Iowa Supreme Court adopts a position on suspects’ right to counsel that earlier fell short of a majority

by Rox Laird | June 9, 2021

Five years ago, a deeply divided Iowa Supreme Court issued a decision on the question of whether a drunken driving suspect was entitled under State statute or the Iowa Constitution to speak privately to an attorney by phone before deciding whether to consent to a blood-alcohol test.

A plurality opinion for three of the seven members of that Court said neither a State statute nor the Iowa Constitution provided appellant John Arthur Senn Jr. the right to a telephone consultation with a lawyer without a police officer overhearing his side of the conversation. The plurality opinion in the 2016 Senn case was written by Justice Thomas Waterman, joined by Justices Edward Mansfield and Bruce Zager. Justices David Wiggins, Brent Appel, and Daryl Hecht dissented. Chief Justice Mark Cady’s concurred in the plurality result only, not its opinion on the constitutional issue, leaving that question for another day.

That day came June 4 when the Supreme Court handed down its ruling in State v. Sewell that made the plurality opinion in State v. Senn, 882 N.W.2d 1 (Iowa 2016), the controlling precedent for all such cases in Iowa.

In the intervening five years, four members of the Senn court were replaced by new members. Only Justices Waterman, Mansfield and Appel remain on the Court today. Their new colleagues — Chief Justice Susan Christensen and Justices Christopher McDonald, Dana Oxley and Matthew McDermott — all joined Mansfield and Waterman in applying the reasoning of the 2015 Senn plurality opinion in the Court’s June 4 decision in Sewell.

Matthew Robert Sewell appealed a decision by the Dickinson County District Court denying his motion to suppress evidence from a chemical breath test used in this conviction for driving while intoxicated. Sewell argued that the test results should not be allowed in evidence because he was denied the right to confer in private with an attorney by phone before making the decision to submit to the test.

Sewell argued that a suspect’s confidential conversation with an attorney is protected by Article I, Section 10, of the Iowa Constitution, which states that “In all criminal prosecutions, and in cases involving the life, or liberty of an individual” the accused is entitled “to have the assistance of counsel.”

The Court, however, disagreed with Sewell’s position, citing the argument made by the plurality opinion in Senn five years earlier that the rights listed under Article I, Section 10, apply only in “actual court proceedings.” The State had not yet filed criminal charges at the time Senn was deciding whether to submit to a chemical breath test and, therefore, he was not entitled to counsel under Article I, Section 10.

“On balance, we believe the position taken by the Senn plurality is more persuasive as a matter of text and history,” Justice Mansfield wrote on behalf of the majority. “Accordingly, we adopt it here.”

Apart from his constitutional claim, Sewell also argued that under Iowa Code Section 804.20 he should have been allowed to make the call outside the presence of a police officer.

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. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained.”

Sewell argued that the statute should be read to mean that only when the call is “dialed” it shall be in the presence of the officer, after which the officer must leave. The State argued that “made in the presence” means the officer can listen while the caller talks to any family member or attorney.

The Court agreed with the State, but it cautioned that “we emphasize what is not before us. Sewell is not arguing that he had a statutory right to have only his end of the conversation monitored.” Although Dickinson County law enforcement recorded both ends of Sewell’s call, the Court said the question of “whether Section 804.20 permits that level of monitoring is not before us today.”

Justice Mansfield’s majority opinion regarding the statutory question was joined by all members of the Court. Justice Appel wrote separately to say he “reluctantly” agreed with the majority’s reading of the Section 804.20, while departing from the majority’s conclusion on the constitutional question.


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