text:
    In the Interest of H.N.B. and A.J.B., Minor Children, B.L. and C.L., Appellants.
    No. 00-97.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Elizabeth A. Rosenbaum, Sioux City, for appellants.
    Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, and Dewey Sloan, Assistant County Attorney, for appellee-State.
    Suzan E. Boden of Vriezelaar, Tigges, Edgington, Rossi, Bottaro & Boden, L.L.P., Sioux City, for appellee-guardians.
    Marchelle Denker of the Juvenile Law Center, Sioux City, for minor children.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   CADY, Justice.

Byron and Christina Loft appeal from an order by the district court denying their motion to intervene in a parent-child termination proceeding. We affirm the district court.

I. Background Facts and Proceedings.

Byron and Christina Loft are kind and caring people who sought to intervene in this parent-child termination action after the juvenile court entered an order terminating parental rights to the children in interest. The Lofts had been foster parents to one of the children for a period of time prior to the termination action, and sought to intervene to seek custody and guardianship of the children for the ultimate purpose of adopting them.

The children in interest are sisters, who have been identified as H.N.B. and A.J.B. H.N.B. was born March 12, 1996, and A.J.B. was born October 26, 1997. Both children are enrolled members of the Rosebud Sioux Tribe of South Dakota. They share the same natural mother and father, whose parental rights were terminated on April 16, 1999. The termination orders are not at issue in this appeal. The Lofts filed their motion to intervene and application for custody and guardianship on June 11,1999.

Byron is an enrolled member of the Canadian Tribe of the Mohawks of the Bay of Quinte. Although this tribe is a member of the Six Nations Confederacy, it is not federally recognized by the United States Secretary of the Interior. Christina is Caucasian and suffers from Crohn’s disease. Both of the Lofts are thirty-two years old. The Iowa Department of Human Services recognizes the Loft home as a Native American foster family. They were foster parents to H.N.B. for approximately nine months. This foster care placement ended in May 1997.

On June 28, 1999, Carleton and Shirley Helseth filed a motion to intervene and an application for custody and guardianship of H.N.B. and A.J.B. Like the Lofts, they too are kind and caring people who have opened their home for foster care. The children have been in the Helseths’ foster care home since March 4, 1998, and have developed a strong bond with them.

Carleton is a doctor at Grandview Medical Center in Sioux City, while Shirley is a registered nurse. Shirley stopped working after H.N.B. and A.J.B. were placed in the Helseths’ care. Carleton is seventy-one years of age and has been diagnosed with Parkinson’s disease. Shirley is fifty-one years old. They are both Caucasian. The Helseths’ home is a licensed foster family home.

The Rosebud Sioux Tribe filed a motion to transfer jurisdiction and dismiss on August 6, 1999, arguing the Indian Child Welfare Act [hereinafter ICWA] governed the proceedings. The district court consolidated all of the pending motions and held a hearing. After the presentation of the evidence, the Lofts withdrew their guardianship application.

The district court denied the Rosebud Sioux Tribe’s motion to transfer jurisdiction and dismiss, finding that good cause existed to modify the preferences of the ICWA. The district court also denied the Lofts’ motion, but granted the Helseths’ motion to intervene and ordered guardianship and custody of the children to be transferred to the Helseths. The court noted that the Helseths had established a substantial family relationship with H.N.B. and A.J.B., and that the children’s natural mother requested that the children stay with the Helseths.

The Lofts appealed, advancing several arguments, including that the district court erroneously denied their motion to intervene. The Lofts claim they are sufficiently interested in the litigation before this court, especially considering the provisions of the ICWA, and therefore have a right to intervene. The Lofts also allege a variety of claims related to the failure of the district court to follow the preferences of the ICWA.

The Rosebud Sioux Tribe has not appealed. However, the Tribe has filed a position statement with this court, requesting that H.N.B. and A.J.B. be placed with the Lofts if the court refuses to return them to the Tribe.

II. Scope of Review.

Our review of a denial of a motion to intervene is for the correction of errors at law. In re A.G., 558 N.W.2d 400, 403 (Iowa 1997); In re 514 N.W.2d 425, 426 (Iowa 1994). Although our review is on error, we accord some discretion to the district court. AG., 558 N.W.2d at 403; B.B.M., 514 N.W.2d at 426. The district court exercises this discretion when determining whether an applicant intervenor is “interested” in the litigation before the court. A.G., 558 N.W.2d at 403.

III. The Right of Intervention.

The fundamental and paramount issue we face in this case is whether the Lofts have a right to intervene. Iowa Rule of Civil Procedure 75 delineates who is generally entitled to intervention. Rule 75 provides “[a]ny person interested in the subject matter of the litigation, ..., may intervene at any time before trial begins .... ” Iowa R. Civ. P. 75. Although we are to liberally construe the rule of intervention, we must be certain that the applicant has asserted a legal right or liability that will be directly affected by the litigation. In re J.R., 315 N.W.2d 750, 752 (Iowa 1982).

In determining whether an applicant has a legal interest, we examine the source of the right claimed. A.G., 558 N.W.2d at 403. An indirect, speculative, or remote interest will not provide one a right to intervene. Id.-, see 59 Am.Jur.2d Parties § 134, at 591-92 (1987) (to have an interest in an action, a person must assert more than a mere general interest in the subject matter of the litigation); 67A C.J.S. Parties § 75, at 815 (1978) (same). Thus, the mere interest or desire to adopt a child will not qualify as a sufficient interest. B.B.M., 514 N.W.2d at 427 (noting that if such an interest were found sufficient, an unlimited number of people would be entitled to intervene); In re C.L.C., 479 N.W.2d 340, 344 (Iowa App.1991) (same). On the other hand, statutes often provide the best guidance in determining who possesses the right to intervene. 59 Am. Jur.2d Parties § 133, at 587 (“[t]he right of intervention depends largely on the construction of the particular statute or rule under consideration”); see also AG., 558 N.W.2d at 403 (statute may support right to intervention if the right will be directly affected by the outcome of the suit).

Section 232.117(3) of the Iowa Code is the statute applicable to this matter. It provides in pertinent part:

If the court terminates the parental rights of the child’s parents, the court shall transfer the guardianship and custody of the child to one of the following:
c. A parent who does not have physical care of the child, other relative, or other suitable person.

Iowa Code § 232.117(3) (1999) (emphasis added). Thus, after a juvenile court terminates the parental rights of a child’s natural parents, those qualifying as “suitable persons” under section 232.117(3) are given the legal right to be considered as the child’s guardian.' C.L.C., 479 N.W.2d at 343 (relying on the rationale of J.R., 315 N.W.2d at 750).

The term “suitable person” is not defined by our legislature. C.L.C., 479 N.W.2d at 344. Instead, it is a flexible term which provides the district court with discretion to determine the “suitable person” status based on the particular facts of each petition for intervention. See A.G., 558 N.W.2d at 404; C.L.C., 479 N.W.2d at 344. Thus, the Lofts have a statutory avenue to intervene if their interest is sufficient enough to rise to the level of a “suitable person” for the purpose of appointment as custodian and guardian following the termination.

The sufficiency of the interest asserted by the intervenor under the “suitable person” provision is considered in light of the nature of the proceeding and surrounding facts and circumstances. See A.G., 558 N.W.2d at 404; B.B.M., 514 N.W.2d at 427-28. Additionally, the focus must always include the welfare and best interests of the child. See 514 N.W.2d at 428. The intervention must be compatible with the child’s best interest. See id. at 429 (cannot elevate interests of intervening grandparents above those of the child).

We have previously indicated that the closeness of the relationship between the child in interest and the intervenor is a critical factor in determining the sufficiency of the interest of an intervenor. See id. Thus, in B.B.M., we found the lack of an ongoing relationship between the child in interest and his grandparents weighed against intervention by the grandparents in a termination proceeding. Id. On the other hand, the formation of a close relationship between the intervenor and the children in interest has supported a petition for intervention in a parent-child termination action. See C.L.C., 479 N.W.2d at 344. In B.B.M., the grandparents were literally “strangers” to the child, B.B.M., 514 N.W.2d at 429, while in C.L.C., the couple who sought to intervene had devoted a significant amount of time each week to the children for nearly two years prior to the intervention. C.L.C., 479 N.W.2d at 344. They also provided financial support to the children. Id.

Another factor in determining a “suitable person” is the existence of other prospective adoptive parents who maintain a strong relationship with the child. If the child has no strong bond with a prospective adoptive parent, the intervenors’ own lack of an ongoing relationship with the child becomes less important in determining their suitability to intervene. See B.B.M., 514 N.W.2d at 429 (children had not established bonds of affection); J.R., 315 N.W.2d at 753 (children had established bonds of affection).

The Lofts, unlike the couple in C.L.C., have not established a family relationship with H.N.B. and A.J.B. The Lofts were foster parents to H.N.B. for nine months, but this ended in May 1997, when H.N.B. was fourteen months old. The Lofts have not had contact with her since that time. More than two years have passed from the time the Lofts have had any contact with H.N.B. and the filing of the petition for intervention. In addition, the Lofts have never had any contact with A.J.B. Thus, the Lofts have not established the same level of relationship as the prospective adoptive parents did in C.L.C. Furthermore, there is ample evidence that the children have a positive ongoing relationship with foster parents who do desire to adopt.

