author: WIGGINS, Justice. CADY, Justice

text:
    STATE of Iowa, Appellee, v. Melvin Haywood LEWIS, Appellant.
    No. 02-1105.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendell, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

This appeal involves a decision by the district court overruling Melvin Lewis’s motion to suppress evidence obtained through a warrantless search of his fenced backyard and enclosed rear porch. At trial, Lewis was found guilty of the charge of possession of marijuana in violation of Iowa Code section 124.401(5) (1999). On appeal, he challenges the trial court’s suppression ruling as well as the court’s imposition of a $125 law enforcement initiative surcharge, which Lewis claims is a violation of the ex post facto clauses of the federal and state constitutions. We conclude the district court should have granted Lewis’s motion to suppress. The police cannot rely on reasonable suspicion or hot pursuit as the basis for a warrantless entry into Lewis’s fenced backyard. Thus, we reverse and remand for a new trial.

I. Background Facts and Proceedings.

As part of its crime prevention program, the Des Moines Police Department obtained form letters from property owners in high crime areas, which read as follows:

Dear Chief Moulder:
We have considerable concern about the illegal activities in our neighborhood. We are especially concerned about the loitering and trespassing on our properties in this area. Various events which have occurred in the neighborhood are infringing upon the rights of area residents.
This letter is to authorize you to arrest anyone who is illegally on the property I own/manage located at:
The following is a listing of my tenants:
Name Address & Apt. No.
Melvin Lewis 1600 Forest
Des Moines, IA
I will advise you of any change in tenants of my property. If needed, you can contact me at phone numbers listed below. Thank you for your assistance. Sincerely,
Owner’s Signature

This property is located in Officer Michael Coughlin’s regular patrol area. Prior to July 24, 2000, Officer Coughlin contacted the tenant, Lewis, and discussed the no-trespass letter with him.

On July 24, 2000, at around 9:30 p.m., Officer Coughlin was on routine patrol in the area. From his vehicle, he observed several people in the fenced backyard and on the enclosed porch located inside the fence at the rear of the property. The fenced backyard and enclosed rear porch were clearly visible from the street. A gated fence completely enclosed the backyard. Officer Coughlin did not see Lewis on the premises.

Officer Coughlin knew the department had a no-trespass letter on file regarding this property. Officer Coughlin determined the no-trespass letter was current and decided to investigate. As Officer Coughlin and his partner pulled their marked squad car into Lewis’s driveway, the officers noticed two individuals standing inside the gate of the fenced backyard start “rapidly walking” towards the enclosed rear porch where there was a large group of people. Officer Coughlin exited his vehicle and told the two individuals: “Stop, police.” There is no indication as to whether these two individuals heard Officer Coughlin’s command, but it is clear they did not acknowledge it. They continued to proceed to the enclosed rear porch. As these two individuals attempted to enter the enclosed rear porch, Officer Cough-lin shouted, “no,” entered the fenced backyard, and ran to the enclosed rear porch. The two individuals attempted to enter the enclosed rear porch’s door, where Officer Coughlin could smell the odor of recently smoked marijuana.

Officer Coughlin ordered everyone off the enclosed rear porch, because he and his partner were outnumbered. He felt it was necessary for the officers’ safety to handcuff and pat down the individuals he ordered off the enclosed rear porch. All but two individuals followed Officer Coughlin’s commands to step down from the enclosed rear porch. The two individuals remaining on the enclosed rear porch were the tenant, Lewis, and his female companion. Lewis and his companion were not the two individuals who Officer Cough-lin saw earlier walking towards the enclosed rear porch.

As Officer Coughlin and his partner were in the process of handcuffing the persons and patting them down, Sergeant Moran appeared at the scene. Sergeant Moran noticed that two individuals were still on the enclosed rear porch. An officer at the scene informed Sergeant Moran it was the tenant and his female companion. Sergeant Moran then inquired whether anyone had checked Lewis and his female companion for weapons. An officer on the scene answered in the negative. Sergeant Moran proceeded to enter the enclosed rear porch to check for weapons. He asked Lewis to stand. When Lewis stood, Sergeant Moran saw a bag of what he believed to be marijuana between Lewis’s feet. He immediately placed Lewis in handcuffs. Sergeant Moran searched the rest of the enclosed rear porch. He saw a paper bag on the east end of the enclosed rear porch. He opened the bag and found several bags of marijuana and a gun. The officers took Lewis into custody, and the State charged him with possession of marijuana with intent to deliver while having immediate control of a firearm in violation of Iowa Code sections 124.401(1)(<¾ and 124.401(l)(e) and failure to affix a drug tax stamp in violation of Iowa Code sections 453B.3 and 453B.12.

Lewis filed a motion to suppress claiming the entrance onto his property violated his rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. The district court concluded the officers acted reasonably in attempting to ascertain whether the individuals on the property had permission to be there. It further concluded when two of the individuals attempted to evade the officers, Officer Coughlin acted reasonably in entering the fenced backyard and following these individuals to the enclosed rear porch. Because the officer smelled recently smoked marijuana coming from the enclosed rear porch, exigent circumstances existed justifying the decision to secure the persons in the area of the enclosed rear porch, to enter the enclosed real' porch, and to check the individuals on the enclosed rear porch for weapons. For these reasons, the district court overruled the motion to suppress.

At trial, the jury only convicted Lewis of the lesser included offense of possession of marijuana. The district court granted Lewis a deferred judgment and placed him on informal probation. Lewis failed to sign up for informal probation, and the district court placed him on formal probation. When Lewis violated formal probation by testing positive for drugs on two separate occasions, the district court issued a warrant for his arrest. The district court revoked Lewis’s deferred judgment and sentenced him to sixty days in the county jail. Additionally, the district court ordered Lewis to pay a fine of $250, a $5 DARE surcharge, and a $125 law enforcement initiative surcharge. The district court also ordered the Department of Transportation to revoke Lewis’s driving privileges. Lewis appeals.

II. Scope of Review.

This appeal involves constitutional issues. Therefore, the court’s review is de novo. State v. Reinier, 628 N.W.2d 460, 464 (Iowa 2001). The court makes an “independent evaluation of the totality of the circumstances as shown by the entire record.” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” Id.

III. Issues.

Lewis raises two issues on appeal: (1) whether the search of Lewis’s property and seizure of the evidence by the officers violated the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution; and (2) whether the imposition of the $125 law enforcement initiative surcharge violated the ex post facto clauses of the federal and state constitutions. The State claims Lewis failed to preserve error by not challenging the intrusion onto the curtilage.

IV. Preservation of Error.

It has long been the position of this court that we will not decide a case based on a ground not raised by a party in the district court. Kriv v. Northwestern Sec. Co., 237 Iowa 1189, 1195, 24 N.W.2d 751, 754 (1946). This rule applies to constitutional issues raised for the first time on appeal. State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). Error preservation is based on principles of fairness. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). It is unfair for us to consider an issue that the parties did not give the trial court an opportunity to consider. Id.

Based on the motion, resistance, and briefs filed, the district court framed the issues raised as follows:

The defendant argues that the police officers had no legal right to enter upon the backyard of the property, to detain any of the persons on the property or to conduct any search of the persons located there or of the back porch. He urges that the “trespass letter” is of no legal consequence, and gives the police no authority beyond traditional legal principles. Defendant concludes that the contraband found by the police was the result of an illegal search and must be suppressed.

(Emphasis added.)

