State of Iowa v. Carson Michael Walker

IN THE SUPREME COURT OF IOWA
No. 10–0525
Filed September 30, 2011
STATE OF IOWA,
Appellant,
vs.
CARSON MICHAEL WALKER,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, James D.
Birkenholz, Judge.
State seeks discretionary review of district court’s ruling
suppressing appellee’s chemical test results. COURT OF APPEALS
DECISION VACATED; DISTRICT COURT RULING AFFIRMED; CASE
REMANDED.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, John P. Sarcone, County Attorney, and David M.
Porter, Assistant County Attorney, and Scott M. Wadding, Student Legal
Intern, for appellant.
Daniel J. Rothman and William G. Brewer of McEnroe, Gotsdiner,
Brewer & Steinbach, P.C., West Des Moines, for appellee.
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WATERMAN, Justice.
Is an attorney able “to see and consult confidentially [with his
client] alone and in private” under Iowa Code section 804.20 (2009) by
talking through an intercom in a booth separated by a glass partition
and watched by a police video camera? In this prosecution for operating
a motor vehicle while intoxicated (OWI), the district court answered “no”
to this question of first impression and granted defendant
Carson Michael Walker’s motion to suppress breath-test results obtained
after he met with his lawyer under those conditions. On discretionary
review a divided court of appeals reversed, with the two-judge majority
finding no violation of section 804.20. A concurring opinion found the
statute was violated. All three members of the panel found no prejudice
or intrusion on the attorney-client relationship. We granted Walker’s
application for further review to decide whether his section 804.20 rights
were violated and, if so, to determine the appropriate remedy.
This case presents our first opportunity to construe the limited
statutory right to a custodial in-person consultation with counsel. Other
courts have reached divergent conclusions on the extent to which police
and jailors can monitor or regulate attorney visits with clients in custody.
A clear majority of courts allow restrictions—such as a partitioned room
separating the lawyer and client or video monitoring of their conference—
only upon a case-specific, individualized suspicion of a threat to safety or
security. In this case, Walker was cooperative and nonviolent. For the
reasons explained below, we hold the police violated Walker’s section
804.20 rights by restricting his attorney conference to the booth with the
glass partition under videotaped surveillance. We apply the same
remedy our precedents provide for violation of the section 804.20
statutory right to make timely phone calls to legal counsel or family
3
members—suppression of the subsequent breath-test results or test
refusal, regardless of prejudice. Accordingly, we vacate the decision of
the court of appeals and affirm the district court’s suppression ruling.
I. Background Facts and Proceedings.
On December 6, 2009, Ankeny police patrol officer Travis
Grandgeorge saw a Ford Expedition being driven down the center
dividing line on Southeast Delaware Avenue and pulled it over at 2:23
a.m. Walker, age twenty-eight, was the driver and sole occupant.
Grandgeorge noted Walker had slurred speech, watery bloodshot eyes,
and smelled of alcohol. Walker admitted he had been drinking and
attempted, but failed, several field sobriety tests—the “Walk and Turn”
and “One Leg Stand.” He refused to take a preliminary breath test (PBT)
but scored a “6,” indicating intoxication, on the Horizontal Gaze
Nystagmus (HGN) test of his ability to keep his eyes focused on the
officer’s finger as it moved across his face. Walker was arrested at 2:39
a.m. and transported to the new Ankeny police station. There,
Grandgeorge gave Walker an implied consent advisory, requested a
breath sample at 3:16 a.m., and offered Walker the opportunity to make
phone calls. Walker made eight calls, including one to attorney Murray
Gotsdiner.
Gotsdiner answered the call and referred the matter to attorney
Daniel Rothman, who was more knowledgeable about OWI law.
Rothman arrived at the Ankeny Police Department at 4:42 a.m.
Grandgeorge greeted Rothman and escorted him to a small detention
area with three empty booths with glass partitions to separate visitors
from detainees and intercoms with telephone style handsets for
communication. Rothman saw a black plastic security camera “bubble”
and correctly assumed the booths were monitored by video camera. He
4
was concerned the room or phones were recorded for sound. No signage
indicated whether audio or visual monitoring was in use. Rothman did
not ask any officer about audio or video recording or raise any concern
about such eavesdropping at this time. In fact, the video was streamed
onto a separate monitor and kept for one month. Neither the booth nor
the telephone handsets were audio recorded, nor was any officer in the
booth area or watching the video monitor while Rothman was there.
