Amended September 21, 2016 State of Iowa v. John Arthur Senn Jr.

IN THE SUPREME COURT OF IOWA
No. 15–0624
Filed June 24, 2016
Amended September 21, 2016
STATE OF IOWA,
Appellee,
vs.
JOHN ARTHUR SENN JR.,
Appellant.
Appeal from the Iowa District Court for Polk County, Kevin A.
Parker and Gregory D. Brandt, District Associate Judges.
Defendant challenges the constitutionality of Iowa Code section
804.20, contending a right to counsel attached under article I, section 10
of the Iowa Constitution before criminal charges were filed, which
entitled him to a private phone call with counsel before deciding whether
to submit to a chemical breath test. DISTRICT COURT JUDGMENT
AFFIRMED.
Brandon Brown and Tammy Westhoff Gentry of Parrish Kruidenier
Dunn Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, John P. Sarcone, County Attorney, and Maurice Curry,
Assistant County Attorney, for appellee.
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WATERMAN, Justice.
Iowa Code section 804.20 (2013) provides a limited statutory right
to counsel that allows persons who have been arrested to make phone
calls to lawyers or family members and to meet alone and in private with
their lawyer at the place of detention. While the statute allows private in-
person consultations, it permits the police officer or jailer to be present
for the detainee’s phone calls. We must decide whether this statute is
unconstitutional as applied to a person arrested, but not yet formally
charged, for operating a motor vehicle while intoxicated (OWI) who wants
to speak privately by phone with a lawyer before deciding whether to
submit to a chemical breath test.
The defendant in this case, detained for suspicion of drunk driving,
was at the police station on the phone with a lawyer getting advice
regarding the implied-consent procedure 1 and his time-sensitive decision
whether to refuse the breathalyzer test. The arresting officer declined the
defendant’s request for privacy during the phone call but told the
defendant he could have privacy if the lawyer came to the station. No
lawyer arrived in time, and the defendant submitted to the test, which
showed his blood alcohol level at .140. Eleven days later, the State
charged him with OWI, and he moved to suppress the test result,
claiming he was entitled under article I, section 10 of the Iowa
Constitution to a private phone consultation with counsel before
1See Iowa Code § 321J.6 (“A person who operates a motor vehicle in this state
under circumstances which give reasonable grounds to believe that the person has been
operating a motor vehicle [while intoxicated] is deemed to have given consent to the
withdrawal of specimens of the person’s blood, breath, or urine and to a chemical test
or tests of the specimens for the purpose of determining the alcohol concentration or
presence of a controlled substance or other drugs . . . .”).
3
chemical testing. The district court disagreed, and he was convicted. We
retained his appeal.
For the reasons explained below, we conclude that the right to
counsel under the Iowa Constitution, as under the Sixth Amendment to
the United States Constitution, does not attach until formal criminal
charges are filed and had not attached at the time this defendant was
asked to submit to the chemical breath test. Most other state supreme
court decisions are in accord. Because no Iowa or federal constitutional
right to counsel was violated and the defendant’s limited statutory right
to counsel was honored, we affirm the district court’s judgment of
conviction.
I. Background Facts and Proceedings.
In the early morning hours of Labor Day, September 1, 2014,
Officer Brian Cuppy was on patrol in downtown Des Moines when he saw
a truck eastbound on Court Avenue stop for a red light in the middle of
the intersection with Water Street with its “back tires . . . more than five
feet past the cross walk.” Officer Cuppy followed the truck, activated his
police cruiser’s flashing lights, and initiated a traffic stop nearby. The
driver, John Arthur Senn Jr., age twenty-nine, told Officer Cuppy that he
did not realize he had stopped in the middle of the intersection. Officer
Cuppy noted that Senn had bloodshot watery eyes, slurred speech, and a
“staggered gait” and smelled of alcohol. Senn initially denied that he had
been drinking that night. Officer Cuppy administered field sobriety tests,
which Senn failed. Senn then admitted that he had been drinking but
said he had stopped over twenty minutes earlier. Senn took a
preliminary breath test, which showed an alcohol concentration of 0.165,
more than double the legal limit. Senn was arrested for failing to obey
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the traffic control signal and for operating while intoxicated and was
transported to the Des Moines metro police station for chemical testing.
Around 2:30 a.m., Officer Cuppy led Senn to the DataMaster
testing room and gave Senn a copy of the implied-consent advisory.
Senn read the consent. Officer Cuppy then read the advisory aloud to
Senn. Officer Cuppy asked if he had any questions, and Senn replied,
“No sir.” Officer Cuppy then read Senn his statutory rights under Iowa
Code section 804.20. At 2:34 a.m., Officer Cuppy requested a breath
specimen.
Senn asked to call a lawyer. Officer Cuppy remained in the room
while Senn made phone calls. Senn had trouble contacting counsel.
Officer Cuppy offered to let Senn use the phone book. Senn declined.
Around 2:46 a.m., Officer Cuppy asked if Senn was trying to call a lawyer
and offered the phone book again. Senn explained he had a lawyer, but
she had not answered her after-hours phone number. Senn eventually
reached an attorney at 2:49 a.m. Senn, in Officer Cuppy’s presence, told
the attorney on the phone he was being investigated for his “second first”
OWI. Senn explained that his first OWI was “relinquished at the state’s
expense” in 2009 or 2010. Senn answered the attorney’s questions.
Senn then asked Officer Cuppy for “attorney–client privilege please.”
Officer Cuppy responded that he could not have attorney–client privilege
while on the phone but that he could if the attorney came to the jail.
Senn repeated that comment to his attorney. Officer Cuppy explained
that Senn could not be left alone with the phone. Senn then asked
Officer Cuppy if he could have a family member visit. Officer Cuppy said
yes, “as long as they are here in time.”
Senn asked Officer Cuppy why he was stopped. Officer Cuppy
replied it was because he ran a red light. Senn told the attorney that he
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“did not run a red light.” Senn explained to the attorney that he worked
as an electrician, so his license was “imperative” to his work. Officer
Cuppy gave Senn a pen and paper to take notes while he was on the
phone. Senn described his criminal record. Senn asked the attorney to
come to the police station and said he was able to pay for the trip. Senn
offered to pay because he “wanted to make sure he was taken care of.”
Officer Cuppy then said Senn had thirty-two minutes left for private
consultation. Senn said he understood the consequences of his choice to
take or refuse the breathalyzer. Officer Cuppy told Senn this would be
his second revocation. Senn again offered to hire the attorney. Senn
asked Officer Cuppy what time he had been stopped, and Officer Cuppy
replied it had been 2:04 a.m. While Senn was on the phone, he said,
I’d like to expunge any legal options I have at this point
because I was downtown on a good faith gesture picking up
a friend, so it’s not like I was being—obviously I was legally
intoxicated, but . . . . I’m just saying that, yeah.
The attorney was unable to meet with Senn in person. Senn asked
the attorney if he should wait for someone from the firm to come, call a
family member, or do something else. Senn asked for attorney
references, and she gave him some. Their conversation ended at 3:17
a.m. Senn then tried to call the recommended attorneys and left
messages.
Officer Cuppy escorted Senn to the restroom upon his request.
When Senn returned, he called another lawyer and asked Officer Cuppy
for a glass of water. Officer Cuppy explained he could not have any
water until he decided whether he would take the breath test. Senn left
two more voice mails explaining his situation and asking for legal help.
Officer Cuppy told Senn that because of his prior license revocation, this
time his license would be suspended for one year if he failed the test and
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it would be suspended for two years if he refused to take the test. 2 Senn
called a friend to let him know he would be booked soon. He expressed
frustration about not being able to get an attorney to come to the station.
He said he was willing to pay $5000 but no one was willing to come. He
was afraid of losing his job. He said he was “playing for the good team”
and hoped the officer would let him go. At 3:39 a.m., Officer Cuppy told
Senn he had to make a decision. Senn consented to take the
breathalyzer test. At 3:41 a.m., Senn took the test, and his blood alcohol
content was 0.140.
Officer Cuppy submitted a complaint to the county attorney, and it
was approved at 6:14 a.m. Eleven days later, on September 12, Senn
was charged by trial information with operating while intoxicated in
violation of Iowa Code section 321J.2, a serious misdemeanor. On
November 20, Senn filed a motion to suppress, contesting the legality of
the stop, the officer’s compliance with section 804.20, and the
interference with his right to counsel under article I, section 10 of the
Iowa Constitution. Senn argued the phrase “in cases involving the life,
or liberty of an individual,” which does not appear in the Sixth
Amendment, showed the Iowa framers’ intent to provide a broader right
to counsel. Senn argued an implied-consent procedure is a critical stage
of the prosecution under the Iowa Constitution because it involves a
choice that has significant consequences for criminal liability.
The district court held a suppression hearing on December 5. At
the hearing, Senn’s counsel narrowed his motion to the right to counsel
2See Iowa Code §§ 321J.9(1)(b), .12(1)(b).
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under the Iowa Constitution. 3 Senn testified that when he called his
attorney, she advised him to assert his attorney–client privilege. Senn
did, but Officer Cuppy continued to listen to his side of the phone
conversation. Senn admitted on cross-examination that the police officer
told him that he could not have a confidential phone call but that the
attorney could come in person and speak privately with Senn at the
station. He agreed that Officer Cuppy never interrupted the phone call.
On December 10, the district court denied Senn’s motion to
suppress. The ruling stated,
All of the evidence that the defendant wishes to
suppress on constitutional grounds was obtained before
Senn was charged with the offense. The Iowa Constitutional
provision is similar to the U.S. Constitution. This court finds
that the phrase “life or liberty” deals with contempt
situations such as child support, civil infractions or Chapter
229 and Chapter 229A. Therefore, Section 10 does not apply
in this matter and will not provide a basis for excluding any
of the evidence. . . .
Further a request to perform field sobriety tests and
the request to submit to blood tests (includes breath testing)
are not interrogation. Questions normally attendant to
arrest and custody do not constitute interrogation.
State v. Hellstern, [856] N.W.2d [355] (Iowa 2014)
controls in this matter. The Defendant limited his argument
to only the constitutional issue. Therefore, this court will
not address the 804.20 issue.
(Citations omitted.) Following the denial of his motion, Senn waived jury
trial and was convicted on the minutes of testimony. He was fined $1250
plus surcharges and court costs and incarcerated for one year with all
but three days suspended.
We retained Senn’s appeal.
3Thiscourt’s decision in State v. Hellstern, 856 N.W.2d 355, 360–65 (Iowa 2014),
which addressed Iowa Code section 804.20, was filed two weeks before the suppression
hearing.
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II. Standard of Review.
The sole issue on appeal is whether Iowa Code section 804.20, by
permitting the police officer or jailer to be present while a detainee
suspected of drunk driving talks by phone with a lawyer about whether
to submit to chemical testing, violates the right to counsel under article I,
section 10 of the Iowa Constitution. We reiterate our well-established
standard of review:
We review constitutional challenges to a statute de novo. In
doing so, we must remember that statutes are cloaked with a
presumption of constitutionality. The challenger bears a
heavy burden, because it must prove the unconstitutionality
beyond a reasonable doubt. Moreover, “the challenger must
refute every reasonable basis upon which the statute could
be found to be constitutional.” Furthermore, if the statute is
capable of being construed in more than one manner, one of
which is constitutional, we must adopt that 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
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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
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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 N.W.2d at 361 (quoting
State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978)). Senn argues that the
provision in section 804.20 allowing the officer to be present for the
defendant’s phone call with a lawyer is unconstitutional because he was
entitled under article I, section 10 to a private telephone consultation
with his lawyer. We did not reach that constitutional argument in
Hellstern. Id. at 365. In Vietor, we rejected the argument that the right
to counsel under the Sixth Amendment had attached when the arrestee
was asked to submit to the breathalyzer test. 261 N.W.2d at 830. In
Walker, we reiterated that the “Sixth Amendment right to counsel had
not yet attached at the time [the detainee] was asked to perform the
breath test.” 804 N.W.2d at 293. We have also held the right to counsel
under the Iowa and Federal Constitutions does not apply to chemical
testing under administrative implied-consent procedures for revoking
drivers’ licenses. Swenumson v. Iowa Dep’t of Pub. Safety, 210 N.W.2d
660, 662 (Iowa 1973).
A. Constitutional Construction and Relevant Iowa Caselaw.
Article I, section 10 is entitled “Rights of persons accused.” It contains
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two clauses that do not appear in the Sixth Amendment, 4 which are
italicized below:
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.
Iowa Const. art. I, § 10 (emphasis added). In State v. Young, we relied on
the textual differences between the state and federal provisions to hold
that the right to counsel under article I, section 10 applies to
misdemeanor charges with the possibility of imprisonment. 863 N.W.2d
249, 256–57, 281 (Iowa 2015). But we have never held the right to
counsel under the Iowa Constitution attaches before the filing of formal
criminal charges.
To the contrary, we have held the right to counsel under both the
State and Federal Constitutions “attaches at or after the initiation of
adversary proceedings against the defendant, whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.”
State v. Hensley, 534 N.W.2d 379, 382 (Iowa 1995). When deciding at
what stage in a case the right to counsel attaches, “[w]e interpret the
Iowa constitutional provision the same as the Sixth Amendment.” Id. at
4The Sixth Amendment to the United States Constitution, entitled “Jury trials
for crimes, and procedural rights,” states,
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.
U.S. Const. amend. VI.
12
382 n.3; see also State v. Wing, 791 N.W.2d 243, 254 (Iowa 2010)
(Cady, J., dissenting) (“Th[e] reading is the same for the right to a speedy
trial under both the Sixth Amendment to the United States Constitution
and article I, section 10 of the Iowa Constitution because the operative
language of the two provisions is the same.”); 5 State v. Majeres, 722
N.W.2d 179, 182 (Iowa 2006) (“Iowa’s right-to-counsel guarantee affords
no greater protection than the federal constitution . . . .”).
We begin our constitutional analysis with familiar principles of
interpretation:
First and foremost, we give the words used by the framers
their natural and commonly-understood meaning. However,
we may also examine the constitutional history and consider
the object to be attained or the evil to be remedied as
disclosed by the circumstances at the time of adoption.
Star Equip., Ltd. v. Iowa Dep’t of Transp., 843 N.W.2d 446, 457–58 (Iowa
2014) (quoting State v. Briggs, 666 N.W.2d 573, 578 (Iowa 2003)). Our
goal in state constitutional interpretation “is to ascertain the intent of the
framers.” Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012) (quoting
Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004)).
We begin with the plain meaning of the words of article I, section
10, which 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,
5The majority in Wing decided the case based on an interpretation of the speedy
indictment rule and corresponding statutes. Wing, 791 N.W.2d at 246, 249. The
majority noted the state and federal constitutional underpinnings of the speedy
indictment rule but did not rely on constitutional provisions to decide the case. See id.
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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, consistent with our canon of construction noscitur a sociis,
which “summarizes the rule of both language and law that the meanings
of particular words may be indicated or controlled by associated words.”
Peak v. Adams, 799 N.W.2d 535, 547 (Iowa 2011) (quoting 11 Richard A.
Lord, Williston on Contracts § 32:6, at 432 (4th ed. 1999)). This canon
has been “colorfully explained by Lord Macmillan as ‘words of a feather
flock together.’ ” Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d
190, 202 (Iowa 2012) (Cady, J., dissenting) (quoting Hugh Pattison
Macmillan, Rt. Hon. Lord, Law and Language, Presidential Address to
the Holdsworth Club (May 15, 1931)). It makes sense to construe the
right to counsel as attaching when the State files charges in court. That
happened eleven days after Senn submitted to the chemical breath test
on the night of his arrest.
A prosecution is defined as “the commencement, including the
filing of a complaint, and continuance of a criminal proceeding, and
pursuit of that proceeding to final judgment on behalf of the state.” Iowa
Code § 801.4(13); accord State v. Dudley, 766 N.W.2d 606, 617–18 (Iowa
2009) (holding a criminal prosecution for the purposes of the Iowa
Constitution is coextensive with the statutory definition of “prosecution”);
see also Prosecution, Black’s Law Dictionary (10th ed. 2014) (defining
“prosecution” as “[a] criminal proceeding in which an accused person is
tried”). A “case” is a “civil or criminal proceeding, action, suit, or
14
controversy at law or in equity.” Case, Black’s Law Dictionary; see also
Ex parte Grace, 12 Iowa 208, 214 (1861) (holding the legislature cannot
“fritter[] away or [break] down” a party’s rights by creating procedures in
place of “a suit, an action, [or] a trial”). A criminal proceeding does not
begin until a document is filed with the court.
The grammatical subject in article I, section 10 is “the accused.”
An “accused” is “one charged with an offense[, especially] the defendant
in a criminal case.” Accused, Webster’s Third New International
Dictionary (unabr. ed. 2002). The accused’s rights under this section
relate to “the accusation against him.” See Iowa Const. art. I, § 10; see
also State v. Burch, 199 Iowa 221, 228, 200 N.W. 442, 445 (1924)
(holding section 10 “requires the defendant ‘to be informed of the
accusation against him; to have a copy of the same when demanded’
[and t]he word ‘accusation’ manifestly refers to the indictment”).
By contrast, the other sections of article I provide rights more
broadly to “persons” or “the people.” See, e.g., Iowa Const. art. I, §§ 1–4,
7–9, 12 (concerning “persons” and “the people”); id. art. I, § 6 (“citizens”);
id. art. I, § 11 (“defendant”). We may infer from the unique word choice
in section 10—“the accused”—that the framers intended to limit the
rights therein to persons accused in formal criminal proceedings. See
Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 853 (Iowa 2014)
(plurality opinion) (“If the drafters intended the two concepts[—i.e.,
felonies and infamous crimes—]to be coextensive, different words would
not have been used.”).
If we reword section 10 to put the grammatical subject (“the
accused”) first, it reads,
[The accused i]n all criminal prosecutions, and in cases
involving the life, or liberty of an individual . . . shall have a
right to a speedy and public trial by an impartial jury; to be
15
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.
Our caselaw interpreting article I, section 10 follows the foregoing
construction. County of Black Hawk v. Springer, 58 Iowa 417, 418, 10
N.W. 791, 791 (1881) (“[T]his provision applies only to criminal
prosecutions, or accusations for offences against the criminal law, where
it is sought to punish the offender by fine or imprisonment.”); State v.
Collins, 32 Iowa 36, 40 (1871) (holding article I, section 10 “is a clear and
express declaration of the right of the defendant ‘in a criminal
prosecution’ ‘to be confronted with the witnesses against him’ ”
(emphasis omitted)); State v. Polson, 29 Iowa 133, 135 (1870) (“It will be
observed that the right secured by this provision to the accused, to be
confronted with the witnesses against him, is a personal right limited to
proceedings in criminal prosecutions, or where the life or liberty of the
citizen is involved.”).
We have frequently emphasized that article I, section 10 protects
the rights of an “accused.” Atwood v. Vilsack, 725 N.W.2d 641, 650–51
(Iowa 2006) (“It protects only the rights of an ‘accused,’ not the rights of
the individual facing potential civil commitment pursuant to Iowa’s
[sexually violent predator] statute.”); In re Johnson, 257 N.W.2d 47, 53
(Iowa 1977) (McCormick, J., concurring specially) (“Therefore we must
decide without assistance of prior decisions whether a juvenile alleged to
be delinquent is an ‘accused’ in a case involving the life or liberty of an
individual within the contemplation of the framers.”); State v. Sereg, 229
Iowa 1105, 1116, 296 N.W. 231, 236 (1941) (“Section[] 10 . . . of Article I
of the constitution of Iowa provide[s] for certain rights which are
guaranteed to the accused . . . .”), overruled on other grounds by Pitcher v.
16
Lakes Amusement Co., 236 N.W.2d 333, 338 (Iowa 1975); State v.
Henderson, 217 Iowa 402, 407, 251 N.W. 640, 642 (1933) (“The
constitution of this state guarant[e]es to every man accused of a crime
the right to be confronted with the witnesses against him . . . .” (Quoting
State v. Lugar, 115 Iowa 268, 270, 88 N.W. 333, 334 (1901).)); see also
State v. Duncan, 233 Iowa 1259, 1264, 11 N.W.2d 484, 486 (1943)
(Wennerstrum, J., dissenting) (“The question that is uppermost in the
mind of the writer of this dissent is whether or not . . . the trial was
afforded that degree of protection that our state constitution gives to an
individual charged with a crime.” (Emphasis added.)). Accordingly, we
have held that section 10 is not “applicable to [an] administrative
proceeding resulting in [a] license revocation.” Gottschalk v. Sueppel, 258
Iowa 1173, 1179, 140 N.W.2d 866, 869 (1966); 6 see also Swenumson,
210 N.W.2d at 662 (“It is well established that the state and federal
constitutional right to counsel does not apply to an [administrative]
implied consent proceeding.”).
Two of our earliest cases noted that the framers intended article I,
section 10 to provide rights to criminal defendants who are at risk of
incarceration. In Collins, a case decided fourteen years after the
adoption of the provision, our court described this provision as providing
“a clear and express declaration of the right[s] of the defendant ‘in a
criminal prosecution.’ ” 32 Iowa at 40. In Springer, decided twenty-four
years after the adoption of the provision, our court considered a
constitutional challenge to an adjudication of insanity:
6In Gottschalk, the opinion referred to the Iowa counterpart to the Sixth
Amendment of the Federal Constitution as article I, section 9. 140 N.W.2d at 869.
Based on the analysis in the opinion, the court was referring to article I, section 10.
See id. at 869–70.
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It is contended that before a person can be adjudged insane
he is entitled to the safeguards provided for in this section.
But it is clear to us that this provision applies only to
criminal prosecutions, or accusations for offences against
the criminal law, where it is sought to punish the offender by
fine or imprisonment. The inquest of lunacy by a board of
commissioners is in no sense a criminal proceeding. The
restraint of an insane person is not designed as punishment
for any act done. The insane are by the law taken into the
care and custody of the state for treatment for their
unfortunate infirmity. In our opinion, whatever may be
thought of the power of the legislative department of the
state to provide a special tribunal for the examination of
persons alleged to be insane, the safeguards and limitations
provided by our laws for the correction of any abuse which
may arise from the acts of the commissioners are ample for
the protection of the citizen.
58 Iowa at 418, 10 N.W. at 791–92. Senn was not a defendant in a
criminal prosecution when he took the chemical breath test. The State
was not seeking “to punish the offender by fine or imprisonment” when
Officer Cuppy administered the test. See id. Instead, the police were
investigating a crime. The State had not yet committed itself to
prosecution based on the investigation to that point. There was not yet a
prosecution or case against Senn.
We interpreted article I, section 10 again in State v. Newsom, in
which we held that a police agent who started a conversation with a
defendant represented by counsel violated article I, section 10. 414
N.W.2d 354, 359 (Iowa 1987). We tailored our holding to an accused
criminal litigant:
Independent of our sixth amendment analysis, we find that
defendant’s right to counsel under the Iowa Constitution,
article I, section 10, was also violated. In so doing, we rely
on our own interpretation of our state constitution. We
broadly construe this provision to effectuate its purpose,
which was to correct the imbalance between the position of
an accused and the powerful forces of the State in a criminal
prosecution. An accused, especially while in custody, is
vulnerable to the express or implied suggestion that
cooperation with those that hold the keys is in his or her
best interest. Legal counsel can equalize the positions of the
18
criminal litigants, but only if the client is completely free to
follow counsel’s advice. An accused that is represented by
counsel should not be subjected to a tug-of-war between
defense counsel and agents of the State. We hold that our
constitution prohibits agents of the State from initiating any
conversations or dealings with an accused concerning the
criminal charge on which representation of counsel has been
sought. A violation of this prohibition by the State shall
preclude any waiver, by an accused, of the right to counsel.
Id. (emphasis added). Again, this case cuts against Senn. Senn was not
an accused defendant in a criminal prosecution when he was making
phone calls from the police station.
In Young, our court determined that article I, section 10 provides a
right to counsel to persons charged with misdemeanor offenses with
potential incarceration. 863 N.W.2d at 281. We said,
[T]he language of the “all criminal prosecutions” provision of
article I, section 10 is directed toward providing counsel in
order to avoid the risk of conviction, not the risk of
incarceration. And if this choice of language means
anything, it is difficult to avoid the conclusion that the
phrase “all criminal prosecutions” was expressly designed to
avoid judicially imposed slicing and dicing of criminal
prosecutions into two or more categories. The bill of rights of
the Iowa Constitution embraces the notion of “inalienable
rights,” not rights that shrink and disappear based upon
currently fashionable transient pragmatic assessments.
Id. at 278 (citations omitted). We noted,
While it may be that the “cases” language amounts to
constitutional support for a right to counsel in qualifying
civil contexts, it also strongly suggests that if a right to
counsel exists in civil cases in which “liberty” is involved, it
also must exist in criminal prosecutions in which “liberty” is
also at stake.
Id. at 279 (emphasis added). When we discussed the “cases” clause, we
focused on prosecutions, not investigations that precede formal charges.
The State had not filed criminal charges against Senn at the time he was
deciding whether to submit to the chemical breath test. Therefore, he
was not entitled to counsel under article I, section 10.
19
We have only found one case applying article I, section 10 in the
absence of a formal criminal prosecution. In Grace, the court found that
a debtor was unconstitutionally held in contempt after a judge acting
pursuant to a statute put the debtor in jail for refusing to give the money
in his pocket to satisfy a judgment. 12 Iowa at 212. We found the
statute was unconstitutional, holding,
If [the statute’s effects] can be permitted, then we do not see
how far the legislature might not go, in providing for the trial
of issues without a jury, their determination, and for the
imprisonment of the party who failed to comply with the
finding.
