State of Iowa v. Benjamin Joseph Lyon

IN THE SUPREME COURT OF IOWA
No. 13–1938
Filed April 17, 2015
STATE OF IOWA,
Appellee,
vs.
BENJAMIN JOSEPH LYON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Carol S. Egly
(suppression) and Carol L. Coppola (trial), Judges.
The defendant seeks further review of a court of appeals decision
affirming the district court’s judgment and sentence for operating while
intoxicated, second offense. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Brandon Brown of Parrish, Kruidenier, Dunn, Boles, Gribble &
Gentry, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, John P. Sarcone, County Attorney, and Maurice Curry
and Olu Salami, Assistant County Attorneys, for appellee.
2
APPEL, Justice.
In this case, we consider the validity of a conviction for operating a
motor vehicle while intoxicated, second offense. The police officer
stopped Lyon’s vehicle based upon a suspicion that Lyon was operating a
vehicle without proper illumination in violation of Iowa Code section
321.388. Lyon claims the arresting officer lacked reasonable suspicion
to make a traffic stop because the officer was too far from the vehicle to
have more than a hunch that Lyon’s license plate was improperly
illuminated and because the headlights of the officer’s vehicle interfered
with his ability to observe whether a violation of law was occurring.
Second, Lyon argues that after his arrest for driving while intoxicated,
his rights under Iowa Code section 804.20 were violated because the
officer failed to properly inform him of the purpose of a phone call under
this Code provision.
We transferred the case to the court of appeals. The court of
appeals affirmed Lyon’s conviction. We granted further review. We now
vacate the decision of the court of appeals and affirm the district court.
I. Background Facts and Proceedings.
A. The Arrest. Polk County Sheriff’s Deputy Jason Tart was on
duty in Polk County at approximately 2:00 a.m. on May 31, 2013. At
about that time, he stopped a vehicle driven by Benjamin Lyon based on
his suspicion that the vehicle was operating without a properly
illuminated rear license plate in violation of Iowa Code section 321.388
(2013). 1 After the stop and subsequent administration of three field
sobriety tests, Deputy Tart arrested Lyon for driving while intoxicated.
1We have viewed the DVD recording from Deputy Tart’s patrol car’s dash
camera, admitted into evidence at the suppression hearing, and find it inconclusive on
the factual issues.
3
At the station, Deputy Tart gave Lyon Miranda warnings and the
implied-consent advisory required by Iowa Code section 321J.6. The
defendant made three phone calls. After making the phone calls, Deputy
Tart asked Lyon for a breath sample pursuant to the implied-consent
law. Lyon refused. Ultimately, the State charged Lyon with operating a
motor vehicle while intoxicated (OWI), second offense, in violation of Iowa
Code section 321J.2.
B. Motion to Suppress. Lyon filed a motion to suppress alleging
both statutory and constitutional violations.
His statutory grounds were founded on Iowa Code section 804.20.
According to the motion, Lyon placed his statutorily allowed phone calls
prior to any law enforcement request for a breath specimen. Thus, at the
time he was permitted to make the phone calls, Lyon asserted he had no
knowledge he was going to be asked to provide a breath sample.
Because of this timing, Lyon claimed he was deprived of his opportunity
to speak to a family member or lawyer about whether to submit to testing,
which he asserted is the primary purpose under Iowa Code section
804.20 of allowing telephone calls during an OWI investigation/arrest.
Further, the motion to suppress claimed the investigating officer violated
Iowa Code section 804.20 when, after Lyon asked about the purpose of
the calls, the officer sidestepped the question and provided an evasive
answer contrary to our caselaw under the statute. Because the purposes
of the statute were not fulfilled, Lyon argued that his failure to submit to
the test must be suppressed.
Lyon also asserted constitutional violations in his motion to
suppress. He claimed the stop was not based upon reasonable suspicion
or probable cause under the Fourth Amendment of the United States
Constitution. The motion to suppress also cited article I, section 8 of the
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Iowa Constitution, but did not present a separate argument under the
state constitutional provision.
