                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1737
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AMANDA IONE BRAINERD DELZER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Winnebago County, Christopher C.

Foy (motion to suppress) and Gregg R. Rosenbladt (trial), Judges.



      Defendant appeals her conviction for operating while intoxicated, third

offense. AFFIRMED.



      Shaun A. Thompson of Newman, Thompson & Gray, P.C., Forest City, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
                                         2


BOWER, Judge.

       Defendant Amanda Delzer appeals her conviction for operating while

intoxicated (OWI), third offense. We find the decision of the district court denying

Delzer’s motion to suppress to be correct based upon Iowa Code section 804.20

(2013), as there was no restraint of liberty when she requested to call an

attorney. We further find Delzer’s Fifth Amendment rights were not violated as

no custodial interrogation took place without being informed of her Miranda

rights. We affirm Delzer’s conviction.

       I.     Background Facts & Proceedings

       On December 27, 2014, at about 2:00 a.m., Deputy Brian Plath of the

Winnebago County Sheriff’s Office was on patrol in Forest City when he noticed

a vehicle without its headlights on at a stop sign. It was snowing quite heavily at

the time. As the vehicle started from the stop, it fishtailed and hit the curb on the

opposite side of the road. After Deputy Plath stopped the vehicle, he noticed a

strong odor of an alcoholic beverage. The driver, Delzer, had watery, bloodshot

eyes and slurred speech. She admitted she had been drinking earlier in the

evening. There was an open container of beer in the vehicle.

       Due to the weather conditions, which Deputy Plath described as a

blizzard, he told Delzer they would go to the sheriff’s department for field sobriety

tests. He asked, “Fair enough?” and Delzer nodded her head. He asked Delzer

to lock her car, and went with her while she did so, stating, “We’ll go to the jail,”

which was the same building as the sheriff’s department. Delzer sat in the front

seat of the squad car while they traveled about four blocks to the sheriff’s

department.
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       Deputy Plath took Delzer to the booking room at the sheriff’s department,

which was set up for field sobriety tests. When he asked Delzer if she consented

to field sobriety tests, she replied, “Legally do I have to?” and he said, “Well, you

have a right, and that is going to determine whether or not we go further on.”

Delzer asked, “So, is there a lawyer that I can call?” Deputy Plath stated, “Well

right now we are just in the preliminary stages, so, I mean, we are not even

coming close to doing the legal stuff. This is for me testing to see where you are

at. Do you consent to that or no?” Delzer then consented to the field sobriety

tests, which she failed.

       Deputy Plath testified after Delzer failed the field sobriety tests he

considered her to be under arrest. He read Iowa Code section 804.20 to Delzer,

gave her a telephone directory, and allowed her ample time to call any attorney

of her choosing. When Delzer stated she did not want to make any more calls,

Deputy Plath read the implied consent advisory to Delzer. Delzer agreed to a

breath test, which showed her blood alcohol level was .130.

       Delzer was charged with OWI, third offense, in violation of Iowa Code

section 321J.2, a class “D” felony. Delzer filed a motion to suppress the results

of her field sobriety tests, claiming under section 804.20 she should have been

permitted to contact an attorney when she stated, “So, is there a lawyer that I can

call?” prior to performing the field sobriety tests. She also claimed she was in

custody at the time Deputy Plath informed her they were going to the jail, she

was not informed of her Miranda rights, and her subsequent statements should

be suppressed.
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       After a suppression hearing, the district court denied Delzer’s motion to

suppress, finding:

