A Court in Conflict? The Iowa Court of Appeals and Iowa Code section 804.20

It is time for Iowa Supreme Court to accept another appeal regarding an arrested individual's rights under Iowa Code section 804.20 to clear up an apparent conflict between various panels on the Iowa Court of Appeals.

Iowa Code section 804.20 states in relevant part:

"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 any 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. . . . " While this law seems relatively straight forward at first glance, decades of caselaw and hundreds of decisions of Iowa's Appellate Courts have been required to interpret the extent of ones rights and law enforcements obligations under this statute. Iowa Code section 804.20 may well be the single most litigated statute in the entire Iowa Code.

As it stands today an individual who has been placed under arrest is not required to be advised of the right to place phone calls but once the arrested person makes a request to place phone calls, law enforcement may not deny the request and must provide a reasonable opportunity to do so. This is relatively straightforward, however, room for disagreement and sometimes result oriented judicial decisions tend to spring from the grayer areas of this law. For example: What is a reasonable opportunity to place calls? What if the person asks to call someone other than an attorney or family member? How long must the person be allowed to call or consult with a family member or an attorney before the
officer may require a decision? It is in these relatively gray areas that the conflict and at times judicial thinking of various judges both at the appellate levels and the district court levels can reveal itself. There could be no better example of this phenomenan than in the two recent decisions by the Iowa Court of Appeals filed within two weeks of each other this month.

On October 1, 2008, the Iowa Court of Appeals panel of Sackett, Miller and Potterfeld, decided the case of State v. Ryan McKibbin (http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20081001/8-673.pdf?search=McKibbin#_1). The facts of McKibbin were that the defendant, following his arrest for OWI, requested to call a friend who was a local law enforcement officer. The arresting officer would not let him place that call but did advise him that he could place calls to a family member or attorney if he so desired. Mr. McKibbin was permitted to place telephone calls and was then required to make a decision regarding chemical testing. The defense in McKibbin unsuccessfully attempted to argue that pursuant to the Iowa Supreme Court decision of Didonato v. Iowa Department of Transportation, provided him the right to place a phone call to a friend even though the plain language of Iowa Code section 804.20 did not bestow that right. The Court of Appeals disagreed and Mr. McKibbin lost his appeal but the Court made sure to clarify what an officer is required to do whan an arrested person requests to place a call to someone other than a family member or an attorney. According to the McKibbin court "when an arrested person requests to make a call not permitted by section 804.20, such as a call to anyone other than a family member or attorney, an officer is required to advise the arrested person of, and allow the person to make, the calls that are permitted by the statute." This rule seems clear and is completely in line with what the Iowa Supreme Court said back in 1990 when it issued the Didonato decision. In Didonato the Iowa Supreme Court stated: "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. Nor would there be any difference if the request is to call a friend. In these circumstances the statute is implicated and the officer should then advise for what purpose a phone call is permitted under the statute."

The clarity provided in the McKibbin decision was soon muddied by a decision that one could not help but feel was nothing more than result-oriented judicial activism. Two weeks following the McKibbin decision, the Iowa Court of Appeals was presented with another appeal surrounding an individual's rights under Iowa Code section 804.20 in State v. Paul Garrity (http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20081015/8-786.pdf). This time, the issue was presented to a different panel of judges, Mahan, Vaitheswaren and newly sworn in Doyle. The resulting decision was in stark contrast and direct conflict with the McKibbin decision as well as the decision in Didonato. So much so, that one cannot help but wonder aloud if it was primarily driven by the fact that Mr. Garrity was a repeat drunk driving offender being charged with his 3rd offense. Following his arrest for OWI, Mr. Garrity requested to call an Iowa State narcotics officer in a hope to strike a deal and avoid jail. The arresting officer refused Mr. Garrity's request but never informed Mr. Garrity of his statutory right to call an attorney or family member. It was this failure to inform Mr. Garrity of who he could call and for what purpose that the defense argued violated Iowa Code section 804.20. From a straightforward reading of the afore-quoted Iowa Supreme Court's decision of Didonato this would appear to be an easy decision, the officer was required to advise Mr. Garrity that he could not call the officer but could call an attorney or family member. It seems relatively simple. Unfortunately for Mr. Garrity the panel of judges deciding his case didn't see it that way. Rather, they chose to rely on the Iowa Supreme Court decision of State v. Tubbs which was a rather peculiar case with a set of facts considerably different from to Mr. Garrity's. In Tubbs, the defendant was arrested for OWI after he fled from law enforcement and during sobriety testing, began to run around wild, shouting obscenities at the police officers, daring them to shoot him. He was ultimately arrested and taken to the hospital where he slipped in an out of consciousness during his contact with law enforcement. During a moment of consciousness he initially agreed to chemical testing but then changed his mind and asked to call his wife. The arresting officers were going to let him place the call until one of them remembered that a no contact order was in place and they refused to let him place the call. The defense in Tubbs argued that he should have been permitted to place that call but they DID NOT apparently argue that the officers should have advised him that he could call another family member or an attorney. The Supreme Court obviously held this was not a violation of Iowa Code section 804.20 since he was legally prevented from having contact with his wife. Rather than go with the straightforward language out of Didonato the Garrity panel elected to find Tubbs controlling and held that the arresting officer did not have to advise Mr. Garrity that he could call an attorney or family member but that he could not call the officer at that time.

Clearly the McKibbin and Garrity decisions are in direct conflict with each other. Is this due to a legitimate disagreement in interpretation of ones rights under Iowa Code section 804.20 or result-oriented judicial activism? We will never really know. However, one thing does appear clear, that is the Iowa Supreme Court needs to speak on this issue again to clear up what seemed to be chyrstal clear but has now become muddied uncertainty. The good news is that Mr. Garrity's attorney has voiced his intention to give the Iowa Supreme Court an opportunity to to do just that by requesting that they reverse the Iowa Court of Appeals decision on Further Review.