Iowa Code section 804.20
for errors at law. State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011). We affirm
the suppression ruling “when the court correctly applied the law and substantial
evidence supports the court’s fact-finding.” Id. Iowa Code section 804.20
provides:
3
Any peace officer or other person having custody of any person
arrested or restrained of the person’s liberty for any reason
whatever, shall permit that person, without unnecessary delay after
arrival at the place of detention, to call, consult, and see a member
of the person’s family or an attorney of the person’s choice, or both.
Such person shall be permitted to make a reasonable number of
telephone calls as may be required to secure an attorney. If a call
is made, it shall be made in the presence of the person having
custody of the one arrested or restrained. If such person is
intoxicated, or a person under eighteen years of age, the call may
be made by the person having custody. An attorney shall be
permitted to see and consult confidentially with such person alone
and in private at the jail or other place of custody without
unreasonable delay. A violation of this section shall constitute a
simple misdemeanor.
(Emphasis added.) The State contends there was no violation of section 804.20
when neither Lamoreux nor Hovda made any affirmative request to meet in a
room without video surveillance. In other words, the State argues the defendant
must make a specific request for a private room or there is no violation of the
statute. The State cites a line of cases wherein the custodial defendant was
required to make a specific request to obtain a right set out in section 804.20.
See State v. Hellstern, 856 ... inform him that the attorney must come to the jail for
a confidential conference); State v. Lukins, 846 N.W.2d 902, 909 (Iowa 2014)
(stating “if an imprecise statement, reasonably construed, implicates the statute,
then the officer should inform the detainee of his or her right to an independent
chemical test under Iowa Code section 321J.11”); State v. Garrity, 765 N.W.2d
592, 596-97 (Iowa 2009) (holding when a defendant requests a phone call to a
4
person outside the scope of section 804.20, the officer must inform the defendant
that the statutory right entitles the defendant to call an attorney or a family
member only).
Our supreme court recently clarified the statutory language and addressed
videotaped surveillance of client-attorney consultations in the jailhouse in State v.
Walker, 804 N.W.2d at 287. The court found the law enforcement officer violated
Walker’s rights under section 804.20 when Walker was only permitted to consult
with his attorney through a glass partition in a booth that was under video
surveillance. Walker, 804 N.W.2d at 287. In construing the statute, the court
determined people under police video surveillance would not believe they are
meeting “alone and in private” as the statute requires. Id. at 294. The State
argued that the partition and surveillance were necessary to prevent passing of
contraband or weapons to detainees and because “the attorney might pose a
safety issue.” Id. at 287-88. The State could point to no specific safety issue
under the circumstances. The court rejected the argument and held, “[I]n the
absence of any individualized showing of a safety or security risk[,] video
surveillance violates an arrestee’s right to ‘see and consult confidentially’ with his
attorney ‘alone and in private.’” Id. at 295 (quoting Iowa Code § 804.20).
In State v Hellstern, a ... IN THE COURT OF APPEALS OF IOWA
No. 14-0831
Filed April 22, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs
procedures. See State v.
Senn, 882 N.W.2d 1, 6 (Iowa 2016) (plurality opinion); State v. Hellstern, 856
N.W.2d 355 ... , 361 (Iowa 2014); State v. Tornquist, 120 N.W.2d 483, 493 (Iowa
1963) (stating the statute’s purpose is “to give a person ... IN THE COURT OF APPEALS OF IOWA
No. 16-0749
Filed February 8, 2017
STATE OF IOWA,
Plaintiff-Appellee
804.20 “applies to the period after arrest but prior to the formal
commencement of criminal charges.” State v. Robinson, 859 N.W.2d 464, 487
(Iowa 2015). We review a district court’s interpretation of Iowa Code section
804.20 for errors at law. Id. at 467. We affirm the court’s ruling on a suppression
4
motion if it “correctly applied the law and substantial evidence supports the
court’s fact-finding.” State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011).
III. Analysis
On appeal, Markley phrases the issue: “[W]hether this Deputy undertook
to perform his mandatory duty to inform [Markley] of both the persons he could
call under the statute, and the purposes for which he could make calls under the
statute, when he asked to call someone outside the statute.” Markley also
asserts section 804.20 “requires [officers to] inform the defendant, prior to the
exercise of phone calls, and regardless of the denial of phone calls, of the
arrestee’s right to call a family member or an attorney under the statute.”
