author: CADY, Justice.

text:
    Raymond TAYLOR, Keith Comley, and Vivian Edgerton, Appellants, v. CENTRAL CITY COMMUNITY SCHOOL DISTRICT, Appellee.
    No. 05-1047.
    Supreme Court of Iowa.
    June 1, 2007.

      Wallace L. Taylor of Cedar Rapids, for appellants.
    Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, for appellee.
   CADY, Justice.

In this case we must primarily decide whether four contested ballots in a special election should be counted. The contest court and district court determined the ballots should not be counted. We affirm.

I. Background Facts and Proceedings.

The Central City Community School District proposed to refurbish its school building and construct a vocational education building. The plan required the issuance of general obligation bonds and a tax levy to pay for the improvements. On July 13, 2004, a special election was held to put the issue before the voters. Measure A asked the voters to authorize the board of directors of the school district to contract for indebtedness and issue general obligation bonds for the improvements in an amount not to exceed $4,605,000. Measure B asked the voters to authorize the school board to levy a tax to pay for the bonds.

The official paper ballot asked the voters to mark their vote for each measure by filling in an oval target located to the immediate left of the words “Yes” and “No.” The ballot’s notice to voters, or instructions, specifically read:

(Notice to Voters: For an affirmative vote on any question upon this ballot, mark the word “YES” like this . For a negative vote, make a similar mark in the box marked “NO”)

After a voter marked the paper ballot, it was mechanically scanned and counted.

An affirmative vote of sixty percent was needed for each measure to pass. See Iowa Code § 75.1 (2003). Measure A passed by an uncontested margin. Measure B passed with 545 “Yes” votes and 362 “No” votes. The margin in favor of the measure was 60.09%.

The opponents of the measures requested a recount, and a recount board was appointed pursuant to Iowa Code section 50.48. The recount board determined the voting machine failed to properly read four Measure B votes. These four ballots were marked as follows:

The recount board rejected the first ballot after finding the voter’s intent was unclear, and counted the remaining three disputed ballots as “No” votes. This determination resulted in only 59.89% of “Yes” votes. The Linn County Board of Supervisors then certified this result on July 28, 2004. As a result, Measure B failed to pass.

On August 13, 2004, twenty-eight eligible voters in the district filed a notice of intent to contest the election and a request to convene a contest court pursuant to Iowa Code sections 57.1(6) and 62.5. The contest court was subsequently convened pursuant to Iowa Code section 57.7. It determined by a 2-1 vote that the four disputed ballots should not be counted. As a result, the original count was reinstated and Measure B passed.

On September 16, 2004, three members of the opposition group (hereinafter referred to as Taylor) filed a petition in district court. The action was brought against the school district and asked the district court to reverse the decision of the contest court.

The school district filed a motion to dismiss. It claimed Taylor had no right to petition the district court for relief, and could only challenge the contest court decision by filing an appeal to the district court. In absence of the filing of a notice of appeal, the school district claimed the district court had no jurisdiction to grant relief.

The district court overruled the motion and eventually considered the merits of the petition. It found the intent of the voters who cast the four disputed ballots could not be shown, and the voters failed to properly mark the ballots within the voting target. Consequently, the district court held the contest court correctly decided that the four ballots should be rejected. As a result, Measure B passed. Taylor has now appealed the district court’s decision.

II. Standard of Review.

Our standard of review in an appeal from a district court decision in an election contest is de novo. Devine v. Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978) (“Appeal lies from the contest court to district court which hears the appeal in equity and determines anew all questions in the case. Hence our review is also de novo.” (Citation omitted.)).

III. Jurisdiction.

The right to contest an election is only conferred by statute, and contestants must strictly comply with the provisions of the statute in order to confer jurisdiction. Bauman v. Maple Valley Cmty. Sch. Dist., 649 N.W.2d 9, 13 (Iowa 2002) (“When a statute prescribes a procedure for review, that procedure must be strictly followed to confer jurisdiction.”). Thus, contestants are limited to the scheme provided by the legislature. This procedure includes proceedings before the contest court, as well as appeals to district court. See de Koning v. Mellema, 534 N.W.2d 391, 394 (Iowa 1995) (“The rule is quite generally recognized that to initiate special proceedings, such as election contest proceedings, the statutory provisions necessary to confer jurisdiction must be strictly complied with by the contestants.”).

There are numerous statutory procedures that must be followed to convene a contest court in a disputed election. See id. at 394-95 (describing the procedure outlined in Iowa Code chapters 57 and 62). These procedures are largely unique to the election process, and they are generally not supplemented by our rules of civil procedure applicable to courts. Bauman, 649 N.W.2d at 15-16 (declining to apply the Iowa rules of civil procedure to election contests). Yet, when it comes to the judicial review process following a decision by a contest court, Iowa Code section 62.20 is the only statutory provision that provides for an appeal of contest court decisions regarding public measure elections. See Iowa Code § 62.20. Moreover, section 62.20 is noticeably generic, and untenanted by directions beyond the procedures for a bond to stay execution of the contest court judgment. See id. The statute simply permits a “party against whom judgment [was] rendered [to] appeal within twenty days to the district court.” Id. The district court is then required to “hear the appeal in equity and determine anew all questions arising in the case.” Id.

The school district takes the position that the appeal is a carefully regulated process that must be strictly followed to confer jurisdiction on the district court. It offers the detailed procedures under our court rules applicable to appeals to supplement the vagueness under the statute, beginning with the fundamental requirement of the filing of a notice of appeal with the court that rendered the judgment. See Iowa R.App. P. 6.6 (“An appeal ... is taken and perfected by filing a notice with the clerk of the court where the order, judgment, or decree was entered .... ”). While this approach offers some appeal, it does not find support from the language of the statute. In the same way as we strive to uphold those legislative requirements written into the statute through strict compliance, we must not defeat the legislative process by imposing requirements where none exist. See, e.g., Eysink v. Bd. of Supervisors, 229 Iowa 1240, 1244, 296 N.W. 376, 378 (1941) (“This court has no power to write into the statute words which are not there.”). For that reason, we have refused to supplement the statutory requirements governing election contests with the procedural requirements applicable to courts of law. See Bauman, 649 N.W.2d at 15-16 (refusing to apply the Iowa rules of civil procedure to election contests, except where the rules have been expressly endorsed). Moreover, the issue we confront is only whether the district court acquired jurisdiction to decide the controversy based on the procedure employed by Taylor.

It is clear that Taylor invoked the jurisdiction of the district court for the purpose of appealing the decision of the contest court. Taylor did not commence an independent action to dispute the results of the election. Instead, he properly commenced the action through a contest court, and his petition in district court indicated he was pursuing the matter as an appeal “pursuant to” section 62.20, and in doing so he asked the court to reverse the decision of the contest court. Under the circumstances, we find the filing of this petition was sufficient to meet the statutory requirements for making an appeal.

IV. Disputed Ballots.

A comprehensive set of rules and procedures govern elections in Iowa. See generally Iowa Code chs. 39-63A (2007); see also Iowa Code ch. 277 (2007) (providing the procedure for school elections)'. These provisions not only apply to general elections, but also to school elections. Iowa Code section 277.2 allows a school board to call a special election to vote on issues such as the one involved in this case. See Bauman, 649 N.W.2d at 12 (“Special elections may be called irregularly to decide primarily financial and school property issues.” (citing Iowa Code § 277.2 (2001))). Additionally, chapter 277 directs that “[t]he provisions of chapters 39 to 53 shall apply to the conduct of all school elections.” Iowa Code § 277.3.