Other factors may also exist to support the existence of a sufficient interest to justify intervention. See B.B.M., 514 N.W.2d at 430-31 (medical necessity may support intervention). In this case, the Lofts assert the provisions of the ICWA apply and enhance their suitability. We agree that H.N.B. and A.J.B. are Indian children for purposes of the ICWA. See 25 U.S.C.A. § 1903(4) (1983) (“‘Indian child’ means any unmarried person who is under age eighteen and is ... a member of an Indian tribe.... ”). However, Byron does not satisfy the definitional requirements of an Indian under the ICWA. To be recognized as an Indian, an individual’s tribe must be eligible for benefits provided by the Secretary of the Interior. See 25 U.S.C.A. §§ 1903(3) (definition of Indian), 1903(8) (definition of Indian tribe). Byron’s tribe, the Mohawks of the Bay of Quinte, is not federally recognized by the Secretary. Therefore, because Byron is not an Indian under the ICWA, the Lofts cannot be considered an Indian family, and are not entitled to a preference in the adoptive placement of Indian children. See 25 U.S.C.A. § 1915(a) (with the adoption of an Indian child, a preference in placement is given to: “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families” (emphasis added)).

In addition, the Lofts are not entitled to a preference for foster care or preadoptive placement as a “foster home ... approved, or specified by the Indian children’s] tribe.” 25 U.S.C.A. § 1915(b)(ii). The Rosebud Sioux Tribe did file a position statement with this court requesting the children to be placed with the Lofts if we do not place them with the Tribe. However, we do not find a position statement to be the equivalent of Tribe approval or specification as required by section 1915(b)(ii). Thus, because the ICWA is inapplicable to the Lofts, the ICWA does not enhance their suitability to be guardians under Iowa Code section 232.117(3).

We are unable to distill any other circumstances from the facts presented to the district court to support intervention by the Lofts. We understand Byron still has the ability to raise the children in an Indian culture even though the law gives him no recognized preference. The children will benefit from an environment which will maintain their heritage and culture as they grow into adults, and the ability of prospective parents to do this will be a proper consideration in the proceedings that will follow in this case. Thus, it is a factor to consider in permitting intervention, but one we think the district court considered. Moreover, it is not sufficient enough for us to conclude the district court abused its discretion in fading to permit intervention by the Lofts considering all the circumstances.

We conclude the district court acted within its discretion in finding the interests of the Lofts as “suitable persons” under section 232.117(3) were insufficient to support intervention. The term “suitable persons” cannot be interpreted to include every non-relative interested in adopting a child. C.L.C., 479 N.W.2d at 344. Moreover, it cannot be interpreted to include intervenors who have had no relationship with the children when the children maintain an ongoing relationship with a foster family who do want to adopt. The Lofts do not possess a sufficient interest in light of all the circumstances of the case, and consequently do not have a legal right that will be directly affected by the litigation as required by Rule 75. Thus, because we affirm the denial of the Lofts’ motion to intervene, we need not address any other issues presented.

IV. Conclusion.

We conclude the district court properly denied the Lofts’ motion to intervene. Our resolution of this issue disposes of the remaining claims.

AFFIRMED.

McGIVERIN, Senior Judge, participates in place of LARSON, J., who takes no part.

      . Only the father appealed his termination of parental rights. The court of appeals affirmed the termination on December 13, 1999.

      . The other five member tribes are located in the United States and are federally recognized by the United States Secretary of the Interior.

      . Although we do not automatically apply the rules of civil procedure to a juvenile proceeding, we have permitted applicants to intervene in a termination of parental rights proceeding. In re A.G., 558 N.W.2d 400, 402 (Iowa 1997); In re J.R., 315 N.W.2d 750, 752 (Iowa 1982) (noting "[t]he termination of parental rights provisions of the juvenile justice code do not set out procedures of intervention”).


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Jerry Lee GILLESPIE, Appellant.
    No. 99-1514.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Timothy McCarthy II of McEnroe, McCarthy & Gotsdiner, P.C., West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Alan M. Wilson, County Attorney, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   LAVORATO, Chief Justice.

The defendant, Jerry Lee Gillespie, appeals from the judgment and sentence entered upon his conviction of receipt of a precursor substance with intent to use such substance to manufacture a controlled substance. See Iowa Code § 124B.9(2) (1997). He challenges a district court ruling denying his motion to suppress evidence seized following a search of his vehicle. We conclude that, because there was no probable cause for the search, the district court erred in denying the motion. We reverse and remand.

I. Facts.

On June 17, 1998, at approximately 12:30 a.m., officer Chad Butler was on patrol for the Seymour Police Department in Wayne County, Iowa. He was patrolling the area around an anhydrous ammonia facility owned by Fowler Elevator. Butler knew there had been at least four anhydrous thefts at the facility during the month of June. Because of his experience with drug trafficking, Butler was aware anhydrous ammonia was used in the production of the controlled substance, methamphetamine.

As he was driving, Butler saw headlights shining to the east. The source of the headlights was stationary and appeared to Butler to be located on the road near the entrance to the plant. Although Butler could not see any vehicle, he did notice that the lights were shining on the trees to the east and not on the tanks located at the facility. The only structures in the area are the anhydrous ammonia tanks. Pasture and cornfields surround the facility. Butler knew no employees would be there at that time of the morning and could think of no good reason why someone would be there at that time.

Upon seeing the headlights, Butler approached the area to investigate. Thereafter, Butler saw a vehicle leave the area traveling east at a high rate of speed. Butler pursued the vehicle, hoping to view its license number. He wanted to verify if, in fact, an employee may have been at the plant for some reason.

Butler reached speeds of at least seventy miles per hour. He continued pursuing the vehicle as it turned south on level B county road 250. At this point, Butler was close enough to determine the vehicle was a pickup truck. Up to this point, Butler had not activated his vehicle’s siren nor its flashing lights because he was concerned that the pickup would accelerate even more, and he would have no chance to get a plate number or catch up with the vehicle.

The pickup continued southbound until it reached Edison, a county road that runs east and west. The pickup turned west on Edison and slid around a corner. At one point in the slide, the entire rear end of the pickup had slid around.

The pickup continued westbound after coming out of the slide and then south on county highway S-60 with Butler in pursuit. Upon entering S-60, Butler activated his vehicle’s flashing lights. Butler saw the pickup do a U-turn on S-60 and then proceed west on county road Birch. The pickup pulled over and stopped just onto Birch.

It was not until the last thirty seconds of the pursuit that Butler finally activated the flashing lights. Once the lights were activated, the pickup traveled approximately one-quarter of a mile to a mile before stopping. Before activating the flashing lights, Butler made no other attempt to pull the pickup over or indicate to the driver that Butler was in fact a police officer. For example, Butler neither used his vehicle’s siren nor its loudspeaker, though his police cruiser was equipped with both.

Butler approached the pickup and discovered Jerry Lee Gillespie and a female companion inside. Butler determined that the two were from Des Moines. Butler asked Gillespie what they had been doing at the facility. Gillespie said they were not at the facility. In response to Butler’s questions about Gillespie’s driving, Gillespie said a vehicle had run them off the road near the facility, and he thought Butler’s vehicle might have been that vehicle. Gillespie also told Butler that he and his companion were headed to Worthington, Missouri. According to Butler, if Gillespie were indeed going to Worthington, Missouri, he was headed in the wrong direction.

Butler issued Gillespie a citation for careless driving to which Gillespie later pleaded guilty. Pursuant to the citation, Butler and Wayne County deputy sheriff David M. Lewis (who had been called to the scene as backup for Butler) searched the pickup. They found four lithium batteries, twenty bottles of pseudoephedrine, a set of scales, two glass tubes, and aluminum foil in the passenger compartment. They also found a three-gallon Spartan brand canister in the bed of the pickup. (Lithium batteries and pseudoephedrine are precursors for the manufacture of methamphetamine.)

Deputy Lewis thereafter returned to the anhydrous ammonia facility and found footprints matching footwear worn by Gillespie and his companion. Along one of the roads involved in the pursuit, Butler and Lewis also recovered a three-gallon Spartan canister containing anhydrous ammonia that matched the canister found in the pickup truck.

II. Proceedings.

The State charged Gillespie in a two-count trial information with (1) receipt of a precursor substance with intent to use such substance to manufacture a controlled substance (count I) and (2) possession of methamphetamine (count II). See Iowa Code §§ 124B.9(2), 124.401(5). Later, the State amended the trial information by substituting for count I the charge of possession of analogs of methamphetamine capable of producing more than five grams of methamphetamine. See Iowa Code § 124(l)(b)(7). The State also alleged the amended two counts as second offenses. See Iowa Code § 124.411.

Gillespie thereafter filed a motion to suppress the evidence the police obtained in searching the pickup. At the hearing on the motion at which Butler testified to most of the foregoing facts, Gillespie acknowledged that a search incident to citation was legal under Iowa law but argued that in this case there was no basis for the stop. He further argued that, because there was no basis for the stop, the stop and subsequent search were illegal. Additionally, Gillespie reserved the right to raise the constitutionality of the search incident to citation at a later time pending resolution of Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).

The district court denied the motion. The court ruled that Gillespie’s careless driving gave Butler sufficient reason to stop the pickup, and the subsequent search was lawful as a search incident to citation.

Meanwhile, the United States Supreme Court determined in Knowles that the issuance of a citation in lieu of an arrest does not, in and of itself, provide officers authority to conduct a full search of an automobile. The Court held that the “search incident to citation” under the circumstances of the case violated the Fourth Amendment to the Federal Constitution and refused to create a “bright line rule” permitting such searches. Knowles, 525 U.S. at 119, 119 S.Ct. at 488, 142 L.Ed.2d at 499.

Gillespie filed a motion requesting the district court to reconsider its ruling in light of Knowles. At the hearing on the motion, the State argued that Knowles was inapplicable to this case because there was probable cause for the search. The State also argued that the exclusionary rule should not apply because the two officers were acting in good faith based on the current status of Iowa law at the time, which allowed a search incident to a citation.