We turn to the case law discussing the scope of an officer’s duty under
section 804.20. In State v. Garrity, the court held: “If, as here, the officer turns
down the arrestee’s phone call request because the request is to call someone
not contemplated by the statute, the officer must explain the scope of the
statutory right.” 765 N.W.2d 592, 597-98 (Iowa 2009) (emphasis added) (stating
violations of section 804.20 result in application of the exclusionary rule). One
year later, the court stated the statute’s “guaranteed right is a limited one” and
ruled: “[Section 840.20] does not require a police officer to affirmatively inform
the detainee of his statutory right; however, the peace officer cannot deny the
right exists.” See State v. Hicks, 791 N.W.2d 89, 94 (Iowa 2010) (emphasis
added); see also State v. Lukins, 846 N.W.2d 902, 908 (Iowa 2014) (stating
“section 804.20 does not require a peace officer to inform the detainee of his or
her right to make a telephone call” but “if the detainee suggests calling someone
outside the scope of individuals authorized by the statute, the peace officer, who
5
knows the statutory scope, must clarify to the detainee the scope of individuals to
whom a telephone call may be made.”).1
Despite this case law generally declining to recognize an affirmative duty
and thereby foreclosing his appellate arguments, Markley cites State v. Hellstern,
where ...
circumstances similar to Markley’s circumstances. See State v. Stephens, No. 13-1858,
2015 WL 15969, at *1-3 (Iowa Ct. App. Apr. 22, 2015) (declining to suppress evidence
where the detainee was advised he could make telephone calls to “anybody” and made
calls); State v. Nemeth, No. 13-0529, 2014 WL 2884778, at *1-2 (Iowa Ct. App. June 24,
2014) (holding “the officer did not have an affirmative duty to inform a detained person of
the people who may be called or the purposes for which a call may be made” where the
officer allowed the detainee to “make any telephone calls she wanted to, which she did”);
State v. Rieks, No. 10-1703, 2011 WL 5868224, at *4 (Iowa Ct. App. Nov. 23, 2011)
(noting the officer “never restricted who [the detainee] could call but simply said he could
call ‘somebody’” and rejecting claim the failure to advise the OWI detainee “who could
be called and for what purpose” violated the statute: “Only when an officer turns down a
request for a phone call because the request is to call someone outside the scope of
section 804.20 must the officer explain the scope of the right”); State v. Parra, No. 10-
0601, 2011 WL 3480965, at *1 (Iowa Ct. App. Aug. 10, 2011) (holding an OWI detainee
“was not denied her rights under section 804.20” when she “was given the opportunity to
call ‘anyone’”); State v. Fessler, No. 10-0667, 2011 WL 1584886, at *1 (Iowa Ct. App.
Apr. 27, 2011) (stating Garrity held “the officer must explain the scope of the statutory
right” when “the officer turned down the arrestee’s phone call request” and also stating
“neither the statue nor case law support a blanket requirement that an officer advise an
arrestee of all persons that may be called or all purposes for which calls may be made”).
6
See also id. at 365 (Cady, C.J., concurring specially) (stating section 804.20 is
not intended to be used as “a trap for the state”). In contrast to the facts in
Hellstern, the ... ruling also is supported by State v. Lyon, where Lyon
had asked the court “to go well beyond our case law” and “require
errors at law. State v. Hellstern, 856 N.W.2d 355, 360 (Iowa 2014).
III. Section 804.20 Rights.
On appeal, Deimerly ... IN THE COURT OF APPEALS OF IOWA
No. 15-1304
Filed June 15, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs ... Preservation. The State argues Deimerly’s first claim was not
preserved for our review because it was not presented to the
. Hellstern saw Officer Dyer typing on his
computer keyboard during the phone conversation, perhaps taking
notes. Hellstern asked for privacy during the call, saying to Officer Dyer,
“Can I have a moment with my attorney?” Officer Dyer first told
Hellstern no, but then said, “You can, but . . . Not on the phone.” Later
during the same phone call with Keller, Hellstern asked Officer Dyer for
“attorney–client privilege.” Officer Dyer responded, “Not on the phone.”
5
Officer Dyer knew Hellstern had a right to consult confidentially with his
lawyer at the jail, but stopped short of telling Hellstern because “he
didn’t ask.” Officer Dyer did not believe section 804.20 required him to
“tell the detainee that an attorney can come down to the jail” for a
confidential conference. If Officer Dyer had informed him of that option,
Hellstern contends he “would have asked [Keller] to come down and talk
to [him]” at the jail.
At one point during the phone call, Officer Dyer left the room for
about forty-five seconds. Otherwise, he remained within earshot and
could hear Hellstern’s side of the conversation. Officer Dyer followed the
“normal procedure” at the jail to remain in the staff room with Hellstern
during the phone call. He cited “safety reasons,” noting there were
objects in the room, and “to cover ourselves, we always stay close to the
person. So if they were to try to harm themselves or do other things, we
could stop them immediately.” Officer Dyer acknowledged Hellstern
“never got aggressive or belligerent with him” and did nothing to suggest
“he was a safety concern to himself or others.”
After the call, Hellstern again attempted without success to contact
an attorney from the Gourley firm. In total, Hellstern made fourteen
phone calls, left five voice mails, sent one text message, and received a
single phone call from attorney Keller. At approximately 3:18 a.m.,
Hellstern indicated he did not want to make any additional phone calls.
When asked, he agreed that Officer Dyer had not hindered him from
making any calls he wished to make.