Id. at 216. Senn’s argument is not supported by Grace because the
debtor in that case was the civil defendant in the underlying execution
on a judgment. A district court had issued the execution order on the
creditor’s request. In contrast, Senn was not involved with the court
system when he was asked to submit to a chemical breath test.
Therefore, his article I, section 10 rights had not attached.
Our caselaw indicates Senn did not have a right to counsel at the
time of his chemical breath test. However, to answer Senn’s contention
that the right should have attached at that time, we now go on to
consider whether there is any historical support for his claim in the
drafting of the constitutional provision. We will then consider whether
the constitutions and caselaw of other jurisdictions provide any support
for his interpretation of our state constitution.
B. The Drafting History of Article I, Section 10. We next
review the drafting history of article I, section 10 to put its origins in
proper historical context and thereby evaluate Senn’s claim that it was
intended to provide a broader right to counsel than the Sixth
Amendment. As both parties acknowledge, article I, section 10 was hotly
20
debated at Iowa’s constitutional convention. For the sake of
thoroughness, we include a history of all the proposed amendments to
the section to provide context for the introduction of the additional
language that was introduced into our constitution. Our review of this
history provides no support for the view that the framers intended the
right to counsel to attach before a case is filed in court.
The rights guaranteed by Iowa’s first ratified constitution stated,
In all criminal prosecutions, the accused shall have a right
to a speedy trial by an impartial jury; to be informed of the
accusation against him; to be confronted with the witnesses
against him; to have compulsory process for his own
witnesses, and to have the assistance of counsel.
Iowa Const. art. II, § 10 (1846). The first proposed amendment to this
provision in 1856 altered an accused’s trial rights as follows:
In all criminal prosecutions, the accused shall have a right
to a speedy trial, before an impartial jury, of the county or
district in which the offense is alleged to have been
committed, to demand the nature and cause of the accusation
against him, to be confronted by the witnesses against him,
to have compulsory process for his own witnesses, and to
have the assistance of counsel.
1 The Debates of the Constitutional Convention of the State of Iowa 102
(W. Blair Lord rep. 1857) [hereinafter The Debates],
www.statelibraryofiowa.org/services/collections/law-library/iaconst
(emphasis added). The proposed section gave “an accused party the right
to be tried . . . where he is likely to have a more fair and impartial trial,
than if taken to a distant part of the state.” Id.
Mr. Harris then moved to amend the provision as follows:
In all criminal prosecutions, the accused shall have a right
to a speedy trial before an impartial jury, of the County or
District in which the offense is alleged to have been
committed; to demand the nature and cause of the
accusation against him, and a copy thereof; to be confronted
by the witnesses against him, to have compulsory process
21
for his own witnesses, and to have the assistance of counsel:
Provided this section shall not be construed to prevent the
General Assembly from passing laws ordering a change of
venue from one district to another.
Id. at 119 (emphasis added). Harris explained that this amendment was
intended to ensure that an accused could change venue when it was
necessary, and he “would not have a man depend upon the courtesy of
the court for a copy of the indictment, but give him the power to demand
it as a matter of right.” Id. at 119–20. This proposal generated vigorous
debate. See id. at 119–23. Mr. Clark, a vocal proponent of the
Committee’s original amendment, argued the purpose of the amendment
was “to place a safeguard around the rights of persons accused of crime.”
Id. at 122. Clark was concerned that under the old constitution “the
legislature might pass a law . . . under which a man might be dragged
against his will to some other county than that in which the offence is
alleged to have been committed” for trial. Id. at 122. Mr. Clarke 7 stated
the purpose of the amendments to section 10 were “for the benefit and to
protect those charged with crime.” Id. at 123. However, the Committee
on Preamble and Bill of Rights did not agree with Harris’s additional
amendment because “those who are charged with crime” were already
afforded that right under other provisions of the constitution. Id. at 124.
Clark submitted an additional amendment to section 10, which
states in relevant part:
In all criminal prosecutions, and in all cases involving the life
or liberty of an individual, the accused shall have a right to a
speedy and public trial before an impartial jury, of the
County or District in which the offense is alleged to have
7There were two men named Mr. Clarke and one named Mr. Clark at the Iowa
convention. Mr. Clark of Allamakee County and Mr. Clarke of Henry County actively
debated article I, section 10 of the Iowa Constitution. See generally 1 The Debates, at
119–22.
22
been committed; to demand the nature and cause of the
accusation against him, and have a copy of the same when
demanded; to be confronted by the witnesses against him, to
have compulsory process for his own witnesses, and to have
the assistance of counsel.
Id. at 201. Harris moved to strike the language “and in all cases
involving the life or liberty of an individual.” 2 The Debates, at 736.
Harris said that phrase would come into play in “two classes of cases . . .
in which . . . a person would not be entitled to a jury trial in this state.”
Id. First, he was concerned that a “fugitive from justice” who had
committed a crime in another state and fled into Iowa to be arrested
would be entitled to a trial here. Id. Harris believed that interpretation
would “come into conflict with the constitution of the United States.” Id.
Harris also believed the phrase would have ramifications for fugitive
slaves in the state:
I understand that this provision is inserted for the purpose
of providing that instead of the fugitive slave having the trial
by jury where his labor may be due, he shall have the trial
here; which would be equivalent to saying at once, that any
slave in the territory of this state shall have the right to
assert his freedom, and cannot be remanded back into
slavery.
Id. Clark first responded to Harris’s concerns by stating that he believed
the added language was duplicative of the United States Constitution’s
guarantee of due process of law. Id. at 737. Clark also denied that the
section would allow another state’s fugitive from justice to be tried in
Iowa:
The provision says that he shall not be deprived of liberty;
that is, upon the final trial. It is upon the trial which is to
settle for all coming time the question as to his right to
liberty in that case. It is the final trial, the trial provided by
law, according to the common laws, when the case is heard,
the jury is [empaneled], and the verdict is pronounced. It
has no reference to his being arrested in preparation for trial.
Are not persons arrested every day for the purpose of
23
examination, to ascertain whether there is proper cause for
retaining them until they shall be put on final trial?
Id. (emphasis added). But he confirmed that the language was intended
to protect fugitive slaves from being tried out of state, which he viewed as
an affront to Iowa’s inherent sovereignty:
I hold that unless we have the right to make a constitution
which will secure me the right of jury trial, if I am claimed as
a fugitive slave, without that right we are not a sovereign
people. Without that right we cannot protect every
individual member of society. Without that right we cease to
be a sovereignty, and become dependent upon some other
power. . . . And if I am [claimed as a fugitive slave and]
found within the jurisdiction of this State, it is a principle of
sovereignty, that if I am arraigned upon a charge that I do
not own myself, that I am not a free man, I have the right to
a trial here where I am found; and the laws of the State
should guarantee to me that right . . . I do not care whether
the case is probable or not.
Id. Clark acknowledged that the language may conflict with the Federal
Fugitive Slave Act of 1850 but argued that even if it did, the courts would
refuse to give the provision effect “because the higher law, the law of the
United States, will override the provisions of our constitution.” Id. at
738.
Mr. Wilson also spoke in support of the amendment by arguing
that the country’s founding fathers would support this philosophy and
Harris’s fears were unfounded. Id. at 739. Wilson said, “I well know that
there was a time in the history of this country when men were not afraid
to say, that in all cases involving life or liberty, man should be entitled to
trial by jury.” Id. He argued that the “sooner we assert our
determination to stand by the principles of the Fathers, the better for our
country, the better for ourselves, the better for posterity.” Id. Wilson
argued that territorial jurisdiction prevented a fugitive from justice from
being tried by an Iowa court because the underlying “crime cannot be
punished excepting by the courts of the State having jurisdiction of the
24
offence.” Id. He said a different jurisdictional rule controlled a fugitive
slave captured in Iowa:
[Y]ou do not charge upon a man the commission of any
crime, and the charge is brought primarily against the man
in the State where he is sought to be reclaimed. If you bring
a charge against a man for having escaped from service or
labor due in another State, your charge is primary in its
character, and is brought where you find the man. What is
the presumption of law in that case? The presumption is
that every man is a freeman until he is shown to be a slave.
Where are you to determine that? Under the jurisdiction
where the charge is brought, and not, as in the [fugitive-
from-justice] case, under the jurisdiction where the crime
was committed.
Id. Following this discussion, Harris’s proposed deletion of “and in all
cases involving the life or liberty of an individual” was rejected by a vote
of 21 to 14. Id. at 741.
There can be no “doubt from the convention record that the
disputed language was added to Art. I[, section] 10 in an effort to nullify
the Fugitive Slave Act by giving persons accused as escaped slaves the
right to jury trial in Iowa.” Johnson, 257 N.W.2d at 54 (McCormick, J.,
concurring specially). Slave owners were required to go through a formal
proceeding to pursue a fleeing slave under the Fugitive Slave Act of 1850.
See Act of Sept. 18, 1850, ch. 60, § 4, 9 Stat. 462 (repealed 1864)
(requiring “satisfactory proof” to pursue a fugitive slave). 8 To the extent
that the framers intended to extend the rights provided under this
8The Fugitive Slave Act of 1850 required slave owners to provide “satisfactory
proof” before a slave could be “reclaimed” from another jurisdiction. See Act of
Sept. 18, 1850, ch. 60, § 4 (requiring satisfactory proof); id. § 6 (allowing slave owners
to “pursue and reclaim” fugitive slaves). Although the Act permitted commissioners to
determine whether a slave could be “reclaimed,” the commissioners were “authorized to
exercise the powers that any justice of the peace, or other magistrate of any of the
United States, may exercise in respect to offenders for any crime or offense against the
United States,” including the “power to . . . take acknowledgements of bail and
affidavits, and to take depositions of witnesses in civil causes.” Id. §§ 1–2, 4.
25
section, the additional breadth provided by the “cases” clause refers to a
right to a jury trial in a pending court case. See Grace, 12 Iowa at 213
(“We can not believe that [the change in section 10 of the Bill of Rights]
was intended to give the right of trial by jury to the occasional fugitive
slave found in our State, and to withhold it in cases of equal magnitude
and vital importance, from the half million of free white inhabitants of
the State.”). The framers consistently and exclusively focused on the
rights of persons who had already entered the court system. The
historical record for article I, section 10 shows that the framers intended
the right to counsel to apply only after pleadings have been filed in court
to commence a case or criminal proceeding.
C. Other Jurisdictions. We next examine decisions applying the
right to counsel under similar constitutional provisions of other
jurisdictions. First, we review federal precedent applying the Sixth
Amendment right to counsel. Second, we consider how other state
courts have applied the Sixth Amendment in implied-consent
proceedings. Third, we survey the jurisdictions that have analyzed the
right to counsel under state constitutional provisions. We conclude that
no jurisdiction has provided a full constitutional right to counsel for
implied-consent proceedings. We decline to follow the distinct minority
of courts that recognize a limited state constitutional right to counsel for
chemical breath tests before a formal criminal charge has been filed.
1. United States Supreme Court precedent regarding the right to
counsel. Federal jurisprudence developed to address the unrepresented
accused’s inability to effectively present a defense in the court system:
Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with
26
the rules of evidence. Left without the aid of counsel he may
be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though
he have a perfect one. He requires the guiding hand of
counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his
innocence.
Powell v. Alabama, 287 U.S. 45, 64, 53 S. Ct. 55, 69, 77 L. Ed. 158, 170
(1932) (emphasis added).
The Supreme Court provided safeguards to ensure the right to
counsel is more than an empty right. Under the Sixth Amendment right
to counsel, a person is entitled to effective assistance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693 (1984). The right to counsel includes the right to have counsel
appointed at government expense if the defendant is indigent. Gideon v.
Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796–97, 9 L. Ed. 2d 799,
805 (1963). A defendant who is not indigent is entitled to “choose who
will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144,
126 S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 416 (2006). Moreover, the
right to counsel may not be abandoned without a knowing and intelligent
waiver of that right. Johnson v. Zerbst, 304 U.S. 458, 463–64, 58 S. Ct.
1019, 1022–23, 82 L. Ed. 1461, 1466 (1938).
The Supreme Court employs a two-part test to determine whether
the accused has a right to counsel. First, the right must have attached,
which means that “formal judicial proceedings have begun.” Rothgery v.
Gillespie County, 554 U.S. 191, 211, 128 S. Ct. 2578, 2591, 171
L. Ed. 2d 366, 382 (2008). Second, it must be a “critical stage” of the
prosecution. See id. (“If, indeed, the County had simply taken the cases
at face value, it would have avoided the mistake of merging the
27
attachment question (whether formal judicial proceedings have begun)
with the distinct ‘critical stage’ question (whether counsel must be
present at a postattachment proceeding unless the right to assistance is
validly waived).”).
In United States v. Wade, a defendant argued he had a right to
counsel during a postindictment lineup at a courtroom. 388 U.S. 218,
220, 87 S. Ct. 1926, 1928–29, 18 L. Ed. 2d 1149, 1153 (1967). During
the lineup, each person wore strips of tape like the ones worn by the
robber and were forced to say something like “put the money in the bag.”
Id. The Court explained that the Sixth Amendment right to counsel is
not limited to the trial:
[I]n addition to counsel’s presence at trial, the accused is
guaranteed that he need not stand alone against the State at
any stage of the prosecution, formal or informal, in court or
out, where counsel’s absence might derogate from the
accused’s right to a fair trial. The security of that right is as
much the aim of the right to counsel as it is of the other
guarantees of the Sixth Amendment—the right of the
accused to a speedy and public trial by an impartial jury, his
right to be informed of the nature and cause of the
accusation, and his right to be confronted with the witnesses
against him and to have compulsory process for obtaining
witnesses in his favor. The presence of counsel at such
critical confrontations, as at the trial itself, operates to
assure that the accused’s interests will be protected
consistently with our adversary theory of criminal
prosecution.
Id. at 226–27, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1157 (footnotes omitted)
(emphasis added). The Court focused on “whether potential substantial
prejudice to defendant’s rights inheres in the particular confrontation
and the ability of counsel to help avoid that prejudice.” Id. at 227, 87
S. Ct. at 1932, 18 L. Ed. 2d at 1157.
The Wade Court found a right to counsel because there was “grave
potential for prejudice, intentional or not, in the pretrial lineup, which
28
may not be capable of reconstruction at trial, and [because] presence of
counsel itself can often avert prejudice and assure a meaningful
confrontation at trial.” Id. at 236, 87 S. Ct. at 1937, 18 L. Ed. 2d at
1162. “Thus both Wade and his counsel should have been notified of the
impending lineup, and counsel’s presence should have been a requisite
to conduct of the lineup, absent an ‘intelligent waiver.’ ” Id. at 237, 87
S. Ct. at 1937, 18 L. Ed. 2d at 1163.
But the Court agreed with the government that gathering scientific
evidence does not implicate the right to counsel:
[A] mere preparatory step in the gathering of the
prosecution’s evidence [is] not different—for Sixth
Amendment purposes—from various other preparatory
steps, such as systematized or scientific analyzing of the
accused’s fingerprints, blood sample, clothing, hair, and the
like. We think there are differences which preclude such
stages being characterized as critical stages at which the
accused has the right to the presence of his counsel.
Knowledge of the techniques of science and technology is
sufficiently available, and the variables in techniques few
enough, that the accused has the opportunity for a
meaningful confrontation of the Government’s case at trial
through the ordinary processes of cross-examination of the
Government’s expert witnesses and the presentation of the
evidence of his own experts. The denial of a right to have his
counsel present at such analyses does not therefore violate
the Sixth Amendment; they are not critical stages since there
is minimal risk that his counsel’s absence at such stages
might derogate from his right to a fair trial.
Id. at 227–28, 87 S. Ct. at 1932–33, 18 L. Ed. 2d at 1157–58. In our
view, the DataMaster breathalyzer test is an example of scientific
evidence gathering.
In Kirby v. Illinois, the Court refused to extend the right to counsel
to routine police investigations preceding indictment. 406 U.S. 682,
689–90, 92 S. Ct. 1877, 1882–83, 32 L. Ed. 2d 411, 417–18 (1972)
(plurality opinion). Thomas Kirby and Ralph Bean were arrested for
carrying traveler’s checks and a Social Security card bearing the name of
29
Willie Shard. Id. at 684, 92 S. Ct. at 1879–80, 32 L. Ed. 2d at 414–15.
The two men claimed they had “won them in a crap game.” Id. at 684,
92 S. Ct. at 1880, 32 L. Ed. 2d at 415. Police officers arrested them and
brought them to the police station. Id. When they reached the police
station, the officers learned that Willie Shard had reported a robbery the
day before. Id. at 684, 92 S. Ct. at 1879–80, 32 L. Ed. 2d at 415. Police
brought Shard to the station to observe Bean and Kirby. Id. at 684, 92
S. Ct. at 1880, 32 L. Ed. 2d at 415. Shard identified them as the
robbers. Id. at 684–85, 92 S. Ct. at 1880, 32 L. Ed. 2d at 415. Kirby
and Bean were indicted six weeks later. Id. at 685, 92 S. Ct. at 1880, 32
L. Ed. 2d at 415. After they were convicted, they appealed on the ground
that they had a right to counsel at the meeting with Shard at the police
station. Id. at 686–87, 92 S. Ct. at 1881, 32 L. Ed. 2d at 416.
The Court affirmed their convictions. Id. at 691, 92 S. Ct. at 1883,
32 L. Ed. 2d at 419. The Court refused to extend Wade and focused on
whether the right to counsel had attached:
The initiation of judicial criminal proceedings is far
from a mere formalism. It is the starting point of our whole
system of adversary criminal justice. For it is only then that
the government has committed itself to prosecute, and only
then that the adverse positions of government and defendant
have solidified. It is then that a defendant finds himself
faced with the prosecutorial forces of organized society, and
immersed in the intricacies of substantive and procedural
criminal law. It is this point, therefore, that marks the
commencement of the “criminal prosecutions” to which alone
the explicit guarantees of the Sixth Amendment are
applicable.
In this case we are asked to import into a routine
police investigation an absolute constitutional guarantee
historically and rationally applicable only after the onset of
formal prosecutorial proceedings. We decline to do so. Less
than a year after Wade and Gilbert were decided, the Court
explained the rule of those decisions as follows: “The
rationale of those cases was that an accused is entitled to
counsel at any ‘critical stage of the prosecution,’ and that a
post-indictment lineup is such a ‘critical stage.’ ” We decline
30
to depart from that rationale today by imposing a per se
exclusionary rule upon testimony concerning an
identification that took place long before the commencement
of any prosecution whatever.
Id. at 689–90, 92 S. Ct. at 1882–83, 32 L. Ed. 2d at 417–18 (emphasis
added) (footnote omitted) (citations omitted) (quoting Simmons v.
United States, 390 U.S. 377, 382–83, 88 S. Ct. 967, 970, 19 L. Ed. 2d
1247, 1252 (1968)).
In United States v. Ash, the Court considered whether a
postindictment photographic lineup shown to four witnesses was a
critical stage in the prosecution. 413 U.S. 300, 300–01, 93 S. Ct. 2568,
2569, 37 L. Ed. 2d 619, 621 (1973). The Court explained that the
critical-stage analysis “call[s] for examination of the event in order to
determine whether the accused required aid in coping with legal
problems or assistance in meeting his adversary.” Id. at 313, 93 S. Ct. at
2575, 37 L. Ed. 2d at 628. Ash was not present during the photographic
display and had no right to be present, so “no possibility ar[ose] that the
accused might [have been] misled by his lack of familiarity with the law
or overpowered by his professional adversary.” Id. at 317, 93 S. Ct. at
2577, 37 L. Ed. 2d at 631. The Court held there was no “right to counsel
at photographic displays conducted by the Government for the purpose
of allowing a witness to attempt an identification of the offender.” Id. at
321, 93 S. Ct. at 2579, 37 L. Ed. 2d at 633.
In United States v. Gouveia, the Supreme Court held a prison
inmate does not have a right to a court-appointed attorney while in an
administrative detention before an official indictment is filed. 467 U.S.
180, 192–93, 104 S. Ct. 2292, 2300, 81 L. Ed. 2d 146, 157 (1984).
Prison officials suspected Adolpho Reynoso and William Gouveia had
murdered a fellow inmate. Id. at 182–83, 104 S. Ct. at 2294, 81
31
L. Ed. 2d at 150. Reynoso and Gouveia were placed in an administrative
detention unit for approximately nineteen months without appointed
counsel. Id. at 182–83, 104 S. Ct. at 2294–95, 81 L. Ed. 2d at 150–51.
During their time in administrative detention “prison officials held
disciplinary hearings” and determined that the respondents had
participated in the murder. Id. While in administrative detention, “their
participation in various prison programs was curtailed, [but] they were
still allowed regular visitation rights, exercise periods, access to legal
materials, and unmonitored phone calls.” Id. at 183, 104 S. Ct. at 2295,
81 L. Ed. 2d at 151. A similar procedure was used before Robert Mills
and Richard Pierce were indicted for a separate inmate murder. Id. at
184, 104 S. Ct. at 2295, 81 L. Ed. 2d at 151.
The Court held there was no right to a court-appointed attorney
because the government had not initiated adversarial judicial
proceedings. Id. at 192, 104 S. Ct. at 2300, 81 L. Ed. 2d at 157. The
court said, “[O]ur cases have long recognized that the right to counsel
attaches only at or after the initiation of adversary judicial proceedings
against the defendant.” Id. at 187, 104 S. Ct. at 2297, 81 L. Ed. 2d at
153. The Court explained that the attachment timing was justified by
the plain language of the Sixth Amendment and fulfilled the purpose for
the amendment, and it distinguished the cases in which attachment
occurred prior to trial:
[G]iven the plain language of the Amendment and its
purpose of protecting the unaided layman at critical
confrontations with his adversary, our conclusion that the
right to counsel attaches at the initiation of adversary
judicial criminal proceedings “is far from a mere formalism.”
It is only at that time “that the government has committed
itself to prosecute, and only then that the adverse positions
of government and defendant have solidified. It is then that
a defendant finds himself faced with the prosecutorial forces
32
of organized society, and immersed in the intricacies of
substantive and procedural criminal law.”
Id. at 188–89, 104 S. Ct. at 2297–98, 81 L. Ed. 2d at 154–55 (citation
omitted) (quoting Kirby, 406 U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d
at 418).
In Rothgery, the Court gave further guidance on when a
prosecution commences. 554 U.S. at 213, 128 S. Ct. at 2592, 171
L. Ed. 2d at 383. Walter Rothgery was arrested based on an erroneous
record that he had been convicted of a felony. Id. at 195, 128 S. Ct. at
2581, 171 L. Ed. 2d at 372. Rothgery was brought before a magistrate
because the officers did not have an arrest warrant. Id. at 195, 128
S. Ct. at 2581, 171 L. Ed. 2d at 373. The arresting officer submitted an
affidavit that claimed that Rothgery was charged with a felony. Id. at
196, 128 S. Ct. at 2582, 171 L. Ed. 2d at 373. The magistrate
determined there was probable cause for the arrest and set a $5000
bond. Id. Rothgery posted the bond, which stated that “Rothgery stands
charged by complaint.” Id. Rothgery did not have money for a lawyer,
and his requests for one were denied. Id. Six months later, a lawyer was
appointed for Rothgery, who assembled the relevant paperwork and
relayed the information to the district attorney, who dismissed the
indictment. Id. at 196–97, 128 S. Ct. at 2581, 171 L. Ed. 2d at 373.
The Court reiterated the right to counsel “does not attach until a
prosecution is commenced.” Id. at 198, 128 S. Ct. at 2582, 171
L. Ed. 2d at 374 (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111
S. Ct. 2204, 2207, 115 L. Ed. 2d 158, 166 (1991)). A prosecution
commences at “the initiation of adversary judicial criminal proceedings—
whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Id. (quoting Gouveia, 467 U.S. at 188, 104
33
S. Ct. at 2297, 81 L. Ed. 2d at 154). The Court held the prosecution had
commenced against Rothgery when he was brought before the judicial
magistrate because
an accusation filed with a judicial officer is sufficiently
formal, and the government’s commitment to prosecute it
sufficiently concrete, when the accusation prompts
arraignment and restrictions on the accused’s liberty to
facilitate the prosecution. From that point on, the defendant
is “faced with the prosecutorial forces of organized society,
and immersed in the intricacies of substantive and
procedural criminal law” that define his capacity and control
his actual ability to defend himself against a formal
accusation that he is a criminal. By that point, it is too late
to wonder whether he is “accused” within the meaning of the
Sixth Amendment, and it makes no practical sense to deny
it.
Id. at 207, 128 S. Ct. at 2589, 171 L. Ed. 2d at 380 (citations omitted)
(quoting Kirby, 406 U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 418).
It is irrelevant whether a public prosecutor is aware or involved in the
initiated proceedings. Id. at 194–95, 128 S. Ct. at 2581, 171 L. Ed. 2d at
372. In sum, the Court concluded
a criminal defendant’s initial appearance before a judicial
officer, where he learns the charge against him and his
liberty is subject to restriction, marks the start of adversary
judicial proceedings that trigger attachment of the Sixth
Amendment right to counsel.
Id. at 213, 128 S. Ct. at 2592, 171 L. Ed. 2d at 383.
