State of Iowa v. Jaime Enrique Lopez Gonzalez ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0081
Filed March 4, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAIME ENRIQUE LOPEZ GONZALEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Kevin A. Parker,
District Associate Judge.
Defendant appeals his conviction for operating while intoxicated, first
offense. REVERSED AND REMANDED FOR A NEW TRIAL.
Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,
P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Richard Bennett, Assistant
Attorney General, for appellee.
Heard by Vaitheswaran, P.J., Schumacher, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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SCHUMACHER, Judge.
Jaime Lopez Gonzalez appeals his conviction for operating while
intoxicated (OWI), first offense. Lopez Gonzalez argues a brief colloquy with the
arresting state trooper was sufficient to trigger the requirement that the trooper
advise him of his right to contact an attorney or family member pursuant to Iowa
Code section 804.20 (2017), and he contends the district court erred by denying
his motion to suppress. We concur with the argument advanced by Lopez
Gonzalez, and as such, we reverse and remand for a new trial.
I. Background Facts & Proceedings
On July 30, 2017, Lopez-Gonzales was driving a pickup pulling a livestock
trailer, accompanied by his wife. Iowa State Trooper Wade Major stopped Lopez
Gonzalez because the trailer lights were not operational and the trailer registration
sticker was expired. Trooper Major noted Lopez Gonzalez had watery eyes and
the odor of an alcoholic beverage. Lopez Gonzalez admitted he had consumed
three or four beers. Lopez Gonzalez failed field sobriety tests. Trooper Major told
Lopez Gonzalez’s wife that he was taking Lopez Gonzalez for further testing, and
she drove away in the pickup.
Trooper Major transported Lopez Gonzalez to the Warren County jail, which
is located inside the Warren County Courthouse. En route, Lopez Gonzalez was
seated in the front passenger seat of the cruiser and was not handcuffed at any
time, but he was not free to leave. Both men exited the cruiser and proceeded into
the courthouse. Before the men entered the elevator leading to the floor housing
the jail, both Lopez Gonzalez and Trooper Major encountered a group of
individuals that indicated they were there to see an inmate. Lopez Gonzalez and
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some members of the group spoke briefly in Spanish. Trooper Major provided this
group additional instruction in English. Following this encounter, both Lopez
Gonzalez and the trooper proceeded toward the elevator, and Lopez Gonzalez
asked Trooper Major, “My wife, she gonna come?” Trooper Major replied, “You
might wanna, like, call her later, maybe.” Lopez Gonzalez replied “okay.” The
men then entered the elevator and proceeded to the jail. This exchange was
recorded on Trooper Major’s body microphone. At oral argument, the State
conceded that Lopez Gonzalez was detained when he posed the question to the
trooper.
Lopez Gonzalez did not make any additional requests to contact an attorney
or family member after his entry into the jail. Likewise, at no time after entry into
the jail did Trooper Major advise him of his rights arising under section 804.20.
Lopez Gonzalez was provided Spanish and English-language copies of the
implied-consent form. The record does not reflect the presence of an interpreter
at the jail, and Lopez Gonzalez previously indicated to Trooper Major that he could
not read Spanish. A review of the DVD offered by the State reflects that Lopez
Gonzalez’s English skills are limited.1 After executing the form, Lopez Gonzalez
complied with administration of the breath test. The test results were .122, which
is above the legal limit. Lopez Gonzalez was ultimately arrested and charged with
OWI, first offense, in violation of section 321J.2.
Lopez Gonzalez moved to suppress the results of the breath test on the
ground his rights under section 804.20 had been violated. He claimed he asked
1 An interpreter was utilized at both the motion to suppress and subsequent trial.
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for his wife to come to the police station and this triggered his rights under section
804.20 to consult with an attorney or family member, via telephone or in person,
after arriving at the jail. Lopez Gonzalez argued Trooper Major had a duty to notify
him of the consultation right arising under 804.20.