It is apparent the district court considered Lewis’s challenge to the intrusion onto the curtilage. The issue is properly before us.

V. General Legal Principles.

The Fourth Amendment to the United States Constitution assures “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The Fourth Amendment protects persons from unreasonable intrusions by the government upon a person’s legitimate expectation of privacy. State v. Legg, 633 N.W.2d 763, 766-67 (Iowa 2001). This protection includes unreasonable intrusions by law enforcement officers. State v. Loyd, 530 N.W.2d 708, 711 (Iowa 1995). Subject to a few carefully drawn exceptions, warrant-less searches and seizures are per se unreasonable. Legg, 633 N.W.2d at 767. The State has the burden to prove by a preponderance of the evidence that a recognized exception to the warrant requirement applies. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996), abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001). Exceptions recognized by this court are searches based on consent, plain view, probable cause coupled with exigent circumstances, searches incident to arrest, and those based on the emergency aid exception. State v. Carlson, 548 N.W.2d 138, 141 (Iowa 1996); Cadotte, 542 N.W.2d at 836.

We have adopted a two-step approach to determine whether a Fourth Amendment violation has occurred. The first step is to determine whether the person challenging the search had a legitimate expectation of privacy in the location searched. Legg, 633 N.W.2d at 767. If the expectation of privacy exists, we then “consider whether the State unreasonably invaded that protected interest.” State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). We base our assessment of a law enforcement officer’s conduct on an objective standard. State v. Hofmann, 537 N.W.2d 767, 770 (Iowa 1995). The legality of the search does not depend on the actual motivations of the law enforcement officers involved in the search. State v. Heminover, 619 N.W.2d 353, 361 (Iowa 2000).

Lewis also asserts the State violated article 1, section 8 of the Iowa Constitution, which also protects persons against unreasonable searches and seizures. Our court has consistently construed Iowa’s prohibition against unreasonable searches and seizures as having the same scope and purpose as the Fourth Amendment. State v. Showalter, 427 N.W.2d 166, 168 (Iowa 1988). Lewis has not given us reason to do otherwise, thus our discussion of the Fourth Amendment is equally applicable to his Iowa constitutional claim. See Legg, 633 N.W.2d at 765 n. 1.

VI. Legitimate Expectation of Privacy.

The protection provided by the Fourth Amendment has been extended to the curtilage. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984); Legg, 633 N.W.2d at 767. Common law recognized the curti-lage as an area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life.” Oliver, 466 U.S. at 180, 104 S.Ct. at 1742, 80 L.Ed.2d at 225 (citing Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886)). “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” United States. v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326, 334 (1987). To determine the extent of a home’s curtilage, the Dunn Court determined the question should be resolved with reference to four factors. These factors are: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301, 107 S.Ct. at 1139, 94 L.Ed.2d at 334-35. “[T]he primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” Id. at 301 n. 4, 107 S.Ct. at 1140 n. 4, 94 L.Ed.2d at 335 n. 4.

Applying these factors to the driveway adjacent to Lewis’s house, we find the driveway was not within the curti-lage. It is common for solicitors, operators of motor vehicles, and other individuals to enter unsecured driveways of private residences. Lewis could not have had a reasonable expectation of privacy in his driveway. Therefore, the Fourth Amendment did not prohibit the police from entering Lewis’s driveway. Moreover, the officers’ observations of the persons in Lewis’s fenced backyard and enclosed rear porch did not violate the Fourth Amendment. California v. Ciraolo, 476 U.S. 207, 213-14, 106 S.Ct. 1809, 1812-13, 90 L.Ed.2d 210, 216-17 (1986). That is because there is no legitimate expectation of privacy and no search within the meaning of the Fourth Amendment when authorities can view an activity occurring in the curtilage from a public area. See United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55, 62 (1983); Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502, 512-13 (1983). We reach a different conclusion, however, with respect to the police entering the fenced backyard and enclosed rear porch.

The backyard was located adjacent to the home. The enclosed rear porch was located in the fenced backyard. A fence with a gate completely enclosed the backyard. Screens and or windows with a door fully enclosed the rear porch. At the time of the officers’ entry onto the property, Lewis was using the fenced backyard and enclosed rear porch for a private gathering. There was no evidence to indicate the fenced backyard or enclosed rear porch was open to the public or used as a place for public gatherings. Although there were no steps taken to protect the area from observation by individuals outside the fenced backyard or enclosed rear porch, it is clear that the area was intimately associated with domestic life and the privacies of Lewis’s home. We find the fenced backyard and the enclosed rear porch were within the curtilage subject to the protection of the Fourth Amendment. This is consistent with decisions from other jurisdictions that have concluded a fenced yard is subject to Fourth Amendment protection as curti-lage. See United States v. Romero-Bustamente, 337 F.3d 1104, 1107-08 (9th Cir. 2003) (holding a small enclosed backyard immediately adjacent to defendant’s home qualified as part of curtilage protected by the Fourth Amendment); Daughenbaugh v. Tiffin, 150 F.3d 594, 601-02 (6th Cir. 1998) (holding backyard qualified as part of curtilage protected by the Fourth Amendment); United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir.1997) (holding yard immediately accessible from the house and surrounded on three sides by a wire fence qualified as part of curtilage protected by the Fourth Amendment); Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974) (holding enclosed backyard of four-unit apartment qualified as part of curtilage protected by the Fourth Amendment); United States v. Van Dyke, 643 F.2d 992, 994 (4th Cir.1981) (holding honeysuckle patch situated 150 feet from the residence in an exclusionary fence qualified as part of curtilage protected by the Fourth Amendment).

Having found the Fourth Amendment protects against unreasonable searches and seizures in the fenced backyard and enclosed rear porch, we proceed to the next inquiry, whether a recognized exception was available to the officers to enter those areas without a warrant.

VII. Reasonableness of Warrantless Entry into the Fenced Backyard.

The no-trespass letter did not give the officers authority to enter the leased property, absent a showing of an exception to the warrant requirements of the Fourth Amendment. Property owners have a right to enter their leased premises under certain circumstances as provided by Iowa Code sections 562A.19 and 562A.29. These Code provisions, however, do not supersede the tenant’s constitutional right to be free from unreasonable searches. See State v. Baker, 441 N.W.2d 388, 392 (Iowa Ct.App.1989) (holding that defendant’s Fourth Amendment rights were violated when the farmhouse he was renting was searched with the property owner’s consent but without his consent). In order for the officers to enter the fenced backyard, the State has the burden to prove by a preponderance of the evidence a recognized exception to the warrant requirement.

The State argues the officers’ action of entering Lewis’s fenced backyard was justified. First, the State asserts Officer Coughlin had a right to approach the two individuals walking quickly towards the porch and stop them for investigatory purposes under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the alternative, the State argues when the officers approached the Lewis’s residence, they had a reasonable belief the crime of criminal trespass was being committed as defined under Iowa Code section 716.7(2)(a). As they arrived on the scene to investigate the trespass, the officers observed two persons located inside the fenced backyard walk quickly towards the enclosed rear porch. The officers wanted to question these individuals in connection with their investigation. When these two individuals failed to comply with the officer’s commands to stop, these individuals committed the crime of interference with official acts under Iowa Code section 719.1. Therefore, the State argues the entry on the property was in hot pursuit of these individuals.

