Marcus Darrell Eugene Luthi v. Client Neis, in his official and individual capacities, and Wapello County, Iowa ( 2021 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 20-1270
    Filed November 3, 2021
    MARCUS DARRELL EUGENE LUTHI,
    Plaintiff-Appellant,
    vs.
    CLINT NEIS, in his official and individual capacities, and WAPELLO
    COUNTY, IOWA,
    Defendants-Appellees.
    ________________________________________________________________
    Appeal from the Iowa District Court for Wapello County, Joel D. Yates,
    Judge.
    Marcus Luthi appeals the district court’s grant of summary judgment to
    defendants. AFFIRMED.
    Billy J. Mallory of Brick Gentry, P.C., West Des Moines, for appellant.
    David E. Schrock of Smith Mills Schrock Blades P.C., Cedar Rapids, for
    appellees.
    Heard by Vaitheswaran, P.J. and Schumacher, J. and Gamble, S.J.*
    *Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2021).
    2
    SCHUMACHER, Judge.
    Marcus Luthi appeals from the district court’s grant of summary judgment,
    arguing the court erred in finding he had no right to a private phone call with his
    attorney before deciding to submit to chemical testing and his conversation was
    not subject to a reasonable expectation of privacy. We find the district court
    correctly determined Luthi’s conversation was not confidential under Iowa Code
    section 804.20 (2019) or the Iowa Constitution and was not subject to a reasonable
    expectation of privacy.1 Accordingly, we affirm.
    I.    Facts & Prior Proceedings
    On June 10, 2018, Wapello County Sheriff Deputy Clint Neis was
    dispatched to a single-vehicle motorcycle accident. At the scene, Neis found the
    driver of the motorcycle, Luthi, lying in the grass off the roadway near his damaged
    motorcycle.2 Neis called paramedics and Luthi was taken to the hospital for
    evaluation.
    At the hospital, Neis interviewed Luthi about the accident. Neis recorded
    his interactions with Luthi using a handheld recording device issued to him by the
    sheriff’s department. Neis asked Luthi if he would be willing to consent to a
    preliminary breath test (PBT).     Although he initially refused the PBT, Luthi
    subsequently provided a breath test that revealed a blood alcohol level over the
    1 Luthi initiated suit on March 1, 2019, against Deputy Neis in his official and
    individual capacities and Wapello County. We refer to the defendants collectively
    as Neis.
    2 At the time he was located, Luthi was unconscious.           After Luthi regained
    consciousness, Neis indicated he detected an odor of alcohol on Luthi’s breath
    and discovered a full can of beer in a koozie personalized with Luthi’s name a short
    distance from where Luthi was located.
    3
    legal limit. Luthi was taken into custody for suspicion of operating a motor vehicle
    while intoxicated (OWI) and transported to the law enforcement center for a breath
    test.
    At the law enforcement center, Luthi was placed into an intake/custody
    room. From the record provided, the cameras and monitoring equipment are
    visible in the interior of the custody room. The custody room contains conspicuous
    posts stating, “Phone calls will be recorded and/or monitored.” Additional notices
    posted outside the custody room read, “Premises is Subject to Video and Audio
    Surveillance.” Neis told Luthi he would leave the room so he could speak privately
    to his attorney and then exited the room. While in the custody room, Luthi spoke
    with his attorney on his cell phone for approximately twenty-two minutes before
    Neis re-entered the room with paperwork and a handheld recording device. Luthi
    informed Neis that his attorney wanted to speak with him.          Neis placed his
    paperwork and recording device on the table, unconcealed, when Luthi handed
    Neis his cellphone. The handheld device was recording. Neis briefly spoke to
    Luthi’s attorney and returned the phone to Luthi, who continued his conversation
    with the attorney. Neis exited the room without his paperwork and recording
    device. The recording device remained on the table near Luthi and continued to
    record. The device captured Luthi’s conversation and the audio output from his
    phone.3 Neis re-entered the room after Luthi talked to his attorney another five
    minutes, informed Luthi he needed to make a decision on testing, and exited the
    room again after Neis indicated he needed more time. Luthi ended the phone call
    3   The recording from the handheld device is not contained in the record on appeal.
    4
    with his attorney one minute later. Neis returned to the intake room to provide the
    informed consent about two minutes after Neis terminated his phone call with his
    attorney.