At the hearing on the suppression motion, Trooper Major testified Lopez
Gonzalez did not ask to make any telephone calls or to speak to anyone. He did
not believe Lopez Gonzalez’s question was a request to speak to his wife, and as
such, he did not inform Lopez Gonzalez of his rights under section 804.20. The
district court denied the motion to suppress, finding:
Trooper Major allowed defendant to make phone calls at any time,
and Defendant Lopez Gonzalez appeared to understand the
conversation he had with Trooper Major.
The only relevant statement defendant made was at the arrest
scene about his wife coming to the jail. Trooper Major stated the
defendant could call his wife later. Defendant Lopez Gonzalez did
not make any calls and did not make a second request to contact his
wife.
Trooper Major followed the requirements of Iowa Code
section 804.20.
Lopez Gonzalez filed a motion to reconsider. Lopez Gonzalez argued the
statement made before entering the elevator was made at the place of detention
and triggered the right to consult pursuant to section 804.20 and no second request
was required. The district court denied the motion to reconsider and confirmed its
ruling on the motion to suppress without further findings.
A trial on the minutes took place on July 13. Lopez Gonzalez was found
guilty of OWI. On January 7, 2019, Lopez Gonzalez was sentenced to five days
in jail, with credit for time served and for completion of an OWI program if
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completed within thirty days. He was also ordered to pay fines, penalties, and
surcharges. Lopez Gonzalez appeals.
II. Standard of Review
“We review a district court’s interpretation of Iowa Code section 804.20 for
errors at law.” State v. Davis, 922 N.W.2d 326, 330 (Iowa 2019) (quoting State v.
Lamoreux, 875 N.W.2d 172, 176 (Iowa 2016)). Rulings on motions to suppress
are affirmed when “the court correctly applied the law and substantial evidence
supports the court’s fact-finding.” Lamoreux, 875 N.W.2d at 176 (quoting State v.
Walker, 804 N.W.2d 284, 289 (Iowa 2011)).
III. Discussion
Lopez Gonzalez argues the brief colloquy with Trooper Major outside the
elevator was sufficient to invoke his right to consult with a family member or
attorney pursuant to Iowa Code section 804.20. Section 804.20 states in relevant
part,
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.
Section 804.20 applies when a defendant has been arrested or otherwise
restrained of liberty and is at a place of detention. State v. Hellstrom, 856 N.W.2d
355, 361 (Iowa 2014). If a defendant makes a valid invocation of the statutory right
under section 804.20 prior to reaching a place of detention, officers must honor the
request “without unnecessary delay after arrival at the place of detention.” State
v. Moorehead, 699 N.W.2d 667, 672 (Iowa 2005) (quoting Iowa Code § 804.20).
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In determining whether a defendant’s rights under section 804.20 have
been adequately invoked, the supreme court has “examined the clarity of the
suspect’s request to determine if the suspect invoked his statutory right.” State v.
Hicks, 791 N.W.2d 89, 94 (Iowa 2010). “[W]hen a suspect ‘restrained of [his]
liberty’ makes a statement that can reasonably be construed as a request to
communicate with family members or an attorney, the suspect has invoked his
section 804.20 right to communicate with family or counsel.” Id. at 95 (second
alteration in original). We liberally construe a defendant’s statements, and
grammatical clarity is not required. Id.
The State concedes Lopez Gonzalez was “restrained of his liberty” at the
time he posed the question. See Moorehead, 699 N.W.2d at 672. There is no
dispute that Trooper Major responded to his question by indicating that Lopez
Gonzalez may want to call his wife later. As testified to by Trooper Major, he
believed the words from Lopez Gonzalez to be a question rather than a statement.
The district court denied the motion to suppress by saying Lopez Gonzalez “did
not make a second request to contact his wife.” This suggests that in the district
court’s view, when Lopez Gonzalez spoke the words, “My wife, she gonna come?”
such was a request by Lopez Gonzalez to contact his wife.
To determine whether Lopez Gonzalez was denied his right to contact a
family member under section 804.20, two distinct inquiries are required. First, we
must determine whether he invoked his rights under section 804.20. Hicks, 791
N.W.2d at 94. Second, we examine whether he was afforded the rights section
804.20 guarantees. Id. We consider these inquiries in turn.