Chapter 49 specifically addresses the form of ballots to be used in public measure elections. Iowa Code section 49.45 requires the ballots to ask the question, “Shall the following public measure be adopted?” Id. § 49.45. The specific public measure must then be identified, followed by two boxes or targets that allow the voter to answer the question by marking the box or target identified “Yes” or by marking the box or target identified “No.” Id. The public measure ballots must additionally include a notice as follows:

[Notice to voters. To vote to approve any question on this ballot, make a cross mark or check in the target before the word “Yes.” To vote against a question make a similar mark in the target preceding the word “No.”]

Id. § 49.47. Section 49.47 also instructs officials to adapt the notice to voters “to describe the proper mark where it is appropriate.” Id.

There is no claim that the form or content of the ballot in this case did not conform to our statutory requirements. See, e.g., Harney v. Clear Creek Cmty. Sch. Disk, 261 Iowa 315, 321, 154 N.W.2d 88, 92 (1967) (requiring ballot to be in substantial compliance with requirements in statute); Headington v. N. Winneshiek Cmty. Sch. Dist., 254 Iowa 430, 438-39, 117 N.W.2d 831, 836-37 (1962) (same). Instead, the question is whether the voting mark on the disputed ballots complied with the requirements of our statutes. Section 49.46 requires the voter to “designate a vote by making the appropriate mark in the voting target.” Iowa Code § 49.46 (emphasis added). The statutes indicate an appropriate mark may be that which is indicated in the notice or instructions, or a check mark or an “X.” See id. §§ 49.46, 49.92. Thus, the voters in this ease were required to mark their ballots by placing an “X,” checking, or filling in the oval target next to the word “Yes” or “No.”

While specific sections indicate how a public measure election ballot is to be marked, there is no specific section that deals with counting or rejecting voting marks on public measure ballots. There is a general section that deals with counting ballots in an election, but this section primarily refers to elections involving candidates, rather than public measures. See id. § 49.98 (entitled “Counting ballots”). The school district argues section 49.98 prohibits the four ballots from being counted in this case.

Under section 49.98 at the time of this election, a ballot was required to “be rejected if marked in any manner other than authorized in sections 49.92 to 49.97.” Id.; see Beck v. Cousins, 252 Iowa 194, 197, 106 N.W.2d 584, 586 (1960) (“In the interpretation of a disputed ballot the primary consideration is to arrive at the intent of the voter. This is subject to the conditions that the ballot must not be marked contrary to statutory provisions, and must not have on it any distinguishing marks or writings.”). Section 49.92 governs voting marks. While it was clearly drafted by our legislature with elections involving political candidates in mind, it is consistent with the requirements of a voting mark for public measures. Compare Iowa Code § 49.46 (describing the voting marks required for public measure elections), with id. § 49.92 (describing voting marks for candidate elections). The statute contemplates that a ballot will include voting instructions to “describe the appropriate mark to be used by the voter,” and that the “mark shall be consistent with the requirements of the voting system in use in the precinct.” Id. § 49.92. Additionally, it states the voting mark used on paper ballots may be a cross or check “which shall be placed in the voting targets opposite the names of the candidates.” Id. Finally, the statute provides that marks made by instruments other than a black lead pencil are generally permitted. Id.

It is clear the provision in section 49.98 governing the rejection of a ballot marked in an unauthorized manner also applies to public measure ballots that are marked contrary to the mandatory provisions of the law. While section 49.98 does not reference section 49.46 dealing with public measure voting marks, it requires the rejection of voting marks that are unauthorized marks under sections 49.92 through 49.97. Id. § 49.98. We see no difference between the basic voting mark requirements in section 49.46 and section 49.92. Both require the use of an appropriate mark, which may include the use of a check or cross. See id. §§ 49.46, 49.92. Moreover, chapter 277 — which allows the board to conduct the special election in this case — directs that those sections of chapter 49 are applicable to this election. See id. § 277.3 (“The provisions of chapters 39 to 53 shall apply to the conduct of all school elections .... ”).

Generally, a vote is counted in an election if the voter affixed any mark to the ballot that “fairly indicates” an intent to vote for a particular candidate or measure. See Devine, 268 N.W.2d at 623. However, this rule does not apply if the voter violates “a mandatory provision of the election law” in casting the ballot. Id. Thus, the intent of a voter to vote for or against a public measure is the prevailing issue only if the voter has followed the legal requirements in marking the ballot.

The school district argues the four ballots in this case violated the election laws because the voters failed to mark the ballot according to the voting instructions or notice. Even so, the school district argues the marks placed on the ballots do not “fairly indicate” the intent to vote either “Yes” or “No” on Measure B.

In this case, the four disputed ballots were neither marked as required by the statute or as directed by the instructions on the ballot. The statutes require that voting marks on paper ballots be placed in the voting targets. Likewise, the instructions or notice on the ballot directed the voter to mark the ballot by placing the voting mark in the voting target. To be counted, a voting mark must be substantially within the target. Frakes v. Farragut Cmty. Sch. Dist., 255 Iowa 88, 91, 121 N.W.2d 636, 638 (1963). In all four ballots, the voters failed to enter any mark of any kind in the target opposite the word “Yes” or “No.” This violated sections 49.46 and 49.92, and under section 49.98 the votes cannot be counted.

We recognize the possibility that the voters in this case intended to vote “No” on each ballot, particularly on the three ballots where the voters filled in the letter “o” in the word “No” and left the oval target immediately to the left of the word “No” blank. However, our statutes do not permit such intent to prevail when the ballots were marked in an unauthorized manner. Importantly, this conclusion does not foreclose the necessity of determining intent in certain cases. There are times when a voting mark does not strictly meet the ballot instructions or statutory requirements, but nevertheless is marked in such a way that it is not unauthorized. See Beck, 252 Iowa at 197, 106 N.W.2d at 586 (recognizing the intent of a voter is subject to the requirements of our statutes); Devine, 268 N.W.2d at 628 (“The voter’s intention, if it can be ascertained, should not be defeated or frustrated by the fact the name of the candidate is misspelled, or the wrong initials were employed, or some other slightly different name of similar pronunciation or sound has been written instead of the actual name of the candidate intended to be voted for.”). In these cases the intent of the voter must prevail if it can be determined. That is not the case here, however, as none of the markings were made inside the “No” target. In such a case, the mark is unauthorized and uncountable. While “[t]he primary test of validity is whether the voter’s intent is sufficiently shown,” this intent cannot be derived from ballots that are marked inconsistently with the voting instructions provided on the ballot and the marking requirements of the statute. De-vine, 268 N.W.2d at 628.

We also recognize the goal in an election contest is to give effect to the venerable democratic right to vote. It is not to disenfranchise the voter. See, e.g., id. at 623 (“The right to vote is a fundamental political right. It is essential to representative government. Any alleged infringement of the right to vote must be carefully and meticulously scrutinized.” (Citation omitted.)). Yet, our legislature has established certain basic voting requirements that we are obligated to enforce in the absence of a successful constitutional challenge to the statute.

Y. Conclusion.

We conclude the district court had jurisdiction in this case. We affirm the decision of the district court that the ballots in dispute should not be counted.

AFFIRMED.

      . All citations or references to the Iowa Code refer to the 2003 edition in effect at the time of the election in this case, unless otherwise noted.

      . Section 57.7 requires the contest court to consist of three members. One member must be "designated by the petitioners who are contesting the election,” and another must be "designated by the county commissioner of elections to represent the interests adverse to those of petitioners.” Iowa Code § 57.7. Finally, a third member is "chosen jointly by the designees of the petitioners and of the commissioner.” Id.

