In the Iowa Supreme Court
No. 23–0964
Submitted March 26, 2025—Filed May 23, 2025
State of Iowa,
Appellee,
vs.
Hope Jennifer Clark,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Des Moines County, Emily Dean,
district associate judge.
A defendant convicted of operating while intoxicated seeks further review
of a court of appeals decision affirming her conviction. Decision of Court of
Appeals and District Court Judgment Affirmed.
Christensen, C.J., delivered the opinion of the court, in which Mansfield,
McDonald, and May, JJ., joined. Oxley, J., filed a dissenting opinion, in which
Waterman and McDermott, JJ., joined.
Kent A. Simmons (argued), Bettendorf, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden (argued), Assistant
Attorney General, for appellee. 2
Christensen, Chief Justice.
As the old adage goes, “A picture is worth a thousand words.” And this
video image, when viewed with the entire booking video admitted into evidence,
definitively demonstrates that the defendant had a reasonable opportunity to use
her phone, which was placed inches away, to contact an attorney following her
arrest.
The defendant was pulled over by two deputies in Des Moines County after
they responded to a reckless-driver complaint and observed the defendant
driving erratically. Noting the defendant’s symptoms of intoxication, the deputies
began running field sobriety tests, which the defendant failed to complete. The
defendant requested an attorney when asked if she would submit to a
preliminary breath test and was arrested. The officers read her rights, and she
again requested an attorney but made no attempt to contact one.
The defendant was charged with operating a motor vehicle while
intoxicated (OWI), first offense. In her motion to suppress, she claimed her rights
were violated under Iowa Code section 804.20 (2022) when the deputies did not 3
permit her to call an attorney. The district court denied her motion, and the case
proceeded to a jury trial, where the district court denied her motion in limine to
suppress alleged hearsay evidence regarding testimony by the deputies about a
conversation with the dispatcher. In the end, the jury found the defendant guilty.
On appeal, she challenges the sufficiency of the evidence, the district court’s
denial of her motion in limine, and the district court’s denial of her motion to
suppress.
The court of appeals agreed with the district court on these issues, and we
granted further review. On review, we adopt the court of appeals opinion for all
claims except the motion to suppress issue concerning Iowa Code section 804.20
and the defendant’s claim that she was not permitted to call an attorney. On this
issue, we determine that Iowa Code section 804.20 was not violated.
I. Background Facts and Proceedings.
On June 9, 2022, deputies Sean Phillips and Blake Cheesman of the
Des Moines County Sheriff’s Department received dispatch notification of a
reckless driver around 11 p.m. Phillips was working with Cheesman as his field
training officer. After turning around to follow the dark-colored convertible
described in the call, the deputies observed the driver speeding, hitting a curb,
and failing to keep her lane. The deputies then decided to pull over the driver
and turned on the marked law enforcement vehicle’s lights and sirens. The
deputies pulled up behind the driver in a turning lane, but the driver did not
stop her vehicle. Deputy Phillips had to get out of his vehicle and tap on the car
while giving a verbal cue to stop the driver from making a left turn.
Once the convertible stopped, Deputy Phillips asked the driver for her
license, registration, and insurance. After some initial questions about her
driving, the driver responded affirmatively when Deputy Phillips asked, “Have we
had anything to drink tonight?” The driver then handed over her license to 4
Deputy Cheesman, revealing her identity as Hope Clark. After a few more
questions, Deputy Cheesman asked her again whether she had been drinking,
and this time she responded, “No.” At this point, Deputy Cheesman asked Clark
to exit her vehicle and had to remind her to put the car in park before she exited.
Deputy Phillips testified that Clark was unbalanced while exiting the car.
Once Clark was out of her vehicle, Deputy Cheesman attempted to
continue questioning her. Throughout the deputies’ earlier questioning, she
stated she was having trouble hearing. Once outside her vehicle, Clark explicitly
told Deputy Cheesman that she is a person with hearing loss. Clark then
reaffirmed that she had not been drinking and agreed to submit to field sobriety
tests once she understood what the deputies were asking her. Deputy Phillips
informed her that they wanted to conduct the tests “based on the smell of alcohol
coming from y[ou] and your driving.”