The district court held a hearing on the motion to suppress. The
sole witness at the hearing was Deputy Tart. With respect to the
circumstances giving rise to the stop of Lyon’s vehicle, Deputy Tart
testified that in the early morning hours of May 31, 2013, he was
“probably doing stationary patrol, waiting for cars to drive by that had
some sort of a violation.” He observed Lyon’s vehicle and believed the
license plate light was out. He followed Lyon’s vehicle for some distance,
making sure his headlights did not illuminate Lyon’s license plate.
Deputy Tart agreed that if you get within a hundred feet or so the
headlights will illuminate the license plate because it contains reflective
material. Based on his observation, Deputy Tart testified that he was
“100 percent certain” his headlights did not illuminate Lyon’s license
plate.
Turning to the Iowa Code section 804.20 claim, Deputy Tart
testified that Lyon had refused to take a preliminary breath test at the
scene of the stop. Deputy Tart testified he gave Lyon an opportunity at
the police station to make phone calls. According to Deputy Tart, Lyon
left voice mail messages for two persons and spoke with his father. After
Lyon made the phone calls, Deputy Tart asked Lyon for a breath
specimen. Lyon refused.
At the conclusion of the suppression hearing, the district court
read its ruling into the record and denied Lyon’s motion. The court first
concluded Deputy Tart developed reasonable suspicion that criminal
activity was afoot when he observed Lyon’s vehicle turning from
northbound on Main Street to eastbound on Second Avenue without an
illuminated rear license plate. Additionally, the court held Deputy Tart
5
had probable cause to initiate the stop after he followed Lyon’s vehicle
and verified the rear license plate light was out. The court further found
Deputy Tart complied with the provisions of Iowa Code sections 804.20
and 321J.6.
A jury subsequently found Lyon guilty of operating a motor vehicle
while intoxicated. After Lyon stipulated to the disposition of his
underlying first offense for OWI, he was convicted of OWI, second offense.
Lyon appealed. The court of appeals affirmed Lyon’s conviction. For the
reasons expressed below, we vacate the decision of the court of appeals
and affirm the judgment of the district court.
II. Standard of Review.
We review alleged violations of constitutional rights de novo. State
v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997). We make an independent
evaluation of the totality of circumstances shown by the entire record.
Id.“[W]e review the defendant’s challenge of the district court’s
interpretation of Iowa Code section 804.20 for correction of errors at
law.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015). We will
affirm a district court’s ruling on a motion to suppress when the court
correctly applied the law and there is substantial evidence to support the
court’s fact-finding. State v. Hellstern, 856 N.W.2d 355, 360 (Iowa 2014).
III. Discussion of Lawfulness of Stop.
A. Iowa Code Section 321.388. In this case, law enforcement
stopped Lyon’s vehicle based upon the belief that it did not have a
properly illuminated license plate. The relevant Code provision is Iowa
Code section 321.388, which provides in pertinent part, “Either the rear
lamp or a separate lamp shall be so constructed and placed as to
6
illuminate with a white light the rear registration plate and render it
clearly legible from a distance of fifty feet to the rear.”
B. Positions of the Parties.
1. Lyon. Lyon argues police “seized” him within the meaning of
the Fourth Amendment of the United States Constitution and article I,
section 8 of the Iowa Constitution. United States v. Mendenhall, 446 U.S.
544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980) (noting
that under the Fourth Amendment, a person is “seized” when, “in view of
all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave”); Kinkead, 570 N.W.2d
at 100. He asserts that in order to engage in a roadside detention, the
officer must have reasonable suspicion that “criminal activity [is] afoot.”
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889,
911 (1968); State v. Reisetter, 747 N.W.2d 792, 794–95 (Iowa Ct. App.
2008).
From this familiar formulation, Lyon argues that, in this case,
Deputy Tart lacked reasonable suspicion to make the stop. He asserts
that when Deputy Tart was questioned about the stop at the hearing on
Lyon’s motion to suppress, the deputy testified the license plate was not
visible, even outside fifty feet. Lyon asserts, however, that the fact
Deputy Tart did not see illumination on the license plate from a distance
outside fifty feet was irrelevant, as the statute requires only that the
license plate be illuminated for legibility from a distance of fifty feet.
According to Lyon, Deputy Tart further testified that when his vehicle
was within one hundred feet or so of Lyon’s vehicle, his own headlights
illuminated the rear plates, making it impossible to tell whether the
license plate was properly illuminated at that distance. As a result, Lyon
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argues there was no evidence to establish that Deputy Tart observed his
license plate “in a non-illuminated state around or inside of fifty feet.”