Gillespie argued that the good-faith exception did not apply. He further argued that probable cause for the search was lacking because police officers are bound by the true reasons for their stop and search. In this case, Butler testified that he searched Gillespie’s pickup pursuant to a citation issued to him. The State asserted that the inquiry should not focus on what the officer believed at the time of the stop and search, but rather should focus on “whether, under the totality of the circumstances, probable cause existed.”

Relying on Knoivles, the district court ruled that the search could not be upheld as one incident to a citation. The court further ruled that, although there were grounds for the stop, there was no probable cause to search. The court based this ruling on the fact that at the time of the search Butler did not believe there was probable cause for the search and instead searched the car only in conjunction with the issuance of the citation. Nevertheless, the district court refused to reverse its prior ruling and suppress the evidence. The court ruled that, while the search was unlawful, the fruits of the search were still admissible pursuant to the good-faith exception to the exclusionary rule.

The State then amended count I to reinstate the charge of receipt of a precursor substance. Following the amendment, the district court found Gillespie guilty in a trial based on stipulated minutes. Later, the district court sentenced Gillespie to an indeterminate term of ten years and fined him $5000.

III. Issues.

Gillespie continues to argue on appeal that, because the challenged evidence was obtained by virtue of a search incident to a citation, such evidence must be suppressed pursuant to Knowles. He also argues that the search cannot be justified on the basis of probable cause because Butler did not rely on this ground for the search. Finally, he challenges the district court ruling that the challenged evidence was still admissible pursuant to the good-faith exception to the exclusionary rule.

The State concedes that the search here could not be sustained as one incident to citation. We therefore give that issue no further consideration.

The State does contend, however, that the challenged evidence is admissible because the officers conducted their search in objective, good-faith reliance on (1) the search-incident-to-citation statute and (2) appellate decisions of this state, which at the time of the search, had upheld the constitutionality of the statute. See Illinois v. Krull, 480 U.S. 340, 359-60, 107 S.Ct. 1160, 1172, 94 L.Ed.2d 364, 381 (1987) (holding that, if police officer relied in objectively good faith upon a state statute authorizing search, evidence seized in the search should not be excluded at trial); United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677, 698 (1984) (holding that, if a police officer relied in objectively good faith upon a search warrant in making a search, the evidence seized in the search should not be suppressed).

We recently rejected the good-faith exception to the exclusionary rule in State v. Cline, 617 N.W.2d 277, 283, 293 (Iowa 2000). We did so under article I, section 8 of the Iowa Constitution, which protects persons from unreasonable searches and seizures. Id. at 293. Gillespie challenged the search under that provision as well as under its federal counterpart, the Fourth Amendment to the Federal Constitution.

While the good-faith exception might save the challenged evidence seized in a search incident to citation from exclusion under federal law, the exception does not save such evidence under Iowa law. See id. The district court erred in concluding otherwise.

That leaves for our consideration the probable-cause issue.

IV. Probable Cause for the Search and Seizure.

Like article I, section 8 of the Iowa Constitution, the Fourth Amendment to the Federal Constitution also protects persons from unreasonable searches and seizures. See U.S. Constamend. IV; Iowa Const, art. I, § 8. The Fourth Amendment protection against unreasonable searches and seizures applies to the states through the Fourteenth Amendment to the Federal Constitution. See Mapp v. Ohio, 367 U.S. 643, 665, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). Any evidence obtained in violation of the Fourth Amendment is generally inadmissible, no matter how relevant or probative the evidence may be. State v. Predka, 565 N.W.2d 202, 205 (Iowa 1996).

Because the language of article I, section 8 of the Iowa Constitution is nearly identical to the Fourth Amendment, we generally deem these two provisions to be identical in scope, import, and purpose. See Cline, 617 N.W.2d at 281, 284. One notable exception, of course, is the good-faith exception. See id. at 293. Our discussion of probable cause here will focus on the Fourth Amendment. Nevertheless, what we say is equally applicable to Gillespie’s claim under the Iowa Constitution.

We review de novo the ultimate conclusion a district court reaches on a motion to suppress concerning Fourth Amendment issues. See State v. Heminover, 619 N.W.2d 353, 358 (Iowa 2000). A district court’s fact-findings on such a motion are binding on the appellate courts if those findings are supported by substantial evidence. See id.

The search here was a warrant-less one. For that reason, the search is per se unreasonable unless it falls within a recognized exception. Cline, 617 N.W.2d

at 282. One of those exceptions exists when there is probable cause for the search, and exigent circumstances necessitate an immediate search. Id. The State must prove the exception by a preponderance of the evidence. Id.

The district court believed probable cause for the search and seizure here did not exist because Butler testified he did not feel he had probable cause to search. The district court pointed out that, in response to questioning at the suppression hearing, Butler consistently indicated that his reasons for stopping the pickup were the careless driving that he observed and that he believed he could search the vehicle incident to the citation for such driving.

Additionally, the court explained:

While [Butler] indicated that his desire to search the vehicle was based on the suspicious activity he had previously witnessed, he did not reach the conclusion at the time of the search that that activity provided any independent basis for conducting the search. Since he did not reach that conclusion at the time, this court cannot declare that the facts could have warranted such a conclusion, then justify the search as if the officer had reached such a conclusion when in fact he had not. Such a ruling could encourage searches in borderline situations in which the officer did not truly feel there was probable cause, but conducted a search anyway in the hopes that a court would justify the search after the fact. This court cannot agree with the assertion of the State that officer Butler’s belief was irrelevant.

(Emphasis added.)

In short, according to the district court, the test for probable cause to search is a subjective one: whether the officer believed he had probable cause.

We rejected such reasoning in Cline. There, we said:

The defendant appears to dismiss the State’s probable cause argument on the ground that the officer did not justify the search on the basis of probable cause. [In Cline, the officer testified she made the search incident to a citation.] The defendant’s focus on the officer’s stated reasons for conducting the search is misplaced. The constitutional reasonableness of a search or seizure is determined by an objective standard. Consequently, the legality of a search and seizure under circumstances such as those present here “does not depend on the actual motivation of the individual officer involved.” Therefore, the State is not limited to the reasons stated by the investigating officer in justifying the challenged search or seizure.

Cline, 617 N.W.2d at 281 (citations omitted) (quoting Predka, 555 N.W.2d at 205). We concluded that failure of the police officer to mention probable cause as a reason for her search did not preclude the State from proving the existence of probable cause to uphold the search. See id.

In short, the test for probable cause to search is not subjective but objective. See Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229, 242 (1983) (plurality opinion) (holding that an officer’s testimony at the suppression hearing that there was no probable cause and that the search was consensual or based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), did not preclude the state from arguing that the search was justified on the basis of probable cause); 2 Wayne R. LaFave, Search and Seizure § 3.2(b), at 33-37 (3d ed.1996). As one court aptly explained:

[T]he mere subjective conclusions of a police officer concerning the existence of probable cause is not binding on this court which must independently scrutinize the objective facts to determine the existence of probable cause.... Moreover, since the courts have never hesitated to overrule an officer’s determination of probable cause when none exists, consistency suggests that a court may also find probable cause in spite of an officer’s judgment that none exists.

United States ex rel. Senk v. Brierley, 381 F.Supp. 447, 463 (M.D.Pa.1974) (citation omitted); see also United States v. Day, 455 F.2d 454, 456 (3d Cir.1972) (“Here, the policeman testified that he did not have probable cause to search, and at best was merely suspicious. Of course, we would not consider ourselves bound by a police officer’s inability to articulate his conclusions if the facts clearly demonstrated the existence of probable cause.... ”).

A police officer has probable cause to search an automobile

when the facts and circumstances would lead a reasonably prudent person to believe that the vehicle contains contraband. The facts and circumstances upon which a finding of probable cause is based include “the sum total ... and the synthesis of what the police [officer has] heard, what [the officer] knows, and what [the officer] observe[s] as [a] trained officerf ].”

State v. Edgington, 487 N.W.2d 675, 678 (Iowa 1992) (quoting United States v. Strickland, 902 F.2d 937, 942-43 (11th Cir.1990)). The determination of probable cause, as the name implies, is based on probabilities and not mere suspicion. See State v. Shea, 218 N.W.2d 610, 614 (Iowa 1974).

The exigency requirement is satisfied “ ‘when the car is mobile ... and the car’s contents may never be found again if a warrant must be obtained.’” Predka, 555 N.W.2d at 207 (quoting Edgington, 487 N.W.2d at 678).

Here, Butler, regardless of his motivation, unquestionably had probable cause to stop the pickup because he observed a traffic offense—the careless driving. See Whren v. United States, 517 U.S. 806, 810, 813, 116 S.Ct. 1769, 1772, 1774, 135 L.Ed.2d 89, 95, 97 (1996) (holding that the decision to stop an automobile is reasonable for Fourth Amendment purposes “where the police have probable cause to believe a traffic offense has occurred” regardless of the actual motivation of the officer); Predka, 555 N.W.2d at 205 (same). Additionally, exigent circumstances existed because Gillespie’s pickup was mobile, and its contents could have been lost if a search warrant had to be obtained.

The more difficult question is whether Butler had probable cause to conduct the subsequent search. On this point, the State contends the following facts support a finding of probable cause to search: (1) Butler saw a vehicle, later determined to be Gillespie’s pickup, leaving the anhydrous ammonia facility at 12:30 a.m.; (2) the facility had experienced several thefts in the weeks immediately preceding this event; (3) Butler knew from his drug training that anhydrous ammonia is a common component in the manufacture of methamphetamine — a controlled substance; (4) Gillespie led Butler on a high-speed pursuit; (5) even after Butler signaled Gillespie to stop, Gillespie attempted further evasive action; and (6) once stopped, Gillespie’s version of events was not believable. For reasons that follow, we disagree.