Deputy Cheesman first conducted the horizontal gaze nystagmus test.
This test required Clark to keep her head still and follow one of Deputy
Cheesman’s fingertips with only her eyes. During the test, Clark struggled to
follow these instructions. Still, Deputy Cheesman testified at trial that he
observed six out of the six clues he was looking for while conducting the test,
which indicated to him that Clark was intoxicated.
Clark did not fully complete the second test, the walk-and-turn. Before she
attempted the test, Clark told the deputies that she did not have an injury that
would affect her balance.1 Deputy Phillips also offered to assist Clark in removing
her wedge heels to aid in her balance and completion of the test, but Clark still
stumbled while removing her shoes. Deputy Cheesman and Deputy Phillips
attempted to conduct the test with Clark; however, she continually started the
1Clark offered competing evidence during trial of an ankle injury that impacted her balance. 5
test before they finished explaining the instructions, and they were unable to
complete it. The deputies then determined they would not conduct the third and
final test, the one-legged stand, for safety reasons.
At this point, Deputy Cheesman asked Clark if she would be willing to
submit to a preliminary breath test. Clark stated, “I need an attorney.” Deputy
Cheesman again asked if she would submit to the test, and she replied, “I think
I want my attorney.” The deputies considered her statement to be a refusal and
placed Clark under arrest for suspicion of operating while intoxicated.
Clark was transported to the Des Moines County jail for processing and
further questioning. After processing, Clark was brought into a room to speak
with Deputy Cheesman and Deputy Phillips. She was no longer wearing any
restraints and was asked to sit in a chair in the corner of the room.
Directly after Clark was asked to sit down, Deputy Cheesman explained
that he was going to read Clark her rights. Clark asked, “Do I have a right to an
attorney?” and Deputy Cheesman responded, “Yep, that’s what this all is.” At the
same time, Deputy Phillips brought Clark’s phone into the room. Deputy
Cheesman placed the phone on the table between Clark and himself, as shown
in the picture above. Clark thanked him after acknowledging the placement of
the phone, and Deputy Cheesman then proceeded to read Clark her Miranda
rights. After Deputy Cheesman finished reading, he asked Clark if she
understood her rights, and she nodded her head yes. He also asked Clark, “Do
you wish to talk to us now?” Clark once again nodded her head yes.
After Clark was read her Miranda rights, Deputy Cheesman then
proceeded to read Clark information about the implied consent provisions in
Iowa Code chapter 321J. Before he began, Deputy Cheesman placed a piece of
paper directly in front of Clark and over the top of her phone so that she could
follow along. After he was finished reading the implied consent, Deputy 6
Cheesman requested Clark provide a breath sample but noted that he was going
to read Iowa Code section 804.20 to her before she answered.
While the paper was still on top of Clark’s phone, Deputy Cheesman read
section 804.20 directly out of the Code to her, which explained her right to
contact an attorney or family member. After he finished reading, Deputy
Cheesman informed Clark that she could make a reasonable number of phone
calls before agreeing to provide a breath sample while gesturing in the direction
of Clark and her phone. Clark responded by shaking her head no. This prompted
Deputy Cheesman to ask, “You don’t want to call anybody?” to which Clark
replied that she wanted her attorney. Once again, Deputy Cheesman stated, “You
can call them, if you want,” while making another gesture in the direction of her
and the phone. Clark again responded that she wanted her attorney but did not
take any action to make a call. At this point, Deputy Phillips explained to Clark
that she could call her attorney and once she was done they were going to ask
her to consent or refuse to submit to a breath test. He stated this while gesturing
in the direction of Clark and her phone. Clark responded that she was going to
refuse the breath test.
After this exchange, Deputy Phillips attempted to have Clark sign an
acknowledgement that she refused to submit to a breath test. As Clark began to
try to read the screen that displayed an acknowledgement for her to sign
indicating that she refused to submit to a breath test, she reiterated that she
was saying no to everything and that she wanted her attorney. Deputy Phillips
attempted to explain what she was signing, but Clark was struggling to see the
screen and once again asked for her attorney. Deputy Phillips determined that
she was refusing to sign and directed Clark out of the room. 7
Once Clark was out of the room, she asked the jailer if she could call her
attorney. The jailer told her that she could not have her phone, but she could
have a number out of her phone and use the jail’s phone to make a call. Clark is
unable to hear on a pay phone because of her hearing loss, so she asked the
jailer if the jailer could make the call for her. The jailer would not call an attorney
for Clark but did call a bail bondsman.