      . The school district offers many practical reasons for supplementing section 62.20 with our rules of appellate procedure, including the benefit of filing a formal notice of appeal. We do not reject the appeal procedure suggested by the school district as a possible method to appeal a contest court decision. Instead, we hold the procedure used by Taylor in this case was sufficient to perfect an appeal and confer jurisdiction on the district court.

      . New legislation went into effect shortly after the results of the election in this case. See 2004 Iowa Acts ch. 1083, § 37 (codified at Iowa Code § 49.98 (2005)) (removing the phrase "[a]ny ballot shall be rejected if it is marked in any other manner than authorized in sections 49.92 to 49.97”). We express no opinion how this legislative change may affect the result in this case or future cases.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Richard Norton TOMPKINS, Jr., Respondent.
    No. 07-0132.
    Supreme Court of Iowa.
    June 8, 2007.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    Richard Norton Tompkins, Jr., Mason City, pro se.
   WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Richard Norton Tompkins, Jr., with the Grievance Commission of the Iowa Supreme Court alleging Tompkins neglected two matters and failed to respond to the Board’s notices. The Commission found Tompkins’ conduct violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers and recommended we suspend Tompkins’ license to practice law for thirty days.

We agree with the Commission that Tompkins’ conduct occurring prior to July 1, 2005, violated the Iowa Code of Professional Responsibility for Lawyers. We also find that his conduct occurring after July 1, 2005, violated the Iowa Rules of Professional Conduct. We do, however, disagree with the Commission’s recommendation that Tompkins’ license to practice law be suspended, and instead, publicly reprimand him for his conduct.

I. Prior Proceedings.

On August 7, 2006, the Iowa Supreme Court Attorney Disciplinary Board filed a two-count complaint against Tompkins alleging he violated various rules of the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct. Count one involved Tompkins’ conduct related to his client, Derrick Crume, and count two involved Tompkins’ conduct related to his client, Larry Wayne Hull. The complaint charged Tompkins: (1) neglected Crume’s case; (2) did not respond to the Board’s repeated notices and requests for response regarding Crume’s complaint; and (3) without consent, did not appeal Hull’s criminal case.

In Tompkins’ answer he admitted receiving three notices of Crume’s complaint from the Board and failing to respond as required. Tompkins also admitted he represented Hull and without Hull’s consent he failed to file and serve the appellant’s brief. Tompkins admitted due to this failure he was assessed a $50 fine and Hull’s appeal was dismissed.

The Commission found Tompkins violated the Iowa Rules of Professional Responsibility for Lawyers DR 6-101(A)(3) (a lawyer shall not neglect a client’s legal matter) and DR 7-101(A)(1) (a lawyer shall zealously represent his clients) when he neglected Crume’s legal matter. The Commission also found Tompkins violated DR 6 — 101(A)(3) when he neglected Hull’s appeal. Finally, the Commission found when Tompkins failed to respond to the Board’s notices he violated DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). The Commission recommended Tompkins be suspended for thirty days with automatic reinstatement upon the expiration of the suspension period.

The Commission’s decision was not unanimous. Two of the Commission members filed a joint dissent in this case. The dissent found even though “[ijdeally, [Tompkins] should have communicated the lack of available options to Mr. Crume from the start,” the record did not affirmatively establish client neglect. Further, the dissent pointed out that although Tompkins’ failure to respond to the Board was inappropriate, his conduct did not establish a pattern of this failure. With regard to the Hull complaint, the dissent found Tompkins did not violate the ethics rules because Hull was not prejudiced in light of the ruling in the companion case nor was Hull dissatisfied with Tompkins’ representation. The dissent would have imposed a sanction of public reprimand rather than suspension.

II. Scope of Review.

This court reviews attorney disciplinary proceedings de novo. low a Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). Ethical violations must be proven by a convincing preponderance of the evidence. Id. Even though we consider the Commission’s factual findings and discipline recommendations, we are not bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 400 (Iowa 2007). Upon review, this court can impose a greater or lesser sanction than the Commission recommended. Iowa Ct. R. 35.10.

III. Findings of Fact.

We find the facts as follows. Tompkins was admitted to the Iowa bar in 1976 and practices in Cerro Gordo County. Court-appointed cases make up about one-third of his practice or about thirty cases at any time.

A. Derrick Crume matter. On January 21, 2004, a permanency hearing regarding Crume’s child was held. The court ordered the child to remain in the care of the Iowa department of human services (DHS) for placement in foster care. A review of this decision was set for July 21.

During the January hearing Crume was represented by another attorney, however, this attorney withdrew because Crume filed an ethics compliant against that attorney. The court appointed Tompkins to represent Crume at the permanency hearing review.

At the time Tompkins was appointed to Crume’s case, Crume was incarcerated at the Benton County jail awaiting trial on federal child pornography charges. By March 2004 Crume was convicted of the charges and faced an eleven-to fifteen-year sentence. Additionally, Crume was convicted by the Minnesota courts of third and fourth degree sexual misconduct and is a registered sex offender. These convictions made it probable that if the mother’s parental rights were terminated, Crume’s parental rights would also be terminated in order to place the child in a safe and permanent home.

Between the time Tompkins was first appointed to represent Crume until the time he received the first notice of Crume’s complaint, Tompkins failed to respond to numerous letters and calls in which Crume made various demands of Tompkins.

One of Crume’s demands was that Tompkins return an original letter he had sent Tompkins to copy. Tompkins did not return the letter as requested. At the hearing Tompkins acknowledged it was wrong not to return the letter. Crume also demanded Tompkins provide him the exhibits presented at a previous permanency hearing and specific pages of the Iowa Code. Tompkins did not provide Crume with any of these copies because, in Tompkins’ opinion, the documents were not necessary for the case.

Crume was able to reach Tompkins by telephone and talk with Tompkins about gaining access to the mother’s psychological evaluation. After this conversation, Tompkins spoke to the judge about releasing the evaluation to Crume. The judge advised Tompkins to make an application to the court to determine whether Crume could have access to the evaluation. Tompkins filed Crume’s request for the mother’s evaluation with the court. After doing so, he advised Crume of the filing by letter. The application was never set for hearing by the court and no order was entered. Tompkins acknowledged he should have pushed for a hearing, but he did not.

Additionally, Crume requested that Tompkins contact him in order to prepare for the review hearing. However, Tompkins responded to few of Crume’s letters, did a poor job of communicating with Crume, and did not manage Crume’s expectations concerning the review hearing.

On June 28 Crume filed a complaint with the Board. Even after filing the complaint, Crume continued to send Tompkins letters, becoming more demanding and insistent that Tompkins respond to his requests. Tompkins received the Board’s notification of Crume’s complaint on July 14. Also on July 14, DHS and the court appointed special advocate (CASA) issued the case reports prepared for the July 21 hearing. After receiving Crume’s complaint, Tompkins decided he needed to withdraw from the case. Tompkins stopped working on the case and filed an application to withdraw and motion for continuance. The application and motion were granted by the court.

Tompkins never responded to the Board’s first notification of the complaint as required by our rules. On August 10 the Board sent Tompkins another request to respond to Crume’s complaint. Tompkins received the Board’s request on August 13, but he did not respond. The Board sent Tompkins a final notice on October 8.

