State v. Sewell, No. 20-0445

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMANSFIELD, Justice.
Citation960 N.W.2d 640
Parties STATE of Iowa, Appellee, v. Matthew Robert SEWELL, Appellant.
Docket NumberNo. 20-0445
Decision Date04 June 2021

960 N.W.2d 640

STATE of Iowa, Appellee,
v.
Matthew Robert SEWELL, Appellant.

No. 20-0445

Supreme Court of Iowa.

Submitted February 17, 2021
Filed June 4, 2021
Rehearing Denied June 29, 2021


Robert G. Rehkemper (argued) of Gourley, Rehkemper & Lindholm, P.L.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven (argued), Assistant Attorney General, and Amy E. Zenor, County Attorney, for appellee.

Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed an opinion concurring in part and dissenting in part.

MANSFIELD, Justice.

960 N.W.2d 641

We are asked to decide today whether Iowa law or the Iowa Constitution guarantee a suspected drunk driver the right to a private phone consultation with counsel before deciding whether to take a blood alcohol test. We conclude that Iowa law does not provide such a right because the statute provides that if a call to counsel is made, "it shall be made in the presence of the person having custody of the one arrested or restrained." Iowa Code § 804.20 (2019). We conclude that the Iowa Constitution does not provide such a right because the right to counsel under article I, section 10 arises in "criminal prosecutions" and "cases involving the life, or liberty of an individual," not in procedures that occur before such a prosecution or case is commenced. For these reasons, we hold that the defendant was not entitled to a private phone consultation with counsel and his motion to suppress was properly denied. We affirm the defendant's conviction and sentence.

I. Background Facts and Proceedings.

On January 15, 2019, at 2:49 a.m., dispatch received a call from a local resident reporting that someone was passed out in a truck in their driveway in Milford. Dickinson County Sheriff's Deputy Matt Grimmus arrived at the resident's home at about 3:00 a.m. Upon arriving, Deputy Grimmus discovered a silver Ford-150 in the driveway running with its lights on. There was a male in the driver's seat sleeping. Deputy Grimmus reported, "I knocked on the window several times to get the male[’]s attention. He looked at me once and then closed his eyes. I knocked again on the window and the male looked at me and flipped me off."

The man originally denied he had identification, but eventually produced his driver's license identifying him as Matthew Sewell. Sewell admitted he had been drinking, and Deputy Grimmus noticed a strong odor of an alcoholic beverage. Sewell did not know what street he was on and looked confused. His eyes were watery and bloodshot and his speech was slurred. Sewell did not perform well on three field sobriety tests and declined the preliminary breath test.

Deputy Grimmus arrested Sewell at 3:22 a.m. and transported him to the Dickinson County Jail. Deputy Grimmus and Sewell arrived at the Dickinson County Jail at 3:46 a.m. Deputy Grimmus read Sewell the text of the implied-consent advisory and requested a chemical breath test sample at 3:53 a.m. Following the invocation of implied consent, Deputy Grimmus gave Sewell the opportunity to contact an attorney or a family member. Sewell was allowed to

960 N.W.2d 642

use his cellphone to retrieve phone numbers but not to place calls.

Sewell left a message with Matthew Lindholm, a criminal defense attorney in West Des Moines. When Lindholm called back at 4:25 a.m., Sewell explained they were talking on the jail's landline, not Sewell's cellphone. Deputy Grimmus denied Lindholm and Sewell's request for a confidential phone call on Sewell's cellphone, stating that Sewell and his attorney could have a confidential meeting at the jail. Deputy Grimmus also indicated that the jail policy is for all detainee calls to be on the jail landline, which is recorded.

When Lindholm learned that he could not have a private phone conversation with Sewell, he declined to proceed further.1 Lindholm later testified at the suppression hearing that he was "not comfortable advising him" under the circumstances.

At 4:55 a.m., Sewell decided to take the breath test and recorded a .206 blood alcohol content. He was booked into jail.

On February 4, Sewell was charged by trial information with operating while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2. Sewell filed a motion to suppress evidence, urging that his rights under Iowa Code section 804.20, the Fourth and Sixth Amendments to the United States Constitution, and article I, sections 8 and 10 of the Iowa Constitution had been violated. He also filed a motion to dismiss alleging due process violations. Both motions centered on the Dickinson County jail's refusal to allow Sewell a private, unrecorded conversation with Lindholm.

The district court held a hearing on the motions on August 15. Lindholm was one of the witnesses. Lindholm testified that the vast majority of his criminal practice involves OWIs. In a typical year, he handles in excess of one hundred such cases. Often, Lindholm receives calls from people who have been arrested and are in custody and are looking for advice regarding whether to consent or refuse chemical testing. In those situations, Lindholm wants to gather information, including: How much did the person drink and when? How did the person perform on the field sobriety tests and the preliminary breath test? Does the person have prior offenses? Was there an injury or death?

On November 15, the district court entered a ruling denying both of Sewell's motions. Afterward, Sewell waived his rights to a jury trial and stipulated to a trial on the minutes of testimony. The trial court found Sewell guilty of OWI on two alternative theories: being under the influence of alcohol and having a blood alcohol concentration of .08 or more. Sewell was sentenced to serve in the weekend offender program and to pay a fine of $1250 plus surcharges. See Iowa Code § 321J.2(3)(a ), (c ). Sewell appealed, and we retained the appeal.