Rothman had planned to make his own assessment of Walker’s
intoxication before advising him whether to take the breath test. Walker
was facing a charge of OWI, first offense, and if his blood alcohol level
exceeded .15%, he would be ineligible for a deferred judgment. Rothman
wanted to have Walker privately perform for him several physical
balancing tests, but worried the videotape would create more evidence to
be used against his client at trial. Rothman was trained to administer
the HGN test, but concluded glare on the thick glass from the bright
florescent lighting would prevent him from conducting that test with
Walker on the other side of the partition. Rothman also wanted to smell
Walker’s breath and could not do so through the solid glass barrier.
Accordingly, Rothman, without mentioning the video, asked Grandgeorge
for a different room without the partition for his client conference. His
request was refused, and when he asked again, Grandgeorge checked
with his supervisor, then told Rothman department policy prohibited all
visitors from entering the detention area. It is undisputed Walker was
nonviolent and cooperative.
Because Rothman’s repeated requests for a different room were
refused, he conferred with Walker from opposite sides of the glass
partition for fifteen minutes using the intercom. Rothman made no
request to halt any recording while at the station, nor was he told
5
whether video or audio recording was in progress. After conferring with
Rothman through the partition, Walker took the evidentiary Datamaster
breath test at 5:02 a.m. The breath test measured Walker’s blood
alcohol level at .186%, more than double the legal limit of .08% and
above the .15% maximum for a deferred judgment.
The State charged Walker with operating while intoxicated in
violation of Iowa Code section 321J.2, first offense. Walker moved to
suppress the breath-test results based on the alleged violation of his
right under section 804.20 to “see and consult confidentially” with his
attorney “alone and in private.” Walker contended the booth with the
glass partition and video monitoring violated the statute, and his request
for a different room should have been granted. The State resisted,
contending Rothman was allowed to consult with Walker in confidence
under reasonable security conditions imposed by the police department.
The district court conducted an evidentiary hearing on the motion
to suppress. Grandgeorge and Rothman testified. Grandgeorge testified
the purpose of the solid glass barrier and policy denying contact visits
was to prevent visitors from passing contraband or weapons to detainees
and that “the attorney might pose a safety issue.” The Ankeny police
policy applied to all visitors: “Not strictly attorneys. We don’t allow
anyone else into the [detention] area because it could pose a safety issue
if it’s a friend of theirs. You just never know what could happen, so we
don’t allow anyone in there.” The State does not claim Ankeny police had
any individualized, case-specific reason to suspect Walker posed a threat
to Rothman or that Rothman would pass his new client contraband or do
anything to compromise the contemplated breath test. Nor does the
State contend the new Ankeny police station lacked another room
without a barrier where Rothman and Walker could have met privately.
6
Rothman testified his ability to give informed legal advice was
impeded. Specifically, he was unable to smell Walker’s breath or perform
the HGN test, and he chose to refrain from asking Walker to do balancing
tests because of the video camera and his belief that video of Walker’s
performance would be admissible against him at trial. See State v.
Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (allowing into evidence video of
defendant taken at police station without attorney present “to
demonstrate Garrity’s body motions, judgment, slurred speech and
inability to communicate”).
The district court found the officers violated Walker’s section
804.20 rights by prohibiting him from meeting with Rothman “alone and
in private” and granted the motion to suppress the breath-test results.
The district court noted the security camera “bubble is visible, and we all
know what is behind a bubble. It’s Uncle Sam looking. There’s no
information given to the people using the required communication
devices that the audio is not being recorded.” The district court
elaborated:
In this case we have an experienced attorney who
clearly understands field sobriety tests, and the video itself
will be a chilling effect on requesting the defendant to
perform a one-leg stand or a walk-and-turn type of test.
Because if he failed, he would be giving the Government
additional evidence.
....
The glass wall or very large window would clearly
interfere with the defense counsel performing the HGN test
potentially because of the glass and the lighting. There was
no chance to smell any odor of alcohol, and I think clearly
the request was made that the meeting be in person.
