Opinion
No. 5-354 / 04-1007
Filed August 17, 2005
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, (suppression motion), Judge, and Jane F. Spande (trial), District Associate Judge.
Kelly Dean Rooks appeals his conviction for operating while intoxicated, first offense. AFFIRMED.
Patrick O'Bryan, Des Moines, and Richard Pazdernik, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Harold Denton, County Attorney, and Brian D. Claney, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Kelly Dean Rooks appeals his conviction for operating while intoxicated (OWI), first offense. He claims the trial court erred in overruling his motion to suppress, arguing the stop of his vehicle was not supported by probable cause or reasonable suspicion and his rights under Iowa Code section 804.20 (2003) were violated. He also claims his conviction is not supported by substantial evidence. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following facts. On January 16, 2003, at approximately 1:16 a.m., Officer Ronald Slagle of the Marion Police Department pulled over a sport utility vehicle. Slagle testified he pulled the vehicle over because while he was approaching it from the opposite direction he saw it did not have its headlights on. The driver of the vehicle was later identified as the defendant, Kelly Rooks. Officer Slagle asked Rooks for his license and told him why he had been stopped. Slagle testified he detected a strong odor of alcohol on Rooks, his speech was slurred, and his eyes were red, watery and bloodshot. Slagle then moved Rooks to a sidewalk and asked him to perform three field sobriety tests. Slagle testified that Rooks failed all three tests. Slagle arrested Rooks for OWI.
While on the sidewalk for the field sobriety tests, and perhaps again after being placed in Officer Slagle's patrol car, Rooks requested to call his brother. Slagle advised Rooks he could not make a call at that point but that the place to make a phone call would be at the Linn County Jail. Deputy Daniel Williams processed Rooks at the jail. Rooks asked Deputy Williams to call attorney Fae Hoover-Grinde. Williams testified that he logs all requests for phone calls by arrestees on the processing report, including whether the call was completed. Williams recorded Rooks's request to call Hoover-Grinde on his processing report and that they could not find her phone number in the book so the call was not completed. He also recorded Rooks's request to call the public defender's office, which Officer Williams did. Rooks got an answering machine and left a message. The processing report prepared by Williams contains no record of any other requests for phone calls made by Rooks. Williams testified Rooks did not request any further calls.
Officer Slagle read the implied consent form to Rooks at 1:50 a.m. and Rooks consented to a breath test. Deputy Williams administered the test. It showed Rooks had an alcohol concentration of 0.191.
Rooks was charged by trial information with operating a motor vehicle while under the influence of an alcoholic beverage or while having an alcohol concentration of ten hundredths or more, in violation of Iowa Code section 321J.2. Rooks filed a motion to suppress evidence and subsequently amended the motion twice. His motion asserted, in relevant part, that the stop of his vehicle was made without probable cause and was thus in violation of his constitutional rights under the Fourth Amendment, and that the State violated his rights Iowa Code section 804.20 by not affording him the opportunity to call a family member after he arrived at the jail.
A hearing was held on the suppression issues relevant to this appeal. At the hearing both Rooks and his passenger at the time of the stop testified that the vehicle's headlights were on when Officer Slagle stopped them. Rooks also testified that he renewed his request to call his brother after he arrived at the jail. The district court denied Rooks's motion on the record at the close of the hearing and in a written ruling. In denying the motion the court concluded that Officer Slagle had sufficient reason to stop Rooks because the video tape of the stop supported Slagle's testimony that Rooks's headlights were not on at the time of the stop. The court also determined that, based on Deputy Williams's testimony and the requested and attempted calls that were logged on the processing report, the more credible evidence was that Rooks did not request to call his brother again at the jail. Rooks waived jury trial. Following trial to the court Rooks was found guilty of operating while intoxicated, both by operating a motor vehicle while under the influence of alcohol and by operating a motor vehicle having an alcohol concentration in excess of 0.100.
Rooks appeals the court's denial of his motion to suppress, arguing the court erred in finding there was probable cause for the stop and that the State did not violate Iowa Code section 804.20. He further contends there was insufficient evidence to support his conviction.
II. MERITS.
A. Probable Cause to Stop the Vehicle.
Rooks first argues that Officer Slagle did not have probable cause to stop his vehicle. This argument implicates Rooks's rights under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure. We review constitutional issues de novo. State v. Breuer, 577 N.W2d 41, 44 (Iowa 1998). In doing so, we make an independent evaluation of the totality of the circumstances as shown by the record. Id. We give deference to the district court's findings of fact because of its opportunity to assess the credibility of witnesses, but we are not bound by those findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). Evidence obtained in violation of the Fourth Amendment is inadmissible, regardless of its relevancy or probative value. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002).
The rights guaranteed by the Fourth Amendment apply to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1694, 6 L. Ed. 2d 1081, 1090 (1961).
Based on our de novo review of the record we, like the trial court, find Officer Slagle's testimony that the headlights of Rooks's vehicle were not on to be credible, despite the testimony of Rooks and his passenger to the contrary. The videotape of the stop supports Slagle's testimony. A traffic violation, however minor, gives an officer probable cause to stop a motorist. State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996). Driving on the roadway at night without lights is a violation of Iowa Code sections 321.384 and 321.415. Accordingly, Officer Slagle has probable cause to stop Rook's vehicle for this traffic violation when Slagle saw him coming toward him without his headlights on. The stop did not violate Rooks's rights under the Fourth Amendment.
