STATE of Iowa, Appellant, v. Carson Michael WALKER, Appellee.
No. 10-0525.
Supreme Court of Iowa.
Sept. 30, 2011.
In short, we leave the law where we found it. We conclude, under the circumstances presented in this case, the plaintiff was not entitled to avail himself of the Iowa savings statute.
IV. Conclusion.
For the above reasons, the order of the district court granting the defendant summary judgment in this matter is affirmed.
AFFIRMED.
All justices concur except MANSFIELD, J., who takes no part.
Daniel J. Rothman and William G. Brewer of McEnroe, Gotsdiner, Brewer & Steinbach, P.C., West Des Moines, for appellee.
WATERMAN, Justice.
Is an attorney able “to see and consult confidentially [with client] alone and in private” under
This case presents our first opportunity to construe the limited statutory right to a custodial in-person consultation with counsel. Other courts have reached divergent conclusions on the extent to which police and jailors can monitor or regulate attorney visits with clients in custody. A clear majority of courts allow restrictions—such as a partitioned room separating the lawyer and client or video monitoring of their conference—only upon a case-specific, individualized suspicion of a threat to safety or security. In this case, Walker was cooperative and nonviolent. For the reasons explained below, we hold the police violated Walker‘s
I. Background Facts and Proceedings.
On December 6, 2009, Ankeny police patrol officer Travis Grandgeorge saw a Ford Expedition being driven down the center dividing line on Southeast Delaware Avenue and pulled it over at 2:23 a.m. Walker, age twenty-eight, was the driver and sole occupant. Grandgeorge noted Walker had slurred speech, watery bloodshot eyes, and smelled of alcohol. Walker admitted he had been drinking and attempted, but failed, several field sobriety tests—the “Walk and Turn” and “One Leg Stand.” He refused to take a preliminary breath test (PBT) but scored a “6,” indicating intoxication, on the Horizontal Gaze Nystagmus (HGN) test of his ability to keep his eyes focused on the officer‘s finger as it moved across his face. Walker was arrested at 2:39 a.m. and transported to the new Ankeny police station. There, Grandgeorge gave Walker an implied consent advisory, requested a breath sample at 3:16 a.m., and offered Walker the opportunity to make phone calls. Walker made
Gotsdiner answered the call and referred the matter to attorney Daniel Rothman, who was more knowledgeable about OWI law. Rothman arrived at the Ankeny Police Department at 4:42 a.m. Grandgeorge greeted Rothman and escorted him to a small detention area with three empty booths with glass partitions to separate visitors from detainees and intercoms with telephone style handsets for communication. Rothman saw a black plastic security camera “bubble” and correctly assumed the booths were monitored by video camera. He was concerned the room or phones were recorded for sound. No signage indicated whether audio or visual monitoring was in use. Rothman did not ask any officer about audio or video recording or raise any concern about such eavesdropping at this time. In fact, the video was streamed onto a separate monitor and kept for one month. Neither the booth nor the telephone handsets were audio recorded, nor was any officer in the booth area or watching the video monitor while Rothman was there.
Rothman had planned to make his own assessment of Walker‘s intoxication before advising him whether to take the breath test. Walker was facing a charge of OWI, first offense, and if his blood alcohol level exceeded .15%, he would be ineligible for a deferred judgment. Rothman wanted to have Walker privately perform for him several physical balancing tests, but worried the videotape would create more evidence to be used against his client at trial. Rothman was trained to administer the HGN test, but concluded glare on the thick glass from the bright fluorescent lighting would prevent him from conducting that test with Walker on the other side of the partition. Rothman also wanted to smell Walker‘s breath and could not do so through the solid glass barrier. Accordingly, Rothman, without mentioning the video, asked Grandgeorge for a different room without the partition for his client conference. His request was refused, and when he asked again, Grandgeorge checked with his supervisor, then told Rothman department policy prohibited all visitors from entering the detention area. It is undisputed Walker was nonviolent and cooperative.
Because Rothman‘s repeated requests for a different room were refused, he conferred with Walker from opposite sides of the glass partition for fifteen minutes using the intercom. Rothman made no request to halt any recording while at the station, nor was he told whether video or audio recording was in progress. After conferring with Rothman through the partition, Walker took the evidentiary Datamaster breath test at 5:02 a.m. The breath test measured Walker‘s blood alcohol level at .186%, more than double the legal limit of .08% and above the .15% maximum for a deferred judgment.