The fact that the vehicle was seen leaving at a high rate of .speed from an area near the site of several recent thefts does not alone amount to probable cause. See Cline, 617 N.W.2d at 283 (holding that the defendant’s presence in an area of drug dealing and her flight from the police did not rise to the level of probable cause to believe that the defendant had actually committed a crime). Additionally, there was no evidence that a crime had been committed at the time and that Butler was responding to or investigating an in-progress crime report. Furthermore, before the vehicle fled the area around the facility, Butler saw no one leaving the facility area. Finally, the vehicle’s headlights were not even seen pointing to the facility. Had they been, this might have afforded at least some suspicion that the vehicle was involved in criminal activity at the facility at that time of night by assisting in any attempted theft from the facility.

A fair inference from the record is that, except for the final seconds of the pursuit, one can hardly say Gillespie was fleeing from the officer. The hour was late at night on back county roads; Butler did not use his vehicle’s flashing red lights, siren, or loudspeaker to identify himself; and until the end of the pursuit, Butler never got close enough to read the pickup’s license plate. Given these circumstances, Gillespie’s response that he did not realize he was being pursued by a police officer is not only plausible, but likely. Indeed, Butler testified there was no way the people in the pickup could have realized he was a police officer. From Gillespie’s perspective, he was. simply being pursued by a private citizen, in which case his actions were not indicative of criminal behavior. See State v. Haviland, 532 N.W.2d 767, 769 (Iowa 1995) (“We do not know of any case law or other authority which suggests that a private citizen’s avoidance of another private citizen as opposed to the police is indicative of criminal behavior.”).

As to the final thirty seconds of the pursuit when Butler finally activated his vehicle’s flashing lights, the record is not clear to what extent Gillespie was actually attempting to elude Butler. Given the speed Gillespie was traveling, stopping within a quarter of a mile to a mile may not have been unreasonable under the circumstances. One thing is clear, however, Gillespie voluntarily came to a stop after Butler activated the flashing lights. Butler did not have to run Gillespie off the road to stop him.

Finally, the State asserts that Gillespie’s version of the events was not believable. The State specifically points out that, when Butler finally stopped the pickup, it was not heading in the direction of Worthing-ton, Missouri, the town to which Gillespie had claimed he and his companion were traveling. Gillespie’s story was that earlier a vehicle had run his pickup off the road, and he thought Butler’s vehicle was that vehicle coming back after him for some reason. Although suspicious, Gillespie’s story is consistent with his actions of changing directions to avoid this threat.

We also find no inconsistency in Gillespie’s statement that he was never at the facility. Butler never testified that he saw Gillespie or his companion near any anhydrous ammonia tanks. In fact, Butler testified he only saw headlights and never saw the vehicle that was near the facility because the large tank on the facility’s premises was blocking it.

Clearly, none of these facts alone rise to the level of probable cause justifying the search. However, even when taken together, we conclude the facts do not satisfy the probable-cause requirement.

In Shea, we held that mere opportunity — for example, presence in a drug traffic area — plus likelihood' — for example, an informant’s tip that a particular officer is a drug dealer, does not establish probable cause to believe a vehicle contains contraband. See 218 N.W.2d at 614. In the present case, at most there might have been opportunity. If opportunity and likelihood are not enough to establish probable cause, then opportunity alone is surely inadequate.

While there may have been some basis to suspect suspicious activity, we conclude there was not sufficient evidence that could lead a reasonably prudent officer to conclude the pickup contained contraband. While we are not bound by Butler’s testimony as to whether probable cause existed, we think that at most the record supports what Butler described as a suspicion of criminal activity. Such a suspicion, however, does not rise to the level of probable cause to believe the pickup contained contraband.

V. Disposition.

The warrantless search of Gillespie’s vehicle violated his constitutional rights under the Fourth Amendment to the Federal Constitution and article I, section 8 of the Iowa Constitution because probable cause for the search and seizure was lacking. For this reason, the evidence seized during the search was inadmissible. The district court should therefore have sustained Gillespie’s motion to suppress, and its failure to do so constituted error. We therefore reverse the judgment of conviction and sentence and remand for new trial.

REVERSED AND REMANDED.

McGIVERIN, S.J., participates in place of TERNUS, J., who takes no part.


text:
    STATE of Iowa, Appellee, v. Keith HEMINOVER, Appellant.
    No. 98-1890.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Paul Demro of Correll, Sheerer, Benson, Engels, Galles & Demro, Cedar Falls, for appellant.
    Thomas J. Miller, Attorney General, Mary Tabor and Julie H. Brown, Assistant Attorneys General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

This appeal presents the question of whether the State is bound by the reasons an officer gives to justify a stop under Tern/ v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court of appeals thought so and reversed a district court ruling that overruled defendant’s Fourth Amendment motion to suppress in which the district court concluded that reasons other than those given by the stopping officer justified his stop of defendant’s vehicle. On further review, we conclude that (1) in justifying a Terry investigatory stop, the State is not bound by the reasons given by the stopping officer; and (2) the district court was correct in overruling the motion on the grounds it gave. We therefore vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

On the evening of August 29, 1997, the Black Hawk County Sheriffs Office was conducting a traffic safety enforcement roadblock on Gilbertville Road at approximately 500 feet from the intersection of Plaza and Gilbertville Road. Plaza runs north and south. Gilbertville Road runs east and west.

At approximately 9 p.m., Keith Hemin-over was driving his van in a southerly direction on Plaza and turned west onto Gilbertville Road. At the time, Hemin-over’s two minor sons were in the vehicle with him. When he was approximately 150 feet from the roadblock, Heminover stopped his vehicle. Deputy sheriff Ben Ramirez waived his flashlight at Hemin-over, directing him to move forward and pull over. At that point, Heminover placed his van in reverse, backed into the intersection of Plaza and Gilbertville Road, and drove south on Plaza away from the roadblock.

Ramirez followed Heminover in his patrol car and pulled him over. After stopping Heminover, Ramirez noticed that He-minover smelled of alcohol. The deputy asked Heminover if he had been drinking, and Heminover replied that he had consumed a few beers. Ramirez then asked Heminover to submit to a roadside sobriety test, to which Heminover agreed. Ramirez conducted a horizontal nystagmus test on Heminover, which Heminover failed. During the test, Heminover was swaying side to side and front to back. Heminover refused Ramirez’s request to take a preliminary breath test, after which the deputy arrested him for operating while intoxicated.

The State charged Heminover with (1) OWI in violation of Iowa Code section 321J.2 (1997), (2) two aggravated misdemeanor counts of child endangerment in violation of Iowa Code section 726.6(l)(a), and (3) one simple misdemeanor count of failure to obey a police officer in violation of Iowa Code section 321.229. The State later amended the trial information to elevate the OWI charge to a second offense.

Heminover moved to suppress any evidence regarding (1) the field sobriety tests, (2) comments about drinking, and (3) drinking prior to the field sobriety tests. Later, Heminover amended his motion, asserting that because the safety inspection roadblock was illegal from its inception, any evidence gathered or observed after Heminover encountered the roadblock was illegally seized and should be suppressed.

Following a hearing on the motion to suppress, district associate judge J.G. Johnson denied the motion. The court concluded that the roadblock safety check violated Iowa Code section 312K.1(2) because there was no evidence showing that (1) the roadblock was authorized by “policy-making administrative officers of the law enforcement agency” and (2) there were “advance warning signs ... erected to provide timely information to approaching motorists of the roadblock and its nature.” On this basis, the court concluded Ramirez was not authorized to stop He-minover. The court further concluded that Heminover’s failure to obey Ramirez’s signals was not a violation of the law and did not create reasonable cause for the deputy to stop him.

Additionally, the court concluded that turning away from a roadblock does not alone constitute reasonable cause to stop a vehicle. Nevertheless, the court concluded that, in backing away from the roadblock and resuming travel in a different direction, Heminover violated state law. Citing this violation, the court concluded there was reasonable cause for Ramirez to pursue Heminover and make the initial stop.

Later, in a trial based on stipulated minutes, district associate judge James Moot-hart found Heminover guilty of all charges. District judge James C. Bauch entered judgment and sentence. Hemin-over appealed, and we transferred the case to the court of appeals. The court of appeals reversed the convictions.

We granted the State’s application for further review. The sole issue is whether the district court correctly determined there was reasonable cause for Ramirez to stop Heminover’s vehicle.

In his appeal, Heminover presents two arguments in support of his position that the evidence gathered, after the stop, was illegally obtained. First, he contends the roadblock was illegal. The State concedes the roadblock was illegal, so we give that contention no further consideration. Second, he contends that his conduct in backing up near the roadblock did not constitute reasonable cause for the stop.

Heminover’s second contention raises a constitutional issue under the Fourth Amendment to the Federal Constitution. We review de novo the ultimate conclusion reached by the district court on a motion to suppress. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996). Fact-findings underlying the district court’s ruling on such a motion are binding on the appellate courts if supported by substantial evidence. State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000).

II. Reasonable Cause for the Stop.

On this issue, the district court concluded that, in backing away from the roadblock and resuming travel in a different direction, Heminover violated, or at least potentially violated, state law. The court found that, when Heminover backed away from the roadblock, he traveled 150 feet eastbound on the westbound portion of a divided highway. The court likened this to traveling the wrong direction on a one-way street. The court similarly found that, in changing directions to head south, Hemin-over briefly backed his van north along a southbound road. Finally, the court found that, in backing into the intersection, He-minover engaged in inherently dangerous activity, as the intersection was very busy with semitrailer truck traffic.

Determining that there was at least a possible violation of law, the court concluded that there was reasonable cause for Ramirez to pursue Heminover and make the initial stop. On this basis, the district court denied Heminover’s motion to suppress.

On appeal, Heminover challenged the district court’s rationale, contending that Ramirez did not charge him with “improper backing.” For this reason, Heminover says, Ramirez did not believe Heminover violated the law.