The State filed an interlocutory application for discretionary review.
Walker resisted. We granted the State’s application and transferred the
case to the court of appeals. The court of appeals reversed, with the
7
majority opinion concluding the Ankeny Police Department did not
violate section 804.20:
[W]e agree with the State’s contention that Walker was
provided an opportunity to consult with Attorney Rothman
in confidence under reasonable security conditions imposed
by the police department.
....
We also do not believe communication through a glass
partition or a phone or intercom system prevents either the
attorney or client from speaking freely with each other.
Section 804.20 guarantees a confidential consultation—not
the ability to smell or touch the client, or the space to
perform field sobriety tests.
A special concurrence disagreed with the majority’s conclusion as
to whether section 804.20 had been violated. The special concurrence
stated:
I disagree with the majority that the physical environment in
which Walker and his attorney were placed satisfied the
“alone and in private” requirement of Iowa Code section
804.20 (2009). “Alone” means “separated from others:
isolated.” Merriam-Webster’s Collegiate Dictionary 34 (11th
ed. 2004). “Private” means “withdrawn from company or
observation.” Id. at 988. In my view, these terms do not
encompass videotaped booths such as the ones Walker and
his attorney were forced to use.
All three judges on the court of appeals panel agreed that,
regardless of whether section 804.20 was violated, Walker was not
entitled to suppression of the breath-test results because he had made
no showing of prejudice resulting from the refusal to provide a private
consultation room. The court of appeals noted “no inculpatory evidence
was viewed or captured during Walker’s meeting.” Nor were any
conversations between Rothman and Walker overheard and reported to
the prosecutor. Given the absence of any actual intrusion on the
attorney-client communications or showing of actual prejudice, the court
of appeals held the breath-test results were admissible against Walker.
8
We granted Walker’s application for further review.
II. Standard of Review.
The district court’s interpretation of Iowa Code section 804.20 is
reviewed for errors at law. State v. Hicks, 791 N.W.2d 89, 93 (Iowa
2010). We affirm the district court’s suppression ruling when the court
correctly applied the law and substantial evidence supports the court’s
fact-finding. Id.
III. Iowa Code Section 804.20.
It is undisputed that Walker’s attorney invoked the statutory right
to “see and consult confidentially” with Walker “alone and in private” at
the Ankeny Police Department and that he repeatedly requested a private
room without the glass partition. It is also undisputed that Walker was
cooperative, not belligerent or violent. The Ankeny police had no case-
specific reason to suspect Rothman would be at risk alone in a room with
physical contact with Walker or that either of them together would do
anything to compromise the impending breath test. Under these
circumstances, we must decide whether Walker’s section 804.20 rights
were violated by restricting his attorney consultation to the booth with
the glass partition between them under videotaped surveillance. This is
a question of statutory interpretation.
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
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
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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.)
When interpreting a statute, “our primary goal is to give effect to
the intent of the legislature. That intent is evidenced by the words used
in the statute. . . . In the absence of legislative definition, we give words
their ordinary meaning.” Anderson v. State, 801 N.W.2d 1, 3 (Iowa 2011)
(quoting State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011) (internal
citation and quotations marks omitted)). “We seek a reasonable
interpretation which will best effectuate the purpose of the statute . . . .”
State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995).
“The legislative purpose of section 804.20 is to afford detained
suspects the opportunity to communicate with a family member and [an]
attorney.” Hicks, 791 N.W.2d at 95 (citing State v. Vietor, 261 N.W.2d
828, 831 (Iowa 1978)). Section 804.20 “is a statute of general
application,” and its scope is broader than OWI cases. State v.