The State charged Walker with operating while intoxicated in violation of
The district court conducted an evidentiary hearing on the motion to suppress. Grandgeorge and Rothman testified. Grandgeorge testified the purpose of the
Rothman testified his ability to give informed legal advice was impeded. Specifically, he was unable to smell Walker‘s breath or perform the HGN test, and he chose to refrain from asking Walker to do balancing tests because of the video camera and his belief that video of Walker‘s performance would be admissible against him at trial. See State v. Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (allowing into evidence video of defendant taken at police station without attorney present “to demonstrate Garrity‘s body motions, judgment, slurred speech and inability to communicate“).
The district court found the officers violated Walker‘s
In this case we have an experienced attorney who clearly understands field sobriety tests, and the video itself will be a chilling effect on requesting the defendant to perform a one-leg stand or a walk-and-turn type of test. Because if he failed, he would be giving the Government additional evidence.
. . . .
The glass wall or very large window would clearly interfere with the defense counsel performing the HGN test potentially because of the glass and the lighting. There was no chance to smell any odor of alcohol, and I think clearly the request was made that the meeting be in person.
The State filed an interlocutory application for discretionary review. Walker resisted. We granted the State‘s application and transferred the case to the court of appeals. The court of appeals reversed, with the majority opinion concluding the Ankeny Police Department did not violate
[W]e agree with the State‘s contention that Walker was provided an opportunity to consult with Attorney Rothman in confidence under reasonable security conditions imposed by the police department.
1. . . .
We also do not believe communication through a glass partition or a phone or intercom system prevents either the attorney or client from speaking freely with each other.
Section 804.20 guarantees a confidential consultation—not the ability to smell or touch the client, or the space to perform field sobriety tests.
A special concurrence disagreed with the majority‘s conclusion as to whether
I disagree with the majority that the physical environment in which Walker and his attorney were placed satisfied the “alone and in private” requirement of
Iowa Code section 804.20 (2009). “Alone” means “separated from others: isolated.” Merriam-Webster‘s Collegiate Dictionary 34 (11th ed.2004). “Private” means “withdrawn from company or observation.” Id. at 988. In my view, these terms do not encompass videotaped booths such as the ones Walker and his attorney were forced to use.
All three judges on the court of appeals panel agreed that, regardless of whether
We granted Walker‘s application for further review.
II. Standard of Review.
The district court‘s interpretation of
III. Iowa Code Section 804.20.
It is undisputed that Walker‘s attorney invoked the statutory right to “see and consult confidentially” with Walker “alone and in private” at the Ankeny Police Department and that he repeatedly requested a private room without the glass partition. It is also undisputed that Walker was cooperative, not belligerent or violent. The Ankeny police had no case-specific reason to suspect Rothman would be at risk alone in a room with physical contact with Walker or that either of them together would do anything to compromise the impending breath test. Under these circumstances, we must decide whether Walker‘s
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.
(Emphasis added.)
When interpreting a statute, “our primary goal is to give effect to the intent of the legislature. That intent is evidenced by the words used in the statute. . . . In the absence of legislative definition, we give words their ordinary meaning.” Anderson v. State, 801 N.W.2d 1, 3 (Iowa 2011) (quoting State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011) (internal citation and quotations marks omitted)). “We seek a reasonable interpretation which will best effectuate the purpose of the statute. . . .” State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995).
“The legislative purpose of
Although
Our cases addressing the right to a telephone consultation with an attorney make clear that
While we have repeatedly addressed the detainee‘s right to make phone calls under
We must now decide whether the Ankeny police violated Walker‘s
A. The Glass Partition.
Rothman testified at the suppression hearing the glass partition that separated him from his client impeded his ability to give informed legal advice on whether to take the breath test. Specifically, Rothman was trained to administer the HGN test but was unable to use it with Walker because of the glare on the thick glass partition. Rothman also was denied the opportunity to smell his client‘s breath. The district court, in concluding that
The State, however, correctly notes that Rothman and Walker were able to see
Guidance is provided by other appellate decisions addressing whether a detainee‘s right to counsel is violated by a partition. Colorado has a statute with operative language equivalent to Iowa‘s—allowing persons in custody to “see or consult, alone and in private [with an attorney] at the place of custody.”