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As set forth by the Iowa Supreme Court, the legislative purpose of section
804.20 is to afford detained suspects the opportunity to communicate with a family
member and attorney. See State v. Vietor, 261 N.W.2d 828, 831. We think the
best way to further this statutory purpose is to liberally construe a suspect’s
invocation of this right. See State v. Effler, 769 N.W.2d 880, 896–98 (Iowa 2009)
(Appel, J., specially concurring); State v. Chew, 695 A.2d 1301, 1317–18 (N.J.
1997). “A detainee’s invocation of section 804.20 should not turn on the
grammatical clarity of the detainee’s request.” Hicks, 791 N.W.2d at 95. Nor do
we believe the statute authorizes law enforcement to make discretionary decisions
as to whether a detainee invoked this statutory right. See State v. Garrity, 765
N.W.2d 592, 596–97 (Iowa 2009).
In order to further the purpose of the statute and ensure suspects are
afforded their statutory right, we hold that when a suspect “restrained of [his]
liberty” makes a statement that can reasonably be construed as a request to
communicate with family members or an attorney, the suspect has invoked his
section 804.20 right to communicate with family or counsel. By providing
detainees this statutory right, the legislature has deemed a detainee’s right to
communicate with family or counsel to be a tolerable burden upon law enforcement
and has found that the creation of this right suitably balances the State’s law
enforcement needs with the rights of the accused. Our construction concerning
the invocation of section 804.20 upholds this balance. See Hicks, 791 N.W.2d at
95.
Once section 804.20 is invoked, the peace officer must provide the detainee
“with a reasonable opportunity” to contact a family member or attorney. Bromeland
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v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997). The district court
concluded in its ruling on April 10, 2018, that Trooper Major allowed defendant to
make phone calls at any time. We disagree with this finding based on our review
of the record. Trooper Major did not direct Lopez Gonzalez to the phone, he did
not ask Lopez Gonzalez for the name and number of his wife, nor did he attempt
to place the phone call for Lopez Gonzalez. No reasonable opportunity to make a
phone call to a family member or meet with a family member was provided as
guaranteed by section 804.20.
By its language, section 804.20 only applies when a suspect is “restrained
of [his] liberty.” As set forth in Hicks, section 804.20 requires law enforcement to
take affirmative action to ensure the request for a phone call is honored. 791
N.W.2d at 96–97. Because of the disparity in power between detaining officers
and detained suspects during the detention process, no lesser standard is
adequate. Requiring a suspect with restrained liberty to affirmatively pick up a
police department’s telephone and contact family or counsel without invitation from
the detaining officer transforms section 804.20 into an illusory statutory right.
Moreover, requiring affirmative action by law enforcement personnel is
consistent with our supreme court precedent. See Bromeland, 562 N.W.2d at 626(holding the police officer provided the detainee a reasonable opportunity after
looking up the phone number of the detainee’s requested attorney and dialing the
attorney’s phone number); Didonato v. Iowa Dep’t of Transp., 456 N.W.2d 367,
371 (Iowa 1990) (“But when a request to make a phone call is made we do not
believe the statutory purpose is met if the officer stands mute and refuses the
request.”). The legislature mandates that law enforcement “shall permit [the
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detainee] . . . to call” a family member or attorney. As set forth in case law
precedent, once section 804.20 is invoked, the detaining officer must direct the
detainee to the phone and invite the detainee to place a call or obtain the phone
number from the detainee and place the phone call. Hicks, 791 N.W.2d at 96–97.
After reviewing the record, including the recording from Trooper Major’s
body microphone, we conclude under the specific facts and circumstances of this
case that Lopez Gonzalez’s question, “My wife, she gonna come?” should have
been reasonably construed as a request to communicate with his wife or see his
wife.
Because Lopez Gonzalez invoked his statutory rights under section 804.20,
he was required to be advised of his right “to call, consult and see” a member of
his family. See Moorehead, 699 N.W.2d at 672. This advisory was not given. The
district court erred in denying Lopez Gonzalez’s motion to suppress. The remedy
for a violation of section 804.20 is exclusion of any evidence gathered after
invocation of the right. Id. at 98. We reverse and remand for a new trial consistent
with this opinion.
REVERSED AND REMANDED FOR A NEW TRIAL.