                   IN THE COURT OF APPEALS OF IOWA

                                 No. 4-042 / 13-0134
                                 Filed April 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GABRIEL AVILA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert

(motion to suppress), Richard G. Blane II (jury trial), and Glenn E. Pille

(sentencing), Judges.



      A defendant appeals from the judgment and sentence following his

convictions for various drug-related offenses. AFFIRMED.



      Thomas J. Berg and Dustin M. Mueller of Berg, Rouse, Spaulding

& Schmidt, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Stephan K. Bayens, Assistant

County Attorney, for appellee.

      Rita Bettis and Randall Wilson of ACLU of Iowa, Des Moines, for amicus

curae American Civil Liberties Union of Iowa.



      Heard by Vogel, P.J., and Doyle and Mullins, JJ.
                                         2


DOYLE, J.

       Gabriel Avila appeals from the judgment and sentence following his

convictions for delivery of a controlled substance (methamphetamine), failure to

possess a tax stamp, possession of a controlled substance (cocaine salt

hydrochloride), and possession of a controlled substance (marijuana).      Avila

contends the district court erred in (1) finding he voluntarily consented to the

entry and search of his hotel room; (2) refusing to grant use immunity to compel

the testimony of a proffered defense witness; (3) overruling his motion to

suppress incriminating statements he made during a custodial interrogation; and

(4) denying his requested jury instruction addressing the officers’ failure to

electronically record his custodial interrogation. We affirm.

I.     Background Facts and Proceedings

       On or about April 27, 2012, law enforcement officers learned Alfonso

Hinojoza-Duran would be traveling from Waterloo to Des Moines to purchase

methamphetamine.       Officers identified Hinojoza-Duran’s vehicle, obtained a

warrant, and attached a GPS unit to the vehicle.          They conducted mobile

surveillance on the vehicle as Hinojoza-Duran drove from Waterloo to Des

Moines, made a brief stop at Econo Lodge, and then drove back to Waterloo.

Once Hinojoza-Duran reentered Black Hawk County, officers initiated a

preplanned traffic stop. A search of his vehicle revealed more than ten grams of

methamphetamine.

       Meanwhile, officers conducted surveillance on room 252 at Econo Lodge,

the hotel room Hinojoza-Duran had been seen exiting. They observed a woman

later identified as Sarah Smith and her young child enter the room. A short time
                                           3


later, a man later identified as defendant Gabriel Avila left the room while

speaking on his phone. Avila walked toward the officers conducting surveillance,

looked at them, and immediately turned around and went back into his room.

          By this point, approximately an hour and a half had passed since

Hinojoza-Duran left room 252 and his vehicle had not yet been stopped in

Waterloo.      Des Moines officers had originally planned to obtain a warrant to

search Avila’s room once drugs were discovered in Hinojoza-Duran’s vehicle in

Waterloo.      However, when it became apparent to the Des Moines officers

“someone knew something was up,” they felt they needed to take some sort of

action.

          To avoid compromising other aspects of the investigation, officers decided

the best course of action was to perform a “knock and talk”1 encounter with Avila.

Special Agent Austin knocked on Avila’s door and asked him to open it. After

some “back and forth” conversation with Avila, Agent Austin identified himself as

a police officer and told Avila the officers wanted to speak with him about a drug

investigation. At Avila’s request, Agent Austin held his police badge to the peep

hole of the door to identify himself.      Avila stated he was in the shower and

needed to put on clothes. Around this time, Agent Austin received a phone call

from a Waterloo officer confirming Hinojoza-Duran had been stopped and

methamphetamine had been discovered inside the vehicle.



