute a search.
3. If citizens of Iowa do routinely go through others’ trash—and the law says they can—it is indeed not reasonable to expect police to be the only ones to ‘shield their eyes.’ So, there would be no reasonable expectation of privacy and thus no search.
Finally, does conclusion 2 or 3 mean that police could not then conduct residential trash pulls? Nope. That police would then need a warrant to conduct residential trash pulls? Nope. Not without more. The constitutional criterion for searches in both state and federal constitutions is that they be reasonable, which sometimes requires a warrant (and sometimes does not), and which typically requires probable cause (but sometimes does not). And the importance of these truths cannot be overstated; past law is rife with instances in which neither legislatures nor courts smartly leveraged them. If a warrant requirement would stifle socially necessary investigation, well, there are all sorts of potential alternatives, including a lesser court order, and/or mandatory record keeping and public reporting. As important as warrants can be, warrant myopia causes ironically many privacy failures.
So, that’s how we ought to do it.
Search and seizure law in Iowa?
Disappointing, perhaps.
Disjointed, to be sure.
But not boring.
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