Officer Dyer then asked Hellstern yet again if he would take the
Breathalyzer test. Hellstern asked to use the restroom. Officer Dyer
indicated Hellstern could use the restroom after the test, but Hellstern
argued and said he could not wait to use the restroom. Officer Dyer
6
reiterated that he could use the restroom once he had made a decision
on the test and completed the test if he chose to take it. After
approximately fifteen minutes of discussing Hellstern’s need to use the
restroom, Hellstern told Officer Dyer he would consent to the test
because Officer Dyer was making him. Officer Dyer repeated that it was
Hellstern’s decision to either consent or refuse and that he could use the
restroom once the decision was made and the test was completed.
Hellstern consented to the test, checked the consent box, and signed the
form at approximately 3:36 a.m. Hellstern took the Breathalyzer test at
that time.
After the test, Officer Dyer offered to take Hellstern to the
restroom, but Hellstern said he wanted to wait to see the results of the
test. The test showed his blood alcohol concentration was 0.194%, more
than double the legal limit for intoxication (.08%). When asked if the
results surprised him, Hellstern replied, “no.”
Officer Dyer read Hellstern the notice of revocation and provided
him with a copy of his test results. Hellstern was charged with OWI, first
offense, and was issued a warning for the improper use of lanes. His
vehicle was impounded, and Officer Dyer took his driver’s license.
Hellstern filed a pretrial motion to suppress evidence and argued,
in part, that Officer Dyer violated Iowa Code section 804.20 by failing to
notify Hellstern that he had the right to consult privately with his
attorney if the attorney met with him in person, as opposed to on the
telephone and that Officer Dyer had violated Hellstern’s rights under the
Sixth Amendment and Iowa Constitution by failing to provide him
privacy for his phone conversation with attorney Keller. That motion was
denied by the district court, which concluded there is no “affirmative
obligation on the officer to notify any defendant that they have the right
7
to request that their attorney come to the jail.” The district court also
denied Hellstern’s motion to reconsider, ruling no right to counsel had
attached under the Sixth Amendment or Iowa Constitution at the time of
the chemical testing.
The case against Hellstern proceeded to a stipulated trial on the
minutes of evidence. Hellstern was found guilty of OWI, first offense;
sentenced to one year in jail, with all but three days suspended; and
fined $1250. Hellstern appealed, and we retained his appeal to decide
whether his statutory or constitutional right to counsel had been
violated.
II. Standard of Review.
“The district court’s interpretation of Iowa Code section 804.20 is
reviewed for errors at law.” State v. Walker ... constitutional claims. See Simmons v.
State Pub. Defender, 791 N.W.2d 69, 73–74 (Iowa 2010).
We begin our analysis with the text of Iowa Code section 804.20,
which provides:
8
Any peace officer or other person having custody of
any person arrested or restrained of the person’s liberty for
any reason whatever, shall permit that person, without
unnecessary delay after arrival at the place of detention, to
call, consult, and see a member of the person’s family or an
attorney of the person’s choice, or both. Such person shall
be permitted to make a reasonable number of telephone calls
as may be required to secure an attorney. If a call is made, it
shall be made in the presence of the person having custody of
the one arrested or restrained. If such person is intoxicated,
or a person under eighteen years of age, the call may be
made by the person having custody. An attorney shall be
permitted to see and consult confidentially with such person
alone and in private at the jail or other place of custody
without unreasonable delay. A violation of this section shall
constitute a simple misdemeanor.
(Emphasis added.)
In State v. Vietor, we observed Iowa Code section 755.17, now
section 804.20, provides for “a limited statutory right to counsel before
making the important decision to take or refuse the chemical test under
implied consent procedures.” 261 N.W.2d. 828, 831 (Iowa 1978).1 As we
noted in Walker,
[t]he arrestee’s intoxication impairs his judgment as well as
his driving ability. Such individuals must make a stressful
and time-sensitive decision whether to take or decline the
evidentiary breath test—a choice with significant
consequences for their criminal liability and driving
privileges.
804 N.W.2d at 291. “ ‘The legislative purpose of section 804.20 is to
afford detained suspects the opportunity to communicate with a family
member and [an] attorney.’ ” Id. at 290 (quoting State v. Hicks, 791
N.W.2d 89, 95 (Iowa 2010)). In Hicks, we concluded “the best way to
1The time for consultation is limited by the need to conduct chemical testing
within two hours after defendant stopped driving. See Iowa Code § 321J.2(12)(a)
(providing alcohol concentration established from specimen withdrawn within two
hours of driving will be presumed to be the concentration at the time of driving);
Walker, 804 N.W.2d at 290 (“The time for consultation is, however, effectively limited by
law enforcement’s interest in obtaining the test within two hours of the defendant’s
driving in order to preserve the [statutory] presumption . . . .”).
9
further this statutory purpose is to liberally construe a suspect’s
invocation of this right.” 791 N.W.2d at 95.