Clark was charged with operating a motor vehicle while intoxicated, first
offense, in violation of Iowa Code section 321J.2. She pleaded not guilty to all
charges, and a jury trial was scheduled. Before trial, Clark filed a motion to
suppress, asking the district court to suppress any evidence that occurred after
Clark was denied her right to contact an attorney under Iowa Code
section 804.20. The district court denied Clark’s motion, stating:
Clark was allowed to use her cell phone while at the jail. It was in fact retrieved for her by the arresting deputies. Clark was read the implied consent advisory and the 804.20 advisory. She was allowed to make phone calls to anyone from the jail, and was instructed on multiple occasions that [she] could call her attorney and that she could do so prior to making a decision. She was allowed to read the advisory on paper and on computer. There were no restrictions placed on who Clark could call or how many calls she could make.
The case then proceeded to a jury trial. After opening arguments, Clark
moved to exclude any testimony regarding the reckless driver call that dispatch
relayed to the deputies as prejudicial hearsay. The district court denied this
motion as well: “I don’t believe that’s hearsay because it’s nothing that’s being
offered for the truth of the matter asserted; it simply is what the officers -- why
they were stopping the defendant with that vehicle description.”
Later during trial, Clark testified that she has been a person with hearing
loss from a young age. She described her hearing loss as “a severe profound high
frequency loss with 70 to 80 percent loss in each ear.” Clark relies on her hearing 8
aids, visual cues, and lip reading to hear other people and engage in
conversations without sign language. It is undisputed that the deputies knew of
her hearing loss during their exchange with Clark.2
After the presentation of all the evidence, including testimony by Deputy
Cheesman, Deputy Phillips, and Clark, the jury reached a guilty verdict. Clark
timely appealed this decision. We transferred the case to the court of appeals,
which affirmed Clark’s conviction. We granted Clark’s application for further
review.
II. Analysis.
On appeal, Clark challenges the sufficiency of the evidence to sustain her
conviction, the district court’s denial of her motion in limine, and the district
court’s denial of her motion to suppress. We will only review the Iowa Code
section 804.20 issue concerning Clark’s claim that her rights were violated
because she was not permitted to contact an attorney, and will allow the court
of appeals decision concerning the sufficiency of the evidence and the motion in
limine to stand. See In re Marriage of Schenkelberg, 824 N.W.2d 481, 483 (Iowa
2012) (“In considering an application for further review, we have the discretion
to review all or part of the issues raised on appeal or in the application for further
review.”).
Clark contends that she was denied her right to contact an attorney under
Iowa Code section 804.20, and the district court should have granted her motion
to suppress.3 The State contends that Clark was given a reasonable opportunity
2Clark’s driver’s license indicated that she is a person with hearing loss.
3In Clark’s motion to suppress, she also argued that the deputies violated her rights
under the “Fourth Amendment to the United States Constitution and similar provision of the Iowa Constitution.” However, the district court’s ruling did not address these claims, and Clark did not make an additional motion to preserve the constitutional challenges for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.”). 9
to contact her attorney without “unnecessary delay,” and the district court
agreed. “We review the district court’s interpretation of Iowa Code section 804.20
for errors at law.” State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005). “If the
district court properly applied the law and there is substantial evidence to
support its findings of fact, we will uphold its ruling on a motion to suppress.”
Id.