Tompkins admitted he violated the Iowa Rules of Professional Responsibility for Lawyers with regard to his failure to respond to the notices. In explaining why he failed to respond to the Board, Tompkins stated:

I am not sure. I think that I was so incensed by Mr. Crume’s demands and thought that his complaint was so frivolous and it would take so much time, that it was like dignifying it to even respond. I know that it was faulty thinking and I have always preached to others that if you do nothing else, at least respond. I had even discussed the matter with the attorney who represented him before me and against whom Mr. Crume had also made a frivolous complaint, but still I did not respond. Of course I deeply regret my lack of response as it is so stupid not to respond.

B. Larry Wayne Hull matter. Although Tompkins stated it was not his choice to represent Hull in his criminal appeal, due to a conflict in the state appellate defender office, Tompkins continued his representation of Hull from trial to appeal. At Hull’s request, Tompkins filed a notice of appeal. However, Tompkins did not file a brief with this court. On August 24, 2005, the clerk of the supreme court assessed Tompkins a $50 penalty because he failed to file and serve a proof brief. Under Iowa Rule of Appellate Procedure 6.19(2), Tompkins had fifteen days from service to remedy this default or risk dismissal of the appeal for want of prosecution. Iowa R.App. P. 6.19(2). The clerk also notified Tompkins if the appeal was dismissed as a result of his failure to comply, the Board would be notified of Tompkins’ inaction and it may serve as grounds for an investigation of neglect of a client’s legal matter. Tompkins did not remedy this default and the appeal was administratively dismissed.

The clerk notified the Board of Tompkins’ inaction and possible client neglect. However, Hull did not complain to the Board. Tompkins testified Hull was “quite satisfied with [his] trial work in the case.”

Tompkins admitted he should have moved for withdrawal of the appeal rather than simply letting the court administratively dismiss the case. During the hearing Tompkins apologized for not following the proper procedures. However, Tompkins denied his inaction violated the ethics rules. Tompkins claimed he did not violate the rules because Hull’s appeal was frivolous in that Hull’s co-defendant, Jeffrey Nitcher, had lost his appeal.

IV. Violations.

A. Derrick Crume matter. Tompkins’ alleged misconduct relating to Crume occurred prior to July 1, 2005. Therefore, his conduct is governed by the Iowa Code of Professional Responsibility for Lawyers. Tompkins’ failure to respond to the Board’s inquiries violates DR 1-102(A)(5) and DR 1-102(A)(6). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 804 (Iowa 2007) (failing to respond to the Board’s notices violates DR 1-102(A)(5) and DR 1-102(A)(6)); Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 204-05 (Iowa 2006) (finding an attorney violated DR 1-102(A)(5) and (6) when he was dilatory in responding to the Board’s notices of complaint). Further, even when the complaint is not well-founded, an attorney is not excused from providing necessary information to the Board. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Scheetz, 568 N.W.2d 663, 664 (Iowa 1997).

The Board also charged Tompkins with a violation of DR 6-101(A)(3). DR 6-101(A)(3) provides “[a] lawyer shall not [n]eglect a client’s legal matter.” Iowa Code of Prof'l Responsibility DR 6-101(A)(3). Professional neglect usually will involve lawyer “indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 94 (Iowa 2006) (citation omitted). “Generally, professional neglect consists of more than a single act or omission and it may involve procrastination.” Id. at 94-95. “Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 812 (Iowa 2007).

Tompkins was faced with a client with nothing more than time on his hands, making weekly demands on Tompkins’ time. Tompkins knew there was not much he could do for Crume until he reviewed the DHS and CASA reports. Although Tompkins did write to Crume on two occasions, he failed to inform Crume of the situation and most of Crume’s letters went unanswered. When an attorney neglects his client by repeatedly failing to respond to the client’s requests, or keep his client informed about the progression of the case, an attorney violates DR 6-101(A)(3). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 817-18 (Iowa 2007) (citing a failure to communicate with clearly distraught clients as an instance of neglectful conduct). Accordingly, we agree with the Commission that Tompkins’ consistent disregard of Crume’s correspondence and his failure to keep Crume informed of the status of the case violated DR 6-101(A)(3).

Additionally, the Board charged Tompkins with a violation of DR 7-101(A). It provides:

(A) A lawyer shall not intentionally:
(1)Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules, except as provided by DR 7-101(B). A lawyer does not violate this disciplinary rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
(2) Fail to carry out a contract of employment entered into with a client for professional services, but a lawyer may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
(3) Prejudice or damage a client during the course of the professional relationship, except as required under DR 7-102(B).

Iowa Code of Profl Responsibility DR 7-101(A). We do not believe the Board proved a violation of DR 7-101(A).

Tompkins was obligated to represent Crume at the review hearing. Tompkins could not advise Crume of what needed to be done until he received the DHS and CASA recommendations. If DHS and CASA recommended the child should be returned to the mother, Tompkins would have probably advised his client to support the recommendations. If the reports recommended otherwise, Tompkins and Crume likely would have devised a strategy and a position to present at the review hearing based on the reports. These reports were not available to Tompkins until after Tompkins became aware of Crume’s complaint. Therefore, Tompkins did not fail to seek the lawful objectives of his client, fail to carry out the contract of employment, or prejudice his client because he was notified of the complaint before he could act on the DHS and CASA reports. Under these circumstances the Board failed tó prove Tompkins violated DR 7-101(A).

B. Larry Wayne Hull matter. Tompkins’ alleged misconduct involving Larry Wayne Hull occurred after July 1, 2005. Therefore, his conduct is governed by the Iowa Rules of Professional Conduct.

Under Iowa Rule of Appellate Procedure 6.104(1), if Tompkins determined “after [a] conscientious investigation of the entire record ... that the appeal is frivolous and that [he] cannot, in good conscience, proceed with the appeal, [he] may move the supreme court in writing to withdraw.” Iowa R.App. P. 6.104(1). When doing so he must also “advise the defendant in writing of the decision as to frivolousness accompanied by a copy of counsel’s motion and brief.” Id. 6.104(2). This allows the defendant the opportunity to pursue the appeal even if counsel advises against it. Id. 6.104(4). Tompkins admitted he should have moved for withdrawal from the Hull appeal rather than simply letting the court administratively dismiss the case. However, he argued because the outcome would have remained the same, no ethical rule was violated.

Nevertheless, even when a client instructs an attorney to fail to comply with appellate deadlines so that the appeal can be administratively dismissed, this court has found the attorney neglected the appeal. Comm, on Prof'l Ethics & Conduct v. Thomas, 495 N.W.2d 684, 686 (Iowa 1993). The burden is on the attorney to comply with the appellate deadlines regardless of a client’s instruction or interest in the case. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006) (citing Iowa R.App. P. 6.19). “Unless the court relieves an attorney of his or her responsibility to the client on appeal, as an officer of the court, the attorney is required to file the appropriate documents and briefs.” Id. If an attorney fails to comply with appellate deadlines, this conduct constitutes neglect and amounts to conduct that is prejudicial to the administration of justice. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002). “To simply wait for the court to dismiss the case for lack of prosecution is neglect, inappropriate, and unethical.” Lesyshen, 712 N.W.2d at 105. Such handling of appellate matters is a disservice to the client and the judicial system. McCarthy, 722 N.W.2d at 204.

Under the Iowa Rules of Professional Conduct, “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Iowa R. of Profl Conduct 32:1.1. As a comment to the rule states, “[competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.” Id. 32:1.1 cmt. 5.

At the time Tompkins received the default notice from the clerk of the supreme court, our rules required him to file his brief or move under rule 6.104 that the appeal is frivolous. Consequently, Tompkins’ disregard of the default notice demonstrates his incompetence in handling the appeal and constitutes a violation of rule 32:1.1.