II. Standard of Review.

The district court's interpretation of Iowa Code section 804.20 is reviewed for errors at law. State v. Hellstern , 856 N.W.2d 355, 360 (Iowa 2014). "We affirm the district court's suppression ruling when the court correctly applied the law and substantial evidence supports the court's fact-finding." State v. Walker , 804 N.W.2d 284, 289 (Iowa 2011). We review constitutional claims de novo. State v. Pettijohn , 899 N.W.2d 1, 12 (Iowa 2017).

960 N.W.2d 643

III. Analysis.

A. Does Iowa Code Section 804.20 Provide the Detainee a Right to a Confidential Telephone Consultation?

Iowa Code section 804.20 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.

(Emphasis added.)

Sewell argues that "made in the presence of the person having custody of the one arrested or restrained" means only that the call shall be dialed in the presence of the officer. After that, the officer is required to leave and allow the detainee to have a private, confidential conversation. The State argues that "made in the presence" means that the officer can be present and listen while the detainee talks to any family member or attorney.

"We begin our inquiry in this case with the language of the statute as a whole." Doe v. State , 943 N.W.2d 608, 610 (Iowa 2020). Normally, when the same term is used repeatedly in the same statute, we give the term the same meaning each time. See State v. Paye , 865 N.W.2d 1, 7 (Iowa 2015) ("When the same term appears multiple times in the same statute, it should have the same meaning each time.").

Iowa Code section 804.20 uses the word "make" or "made" in reference to phone calls in three separate sentences. If we are to read "make" or "made" consistently in each of these sentences, the notion appears to be that the phone calls are brief and for the purpose of obtaining counsel, not for the purpose of obtaining advice from counsel. Thus, the second sentence of the statute says that the detainee shall be permitted to "make a reasonable number of telephone calls as may be required to secure an attorney." The third sentence says that if a call is made, "it shall be made in the presence of the person having custody of the one arrested or restrained." And the fourth sentence says...

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6 practice notes
  • State v. Kilby, 19-0734
    • United States
    • United States State Supreme Court of Iowa
    • June 18, 2021
    ...are read an advisory3 and have a statutory right to consult with counsel before taking or refusing the breath test. State v. Sewell , 960 N.W.2d 640, 641 (Iowa 2021). But the choice can be a difficult one because consenting to the breath test may reveal a blood alcohol level above the legal......
  • State v. Montgomery, 19-1613
    • United States
    • United States State Supreme Court of Iowa
    • November 19, 2021
    ...however, stare decisis is not at work unless the court believes that the underlying decision was incorrectly decided. State v. Sewell, 960 N.W.2d 640, 651 (Iowa 2021) (Appel, J., concurring in part and dissenting in part); Youngblut v. Youngblut, 945 N.W.2d 25, 45 (Iowa 2020) (McDonald, J.,......
  • Luthi v. Neis, 20-1270
    • United States
    • Court of Appeals of Iowa
    • November 3, 2021
    ...that if a call to counsel is made, 'it shall be made in the presence of the person having custody of the one arrested or restrained.'" 960 N.W.2d 640, 641 (Iowa 2021) (quoting Iowa Code § 804.20). Additionally, Luthi's conversation with his attorney was not otherwise confidential or subject......
  • Cory v. State, 20-1112
    • United States
    • Court of Appeals of Iowa
    • August 18, 2021
    ...that gives rise to the right to counsel includes the accusatory stage, but excludes the investigatory stage."); see also State v. Sewell, 960 N.W.2d 640, 650 (Iowa 2021) (reiterating "view that the article I, section 10 right to counsel does not attach prior to the initiation of a case or p......
  • Request a trial to view additional results
8 cases
  • State v. Kilby, 19-0734
    • United States
    • United States State Supreme Court of Iowa
    • June 18, 2021
    ...are read an advisory3 and have a statutory right to consult with counsel before taking or refusing the breath test. State v. Sewell , 960 N.W.2d 640, 641 (Iowa 2021). But the choice can be a difficult one because consenting to the breath test may reveal a blood alcohol level above the legal......
  • State v. Montgomery, 19-1613
    • United States
    • United States State Supreme Court of Iowa
    • November 19, 2021
    ...however, stare decisis is not at work unless the court believes that the underlying decision was incorrectly decided. State v. Sewell , 960 N.W.2d 640, 651 (Iowa 2021) (Appel, J., concurring in part and dissenting in part); Youngblut v. Youngblut , 945 N.W.2d 25, 45 (Iowa 2020) (McDonald, J......
  • State v. Montgomery, 19-1613
    • United States
    • United States State Supreme Court of Iowa
    • November 19, 2021
    ...however, stare decisis is not at work unless the court believes that the underlying decision was incorrectly decided. State v. Sewell, 960 N.W.2d 640, 651 (Iowa 2021) (Appel, J., concurring in part and dissenting in part); Youngblut v. Youngblut, 945 N.W.2d 25, 45 (Iowa 2020) (McDonald, J.,......
  • Luthi v. Neis, 20-1270
    • United States
    • Court of Appeals of Iowa
    • November 3, 2021
    ...that if a call to counsel is made, 'it shall be made in the presence of the person having custody of the one arrested or restrained.'" 960 N.W.2d 640, 641 (Iowa 2021) (quoting Iowa Code § 804.20). Additionally, Luthi's conversation with his attorney was not otherwise confidential or subject......
  • Request a trial to view additional results

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