The Supreme Court has never held that the Sixth Amendment
provides a right to counsel before submitting to chemical testing. 9 The
9In Missouri v. McNeely, the United States Supreme Court held “that in drunk-
driving investigations, the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test without
a warrant” under the Fourth Amendment. 567 U.S. ___, ___, 133 S. Ct. 1552, 1568,
185 L. Ed. 2d 696, 715 (2013). The Court said that “a compelled physical intrusion
beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as
evidence in a criminal investigation . . . implicate[d] an individual’s ‘most personal and
deep-rooted expectations of privacy.’ ” Id. at ___, 133 S. Ct. at 1558, 185 L. Ed. 2d at
34
Court was presented with the question in 1985 but dismissed the appeal
for want of a federal question over two dissenting justices. Nyflot v.
Minnesota Comm’r of Pub. Safety, 474 U.S. 1027, 1027, 106 S. Ct. 586,
586, 88 L. Ed. 2d 567, 567 (1985) (mem.). In Roberts v. State, the
United States Court of Appeals for the First Circuit concluded that a
driver did not have the right to counsel during an implied-consent
proceeding
because the police were still waiting for the outcome of their
investigation—either from the results of the blood/alcohol
test or from the fact of defendant’s refusal to submit to the
test—before deciding whether or not to bring charges against
the defendant. The government had not yet crossed the
constitutional divide between investigator and accuser. As a
threshold matter, the right to counsel had not yet attached
when [the defendant’s] request for counsel was denied . . . .
48 F.3d 1287, 1291 (1st Cir. 1995). Senn cites no federal authorities to
the contrary.
2. State cases applying the federal constitutional right to counsel.
We next turn to state cases applying the federal right to counsel. We
begin with our own state. In Walker, we held the “Sixth Amendment
right to counsel had not yet attached at the time [the detainee] was asked
to perform the breath test.” 804 N.W.2d at 293. We held in Vietor there
was no violation of the arrestee’s Sixth Amendment right to counsel when
evidence of his uncounseled test refusal was admitted at trial. 261
_________________________
704 (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 1616, 84 L. Ed. 2d
662, 668 (1985)); see also Birchfield, 579 U.S. at ___, 136 S. Ct. at 2165 ___ L. Ed. 2d at
___ (“The impact of breath tests on privacy is slight . . . . Blood tests are significantly
more intrusive, and their reasonableness must be judged in light of the availability of
the less invasive alternative of a breath test.”). Senn has not raised any Fourth
Amendment challenge and submitted to a breath test, not a blood draw. Therefore,
McNeely is inapposite.
35
N.W.2d at 830. In other cases, we explained why the right does not
attach before formal criminal charges are filed.
In State v. Johnson, the police filed a complaint against Kevin
Johnson for abandonment of a dependent person after his wife reported
their child missing. 318 N.W.2d 417, 420, 427 (Iowa 1982). At 3:55
p.m., police officers arrested Johnson, Mirandized him, and asked him
questions about the child. Id. at 427. Johnson’s attorney called and
interrupted the interview to speak with him. Id. at 428. At 4:30 p.m.,
Johnson’s attorney came to the jail and spoke with the police and the
defendant. Id. A few hours later, his wife told the police that the child
was dead and buried in a wooded area. Id. When the police were unable
to find the child’s body, they interrogated Johnson, who made
statements about the burial. Id. Johnson appealed, alleging in part that
he was denied his Sixth Amendment right to counsel during the second
interview. Id.
We concluded that Johnson was denied his right to counsel in the
second interview:
An accusatory instrument in the form of a complaint had
been filed requesting that a warrant issue for defendant’s
arrest and that defendant be dealt with according to law.
The county attorney’s involvement in filing the complaint
and procuring the warrant focused the prosecutorial forces
on defendant. Given the significant level of prosecutorial
involvement at this stage of the case, defendant’s arrest can
hardly be characterized as purely investigatory in nature.
The forces of the State had solidified in a position adverse to
defendant, at least with respect to the abandonment charge
growing out of the incident.
Id. at 434–35 (citations omitted).
Unlike the prosecutorial forces at play in Johnson, the implied-
consent procedure was investigatory here. The State was not yet
36
committed to prosecuting Senn. The county attorney was not involved,
and no charging papers were filed with the court for another eleven days.
The Kansas Supreme Court refused to find a right to counsel
during chemical testing because it was not a critical stage in the
prosecution. State v. Bristor, 691 P.2d 1, 5 (Kan. 1984). The Bristor
court recognized that a driver faces serious consequences from a
chemical breath test and that “the advice of counsel can be useful
because a driver may be dazed as a result of the alcohol, an accident, or
both.” Id. But the court concluded that “[n]ot every evidence-gathering
procedure is a critical stage.” Id.
The Maine Supreme Court reached a similar conclusion based on
the autonomous nature of choosing whether or not to take a test:
There is little counsel could do in making a test decision (or,
even, during the administration of the test) for the
defendant. The test is, in fact, a “mere preparatory step”; the
officers, short of using improper test administration
procedures or tampering with the specimen, can do nothing
to impair the defendant’s subsequent fair trial. If the officers
do engage in such improper conduct, the defendant can
effectively confront that aspect of the Government’s case at
trial.
State v. Jones, 457 A.2d 1116, 1118 n.5 (Me. 1983).
The New Mexico Court of Appeals held no right to counsel had
attached when the driver submitted to a breath test:
We are not unmindful of the issues defendants raise
regarding the practical effect of failing a [breath alcohol test],
being issued a citation and having the narrative portion of a
charging instrument filled out by the arresting police officer.
While it may be true that this combination of occurrences
leads to State prosecution in a high percentage of cases, it
does not of itself amount to the kind of prosecutorial
commitment which the United States Supreme Court has
recognized as implicating the sixth amendment.
State v. Sandoval, 683 P.2d 516, 519 (N.M. Ct. App. 1984).
37
Senn has cited no decisions extending the Sixth Amendment right
to counsel to a driver’s decision to submit to a chemical breath test
before formal criminal charges are filed. The authorities are unanimous
that such a right has not yet attached under the Sixth Amendment.
3. Jurisdictions with no state constitutional right to counsel during
implied-consent proceedings. The 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.10
10See, e.g., Rackoff v. State, 637 S.E.2d 706, 708–09 (Ga. 2006) (“Rackoff was
not entitled to consult with a lawyer before deciding whether to submit to a breath test
under the Sixth Amendment or the Georgia Constitution.”); State v. Severino, 537 P.2d
1187, 1189 (Haw. 1975) (“[A] motorist is not entitled to consult with counsel before
deciding to submit to the chemical test prescribed by the implied consent statute.”);
Commonwealth v. Brazelton, 537 N.E.2d 142, 143 (Mass. 1989) (“The moment at which
a person must decide to take or to refuse to take a breathalyzer test is not a critical
stage in the criminal process.”); State v. Armfield, 693 P.2d 1226, 1228 (Mont. 1984)
(“Neither the United States nor Montana constitutions guarantee a defendant the
opportunity to seek an attorney’s advice before deciding whether to submit or not to
submit to a blood alcohol test.”), abrogated on other grounds by State v. Reavley, 79
P.3d 270, 279 (Mont. 2003); Wiseman v. Sullivan, 211 N.W.2d 906, 910 (Neb. 1973) (“[A]
driver who has been arrested for operating a motor vehicle upon a public street or
highway while under the influence of intoxicating liquor is not entitled under either the
federal or state Constitutions or the implied consent statute to consult with a lawyer
previous to giving a sample of blood, breath, or urine under the implied consent act, or
to have a lawyer present during the giving of the sample.”); State v. Leavitt, 527 A.2d
403, 407 (N.J. 1987) (holding “[n]o provision of the New Jersey Constitution or statutes
furnishes” the guarantee to assistance of counsel when “a motorist [is] requested to
furnish a breath or blood sample”); State v. Howren, 323 S.E.2d 335, 336–37 (N.C.
1984) (holding the right to counsel had not attached under either the United States or
North Carolina Constitutions, reasoning that “[t]he fact that as a matter of grace the
legislature has given defendant the right to refuse to submit to chemical analysis, and
suffer the consequences for refusing, does not convert this step in the investigation into
a critical stage in the prosecution”); Commonwealth v. McCoy, 975 A.2d 586, 591 (Pa.
2009) (“Submission to a chemical test upon being stopped for suspected DUI is an
evidence-gathering circumstance, prior to the filing of any formal adversarial judicial
proceedings, and as such does not constitute a critical stage for purposes of the right to
counsel.”); Dunn v. Petit, 388 A.2d 809, 812 (R.I. 1978) (“[W]e reject petitioners’
argument that there is a [state or federal] constitutional right to counsel at the moment
of decision concerning submission to a breathalyzer test . . . .”); State v. Frasier, 914
S.W.2d 467, 471 (Tenn. 1996) (“[W]e hold that a person arrested without a warrant on a
reasonable suspicion of DUI does not have a due process right under the Tennessee
Constitution to consult with an attorney before making the decision.”); Mogard v. City of
Laramie, 32 P.3d 313, 325 (Wyo. 2001) (affirming a “bright-line” rule that right to
38
Most states follow the federal right-to-counsel attachment standard
under their state constitutional provision. 11 The Pennsylvania Supreme
Court surveyed precedent nationwide 12 when it expressly declined to find
a broader right to counsel under the Pennsylvania Constitution: 13
_________________________
counsel “under the Sixth Amendment and Wyo[ming] Constitution art. I, § 10 is only
required once charges are filed” and does not “extend to the time at which [an] arrestee
is deciding whether to submit to chemical testing”); cf. Law v. City of Danville, 187
S.E.2d 197, 198 (Va. 1972) (“[D]enial of the right to consult with counsel before an
accused decides whether to take a blood test does not violate the Sixth Amendment . . .
[n]or . . . impair an accused’s right . . . guaranteed by . . . the State Constitution.”).
11See, e.g., People v. Anderson, 842 P.2d 621, 622 & n.4 (Colo. 1992) (en banc)
(citing the federal standard and noting “[w]e have adopted the same test for determining
whether the right to counsel attaches under article II, section 16 of the Colorado
Constitution”); Rackoff, 637 S.E.2d at 708–09 (applying federal attachment standard);
State v. Luton, 927 P.2d 844, 849 (Haw. 1996) (applying the federal attachment
standard to claim under the Hawaii Constitution); Commonwealth v. Jones, 526 N.E.2d
1288, 1292 (Mass. 1988) (noting the right to counsel under the Massachusetts
Constitution “attaches only at or after the time that adversary judicial proceedings have
been initiated against him” (quoting Kirby, 406 U.S. at 688, 92 S. Ct. at 1881, 32 L. Ed.
2d at 417)); People v. Cheatham, 551 N.W.2d 355, 359 n.8 (Mich. 1996) (noting the right
to counsel under the Michigan Constitution “attaches only at or after the initiation of
adversary judicial proceedings by way of formal charge, preliminary hearing,
indictment, information, or arraignment” (quoting People v. Wright, 490 N.W.2d 351,
365 (Mich. 1992) (Riley, J., dissenting))); State v. Delisle, 630 A.2d 767, 767 (N.H. 1993)
(“A defendant’s right to assistance of counsel attaches ‘by virtue of the commencement
of formal criminal proceedings.’ ” (quoting State v. Bruneau, 552 A.2d 585, 587–88 (N.H.
1988))); McCoy, 975 A.2d at 590 (noting the right to counsel under the Pennsylvania
Constitution is “coterminous with the Sixth Amendment right for purposes of
determining when the right attaches”); State v. Stephenson, 878 S.W.2d 530, 547 (Tenn.
1994) (holding the state constitutional right to counsel was inapplicable because “[n]o
adversary judicial proceedings had been initiated against the defendant at the time of
the alleged ‘invocation’ of his right to counsel”), abrogated on other grounds by State v.
Saylor, 117 S.W.3d 239, 245–46 (Tenn. 2003); State v. Parizo, 655 A.2d 716, 717 (Vt.
1994) (holding that the state constitutional right to counsel does not attach until there
is a “criminal prosecution” as contemplated in Kirby); State v. Earls, 805 P.2d 211, 215
& n.5 (Wash. 1991) (en banc) (“The right to counsel under [the state constitution] also
attaches only after the initiation of formal judicial proceedings.”); State ex rel. Bess v.
Legursky, 465 S.E.2d 892, 898 (W. Va. 1995) (holding the right to counsel does not
attach until a “critical stage in the adversary proceedings”) (quoting State ex rel. Daniel
v. Legursky, 465 S.E.2d 416, 423 (W. Va. 1995))); Mogard, 32 P.3d at 322 (“A request
for counsel made prior to the commencement of adversarial criminal proceedings does
not invoke the right to counsel . . . under [the state constitution.]”).
12Twelveof the thirteen state court decisions cited by the Pennsylvania Supreme
Court remain good law. See Anderson, 842 P.2d at 622 n.4; Smith v. State, 699 So. 2d
39
From our analysis of the opinions issued by our sister
states, we conclude that the majority position of adhering to
the federal rule on the attachment of the right to counsel is
the most sensible. The plain language of Article I, § 9 limits
the right to those situations where an “accused” is the
subject of a “criminal prosecution”. The terms “accused”
and “all criminal prosecutions” are not mere verbiage with
which we may summarily dispense. Rather, they are
necessary terms which define the scope of this right. Were
we to hold the attachment of the right to counsel is
independent of the creation of an “accused” and the
initiation of a “criminal prosecution,” and is instead triggered
by some earlier interaction between the police and the
defendant, we would divorce this right from its constitutional
basis. Such a holding would create a rootless, ethereal
“constitutional” right which would have no foundation in the
constitution of this commonwealth.
Commonwealth v. Arroyo, 723 A.2d 162, 169 (Pa. 1999) (emphasis
added). We agree.
Our sister courts give several reasons why the right to counsel
does not attach during an implied-consent proceeding. The Wyoming
Supreme Court characterized its three main reasons why an implied-
consent proceeding is not a critical stage of a criminal prosecution:
First, the function of the Sixth Amendment right to
counsel is to preserve the defendant’s right to a fair trial,
once adversarial criminal proceedings have been commenced
by the filing of a formal charge. Second, the chemical testing
decision is “ ‘not essentially “a lawyer’s decision” but, on the
contrary, can be made by a defendant in the absence of the
assistance of counsel without any substantial prejudice to
_________________________
629, 638 (Fla. 1997); Luton, 927 P.2d at 849–50; Jones, 526 N.E.2d at 1292; Cheatham,
551 N.W.2d at 359 n.8; State v. Warren, 499 S.E.2d 431, 439–40 (N.C. 1998);
Stephenson, 878 S.W.2d at 547–48; Poullard v. State, 833 S.W.2d 270, 271–72 (Tex.
App. 1992); Parizo, 655 A.2d at 717; Earls, 805 P.2d at 215 & n.5; Bess, 465 S.E.2d at
898; Prime v. State, 767 P.2d 149, 152–53 (Wyo. 1989). As we explain below, Minnesota
departed from the Sixth Amendment analysis in Friedman v. Commissioner of Public
Safety, 473 N.W.2d 828, 836–37 (Minn. 1991). Florida has recognized a broader right
to counsel under its state constitution. See Smith, 699 So. 2d at 638 (noting that the
Florida right to counsel will attach “as soon as feasible after custodial restraint”).
13The right-to-counsel provision in Pennsylvania’s constitution, entitled “Rights
of accused in criminal prosecutions,” states, “In all criminal prosecutions the accused
hath a right to be heard by himself and his counsel . . . .” Pa. Const. art. I, § 9.
40
[the accused’s] rights under the sixth amendment.’ ” And
third, the “right” to refuse the test is not a right at all, but is,
at most, a statutory privilege or an “option” which may be
strictly regulated by the state.
Mogard v. City of Laramie, 32 P.3d 313, 324 (Wyo. 2001) (alteration in
original) (footnote omitted) (citations omitted) (quoting State v. Delisle,
630 A.2d 767, 768 (N.H. 1993)); see also Commonwealth v. Brazelton,
537 N.E.2d 142, 143 (Mass. 1989) (“The moment at which a person must
decide to take or to refuse to take a breathalyzer test is not a critical
stage in the criminal process.”); State v. Greene, 512 A.2d 429, 432 (N.H.
1986) (holding the right to take a breath test is not a critical stage
because advice is not necessary “to protect a defendant’s right to a fair
trial”); State v. Howren, 323 S.E.2d 335, 336–37 (N.C. 1984) (holding an
implied-consent proceeding is not a critical stage of the prosecution);
Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa. 2009) (holding no right
to counsel under the state constitution because the implied-consent
proceeding “was not a ‘critical stage’ under [Pennsylvania]
jurisprudence”); McCambridge v. State, 778 S.W.2d 70, 72 (Tex. Crim.
App. 1989) (en banc) (holding the chemical breath test procedure “is not
a ‘critical stage’ of the criminal process which necessitates either the
prior consultation [with] or presence of counsel under the right-to-
counsel provision of Article I, § 10 of the Texas Constitution” (quoting
Forte v. State, 759 S.W.2d 128, 139 (Tex. Crim. App. 1988) (en banc))).
The Massachusetts Supreme Court focused on the inherent
practical problems in concluding there is no right to counsel before
submitting to a breathalyzer test:
The recognition of a right to consult an attorney before
deciding to take a breathalyzer test presents formidable
practical problems. In the present case, the defendant
wanted to call his private attorney. If an attorney is not
available, a delay may ensue and the test results may then
41
be stale and inaccurate. The same result follows for one who
has no attorney or has no money to retain an attorney.
Brazelton, 537 N.E.2d at 143. The practical problem confronted in
Brazelton is reflected in the record before us. Senn made numerous
phone calls and had trouble getting an attorney on the phone, and he
was unable to get an attorney to meet with him at the police station. If
we hold the right to counsel attaches during an implied-consent
proceeding, we will also need to determine whether that right, like the
federal constitutional right to counsel, includes the right to an attorney
at state expense if the motorist is indigent.
The Georgia Supreme Court rejected a defendant’s right to counsel
before deciding whether to take a chemical breath test because it would
be unlikely that an attorney would be able to meaningfully assist the
driver before the test:
After all, the officer who administers the test must advise the
driver of his implied consent rights pursuant to [the Georgia
implied consent statute]. Thus, when it comes to consulting
with a driver, there is very little that a lawyer could add that
would substantially affect the fairness of the trial.
Rackoff v. State, 637 S.E.2d 706, 708–09 (Ga. 2006).
The Texas Supreme Court previously recognized a broader right to
counsel under its state constitution but returned to the federal
standard. 14 See McCambridge, 778 S.W.2d at 75–76. The McCambridge
court explained it believed the “initiation of adversary criminal
proceeding” language in Kirby was a departure from the analysis in
Wade. Id. at 75. The court determined a case-by-case rule was
unworkable:
14Theright-to-counsel provision in Texas, entitled “Rights of accused in criminal
prosecutions,” states, “In all criminal prosecutions the accused shall have . . . the right
of being heard by himself or counsel, or both . . . .” Tex. Const. art. I, § 10.
42
Since making that determination, however, we have
concluded that the classification of a period in the criminal
process as “critical” on a case by case basis is ambiguous,
vague, and thus unworkable. Consistency is the objective of
any legal standard. If consistency can be achieved it benefits
both law enforcement and the public. Consequently,
although we do not depart from our conclusion that the
reasoning in Kirby cannot be logically reconciled with the
converse reasoning in Wade and Gilbert, we are nonetheless
persuaded that by adopting a bright line rule establishing
when the critical stage in the criminal process occurs the
public will ultimately benefit.
Id. at 75–76.
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.
Only four jurisdictions—Florida, Oregon, Minnesota, and
New York—have recognized a broader right to counsel under their state
constitutions. 15 Even so, Florida does not recognize a right to counsel
15Maryland has a limited right to counsel during implied-consent proceedings
based on its state constitutional right to due process. Sites v. State, 481 A.2d 192, 200
(Md. 1984). Subsequent cases have called Sites into doubt. See Motor Vehicle Admin. v.
Deering, 92 A.3d 495, 507 (Md. 2014) (“Given the scarce support for th[e] analysis of the
due process clause of the federal Constitution, the Sites Court’s rationale rests on a
precarious footing. Of course, because the Sites decision was also based on Article 24,
it is conceivable that this Court could hold that the State constitution confers such a
right, even if the federal Constitution does not.”). The independent constitutional right
to counsel in Maryland is based on their due process provision. Id. Senn did not argue
43
before submitting to a chemical breath test. A Florida appellate court
rejected a defendant’s argument that he had the right to counsel before
submitting to a breathalyzer test in State v. Burns, 661 So. 2d 842, 847
(Fla. Dist. Ct. App. 1995). The court recognized that the right to counsel
under the Florida Constitution attaches “at the earliest of the following
points: when he or she is formally charged with a crime via the filing of
an indictment or information, or as soon as feasible after custodial
restraint, or at first appearance.” 16 Id. (quoting Traylor v. State, 596
So. 2d 957, 970 (Fla. 1992)). This definition of the beginning of a
prosecution is broader than the federal right because it encompasses
“custodial restraint,” which includes persons who are booked but not
charged. 17 See Traylor, 596 So. 2d at 970 & n.38. The state, as in this
case, argued that it is not feasible to supply counsel in impaired-driving
cases. Burns, 661 So. 2d at 847. The court agreed the state’s
constitutional standard posed a serious practical problem:
Whether the right to counsel was provided “as soon as
feasible” is a nebulous gray area, the determination of which
is completely dependent on how much importance is given
the State’s dilemma. Even stationing a public defender at
the testing center would not solve the problem because there
has been no judicial determination of a defendant’s right to a
public defender at this stage of the proceedings. Certainly if
“feasible” means possible, then the right to counsel attached
immediately at the center.
_________________________
the Iowa due process clause in his motion to suppress. Accordingly, Sites does not
support his argument.
16The Florida Constitution provides for the right to counsel in a provision,
entitled “Rights of accused and of victims”: “In all criminal prosecutions[,] the accused
shall . . . have the right . . . to be heard in person, by counsel or both . . . .” Fla. Const.
art. I, § 16(a).
17WhenFlorida expanded its rule, the court noted that there was a rule of
criminal procedure that provided counsel to arrestees who were booked but not formally
charged. Traylor, 596 So. 2d at 970 n.38; see also Fla. R. Crim. P. 3.111(a).
44
Id. But the court resolved the appeal by determining the testing was not
at a critical stage in the prosecution because the test results could be
challenged at trial. Id. at 848. The court emphasized that breathalyzer
tests are essentially an evidence-gathering process, and the defendant is
equally capable of representing himself as any defense counsel. Id. If
the case goes to trial, defense counsel still has the opportunity to “attack
the field tests and the breathalyzer tests through discovery, cross
examination, and defense experts.” Id.
These Florida cases illustrate that for Senn to prevail, we must find
both that the right to counsel under the Iowa Constitution attaches
before the beginning of a formal prosecution and that a primarily
evidence-gathering activity can be a critical stage to the prosecution. We
conclude Senn’s argument fails on both fronts.
Senn relies primarily on the Minnesota Supreme Court’s decision
in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 829, 836–
37 (Minn. 1991). 18 Joy Friedman was arrested in Minneapolis when she
failed a preliminary breath test. Id. at 829. The police officer took her to
the police station to take an intoxilyzer test. Id. The machine was in
use, so they waited twenty-five minutes at the station. Id. During this
time, Friedman asked what her rights were and whether she could
consult an attorney. Id. The officer did not allow her to contact an
attorney. Id. A different officer took Friedman into a videotaping room
and read her the implied-consent advisory three times. Id. The implied-
consent advisory stated she had a right to consult an attorney after
18The Minnesota right-to-counsel provision, entitled “Rights of accused in
criminal prosecutions,” states, “In all criminal prosecutions[,] . . . [t]he accused shall
enjoy the right . . . to have compulsory process for obtaining witnesses in his favor and
to have the assistance of counsel in his defense.” Minn. Const. art. I, § 6.
45
testing. Id. Friedman said she did not understand the advisory and that
she had been tested in the squad car. Id. The police considered
Friedman’s response a refusal to be tested, which resulted in a one-year
revocation of her drivers’ license. Id.
The Minnesota Supreme Court noted, “As is often the case, the
driver at this critical stage looked to the police for guidance. An attorney,
not a police officer, is the appropriate source of legal advice.” Id. at 833.
The Court concluded a defendant is guaranteed a “limited right to
counsel within a reasonable time before submitting to testing.” Id. at
837. The court explained the right to counsel as follows:
[A]ny person who is required to decide whether he will
submit to a chemical test . . . shall have the right to consult
with a lawyer of his own choosing before making that
decision, provided that such a consultation does not
unreasonably delay the administration of the test. The
person must be informed of this right, and the police officers
must assist in its vindication. The right to counsel will be
considered vindicated if the person is provided with a
telephone prior to testing and given a reasonable time to
contact and talk with counsel. If counsel cannot be
contacted within a reasonable time, the person may be
required to make a decision regarding testing in the absence
of counsel.
Id. at 835 (quoting Prideaux v. Dep’t of Pub. Safety, 247 N.W.2d 385, 394
(Minn. 1976)).
Later Minnesota opinions have recognized the limited nature of the
right to counsel in an implied-consent proceeding:
We need only consider the right to counsel at issue here, the
right to counsel for a test decision, which is more limited in
nature than the right to counsel at a plea hearing or at trial.
In Friedman we recognized that “the evanescent nature of the
evidence in DWI cases requires that the accused be given a
limited amount of time in which to contact counsel.” The
right is deemed forfeited if counsel is not contacted within a
reasonable period of time, even if by no fault of the accused.
There is no analogous durational limitation or forfeiture
46
consequence associated with the right to counsel at a plea
hearing or at trial.
