State Of Iowa Vs. Scott Allen Hicks , 791 N.W.2d 89 ( 2010 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 09–1246
    Filed November 24, 2010
    STATE OF IOWA,
    Appellee,
    vs.
    SCOTT ALLEN HICKS,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Jackson County, David H.
    Sivright, Jr., Judge.
    Appellant seeks review of court of appeals’ decision to affirm the
    district court’s denial of appellant’s motion to suppress. DECISION OF
    COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
    REVERSED; CASE REMANDED WITH INSTRUCTIONS.
    David A. Lemanski, Dubuque, for appellant.
    Thomas J. Miller, Attorney General, Jean Pettinger, Assistant
    Attorney General, and Christopher M. Raker, County Attorney, for
    appellee.
    2
    BAKER, Justice.
    Appellant seeks further review of court of appeals’ decision to
    affirm the district court’s denial of appellant’s motion to suppress. The
    appellant sought to suppress evidence allegedly derived from an
    unconstitutional stop and evidence purportedly obtained after law
    enforcement denied appellant his right to call a family member as
    guaranteed by Iowa Code section 804.20 (2007).        We find the district
    court correctly determined the detaining officer’s stop of the petitioner to
    have been permissible, but the district court erred in holding that the
    appellant was afforded his section 804.20 rights.      The decision of the
    court of appeals is vacated, the district court’s judgment is reversed, and
    the case is remanded with instructions.
    I. Background Facts and Proceedings.
    Sergeant Kennie Sparks of the Maquoketa Police Department was
    on patrol in an unmarked police car during the early morning hours of
    August 23, 2008. Sparks observed a car weaving in his rearview mirror.
    The car was quickly approaching the rear of the officer’s car.      Sparks
    pulled over to allow the car to pass and then began to follow the car.
    While following the car, Sparks attempted to drive at the same speed as
    the vehicle in front of him, a police tactic known as pacing.      The on-
    board camera displays the squad car’s speed pursuant to GPS. While
    pacing the car, the camera showed the squad car was traveling thirty-
    four to thirty-six miles per hour. The speed limit was twenty-five miles
    per hour. In addition, the on-board camera also showed the car weaving
    and crossing the center of the road. Sparks then pulled the car over.
    Appellant, Scott Hicks, was operating the vehicle and was the sole
    occupant. When making initial contact with Hicks, Sparks detected the
    odor of beer coming from Hicks’s car.        Sparks observed Hicks had
    3
    bloodshot, watery eyes and slurred speech.        Inside the car were two
    open, half-full beer cans.    Sparks asked Hicks to take several tests.
    Hicks failed the horizontal gaze nystagmus test. Hicks agreed to take the
    walk-and-turn test; however, after struggling with his initial steps, Hicks
    refused to complete the test and admitted to Sparks that he had too
    much to drink. Hicks refused to take the remaining field sobriety tests
    and subsequently was arrested and transported to the Maquoketa Police
    Department.
    At the processing center, Sparks and Hicks engaged in numerous
    conversations, many relevant to Hicks’s right to communicate with a
    family member:
    HICKS: Can I call somebody to get me out?
    SPARKS: Yeah. I can let you make a call. Who would
    you like to call?
    HICKS: My girlfriend if she’s home or my mom?
    ....
    SPARKS: Who would you like to call?
    HICKS: Well, who can let me go home?
    SPARKS: Who can let you go home? Well, we can’t
    decide that yet.
    Officer Sparks then informed Hicks that pursuant to police
    department policy Hicks would not be released until he passed a breath
    test. If Hicks refused to submit to a breath test or failed to pass the test,
    he was informed he would be held until morning and then see the judge.
    HICKS: Can I have somebody called to get me out?
    Can I have my mom come get me?
    SPARKS: Not tonight. I can have you call her. Okay?
    HICKS: No. I want somebody to just let me take me
    home. I’ll go to her house. I don’t care. I’m not going to
    drink anymore.
    ....
    4
    HICKS: I just want to call my mom and have her come
    get me. My mom—not my girlfriend—my mom.
    SPARKS: I got to go through all this stuff first.
    HICKS: That’s okay. I’ll sign anything you want.
    ....