A Stop for Investigatory Purposes. In Terry, the United States Supreme Court held that an officer may conduct a brief investigatory stop of an individual when the officer has a reasonable and articulable suspicion that criminal activity is afoot. 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The State argues that the two unknown individuals’ conduct of walking quickly to the enclosed porch constitutes a reasonable and articulable suspicion that criminal activity is afoot. Without deciding whether the actions of the two individuals walking quickly towards the house constitute reasonable and articulable suspicion, this suspicion in and of itself would not be enough to allow the officers to enter the curtilage. The officers needed probable cause and exigent circumstances to enter the curtilage without a warrant. State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997). The reasonable and articulable suspicion standard of Terry is less than probable cause. “Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990).

When the officers arrived at Lewis’s residence, they did not have probable cause to believe a crime had been committed. The no-trespass letter did not give the officers probable cause to believe that the individuals in the fenced backyard or on the enclosed rear porch were trespassers. The no-trespass letter does not afford the police more authority to define “trespass” than the Iowa Code. Iowa Code section 716.7 defines the criminal offense of trespass as, generally, being upon the property of another without his or her permission. The trespass statute acknowledges the lessee’s right to grant permission to third parties to be on the leased premises. Iowa Code § 716.7(2)(a). Although the police received numerous reports of criminal activity in the area, they did not receive any complaints regarding Lewis’s property.

Tenants have a right to use their property for any legal purpose. No person will quarrel with the proposition that having a party at a private home and using the backyard to accommodate guests is commonplace. Having a party at 9:30 p.m. on a summer evening should not raise any suspicion. Citizens living in high crime areas have the right to enjoy the use of their property just as much as citizens living in other parts of the city do. The only factor that drew police attention to Lewis’s party was that it was taking place in a high crime area. The police never observed any illegal conduct on Lewis’s property. When the police pulled in the driveway, the only thing they noticed were two individuals in the fenced backyard walking quickly towards the enclosed rear porch. There was no probable cause to believe the crime of trespass was being committed or that these two individuals walking quickly to the enclosed rear porch were trespassers. Reasonable and articu-lable suspicion did not give the officers the authority to enter Lewis’s fenced yard. Probable cause is the appropriate standard for searches of the curtilage. Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.2001).

B. Hot Pursuit. The State claims when the officers entered the fenced backyard, they were simply in hot pursuit of individuals committing the crime of interference with official acts. The State contends our decisions in Legg, 633 N.W.2d 763, and State v. Pink, 648 N.W.2d 107 (Iowa 2002), grant the police officers the authority to enter Lewis’s enclosed backyard. In Legg and Pink, police officers attempted to stop the defendants because they were both observed committing traffic violations on public roadways. Legg, 633 N.W.2d at 765; Pink, 648 N.W.2d at 108. In both cases, the officers activated the top lights of their vehicles. Neither defendant stopped. Legg continued driving, weaving from curb to curb, and ran a second stop sign. Legg, 633 N.W.2d at 765. Pink sped up. Pink, 648 N.W.2d at 108. Legg and Pink drove a considerable distance trying to elude the officers. These actions gave the officers probable cause that each defendant also committed the crime of interfering with official acts. Legg, 633 N.W.2d at 771; Pink, 648 N.W.2d at 109. Both defendants drove to their homes. Legg went into her garage, while Pink entered his house. Legg, 633 N.W.2d at 765; Pink, 648 N.W.2d at 108. The police entered Legg’s garage to arrest her. Legg, 633 N.W.2d at 765. They entered Pink’s house to arrest him. Pink, 648 N.W.2d at 108.

In Legg and Pink, we held that although the defendants were in an area legally protected by the Fourth Amendment, the officer’s entrance did not violate the defendants’ Fourth Amendment rights. Legg, 633 N.W.2d at 773; Pink, 648 N.W.2d at 109. In weighing the competing interests of the State and the defendants as applied to the facts in each particular case, we concluded that the officers’ conduct was reasonable in both cases. Legg, 633 N.W.2d at 773; Pink, 648 N.W.2d at 109. The officer in each case had probable cause to arrest the defendants for a serious misdemeanor while they were in a public place. Id. Although Legg and Pink certainly had a legitimate expectation of privacy, probable cause coupled with exigent circumstances justified the officers’ minimal invasion of this privacy interest. Id. There are distinguishing circumstances between the present case and the Legg and Pink decisions.

In Legg and Pink, the officers observed activities taking place on public roadways, which gave them probable cause to believe a crime had been committed. As previously discussed, there was no probable cause to believe a crime was being committed on Lewis’s property. The mere act of quickly walking away from the officer and ignoring his directions to stop under these circumstances is not interference with official acts. These individuals were free to go about their business on Lewis’s property without police interference. See People v. Lupinacci, 191 A.D.2d 589, 595 N.Y.S.2d 76, 77 (N.Y.App.Div.1993) (holding if police were not authorized to detain defendant, defendant was free to walk away from the arresting officer and could not be charged with obstructing government administration or interfering with an officer in performance of an official function); B.H. v. State, 505 So.2d 14, 15 (Fla.Dist.Ct.App.1987) (holding walking away from police officers, refusing to answer their questions, and ignoring their directions to return cannot constitute obstruction of justice if the officers did not have lawful authority to detain the defendant).

The officers’ entrance into Lewis’s fenced backyard violated his Fourth Amendment rights and his rights under article I, section 8 of the Iowa Constitution against unreasonable searches and seizures. The alleged probable cause and exigent circumstances for the subsequent search of the enclosed rear porch flowed from the warrantless, illegal entry into the fenced backyard. Therefore, the evidence seized from the enclosed rear porch must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453-54 (1963).

We are not saying police should not investigate situations they find suspicious. But here, the officers did not have to enter Lewis’s backyard to investigate the crime of trespass. The officers could have first approached the front door and either rang the doorbell or knocked, in an attempt to contact Lewis to ask him if the individuals were on his premises with his permission. If the officer had attempted to contact Lewis at his front door and received no response, the invasion of the curtilage may not have violated Lewis’s Fourth Amendment rights. See Breuer, 577 N.W.2d at 50 (stating if an officer does not receive a response after ringing the front doorbell of a residence, the officers’ entry into the stairway without a warrant was a minimal intrusion upon the tenant’s legitimate expectation of privacy and did not violate the Fourth Amendment).

VIII. Conclusion and Disposition.

The police cannot rely on reasonable suspicion or hot pursuit as the basis for a warrantless entry into Lewis’s fenced backyard. Thus, all evidence, which flowed from the warrantless entry, is inadmissible. This ruling is dispositive of the other issues raised on appeal. We reverse the trial court’s denial of Lewis’s motion to suppress. We reverse and remand for a new trial.

REVERSED AND CASE REMANDED.

All justices concur except LARSON and CADY, JJ., who dissent.

CADY, Justice

(dissenting).

I respectfully dissent. The majority determines the backyard of Lewis’ residence to be a protected area under the Fourth Amendment and article I, section 8 of the Iowa Constitution and then confines its analysis of the constitutionality of the police activity by looking to see if the police conduct fits within one of two recognized exceptions to the warrant requirement: probable cause coupled with exigent circumstances and hot pursuit. I agree the backyard was a protected area and the police were not permitted to enter based upon probable cause and exigent circumstances or hot pursuit. Yet, the problem with the majority’s analysis is that it neglects to judge the police under the proper standard. The police went to the premises to conduct an investigation and must be judged by the standard governing such activity, not by the standard applied when the police enter premises to conduct a search.