Another rule implicated by Tompkins’ failure to file his brief or move under rule 6.104 is rule 32:1.3. This rule requires “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Iowa R. Profl Conduct 32:1.3. A comment to the rule indicates, “[u]nless the relationship is terminated as provided in rule 32:1.16, a lawyer should carry through to conclusion all matters undertaken for a client.” Id. 32:1.8 cmt. 4. Hull was satisfied with Tompkins’ services at trial and did not dismiss Tompkins as his attorney on the appeal. Accordingly, Tompkins’ failure to follow through with the appeal is a violation of rule 32:1.3.

Finally, rule 32:8.4(d) states, “[i]t is professional misconduct for a lawyer to: ... (d) engage in conduct that is prejudicial to the administration of justice.” Id. 32:8.4(d). Again, a comment is helpful in explaining a lawyer’s obligation under rule 32:8.4(d). The comment states:

A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of rule 32:1.2(d) concerning a good faith challenge to the validity, scope, meaning, or application of the law apply to challenges of legal regulation of the practice of law.

Id. 32:8.4(d) cmt. 4. Tompkins’ failure to comply with the default notice was not done with a good faith belief that the notice did not require compliance. Our case law makes it clear that an attorney cannot use a default notice to dismiss an appeal in lieu of the attorney’s obligation to comply with our appellate rules. Moor-man, 683 N.W.2d at 552. Therefore, disregarding the default notice violates rule 32:8.4(d).

V. Sanctions.

To determine Tompkins’ sanction,

we consider the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and the court’s duty to uphold the integrity of the profession in the eyes of the public. We also consider aggravating and mitigating circumstances present in the disciplinary action.

Powell, 726 N.W.2d at 407-08 (internal quotation and alteration omitted). The goal of our ethics rules is “to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.” Id. at 408 (internal quotation omitted).

Generally, in attorney disciplinary cases involving neglect alone, this court has imposed discipline ranging from a public reprimand to a six-month suspension. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Frerichs, 718 N.W.2d 763, 767 (Iowa 2006). When neglect is compounded by other misconduct, a more severe sanction may be required. Id. When determining the sanction, an important factor for this court to consider “is the prejudice caused by the neglect.” Joy, 728 N.W.2d at 815.

Tompkins neglected his representation of Crume by failing to communicate with Crume and respond to his inquiries. Further, without his client’s consent, Tompkins allowed Hull’s appeal to be administratively dismissed, neglecting his client, and wasting judicial resources. However, it seems little prejudice was caused to either Crume or Hull.

Considering Crume’s status as a sex offender, current sentence for child pornography, and past criminal history, Crume almost certainly would not have successfully maintained his parental rights if the mother’s rights were terminated. Also, Hull likely was not prejudiced by Tompkins’ failure to follow through on his appeal. Hull’s co-defendant, Nitcher, appealed his conviction on the same grounds as Hull. We affirmed Nitcher’s convictions, and only remanded the case to the district court for the court to apply the correct standard of review on a motion for new trial. State v. Nitcher, 720 N.W.2d 547, 560 (Iowa 2006). The Board did not present any evidence indicating Nitcher was granted a new trial on remand. We can assume Hull would have received the same ruling on his motion for new trial because Hull joined in Nitcher’s motion for new trial.

Further, there are aggravating factors in the record. This is not Tompkins’ first disciplinary action. See Frerichs, 718 N.W.2d at 768 (stating “we must consider [an attorney’s] previous disciplinary problems”). In 1987 Tompkins received a two-year suspension for unlawfully entering residences and searching for women’s undergarments he used to sexually gratify himself. Comm, on Profl Ethics & Conduct v. Tompkins, 415 N.W.2d 620, 624 (Iowa 1987). Since that suspension Tompkins sought treatment for his sex addiction, has been readmitted to the practice of law, and continues to be treated for his addiction. There is nothing in the record to indicate his addiction affects his present practice of law.

In 1997 he also received a public reprimand for neglecting a client matter. In 1998 he received another public reprimand for charging a non-refundable minimum fee.

Considering the nature of Tompkins’ violations, the protection of the public, deterrence of similar misconduct by others, Tompkins’ fitness to practice, our duty to uphold the integrity of the profession in the eyes of the public, aggravating circumstances, mitigating circumstances, and the sanction we have given in similar cases, we believe the appropriate sanction for Tompkins’ neglect and failure to respond to the Board’s notices is a public reprimand. See Iowa Supreme Ct. Atty. Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 207-08 (Iowa 2007) (publicly reprimanding an attorney for neglect of one client matter even though the attorney had two prior admonitions and one public reprimand); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Alexander, 727 N.W.2d 120, 122-23 (Iowa 2007) (publicly reprimanding an attorney where the attorney admitted the charge of neglect, but failed to respond to the Board’s notice of investigation); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 410 (Iowa 2000) (publicly reprimanding an attorney for neglect of one client matter and his failure to respond to the Board’s inquiries even though the attorney had previously been barred from appellate practice for two years due to neglect and was also publicly reprimanded for neglect); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Erbes, 573 N.W.2d 269, 270-71 (Iowa 1998) (publicly reprimanding an attorney for his neglect of a client matter and failure to cooperate with Board); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mears, 569 N.W.2d 132, 134-35 (Iowa 1997) (publicly reprimanding an attorney for his neglect of two matters even though the attorney had three prior admonitions for undue delays in processing clients’ matters).

VI. Disposition.

We impose a public reprimand on Tompkins rather than the suspension recommended by the Commission. We tax the costs of this action to Tompkins pursuant to Iowa Court Rule 35.25.

ATTORNEY REPRIMANDED.

      . The Iowa Rules of Professional Conduct became effective July 1, 2005, replacing the Iowa Code of Professional Responsibility for Lawyers.

      . In State v. Nitcher, 720 N.W.2d 547, 560 (Iowa 2006), the case involving Hull's co-defendant, this court found the evidence supported Nitcher's conviction. However, we remanded the case for the district court to rule on Nitcher's motion for new trial using the correct weight-of-the-evidence standard.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellant, v. Terry Lynn McGRANE, Appellee.
    No. 06-0431.
    Supreme Court of Iowa.
    June 15, 2007.

      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellant.
    Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellee.
   STREIT, Justice.

Deputy sheriffs arrested Terry McGrane in his home. They had a valid arrest warrant for violating probation. After McGrane was arrested, handcuffed, and seated at the kitchen table, two deputies went to the upstairs area of the home and discovered drugs, cash, and drug paraphernalia. After this initial search, McGrane was taken to jail and the deputies obtained a search warrant. McGrane moved to suppress all of the evidence seized as well as his incriminating statements concerning the evidence. We find the deputies’ initial search violated McGrane’s constitutional right to be free from unreasonable searches. The initial search was neither a search incident to arrest nor a valid protective sweep. Moreover, the evidence was not in “plain view.” The State failed to prove the evidence was obtained through an independent source. Consequently, the district court properly excluded all of the evidence and incriminating statements under the exclusionary rule. We affirm the district court.

I. Facts and Prior Proceedings

On July 14, 2005, Cerro Gordo County Deputy Sheriff Matt Klunder was surveil-ling a house in Mason City looking for McGrane. McGrane was wanted on an outstanding arrest warrant for violating the terms of his probation. Shortly after 3:00 p.m., Deputy Klunder saw Alberto Ramon, the brother of McGrane’s girlfriend, Rosemary Ramon, leave the residence and drive off in a Chevy Blazer. Deputy Klunder knew Alberto’s driver’s license was suspended so he stopped him. Alberto told Deputy Klunder McGrane was in the house.