    On March 1, 2019, Luthi filed suit against Neis individually and as a deputy
    of the Wapello County sheriff’s department and against Wapello County as Neis’s
    employer.   Luthi claimed a violation of Iowa Code chapter 808B, invasion of
    privacy, and governmental subdivision tort liability under Iowa Code chapter 670.4
    On October 25, Luthi filed a motion for summary judgment. On January 22,
    2020, the district court denied the motion and found Luthi had not met his burden
    in establishing a reasonable expectation of privacy. The defendants subsequently
    filed their own motion for summary judgment on June 26.5 Following hearing, the
    district court issued a written order on October 1, finding Luthi had no right to a
    private phone call with his attorney and his conversation was not subject to a
    reasonable expectation of privacy. The court granted summary judgment and
    dismissed Luthi’s claims. Luthi appeals.
    III.   Discussion
    On appeal, Luthi challenges the district court’s grant of summary judgment
    and the district court finding that his attorney-client phone call made while in
    custody and before deciding to submit to chemical testing was not confidential or
    subject to a reasonable expectation of privacy. Luthi claims genuine issues of
    4 The case was briefly removed to federal court before being remanded for lack of
    jurisdiction due to the absence of a federal question.
    5 The defendants filed a motion for judgment on the pleadings on March 4. The
    district court denied the motion finding that judgment on the pleadings was not the
    proper vehicle for disposition of the case.
    5
    material facts distinguish his claim from similar cases interpreting the privacy
    afforded to in-custody phone calls and argues his conversation was subject to a
    reasonable expectation of privacy because it occurred on his private cell phone
    while officers were out of the room and was recorded by a handheld device that
    captured the audio output from his phone, including his attorney’s side of the
    conversation.
    In its ruling, the district court found the factual disputes alleged were not
    material to the arguments of the parties and summary judgment was appropriate.
    The court concluded that as a matter of law, Luthi’s conversation was not
    confidential or otherwise privileged, as section 804.20 does not afford the right to
    a private phone call with an attorney and the right to counsel under the Iowa
    Constitution does not attach to a detainee’s decision to submit to chemical testing.
    Finally, the court found that Luthi had no reasonable expectation of privacy as in-
    custody phone calls are not intended to be private, and Luthi was on notice that
    the custody room was subject to monitoring.
    A.       Standard of Review
    Summary judgment rulings are reviewed for correction of errors at law.
    Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 
    925 N.W.2d 793
    , 800
    (Iowa 2019). “We review rulings interpreting a statutory privilege for correction of
    errors at law.” 
    Id.
     “The district court’s interpretation of Iowa Code section 804.20
    is reviewed for errors at law.” State v. Walker, 
    804 N.W.2d 284
    , 289 (Iowa 2011).
    The appropriateness of the district court’s decision turns on the correctness of its
    interpretation of the relevant statutes. State v. Meyers, 
    938 N.W.2d 205
    , 208 (Iowa
    2020); State v. Mathias, 
    936 N.W.2d 222
    , 226 (Iowa 2019).
    6
    Summary judgment is appropriate when there is “no genuine issue as to
    any material fact and that the moving party is entitled to a judgment as a matter of
    law.” Iowa R. Civ. P. 1.981(3). An issue of fact is material when a dispute exists
    that may affect the outcome of the case, given the applicable governing law. Fees
    v. Mut. Fire & Auto. Ins. Co., 
    490 N.W.2d 55
    , 57 (Iowa 1992). That an issue is
    genuine “means the evidence is such that a reasonable jury could return a verdict”
    for the non-moving party. 
    Id.
     “Summary judgment is properly granted if the only
    controversy concerns the legal consequences flowing from undisputed facts.”
    Diggan v. Cycle Sat, Inc., 
    576 N.W.2d 99
    , 102 (Iowa 1998). The court views the
    evidence in the light most favorable to the nonmoving party. Linn v. State, 
    929 N.W.2d 717
    , 730 (Iowa 2019).
    B.     Right to private attorney-client phone call
    Iowa Code section 804.20 pertains to “communications by arrested
    persons” and 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. If such person is intoxicated, or a
    person under 18 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 reasonable delay. A violation of this section
    shall constitute a simple misdemeanor.
    (Emphasis added).