Typically, courts do not consider police entry onto the curtilage of a home for the purpose of conducting a routine investigation to be a search under a constitutional analysis. Thus, it is not recognized as one of our recognized exceptions to the warrant requirement. The investigation is not normally a search because it typically is confined to those areas where any other visitor to the home could approach to speak with the occupants. However, it may turn into a search if police venture into an area of the curtilage that is constitutionally protected. Nevertheless, even this intrusion for investigative purposes does not violate constitutional prohibitions if the intrusion was reasonable.

Search and seizure jurisprudence requires a two-step analysis. Once an intrusion on a protected interest is found, the reasonableness of the path the police used to locate the occupant of the particular residence becomes the critical point in the analysis. See State v. Naujoks, 637 N.W.2d 101, 106 (2001). The opinion of the majority, however, fails to properly consider this important analysis.

A good example of the proper analysis in a ease of this nature is found in Breuer, 577 N.W.2d 41. In Breuer, the police went to the defendant’s duplex apartment building to investigate a reckless driving complaint recently lodged against the defendant. Id. at 43. Upon their arrival, the police approached the front door of the duplex and rang the doorbell. Id. After receiving no response, the police opened the door, entered a stairway/hallway, and knocked on the door to the defendant’s apartment unit. Id. After the defendant opened his door, police smelled the odor of burning marijuana. Id. The defendant was eventually arrested for possession of a controlled substance and sought to suppress the evidence at trial as an unreasonable search under both state and federal constitutional provisions. Id.

We began our analysis in Breuer by first observing the two-step approach required under the Fourth Amendment. Id. at 45. We first looked to determine if the defendant had a legitimate expectation of privacy in the hallway and, if so, whether the police intrusion into the protected area was reasonable. Id. Although we found the hallway area was protected, we nevertheless determined the police intrusion was reasonable based on three reasons. First, the intrusion “was related to a legitimate objective of gathering information as part of an investigation” and was not done randomly. Id. at 48. Second, the police did not have any prior knowledge the defendant was involved in drug activity, but approached the residence solely to investigate the reckless driving complaint. See id. Finally, considering the right of police to approach a person’s private property to speak with the person concerning a police investigation, the entry into the particular protected area constituted a minimal intrusion upon the defendant’s expectation to privacy. Id. at 48-49.

This is the precise analysis required in this ease. Once the majority finds the backyard to be a protected area, Breuer requires a review of the facts and circumstances to determine if the investigative intrusion by police was nevertheless reasonable.

The reasonableness of the police action in going into the backyard in this case is supported by several circumstances. First, as in Breuer, the entry was related to a legitimate police investigation. Id. at 48. The house was located in a high crime area and the neighborhood homeowners had notified police of trouble with trespassing and loitering on leased property. As a part of a neighborhood crime prevention effort, the owner of the particular house rented by Lewis authorized police to arrest any trespassers. Armed with this knowledge, and after observing a gathering of people in the backyard of Lewis’ home, police thought they should investigate to see if Lewis was present and had authorized the gathering. Second, as in Breuer, police did not know Lewis was involved in any drug activity. Id. Instead, the investigation was solely to determine if the occupants in the backyard were trespassers. Third, as in Breuer, the intrusion was minimal. Id. at 49. The area outside a house does not generally enjoy the same level of privacy as the area inside a house, especially when it is visible from public areas outside the property, as in this case.

Of course, one fact in Breuer, absent in this case, is that police first went to the front door to locate the resident before intruding into the protected area. Nevertheless, there is no constitutional requirement that police must first knock on the front door before going into other areas of the curtilage. We emphatically rejected this type of claim in Breuer when we said:

“ ‘[t]he reasonableness of any particular government activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means.’ ”

Id. (citation omitted); accord State v. Jones, 666 N.W.2d 142, 149 (Iowa 2003) (“[Cjonstitutional search and seizure provisions do not require the least intrusive action possible. Instead, they require a measurement of ‘reasonableness, under all the circumstances.’ ”) (Citation omitted)). Moreover, other courts have rejected a hard and fast rule that police must knock at the front door before making any attempt to contact the occupant of the house at another location on the premises. See Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th Cir.1998). Such an inflexible approach is contrary to the accepted principle that “[t]he textual ‘touchstone of the Fourth Amendment is reasonableness.’” Id. (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297, 302 (1991) (citation omitted)); accord Jones, 666 N.W.2d at 149. The “Supreme Court has ‘consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.’ ” Alvarez, 147 F.3d at 358 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 354 (1996)). Thus, many courts have permitted police to enter a backyard for a legitimate law enforcement investigation without first knocking on the front door. Id. at 358-59. Clearly, entry into the backyard is not unreasonable simply because police do not first knock at the front door.

The reasonableness of the entry into the backyard without first approaching and knocking on the front door in this case is evident from the activity that took place after the police drove into the driveway. The police observed two men behind the gate to the backyard who quickly turned and walked toward the enclosed porch despite a police command to stop. The majority concludes this fact cannot be considered in supporting the police actions because the two men had a right to walk away. I agree the two men had a right to walk away, but the majority is mistaken in its conclusion that walking away is a circumstance that cannot be considered. In Illinois v. Wardlow, the Supreme Court made it clear that the right to walk away from approaching law enforcement officers is only a right of the person to “[go] about one’s business,” not evade reasonable police investigation. 528 U.S. 119, 125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 577 (2000). In fact, flight is the opposite of “going about one’s business,” and flight in response to the sight of police can be used to support reasonable suspicion in the context of a high crime neighborhood. See id. at 124-25, 120 S.Ct. at 676, 145 L.Ed.2d at 576-77.

Therefore, the police in this case could properly consider the hasty movements of the two men into the backyard as part of their investigation, and this evidence can also be used to support the reasonableness of the police conduct in going into the backyard without first knocking on the front door. The police were aware many people had assembled in the backyard and the two men’s flight revealed a direct, readily accessible means to contact the people on the premises. The backyard was visible from the fence, some of the people in the backyard were visible, and the distance from the gate to the back porch area was short. Under the circumstances, it was not unreasonable that the path taken by the two men might lead the police to the tenant. It would seem impractical for the police to go to the front door in an effort to locate the tenant.

I would conclude the police properly entered the backyard in the pursuit of a legitimate police investigation. Consequently, the police were in an area they were entitled to be when they smelled the presence of marijuana. At this point, the entry ceased to be a police investigation. However, by that time the police had acquired probable cause and their subsequent conduct was not violative of the Fourth Amendment or article one, section eight of the Iowa Constitution.

I would affirm the decision of the district court.

LARSON, J., joins this dissent.

      . The owner of the residence handwrote the information. in bold type.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Valli Jo WILLIAMS, Respondent.
    No. 03-1702.
    Supreme Court of Iowa.
    Feb. 25, 2004.
    Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Valli Jo Williams, Rockford, Illinois, pro se.
   WIGGINS, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct (Board) brought a complaint against attorney Valli Jo Williams after she pled guilty to interstate transportation of stolen property and wire fraud. The complaint charged Williams with multiple violations of the Iowa Code of Professional Responsibility. After a hearing, the Iowa Supreme Court Grievance Commission recommends we revoke Williams’ license to practice law in Iowa. We agree with the Commission’s recommendation and revoke Williams’ license to practice law in Iowa.