The State contended that Ramirez had reasonable cause to stop Heminover because he engaged in “improper backing,” and this constituted a traffic violation. A traffic violation, the State further contended, gives an officer probable cause to stop a motorist.

The court of appeals noted that Ramirez testified that he did not stop Heminover for “improper backing” but instead stopped him because Ramirez believed that Heminover was attempting to avoid a roadblock. Relying on language in our prior cases, the court of appeals concluded that (1) officers are held to their true reasons for stopping a vehicle and (2) a court will not allow officers to justify a stop with reasons upon which they did not actually act. The court therefore refused to consider “improper backing” as grounds for the stop.

The court then considered Ramirez’s stated reason for the stop — avoidance of the roadblock- — -and concluded that Hemin-over’s actions in turning back did not give rise to a reasonable suspicion of criminal activity.

The court of appeals’ reasons for refusing . to consider “improper backing” as grounds for the stop raises the following issue: Is the State limited to the reasons stated by the investigating officer in justifying the challenged stop based on reasonable cause? We have said “no” when the stop was premised on probable cause. See Cline, 617 N.W.2d at 280-81; State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996). We have said “yes” in several cases before Cline when the stop was premised on reasonable cause. See, e.g., State v. Jones, 586 N.W.2d 379, 382 (Iowa 1998); State v. Wiese, 525 N.W.2d 412, 415 (Iowa 1994); State v. Jamison, 482 N.W.2d 409, 413 (Iowa 1992); State v. Rosenstiel, 473 N.W.2d 59, 61 (Iowa 1991); State v. Bailey, 452 N.W.2d 181, 182 (Iowa 1990); State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982); State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980). For reasons that follow, we now think the State should not be limited to the reasons stated by the investigating officer in either instance.

A. Background. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” The Fourth Amendment is made applicable to the states under the Fourteenth Amendment to the Federal Constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997). Regardless of its relevancy or probative value, evidence obtained in violation of this provision is inadmissible. Predka, 555 N.W.2d at 205.

When the police stop a car and temporarily detain an individual, the temporary detention is a “seizure” within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996); Predka, 555 N.W.2d at 205. The detention is such a seizure even though the detention is only for a brief period of time and for a limited purpose. Whren, 517 U.S. at 809, 116 S.Ct. at 1772, 135 L.Ed.2d at 95; Predka, 555 N.W.2d at 205. For this reason, “[a]n automobile stop is ... subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren, 517 U.S. at 810, 116 S.Ct. at 1772, 135 L.Ed.2d at 95; accord Predka, 555 N.W.2d at 205.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is the landmark case on investigatory stops. Terry recognized a police officer’s authority to stop an individual on less than probable cause for the purpose of investigating unusual behavior that reasonably causes the officer to believe criminal activity is afoot.

To justify the stop, Terry required that the police officer “be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Additionally, a court in determining the reasonableness of the particular search or seizure must judge the facts “against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.

In short, an investigatory stop of a vehicle is constitutionally permissible only if the officer who has made the stop has specific and. articulable cause to reasonably believe criminal activity is afoot. Circumstances raising mere suspicion or curiosity are not enough.

1. Cases prior to Cline and Predka.

In State v. Cooley, this court first applied Terry to a stop of a motor vehicle.' 229 N.W.2d 755, 759-61 (Iowa 1975). The State argued that Iowa Code section 321.492 (1971) gave the officers who had stopped the defendant’s vehicle the right to inspect the operator’s license pursuánt to Iowa Code section 321.492. Cooley, 229 N.W.2d at 757. We disposed of that contention quickly, concluding the reason given was pretextual. We explained that, when the primary purpose of the stop is not to inspect the operator’s license but to examine the contents of the car, the detention is not in good faith but is a mere subterfuge or excuse for a failure to procure a search warrant. On the other hand, when the officer stops the vehicle in good faith to examine the operator’s license,' then the officer is not deprived of his power to arrest for an offense committed in his presence. Id. at 758-59.

We then proceeded to do a Terry analysis but concluded that the facts articulated by the officers justifying the stop were not sufficient to uphold the stop constitutionally. Id. at 760.

Several of our cases dealing with investigatory stops based on reasonable cause since Cooley have cited it as authority for the proposition that “[ojfficers are bound by their true reason for making the stop. They may not rely on reasons they could have had but did not actually have.” As-chenbrenner, 289 N.W.2d at 619; see also Jones, 586 N.W.2d at 382; Wiese, 525 N.W.2d at 415; Jamison, 482 N.W.2d at 413; Rosenstiel, 473 N.W.2d at 61; Bailey, 452 N.W.2d at 182; Lamp, 322 N.W.2d at 51.

In Aschenbrenner, the officers did not articulate at the time of the stop the basis for it, which they claimed later in the suppression hearing. 289 N.W.2d at 621. We emphasized that “the reasonable cause test does not depend on what cause they articulated; it depends on what the basis of the stop actually was.” Id.

In Bailey, the officer who stopped the defendant’s car testified that he made the stop pursuant to a radioed request from a fellow officer. 452 N.W.2d at 182. When cross-examined, the officer stated the reason for the stop did not involve the manner in which the vehicle was driven. Id. The district court denied the defendant’s motion to suppress, concluding that the manner in which the defendant was operating his car produced a reasonable suspicion of criminal activity. Id. On the defendant’s appeal of his conviction for operating while intoxicated, the State sought to uphold the validity of the stop for the same reasons relied on by the district court — that the manner in which the defendant was driving his car produced a reasonable suspicion of criminal activity. Id. We rejected the State’s argument on the basis that “officers are bound by the real reasons for their actions” and that “[t]he stop may not be upheld based on reasons that might have existed but in fact did not.” Id. We found these rules particularly applicable in that case where the State asked us “to uphold the stop based on an officer’s exercise of judgment that in fact never occurred.” Id. at 183.

We have carefully reviewed Cooley and find nothing in that opinion that suggests the case stands for the proposition that in a Terry stop officers are bound by then-real reasons for making the stop. Such a rule calls for a subjective analysis that is inconsistent with the objective analysis that Terry requires.

In Cooley, the real reason the officers stopped the defendant’s car was because the officers believed the defendant’s actions before entering his car were suspicious. 229 N.W.2d at 758-59. (The officers were on special assignment to investigate armed robberies and house prowlings in the area.) As mentioned, we therefore held the State could not use the excuse for the stop that the officers wanted to examine the defendant’s driver’s license. Id. at 759.

However, notwithstanding a finding that this excuse was pretexual, the court in Cooley went on to do an objective analysis under Terry to determine whether the following facts were sufficient to uphold the stop: (1) the defendant’s vehicle was seen parked in an area having a high crime rate; (2) the vehicle carried out-of-county license plates; (3) the defendant engaged in conversation with an individual suspected by the police to be a drug dealer and robber; (4) occupants of the car, including the defendant, were white in a predominantly black area; and (5) a woman was driving the car and the defendant was a passenger. 229 N.W.2d at 760. The court held these facts were “a far cry from specific and articulable facts which, with rational inferences, can be objectively said to have reasonably warranted the involved car-stoppage and attendant intrusion upon defendant’s constitutionally guaranteed rights.” Id. at 761.

We therefore suggest that subsequent cases invoking the rule that in cases involving a Terry stop officers are bound by their true reasons — a subjective analysis— are contrary to, rather than consistent with, Cooley and Terry, both of which call for an objective analysis. These subsequent cases were relying on the pretextual analysis in Cooley, but we think they were incorrect in applying that analysis in a case involving a Terry stop. In fact, the first case to cite Cooley for the rule that officers are bound by the true reasons for the stop under a Terry analysis cited to the pretextual analysis in Cooley for its authority. See Asehenbrenner, 289 N.W.2d at 619. Cases following Asehen-brenner have simply cited Asehenbrenner and, in some cases, have in addition cited to the pretextual analysis in Cooley.

It is interesting to note that one year after this court decided Cooley and four years before it decided Asehenbrenner, the court very clearly said that in a Terry stop the test for reasonable cause to stop “is not the policeman’s subjective theory, but whether the record discloses articulable objective facts were available to the officer to justify the stop.” State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976).

In support of this proposition, the court cited several federal appellate cases, each of which involved Terry stops. See, e.g., United States v. Vital-Padilla, 500 F.2d 641, 644 (9th Cir.1974) (holding that, even if officers’ stated reasons for conducting an investigatory stop are insufficient to justify the stop, the stop is still valid if objectively reasonable based on other facts within the officers’ knowledge at the time of the stop); United States v. Harflinger, 436 F.2d 928, 933 (8th Cir.1970) (holding that, when objective facts justify an investigatory stop, the stop is constitutional even if the officer’s stated reasons for the stop are insufficient). Apparently, in Aschenbren-ner and subsequent cases relying on As-chenbrenner, this court overlooked Donnell.

