State of Iowa v. Matthew Robert Sewell ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 20–0445
Submitted February 17, 2021—Filed June 4, 2021
Amended June 29, 2021
STATE OF IOWA,
Appellee,
vs.
MATTHEW ROBERT SEWELL,
Appellant.
Appeal from the Iowa District Court for Dickinson County, David C.
Larson, District Associate Judge.
A defendant appeals the denial of his motion to suppress, claiming
that he had a right to a confidential telephone call with an attorney before
deciding whether to take a blood alcohol test. AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which
Christensen, C.J., and Waterman, McDonald, Oxley, and McDermott, JJ.,
joined. Appel, J., filed an opinion concurring in part and dissenting in
part.
Robert G. Rehkemper (argued) of Gourley, Rehkemper & Lindholm,
P.L.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven (argued),
Assistant Attorney General, and Amy E. Zenor, County Attorney, for
appellee.
2
MANSFIELD, Justice.
We are asked to decide today whether Iowa law or the Iowa
Constitution guarantee a suspected drunk driver the right to a private
phone consultation with counsel before deciding whether to take a blood
alcohol test. We conclude that Iowa law does not provide such a right
because the statute provides that if a call to counsel is made, “it shall be
made in the presence of the person having custody of the one arrested or
restrained.” Iowa Code § 804.20 (2019). We conclude that the Iowa
Constitution does not provide such a right because the right to counsel
under article I, section 10 arises in “criminal prosecutions” and “cases
involving the life, or liberty of an individual,” not in procedures that occur
before such a prosecution or case is commenced. For these reasons, we
hold that the defendant was not entitled to a private phone consultation
with counsel and his motion to suppress was properly denied. We affirm
the defendant’s conviction and sentence.
I. Background Facts and Proceedings.
On January 15, 2019, at 2:49 a.m., dispatch received a call from a
local resident reporting that someone was passed out in a truck in their
driveway in Milford. Dickinson County Sheriff’s Deputy Matt Grimmus
arrived at the resident’s home at about 3:00 a.m. Upon arriving, Deputy
Grimmus discovered a silver Ford-150 in the driveway running with its
lights on. There was a male in the driver’s seat sleeping. Deputy Grimmus
reported, “I knocked on the window several times to get the male[’]s
attention. He looked at me once and then closed his eyes. I knocked again
on the window and the male looked at me and flipped me off.”
The man originally denied he had identification, but eventually
produced his driver’s license identifying him as Matthew Sewell. Sewell
admitted he had been drinking, and Deputy Grimmus noticed a strong
3
odor of an alcoholic beverage. Sewell did not know what street he was on
and looked confused. His eyes were watery and bloodshot and his speech
was slurred. Sewell did not perform well on three field sobriety tests and
declined the preliminary breath test.
Deputy Grimmus arrested Sewell at 3:22 a.m. and transported him
to the Dickinson County Jail. Deputy Grimmus and Sewell arrived at the
Dickinson County Jail at 3:46 a.m. Deputy Grimmus read Sewell the text
of the implied-consent advisory and requested a chemical breath test
sample at 3:53 a.m. Following the invocation of implied consent, Deputy
Grimmus gave Sewell the opportunity to contact an attorney or a family
member. Sewell was allowed to use his cellphone to retrieve phone
numbers but not to place calls.
Sewell left a message with Matthew Lindholm, a criminal defense
attorney in West Des Moines. When Lindholm called back at 4:25 a.m.,
Sewell explained they were talking on the jail’s landline, not Sewell’s
cellphone. Deputy Grimmus denied Lindholm and Sewell’s request for a
confidential phone call on Sewell’s cellphone, stating that Sewell and his
attorney could have a confidential meeting at the jail. Deputy Grimmus
also indicated that the jail policy is for all detainee calls to be on the jail
landline, which is recorded.
When Lindholm learned that he could not have a private phone
conversation with Sewell, he declined to proceed further.1 Lindholm later
testified at the suppression hearing that he was “not comfortable advising
him” under the circumstances.
At 4:55 a.m., Sewell decided to take the breath test and recorded a
.206 blood alcohol content. He was booked into jail.
1At the time of the call, Lindholm was in Boone, approximately a two-and-a-half
hour drive from Spirit Lake.
4
On February 4, Sewell was charged by trial information with
operating while intoxicated (OWI), first offense, in violation of Iowa Code
section 321J.2. Sewell filed a motion to suppress evidence, urging that
his rights under Iowa Code section 804.20, the Fourth and Sixth
Amendments to the United States Constitution, and article I, sections 8
and 10 of the Iowa Constitution had been violated. He also filed a motion
to dismiss alleging due process violations. Both motions centered on the
Dickinson County jail’s refusal to allow Sewell a private, unrecorded
conversation with Lindholm.
The district court held a hearing on the motions on August 15.
Lindholm was one of the witnesses. Lindholm testified that the vast
majority of his criminal practice involves OWIs. In a typical year, he
handles in excess of one hundred such cases. Often, Lindholm receives
calls from people who have been arrested and are in custody and are
looking for advice regarding whether to consent or refuse chemical testing.
In those situations, Lindholm wants to gather information, including: How
much did the person drink and when? How did the person perform on the
field sobriety tests and the preliminary breath test? Does the person have
prior offenses? Was there an injury or death?
On November 15, the district court entered a ruling denying both of
Sewell’s motions. Afterward, Sewell waived his rights to a jury trial and
stipulated to a trial on the minutes of testimony. The trial court found
Sewell guilty of OWI on two alternative theories: being under the influence
of alcohol and having a blood alcohol concentration of .08 or more. Sewell
was sentenced to serve in the weekend offender program and to pay a fine
of $1250 plus surcharges. See Iowa Code § 321J.2(3)(a), (c). Sewell
appealed, and we retained the appeal.
5
II. Standard of Review.
The district court’s interpretation of Iowa Code section 804.20 is
reviewed for errors at law. State v. Hellstern, 856 N.W.2d 355, 360 (Iowa
2014). “We affirm the district court’s suppression ruling when the court
correctly applied the law and substantial evidence supports the court’s
fact-finding.” State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011). We review
constitutional claims de novo. State v. Pettijohn, 899 N.W.2d 1, 12 (Iowa
2017).
III. Analysis.
A. Does Iowa Code Section 804.20 Provide the Detainee a Right
to a Confidential Telephone Consultation?
Iowa Code section 804.20 provides,
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.)
Sewell argues that “made in the presence of the person having
custody of the one arrested or restrained” means only that the call shall
be dialed in the presence of the officer. After that, the officer is required
to leave and allow the detainee to have a private, confidential conversation.
The State argues that “made in the presence” means that the officer can
6
be present and listen while the detainee talks to any family member or
attorney.
“We begin our inquiry in this case with the language of the statute
as a whole.” Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020). Normally,
when the same term is used repeatedly in the same statute, we give the
term the same meaning each time. See State v. Paye, 865 N.W.2d 1, 7
(Iowa 2015) (“When the same term appears multiple times in the same
statute, it should have the same meaning each time.”).
Iowa Code section 804.20 uses the word “make” or “made” in
reference to phone calls in three separate sentences. If we are to read
“make” or “made” consistently in each of these sentences, the notion
appears to be that the phone calls are brief and for the purpose of
obtaining counsel, not for the purpose of obtaining advice from counsel.
Thus, the second sentence of the statute says that the detainee shall be
permitted to “make a reasonable number of telephone calls as may be
required to secure an attorney.” The third sentence says that if a call is
made, “it shall be made in the presence of the person having custody of
the one arrested or restrained.” And the fourth sentence says that if the
person is intoxicated or a minor, the call “may be made by the person
having custody.” To achieve consistency in the meaning of “make” in all
three sentences, “make” must mean something more than “dial” and
something less than “have a private, substantive discussion to obtain legal
advice.”