In support of his argument, Lyon cites Reisetter, 747 N.W.2d at794–95, in which the court of appeals held that an officer did not have
reasonable suspicion to stop a vehicle based upon Iowa Code section
321.388 when the officer was traveling at a distance of one hundred feet
or more behind the vehicle. Lyon cites a passage in Reisetter in which
the court of appeals stated that “[w]ithout the facts that would support
reasonable suspicion . . . the statutory requirement of fifty feet was being
violated, an officer could claim at any distance[] that a license plate was
not illuminated and therefore justify a stop.” Id. at 795. In order to have
reasonable suspicion under the statute, the Reisetter court believed the
officer must be at a distance within fifty feet or some distance that
reasonably approximates fifty feet when making observations about a
potential infraction. Id. at 794–95.
Lyon claims the video footage of the stop demonstrates that it was
not possible to determine whether at a distance of fifty feet the license
plate was sufficiently illuminated to be legible. Because Deputy Tart had
not observed Lyon’s license plate at a distance approximating fifty feet
without the spoiling feature of reflection from his own vehicle’s
headlights, Lyon argues the district court’s conclusion that there was
reasonable suspicion and probable cause to make the stop must be
reversed.
2. The State. The State disagrees. It asserts Iowa Code section
321.388 establishes two separate requirements: (1) a license plate must
be illuminated with a white light, and (2) the resulting illumination must
“render [the license plate] clearly legible from a distance of fifty feet to the
rear.” Iowa Code § 321.388; see also State v. Tyler, 830 N.W.2d 288, 295
8
(Iowa 2013); State v. Gustafson, No. 08-1429, 2009 WL 4842474, at *4
(Iowa Ct. App. Dec. 17, 2009) (per curiam) (Zimmer, S.J., concurring
specially). The State claims the record establishes that Deputy Tart had
reasonable suspicion under both prongs of the test.
The State notes that at the suppression hearing Deputy Tart
testified the license plate was not illuminated. When he made the
determination there was no illumination, Deputy Tart testified he was
“100 percent certain” that no light was cast from his car to Lyon’s license
plate. As a result, the State argues Deputy Tart had reasonable
suspicion Lyon’s license plate was not properly illuminated in violation of
the first prong of Iowa Code section 321.388.
In addition, the State asserts Deputy Tart also had reasonable
suspicion of a violation of the second prong of Iowa Code section
321.388, which requires that the illumination allow the license plate to
be “clearly legible” from a distance of fifty feet. Although Deputy Tart
could not give a precise distance from which he observed the license
plate, he stated the furthest he was from Lyon’s vehicle was outside fifty
or seventy-five feet away. The State urges that although Deputy Tart’s
observations may not have been made at the precise fifty-foot mark, his
vehicle was close enough to provide reasonable suspicion of a violation of
the second prong of Iowa Code section 321.388.
The State addresses the Reisetter case in two ways. First, the
State suggests Reisetter was wrongly decided and should be overruled by
this court. Citing Louisiana authority, the State believes reasonable
suspicion that a license plate is not legible from fifty feet may arise from
an observation point as far back from the vehicle as ninety feet. State v.
Purvis, 684 So. 2d 567, 569–70 (La. Ct. App. 1996).
9
In any event, the State suggests Reisetter is distinguishable. In
Reisetter, 747 N.W.2d at 794, the deputy testified he was “probably
under a hundred feet [away from the vehicle] or close to it.” In this case,
however, the State suggests the distance is materially closer. The State
further notes that the Reisetter case did not consider the illumination
prong of the statute.
C. Prior Caselaw. The prior caselaw begins with Reisetter. In
Reisetter, the court of appeals considered the validity of a traffic stop
based upon suspicion of a violation of Iowa Code section 321.388 when
the officer observed the vehicle at a distance of about one hundred feet.
Id. The court of appeals concluded the officer was too far away from the
vehicle to “resolve the ambiguity” as to whether the license plate was
properly illuminated. Id. at 795 (internal quotation marks omitted). The
Reisetter court held that in order to have reasonable suspicion, the
observing officer must be at a distance of fifty feet or approximately fifty
feet from the vehicle. Id. at 794–95. A dissenting opinion argued,
however, that the police officer observed the license plate light was “out”
at a distance of about one hundred feet, thereby providing reasonable
suspicion sufficient to justify the stop under Iowa Code section 321.388.