1
  In general, the “knock and talk” procedure involves officers knocking on the door,
identifying themselves, asking to talk to the occupant about a criminal matter, and
eventually requesting permission to search the premises. See State v. Lowe, 812
N.W.2d 554, 573 (Iowa 2012) (describing “knock and talk” investigative procedure). If no
consent was given, the officers walk away; if consent is given, the procedure allows
officers lacking probable cause to gain access and conduct a search. See id.
                                        4


       Avila opened the door, and Agent Austin asked if the officers could enter

the room and speak to him regarding a drug investigation. The four officers were

wearing plain clothes and were armed, but their weapons were concealed. Avila

stepped back from the door and responded, “Yes.        Come in.” Agent Austin

asked Avila if he had any weapons on him; Avila responded he did not. Agent

Austin asked Avila if he could pat down the outer parts of his clothing for

weapons, and Avila held his hands out and allowed the pat down.

       Agent Austin advised Avila that narcotics had been located in a vehicle

that had been seen originating from his hotel room. Agent Austin questioned

Avila whether there were any large amounts of money, weapons, or drugs in the

room. Avila responded there was not. Agent Austin asked if he could search the

room, and Avila responded, “No problem. Go ahead and search.” Around this

time, an officer escorted Sarah Smith and her young child out of the room.

       Several officers searched the room while Special Agent Bassett continued

to speak to Avila. Avila was sitting on the couch, and Agent Bassett sat down

next to him. The officers told Avila several times he could tell them to leave at

any time. Avila was free to move around the room and smoked a cigarette

during the search.

       During the course of the search, officers found $3700 cash, a white

powdery substance (later identified as cocaine) in a cellophane bag in a cabinet,

and suspected drug notes on a notepad.        Officers also requested and were

granted permission to search Avila’s truck. A small amount of marijuana was

found in the truck.
                                          5


      At this point, Avila was arrested and placed in formal custody. Officers

handcuffed him and transported him to the Polk County Jail.

      Over the next few days, Agent Austin learned Avila had been working as

an informant for the Department of Homeland Security out of Kansas City. A

Homeland Security agent contacted Agent Austin and told Agent Austin that Avila

wished to cooperate with Iowa law enforcement and requested Iowa agents

come speak with him at the Polk County Jail.

      On May 1, 2012, Agent Austin and Agent Bassett drove to the Polk

County Jail to meet with Avila. Upon arrival, Agent Austin read Avila his Miranda

rights from a department-issued card. Avila stated he understood his rights and

that he wanted to talk to the officers about possibly cooperating so he could get

out of jail. Avila proceeded to provide the officers with information and names of

his suppliers in Texas and Kansas City.

      The interview was not electronically recorded. Agent Austin explained his

general practice is to record all custodial interrogations but that he does not

record interviews in which he is “gathering narcotics intelligence information.”

Agent Austin explained he does not record those conversations “for safety

reasons,” believing a potential informant would not want to be recorded revealing

names of those above him in the chain of narcotics distribution.

      The State subsequently filed a four-count trial information charging Avila

with delivery of a controlled substance (methamphetamine), failure to possess a

tax stamp, possession of a controlled substance (cocaine salt hydrochloride),

and possession of a controlled substance (marijuana). Avila filed a motion to

suppress the evidence, claiming he did not consent to the officers’ entry or
                                          6


search of the hotel room and vehicle. Avila also requested suppression of the

incriminating statements he made on April 27 in the hotel room and May 1 at the

Polk County Jail, claiming the statements were made in violation of Miranda

requirements.

       At the hearing on Avila’s motion to suppress, the court received testimony

from three officers and Avila, and was presented with two different versions of

the facts. The court determined Avila’s testimony was not credible.

       The court denied the motion in part, concluding the officers’ testimony

established by a preponderance of the evidence Avila “voluntarily consented to

both the officers’ entry into his hotel room and the search of that room and his

vehicle.” The court granted the motion in part, concluding any statements made

by Avila after he was confronted with the evidence found during the search were

received in violation of Avila’s Miranda rights and were inadmissible. The court

determined, however, Avila’s statements to officers on May 1 at the Polk County

Jail after Avila waived his Miranda rights were admissible.2 The court denied

Avila’s requests to compel the testimony of Sarah Smith, who invoked her right

against self-incrimination.

       The case proceeded to trial, and the jury found Avila guilty as charged.

Avila appeals.