State v. Schmidt, 712 N.W.2d 530, 538 (Minn. 2006) (footnote omitted)
(citations omitted) (quoting Friedman, 473 N.W.2d at 835). Significantly,
Minnesota courts permit the police or jailer to monitor the detainee’s
phone calls with counsel. Comm’r of Pub. Safety v. Campbell, 494
N.W.2d 268, 270 (Minn. 1992). Evidence of the driver’s telephonic
statements with counsel may be suppressed during the criminal trial. Id.
at 269–70 (“[T]he arrestee’s rights will be sufficiently protected by the
subsequent exclusion of any overheard statements or any fruits of those
statements.”). This does not help Senn. Senn was tried on the minutes
of testimony. He made inculpatory statements during his phone call, but
none of those admissions were included in the minutes.
The right to counsel articulated in Friedman and its progeny is no
broader than the limited statutory right to counsel under Iowa Code
section 804.20. If this proceeding had occurred in Minnesota, Senn
would have no remedy. Senn was provided with a phone, offered a
phone book, and given ample time to reach an attorney. In fact, Senn
did reach his attorney and was allowed to consult with the attorney for
almost a half hour. None of Senn’s statements made to his lawyer on the
phone call were used in the criminal case. Under the Minnesota
precedent, Senn would have no remedy for Officer Cuppy’s presence in
the room during the phone call.
Senn likely would fare better under Oregon’s broader state
constitutional right to counsel: 19
19The right to counsel in the Oregon Constitution is entitled “Rights of Accused
in Criminal Prosecution”: “In all criminal prosecutions, the accused shall have the right
. . . to be heard by himself and counsel . . . .” Or. Const. art. I, § 11.
47
We hold that, under the right to counsel clause in
Article I, section 11 [of the Oregon Constitution], an arrested
driver has the right upon request to a reasonable
opportunity to obtain legal advice before deciding whether to
submit to a breath test. Because evidence of an arrested
driver’s blood alcohol dissipates over time, the state is not
required to wait for a long period of time before
administering the test.
State v. Spencer, 750 P.2d 147, 155–56 (Or. 1988) (en banc) (footnote
omitted). This right encompasses the ability to “consult with counsel in
private,” including over the phone. State v. Durbin, 63 P.3d 576, 579 (Or.
2003). The Oregon court said that “the purpose of the lawyer-client
privilege cannot be fulfilled unless the communications between a client
and a lawyer are confidential.” Id.
But the Oregon right to counsel is not absolute because that state
will not provide a lawyer at the state’s expense for indigent persons
during chemical testing, and the right may be forfeited. State v. Smalls,
120 P.3d 506, 508, 510–11 (Or. Ct. App. 2005); see Spencer, 750 P.2d at
155 (“In view of the exigencies attendant to the breath test process and
the extraordinary expense [appointing counsel to indigents] would entail,
we doubt that the Supreme Court would take the dictates of Gideon v.
Wainwright . . . and its progeny that far.”). The right to counsel in
Oregon is limited to those who can afford lawyers.
New York has extended its state constitutional right to counsel to
persons who are taken into custody, whether “as an ‘accused,’ a
‘suspect,’ or a ‘witness.’ ” People v. Hobson, 348 N.E.2d 894, 897 (N.Y.
1976). The detainee is generally entitled to speak privately with counsel
by phone. People v. O’Neil, 986 N.Y.S.2d 302, 312 (Dist. Ct. 2014). Senn
does not cite or rely on New York precedent, presumably because of the
textual differences in that state’s constitution, which combines multiple
rights—including due process, self-incrimination, and the right to
48
counsel—into one provision. 20 Indeed, New York’s highest court has
stated,
The Right to Counsel Clause in the State Constitution is
more restrictive than that guaranteed by the Sixth
20New York’s right-to-counsel provision, entitled “Grand Jury; Waiver of
Indictment; Right to Counsel; Informing Accused; Double Jeopardy; Self-Incrimination;
Waiver of Immunity by Public Officers; Due Process of Law,” states,
No person shall be held to answer for a capital or otherwise
infamous crime (except in cases of impeachment, and in cases of militia
when in actual service, and the land, air and naval forces in time of war,
or which this state may keep with the consent of congress in time of
peace, and in cases of petit larceny under the regulation of the
legislature), unless on indictment of a grand jury, except that a person
held for the action of a grand jury upon a charge for such an offense,
other than one punishable by death or life imprisonment, with the
consent of the district attorney, may waive indictment by a grand jury
and consent to be prosecuted on an information filed by the district
attorney; such waiver shall be evidenced by written instrument signed by
the defendant in open court in the presence of his or her counsel. In any
trial in any court whatever the party accused shall be allowed to appear
and defend in person and with counsel as in civil actions and shall be
informed of the nature and cause of the accusation and be confronted with
the witnesses against him or her. No person shall be subject to be twice
put in jeopardy for the same offense; nor shall he or she be compelled in
any criminal case to be a witness against himself or herself, providing,
that any public officer who, upon being called before a grand jury to
testify concerning the conduct of his or her present office or of any public
office held by him or her within five years prior to such grand jury call to
testify, or the performance of his or her official duties in any such
present or prior offices, refuses to sign a waiver of immunity against
subsequent criminal prosecution, or to answer any relevant question
concerning such matters before such grand jury, shall by virtue of such
refusal, be disqualified from holding any other public office or public
employment for a period of five years from the date of such refusal to
sign a waiver of immunity against subsequent prosecution, or to answer
any relevant question concerning such matters before such grand jury,
and shall be removed from his or her present office by the appropriate
authority or shall forfeit his or her present office at the suit of the
attorney-general.
The power of grand juries to inquire into the wilful misconduct in
office of public officers, and to find indictments or to direct the filing of
informations in connection with such inquiries, shall never be suspended
or impaired by law. No person shall be deprived of life, liberty or
property without due process of law.
N.Y. Const. art. I, § 6 (emphasis added).
49
Amendment to the United States Constitution. Nevertheless,
by resting the right upon this State’s constitutional
provisions guaranteeing the privilege against self-
incrimination, the right to assistance of counsel and due
process of law we have provided protection to accuseds far
more expansive than the Federal counterpart.
People v. Bing, 558 N.E.2d 1011, 1014–15 (N.Y. 1990) (footnote omitted)
(citations omitted). By contrast, the Iowa Constitution has separate
provisions for due process and the right to counsel. Compare N.Y. Const.
art. I, § 6 (including provisions regarding grand jury, waiver of
indictment, right to counsel, informing accused, double jeopardy, self-
incrimination, waiver of immunity by public officers, and due process of
law), with Iowa Const. art. I, § 9 (providing right of trial by jury and due
process of law); id. art. I, § 10 (providing rights of persons accused).
Senn relies solely on the right-to-counsel provision in article I,
section 10 of the Iowa Constitution. He does not rely on the due process
clause, the privilege against self-incrimination, or the right to be free of
unreasonable searches and seizures. This case does not involve a police
interrogation, blood draw, plea bargaining, or a lineup. New York’s
provision combining disparate rights is a poor interpretive analogue here.
Moreover, the combined New York provision more broadly refers
repeatedly to “a person” in place of the narrower term used for a subset
of persons who have been formally charged, “the party accused.”
Compare N.Y. Const. art. I, § 6 (referring several times to a “person” and
once to “the party accused”), with Iowa Const. art. I, § 10 (referring only
to “the accused”). For those reasons, the New York cases are inapposite.
Regardless, New York provides only a limited right to counsel for
motorists arrested for suspicion of drunk driving. People v. Smith, 965
N.E.2d 928, 931 (N.Y. 2012). “[T]here is no absolute right to refuse to
take the test until an attorney is actually consulted, nor can a defendant
50
use a request for legal consultation to significantly postpone testing.” Id.
If the defendant is unable to contact an attorney, the defendant “can be
required to make a decision without the benefit of counsel’s advice.” Id.
at 931–32. 21
Senn would be entitled to reversal under the caselaw of only two
other states—Oregon and New York. We are not persuaded to follow
those outliers.
D. Practical Problems. We also consider the practical problems
that would arise by recognizing a broader independent state
constitutional right to counsel during implied-consent chemical testing.
Senn claims that “an individual is entitled to, at a minimum, a private
consultation with counsel at the time at which the State invokes implied
consent” under the Iowa Constitution.
First, any Iowa constitutionally based right to counsel should
apply equally to rich and poor alike. See Iowa Code § 63.6 (requiring
judges to take an oath to “support the Constitution of the United States
and the Constitution of the State of Iowa, and . . . administer justice
according to the law, equally to the rich and the poor”). Iowa has
recognized the right to appointed counsel for indigents at government
expense in felony cases since 1850. See Hall v. Washington County,
2 Greene 473, 478–79 (Iowa 1850). We recently extended that right to
21New York’s remedy for a failure to provide private access to counsel depends
on whether the arrestee takes the test or refuses. If the defendant takes the test, the
court will generally suppress all statements and the test results. See People v. Moffitt,
19 N.Y.S.3d 713, 719–20 (Crim. Ct. 2015) (suppressing test results, statements made to
lawyer, and portion of video depicting conversation); People v. Washington, 964 N.Y.S.2d
176, 186 (App. Div. 2013) (suppressing test results). But if the arrestee refuses to take
the test, the court will suppress the statements made to his or her lawyer but not the
refusal itself. O’Neil, 986 N.Y.S.2d at 312 & n.3 (suppressing statements made to
counsel but noting the violation of the defendant’s right to counsel was “not a basis for
suppression of the refusal” to take the test).
51
indigents facing misdemeanor charges with potential incarceration.
Young, 863 N.W.2d at 281; see also Luis v. United States, 578 U.S. ___,
___, 136 S. Ct. 1083, 1089, 194 L. Ed. 2d 256, 263 (2016) (plurality
opinion) (“[W]e have understood the right [to counsel] to require that the
Government provide counsel for an indigent defendant accused of all but
the least serious crimes . . . .”). A first offense OWI carries a potential jail
sentence. 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. See Smalls, 120
P.3d at 511.
In addition, we would need to provide continuous court and public
defender access to process applications for court-appointed counsel. See
Iowa Code § 815.10 (providing for “[a]ppointment of counsel by court”).
The State cannot wait until the next morning to effectively test for
evidence of blood alcohol content because the amount drops over time.
See Vietor, 261 N.W.2d at 831 (holding the right to counsel “must be
balanced against the practical consideration that a chemical test is to be
administered within two hours of the time of arrest or not at all”). It
simply is infeasible to assure indigent motorists statewide that lawyers
will be available at government expense at any time of the day or night to
advise them whether to submit to the breath test.
Second, if Senn was entitled to a private consultation with counsel
over the phone, the police or jailers would have to determine who is on
the other end of the line for each phone call made. Iowa Code section
804.20 applies to all detainees, not just motorists suspected of impaired
52
driving. It is easy to imagine detainees taking advantage of private phone
calls to inform confederates to flee or get rid of evidence.
IV. Conclusion.
For these reasons, we conclude the right to counsel under article I,
section 10 of the Iowa Constitution does not attach until formal charges
have been filed by the state in court. Accordingly, the arresting officer in
this case did not violate Senn’s constitutional right to counsel by
remaining in the room during Senn’s phone call with a lawyer. Senn’s
constitutional challenge to Iowa Code section 804.20 fails. We therefore
affirm his conviction.
DISTRICT COURT JUDGMENT AFFIRMED.
Mansfield and Zager, JJ., join this opinion. Cady, C.J., files a
special concurrence. Wiggins, J., files a dissenting opinion in which
Hecht and Appel, JJ., join. Appel, J., files a separate dissenting opinion
in which Wiggins and Hecht, JJ., join.
53
#15–0624, State v. Senn
CADY, Chief Justice (concurring specially).
I concur in the result, but not because the right to counsel under
the Iowa Constitution did not attach at the time the State initiated the
implied-consent process. Even assuming the right to counsel did attach
under the Iowa Constitution, I conclude Senn was not deprived of the
right and that he has not shown the counsel he received was ineffective.
Senn claims that the decision to refuse or submit to a chemical
test following an arrest for the crime of operating while intoxicated was a
critical stage in the proceedings that supports the right to counsel. He
claims the decision is a critical stage because legal counsel is needed to
advise the arrestee of all of the consequences of the implied-consent
process and its full impact. Nevertheless, Senn was in fact provided an
opportunity to consult with an attorney before making the decision. He
also took advantage of the opportunity by talking to an attorney on the
telephone for twenty-eight minutes before making a decision.
Senn claims the conversation he had with the attorney did not
satisfy the constitutional right to counsel. However, no evidence was
introduced to explain how the conversation was inadequate in light of its
purpose. Senn instead assumes the conversation was inadequate
because a law enforcement officer could overhear his side of the
conversation. This assumption is not warranted.
Senn essentially claims the constitutional right to counsel once
implied consent is invoked should be greater than the statutory right to a
phone conversation with an attorney in the presence of a law
enforcement officer or a private in-person consultation. See Iowa Code
§ 804.20 (2013). Yet this claim was not supported by evidence that the
advice Senn needed at that moment could only be provided through a
54
private phone conversation. It may be understandable that some
attorneys want to personally assess the condition of a person arrested for
operating while intoxicated before giving advice on whether or not to
submit to the request for a chemical test. See State v. Walker, 804
N.W.2d 284, 287–88 (Iowa 2011) (detailing how an attorney’s advice was
impeded by a physical barrier between the attorney and his client and by
video surveillance). However, this in-person assessment does not
establish a minimum constitutional standard of counsel. Without
evidence that effective counsel could not be provided by the type of phone
call permitted in this case, I cannot conclude that the constitutional right
to counsel would require any more legal assistance than Senn was
provided in this case. Furthermore, Senn offered no evidence that the
police officer’s ability to hear his side of the phone call rendered the
assistance ineffective.
We normally do not address constitutional claims in a case that
can be resolved on other grounds. See State v. Hellstern, 856 N.W.2d
355, 360 (Iowa 2014) (“We . . . decide the statutory issue first in order to
avoid unnecessary adjudication of constitutional claims.”). This case
falls within that rule. Senn was not denied any constitutional right to
counsel because the facts of the case do not reveal that he failed to
receive advice from counsel to assist in deciding to take a chemical test.
For that reason, I concur only in the result in this case.
55
#15–0624, State v. Senn
WIGGINS, Justice (dissenting).
There is no majority opinion in our resolution of this case today,
and therefore there remains no decision from this court holding the right
to counsel under article I, section 10 of the Iowa Constitution attaches
only upon the filing of a criminal complaint. 22 Because the plurality and
concurring opinions combine to affirm John Arthur Senn Jr.’s conviction,
however, I dissent. I would hold Senn’s right to counsel under article I,
section 10 of the Iowa Constitution was violated when the State arrested
him on suspicion of operating while intoxicated, invoked the statutory
implied-consent procedure, asked him to submit to blood-alcohol testing,
and denied him the opportunity to confidentially consult with his
attorney.
Justice Waterman’s plurality opinion disregards the clear import of
the phrase “in cases involving the life, or liberty of an individual” in
article I, section 10 to conclude the right to counsel under the Iowa
Constitution applies only once formal criminal charges have been filed by
the State. Simply put, that is not what the language in article I, section
10 says; therefore, that is not how we should interpret it. Furthermore,
although the plurality opinion purports to find historical support for its
crabbed interpretation of article I, section 10 in the debates of our
constitutional convention, its factually inaccurate recounting of the
relevant historical context renders equally inaccurate its assessment of
22In a plurality opinion joined by Justices Mansfield and Zager, Justice
Waterman concludes the right to counsel under article I, section 10 of the Iowa
Constitution attaches upon the filing of a criminal complaint. In his special
concurrence, Chief Justice Cady leaves open the question of when the right to counsel
attaches under the Iowa Constitution.
56
the framers’ intentions concerning the scope of the right to counsel
under the Iowa Constitution.
Iowa Code section 804.20 grants arrested persons the right to call
and consult with an attorney and a family member. It 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.
Iowa Code § 804.20 (2013). This case requires us to determine whether
the limitations on the statutory right to counsel set forth in this provision
conflict with the requirements of article I, section 10 of the Iowa
Constitution as applied to a person arrested for operating while under
the influence (OWI) who must decide whether to submit to a chemical
test upon request by a police officer invoking the implied-consent
procedure set forth in the Iowa Code. See id. §§ 321J.6, .8, .9.
A criminal defendant is assured the right to effective assistance of
counsel by the constitutional guarantees of the right to counsel
contained in the Sixth Amendment to the United States Constitution and
article I, section 10 of the Iowa Constitution as well as the constitutional
guarantees of due process of law assuring the right to a fair trial
contained in the Fourteenth Amendment to the United States
Constitution and article I, section 9 of the Iowa Constitution. State v.
Williams, 207 N.W.2d 98, 104 (Iowa 1973). The Sixth Amendment
57
provides, “In all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. In contrast, 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 have the assistance of counsel.”
Iowa Const. art. I, § 10.
We have previously determined the Sixth Amendment right to
counsel does not attach when a police officer invoking the implied
consent procedure asks an OWI arrestee to submit to a chemical test.
See State v. Walker, 804 N.W.2d 284, 293 (Iowa 2011). Accordingly, we
held that denying an OWI arrestee the opportunity to consult with an
attorney in the implied-consent context does not violate the Sixth
Amendment to the United States Constitution. State v. Vietor, 261
N.W.2d 828, 830 (Iowa 1978).
However, we have never considered whether the right to counsel
guaranteed by article I, section 10 of the Iowa Constitution affords an
OWI arrestee the right to consult privately with an attorney when an
officer invokes the implied-consent procedure and asks him or her to
consent to a chemical test. State v. Hellstern, 856 N.W.2d 355, 357–58,
365 (Iowa 2014). But see Gottschalk v. Sueppel, 258 Iowa 1173, 1179,
140 N.W.2d 866, 869–70 (1966) (assuming without deciding the right to
counsel assured by the Iowa Constitution did not apply to an
administrative proceeding resulting in license revocation). Thus, this
case requires us to decide a narrow question concerning the scope of the
right to counsel assured by article I, section 10. Namely, we must
determine whether article I, section 10 guaranteed Senn the right to
counsel after he was arrested and Officer Cuppy invoked the implied-
consent procedure. More precisely, we must determine whether Senn
58
faced either “criminal proceedings” against him or a “case involving the
life, or liberty of an individual” when he was asked to consent to a
chemical test following his arrest. 23 Iowa Const. art. I, § 10.
23As we have previously acknowledged, the constitutional guarantees of due
process of law afforded by the Fourteenth Amendment to the United States Constitution
and article I, section 9 of the Iowa Constitution may require the appointment of counsel
for indigent persons in contexts other than criminal prosecutions. See State ex rel.
Hamilton v. Snodgrass, 325 N.W.2d 740, 742 (Iowa 1982); McNabb v. Osmundson, 315
N.W.2d 9, 14 (Iowa 1982); see also Turner v. Rogers, 564 U.S. 431, 444–45, 131 S. Ct.
2507, 2517–18, 180 L. Ed. 2d 452, 463–64 (2011); Walters v. Nat’l Ass’n of Radiation
Survivors, 473 U.S. 305, 332, 105 S. Ct. 3180, 3195, 87 L. Ed. 2d 220, 240 (1985);
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32, 101 S. Ct. 2153, 2161–62, 68
L. Ed. 2d 640, 652 (1981). For example, to determine whether an indigent person has a
federal due process right to counsel when the Sixth Amendment right to counsel does
not apply, a court must apply a modified version of the balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976).
Lassiter, 452 U.S. at 26–27, 101 S. Ct. at 2159, 68 L. Ed. 2d at 649; Snodgrass, 325
N.W.2d at 742.
Senn raised only his right to counsel under article I, section 10 of the Iowa
Constitution before the district court. Thus, we do not consider whether his right to
due process of law under the federal and state constitutions entitled him to effective
assistance of counsel under the facts of this case. See Meier v. Senecaut, 641 N.W.2d
532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.”). We previously concluded a defendant who was not permitted the opportunity
to speak with his attorney by phone before he consented to a chemical test was not
deprived of due process of law without suggesting we considered the claim under both
the United States Constitution and the Iowa Constitution. Gottschalk, 258 Iowa at
1176, 1181–82, 140 N.W.2d at 868, 870–71.
The United States Supreme Court also recognized a limited right to counsel in
the context of custodial interrogations implicating the Fifth Amendment privilege
against compelled self-incrimination in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966). McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S. Ct.
2204, 2208, 115 L. Ed. 2d 158, 167 (1991). However, the Miranda right to counsel
under the Fifth Amendment to the United States Constitution does not extend to an
OWI arrestee’s choice to refuse chemical testing when an officer invokes implied-
consent procedures because “a police inquiry of whether the suspect will take a blood-
alcohol test is not an interrogation within the meaning of Miranda.” South Dakota v.
Neville, 459 U.S. 553, 564 n.15, 103 S. Ct. 916, 923 n.15, 74 L. Ed. 2d 748, 759 n.15
(1983).
Although the Iowa Constitution does not contain an express provision equivalent
to the Fifth Amendment guarantee against compelled self-incrimination, a right against
compelled self-incrimination is implicit in the article I, section 9 guarantee of due
process of law. State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 n.2 (Iowa 2011). Before the
district court, Senn did not argue an officer asking him to consent to a chemical test
59
Notwithstanding the state constitutional focus of this inquiry, a
brief review of the scope of the federal right to counsel guaranteed by the
Sixth Amendment to the United States Constitution is instructive. Like
the right to counsel guaranteed by article I, section 10, the right to
counsel guaranteed by the Sixth Amendment applies to “all criminal
prosecutions.” State v. Young, 863 N.W.2d 249, 257 (Iowa 2015).
The Supreme Court has pegged the attachment of the Sixth
Amendment right to counsel on “the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.” Rothgery v. Gillespie
County, 554 U.S. 191, 198, 128 S. Ct. 2578, 2583, 171 L. Ed. 2d 366,
374 (2008) (quoting United States v. Gouveia, 467 U.S. 180, 188, 104
S. Ct. 2292, 2297, 81 L. Ed. 2d 146, 154 (1984)). Nonetheless, though
the Sixth Amendment by its terms refers to “criminal prosecutions,” its
protections need not be triggered by a prosecutor filing an indictment.
See id. at 198–202, 128 S. Ct. at 2583–86, 171 L. Ed. 2d at 374–77.
Rather, the Sixth Amendment right to counsel attaches once “ ‘the
government has committed itself to prosecute,’ ‘the adverse positions of
government and defendant have solidified,’ and the accused ‘finds
himself faced with the prosecutorial forces of organized society, and
immersed in the intricacies of substantive and procedural criminal law.’ ”
Id. at 198, 128 S. Ct. at 2583, 171 L. Ed. 2d at 374 (quoting Kirby v.
Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 418
_________________________
constituted the functional equivalent of custodial interrogation to which a prophylactic
right to counsel broader than that afforded by Miranda and its progeny might apply
under the Iowa Constitution. Accordingly, we need not consider whether an officer
asking an arrestee to consent to chemical testing upon reading an implied-consent
advisory constitutes an inherently coercive circumstance in which the due process
guarantee of article I, section 9 affords the arrestee the assistance of counsel.
60
(1972) (plurality opinion)). Thus, an individual may qualify as an
accused for Sixth Amendment purposes before any prosecutorial
involvement in a criminal proceeding against him whatsoever. See id. at
208, 128 S. Ct. at 2589, 171 L. Ed. 2d at 380. In other words, the Sixth
Amendment right to counsel attaches once the wheels of our “system of
adversary criminal justice” begin to turn. Kirby, 406 U.S. at 689, 92 S.
Ct. at 1882, 32 L. Ed. 2d at 417. Moreover, the government’s
commitment to prosecute an individual may be sufficiently concrete to
trigger the Sixth Amendment right to counsel once “the machinery of
prosecution” has been “turned on by the local police” rather than a
prosecutor. See Rothgery, 554 U.S. at 208, 128 S. Ct. at 2589, 171
L. Ed. 2d at 380. At that point, a prosecution against the accused has
“commenced.” See id. at 198, 128 S. Ct. at 2583, 171 L. Ed. 2d at 374
(quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207,
115 L. Ed. 2d 158, 166 (1991)).
Once the Sixth Amendment right to counsel has attached, it
extends to “all critical stages of the criminal process.” Iowa v. Tovar, 541
U.S. 77, 80–81, 124 S. Ct. 1379, 1383, 158 L. Ed. 2d 209, 215 (2004).
Upon attachment, “the accused is guaranteed that he need not stand
alone against the State at any stage of the prosecution, formal or
informal, in court or out, where counsel’s absence might derogate from
the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218,
226, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149, 1157 (1967). Recognized
critical stages of the criminal process at which an accused is entitled to
assistance of counsel include, among others, arraignments,
postindictment interrogations, postindictment lineups, and the entry of
guilty pleas. Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405,
182 L. Ed. 2d 379, 387 (2012).
61
In contrast to its Sixth Amendment counterpart, the right to
counsel guaranteed by article I, section 10 of the Iowa Constitution
applies not only in “all criminal prosecutions,” but also “in cases
involving the life, or liberty of an individual.” Young, 863 N.W.2d at 257–
58 (quoting Iowa Const. art. I, § 10). As the plurality acknowledges, to
determine the scope of the right to counsel guaranteed by article I,
section 10, we must consider how this distinction arose.
Before Iowa became a state, the provision in its territorial
constitution guaranteeing the assistance of counsel to an accused
provided,
In all criminal prosecutions, the accused shall have a
right to a speedy trial by an impartial jury, to be informed of
the accusation against him, to be confronted with the
witnesses against him, to have compulsory process for his
own witnesses, and to have the assistance of counsel.
