                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0081
                              Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAIME ENRIQUE LOPEZ GONZALEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Kevin A. Parker,

District Associate Judge.



      Defendant appeals his conviction for operating while intoxicated, first

offense. REVERSED AND REMANDED FOR A NEW TRIAL.



      Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,

P.C., West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Richard Bennett, Assistant

Attorney General, for appellee.



      Heard by Vaitheswaran, P.J., Schumacher, J., and Potterfield, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                         2


SCHUMACHER, Judge.

       Jaime Lopez Gonzalez appeals his conviction for operating while

intoxicated (OWI), first offense. Lopez Gonzalez argues a brief colloquy with the

arresting state trooper was sufficient to trigger the requirement that the trooper

advise him of his right to contact an attorney or family member pursuant to Iowa

Code section 804.20 (2017), and he contends the district court erred by denying

his motion to suppress.     We concur with the argument advanced by Lopez

Gonzalez, and as such, we reverse and remand for a new trial.

       I.     Background Facts & Proceedings

       On July 30, 2017, Lopez-Gonzales was driving a pickup pulling a livestock

trailer, accompanied by his wife. Iowa State Trooper Wade Major stopped Lopez

Gonzalez because the trailer lights were not operational and the trailer registration

sticker was expired. Trooper Major noted Lopez Gonzalez had watery eyes and

the odor of an alcoholic beverage. Lopez Gonzalez admitted he had consumed

three or four beers. Lopez Gonzalez failed field sobriety tests. Trooper Major told

Lopez Gonzalez’s wife that he was taking Lopez Gonzalez for further testing, and

she drove away in the pickup.

       Trooper Major transported Lopez Gonzalez to the Warren County jail, which

is located inside the Warren County Courthouse. En route, Lopez Gonzalez was

seated in the front passenger seat of the cruiser and was not handcuffed at any

time, but he was not free to leave. Both men exited the cruiser and proceeded into

the courthouse. Before the men entered the elevator leading to the floor housing

the jail, both Lopez Gonzalez and Trooper Major encountered a group of

individuals that indicated they were there to see an inmate. Lopez Gonzalez and
                                           3


some members of the group spoke briefly in Spanish. Trooper Major provided this

group additional instruction in English.       Following this encounter, both Lopez

Gonzalez and the trooper proceeded toward the elevator, and Lopez Gonzalez

asked Trooper Major, “My wife, she gonna come?” Trooper Major replied, “You

might wanna, like, call her later, maybe.” Lopez Gonzalez replied “okay.” The

men then entered the elevator and proceeded to the jail. This exchange was

recorded on Trooper Major’s body microphone.           At oral argument, the State

conceded that Lopez Gonzalez was detained when he posed the question to the

trooper.

         Lopez Gonzalez did not make any additional requests to contact an attorney

or family member after his entry into the jail. Likewise, at no time after entry into

the jail did Trooper Major advise him of his rights arising under section 804.20.

Lopez Gonzalez was provided Spanish and English-language copies of the

implied-consent form. The record does not reflect the presence of an interpreter

at the jail, and Lopez Gonzalez previously indicated to Trooper Major that he could

not read Spanish. A review of the DVD offered by the State reflects that Lopez

Gonzalez’s English skills are limited.1 After executing the form, Lopez Gonzalez

complied with administration of the breath test. The test results were .122, which

is above the legal limit. Lopez Gonzalez was ultimately arrested and charged with

OWI, first offense, in violation of section 321J.2.

         Lopez Gonzalez moved to suppress the results of the breath test on the

ground his rights under section 804.20 had been violated. He claimed he asked



1   An interpreter was utilized at both the motion to suppress and subsequent trial.
                                          4


for his wife to come to the police station and this triggered his rights under section

804.20 to consult with an attorney or family member, via telephone or in person,

after arriving at the jail. Lopez Gonzalez argued Trooper Major had a duty to notify

him of the consultation right arising under 804.20.