Being otherwise occupied with the traffic stop, Deputy Klunder called Chief Deputy David Hepperly to let him know McGrane’s whereabouts. Deputy Hepperly and Deputy Nathan Ewalt arrived at the house at approximately 3:20 p.m. Deputy Ewalt knocked on the residence’s side door, which leads directly into the kitchen. Rosemary’s daughter, Melissa Schütz, who was in her early 20s, answered the door. Schütz initially denied McGrane was there. When the deputies told her they had information he was there, Schutz’s demeanor changed and she allowed the deputies to enter the home. The three proceeded into the kitchen area. Around the corner of the kitchen, there was a stairwell leading to the second floor of the one-and-a-half story house. Schütz yelled up the stairs for McGrane. Deputy Hepperly heard someone moving around upstairs and started up the staircase. When Deputy Hepperly was about a third of the way up the stairs, McGrane appeared from behind a bed sheet curtain which was used to cordon off a small storage area to the right of the top of the steps. Deputy Hepperly saw McGrane put something behind the curtain as he emerged from behind it. Deputy Hepperly informed McGrane of the arrest warrant and ordered him downstairs. McGrane walked down the stairs and into the kitchen. McGrane was told he was being arrested pursuant to the warrant. Deputy Ewalt searched him, placed him in handcuffs and sat him down on a kitchen chair. According to Deputy Ewalt, McGrane was cooperative at all times.

Deputy Hepperly contacted Deputy Klunder and told him McGrane was in custody. Shortly thereafter, Deputy Klun-der arrived at the house and Deputy Hep-periy told him McGrane tried to hide something behind the curtain upstairs. Deputy Klunder and Deputy Hepperly then went upstairs, leaving McGrane in Deputy Ewalt’s custody.

The record does not clearly explain the layout of the second level of the residence. It appears the stairway led to an open area and did not include separate rooms or closets. The living area included a bed, couch/futon, coffee table, and computer stand. While upstairs, Deputy Klunder observed drugs and paraphernalia strewn on the coffee table. The deputy also saw a scale, some baggies on the bed, and “a pillow type item with a zipper on it that had a baggie sticking out of it.” Deputy Klunder removed the baggie and found marijuana and cash. Deputy Klunder also saw marijuana in a tray on the computer stand. Meanwhile, from behind the bed sheet curtain, Deputy Hepperly retrieved a small leather pouch, which contained $60 in cash and thirteen small baggies of what appeared to be methamphetamine. Among the general disarray of the upstairs living area, the deputies also found several items of property in unopened packages.

Returning downstairs, Deputy Klunder asked McGrane about the items upstairs, and McGrane admitted “there was drug paraphernalia in the upstairs.” Sometime following this exchange, Deputy Ewalt took McGrane to the county jail for processing.

Deputies Klunder and Hepperly contacted Investigator Logan Wernet of the Mason City Police Department for assistance in applying for a search warrant. Based on the information Investigator Wernet received from them regarding their initial search of the second floor, the surveillance conducted by Deputy Hepperly the day before, and McGrane’s criminal history (which included convictions for possession and delivery of drugs), Investigator Wer-net applied for and obtained a warrant to search the house for drugs, weapons, and drug-related evidence. The deputies seized multiple baggies of methamphetamine and marijuana, as well as scales, a scanner and various items of drug paraphernalia.

At about 10:30 that night, Deputies Hep-perly and Klunder interviewed McGrane at the jail. Deputy Klunder read McGrane the Miranda warning at the beginning of the interview. McGrane did not request counsel at any time during the interview. He made several incriminating statements concerning the evidence seized from his home.

McGrane was charged with three counts: (1) possession of more than five grams of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1) (2005), a class “B” felony, (2) a tax stamp violation under Iowa Code section 453B.12, a class “D” felony, and (3) possession of marijuana as a third or subsequent offense in violation of Iowa Code section 124.401(5), a class “D” felony. McGrane pled not guilty. He alleged the deputies’ initial search of his home following his arrest violated his constitutional rights under the Fourth Amendment of the United States Constitution and Article 1, section 8 of the Iowa Constitution. McGrane moved to suppress all evidence seized as well as any statements made by him after his arrest. The State resisted, citing several exceptions to the search warrant requirement.

The parties presented evidence at a suppression hearing. The district court granted McGrane’s motion to suppress, in its entirety. We granted the State’s application for discretionary review.

II. Standard of Review

We review constitutional claims de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000), overruled in part on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001). This court independently evaluates the defendant’s claim under the totality of the circumstances. State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997) (quoting State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995)). The court gives deference to the district court’s factual findings due to its opportunity to assess the credibility of witnesses, but the court is not bound by those findings. Turner, 630 N.W.2d at 606.

III. Merits

McGrane alleges his constitutional right to be free from unreasonable searches and seizures was violated when the deputies searched the second floor of his home after he was arrested because the deputies did not have a search warrant at the time. See U.S. Const, amend. IV; Iowa Const, art. 1, § 8. A search conducted without a valid search warrant is per se unreasonable unless one of the well-known exceptions to the warrant requirement applies. State v. Kubit, 627 N.W.2d 914, 918 (Iowa 2001) (citations omitted). The State argues the following exceptions apply to the present case: (1) search incident to a lawful arrest; (2) protective sweep; and (3) search of items in plain view. See State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001) (citing State v. Cline, 617 N.W.2d 277, 282 (Iowa 2000)) (recognizing these exceptions). The State has the burden of proving by a preponderance of the evidence that a warrantless search falls within one of the exceptions. Id. at 107-08 (citing State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000)).

A. Exceptions to the Warrant Requirement

McGrane does not deny the deputies had a right to arrest him in his home. The deputies had a warrant for his arrest based on an alleged violation of his probation. The Supreme Court has held “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639, 661 (1980); accord State v. Luloff, 325 N.W.2d 103, 105 (Iowa 1982). Moreover, Schütz consented to the deputies entering the home.

Nevertheless, McGrane argues the deputies’ search of the upstairs portion of his home after he was arrested was unreasonable and therefore unconstitutional. We now consider the State’s proffered justifications for the warrantless search.

1. Search Incident to Arrest

The State argues the deputies’ search of the upstairs portion of McGrane’s home was a valid search incident to arrest. The Supreme Court has “recognized there is ample justification for the search of an arrestee’s person and the area within his or her immediate control.” State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999) (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969)), overruled in part on other grounds by Turner, 630 N.W.2d at 606 n. 2. The area to be searched is limited to the arrestee’s “grab” area. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. “The purpose of such a search is to prevent the arrestee from destroying evidence or gaining possession of a weapon which could be used to resist arrest or effect an escape.” Canas, 597 N.W.2d at 492 (citing Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694). Thus, in order to be constitutional, “[a] search incident to an arrest must be substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest.” Id. (citing Vale v. Louisiana, 399 U.S. 30, 33, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409, 413 (1970)). The seareh-incident-to-arrest exception does not provide authority “for routinely searching any room other than that in which an arrest occurs.” Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694.

Both parties contend we must first-decide where in the home McGrane was arrested in order to determine whether the deputies’ warrantless search was a valid search incident to arrest. The State claims McGrane was arrested at the top of the stairs when he complied with Deputy Hepperly’s order to come downstairs. According to the State, the search-incident-to-arrest exception allowed the deputies to search the upstairs area after McGrane was handcuffed downstairs. McGrane, on the other hand, contends he was not arrested until he was downstairs in the kitchen and one of the deputies handcuffed him. Under the latter theory, the upstairs portion of McGrane’s home would certainly not be “the immediate vicinity of the arrest.” Canas, 597 N.W.2d at 492; see People v. Robbins, 54 Ill.App.3d 298, 303, 12 Ill.Dec. 80, 83, 369 N.E.2d 577, 580 (1977) (holding officers greatly exceeded the permissible scope of a search incident to arrest when they went upstairs and searched the defendant’s room after he was restrained at the bottom of the stairs).