I. Procedural Background.

On June 6, 2002, this court suspended Williams’ license to practice law upon receipt of satisfactory evidence Williams entered a guilty plea to interstate transportation of stolen property and wire fraud in the United States District Court for the Northern District of Iowa. On July 2, 2003, the Board filed its notice of complaint and its requests for admissions directed to Williams. Williams did not file an answer to the complaint or respond to these requests for admissions. The Board filed an additional request for admission on August 15, 2003. Williams responded and admitted the additional request for admission. After receiving notice of the hearing, Williams sent a letter to the Grievance Commission informing the Commission she would be unavailable for the hearing and the Commission should hold the hearing without her attendance.

On September 22, 2003, the Grievance Commission held its hearing. Williams did not appear personally or through an attorney. On October 21, 2003, the Grievance Commission filed its report recommending revocation of Williams’ license to practice law in Iowa.

II. Scope of Review.

Williams does not appeal from the Grievance Commission’s recommendation. Nevertheless, our review of the record made before the Commission is de novo. The court will “decide the matter, taking into consideration the factual findings and disciplinary recommendation made by the Commission.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002). The Commission has the burden of proof to show ethical violations by a “convincing preponderance of the evidence.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000).

III.Factual Findings.

We consider the allegations of the complaint as admitted, because Williams did not file an answer to the Board’s complaint. Iowa Ct. R. 36.7 (2003). We also deem the first set of requests for admissions as admitted, because Williams failed to file a response to these requests. Iowa R. Civ. P. 1.510(2); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Postma, 555 N.W.2d 680, 681 (Iowa 1996). We find the facts to be as follows.

CRST International (CRST), located in Cedar Rapids, Iowa, employed Valli Jo Williams. CRST is the parent company of several trucking companies. Williams was the head of CRST’s claims department and oversaw litigation, which arose from accidents involving CRST’s vehicles. As part of Williams’ job responsibilities, she had the authority to settle and did settle accident claims against CRST.

Williams devised a scheme to defraud CRST by submitting fictitious accident claims to her employer. Once CRST issued and delivered the checks to Williams, she deposited the checks into a Rockford, Illinois, bank account under the name of “Ritchason & Associates.” She would then transfer the money from that account into her personal Iowa bank accounts. In all, she defrauded CRST out of $692,540.22 between September 1993 and March 1997.

In November of 1998, Williams began working for CNA Insurance in its Overland Park, Kansas, office. Williams worked as a liability claims consultant. As part of her job, she initiated the electronic process to pay insurance claims. From February 4, 1999, and continuing to March 23, 2000, Williams authorized the payment of insurance claims electronically, causing CNA to issue fifteen checks totaling $386,713.78 jointly payable to a fictitious claimant and one of the several aliases used by Williams. Williams authorized CNA to deliver these checks to her aunt’s residence in Wisconsin or to a mail drop facility controlled by Williams in Rockford, Illinois. None of the checks issued were for actual insurance claims.

For her criminal actions while working for CRST, the government indicted Williams on twelve counts of interstate transportation of stolen property in the United States District Court for the Northern District of Iowa. For Williams’ criminal actions while working for CNA Insurance, the government brought a fifteen-count indictment of wire fraud against Williams in the United States District Court for the District of Kansas. The federal court in Iowa handled all the charges as part of a plea agreement. Pursuant to the plea agreement, Williams pled guilty to one count of interstate transportation of stolen property and one count of wire fraud. The court dismissed the remaining charges under the plea agreement. On March 28, 2002, the court sentenced Williams to two thirty-month terms of imprisonment, to be served concurrently and ordered her to pay restitution of $1,062,339.68. Upon release from incarceration, Williams was to be placed on supervised release for three years.

III. Ethical Violations.

Williams’ wire fraud and interstate transportation of stolen property, which resulted in her felony convictions, violated (1) DR 1 — 102(A)(1) (providing “[a] lawyer shall not ... violate a disciplinary rule”); (2) DR 1~102(A)(3) (providing “[a] lawyer shall not ... engage in illegal conduct involving moral turpitude”); (3) DR 1-102(A)(4) (providing “[a] lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation”); and (4) DR 1-102(A)(6) (providing “[a] lawyer shall not ... engage in any other conduct that adversely reflects on the fitness to practice law”). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Vin-yard, 656 N.W.2d 127, 130 (Iowa 2003) (holding attorney’s conduct, which led to felony convictions for money laundering and wire fraud, violated DR 1-102(A)(1), DR 1-102(A)(3), DR 1-102(A)(4), and DR 1-102(A)(6)); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 330 (Iowa 2000) (holding attorney’s conduct, which led to criminal convictions for theft, forgery and deceptive practices, violated DR 1-102(A)(4) and DR 1-102(A)(6)); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Morris, 604 N.W.2d 653, 655 (Iowa 2000) (holding attorney’s conduct, which led to criminal conviction for fraudulent practices, violated DR 1-102(A)(3), DR 1-102(A)(4), and DR 1 — 102(A)(6)); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Palmer, 563 N.W.2d 634, 635 (Iowa 1997) (holding attorney’s conduct, which led to felony conviction involving theft and unauthorized use of a credit card, violated DR 1-102(A)(3) and DR 1-102(A)(4)).

IV. Sanctions.

When determining the proper sanction, the court considers the nature of the alleged violations, the fitness of the attorney to continue to practice law, the need to protect the public from persons unfit to practice law, the need to uphold the public’s confidence in the integrity of our system of justice, the need to deter other attorneys from committing similar misconduct, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003). Conviction of a felony is sufficient cause for revocation or suspension of an attorney’s license. Iowa Code § 602.10122(1) (2003). Williams’ felony convictions are conclusive evidence of her misconduct. Id.

This court has previously stated: “There is no place in our profession for lawyers who convert funds entrusted to them. It is almost axiomatic that we revoke licenses of lawyers who do so.” Comm. on Prof'l Ethics & Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994). Normally, this court will revoke an attorney’s license for converting client funds. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 389-90 (Iowa 1998) (listing cases where this court revoked an attorney’s license to practice law for converting client funds and cases where we found suspension was the more appropriate sanction).

Since Allen, we have revoked the license of four attorneys for similar conduct. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (revoking the license of an attorney for converting clients’ funds for his own use); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 145 (Iowa 2004) (revoking the license of an attorney for theft of clients’ funds); Vinyard, 656 N.W.2d at 132 (revoking an attorney’s license after he was found guilty of fourteen counts of mail fraud and twelve counts of money laundering); Bell, 650 N.W.2d at 655 (revoking an attorney’s license after the attorney, treasurer of the Iowa Intellectual Property Law Association, withdrew $11,000 from the association’s account for his own private use).

The only mitigating factor in Williams’ favor is that this is her first disciplinary proceeding. The serious nature of the aggravating factors outweighs this mitigating factor. Vinyard, 656 N.W.2d at 131; Bell, 650 N.W.2d at 655. Williams defrauded two separate employers in excess of $1,000,000. In both employment situations, she took advantage of positions of trust to misappropriate funds for her personal use. Her criminal actions took place over a seven-year period. Her actions were not an isolated instance of misconduct, but a carefully planned scheme involving wire fraud and interstate transportation of stolen property. In light of the grave criminal actions for which Williams pled guilty and served time in federal prison, it is axiomatic that her license to practice law in Iowa be revoked. We assess the costs to Williams as provided in Iowa Court Rule 35.25(1).

