                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1643
                            Filed November 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RUDY DANILO DEPAZ COLOCHO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.



      A defendant appeals his conviction for third-offense operating while

intoxicated challenging the suppression ruling. AFFIRMED.



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

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

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
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Tabor, Judge.

       Rudy Colocho appeals his conviction for third-offense operating a vehicle

while intoxicated. During a traffic stop, a police officer accommodated Colocho’s

request to urinate before he performed field sobriety tests.       The officer took

Colocho to the police station, but after he used the restroom he refused sobriety

testing and instead requested an attorney. The officer spurned the request, saying

“you don’t call your lawyer in the middle of a traffic stop.” Colocho moved to

suppress evidence from the stop, and the district court found the officer violated

Iowa Code section 804.20 (2018). But the court also found the officer cured that

violation by later advising Colocho of his rights. The court found Colocho’s refusal

to take the DataMaster test to be admissible. Colocho stipulated to the minutes of

testimony, and the court found him guilty.       He now appeals contesting the

suppression ruling.

       Because the officer’s delayed advisory of Colocho’s rights satisfied the

purpose of section 804.20 and, alternatively, because any violation was harmless

error, we affirm.

  I.   Facts and Prior Proceedings

       Around 2:00 a.m. on a Saturday in April 2018, West Des Moines Police

Officer Blake Mills saw a Hyundai Sonata strike a raised median as the car turned

onto Mills Civic Parkway. As the officer followed the car, he noticed it swerving

within the lane of traffic and even leave the lane a few times. Once the car neared

the interstate, it came to a full stop at a yellow light—half in the turning lane and

half into the curb marked by white lines. The driver—who the officer later identified

as Colocho—then negotiated a U-turn but veered too wide and “both passenger
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tires went up and over the curb and began riding through the grass on the outskirts

of the road.”

       At that point, Officer Mills turned on his blue lights, and Colocho pulled over.

The officer asked Colocho to perform field sobriety tests. But, according to Mills,

Colocho was “very uncooperative and continually stated he had to pee and would

not move beyond that train of thought.” The officer told Colocho he would take him

to the police station so he could use the restroom. Officer Mills testified he did not

want Colocho to urinate on the side of the road in public. The officer patted

Colocho down, handcuffed him, and placed him in back of the patrol car.

       Upon arriving at the police station, the officer’s body camera showed him

usher Colocho through two sets of secured doors. Another officer opened a third

door for them to enter. Once inside the station’s hallway, Mills again patted down

Colocho before removing his handcuffs. Mills then allowed Colocho to use the

restroom under his close supervision.

       After that, the officer moved Colocho further inside the station where he

again asked Colocho to perform field sobriety tests. Colocho first complied by

placing his feet together and arms to his sides. Officer Mills asked Colocho to

maintain that position. In response, Colocho said he did not understand the

directions. Colocho then started speaking Spanish and asked for a lawyer.

       Officer Mills told Colocho he was asking him to perform the same tests he

would have conducted at the roadside and he could not call his lawyer in the middle

of the traffic stop. The officer informed Colocho that once they completed those

tests, he could call his lawyer.
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         Colocho continued to speak in Spanish, and Officer Mills eventually made

calls to find an interpreter. After the interpreter arrived, Colocho still refused to

perform the field sobriety tests. Colocho also refused to take a preliminary breath

test. Officer Mills then placed Colocho in custody and advised him of his rights

under section 804.20. The officer provided Colocho with his cell phone and a

phone book, but Colocho “did not make a single call.” The officer recalled Colocho

was “opening and closing the Facebook app and was zooming in and out of Google

Maps without attempting to make any form of communication.” Colocho eventually

dropped his phone on the floor and “didn’t even try to pick it up.” The officer

estimated Colocho had just a little under an hour to make a phone call before the

officer invoked implied consent. Colocho refused to take the DataMaster test.

 II.     Scope of Review.

         We review the district court’s ruling under section 804.20 for errors at law.

State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997) (citing State v. Frake, 450

N.W.2d 817, 818 (Iowa 1990)). If the district court properly applied the law and

substantial evidence supports its findings of fact, we will uphold its ruling on a

motion to suppress. State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005). We

consider evidence to be substantial when reasonable minds could accept it as

adequate to reach a conclusion. State v. Garrity, 765 N.W.2d 592, 595 (Iowa

2009).

III.     Analysis

         Our legislature provided this statutory protection for arrested persons:

         Any peace officer . . . 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
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       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.

Iowa Code § 804.20.

       A. Violation of Rights Under Section 804.20 and Exclusion of
          Evidence

       In this appeal, Colocho asks us to decide if an initial denial of this right to

communications requires exclusion of all incriminating evidence gained for the

duration of the detention or if a later advisory can cure the violation.

       To set the stage, Colocho contends the district court was partially right—in

finding Officer Mills violated his rights under section 804.20 when he asked for a

lawyer at the police station. The State disagrees. Citing State v. Davis, 922

N.W.2d 326 (Iowa 2019), the State argues Colocho’s request for an attorney did

not trigger section 804.20 because (1) Colocho was not in custody, (2) he was at

the place of detention only to use the restroom, and (3) Officer Mills had not

completed the investigatory portion of his traffic stop.

       In Davis, a deputy transported a suspected drunk driver to the jail’s sally

port to conduct field sobriety tests because of snowy conditions at the roadside.

922 N.W.2d at 328. Our supreme court held the deputy did not violate the driver’s

communication rights by denying his request to call his wife until after field sobriety

testing occurred because the sally port was a location for testing, not a “place of
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detention” within the meaning of section 804.20. Id. at 332. Colocho distinguishes

Davis, contending Davis was not handcuffed or taken inside a secure police station

to conduct the field sobriety tests.

