Opinion
No. 3-628 / 02-1974
Filed September 10, 2003
Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.
Defendant-appellant Christopher Boyce appeals his conviction and sentence by the district court for operating a motor vehicle while intoxicated, in violation of Iowa Code section 321J.2 (2001). AFFIRMED.
Michael Norris of Norris Law Office, Des Moines, and James Sinclair of Sinclair and Associates, P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Romonda Belcher, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Defendant-appellant Christopher Boyce appeals his conviction and sentence by the district court for operating a motor vehicle while intoxicated, in violation of Iowa Code section 321J.2 (2001). Defendant argues on appeal the arresting officer performed an illegal stop of his car, and he was denied his section 804.20 rights. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
On June 1, 2002 at approximately 2 a.m. Officer Brent Koch of the West Des Moines Police Department was dispatched to Scenic Valley Drive where an accident had been reported. At the accident scene was a red Mustang. It appeared to have been traveling on Scenic Valley Drive when it veered off the road into a driveway and front yard of a house, hitting a large boulder in the yard as well as one of the cars parked in the driveway, which then hit another car in front of it. Both airbags in the Mustang had been deployed. Officer Koch testified witnesses told him they saw someone in a white shirt and shorts get out of the Mustang and walk south. Officer Koch ran the license plate of the Mustang and discovered it was registered to defendant at an address about nine blocks east from the accident scene in the direction of a dead-end street. Officer Koch began driving in that direction. As Officer Koch approached the dead end he noticed a black Ford Explorer pull out of a driveway in the vicinity of the address shown on the Mustang's registration. The Explorer proceeded toward him on Scenic Valley Drive. Officer Koch ran the license plate of the Explorer and discovered it was registered to Mary Boyce. Officer Koch stopped the Explorer. The driver was wearing a white shirt and shorts. Officer Koch detected a strong odor of alcohol coming from the vehicle. The defendant identified himself, and Officer Koch asked him to perform field sobriety tests. Defendant said it was his red Mustang that was in the accident, and he was heading there to meet with the owner of the property. The defendant asked to call his lawyer at the time of the stop but was told he would have to wait until they got to the police station.
Officer Koch took defendant to the West Des Moines police station. Defendant requested to use the phone to call his mother and ask her to contact an attorney. Officer Koch testified defendant spoke with his mother three times, calling her at 2:39 a.m. and 3:26 a.m. and receiving a call from her at 3:05 a.m. Defendant's mother then came to the police station and told Officer Koch that no attorney would be arriving. Officer Koch requested defendant sign the implied consent form, but defendant refused. At 3:32 a.m. Officer Koch marked down that defendant refused to take a breath test.
II. SCOPE OF REVIEW
Our review of a district court's refusal to suppress the fruit of a search allegedly conducted in violation of constitutional guarantees is de novo. See State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997). Under this review, we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993). We give deference to the district court's fact-findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings. See Countryman, 572 N.W.2d at 557.
The Fourth Amendment imposes a general reasonableness standard upon all searches and seizures. State v. Scott, 409 N.W.2d 465, 467 (Iowa 1987). Generally, to be reasonable, a search or seizure must be conducted pursuant to a warrant issued by a judge or magistrate. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). One exception to the warrant requirement allows an officer to stop an individual or vehicle for investigatory purposes based on a reasonable suspicion that a criminal act has occurred or is occurring. Id.(citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). To justify an investigatory stop, the officer must be able to point to "specific and articulable facts, which taken together withrational inferences from those facts, reasonably warrant that intrusion." State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (abrogated on other grounds) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L. Ed.2d at 906). In determining whether the particular search or seizure is reasonable, the court judges the facts against an objective standard. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting a police officer, including all information available to the officer at the time the decision to stop is made. See id.
Our review of the trial court's refusal to grant defendant's suppression motion based on the statutory right to contact counsel and a family member is for errors at law. See State v. Palmer, 554 N.W.2d 859, 864 (Iowa 1996).
III. ANALYSIS
Reasonableness of Investigatory Stop. Defendant argues Officer Koch did not have reasonable and articulable suspicion to justify his stop of the black Ford Explorer. In support of his claim defendant argues Officer Koch admitted he had observed no criminal or suspicious activity by the driver of the Explorer when he initiated the stop. Defendant further argues the officer could not see the driver of the Explorer before pulling him over, nor was the car even registered to the defendant.
