State v. Senn, No. 15–0624.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WATERMAN, Justice.
• Citation: 882 N.W.2d 1
• Docket Number: No. 15–0624.
• Decision Date: 24 June 2016
• Parties: STATE of Iowa, Appellee, v. John Arthur SENN Jr., Appellant.

882 N.W.2d 1

STATE of Iowa, Appellee,
v.
John Arthur SENN Jr., Appellant.

No. 15–0624.

Supreme Court of Iowa.

June 24, 2016.

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Brandon Brown and Tammy Westhoff Gentry of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, John P. Sarcone, County Attorney, and Maurice Curry, Assistant County Attorney, for appellee.

WATERMAN, Justice.

Iowa Code section 804.20 (2013) provides a limited statutory right to counsel that allows persons who have been arrested to make phone calls to lawyers or family members and to meet alone and in private with their lawyer at the place of detention. While the statute allows private in-person consultations, it permits the police officer or jailer to be present for the detainee's phone calls. We must decide whether this statute is unconstitutional as applied to a person arrested, but not yet formally charged, for operating a motor vehicle while intoxicated (OWI) who wants to speak privately by phone with a lawyer before deciding whether to submit to a chemical breath test.

The defendant in this case, detained for suspicion of drunk driving, was at the police station on the phone with a lawyer getting advice regarding the implied-consent procedure¹ and his time-sensitive decision whether to refuse the breathalyzer test. The arresting officer declined the defendant's request for privacy during the phone call but told the defendant he could have privacy if the lawyer came to the station. No lawyer arrived in time, and the defendant submitted to the test, which showed his blood alcohol level at .140. Eleven days later, the State charged him with OWI, and he moved to suppress the test result, claiming he was entitled under article I, section 10 of the Iowa Constitution to a private phone consultation with counsel before chemical testing. The district court disagreed, and he was convicted. We retained his appeal.

For the reasons explained below, we conclude that the right to counsel under the Iowa Constitution, as under the Sixth Amendment to the United States Constitution, does not attach until formal criminal charges are filed and had not attached at the time this defendant was asked to submit to the chemical breath test. Most other state supreme court decisions are in accord. Because no Iowa or federal constitutional right to counsel was violated and the defendant's limited statutory right to counsel was honored, we affirm the district court's judgment of conviction.

I. Background Facts and Proceedings.

In the early morning hours of Labor Day, September 1, 2014, Officer Brian Cuppy was on patrol in downtown Des Moines when he saw a truck eastbound on Court Avenue stop for a red light in the middle of the intersection with Water Street with its “back tires ... more than

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five feet past the cross walk.” Officer Cuppy followed the truck, activated his police cruiser's flashing lights, and initiated a traffic stop nearby. The driver, John Arthur Senn Jr., age twenty-nine, told Officer Cuppy that he did not realize he had stopped in the middle of the intersection. Officer Cuppy noted that Senn had bloodshot watery eyes, slurred speech, and a “staggered gait” and smelled of alcohol. Senn initially denied that he had been drinking that night. Officer Cuppy administered field sobriety tests, which Senn failed. Senn then admitted that he had been drinking but said he had stopped over twenty minutes earlier. Senn took a preliminary breath test, which showed an alcohol concentration of 0.165, more than double the legal limit. Senn was arrested for failing to obey the traffic control signal and for operating while intoxicated and was transported to the Des Moines metro police station for chemical testing.

Around 2:30 a.m., Officer Cuppy led Senn to the DataMaster testing room and gave Senn a copy of the implied-consent advisory. Senn read the consent. Officer Cuppy then read the advisory aloud to Senn. Officer Cuppy asked if he had any questions, and Senn replied, “No sir.” Officer Cuppy then read Senn his statutory rights under Iowa Code section 804.20. At 2:34 a.m., Officer Cuppy requested a breath specimen.