       In this case, the law enforcement center was initially a location for
       Deputy Plath to continue his investigation of [Delzer] in more
       suitable conditions than those that existed at the scene of the stop.
       When Deputy Plath and [Delzer] first arrived at the law enforcement
       center, the officer had not made a decision whether to arrest
       [Delzer] and take her into custody. Deputy Plath testified credibly
       that if [Delzer] had satisfactorily performed the field sobriety tests
       he administered at the law enforcement center, he would not have
       arrested her for OWI but instead would have taken [Delzer] back to
       the scene of the stop and allowed her to go on her own way.
       Because Deputy Plath had not yet made a decision to arrest
       [Delzer] and had not even completed the investigatory portion of his
       traffic stop, her request to call an attorney immediately upon their
       arrival at the law enforcement center was premature.
               The law enforcement center first became a “place of
       detention” for purposes of Section 804.20 once [Delzer] failed the
       field sobriety tests and Deputy Plath placed her under arrest for
       OWI. As soon as the conditions set out in the statute were met, the
       officer allowed [Delzer] to make as many calls as she wanted. It is
       the opinion of the Court that Deputy Plath complied with both the
       letter and the spirit of Section 804.20 in this case. Accordingly, the
       motion to suppress filed by [Delzer] should be denied.

(Citation omitted.)

       Delzer filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),

stating the district court had not ruled on the issue involving her Miranda rights.

The district court stated Delzer had not presented any evidence or made any

arguments at the suppression hearing on this issue, so the court concluded she

did not wish to pursue it. The court did not amend its ruling on Delzer’s motion to

suppress.

       The case proceeded to trial based solely upon the minutes of testimony.

The court found Delzer guilty of OWI, third offense. She was sentenced to a

term of imprisonment not to exceed five years, but the sentence was suspended,
                                         5


with the exception of thirty days, and she was placed on probation for three

years. Delzer now appeals her conviction.

      II.     Section 804.20

      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.

Delzer claims she was restrained of her liberty because she was involuntarily

taken from the location of the traffic stop to a “place of detention,” the sheriff’s

department.    She states under section 804.20, Deputy Plath should have

permitted her to call an attorney when she asked, “So, is there a lawyer that I can

call?” Our review of this issue is for the correction of errors at law. See State v.

Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).

      We determine this case is governed by State v. Krebs, 562 N.W.2d 423,

424 (Iowa 1997), where during field sobriety testing a defendant requested to call

his wife and a deputy told him he could call her once field sobriety testing was

concluded.    The Iowa Supreme Court determined “section 804.20 was not

implicated at the time of [the defendant’s] request because he was not in custody

or otherwise sufficiently restrained.”   Krebs, 562 N.W.2d at 426.       The court

stated:

      Field sobriety tests are used by peace officers to determine
      whether there are reasonable grounds to believe a person is
      intoxicated. These tests are part of an officer’s investigation to
      determine if a criminal offense has occurred. At this point in the
      investigation, the defendant is merely being detained by the officer,
      not restrained of his liberty. Although section 804.20 may be
      implicated in a situation short of a formal arrest, we do not believe
                                          6


       the language “restrained of the person’s liberty for any reason
       whatever” extends to the investigatory portion of a traffic stop.

Id. (citations omitted). The court further noted at the time the defendant made his

request the deputy had not made a decision as to whether he was in violation of

chapter 321J, and therefore, “section 804.20 was not implicated.” Id.

       Like Krebs, the deputy in this case had not made a decision as to whether

or not Delzer was in violation of chapter 321J when she first requested to call an

attorney. See id. We agree with the district court’s statement, “Because Deputy

Plath had not yet made a decision to arrest [Delzer] and had not even completed

the investigatory portion of his traffic stop, her request to call an attorney

immediately upon their arrival at the law enforcement center was premature.”

We find no error in the district court’s conclusion Delzer had been detained, but

had not been restrained of her liberty, so section 804.20 was not implicated. See

State v. Dennison, 571 N.W.2d 492, 495 (Iowa 1997) (“[A]n individual’s detention

by an officer for the purposes of performing field sobriety tests does not rise to

the level of custody, but is merely detention for investigative purposes.”).

       Delzer claims the situation in this case is similar to that found in

Moorehead, 699 N.W.2d at 671, where the Iowa Supreme Court determined the

defendant was restrained of his liberty as he sat in the back of a patrol car. In

that case, however, the defendant “had already failed three field sobriety tests, a

preliminary breath test, arguably made an incriminating statement, and displayed

many symptoms of drunkenness,” and a deputy testified he considered the

defendant was technically under arrest. Moorehead, 699 N.W.2d at 671. The

court determined, “The investigatory stage of the stop had ended.”             Id. We
                                          7

determine this case is not similar to Moorehead because the investigatory stage

of the traffic stop was not completed at the time Delzer requested an attorney.

