Iowa Code Section 804.20
The legislature in Iowa has mandated that law enforcement shall permit a detainee to call a family member or attorney. Iowa Code § 804.20. The purpose of section 804.20 is to afford detained suspects the opportunity to communicate with a family member and attorney. 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.
A violation of this rule can result in the suppress of evidence obtained after the rule was broken. This rule becomes particularly important in OWI cases when the officer is attempting to obtain a breath, blood or urine test after the arrest but before during the arrestee over to booking at the jail. An alleged violation of this rule in an OWI case was recently discussed in State v. Stephens, No. 13-1858, 2015 WL 1815969, at *2 (Iowa Ct. App. Apr. 22, 2015).
Before proceeding with a chemical test under the implied-consent statute, a law enforcement officer is not required to advise an arrestee of any right to counsel but is required to honor an arrestee's request to make a call to an attorney or family member. State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005).
Once the request has been made, however, the scope of the purpose for the call has been expanded beyond the specific content of the statute to any good-faith purpose. State v. Garrity, 765 N.W.2d 592, 596 (Iowa 2009).
Once the right to a call is invoked, the custodial officer cannot stand mute and ignore the request, but instead, the officer is obligated to direct the detainee to a telephone and invite the detainee to make a call or make the call himself. State v. Hicks, 791 N.W.2d 89, 96–97 (Iowa 2010). A call does not meet the requirements of the statute if the custodial officer is advised that the person called will be calling back or coming to the detention facility
A call does not meet the requirements of the statute if the custodial officer is advised that the person called will be calling back or coming to the detention facility in a time comfortably within the two-hour limit and the officer does not wait for the call or visit. Haun v. Crystal, 462 N.W.2d 304, 306 (Iowa 1980); Short v. Iowa Dep't of Transp., 447 N.W.2d 576, 578 (Iowa Ct.App.1989).
Presumably, an exception would exist if the call or visit was not forthcoming and the two-hour limit was about to expire. Violations of section 804.20 result in the application of the exclusionary rule. Garrity, 765 N.W.2d at 597.
The attorneys at McCarthy & Hamrock, P.C. represent clients charged with criminal offenses throughout Des Moines and Polk County, Iowa. Call today for a free and confidential consultation to discuss the facts of your case. Call (515) 279-9700 today.