                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0786
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TANYA LYNN CODER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Stuart P.

Werling (motion to suppress), Judge, and Gary P. Strausser (trial and

sentencing), District Associate Judge.



      The defendant appeals her conviction and sentence. AFFIRMED.



      Leah Patton, Walcott, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

      On May 31, 2014, at approximately three o’clock in the morning, a

Muscatine County deputy sheriff pulled over a vehicle after observing the rear

license plate was not illuminated. The deputy approached the driver, now known

to be Tanya Coder, and told her there was no license plate light on the vehicle.

Coder responded, “Oh. I have been drinking.” And she had been; field sobriety

tests established she was operating while intoxicated. She was placed under

arrest. Following a trial on the minutes of testimony, Coder was convicted of

operating a motor vehicle while intoxicated, third offense, in violation of Iowa

Code section 321J.2(1)(a) (2013), and several other traffic and licensure

offenses. She was sentenced to an indeterminate term of incarceration not to

exceed five years, with all but ninety days suspended. The district court ordered

mittimus to issue immediately for the ninety-day sentence to be served in the

Muscatine County Jail. On appeal, Coder contends the district court erred in

denying her motion to suppress evidence. She also contends the district court

abused its discretion in imposing sentence.

                                        I.

      Coder first contends that the traffic stop violated her right to be free from

unreasonable search and seizure as protected by the federal and state

constitutions and that the district court should have suppressed the evidence

obtained as a result of the traffic stop. The Fourth Amendment to the United

States Constitution provides “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. The Fourth Amendment
                                          3


is applicable to state actors by incorporation via the Fourteenth Amendment.

See Mapp v. Ohio, 367 U.S. 643, 660 (1961). The text of article I, section 8 of

the Iowa Constitution is materially indistinguishable from the federal constitutional

provision. Although Coder raises her claims under both the Federal and Iowa

Constitutions, she does not argue for a different standard under the Iowa

Constitution. “Where a party raises issues under the Iowa Constitution and the

Federal Constitution, but does not suggest a different standard be applied under

the Iowa Constitution, we generally apply the federal standard.”             State v.

Edouard, 854 N.W.2d 421, 452 (Iowa 2014) (Appel, J., concurring specially).

       “When a peace officer observes a traffic offense, however minor, the

officer has probable cause to stop the driver of the vehicle.” State v. Harrison,

846 N.W.2d 362, 365 (Iowa 2014). “The motivation of the officer stopping the

vehicle is not controlling in determining whether reasonable suspicion existed.

The officer is therefore not bound by his real reasons for the stop.” Id. The

deputy stopped Coder’s vehicle because it did not have an illuminated license

plate, in violation of Iowa Code section 321.388, which provides in pertinent part,

“Either the rear lamp or a separate lamp shall be so constructed and placed as to

illuminate with a white light the rear registration plate and render it clearly legible

from a distance of fifty feet to the rear.” In State v. Lyon, 862 N.W.2d 391, 398

(Iowa 2015), the supreme court held the “the statute may be violated if there is

no illumination of the license plate at all from a white light or if the illumination,

though present, is so weak that the license plate is not clearly legible from a

distance of fifty feet.”
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       Coder does not challenge the proposition that a violation of code section

321.388 would provide probable cause to support a lawful traffic stop. Instead,

she contends the rear license plate of her vehicle was, in fact, illuminated, as

evidenced by the dashboard camera recording of the traffic stop. Relatedly, she

argues the deputy could not have accurately determined whether her license

plate was illuminated because he took no action to verify his initial observation

prior to making the traffic stop. See Lyon, 862 N.W.2d at 394 (noting officer

confirmed his vehicle’s headlights did not illuminate license plate); State v.

Knapp, No. 08-1918, 2009 WL 4842395 at *1 (Iowa Ct. App. Dec. 17, 2009)

(noting officer turned off his vehicle’s headlights to determine whether the license

plate lamp was functioning); State v. Gustafson, No. 08-1429, 2009 WL 4842474

at *3 (Iowa Ct. App. Dec. 17, 2009) (noting officer “backed off” vehicle and

followed vehicle into darker area to confirm patrol car headlights were not

illuminating vehicle). Coder does not at all explain why, even if her arguments

prevailed, the traffic stop would have been unlawful and suppression required.

See State v. Tyler, 830 N.W.2d 288, 294 (Iowa 2013) (“Our precedent is clear

that a mistake of fact may justify a traffic stop.”).

       We need not address the issue, however, because on de novo review, we

conclude the license plate was not illuminated as required by statute and the stop

was supported by probable cause.            The deputy conducting the traffic stop

testified the license plate was not illuminated. His testimony is corroborated by

other evidence. In the last several minutes of the dashboard-camera recording,

once the lights from the deputy’s vehicle are no longer reflecting off the rear of

Coder’s vehicle, one can determine the vehicle license plate was not illuminated.
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Further, on the recording, the deputy told Coder he had pulled her over because

the license plate was not illuminated. Finally, during the course of the traffic stop,

Coder and the deputy were behind Coder’s vehicle for an extended period of

time, and Coder never protested that the license plate was, in fact, illuminated.

The district court did not err in denying Coder’s motion to suppress evidence on

this ground.

                                          II.

       Coder also contends that evidence (without specifying what evidence)

obtained at the sheriff’s office after she was placed under arrest should have

been suppressed because it was obtained in violation of her statutory right to

contact a family member and consult with counsel as protected by section

804.20. This provision provides:

       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. 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. Our courts have interpreted this provision to “insist[ ] that

law enforcement officers not play games when faced with a request from a

person in custody to communicate with the outside world after being arrested.”