Moorehead, 699 N.W.2d 667, 674 (Iowa 2005). Most of our cases,
however, have involved the statutory right to place a telephone call to an
attorney or family member when pulled over for drunk driving. See, e.g.,
State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (“One purpose of
section 804.20, of course, is to allow an arrestee to call an attorney
before deciding whether to submit to a chemical test.”); Vietor, 261
N.W.2d at 831 (“[T]here is a limited statutory right to counsel before
making the important decision to take or refuse the chemical test under
implied consent procedures.”). As we observed in Vietor, a person
arrested for OWI faces “the necessity of making an immediate decision
which later may be used to convict him of a crime.” Id. The time for
10
consultation is, however, effectively limited by law enforcement’s interest
in obtaining the test within two hours of the defendant’s driving in order
to preserve the presumption afforded under Iowa Code section
321J.2(8)(a). See Iowa Code § 321J.2(8)(a) (providing that the alcohol
concentration, established by the results of a specimen withdrawn within
two hours after the defendant was driving, will be presumed to be the
alcohol concentration at the time of driving); see also Iowa Code
§ 321J.6(2) (“If the peace officer fails to offer a test within two hours after
the preliminary screening test is administered or refused or the arrest is
made, whichever occurs first, a test is not required, and there shall be no
revocation under section 321J.9.”). 1
Although section 804.20 governs the attorney-consultation rights
of all arrestees, not just drunk drivers, we read it together with the
implied-consent provisions of Iowa Code chapter 321J. In Welch v. Iowa
Department of Transportation, we noted “we 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.” 801 N.W.2d 590, 594 (Iowa 2011).
Nevertheless, we noted precedent “indicating a driver’s decision to
consent to testing must be voluntary—i.e., ‘freely made, uncoerced,
reasoned and informed.’ ” Id. (quoting State v. Garcia, 756 N.W.2d 216,
220 (Iowa 2008)). The arrestee’s intoxication impairs his judgment as
well as his driving ability. Such individuals must make a stressful and
1In addition, the parties do not dispute officers are instructed to observe
suspects for fifteen minutes before administering chemical testing. See Iowa Admin.
Code r. 661—157.2(4) (requiring operator of breath testing device to follow checklist
furnished by the Iowa Department of Public Safety’s criminal laboratory); Division of
Criminal Investigation Alcohol Section, Operating the Datamaster DMT Version 1.0 30
(2009), http://www.dps.state.ia.us/DCI/lab/breathalcohol/index.shtml (checklist
providing that arrestee be observed for a fifteen-minute “deprivation” period).
11
time-sensitive decision whether to take or decline the evidentiary breath
test—a choice with significant consequences for their criminal liability
and driving privileges.
Our cases addressing the right to a telephone consultation with an
attorney make clear that section 804.20 “is to be applied in a pragmatic
manner, balancing the rights of the arrestee and the goals of the
chemical-testing statutes.” Tubbs, 690 N.W.2d at 914. Thus, we
recently reiterated that an arrestee who “asks to call his lawyer should be
permitted to do so before submitting to a chemical test,” but that this
right “is limited to circumstances where it does not ‘materially interfere’
with the chemical test procedure.” Garrity, 765 N.W.2d at 595–96
(quoting Vietor, 261 N.W.2d at 832).
While we have repeatedly addressed the detainee’s right to make
phone calls under section 804.20, this case presents our first
opportunity to construe the right to “see and consult confidentially” with
an attorney “alone and in private.” The statute expressly provides for
greater privacy when the attorney personally visits his client at the police
station or other place of custody. Indeed, “the telephone calls which
section 804.20 assures to persons in custody are not intended to be
confidential as is shown by the provision that they are to be made in the
presence of the custodian.” State v. Craney, 347 N.W.2d 668, 678–79
(Iowa 1984) (allowing into evidence defendant’s statement, “I killed my
baby” made in phone call to attorney overheard by police officer during
booking process because statement made in the presence of a third
person is not protected by attorney-client privilege). For that reason,
attorneys who consult by telephone with persons arrested for OWI
typically tell their client to answer only “yes” or “no” to the attorney’s
questions. By contrast, section 804.20 clearly allows for privileged
12
communications at the place of detention where the attorney shall be
permitted to “consult confidentially” with his client “alone and in
private.” We have noted the “right of privacy between attorney and client
is well recognized and jealously guarded” during jailhouse consultations.
State v. Coburn, 315 N.W.2d 742, 748 (Iowa 1982).
We must now decide whether the Ankeny police violated Walker’s
section 804.20 rights by restricting his attorney visit to the booth with
the glass partition under videotaped surveillance without audio
recording.