This reading also accounts for the contrasting terminology of the
fifth sentence. That sentence expressly permits the attorney “to see and
consult confidentially with” the detainee “alone and in private” at the place
of detention. If phone calls came with the same guarantee of
confidentiality as in-person visits, it is odd that no such language—i.e.,
7
“confidentially . . . alone and in private”—appears in the prior sentences.
Presumably, the fifth sentence’s use of “confidentially . . . alone and in
private” is intended to assure that in-person consultations would be
privileged. See Iowa Code § 4.4(2) (setting forth a presumption that “[t]he
entire statute is intended to be effective”).
So, on a once-through, Sewell’s proposed interpretation of Iowa Code
section 804.20 does not seem quite right. Furthermore, we have rejected
that interpretation of the statute on three prior occasions. In State v.
Craney, the defendant was charged with and found guilty of first-degree
murder of a newborn baby. See 347 N.W.2d 668, 671 (Iowa 1984). On
appeal, the defendant argued that the trial court erred in admitting
testimony that, while speaking on the phone with his attorney during the
booking process, the defendant said, “I killed my baby.” Id. at 678. We
ruled that the trial court did not err in admitting the evidence. Id. at 679.
We stated,
[T]he 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. They are for the purpose of enabling the person to
arrange for a legal consultation and assistance.
Id. at 679.
More recently, in State v. Walker, we specifically addressed the
different treatment afforded attorney phone calls and in-person attorney
visits under Iowa Code section 804.20. 804 N.W.2d at 291. There, the
arrested defendant had made a total of eight calls, resulting in an attorney
meeting him at the jail. Id. at 286–87. The in-person consultation took
place in “a small detention area with three empty booths with glass
partitions to separate visitors from detainees and intercoms with telephone
style handsets for communication.” Id. at 287. The area was subject to
8
video but not audio recording; the attorney’s requests for a different room
were refused. Id.
We gave the following overview of the rights afforded by Iowa Code
section 804.20:
The statute expressly provides for greater privacy when the
attorney personally visits his client at the police station or
other place of custody. 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.” State v. Craney,
347 N.W.2d 668, 678–79 (Iowa 1984) (allowing into evidence
defendant’s statement, “I killed my baby” made in phone call
to attorney overheard by police officer during booking process
because statement made in the presence of a third person is
not protected by attorney–client privilege). For that reason,
attorneys who consult by telephone with persons arrested for
OWI typically tell their client to answer only “yes” or “no” to
the attorney’s questions. By contrast, section 804.20 clearly
allows for privileged communications at the place of detention
where the attorney shall be permitted to “consult
confidentially” with his client “alone and in private.”
Id. at 291. Ultimately, given the video monitoring of the attorney meeting,
we determined that the defendant’s right under section 804.20 to “see and
consult confidentially” and “alone and in private” with his attorney had
been violated. Id. at 296.
In State v. Hellstern, we again discussed Iowa Code section 804.20’s
parameters for attorney phone calls. 856 N.W.2d at 357. In Hellstern, a
defendant had been arrested for OWI. Id. at 358. After arriving at the jail,
the defendant was asked if he wanted to make “any phone calls for any
reason.” Id. Following a series of phone calls, voicemails, and text
messages, the defendant finally spoke with an attorney. Id. at 358–59.
During that phone call, the defendant asked the officer, who was sitting
five feet away, “Can I have a moment with my attorney?” Id. at 359. Later
in the same phone call, the defendant expressly requested “attorney–client
privilege.” Id. The officer responded, “You can, but . . . [n]ot on the phone.”
9
Id. (omission in original). The officer failed to specifically inform the
defendant that he could have a confidential and privileged conversation
with his attorney if the attorney came to the jail. Id. Following the denial
of a motion to suppress, the defendant was found guilty of OWI. Id. at
360.
On appeal, the defendant argued that his request for privacy during
the phone call triggered an obligation on the part of the officer to disclose
the defendant’s right to a private attorney–client conference at the jail. Id.
We began our analysis by once again distinguishing a section 804.20
phone call and a section 804.20 in-person attorney consultation:
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.”).
Id. at 361. “By contrast,” we observed, “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.’ ” Id. (quoting Iowa Code
§ 804.20); see also id. at 364 (“[S]ection 804.20 permits phone calls ‘in the
presence’ of the officer, while providing for confidential in-person attorney–
client conferences at the jail or place of detention.” (quoting Iowa Code
§ 804.20)).
We then ruled that the defendant’s motion to suppress should have
been granted. Id. at 365. We found that the defendant
adequately invoked his statutory right to a confidential
consultation with his attorney under section 804.20 by
requesting privacy during his phone call, triggering [the
officer’s] duty to inform him that the attorney must come to
the jail for a confidential conference.
Id. at 364–65.
10
Craney, Walker, and Hellstern all indicate that there is no section
804.20 right to a private phone call. Craney, 347 N.W.2d at 679; Walker,
804 N.W.2d at 291; Hellstern, 856 N.W.2d at 361. Hence, thirty-seven
years’ worth of stare decisis cut against Sewell’s interpretation of section
804.20. See Hellstern, 856 N.W.2d at 363 (discussing the importance of
legislative acquiescence in regard to the statute).
Also, there are practical reasons why the legislature might be
concerned about private phone calls but not private attorney jail visits.
See Iowa Code §§ 4.4 (3) (setting forth the presumption that “[a] just and
reasonable result is intended”), .6(5) (stating that if a statute is ambiguous,
the court may consider “[t]he consequences of a particular construction”).
As the plurality noted in State v. Senn, “Iowa Code section 804.20 applies
to all detainees, not just motorists suspected of impaired driving. It is easy
to imagine detainees taking advantage of private phone calls to inform
confederates to flee or get rid of evidence.” 882 N.W.2d 1, 31 (Iowa 2016)
(plurality opinion). When an attorney comes to the jail for a private
consultation, law enforcement can verify the attorney’s identity and rely
on the attorney’s ethical obligation that no shenanigans will occur. But
when a just-arrested detainee is given the right to conduct phone calls in
private, there is no practical way to prevent misuse of the phone.2
2A few comments on the opinion concurring in part and dissenting in part are
warranted here. That opinion states there was no real risk that Sewell would have
contacted confederates. But that isn’t the issue. The statute applies to all arrested
defendants.
The opinion concurring in part and dissenting in part claims that “more than ten
states [actually eleven, if you read on in that opinion] permit private conversations in the
context of implied consent.” We have some doubts about these numbers. See State v.
Griffith, 660 N.E.2d 710, 711 (Ohio 1996) (holding that exclusion of the breathalyzer
evidence should not occur even if the police violate the statutory right to counsel); State
v. Federov, 355 P.3d 1088, 1093 (Wash. 2015) (en banc) (finding that whether the
defendant had a rule-based right to a private conversation involved a “case-by-case
determination”). But the other side of this coin is that the vast majority of states do not
11
For all these reasons, we conclude that Deputy Grimmus did not
violate Sewell’s rights under Iowa Code section 804.20 when he denied him
a private and confidential phone call with attorney Lindholm. By way of
caution, we emphasize what is not before us. Sewell is not arguing that
he had a statutory right to have only his end of the conversation
monitored. We noted in Walker that this is the usual practice. See 804
N.W.2d at 291 (“[A]ttorneys who consult by telephone with persons
arrested for OWI typically tell their client to answer only “yes” or “no” to
the attorney’s questions.”). However, in Dickinson County, law
enforcement apparently monitors both ends of the call. Whether section
804.20 permits that level of monitoring is not before us today.3
B. Does the Iowa Constitution Provide the Detainee a Right to
a Confidential Telephone Conversation?