Rooks next argues the district court erred in not finding that the State violated his rights under section 804.20 when the officers did not permit him a reasonable opportunity to call his brother or an attorney after he arrived at the jail. This issue involves the court's findings of fact and its application of a statute to the facts. The findings of fact underlying the district court's ruling on a motion to suppress which does not involve constitutional issues are binding on appeal if supported by substantial evidence. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990); see also Turner, 630 N.W.2d at 606 n. 2 (distinguishing the standard by which we review trial court's findings of fact in rulings on motions to suppress involving constitutional issues (deference to the trial court's findings) from the standard by which we review findings in rulings on motions to suppress not involving constitutional issues (binding if supported by substantial evidence)). Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Frake, 450 N.W.2d at 818. We review issues of statutory interpretation and application for errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).
Section 804.20 provides, in pertinent 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 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.
This section "is to be applied in a pragmatic manner, balancing the rights of the arrestee and the goals of the chemical-testing statutes." State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005). Under this provision a person has a limited statutory right to counsel before being required to take or refuse a chemical test. State v. Vietor, 261 N.W.2d 828, 831-32 (Iowa 1978). However, the statute does not provide an absolute right to counsel. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997). Section 804.20 only requires a peace officer to provide the arrestee with a reasonable opportunity to contact a family member or attorney. See, e.g., id. (holding statute requires peace officer to provide a reasonable opportunity to contact an attorney). Police have no duty to advise an arrestee of this right. See State v. Meissner, 315 N.W.2d 738, 740 (Iowa 1982); Vietor, 261 N.W.2d at 831. Ordinarily, this right to counsel is satisfied if an arrestee is allowed to make a telephone call to his attorney. Bromeland, 562 N.W.2d at 626; Ferguson v. Iowa Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1988). We conclude the right to consult with a family member is similarly satisfied if an arrestee is permitted to call a family member.
There is no dispute that while out in the field Rooks requested at least once to call his brother and Officer Slagle told him he would have to wait until he got to the jail. Rooks asserts that he renewed this request after he arrived at the Linn County jail, and was not permitted to make his call. However, neither Officer Slagle nor Deputy Williams could recall Rooks making such a request at the jail. Furthermore, as set forth above, Deputy Williams testified that he records all requests for phone calls from arrestees on his processing report and the report indicated Rooks only requested to call Fae Hoover-Grinde and the public defender's office.
We give deference to, and agree with the district court's credibility determination regarding the conflict between the testimony of Deputy Williams and Officer Slagle on the one hand and Rooks on the other concerning whether Rooks requested to call his brother after he arrived at the jail. There is no reason to believe that Williams would not also note on the processing report a request by Rooks to call his brother or would not have allowed him to call his brother when he noted the other calls Rooks requested and he allowed him to make those calls. Accordingly, we agree with the district court that the officers did not violate Rooks's rights under section 804.20 and thus the court was correct in denying Rooks's motion to suppress as to this ground.
The State reads Rooks's brief as also arguing that he was not provided a reasonable opportunity to call an attorney as required under section 804.20. The State argues Rooks failed to preserve error on this issue because it was neither raised nor ruled upon by the district court. See State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997) (error preservation rule requires issues must be presented to and passed upon by district court before they can be decided on appeal). We agree that there is a serious question of error preservation with regard to this issue. However, because we find this claim to be without merit we need not rest our determination on error preservation grounds.
Although we do not necessarily read Rooks's brief as raising any issue concerning denial of an opportunity to call an attorney, we nevertheless briefly address the issue.
It is clear from the record that Rooks was afforded a reasonable opportunity to call an attorney. He first requested to call attorney Hoover-Grinde. Deputy Williams tried to find her number in the phonebook but discovered it was not listed. Rooks then requested and was allowed to call the public defender's office, and he left a message. As set forth above, ordinarily that part of section 804.20 which relates to an attorney is satisfied if an arrestee is allowed to make a telephone call to his attorney. Bromeland, 562 N.W.2d at 626. This section does not provide an arrestee with an absolute right to talk to one particular attorney if that person is unavailable or unable to be reached. Id. C. Sufficiency of the Evidence.
Finally, Rooks argues there was not sufficient evidence for the court to find him guilty of OWI. Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002), and need not be repeated here. In addition, "We review a trial court's findings in a jury-waived case as we would a jury verdict: If the verdict is supported by substantial evidence we will affirm." State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000).
The district court found Rooks guilty of operating a motor vehicle both while under the influence of an alcoholic beverage under section 321J.2(1)(a) and while having an alcohol concentration of 0.100 or more under section 321J.2(1)(b). Rooks argues that the evidence of his breath test should have been suppressed and that the remaining evidence is insufficient to prove he was operating a motor vehicle while under the influence of an alcoholic beverage. As discussed above, we have rejected Rooks's argument that the results of his breath test should have been suppressed and thus the 0.191 test result clearly provides evidence which could convince the court, as fact finder, that Rooks was guilty beyond a reasonable doubt under section 321J.2(1)(b).
Furthermore, the State presented ample evidence that Rooks was under the influence of an alcoholic beverage as well. Officer Slagle's credible testimony established that Rooks was driving without his headlights on at night; he had slurred speech; there was a strong odor of alcohol coming from Rooks; he had red, watery, bloodshot eyes; and he failed three field sobriety tests. Thus, there was substantial evidence from which the district court to find, beyond a reasonable doubt, that Rooks was under the influence of an alcoholic beverage in violation of section 321J.2(1)(a).
III. CONCLUSION.
We conclude the district court did not err in denying Rooks's motion to suppress based either on a violation of his Fourth Amendment rights or his statutory rights under section 804.20. Officer Slagle had probable cause to stop Rooks's vehicle and Rooks was not denied a reasonable opportunity to call either a family member or an attorney after he arrived at the jail. We further conclude there is substantial evidence in the record such that the court could find beyond a reasonable doubt that Rooks is guilty of operating a motor vehicle while under the influence of an alcoholic beverage and while having an alcohol concentration of 0.100 or more.