Iowa Const. art. II, § 10 (1846). Following a state constitutional
convention in 1857, Iowans voted to expand article I, section 10. Thus,
the Iowa Constitution adopted in 1857 provided,
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.
Iowa Const. art. I, § 10 (1857). The language in article I, section 10
today remains identical to that contained in the Iowa Constitution of
1857.
The framers of our state constitution vigorously debated the scope
of the right to counsel to be afforded by article I, section 10 during the
constitutional convention at which our state constitution was adopted.
The most spirited exchange during that debate was devoted to the
62
question of whether the rights guaranteed by article I, section 10 should
apply “in all cases involving the life, or liberty of an individual.” See 2
The Debates of the Constitutional Convention of the State of Iowa 735–41
(W. Blair Lord rep., 1857) [hereinafter The Debates], www.state
libraryofiowa.org/services/collections/law-library/iaconst. However, the
implications of that exchange for the proper interpretation of the scope of
the right to counsel afforded by article I, section 10 come into focus only
when we consider the historical context in which it occurred.
In 1793, Congress passed an act addressing “fugitives from justice,
and persons escaping from the service of their masters.” Act of Feb. 12,
1793, ch. VII, 1 Stat. 302 (codified in part as amended at 18 U.S.C.
§§ 3182–83 (2012), repealed in part 1864). Though the Extradition and
Fugitive Slave Clauses 24 of the United States Constitution endorsed
interstate rendition, the 1793 Act represented the first time Congress
had asserted its authority to legislate it. Christopher N. Lasch, Rendition
Resistance, 92 N.C. L. Rev. 149, 171 (2013) [hereinafter Lasch]. Its
purpose was to facilitate the extradition of fugitives from justice, i.e.,
24The Extradition Clause of the United States Constitution provides,
A person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall
on Demand of the executive Authority of the State from which he fled, be
delivered up, to be removed to the State having Jurisdiction of the Crime.
U.S. Const. art. IV, § 2, cl. 2.
The Fugitive Slave Clause of the United States Constitution provides,
No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour
may be due.
U.S. Const. art. IV, § 2, cl. 3, superseded by U.S. Const. amend. XIII.
63
individuals alleged to have committed crimes, and fugitive slaves, i.e.,
individuals claimed as slaves who had fled to northern states. See Allen
Johnson, The Constitutionality of the Fugitive Slave Acts, 31 Yale L.J.
161, 164 (1921) [hereinafter Johnson]. Prior to the passage of the 1793
Act, the growing division over slavery had fueled the perceived need for
federal legislation addressing the rendition of fugitives from justice,
which historically had been accomplished through comity. Lasch, 92
N.C. L. Rev. at 173. Accordingly, with respect to fugitives from justice,
the 1793 Act provided that upon demand and presentation of an
indictment or affidavit charging a person with committing any crime, the
executive of the state or territory to which the person had allegedly fled
should arrest and deliver the person to the appointed agent of the state
or territory from which he or she had allegedly fled. § 1, 1 Stat. at 302.
It further empowered the appointed agent to transport the alleged
criminal to the state or territory from which he or she had allegedly fled
and made interference with such transport a crime punishable by a fine
or imprisonment. § 2, 1 Stat. at 302.
With respect to fugitive slaves, the 1793 Act authorized any person
to whom labor or service was due, his agent, or his attorney to seize or
arrest an individual, take the individual before any federal judge or local
magistrate, and offer proof by oral testimony or affidavit that the
individual owed service or labor under the law of a state or territory from
which he or she fled. § 3, 1 Stat. at 302–05. It further obligated a judge
or magistrate, upon receiving proof to his satisfaction that an individual
was a fugitive slave, to issue a certificate constituting a sufficient warrant
for his or her removal to the state or territory from which he or she fled.
Id. The Act imposed civil penalties on individuals who obstructed or
hindered the seizure or arrest of fugitive slaves and individuals who
64
rescued, harbored, or concealed fugitive slaves. See § 4, 1 Stat. at 305.
Additionally, it created a right of private action for slave owners against
persons who committed such acts. See id.
The rendition proceedings provided for individuals claimed as
fugitive slaves under the 1793 Act were summary proceedings. During
these proceedings, criminal procedural protections did not apply. The
lack of due process afforded during the rendition proceedings under the
Act created many opportunities for unscrupulous bounty-hunters to
kidnap “the occasional free black who was likely to fetch a good price in
the south.” Robert R. Dykstra, Bright Radical Star: Black Freedom and
White Supremacy on the Hawkeye Frontier 89 (1993) [hereinafter
Dykstra]. To commence the summary rendition process, an individual
claiming to be a slave owner or his agent needed only a southern-judge-
signed affidavit. See Lee Kovarsky, Habeas Verité, 47 Tulsa L. Rev. 13,
16 (2011). The Act created no penalties for false claims. Jeffrey M.
Schmitt, Immigration Enforcement Reform: Learning from the History of
Fugitive Slave Rendition, 103 Geo. L.J. Online 1, 2 (2013) [hereinafter
Schmitt].
The 1793 Act was construed to give “substantial independent
responsibility to state judicial systems for adjudicating issues arising in
connection with the rendition of escaped slaves.” James A. Gardner,
State Courts As Agents of Federalism: Power and Interpretation in State
Constitutional Law, 44 Wm. & Mary L. Rev. 1725, 1787 (2003)
[hereinafter Gardner]. Occasionally, state courts in northern states that
were unfriendly to the institution of slavery “exercised their
independence in ways that impeded efforts of slave owners to recover
escaped slaves.” Id.
65
Nevertheless, the weak evidentiary standards sufficient to achieve
lawful rendition under the 1793 Act gave rise to the kidnapping of free
northern blacks through the antebellum period. Paul Finkelman, Sorting
Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605, 622–23 (1993)
[hereinafter Finkelman]. State governments in many northern states,
including Iowa, adopted “personal liberty laws” intended to protect free
blacks from kidnapping. Dykstra, at 89; Finkelman, 24 Rutgers L.J. at
623; Schmitt, 103 Geo. L.J. Online at 3.
Following the passage of the 1793 Act, rendition controversies
involving fugitive slaves and fugitives from justice continued to arise in
the context of the broader dispute over slavery. See Lasch, 92 N.C.
L. Rev. at 163. With respect to fugitives from justice, southern states
refused to extradite individuals accused of kidnapping free blacks to the
north, and northern states refused to extradite those accused of aiding
and abetting fugitive slaves to the south. Id. at 180.
The northern states’ ill-fated legislative efforts met their demise in
1842, when the United States Supreme Court considered the
constitutionality of the 1793 Act and the constitutionality of a state
statute effectively forbidding the seizure and recovery of fugitive slaves in
Prigg v. Pennsylvania, 41 U.S. 539, 10 L. Ed. 1060 (1842). In Prigg, the
Court concluded the Fugitive Slave Clause granted Congress exclusive
power to legislate on the subject of fugitive slaves. 41 U.S. at 541–42,
617–18, 10 L. Ed. at 1061, 1090. Thus, the Court held unconstitutional
“any state law or state regulation, which interrupts, limits, delays or
postpones the right of the owner to the immediate possession of the
slave, and the immediate command of his service and labor.” Id. at 540,
612, 10 L. Ed. at 1061, 1088. In contrast, the Court upheld the
provisions of the 1793 Act setting forth procedures for the rendition of
66
fugitive slaves to be constitutional, save for the provision compelling local
magistrates to issue certificates authorizing the removal of fugitive slaves
while acting in their official state judicial capacities. Id. at 582, 622, 10
L. Ed. at 1077, 1091. The Court invalidated the provision compelling
local magistrates to act on the theory that Congress may not convey
authority to exercise the federal judicial power to persons not holding
federal government commissions. Id.
Prigg effectively invalidated all state legislation giving procedural
protections to individuals claimed as fugitive slaves under the 1793 Act.
Schmitt, 103 Geo. L.J. Online at 3. Paradoxically, Prigg virtually nullified
the portion of the 1793 Act authorizing the removal of fugitive slaves
from northern states. See id. at 4. Though Prigg rendered northern
states unable to legislate procedural protections for individuals claimed
as fugitive slaves at the state and local level, it also forbid Congress from
compelling state cooperation in rendition proceedings under the Act. As
a result, in the aftermath of Prigg, some northern states passed more
robust “personal liberty laws” intended to end all state cooperation in the
rendition of individuals claimed as fugitive slaves by barring state judges
and law enforcement officers from any involvement therein. Lasch, 92
N.C. L. Rev. at 178; Schmitt, 103 Geo. L.J. Online at 3. In other
northern states, state judges simply declined to hear rendition
proceedings involving alleged fugitive slaves. Finkelman, 24 Rutgers L.J.
at 664. The unintended consequence of Prigg was that without
assistance from local state judges and local law enforcement, recovery of
fugitive slaves became far more difficult. See id.; Schmitt, 103 Geo. L.J.
Online at 4.
Congress responded to this state of affairs by passing an Act as
part of the Compromise of 1850 to amend and supplement the 1793 Act.
67
Act of Sept. 18, 1850, ch. 60, 9 Stat. 462 (repealed 1864). In passing the
1850 Act, Congress sought to empower the federal government to enforce
the fugitive slave law despite northern resistance. Schmitt, 103 Geo. L.J.
Online at 4. The 1850 Act did not repeal any portion of the 1793 Act.
Johnson, 31 Yale L.J. at 169–72. Instead, it created the vast federal
infrastructure necessary to meet the demand for fugitive slave rendition
proceedings by authorizing federal judges to appoint commissioners with
authority to preside over those proceedings and issue certificates
permitting the removal of individuals claimed as slaves. See §§ 1–4, 9
Stat. at 462. In addition, it made a marshal’s refusal to receive or
execute an arrest warrant for an alleged fugitive slave a crime punishable
by a fine of one thousand dollars and subjected marshals to civil liability
for the value of the labor of fugitive slaves who escaped from their
custody. See § 5, 9 Stat. at 462–63. It further authorized commissioners
to appoint persons to assist in the execution of arrest warrants and gave
persons so authorized the power to summon bystanders to their aid. Id.
Besides creating the federal machinery necessary to implement
fugitive slave rendition, the 1850 Act explicitly authorized slave owners
and their agents to reclaim fugitive slaves by procuring arrest warrants
or seizing and arresting them directly “without process.” § 6, 9 Stat. at
463. Following arrest, an alleged fugitive slave was to be brought before
a commissioner or judge whose duty was to “hear and determine the case
. . . in a summary manner.” Id. Upon receipt of “satisfactory proof,” the
commissioner or judge was to issue a certificate that would be
“conclusive of the right” of the person in whose favor it was granted to
remove the fugitive slave to the state or territory from whence he came
and “prevent all molestation of such person . . . by any process issued by
any court, judge, magistrate, or other person.” § 6, 9 Stat. at 463–64. A
68
deposition transcript or affidavit duly authenticated by any court in the
state or territory from which a fugitive slave allegedly escaped in which
the claimant affirmed the identity of the alleged fugitive slave and
affirmed that individual in fact owed him service or labor constituted
“satisfactory proof” under the Act. § 6, 9 Stat. at 463. The 1850 Act
expressly forbid the admission of testimony by alleged fugitive slaves into
evidence in their own rendition proceedings. Id. It also provided that
each commissioner charged with hearing rendition proceedings was to be
paid a fee of ten dollars for each proceeding in which he granted a
certificate authorizing the removal of a fugitive slave and five dollars for
each proceeding in which he did not. § 8, 9 Stat. at 464. Finally, unlike
the 1793 Act, the 1850 Act subjected any person who obstructed or
hindered the arrest of a fugitive slave, aided or abetted the escape of a
fugitive slave, or harbored or concealed a fugitive slave to civil and
criminal liability, making such acts a crime punishable by a fine of one
thousand dollars and six months’ imprisonment and making persons
who committed such acts liable to slave owners in civil debt proceedings.
§ 7, 9 Stat. at 464.
Following the passage of the 1850 Act, the fugitive slave law clearly
had much sharper teeth. H. Robert Baker, The Fugitive Slave Clause and
the Antebellum Constitution, 30 Law & Hist. Rev. 1133, 1163 (2012)
[hereinafter Baker]. Indeed, it appeared to have been “drawn with
diabolical ingenuity.” Johnson, 31 Yale L.J. at 171. As one legal
commentator noted, “The features which made this act so odious to men
and women who abhorred human slavery strike one in the face.” Id. The
provisions in the Act severely curtailing the process available to
individuals alleged to be fugitive slaves were particularly problematic:
69
Even if an alleged fugitive slave claimed mistaken identity,
he was forbidden to testify, and relegated to a summary
juryless proceeding in which the magistrate would pocket
ten dollars if he found for the slave catcher but only five
dollars if he found for the black man.
Akhil Reed Amar, The Supreme Court, 1999 Term—Foreward: The
Document and the Doctrine, 114 Harv. L. Rev. 26, 70 (2000) [hereinafter
Amar].
During heavily attended public meetings in northern states, the
amended fugitive slave law was broadly condemned as immoral and
unconstitutional. Baker, 30 Law & Hist. Rev. at 1165. Because it
sharply curtailed the ability of northern states to provide “basic fair-trial
rights, including an unbiased decision-maker” to alleged fugitive slaves,
its passage also “heightened abolitionists’ sensitivity to fair procedure.”
Elizabeth B. Wydra, The Fourteenth Amendment’s Due Process Clause
and Caperton: Placing the Federalism Debate in Historical Context, 60
Syracuse L. Rev. 239, 242 (2010). Although the amended fugitive slave
law did not forbid individuals claimed as fugitive slaves from being
represented by counsel during their summary rendition proceedings, it
did not guarantee counsel for alleged slaves. Paul Finkelman, Legal
Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and
Abolitionist Attorneys, 17 Cardozo L. Rev. 1793, 1804 (1996). Therefore,
even though the summary proceedings provided for under the amended
law were technically civil proceedings, several northern states provided
appointed counsel to individuals claimed as fugitive slaves facing the
prospect of rendition. Amar, 114 Harv. L. Rev. at 68 n.133; Robert A.
Mikos, Indemnification As an Alternative to Nullification, 76 Mont. L. Rev.
57, 58–59, 59 n.9 (2015). Additionally, “states continued to pass
personal liberty laws and, in some areas, state officials even actively
70
interfered with federal enforcement.” Schmitt, 103 Geo. L.J. Online at
4. 25
It was against the backdrop of this history that the framers of the
Iowa Constitution debated the content of the guarantees to be afforded
Iowans under article I, section 10 and the circumstances in which those
guarantees ought to apply.
On the thirteenth day of the convention, the framers accepted a
proposed amendment to the draft constitution adding the “cases”
language to article I, section 10. 1 The Debates, at 201. Thereafter, as it
appeared in the draft constitution the framers considered during the
convention, the text of article I, section 10 provided,
In all criminal prosecutions, and in all cases involving
the life or liberty of an individual, the accused shall have the
right to a speedy and public trial by an impartial jury, to be
informed of the accusation against him, and have a copy of
the same when demanded; to be confronted with the
witnesses against him, to have compulsory process for his
own witnesses, and to have the assistance of counsel.
See id. 26 More than two weeks later, on the thirty-first day of the
convention, Mr. Amos Harris of Appanoose County moved to strike the
“cases” language from article I, section 10. 2 The Debates, at 736.
Specifically, Mr. Harris proposed striking the phrase “and in all cases
involving the life or liberty of an individual” from article I, section 10,
25When a case involving interference with enforcement of the Act finally reached
the Supreme Court in 1859, the Court summarily upheld the Act as constitutional in its
entirety. Ableman v. Booth, 62 U.S. 506, 507, 526, 16 L. Ed. 169, 170, 177 (1858).
26We acknowledge the text appearing in article I, section 10 of the 1857 Iowa
Constitution differed from that approved during the constitutional convention in two
respects. Compare 2 The Debates, at 741, with Iowa Const. art. I, § 10 (1857). First, it
did not contain the word “all” before the word “cases.” Second, it included a comma
after the word “life.” The transcript of The Debates contains no explanation for these
differences, as the vote rejecting the proposal to eliminate the phrase “and in all cases
involving the life or liberty of an individual” from article I, section 10 was the last
occasion on which the framers discussed article I, section 10 on the convention floor.
71
sparking a fiery debate among the framers as to the meaning and effect
of that phrase. Id. at 736–41.
In support of his proposal to remove the “cases” language from
article I, section 10, Mr. Harris stated his belief that its import would be
“to give any person that may be arrested, who may be taken up in any
shape or way in this state, the right of jury trial immediately, and in this
state.” Id. at 736. He then explained why providing persons who had
“taken up” within the state the right to a jury trial within it would conflict
with the United States Constitution. Id. With respect to fugitives from
justice who committed a crime in another state and fled to Iowa, he
argued the United States Constitution required such persons to be tried
where the offense was committed. Id. With respect to individuals
claimed as fugitive slaves who fled to Iowa, he asserted such persons
could not have a jury trial within the State because state law “would
prevent any person from proving their right to the labor of any person
who might be a slave” as they would be unable to establish a property
right in another person. Id. 27 Accordingly, Mr. Harris opined that
providing fugitive slaves the right to a jury trial in Iowa “would be
equivalent to saying at once, that any slave in the territory of this state
shall have the right to assert his freedom, and cannot be remanded back
into slavery.” Id.
The first person to speak in favor of retaining the “cases” language
was Mr. John Clark of Alamakee County. Id. at 737. Mr. Clark argued
the United States Constitution already secured “to any individual who
27The Supreme Court of the Territory of Iowa, in its first reported case, had
“refused to treat a human being as property to enforce a contract for slavery and held
our laws must extend equal protection to persons of all races and conditions” in a
habeas corpus action brought by a fugitive slave. See Varnum v. Brien, 763 N.W.2d
862, 877 (Iowa 2009) (discussing In re Ralph, 1 Morris 1, 9 (Iowa 1839)).
72
may be arrested under the laws of this State or under the jurisdiction of
this State” all the rights that would be secured to him by the “cases”
language in article I, section 10. In his view, the federal constitutional
provision stating no person shall be deprived of life, liberty, or property
without due process of law already guaranteed that factual
determinations implicating the liberty of alleged fugitive slaves would be
made in common law courts. See id. But he asserted the “cases”
language would have “no reference” to alleged fugitives from justice
“being arrested in preparation for trial,” arguing it would merely assure
such an individual would not “be deprived of liberty . . . upon the trial
which is to settle for all coming time the questions as to his right to
liberty.” Id. He asked, “Are not persons arrested every day for the
purpose of examination, to ascertain whether there is proper cause for
retaining them until they shall be put on final trial?” Id.
Mr. Clark acknowledged the intent of the “cases” language was to
prevent alleged fugitive slaves from having their fate summarily
determined in another state without process. During his passionate
speech on the convention floor, he argued the “cases” language would
secure trial rights essential to state sovereignty:
Gentlemen will say perhaps that there is no danger of my
being claimed as a fugitive slave. I do not know whether
there is not. I apprehend that people as white as I am have
been claimed as fugitive slaves. And if I am found within the
jurisdiction of this State, it is a principle of sovereignty, that
if I am arraigned upon a charge that I do not own myself,
that I am not a free man, I have the right to a trial here
where I am found; and the laws of the State should
guarantee to me that right. We cannot be independent, we
cannot be sovereign, without that right. We cannot protect
our citizens without it. I do not care whether the case is
probable or not.
73
Id. at 737–38. He also sought to illustrate the practical effect of
providing only minimal procedural protections to individuals claimed as
fugitive slaves under the amended fugitive slave law:
Suppose that a man in Missouri comes over here and
claims a horse, which he finds in my possession. He cannot
dispossess me of that horse and take it to Missouri without
giving me the benefit of a jury trial to ascertain whether that
horse is mine or his. But if he wishes to put in a false claim
to that horse, which he would be unwilling to submit to a
jury of this State, where I have the means of proving that the
property is mine, all he has to do is to go back to Missouri
and make out a case describing me as a fugitive slave. Then
he can take me, deprive me of my right of being heard by a
jury, and thus secure me and my horse too!
Id. at 738. Unsurprisingly, he believed there were “serious doubts” as to
the constitutionality of the fugitive slave law. Id. But he acknowledged
that if the law were constitutional, “the higher law, the law of the United
States,” would prevail over article I, section 10. Id.
Next, Mr. James Wilson of Henry County spoke in favor of
retaining the “cases” language in article I, section 10, arguing its
application in the context of alleged fugitive slaves was vastly different
than its application in the context of fugitives from justice. Id. at 738–
39. According to Mr. Wilson, the reason an alleged fugitive from justice
accused of committing a particular crime was to be delivered upon
demand by the governor of the state in which the crime was committed
was that only that state had jurisdiction to punish its commission. Id. at
739. In contrast, he pointed out, a charge alleging a person is a fugitive
slave “is primary in its character, and is brought” wherever he or she is
found. Id. In concluding, Mr. Wilson argued the “cases” language
reflected important principles recognized by the founding fathers, stating,
If there is anything in the government of the United States
which has sprung up from the interpretation of the
constitution, or which has grown out of the statutes of
74
Congress, with which the provision under consideration
comes in conflict, then I say the sooner we get rid of it the
better, the sooner we assert our determination to stand by
the principles of the Fathers, the better for our country, the
better for ourselves, the better for posterity.
Id.
Finally, Mr. J.C. Hall of Des Moines County spoke passionately in
favor of striking the “cases” language from article I, section 10. Id. at
740. In particular, Mr. Hall argued those who sought to retain the
“cases” language in article I, section 10 sought to exceed the limits of
state sovereignty:
In some things this State is sovereign; but in some things it
is not sovereign. In some things the United States are
sovereign, and in some things they are not sovereign. . . .
Now, sir, as to this subject upon which this insidious clause
is attempted to be engrafted into our Constitution, we, as a
State, have said that the United States should be sovereign
upon that question. . . . It is part of the Constitution of the
United States. . . . Now, sir, the person who wishes to bring
our State into collision with that instrument, or who wishes
to put into our constitution a defiance against the exercise of
that branch of sovereignty confided to the United States, and
yielded to the United States by the Constitution, goes one
step toward becoming a traitor to that instrument.
....
. . . That government is supreme in regard to that
question. The decisions of its courts are supreme with
regard to it. We cannot interfere without collision and
rebellion against that Constitution. Are we now to make our
primary law come in conflict with that? . . . I do not believe
that the majority of this convention can be brought into
collision with the General Government upon that matter, or
sow the seeds of treason in the constitution we are framing.
Id. at 740–41.
After Mr. Harris, Mr. Clark, Mr. Wilson, and Mr. Hall had each
expressed their views concerning the effect of the phrase “in all cases
involving the life or liberty of an individual” on the rights afforded by
article I, section 10, the convention voted on the proposal to strike it
75
from the draft constitution. Id. at 741. The convention rejected that
proposal and voted to retain the “cases” language by a vote of 21 to 14.
Id.
When considered in historical context, we can infer much about
the framers’ intentions concerning the “cases” language appearing in
article I, section 10 from their debate over its inclusion in the Iowa
Constitution.
First, it appears clear that the primary concern of those who
wished to strike the “cases” language from article I, section 10 was that
its inclusion would cause the Iowa Constitution to conflict with federal
law and the United States Constitution. See id. at 736, 740–41. To this
concern, the framers who spoke in favor of retaining the “cases” language
responded in myriad ways. In response to the assertion article I, section
10 would conflict with the fugitive slave law if it included the “cases”
language, they contended the fugitive slave law was itself
unconstitutional because it denied alleged fugitive slaves the rights
secured to them under the United States Constitution. Id. at 737–39. As
for the assertion that the “cases” language would cause our state
constitution to conflict with the federal law governing the extradition of
fugitives from justice, they argued the inclusion of the “cases” language
would not secure article I, section 10 rights to individuals charged with
crimes in other states or territories. See id. at 737, 739. In drawing that
conclusion, they noted that under the fugitive slave law, as opposed to
the law governing the extradition of fugitives from justice, the final
76
determination regarding an accused person’s liberty was to be made in a
proceeding occurring within the State. See id. 28
Second, it is evident framers on both sides of the debate recognized
the phrase “in all cases involving the life or liberty of an individual” was
broad enough to apply in civil cases in which a final determination of an
individual’s liberty was to be made within the State. Whatever
differences of opinion existed among the framers as to how best to
interpret the “cases” language in article I, section 10, those differences by
no means overshadowed the similarities. Rendition proceedings under
the fugitive slave law were civil proceedings. Amar, 114 Harv. L. Rev. at
68 n.133. The law required any person who arrested an alleged fugitive
slave to bring the arrested individual before a court, judge, or
commissioner “of the proper circuit, district, or county, for the
apprehension of such fugitive.” See § 6, 9 Stat. at 463. It further
required any commissioner or judge presiding over such a proceeding to
issue a certificate conclusive of the individual’s right to liberty upon
presentation of a duly authenticated transcript or affidavit stating he or
she owed service or labor. See id.; see also Johnson, 31 Yale L.J. at 170–
71. Furthermore, a rendition proceeding constituted the only summary
proceeding during which the liberty of an alleged fugitive slave was to be
determined under the law—essentially an initial appearance and a
proceeding on the merits rolled into one.
Third, there can be no dispute that the framers generally
understood the “cases” language would extend article I, section 10 rights
28This case does not require us to determine whether an individual facing
extradition from Iowa because he or she has been charged with a crime in another state
has a right to counsel under any provision of the United States Constitution or the Iowa
Constitution.