A. Statutory Background. 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.
This section creates a limited right that requires a law enforcement officer
to afford a suspect a reasonable opportunity to contact an attorney or family
member when requested. State v. Hicks, 791 N.W.2d 89, 94 (Iowa 2010). A
suspect’s invocation of this right should be construed liberally, but a law
enforcement officer is not required to inform a suspect of the right. State v. Starr,
4 N.W.3d 686, 693 (Iowa 2024); State v. Lyon, 862 N.W.2d 391, 400–01 (Iowa
2015). Overall, we “apply section 804.20 pragmatically, ‘balancing the rights of
the arrestee and the goals of the chemical-testing statutes.’ ” State v. Davis, 922
N.W.2d 326, 331 (Iowa 2019) (quoting State v. Lamoreux, 875 N.W.2d 172, 177
(Iowa 2016)).
The parties do not dispute that Clark was in custody or restrained of her
liberty when she requested an attorney,4 that she adequately invoked her right
4When Clark first requested an attorney, she had already failed one field sobriety test and
was unable to complete the other two. The deputies had observed her commit multiple traffic violations and noticed the smell of an alcoholic beverage emanating from her breath. Clark was arrested immediately after requesting an attorney because she refused to submit to a preliminary breath test. Clark made her request when she was restrained of her liberty. See Moorehead, 699 10
to an attorney, or that she was brought to a place of detention. Rather, the
parties disagree as to whether there was an unnecessary delay in allowing Clark
to contact an attorney and whether Clark was given a reasonable opportunity to
contact an attorney. We will address each issue in turn.
B. Unnecessary Delay. First, Iowa Code section 804.20 requires that a
suspect who has invoked the right be afforded the opportunity to contact an
attorney or family member “without unnecessary delay after arrival at the place
of detention.” Clark contends that the reading of her Miranda rights, the implied
consent provisions, and section 804.20 after she arrived at the Des Moines
County jail was an unnecessary delay. However, the State argues that necessary
administrative procedures, which took approximately eleven minutes, were the
only matters performed before Clark was given an opportunity to contact an
attorney.
We recently addressed what constitutes an unnecessary delay under
section 804.20. In State v. Starr, we noted “that the language ‘without
unnecessary delay’ means there must exist some circumstances when delay
would be necessary” and “that the statute does not limit the kinds of situations
that might necessitate delay.” 4 N.W.3d at 698. In that case, the defendant was
denied his right to contact an attorney or family member for over two hours, and
law enforcement waited nearly two hours before questioning the defendant about
the stolen guns that could have been a public safety threat. Id. at 691, 699. That
was an unnecessary delay. Id.
N.W.2d at 671–72 (“Moorehead had already failed three field sobriety tests, a preliminary breath test, arguably made an incriminating statement, and displayed many symptoms of drunkenness. . . . He was restrained of his liberty, and therefore his request fell within the timeframe of the statute. Like the court of appeals, we can find nothing in the plain language of Iowa Code section 804.20 that requires the defendant make his request for counsel or a family member at the ultimate place of detention.”). 11
Here, a significantly different situation took place. Once Clark arrived at
the jail, her request for an attorney had to be honored without unnecessary
delay. But the only occurrences that took place before the deputies stated that
Clark could contact an attorney were administrative processes that are typical
of an OWI arrest. It took approximately eleven minutes and thirty-four seconds
for Clark to enter the jail, go through processing, enter the room where Deputy
Cheesman was located, and for Deputy Cheesman to read her Miranda rights,
provisions of Iowa’s implied-consent law, and section 804.20, which informed
her who she was allowed to call and how many calls she could make.
Clark did not experience an unnecessary delay. Section 804.20 is to be
applied pragmatically, and there are necessary security and administrative
procedures that must be performed before a suspect is given a reasonable chance
to contact an attorney or family member. In this case, these tasks were not used
by the deputies to cause unnecessary delay.
C. Reasonable Opportunity. Next, we must consider whether Clark was
afforded a reasonable opportunity to contact her attorney. Clark argues that she
did not have a reasonable opportunity because the deputies did not inform her
that she could use her phone or the jail’s phone when she was given a chance to
make a call. The State argues that it was enough for Clark to be provided with
her phone and told she could make a call.
“Section 804.20 does not provide an absolute right to counsel, but requires
a peace officer to provide the arrestee with a reasonable opportunity to contact
an attorney.” Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa
1997) (per curiam). In State v. Hicks, we explained that
section 804.20 requires law enforcement to take affirmative action to ensure the request for a phone call is honored. Because of the disparity in power between detaining officers and detained suspects during the detention process, no lesser standard is adequate. Requiring a suspect with restrained liberty to affirmatively pick up 12
a police department’s telephone and contact family or counsel without invitation from the detaining officer transforms section 804.20 into an illusory statutory right.