Id. at 795–96 (Zimmer, J., dissenting).
In a subsequent case, the court of appeals distinguished Reisetter.
In Gustafson, 2009 WL 4842474, at *3, the court of appeals considered a
traffic stop under Iowa Code section 321.388 in which testimony at the
suppression hearing indicated that the officer making the stop was
travelling at a distance of between thirty-six to seventy-five feet behind
10
the suspect vehicle. 2 The court of appeals noted the distance was much
closer to the fifty-foot distance from which the license plate must be
sufficiently illuminated to be legible under Iowa Code section 321.388.
Id. Furthermore, in Gustafson the officer backed away from the vehicle
to make sure his headlights were not illuminating the license plate. Id.Finally, the officer saw the vehicle turn a corner, giving the officer an
opportunity to view the license plate area without the potential reflection
coming from the headlights of his vehicle. Id. As a result, the stop in
Gustafson was upheld.
In Gustafson, a special concurrence noted that the validity of the
stop did not turn on the exact distance between the vehicles. Id. at *4
(Zimmer, S.J., concurring specially). The special concurrence
distinguished between a license plate light that was not working at all
and a license plate light that did not provide sufficient illumination to be
legible at a distance of fifty feet. Id. It noted that an officer may form
reasonable suspicion that a license plate light is not working from a
distance farther away than fifty feet. Id. At a minimum, the special
concurrence called for clarification of Reisetter to distinguish between the
two prongs of the statute. Id. at *5.
D. Analysis. Traffic stops on the open road have been subject to
controversy. See State v. Pals, 805 N.W.2d 767, 772–73 & nn.2–4 (Iowa
2011) (noting “the proper scope of police authority in the context of
routine traffic stops has been the subject of countless commentaries,
many cases, and a number of consent decrees”). Unlimited discretion to
stop vehicles on the open road may give rise to allegations of racial
2Asin this case, the litigant in Gustafson did not argue that a different standard
applied under article I, section 8 of the Iowa Constitution as compared to the Fourth
Amendment of the United States Constitution. 2009 WL 4842474, at *2.
11
discrimination, characterized by the descriptive phrase “driving while
black.” See State v. Harrison, 846 N.W.2d 362, 371–72 (Iowa 2014)
(Appel, J., dissenting); Pals, 805 N.W.2d at 772 & n.2 (citing David A.
Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme
Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544(1997)). This is particularly true when an ordinary traffic stop morphs
into a larger criminal investigation without reasonable suspicion beyond
that provided by the original offense. See Pals, 805 N.W.2d at 772–73.
It is thus important to recognize what is not involved in this case.
There is no indication in the record of an improper purpose behind the
stop. Cf. Harrison, 846 N.W.2d at 369–73 (noting the case raised the
question of pretext, as the “officers’ obvious goal was not to take care of
the [claimed Code violation], but rather to investigate an alleged crime for
which they had no basis to initiate a stop”). Nor is this a case involving a
consent search when the stop morphs far beyond the purpose of the
stop. See, e.g., Pals, 805 N.W.2d at 772. And, it is not a case in which
an out-of-proportion arrest occurred as a result of a minor traffic
violation. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 361–62,
373, 121 S. Ct. 1536, 1561, 1567, 149 L. Ed. 2d 549, 581–82, 589
(2001) (O’Connor, J., dissenting) (noting that in holding the arrest of an
individual for a minor criminal offense punishable only by a fine does not
offend the Fourth Amendment, the majority “cloaks the pointless
indignity that [the petitioner] suffered with the mantle of
reasonableness”). Instead, this case involves an ordinary traffic stop,
based upon a claim of reasonable suspicion, in which the officer, in the
course of an ordinary investigation of a traffic infraction, uncovers
evidence of the serious crime of driving while intoxicated.