1. Article I, section 10. Alternatively, Sewell argues that an arrested
person has a right under article I, section 10 of the Iowa Constitution to
consult privately with counsel before deciding whether to consent or refuse
chemical testing. Article I, section 10 provides,
In all criminal prosecutions, and in cases involving the
life, or liberty of an individual the accused shall have a right
to a speedy and public trial by an impartial jury; to be
informed of the accusation against him, to have a copy of the
same when demanded; to be confronted with the witnesses
against him; to have compulsory process for his witnesses;
and, to have the assistance of counsel.
recognize such a right, either by statute or under their state constitutions. See Senn,
882 N.W.2d at 22–27.
3Sewell also argues that the COVID-19 pandemic presents a reason for
interpreting Iowa Code section 804.20 to allow confidential attorney–client phone calls.
Sewell argues that during the pandemic, many law enforcement agencies and jails have
been closed to the public, thus precluding in-person visits. However, this case predates
the pandemic, and there is no dispute that the Dickinson County jail would have
permitted an in-person confidential attorney consultation in January 2019. The COVID-
19-related issues referenced by Sewell are not before us today.
12
Iowa Const. art. I, § 10.
We considered this issue in State v. Senn, but there was no majority
opinion in the case. A plurality of the court concluded the detainee had
no right to counsel under article I, section 10. See 882 N.W.2d at 31.
Three justices dissented on the basis there was such a right, see id. at 32–
33 (Wiggins, J., dissenting), id. at 68 (Appel, J., dissenting); and one justice
specially concurred on the ground that if even if there was such a right, it
was not violated in the particular case. Id. at 32 (Cady, C.J., concurring
specially).
Senn’s facts are similar to the facts here. An individual who had
been arrested for OWI and received the implied consent advisory
telephoned an attorney. Id. at 4 (plurality opinion). While on the phone
with the attorney in the officer’s presence, the individual was instructed
by the attorney to ask the officer for “attorney–client privilege please.” Id.
The officer responded that this individual could not have attorney–client
privilege while on the phone but would be afforded the privilege if the
attorney came to the jail. Id. The attorney was unable to meet in person.
Id. at 5. The individual later consented to taking the test, and the results
showed his blood alcohol concentration was 0.140. Id.
After he was charged with OWI, the defendant filed a motion to
suppress. Id. At the suppression hearing, he narrowed his claim to one
for deprivation of the right of counsel under the Iowa Constitution. Id.
The district court denied the motion. Id. at 5–6.
On appeal, the issue was whether
the right to counsel under article I, section 10 of the Iowa
Constitution attached before the State filed criminal charges
against [the defendant] while he was under arrest for the
suspicion of drunk driving and faced with the decision of
whether to submit to a chemical breath test that measures his
blood alcohol level.
13
Id. at 6.
The Senn plurality concluded that the right to counsel did not attach
at that stage. The plurality “beg[a]n with the plain meaning of the words
of article I, section 10.” Id. at 8. Specifically:
[Article I, section 10] by its terms applies to “criminal
prosecutions” and in “cases involving the life, or liberty of an
individual.” Section 10 expressly provides “the accused” with
eight enumerated rights: (1) a speedy trial, (2) a public trial,
(3) a trial by an impartial jury, (4) to be informed of the
accusation, (5) to obtain a copy of the accusation, (6) to
confront witnesses, (7) to have compulsory process for the
accused’s witnesses, and (8) to have the assistance of counsel.
The first seven of these enumerated rights make sense only in
the context of a formal legal proceeding leading to a trial. The
final enumerated right—to counsel—should be construed
together with the seven preceding rights in section 10 that
ensure a fair trial in criminal proceedings and cases involving
the liberty of the accused. We read words not in isolation, but
rather in context . . . .
Id. at 8–9. In other words, the plurality pointed out that the other rights
listed in article I, section 10 come into play only in actual court
proceedings, which means that the phrases “criminal prosecutions” and
“cases involving the life, or liberty of an individual” must refer to actual
court proceedings. Id. at 8.
The plurality went on. It noted that the text of article I, section 10
provides rights only to an “accused,” and then only within a “prosecution”
or a “case.” Id. at 9. The plurality also cited early caselaw reinforcing this
perspective. Id.
Turning to the facts of Senn, the plurality observed that when the
defendant asked for an attorney–client privileged conversation, “[t]here
was not yet a prosecution or case against [him].” Id. at 11. The plurality
reasoned, “The State had not filed criminal charges against Senn at the
time he was deciding whether to submit to the chemical breath test.
14
Therefore, he was not entitled to counsel under article I, section 10.” Id.
at 12.
The plurality acknowledged that one early case had applied article
I, section 10 to a noncriminal proceeding—Ex parte Grace, 12 Iowa 208(1861). See Senn, 882 N.W.2d at 12 (plurality opinion). Grace held that
article I, section 10’s right to trial by jury applied to a contempt proceeding
that resulted in the debtor’s arrest and imprisonment. 12 Iowa at 212.
But, as the plurality noted, there was a pending case in Grace. See Senn,
882 N.W.2d at 12. Grace does not suggest that there can be a
constitutional right to counsel without an actual court proceeding.
The plurality also examined the drafting history behind the “cases
involving the life, or liberty of an individual” language, the added text
which differentiates article I, section 10 from the Sixth Amendment. The
plurality pointed to various statements in the 1857 debates confirming
that the language was meant to provide jury trial rights to fugitive slaves
apprehended in Iowa. Id. at 14–16. “The framers consistently and
exclusively focused on the rights of persons who had already entered the
court system.” Id. at 15–16; see also In re Johnson, 257 N.W.2d 47, 54
(Iowa 1977) (McCormick, J., concurring specially) (“No one can doubt from
the convention record that the disputed language was added to Art. I
§ 10 in an effort to nullify the Fugitive Slave Act by giving persons accused
as escaped slaves the right to jury trial in Iowa.”).
The Senn plurality also surveyed constitutional precedents from
other states. 882 N.W.2d at 22–30. It noted that “[t]he vast majority of
courts deciding the issue conclude there is no state constitutional right to
counsel at the time the motorist must decide whether to submit to
chemical testing.” Id. at 22. It approved the reasoning of those courts:
15
These authorities are persuasive. We too want to avoid
creating an unworkable rule for determining when the right to
counsel attaches. If we expand the right to counsel to include
implied-consent chemical breath tests before any criminal
case is filed, what is the limiting principle? Why stop there?
Why not expand the right further to include noncustodial
questioning by police or police requests for consent searches
before any charges are filed? The text of our constitution
provides a clear starting point for the attachment of the right
to counsel—the court filing that commences the criminal
proceeding or other case putting liberty at risk. We are
unwilling to erase that bright line.
Id. at 26.
Furthermore, the plurality found practical problems with the
defendant’s position in Senn:
[A]ny Iowa constitutionally based right to counsel should
apply equally to rich and poor alike. . . . Thus, if we hold an
individual is constitutionally entitled to a private consultation
with legal counsel at the time the State invokes implied
consent, the State would need to ensure that public defenders
or court-appointed lawyers are available twenty-four hours a
day to field calls from detained motorists, typically late at
night.
Id. at 31 (citation omitted). “In addition, we would need to provide
continuous court and public defender access to process applications for
court-appointed counsel.” Id.
Justice Wiggins, dissenting, took issue with the plurality’s reading
of the 1857 constitutional debates. In his view, “during the debates, the
framers acknowledged that cases in which individuals have been arrested
implicate physical liberty interests sufficient to trigger rights under the
‘cases’ language of article I, section 10.” Id. at 45 (Wiggins, J., dissenting).