Section 804.20 requires police to allow the arrestee “to make a
reasonable number of telephone calls as may be required to secure an
attorney.” Iowa Code § 804.20. The statute, by its terms, affords no
privacy to a person in custody during a phone call to their attorney. See
id. (“If a call is made, it shall be made in the presence of the person
having custody of the one arrested or restrained.”).2 “Indeed, ‘the
telephone calls which section 804.20 assures to persons in custody are
not intended to be confidential as is shown by the provision that they are
to be made in the presence of the custodian.’ ” Walker, 804 N.W.2d at
291 (quoting State v. Craney, 347 N.W.2d 668, 678–79 (Iowa 1984)
(concluding defendant’s statement, “I killed my baby,” is admissible when
made in phone call to attorney that an officer overheard during booking
process because no attorney–client privilege protects statements made in
the presence of a third person)).
By contrast, the statute expressly provides a right to a confidential
consultation between an attorney and client at the jail to be conducted
“alone and in private.” Iowa Code § 804.20; Walker, 804 N.W.2d at 291.3
“[T]he ‘right of privacy between attorney and client is well recognized and
jealously guarded’ during jailhouse consultations.” Id. (quoting State v.
Coburn, 315 N.W.2d 742, 748 (Iowa 1982)).
2The district court ruled that section “804.20 is clear that the officer is not
required to provide privacy to someone who’s on the telephone.” Hellstern concedes ... of section
804.20.
Id.4 (citation omitted).
We applied the Didonato disclosure rule in State v. Garrity, 765
N.W.2d 592, 597 (Iowa 2009). Garrity, arrested for OWI (third offense),
asked the officer at the jail to call a narcotics officer. Id. at 594. Garrity
4We affirmed Didonato’s license revocation because he was allowed to phone his
sister, an attorney, before he provided his urine specimen for chemical testing.
Didonato, 456 N.W.2d at 371.
11
hoped he could broker a deal to reveal information about a drug
operation in exchange for a promise of no jail time for his OWI. Id. The
arresting officer informed Garrity he could call the narcotics officer after
he was released. Id. Garrity argued that once he had requested a phone
call the officer had a duty to advise him of the scope of his rights to a
phone call under section 804.20. Id. We concluded, “If, as here, the
officer turns down the arrestee’s phone call request because the request
is to call someone not contemplated in the statute, the officer must
explain the scope of the statutory right.” Id. at 597.
We revisited the arresting officer’s statutory obligations under
section 804.20 in Hicks. Hicks was arrested for OWI and made repeated
requests at the police station to phone his mother, stating he wanted a
ride home. Hicks, 791 N.W.2d at 92. The officer denied his requests,
and Hicks ultimately refused the Breathalyzer test. Id. He moved to
suppress evidence of his test refusal. Id. The district court denied his
motion, and Hicks was convicted of OWI (second offense) after a jury
trial. Id. We reversed his conviction and remanded the case for a new
trial on grounds he was denied his statutory right to place a phone call to
a family member. Id. at 98. We said this about the proper balance to be
struck between the detainee’s statutory rights and law enforcement:
By providing detainees this statutory right, the legislature
has deemed that a detainee’s right to communicate with
family or counsel to be a tolerable burden upon law
enforcement and suitably balances the state’s law
enforcement needs with the right of the accused.
Id. at 95. We noted that “[b]ecause of the disparity in power between
detaining officers and detained suspects during the detention process,”
section 804.20 “requires law enforcement to take affirmative action to
ensure the request for a phone call is honored.” Id. at 97.
12
The legislature did not amend section 804.20 in response to the
Didonato, Garrity, or Hicks decisions. We can infer by its silence that the
legislature acquiesced in our consistent interpretations of the disclosure
obligations in this statute dating back to our Didonato decision in 1990.
See Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa
2013) (concluding legislature acquiesced in repeated judicial
interpretations spanning many years that punitive damages are not
recoverable under Iowa Civil Rights Act). Moreover, “[w]e are slow to
depart from stare decisis and only do so under the most cogent
circumstances.” Id.
In Walker, we reiterated that “section 804.20 ‘is to be applied in a
pragmatic manner, balancing the rights of the arrestee and the goals of
the chemical-testing statutes.’ ” 804 N.W.2d at 291 (quoting State v.
Tubbs, 690 N.W.2d 911, 914 (Iowa 2005)). We read section 804.20
“together with the implied-consent provisions of Iowa Code chapter
321J.” Id. at 290. “ ‘[W]e have continuously affirmed that the primary
objective of the implied consent statute is the removal of dangerous and
intoxicated drivers from Iowa’s roadways in order to safeguard the
traveling public.’ ” Id. (quoting Welch v Iowa Dep’t of Transp., 801
N.W.2d 590, 594 (Iowa 2011)). We must strike the proper balance in this
case, examining our precedent under both section 804.20 and the
implied-consent provisions of chapter 321J.
We most recently summarized an officer’s disclosure duties under
section 804.20 as follows:
Iowa Code section 804.20 does not require a peace officer to
inform the detainee of his or her right to make a telephone
call. In Garrity, we observed nevertheless that a detainee
may be aware he or she has a right to make a telephone call;
however, the detainee may be unaware that a statute limits
to whom such a call may be made. For that reason, if the
13
detainee suggests calling someone outside the scope of
individuals authorized by the statute, the peace officer, who
knows the statutory scope, must clarify to the detainee the
scope of individuals to whom a telephone call may be made
under Iowa Code section 804.20. In short, the absence or
shortage of knowledge on the detainee’s part warranted
enabling the detainee to invoke his or her rights by legally
inaccurate requests.