12
In addition, although Lyon raises claims under both the Fourth
Amendment to the United States Constitution and article I, section 8 of
the Iowa Constitution, he does not advocate the application of a different
standard under the Iowa Constitution than is generally applied by the
United States Supreme Court under the United States Constitution. As a
result, for the purposes of this case, we generally apply the federal
standard, reserving the right to apply that standard in a fashion stricter
than the federal caselaw. See Tyler, 830 N.W.2d at 291–92.
Both parties focus on whether Deputy Tart had reasonable
suspicion to stop Lyon’s vehicle to investigate an alleged violation of Iowa
Code section 321.388. We begin with the language of the statute. The
statute provides that the rear lamp or a separate lamp shall be
constructed and placed “as to illuminate with a white light the rear
registration plate and render it clearly legible from a distance of fifty feet
to the rear.” Iowa Code § 321.388. We agree with the State that the
statute may be violated if there is no illumination of the license plate at
all from a white light or if the illumination, though present, is so weak
that the license plate is not clearly legible from a distance of fifty feet.
We also agree with the thrust of the special concurrence in
Gustafson. See 2009 WL 4842474, at *4. When the issue is whether the
license plate is illuminated at all, that lack of illumination can be
detected from a distance greater than fifty feet. Id. In this case, the
deputy formed a reasonable suspicion that there was no working license
plate light when he observed the vehicle drive past him without an
illuminated license plate and then followed the vehicle to confirm his
suspicions that there was no illumination at all. He trailed the vehicle
from a distance sufficient to ensure that his headlights were not
reflecting on the license plate. Under these circumstances, we find no
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constitutional infirmity under either the Iowa or the United States
Constitutions.
Our holding is not inconsistent with Reisetter. In Reisetter, 747
N.W.2d at 794–95, the court of appeals focused only on the second prong
of Iowa Code section 321.388, namely, whether the illumination was
sufficient to be clearly legible. Reisetter did not explicitly consider
whether there was reasonable suspicion to stop the vehicle based upon a
total absence of illumination. In any event, to the extent that Reisetter is
inconsistent with our opinion we announce today, it is overruled.
IV. Discussion of Iowa Code Chapter 804.20.
A. Introduction. The second issue in this case requires us to
revisit Iowa Code section 804.20, which provides:
Any peace officer or other person having custody of
any person arrested or restrained of the person’s liberty for
any reason whatever, shall permit that person, without
unnecessary delay after arrival at the place of detention, to
call, consult, and see a member of the person’s family or an
attorney of the person’s choice, or both. Such person shall
be permitted to make a reasonable number of telephone calls
as may be required to secure an attorney. If a call is made,
it shall be made in the presence of the person having
custody of the one arrested or restrained. If such person is
intoxicated, or a person under eighteen years of age, the call
may be made by the person having custody. An attorney
shall be permitted to see and consult confidentially with
such person alone and in private at the jail or other place of
custody without unreasonable delay. A violation of this
section shall constitute a simple misdemeanor.
B. Positions of the Parties.
1. Lyon. There is no question that Deputy Tart permitted Lyon to
make several phone calls after his arrest. Lyon, however, asserts Deputy
Tart misled him about the purpose of calling a family member or attorney
under Iowa Code section 804.20. Lyon contends that under our caselaw,
the purpose of such a call is to help individuals decide whether to
14
consent to or refuse a chemical test. See State v. Tubbs, 690 N.W.2d
911, 914 (Iowa 2005). Lyon claims Deputy Tart misled him in two ways.
First, after he received his Miranda warnings and the implied-
consent advisory pursuant to Iowa Code section 321J.6, Lyon was
advised of his right to place a phone call. Lyon, however, asked about
the purpose of the call, stating “I’m gonna call someone first to get out of
here, correct?” and that is “the main objective for me?” In response,
Deputy Tart stated, “I mean, honestly, what you want to do, if you want
to bond out, that’s your prerogative of these phone calls.”
Lyon asserts Deputy Tart’s response was misleading. According to
Lyon, the purpose of a phone call under Iowa Code section 804.20 is to
get advice on whether to consent to chemical testing. According to Lyon,
after he stated that “the main objective” was “to get out of here,” Deputy
Tart should have told him that the purpose of the phone call was to
obtain advice on the chemical testing issue, not to obtain release.