II.    Standards of Review

       To the extent Avila raises claims that are constitutional in nature, we

review those claims de novo. See State v. Reinier, 628 N.W.2d 460, 464 (Iowa


2
 Avila later filed another motion to suppress his statements made to officers on May 1,
which the court denied.
                                          7


2001). Though our review is de novo, we give deference to the trial court due to

its opportunity to evaluate the credibility of the witnesses. Id.

       In general, we review challenges to jury instructions for correction of errors

at law. See State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); see also Iowa R. App.

P. 6.907. We review the related claim that the trial court should have given

Avila’s requested instruction for an abuse of discretion. See id.

III.   Entry and Search of the Hotel Room

       Avila contends the district court erred in finding he consented to the

officers’ entry and search of his hotel room. Avila’s consent was obtained after a

“knock and talk” encounter with the officers.

       In Reinier, 628 N.W.2d at 466, the Iowa Supreme Court discussed a

“knock and talk” encounter at the defendant’s residence:

       In this case, we begin our analysis of the surrounding
       circumstances by considering the general investigative procedure
       utilized by the police which culminated in the consent given by
       Reinier to search her house. This procedure was characterized by
       police as a “knock and talk” investigation, which involves officers
       knocking on the door of a house, identifying themselves as officers,
       asking to talk to the occupant about a criminal complaint, and
       eventually requesting permission to search the house.               If
       successful, it allows police officers who lack probable cause to gain
       access to a house and conduct a search.

(Internal citation omitted.) The Fourth Amendment and article I, section 8 of the

Iowa Constitution are implicated when police intrude upon a person’s legitimate

expectation of privacy. Reiner, 628 N.W.2d at 466. Neither party asserts Avila

lacked an expectation of privacy in his hotel room. “Thus, entry into the area by

police constituted a search under the Fourth Amendment, and we must
                                         8


determine if consent was given to enter the [hotel room] based on the manner

[Avila] opened the door after the officers knocked on it.” See id. at 467.

       Consent may be given by non-verbal conduct, which can include opening

a door under certain circumstances.          See id.    We look to the specific

circumstances surrounding the “knock and talk” procedure in evaluating the

totality of the circumstances surrounding the consent. See id.

       At the hearing on Avila’s motion to suppress, the court was presented with

two different versions of the facts. The first, presented by the State’s witnesses,

was that the officers knocked on the hotel room door, announced who they were,

and requested Avila’s permission to enter so they could talk about an ongoing

drug investigation; after a short time Avila opened the door, stepped back from

the doorway, and allowed them to enter. The second version, presented by

Avila, was that the officers ordered him to open the door so they could check on

the safety of the child in the hotel room; when he opened the door, all the officers

came in, started searching the room, pushed Avila to the bed, showed their guns,

and told Avila not to “be stupid” because they had guns. Both versions had

points of weakness, which were explored during the cross-examination of the

witnesses. In ruling on the motion, the court stated:

       The two versions of events established by these competing
       testimonies could not be more diametrically opposed. This requires
       the court to resolve the credibility issues raised by these versions.
       In arguing that his version should prevail, the defendant focuses
       primarily on the internal inconsistencies among the officers’
       testimony. On the other hand, the State focuses on the defendant’s
       interest in presenting a version that will result in his motion being
       granted (and perhaps the dismissal of charges against him).
       Having heard the testimony of the witnesses and observed their
       demeanor during the hearing, the court concludes that the
       testimony of the defendant is wholly without credibility. For the
                                          9


       court to accept the defendant’s version of events, it would have to
       conclude that law enforcement not only acted in a completely
       unprofessional fashion, but also entirely fabricated the very
       statement attributed to the defendant that he now seeks to
       suppress. This is more telling to the court than merely the
       defendant’s self-interest, which would always be present when a
       defendant seeks the suppression of the State’s evidence. While
       the court acknowledges some minor inconsistencies in the officers’
       testimonies, these variations can be explained by the quickness
       with which events unfolded on the dates in question and the
       passage of time since.