Lyon, 862 N.W.2d at 401. Traditionally, the remedy for a violation of this statute
                                          6

is suppression of the breath-test results. See State v. Walker, 804 N.W.2d 284,

296 (Iowa 2011) (“The district court applied the remedy mandated by more than

a generation of our precedent—suppression of the breath-test results.”)

       Review here is for correction of errors at law. Lyon, 862 N.W.2d at 394.

The district court’s ruling will be upheld where there is substantial evidence to

support it.   Id.   The record reflects that, at the jail, Coder asked to call her

husband. The call was allowed, and Coder spoke to her husband, but the deputy

told Coder her husband would not be able to come back to the holding cell to

meet with her. Coder also asked to call attorney Robert DeKock. She placed

four calls to DeKock and left voice mail messages, but she was not able to speak

with him directly. Coder told the deputy that she would not take the requested

breath test until she had the chance to speak with DeKock. The deputy told

Coder that she was required to take the test within a two-hour window and he

would consider this a refusal to take the test.

       We need not reach the merits of Coder’s statutory claim because any

alleged error in denying the motion to suppress evidence on this ground was

harmless. See State v. Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (violation of

section 804.20 was harmless error where court did not consider evidence

defendant sought to exclude); cf. State v. Moorehead, 699 N.W.2d 667, 673

(Iowa 2005) (violation was not harmless error where trial court emphasized test

result whose exclusion was sought as evidence of guilt).              There was

overwhelming evidence of Coder’s guilt excluding any evidence obtained after

the alleged statutory violations.        During the roadside detention, Coder

volunteered on several occasions that she had been drinking.         She was in
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possession of an open container of cold beer at the time of the traffic stop. The

deputy detected an odor of alcohol on her breath. Her eyes were bloodshot and

watery. The minutes show Coder had difficulty maintaining her balance upon

exiting the vehicle.    Coder failed field sobriety testing, demonstrating the

maximum level of impairment. Finally, we note the district court did not consider

Coder’s refusal of the breath alcohol test in reaching its decision:

       In reaching this conclusion the Court did not rely on the fact that the
       defendant refused the breath alcohol test. There is ample evidence the
       defendant was under the influence of alcohol when driving the motor
       vehicle. The Court recognizes it may consider a refusal as evidence of
       intoxication; however, in this case the Court declines to do so given that it
       is clear the refusal was motivated by the fact the defendant wished to
       speak with her attorney.

       For the foregoing reasons, any violation of section 804.20 was harmless

error and does not require reversal of Coder’s conviction.

                                         III.

       Coder also challenges her sentence. Specifically, Coder contends her

sentence should have been set at the mandatory minimum of thirty days and not

the ninety days she received.      Sentencing decisions of the district court are

cloaked with a strong presumption in their favor. State v. Thomas, 547 N.W.2d

223, 225 (Iowa 1996). Where the defendant does not assert the sentence is

outside statutory limits, the sentence will be set aside only for an abuse of

discretion. Id. An abuse of discretion is found only when the sentencing court

exercises its discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.     Id.   In exercising its sentencing discretion, the

district court must weigh all pertinent factors, which include the defendant’s age,

defendant’s prior record, defendant’s employment circumstances, defendant’s
                                          8


family circumstances, defendant’s mental health and substance abuse history

and treatment options available, nature of the offense, and other appropriate

factors. Iowa Code § 907.5(1).

       The record reveals the court exercised its discretion based on the

consideration of several permissible factors without consideration of any

impermissible factors:

       I find this case to be a very close call for whether that sentence
       should be imposed or whether you should be placed at the OWI
       facility. Obviously the factors that point toward placement at the
       OWI facility include the recency of the prior offenses, 2010 and
       2013. Those are two offenses, two prior offenses, and now a third
       within a very short period of time. Obviously the factors that
       mitigate against placement in the OWI facility include the things
       outlined by your attorney, including you do have the ability to
       maintain employment; you do have family connections; there was
       no injury in this case or no other exacerbating factors; you have
       done everything that we would ask you to do as far as treatment
       and rehabilitation are concerned. For that latter reason, I do not
       believe you would be an appropriate candidate for the OWI facility,
       because the OWI facility provides for punishment and rehabilitation,
       and you are capable of doing the rehabilitation here within the
       community. So the sentence to the Department of Corrections will
       be suspended; however, you will be ordered to serve 90 days in the
       Muscatine County Jail. The reason that you will be ordered to
       serve 90 days is obviously some of the things I’ve mentioned. This
       is a third offense in a relatively short period of time. You received
       the benefit of a deferred judgment, I believe it was, in Scott County
       and in Illinois. They don’t call it a deferred judgment, but essentially
       it’s the same thing. And despite being arrested twice for Operating
       While Intoxicated, you continued with the same conduct.

The district court further noted:

       If the Court suspends the sentence, the Court shall order the
       person to serve not less than 30 days or more than one year.
       Certainly a year is not appropriate under the facts I outlined earlier,
       but neither is – does the Court believe that the minimum 30 days is
       appropriate due to her criminal history and inability to stop making
       the same mistakes while also recognizing her efforts towards
       rehabilitation. The Court finds this is the most appropriate sanction.
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Coder has not identified any abuse of discretion, and we find none.

                                       IV.

      For the above-stated reasons, we affirm the defendant’s convictions and

sentences.

      AFFIRMED.