         We affirm the decision of the district court denying Delzer’s motion to

suppress based upon section 804.20. Because Delzer’s statutory right to contact

an attorney was not violated, the court did not err in denying her request to

suppress the results of the field sobriety and breath tests.

         III.   Custodial Interrogation

         Delzer claims the district court should have suppressed statements made

about how much she had to drink because she was in custody once Deputy Plath

told her they were going to the jail and she was not informed of her Miranda

rights. The district court did not directly rule on this issue, but found Delzer did

not present any evidence or argument on the issue at the suppression hearing.

In ruling on her rule 1.904(2) motion, the court did not amend its suppression

ruling, thereby impliedly denying her claims on this issue. Our review on this

constitutional issue is de novo. See State v. Russell, 261 N.W.2d 490, 492 (Iowa

1978).

         We first note Delzer’s statement she had something to drink that evening

was before Deputy Plath stated they were going to the sheriff’s department.

After this, Delzer stated she had four or five drinks, although this was prior to

Deputy Plath’s statement they were going to the jail. In any event, the United

States Supreme Court has stated the “noncoercive aspect of ordinary traffic

stops prompts us to hold that persons temporarily detained pursuant to such

stops are not ‘in custody’ for the purposes of Miranda.” Berkemer v. McCarty,

468 U.S. 420, 440 (1984). The court stated, “It is settled that the safeguards
                                        8


prescribed by Miranda become applicable as soon as a suspect’s freedom of

action is curtailed to a ‘degree associated with formal arrest.’”     Id. (citation

omitted).

      We have already determined Delzer was temporarily detained while the

deputy performed field sobriety tests, and her liberty was not restrained, nor was

her freedom of action curtailed to a degree associated with a formal arrest. See

id. We affirm the district court decision denying Delzer’s motion to suppress on

the ground she was subjected to custodial interrogation without being informed of

her Miranda rights.

      We affirm Delzer’s conviction for OWI, third offense.

      AFFIRMED.

      McDonald, J., concurs; Tabor, P.J., dissents.
                                             9


TABOR, Presiding Judge. (dissenting)

       I respectfully dissent. I would reverse the order denying Amanda Delzer’s

motion to suppress. In my view, the record shows when the deputy transported

Delzer to the sheriff’s department to conduct field sobriety tests, he had custody

of her and she suffered a restraint of liberty within the meaning of Iowa Code

section 804.20 (2013).

       The majority accepts the State’s assertion that Delzer nodded her assent

when the deputy told her: “We’re going to secure your truck here, we’ll go up to

the sheriff’s department and do fields up there, without the snow and

everything—is that fair enough? We’ll do everything up there?” It is far from

clear by viewing the in-car video footage1 that Delzer consented to be

transported to the sheriff’s department.         She was nodding slightly throughout

many of the deputy’s statements, more in general recognition she was listening

than indicating unambiguous consent to be transported.

       The issue of her assent is critical because to legally transport Delzer, the

deputy needed probable cause or her consent.                See State v. Lathum, 380

N.W.2d 743, 745-46 (Iowa Ct. App. 1985) (recognizing cooperation with officers

“cannot be equated with voluntary consent”). An officer may ask a motorist to

engage in field sobriety tests based on the reasonable suspicion standard from

Terry v. Ohio, 392 U.S. 1, 30 (1968). See State v. Stevens, 394 N.W.2d 388,

391 (Iowa 1986). But the removal of a suspect from the scene of the stop—even


1
  The suppression exhibit contains audio of the deputy’s conversation with Delzer only
while showing the outside view from the dash camera. The footage showing the inside
of the car does not include audio, so it is difficult to assess exactly how Delzer reacted to
the deputy’s statements.
                                          10


for valid investigatory purposes as the deputy had here—marks the point where

reliance on Terry is no longer enough. See State v. Bradford, 620 N.W.2d 503,

507 (Iowa 2000) (citing Centanni v. Eight Unknown Officers, 15 F.3d 587, 591

(6th Cir. 1994), for the notion “there is no such thing as a ‘Terry transportation’”).