791 N.W.2d at 97. For a reasonable opportunity to be afforded, “the detaining
officer must direct the detainee to the phone and invite the detainee to place [her]
call or obtain the phone number from the detainee and place the phone call
himself.” Id.
Here, Clark was given a reasonable opportunity to contact an attorney.
Deputy Cheesman and Deputy Phillips both told Clark multiple times that she
could contact her attorney while her phone was placed mere inches away from
her, as shown in the photograph. Additionally, both deputies gestured in the
direction of Clark and her phone when they stated that she could make a
reasonable number of phone calls. The deputies only needed to permit Clark to
have a reasonable opportunity to make a phone call, which they did by telling
her multiple times that she could contact her attorney and by giving her access
to her own phone.
III. Conclusion.
For the foregoing reasons, we affirm the decision of the court of appeals
and Clark’s conviction.
Decision of Court of Appeals and District Court Judgment Affirmed.
Mansfield, McDonald, and May, JJ., join this opinion. Oxley, J., files a
dissenting opinion, in which Waterman and McDermott, JJ., join. 13
#23–0964, State v. Clark
Oxley, Justice (dissenting).
The majority concludes that Clark was permitted to call her attorney when
a deputy placed her cellphone on the desk, labeling a picture of the phone within
Clark’s reach as “worth a thousand words.” But the picture is a mere snapshot
of a single moment in time. The picture comes into clearer focus after watching
the full-length film of the encounter. Despite numerous requests, Clark was
never actually given a reasonable opportunity to contact an attorney. I therefore
respectfully dissent.
Iowa Code section 804.20 (2022) requires a peace officer to permit a person
in the officer’s custody to contact an attorney “without unnecessary delay after
arrival at the place of detention.” Two distinct inquiries are required to determine
whether Clark was denied that statutory right. There is no dispute that Clark
adequately invoked her statutory right to contact an attorney, satisfying the first
inquiry. See State v. Hicks, 791 N.W.2d 89, 94 (Iowa 2010) (“First, we must
determine whether [Clark] invoked [her] rights under section 804.20.”). So
Clark’s appeal turns on the second inquiry—whether Clark “was afforded the
rights section 804.20 guarantees,” id., i.e., a reasonable opportunity to contact
an attorney, see id. at 96 (“[O]nce section 804.20 is invoked the peace officer
must provide the detainee ‘with a reasonable opportunity’ to contact a family
member or attorney.” (quoting Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d
624, 626 (Iowa 1997) (per curiam))).
We explained one of the primary purposes for the statutory right to call an
attorney “without unnecessary delay” in State v. Vietor, 261 N.W.2d 828, 829–32
(Iowa 1978). When a person is arrested for driving while under the influence of
alcohol and asks to call her lawyer, she “shall be afforded a right to do
so . . . before being required to elect whether [she] shall submit to a chemical test.” 14
Id. at 832 (emphasis added) (discussing Iowa Code section 755.17, the
predecessor to section 804.20). Delaying the right to contact an attorney until
after being required to make that election defeats the point of Iowa Code section
804.20. Consequently, “[i]f [she] is denied that opportunity, evidence of [her]
refusal to take [a] chemical test shall be inadmissible at a later criminal trial.”
Vietor, 261 N.W.2d at 832.
In State v. Hicks, we further clarified what an officer must do to satisfy
Iowa Code section 804.20. 791 N.W.2d 89. There, much like here, the district
court found that a defendant “was permitted numerous opportunities to exercise
his rights under section 804.20” because a telephone was within his reach on
the table between him and the officer and the officer “did nothing to deny Hicks
the right to call his mother.” Id. at 96. We disagreed, reasoning that “even if a
phone was in reach, we do not think that alone suffices to provide a detainee a
‘reasonable opportunity’ to contact family.” Id. We emphasized that “section
804.20 requires law enforcement to take affirmative action to ensure the request
for a phone call is honored.” Id. at 97.