Justice Wiggins pointed out that an opponent of adding the “cases
involving the life, or liberty” language “argued its import would be to extend
the reach of article I, section 10 to ‘any person that may be arrested, who
may be taken up in any shape or way in this state.’ ” Id. (quoting 2 The
Debates of the Constitutional Convention of the State of Iowa 736 (W. Blair
16
Lord Rep., 1857) (remarks of Mr. Harris)). But as the State points out in
its current briefing, this reading of the constitutional debates is
incomplete. Mr. Clark, the sponsor of the amendment, immediately
disagreed with Mr. Harris. Id. at 737 (remarks of Mr. Clark). He explained
that the added language “has no reference to [the defendant’s] being
arrested in preparation for trial.” Id.
Justice Appel, dissenting, also disagreed with the plurality’s
interpretation of the “cases” language in article I, section 10. He said, “[I]t
strains credulity to suggest that the ‘cases’ clause is simply a redundant
passage and that the federal caselaw under the ‘all criminal prosecutions’
clause of the Sixth Amendment is applicable.” Id. at 67 (Appel, J.,
dissenting). Justice Appel added,
[T]he “cases” clause provides ample footing for a right to
counsel when implied consent is invoked. In this case, the
suspect faces a critical stage that will dramatically affect the
subsequent criminal trial and could well lead to revocation of
his driver’s license for an extended period of time.
Id. at 68. Yet Justice Appel’s first point is an attack on a strawman; no
one contends that the “cases involving the life, or liberty of an individual”
language is simply redundant. The framers put it in there to assure a right
to jury trial in Fugitive Slave Act cases that did not involve a criminal
prosecution. And his second point does not account for the full text of
article I, section 10, which provides that “the accused” shall have the right
to counsel “in cases involving the life, or liberty of an individual.” Iowa
Const. art. I, § 10 (emphasis added.) The right is for an accused within a
case, not for an individual who may or may not end up in a case later.4
4Justice Appel also endorsed the approach taken by a few states that have found
a constitutional right to counsel in the implied-consent context. Senn, 882 N.W.2d at
63–65.
In today’s opinion concurring in part and dissenting in part, Justice Appel again
fails to account for this language—i.e., “cases” and “the accused.” In addition to Grace,
17
On balance, we believe the position taken by the Senn plurality is
more persuasive as a matter of text and history. Accordingly, we adopt it
here. Moreover, in two decisions subsequent to Senn, we have taken the
view that the article I, section 10 right to counsel does not attach prior to
the initiation of a case or prosecution.
In State v. Green, we examined whether the article I, section 10 right
to counsel extended to a murder suspect who had participated in a
noncustodial police interview under the supervision of an Iowa county
attorney. 896 N.W.2d 770, 773 (Iowa 2017). Multiple times during the
interview, one of the officers would leave the interview room to consult next
door with the attorney. Id. It was clear that the attorney facilitated the
interview and directed the officers to ask specific questions. Id.We ruled that the defendant’s rights under article I, section 10 had
not been violated. As we explained, “[T]he text of the constitution is at the
core of our analysis and is our primary focus.” Id. at 778. “The text tells
us that the right to counsel applies only to the accused and, for the
purposes of this case, only to a criminal prosecution.” Id. We added, “It
is only once a prosecution is commenced that the imbalance [between law
enforcement and the suspect] is corrected through the adversary process
and through the right to counsel given by article I, section 10.” Id. at 779.
In the last paragraph of our opinion, we summed up,
There was no right to counsel provided by article I, section 10
of the Iowa Constitution at the time of [defendant’s] voluntary
and noncustodial interview with police under the supervision
of an Iowa county attorney. The constitutional right to
counsel is essential to ensuring a fair trial, but has no
the only Iowa precedent he cites for supporting his views is State v. Newsom, 414 N.W.2d
354 (Iowa 1987). But Newsom involved a defendant who had been arrested on murder
charges, taken before a magistrate, had counsel appointed, and then interrogated without
that counsel present. Id. at 356. In that case, the defendant was an accused in a pending
case.
18
application without a prosecution or case with which counsel
could aid the accused.
Id. at 782.
A year later, in Ruiz v. State, we considered whether bad advice from
an immigration attorney to a client, which led to a criminal investigation
and conviction of the client for having previously used a false social
security number, could be ineffective assistance of counsel under article I,
section 10 of the Iowa Constitution. 912 N.W.2d 435, 436 (Iowa 2018).
The defendant was a native and citizen of Mexico who had entered the
United States without permission. Id. After entering the United States,
the defendant had obtained vehicle titles in his name using a false social
security number. Id. Subsequently, through the attorney’s efforts, the
defendant was able to get a valid social security number. Id. at 437. At
that point, without inquiring into whether the defendant had used a
fraudulent social security number in the past to title vehicles, the attorney
suggested that his client go to the Iowa department of transportation (DOT)
to obtain a driver’s license. Id.This trip led to the DOT’s discovery of the defendant’s prior use of a
false social security number to register vehicles. Id. at 438. The defendant
was charged with and convicted of fraudulent practices, and faced
deportation. Id. The defendant sought postconviction relief on the ground
that his immigration attorney had provided ineffective assistance of
counsel. Id. The district court granted relief, and the State appealed. Id.We ruled that the defendant did not have a right to relief for
ineffective assistance of counsel because, at the time of the allegedly faulty
advice, he did not have a right to counsel under either the Sixth
Amendment or article I, section 10 of the Iowa Constitution. Id. at 439–
41. Regarding the latter, we said, “The language of the provision indicates
19
the person claiming the right to counsel must be an ‘accused’ in either a
criminal prosecution or a case involving that person’s life or liberty.” Id.
at 441. We relied on “Green and the text of article I, section 10” in holding
no right to counsel had attached under the Iowa Constitution. Id.For these reasons, we conclude that Sewell did not have a right to
counsel under article I, section 10 before deciding whether to take the
chemical test on January 15, 2019.
2. Article I, section 9. Finally, Sewell argues that denying him a
confidential telephone conversation with Lindholm violated his right to due
process under article I, section 9 of the Iowa Constitution. It is not entirely
clear what standard Sewell wants us to apply, but clearly the predicate to
his claim is that the State “interfere[d] with the attorney–client
relationship.” The problem is that, as we have already discussed, neither
the Iowa Code nor the Iowa Constitution afforded Sewell the right to a
private consultation with counsel. Thus, the “interference” consisted of
refusing something that Sewell had no entitlement to anyway. Sewell cites
a number of cases, but they involve situations where law enforcement
deceived the defendant. See, e.g., Moran v. Burbine, 475 U.S. 412, 435,
106 S. Ct. 1135, 1148 (1986) (Stevens, J., dissenting) (arguing that
deceptive police interference with communications between an attorney
and his client violated due process); Roberts v. State of Maine, 48 F.3d
1287 (1st Cir. 1995) (finding a due process violation where the defendant
was given misleading information about the consequences of refusing
testing, which included a mandatory forty-eight-hour period of
incarceration if convicted, and the defendant’s request to consult with
counsel was denied). Sewell does not claim to have been misled here.
20
IV. Conclusion.
For the foregoing reasons, we affirm Sewell’s conviction and
sentence.
AFFIRMED.
All justices concur except Appel, J., who concurs in part and
dissents in part.
21
#20–0445, State v. Sewell
APPEL, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part.
I. The Statute.
On the statutory issue, the majority is overwritten but makes some
fair points. It emphasizes that prior caselaw amounts to “thirty-seven
years’ worth of stare decisis [that] cut against Sewell’s interpretation.”