       Ultimately, the court deemed the three officers’ testimony more credible

than Avila’s. We give deference to this determination, based on the trial court’s

opportunity to observe the witnesses as they testified. See id. at 464; see also

State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983) (“In recognition of the trial

court’s ability to observe the witnesses while they were testifying and thus better

judge their credibility, we will in this case grant the trial courts’ findings of fact

considerable deference.”).

       The officers testified they knocked and announced both who they were

and their purpose, and in response Avila opened the door, stepped to the side,

and allowed the officers to enter. This can be contrasted with Reinier, in which

the court found there was no consent for entry into a suspect’s porch where

police were unable to recall whether they identified themselves or announced

their purpose before stepping into the porch area. 628 N.W.2d at 467. As the

Reinier court noted:

       The officers in this case could not recall if they actually engaged in
       any conversation with Reinier before they stepped onto the porch,
       but felt she invited them into the porch because it was cold outside
       and she opened the door wide in response to their knock. The
       officers acknowledged they did not identify themselves as police
       officers or announce their business before stepping onto the porch.
                                         10


               The act of opening a door in response to a knock could
       under certain circumstances constitute consent. However, the
       officers in this case were unable to recall the specific details of the
       event that would support a finding of consent. The State carried
       the burden of proof on this issue, and the evidence was insufficient
       to objectively show Reinier consented by opening the door. In fact,
       the officers acknowledged Reinier appeared surprised when they
       entered the porch without an oral request. This reaction was
       understandable and does not support consent.

Id. (internal citations omitted).

       Here, the more credible evidence was that the officers identified

themselves and their purpose before Avila stepped to the side and allowed them

in the room.     Cf. id.   The State carried its burden to prove the officers had

consent to enter the hotel room. See Lowe, 812 N.W.2d at 573 (“The State

carries the burden of proving there was valid consent both to enter the home and

to conduct the search.”).

       Avila claims even if we conclude he consented to the officers’ entry and

search the hotel room, “the consent was not voluntary.” Whether consent is

voluntary is a question of fact determined from the totality of the circumstances.

State v. Lane, 726 N.W.2d 371, 378 (Iowa 2007). In determining the validity of

the consent given we look to the personal characteristics of the defendant and

the context of the consent.3 See id.; Reinier, 628 N.W.2d at 465-66.


3
   In determining whether consent is voluntary, courts examine the totality of the
circumstances, including relevant factors such as:
       (1) the individual’s age and mental ability; (2) whether the individual was
       intoxicated or under the influence of drugs; (3) whether the individual was
       informed of [his] Miranda rights; and (4) whether the individual was
       aware, through prior experience, of the protections that the legal system
       provides for suspected criminals. It is also important to consider the
       environment in which an individual’s consent is obtained, including (1) the
       length of the detention; (2) whether the police used threats, physical
       intimidation, or punishment to extract consent; (3) whether police made
       promises or misrepresentations; (4) whether the individual was in custody
                                           11


       Considering the totality of the circumstances, we conclude Avila’s consent

to enter and search was voluntary. After initially being asked to consent to the

officers’ entry to speak with him about a drug investigation, the officers

repeatedly told Avila he was free to leave and free to request that the officers

leave. Avila consented to the search, telling the officers, “No problem. Go ahead

and search.” Avila also consented to a pat down search, which was limited to the

outside of his clothing. The encounter took place in the familiar surroundings of

his hotel room. Cf. State v. Pals, 805 N.W.2d 767, 782 (Iowa 2011) (observing

the defendant was never told he was free to leave, the officer subjected the

defendant to a pat-down search, and the defendant was detained in the police

vehicle at the time of the consent to search). Avila was an employed adult, who

had been living in the United States for twenty years, and stated he was not

under the influence of drugs or alcohol.          Avila’s prior experience with law

enforcement indicates he had some understanding he could refuse the officers’

requests. We affirm on this issue.

IV.    Use Immunity

       Avila contends the district court violated his constitutional rights when it

refused to grant use immunity to his proffered witness, Sarah Smith.                 Smith

exercised her right against self-incrimination and refused to testify.