       I recognize that asking a motorist to perform field sobriety tests normally

does not rise to the level of a formal arrest. See Berkemer v. McCarty, 468 U.S.

420, 442 (1984) (“[A] single police officer asked respondent a modest number of

questions and requested him to perform a simple balancing test at a location

visible to passing motorists. Treatment of this sort cannot fairly be characterized

as the functional equivalent of formal arrest.”); State v. Krebs, 562 N.W.2d 423,

426 (Iowa 1997) (during field sobriety tests on the scene a defendant is “not

restrained of his liberty”); State v. Marks, 644 N.W.2d 35, 37 (Iowa Ct. App.

2002) (same). But the transportation of the motorist to the sheriff’s department

adds a different dimension to the analysis.

       I also recognize that our supreme court concluded in State v. Dennison

that transporting the motorist to the law enforcement center to conduct tests to

determine if he was under the influence of drugs was “incidental to the

investigation, and did not constitute an arrest.”      571 N.W.2d 492, 497 (Iowa

1997). But that case was a speedy indictment challenge where the question was

whether Dennison was arrested. A person’s right to contact an attorney under

section 804.20 “maybe implicated in a situation short of a formal arrest” so long
                                            11

as the person was restrained of her liberty.2 State v. Moorehead, 699 N.W.2d

667, 671 (Iowa 2005); Krebs, 562 N.W.2d at 426.

       Delzer’s situation bears similarities to Moorehead, where the court held

the motorist was “‘restrained of [his] liberty’ as he sat in the back of the patrol

car.” 699 N.W.2d at 671 (citation omitted). Delzer’s driving led the deputy to

initiate the traffic stop. The deputy placed her in the squad car, albeit in the front

seat rather than the backseat. The deputy questioned Delzer about how much

alcohol she had consumed that evening, prompting her to tell him she had “about

four or five” drinks and “probably” felt the effects of intoxication. The deputy

testified he noticed her eyes were bloodshot and watery and she slurred her

speech. He also found several open beer cans in the truck, which Delzer said

belonged to her husband.          Objectively, the deputy had gathered sufficient

evidence to invoke implied consent to test. See Dennison, 571 N.W.2d at 495-96

(discussing reasonable grounds under Iowa Code section 321J.6).

       When they arrived at the place of detention, the deputy asked Delzer if

she would consent to performing field sobriety tests. She asked: “Legally, do I

have to?” The deputy’s response was imprecise: “Well, you have a right, and

that is going to determine whether or not we go further on.” Delzer asked: “Is

there a lawyer that I can call?” The deputy responded that they were “just in the


2
    In the suppression ruling, the district court erroneously found the deputy advised
Delzer that she was not under arrest when he was taking her to the sheriff’s department.
On direct examination, the deputy testified: “I explained to her she wasn’t under arrest.
That she was just being detained.” The deputy’s recollection is not borne out by the
recording of his exchange with Delzer in the squad car. And on cross-examination, the
officer testified he did not tell Delzer she was under arrest, but he also did not tell her
she was not under arrest. Delzer testified she believed she was under arrest when the
deputy said she would be transported to the county jail (which is located at the sheriff’s
department).
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preliminary stages” and were “not even coming close to doing the legal stuff.

This is for me testing to see where you are at. Do you consent to that or no?”

She responded: “I guess so.”

      I would find Delzer was restrained of her liberty when she invoked her

right to contact an attorney, and the deputy—who had taken custody of her by

transporting her to the sheriff’s department—had an obligation to permit her to

call or consult with an attorney under section 804.20.       His failure to do so

requires suppression of the results of the field sobriety testing, as well as the

results of her breath test. See State v. Hellstern, 856 N.W.2d 355, 365 (Iowa

2014) (discussing remedy for violation of section 804.20).