[T]he room is constituted of two portions. The attorney occupies one side, and the inmate/client the other side, and the two sides are separated by a partition. The partition has a pass through for exchange of materials. The attorney and the inmate/client can see each other adequately through the glass partition. They can communicate by spoken word in a normal tone of voice, and in so doing cannot be overheard by those who are outside the room, but who may be in the immediate area.
Id. Parsons was facing charges of first degree murder for killing another inmate. Id. at 801. The court found the visiting room sufficient “for most purposes of private communication.” Id. at 805. Parsons nevertheless contended his attorney-client relationship was impaired “because he was not free to use ‘physical demonstrations of things that had taken place or [were] alleged to have taken place.‘” Id. The appellate court rejected this argument, noting that Parsons did have the opportunity to meet several times with his attorney in the jury room at the courthouse where he could perform physical demonstrations without observation by guards. Id.
Parsons is distinguishable. Walker is facing a charge of OWI, not murder. Moreover, the booth at the Ankeny police station had no “pass-through” opening to allow Rothman to smell his client‘s breath or perform HGN tests. The Ankeny booth was under videotaped surveillance; the prison visiting room in Parsons was not. And most importantly, Parsons was afforded several opportunities to consult with his attorney outside of the jail in a
Further guidance is provided by federal appellate decisions holding inmates’ right to counsel requires allowing “contact” visits with counsel in a room with no partition or barrier between them. See, e.g., Mann v. Reynolds, 46 F.3d 1055, 1061 (10th Cir. 1995) (holding that death row inmates’ Sixth Amendment right to counsel required allowance of contact visit in barrier-free room); Ching v. Lewis, 895 F.2d 608, 609-10 (9th Cir. 1990) (holding prisoner had right to “contact visitation” with his counsel that was violated by restricting visits to room where he was required to “yell through a hole in the glass“); Adams v. Carlson, 488 F.2d 619, 630 (7th Cir. 1973) (finding visitation room at Marion Federal Penitentiary bisected by glass partition denied inmate‘s access to counsel; noting the difficulty of attorneys “behind glass” establishing trust and a satisfactory working relationship with prisoner, and “the paucity of evidence in the record to support the Government‘s view that Marion officials reasonably feared importation of contraband by appellants’ attorneys“).
Commentators surveying the case law note a majority of courts reaching the question hold an inmate‘s right to counsel requires a visitation room without a physical barrier:
An issue that has arisen in connection with attorney-client visits is whether prison officials may compel inmates to have noncontact visits with attorneys. Noncontact visits take place with a physical barrier between the inmate and the visitor that prevents one from having any physical contact with the other. Written material has to be passed from the attorney to the inmate by a guard messenger, if at all. While this type of visiting arrangement has been sustained for nonlegal family visits, courts have not been as willing to sanction noncontact visits with attorneys.
The majority of courts that have considered the issue have held that inmates—even inmates on death row—are constitutionally entitled to contact visits with their attorneys. These courts have found noncontact visits too impersonal and unduly restrictive to comport with the constitutional right of inmates to consult meaningfully with their counsel. . . .
Michael B. Mushlin, 3 Rights of Prisoners § 12:27, at 257-59 (4th ed. 2009) (footnotes omitted).
Walker‘s Sixth Amendment right to counsel had not yet attached at the time he was asked to perform the breath test. See State v. Nelsen, 390 N.W.2d 589, 591 (Iowa 1986) (Sixth Amendment right to counsel “attaches upon the initiation of adversary criminal judicial proceedings. . . . In Iowa, a criminal proceeding is commenced ‘by the filing of a complaint before a magistrate.‘” (quoting
Courts have restricted attorney visits to “noncontact” rooms separating attorney and client when the prisoner had a “demonstrated propensity toward violence.” Dep‘t of Corrs. v. Super. Ct., 131 Cal. App. 3d 245, 182 Cal. Rptr. 294, 299 (1982). Courts generally require an individualized suspicion to justify limiting a detainee‘s right to meet with counsel in a barrier-free room:
Prison officials may ban disruptive attorneys from the prison and may prohibit contact, as distinct from noncontact, visits by attorneys to prisoner clients, where justified by specific security considerations. On the other hand, an arbitrary policy of denying a prisoner contact visits with his or her attorney unnecessarily abridges the prisoner‘s right to meaningful access to the courts, where such a policy prohibits effective attorney-client communication. Because an attorney is considered an officer of the court, there is no reason to suspect that he or she would be a threat to prison security or discipline.