LICENSE REVOKED.


author: LARSON, Justice.

text:
    Steve G. BLAIR and Steven G. Blair, Executor of the Estate of Tomas Blair, Appellee, v. WERNER ENTERPRISES, Appellant. Werner Enterprises, Appellant, v. Ollie Jones and Leonard Coombs, Appellees.
    No. 02-2124.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Edward J. Krug of Krug & Beckelman, P.L.C., Cedar Rapids, for appellant.
    Mark D. Lowe of Hopkins & Huebner, P.C., Adel, for appellee Steven G. Blair.
    Rene Charles Lapierre of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen & Lapierre, L.L.P., Sioux City, for appellee Ollie Jones.
    Henry A. Harmon and Lisa R. Perdue of Grefe & Sidney, P.L.C., Des Moines, for appellee Leonard Coombs.
   LARSON, Justice.

Werner Enterprises was sued after one of its trucks was involved in a chain-reaction accident on Interstate 80 in Dallas County, Iowa. Werner sought contribution by counterclaiming against the plaintiffs and cross-claiming against the other defendants. The plaintiffs voluntarily dismissed their case in Dallas County in order to pursue their claim in a federal court in Texas. Following this dismissal, the plaintiffs moved to dismiss Werner’s contribution claims. The district court granted the motion to dismiss, and we affirm.

I. Facts and Prior Proceedings.

On March 16, 2000, Steven Blair and his three-year-old son, Tomas Blair, were traveling west on Interstate 80 in Dallas County, Iowa, when Steven saw defendant Leonard Coombs crossing the interstate to retrieve a wheel he had lost. Blair decreased his speed to avoid striking Coombs, and Werner’s truck struck the rear of Blair’s car. Blair was injured, and his son was killed.

Blair’s estranged wife filed a wrongful-death claim on behalf of Tomas in a Texas state court, and the case was removed to federal court. While the Texas case was pending, Blair sued Werner in Dallas County District Court. Werner attempted to spread its potential loss by counterclaiming against Blair and cross-claiming against Ollie Jones (who owned the car driven by Blair) and Coombs (the man who crossed the interstate to retrieve his wheel). Blair elected to participate in the Texas wrongful-death suit and dismissed his suit in Iowa. Werner then found itself without a forum in which to pursue its contribution claim against Coombs because the Texas court concluded it did not have personal jurisdiction of Coombs.

II. Issue.

The sole issue is whether Werner’s claims for contribution survived Blair’s voluntary dismissal of the underlying case. The issue turns on the interpretation of our contribution statute, Iowa Code chapter 668 (1999). We review a district court’s involuntary dismissal as a matter at law. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

III. Analysis.

Werner complains that

Blair has been afforded the opportunity to pick and choose the forum for litigating his death case. After beginning the lawsuit in Iowa, Blair unilaterally decided to dismiss the case and proceed in a Texas federal court where the key third-party defendant, Coombs, is not subject to that court’s jurisdiction.

And

this strategic posturing effectively handicaps Werner’s ability to defend itself in Texas and precludes it from seeking contribution from Coombs in that forum.

(Emphasis added.) Blair responds that he has the right to pick his forum; he chose to pursue the case in Texas; and Werner is not in a position to. dictate where it is sued. Further, denying Werner a forum in Dallas County at- this time will not preclude it from pursuing a claim for contribution in some forum when Werner can satisfy the prerequisites for contribution.

Iowa Code section 668.5(1) provides litigants a right to seek contribution. Under that statute,

[a] right of contribution exists between or among two or more persons who are liable upon the same indivisible claim for the same injury, death, or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose. The basis for contribution is each person’s equitable share of the obligations, including the share of fault of a claimant, as determined in accordance with [comparative-fault principles].

Section 668.6 provides the mechanics for enforcing contribution claims. Under section 668.6(1), if-the relative percentages of fault have been determined under Iowa Code section 668.3 (comparative-fault procedure), a party held responsible for more than the party’s percentage share of damages may recover judgment for contribution “upon motion to the court or in a separate action.” No assessment of fault had been made in this case. Therefore, section 668.6(2) applies:

If the percentages -of fault of each of the parties to a claim for contribution have not been established by the court, contribution may be enforced in- a separate action, whether or not a judgment has been rendered against either the person seeking contribution or the person from whom contribution is sought.

(Emphasis added.)

Werner argues that it may pursue contribution under the facts of this case, as provided by section 668.6(2) because, under that section, a judgment is not required as a condition precedent to a contribution claim. Section 668.6(3), however, provides:

If a judgment has not been rendered, a claim for contribution is enforceable only upon satisfaction of one of the following sets of conditions:
a. The person bringing the action for contribution must have discharged the liability of the person from whom contribution is sought by payment made within the period of the statute of limitations applicable to the claimant’s right of action and must have commenced the action for contribution within one year after the date of that payment.
b. The person seeking contribution must have agreed while the action of the claimant was pending to discharge the liability of the person from whom contribution is sought and within one year after the date of the agreement must have discharged that liability and commenced the action for contribution.

Werner concedes it is not entitled to enforce its contribution claims under section 668.6(3) because it has neither discharged nor agreed to discharge the liability of the other parties as subparagraphs (a) and (6) require. However, it contends the limits on contribution contained in section 668.6(3) apply only to the enforcement of a contribution claim — not to actions to determine if a party has a right to contribution under section 668.5(1) (“A right of contribution exists.... ”). According to Werner, all it seeks here is for the Iowa court to determine if Werner has a right to contribution, leaving the enforcement of any right for a later case. According to Werner’s argument, we have recognized an action to determine the right of contribution separate and distinct from the enforcement of the claim, citing Telegraph Herald, Inc. v. McDowell, 397 N.W.2d 518 (Iowa 1986). We said in Telegraph Herald that “[a] defendant may cross-petition for contribution in the original action and have the right to contribution determined, even though it could not actually be enforced until payment by the cross-petitioner.” Telegraph Herald, 397 N.W.2d at 519.

Telegraph Herald does not support Werner’s argument because that case involved a claim for contribution brought in the original case in which the percentages of fault had already been determined by a jury. The case cannot stand as authority for a party, which has not paid or contracted to assume another party’s share of liability, to sue for contribution. See, e.g., Allison v. L.E. Allison Estate, 560 N.W.2d 333, 334 (Iowa 1997) (“[T]he right to enforce a claim for contribution ripens ‘only upon a payment or its equivalent by the claimant discharging, satisfying, or extinguishing’ more than an equitable share of the common obligation.” (quoting Dairyland Ins. Co. v. Mumert, 212 N.W.2d 436, 439 (Iowa 1973))); accord Franke v. Junko, 366 N.W.2d 536, 540 (Iowa 1985) (same).

Iowa Code section 668.5(1) provides that a contribution claim may be enforced “either in the original action or by a separate action brought for that purpose.” In Wer-ner’s case, it cannot be brought in the original case because that case has been dismissed. See Smith v. Lally, 379 N.W.2d 914, 916 (Iowa 1986) (“Rule 215 [now Iowa R. Civ. P. 1.943] gives a plaintiff a right to dismiss an action at any time before the beginning of trial. When any defense pleadings are solely defensive, the dismissal terminates the court’s jurisdiction of the action.” (citing Witt Mech. Contractors, Inc. v. United Bhd. of Carpenters, 237 N.W.2d 450, 451 (Iowa 1976))). For purposes of applying this principle, we hold Werner’s answer, in attempting to spread its liability, is defensive in nature. Regarding a party’s right to continue seeking contribution after dismissal of the underlying case, the general rule has been stated:

Where a plaintiff moves to discontinue an action, the vital question is whether the defendant will suffer prejudice by the discontinuance. A plaintiff ordinarily cannot take a voluntary discontinuance where the defendant has acquired some substantial right or advantage in the course of the proceeding which would be lost or rendered less efficient by such a termination, or where the defendant thereby would be deprived of a just defense. However, the injury which would thus be occasioned to the defendant must be of a character that deprives him or her of some substantive rights concerning defenses not available in a second suit or that may be endangered by the dismissal, and not the mere ordinary inconveniences of double litigation which in the eyes of the law would be compensated by costs.