State v. Lukins, 846 N.W.2d 902, 908 (Iowa 2014) (emphasis added)
(citations omitted). In Lukins, the arrestee asked for a “re-check” of his
Breathalyzer test. Id. at 904–05. Iowa Code section 321J.11 allows a
person who submits to a breath test to have an independent blood or
urine test at his own expense, but provides no right to repeat a
Breathalyzer test. Id. at 909–10. We nevertheless held the arrestee’s
imprecise request for a “re-check” adequately invoked his statutory right
to another chemical test. We concluded, based on our cases construing
section 804.20, that “if an imprecise statement, reasonably construed,
implicates the statute, then the officer should inform the detainee of his
or her right to an independent chemical test under Iowa Code section
321J.11.” Id. at 909.5
Thus, under Didonato, Garrity, and Lukins, the arrestee’s specific
request was beyond the scope of the statutory right. We nevertheless
held the request could be reasonably construed as invoking a right
conferred by the statute and, thereby, triggering the officer’s duty to
explain to the arrestee what he was allowed to do. Similarly, in this case,
Hellstern unequivocally
deputy needed probable cause or her consent. See State v. Lathum, 380
N.W.2d 743, 745-46 (Iowa Ct. App. 1985) (recognizing cooperation with officers
“cannot be equated with voluntary consent”). An officer may ask a motorist to
engage in field sobriety tests based on the reasonable suspicion standard from
Terry v. Ohio, 392 U.S. 1, 30 (1968). See State v. Stevens, 394 N.W.2d 388,
391 (Iowa 1986). But the removal of a suspect from the scene of the stop—even
1 The suppression exhibit contains audio of the deputy’s conversation with Delzer only
while showing the outside view from the dash camera. The footage showing the inside
of the car does not include audio, so it is difficult to assess exactly how Delzer reacted to
the deputy’s statements.
10
for valid investigatory purposes as the deputy had here—marks the point where
reliance on Terry is no longer enough. See State v. Bradford, 620 N.W.2d 503,
507 (Iowa 2000) (citing Centanni v. Eight Unknown Officers, 15 F.3d 587, 591
(6th Cir. 1994), for the notion “there is no such thing as a ‘Terry transportation’”).
I recognize that asking a motorist to perform field sobriety tests normally
does not rise to the level of a formal arrest. See Berkemer v. McCarty, 468 U.S.
420, 442 (1984) (“[A] single police officer asked respondent a modest number of
questions and requested him to perform a simple balancing test at a location
visible to passing motorists. Treatment of this sort cannot fairly be characterized
as the functional equivalent of formal arrest.”); State v. Krebs, 562 N.W.2d 423,
426 (Iowa 1997) (during field sobriety tests on the scene a defendant is “not
restrained of his liberty”); State v. Marks, 644 N.W.2d 35, 37 (Iowa Ct. App.
2002) (same). But the transportation of the motorist to the sheriff’s department
adds a different dimension to the analysis.
I also recognize that our supreme court concluded in State v. Dennison
that transporting the motorist to the law enforcement center to conduct tests to
determine if he was under the influence of drugs was “incidental to the
investigation, and did not constitute an arrest.” 571 N.W.2d 492, 497 (Iowa
1997). But that case was a speedy indictment challenge where the question was
whether Dennison was arrested. A person’s right to contact an attorney under
section 804.20 “maybe implicated in a situation short of a formal arrest” so long
11
as the person was restrained of her liberty.2 State v. Moorehead, 699 N.W.2d
667, 671 (Iowa 2005); Krebs, 562 N.W.2d at 426.
Delzer’s situation bears similarities to Moorehead, where the court held
the motorist was “‘restrained of [his] liberty’ as he sat in the back of the patrol
car.” 699 N.W.2d at 671 (citation omitted). Delzer’s driving led the deputy to
initiate the traffic stop. The deputy placed her in the squad car, albeit in the front
seat rather than the backseat. The deputy questioned Delzer about how much
alcohol she had consumed that evening, prompting her to tell him she had “about
four or five” drinks and “probably” felt the effects of intoxication. The deputy
testified he noticed her eyes were bloodshot and watery and she slurred her
speech. He also found several open beer cans in the truck, which Delzer said
belonged to her husband. Objectively, the deputy had gathered sufficient
evidence to invoke implied consent to test. See Dennison, 571 N.W.2d at 495-96
(discussing reasonable grounds under Iowa Code section 321J.6).
When they arrived at the place of detention, the deputy asked Delzer if
she would consent to performing field sobriety tests. She asked: “Legally, do I
have to?” The deputy’s response was imprecise: “Well, you have a right, and
that is going to determine whether or not we go further on.” Delzer asked: “Is
there a lawyer that I can call?” The deputy responded that they were “just in the
2 In the suppression ruling, the district court erroneously found the deputy advised
Delzer that she was not under arrest when he was taking her to the sheriff’s department.
