                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0165
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VICTOR LAWRENCE MARKLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

District Associate Judge.



      Victor Markley appeals from the denial of his motion to suppress and

subsequent judgment and sentence entered upon his conviction for operating

while intoxicated, third offense, as an habitual offender. AFFIRMED.



      Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for

appellant.

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

Attorney General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.

       Victor Markley appeals his conviction for operating while intoxicated

(OWI), third offense, as an habitual offender. We affirm.

       I. Background Facts and Proceedings

       Shortly after 11:00 p.m. on June 6, 2014, Deputy Combs found Markley in

the driver’s seat of a running car parked in the middle of a busy county highway.

The car’s emergency flashers had been activated. When Combs looked in the

car, Markley appeared to be passed out or asleep with a lit cigarette in his mouth

and an open can of beer in his hand. After several unsuccessful efforts, Combs

eventually roused Markley, who drove to the shoulder.

       Combs asked if Markley had been drinking, and Markley admitted to

drinking but claimed he had not consumed “much.” Combs observed Markley’s

eyes were “glassed over” and his speech was slurred.          During field-sobriety

testing, Markley asked for his cell phone, and Combs told him he “would get his

phone in a little bit.” Markley performed poorly on field-sobriety tests, and he

refused to perform a preliminary breath test. Because Combs believed Markley

was intoxicated, he arrested him and drove him to the sheriff’s office.

       At the office, Combs read the implied-consent advisory to Markley.

Combs then gave Markley his cell phone, a landline phone, and a telephone

book. Combs told Markley “you can use your cell phone” and “you can call

anyone you want.” Markley placed one call, and Combs believed Markley “made

contact with the person,” but Combs did not listen to the conversation. Combs

asked Markley who he had called, and Markley replied, “[A] friend.” Combs

asked: “Do you want to call anyone else?” Markley said, “No.” Combs then
                                          3


asked Markley to consent to a breath test, and Markley declined. Thereafter,

Markley made additional phone calls. The record supports the district court’s

finding: “[W]henever Markley wanted to make a call at any time after arriving at

the place of detention, he was allowed to do so without restriction.”

         Markley was charged with OWI, third offense, as an habitual offender, and

he filed a motion to suppress, claiming he had been denied his statutory rights to

make phone calls under Iowa Code section 804.20 (2013). The district court

denied the motion. Markley stipulated to a trial on the minutes of testimony. The

record showed Markley had been convicted of OWI, third, in 2006 and in 2008.

The court found him guilty as charged and imposed sentence.

         Markley appealed and asked the supreme court to retain his case to

specifically require, “once and for all, that the peace officer inform the defendant

of the persons and purposes for which he could call.” Markley also asked the

supreme court to rule an officer’s failure to inform the detainee of “the persons

and purposes for which he may call” is not “cured” by permitting calls outside the

statute. Finally, Markley asked the court to fashion several new rules regarding

the scope of section 804.20. The supreme court transferred the appeal to this

court.

         II. Standard of Review

         Section 804.20 “applies to the period after arrest but prior to the formal

commencement of criminal charges.” State v. Robinson, 859 N.W.2d 464, 487

(Iowa 2015). We review a district court’s interpretation of Iowa Code section

804.20 for errors at law. Id. at 467. We affirm the court’s ruling on a suppression
                                         4


motion if it “correctly applied the law and substantial evidence supports the

court’s fact-finding.” State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011).

       III. Analysis

       On appeal, Markley phrases the issue: “[W]hether this Deputy undertook

to perform his mandatory duty to inform [Markley] of both the persons he could

call under the statute, and the purposes for which he could make calls under the

statute, when he asked to call someone outside the statute.”          Markley also

asserts section 804.20 “requires [officers to] inform the defendant, prior to the

exercise of phone calls, and regardless of the denial of phone calls, of the

arrestee’s right to call a family member or an attorney under the statute.”

       We turn to the case law discussing the scope of an officer’s duty under

section 804.20. In State v. Garrity, the court held: “If, as here, the officer turns

down the arrestee’s phone call request because the request is to call someone

not contemplated by the statute, the officer must explain the scope of the

statutory right.” 765 N.W.2d 592, 597-98 (Iowa 2009) (emphasis added) (stating

violations of section 804.20 result in application of the exclusionary rule). One

year later, the court stated the statute’s “guaranteed right is a limited one” and

ruled: “[Section 840.20] does not require a police officer to affirmatively inform

the detainee of his statutory right; however, the peace officer cannot deny the

right exists.” See State v. Hicks, 791 N.W.2d 89, 94 (Iowa 2010) (emphasis

added); see also State v. Lukins, 846 N.W.2d 902, 908 (Iowa 2014) (stating

“section 804.20 does not require a peace officer to inform the detainee of his or

her right to make a telephone call” but “if the detainee suggests calling someone