72 C.J.S. Prisons § 113, at 570-71 (2005) (footnotes omitted).
We agree with this approach. In Wemark v. State, 602 N.W.2d 810, 816 (Iowa 1999), we noted, “Although a strong tradition of loyalty exists between a lawyer and client, a lawyer is also an officer of the court who is bound by a code of professional conduct.” Iowa lawyers may be disciplined for misconduct during conferences with clients in custodial detention. See Comm. on Prof‘l Ethics & Conduct v. Durham, 279 N.W.2d 280, 285-86 (Iowa 1979) (public reprimand for attorney who engaged in sexual contact with client-inmate in prison visiting room). The State has made no showing in this case specific to Rothman and Walker that would justify limiting their conference to a “noncontact” visitation room under the foregoing authorities.
We hold on the specific facts of this case that Walker‘s
B. The Videotaped Surveillance.
We next determine whether Walker‘s
In People v. Dehmer the Colorado Court of Appeals held that a statutory requirement to permit an arrested person to “see or consult, alone and in private at the place of custody” was violated by a surveillance camera that did not record sound. 931 P.2d 460, 463 (Colo. App. 1996). That deci-
Similarly, Vermont courts have recognized a statutory right to private legal consultation before a person arrested for drunk driving must decide to take or forgo the breath test. State v. Sherwood, 174 Vt. 27, 800 A.2d 463, 466 (2002). The Vermont Supreme Court held that videotaping a defendant‘s consultation with his attorney violated his right to a private legal consultation. Id. (“The tape itself is evidence that defendant‘s conversation with counsel was not, in fact, private.“).
We are to interpret the operative statutory language to “‘best achieve[ ] the statute‘s purpose.‘” Welch, 801 N.W.2d at 600 (quoting State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006)). The purpose of
Substantial evidence supports the district court‘s finding that the video surveillance had a chilling effect on Rothman‘s consultation with Walker. Specifically, as Rothman testified, he refrained from having Walker perform a one-leg stand or a walk-and-turn balancing test out of concern a poor performance would be captured on videotape, providing the government additional evidence to convict. See Garrity, 765 N.W.2d at 597 (allowing into evidence video of defendant‘s conduct at police station to show his inebriation).
The State argues that security reasons justify leaving the video camera running during the attorney consultation. The Kansas Supreme Court surveyed the case law addressing video monitoring of attorney conferences with inmates in Case v. Andrews, 226 Kan. 786, 603 P.2d 623, 625-26 (1979). There, the attorney met with his client in jail in a room visually monitored by a permanently mounted camera. Case, 603 P.2d at 624. The attorney placed his suit coat over the camera lens for privacy, but was ordered by a deputy to remove it. Id. at 624-25. The detainee brought a habeas corpus action alleging the video surveillance violated his Sixth Amendment right to confer privately with counsel. The Case court agreed, stating:
It must be emphasized that attorneys are officers of the court. It should be presumed, absent a contrary showing, that an attorney representing an incarcerated client will strive to uphold the credibility and standards of the judicial system rather than to subvert them. Absent a showing of any risk to the order or security of the jail, the practice of visually monitoring an attorney-client conference when privacy is requested, is unreasonable. Such unreasonable interference violates an accused‘s Sixth Amendment right to effective representation by counsel. Accordingly, the writ is allowed and the respondent, Daniel R. Andrews, sheriff of Lyon County, is directed to permit attorneys consulting clients held in the county jail to place their coats over the television camera lens during such a conference.
Id. at 627. We find this reasoning persuasive in interpreting the limited statutory right to an attorney consultation under
We now turn to the remedy for the violation of Walker‘s
The court of appeals, relying on Coburn, erred in holding Walker was not entitled to suppression because he failed to show prejudice or that any privileged attorney-client communication, in fact, was intercepted and used against him. Coburn is distinguishable. That case was decided under the Sixth Amendment, and no constitutional violation was found because the police did not eavesdrop or attempt to eavesdrop on the defendant‘s jailhouse conference with his attorney. Coburn, 315 N.W.2d at 748. Our prior decisions under
IV. Conclusion.
For the foregoing reasons, we hold that Walker‘s
We vacate the decision of the court of appeals and affirm the district court‘s ruling suppressing the breath-test results. We remand this case for further proceedings consistent with this opinion.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT RULING AFFIRMED; CASE REMANDED.