77
to criminal cases in addition to civil ones. The language the framers
considered and voted to approve during the debates at the constitutional
convention plainly referred to “all cases involving the life or liberty of an
individual.” 1 The Debates, at 201 (emphasis added); 2 The Debates, at
741 (emphasis added). The disagreement among the framers as to
whether including the “cases” language in article I, section 10 would
secure rights to fugitives from justice by no means suggests the framers
disagreed concerning its plain meaning. At a minimum, cases involving
the life of an individual include criminal prosecutions in which the death
penalty is sought, and cases involving the liberty of an individual include
those in which an individual’s physical liberty is at stake by means of his
or her arrest. That the framers debated the question of whether the
“cases” language would extend article I, section 10 rights to fugitives
from justice confirms that they believed its plain meaning was broad
enough to extend those rights to criminal cases implicating the liberty of
individuals accused of crimes at least in cases in which Iowa courts have
jurisdiction to punish criminal conduct. See 2 The Debates, at 736–39.
Hence, the subsequent vote of the convention to retain the “cases”
language clearly signals the framers’ intent to extend article I, section 10
rights to criminal cases involving the arrest of an individual.
Fourth, 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 10.29 The fugitive slave law and the law governing the
29The “cases” language approved by the framers during the constitutional
convention did not explicitly limit its import to cases implicating physical liberty. See 2
The Debates, at 741. Rather, the word “liberty” appearing in article I, section 10 is
unqualified by any restricting terms, suggesting the framers likely intended it to be
construed in its broadest sense. See Iowa Const. art. I, § 10. To decide this case,
78
extradition of fugitives from justice authorized the physical seizure and
arrest of individuals claimed as fugitive slaves and individuals charged
with committing crimes in other states and territories, respectively. See
§ 6, 9 Stat. at 463; § 1, 1 Stat. at 302. Though the framers did not
unanimously agree as to whether the inclusion of the “cases” clause in
article I, section 10 would secure rights to fugitives from justice who
would ultimately be tried on criminal charges in other states, the framers
implicitly agreed that its import was to secure article I, section 10 rights
to all arrested persons facing a final determination of their rights under
the jurisdiction of our state courts. See 2 The Debates, at 736–39. In
fact, even Mr. Harris, who opposed the inclusion of the clause, 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. at 736.
Fifth, the framers understood the inclusion of the phrase “in all
cases involving the life or liberty of an individual” in article I, section 10
would extend rights thereunder beyond the formal initiation of judicial
proceedings in qualifying cases involving liberty. See id. at 736–39. The
first edition of Black’s Law Dictionary indicated the term “case”
historically was understood to be a “general term for an action, cause,
suit, or controversy, at law or in equity.” Case, Black’s Law Dictionary
(1st ed. 1891). It further described the term “cause” as generally
referring not “to the legal procedure of a controversy” but “to its merits or
_________________________
however, we need not decide whether article I, section 10 extends the right to counsel to
cases involving other liberty interests. Notwithstanding that fact, we have previously
recognized the Iowa Constitution contemplates other liberty interests, such as a
parent’s “fundamental liberty interest in childrearing.” Santi v. Santi, 633 N.W.2d 312,
321 (Iowa 2001).
79
the state of facts involved.” Cause, Black’s Law Dictionary (emphasis
added).
Importantly, the historical context in which the framers adopted
the “cases” clause appearing in article I, section 10 yields additional
insights into their intentions. In particular, history indicates the framers
sought to assure that individuals involved in cases implicating their
liberty had the ability to defend it effectively, not merely the right to be
heard before a jury. By its terms, the fugitive slave law granted alleged
fugitive slaves a statutory right to determinations as to their identity and
whether they in fact owed service or labor. See § 6, 9 Stat. at 463. But
such determinations were to be made immediately following their arrest
during summary proceedings presided over by biased decision-makers in
which procedural protections would be severely curtailed. See id. Even
if the law had secured alleged fugitive slaves the right to have those
determinations made by impartial juries, it is hard to imagine how an
alleged fugitive slave might have secured his liberty during a summary
proceeding in which he was barred from testifying in his own defense and
lacked the ability to confront the person whose deposition testimony or
affidavit was offered against him. See id. The rights to “assistance of
counsel” and “compulsory process for his witnesses” could only have
meaningfully assisted him in the context of a summary proceeding if they
attached before that proceeding took place. See Iowa Const. art. I, § 10.
More fundamentally, as the plurality opinion recognizes, the
“cases” clause of article I, section 10 was adopted, at least in part, to
restore process stripped away by the fugitive slave law. Consequently, it
is particularly relevant to its proper interpretation that the Iowa
Constitution was adopted in the midst of the antebellum era. Though we
now generally recognize the escalating tensions between the northern
80
and southern states had nearly reached their apex at that time, the
framers of the Iowa Constitution lacked the benefit of hindsight in an
uncertain age. Given their apparent motivations and the context in
which those motivations arose, the framers surely did not intend the
“cases” clause to be narrowly interpreted. As we have previously
recognized, “the ‘cases’ language of article I, section 10 has broader
application than the immediate problem it was designed to ameliorate.”
Young, 863 N.W.2d at 279.
When carrying out our fundamental and vital role to interpret the
state constitutional guarantees invoked by individuals appearing before
us, “we must never forget that it is a constitution we are expounding.”
Varnum v. Brien, 763 N.W.2d 862, 876 (Iowa 2009) (quoting McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L. Ed. 579, 602 (1819)). As we
have previously recognized in the context of interpreting article I, section
10,
unlike statutes, our constitution sets out broad general
principles. A constitution is a living and vital instrument.
Its very purpose is to endure for a long time and to meet
conditions neither contemplated nor foreseeable at the time
of its adoption.
In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977). The framers of the Iowa
Constitution created “a constitution intended to endure for ages to come,
and, consequently, to be adapted to the various crises of human affairs.”
Honorable Mark S. Cady, A Pioneer’s Constitution: How Iowa’s
Constitutional History Uniquely Shapes Our Pioneering Tradition in
Recognizing Civil Rights and Civil Liberties, 60 Drake L. Rev. 1133, 1148
(2012) (quoting McCulloch, 17 U.S. at 415, 4 L. Ed. at 579).
We have long recognized the plain meaning of the language in the
“cases” clause of article I, section 10 suggests that it extends the rights
81
enumerated therein “beyond criminal prosecutions.” Johnson, 257
N.W.2d at 53. We have also recognized its inclusion in article I, section
10 amounts to strong support for interpreting the right to counsel to
apply not only to civil cases in which “liberty” interests are implicated,
but also to criminal cases in which “liberty” is at stake. Young, 863
N.W.2d at 279. In light of the plain meaning of the language contained
in the “cases” clause and the historical context in which it was adopted,
it is time we recognized that the phrase “in cases involving the life, or
liberty of an individual” in article I, section 10 extends the right to
counsel under the Iowa Constitution at least to arrested individuals
suspected of crimes with respect to which their guilt or innocence will be
determined in a judicial proceeding under the jurisdiction of our state
courts.
Our decision in Ex parte Grace, 12 Iowa 208 (1861), a case we
decided just four years after the 1857 adoption of article I, section 10,
reinforces my conclusion concerning the proper scope of the right to
counsel afforded by the “cases” clause. In Grace, we held a civil statute
authorizing supplementary proceedings in aid of execution violated
article I, section 10. Id. at 211–12, 217. The statute authorized judges
to find facts, order judgment debtors to deliver property in satisfaction of
debts, and order the arrest and imprisonment of judgment debtors found
guilty of contempt for failing to follow such orders. Id. at 211–12. In
concluding the statute violated article I, section 10, we stated,
It is claimed by counsel that the change in § 10, of the
Bill of Rights, was only intended to meet the case of a
fugitive slave. Whatever may have been the primary motive
of some, or all of the members of the constitutional
convention, in incorporating this provision, we can certainly
see no reason in the nature of things, nor in the language
employed, to justify the conclusion that white men were not
also entitled to the benefit of it. We can not believe that it
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was intended to give the right of trial by jury to the
occasional fugitive slave found in our State, and to withhold
it in cases of equal magnitude and vital importance, from the
half million of free white inhabitants of the State.
Id. at 213. The same analysis applies with respect to the right to counsel
secured under article I, section 10 today when the State arrests an
individual suspected of a crime who faces the prospect of a final
determination as to his or her guilt or innocence.
For these reasons, I believe Senn’s right to counsel attached when
he was arrested for suspicion of driving under the influence in violation
of Iowa Code section 321J.2, a serious misdemeanor. At that point,
Senn faced a case involving his liberty within the meaning of article I,
section 10. Thus, I now consider whether Senn faced a critical stage in
the criminal process associated with his case when Officer Cuppy read
him the implied-consent advisory and asked him to submit to a chemical
test. If so, article I, section 10 guaranteed him the right to effective
assistance of counsel.
When an individual suspected of driving under the influence
submits to a chemical test that will determine his or her blood-alcohol
concentration, that individual may be providing the government with
“nearly conclusive evidence of a serious crime.” Missouri v. McNeely, 569
U.S. ___, ___, 133 S. Ct. 1552, 1571, 185 L. Ed. 2d 696, 718 (2013)
(Roberts, C.J., concurring in part, dissenting in part). In a prosecution
for OWI under Iowa Code section 321J.2, the State may prove its case
merely by showing beyond a reasonable doubt (1) that the defendant
operated a motor vehicle (2) while having a blood-alcohol concentration
of .08 or more. See Iowa Code § 321J.2(1)(b). To lawfully arrest an
individual for OWI, an officer must have probable cause to believe each
83
element of the offense has occurred. See State v. Lindeman, 555 N.W.2d
693, 696 (Iowa 1996).
Often when an officer arrests an individual suspected of OWI, the
officer has witnessed him or her operating a motor vehicle in an erratic
fashion. Alternatively, the officer might have witnessed the individual
engaging in other conduct suggesting his or her intoxication during a
routine stop for a minor traffic violation. The point is that before an
officer may lawfully arrest an individual for the offense of OWI, the officer
must have probable cause to believe the individual was driving while in
an intoxicated state. In other words, the officer must conclude the
totality of the circumstances viewed by a reasonably prudent person
would lead him or her to believe the individual drove a motor vehicle with
the requisite degree of intoxication. The officer’s testimony will ordinarily
be sufficient to prove the first element of the State’s case in a drunk-
driving prosecution. Thus, the State will have effectively proven its case
if the results of a chemical test to which the defendant submitted
following arrest indicate the defendant had a blood-alcohol concentration
of .08 or higher.
The United States Supreme Court’s recent decisions addressing
the admissibility of evidence obtained by officers invoking implied-
consent procedures support the conclusion that an arrested individual
deciding whether to submit to a chemical test after an officer administers
an implied-consent advisory faces a critical stage of the criminal process
under the Iowa Constitution. In Missouri v. McNeely, a driver arrested on
suspicion of operating while intoxicated refused to provide a blood
sample upon request after an officer administered a routine implied-
consent advisory. ___ U.S. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at
84
702–03 (majority opinion). 30 However, the officer ordered the driver’s
blood be drawn for chemical analysis without a warrant despite the
driver’s refusal to consent. Id. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d
at 703. The Court framed the issue on appeal as one concerning the
admissibility of a “nonconsensual” chemical test. Id. at ___, 133 S. Ct. at
1558, 185 L. Ed. 2d at 703–04. Five justices concluded the natural
dissipation of alcohol in the bloodstream did not create a per se exigency
to the warrant requirement and determined the existence of an exigency
in the drunk-driving context “must be determined case by case based on
the totality of the circumstances.” Id. at ___, 133 S. Ct. at 1556, 185 L.
Ed. 2d at 702. The five justices agreed that in “drunk-driving
investigations where police officers can reasonably obtain a warrant
before a blood sample can be drawn without significantly undermining
the efficacy of the search, the Fourth Amendment mandates that they do
so.” Id. at ___, 133 S. Ct. at 1561, 185 L. Ed. 2d at 707. In the
immediate wake of McNeely, numerous state courts concluded implied-
consent schemes permitting warrantless blood draws from suspected
drunk drivers in the absence of affirmative consent violate the Fourth
Amendment. See, e.g., State v. Butler, 302 P.3d 609, 613 (Ariz. 2013) (en
banc); State v. Wulff, 337 P.3d 575, 578, 582 (Idaho 2014); Byars v.
State, 336 P.3d 939, 945–46 (Nev. 2014); State v. Fierro, 853 N.W.2d 235,
243 (S.D. 2014); State v. Wells, No. M2013-01145-CCA-R9-CD, 2014 WL
30The implied-consent advisory indicated that under state law the driver’s
refusal to submit would result in the immediate revocation of his driver’s license for one
year. Id. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d 702–03. In addition, a state statute
provided any person who operated a vehicle on a public highway within the state was
“deemed to have given consent to” a chemical test. Mo. Rev. Stat. §§ 577.020.1, .041
(2011). Like the statute in McNeely, the Iowa Code provides that implied consent to a
chemical test exists whenever any person operates a motor vehicle under specified
conditions anywhere within the State. See Iowa Code § 321J.6.
85
4977356, at *13 (Tenn. Crim. App. Oct. 6, 2014); Weems v. State, 434
S.W.3d 655, 665 (Tex. App. 2014), aff’d, ___ S.W.3d ___ (Tex. Crim. App.
2016) petition for discretionary review granted (Aug. 20, 2014); see also
State v. Declerck, 317 P.3d 794, 804 (Kan. Ct. App. 2014), review denied
(June 20, 2014).
Just three years after McNeely, the Court analyzed the
admissibility of warrantless blood and breath tests administered on
individuals arrested on suspicion of drunk driving as searches incident
to arrest in Birchfield v. North Dakota, 579 U.S. ___, ___, 136 S. Ct. 2160,
2166, ___ L. Ed. 2d ___, ___ (2016). Ultimately, the Court determined the
warrantless administration of a blood test to determine the blood-alcohol
level of a person arrested for drunk driving violates the Fourth
Amendment, but the warrantless administration of a breath test under
the same circumstances is permissible as a search incident to arrest. Id.
at ___, 136 S. Ct. at 2176, ___ L. Ed. 2d at ___. Therefore, a state statute
imposing a criminal penalty on an individual arrested on suspicion of
drunk driving who refuses to submit to a warrantless breath test to
determine his or her blood-alcohol level does not violate the United
States Constitution, but a state statute imposing a criminal penalty for
an individual’s refusal to submit to a warrantless blood test following his
or her arrest on suspicion of drunk driving is unconstitutional. Id. at
___, ___, 136 S. Ct. at 2171, ___ L. Ed. 2d at ___, ___.
The McNeely and Birchfield decisions illustrate that an individual
seeking to understand the scope of his or her rights under the United
States Constitution in the implied-consent context would almost
certainly require the benefit of legal counsel in order to do so. The same
observation surely applies to any individual questioning the scope of his
or her rights in the implied-consent context under the Iowa Constitution.
86
Admittedly, when an officer invokes Iowa’s implied-consent
procedure and asks an individual who is under the influence to submit
to chemical testing, that individual ultimately faces an adverse
consequence, whether in the form of a criminal penalty or a civil penalty.
See Iowa Code §§ 321J.2(2)–(7), .9(1)–(2). A first OWI offense is
punishable by a minimum period of imprisonment for forty-eight hours
with a total period of incarceration not to exceed one year or a deferred
judgment with probation. Id. § 321J.2(3). A first refusal to submit to a
chemical test results in the automatic revocation of one’s license for a
period of a year with eligibility to apply for a temporary restricted license
after ninety days. Id. §§ 321J.9(1)(a), .20. Weighing the pros and cons of
deciding between these two alternatives would be difficult for most people
under the best of circumstances. To make the right decision, an
individual suspected of OWI must quickly consider not only what the
State can prove and what the likely penalty will be, but also what the
future consequences might be for his or her occupation, family, and
personal wellbeing. The decision is final, and it will determine both the
range of criminal penalties the individual will face and the charge that
will appear on his or her permanent criminal record. In these respects,
the decision to submit or refuse to submit to a chemical test resembles
the decision to plead to criminal charges.
For these reasons, I would conclude Senn faced a critical stage of
the criminal process in the case against him when Officer Cuppy read
him the implied-consent advisory and asked him to submit to a chemical
test to determine his blood-alcohol concentration. Because I believe
Senn was entitled to the assistance of counsel under article I, section 10
of the Iowa Constitution, I believe he was also entitled to effective
assistance of counsel. Williams, 207 N.W.2d at 104. We previously
87
recognized that “if a criminal defendant is to receive the full benefits of
the right to counsel, the confidence and privacy of communications with
counsel must be assured.” Wemark v. State, 602 N.W.2d 810, 816 (Iowa
1999). Accordingly, I conclude Senn was entitled to communicate with
his attorney confidentially and privately under article I, section 10. See
Walker, 804 N.W.2d at 293.
In my view, the plurality and concurring opinions fail to appreciate
that the liberty interests of individuals who have been arrested and read
implied-consent advisories are liberty interests the Iowa Constitution was
clearly intended to protect. See Grace, 12 Iowa at 213. I would therefore
reverse Senn’s conviction. For these reasons, I respectfully dissent.
Hecht and Appel, JJ., join this dissent.
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#15–0624, State v. Senn
APPEL, Justice (dissenting).
I respectfully dissent from the result in this case.
I. Factual Background.
The material facts are straightforward and undisputed. Senn was
stopped by police officer Brian Cuppy during the early morning hours of
September 1, 2014. Cuppy initiated the stop because Senn failed to
bring his vehicle to a stop in front of an intersection but came to a stop
well past the crosswalk. After the stop, Cuppy believed Senn displayed
signs of intoxication, administered field sobriety tests, and concluded
that Senn might be under the influence of alcohol. Cuppy arrested Senn
and took him to the police station for chemical testing.
At the station, Cuppy took Senn into a DataMaster breath alcohol
testing room and read the implied-consent advisory to him. Cuppy also
read Senn his rights under Iowa Code section 804.20. This Code
provision provides, 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. . . . If a call is made,
it shall be made in the presence of the person having
custody of the one arrested or restrained. . . . 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.
Iowa Code § 804.20 (2013).
Senn invoked his right to call an attorney. Senn was able to reach
his attorney and began talking with counsel. Officer Cuppy was a few
feet away. Senn told Cuppy he wished to have “attorney–client” privilege,
but Officer Cuppy stated Senn could not have that privilege while on the
89
phone call and could only do so if the attorney was there in person.
Cuppy refused to allow Senn privacy in his conversation with his
attorney. As a result, Senn and his attorney largely communicated
through yes-or-no questions.
Senn requested his attorney come to the station to aid him in
determining whether to submit to testing. Cuppy overheard that request
and advised Senn that he only had thirty-two minutes left to have a
private conversation with his lawyer. Senn continued to make potentially
incriminating statements to his lawyer within earshot of Cuppy and the
video recording device located in the room. Senn’s lawyer told him that
she could not meet with him within the prescribed time limit. Senn
began an attempt to contact other lawyers but was unsuccessful.
Senn’s consultation time expired, and Cuppy requested Senn
submit to a breath test. He did so and provided a breath sample
revealing a blood alcohol content of .140 percent. He was subsequently
transported to the Polk County Jail. Senn was charged with first offense
operating a motor vehicle while under the influence in violation of Iowa
Code section 321J.2. Senn pled not guilty. He filed a motion to
suppress the testing results. Among other things, he claimed the test
result was obtained in violation of his right to have a private telephonic
conference with his counsel.
The district court denied the motion to suppress. According to the
district court, Senn’s right to counsel had not attached as the officer was
investigating a charge of operating a motor vehicle while intoxicated
(OWI). The district court also noted that Cuppy never interrogated Senn.
Senn was subsequently tried on the minutes and found guilty of OWI.
Senn appeals.
90
II. Standard of Review.
We review questions of constitutional interpretation de novo. State
v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015); State v. Baldon, 829 N.W.2d
785, 789 (Iowa 2013); State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).
III. Attachment of Right to Counsel in “All Criminal
Prosecutions” in Federal and State Courts.
A. United States Constitution: Functional vs. Formal Analysis.
The Sixth Amendment provides that “[i]n all criminal prosecutions the
accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. As is often the case with
constitutional provisions, the language is general and at least somewhat
open-ended. Obviously, the provision must mean at the very least that
there is a right to the assistance of counsel at trial.
But if the right to counsel is to mean anything, must it not apply
beyond the trial itself? Does the constitutional right to counsel apply to
ensure assistance that functionally suffices to protect defendants, or
does it apply only in certain and specific formal proceedings? These are
the questions posed in the famous Scottsboro case, Powell v. Alabama,
287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932). In Powell, lawyers were
appointed on the day of trial to represent the defendants, but the
Supreme Court found that such counsel was not sufficient. Id. at 56, 53
S. Ct. at 59, 77 L. Ed. at 164. Using a functional approach, the Supreme
Court determined that if the right to counsel at trial was to have any
meaning, there must be a right to pretrial counsel in order to assist in
the preparation of a defense. Id. at 68–69, 53 S. Ct. at 64, 77 L. Ed. at
170–71. Although Powell relied on due process rather than the right to
counsel, the functional analysis was unmistakable. Id. at 71, 53 S. Ct.
at 65, 77 L. Ed. at 172; see Alan K. Austin, The Pretrial Right to Counsel,
91
26 Stan. L. Rev. 399, 400–02 (1974) [hereinafter Austin] (describing the
functional approach to the right to counsel and tracing its origins to
Powell).
The Court used a similar functional approach in Escobedo v.
Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In
Escobedo, the Supreme Court considered a case where prior to
indictment, a murder suspect was held and extensively questioned at the
police station. Id. at 479, 84 S. Ct. at 1759, 12 L. Ed. 2d at 979. When
his lawyer appeared at the police station, he was not allowed to see his
client until the interrogation was complete. Id. at 480–81, 84 S. Ct. at
1759–60, 12 L. Ed. 2d at 979–80. During the interrogation, Escobedo
made a number of incriminating statements to the police interrogators.
Id. at 483, 84 S. Ct. at 1761, 12 L. Ed. 2d at 981.
Escobedo took a functional approach to the right to counsel. Id. at
486, 84 S. Ct. at 1762, 12 L. Ed. 2d at 983. “It would exalt form over
substance to make the right to counsel, under these circumstances,
depend on whether at the time of the interrogation, the authorities had
secured a formal indictment. [The defendant] had, for all practical
purposes, already been charged with murder.” Id.
The Supreme Court continued to utilize a functional approach to
the right to counsel in United States v. Wade, 388 U.S. 218, 87 S. Ct.
1926, 18 L. Ed. 2d 1149 (1967). In Wade, the Supreme Court considered
whether a defendant is entitled to counsel at a postindictment, pretrial
lineup. Id. at 219–20, 87 S. Ct. at 1928, 18 L. Ed. 2d at 1153. The
government in Wade asserted that the pretrial identification was “a mere
preparatory step in the gathering of the prosecution’s evidence.” Id. at
227, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1157–58.
92
The United States Supreme Court disagreed. Id. at 236–37, 87
S. Ct. at 1937, 18 L. Ed. 2d at 1162–63. The Wade Court emphasized
that the right to counsel should extend to critical phases where the
accused simply cannot effectively scrutinize evidence at trial. Id. at 227–
28, 87 S. Ct. at 1932–33, 18 L. Ed. 2d at 1158. In Wade, the Supreme
Court focused on the language of the Sixth Amendment providing “the
assistance of counsel” for the defense. Id. at 224–25, 87 S. Ct. at 1931,
18 L. Ed. 2d at 1156. According to the Court, “The plain wording of this
guarantee thus encompasses counsel’s assistance whenever necessary to
assure a meaningful ‘defence.’ ” Id. at 225, 87 S. Ct. at 1931, 18
L. Ed. 2d at 1156. Because there was the grave possibility of prejudice
in a pretrial lineup which cannot be reconstructed at trial, the Wade
Court concluded that such a lineup was a critical stage of the
prosecution where the defendant is entitled to the assistance of counsel
as much as at the trial itself. Id. at 228–32, 87 S. Ct. at 1933–35, 18
L. Ed. 2d at 1158–60.
As in Escobedo, the Wade Court rejected formalism. See id. at
226, 87 S. Ct. at 1931–32, 18 L. Ed. 2d at 1157 (stating that the right to
counsel would be “a very hollow thing” if the state could conduct pretrial
examinations absent defense counsel that would then assure conviction
at trial, no matter what the defense did (quoting Escobedo, 378 U.S. at
487, 84 S. Ct. at 1763, 12 L. Ed. 2d at 984)). As noted by Justice
Brennan, “the accused . . . need not stand alone against the State at any
stage of the prosecution, formal or informal, in court or out, where
counsel’s absence might derogate from the accused’s right to a fair trial.”
Id. at 226, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1157. Justice Brennan
further noted that the hazards are identical regardless of whether they
occur before or after the formal initiation of the adversary proceeding. Id.