Perhaps so, although I think legislative acquiescence is generally a fairly
weak reed in light of the inertia inherent in the legislative process. But I
note that in State v. Williams, a similar multidecade period of stare decisis
was also at work in determining the meaning of the term “arrest.” 895
N.W.2d 856, 859–67 (Iowa 2017).
Stare decisis, of course, is not at work unless you believe that the
underlying decision was wrongly decided. Youngblut v. Youngblut, 945
N.W.2d 35, 45 (Iowa 2020) (McDonald, J., dissenting). While stare decisis
is often cited as a justification for a belief already held and is mere window
dressing, it is at work here. If I were writing on a blank slate, I would give
serious consideration to driving the interpretation of Iowa Code section
804.20 to avoid the constitutional problems presented below. See, e.g.,
Simmons v. State Pub. Def., 791 N.W.2d 69, 73–74 (Iowa 2010). There is a
very large body of caselaw suggesting that a statutory right to counsel in
the context of informed consent necessarily means a private consultation.
See Farrell v. Mun. of Anchorage, 682 P.2d 1128, 1130 (Alaska Ct. App.
1984); State v. Holland, 711 P.2d 592, 594–95 (Ariz. 1985) (en banc);
People v. Moffitt, 19 N.Y.S.3d 713, 718–19 (N.Y. Crim. Ct. 2015); Bickler v.
N.D. State Highway Comm’n, 423 N.W.2d 146, 148 (N.D. 1988). Further,
persons arrested in urban areas where lawyers are plentiful and within
short travel distance from the jail will be far more likely to get confidential
22
jailhouse advice than persons arrested in rural areas with more limited
availability of counsel. But this is not an issue of first impression, and it
is probably too late in the day to pursue this path. So, reluctantly, I concur
in the majority’s interpretation of the statute.
II. Imagination.
The majority opinion suggests that the three-judge plurality in State
v. Senn, declared that it is “easy to imagine detainees taking advantage of
private phone calls to inform confederates to flee or get rid of evidence.”
882 N.W.2d 1, 31 (Iowa 2016) (plurality opinion). While the declaration
may be partly accurate, it was supported only by “imagination,” not facts
or empirical evidence. Both state and federal prisons routinely permit
private telephone conversations between attorneys and clients. Further,
more than ten states permit private phone conversations in the context of
implied consent, exactly what Matthew Sewell seeks here today. The
majority has not cited cases related to abuse of phone privileges in the
implied-consent context.
The blanket rule advocated by the majority is thus far overbroad. In
this case, Sewell was found asleep in his car. He had no known
confederates. If he had a confederate, maybe he would have been driven
home without mishap. There was no suspicion of any kind that criminality
other than intoxicated driving was afoot. If the majority thinks Sewell was
some kind of escape threat, maybe a trained assassin, or possibly the
mastermind of a criminal conspiracy, it has watched too many movies.
Of course, all rights have the potential to be abused. In fact, there
is always the imaginary possibility that a criminal defense lawyer will
become a secret confederate of a client in some unknown criminal
enterprise. Under the majority view, a theoretical risk of abuse without
any basis in fact means that a right to counsel can never be recognized,
23
even in situations involving people like Sewell. If so, article I, section 10
of the Iowa Bill of Rights has just been effectively repealed.
I do not rule out, in all instances, that the state might make a case
for limiting contact with counsel based on articulate security concerns.
But the burden will be on the state to show that the restriction was
justified. See State v. Penrod, 892 P.2d 729, 732 (Or. Ct. App. 1995). And
the state did not attempt to meet the burden in this case.
III. Implied-Consent Laws and Rochin v. California.
In Rochin v. California, the United States Supreme court considered
a case where police obtained morphine capsules swallowed by a criminal
defendant. 342 U.S. 165, 166, 72 S. Ct. 205, 206 (1952). The defendant
was taken to the hospital, where unpleasant means were used to extract
the swallowed contraband. Id. According to the Supreme Court:
Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was there, the
forcible extraction of his stomach’s contents—this course of
proceeding by agents of government to obtain evidence is
bound to offend even hardened sensibilities. They are
methods too close to the rack and the screw to permit of
constitutional differentiation.
Id. at 172, 72 S. Ct. at 209–10.
In response, legislatures began passing “informed consent” laws to
avoid running afoul of the teaching of Rochin.5 Force was no longer to be
used to obtain evidence from the body of the accused; rather, the threat of
the loss of driving privileges was thought to be enough to do the job. See
State v. Spencer, 750 P.2d 147, 151 (Or. 1988) (en banc). Physical force
5As it turns out, the Supreme Court did not extend Rochin to situations where the
government sticks needles into people to draw blood without their consent. See
Schmerber v. California, 384 U.S. 757, 771–72, 86 S. Ct. 1826, 1836 (1966); Breithaupt
v. Abram, 352 U.S. 432, 436–37, 77 S. Ct. 408, 411 (1957).
24
was replaced with the substantial penalty of long-term loss of driving
privileges.
IV. Role of Counsel in Implied-Consent Setting.
Before we dive directly into the narrow caselaw, it is important to
understand why the right to counsel is important. Without having at least
a general understanding of the underpinnings of the right to counsel, it
would be difficult, if not impossible, to evaluate the choices facing the court
in this case.
The role of counsel is central to our criminal justice system. The
current criminal justice system is a far cry from that which existed at
common law, with professional police forces and trained prosecutors.
“Even the intelligent and educated layman has small and sometimes no
skill in the science of law.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct.
55, 64 (1932). Given the lack of knowledge and the tremendous power
held by the state, the central role of counsel is to serve “as a medium
between the accused and the power of the [s]tate.” Montejo v. Louisiana,
556 U.S. 778, 809, 129 S. Ct. 2079, 2098 (2009) (Stevens, J., dissenting).
V. Application of Criminal Prosecutions Clause.
Turning to the merits of the constitutional issue under the criminal
prosecutions clause, the majority only briefly canvassed its arguments of
the three-justice plurality in Senn, and I will do the same.
With respect to the Criminal Prosecutions Clause, the United States
Supreme Court, under the Sixth Amendment, has declared in a series of
cases that the right to counsel attaches with the filing of an indictment or
other similar court document. See Rothgery v. Gillespie County, 554 U.S.
191, 198, 128 S. Ct. 2578, 2583 (2008); United States v. Gouveia, 467 U.S.
180, 188, 104 S. Ct. 2292, 2297 (1984); Kirby v. Illinois, 406 U.S. 683,
688–89, 92 S. Ct. 1877, 1882 (1972). Collectively, these cases were an
25
unfortunate development. As explained in Senn, I would not apply such a
formalistic approach but would concentrate on function; namely,
determining when counsel is required to limit the coercive power of the
state’s law enforcement machinery and permit an individual to effectively
defend at trial. 882 N.W.2d at 51–54 (Appel, J., dissenting). As noted in
Escobedo v. Illinois, “It would exalt form over substance to make the right
to counsel . . . depend on whether at the time of the interrogation, the
authorities had secured a formal indictment. Petitioner had, for all
practical purposes, already been charged with murder.” 378 U.S. 478,
486, 84 S. Ct. 1758, 1762 (1964).
Further, Justice Brennan noted in United States v. Wade that the
“plain wording of this [Sixth Amendment] guarantee encompasses
counsel’s assistance whenever necessary to assure a meaningful
‘defense.’ ” 388 U.S. 218, 225, 87 S. Ct. 1926, 1931 (1967). Justice
Brennan further emphasized in Wade that any pretrial confrontation of
the accused must be examined to determine the impact at trial. Id. at 227.