A. The Glass Partition. Rothman testified at the suppression
hearing the glass partition that separated him from his client impeded
his ability to give informed legal advice on whether to take the breath
test. Specifically, Rothman was trained to administer the HGN test but
was unable to use it with Walker because of the glare on the thick glass
partition. Rothman also was denied the opportunity to smell his client’s
breath. The district court, in concluding that section 804.20 was
violated, found the “glass wall . . . would clearly interfere with the
defense counsel performing the HGN test” and that there “was no chance
to smell any odor of alcohol.” Some OWI defense counsel take advantage
of today’s technology by bringing a handheld PBT device to the police
station to measure their client’s blood alcohol level before advising them
whether to take or refuse the breath test. The glass partition at the
Ankeny station, which lacks any portal or opening, prevents defense
counsel from using such a device.
The State, however, correctly notes that Rothman and Walker were
able to see each other through the glass and speak through the intercom.
The State contends that this environment is adequate for the limited
statutory right to a consultation with counsel under section 804.20,
13
when balanced against the safety and security needs of the police and
the need to protect the integrity of the breath test. For example, the
breath test could be compromised if the detainee is given certain
substances to put in his mouth. Some detainees are arrested for an
assault or disorderly conduct and might pose a threat to a visiting
attorney. See Slager v. HWA Corp., 435 N.W.2d 349, 357 (Iowa 1989)
(acknowledging “the unpredictable behavior of intoxicated persons”).
While it is said that “God protects drunks and fools,” our cases recognize
that police owe a duty to protect persons arrested. See Hildenbrand v.
Cox, 369 N.W.2d 411, 415 (Iowa 1985). Walker was intoxicated.
Significantly, however, he was compliant, nonviolent, and cooperative.
Furthermore, the State does not contend Ankeny police had any case-
specific reason to believe that Rothman would be unsafe in a room with
Walker or that, left alone together, the two would do anything to obstruct
justice by compromising the breath test.
Guidance is provided by other appellate decisions addressing
whether a detainee’s right to counsel is violated by a partition. Colorado
has a statute with operative language equivalent to Iowa’s—allowing
persons in custody to “see or consult, alone and in private [with an
attorney] at the place of custody.” Colo. Rev. Stat. Ann. 16–3–403 (West,
Westlaw through First Reg. Sess. 2011). In People v. Parsons, the
appellate court held that an inmate’s statutory right to counsel was not
violated by restricting his attorney visit to a room with a glass partition
that had a pass-through. 15 P.3d 799, 805 (Colo. App. 2000). The court
noted this room had “no security cameras or recording devices which
observe or record what occurs in the room,” but guards could look in on
the room through windows. Id. at 804. The court described the visiting
room as follows:
14
[T]he room is constituted of two portions. The attorney
occupies one side, and the inmate/client the other side, and
the two sides are separated by a partition. The partition has
a pass through for exchange of materials. The attorney and
the inmate/client can see each other adequately through the
glass partition. They can communicate by spoken word in a
normal tone of voice, and in so doing cannot be overheard by
those who are outside the room, but who may be in the
immediate area.
Id. Parsons was facing charges of first-degree murder for killing another
inmate. Id. at 801. The court found the visiting room sufficient “for
most purposes of private communication.” Id. at 805. Parsons
nevertheless contended his attorney-client relationship was impaired
“because he was not free to use ‘physical demonstrations of things that
had taken place or [were] alleged to have taken place.’ ” Id. The
appellate court rejected this argument, noting that Parsons did have the
opportunity to meet several times with his attorney in the jury room at
the courthouse where he could perform physical demonstrations without
observation by guards. Id.
Parsons is distinguishable. Walker is facing a charge of OWI, not
murder. Moreover, the booth at the Ankeny police station had no “pass-
through” opening to allow Rothman to smell his client’s breath or
perform HGN tests. The Ankeny booth was under videotaped
surveillance; the prison visiting room in Parsons was not. And most
importantly, Parsons was afforded several opportunities to consult with
his attorney outside of the jail in a jury room suitable for private physical
demonstrations.
Further guidance is provided by federal appellate decisions holding
inmates’ right to counsel requires allowing “contact” visits with counsel
in a room with no partition or barrier between them. See, e.g., Mann v.