    7
    Section 804.20 affords a detainee the right to call an attorney before
    deciding whether to submit to chemical testing. State v. Tubbs, 
    690 N.W.2d 911
    ,
    914 (Iowa 2005); State v. Vietor, 
    261 N.W.2d 828
    , 831 (Iowa 1978). However, the
    language of the statute qualifies this right and instructs that “[i]f a call is made, it
    shall be made in the presence of the person having custody of the one arrested or
    restrained.” 
    Iowa Code § 804.20
    .
    The case law interpreting section 804.20 makes clear that section 804.20
    does not afford the right to a confidential and private phone call with an attorney.
    The Iowa Supreme Court first construed the right to an attorney phone call under
    section 804.20 in State v. Craney and explained,
    [T]he telephone calls which section 804.20 assures to persons in
    custody are not intended to be confidential as is shown by the
    provision that they are to be made in the presence of the custodian.
    They are for the purpose of enabling the person to arrange for a legal
    consultation and assistance.
    
    347 N.W.2d 668
    , 678–79 (Iowa 1984).
    In Walker, our supreme court distinguished the scope of the right to an
    attorney phone call and an in-person attorney visit under section 804.20. 804
    N.W.2d at 291.      The court found that section 804.20 only affords a private,
    confidential attorney-client meeting to in-person visits and reiterated “the
    telephone calls which section 804.20 assures to persons in custody are not
    intended to be confidential . . . .” Id. (quoting State v. Craney, 
    347 N.W.2d 668
    ,
    678–79 (Iowa 1984)). As the court noted, it is for this reason “attorneys who
    consult by telephone with persons arrested for OWI typically tell their client to
    answer only ‘yes’ or ‘no’ to the attorney’s questions.” Walker, 804 N.W.2d at 291.
    The court again revisited section 804.20 in State v. Hellstern and stated that
    8
    section 804.20, “by its terms, affords no privacy to a person in custody during a
    phone call to their attorney.” 
    856 N.W.2d 355
    , 361–62 (Iowa 2014).
    Finally, and most recently, in State v. Sewell, the court reaffirmed that
    section 804.20 does not guarantee the right to a private phone consultation with
    an attorney stating, “Iowa law does not provide such a right because the statute
    provides that if a call to counsel is made, ‘it shall be made in the presence of the
    person having custody of the one arrested or restrained.’” 
    960 N.W.2d 640
    , 641
    (Iowa 2021) (quoting 
    Iowa Code § 804.20
     ).
    Additionally, Luthi’s conversation with his attorney was not otherwise
    confidential or subject to attorney-client privilege. The Iowa Constitution does not
    provide a detainee the right to consult privately with an attorney before deciding
    whether to consent to chemical testing.6 See 
    id.
     at 645ꟷ46 (adopting the plurality
    of the court’s opinion in State v. Senn, 
    882 N.W.2d 1
    , 31 (Iowa 2016) that the right
    to counsel under article I, section 10 of the Iowa Constitution does not attach to
    implied consent procedures and a detainee’s decision to submit to chemical
    testing).
    Therefore we agree with the district court that neither section 804.20 nor the
    Iowa Constitution afforded Luthi the right to a private and confidential phone
    conversation with his attorney before deciding whether to submit to chemical
    testing.
    6 Luthi does not claim any violation arising under the fifth and sixth amendments
    of the United States Constitution. Appellees removed the case to federal court
    asserting Luthi’s claims involving invasion of privacy and the right to counsel
    implicated federal question jurisdiction. In his motion to remand, Luthi specified all
    his claims were limited to State law.
    9
    C.     Reasonable expectation of privacy
    Luthi alleged a violation of Iowa Code chapter 808B and claimed an
    invasion of privacy.     “Section 808B.8 authorizes the victims of intercepted
    communications to bring ‘a civil cause of action against any person who intercepts,
    discloses, or uses’ an unlawfully intercepted oral communication.” Papillon v.
    Jones, 
    892 N.W.2d 763
    , 770 (Iowa 2017) (quoting Iowa Code § 808B.8). Iowa
    Code chapter 808B is “intended to protect reasonable expectations of privacy in
    oral communications.” Id. In order to establish a reasonable expectation of
    privacy, a plaintiff (1) must have exhibited a subjective expectation of privacy, and
    (2) that expectation must be one that society is prepared to recognize as
    reasonable. Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, 
    763 N.W.2d 250
    , 261 (Iowa 2009). To establish a tort claim for invasion of privacy a similar
    showing of a reasonable expectation of privacy is required. See Koeppel v. Speirs,
    
    808 N.W.2d 177
    , 181 (Iowa 2011) (explaining the first element of an invasion of
    privacy claim “requires an intentional intrusion into a matter the plaintiff has a right
    to expect privacy”).