Because of the disparity in power between detaining officers and detained suspects during the detention process, no lesser standard is adequate. Requiring a suspect with restrained liberty to affirmatively pick up a police department’s telephone and contact family or counsel without invitation from the detaining officer transforms section 804.20 into an illusory statutory right.
The majority’s attempt to distinguish Hicks ignores the significant
evidence presented in this case beyond the picture that starts its opinion. Even
though Clark’s cellphone was placed on the table, a full review of the evidence
presented at the suppression hearing reveals that there really is no daylight
between what happened here and what we found inadequate in Hicks. 15
The video footage reveals that after being transported to the Des Moines
County jail for processing, Clark was brought into a private room with Deputy
Cheesman and Deputy Phillips for further questioning. As directed by the
deputies, Clark sat in a chair in the corner of the room. Deputy Phillips walked
in and put Clark’s cellphone on the desk. Deputy Cheesman told Clark that he
was going to read her rights to her; Clark asked if she had a right to an attorney;
and Deputy Cheesman responded, “Yep, that’s what this all is,” and proceeded
to read the Miranda rights from a card. Even though Clark’s cellphone was sitting
on the desk—as depicted in the majority’s snapshot—Deputy Cheesman did not
stop to allow Clark to make a call at that time. Rather, he kept reading her rights.
Deputy Phillips then brought in a copy of the implied consent statute. Deputy
Cheesman placed that paper over Clark’s cellphone, told Clark that she could
follow along, and then spent the next two-and-a-half minutes reading the implied
consent statute. Thus, while it is true that Deputy Phillips placed Clark’s
cellphone within her reach, Deputy Cheesman continued talking to her until long
after the cellphone was covered by the implied consent document.
Next, Deputy Cheesman requested a specimen of Clark’s breath but then
stopped, saying that before she answered that question, he would read her the
provisions in Iowa Code section 804.20. When he finished reading section
804.20, Clark said, “I just want my attorney.” At this point, her cellphone was
under the paper. Deputy Phillips walked over, stood directly in front of Clark,
and said to her: “You’re more than welcome to start making those phone calls to
try to talk to your attorney. Ok, . . . and once you’re done making those phone
calls, we’re going to ask whether you consent or refuse our breath test.” Clark
responded that she was going to refuse, and Deputy Phillips immediately
directed her to walk over to the computer screen to sign the refusal. The 16
promised phone calls were clearly no longer available. This is the first clear
violation of section 804.20.
The deputies then retrieved Clark’s glasses to help her read the computer
screen. When directed where to sign to say that she was refusing the breath test
on the computer, Clark again said, “I -- I don’t know. . . . I need my attorney.”
Rather than honor that request, Deputy Phillips instead replied, “So you’re
refusing to sign as well.” Clark responded, “I’m refusing everything,” and Deputy
Phillips directed her out of the room. This is the second clear violation of section
804.20. It appears that Deputy Phillips then clicked the “refuse to sign” button
on the computer screen after Clark walked out of the room—without her
cellphone—as directed.
It is also important to consider Deputy Cheesman’s testimony that he
“believe[d] the jail’s policy is they can use their phone to get numbers, but I don’t
think they actually make calls from their personal phone” and explained that
there is a pay phone available for detainees to use. This is not an uncommon
practice. See, e.g., State v. Sewell, 960 N.W.2d 640, 642 (Iowa 2021) (explaining
that Dickinson County Sheriff’s “Deputy Grimmus also indicated that the jail
policy is for all detainee calls to be on the jail landline, which is recorded,”
including calls made pursuant to Iowa Code section 804.20). So the deputy
sitting right across the desk from Clark and who continued explaining her rights
to her even after she asked to speak to her attorney did not believe that Clark
was allowed to use the cellphone sitting within her reach to make the requested
call. And his actions as revealed in the video footage reflect that understanding,
as he continued to talk to Clark, giving her no time to actually pick up her
cellphone and use it.