Second, Lyon also attacks the timing of Deputy Tart’s phone call
offer. According to Lyon, Deputy Tart had not yet asked for further
chemical testing. Lyon asserts Deputy Tart offered the phone calls before
he requested further chemical testing in order to undermine Lyon’s
ability to obtain advice on the consent issue.
In support of his claims, Lyon cites several of our cases decided
under Iowa Code section 804.20. He asserts the cases stand for the
proposition that the purpose of the phone call is to assist the defendant
in deciding whether to consent to the chemical testing. See State v.
Walker, 804 N.W.2d 284, 290 (Iowa 2011); State v. Hicks, 791 N.W.2d 89,
97 (Iowa 2010); Tubbs, 690 N.W.2d at 914. Further, according to Lyon,
when an arrestee requests to make a call, the officer must advise the
arrestee of the purpose of such a call under Iowa Code section 804.20.
15
Didonato v. Iowa Dep’t of Transp., 456 N.W.2d 367, 371 (Iowa 1990).
When the purposes of Iowa Code section 804.20 have not been met, Lyon
argues the result is the exclusion of evidence. See State v. Vietor, 261
N.W.2d 828, 832 (Iowa 1978).
2. The State. On the merits, 3 the State contends Deputy Tart had
no affirmative duty to inform Lyon of the purpose of making a phone call
under Iowa Code section 804.20. The State argues Didonato should be
read in tandem with State v. Garrity, 765 N.W.2d 592, 597 (Iowa 2009).
In Garrity, we stated that when an arrestee asked to call a person outside
the scope of section 804.20, law enforcement had an obligation to advise
the arrestee “of the purpose of the phone call, i.e., who [the arrestee]
could call.” Id. Thus, according to the State, Deputy Tart had no
affirmative duty to advise Lyon of the purpose of the phone call once he
was given the opportunity to call persons authorized to receive calls
under the statute.
In any event, even if there was an affirmative obligation under Iowa
Code section 804.20, the State argues Deputy Tart did not mislead Lyon.
The State sees nothing misleading about Deputy Tart’s statement, “I
mean, honestly, what you want to do, if you want to bond out, that’s
your prerogative of these phone calls.” The State further finds nothing
misleading about the timing of the phone calls, noting Lyon had just
previously received Miranda warnings and his implied-consent advisory.
3The State contends Lyon has not preserved error because he failed to provide
this court with a transcript of the underlying criminal proceedings. See State v. Mudra,
532 N.W.2d 765, 767 (Iowa 1995) (per curiam), overruled by State v. Thompson, 856
N.W.2d 915, 921 (Iowa 2014). Lyon counters an adverse ruling on a motion to suppress
is sufficient to preserve the issue on appeal. See State v. Wright, 441 N.W.2d 364, 366
(Iowa 1989) (en banc). Because we conclude Lyon fails on the merits, we find it
unnecessary to address the preservation issue.
16
According to the State, the officer’s only obligation is to give the arrestee
an opportunity to make phone calls prior to submitting to the chemical
test. See Didonato, 456 N.W.2d at 371 (noting the statute was not
violated when a defendant “ha[d] an actual opportunity to consult with
counsel or a family member before submitting to the chemical test”). In
this case, the State maintains, it strains credulity to believe that Lyon did
not know a request was in the offing after Lyon received his Miranda
warnings and the implied-consent advisory.
C. Caselaw Under Iowa Code Section 804.20. We have
considered a variety of interpretive issues under Iowa Code section
804.20. In Vietor, 261 N.W.2d at 831, we held that the statute’s
predecessor provided “a limited statutory right to counsel before making
the important decision to take or refuse a chemical test under implied
consent procedures.”
We revisited the statute in Didonato. In Didonato, 456 N.W.2d at
368, an accused sought to call a friend rather than an attorney or a
family member as allowed under Iowa Code section 804.20. We stated in
Didonato that while law enforcement had no affirmative duty to inform a
suspect of his or her right to make a phone call to counsel, an officer
cannot stand mute when the accused requests to make a call to a friend.