       The district court did not have the benefit of the analysis in Davis when

deciding Colocho’s suppression ruling. And we need not resolve this appeal on

that ground. Assuming without deciding the district court was correct in ruling that

Officer Mills initially violated Colocho’s rights under section 804.20, we agree with

the court’s additional finding that the officer remedied the situation by later advising

Colocho of his rights.

       That remedy does not sit well with Colocho. He lobbies for a more sweeping

exclusionary rule under section 804.20. Colocho contends that because the officer

violated his statutory rights in declining his request to call an attorney, any

evidence collected after that should be suppressed. He believes all later proof is

tainted under the fruit-of-the-poisonous-tree doctrine. See State v. Naujoks, 637

N.W.2d 101, 111 (Iowa 2001) (explaining concept that indirect evidence may be

“tainted” by original illegality).

       In his appellant’s brief, Colocho argues that if the officer had timely afforded

him the opportunity to seek guidance from an attorney, “the entire subsequent

proceedings would have gone more smoothly” and he would not have uttered

incriminating words or engaged in incriminating actions. But at the oral argument,

counsel was unable to provide any examples of incriminating words or actions—
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subject to exclusion under section 804.201—that occurred between the alleged

violation and the officer’s giving of the advisory. Because no excludable evidence

emerged in that window of time, we need not apply a fruits analysis.

       The defendant further argues that when the officer did provide Colocho the

tools to call a lawyer or family member, it was likely Colocho believed “the ship had

sailed.” In other words, a call would have come “too late in the proceedings to

make any difference.” We find this argument unpersuasive. “As a pragmatic

matter, it is unrealistic to expect law enforcement to hand an accused a phone the

minute he or she steps foot into the detention center.” State v. Smith, No. 16-0749,

2017 WL 510957, at *2 (Iowa Ct. App. Feb. 8, 2017). And “the ship could not have

sailed” if Colocho cannot point to any evidence that would have been excluded as

a result of the alleged violation of section 804.20.

       Section 804.20 guarantees detained suspects a reasonable opportunity to

communicate with a lawyer or family member. See State v. Hicks, 791 N.W.2d 89,

95 (Iowa 2010). When that opportunity is denied, evidence that would have been

protected by the guarantee is off limits in the prosecution. Id. at 97. But that does

not include all incriminating conduct at the police station. See Garrity, 765 N.W.2d

at 597 (declining to exclude video of “Garrity’s body motions, judgment, slurred

speech and inability to communicate”). This precedent undermines Colocho’s call

for a broader exclusionary rule.




1
 “The exclusionary rule extends to the exclusion of breath tests, breath test refusals, and
non-spontaneous statements obtained after unnecessary delay in allowing the person the
statutory right to consult with an attorney or family member.” Garrity, 765 N.W.2d at 597.
                                         8


       Under the existing exclusionary rule, the only evidence hanging in the

balance was Colocho’s refusal to submit to chemical testing. In State v. Vietor, the

Iowa Supreme Court discussed the statutory right to counsel in operating-while-

intoxicated investigations. 261 N.W.2d 828, 832 (Iowa 1978). The court decided

an officer must permit an arrested person to call a lawyer “before being required

to elect whether he shall submit to a chemical test.” Id. After advising Colocho of

his rights under section 804.20, Officer Mills afforded Colocho plenty of time to

contact an attorney before asking him to decide whether to provide a breath

sample. Colocho chose not to make any calls though he had access to his cell

phone and a phone book. Colocho refused the DataMaster test nearly an hour

after receiving the advisory. Under these circumstances, the test refusal was

admissible evidence in his stipulated bench trial.

       B. Harmless Error

       Even if the officer’s delayed advisory did not cure the initial violation of

Colocho’s rights under section 804.20, the conviction stands if the error was

harmless. See Garrity, 765 N.W.2d at 597. For nonconstitutional error, like

violations of section 804.20, we ask: “Does it sufficiently appear that the rights of

the complaining party have been injuriously affected by the error or that he has

suffered a miscarriage of justice?” Id. We presume prejudice, but may find

harmless error if the evidence related to the violation was cumulative to other

admissible evidence. Id.

       Here, the record shows Colocho’s chemical-test refusal did not loom large

in the district court’s finding of guilt. The far more compelling evidence came from

the video recordings and the officer’s observations of Colocho’s behavior. Officer
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Mills testified to Colocho’s poor driving. See State v. Truesdell, 679 N.W.2d 611,

616 (Iowa 2004) (finding police reports regarding defendant’s erratic driving

supported a finding he was under the influence of alcohol when he operated his

vehicle). In his report, the officer noted “a strong odor of an alcoholic beverage

coming from [Colocho’s] person” as they interacted during the stop. The officer

also noted Colocho’s impaired balance—“he was leaning and nearly fell towards

me.” And Colocho was uncooperative during the stop, swearing and ignoring the

officer’s directions. Colocho’s slurred speech can be detected on the recordings

in the record. See State v. Morgan, 877 N.W.2d 133, 137 (Iowa Ct. App. 2016)

(discussing common indicia of intoxication).       All told, the stipulated record

contained strong evidence Colocho was operating while under the influence. We

find any violation of Colocho’s rights under section 804.20 was harmless error.

See Garrity, 756 N.W.2d at 598. Colocho is not entitled to new trial.

IV.   Conclusion

      To recap, we assume without deciding the district court properly found an

initial violation of section 804.20. But we conclude the court also was correct in

finding that violation was resolved when the officer eventually advised Colocho of

his right to communicate with an attorney and allowed him nearly an hour to

exercise that right before his test refusal. Colocho’s argument that his actions

would have been different if he had an earlier opportunity to speak with an attorney

is speculative in nature. In the alternative, any violation of section 804.20 was

harmless error.

      AFFIRMED.