    Hicks ultimately announced he would no longer like to continue
    the implied consent process. Sparks insisted on completing the implied
    consent form. After the implied consent process was completed, Hicks
    again    refused     chemical   testing    and   engaged    in    non-relevant
    conversation.
    Hicks was charged with operating while intoxicated, second
    offense, in violation of Iowa Code section 321J.2(1)(a) and (b). Hicks filed
    a motion to suppress. First, Hicks alleged Sparks lacked probable cause
    to pull him over and all evidence subsequent to the improper stop should
    be suppressed. Second, Hicks alleged he was denied his statutory right
    to contact a family member afforded by Iowa Code section 804.20 and all
    evidence subsequent to his invocation of this statutory right should be
    suppressed.     The district court denied Hicks’s motion to suppress on
    each issue. The jury found Hicks guilty of operating while intoxicated,
    and Hicks stipulated to an earlier operating-while-intoxicated conviction.
    Hicks was sentenced to twenty days of incarceration and fined $2500.
    Hicks filed a timely notice of appeal. This appeal was routed to the
    court of appeals. The court of appeals affirmed the district court’s denial
    of Hicks’s motion to suppress, finding the arresting officer had
    reasonable suspicion to stop Hicks, and the officer did not violate Iowa
    Code section 804.20. We granted Hicks’s application for further review.
    II. Discussion and Analysis.
    A. Reasonable Grounds for Stop. Hicks argues Sparks did not
    have probable cause to stop his car, and therefore the district court
    5
    should have granted his motion to suppress evidence resulting from this
    improper stop. Because Hicks’s argument as to the validity of his stop
    raises a constitutional issue, our review is de novo.    State v. Kinkead,
    
    570 N.W.2d 97
    , 99 (Iowa 1997).
    To conduct an investigatory stop an officer must have a reasonable
    suspicion that criminal activity has occurred or is occurring. 
    Id. at 100
    (citing Terry v. Ohio, 
    392 U.S. 1
    , 21–22, 
    88 S. Ct. 1868
    , 1880, 
    20 L. Ed. 2d
    889, 906 (1968)). ―[T]he State must show by a preponderance of the
    evidence that the stopping officer had specific and articulable facts,
    which taken together with rational inferences from those facts, to
    reasonably believe criminal activity may have occurred.‖ State v. Tague,
    
    676 N.W.2d 197
    , 204 (Iowa 2004). Reasonable suspicion is evaluated in
    light of the totality of circumstances facing the officer at the time of the
    stop. 
    Id. The record
    contains evidence that creates a rational inference to
    believe Hicks may have been engaging in criminal activity. First, Sparks
    observed Hicks’s car swerving in Sparks’s rearview mirror. Then, after
    allowing Hicks to pass, Sparks observed Hicks’s car cross over the center
    of the roadway into an unmarked lane for oncoming traffic.         The on-
    board camera corroborates Sparks’s observation. Second, the on-board
    camera shows that Sparks’s squad car was traveling between thirty-four
    to thirty-six miles per hours in a twenty-five miles-per-hour speed zone
    while Sparks was pacing Hicks’s car.       The defendant challenges the
    validity of the pacing technique and the calibration of the GPS system;
    however, Sparks’s pacing and the GPS speed allows for a rational
    inference that Hicks was traveling in excess of the twenty-five miles-per-
    hour speed limit. See State v. Bedwell, 
    417 N.W.2d 66
    , 70 (Iowa 1987)
    (holding that an officer’s use of pacing was sufficient to permit a jury to
    6
    conclude the defendant traveled in excess of the twenty-five miles-per-
    hour speed limit).     We find the record shows that Sparks had a
    reasonable suspicion to stop Hicks; therefore, the district court properly
    denied Hicks’s motion to suppress on this issue.
    B. Statutory Right to Call a Family Member.             We review the
    district court’s interpretation of section 804.20 for errors at law. State v.
    Moorehead, 
    699 N.W.2d 667
    , 671 (Iowa 2005).             If the district court
    correctly applied the law, we then determine whether there is substantial
    evidence to support the court’s findings of fact. 
    Id. Hicks argues
    he was denied his statutory right guaranteed by Iowa
    Code section 804.20 to call a family member once detained by a police
    officer. Iowa Code 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.