outside the scope of individuals authorized by the statute, the peace officer, who
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knows the statutory scope, must clarify to the detainee the scope of individuals to

whom a telephone call may be made.”).1

       Despite this case law generally declining to recognize an affirmative duty

and thereby foreclosing his appellate arguments, Markley cites State v. Hellstern,

where the officer declined a detainee’s request for privacy during a phone call

with his attorney. 856 N.W.2d 355, 364 (Iowa 2014). The court resolved the

issue of whether such request “can be reasonably construed as invoking [the

detainee’s] statutory right to a confidential consultation with his attorney.” The

court held, although the “specific request” was “beyond the scope of the statutory

right,” it could be construed “as invoking” the statutory right, “thereby triggering

the officer’s duty” to inform the detainee “the attorney must come to the jail for a

confidential conference.” Id. However, Hellstern is distinguishable because the

officer refused a detainee’s specific request without providing further explanation.


1
  This court consistently has rejected similar claims of an officer’s “affirmative duty” to tell
a detainee “of the persons and purposes” for calls under section 804.20 in
circumstances similar to Markley’s circumstances. See State v. Stephens, No. 13-1858,
2015 WL 15969, at *1-3 (Iowa Ct. App. Apr. 22, 2015) (declining to suppress evidence
where the detainee was advised he could make telephone calls to “anybody” and made
calls); State v. Nemeth, No. 13-0529, 2014 WL 2884778, at *1-2 (Iowa Ct. App. June 24,
2014) (holding “the officer did not have an affirmative duty to inform a detained person of
the people who may be called or the purposes for which a call may be made” where the
officer allowed the detainee to “make any telephone calls she wanted to, which she did”);
State v. Rieks, No. 10-1703, 2011 WL 5868224, at *4 (Iowa Ct. App. Nov. 23, 2011)
(noting the officer “never restricted who [the detainee] could call but simply said he could
call ‘somebody’” and rejecting claim the failure to advise the OWI detainee “who could
be called and for what purpose” violated the statute: “Only when an officer turns down a
request for a phone call because the request is to call someone outside the scope of
section 804.20 must the officer explain the scope of the right”); State v. Parra, No. 10-
0601, 2011 WL 3480965, at *1 (Iowa Ct. App. Aug. 10, 2011) (holding an OWI detainee
“was not denied her rights under section 804.20” when she “was given the opportunity to
call ‘anyone’”); State v. Fessler, No. 10-0667, 2011 WL 1584886, at *1 (Iowa Ct. App.
Apr. 27, 2011) (stating Garrity held “the officer must explain the scope of the statutory
right” when “the officer turned down the arrestee’s phone call request” and also stating
“neither the statue nor case law support a blanket requirement that an officer advise an
arrestee of all persons that may be called or all purposes for which calls may be made”).
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See also id. at 365 (Cady, C.J., concurring specially) (stating section 804.20 is

not intended to be used as “a trap for the state”). In contrast to the facts in

Hellstern, the district court here aptly explained:

               Markley neither requested a call to a person other than a
       family member or attorney, nor was he denied the opportunity to
       call a friend. The facts are that [the deputy] told him he could call
       anyone without regard to who the person was or the purpose of the
       call. He happened to call a friend and merely informed [the deputy]
       of that fact.
               There is no indication that [the deputy] denied Markley the
       opportunity to call whomever he wanted, or that he impeded
       Markley’s statutory or constitutional rights. [The deputy] did all (and
       likely more than) an officer is required to do in this situation.

       The district court’s ruling also is supported by State v. Lyon, where Lyon

had asked the court “to go well beyond our case law” and “require law

enforcement officers to explain that a purpose of the call is to obtain advice

regarding whether to submit to a chemical test.” 862 N.W.2d 391, 401 (Iowa

2015) (emphasis added). The Lyon court stated the legislature’s “purpose” was

affording “detained suspects the opportunity to communicate with a family

member and attorney.” See id. The court denied relief because the officer had

not misstated the law, nor undermined the defendant’s section 804.20 rights; in

fact, the officer had honored the defendant’s right to make phone calls. See id.

(“We do not believe law enforcement officers must help shape the nature of the

communications with attorneys and family members once they have honored the

accused’s right to communicate with such individuals.”).

       Similarly, the officer here did not misstate the law and did not undermine,

but honored, Markley’s right to make phone calls. See id.      Section 804.20 is to

be applied in a pragmatic manner, balancing the rights of Markley and the goals
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of the chemical-testing statutes. See State v. Lamoreux, 875 N.W.2d 172, 178-

79 (Iowa 2016) (“Generally, we have not viewed [section 804.20] as self-

enforcing: Something does not have to be automatically provided just because

the statute says it must be ‘permitted.’”).

       No violation occurred, and we affirm the district court.

       AFFIRMED.