93
The test the Wade Court articled was “whether potential substantial
prejudice to defendant’s rights inheres in the particular confrontation
and the ability of counsel to help avoid that prejudice.” Id. at 227, 87
S. Ct. at 1932, 18 L. Ed. 2d at 1157.
In Miranda v. Arizona, the Supreme Court developed a test for
attachment of rights under the Fifth Amendment. 384 U.S. 436, 439, 86
S. Ct. 1602, 1609, 16 L. Ed. 2d 694, 704 (1966). While Escobedo utilized
a vague “focus” test, the Miranda Court applied an objective standard of
custodial interrogation. See id. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at
719; Austin, 26 Stan. L. Rev. at 402. While the Miranda case
emphasized the Fifth Amendment right against self-incrimination, it is
clear that the Court considered the right to counsel as key to protecting
Fifth Amendment rights. See 384 U.S. at 510, 86 S. Ct. at 1646, 16
L. Ed. 2d at 744 (Harlan, J., dissenting) (suggesting that the majority’s
reliance on the Fifth Amendment was an optical illusion and that in fact
the majority was really creating new rules derived from Sixth Amendment
precedent); Austin, 26 Stan. L. Rev. at 403–04 (noting that the Sixth
Amendment was barely discussed in Miranda).
A changed makeup in the members of the Supreme Court,
however, began to undermine the functional approach and move toward
a more formalistic approach to the right to counsel. In Kirby v. Illinois,
the Supreme Court considered the question of when the right to counsel
attaches. 406 U.S. 682, 688, 92 S. Ct. 1877, 1881, 32 L. Ed. 2d 411,
417 (1972) (plurality opinion). In that case, a plurality declined to extend
the Sixth Amendment right to counsel prior to the initiation of judicial
criminal proceedings. Id. at 690, 92 S. Ct. at 1882–83, 32 L. Ed. 2d at
418. The Kirby plurality emphasized that it did not regard the boundary
94
of the initiation of adversarial judicial criminal proceedings to be “a mere
formalism.” Id. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 417–18.
Justice Brennan dissented. Id. at 691, 92 S. Ct. at 1883, 32
L. Ed. 2d at 419 (Brennan, J., dissenting). He argued that the formal
initiation of proceedings was an artificial date. Id. at 698–99, 92 S. Ct. at
1887, 32 L. Ed. 2d at 423. According to Justice Brennan, “identical
hazards” exist from focused interrogations and lineups regardless of
whether these interactions occur before or after the date of formal
adversary proceedings. Id. at 697–98, 92 S. Ct. at 1886–87, 32 L. Ed. 2d
at 423.
The movement away from the functional analysis of Powell,
Escobedo, and Wade continued in United States v. Gouveia, 467 U.S.
180, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984). In Gouveia, the Supreme
Court considered a claim of deprivation of the right to counsel brought
by prisoners charged with the murder of another inmate who were all
held in administrative segregation during the pendency of internal prison
disciplinary proceedings. Id. at 182–83, 104 S. Ct. at 2294–95, 81
L. Ed. 2d at 150–51. The United States Ninth Circuit Court of Appeals
held that the right to counsel attached at that time, making an analogy
to speedy trial cases where the right to a speedy trial attached at the time
of arrest. Id. at 185–86, 104 S. Ct. at 2295–96, 81 L. Ed. 2d at 152. The
Supreme Court rejected the Ninth Circuit’s approach. Id. at 192–93, 104
S. Ct. at 2300, 81 L. Ed. 2d at 157. The Gouveia majority emphasized
that the right to counsel was triggered by adversary judicial proceedings,
not the time of arrest. Id. at 187, 104 S. Ct. at 2297, 81 L. Ed. 2d at
153.
Justice Stevens, along with Justice Brennan, concurred in the
result but emphasized that the court’s new direction of analysis in right-
95
to-counsel cases did not foreclose the possibility that in some
circumstances, the right could attach prior to formal initiation of judicial
proceedings. Id. at 197–99, 104 S. Ct. at 2302–03, 81 L. Ed. 2d at 160–
61 (Stevens, J., concurring). The concurrence emphasized the Court’s
prior precedents “do[] not foreclose the possibility that the right to
counsel might under some circumstances attach prior to the formal
initiation of judicial proceedings.” Id. at 193, 104 S. Ct. at 2300, 81
L. Ed. 2d at 157. According to Justice Stevens, prior cases show that the
Sixth Amendment does not turn on the formal initiation of proceedings
but “rather on the nature of the confrontation between the authorities
and the citizen.” Id. at 195, 104 S. Ct. at 2301, 81 L. Ed. 2d at 159.
Justice Stevens concurred because he did not think that administrative
segregation in a prison, even under a functional test, triggered the right
to counsel. Id. at 197, 104 S. Ct. at 2302, 81 L. Ed. 2d at 160. Justice
Stevens’s concurrence is consistent with Miranda, which stated that
custodial interrogation was the “point [at which] our adversary system of
criminal proceedings commences.” Miranda, 384 U.S. at 477, 86 S. Ct.
at 1629, 16 L. Ed. 2d at 725.
Finally, the court considered whether to fully adopt the formal
approach in Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578,
171 L. Ed. 2d 366 (2008). In Rothgery, a former criminal defendant
brought an action asserting that the county violated his Sixth and
Fourteenth Amendment rights by following a policy of denying appointed
counsel to arrestees released from jail. Id. at 197, 128 S. Ct. at 2582–83,
171 L. Ed. 2d at 373. Rothgery appeared before a magistrate and was
told of the formal accusation against him, but the public prosecutor was
not aware of the initial proceeding or involved in the initial hearing. Id.
at 197–98, 128 S. Ct. at 2583, 171 L. Ed. 2d at 374. The question was
96
whether Rothgery after his initial appearance was entitled to appointed
counsel at state expense. Id. at 197, 128 S. Ct. at 2583, 171 L. Ed. 2d at
373.
The Supreme Court held that Rothgery was entitled to appointed
counsel. Id. at 213, 128 S. Ct. at 2592, 171 L. Ed. 2d at 383. The
Rothgery Court emphasized that after the filing of the accusation, a
defendant is then faced with “ ‘the prosecutorial forces of organized
society, and immersed in the intricacies of substantive and procedural
criminal law’ that define his capacity and control his actual ability to
defend himself” against the charge. Id. at 207, 128 S. Ct. at 2589, 171
L. Ed. 2d at 380 (quoting Kirby, 406 U.S. at 689, 92 S. Ct. at 1882, 32
L. Ed. 2d at 418). Nonetheless, Rothgery emphasized that attachment
occurs “when the government has used the judicial machinery to signal a
commitment to prosecute.” Id. at 211–12, 128 S. Ct. at 2591, 171
L. Ed. 2d at 382. “Rothgery represents a triumph of formalism over
functionalism . . . .” The Supreme Court, 2007 Term—Leading Cases, 122
Harv. L. Rev. 276, 313 (2008).
B. Concerns in Lower Federal Caselaw Regarding Bright-Line
Attachment of Right to Counsel.
1. Introduction. Lower federal courts, of course, are bound to
follow United States Supreme Court precedents. Jaffree v. Wallace, 705
F.2d 1526, 1532 (11th Cir. 1983). Nonetheless, review of lower federal
court precedents can fill in the gaps in Supreme Court precedent and
illuminate important consequences in varied factual circumstances.
As a general proposition, lower federal courts, even after Kirby and
Gouveia, remained divided on whether there could be exceptions to the
bright-line rule. A number of cases from the United States Courts of
Appeals for the First, Third, and Seventh Circuits seemed to recognize
97
the possibility that the right to counsel might attach at some point other
than arraignment in at least some circumstances. See Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 892 (3rd Cir. 1999) (noting
that the right to counsel may attach earlier when “the accused is
confronted, just as at trial, by the procedural system, or by his expert
adversary, or by both” (quoting Gouveia, 467 U.S. at 189, 104 S. Ct. at
2298, 81 L. Ed. 2d at 155)); Roberts v. Maine, 48 F.3d 1287, 1291 (lst
Cir. 1995) (“We recognize the possibility that the right to counsel might
conceivably attach before any formal charges are made, or before an
indictment or arraignment . . . .”); United States v. Larkin, 978 F.2d 964,
969 (7th Cir. 1992) (observing that the defendant “may rebut this
presumption [that right to counsel did not attach at preindictment
lineups] by demonstrating that, despite the absence of formal adversary
judicial proceedings, ‘the government had crossed the constitutionally
significant divide from fact-finder to adversary’ ” (quoting United States
ex rel. Hall v. Lane, 804 F.2d 79, 82 (7th Cir. 1986))); see generally
James S. Montana, Jr. & John A. Galotto, Right to Counsel: Courts
Adhere to Bright-Line Limits, Crim. Just., Summer 2001, at 4, 6, 8
(summarizing lower court interpretations of Kirby and Gouveia).
A review of lower federal courts indicates there was particular
concern with the Supreme Court’s inflexible bright-line approach to the
attachment of the right to counsel in at least four contexts: plea
bargaining, surreptitious interrogation, prefiling discovery, and prefiling
lineups. 31
31A number of state courts also, though following Kirby, expressed concern
about application of the rule. For example, a Missouri appellate court noted that the
bright-line approach in Kirby made little sense, noting that “[o]nce [the defendant] has
been identified by the victim, pre-informational or post-informational, to a large extent
98
2. Right to counsel in prefiling plea bargaining. A number of cases
have expressed concern about the failure of the Kirby bright-line rule to
provide for the assistance of counsel in cases in which the government
engages in plea bargaining with an accused prior to the formal
institution of judicial proceedings.
In United States v. Sikora, the United States Sixth Circuit Court of
Appeals considered a case of a probationer who was suspected of
continuing involvement with drugs. 635 F.2d 1175, 1176 (6th Cir. 1980)
(Wiseman, J., concurring in part and dissenting in part). A DEA agent
stated that they had enough evidence to indict and convict him and that
cooperation would be in his best interest. Id. Eventually, Sikora made
incriminating statements during the conversation with authorities. Id.
The majority stated that no adversary proceedings had commenced
against Sikora, and dismissed his appeal based on the admission of this
evidence. Id. at 1775 (majority opinion).
A partial dissent, however argued that the right to counsel
attached when the DEA agent discussed a plea agreement with Sikora
even though there had been no formal charges filed. Id. at 1176
(Wiseman, J., concurring in part and dissenting in part). The dissent
emphasized that “[t]here should be no cause for alarm at the prospect of
potential criminal defendants enjoying Sixth Amendment rights during
plea negotiations.” Id. at 1180. The dissent focused on language in
Kirby and emphasized that under the facts of the case, “the government
ha[d] committed itself to prosecute” and that “the adverse positions of the
parties ha[d] solidified.” Id. at 1181.
_________________________
he has had his trial.” State v. Gray, 503 S.W.2d 457, 460 (Mo. Ct. App. 1973); see Note,
The State Responses to Kirby v. United States, 1975 Wash. U. L. Q. 423, 436–41.
99
The approach of the dissent was followed in the post-Kirby case of
Chrisco v. Shafran, 507 F. Supp. 1312 (D. Del. 1981). In Chrisco, the
district court found a right to counsel prior to the initiation of judicial
proceedings where the government engaged in prefiling plea bargaining
with the defendant. Id. at 1319. According to the district court,
[T]he fact that the government is willing to engage in plea
bargaining is proof that the government has made a
commitment to prosecute and that the adverse positions of
the government and the defendant have solidified in much
the same manner as when formal charges are brought. . . .
Recognizing the important role played by counsel in plea
bargaining, I conclude that there can be factual contexts in
which the [S]ixth [A]mendment right to counsel attaches
prior to the time formal criminal charges have been filed.
Id. On the facts, however, the court declined to find a right-to-counsel
violation because the events leading up to Chrisco’s statements were “not
true plea negotiations.” Id.
The Sixth Circuit returned to the issue of prefiling plea bargaining
in a postconviction action. United States v. Moody, 206 F.3d 609, 610,
612 (6th Cir. 2000). Moody claimed that he received ineffective
assistance of counsel when his lawyer failed to properly advise him about
a plea agreement offered by the government prior to the initiation of
formal charges. Id. at 611–12. The government argued that there was
no ineffective assistance of counsel because Moody’s right to counsel had
not attached. Id. at 612. In the postconviction action, the district court
below reversed, finding that the Sixth Amendment had attached. Id.
In Moody, the Sixth Circuit stated that the United States Supreme
Court’s decision in Gouveia “foreclose[s] the possibility that the right to
counsel might under some circumstances attach prior to the formal
initiation of judicial proceedings.” Id. at 613 (quoting Gouveia, 467 U.S.
at 193, 104 S. Ct. at 2300, 81 L. Ed. 2d at 157 (Stevens, J., concurring)).
100
The Sixth Circuit recognized that Moody was faced “with an expert
prosecutorial adversary” who was clearly committed “to proceed with
prosecution.” Id. at 614. The Moody court emphasized that it was “a
triumph of the letter over the spirit of the law to hold that Moody had no
right to counsel . . . only because the government had not yet filed formal
charges.” Id. at 616. Yet in light of the Sixth Circuit’s reading of
Supreme Court precedent, the court, with obvious regret, found no right
to counsel. Id. In a concurring opinion, Judge Wiseman urged the
Supreme Court “to reconsider its bright line test for attachment of the
Sixth Amendment right to counsel.” Id. at 618 (Wiseman, J.,
concurring). The Sixth Circuit has continued to express reservations
regarding the Supreme Court’s bright-line approach. See Kennedy v.
United States, 756 F.3d 492, 494 (6th Cir. 2014); see also United States
v. Wilson, 719 F. Supp. 2d 1260, 1268 (D. Or. 2010) (“Depriving a
suspect-defendant of the effective assistance of counsel at pre-indictment
plea negotiation . . . may be more damaging than a denial of effective
assistance at trial itself.”).
It seems to me that the prefiling plea bargain cases demonstrate
either that Kirby’s bright line is either drawn in the wrong place or,
alternatively, there must be exceptions to the bright-line rule to avoid
sunburn when justice so requires.
3. Right to counsel for pretrial Massiah violations. Federal courts
have occasionally shown discomfort with the bright-line approach of
Kirby in the context of Massiah 32 violations. In DeAngelo v. Wainwright,
32Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12
L. Ed. 2d 246, 250 (1964) (holding that an indicted person released on bail was denied
his Sixth Amendment rights when federal agents had deliberately elicited information
from him in the absence of counsel).
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the United States Eleventh Circuit Court of Appeals considered a
prefiling situation where police secretly recorded the defendant’s
conversations. 781 F.2d 1516, 1517 (11th Cir. 1986). Although no
accusatory pleading had been filed, the court, citing Escobedo, noted that
part of the conversation recorded was accusatory in nature and was
designed to coerce a confession. Id. at 1519. The DeAngelo court
concluded that “[t]he conduct of the police in this case could qualify as
an effort to circumvent DeAngelo’s [S]ixth and [F]ifth [A]mendment rights
after the police had decided to arrest him.” Id. at 1520. As a result, the
court reversed and remanded the case to the district court for further
fact-finding on this point. Id.
DeAngelo raises an interesting question: if the right to counsel
exists only after judicial action, can a defendant in custody be subject to
deliberate efforts by government agents to circumvent the right to
counsel found in Massiah and its progeny?
4. Right to counsel at prefiling deposition. A third case of interest
is United States v. Hayes, 231 F.3d 663 (9th Cir. 2000) (en banc). By a
7–4 vote, the United States Court of Appeals for the Ninth Circuit
concluded that the right to counsel did not attach even though the
government had sought to obtain material witness depositions for use at
defendant’s trial. Id. at 667. The majority stated that it was “somewhat
queasy because it looks like the government is trying to have its cake
and eat it too.” Id. at 675. The dissent attacked the majority for its
“mechanical and formalistic approach,” which was “inadequate to
evaluate, let alone preserve, the constitutional values at stake.” Id. at
680 (Reinhardt, J., dissenting). Although the analytic basis in the
opinion is unclear, the court’s discomfort with Kirby seems palpable.
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5. Right to counsel at prefiling lineup. In Hall, the defendant was
imprisoned and awaiting trial for a case when prison officials told him he
was required to participate in a lineup for a second, unrelated case. 804
F.2d at 80. Hall sought but was not allowed to talk to his attorney before
the lineup. Id. The witness identified Hall, and he was indicted, tried,
and convicted. Id. In this habeas action, he challenged the failure of the
state courts to suppress the identification as violating his right to
counsel. Id.
The Hall court considered that a lineup is “fraught with the
possibility of prejudice” and that the presence of counsel would be “a
potent weapon in preventing prejudice.” Id. at 81. The court, however,
said that in order for the right to attach, Hall would have had to prove
that it was a critical stage of the prosecution. Id. It explained that in its
view, the Supreme Court had left open the question of what else may
constitute the start of a prosecution sufficient to mark the attachment of
the right of counsel. Id. at 82. The court declined, however, to find that
a lineup would always cause the right to counsel to vest—rather, whether
the right to counsel could attach would be a fact-specific inquiry into
whether the role of the government had transformed “from fact-finder to
adversary.” Id. In other words, the Hall court said, whether formally or
not, if the suspect in fact “become[s] the accused,” then the right to
counsel attaches. Id. at 83 (quoting Escobedo, 378 U.S. at 485, 84 S. Ct.
at 1762, 12 L. Ed. 2d at 983). On the facts before it, the court concluded
Hall had failed to show that the prosecution had in fact begun, and so
the identification was admissible. Id.
103
C. Caselaw from State Courts Regarding Attachment of Right
to Counsel under State Constitutions.
1. Introduction. It is axiomatic, of course, that states may adopt a
different approach to the right to counsel under their state constitutions.
Many state courts have thus departed from United States Supreme Court
decisions in the area of right to counsel in a wide variety of settings. See,
e.g., Blue v. State, 558 P.2d 636, 642 (Alaska 1977) (holding there is a
right to counsel under Alaska Constitution in preindictment lineup
absent exigent circumstances, contrary to Kirby); In re Johnson, 398 P.2d
420, 422 (Cal. 1965) (en banc) (noting under the California Constitution
there is a right to counsel for all misdemeanor defendants); State v.
Antone, 615 P.2d 101, 105 (Haw. 1980) (adopting a test for ineffective
assistance more generous than Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); People v. McCauley, 645
N.E.2d 923, 930, 933 (Ill. 1994) (holding that a suspect cannot
knowingly waive their right to counsel if the state does not tell the
suspect that their attorney is there and trying to reach the suspect);
State v. Lawson, 297 P.3d 1164, 1169, 1173 (Kan. 2013) (rejecting
Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955
(2009), and holding that a defendant’s uncounseled plea of guilty is
invalid unless the defendant first waived the right to counsel knowingly
and intelligently); State v. Nordstrom, 331 N.W.2d 901, 904–05 (Minn.
1983) (holding right to appointed counsel exists for all indigent
misdemeanor defendants who may be imprisoned, not only those who
actually are imprisoned); see generally Shirley S. Abrahamson, Criminal
Law and State Constitutions: The Emergence of State Constitutional Law,
63 Tex. L. Rev. 1141, 1190–93 (1985) (summarizing state courts’
available avenues to depart from federal constitutional standards). We
104
also have departed from established United States Supreme Court
precedent regarding the right to counsel recently in State v. Young, 863
N.W.2d 249, 257 (Iowa 2015).
There have been two analytically related but distinct approaches to
dealing with the problems arising from the Supreme Court’s bright-line
approach. In some jurisdictions, courts have generally departed from
arraignment as a bright line and instead move the line to another point,
usually the point of arrest, which provides more generous protection of
the right to counsel. In a number of other jurisdictions, the bright line
may not be moved, but it is subject to certain exceptions where a rigid
application of the bright-line approach simply does not make sense.
2. Jurisdictions in which arrest generally triggers right to counsel.
Shortly after Kirby was decided, a number of state courts declined to
apply the rule under their state constitutions. In People v. Jackson, the
Michigan Supreme Court departed from Kirby. 217 N.W.2d 22, 27 (Mich.
1974), overruled on other grounds by McDougall v. Schanz, 597 N.W.2d
148 (Mich. 1999). The case involved photographic arrays and a lineup in
an assault case. Id. at 23. Jackson relied on previous Michigan
precedent noting that a suspect is entitled to counsel at a live or
photographic lineup regardless of the judicial phase of prosecution. Id.
at 27–28; see Neil Colman McCabe, The Right to a Lawyer at a Lineup:
Support from State Courts and Experimental Psychology, 22 Ind. L. Rev.
905, 929–30 (1989) [hereinafter McCabe].
The Pennsylvania Supreme Court also refused to follow Kirby. In
Commonwealth v. Richman, the Pennsylvania Supreme Court considered
whether the right to counsel under the Pennsylvania Constitution was
violated when a lineup was held after a warrantless arrest. 320 A.2d
351, 352–53 (Pa. 1974). The court concluded that “[t]o allow
105
uncounseled lineups between warrantless arrests and preliminary
arraignment would only encourage abuse of the exigent circumstances
exception and [undercut] our strong policy requiring warrants whenever
feasible.” Id. at 354. A concurring opinion by Justice Eagan directly
attacked Kirby. Id. at 358 (Eagen, J., concurring). Justice Eagan
declared,
The artificial distinction drawn by the plurality in Kirby,
between post-charge and pre-charge lineups is unwise and
infringes upon the protections society should grant an
accused. To force an accused to stand alone against the full
force and investigative powers of organized society, until he
is actually charged with the commission of the crime, is an
outrageous injustice.
Id. at 361.
A result similar to Richman occurred in Blue, 558 P.2d at 641. In
Blue, the Alaska Supreme Court noted that it was not limited by
decisions of the United States Supreme Court when interpreting the
Alaska Constitution. Id. Relying in part on Justice Brennan’s dissent in
Kirby, the Blue court found a right to counsel for persons in custody
unless exigent circumstances prevent it. Id. at 643. The court ultimately
found that under the facts of that case, exigent circumstances were in
fact present. Id.; see McCabe, 22 Ind. L. Rev. at 930.
Finally, in People v. Bustamante, the California Supreme Court
found a right to counsel in preindictment lineups. 634 P.2d 927, 935
(Cal. 1981) (en banc), superseded on other grounds by constitutional
amendment, Cal. Const. art. I, § 28(f)(2). Relying upon previous
California precedent that cited Wade, the court emphasized the
unreliability of eyewitness identification and the extreme difficulty of
reproducing the lineup procedure at trial. Id. at 933–34. As with
Michigan and Alaska, the California court recognized that there could be
106
exigent circumstances that might justify proceeding without counsel. Id.
at 935; see McCabe, 22 Ind. L. Rev. at 930–31.
In short, there is ample coherent and logical authority for rejecting
the bright-line approach of Kirby under a state constitutional analysis.
3. Cases in which right to counsel is afforded in the context of
implied consent. A number of other courts, however, have considered
specifically the question of whether the right to counsel attaches in
situations where a defendant is confronted with a request for a chemical
test under an implied-consent statute. In these jurisdictions, there has
not necessarily been a wholesale rejection of Kirby, but instead a
recognition that the right to counsel may be present under some
circumstances prior to the initiation of adversary judicial proceedings.
In one of the first cases, the New York Court of Appeals in 1968
considered whether the results of a chemical test were admissible after
the denial of the defendant’s request to telephone a lawyer. People v.
Gursey, 239 N.E.2d 351, 352 (N.Y. 1968). In Gursey, the New York court
held that the defendant was entitled to contact counsel unless it would
unduly interfere with the investigation. Id. Since the requested phone
call could have been handled in a matter of minutes, the court held that
the right to counsel was violated in that case. Id. at 353; see also People
v. Rinaldi, 436 N.Y.S.2d 156, 157 (N.Y. Town Ct. 1981).
The Vermont Supreme Court considered the question in State v.
Welch, 376 A.2d 351, 352 (Vt. 1977). The court concluded that “the
request to submit to a chemical test can rise to the level of a ‘critical
stage’ in the proceedings.” Id. at 355. The court recognized what it
characterized as “a limited right to counsel.” Id.; see also State v. Welch,
394 A.2d 1115, 1116–17 (Vt. 1978) (noting that the prior Welch case did
not hold that a suspect must be advised of his right to counsel but only
107
that he must be allowed access to counsel if he requests it). Welch has
been cited with approval in other Vermont cases relating to driving-
related chemical tests but not involving claims of violations of the right to
counsel, and it has not been overruled. See State v. Bonvie, 936 A.2d
1291, 1300 (Vt. 2007) (describing the virtue of flexible standards for
chemical tests as articulated in Welch); State v. Lund, 475 A.2d 1055,
1058 (Vt. 1984), overruled on other grounds by State v. Begins, 531 A.2d
595 (Vt. 1987).
The Oregon Supreme Court considered the matter in the post-
Kirby case of State v. Spencer, 750 P.2d 147, 147–48 (Or. 1988)
(en banc). The Spencer court declared that
[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.”
Id. at 155–56. The court recognized that the “evanescent nature of the
evidence the police seek to obtain may justify substantially limiting the
time in which the person may exercise his or her [state constitutional
right to counsel], but it does not justify doing away with it.” Id. at 156;
see also State v. Durbin, 63 P.3d 576, 579 (Or. 2003). Further, in State v.
Dinsmore, the Oregon Supreme Court noted that any telephone
conversation should be private. 147 P.3d 1146, 1150 (Or. 2006); see
also State v. Riddle, 941 P.2d 1079, 1082 (Or. Ct. App. 1997).
The Washington Supreme Court considered the right to counsel in
the context of an OWI arrest in State v. Fitzsimmons, 610 P.2d 893, 895
(Wash. 1980) (en banc). After analyzing various cases, including United
States Supreme Court precedents cited above, the Washington Supreme
108
Court concluded that the defendant was entitled to the assistance of
counsel before deciding whether to submit to a chemical test. Id. at 901.
The court, however, seemed to refer generically to the right to counsel
and did not clearly indicate whether the result in the case was based
upon the United States Constitution or the Washington State
Constitution. See id.
After the state sought certiorari, the Supreme Court vacated the
decision and remanded the case. Washington v. Fitzsimmons, 449 U.S.