    Luthi argues his conversation was subject to a reasonable expectation of
    privacy because it occurred on his private cell phone while officers were out of the
    room and was recorded by a handheld device that captured the audio output from
    his phone, including his attorney’s side of the conversation. The district court was
    not convinced these facts created a reasonable expectation of privacy. We agree.
    The alleged distinguishing facts here do not implicate or intrude on any
    greater expectation of privacy than what is reasonably expected while in custody.
    Multiple officers and jailers entered and exited the room throughout Luthi’s
    10
    conversation, and Luthi continued speaking with his attorney. It is unreasonable
    to expect privacy in a conversation when a third party is present. See Craney, 
    347 N.W.2d at
    678–79 (finding statements made by defendant to his attorney on the
    phone while in custody were not privileged because an officer was present).
    Further, Luthi was on notice that his conversations in the custody room were
    not private and were subject to monitoring. As we previously noted, cameras and
    monitoring equipment are clearly visible in the interior of the custody room. The
    custody room is posted with multiple conspicuous notices stating, “Phone calls will
    be recorded and/or monitored.” Additional notices are posted outside the custody
    room stating, “Premises is Subject to Video and Audio Surveillance.”
    Finally, the handheld device at issue only recorded that which was audible
    in the custody room.7     The device which recorded Luthi’s conversation is a
    standard handheld recording device with no greater capacity than what is
    commercially available to the public. The video monitoring equipment installed in
    the room also faintly captured the audio from Luthi’s phone. The handheld device
    furnished no greater intrusion of privacy than what Luthi was on notice for and what
    is expected while in custody.
    We find that Luthi did not have a reasonable expectation of privacy in his
    conversations while in the custody room. See State v. Fox, 
    493 N.W.2d 829
    ,
    7In Sewell, our supreme court cautioned that it was not deciding whether section
    804.20 permits law enforcement to monitor both ends of an attorney-client phone
    call made on a jailhouse phone. 960 N.W.2d at 646. In the present case, both
    ends of the conversation between Luthi and his attorney were recorded by the
    handheld device. However, this was not a result of the device monitoring both
    ends of the call. The call was placed on Luthi’s personal cell phone, and it appears
    Luthi enabled the volume to such a level as to be audible and recorded by the
    device.
    11
    831ꟷ32 (Iowa 1992) (finding inmate’s legitimate privacy interest in phone call
    placed while in custody not sufficient to establish a violation of the Fourth
    Amendment despite inmate not being aware phone calls were monitored).
    IV.   Conclusion
    We find no error in the district court’s grant of summary judgment. We agree
    that Luthi had no reasonable expectation of privacy in his phone call while in the
    custody room. Section 804.20 does not afford the right to a confidential attorney
    phone call. The right to counsel does not attach to implied consent procedures.
    Luthi was on notice the custody room was subject to audio and video monitoring.
    The handheld recording device did not intrude on any greater privacy interest than
    what is expected while in custody. Therefore, we affirm.
    AFFIRMED.
    Vaitheswaran, P.J., specially concurs; Gamble, S.J., specially concurs.
    12
    VAITHESWARAN, Judge (concurring specially).
    I specially concur. The deputy placed a recording device next to Luthi and
    near the cell phone Luthi used to speak to his attorney. The deputy told Luthi he
    would leave the room so Luthi could speak privately to his attorney. The district
    court stated whether Neis intentionally left the recording device on the desk was
    immaterial to the analysis.
    In State v. Lamoreux, 
    875 N.W.2d 172
    , 176–81 (Iowa 2016), the supreme
    court found no violation of Iowa Code section 804.20 (2013) “through the presence
    of an active audio and video system in the room where [the defendant] met to
    consult with his attorney when neither he nor the attorney requested the system
    be turned off or asked for a different room.” The supreme court left open the
    possibility that a surreptitious recording would alter the analysis. Lamoreux, 875
    N.W.2d at 180–81. In my view, this case raises a genuine issue of material fact
    as to whether the recording was made surreptitiously.         As Luthi suggests, a
    surreptitious recording could affect the expectation-of-privacy analysis in
    conjunction with Neis’ representation that the phone conversation would be
    private.