Reynolds, 46 F.3d 1055, 1061 (10th Cir. 1995) (holding that death row
inmates’ Sixth Amendment right to counsel required allowance of contact
15
visit in barrier-free room); Ching v. Lewis, 895 F.2d 608, 609–10 (9th Cir.
1990) (holding prisoner had right to “contact visitation” with his counsel
that was violated by restricting visits to room where he was required to
“yell through a hole in the glass”); Adams v. Carlson, 488 F.2d 619, 630
(7th Cir. 1973) (finding visitation room at Marion Federal Penitentiary
bisected by glass partition denied inmate’s access to counsel; noting the
difficulty of attorneys “behind glass” establishing trust and a satisfactory
working relationship with prisoner, and “the paucity of evidence in the
record to support the Government’s view that Marion officials reasonably
feared importation of contraband by appellants’ attorneys”).
Commentators surveying the case law note a majority of courts
reaching the question hold an inmate’s right to counsel requires a
visitation room without a physical barrier:
An issue that has arisen in connection with attorney-
client visits is whether prison officials may compel inmates
to have noncontact visits with attorneys. Noncontact visits
take place with a physical barrier between the inmate and
the visitor that prevents one from having any physical
contact with the other. Written material has to be passed
from the attorney to the inmate by a guard messenger, if at
all. While this type of visiting arrangement has been
sustained for nonlegal family visits, courts have not been as
willing to sanction noncontact visits with attorneys.
The majority of courts that have considered the issue
have held that inmates—even inmates on death row—are
constitutionally entitled to contact visits with their attorneys.
These courts have found noncontact visits too impersonal
and unduly restrictive to comport with the constitutional
right of inmates to consult meaningfully with their counsel
....
Michael B. Mushlin, 3 Rights of Prisoners § 12:27, at 257–59 (4th ed.
2009) (footnotes omitted).
Walker’s Sixth Amendment right to counsel had not yet attached at
the time he was asked to perform the breath test. See State v. Nelsen,
16
390 N.W.2d 589, 591 (Iowa 1986) (Sixth Amendment right to counsel
“attaches upon the initiation of adversary criminal judicial proceedings
.... In Iowa, a criminal proceeding is commenced ‘by the filing of a
complaint before a magistrate.’ ” (quoting Iowa Code § 804.1 (1983)); see
also State v. Hoch, 500 So. 2d 597, 599–600 (Fla. Dist. Ct. App. 1986)
(detainee had no federal constitutional right to counsel before being
required to submit to blood/alcohol test). Nevertheless, cases
adjudicating the constitutional right to counsel are instructive in
determining whether a statutory right to counsel is violated by restricting
attorney-client visits to a partitioned room subject to videotaped
surveillance. Section 804.20 applies in some situations in which the
constitutional right to counsel has attached. Accordingly, we interpret
the statutory terms “see and consult confidentially . . . alone and in
private” to provide the same privacy afforded jailhouse visits under the
Sixth Amendment. “This approach makes sound policy sense and would
conform to the presumption of statutory constitutionality and our
mandate to construe statutes in a fashion to avoid a constitutional
infirmity where possible.” In re Young, 780 N.W.2d 726, 729 (Iowa 2010);
see also Simmons v. State Pub. Defender, 791 N.W.2d 69, 74 (Iowa 2010)
(noting need to consider Sixth Amendment right to counsel to guide
interpretation of statute governing payment of attorney fees for
representing indigent defendants); State v. Wiederien, 709 N.W.2d 538,
542 (Iowa 2006) (interpreting section 708.12(2) to avoid constitutional
prohibition).
Courts have restricted attorney visits to “noncontact” rooms
separating attorney and client when the prisoner had a “demonstrated
propensity toward violence.” Dep’t of Corrs. v. Super. Ct., 182 Cal. Rptr.
