               IN THE SUPREME COURT OF IOWA
                             No. 09–1246

                        Filed November 24, 2010


STATE OF IOWA,

      Appellee,

vs.

SCOTT ALLEN HICKS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Jackson County, David H.

Sivright, Jr., Judge.



      Appellant seeks review of court of appeals’ decision to affirm the

district court’s denial of appellant’s motion to suppress. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED; CASE REMANDED WITH INSTRUCTIONS.



      David A. Lemanski, Dubuque, for appellant.



      Thomas J. Miller, Attorney General, Jean Pettinger, Assistant

Attorney General, and Christopher M. Raker, County Attorney, for

appellee.
                                     2

BAKER, Justice.

      Appellant seeks further review of court of appeals’ decision to

affirm the district court’s denial of appellant’s motion to suppress. The

appellant sought to suppress evidence allegedly derived from an

unconstitutional stop and evidence purportedly obtained after law

enforcement denied appellant his right to call a family member as

guaranteed by Iowa Code section 804.20 (2007).        We find the district

court correctly determined the detaining officer’s stop of the petitioner to

have been permissible, but the district court erred in holding that the
appellant was afforded his section 804.20 rights.      The decision of the

court of appeals is vacated, the district court’s judgment is reversed, and

the case is remanded with instructions.

      I. Background Facts and Proceedings.

      Sergeant Kennie Sparks of the Maquoketa Police Department was

on patrol in an unmarked police car during the early morning hours of

August 23, 2008. Sparks observed a car weaving in his rearview mirror.

The car was quickly approaching the rear of the officer’s car.      Sparks

pulled over to allow the car to pass and then began to follow the car.

While following the car, Sparks attempted to drive at the same speed as

the vehicle in front of him, a police tactic known as pacing.      The on-

board camera displays the squad car’s speed pursuant to GPS. While

pacing the car, the camera showed the squad car was traveling thirty-

four to thirty-six miles per hour. The speed limit was twenty-five miles

per hour. In addition, the on-board camera also showed the car weaving

and crossing the center of the road. Sparks then pulled the car over.

      Appellant, Scott Hicks, was operating the vehicle and was the sole

occupant. When making initial contact with Hicks, Sparks detected the

odor of beer coming from Hicks’s car.        Sparks observed Hicks had
                                     3

bloodshot, watery eyes and slurred speech.        Inside the car were two

open, half-full beer cans.    Sparks asked Hicks to take several tests.

Hicks failed the horizontal gaze nystagmus test. Hicks agreed to take the

walk-and-turn test; however, after struggling with his initial steps, Hicks

refused to complete the test and admitted to Sparks that he had too

much to drink. Hicks refused to take the remaining field sobriety tests

and subsequently was arrested and transported to the Maquoketa Police

Department.

      At the processing center, Sparks and Hicks engaged in numerous
conversations, many relevant to Hicks’s right to communicate with a

family member:

            HICKS: Can I call somebody to get me out?
            SPARKS: Yeah. I can let you make a call. Who would
      you like to call?
            HICKS: My girlfriend if she’s home or my mom?
            ....
            SPARKS: Who would you like to call?
            HICKS: Well, who can let me go home?
            SPARKS: Who can let you go home? Well, we can’t
      decide that yet.

      Officer Sparks then informed Hicks that pursuant to police

department policy Hicks would not be released until he passed a breath

test. If Hicks refused to submit to a breath test or failed to pass the test,

he was informed he would be held until morning and then see the judge.

            HICKS: Can I have somebody called to get me out?
      Can I have my mom come get me?
            SPARKS: Not tonight. I can have you call her. Okay?
            HICKS: No. I want somebody to just let me take me
      home. I’ll go to her house. I don’t care. I’m not going to
      drink anymore.
            ....
                                       4
              HICKS: I just want to call my mom and have her come
        get me. My mom—not my girlfriend—my mom.
              SPARKS: I got to go through all this stuff first.
              HICKS: That’s okay. I’ll sign anything you want.
              ....

        Hicks ultimately announced he would no longer like to continue

the implied consent process. Sparks insisted on completing the implied

consent form. After the implied consent process was completed, Hicks

again    refused     chemical   testing    and   engaged    in    non-relevant

conversation.