On direct examination, the deputy testified: “I explained to her she wasn’t under arrest.
That she was just being detained.” The deputy’s recollection is not borne out by the
recording of his exchange with Delzer in the squad car. And on cross-examination, the
officer testified he did not tell Delzer she was under arrest, but he also did not tell her
she was not under arrest. Delzer testified she believed she was under arrest when the
deputy said she would be transported to the county jail (which is located at the sheriff’s
department).
12
preliminary stages” and were “not even coming close to doing the legal stuff.
This is for me testing to see where you are at. Do you consent to that or no?”
She responded: “I guess so.”
I would find Delzer was restrained of her liberty when she invoked her
right to contact an attorney, and the deputy—who had taken custody of her by
transporting her to the sheriff’s department—had an obligation to permit her to
call or consult with an attorney under section 804.20. His failure to do so
requires suppression of the results of the field sobriety testing, as well as the
results of her breath test. See State v. Hellstern, 856
“possession” within the meaning
of these statutes, proof of actual possession is not required. See State v.
Maxwell, 743 N.W.2d 185, 193 (Iowa 2008); State v. Cashen, 666 N.W.2d 566,
569 (Iowa 2003); see also Reed, 875 N.W.2d at 705 (explaining that the same
constructive-possession principles found in drug-possession cases apply to
possession-of-firearms cases). Rather, proof of constructive possession is
sufficient to establish possession. See Reed, 875 N.W.2d at 708.
5
Constructive possession of a firearm “exists when the evidence shows the
defendant ha[d] knowledge of the presence of the [weapon] and ha[d] the
authority or right to maintain control of it.’” Id. at 705 (citation omitted). Whether
this occurred “turns on the peculiar facts of each case” and “may be proved by
inferences,” such as when the firearm is found in the defendant’s exclusive
possession. Id. at 705. But if the firearm is not found in the defendant’s
exclusive possession, the defendant’s knowledge of the weapon and control over
it must be established by proof, such as showing the defendant had actual
knowledge of the firearm or from “incriminating statements or [other]
circumstances from which a jury might lawfully infer knowledge . . . .” Id. at 708.
Here, Campbell-Scott did not have actual possession of either firearm, nor
could either firearm be said to be in his exclusive possession, given the presence
of the passenger in his car. Nevertheless, viewing the record evidence in the
light most favorable to the State, the evidence provides circumstances from
which the jury could lawfully infer Campbell-Scott had knowledge of and
dominion over a firearm—namely, his elusion of the police and the presence of
two guns found at the scene of the crash after he and his passenger attempted to
flee. This evidence is more than Campbell-Scott’s mere proximity to the
contraband found. Campbell-Scott was the driver of the vehicle that eluded
police. Though there may be numerous reasons Campbell-Scott fled from police,
such as his intoxication or the outstanding arrest warrant, the jury could
reasonably infer that he did not stop because he knew there were firearms in the
vehicle. See, e.g., State v. Wilson, 878 N.W.2d 203, 214 (Iowa 2016) (“[T]he
inferential chain connecting an act of flight to guilt for the crime charged can
6
reasonably be drawn . . . when the timing of the act suggests ‘the sudden onset
or the sudden increase of fear in the defendant’s mind that he or she will face
apprehension for, accusation of, or conviction of the crime charged.’” (citation
omitted)). Moreover, as the officers testified at trial, two guns being found at the
scene where two fleeing suspects were apprehended supports an inference that
each person had possession and control of one of the guns prior to each gun’s
disposal. Although the contraband was not in Campbell-Scott’s physical
possession at the time of his arrest, viewing the facts in the light most favorable
to the State, we conclude there is substantial evidence one of the firearms was in
Campbell-Scott’s constructive possession. We therefore affirm on this issue.
III. Ineffective Assistance of Counsel.
Campbell-Scott also argues his trial counsel was ineffective in three
respects. He argues his rights under Iowa Code section 804.20 and Miranda1
were violated, and he asserts his counsel was ineffective for not moving to
suppress his statements and the results of his alcohol test based upon each of
the claimed violations. He also argues his trial counsel was ineffective for not
objecting to a jury instruction’s omission of the following sentence, which is found
in the model jury instruction: “A person’s mere presence at a place where a thing
is found or proximity to the thing is not enough to support a conclusion that the
person possessed the thing.” Campbell-Scott also claims cumulative error.
1 In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme Court
held that a suspect subjected to custodial interrogation must be warned of “the right to
remain silent,” anything said “can be used against [the suspect] in a court of law,” “the
right to the presence of an attorney,” and if the suspect “cannot afford an attorney one
will be appointed . . . prior to any questioning if so desired.”
7
“To prevail on a claim of ineffective assistance of counsel, the claimant
must show counsel failed to perform an essential duty and prejudice resulted.”
