                       IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0831
                               Filed April 22, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RANDALL LEE LAMOREUX,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Hancock County, DeDra L.

Schroeder (suppression ruling) and Gregg R. Rosenbladt (trial), Judges.



       A criminal defendant appeals from his conviction for operating while

intoxicated arguing a violation of his right to consult confidentially with an

attorney. REVERSED AND REMANDED.



       David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

City, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik and Katie Fiala,

Assistant Attorneys General, and David C. Solheim, County Attorney, for

appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.

       Randall Lee Lamoreux appeals from his conviction for operating while

intoxicated, third offense, after the district court denied his motion to suppress the

chemical test. He alleges law enforcement officers violated his right to consult

confidentially with his attorney contrary to Iowa Code section 804.20 (2013). We

reverse and remand for retrial.

       Lamoreux was arrested and charged with OWI, third offense, in violation

of Iowa Code section 321J.2. From the jail, Lamoreux made numerous phone

calls, including one to his attorney, Ted Hovda.        Hovda and Lamoreux were

permitted to meet in a booking room.          The room was both video and audio

recorded. Neither Lamoreux nor Hovda made a specific request for a room that

was not recorded.      Lamoreux consented to a chemical test.          Prior to trial,

Lamoreux filed a motion to suppress the results, arguing the law enforcement

officers violated his right to consult confidentially with his attorney in a room free

of surveillance, contrary to Iowa Code section 804.20. The district court denied

the motion to suppress and found Lamoreux guilty. Lamoreux appeals the denial

of the motion to suppress.

       We review the district court’s interpretation of Iowa Code section 804.20

for errors at law. State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011). We affirm

the suppression ruling “when the court correctly applied the law and substantial

evidence supports the court’s fact-finding.”      Id.   Iowa Code section 804.20

provides:
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      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.) The State contends there was no violation of section 804.20

when neither Lamoreux nor Hovda made any affirmative request to meet in a

room without video surveillance. In other words, the State argues the defendant

must make a specific request for a private room or there is no violation of the

statute. The State cites a line of cases wherein the custodial defendant was

required to make a specific request to obtain a right set out in section 804.20.

See State v. Hellstern, 856 N.W.2d 355, 364-65 (Iowa 2014) (recognizing a

request by defendant to make a private phone call to attorney triggered law

enforcement officer’s duty to inform him that the attorney must come to the jail for

a confidential conference); State v. Lukins, 846 N.W.2d 902, 909 (Iowa 2014)

(stating “if an imprecise statement, reasonably construed, implicates the statute,

then the officer should inform the detainee of his or her right to an independent

chemical test under Iowa Code section 321J.11”); State v. Garrity, 765 N.W.2d

592, 596-97 (Iowa 2009) (holding when a defendant requests a phone call to a
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person outside the scope of section 804.20, the officer must inform the defendant

that the statutory right entitles the defendant to call an attorney or a family

member only).

       Our supreme court recently clarified the statutory language and addressed

videotaped surveillance of client-attorney consultations in the jailhouse in State v.

Walker, 804 N.W.2d at 287. The court found the law enforcement officer violated

Walker’s rights under section 804.20 when Walker was only permitted to consult

with his attorney through a glass partition in a booth that was under video

surveillance. Walker, 804 N.W.2d at 287. In construing the statute, the court

determined people under police video surveillance would not believe they are

meeting “alone and in private” as the statute requires. Id. at 294. The State

argued that the partition and surveillance were necessary to prevent passing of

contraband or weapons to detainees and because “the attorney might pose a

safety issue.” Id. at 287-88. The State could point to no specific safety issue

under the circumstances. The court rejected the argument and held, “[I]n the

absence of any individualized showing of a safety or security risk[,] video

surveillance violates an arrestee’s right to ‘see and consult confidentially’ with his

attorney ‘alone and in private.’” Id. at 295 (quoting Iowa Code § 804.20).

       In State v Hellstern, a case decided after Walker, the court considered law

enforcement obligations for confidentiality during a phone call between an

arrestee and counsel. 856 N.W.2d at 360-61. The court noted the “telephone

calls which section 804.20 assures to persons in custody are not intended to be

confidential as is shown by the provision that they are to be made in the
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presence of a custodian.” Id. at 361 (internal quotation omitted).           The court

further explained, “By contrast, the statute expressly provides a right to a

confidential consultation between an attorney and client at the jail to be

conducted alone and in private. The right of privacy between attorney and client

is well recognized and jealously guarded during jailhouse consultations.”            Id.

(emphasis added) (citations omitted) (internal quotation marks omitted).

       Lamoreux argues it is not a specific request for a private meeting that

triggers the requirement that the meeting be confidential, but the defendant’s

request to meet with an attorney that triggers the statutory obligation to provide a

confidential and private meeting. The holding in Walker persuades us that in the

absence of any individualized showing of a safety or security risk, once

Lamoreux invoked his right to consult with an attorney, and his attorney was

there in person, the State was required to provide Lamoreux the opportunity to

“see and consult confidentially,” “alone and in private.” Iowa Code § 804.20. He

was not required to make a specific request not to be subject to audio or video

recording.

       At the suppression hearing, Lamoreux asked the law enforcement officer

what safety or security risk existed to justify the surveillance. The officer testified,

“I mean there is always somewhat of a concern.”             This evidence does not

demonstrate an individualized safety or security risk that weighs against

Lamoreux’s statutory right to consult with his attorney confidentially, alone, and in

private.   The defendant who is denied this right need not show that he was

prejudiced as a result. Walker, 804 N.W.2d at 296. The remedy, where the
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charge is OWI, is suppression of the breath-test results.   Id.   We therefore

reverse the conviction and the denial of the motion to suppress and remand for

retrial.

           REVERSED AND REMANDED.