However, we need not determine where the arrest occurred. Even if we found the arrest took place at the top of the stairs, the deputies were still not permitted to search the upstairs area because McGrane immediately left that area and remained handcuffed downstairs in the kitchen under armed guard while the search was conducted. Compare Canas, 597 N.W.2d at 493 (holding officers’ search of defendant’s motel room after he was arrested and handcuffed upon opening the door was not a valid search incident to arrest because he was not in the motel room at the time of the search), with State v. Shane, 255 N.W.2d 324, 327-28 (Iowa 1977) (holding officers’ search of the defendant’s motel room after he was arrested and handcuffed was a valid search incident to arrest because the search was confined to the small motel room where the arrest occurred, it took place within a minute or two after the arrest, and the defendant was still in the room). The justification of a search incident to arrest is to prevent the arrestee from destroying evidence or gaining possession of a weapon. McGrane had no realistic ability to get back upstairs considering his location and the fact he was restrained.

The search-incident-to-arrest exception to the warrant requirement must be narrowly construed and limited to accommodating only those interests it was created to serve. United States v. Graham, 638 F.2d 1111, 1114 (7th Cir.1981) (citing Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235, 242 (1979)). We acknowledge some courts do not require the search area to be accessible to the defendant at the time of the search. See, e.g., Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir.2001). However, this court has expressly rejected such a holding in nonvehicle situations. Canas, 597 N.W.2d at 493 n. 2. In State v. Edgington, 487 N.W.2d 675 (Iowa 1992), we upheld the search of the contents of a passenger compartment of a vehicle as part of a search incident to arrest even though the defendant had been removed from the vehicle and secured elsewhere. Edgington, 487 N.W.2d at 678. In Canas, we confined our holding in Edgington to “situations in which one’s arrest involves some type of occupancy in a vehicle.” Canas, 597 N.W.2d at 493 n. 2. This makes sense because “we take any government intrusion into a citizen’s dwelling very seriously.” Kubit, 627 N.W.2d at 918 (emphasis added). Thus, we agree with the district court the deputies’ initial search of the upstairs area was not a valid search incident to arrest.

2. Protective Sweep

The State also claims the deputies’ search of the upstairs area was justified as a “protective sweep or cursory safety check.” The combination of probable cause and exigent circumstances is a^ recognized exception to the warrant requirement. We have previously found danger of violence and injury to officers to be an exigent circumstance, which may excuse the requirement of a search warrant. State v. Holland, 389 N.W.2d 375, 381 (Iowa 1986). “The officers must have specific, articulable grounds to justify a finding of exigency.” Naujoks, 637 N.W.2d at 109. The reasonableness of the officers’ search is based on an objective — as opposed to subjective — standard. Id. (citing Cline, 617 N.W.2d at 280-82). The Supreme Court has emphasized a protective sweep is not a full search of the premises:

[It] may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

Maryland v. Buie, 494 U.S. 325, 335-36, 110 S.Ct. 1093, 1099, 108 L.Ed.2d 276, 287 (1990).

The State interprets Buie as recognizing two types of protective sweeps: a limited sweep of the arresting area without justification versus a more expansive search of the premises with justification. In Buie, the Supreme Court said:

We ... hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Buie, 494 U.S. at 334, 110 S.Ct. at 1098, 108 L.Ed.2d at 286. The State argues the deputies’ initial search satisfied either Buie “prong.”

The first part of the statement in Buie simply acknowledges the search-incident-to-arrest exception. Officers are permitted to search the arrestee’s immediate grab area for weapons and evidence without any reasonable suspicion. This search would necessarily include spaces where a person could be hidden. If a particular search does not satisfy the search-incident-to-arrest exception because the officers previously abandoned the arrest site, then the first prong of the Buie statement will not validate the search because it is limited to protecting officers from an immediate attack. We have already held the deputies’ search in the present case was not a valid search incident to arrest. Thus, for it to be a valid protective sweep, the State was required to produce “articulable facts which ... would warrant a reasonably prudent officer in believing that the area ... swept harbor[ed] an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. at 1098, 108 L.Ed.2d at 286.

The State offers several facts it contends would justify a reasonably prudent officer to believe individuals were present who posed a danger to them: McGrane appeared to be dealing drugs out of his home; Schütz initially lied to the deputies when asked if McGrane was home; and several people were in the home while the deputies were on the premises. We find none of these facts justify a protective sweep of the upstairs area of the home.

The State offered no evidence McGrane was believed to have guns or weapons in his home. Compare Naujoks, 637 N.W.2d at 109 (holding officers’ war-rantless search of defendant’s apartment was not a valid protective sweep in part because there was no evidence that guns or any other weapons were involved in the burglary), with Holland, 389 N.W.2d at 380-81 (holding officers’ warrantless search was a valid protective sweep because the arresting officers knew a gun had been stolen in the burglary and the defendant’s accomplice was still at large). Moreover, the State offered no evidence to suggest dangerous people may be hiding on the premises. See United States v. Kimmons, 965 F.2d 1001, 1009 (11th Cir. 1992) (holding agents had articulable facts to justify protective sweep of defendant’s home immediately following his arrest for conspiracy to rob an armored car: the FBI had just apprehended two of the defendant’s armed accomplices and had knowledge of fourth conspirator whose identity and whereabouts were unknown); United States v. Gilbert, 774 F.2d 962, 964 (9th Cir.1985) (holding officers were permitted to conduct a protective sweep of defendant’s home because they had information defendant might be in the company of another fugitive who was reported to be armed, a car not belonging to defendant was in front of her home and officers surveilling the home suspected movement inside). Although it may be common for drug dealers to possess weapons, suspicion of drug dealing alone is not enough to justify a protective sweep. United States v. Hauk, 412 F.3d 1179, 1187 (10th Cir. 2005) (rejecting police practice of automatic protective sweeps of “drug houses” on assumption they are inherently dangerous); see Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615, 624 (1997) (rejecting “felony drug investigation” exception to knoek-and-an-nounce rule). The State is still required to allege specific facts and circumstances upon which reasonable inferences could be drawn to support a reasonable police officer’s belief that weapons were on the premises and that someone else could have had access to those weapons and inflicted harm.

There is also no evidence to suggest the people the deputies encountered at the home were dangerous. Schütz came to the door when the deputies knocked. Although she initially lied about McGrane’s presence, she eventually cooperated. Apparently, the deputies did not perceive her as a threat because they allowed her to remain in the kitchen unrestrained. At some point, a man came up from the basement and was allowed to leave. The deputies did not then do a protective sweep of the basement. McGrane’s girlfriend, Rosemary, and her sister came to the house while the deputies were there. Apparently, their presence did not pose a danger to the deputies because they were allowed to enter the home and stay in the kitchen while the deputies conducted their search.

In short, there was simply no evidence to find a reasonably prudent officer would believe the upstairs area harbored one or more dangerous individuals in order to justify the initial search. “This situation did not involve any objective indication of fear of violence or jeopardy more than any other police encounter with persons suspected of criminal activity would involve.” Naujoks, 637 N.W.2d at 109. Deputy Ewalt even conceded at the hearing “the threat level wasn’t raised for [him].” He testified he saw no need to secure the home.