        Hicks was charged with operating while intoxicated, second

offense, in violation of Iowa Code section 321J.2(1)(a) and (b). Hicks filed

a motion to suppress. First, Hicks alleged Sparks lacked probable cause

to pull him over and all evidence subsequent to the improper stop should

be suppressed. Second, Hicks alleged he was denied his statutory right

to contact a family member afforded by Iowa Code section 804.20 and all

evidence subsequent to his invocation of this statutory right should be

suppressed.     The district court denied Hicks’s motion to suppress on

each issue. The jury found Hicks guilty of operating while intoxicated,

and Hicks stipulated to an earlier operating-while-intoxicated conviction.

Hicks was sentenced to twenty days of incarceration and fined $2500.

        Hicks filed a timely notice of appeal. This appeal was routed to the

court of appeals. The court of appeals affirmed the district court’s denial

of Hicks’s motion to suppress, finding the arresting officer had

reasonable suspicion to stop Hicks, and the officer did not violate Iowa

Code section 804.20. We granted Hicks’s application for further review.

        II. Discussion and Analysis.

        A. Reasonable Grounds for Stop. Hicks argues Sparks did not

have probable cause to stop his car, and therefore the district court
                                     5

should have granted his motion to suppress evidence resulting from this

improper stop. Because Hicks’s argument as to the validity of his stop

raises a constitutional issue, our review is de novo.    State v. Kinkead,

570 N.W.2d 97, 99 (Iowa 1997).

      To conduct an investigatory stop an officer must have a reasonable

suspicion that criminal activity has occurred or is occurring. Id. at 100

(citing Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880, 20 L. Ed.

2d 889, 906 (1968)). ―[T]he State must show by a preponderance of the

evidence that the stopping officer had specific and articulable facts,
which taken together with rational inferences from those facts, to

reasonably believe criminal activity may have occurred.‖ State v. Tague,

676 N.W.2d 197, 204 (Iowa 2004). Reasonable suspicion is evaluated in

light of the totality of circumstances facing the officer at the time of the

stop. Id.

      The record contains evidence that creates a rational inference to

believe Hicks may have been engaging in criminal activity. First, Sparks

observed Hicks’s car swerving in Sparks’s rearview mirror. Then, after

allowing Hicks to pass, Sparks observed Hicks’s car cross over the center

of the roadway into an unmarked lane for oncoming traffic.         The on-

board camera corroborates Sparks’s observation. Second, the on-board

camera shows that Sparks’s squad car was traveling between thirty-four

to thirty-six miles per hours in a twenty-five miles-per-hour speed zone

while Sparks was pacing Hicks’s car.       The defendant challenges the

validity of the pacing technique and the calibration of the GPS system;

however, Sparks’s pacing and the GPS speed allows for a rational

inference that Hicks was traveling in excess of the twenty-five miles-per-

hour speed limit. See State v. Bedwell, 417 N.W.2d 66, 70 (Iowa 1987)

(holding that an officer’s use of pacing was sufficient to permit a jury to
                                     6

conclude the defendant traveled in excess of the twenty-five miles-per-

hour speed limit).     We find the record shows that Sparks had a

reasonable suspicion to stop Hicks; therefore, the district court properly

denied Hicks’s motion to suppress on this issue.

      B. Statutory Right to Call a Family Member.             We review the

district court’s interpretation of section 804.20 for errors at law. State v.

Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).             If the district court

correctly applied the law, we then determine whether there is substantial

evidence to support the court’s findings of fact. Id.
      Hicks argues he was denied his statutory right guaranteed by Iowa

Code section 804.20 to call a family member once detained by a police

officer. Iowa Code section 804.20 states:

             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.

The right to call a family member is equally important as the right to call

counsel.   State v. McAteer, 290 N.W.2d 924, 925 (Iowa 1980).            The

statute does not require a police officer to affirmatively inform the

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

right exits. Moorehead, 699 N.W.2d at 671. The guaranteed right is a

limited one and only requires a peace officer to provide the suspect with

a reasonable opportunity to contact an attorney or family member.

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

      To determine whether Hicks was denied his right to contact a

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

First, we must determine whether Hicks invoked his rights under section
                                    7

804.20.    Second, we examine whether Hicks was afforded the rights

section 804.20 guarantees. We examine these inquiries in turn.