       At the hearing on the suppression motion, Trooper Major testified Lopez

Gonzalez did not ask to make any telephone calls or to speak to anyone. He did

not believe Lopez Gonzalez’s question was a request to speak to his wife, and as

such, he did not inform Lopez Gonzalez of his rights under section 804.20. The

district court denied the motion to suppress, finding:

       Trooper Major allowed defendant to make phone calls at any time,
       and Defendant Lopez Gonzalez appeared to understand the
       conversation he had with Trooper Major.
              The only relevant statement defendant made was at the arrest
       scene about his wife coming to the jail. Trooper Major stated the
       defendant could call his wife later. Defendant Lopez Gonzalez did
       not make any calls and did not make a second request to contact his
       wife.
              Trooper Major followed the requirements of Iowa Code
       section 804.20.

       Lopez Gonzalez filed a motion to reconsider. Lopez Gonzalez argued the

statement made before entering the elevator was made at the place of detention

and triggered the right to consult pursuant to section 804.20 and no second request

was required. The district court denied the motion to reconsider and confirmed its

ruling on the motion to suppress without further findings.

       A trial on the minutes took place on July 13. Lopez Gonzalez was found

guilty of OWI. On January 7, 2019, Lopez Gonzalez was sentenced to five days

in jail, with credit for time served and for completion of an OWI program if
                                          5


completed within thirty days. He was also ordered to pay fines, penalties, and

surcharges. Lopez Gonzalez appeals.

        II.    Standard of Review

        “We review a district court’s interpretation of Iowa Code section 804.20 for

errors at law.” State v. Davis, 922 N.W.2d 326, 330 (Iowa 2019) (quoting State v.

Lamoreux, 875 N.W.2d 172, 176 (Iowa 2016)). Rulings on motions to suppress

are affirmed when “the court correctly applied the law and substantial evidence

supports the court’s fact-finding.” Lamoreux, 875 N.W.2d at 176 (quoting State v.

Walker, 804 N.W.2d 284, 289 (Iowa 2011)).

        III.   Discussion

        Lopez Gonzalez argues the brief colloquy with Trooper Major outside the

elevator was sufficient to invoke his right to consult with a family member or

attorney pursuant to Iowa Code section 804.20. Section 804.20 states in relevant

part,

        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.

        Section 804.20 applies when a defendant has been arrested or otherwise

restrained of liberty and is at a place of detention. State v. Hellstrom, 856 N.W.2d

355, 361 (Iowa 2014). If a defendant makes a valid invocation of the statutory right

under section 804.20 prior to reaching a place of detention, officers must honor the

request “without unnecessary delay after arrival at the place of detention.” State

v. Moorehead, 699 N.W.2d 667, 672 (Iowa 2005) (quoting Iowa Code § 804.20).
                                           6


       In determining whether a defendant’s rights under section 804.20 have

been adequately invoked, the supreme court has “examined the clarity of the

suspect’s request to determine if the suspect invoked his statutory right.” State v.

Hicks, 791 N.W.2d 89, 94 (Iowa 2010). “[W]hen a suspect ‘restrained of [his]

liberty’ makes a statement that can reasonably be construed as a request to

communicate with family members or an attorney, the suspect has invoked his

section 804.20 right to communicate with family or counsel.” Id. at 95 (second

alteration in original).   We liberally construe a defendant’s statements, and

grammatical clarity is not required. Id.

       The State concedes Lopez Gonzalez was “restrained of his liberty” at the

time he posed the question. See Moorehead, 699 N.W.2d at 672. There is no

dispute that Trooper Major responded to his question by indicating that Lopez

Gonzalez may want to call his wife later. As testified to by Trooper Major, he

believed the words from Lopez Gonzalez to be a question rather than a statement.

The district court denied the motion to suppress by saying Lopez Gonzalez “did

not make a second request to contact his wife.” This suggests that in the district

court’s view, when Lopez Gonzalez spoke the words, “My wife, she gonna come?”

such was a request by Lopez Gonzalez to contact his wife.

       To determine whether Lopez Gonzalez was denied his right to contact a

family member under section 804.20, two distinct inquiries are required. First, we

must determine whether he invoked his rights under section 804.20. Hicks, 791

N.W.2d at 94. Second, we examine whether he was afforded the rights section

804.20 guarantees. Id. We consider these inquiries in turn.
                                          7


         As set forth by the Iowa Supreme Court, the legislative purpose of section

804.20 is to afford detained suspects the opportunity to communicate with a family

member and attorney. See State v. Vietor, 261 N.W.2d 828, 831. We think the

best way to further this statutory purpose is to liberally construe a suspect’s

invocation of this right. See State v. Effler, 769 N.W.2d 880, 896–98 (Iowa 2009)

(Appel, J., specially concurring); State v. Chew, 695 A.2d 1301, 1317–18 (N.J.