    That said, Lamoreux was a case involving an in-person meeting between
    the defendant and his attorney. See id. at 174–75. Recently, the supreme court
    drew a line in the sand between personal jail visits with an attorney and jail phone
    calls to an attorney. See State v. Sewell, 
    960 N.W.2d 640
    , 645 (Iowa 2021). The
    court stated “thirty-seven years’ worth of stare decisis cut against [the defendant’s]
    interpretation of section 804.20” as affording the defendant a right to a private
    phone call. 
    Id.
     The court left only one open question—what to do about recordings
    13
    of both sides of a phone conversation. 
    Id.
     That question cannot be answered here
    because, although the video and audio in the room picked up bits and pieces of
    the conversation with the attorney, the actual recording is missing. On this record,
    I agree Luthi failed to generate an issue of material fact concerning his expectation
    of privacy.
    14
    GAMBLE, Senior Judge (concurring specially).
    Marcus Luthi brought this civil action against Deputy Clint Neis under Iowa
    Code chapter 808B (2019). So while cases discussing Iowa Code section 804.20
    are instructive, they are not dispositive. Instead, this case falls under the privacy
    standards of chapter 808B.
    In this chapter 808B action, we must first ask whether the deputy
    intercepted an “oral communication” protected by chapter 808B. For purposes of
    chapter 808B, oral communication is “an oral communication uttered by a person
    exhibiting an expectation that the communication is not subject to interception,
    under circumstances justifying that expectation.” Iowa Code § 808B.1(8). To
    determine whether Luthi’s phone call with his attorney amounts to oral
    communication under chapter 808B, Luthi “must have exhibited a subjective
    expectation of privacy and that expectation must be one that society is prepared
    to recognize as reasonable.” See Iowa Beta Chapter of Phi Delta Theta Fraternity
    v. State, 
    763 N.W.2d 250
    , 261 (Iowa 2009).
    The majority is correct that section 804.20 does not afford the right to a
    confidential and private phone call with an attorney. This is true for three reasons.
    First, section 804.20 specifically provides, “If a call is made, it shall be made in the
    presence of the person having custody of the one arrested or restrained.” 
    Iowa Code § 804.20
    ; see State v. Craney, 
    347 N.W.2d 668
    , 678–79 (Iowa 1984)
    (holding telephone calls under section 804.20 are not intended to be confidential
    because they are intended to be made in the presence of the custodian). Second,
    calls under section 804.20 “are for the purpose of enabling the person to arrange
    for legal consultation and assistance.” 
    Iowa Code § 804.20
    . Third, section 804.20
    15
    also expressly provides, “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.” 
    Iowa Code § 804.20
    ; see State v. Sewell, 
    960 N.W.2d 640
    , 645 (Iowa
    2021) (“By contrast, . . . the statute expressly provides a right to a confidential
    consultation between an attorney and client at the jail to be conducted alone and
    in private.” (citation and internal quotations omitted)); State v. Hellstern, 
    856 N.W.2d 355
    , 361 (Iowa 2014) (same); State v. Walker, 
    804 N.W.2d 284
    , 291 (Iowa
    2011) (“The statute expressly provides for greater privacy when the attorney
    personally visits his client at the police station or other place of custody.”).
    But section 804.20 does not preclude Luthi’s reasonable expectation of
    privacy in this civil action under chapter 808B—because Deputy Neis did not follow
    the procedure proscribed in section 804.20. Rather than requiring the call to be
    made in his presence, Neis repeatedly stepped out of the booking room to let Luthi
    “speak with [his] attorney in private.”         And instead of allowing Luthi only a
    reasonable phone call to enable him to arrange for legal consultation as provided
    by section 804.20, Neis allowed Luthi to consult with his attorney on his personal
    cell phone for half an hour. Deputy Neis allowed Luthi to speak with his attorney
    on his personal cell phone rather than the booking room phone that could be
    monitored and recorded.       And while Neis’s recording is not contained in the
    summary judgment record, it is undisputed that it picked up the actual details of
    the conversation. The attorney’s side of the call is largely unintelligible on the jail’s
    surveillance video.     It is an open question whether section 804.20 permits
    monitoring both ends of the call. Sewell, 
    960 N.W.2d 645
    . Finally, even though
    the booking room was posted with signs giving notice of surveillance, monitoring,
    16
    and recording, the record would support a finding that Neis led Luthi to believe he
    could consult with his attorney privately on his personal cell phone even though
    section 804.20 only allows an attorney to “see” the client “alone and in private at
    the jail.” 