      1. Invocation of statutory right. We have evaluated the sufficiency

of a suspect’s invocation within two frameworks.          First, we have

examined the clarity of the suspect’s request to determine if the suspect

invoked his statutory right.     Moorehead, 699 N.W.2d at 672.         In

Moorehead we held that a suspect invoked his section 804.20 right when

the suspect asked a police officer, while detained in the back of a squad

car, ―[W]ould it be possible for me to talk to my Mom when you call her to
come pick [the car] up?‖ Id. at 669. We concluded the suspect’s request

invoked section 804.20 because ―Moorehead specifically, separately, and

unequivocally requested to talk to his mother.‖     Id. at 672 (emphasis

added). Second, we have suggested invocation turns, in part, upon the

suspect’s subjective purpose for requesting the phone call when we

stated ―[w]e objectively consider the statements and conduct of the

arrestee and peace officer, as well as the surrounding circumstances . . .

in determining if a good faith request for counsel has been made.‖

Ferguson v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988)

(emphasis added).

      Addressing the clarity language first, we note that invocation of a

suspect’s right to counsel under the Sixth Amendment of the United

States Constitution currently turns upon the clarity of the suspect’s

request.   Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350,

2355, 129 L. Ed. 2d 362, 371 (1994).      Davis requires the suspect to

make an unequivocal or unambiguous request for counsel to invoke his

Sixth Amendment right.     Id.   Davis and its progeny sparked fervent

debate amongst the Supreme Court and scholars as to whether a

suspect’s right to counsel should turn on unequivocal requests for
                                     8

counsel. See, e.g., id. 512 U.S. at 469–70, 114 S. Ct. at 2360–61, 129 L.

Ed. 2d at 378 (Souter, J., concurring in judgment) (arguing the majority

penalizes persons that are poor with English, ignorant, or intimidated by

police custody and that a clear, as opposed to ambiguous assertion, is

not always apparent); Peter M. Tiersma & Lawrence M. Solan, Cops and

Robbers: Selective Literalism in American Criminal Law, 38 Law & Soc'y

Rev. 229, 249, 255 (2004) (arguing Davis fails to account for social

normative behavior such as politeness, hedging, and deference to

authority); see also State v. Effler, 769 N.W.2d 880, 896–98 (Iowa) (Appel,
J., specially concurring) (expressing doubt that unequivocality should be

the touchstone to trigger a constitutional right to counsel and suggested

that some other framework might better protect persons’ constitutional

rights), cert. denied, ___ U.S. ___, 130 S. Ct. 1024, 175 L. Ed. 2d 627

(2009).     Moorehead’s reference to the suspect’s ―unequivocal‖ request

may be innocuous; nevertheless, it points down a path we are hesitant to

follow.

      The legislative purpose of section 804.20 is to afford detained

suspects the opportunity to communicate with a family member and

attorney.    See Vietor, 261 N.W.2d at 831.    We think the best way to

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

invocation of this right.   See Effler, 769 N.W.2d at 896–98 (Appel, J.,

specially concurring); State v. Chew, 695 A.2d 1301, 1317–18 (N.J. 1997)

(―Because the right to counsel is so fundamental, an equivocal request

for an attorney is to be interpreted in a light most favorable to the

defendant.‖). A detainee’s invocation of section 804.20 should not turn

on the grammatical clarity of the detainee’s request.      See Effler, 769

N.W.2d at 896–97 (Appel, J., specially concurring). Nor do we believe the

statute authorizes law enforcement to make discretionary decisions as to
                                     9

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 that a detainee’s right to

communicate with family or counsel to be a tolerable burden upon law
enforcement and suitably balances the state’s law enforcement needs

with the right of the accused.           Our construction concerning the

invocation of section 804.20 upholds this balance.

      Turning to the good-faith aspect of an invocation of section 804.20

rights, we observe that this requirement does not have any statutory

textual support, nor does Ferguson cite to any authority while casually

requiring the suspect’s request to be made in good-faith. See Ferguson,

424 N.W.2d at 466. Although the good-faith requirement has been often

cited, it has never been relied upon as a basis for our decision. See, e.g.,

Garrity, 765 N.W.2d at 597; Bromeland, 562 N.W.2d at 626.               The

authority upon which the good-faith language rests is questionable. In

our most recent case dealing with this statute, we noted that this

requirement is extremely limited as shown by an example of a purpose

that would not be in good-faith, i.e., if the suspect wanted to order a

pizza—a clearly frivolous purpose.       Garrity, 765 N.W.2d at 596.    The

reasoning implicit in our example in Garrity is our concern about

authorizing law enforcement’s discretionary power to determine what is

or is not a ―good-faith‖ motive for a suspect’s phone call. Vesting law

enforcement with this authority in effect conditions a suspect’s section
                                    10

804.20 rights upon autonomous, and possibly self-interested, discretion.