    The right to call a family member is equally important as the right to call
    counsel.   State v. McAteer, 
    290 N.W.2d 924
    , 925 (Iowa 1980).            The
    statute does not require a police officer to affirmatively inform the
    detainee of his statutory right; however, the peace officer cannot deny the
    right exits. 
    Moorehead, 699 N.W.2d at 671
    . The guaranteed right is a
    limited one and only requires a peace officer to provide the suspect with
    a reasonable opportunity to contact an attorney or family member.
    Bromeland v. Iowa Dep’t of Transp., 
    562 N.W.2d 624
    , 626 (Iowa 1997).
    To determine whether Hicks was denied his right to contact a
    family member under section 804.20, two distinct inquiries are required.
    First, we must determine whether Hicks invoked his rights under section
    7
    804.20.    Second, we examine whether Hicks was afforded the rights
    section 804.20 guarantees. We examine these inquiries in turn.
    1. Invocation of statutory right. We have evaluated the sufficiency
    of a suspect’s invocation within two frameworks.          First, we have
    examined the clarity of the suspect’s request to determine if the suspect
    invoked his statutory right.     
    Moorehead, 699 N.W.2d at 672
    .         In
    Moorehead we held that a suspect invoked his section 804.20 right when
    the suspect asked a police officer, while detained in the back of a squad
    car, ―[W]ould it be possible for me to talk to my Mom when you call her to
    come pick [the car] up?‖ 
    Id. at 669.
    We concluded the suspect’s request
    invoked section 804.20 because ―Moorehead specifically, separately, and
    unequivocally requested to talk to his mother.‖     
    Id. at 672
    (emphasis
    added). Second, we have suggested invocation turns, in part, upon the
    suspect’s subjective purpose for requesting the phone call when we
    stated ―[w]e objectively consider the statements and conduct of the
    arrestee and peace officer, as well as the surrounding circumstances . . .
    in determining if a good faith request for counsel has been made.‖
    Ferguson v. Iowa Dep’t of Transp., 
    424 N.W.2d 464
    , 466 (Iowa 1988)
    (emphasis added).
    Addressing the clarity language first, we note that invocation of a
    suspect’s right to counsel under the Sixth Amendment of the United
    States Constitution currently turns upon the clarity of the suspect’s
    request.   Davis v. United States, 
    512 U.S. 452
    , 459, 
    114 S. Ct. 2350
    ,
    2355, 
    129 L. Ed. 2d 362
    , 371 (1994).      Davis requires the suspect to
    make an unequivocal or unambiguous request for counsel to invoke his
    Sixth Amendment right.     
    Id. Davis and
    its progeny sparked fervent
    debate amongst the Supreme Court and scholars as to whether a
    suspect’s right to counsel should turn on unequivocal requests for
    8
    counsel. See, e.g., 
    id. 512 U.S.
    at 
    469–70, 114 S. Ct. at 2360
    –61, 129 L.
    Ed. 2d at 378 (Souter, J., concurring in judgment) (arguing the majority
    penalizes persons that are poor with English, ignorant, or intimidated by
    police custody and that a clear, as opposed to ambiguous assertion, is
    not always apparent); Peter M. Tiersma & Lawrence M. Solan, Cops and
    Robbers: Selective Literalism in American Criminal Law, 38 Law & Soc'y
    Rev. 229, 249, 255 (2004) (arguing Davis fails to account for social
    normative behavior such as politeness, hedging, and deference to
    authority); see also State v. Effler, 
    769 N.W.2d 880
    , 896–98 (Iowa) (Appel,
    J., specially concurring) (expressing doubt that unequivocality should be
    the touchstone to trigger a constitutional right to counsel and suggested
    that some other framework might better protect persons’ constitutional
    rights), cert. denied, ___ U.S. ___, 
    130 S. Ct. 1024
    , 
    175 L. Ed. 2d 627
    (2009).     Moorehead’s reference to the suspect’s ―unequivocal‖ request
    may be innocuous; nevertheless, it points down a path we are hesitant to
    follow.
