State v. Walker

• Decision Date: 30 September 2011
• Docket Number: No. 10–0525.,10–0525.
• Parties: STATE of Iowa, Appellant,v.Carson Michael WALKER, Appellee.
• Court: Iowa Supreme Court

804 N.W.2d 284

STATE of Iowa, Appellant,

v.Carson Michael WALKER, Appellee.

No. 10–0525.

Supreme Court of Iowa.

Sept. 30, 2011.

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.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 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 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 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.

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 majority opinion concluding the Ankeny Police Department did not violate section 804.20:

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