Marcy Strauss, The Sounds of Silence: Reconsidering the Invocation of the

Right To Remain Silent Under Miranda, 17 Wm. & Mary Bill Rts. J. 773,

814–15 (2009) (noting that police discretion and authority leverage

permits officers to put off the will of the suspect, ultimately depriving

them of their right). Compounding our concern is the difficulty one faces

in discerning a person’s singular purpose from their words.        Finally,

section 804.20 does not contemplate such discretionary autonomy,

simply stating that an officer ―shall permit‖ a detainee to ―call, consult,
and see‖ family or counsel. Iowa Code § 804.20.

        We think the statutory limitation that the call, consultation, or

visit must be with ―a member of the person’s family or an attorney‖

sufficiently ensures the detainee’s request is related to seeking

assistance or advice and not for some unrelated, frivolous purpose.

Therefore, there is no need for law enforcement personnel to screen such

requests to determine whether the request is made in good faith before

honoring the request. We now abandon the good-faith requirement our

prior cases had engrafted onto this statutory right.

        The present case illustrates the wisdom of this approach.      The

district court found Hicks was not denied his rights under section

804.20, primarily because Hicks’s motive for calling a family member

was futile.    Throughout Hicks’s processing, Hicks expressed concern

about whether he could go home.          Pursuant to police department

procedures, Hicks would not be released until he could pass a breath

test.   Hicks, however, repeatedly asked to call his mother, and within

seconds of entering the processing room Hicks requested, ―Can I call

somebody to come get me out?‖         Section 804.20 does not vest law

enforcement with the authority to judge the merits of a detainee’s phone
                                    11

call request other than a determination that the request is within the

scope of section 804.20, i.e., directed to a family member or attorney.

Hicks’s articulated purpose for calling his mother may have been futile,

but whether Hicks’s mother could, in fact, get him out of jail was

irrelevant. Hicks wanted his mother’s assistance, and his request to call

his mother was precisely the right contemplated by section 804.20.

Hicks invoked his rights under section 804.20. Because Hicks invoked

section 804.20, we must now determine whether Hicks was afforded his

statutory right.
      2. Reasonable opportunity.     We have stated that 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, 562 N.W.2d at 626. In Bromeland, a peace officer located the

home phone number of the suspect’s requested attorney, called the

attorney, let the phone ring fifteen to twenty times, and asked the

suspect if he wanted to contact another attorney. Id. at 625. We held

the officer provided the detainee a ―reasonable opportunity‖ to contact

the attorney; therefore, the suspect’s statutory rights were not violated.

Id. at 626. Beyond Bromeland, however, we have not had the chance to

illuminate what actions an officer must take to satisfy section 804.20.

      The district court concluded ―that the record indicates Hicks was

permitted numerous opportunities to exercise his rights under section

804.20.‖   We disagree.   The district court noted that a telephone was

located within reach of Hicks on the table where Sparks and Hicks were

sitting, and that Sparks did nothing to deny Hicks the right to call his

mother.    First, from reviewing the tape of the processing room, no

telephone is visible in the room. A small portion of the four-person table

where Sparks and Hicks sat, the corner farthest diagonally from where
                                       12

Hicks was seated, was not shown on camera. If a telephone was located

in that corner, it clearly was not within the reach or control of Hicks.

Second, even if a phone was in reach, we do not think that alone suffices

to provide a detainee a ―reasonable opportunity‖ to contact family.

      Section 804.20 states it only applies when a suspect is ―restrained

of [his] liberty.‖    Hicks argues section 804.20, in order to provide

detainees with a ―reasonable opportunity‖ to contact family or counsel,

requires peace officers to take some affirmative action to permit the

communication. We agree that section 804.20 requires law enforcement
to take affirmative action to ensure the request for a phone call is

honored. 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 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 law enforcement ―shall permit [the detainee] . . . to

call‖ a family member or attorney. We hold that once section 804.20 is

invoked, the detaining officer must direct the detainee to the phone and
                                         13

invite the detainee to place his call or obtain the phone number from the

detainee and place the phone call himself.

       During Hicks’s processing, Sparks never directed Hicks to the

phone, asked Hicks for the name and number of his mother, or

attempted to place the phone call for Hicks. Instead, Sparks elected to

continue to delay Hicks’s requests by continuing with the booking

process or engaging Hicks in Hicks’s often meandering conversation.