    The legislative purpose of section 804.20 is to afford detained
    suspects the opportunity to communicate with a family member and
    attorney.    See 
    Vietor, 261 N.W.2d at 831
    .    We think the best way to
    further this statutory purpose is to liberally construe a suspect’s
    invocation of this right.   See 
    Effler, 769 N.W.2d at 896
    –98 (Appel, J.,
    specially concurring); State v. Chew, 
    695 A.2d 1301
    , 1317–18 (N.J. 1997)
    (―Because the right to counsel is so fundamental, an equivocal request
    for an attorney is to be interpreted in a light most favorable to the
    defendant.‖). A detainee’s invocation of section 804.20 should not turn
    on the grammatical clarity of the detainee’s request.      See 
    Effler, 769 N.W.2d at 896
    –97 (Appel, J., specially concurring). Nor do we believe the
    statute authorizes law enforcement to make discretionary decisions as to
    9
    whether a detainee invoked this statutory right. See State v. Garrity, 
    765 N.W.2d 592
    , 596–97 (Iowa 2009). In order to further the purpose of the
    statute and ensure suspects are afforded their statutory right, we hold
    that when a suspect ―restrained of [his] liberty‖ makes a statement that
    can reasonably be construed as a request to communicate with family
    members or an attorney, the suspect has invoked his section 804.20
    right to communicate with family or counsel. By providing detainees this
    statutory right, the legislature has deemed that a detainee’s right to
    communicate with family or counsel to be a tolerable burden upon law
    enforcement and suitably balances the state’s law enforcement needs
    with the right of the accused.           Our construction concerning the
    invocation of section 804.20 upholds this balance.
    Turning to the good-faith aspect of an invocation of section 804.20
    rights, we observe that this requirement does not have any statutory
    textual support, nor does Ferguson cite to any authority while casually
    requiring the suspect’s request to be made in good-faith. See 
    Ferguson, 424 N.W.2d at 466
    . Although the good-faith requirement has been often
    cited, it has never been relied upon as a basis for our decision. See, e.g.,
    
    Garrity, 765 N.W.2d at 597
    ; 
    Bromeland, 562 N.W.2d at 626
    .               The
    authority upon which the good-faith language rests is questionable. In
    our most recent case dealing with this statute, we noted that this
    requirement is extremely limited as shown by an example of a purpose
    that would not be in good-faith, i.e., if the suspect wanted to order a
    pizza—a clearly frivolous purpose.       
    Garrity, 765 N.W.2d at 596
    .    The
    reasoning implicit in our example in Garrity is our concern about
    authorizing law enforcement’s discretionary power to determine what is
    or is not a ―good-faith‖ motive for a suspect’s phone call. Vesting law
    enforcement with this authority in effect conditions a suspect’s section
    10
    804.20 rights upon autonomous, and possibly self-interested, discretion.
    Marcy Strauss, The Sounds of Silence: Reconsidering the Invocation of the
    Right To Remain Silent Under Miranda, 17 Wm. & Mary Bill Rts. J. 773,
    814–15 (2009) (noting that police discretion and authority leverage
    permits officers to put off the will of the suspect, ultimately depriving
    them of their right). Compounding our concern is the difficulty one faces
    in discerning a person’s singular purpose from their words.        Finally,
    section 804.20 does not contemplate such discretionary autonomy,
    simply stating that an officer ―shall permit‖ a detainee to ―call, consult,
    and see‖ family or counsel. Iowa Code § 804.20.
    We think the statutory limitation that the call, consultation, or
    visit must be with ―a member of the person’s family or an attorney‖
    sufficiently ensures the detainee’s request is related to seeking
    assistance or advice and not for some unrelated, frivolous purpose.
    Therefore, there is no need for law enforcement personnel to screen such
    requests to determine whether the request is made in good faith before
    honoring the request. We now abandon the good-faith requirement our
    prior cases had engrafted onto this statutory right.
    The present case illustrates the wisdom of this approach.      The
    district court found Hicks was not denied his rights under section
    804.20, primarily because Hicks’s motive for calling a family member
    was futile.    Throughout Hicks’s processing, Hicks expressed concern
    about whether he could go home.          Pursuant to police department
    procedures, Hicks would not be released until he could pass a breath
    test.   Hicks, however, repeatedly asked to call his mother, and within
    seconds of entering the processing room Hicks requested, ―Can I call
    somebody to come get me out?‖         Section 804.20 does not vest law
    enforcement with the authority to judge the merits of a detainee’s phone
    11
    call request other than a determination that the request is within the
    scope of section 804.20, i.e., directed to a family member or attorney.