State v. Ary, 877 N.W.2d 686, 704 (Iowa 2016). Our review is de novo, and the
claim fails if either element is lacking. See State v. Schlitter, 881 N.W.2d 380,
388 (Iowa 2016).
Nevertheless, we generally preserve ineffective-assistance-of-counsel
claims for postconviction-relief proceedings, where a proper record can be
developed. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). “That is
particularly true where the challenged actions of counsel implicate trial tactics or
strategy which might be explained in a record fully developed to address those
issues.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “[A]t a postconviction
relief hearing, trial counsel will have an opportunity to explain [his or] her conduct
and performance.” State v. Blair, 798 N.W.2d 322, 329 (Iowa Ct. App. 2011). A
lawyer, like any accused, is entitled to his or her day in court, especially when his
or her professional reputation is impugned. See State v. Bentley, 757 N.W.2d
257, 264 (Iowa 2008). Consequently, we will only address claims of ineffective
assistance of counsel on direct appeal when the record is sufficient to decide the
issue. See State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014). We find the record
adequate here.
A. Section 804.20 Violation.
Iowa Code section 804.20 provides for “a limited statutory right to counsel
before making the important decision to take or refuse the chemical test under
implied consent procedures.” State v. Hellstern, 856 ... at the accident,” and, citing State v. Moorehead, 699 N.W.2d 667,
672 (Iowa 2005), he asserts that right was violated
, where
there was no question that Robinson had been arrested and restrained. See id.
As the court noted in State v. Moorehead, the statute’s language applies to those
“arrested or restrained of the person’s liberty for any reason whatever,” and the
Moorehead court had no problem finding section 804.20 applicable under the
facts of that case, even though the request was made at the scene and the
accused had not been formally arrested. See 699 N.W.2d 667, 672 (Iowa 2005)
(emphasis added). This makes sense, given that formal words announcing an
arrest are not required for a suspect to be arrested. See State v. Wing, 791
N.W.2d 243, 248 (Iowa 2010). Rather, under the statutory definition of “arrest,”
an arrest occurs when a person is taken into custody “in the manner authorized
by law, including restraint of the person or the person’s submission to custody.”
Iowa Code § 804.5. A suspect is in custody when the “suspect’s freedom of
action is curtailed to a ‘degree associated with formal arrest.’” State v. Bogan,
774 N.W.2d 676, 680 (Iowa 2009) (citations omitted). We agree with the district
court’s conclusion that Serrine was in custody when she was ordered out of her
car and into the squad car, thus restraining her liberty. Serrine’s section 804.20
rights were implicated at that time.
2. Were Serrine’s Section 804.20 Rights Violated?
Assuming, without deciding, that Serrine invoked her section 804.20 rights
prior to her formal arrest, we next turn to whether those rights were violated. She
16
argues her section 804.20 rights were violated because the officer did not allow
Spurgeon to accompany Serrine during the field sobriety tests and never allowed
Serrine to consult Spurgeon in private at the scene. The State argues Serrine’s
brief conversation with Spurgeon at the scene afforded her a reasonable
opportunity to speak with him, and if Spurgeon wanted more than that, he should
have asked; in any event, Serrine was allowed to call Spurgeon at the jail prior to
consenting to chemical testing. Serrine argues this was not enough. We
disagree. Although one may invoke section 804.20 rights before arriving at the
ultimate place of detention,4 a call or consult need not take place until after arrival
at the ultimate place of detention. Serrine was not entitled to a call or consult at
roadside, in the parking lot, or in the squad car, i.e., during the investigatory pre-
arrest period of time. She was entitled to a call or consult only at her final place
of detention—the jail.
The first sentence of section 804.20 states:
Any peace officer or other person having custody of any
person arrested or restrained of the person’s liberty for any reason
whatever, shall permit that person, without unnecessary delay after
arrival at the place of detention, to call, consult, and see a member
of the person’s family or an attorney of the person’s choice, or both.
(Emphasis added.)
“Place of detention” is not defined in the statute. The section 804.20 right
to call or consult arises after arrival at the place of detention. To “arrive” at a
place, one must come from somewhere else. In the present context, that
somewhere else was the place where Serrine’s liberty was first restrained—the
4 Nothing in the plain language of section 804.20 requires that a person wait to make a
request for counsel or a family member at the ultimate place of detention. Moorehead,
699 N.W.2d at 672.
17
scene where she was stopped. She arrived at the jail. It necessarily and
logically follows that her right to make a call or have a consultation did not arise
until after she arrived at the jail. She had no statutory right to have Spurgeon
accompany her during the field sobriety tests or to consult with him at the scene.
Serrine further complains she was not allowed to consult in private with
Spurgeon at the scene. Section 804.20 provides, “An attorney shall be permitted
to see and consult confidentially with such person alone and in private at the jail
or other place of custody . . . .” (Emphasis added). Serrine’s statutory right to
make a call or have a consultation did not arise until she arrived at the jail. Her
right to a private consultation arose no sooner than her right to make a call,
consult with, or see a family member or attorney. Serrine had no statutory right
to a private consultation with Spurgeon at the scene.