Sparks failed to provide Hicks a reasonable opportunity to make a phone

call to a family member as guaranteed by section 804.20.
       3. Exclusionary rule.        The remedy associated with a section

804.20 violation is the exclusion of evidence, regardless of whether the

detainee was denied his right to contact family or denied his right to

consult with an attorney.            McAteer, 290 N.W.2d at 925.               ―The

exclusionary rule extends to the exclusion of breath tests, breath test

refusals, and non-spontaneous statements . . . .‖ Garrity, 765 N.W.2d at

597.

       In his motion to suppress, Hicks asked the district court to

suppress all statements made subsequent to his request to speak with

his mother pursuant to the statutory exclusionary rule. The State did

not argue the applicable scope of the statutory exclusionary rule at the

time of the suppression hearing nor has it argued on appeal that some

other exception permits the admission of the video after the invocation of

Hicks’s right to make a call.1          Thus, the State has conceded that


       1We  have held that the exclusionary rule under section 804.20 does not extend
to spontaneous statements.      In Moorehead, the State argued that incriminating
statements made after a section 804.20 violation are still admissible because the
statement was made spontaneously. Moorehead, 699 N.W.2d at 675. We agreed with
the State that spontaneous statements are not included within the scope of the
statutory exclusionary rule and remanded the case to the district court to determine
whether the defendant’s statements were spontaneous. Id.
                                     14

suppression of the video—from the point when Hicks first requests to

speak with his mother, approximately fifty-eight seconds into the video—

is an appropriate remedy if section 804.20 was violated.       See Hyler v.

Garner, 548 N.W.2d 864, 876 (Iowa 1996) (―[W]e will not speculate on the

arguments [the parties] might have made and then search for legal

authority and comb the record for facts to support such arguments.‖);

Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d. 239, 240 (Iowa 1974)

(noting that we do not ―assume a partisan role and undertake [a party’s]

research and advocacy‖).        We have concluded section 804.20 was
violated; thus, all but the first fifty-eight seconds of the processing room

video should be excluded. The exclusionary rule also requires evidence

concerning Hicks’s refusal to submit to chemical testing to be excluded.

Vietor, 261 N.W.2d at 832.

        C. Admission of Horizontal Gaze Nystagmus Testimony. Hicks

objected to Sparks’s testimony about Hicks’s results on the horizontal

gaze nystagmus test, alleging the test was not properly administered.

Specifically, Hicks argues the test was unreliable because a strobe light

was present while the test was administered and Sparks failed to use a

contrasting background. The district court overruled Hicks’s objection.

We review the admissibility of expert testimony for an abuse of

discretion. State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990).

        We have stated ―that testimony by a properly trained police officer

with respect to the administration and results of the horizontal gaze

nystagmus test is admissible without need for further scientific

evidence.‖    Id.   Officer Sparks is an experienced officer and has been

properly trained in administering the horizontal gaze nystagmus test.

Thus, no further foundation is necessary for the scientific basis for the

test.
                                        15

      The issue presented, however, is whether sufficient foundation

existed that the test was properly administered and thus reliable. The

district court allowed the testimony, but permitted Hicks to challenge

Sparks’s testimony on cross-examination. We hold the district court did

not abuse its discretion in overruling Hicks’s objection to Sparks’s

testimony.    It was for the jury to decide the weight it would give to

Sparks’s testimony. See State v. Stratmeier, 672 N.W.2d 817, 821 (Iowa

2003) (―[A]ny challenge to the procedures used in obtaining the chemical

test goes to the weight of the evidence rather than its admissibility.‖); see
also State v. Balbi, 874 A.2d 288, 295 (Conn. App. Ct. 2005) (―Numerous

courts have concluded that attacks on the administration of the

horizontal gaze nystagmus test pertain to the weight rather than to the

admissibility of the evidence.‖).

      III. Disposition.

      The State violated Hicks’s statutory right to call his mother. The

remedy for a violation of section 804.20 is exclusion of any evidence

gathered after invocation of the right. In this case, evidence of Hicks’s

breath test refusal and the portion of the processing room video after

Hicks asked to call his mother, approximately fifty-eight seconds into the

video, should have been excluded. The district court erred in denying

Hicks’s motion to suppress.         This error is not harmless, and thus we

reverse and remand for a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT        JUDGMENT       REVERSED;         CASE     REMANDED       WITH

INSTRUCTIONS.