In spite of the fact that Officer Koch identified no criminal activity upon observing the Explorer, under the totality of the circumstances we conclude he had reasonable suspicion to justify the investigatory stop. Officer Koch was investigating an accident and seeking to find the driver of the Mustang who had left the scene of the accident. The Mustang had been traveling on Scenic Valley Drive, which is a dead-end road, when the accident occurred. Witnesses indicated that following the accident the driver got out of the Mustang and walked south from the accident. The car was registered to defendant at 1202 So. 24th Court. To reach defendant's address from the accident scene, one would travel east on Scenic Valley Drive toward the dead end, and south on 24th Court, also toward a dead end. In heading to the 24th Court address, Officer Koch saw the Explorer turn from a driveway in the vicinity of 24th Court onto Scenic Valley Drive and head west toward him. It was approximately 2:00 a.m., the car was coming from a dead end street, and there were no other cars on the street. Officer Koch ran the license plate and discovered it was registered to Mary Boyce. Officer Koch recognized the owner of the Mustang and the owner of the Explorer had the same last name. There were no other cars on the road or in such close proximity to the accident. Officer Koch had reasonable suspicion based on his ongoing investigation of the Mustang accident to initiate the stop of the Explorer and investigate its connection to the accident.
Section 804.20 Right to Contact Attorney and Family Member. Defendant's second claim is that his rights to contact an attorney and family member under section 804.20 were violated. Section 804.20 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.
Testimony indicated defendant called his mother at 2:39 a.m., that she called into the station and talked to defendant at 3:05 a.m., and that defendant called his mother again at 3:26 a.m. Defendant claims he notified Officer Koch during this last phone call that his mother was at the station. Officer Koch testified he had a conversation at the station with defendant's mother, and she said she was unable to contact an attorney. Hearing this information from Officer Koch, defendant reasserted that he would not take a breath test until he spoke with an attorney. At 3:32 a.m. Officer Koch marked down that defendant refused the breath test.
With respect to the right to contact an attorney, defendant argues Officer Koch should have offered him a telephone book or other means of contacting an attorney after learning defendant's mother could not contact one. Defendant argues he still had an hour before the statutory time period for taking the test had expired, and that Officer Koch noted his refusal prematurely. Iowa Code section 321J.2(8) provides for the presumption that an individual's alcohol concentration determined by a breath analysis within two hours after driving a motor vehicle is also the individual's alcohol concentration at the time the individual was driving the motor vehicle.
Officer Koch was fully cooperative with defendant's initial attempts to contact a lawyer. Officer Koch allowed defendant at least three conversations with his mother. When defendant's mother determined she could not contact a lawyer, Officer Koch immediately relayed that information to defendant. Defendant made no further effort to contact an attorney during any time remaining.
Section 804.20 does not provide for absolute right to counsel. Instead, it requires a peace officer to provide an arrestee with a reasonable opportunity to contact an attorney. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997). Further, an arrestee is not allowed to sabotage the purpose of Chapter 321B by delay. State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978) (interpreting section 755.17 (1977), from which section 804.20 was derived). In an OWI case, a defendant's right to consult a lawyer must be exercised within a period which will still permit a test to be taken. Id.
We conclude Officer Koch provided defendant with a reasonable opportunity to consult a lawyer pursuant to the requirements of section 804.20. Defendant spoke with his mother, who was attempting to find counsel, three times. Defendant was arrested in the early morning hours, his mother's attempts to find an attorney had been unsuccessful, and defendant made no request to use a phone book or alternative means of finding counsel. The testimony does not indicate Officer Koch told defendant he did not have the right to speak with counsel. We affirm on this issue.
With respect to defendant's claim that he was denied his right to contact a family member, we defer to the trial court's credibility determination that defendant did not ask to see his mother when she came to the station. In reviewing claims of errors at law, we defer to the fact-findings of the district court if they are supported by substantial evidence. Iowa R.App.P. 6.14(6)( a). The evidence shows the officer was cooperative in allowing defendant to contact his mother, and the officer testified he would have allowed defendant to see his mother if he had asked. The district court found this evidence more credible than defendant's claim that he asked to see his mother but was refused. We affirm on this issue.