977, 101 S. Ct. 390, 66 L. Ed. 2d 240 (1980). The remand order asked
the Washington Supreme Court to clarify the basis of the result in the
case. Id. On remand, the Washington Supreme Court noted that its
holding was grounded in state as well as federal constitutional principles.
State v. Fitzsimmons, 620 P.2d 999, 1001 (Wash. 1980) (en banc). As a
result, the court affirmed its prior opinion without change. Id.
The Minnesota Supreme Court confronted the issue of the right to
counsel under the Minnesota Constitution in the context of a request for
a chemical test in Friedman v. Commissioner of Public Safety, 473 N.W.2d
828, 829 (Minn. 1991). In Friedman, the defendant was pulled over from
the road for suspected OWI. Id. The Friedman court emphasized that
the civil label assigned to informed-consent statutes was not
determinative. Id. at 832. According to the court, OWI and informed-
consent penalties are inextricably intertwined with criminal penalties.
Id. at 833. In any case, the quasi-criminal consequences of revocation
were very important to an individual driver. Id. The court concluded
“the Minnesota Constitution protects the individual’s right to consult
counsel when confronted with th[e] decision” to consent to a breath test.
Id. at 833; see State v. Schmidt, 712 N.W.2d 530, 533 (Minn. 2006)
(noting that Friedman established that the Minnesota Constitution grants
109
the right to counsel upon request when deciding to submit to chemical
testing).
Many state courts, however, have found a right to counsel in the
context of a request for informed consent based on statute or rule—not
their underlying state constitutions. See, e.g., Kameroff v. State, 926
P.2d 1174, 1178 (Alaska Ct. App. 1996); McNutt v. Superior Ct., 648 P.2d
122, 124 (Ariz. 1982) (en banc); Kuntz v. State Highway Comm’r, 405
N.W.2d 285, 289 (N.D. 1987); Lakewood v. Waselenchuk, 641 N.E.2d
767, 770 (Ohio Ct. App. 1994). Further, in jurisdictions in which the
right to counsel attaches at the time of warrantless arrest, that right will
also support the view that a person arrested and taken to the station for
further testing is entitled to counsel. See Richman, 320 A.2d at 353.
D. Iowa Caselaw on Attachment of Right to Counsel. In a post-
Kirby case, we applied the formalistic Kirby rule in State v. Jackson, 199
N.W.2d 102, 103 (Iowa 1972). In Jackson, the court applied the Kirby
rule in the context of a pretrial identification. Id. There was no
discussion of any claim under the Iowa Constitution. See id. In State v.
Vietor, we recognized that there was a limited statutory right to the
assistance of counsel. 261 N.W.2d 828, 831 (Iowa 1978); see also Fuller
v. State, 275 N.W.2d 410, 411 (Iowa 1979). We did not find a violation of
that limited statutory right in Vietor, however, based on the record then
before us. 261 N.W.2d at 831.
Today’s plurality characterizes Vietor as rejecting “the argument
the right to counsel under the Sixth Amendment had attached when the
arrestee was asked to submit to the breathalyzer test.” This is not quite
accurate. In Vietor, the defendant argued that his refusal to submit to
the test should be inadmissible at trial because it violated his right to
counsel under the Sixth Amendment. Id. at 830. We rejected this
110
argument because the implied-consent statute made the refusal to
submit to the test admissible and we had previously upheld this as
constitutional. Id. This does not mean that we found that the right to
counsel had not attached, but merely that no rule of exclusion could be
applied under the Sixth Amendment to prohibit the introduction of
evidence related to the refusal. In any event, Vietor was a Sixth
Amendment case. Vietor did not involve article I, section 10 of the Iowa
Constitution, which is the focus of this present litigation. See 261
N.W.2d at 830.
IV. Discussion.
A. Problems with the United States Supreme Court Bright-
Line Attachment of Right to Counsel at Arraignment. As logic and
caselaw demonstrate, there are a significant number of problems with an
ironclad application of the bright-line approach of the United States
Supreme Court that make it unwise for Iowa to adopt it. We should
either move the bright line to the point of arrest or recognize that there
are going to be exceptions to the general rule.
At the outset, there is an odd inconsistency between Fifth and
Sixth Amendment rights. Fifth Amendment rights are triggered during
custodial interrogation, but Sixth Amendment rights are not. But the
relationship between the individual and the state becomes adversarial
during custodial interrogation, not just for Fifth Amendment rights, but
for the right to counsel as well. At the point of custodial interrogation,
there is a need for “a flow of information [to the individual] to help him
calibrate his self-interest.” Arnold H. Loewy, The Supreme Court,
Confessions, and Judicial Schizophrenia, 44 San Diego L. Rev. 427, 428
(2007) (quoting Colorado v. Spring, 479 U.S. 564, 576, 107 S. Ct. 851,
859, 93 L. Ed. 2d 954, 967 (1987)). If the custodial atmosphere is
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coercive for purposes of interrogation, why would it not be coercive in
terms of providing informed consent? Does it not make sense, at a
minimum, to move the generally applicable point of the right to counsel
to the point of arrest?
Moreover, the bright line of federal law is highly formalistic and
causes grave problems in some settings. It borders on the absurd to
suggest that, for instance, a pretrial lineup after arrest but prior to
arraignment does not require the presence of counsel, but the very same
lineup occurring one day afterwards does. Justice Brennan made this
very same point in his dissent in Kirby almost fifty years ago. 33 406 U.S.
at 699, 92 S. Ct. at 1887, 32 L. Ed. 2d at 423–24 (Brennan, J.,
dissenting). Yet, as noted by a leading commentator, the line drawn by
Kirby “excluded most lineups from Wade’s protection, encouraged delay
in the filing of charges, and drew a line that bore no rational relationship
to the need for legal assistance.” Albert W. Alschuler, Failed Pragmatism:
Reflections on the Burger Court, 100 Harv. L. Rev. 1436, 1442 (1987).
Recent research on eyewitness identifications only tends to confirm
how suggestive and potentially inaccurate early identifications cannot be
undone by the time of trial. 34 Modern science now reinforces the notion
33Academic commentary after Kirby was largely unfavorable. See Joseph D.
Grano, Kirby, Biggers, & Ash: Do Any Constitutional Safeguards Remain Against the
Danger of Convicting the Innocent?, 72 Mich. L. Rev. 717, 725–30 (1974) (noting that
Kirby created a new and previously unsupported limitation on the right to counsel);
McCabe, 22 Ind. L. Rev. at 907 (describing how in light of Kirby, police can be expected
to hold lineups prior to the initiation of formal adversarial proceedings in order to
benefit from the absence of defense counsel).
34Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification
Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30
Years Later, 33 Law & Hum. Behav. 1, 5–6 (2009); see also Kevin Krug, The Relationship
Between Confidence and Accuracy: Current Thoughts of the Literature and a New Area of
Research, 3 Applied Psychol. Crim. Just. 7, 17–31 (2007); Gary L. Wells, Applied
Eyewitness-Testimony Research: System Variables and Estimator Variables, 36 J.
Personality Soc. Psychol. 1546, 1548–55 (1978); Daniel B. Wright & Anne T. McDaid,
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that if eye-witness identifications through lineups or similar methods are
to be used, the presence of counsel is essential if the right to a fair trial is
to be preserved. 35
For example, since the 1970s, psychological research has identified
several areas where procedural suggestiveness can subtly influence
witnesses to identify the suspect—these problems include pre-lineup
instructions, the composition of the lineup, and the behavior of the
official administering the lineup, in addition to other problems. See
Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification
Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness
Science: 30 Years Later, 33 Law & Hum. Behav. 1, 1, 6 (2009).
Identifying some of these subtle cues and problems can be impossible to
do after the fact, as these can be ephemeral events not recorded in any
way. Id. at 15–16. If the suspect has no right to counsel at these
lineups, there will often be absolutely no indication that hidden
suggestiveness has occurred, let alone proof sufficient to strike the
identification. Id. at 16.
There is no way to estimate how often procedural suggestiveness
leads to witness misidentification, but of the people who have been
exonerated by new DNA evidence after their convictions, seventy-five
percent of their cases involved one or more eyewitnesses misidentifying
the innocent suspect. Reevaluating Lineups: Why Witnesses Make
Mistakes and How to Reduce the Chance of a Misidentification, Innocence
_________________________
Comparing System and Estimator Variables Using Data from Real Line-Ups, 10 Applied
Cognitive Psychol. 75, 75–81 (1996).
35In the alternative, at least one state supreme court has held that improperly
structured identification procedures may be subject to challenge under the due process
clause of the applicable state constitution. See State v. Henderson, 27 A.3d 872, 918–
19, 919 n.10 (N.J. 2011).
113
Project (July 16, 2009), www.innocenceproject.org/reevaluating-lineups-
why-witnesses-make-mistakes-and-how-to-reduce-the-chance-of-a-
misidentification/. Decades of scientific research prove that the hazards
of eyewitness identification described by the Wade Court as being beyond
the ability of a suspect to detect are real. Wade, 388 U.S. at 228–32, 87
S. Ct. at 1933–35, 18 L. Ed. 2d at 1158–60. A defense counsel’s
presence at any lineup, whether it occurs prior to or after the initiation of
formal proceedings against the defendant, is therefore vital to protect the
defendant’s right to a fair trial. Cf. id. at 235, 87 S. Ct. at 1936–37, 18
L. Ed. 2d at 1162 (“Thus in the present context, where so many variables
and pitfalls exist, the first line of defense must be the prevention of
unfairness and the lessening of the hazards of eyewitness identification
at the lineup itself.”).
Further, the rise of forty-eight-hour holds in other jurisdictions—
where an arrestee is not subjected to judicial proceedings for up to forty-
eight hours—demonstrates the potential flaws in stringent application of
the bright-line approach in Kirby. Either the bright line must be moved
to limit such irrationalities, or the bright line should be flexible enough
to deal with situations where counsel is essential to preserve the trial
rights of the defendant. Surely that is true in the case of informed
consent, where once the client makes the decision, no lawyer, however
skilled, can undo the consequences. The entire focus of Wade was
protection of the right to a fair trial that can be irreparably affected by
pretrial events. See id. The DeAngelo case highlights the possibility of
manipulation and use of potentially inaccurate and uncounseled prefiling
lineups to convict defendants. 781 F.2d at 1520.
A further example of the problems of rigid application of a bright-
line rule may be seen in the prefiling plea bargaining cases of the Sixth
114
Circuit. Can the government enter into prefiling plea bargaining and cut
a deal with a defendant without the assistance of counsel? That seems
preposterous. Surely, if plea bargaining is going on, the adversarial
positions have solidified and the state is likely represented by a trained
professional. Yet in Moody, the court held such plea bargaining was
permissible, but it expressed significant discomfort. 206 F.3d at 615–16.
If there is to be a bright line of some kind, it simply cannot allow prefiling
plea bargaining without the assistance of counsel. Either the bright line
gets moved to accommodate prefiling plea bargaining, or there must be
an exception to the bright line to prevent the travesty of uncounseled
plea bargaining.
B. Solid Footing of States Granting a Constitutional Right to
Counsel in the Implied-Consent Context.
1. Overview of right to counsel. In reviewing the caselaw, there is a
solid footing for the proposition that prior to making a decision on
informed consent, the defendant is constitutionally entitled to the
assistance of counsel under the “all criminal prosecutions” language of
article I, section 10. While the sanctions for refusal to consent are civil,
informed consent laws are inextricably bound with criminal law. The
crucial stage of the process is not really at trial, but at the police station
when the accused is confronted with the request to submit to testing.
The encounter between police and the arrestee at the police station is
hardly a friendly chat over coffee. It is a coercive encounter, usually in
the dead of night. It is not a stretch to suggest that in these
circumstances, to protect his right to effective assistance at trial, an
accused is entitled to the help of counsel in determining what the
evidence at trial will be. The caselaw in Vermont, Minnesota, Oregon,
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and Washington persuades me that the right to counsel should attach in
this setting.
2. Question of entitlement to a private attorney–client consultation
in context of implied consent. At this point, the real fighting issue in this
case emerges. Does a driver facing an implied-consent request who
invokes the right to call his lawyer have a right to engage in a discussion
outside the earshot of the arresting deputy?
The Oregon Supreme Court has considered the question in two
cases. In Dinsmore, the Oregon Supreme Court held that any telephone
conversation between a person from whom implied consent is invoked
and his attorney should be private. 147 P.3d at 1150. The court
reached a similar result in Durbin, 63 P.3d at 579.
Similarly, in State v. Powers, the Vermont Supreme Court noted
that where an OWI defendant’s conversations were recorded, such a
recording violated his statutory right to meaningful consultation with an
attorney. 852 A.2d 605, 610 (Vt. 2004). Although the Powers case deals
with a statutory right, the analysis of “meaningful consultation” with
counsel would seem to have equal force in the constitutional context. Id.
at 611.
Yet the Minnesota Supreme Court reached a contrary result in
Commissioner of Public Safety v. Campbell, 494 N.W.2d 268, 270 (Minn.
1992). The Minnesota Supreme Court held that the telephonic right to
legal advice before submitting to a chemical test need not be private. Id.
According to the Minnesota Supreme Court, officers must be present in
order to impeach any later testimony by an arrestee who submits to
testing that ingestion of something at the station might have affected test
results. Id. Further, the court noted that to the extent any conversation
was overheard, the remedy was suppression. Id. at 269–70.
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Here, the State raises a similar concern to that touched upon in
Campbell, namely that there is a possibility that a suspect could claim
ingestion of some substance while engaged in a private telephone
conversation with an attorney. I do not buy the argument.
First, it would be an extraordinary story for a defendant to claim
that he was not intoxicated prior to the arrest, but that after the arrest
and prior to the chemical test, he or she ingested more drugs or alcohol
to go over the legal limit. No party has cited, nor have we found through
the miracle of computer-based research, any reported cases where the
strategy has been attempted, let alone succeeded. In any event, the
same risk occurs when a lawyer physically meets with the client at the
station house, a setting where the attorney and client have a statutory
right to confidential communication. Thus, the risk of ingestion of
additional drugs or alcohol during a station-house visit by an attorney is
the same as the risk that arises from a station-house phone call. There
may, perhaps, be some circumstances where exigencies could require
that a law enforcement officer be in the same room during an attorney–
client conversation, but the burden would be on the State to show such
an exigency. In this case, it failed to meet its burden.
V. Overview of Attachment of Right to Counsel Under the
“Cases” Provision of the Iowa Constitution.
A. Introduction. The above analysis is based upon the “all
criminal prosecutions” language in article I, section 10 of the Iowa
Constitution. There is, however, an additional clause in the Iowa right-
to-counsel provision not present in the federal counterpart. The “cases”
clause plainly extends the right to counsel to matters beyond “criminal
prosecutions.”
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B. The “Cases” Clause of the Iowa Constitutional Right to
Counsel.
1. Text. Article I, section 10 of the Iowa Constitution provides, “In
all criminal prosecution, and in cases involving the life, or liberty of an
individual the accused shall have a right . . . to have the assistance of
counsel.” Iowa Const. art. I, § 10 (emphasis added). The Iowa
constitutional text stands in contrast to the Sixth Amendment, which
provides merely, “In all criminal prosecutions, the accused shall enjoy
the right . . . to have the assistance of counsel . . . .”
The text of the federal right to counsel in the Sixth Amendment
thus explicitly addresses only “criminal prosecutions,” while the Iowa
Constitution expansively provides a right to counsel in a category beyond
criminal prosecutions. Because of this notable and material difference,
federal cases that focus solely on criminal prosecutions plainly have
limited utility in serving as a guide for our independent interpretation of
the Iowa Constitution. In any event, federal authority is only a guide,
even in interpreting similarly worded provisions of the Iowa Constitution.
2. Historical background. The historical materials related to the
adoption of article I, section 10 of the Iowa Constitution are quite limited.
Further, it is a dubious enterprise to consider what the founders of the
Iowa Constitution of 1857 would have thought about the right to counsel
in the context of DataMasters and the drunk driving of planes, trains, or
automobiles. Nonetheless, a survey of historical materials might give us
some clues about the constitutional values behind the right to counsel
that must be applied in our modern-day context.
One thing we know for sure: the majority of the Iowa founders of
the Constitution of 1857 were not lock-step devotees of federal authority.
See State v. Short, 851 N.W.2d 474, 483 (Iowa 2014) (“[T]here is powerful
118
evidence that the Iowa constitutional generation did not believe that Iowa
law should simply mirror federal court interpretations.”). Indeed, we
know that at the Constitutional Convention of 1857, great concern was
expressed over fugitive slaves. 36 The founders, in direct defiance of the
Federal Fugitive Slave Act, enacted a design to slow the rendition of
fugitive slaves in Iowa by providing them with jury trials and attendant
procedural protections. James F. Wilson, later to receive considerable
attention as chairman of the House Judiciary Committee during
Reconstruction, stated on the floor of the convention regarding the
possibility of conflict between the state right-to-counsel provision and the
Fugitive Slave Act, “Gentlemen may say that it will bring about a conflict
between the courts of the United States and the courts of this State. Let
that conflict come . . . .” 2 The Debates of the Constitutional Convention
of the State of Iowa 739 (W. Blair Lord rep., 1857) [hereinafter The
36At the debates, George W. Ells stated, “I regard the Fugitive Slave Law as
unconstitutional, because it does not give to man the right to defend his life and liberty
by ‘due process of law.’ ” 1 The Debates of the Constitutional Convention of the State of
Iowa 101 (1857) [hereinafter The Debates], www.statelibraryofiowa.org/services/
collections/law-library-iaconst. J. A. Parvin stated, “And this affords a good illustration
of the evils growing out of the fugitive slave law, which the present democratic party
would carry into every territory of the United States.” 2 The Debates at 708. Rufus
L. B. Clark stated, “It is a libel upon the English language to call [the Fugitive Slave
Law] a law. . . . [The Fugitive Slave Law] will never be effectual until man obtains the
power to repeal the laws of nature and of nature’s God.” Id. at 717. Amos Harris
stated,
[T]here is a provision in the constitution of the United States that
provides for the return of . . . fugitive slaves . . . . This provision in our
[state] constitution would prevent any person from being removed unless
he first had a jury trial here. I undertake to say that he cannot have a
jury trial here, for simple reasons. . . .
. . . [This] would be equivalent to saying at once, that any slave in
the territory of this state shall have the right to assert his freedom and
cannot be remanded back into slavery.
Id. at 736.
 119
Debates], www.statelibraryofiowa.org/services/collections/law-library/
iaconst.
So it appears that the founders were determined to provide a right
to counsel for fugitive slaves. The United States Supreme Court was
seen—correctly—as a tool of slavocracy, as demonstrated by the virtually
unanimous and extraordinarily bitter denunciation by Iowa leaders of the
Dred Scott 37 decision, which was handed down by the Supreme Court
just a few months after the adjournment of the 1857 constitutional
convention. See 1 The Debates, at 137 (showing the interest in Scott by
the Iowa founders, who mentioned the then pending case during the
debates); Anthony V. Baker, “The Authors of All Our Troubles”: The Press,
the Supreme Court, and the Civil War, 8 J.S. Legal Hist. 29, 48 (2000)
(describing Northern reactions to the Scott decision). Not surprisingly,
when South Carolina and Texas seceded from the United States, they
cited Iowa as among the states that were asserting states’ rights at the
expense of federal power. The Declaration of Causes of Seceding States:
Primary Sources, Civil War Trust, www.civilwar.org/education/history/
primarysources/declarationofcauses.html (last visited June 23, 2016).
The founders must have been well aware of the determined defense
offered to fugitive slaves in Iowa, including the services of lawyers ready
to represent the fugitives on a moment’s notice. Paul Finkelman,
Fugitive Slaves, Midwestern Racial Tolerance, and the Value of “Justice
Delayed”, 78 Iowa L. Rev. 89, 122–28 (1992) (describing the efforts to
help fugitive slaves by abolitionists in Iowa). Indeed, when word spread
37Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857) (holding in an infamous
antebellum case that Dred Scott, who fled slavery in Missouri, could not sue for his
freedom in Illinois), superseded by constitutional amendment, U.S. Const. amends. XIII,
XIV.
120
of the seizure of a fugitive slave within Iowa’s borders, competent counsel
invariably appeared to attempt to defeat the odious act of rendition of a
fugitive slave who enjoyed freedom within our borders pursuant to a
hated federal law, the Fugitive Slave Act. See id. at 126 (describing one
such hearing, where a lawyer appeared to represent the fugitive slaves).
Cases brought under the Fugitive Slave Act, of course, were not
criminal matters. The founders clearly recognized that dramatic
curtailment of life and liberty could also occur in civil proceedings such
as actions under the Fugitive Slave Act.
There is nothing at all in the historical record, however, that
suggests that the expanded language was limited to fugitive slaves.
Indeed, textualists would have to concede that if the drafters’ purposes
were to limit the expansion of the right to counsel to fugitive slaves, they
would have used narrow language making that proposition explicit. To
limit the broad language utilized amounts to amending the Iowa
Constitution to meet contemporary policy goals.
As was noted many years ago by Justice Marshall in McCulloch v.
Maryland, a constitution provides “great outlines,” and “we must never
forget that it is a constitution we are expounding.” 17 U.S. (4 Wheat) 316,
407, 4 L. Ed. 579, 601–02 (1819). We have expressed similar views. In
interpreting provisions of the Iowa Constitution, we should consider the
words of Justice LeGrand some years ago:
[A] constitution is to be liberally construed, the principle has
been developed that in framing a constitution, words are
employed in a comprehensive sense as expression of general
ideas rather than of finer shades of thought or of narrow
distinctions, and ordinarily words in an instrument like the
United States Constitution do not have a narrow, contracted
meaning, but are presumed to have been used in a broad
sense, with a view of covering all contingencies. . . . Stated
differently, the rule is that no forced, unnatural, narrow, or
121
technical construction should ever [be] placed upon the
language of a constitution.
Redmond v. Carter, 247 N.W.2d 268, 275 (Iowa 1976) (LeGrand, J.,
concurring specially) (quoting 16 Am. Jur. 2d Constitutional Law § 76, at
258 (1964)). As we unanimously declared recently in Gansen v. Gansen,
“It is well established that a broadly framed constitutional provision
should not be narrowly interpreted in a fashion that limits its application
to the specific mischief at hand.” 874 N.W.2d 617, 626 (Iowa 2016); see
also State v. Newsom, 414 N.W.2d 354, 359 (Iowa 1987) (stating we
broadly construe article I, section 10 of the Iowa Constitution “to
effectuate its purpose”).
It would be odd to generously interpret the open-ended language of
an Iowa constitutional provision related to agricultural leases while
narrowly construing open-ended Iowa constitutional provisions related to
the right to counsel. Indeed, constitutional interpretation involves taking
general commands and applying them to specific cases, not using
specific cases to narrow the scope of general commands. Further, as
noted by the Supreme Court in United States v. Ash, 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.” 413 U.S. 300,
311, 93 S. Ct. 2568, 2574, 37 L. Ed. 2d 619, 627 (1973).
Because of the differences in text, it 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. Further, the effort to limit the extra verbiage
in article I, section 10 to the matters of the Fugitive Slave Act is contrary
to broadly accepted standards of constitutional interpretation that have
been embraced time and time again.
122
In fact, the fugitive-slave hypothetical is just an example of how
the Iowa Constitution is different from the Federal Constitution when it
comes to the right to counsel. Fugitive-slave cases were civil matters
akin to extradition. Yet under the prevailing interpretation of the “all
prosecutions” clause of the Sixth Amendment, such civil matters do not
give rise to a right to counsel. Judd v. Vose, 813 F.2d 494, 497 (lst Cir.
1987) (holding no right to a counsel attaches at an extradition hearing);
McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir. 1984) (noting
extradition is not a criminal proceeding, and so Sixth Amendment rights
not implicated); Caltagirone v. Grant, 629 F.2d 739, 748 n.19 (2nd Cir.
1980) (noting that the Sixth Amendment applies only to criminal
prosecutions and therefore not to an extradition); Sabatier v. Dabrowski,
586 F.2d 866, 869 (lst Cir. 1978) (holding no right to a speedy trial at
extradition proceedings); Dunkin v. Lamb, 500 F. Supp. 184, 187 (D. Nev.
1980) (noting extradition is not a critical stage of a criminal proceeding).
Further, under the Iowa Constitution, basic rights are
“inalienable.” Iowa Const. art. I, § 1. Such language is wholly absent
from the Federal Constitution. The inclusion of this strong inalienability
language is consistent with our state motto: “Our liberties we prize, and
our rights we will maintain.” Neither the motto nor article I, section 1,
has a qualifier that the rights are applicable “to the extent convenient.”
It seems to me, aside from the analysis of the “all criminal
prosecutions” language, the “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. A lawyer will be of little help once the die is
123
cast at the time of the request for a chemical test. As a result, Senn is
entitled to counsel under article I, section 10 of the Iowa Constitution.
VI. Conclusion.
For the above reasons, I would conclude that a right to counsel
under article I, section 10 of the Iowa Constitution attaches when a
suspect is confronted with an implied-consent request and that the
request for a chemical test is a “critical stage” of the case. The
opportunity to consult with counsel must be confidential absent a
showing of exigent circumstance. That right, of course, is time limited so
as to not impair the ability of the State to conduct appropriate testing
upon consent. The refusal of the officer in this case to allow for a
confidential communication requires suppression of the evidence in
question.
Therefore, I would reverse.
Wiggins and Hecht, JJ., join this dissent.