    Hicks’s articulated purpose for calling his mother may have been futile,
    but whether Hicks’s mother could, in fact, get him out of jail was
    irrelevant. Hicks wanted his mother’s assistance, and his request to call
    his mother was precisely the right contemplated by section 804.20.
    Hicks invoked his rights under section 804.20. Because Hicks invoked
    section 804.20, we must now determine whether Hicks was afforded his
    statutory right.
    2. Reasonable opportunity.     We have stated that once section
    804.20 is invoked the peace officer must provide the detainee ―with a
    reasonable opportunity‖ to contact a family member or attorney.
    
    Bromeland, 562 N.W.2d at 626
    . In Bromeland, a peace officer located the
    home phone number of the suspect’s requested attorney, called the
    attorney, let the phone ring fifteen to twenty times, and asked the
    suspect if he wanted to contact another attorney. 
    Id. at 625.
    We held
    the officer provided the detainee a ―reasonable opportunity‖ to contact
    the attorney; therefore, the suspect’s statutory rights were not violated.
    
    Id. at 626.
    Beyond Bromeland, however, we have not had the chance to
    illuminate what actions an officer must take to satisfy section 804.20.
    The district court concluded ―that the record indicates Hicks was
    permitted numerous opportunities to exercise his rights under section
    804.20.‖   We disagree.   The district court noted that a telephone was
    located within reach of Hicks on the table where Sparks and Hicks were
    sitting, and that Sparks did nothing to deny Hicks the right to call his
    mother.    First, from reviewing the tape of the processing room, no
    telephone is visible in the room. A small portion of the four-person table
    where Sparks and Hicks sat, the corner farthest diagonally from where
    12
    Hicks was seated, was not shown on camera. If a telephone was located
    in that corner, it clearly was not within the reach or control of Hicks.
    Second, even if a phone was in reach, we do not think that alone suffices
    to provide a detainee a ―reasonable opportunity‖ to contact family.
    Section 804.20 states it only applies when a suspect is ―restrained
    of [his] liberty.‖    Hicks argues section 804.20, in order to provide
    detainees with a ―reasonable opportunity‖ to contact family or counsel,
    requires peace officers to take some affirmative action to permit the
    communication. We agree that section 804.20 requires law enforcement
    to take affirmative action to ensure the request for a phone call is
    honored. Because of the disparity in power between detaining officers
    and detained suspects during the detention process, no lesser standard
    is adequate. Requiring a suspect with restrained liberty to affirmatively
    pick up a police department’s telephone and contact family or counsel
    without invitation from the detaining officer transforms section 804.20
    into an illusory statutory right.
    Moreover,      requiring   affirmative   action   by   law   enforcement
    personnel is consistent with our precedent. See 
    Bromeland, 562 N.W.2d at 626
    (holding the police officer provided the detainee a reasonable
    opportunity after looking up the phone number of the detainee’s
    requested attorney and dialing the attorney’s phone number); Didonato v.
    Iowa Dep’t of Transp., 
    456 N.W.2d 367
    , 371 (Iowa 1990) (―But 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.‖). The
    legislature mandates law enforcement ―shall permit [the detainee] . . . to
    call‖ a family member or attorney. We hold that once section 804.20 is
    invoked, the detaining officer must direct the detainee to the phone and
    13
    invite the detainee to place his call or obtain the phone number from the
    detainee and place the phone call himself.
    During Hicks’s processing, Sparks never directed Hicks to the
    phone, asked Hicks for the name and number of his mother, or
    attempted to place the phone call for Hicks. Instead, Sparks elected to
    continue to delay Hicks’s requests by continuing with the booking
    process or engaging Hicks in Hicks’s often meandering conversation.
    Sparks failed to provide Hicks a reasonable opportunity to make a phone
    call to a family member as guaranteed by section 804.20.
    3. Exclusionary rule.        The remedy associated with a section
    804.20 violation is the exclusion of evidence, regardless of whether the
    detainee was denied his right to contact family or denied his right to
    consult with an attorney.            
    McAteer, 290 N.W.2d at 925
    .               ―The
    exclusionary rule extends to the exclusion of breath tests, breath test
    refusals, and non-spontaneous statements . . . .‖ 
    Garrity, 765 N.W.2d at 597
    .