Senn asked to call a lawyer. Officer Cuppy remained in the room while Senn made phone calls. Senn had trouble contacting counsel. Officer Cuppy offered to let Senn use the phone book. Senn declined. Around 2:46 a.m., Officer Cuppy asked if Senn was trying to call a lawyer and offered the phone book again. Senn explained he had a lawyer, but she had not answered her after-hours phone number. Senn eventually reached an attorney at 2:49 a.m. Senn, in Officer Cuppy's presence, told the attorney on the phone he was being investigated for his “second first” OWI. Senn explained that his first OWI was “relinquished at the state's expense” in 2009 or 2010. Senn answered the attorney's questions. Senn then asked Officer Cuppy for “attorney-client privilege please.” Officer Cuppy responded that he could not have attorney-client privilege while on the phone but that he could if the attorney came to the jail. Senn repeated that comment to his attorney. Officer Cuppy explained that Senn could not be left alone with the phone. Senn then asked Officer Cuppy if he could have a family member visit. Officer Cuppy said yes, “as long as they are here in time.”

Senn asked Officer Cuppy why he was stopped. Officer Cuppy replied it was because he ran a red light. Senn told the attorney that he “did not run a red light.” Senn explained to the attorney that he worked as an electrician, so his license was “imperative” to his work. Officer Cuppy gave Senn a pen and paper to take notes while he was on the phone. Senn described his criminal record. Senn asked the attorney to come to the police station and said he was able to pay for the trip. Senn offered to pay because he “wanted to make sure he was taken care of.” Officer Cuppy then said Senn had thirty-two minutes left for private consultation. Senn said he understood the consequences of his choice to take or refuse the breathalyzer. Officer Cuppy told Senn this would be his second revocation. Senn again offered to hire the attorney. Senn asked Officer Cuppy what time he had been stopped, and Officer Cuppy replied it had been 2:04 a.m. While Senn was on the phone, he said,

I'd like to expunge any legal options I have at this point because I was downtown on a good faith gesture picking up a friend, so it's not like I was being—

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obviously I was legally intoxicated, but.... I'm just saying that, yeah.

The attorney was unable to meet with Senn in person. Senn asked the attorney if he should wait for someone from the firm to come, call a family member, or do something else. Senn asked for attorney references, and she gave him some. Their conversation ended at 3:17 a.m. Senn then tried to call the recommended attorneys and left messages.

Officer Cuppy escorted Senn to the restroom upon his request. When Senn returned, he called another lawyer and asked Officer Cuppy for a glass of water. Officer Cuppy explained he could not have any water until he decided whether he would take the breath test. Senn left two more voice mails explaining his situation and asking for legal help. Officer Cuppy told Senn that because of his prior license revocation, this time his license would be suspended for one year if he failed the test and it would be suspended for two years if he refused to take the test.² Senn called a friend to let him know he would be booked soon. He expressed frustration about not being able to get an attorney to come to the station. He said he was willing to pay $5000 but no one was willing to come. He was afraid of losing his job. He said he was “playing for the good team” and hoped the officer would let him go. At 3:39 a.m., Officer Cuppy told Senn he had to make a decision. Senn consented to take the breathalyzer test. At 3:41 a.m., Senn took the test, and his blood alcohol content was 0.140.

Officer Cuppy submitted a complaint to the county attorney, and it was approved at 6:14 a.m. Eleven days later, on September 12, Senn was charged by trial information with operating while intoxicated in violation of Iowa Code section 321J.2, a serious misdemeanor. On November 20, Senn filed a motion to suppress, contesting the legality of the stop, the officer's compliance with section 804.20, and the interference with his right to counsel under article I, section 10 of the Iowa Constitution. Senn argued the phrase “in cases involving the life, or liberty of an individual,” which does not appear in the Sixth Amendment, showed the Iowa framers' intent to provide a broader right to counsel. Senn argued an implied-consent procedure is a critical stage of the prosecution under the Iowa Constitution because it involves a choice that has significant consequences for criminal liability.

The district court held a suppression hearing on December 5. At the hearing, Senn's counsel narrowed his motion to the right to counsel under the Iowa Constitution.³ Senn testified that when he called his attorney, she advised him to assert his attorney-client privilege. Senn did, but Officer Cuppy continued to listen to his side of the phone conversation. Senn admitted on cross-examination that the police officer told him that he could not have a confidential phone call but that the attorney could come in person and speak privately with Senn at the station. He agreed that Officer Cuppy never interrupted the phone call.

On December 10, the district court denied Senn's motion to suppress. The ruling stated,

All of the evidence that the defendant wishes to suppress on constitutional grounds was obtained before Senn was charged with the offense. The Iowa

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Constitutional provision is similar to the U.S. Constitution. This court finds that the phrase “life or liberty” deals with contempt situations such as child support, civil infractions or

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