Critically, the video evidence reveals that Clark was not provided her
statutory right to call an attorney before being required to decide whether to 17
submit to or refuse a preliminary breath test—despite several requests, including
a specific request to talk to her attorney when asked to confirm that she was
refusing the breath test. See Vietor, 261 N.W.2d at 829–30. As we explained in
Hicks, “even if a phone was in reach, we do not think that alone suffices to
provide a detainee a ‘reasonable opportunity’ to contact family [or an attorney].”
791 N.W.2d at 96. We concluded that the officer in Hicks failed to provide the
detainee with a reasonable opportunity to make a phone call because “[d]uring
Hicks’s processing, Sparks never directed Hicks to the phone, asked Hicks for
the name and number of his mother, or attempted to place the phone call for
Hicks. Instead, Sparks elected to continue to delay Hicks’s requests by
continuing with the booking process.” Id. at 97.
Likewise, here, Deputy Cheesman never told Clark that she could use her
cellphone that Deputy Phillips brought in and that laid, covered up, on the desk.
Nor did Deputy Cheesman tell Clark that she could retrieve a phone number
from her cellphone. But more critically, when Clark responded that she was
going to refuse everything upon Deputy Phillips telling her that they were going
to ask her to consent or refuse the breath test after she made her attempts to
call her attorney, Deputy Phillips immediately directed her to stand up and go to
the computer screen, eliminating any reasonable opportunity to make the
promised calls.
“[O]nce section 804.20 is invoked, the detaining officer must direct the
detainee to the phone and invite the detainee to place [her] call or obtain the
phone number from the detainee and place the phone call himself.” Id.; see also
Iowa Code § 804.20 (“If such person is intoxicated, . . . the call may be made by
the person having custody.”). Clark clearly invoked her statutory right to contact
her attorney under section 804.20 before she said that she was going to refuse
the breath test. Although Clark said she was going to “refuse everything,” she 18
also specifically asked for her attorney when asked to sign the refusal. Deputy
Phillips ignored that request, instead treating her response as a refusal to sign
the form, and then sent her out of the room. Rushing a detainee through the
informed consent process and ignoring her request to speak to her attorney when
asked to confirm her decision to refuse the breath test is the antithesis of
permitting a detainee to contact her attorney as required by section 804.20.
The majority also ignores expected behavior between detainees and
detaining officers. It is worth repeating what we said in Hicks: “[S]ection 804.20
requires law enforcement to take affirmative action to ensure the request for a
phone call is honored. Because of the disparity in power between detaining
officers and detained suspects during the detention process, no lesser standard
is adequate.” 791 N.W.2d at 97 (emphasis added). A detainee sitting in a chair
in the corner of a private room with two detaining officers would not feel free to
ignore or interrupt the detaining officers—mid-conversation—to scroll through
her personal phone to find her attorney’s contact information, let alone to
actually make the call. See id.; see also Marcy Strauss, The Sounds of Silence:
Reconsidering the Invocation of the Right to Remain Silent Under Miranda, 17 Wm.
& Mary Bill Rts. J. 773, 814–15 (2009) (noting that police discretion and leverage
of authority permits officers to put off the will of suspects, ultimately depriving
them of their rights); Peter M. Tiersma & Lawrence M. Solan, Cops and Robbers:
Selective Literalism in American Criminal Law, 38 L. & Soc’y Rev. 229, 249, 254–
55 (2004) (arguing that Davis v. United States, 512 U.S. 452 (1994), fails to
account for social normative behavior such as politeness, hedging, and deference
to authority). Iowa Code section 804.20 required the deputies to honor Clark’s
requests to speak to her attorney by giving her an actual opportunity to make
the phone call. Telling Clark that she can make a phone call but not providing
the time or means to do so are indistinguishable from the actions we rejected as 19
illusory in Hicks. See 791 N.W.2d at 97 (“Requiring a suspect with restrained
liberty to affirmatively pick up a police department’s telephone and contact
family or counsel without invitation from the detaining officer transforms section
804.20 into an illusory statutory right.”).
Having looked beyond the single snapshot and watched the full-length
film, I conclude that Clark was not given the reasonable opportunity to contact
an attorney to which she was statutorily entitled. I therefore respectfully dissent.
Waterman and McDermott, JJ., join this dissent.