1997).     “A detainee’s invocation of section 804.20 should not turn on the

grammatical clarity of the detainee’s request.” Hicks, 791 N.W.2d at 95. Nor do

we believe the statute authorizes law enforcement to make discretionary decisions

as to whether a detainee invoked this statutory right. See State v. Garrity, 765

N.W.2d 592, 596–97 (Iowa 2009).

         In order to further the purpose of the statute and ensure suspects are

afforded their statutory right, we hold that when a suspect “restrained of [his]

liberty” makes a statement that can reasonably be construed as a request to

communicate with family members or an attorney, the suspect has invoked his

section 804.20 right to communicate with family or counsel.           By providing

detainees this statutory right, the legislature has deemed a detainee’s right to

communicate with family or counsel to be a tolerable burden upon law enforcement

and has found that the creation of this right suitably balances the State’s law

enforcement needs with the rights of the accused. Our construction concerning

the invocation of section 804.20 upholds this balance. See Hicks, 791 N.W.2d at

95.

         Once section 804.20 is invoked, the peace officer must provide the detainee

“with a reasonable opportunity” to contact a family member or attorney. Bromeland
                                          8

v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997). The district court

concluded in its ruling on April 10, 2018, that Trooper Major allowed defendant to

make phone calls at any time. We disagree with this finding based on our review

of the record. Trooper Major did not direct Lopez Gonzalez to the phone, he did

not ask Lopez Gonzalez for the name and number of his wife, nor did he attempt

to place the phone call for Lopez Gonzalez. No reasonable opportunity to make a

phone call to a family member or meet with a family member was provided as

guaranteed by section 804.20.

       By its language, section 804.20 only applies when a suspect is “restrained

of [his] liberty.” As set forth in Hicks, section 804.20 requires law enforcement to

take affirmative action to ensure the request for a phone call is honored. 791

N.W.2d at 96–97. Because of the disparity in power between detaining officers

and detained suspects during the detention process, no lesser standard is

adequate. Requiring a suspect with restrained liberty to affirmatively pick up a

police department’s telephone and contact family or counsel without invitation from

the detaining officer transforms section 804.20 into an illusory statutory right.

       Moreover, requiring affirmative action by law enforcement personnel is

consistent with our supreme court precedent. See Bromeland, 562 N.W.2d at 626

(holding the police officer provided the detainee a reasonable opportunity after

looking up the phone number of the detainee’s requested attorney and dialing the

attorney’s phone number); Didonato v. Iowa Dep’t of Transp., 456 N.W.2d 367,

371 (Iowa 1990) (“But when a request to make a phone call is made we do not

believe the statutory purpose is met if the officer stands mute and refuses the

request.”).   The legislature mandates that law enforcement “shall permit [the
                                         9


detainee] . . . to call” a family member or attorney.    As set forth in case law

precedent, once section 804.20 is invoked, the detaining officer must direct the

detainee to the phone and invite the detainee to place a call or obtain the phone

number from the detainee and place the phone call. Hicks, 791 N.W.2d at 96–97.

        After reviewing the record, including the recording from Trooper Major’s

body microphone, we conclude under the specific facts and circumstances of this

case that Lopez Gonzalez’s question, “My wife, she gonna come?” should have

been reasonably construed as a request to communicate with his wife or see his

wife.

        Because Lopez Gonzalez invoked his statutory rights under section 804.20,

he was required to be advised of his right “to call, consult and see” a member of

his family. See Moorehead, 699 N.W.2d at 672. This advisory was not given. The

district court erred in denying Lopez Gonzalez’s motion to suppress. The remedy

for a violation of section 804.20 is exclusion of any evidence gathered after

invocation of the right. Id. at 98. We reverse and remand for a new trial consistent

with this opinion.

        REVERSED AND REMANDED FOR A NEW TRIAL.