       Prior to trial, Avila filed several motions to compel the testimony of Smith,

claiming her testimony was pertinent to the issue of whether consent was given



       or under arrest when consent was given; (5) whether consent was given
       in a public or in a secluded location; and (6) whether the individual stood
       by silently or objected to the search.
Lowe, 812 N.W.2d at 572-73; see also Reinier, 628 N.W.2d at 465-66.
                                          12


to officers to enter and search his hotel room. Several hearings were held on the

matter. The district court initially ruled to allow Smith “to answer a strictly-defined

line of questions regarding her observations at the hotel room on April 27 relative

to the issue of consent.” The court later reconsidered its ruling, allowed Smith to

invoke her Fifth Amendment right against self-incrimination, and denied Avila’s

request to compel her testimony, concluding “even this limited line of inquiry

could place Ms. Smith at risk of prosecution based on her responses.”

       Use immunity is a court order compelling a witness to give self-

incriminating testimony and prohibiting the State from using the testimony in a

subsequent prosecution of the witness. State v. Fox, 491 N.W.2d 527, 533 (Iowa

1992). The Iowa Supreme Court has not yet recognized whether the district

courts in this state have the inherent power to grant use immunity, but it has

found the district courts have no statutory authority to grant immunity on its own

motion. Id.

       Several policy reasons weigh against allowing the court to grant use

immunity including: the risk the judicial branch will encroach on the decisions

traditionally made by the executive branch, the risk of significantly impairing the

State’s ability to prosecute immunized witnesses and increasing the State’s

burden of proof, and the risk of abuse by codefendants by undermining the

administration of justice through cooperative perjury. See id. Although the court

in Fox found it did not need to decide whether the district court had the inherent

power to grant use immunity, it did state “use immunity—if available at all—

should be considered only in circumstances in which the prosecution has
                                         13


improperly prevented a defense witness from giving essential exculpatory

evidence.” Id. at 533-34.

       If Smith was granted immunity, Avila asserts she would testify the officers

did not have consent to enter and search his hotel room. According to Avila,

Smith’s testimony would confirm “his story.” Avila points out that other than

himself, Smith was “the only other non-law enforcement adult who witnessed the

actions” of the officers on April 27, 2012.

       The Iowa Supreme Court has acknowledged “two emerging theories” that

have been recognized by some courts as requiring use immunity.           State v.

Simpson, 587 N.W.2d 770, 772 (Iowa 1998) (citing United States v. Angiulo, 897

F.2d 1169, 1190 (1st Cir. 1990)). Under the “prosecutorial misconduct theory,”

the court may order immunity to a witness if it determines the State is

“intentionally trying to distort the factfinding process.”   See id. at 773.    A

prosecutor can intentionally distort the factfinding process by “intimidat[ing] or

harass[ing] potential defense witnesses to discourage them from testifying” or by

“deliberately withholding use immunity from prospective defense witnesses to

keep exculpatory evidence from the jury.” See id.

       Here, there is no evidence of intimidation or harassment of Smith or that

the State deliberately withheld Smith’s testimony to keep exculpatory evidence

from trial. Smith was informed the State would cross-examine her regarding her

testimony and credibility if she took the stand. Such action, however, does not

constitute prosecutorial misconduct.4 See, e.g., State v. Peterson, 532 N.W.2d


4
  Even assuming, arguendo, Smith was intimidated, Avila has not shown he was
prejudiced by the alleged misconduct. State v. Anderson, 448 N.W.2d 32, 33 (Iowa
                                          14


813, 817 (Iowa Ct. App. 1995) (“[W]hen the prosecutor or the trial judge has told

a prospective defense witness he could face prosecution if he testified, a majority

of courts have found that no misconduct occurred.”).

       Under the “effective defense theory,” the court may order immunity to a

witness “whose testimony is essential to an effective defense.” Simpson, 587

N.W.2d at 772. “[O]nly a small minority of cases” have embraced this theory.