294, 299 (Ct. App. 1982). Courts generally require an individualized
17
suspicion to justify limiting a detainee’s right to meet with counsel in a
barrier-free room:
Prison officials may ban disruptive attorneys from the prison
and may prohibit contact, as distinct from noncontact, visits
by attorneys to prisoner clients, where justified by specific
security considerations. On the other hand, an arbitrary
policy of denying a prisoner contact visits with his or her
attorney unnecessarily abridges the prisoner’s right to
meaningful access to the courts, where such a policy
prohibits effective attorney-client communication. Because
an attorney is considered an officer of the court, there is no
reason to suspect that he or she would be a threat to prison
security or discipline.
72 C.J.S. Prisons § 113, at 570–71 (2005) (footnotes omitted).
We agree with this approach. In Wemark v. State, we noted,
“Although a strong tradition of loyalty exists between a lawyer and client,
a lawyer is also an officer of the court who is bound by a code of
professional conduct.” 602 N.W.2d 810, 816 (Iowa 1999). Iowa lawyers
may be disciplined for misconduct during conferences with clients in
custodial detention. See Comm. on Prof’l Ethics & Conduct v. Durham,
279 N.W.2d 280, 285–86 (Iowa 1979) (public reprimand for attorney who
engaged in sexual contact with client-inmate in prison visiting room).
The State has made no showing in this case specific to Rothman and
Walker that would justify limiting their conference to a “noncontact”
visitation room under the foregoing authorities.
We hold on the specific facts of this case that Walker’s section
804.20 rights were violated when the Ankeny police restricted his
attorney’s visit to the booth with the solid glass barrier precluding
contact between attorney and client.
B. The Videotaped Surveillance. We next determine whether
Walker’s section 804.20 right to “see and consult confidentially” with his
attorney “alone and in private” was violated by the video surveillance
18
camera trained on the partitioned booths (without audio recording). In
construing statutes, we give words their ordinary meaning. Anderson,
801 N.W.2d at 3. “Alone” means “separated from others : ISOLATED.”
Merriam-Webster’s Collegiate Dictionary 34 (11th ed. 2004). “Private”
means “withdrawn from company or observation.” Id. at 988. Persons
visually monitored by a security camera are not “withdrawn from . . .
observation.” Put simply, people would not believe they are meeting
“alone and in private” in a room monitored by a police surveillance
camera.
In People v. Dehmer, the Colorado Court of Appeals held that a
statutory requirement to permit an arrested person to “see or consult,
alone and in private at the place of custody” was violated by a
surveillance camera that did not record sound. 931 P.2d 460, 463 (Colo.
App. 1996). That decision, interpreting the same operative statutory
language, is persuasive here.
Similarly, Vermont courts have recognized a statutory right to
private legal consultation before a person arrested for drunk driving
must decide to take or forgo the breath test. State v. Sherwood, 800 A.2d
463, 466 (Vt. 2002). The Vermont Supreme Court held that videotaping
a defendant’s consultation with his attorney violated his right to a private
legal consultation. Id. (“The tape itself is evidence that defendant’s
conversation with counsel was not, in fact, private.”).
We are to interpret the operative statutory language to “ ‘best
achieve[] the statute’s purpose.’ ” Welch, 801 N.W.2d at 600 (quoting
State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006)). The purpose of
section 804.20 is to enable the person arrested to obtain informed legal
advice before deciding whether to take the breath test. Vietor, 261
N.W.2d at 831. “[I]f a criminal defendant is to receive the full benefits of
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the right to counsel, the confidence and privacy of communications with
counsel must be assured.” Wemark, 602 N.W.2d at 816 (noting
“violation of the privilege may implicate the Sixth Amendment right to
counsel”).
Substantial evidence supports the district court’s finding that the
video surveillance had a chilling effect on Rothman’s consultation with
Walker. Specifically, as Rothman testified, he refrained from having
Walker perform a one-leg stand or a walk-and-turn balancing test out of
concern a poor performance would be captured on videotape, providing
the government additional evidence to convict. See Garrity, 765 N.W.2d
at 597 (allowing into evidence video of defendant’s conduct at police
station to show his inebriation).