    Iowa Code § 804.20
    .
    Under the circumstances of this case, I believe the section 804.20 cases
    cited by the majority are distinguishable. See Sewell, 960 N.W.2d at 642 (noting
    the deputy denied Sewell’s request to call on his private cell phone and required
    him to call on the jail landline that recorded both sides of the call); State v.
    Hellstern, 
    856 N.W.2d 355
     359 (Iowa 2014) (noting the officer remained in the
    room during the person’s phone call with the attorney typing on a computer and
    perhaps taking notes and only leaving the room for about forty-five seconds);
    Walker, 804 N.W.2d at 291 (“[A]ttorneys who consult by telephone with persons
    arrested for OWI typically tell their client to answer only ‘yes’ or ‘no’ the attorney’s
    questions.); Craney, 
    347 N.W.2d at 679
     (noting the admission by the defendant in
    a phone call to his attorney was made in the presence of a police officer). In my
    view, these distinguishing facts are material and create genuine issue of fact
    whether Neis intruded on a greater privacy interest than would normally be
    expected during a suspect’s call to an attorney.
    I think we must turn our lens away from section 804.20 and properly refocus
    it on chapter 808B. Taking into consideration the privacy standard outlined in Iowa
    Beta Chapter, 
    763 N.W.2d at 261
    , I believe the actions of Deputy Neis created a
    genuine issue of material fact as to whether Luthi had a subjective expectation that
    his extended consultation with his attorney on his personal cell phone outside the
    presence of the deputy was private and confidential. See Iowa Code § 808B.1(8).
    17
    Viewing the record in a light most favorable to Luthi, I believe the question of
    whether his expectation is one that society is prepared to recognize as reasonable
    under chapter 808B should be answered after a trial. See Iowa Beta Chapter, 
    763 N.W.2d at 261
    .
    Next, we must determine if there is a fact question as to whether Deputy
    Neis willfully intercepted Luthi’s oral communication with his attorney.      Under
    section 808B.2 “willfully” means “purposeful conduct without a bad motive or a
    knowing unlawful component.” Papillon v. Jones, 
    892 N.W.2d 763
    , 722 (Iowa
    2017) (citation omitted). I agree with Judge Vaitheswaran that “this case raises a
    genuine issue of material fact as to whether the recording was made
    surreptitiously.” In my view, there is a genuine issue of material fact as to whether
    Deputy Neis willfully or purposefully intercepted an oral communication when he
    left his hand-held recorder on the desk within earshot of Luthi’s personal cell phone
    call with his attorney. Cf. State v. Lamoreau, 
    875 N.W.2d 172
    , 180 (Iowa 2016)
    (“Importantly, this case does not involve surreptitious recording of attorney-client
    conversations.”)
    For these reasons, I disagree with the majority’s analysis.
    However, I concur in the result because Luthi failed to generate a genuine
    issue of material fact on one essential element under section 808B.8(1). “To be
    civilly liable under the Iowa statute a person must use the intercepted oral
    communication.” Iowa Beta Chapter, 
    763 N.W.2d at 264
    . “We believe mere
    listening to the intercepted communication is not a use under the Iowa statute.
    Rather, a person must actively use the intercepted communication for civil liability
    to attach.” 
    Id. at 265
    .
    18
    Deputy Neis admits he listened to the recording of Luthi’s conversation with
    his attorney while he prepared his report. However, Neis stated in his affidavit and
    his suppression hearing testimony that he did not use anything from the audio of
    the conversation between Luthi and his attorney in any report or other
    documentation.     Moreover, it was not used in any manner in the criminal
    prosecution and was not introduced into evidence. And Luthi failed to dispute
    Neis’s affidavit or testimony.    See Slaughter v. Des Moines Univ. Coll. of
    Osteopathic Med., 
    925 N.W.2d 793
    , 808 (Iowa 2019) (“Summary judgment is not
    a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit,
    when a [nonmoving] party must show what evidence it has that would convince a
    trier of fact to accept its version of the events.” (citation and internal quotations
    omitted)). Therefore, there is no genuine issue of material fact whether Neis
    actively used the recording beyond merely listening to it. Accordingly, I concur
    with the result of this appeal affirming summary judgment.