2. Cases from other jurisdictions.

Other courts and commentators support our conclusion that a police officer’s subjective reasons for a stop are not controlling in a Terry stop. This is because, under a Terry analysis, the reasonable-suspicion test is measured according to an objective standard and not a subjective standard. See, e.g., Ornelas, 517 U.S. at 696, 116 S.Ct. at 1661-62, 134 L.Ed.2d at 919 (“The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.”); United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir.1999) (holding that, even though officer might not have had probable cause to stop based on the reason the officer gave for the stop, the officer had reasonable grounds under Terry to stop based on his observations of erratic driving by the defendant); United States v. McKie, 951 F.2d 399, 402 (D.C.Cir.1991) (“The Terry standard being one of objective reasonableness, we are not limited to what the stopping officer says or to evidence of his subjective rationale; rather, we look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious.”); United States v. Car-donar-Rivera, 904 F.2d 1149, 1153 (7th Cir. 1990) (holding that pretext proffered for a stop of driver who had left his car and fled when police approached would not defeat lawfulness of stop and ensuing escalation that led to arrest when it was obvious officers stopped driver as suspect in drug transactions, and they had objectively reasonable grounds for doing so); United States v. Hawkins, 811 F.2d 210, 213-15 & n. 5 (3d Cir.1987) (holding that in a Terry stop, the stop could be justified based on an offense other than that stated by the officers involved); Commonwealth v. Smigliano, 427 Mass. 490, 493, 694 N.E.2d 341, 344 (1998) (holding that, notwithstanding officer’s testimony that he did not suspect defendant of any wrongdoing but believed defendant was lost, the facts and circumstances known to the officer were sufficient to create a reasonable suspicion of operating under the influence in a reasonable police officer to justify a Terry stop regardless of the officer’s subjective state of mind); Zimmerman v. North Dakota Dep’t of Transp., 543 N.W.2d 479, 481 (N.D.1996) (holding that notwithstanding officer’s testimony that she stopped defendant’s car because another officer directed her to do so, the fact that the officer observed what she thought to be a traffic violation gave her reasonable cause justifying the Terry stop, even though the stated reason for the stop alone may not have provided an adequate basis for the stop); 4 Wayne R. LaFave, Search and Seizure § 9.4, at 139-40 (1996 & Supp.2000) (stating that the reasonable-suspicion test under Terry is “purely objective and thus there is no requirement that an actual suspicion by the officer be shown” and “the objective grounds as to one offense are not defeated because the officer either thought or stated he was acting with regard to some other offense or on some other basis entirely”).

3. Whren v. United States. Although Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), involves probable cause to stop because of a traffic violation, we think the case nevertheless settles the question. Whren held that “the constitutional reasonableness of traffic stops” does not “depend[ ] on the actual motivations of the individual officers involved.” Whren, 517 U.S. at 813, 116 S.Ct. at 1774, 135 L.Ed.2d at 98. The Court concluded that, because the officers had probable cause to stop, it made no difference that the officers’ traffic-violation ground for approaching the vehicle was pretextual. Id. at 812-13, 116 S.Ct. at 1774, 135 L.Ed.2d at 97-98. In two recent cases, we followed Whren in vehicle-stop cases based on probable cause. See Cline, 617 N.W.2d at 281; Predica, 555 N.W.2d at 205.

We say Whren settles the question because we think there should be no distinction between a stop based on probable cause and a stop based on reasonable suspicion, i.e., a Terry stop. The precise point was decided in Hawkins. The question there was whether a Terry stop could be justified on an offense other than that stated by the officer involved. Hawkins, 811 F.2d at 212-13. The dissent made the argument that, although the probable-cause standard is a purely objective one, the reasonable-suspicion standard must be both objectively reasonable and subjectively actual. Id. at 222 (Rosenn, J., concurring in part and dissenting in part). By its very terms, the dissent asserted, a suspicion in essence is perception or belief and is, therefore, inherently subjective. Id.

The majority in Haiukins rejected the argument, stating:

The dissent suggests that while an objective standard may be appropriate for arrest cases, where the issue is probable cause, only a subjective standard is appropriate for investigatory stops, which are judged under a reasonable suspicion inquiry. We do not find this distinction persuasive. The probable cause and reasonable suspicion tests are similar in that they both look to the incriminating facts known to the seizing officer to determine the validity of a “seizure” under the Fourth Amendment.

Id. at 215 n. 5. In other words, both tests are objective.

Evidently, in Cline, a probable-cause case, we implicitly agreed there should be no such distinction because we expressly overruled three cases — Wiese, Rosenstiel, and Aschenbrenner — which, as earlier mentioned, held that the motivation of the officer was controlling in determining the validity of a Terry stop. See Cline, 617 N.W.2d at 281 (citing Wiese, 525 N.W.2d at 415; Rosenstiel, 473 N.W.2d at 61; Aschenbrenner, 289 N.W.2d at 619). We reaffirm that ruling and hold that in Terry stop cases the motivation of the officer stopping the vehicle is not controlling, and the officer is not bound by the real reasons for the stop. The test for a Terry stop and one based on probable cause is the same: objective. The State is therefore not limited to the reasons stated by the investigating officer in justifying a Terry stop.

B. Analysis. Because the Terry standard is one of objective reasonableness, we are not limited to what Ramirez says or to evidence of his subjective rationale. Rather, we look to the record as a whole to determine what facts were known to the deputy and then consider whether a reasonable officer in those circumstances would have reasonably believed Heminover was committing a traffic offense as the district court found. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981) (holding that, in determining what cause is suffi-

cient to justify the stop, the court must take into account the “whole picture,” and “[biased upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity”). In making that determination, we keep in mind that the level of objective justification for the stop, i.e., the level of reasonable suspicion, “is considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989).

Although Ramirez testified that he stopped Heminover because he believed that Heminover was attempting to avoid a roadblock, the deputy also testified to a possible traffic violation:

Q. And what happened next?
A. At that point, I observed Mr. He-minover’s vehicle stop....
Q. Okay. And approximately how far from the intersection did the defendant’s vehicle travel?
A. Roughly about 150 feet.
Q. And then what happened?
A. Then he stopped — or like I said, he traveled that distance, and then he stopped. And when I started waving him over, he started to back up. That’s when I noticed that he was backing up and out into the intersection.
Q. What happened next?
A. Then he backed out into the intersection, and as he backed out into the intersection, he slowed for some oncoming traffic, and that’s when I realized that he was trying to get back down and get down this way. And so then I got into my patrol car, which was sitting over here, came back around and made the stop on Mr. Heminover.
Q. Let me stop you a little bit here and back up. You said he backed up on — I assume he’s on Gilbertville. He backed up on Gilbertville Road?
A. That’s correct.
Q. That, in and of itself, is that a violation of the Iowa Code?
A. Yes, it is. Improper backing.

There was other evidence that Plaza Drive, the highway Heminover was backing into, is a very busy highway with semitrailer truck traffic. Taking this “whole picture” into consideration, we find a reasonable officer with knowledge of the facts known to Ramirez would have a particularized and objective basis to suspect Hemin-over was committing a traffic violation, i.e., improper backing. Iowa Code section •321.323 covers this offense and provides:

A person shall not cause a vehicle to be moved in a backtuard direction on a highiuay unless and until the vehicle can be backed with reasonable safety, and shall yield the right of way to any approaching vehicle on the highway or an intersecting highway which is so close as to constitute an immediate hazard.

(Emphasis added.) For these reasons, we conclude the stop of Heminover’s vehicle was justified. Therefore, any evidence Ramirez obtained thereafter was not in violation of Heminover’s Fourth Amendment rights.

III. Disposition.

Because there were facts giving rise to a reasonable suspicion to believe Hemin-over was committing a traffic violation, the investigatory stop of his vehicle was justified. For this reason, any evidence Ramirez obtained thereafter was not in violation of Heminover’s Fourth Amendment rights. We vacate the court of appeals decision to the contrary and affirm the judgment of the district court.

* Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

McGIVERIN, S.J.,* participates in place of LARSON, J., who takes no part.


author: McGIVERIN, Senior Judge.

text:
    CITY OF MUSCATINE, Appellee, v. NORTHBROOK PARTNERSHIP CO., Northbrook Partners Co., and Gregory A. Johnston d/b/a Northbrook Partners Co., Appellants.
    No. 98-1070.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Harvey G. Allbee, Jr. and R. Craig Op-pel of Allbee, Barclay, Allison, Denning & Person, P.C., Muscatine, for appellee.
    Gregory A. Johnston, Muscatine, and Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellants.
   McGIVERIN, Senior Judge.

The question here is whether a city has authority under Iowa statutory law to pursue a personal judgment action against a property owner to recover demolition costs incurred by the city in abating a nuisance on the owner’s property.

The district court concluded that a city has such authority under Iowa statutory law and entered judgment for the city. Our court of appeals reversed. Upon further review, we vacate the court of appeals decision and affirm the district court judgment.

I. Background facts and proceedings.

Defendants Northbrook Partnership Co., and Gregory A. Johnston, d/b/a Northbrook Partners Co., (hereinafter referred to as defendants) were owners of real estate located at 211 Pine Street in Muscatine, Iowa. A residence was located on the property.

Defendants failed to pay real estate taxes on the property for the years 1986, 1987, and 1988. Consequently, the property located at 211 Pine Street was purchased by Muscatine County at a tax sale in June 1990 for unpaid real estate taxes in the amount of $4,413. See Iowa Code § 446.7 (1989) (stating procedure for annual tax sale). Although a certificate of purchase at tax sale for the property was issued to Muscatine County, see Iowa Code § 446.29, no tax deed was ever issued to the county.

On February 11, 1994, defendants received notice through certified mail from the Muscatine County treasurer that defendants’ right of redemption from the tax sale would expire ninety days from the date of service of the notice. See Iowa Code § 447.9 (explaining procedure concerning notice of expiration of right of redemption). Defendants made no attempt to redeem the property before the period of redemption expired on May 10, 1994.

On May 24, 1996, the City of Muscatine sent notice to defendants, stating that the residence at the 211 Pine Street address constituted a nuisance under the language of Muscatine City Code, title 9, chapter 4, section 1(a). The notice ordered defendants to abate the nuisance, through repair or demolition, within ten days of receipt of the notice, or the city would take “additional action” as provided in the city code. Defendants took no action concerning the building.

In early June 1996, the city sent a letter to defendants stating that the city council on June 6, 1996, planned to consider a resolution granting authority to abate the nuisance on defendants’ property by causing the dilapidated structure on the property to be demolished. The letter also stated, “[ijf you have an interest in this property, you may wish to attend and comment at this meeting.” The letter did not advise defendants that the city would seek reimbursement from defendants for the cost of demolition. Neither Johnston nor anyone else for defendants appeared at the city council meeting. Consequently, pursuant to a city council resolution, the building at the 211 Pine Street address was subsequently demolished at a cost to the city of $20,043.