The State argues that security reasons justify leaving the video
camera running during the attorney consultation. The Kansas Supreme
Court surveyed the case law addressing video monitoring of attorney
conferences with inmates in Case v. Andrews, 603 P.2d 623, 625–26
(Kan. 1979). There, the attorney met with his client in jail in a room
visually monitored by a permanently mounted camera. Case, 603 P.2d
at 624. The attorney placed his suit coat over the camera lens for
privacy, but was ordered by a deputy to remove it. Id. at 624–25. The
detainee brought a habeas corpus action alleging the video surveillance
violated his Sixth Amendment right to confer privately with counsel. The
Case court agreed, stating:
It must be emphasized that attorneys are officers of
the court. It should be presumed, absent a contrary
showing, that an attorney representing an incarcerated client
will strive to uphold the credibility and standards of the
judicial system rather than to subvert them. Absent a
showing of any risk to the order or security of the jail, the
practice of visually monitoring an attorney-client conference
when privacy is requested, is unreasonable. Such
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unreasonable interference violates an accused’s Sixth
Amendment right to effective representation by counsel.
Accordingly, the writ is allowed and the respondent,
Daniel R. Andrews, sheriff of Lyon County, is directed to
permit attorneys consulting clients held in the county jail to
place their coats over the television camera lens during such
a conference.
Id. at 627. We find this reasoning persuasive in interpreting the limited
statutory right to an attorney consultation under section 804.20. We
therefore hold that in the absence of any individualized showing of a
safety or security risk video surveillance violates an arrestee’s right to
“see and consult confidentially” with his attorney “alone and in private.”
C. The Remedy for a Section 804.20 Violation. We now turn to
the remedy for the violation of Walker’s section 804.20 rights. The
district court applied the remedy mandated by more than a generation of
our precedent—suppression of the breath-test results. See Moorehead,
699 N.W.2d at 673–74 (reviewing history of exclusionary rule under
section 804.20 adopted in Vietor, 261 N.W.2d at 832). “ ‘Stare decisis is
a valuable legal doctrine which lends stability to the law . . . .’ ” Welch,
801 N.W.2d at 599 (quoting Kersten Co. v. Dep’t of Soc. Servs., 207
N.W.2d 117, 121 (Iowa 1973)). We see no reason to retreat from our
precedent in this case today. Our prior cases applied the exclusionary
rule for violations of a defendant’s section 804.20 right to telephone a
family member or counsel; as noted above, this statute provides greater
protection for confidential, in-person attorney consultations. It would
make no sense to provide a lesser remedy.
The court of appeals, relying on Coburn, erred in holding Walker
was not entitled to suppression because he failed to show prejudice or
that any privileged attorney-client communication, in fact, was
intercepted and used against him. Coburn is distinguishable. That case
was decided under the Sixth Amendment, and no constitutional violation
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was found because the police did not eavesdrop or attempt to eavesdrop
on the defendant’s jailhouse conference with his attorney. Coburn, 315
N.W.2d at 748. Our prior decisions under section 804.20 require
defendants to make no such showing that a privileged communication
actually was overheard and used against defendant. Prejudice is
presumed upon a violation of section 804.20. Moorehead, 699 N.W.2d at
673 (“This is especially true when the breath test is high—in this case
nearly twice the legal limit.”).
IV. Conclusion.
For the foregoing reasons, we hold that Walker’s section 804.20
right to “see and consult [with his attorney] alone and in private” was
violated when the Ankeny police rejected Rothman’s request for a
different room and restricted his consultation with Rothman to the
videotaped booth with a solid glass partition separating the attorney and
client, without any case-specific safety or security reason to justify those
measures. The remedy for this violation is suppression of the breath-test
results, regardless of prejudice or lack thereof. We reaffirm that this
limited statutory right is limited to timely consultations that do not
materially interfere with implied consent chemical testing procedures.
Those holding custody of arrested persons should honor attorney
requests for a private, barrier-free meeting room. Upon request, video
and audio recordings should be turned off during the attorney
consultation or the attorney should be allowed to temporarily block the
camera. In any event, audio and video recording of the in-person
attorney consultation shall not be admissible against the accused.
Physical separation of the attorney and detained client and/or visual
monitoring of their conference may be required upon a showing by the
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State of an individualized safety or security risk justifying such
measures.
We vacate the decision of the court of appeals and affirm the
district court’s ruling suppressing the breath-test results. We remand
this case for further proceedings consistent with this opinion.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
RULING AFFIRMED; CASE REMANDED.