Id. at 371. In Didonato, we stated that “[i]n these circumstances the
statute is implicated and the officer should then advise for what purpose
a phone call is permitted under the statute.” Id.With respect to the timing of the phone call, we noted in Didonato
that a phone call after the implied-consent form was signed is still timely
because consent may be revoked. Id. When a phone call was made and
the accused “ha[d] an actual opportunity to consult with counsel or a
17
family member before submitting to the chemical test, the purposes
behind the statute are served.” Id.In Garrity, 765 N.W.2d at 594, we confronted a situation in which
the party accused of drunk driving sought to make a phone call to a
narcotics officer in order to arrange a deal in which he would reveal a
large drug operation in return for not doing jail time. The arresting
officers declined the request as outside the scope of section 804.20 but
did not affirmatively disclose to whom a call could be made. Id. We held
that under the circumstances, the police officers had an affirmative duty
to advise Garrity whom he could call under the statute. Id. at 597.
In Garrity, we explored the permitted purposes of the phone call.
Id. at 596. We recognized that “[o]ne purpose of Iowa Code section
804.20 [was] to allow [an] arrestee to call an attorney before making the
decision to submit to chemical testing.” Id. (citing Tubbs, 690 N.W.2d at
914). We emphasized, however, that the statute does not limit the phone
call to that particular purpose. Id. We noted that as long as the purpose
of the phone call is a good faith purpose,
the arrestee may choose to contact family or a legal
representative for advice, or to have them inform his
employer that he is not likely to be at work, pick up children
from school, or arrange to have the dog let out.
Id. We stated that when an accused seeks to make a phone call to a
person not covered by Iowa Code section 804.20, the officer has an
obligation to advise the accused “of the purpose of the phone call, i.e.,
who [an arrestee] could call.” Id. at 597. We reiterated the broader
phrasing of purpose in Hicks, 791 N.W.2d at 95, in which we noted “[t]he
legislative purpose [behind] section 804.20 [was] to afford detained
suspects the opportunity to communicate with a family member and
attorney.”
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D. Analysis. As a general matter, we have insisted that law
enforcement officers not play games when faced with a request from a
person in custody to communicate with the outside world after being
arrested. So, for example, an accused who seeks to talk to a narcotics
officer may be advised that he or she cannot do so, but must then
affirmatively be advised that he or she can call an attorney or family
member. See Garrity, 765 N.W.2d at 597. Similarly, a suspect’s inquiry
of an officer whether his or her mom might be called when his or her
vehicle is impounded and whether he or she could “call somebody to get
me out?,” is sufficient to trigger an affirmative duty on the part of law
enforcement to explain the arrestee’s right to call a family member under
the statute. See Hicks, 791 N.W.2d at 92, 96.
But in this case, Lyon asks us to go well beyond our caselaw. Law
enforcement in this case plainly honored Lyon’s request to make phone
calls to an attorney or to family members. Indeed, he was able to contact
his father. Lyon seeks more. He asks us to require law enforcement
officers to explain that a purpose of the call is to obtain advice regarding
whether to submit to a chemical test. Lyon claims Deputy Tart misled
him when he did not respond to his question regarding whether the
primary purpose of the call was to get him out of jail.
While there is language in Didonato that might be recruited to
support Lyon’s position, we think the reasoning in Garrity is more
persuasive and precludes Lyon’s claim. It is no doubt true that one
purpose of the call may be to obtain advice on the question of whether to
consent to chemical testing. But as Garrity makes clear, the phone call
can certainly be used for other purposes as well, including making
arrangements for a suspect to be bailed out or picked up upon his or her
release. See 765 N.W.2d at 596. We do not believe law enforcement
19
officers must help shape the nature of the communication with attorneys
and family members once they have honored the accused’s right to
communicate with such individuals. Deputy Tart’s response to Lyon’s
statement, in essence that it was up to him to determine the nature of
the communication with his attorney or family member, was thus not
misleading but was a correct statement of law.
We also reject the claim that Deputy Tart improperly sequenced
events to eviscerate Lyon’s statutory right to contact an attorney or
family member. After his arrest, Lyon was provided his Miranda rights
and the implied-consent advisory. While a specific request for a
specimen had not yet been made, a reasonable person arrested for drunk
driving would know, after receiving the implied-consent advisory, that
such a request was in the offing. On this record, Lyon has not
persuaded us that Deputy Tart undermined his right to consult with
counsel or a family member through the timing of his request for a
breath specimen.
V. Conclusion.
For the above reasons, we vacate the decision of the court of
appeals and affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Hecht, J., who takes no part.