Thereafter, the city notified defendants of the demolition of the structure and requested reimbursement for costs incurred. Receiving no response from defendants, plaintiff City of Muscatine filed a petition in district court against defendants on January 20, 1998, seeking judgment in the amount of $20,043, plus interest, as reimbursement for the cost of demolition of the residence formerly located at 211 Pine Street. The city contended that Iowa Code section 364.12 (1995) authorized the action. Defendants filed an answer, denying “that timely notice of the nuisance was received.”

The matter was tried to the court on stipulated facts and exhibits. At the time of trial, although a tax certificate had been issued to Muscatine County after the tax sale in 1990, no tax deed was ever issued and legal title to the property was still held in the names of defendants.

The court entered judgment against defendants and in favor of plaintiff city in the amount of $20,043, plus interest, concluding that the notices sent by the city were adequate to apprise defendants of their rights and obligations to avoid liability for the demolition costs incurred by the city. The court also concluded that the city had authority to abate the nuisance and proceed to collect abatement costs from defendants. Additionally, the court concluded that Iowa Code section 446.20(2) did not apply to this case because the county, not the city, was the holder of the tax certificate.

Defendants appealed. Upon our transfer of the case, our court of appeals reversed the judgment of the district court, concluding that neither section 446.20(2) nor section 364.12(4) gave the city authority to pursue a civil action against defendants to recover costs of abatement. We granted the city’s application for further review.

Our standard of review is for correction of errors at law. Iowa R .App.P. 4.

II. Statutory provisions concerning a city’s remedy against property owners for nuisance abatement costs.

Section 364.12(3)(a) gives a city authority to abate a nuisance, public or private, in any reasonable manner.

The city contends that it had authority under Iowa Code section 364.12(4) to pursue a civil action against defendants to recover costs the city incurred in abating the nuisance on defendants’ property. Section 364.12(4) provides in part:

In addition to any other remedy provided by law, a city may also seek reimbursement for costs incurred in performing any act authorized by this section by a civil action for damages against a 'property cnvner.... For the purposes of this subsection, a county acquiring property for delinquent taxes shall not be considered a property owner.

(Emphasis added.)

In district court, defendants contended, however, that section 446.20(2) was the city’s only remedy for pursuing reimbursement for abatement costs. That section provides in part:

If the [county] board [of supervisors] or [city] council determines that any property located on a parcel purchased by the county or city pursuant to section 446.19 requires removal, dismantling, or demolition, the board or council shall, at the same time and in the same manner that the notice of expiration of right of redemption is served, cause to be served on the person in possession of the parcel and also upon the person in tvhose name the parcel is taxed a separate notice stating that if the parcel is not redeemed within the time period specified in the notice of expiration of right of redemption, the property described in the notice shall be removed, dismantled, or demolished. The notice shall further state that the costs of removal, dismantling, or demolition shall be assessed against the person in whose name the parcel is taxed and a lien for the costs shall be placed against any other parcel taxed in that person’s name within the county.

Iowa Code § 446.20(2) (emphasis added). Defendants argued that the city’s action against them to recover abatement costs was barred because the city failed to give them the proper notice required by section 446.20(2).

III. Application of law to facts.

In this case, we must decide under what authority, if any, a city may pursue a civil action and obtain a personal judgment against a property owner for costs incurred by the city in abating a nuisance on the owner’s property.

A. Legal ownership of the property.

Defendants’ first contention is that the county, as purchaser of the property at tax sale and holder of the tax certificate, and not defendants, was the legal owner of the property at the time the city took action to abate the nuisance. Defendants therefore argue that they cannot be held liable for costs associated with abatement of the nuisance.

This contention has no merit. This is because the law is well settled in Iowa “that the purchaser at a tax sale, including the county when the sale is under the scavenger statute, obtains no title or right of possession to the property before the deed issues.” Currington v. Black Hawk County, 184 N.W.2d 675, 676 (Iowa 1971). Thus, until a deed was issued by the county treasurer to the county, the county acquired no legal interest in the property. Id. Consequently, defendants, not the county, continued to be the legal owner of the property, with right of possession, even though the county held a certificate of purchase at tax sale concerning the property. The city was therefore correct in pursuing an action against defendants, as legal owners of the property, to recover costs it incurred in abating the nuisance on defendants’ property.

We also point out that defendants present no authority suggesting that the county had a duty to obtain the tax deed. In fact, other authorities support the contrary. See Iowa Code § 446.37 (stating that county treasurer’s duty to cancel tax sale certificate if no action is taken by holder to obtain a tax deed within three years following tax sale does not apply to certificates of purchase at tax sale held by a county); Iowa Code § 448.1 (unnum. para. 1, added by 1997 Iowa Acts ch. 121, § 24) (county treasurer’s duty to issue deed after period of redemption has expired does not apply to certificates held by a county); see also 1990 Op. Iowa Att’y Gen. 80 (concluding that a county has no statutory requirement to obtain a tax deed to property upon which it holds a certificate of purchase acquired from a scavenger tax sale).

Moreover, even if a tax deed had been issued to the county, making the county the legal owner, Iowa Code section 364.12(4) states that “a county acquiring property for delinquent taxes shall not be considered a property owner.” Based on this language, the county would not be subject to an action by the city under section 364.12(4) to recover nuisance abatement costs on the subject property.

B. Authority under Iowa statutory provisions.

Defendants further contend that even if they are considered the legal owners of the property, the city failed to properly give them notice required under section 446.20(2) of the city’s intention to seek abatement costs from defendants.

The district court concluded that section 446.20(2) did not apply because the county, not the city, was the holder of the certificate of purchase at tax sale. The court also impliedly concluded that defendants were liable under section 364.12(4) for costs incurred by the city in abating the nuisance on defendants’ property.

1. Upon our examination of section 446.20(2), we conclude that whether the city or the county was the holder of the tax certificate is not a relevant fact in this case. While it is true that section 446.20(2) does make reference to nuisance abatement costs on property purchased by a county at a tax sale, and that notice thereof shall be served at the same time and in the same manner as the notice of expiration of period of redemption, the statute also mandates that the notice state “that costs of removal, dismantling, or demolition shall be assessed against the person in whose name the parcel is taxed.” According to our reading of this language, section 446.20(2) does not give a city or county authority to pursue a personal judgment action against the property owner for nuisance abatement costs, but rather only allows the city or county to assess such costs in the same manner as a tax.

Additionally, section 446.20(2) is not applicable in this case because according to the language of section 446.20(2), the notice requirement thereunder is only triggered when the city or board (depending upon the body that seeks to recover costs of nuisance abatement) determines at the time (1994) that the notice of expiration of right of redemption is served, concerning property purchased at a tax sale, that such property constitutes a nuisance and “requires removal, dismantling, or demolition.” Iowa Code § 446.20(2). In this case, the city declared defendants’ property to be a nuisance in 1996, two years after the 1994 notice was sent by the county to defendants concerning their right of redemption. Thus, assuming for purposes of argument that section 446.20(2) does give a city the right of personal judgment against a property owner for nuisance abatement costs, the city had no duty in this case to give such notice in 1994 because the city had not yet determined that defendants’ property constituted a nuisance at the time the notice of expiration of redemption period was served on defendants by the county-

Moreover, to adopt the interpretation of section 446.20(2) advanced by defendants, that a city or county could only seek nuisance abatement costs from a property owner — either through assessment or personal judgment action — if notice of the city or county’s intention to seek such costs is served with the notice of expiration of period of redemption, would force cities and counties to purchase property at tax sales for purposes of ensuring a right to recover for possible, later nuisance abatement costs. Additionally, under defendants’ interpretation, a city would be required to monitor all properties that are subject to tax sale for purposes of attaching a notice of potential abatement costs to the notice of expiration of right of redemption. Such a burden, we believe, does not seem reasonable, especially in light of the plain language of section 364.12(4), which we will discuss below.

We therefore agree with the district court’s conclusion that section 446.20(2) does not apply to this case, but for reasons different than those relied upon by the district court.

2. We now consider the applicability of section 364.12(4) to this case.

We have noted in other cases that section 364.12(4) gives a city authority to abate a nuisance and seek reimbursement from the property owner for costs incurred therein. See City of Ottumwa v. Hill, 567 N.W.2d 424, 426 (Iowa 1997) (noting that section 364.12(4) “give[s] broad powers to a city to collect the costs of a nuisance abatement”); see also French v. Iowa Dist. Ct, 546 N.W.2d 911, 915 n. 3 (Iowa 1996) (noting that city may abate nuisance and recover abatement costs from offending property owner by bringing a civil action for damages under section 364.12(4); holding that district court acted illegally in entering judgment against property owner in contempt action brought by city when property owner failed to abate nuisance).

We conclude that a plain reading of section 364.12(4) allows a city to seek a personal judgment against a property owner to recover nuisance abatement costs. We therefore need not look beyond the language of section 364.12(4) to conclude that the city properly pursued its remedy against defendants in this case. See Drahaus v. State, 584 N.W.2d 270, 274 (Iowa 1998) (when text of statute is plain and its meaning clear, court will apply the language of the statute as written and will not search for meaning beyond express terms of statute or resort to rules of statutory construction).