And, as later noted by Justice Stevens in Gouveia, the attachment of the
right to counsel “does not turn on the formal initiation of proceedings but
‘rather on the nature of the confrontation between the authorities and the
citizen.’ ” Senn, 882 N.W.2d at 53 (quoting Gouveia, 467 U.S. at 195, 104
S. Ct. at 2301).
While Kirby was controversial from the beginning, it is widely
accepted, even in federal courts, that in order to preserve the effectiveness
of counsel at trial, the right to counsel must attach prior to the filing of
court documents in some instances. Post-Kirby federal courts, for
instance, have held that there is a right to counsel for communications
involving prefiling plea bargaining, Chrisco v. Shafran, 507 F. Supp. 1312,
1318–21 (D. Del. 1981), and prefiling Massiah violations, DeAngelo v.
26
Wainwright, 781 F.2d 1516, 1519 (11th Cir. 1986). And, there is some
suggestion in the federal caselaw that a prefiling lineup could be sufficient
to trigger a right to counsel if the suspect had in fact become an accused.
United States ex rel. Hall v. Lane, 804 F.2d 79, 81–82 (7th Cir. 1986).
I now turn to the caselaw regarding whether a right to counsel
attaches after a custodial arrest and the individual is faced with informed
consent. Suffice it to say that there is substantial, and in my view
persuasive, authority accepted in a number of jurisdictions holding that
when an individual is placed under arrest at the station house and is
confronted with the choice of providing a breath test or losing one’s driver’s
license, the power of the state has been sufficiently focused upon the
individual to give rise to a right to counsel designed to protect individuals
in criminal prosecutions. Cases from Oregon, Minnesota, and Washington
State provide support.
For example, the Oregon Supreme Court in State v. Spencer
declared:
A person taken into formal custody by the police on a
potentially criminal charge is confronted with the full legal
power of the state, regardless of whether a formal charge has
been filed. Where such custody is complete, neither the lack
of a selected charge nor the possibility that the police will
think better of the entire matter changes the fact that the
arrested person is, at that moment, ensnared in a “criminal
prosecution.”
750 P.2d at 155–56.
A similar approach was taken by the Minnesota Supreme Court in
Friedman v. Commissioner of Public Safety. 473 N.W.2d 828 (Minn. 1991)
(en banc). The Minnesota Supreme Court observed that “the expansion of
the right to counsel is necessary ‘when new contexts appear presenting
the same dangers that gave birth initially to the right itself.’ ” Id. at 833(quoting United States v. Ash, 413 U.S. 300, 311, 93 S. Ct. 2568, 2574
27
(1973)). Citing Spencer, the Minnesota Supreme Court found implied
consent an example of such a context:
Thus, while we hold that the point at which an
individual is asked by law enforcement officials to undergo a
blood alcohol test constitutes a critical stage in the criminal
process and that article I, section 6 of the Minnesota
Constitution guarantees an individual in such a situation the
limited right to counsel within a reasonable time before
submitting to testing.
Id. at 837.
The Supreme Court of Washington considered the question of right
to counsel in the context of informed consent in State v. Fitzsimmons. 610
P.2d 893, 901 (Wash. 1980) (en banc), vacated, 449 U.S. 977, 101 S. Ct.
390 (1980), aff’d on state constitutional grounds, 620 P.2d 999, 1001
(Wash.) (en banc) (per curiam). The Washington Supreme Court noted that
a critical stage requiring right to counsel “arises when the defendant’s right
to a fair trial or other substantial rights may be affected.” Id. at 898. The
Washington Supreme Court went on to observe that
the period immediately after arrest and charging in a driving
while under the influence of intoxicating liquor case is a
“critical stage” because of the unique character of the evidence
to be obtained and the trial strategy decisions which must be
made then, if at all.
Id. at 445; see also People v. Gursey, 239 N.E.2d 351, 352–53 (N.Y. 1968);
State v. Welch, 376 A.2d 351, 355 (Vt. 1977).
In addition to the five states that have found a constitutional right
to counsel in the context of implied consent, at least six states have
provided for confidential consultation with counsel in the informed-
consent setting by statute or rule. Kameroff v. State, 926 P.2d 1174, 1178
(Alaska Ct. App. 1996); McNutt v. Super. Ct., 648 P.2d 122, 124 (Ariz. 1982)
(en banc); Roesing v. Dir. of Rev., 573 S.W.3d 634, 638–39 (Mo. 2019)
(en banc); State v. Howren, 323 S.E.2d 335, 336 (N.C. 1984); Kuntz v. State
28
Highway Comm’r, 405 N.W.2d 285, 289 (N.D. 1987); City of Lakewood v.
Waselenchuk, 641 N.E.2d 767, 770 (Ohio Ct. App. 1994).
The notion that counsel is needed to counterbalance the power of
the state against a layperson arrested and charged with drunk driving is
illustrated in the Lakewood v. Waselenchuk case. After being presented
with a form stating her rights, the defendant declared, “I’m scared. This
sounds like I’m up under a real big serious thing and I think I should have
an attorney.” Waselenchuk, 641 N.E.2d at 768. Then the defendant was
read the implied-consent advisory and declared, “God, and I have to decide
this without a lawyer?” Id. The average citizen is not the proverbial Oxford
Don when it comes to parsing the language, and, in any event, the Oxford
Don would be well-advised to call a lawyer too.
The majority cites practical reasons against extending constitutional
protections in this case. Practical issues are said to arise related to
providing counsel to indigent persons confronting implied consent. In
State v. Smalls, an Oregon appellate court ruled that the limited right to
counsel did not require the state to provide a lawyer to indigent drunk-
driving arrestees. 120 P.3d 506, 509 (Or. Ct. App. 2005). On the other
hand, in the state of Washington, rules provide that a person in custody
who desires counsel shall at the earliest opportunity be given access to the
telephone number of the public defender. Fitzsimmons, 610 P.2d at 896.
In any event, a number of counties have twenty-four-hour access to
appointed counsel by telephone. Id. at 899 n.1.
Further, the caselaw emphasizes that the right to counsel is limited
so that consultation with a lawyer does not delay the administration of the
test and that if counsel cannot be contacted within a reasonable period of
time, a decision regarding testing must be made in the absence of counsel.
Friedman, 473 N.W.2d at 835 (“[A]n individual has the right, upon request,
29
to a reasonable opportunity to obtain legal advice before deciding whether
to submit to chemical testing.”); see also Gursey, 239 N.E.2d at 353 (“The
privilege of consulting with counsel concerning the exercise of legal rights
should not, however, extend so far as to palpably impair or nullify the
statutory procedure requiring drivers to choose between taking the test or
losing their licenses.”); City of Roseburg v. Dykstra, 854 P.2d 985, 986–87
(Or. Ct. App. 1993) (en banc) (holding that an attorney’s physical presence
is not required during the administration of a breath test, phone
consultation is sufficient); Welch, 376 A.2d at 355 (“[T]he privilege of
consulting with counsel concerning the exercise of legal rights should not
be allowed to interfere with the necessarily expedient procedures requiring
operators to make their choice whether to submit to the test.”).
From Powell v. Alabama to Gideon v. Wainwright, to State v. Young,
state authorities routinely raise “the sky is falling” practical problems in
efforts to defeat providing accused with the right to counsel. But,
fortunately, independent courts have repeatedly held that the right to
counsel is available not only at the state’s convenience.