See id. It requires the defendant to make a threshold showing the proffered

testimony was both “essential” and “clearly exculpatory.” Id. at 774. In this vein,

“[i]mmunity will be denied if the proffered testimony is found to be ambiguous, not

clearly exculpatory, cumulative or if it is found to relate only to the credibility of

the government’s witnesses.”       Id. at 772 (quoting Government of the Virgin

Islands v. Smith, 615 F.2d 964, 962 (3rd Cir. 1980)).           If the defendant can

convince the court the testimony is both clearly exculpatory and essential, the

focus then shifts to consideration of the State’s countervailing interests, including

prosecution of the witness the defendant seeks to immunize. See id. at 772-73.

       Here, the evidence Avila sought to offer was neither essential nor clearly

exculpatory. The evidence was available through Avila’s own testimony as well

as through a jail call recording of his conversation with Smith,5 and therefore


1989) (“Trial courts are vested with broad authority to determine whether prejudice
actually results from misconduct.”); Peterson, 532 N.W.2d at 819 (“Even when the
defendant has shown that the prosecutor improperly intimidated a defense witness, our
supreme court has declined to grant relief unless the defendant also establishes that he
suffered prejudice.”).
5
  Smith spoke on the phone to Avila on May 1, 2012, and told him, “They had no right to
search your house. There was no warrant, there was no probable cause, and nobody
consented to a search. It was an illegal search and seizure and I don’t know what the
hell they think they’re doing. They think they can do whatever they want to do, and they
can’t.” Smith also told Avila, “You’re gonna walk on the charges,” “gonna beat these
charges,” “not a question about it.”
                                          15

would have been cumulative of other evidence. See id. at 772. Further, we do

not believe a reasonable person would believe Smith’s proffered testimony where

it borders on “cooperative perjury among law violators,” a policy reason

frequently cited for rejecting the effective defense theory. See id. at 774. Under

these circumstances, we conclude the district court did not violate Avila’s due

process rights when it refused to grant Smith use immunity. We affirm on this

issue.

V.       Admissibility of Statements Made During the Custodial Interrogation

         Avila and amicus curiae contend electronic recording of custodial

interrogations should be required when feasible, and any statements made

where police have failed to record the interrogation should be excluded. 6 In this

case, Agent Austin and Agent Bassett conducted the custodial interrogation of

Avila on May 1 at the Polk County Jail. The interview was not recorded even

though agents acknowledged it was their standard procedure to videotape

custodial interrogations and electronic recording equipment was available at the

jail. Avila made incriminating statements during the interview. Avila and amicus

curiae claim Avila’s statements on May 1 should be excluded.

         According to Avila and amicus curiae, this case presents us with an

opportunity to establish a rule requiring electronic recording of custodial

interrogations. The Iowa Supreme Court has declined to take this step. See


6
  Insofar as Avila contends his statements should be suppressed because they were not
recorded, the State argues Avila failed to preserve error on this claim where it was not
raised and decided by the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002) (observing that an issue is preserved for review if it has been raised and
decided by the district court). We elect to bypass this error preservation concern and
proceed to the merits of this issue. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999)
(bypassing error preservation problem and proceeding to the merits of the appeal).
                                          16

State v. Hajtic, 724 N.W.2d 449, 454-56 (Iowa 2006) (encouraging, but not

requiring, electronic recording of custodial interrogations) see also State v.

Madsen, 813 N.W.2d 714, 721 (Iowa 2012) (“We did not say in [Hajtic] that

unrecorded confessions were inadmissible, and we decline Madsen’s invitation to

take that step now.”); State v. Morgan, 559 N.W.2d 603, 609 (Iowa 1997)

(“Requiring law enforcement personnel to record interrogations or to ask such

clarifying questions are issues that may be argued both pro and con as matters

of public policy. We are confident, however, that such procedures are in no way

mandated by any provision in the Iowa Constitution.”).