    In his motion to suppress, Hicks asked the district court to
    suppress all statements made subsequent to his request to speak with
    his mother pursuant to the statutory exclusionary rule. The State did
    not argue the applicable scope of the statutory exclusionary rule at the
    time of the suppression hearing nor has it argued on appeal that some
    other exception permits the admission of the video after the invocation of
    Hicks’s right to make a call.1          Thus, the State has conceded that
    1We  have held that the exclusionary rule under section 804.20 does not extend
    to spontaneous statements.      In Moorehead, the State argued that incriminating
    statements made after a section 804.20 violation are still admissible because the
    statement was made spontaneously. 
    Moorehead, 699 N.W.2d at 675
    . We agreed with
    the State that spontaneous statements are not included within the scope of the
    statutory exclusionary rule and remanded the case to the district court to determine
    whether the defendant’s statements were spontaneous. 
    Id. 14 suppression
    of the video—from the point when Hicks first requests to
    speak with his mother, approximately fifty-eight seconds into the video—
    is an appropriate remedy if section 804.20 was violated.       See Hyler v.
    Garner, 
    548 N.W.2d 864
    , 876 (Iowa 1996) (―[W]e will not speculate on the
    arguments [the parties] might have made and then search for legal
    authority and comb the record for facts to support such arguments.‖);
    Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d. 239, 240 (Iowa 1974)
    (noting that we do not ―assume a partisan role and undertake [a party’s]
    research and advocacy‖).        We have concluded section 804.20 was
    violated; thus, all but the first fifty-eight seconds of the processing room
    video should be excluded. The exclusionary rule also requires evidence
    concerning Hicks’s refusal to submit to chemical testing to be excluded.
    
    Vietor, 261 N.W.2d at 832
    .
    C. Admission of Horizontal Gaze Nystagmus Testimony. Hicks
    objected to Sparks’s testimony about Hicks’s results on the horizontal
    gaze nystagmus test, alleging the test was not properly administered.
    Specifically, Hicks argues the test was unreliable because a strobe light
    was present while the test was administered and Sparks failed to use a
    contrasting background. The district court overruled Hicks’s objection.
    We review the admissibility of expert testimony for an abuse of
    discretion. State v. Murphy, 
    451 N.W.2d 154
    , 158 (Iowa 1990).
    We have stated ―that testimony by a properly trained police officer
    with respect to the administration and results of the horizontal gaze
    nystagmus test is admissible without need for further scientific
    evidence.‖    
    Id. Officer Sparks
    is an experienced officer and has been
    properly trained in administering the horizontal gaze nystagmus test.
    Thus, no further foundation is necessary for the scientific basis for the
    test.
    15
    The issue presented, however, is whether sufficient foundation
    existed that the test was properly administered and thus reliable. The
    district court allowed the testimony, but permitted Hicks to challenge
    Sparks’s testimony on cross-examination. We hold the district court did
    not abuse its discretion in overruling Hicks’s objection to Sparks’s
    testimony.    It was for the jury to decide the weight it would give to
    Sparks’s testimony. See State v. Stratmeier, 
    672 N.W.2d 817
    , 821 (Iowa
    2003) (―[A]ny challenge to the procedures used in obtaining the chemical
    test goes to the weight of the evidence rather than its admissibility.‖); see
    also State v. Balbi, 
    874 A.2d 288
    , 295 (Conn. App. Ct. 2005) (―Numerous
    courts have concluded that attacks on the administration of the
    horizontal gaze nystagmus test pertain to the weight rather than to the
    admissibility of the evidence.‖).
    III. Disposition.
    The State violated Hicks’s statutory right to call his mother. The
    remedy for a violation of section 804.20 is exclusion of any evidence
    gathered after invocation of the right. In this case, evidence of Hicks’s
    breath test refusal and the portion of the processing room video after
    Hicks asked to call his mother, approximately fifty-eight seconds into the
    video, should have been excluded. The district court erred in denying
    Hicks’s motion to suppress.         This error is not harmless, and thus we
    reverse and remand for a new trial.
    DECISION OF COURT OF APPEALS VACATED; DISTRICT
    COURT        JUDGMENT       REVERSED;         CASE     REMANDED       WITH
    INSTRUCTIONS.