VI. Application of the Cases Clause.
On the cases clause, the majority claims that I created a strawman
by declaring that the plurality in Senn made the cases clause redundant
and merely duplicative of the criminal prosecutions clause. The majority
claims to have defeated the strawman by declaring that the cases clause
was designed to provide trial rights to fugitive slaves. But the majority
gives the cases clause only a sliver of historical meaning and no
contemporaneous application by artificially limiting the cases clause to
Fugitive Slave Act proceedings. And it further undercuts even that sliver
by stating that in order to be within the scope of the cases clause, the
individual must be “an accused,” a concept, according to the majority,
30
from criminal law. In any event, the question of fugitive slaves was
resolved by the Civil War. So, the majority seeks to reduce the cases clause
to at most a historical oddity and a contemporaneous nullity. To that
extent, but only to that extent, I stand corrected.
The majority approach to the cases clause is too narrow. First, the
language itself of the cases clause is not limited to Fugitive Slave Act cases
but is general in nature. If the Iowa Constitutional Convention intended
to limit the concept to fugitive slaves, it could have said so. Now the
majority makes much of the use of the term “accused” in the clause, but
the term “accused” was not used in a narrow or technical sense and should
therefore be broadly construed. For instance, in Ex parte Grace, we applied
the cases clause in a case involving execution remedies involving property.
12 Iowa 208, 212 (1861). Plainly, the contemporaneous understanding of
“accused” was not limited to those accused of crime.
And, to use John Marshall’s famous words, we must not forget “that
it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 407 (1819). Or, in the words of our local John Marshall,
Justice LeGrand, “[N]o forced, unnatural, narrow, or technical
construction should ever [be] placed upon the language of a constitution.”
Redmond v. Carter, 247 N.W.2d 268, 275 (Iowa 1976) (en banc) (LeGrand,
J., concurring specially) (quoting 16 Am. Jur. 2d Constitutional Law § 76,
at 258 (1964)).
Justice LeGrand’s words resonate. We should not be looking for
narrow constructions of constitutional provisions. Indeed, in Gansen v.
Gansen, we broadly construed a provision in the Iowa Constitution related
to agricultural leases. 874 N.W.2d 617, 626 (Iowa 2016). It would be
unfathomable to broadly construe such a provision, which had a distinct
31
origin in the semi-feudal ways of the Hudson Valley, and yet narrowly
construe the cases provision of the right to counsel.
Our precedents agree with the proposition that the right-to-counsel
provisions should be generously interpreted. In State v. Newsom, we
considered a case where the state claimed a juvenile defendant had waived
his right to counsel and, as a result, admissions during a police
interrogation when the defendant was in custody were admissible. 414
N.W.2d 354, 356–57 (Iowa 1987). We concluded that the state’s
interrogation after he “was represented by counsel[] affirmatively
circumvented defendant’s sixth amendment rights.” Id. at 359.
But we further concluded that, “independent of our sixth
amendment analysis,” the state had also violated “defendant’s right to
counsel under” article I, section 10 of the Iowa Constitution. Id. We
declared that the right to counsel in the Iowa Constitution should be
broadly construed “to effectuate its purpose” of “correct[ing] the imbalance
between the position of an accused and the powerful forces of the State in
a criminal prosecution.” Id.Those interested in text will find it illuminating that the Sixth
Amendment right to counsel under the Federal Constitution is limited to
a criminal proceeding “for his defense.” U.S. Const. Amend. VI. Under the
Iowa Constitution, however, there is no such limitation. In short, the right
to counsel applies in any case, and not just a criminal prosecution, and,
unlike the Sixth Amendment, it does not necessarily need to be “for his
defense” in a criminal prosecution.
The majority enters the parade ground of this case with two cases
mounted on its prosecutorial pikes: State v. Green, 896 N.W.2d 770, 773
(Iowa 2017), and Ruiz v. State, 912 N.W.2d 435, 436 (Iowa 2018). These
cases involved simple investigative actions by law enforcement. They do
32
not involve custodial arrests of persons charged with a crime, under arrest
at the jailhouse, who are faced with informed consent. These cases do not
stand for the proposition that right to counsel never applies prior to
indictment or the filing of court papers. Here, we have a unique situation
involving custodial jailhouse arrest and the accused facing a Hobson’s
choice of providing a breath specimen or losing a driver’s license for an
extended period of time. See Fitzsimmons, 610 P.2d at 900. The
atmosphere is one of coercion and the decision at hand heavy with
important legal implications. Time is of the essence. The guiding hand of
counsel is crucial in permitting the arrestee to make an informed choice
that is irreversible and will largely dictate whether he is convicted of a
crime or loses his driver’s license. The majority does not see it, but the
State held the hammer over the hapless Sewell at 4:56 a.m. in the
Dickinson County jail when he was confronted with informed consent. He
has only himself to blame for his predicament, but he was entitled to legal
advice to help him deal with it. The decisions made that night were
irreversible regardless of the skill of trial counsel. Counsel at trial will do
him little good. The main event affecting his prospects at trial occurred at
the jailhouse.
VII. Due Process.
The major state due process case in the area of implied consent is
Sites v. State. 481 A.2d 192 (Md. 1984). In Sites, Sites was arrested for
drunk driving in the early morning hours and taken to the police station.
Id. at 194–95. Sites asked to call his lawyer several times, which the police
refused to allow. Id. at 195. A breathalyzer was administered, and he
tested at 0.17%. Id. Sites was convicted of driving while intoxicated and
appealed his conviction. Id.33
The Court of Appeals of Maryland, the highest state appellate court,
concluded that Sites did not have a statutory or constitutional right to
counsel. Id. at 195–97. The Maryland court then proceeded to consider a
due process claim that Sites was entitled to counsel prior to administration
of the breath test in the case. Id. at 197.
The Maryland court noted that the Due Process Clause had long
been held to ensure the fairness of proceedings. Id. at 199. The Maryland
court recognized that a number of courts had rejected the notion of a due
process right to counsel before submitting to chemical testing. Id. (citing
Gottschalk v. Sueppel, 258 Iowa 1173, 1180–82, 140 N.W.2d 866, 870–71
(1966); State v. Jones, 457 A.2d 1116, 1119 n.6 (Me. 1983); State v.
Braunesreither, 276 N.W.2d 139, 140 (S.D. 1979) (per curiam)). But the
Maryland court focused on the fact that continued possession of a driver’s
license “may become essential to earning a livelihood; as such, it is an
entitlement which cannot be taken without the due process mandated by
the Fourteenth Amendment.” Id. at 200. According to the Maryland court:
[T]he due process clause of the Fourteenth Amendment, as
well as Article 24 of the Maryland Declaration of Rights,
requires that a person under detention for drunk driving
must, on request, be permitted a reasonable opportunity to
communicate with counsel before submitting to a chemical
sobriety test, as long as such attempted communication will
not substantially interfere with the timely and efficacious
administration of the testing process.
Id. The Maryland court, however, determined that Sites failed to show
exactly when he asked for counsel and therefore it could not be determined
whether the failure of the police to honor his request was reasonable. Id.;
see also Heles v. South Dakota, 530 F. Supp. 646, 653 (D.S.D. 1982),
judgment vacated, 682 F.2d 201 (8th Cir. 1982).
An Ohio appellate court also found a due process violation in the
implied-consent context in Waselenchuk. 641 N.E.2d 767. In
34
Waselenchuk, the Ohio appellate court found that law enforcement failed
to honor a request for counsel after the defendant was arrested for drunk
driving. Id. at 768. According to the Ohio appellate court, “[T]he due
process clause applies to the deprivation of a driver’s license by the state.”
Id. (quoting Dixon v. Love, 431 U.S. 105, 112, 97 S. Ct. 1723, 1727 (1977)).
Quoting an unreported case, the Ohio court declared that
due process and fundamental fairness require that a person
held on suspicion of drunk driving who requests the
opportunity to communicate with counsel before submitting
to, or refusing, a chemical test must be permitted to do so, as
long as such communication does not interfere with the timely
administering of the test.
