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Marcus Darrell Eugene Luthi
v.
Client Neis, in his official and individual capacities, and Wapello County, Iowa
Appellant
Marcus Darrell Eugene Luthi
Appellee
Client Neis, in his official and individual capacities, and Wapello County, Iowa
Attorney for the Appellant
Billy J. Mallory
Attorney for the Appellee
David E. Schrock
Court of Appeals
Court of Appeals Opinion
Opinion Number:
Date Published:
Summary
Appeal from the Iowa District Court for Wapello County, Joel D. Yates, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Schumacher, J. and Gamble, S.J. Opinion by Schumacher, J. Special Concurrence by Vaitheswaran, P.J. Special Concurrence by Gamble, S.J. (18 pages)
Marcus Luthi appeals from the district court’s grant of summary judgment, arguing the court erred in finding he had no right to a private phone call with his attorney before deciding to submit to chemical testing and that his conversation was not subject to a reasonable expectation of privacy. OPINION HOLDS: We find the district court correctly determined that Luthi’s conversation was not confidential under Iowa Code section 804.20 (2019) or the Iowa Constitution and was not subject to a reasonable expectation of privacy. Accordingly, we affirm. SPECIAL CONCURRENCE ASSERTS: In my view, this case raises a genuine issue of material fact as to whether the recording was made surreptitiously, which could affect the expectation-of-privacy analysis in conjunction with representation that the phone conversation would be private. However, because the actual recording is missing, on this record, I agree Luthi failed to generate an issue of material fact concerning his expectation of privacy. SPECIAL CONCURRENCE ASSERTS: I would conclude Iowa Code section 804.20 (2019) does not apply to this chapter 808B action, so I believe there is a question of material fact as to whether Luthi had a reasonable expectation of privacy. However, I concur in the result because Luthi failed to generate a question of material fact under Iowa Code section 808B.B(1).