       In light of this case law and the absence of an Iowa statute addressing this

issue, we decline Avila’s invitation.7 See, e.g., State v. Hastings, 466 N.W.2d

697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa Supreme

Court precedent.”); State v. Cook, 847 A.2d 530, 546-47 (N.J. 2004) (noting the

considerations regarding electronic recording “are important and nuanced, and

should be addressed in a context broader than that permitted in any one criminal

appeal”); State v. Gorton, 548 A.2d 419, 422 (Vt. 1988) (“In the absence of




7
  In any event, under these circumstances, we do not believe the fact the interview was
not recorded was of an egregious or suspicious nature so as to require suppression of
Avila’s statements. Indeed, Avila’s May 1 interview was prompted by Avila’s own
request to meet with Agent Austin and Agent Bassett at the jail. Agent Austin stated he
read Avila his Miranda rights from a department-issued card when the officers arrived;
Avila stated he understood his rights and that he wanted to talk to the officers about
possibly cooperating so he could get out of jail. Moreover, although Agent Austin stated
his general practice is to record all custodial interrogations, he explained he does not
record interviews in which he is gathering narcotics intelligence information for safety
reasons (i.e., because a potential informant would not want to be recorded revealing
names of those above in the chain of narcotics distribution). We conclude the failure to
electronically record Avila’s May 1 interview does not render his statements
inadmissible.
                                        17


legislation, we do not believe it appropriate to require, by judicial fiat, that all

statements taken of a person in custody be tape-recorded.”).

       Avila also contends his May 1 statements “were tainted by prior illegality.”

Specifically, Avila claims because the officers obtained incriminating statements

from him on April 27 without a Miranda warning, which were suppressed by the

district court, his “nearly identical” statements on May 1—even assuming a

Miranda warning was given—should have also been suppressed. “‘[A] suspect

who has once responded to unwarned yet uncoercive questioning is not thereby

disabled from waiving his rights and confessing after he has been given the

requisite Miranda warnings.’” Irving v. State, 533 N.W.2d 538, 542 (Iowa 1995)

(quoting Oregon v. Elstad, 470 U.S. 298, 318 (1985)). Under the facts of this

case, we conclude Avila’s post-Miranda statements were admissible.

VI.    Cautionary Jury Instruction

       In the alternative, Avila and amicus curiae contend the district court should

have issued a cautionary jury instruction to remedy the noncompliance with

electronic recording.

       At the close of trial, Avila requested a jury instruction stating, “Law

enforcement is encouraged to use electronic recording, particularly videotaping,

of custodial interrogations. That was not done in this case. You’re entitled to

consider law enforcement’s failure to use electronic recording when evaluating

the evidence and credibilities in this case.” The district court declined to include

this instruction. The court noted that jury instruction fifteen, subparagraph five,

embodied the same legal concepts:
                                         18


             In this case, the State has presented evidence that the
       Defendant made admissions that he committed one or more of the
       crimes charged. This is referred to as a confession.
             In determining the weight and believability of the confession,
       you may consider:
             1. Defendant’s mental capacity and intelligence.
             2. Defendant’s mental and emotional state at the time it was
       made.
             3. Whether it was knowingly and intelligently made.
             4. Whether the Defendant understood his statement to be an
       admission.
             5. Whether the Defendant’s statement was recorded.
             6. Any other evidence relating to the confession.

       The district court further noted its concern of the applicability of Hajtic to

Avila’s case in light of the fact that Avila had initiated the conversation with the

officers, and by all accounts, Avila was prepared to offer cooperative information

to the officers. Upon our review, we conclude the court gave instructions that

“fairly state[d] the law as applied to the facts of the case,” see State v. Marin, 788

N.W.2d 833, 838 (Iowa 2010), and no abuse of discretion occurred.

VII.   Conclusion

       Upon our review of the issues raised by Avila, we affirm his judgment and

sentence for delivery of a controlled substance (methamphetamine), failure to

possess a tax stamp, possession of a controlled substance (cocaine salt

hydrochloride), and possession of a controlled substance (marijuana).

       AFFIRMED.