We also point out that section 364.12(4) contains no requirement that the city give property owners notice of its intention to seek abatement demolition costs concerning a nuisance. Therefore, the city had no duty under section 364.12(4) to give defendants notice of its intention to later pursue a claim against defendants for demolition costs. The city did, however, give defendants a ten-day notice under the city ordinance to abate and remove the nuisance. Defendants took no action in response to the notice. Thereafter, the city lawfully exercised its authority under the city ordinance and under Iowa Code section 364.12 to abate the nuisance, demolish the building, and seek to recover the demolition costs from defendants. Defendants raise no other legal obstacles to the city’s exercise of authority under section 364.12(4) m pursuing its civil action against defendants to recover costs it incurred in abating the nuisance on defendants’ property.

We therefore affirm the judgment of the district court holding defendants liable for the costs of demolition.

IV. Disposition.

We agree with the district court’s conclusion that Iowa Code section 446.20(2) does not apply in this case concerning the city’s action against defendants for reimbursement of costs it incurred in abating a nuisance on defendants’ property. We further agree with the district court’s implied conclusion that section 364.12(4) gave the city authority to pursue a civil action against defendants for abatement costs. We have considered other contentions made by defendants and find no merit in them. We vacate the decision of the court of appeals and affirm the district court judgment.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

McGIVERIN, Senior Judge, participates in place of TERNUS, J., who takes no part.

       Retired Justice serving as senior judge by order pursuant to Iowa Code section 602.9206 (1999).

      . We note that section 446.20(1) refers to a county’s remedy of personal judgment against a property owner for nonpayment of property taxes. See Hiskey v. Maloney, 580 N.W.2d 797, 798-99 (Iowa 1998) (concluding that Iowa Code sections 445.2 and 446.20, which allow a county treasurer to seek a personal judgment for payment of delinquent real estate taxes, do not apply to delinquent taxes included in tax sale prior to date statutes were enacted). Nothing in section 446.20(1), however, indicates a similar remedy, i.e., personal judgment action, is available to a city or county to recover nuisance abatement costs.
      Additionally, to the extent that the Musca-tine City Code would give the city authority to seek abatement costs from defendants, defendants argue that any such provisions would be controlled, or preempted by, section 446.20(2). Based upon our reading of the ordinance as provided in the record, however, we conclude that the Muscatine City Code does not authorize a civil action against a property owner to recover nuisance abatement costs. At most, the Muscatine City Code gives the city council authority to levy a special tax against the property and says nothing about allowing the city to pursue a civil action against a property owner to recover nuisance abatement costs. See Muscatine, la. Code tit. 9, ch. 4, § 4(C).

      . In their brief on appeal, defendants contend that their rights to procedural due process under the federal and Iowa Constitutions, see U.S. Const.amend. XIV, Iowa Const, art. I, § 9, were violated because the city allegedly failed to give them adequate notice of the city's intention to pursue a civil action against them for reimbursement of nuisance abatement costs. We need not address this contention because our review of the record shows that although defendants referred to lack of notice in their answer to the city's petition, defendants did not cite either an Iowa or federal constitutional provision to the trial court in making this contention or otherwise explain how lack of notice violated defendants' rights under either the Iowa or federal constitution. Accordingly, the trial court made no ruling on this contention. We therefore conclude that defendants failed to preserve error concerning their appellate claim that their constitutional due process rights were violated.


author: CARTER, Justice.

text:
    In re the MARRIAGE OF Mary Beth LONGMAN and Lance L. Longman. Upon the Petition of Mary Beth Longman n/k/a Mary Beth Oostenbrug, Appellant, and Concerning Lance L. Longman, Appellee.
    No. 99-0040.
    Supreme Court of Iowa.
    Nov. 16, 2000.
    Gilbert R. Caldwell III of Caldwell, Caldwell & Caldwell, P.L.C., Newton, for appellant.
    C. Jean Pendleton of Pingel & Templer, P.C., West Des Moines, for appellee.
   CARTER, Justice.

Mary Beth Longman n/k/a Mary Beth Oostenbrug appeals from an order in a dissolution-of-marriage modification action that required her to pay postsecondary education subsidies for her children, Lucas and Jeffrey, pursuant to Iowa Code section 598.21(5A) (Supp.1997). She contends that based on her income she cannot afford to contribute to the postsecondary education of either child. She also contends that the district court erred in requiring her to reimburse the father of the children, Lance Longman, for a portion of the sums he had paid for college education costs of Lucas prior to the court’s adjudication.

The order that Mary Beth challenges establishes her subsidy at twenty percent of the postsecondary education costs incurred by Lucas and Jeffrey. In the same order, the court fixed Lance’s postsecond-ary subsidy at one-third of the college education costs incurred by each child. Because Lance has not appealed from that determination, the order establishing his postsecondary education subsidy for Lucas and Jeffrey is affirmed. Because we conclude that Mary Beth’s income is insufficient to justify the payment of any postsec-ondary education subsidy, we reverse the district court’s order compelling her to make such payments.

The marriage of Mary Beth and Lance was dissolved in October 1988. They had four children, two of whom are directly involved in the present litigation. On June 1, 1997, their son Lucas graduated from high school and was accepted as a student at the University of Iowa. At this time, Lance asked the court to modify the parties’ dissolution decree by making a specific provision for parental subsidization of the postsecondary education of Lucas. Initially, the court directed that the parties attempt to agree upon their respective financial responsibilities for postsecondary education in accordance with the provisions of Iowa Code section 598.21(5A).

The parties could not agree as to their obligations, and after Lucas had already attended college for three semesters, the court was required to determine the responsibility of Lance and Mary Beth for the subsidization of his education. The court made findings as to the amount of Lucas’s educational expenses and determined that through working Lucas was able to pay approximately fifty percent thereof. The court ordered Lance to pay one-third of Lucas’s college expenses and ordered Mary Beth to pay twenty percent.

By the time the determination of Lucas’s subsidy was made, Jeffrey had also been accepted as a student at the University of Iowa. Based on that circumstance, the district court proceeded to determine the amount of parental subsidization that should be afforded Jeffrey. Based on findings that Jeffrey’s expenses would be similar to Lucas’s and that Jeffrey also was able to pay approximately fifty percent thereof, he was also provided with a one-third subsidy from Lance and a twenty percent subsidy from Mary Beth. Other details that are important in the litigation will be discussed in consideration of the legal issues presented.

I. Whether the Postsecondary Education Expense Subsidy Established for Mary Beth Was Not Warranted Based on Her Available Income.

Mary Beth contends that based on her income it is obvious she cannot afford to contribute financially toward the post-secondary education of Lucas or Jeffrey. In connection with this contention, the parties engage in a semantic dispute involving Mary Beth’s use of the term “good cause” in her argument. Lance argues that determination of good cause under section 598.21(5A) has reference to the child’s eligibility for college enrollment and not the ability of a parent to pay. That statute provides:

The court may order a postsecondary education subsidy if good cause is shown.
a. In determining whether good cause exists for ordering a postsecond-ary education subsidy, the court shall consider the age of the child, the ability of the child relative to postsecondary education, the child’s financial resources, whether the child is self-sustaining, and the financial condition of each parent.

Iowa Code § 598.21(5A)(a) (emphasis added).

Although the child’s eligibility for college enrollment was the particular aspect of good cause that this court considered in In re Marriage of Murphy, 592 N.W.2d 681, 684 (Iowa 1999), subsection (a) of section 598.21(5A) also requires consideration of the financial condition of each parent in the determination of good cause.

Lance’s one-third subsidy of Lucas’s college costs was predicated on a before-tax income approaching $80,000. In seeking to establish Mary Beth’s ability to pay the subsidy established by the court, Lance urges that she has monthly income after taxes of $1400 plus a child support payment of $374 for the benefit of a third child of the parties. He matches this income with a list of monthly expenses provided by Mary Beth that totaled $1416. That match up would provide a positive cash flow of $358 per month, but the list of expenses furnished by Mary Beth expressly states that it does not include any allow-anee for clothing, home maintenance, auto maintenance and repair, or medical bill copayments. Consequently, we believe that her positive cash flow is much less and is not sufficient to warrant the imposition on her of any portion of the college expenses incurred by Lucas or Jeffrey. We do not believe that a parent is required to make the same amount of parental sacrifice toward assisting in the college education of a child that is required to provide subsistence support for minor children. See Stanford v. Stanford, 628 So.2d 701, 703 (Ala.Ct.Civ.App.1993) (prior to awarding postsecondary educational subsidy court must determine whether parent in question has sufficient earning capacity or income to provide assistance without incurring undue hardship).

II. Reimbursement of Lance by Mary Beth for Educational Expenses Paid.

Another issue raised in the litigation is whether the court was correct in ordering Mary Beth to reimburse Lance for sums paid by him for Lucas’s college expenses in excess of his one-third limit. The district court’s ruling was based on a finding that Mary Beth had an obligation to contribute to Lucas’s college expenses. Because that finding has been overturned, we could dispose of this issue based on the absence of any duty on her part. However, because of the likelihood that a similar issue might arise with respect to the parties’ youngest child and for the benefit of the bench and bar, we express the view that the district court’s ruling requiring reimbursement by Mary Beth was wrong even if she had an obligation to contribute toward Lucas’s college expenses. Any obligation she would have had in that regard under section 598.21(5A) is owed to Lucas and is properly payable only to him or to the educational provider. Lance, in paying more than his one-third, court-ordered subsidy, was a volunteer and is not entitled to reimbursement for the extra amount paid. In so holding, we do not intimate that a parent lacks standing to request a postsecondary education subsidy on behalf of a child.

We have considered all issues presented. We affirm the postsecondary expense subsidy that was ordered for Lance and reverse the subsidy that was ordered for Mary Beth.

AFFIRMED IN PART; REVERSED IN PART.

McGIVERIN, S.J.,* participates in place of LARSON, J., who takes no part.

      . It is provided in Iowa Code § 598.21(5A)(b) that "[a] postsecondary education subsidy shall be payable to the child, the educational institution, or to both, but shall not be payable to the custodial parent.”

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).