Id. at 770 (quoting State v. Larson, No. 16–CA–88, 1988 WL 138429, at *1
(Ohio Ct. App. Dec. 12, 1988)).
There is Iowa authority to the contrary. In Gottschalk v. Sueppel, we
considered whether the due process clause triggered a right to assistance
of counsel in the context of implied consent. 258 Iowa at 1180–82, 140
N.W.2d at 870–71. We noted, among other things, that the due process
claim was not urged before nor considered by the district court. Id. at
1181, 140 N.W.2d at 870. In any event, we declared the fallacy of due
process claims related to revocation of a driver’s license is that the “so[-
]called property right is not such in the ordinary sense. It is a privilege
granted to him under certain specific conditions, subject to all laws
pertaining thereto at the time the same is issued or may be later enacted.”
Id. Further, on the facts, the court concluded that the plaintiff would have
refused the test even if he had conferred with his attorney before the
officers requested consent. Id. at 1182, 140 N.W.2d at 871. Justices
Thornton and Becker dissented. Id. at 1186, 140 N.W.2d at 873.
In my view, Gottschalk is a doubtful precedent for a number of
reasons. First, the issue in Gottschalk was not preserved in the district
35
court. Second, the Gottschalk majority disparaged the interest of an
individual in a driver’s license by characterizing it as a “privilege.” Id. at
1181, 140 N.W.2d at 870–71. Such a formalistic doctrine is inconsistent
with the Supreme Court declarations in Dixon v. Love, 431 U.S. at 112, 97
S. Ct. at 1727, and Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589
(1971), that a person has a liberty interest in a driver’s license. Further,
as noted in Sites, “[R]evocation of a driver’s license may burden the
ordinary driver as much or more than the traditional criminal sanctions.”
481 A.2d at 199–200. For some, continued possession of a driver’s license
is essential to earning a living. 481 A.2d at 199–200.
Sewell does cite the above precedents in his brief and appears to
proceed on a different due process theory. Sewell relies on a number of
right-to-counsel cases involving government misconduct in interfering
with the right to counsel. See United States v. Stringer, 535 F.3d 929, 941
(9th Cir. 2008) (discussing trickery or misleading interference with defense
counsel); State v. Ferrell, 463 A.2d 573, 575 (Conn. 1983) (eavesdropping
on attorney after feigning privacy of conversation); People v. McCauley, 645
N.E.2d 923, 926–27 (Ill. 1994) (discussing how government officials misled
attorney to believe that defendant was not present at station when he was
in fact being investigated); State v. Sugar, 417 A.2d 474, 476 (N.J. 1980)
(discussing police eavesdropping on conversation between suspect and
attorney).
Responding to the due process argument raised in Sewell’s brief, the
State argues that the precedents are inapplicable. The State suggests that
Sewell is asserting what it labels a “free standing” substantive due process
argument applicable in cases where the state wrongfully invades the
attorney–client relationship. But the State asserts that law enforcement
in this case was completely upfront regarding the monitoring of any phone
36
call between the attorney and the client and followed the terms of Iowa
Code section 804.20.
I agree with the State that the due process cases cited by Sewell
relate to wrongful government invasion of the attorney–client relationship
and employ what seems to be a variant of the “shock the conscience” test
of Rochin. 342 U.S. at 172, 72 S. Ct. at 209. I find these cases
distinguishable as suggested by the State.
But there remains the due process approach presented in Sites,
Waselenchuk, and Heles. Those cases do not deal with police misconduct
but instead focus on fundamental fairness in proceedings involving alleged
liberty or property interests. On this branch of due process, I would
reserve judgment for a later day when the issue is better illuminated by
the parties.
VIII. Remedy.
Having concluded that Sewell was entitled to counsel at the time he
was arrested, taken to the jail, and confronted with the choice of taking
the breathalyzer or having his driver’s license suspended for an extended
period of time, the question remains: What is the proper remedy?
Sewell argues that dismissal of the charges is the only available
option. He asserts that the right to counsel is too fundamental to indulge
in nice calculations as to the amount of prejudice from denial of his right
to counsel.
There is some authority supporting the position. In State v. Holland,
the Arizona Supreme Court stated that when the right to counsel is
violated, the conviction obtained must be set aside because “it is
impossible to foresee what advice would have been given defendant had he
been able to confer privately with counsel. It is quite possible that he
would have been instructed to obtain, in some manner, exculpatory
37
evidence.” 711 P.2d at 595. As a result, suppression of the breath test
alone is not sufficient and all drunk-driving charges must be dismissed.
Id. Similarly, in State v. Hill, the North Carolina Supreme Court held that
a prosecution should be dismissed when there is a violation of
constitutional or statutory right to communicate with both counsel and
friends and such denial deprived the defendant of any opportunity to
confront the state’s witnesses. 178 S.E.2d 462, 467 (N.C. 1971).
But, the State contends that suppression is the proper remedy. The
State notes that we have never adopted an automatic dismissal rule for
violations of constitutional or statutory rights impacting a testing decision.
See, e.g., State v. Pettijohn, 899 N.W.2d 1, 38–39 (Iowa 2017) (remanding
for new trial); State v. Walker, 804 N.W.2d 284, 296 (Iowa 2011)
(suppressing evidence wrongfully obtained); State v. Garrity, 765 N.W.2d
592, 597–98 (Iowa 2009) (applying the exclusionary rule to evidence
wrongfully obtained).
Further, the State asserts that any error is harmless. The State
points out that Sewell was charged not only under Iowa Code section
321J.2(1)(b), dealing with driving with BAC over .08%, but also under Iowa
Code section 321J.2(1)(a), which simply requires that the State show
driving while intoxicated. Even if the breath test is excluded, the State
claims there was sufficient evidence to convict Sewell under the State’s
alternate theory of drunk driving. See Garrity, 765 N.W.2d at 597–98.
There is authority in support of suppression rather than dismissal
of cases involving violations of right to counsel in implied-consent settings.
But in my view, the question is not subject to a categorical rule but instead
is based on the facts and circumstances of the case. For example, in State
v. Keyonnie, the court held that suppression was the proper remedy when
there was no evidence that the defendant was deprived of the opportunity
38
to gather exculpatory evidence. 892 P.2d 205, 207 (Ariz. Ct. App. 1995).
That seems the correct approach. In order to sustain dismissal, the
burden is on the defendant to show that there was meaningful
investigation or evidence gathering that could realistically have been
impacted by the denial of counsel at the critical time.
In this case, however, the defendant in paragraph 6 of his “Written
Waiver of Jury Trial and Stipulation to Trial on the Minutes” waived his
jury trial rights and stipulated to trial by the minutes only “with respect to
the charge of Operating While Intoxicated while having an alcohol
concentration in excess of .08 in violation of Iowa Code Section
321J.2(1)(b).” The bench trial was expressly based on the stipulation. It
seems clear, then, that Sewell did not waive his right to a jury trial and
stipulate to a bench trial on the minutes on the State’s alternate theory.
Therefore, the error in this case cannot be harmless.
Further, on remand, if the State seeks to proceed on its alternate
theory,6 Sewell should be entitled to attempt to show, if he can, that the
deprival of timely consultation with counsel created a reasonable
probability that Sewell had been deprived of the opportunity to develop
evidence for the defense. If Sewell meets this burden, the State must
dismiss remaining charges.
IX. Conclusion.
For the above reasons, I would conclude that the charges against
Sewell under Iowa Code section 321J.2(1)(b) should be dismissed and the
case remanded to the district court for further proceedings on whether the
State may proceed to trial under Iowa Code section 321J.2(1)(a).
6I take no view on any potential additional defenses Sewell may have on remand
to prosecution under Iowa Code section 321J.2(1)(a).