Even if the deputies had reasonable suspicion that individuals were present who posed a danger to them, their search of the upstairs portion of McGrane’s home exceeded “those spaces where a person may be found.” Moreover, the deputies had no legitimate purpose for remaining on the premises after McGrane was arrested. A protective sweep cannot last “longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335-36, 110 S.Ct. at 1099, 108 L.Ed.2d at 287. We agree with the district court that the deputies’ search was not a valid protective sweep.

3. Plain View

Finally, the State argues a search warrant was not necessary for the deputies’ initial search because the evidence seized was in plain view. “For the plain view exception to apply, police must be rightfully in the place that allows them to make the observation.” Kubit, 627 N.W.2d at 918 (citations omitted). In addition, the State has the burden of proving (1) the item seized was in plain view and (2) its “incriminating character” was “ ‘immediately apparent.’ ” Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112, 123 (1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971)).

As we have already made clear, the deputies were not “rightfully” in the upstairs portion of the home after McGrane was arrested, handcuffed, and placed in the kitchen downstairs. Moreover, the deputies did more than simply observe evidence out in the open. Thus, the district court correctly held the plain view exception was not applicable.

B. Exclusionary Rule

We find the initial search by the deputies in this case to be violative of McGrane’s constitutional rights because the deputies did not have a search warrant at the time and none of the above-mentioned exceptions to the warrant requirement was applicable. The exclusionary rule requires the suppression of evidence discovered as a result of illegal government activity. Naujoks, 637 N.W.2d at 111 (citing Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961)). “[T]he exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the taint.’ ” Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472, 480 (1988) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939)). Justice Frankfurter coined the phrase, “fruit of the poisonous tree,” to illustrate the concept of tainted evidence. Naujoks, 637 N.W.2d at 111 (quoting Nardone, 308 U.S. at 341, 60 S.Ct. at 268, 84 L.Ed. at 312). The purpose of excluding such evidence is twofold: to deter lawless police conduct and to protect the integrity of the judicial system. Id. (citations omitted).

However, there are exceptions to the exclusionary rule. In other words, there are circumstances where the evidence is admissible notwithstanding the illegal government conduct. The State argues the independent source and inevitable discovery doctrines are applicable in this case. Under the independent source doctrine, “it is possible to remove the taint of a prior illegality by obtaining the same information or evidence through means independent of the illegal conduct.” State v. Seager, 571 N.W.2d 204, 211 (1997). The inevitable discovery doctrine is “an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Murray, 487 U.S. at 539, 108 S.Ct. at 2534, 101 L.Ed.2d at 481-82. The justification for these exceptions is as follows:

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.

Nix v. Williams, 467 U.S. 431, 443-44, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387 (1984) (citations omitted).

Because the State presented no evidence the drugs found in McGrane’s home inevitably would have been discovered by lawful means, we find the inevitable discovery doctrine inapplicable. We now consider the independent source rule.

The State argues the evidence is admissible because it was also discovered via a valid search warrant. McGrane argues the search warrant was not an independent source because the affidavit supporting the warrant application was based in part on tainted information (e.g. the presence of drugs in the upstairs portion of the home and McGrane’s admission).

The Supreme Court in Murray created a test to determine whether a search pursuant to a warrant was in fact a genuinely independent source of illegally obtained information and tangible evidence. It held a subsequent search warrant is not an independent source “if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” Murray, 487 U.S. at 542, 108 S.Ct. at 2536, 101 L.Ed.2d at 483-84.

To determine whether the information based on the deputies’ illegal search affected the magistrate’s decision to issue the search warrant, we excise the illegally obtained information from the warrant application and determine whether the remaining legally obtained information supports probable cause. United States v. Madrid, 152 F.3d 1034, 1039-40 (8th Cir.1998); accord Seager, 571 N.W.2d at 212 n. 5. Without the illegally obtained information, Investigator Wernet’s affidavit alleged the following: “Deputy Hepperly received information from a concerned citizen around the first part of July that McGrane was selling drugs and trading drugs for stolen property.” Deputy Hepperly was watching the house on July 13, the day before McGrane’s arrest, and saw “short term traffic to the residence.” One of these persons was Tom Evans, whom Deputy Hepperly knew to be a drug user. When questioned, Evans’s companion told Deputy Hepperly they had gone to the house to buy drugs. On July 14, Deputy Klunder was surveilling McGrane’s house in order to catch him at home and arrest him on an outstanding warrant. Deputy Klunder learned through Alberto that McGrane was at the house. Deputy Klunder asked Deputies Hepperly and Ewalt to go to the house and arrest McGrane. While inside, Deputy Hepperly saw McGrane put something behind the bed sheet curtain as he emerged from an upstairs area of the home. McGrane’s criminal history included a 1995 conviction for delivery of drugs and a 2004 conviction for possession.

“The standard for probable cause is whether a person of reasonable prudence would believe a crime has been committed or that evidence of a crime might be located in the particular area to be searched.” NaujoJcs, 637 N.W.2d at 108 (citing State v. Poulin, 620 N.W.2d 287, 290 (Iowa 2000)). With the exception of McGrane’s criminal history, all of the information in the application was véry recent and strongly suggested drug-dealing activity. McGrane’s furtive gesture behind the bed sheet curtain at the top of the steps indicated he was attempting to hide something from the deputies. We find the above information is sufficient for probable cause.

Under Murray, we must also determine whether the deputies’ “decision to seek the warrant was prompted by what they had seen during the initial entry.” Murray, 487 U.S. at 542, 108 S.Ct. at 2536, 101 L.Ed.2d at 483. In its ruling, the district court found the State presented no evidence the deputies would have applied for the search warrant had they not searched the upstairs portion of McGrane’s home. We scoured the record and found no such evidence either. We agree with the district court that the State failed to prove the search warrant was an independent source. Consequently, the district court correctly suppressed all evidence seized in McGrane’s home as well as his statements to the police.

IV. Conclusion

We conclude the district court properly suppressed the evidence seized and McGrane’s statements to the police. The deputies’ initial search of the upstairs portion of the home without a search warrant violated McGrane’s Fourth Amendment rights. The search was neither a search incident to arrest nor a protective sweep. Moreover, the evidence was not in plain view because the deputies were not rightfully in the place that allowed them to see the evidence. Finally, the State failed to prove the later obtained search warrant was in fact a genuinely independent source of the evidence at issue here. The State presented no information indicating the deputies would have sought a search warrant had they not illegally searched the upstairs area.

AFFIRMED.

      . It is unclear from the record whether Deputy Ewalt exerted physical control over McGrane on the stairway or at the bottom of the stairs.

      . For Fourth Amendment purposes, an arrest occurs when two conditions are satisfied: (1) the officers assert their authority to arrest and the purpose of the arrest; and (2) either the defendant submits to their control or the officers apply physical force in order to subdue him. California v. Hodari D., 499 U.S. 621, 626-27, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690, 697 (1991) (quoting Rollin M. Perkins, The Law of Arrest, 20 Iowa L.Rev. 201, 206 (1940)); State v. Rains, 574 N.W.2d 904, 910 (Iowa 1998). Similarly, Iowa Code section 804.5 defines an arrest as "the taking of a person into custody when and in the manner authorized by law, including restraint of the person or the person’s submission to custody-”

      . They unzipped one small leather pouch and pulled a baggie out of a pillow.

      . The State argues suppressing the evidence would place it in a "worse position” than if it had not engaged in the prior unlawful search in contravention to the independent source doctrine. However, if the State cannot prove the deputies would have applied for a warrant, then they are not prejudiced by suppressing the evidence found and the incriminating statements made by McGrane.