27 C.J.S. Dismissal Nonsuit 24, at 254 (1999) (footnotes omitted).

Werner does not claim it will be deprived of any substantive rights by the loss of its present forum. While it claims it has conducted discovery in reliance on pursuing its claim in the present case, presumably any fruits of discovery will be usable in a later action. Moreover, Wer-ner’s claims for contribution cannot be brought in an independent action at this time because it has not satisfied more than its proportionate share of liability. We conclude that the district court correctly dismissed Werner’s contribution claims.

AFFIRMED.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Kathy Anne MERON, Appellant.
    No. 02-1588.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
   CADY, Justice.

This appeal requires us to decide whether a plea of guilty was properly entered in a criminal case and whether the challenge to the plea was properly preserved for appellate review. Upon our review, we vacate the decision of the court of appeals, reverse the judgment and sentence of the district court, and remand the case for further proceedings.

I. Background Facts and Proceedings.

Kathy Meron was arrested for shoplifting at a Younkers store in Black Hawk County. She was charged by trial information with theft in the third degree, an aggravated misdemeanor. Iowa Code § 714.1, .2(3) (2001). During the pendency of the action, Meron was again arrested for shoplifting. This arrest occurred at a Wal-Mart store in Cedar Falls. The police also discovered a controlled substance in her purse, apparently during a search incident to the arrest. She was charged by a second trial information with theft in the third degree and possession of a controlled substance, second offense, an aggravated misdemeanor. Id. §§ 714.1, .2(3), 124.401(5).

A few months later, Meron appeared in district court with her attorney for a dis-positional hearing on two probation revocation proceedings arising from prior criminal convictions. She also requested to enter pleas of guilty to the pending theft and possession of controlled substance charges. After the district court was informed that Meron had not prepared written pleas of guilty, the following exchange occurred:

THE COURT: Ms. Meron, before I proceed with your guilty plea, there are several things that I must first determine on the record. However, because this is an aggravated misdemeanor and because you are represented by an attorney, I may somewhat abbreviate these proceedings and the questioning that I must go through in order to make my determinations, if I have your permission to do so. May I have your permission to do so?
THE DEFENDANT: Yes.
THE COURT: Ms. Meron, have you been over with your attorney the nature of the charge which has been made against you as well as the maximum and minimum penalties to which you subject yourself by entering this plea of guilty?
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand what you’re charged with and what the maximum possible penalties are?
THE DEFENDANT: Yes, sir.
THE COURT: Have you also been over with your attorney the constitutional rights that you waive by entering a plea of guilty?
THE DEFENDANT: Pretty much so, yes.
THE COURT: Well, pretty much isn’t good enough.
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand those rights?
THE DEFENDANT: Yes.
THE COURT: And do you have any questions about them at this time?
THE DEFENDANT: No, sir.
THE COURT: Mr. Dubbert, do you believe that you’ve gone over with your client all of her constitutional rights that she waives by entering a plea of guilty?
MR. DUBBERT: I do, Your Honor.
THE COURT: And do you believe she understands those rights and is making a voluntary and intelligent waiver of those rights?
MR. DUBBERT: Yes, Your Honor.

The district court was then informed of a plea agreement concerning concurrent sentencing and recommendations for treatment. These matters were thoroughly discussed with Meron. The district court next inquired into the voluntary nature of the pleas. The district court made this inquiry by asking Meron if she understood that there would be no trial, and by explaining the maximum sentences she faced, as well as the details of the plea agreement. Meron acknowledged she understood that there would be no trial and understood the sentences she faced. Mer-on also admitted the facts underlying the charges. She again acknowledged that her attorney had explained to her the rights she was forfeiting by pleading guilty. Meron then asked to waive time for sentencing and acknowledged she understood she was waiving her right to file a motion in arrest of judgment. She was not, however, informed by the district court of the purpose of the motion or the consequences of failing to file the motion.

The district court accepted the pleas of guilty and sentenced Meron. She filed a timely notice of appeal. On appeal, she claims her pleas were not voluntarily or intelligently made because the district court failed to cover all the requirements of Iowa Rule of Criminal Procedure 2.8(2)(5) before accepting her pleas of guilty.

We transferred the case to the court of appeals. It found the district court failed to substantially comply with rule 2.8(2)(¾) in accepting the plea, but concluded Meron waived the plea requirements of the rule by agreeing to the abbreviated procedure used by the district court. The court of appeals affirmed the judgment and sentence. We granted further review.

II. Scope of Review.

Our review of a claim of error in a guilty plea proceeding is at law. See Iowa R.App. P. 6.4.

III. Error Preservation.

The State first claims Meron did not preserve error because she failed to file a motion in arrest of judgment as required by rule 2.24(3)(a). Generally, a defendant must file a motion in arrest of judgment to preserve a challenge to a guilty plea on appeal. Iowa R.Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude the defendant’s right to assert such challenge on appeal.”); State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980). Yet, this requirement does not apply where a defendant was never advised during the plea proceedings, as required by rule 2.8(2)(<¾, that challenges to the plea must be made in a motion in arrest of judgment and that the failure to challenge the plea by filing the 'motion within the time provided prior to sentencing precludes a right to assert the challenge on appeal. Worley, 297 N.W.2d at 370.

In this case, Meron never filed a motion in arrest of judgment. Nevertheless, she claims her present challenge to her guilty pleas was not waived because the district court failed to inform her of the procedure to file the motion and the consequences of failing to follow the procedure. The State argues the district court substantially complied with the notification requirements of rule 2.8(2)(d) when Meron acknowledged in open court that her attorney had informed her of the right to file the motion and when she expressed her willingness to waive the right.

We recently clarified the procedure trial courts must follow to inform defendants about making challenges to a plea of guilty under rule 2.8(2)(d) in cases involving serious or aggravated misdemeanors. In State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002), we determined that it was unnecessary in misdemeanor cases for the trial court to actually engage in an in-court colloquy with a defendant so as to personally inform the defendant of the motion in arrest of judgment requirements. Instead, we found a written waiver filed by a defendant that properly reflected knowledge of the requirements of rule 2.8(2)(d) was sufficient. Id.

The State asserts the written waiver exception to an in-court colloquy recognized in Barnes should be extended to the situation where the defendant acknowledges in open court, as Meron did in this case, that her right to file a motion in arrest of judgment was explained to her by her attorney. The State argues that Barnes can be broadly read to mean that the required information under rule 2.8(2)(d) can be imparted to the defendant by means other than a personal colloquy with the defendant, including assurances to the court that counsel for the defendant provided the information to the defendant. In other words, the State wants us to treat an in-court assurance of defense counsel the same as a properly drawn written waiver executed by the defendant. The State suggests this is compatible with the underlying purpose of the rule that the defendant be informed.