Serrine further complains her section 804.20 rights were violated when
Officer Bowers did not inform her at the jail of her right to a private consultation
with a lawyer. The record does not disclose that Serrine ever made a request to
talk to a lawyer in private—at the scene or at the jail. A request for privacy is
necessary in order to trigger an officer’s duty to inform the person that the
attorney must come to the jail for a confidential conference. See State v.
Hellstern, 856 ... State seeks to distinguish custody
15
and arrest in the context of section 804.20, pointing out that in Robinson
alleged violations of constitutional rights de novo. State
v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997). We make an independent
evaluation of the totality of circumstances shown by the entire record.
Id.
“[W]e review the defendant’s challenge of the district court’s
interpretation of Iowa Code section 804.20 for correction of errors at
law.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015). We will
affirm a district court’s ruling on a motion to suppress when the court
correctly applied the law and there is substantial evidence to support the
court’s fact-finding. State v. Hellstern, 856 ... . Ultimately, the State charged Lyon with operating a
motor vehicle while intoxicated (OWI), second offense, in ... argument under the
state constitutional provision.
The district court held a hearing on the motion to suppress. The
.
State v. Hellstern, [856] N.W.2d [355] (Iowa 2014)
controls in this matter. The Defendant limited his argument
to only ... Senn’s appeal.
3This court’s decision in State v. Hellstern, 856 N.W.2d 355, 360–65 (Iowa 2014),
which addressed Iowa ... construction.
State v. Thompson, 836 N.W.2d 470, 483 (Iowa 2013) (quoting State v.
Seering, 701 N.W.2d 655, 661 (Iowa 2005)).
III. Analysis.
Senn asks us to hold for the first time that the right to counsel
under article I, section 10 of the Iowa Constitution attached before the
State filed criminal charges against him while he was under arrest for
suspicion of drunk driving and faced with the decision of whether to
submit to a chemical breath test that measures his blood alcohol level.
The State contends, and the district court ruled, that the constitutional
right to counsel had not yet attached and that the arresting officer
followed the governing statute by allowing Senn to speak by phone with a
lawyer in the officer’s presence. The statute, Iowa Code section 804.20,
states,
Any peace officer or other person having custody of any
person arrested or restrained of the person’s liberty for any
reason whatever, shall permit that person, without
9
unnecessary delay after arrival at the place of detention, to
call, consult, and see a member of the person’s family or an
attorney of the person’s choice, or both. Such person shall
be permitted to make a reasonable number of telephone calls
as may be required to secure an attorney. If a call is made, it
shall be made in the presence of the person having custody of
the one arrested or restrained. If such person is intoxicated,
or a person under eighteen years of age, the call may be
made by the person having custody. An attorney shall be
permitted to see and consult confidentially with such person
alone and in private at the jail or other place of custody
without unreasonable delay. A violation of this section shall
constitute a simple misdemeanor.
(Emphasis added.)
Because this case arose from the invocation of implied consent, we
read section 804.20 together with the implied-consent provisions of Iowa
Code chapter 321J. See State v. Walker, 804 N.W.2d 284, 290 (Iowa
2011). Senn does not challenge the constitutionality of the implied-
consent statute. “[W]e have continuously affirmed that the primary
objective of the implied consent statute is the removal of dangerous and
intoxicated drivers from Iowa’s roadways in order to safeguard the
traveling public.” Id. (quoting Welch v. Iowa Dep’t of Transp., 801 N.W.2d
590, 594 (Iowa 2011)); see also Birchfield v. North Dakota, 579 U.S. ___,
___, 136 S. Ct. 2160, 2166, ___ L. Ed. 2d ___, ___ (2016) (“Drunk drivers
take a grisly toll on the Nation’s roads, claiming thousands of lives,
injuring many more victims, and inflicting billions of dollars in property
damage every year. To fight this problem, all States have laws that
prohibit motorists from driving with a blood alcohol concentration (BAC)
that exceeds a specified level.”); State v. Garcia, 756 N.W.2d 216, 220
(Iowa 2008) (stating that Iowa’s implied-consent law “was enacted to help
reduce the appalling number of highway deaths resulting in part at least
from intoxicated drivers” (quoting State v. Wallin, 195 N.W.2d 95, 96
(Iowa 1972)); State v. Comried, 693 N.W.2d 773, 775 (Iowa 2005) (“We
10
have said the purpose of chapter 321J is ‘to reduce the holocaust on our
highways[,] part of which is due to the driver who imbibes too freely of
intoxicating liquor.’ ” (Quoting State v. Kelly, 430 N.W.2d 427, 429 (Iowa
1988).)). But section 804.20 applies to all arrestees, not just drunk
drivers. Walker, 804 N.W.2d at 290. Accordingly, this appeal has far-
reaching implications.
Section 804.20 provides “a limited statutory right to counsel before
making the important decision to take or refuse the chemical test under
implied consent procedures.” Hellstern, 856