We need not decide if Barnes can be extended as urged by the State. Rule 2.8(2)(d) clearly imposes two requirements. See Worley, 297 N.W.2d at 370. First, the court must “inform the defendant that any challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment.” Iowa R.Crim. P. 2.8(2)(d). Second, the court must inform the defendant “that failure to so raise such challenges shall preclude the right to assert them on appeal.” Id. Even considering the assurances that counsel for Meron explained the right to file a motion in arrest of judgment, this guarantee would be insufficient to satisfy the second requirement of rule 2.8(2)(d). See Worley, 297 N.W.2d at 370. The court never asked Meron if her attorney also discussed the consequences of failing to file a motion. Accordingly, we conclude Meron is not precluded from challenging her plea on appeal.

IV. Plea Colloquy.

We next address a claim by Meron that the in-court colloquy in support of her guilty plea did not comply with the requirements of rule 2.8(2)(6). The State argues the district court substantially complied with the rule, and the failure by the district court to specifically address each specific requirement of the rule was overcome when it confirmed with Meron that her attorney had fully discussed with her the trial rights that were lost by pleading guilty.

A defendant waives a variety of constitutional rights by pleading guilty to a criminal offense, and it is fundamental that a plea of guilty is valid only if it is given voluntarily, knowingly, and intelligently. See State v. Hook, 623 N.W.2d 865, 869 (Iowa 2001), abrogated in part on other grounds by Barnes, 652 N.W.2d at 468. Consequently, before accepting a plea of guilty, rule 2.8(2)(6) requires the court to determine if the plea is voluntarily and intelligently made and has a factual basis. State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990). To satisfy this requirement the court is required to make a specific inquiry into a number of matters set forth in the rule. See id. at 804-05. Absent a written plea of guilty describing all the matters set forth in the rule, noncompliance with oral requirements of the rule normally constitutes reversible error. See Hook, 623 N.W.2d at 871.

There was no written plea of guilty filed in this case. Consequently, we look to the in-couit colloquy as the source for determining compliance with the requirements of rule 2.8(2)(b). Substantial compliance is required. State v. Myers, 653 N.W.2d 574, 577-78 (Iowa 2002).

In this case, the substantial compliance standard was not satisfied. A number of the requirements of the rule were totally ignored. For example, there was nothing said to Meron that conveyed the concept that she could compel the attendance of witnesses at trial or that she could not be forced to incriminate herself. See State v. Dowis, 224 N.W.2d 467, 468-69 (Iowa 1974) (waiver of right to confront accusers and privilege against self-incrimination required before plea can be accepted). Moreover, the general confirmation made by the court that counsel for Meron discussed her trial rights with her is insufficient. See Worley, 297 N.W.2d at 370. The record must confirm the existence of substantial compliance in listing each right. See Myers, 653 N.W.2d at 577-78. We conclude the district court did not substantially comply with rule 2.8(2)(6) in accepting the plea of guilty.

V. Waiver of Plea Colloquy.

The State asserts that the absence in the record of any reference to some of the rights required to be discussed under rule 2.8(2)© is not fatal because Meron affirmatively waived the necessity for the court to explain all the requirements of the rule. The State relies upon the following language of rule 2.8(2)©:

The court may, in its discretion and with the approval of the defendant, waive the above procedures in.a plea of guilty to a serious or aggravated misdemeanor.

The State claims waiver occurred in this case when Meron agreed to abbreviate the proceedings. The court of appeals adopted this claim in affirming the judgment and sentence of the district court.

Prior to our decision in Kirchoff, we interpreted rule 2.8(2)© to require the district court to engage in an in-court colloquy with the defendant covering all the requirements of the rule. See 452 N.W.2d at 804 (citing State v. Fluhr, 287 N.W.2d 857 (Iowa 1980) (use of written plea form does not satisfy rule 2.8(2)©)). In Kir-choff, however, we said that the requirements for the court to personally address a defendant to cover the necessary areas of inquiry — now listed under rule 2.8(2)©— could be satisfied in cases involving pleas of guilty to serious and aggravated misdemeanors by supplementing the in-court colloquy with a written plea that tracked with the language of the rule. See 452 N.W.2d at 804-05.

We recognize that the waiver language of rule 2.8(2)© was a codification of our holding in Kirchoff. Hook, 628 N.W.2d at 869. Thus, while the rule embraces the use of written waiver forms, neither Kirchoff. nor the waiver language of rule 2.8(2)© diminishes the importance and necessity of the court’s role to ensure each plea is voluntary, intelligent, and supported by facts. Instead, they simply recognize that the court, in making its required determination in misdemeanor cases,- can use a defendant’s written acknowledgement. The language of the waiver portion of the rule adopted after Kirchoff tracks with this approach and explains why it is written to permit the court to waive the procedures, subject to the approval of the defendant. See Iowa R.Crim. P. 2.8(2)©. It allows the court, upon examination of a written plea, to waive the necessity of a full in-court colloquy. It does not give the defendant the right to waive the means for the court to determine that the plea is voluntarily and intelligently entered.

This background reveals the flaw in the State’s argument. There are two separate components of rule 2.8(2)©. See Myers, 653 N.W.2d at 577-78. The first concerns the requirement of an in-court colloquy. See id. The second concerns the requirement the defendant is informed. See id. Although the court in guilty pleas to serious and aggravated misdemeanors can waive the in-court colloquy component, the rule still requires substantial compliance with the requirement that the defendant be informed. The waiver language of rule 2.8(2)© only means the full in-court colloquy can be waived and the written plea can serve to establish substantial compliance with the rule. We have already determined that there was no substantial compliance in this case.

We further reject the State’s argument that the defendant’s consent to an abbreviated proceeding at least supports a relaxation of the substantial compliance standard in those cases, like this case, where the defendant is represented by counsel, the charges are misdemeanors, the defendant acknowledges that counsel explained all rights, and the plea is entered pursuant to a plea bargain which is adopted by the court at sentencing. This approach is completely contrary to the purpose of the rule. Rule 2.8(2)© was enacted for the purpose of ensuring that all “guilty pleas are made voluntarily, intelligently, and with a factual basis.” Kirchoff, 452 N.W.2d at 804. The approach suggested by the State would completely eviscerate the rule, and essentially transform the process of entering guilty pleas into a rubber stamp. See Hook, 623 N.W.2d at 870. Substantial compliance requires that the essence of each requirement of the rule be expressed to allow the court to perform its important role in each case. See Myers, 653 N.W.2d at 577-78. This role is not subject to waiver under the rule.

VI. Conclusion.

We conclude the requirements of rule 2.8(2)(6) were not met. We vacate the decision of the court of appeals, reverse the judgment and sentence of the district court, and remand the case to the district court for further proceedings to allow the defendant to plead anew.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . In State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980), the defendant sought to challenge a defect in the guilty plea procedure on appeal. We were required to decide if the defendant's failure to file a motion in arrest of judgment constituted a waiver of the challenge when the district court failed to inform the defendant at the time the plea was entered about the requirements of rule 2.8(2)(d) (then numbered as rule 8(2)(d)). The record showed the defendant had been informed by his attorney during the plea proceedings "that he could file a motion in arrest of judgment,” but did not show that anyone informed the defendant of the consequences of failing to file the motion. Id. We held the rule required the court to inform the defendant of the need to file a motion in arrest of judgment and the consequences of failing to do so. Id. The state's argument suggests that error would not have been preserved in Worley if counsel had informed the defendant of both the need to file the motion and the consequences.

      . Rule 2.8(2)(&) provides:

        b. Pleas of guilty. The court may refuse to accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
      (1) The nature of the charge to which the plea is offered.
      (2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.
      (3) That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant’s status under federal immigration laws.
      (4) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant's own behalf and to have compulsory process in securing their attendance.
      (5) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.
      The court may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor.