from the Iowa District Court for Grundy County, Jeffrey L.
Harris, District Associate Judge (motion to suppress) and
Bradley J. Harris, Judge (trial).
defendant appeals from his convictions for carrying weapons
and operating while intoxicated.
Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., Bower, J., and Blane, S.J.
Michael Ubben appeals from his convictions for operating
while intoxicated (OWI) and carrying weapons. He contends the
district court erred in not suppressing the gun found during
an allegedly unconstitutional search of his vehicle. He also
argues the arresting officer interfered with his statutory
right to make a phone call under Iowa Code section 804.20
(2016) and his refusal to take a breath test should have been
the gun was admissible as an inevitable discovery made during
the lawful inventory search of Ubben's truck. We also
find no violation of Ubben's rights under section 804.20
and, in addition, any alleged violation was harmless.
FACTS AND PRIOR PROCEEDINGS
on a cold Christmas Eve, December 24, 2016, Grundy County
Sheriff's Deputies Kirk Dolleslager and Josh Ritchey were
dispatched to a snow-covered, rural county road in response
to several reports. They found a truck parked "dead
center" in the middle of the road, still running, and
blasting loud music. The driver was "passed out" in
the driver's seat with his feet on the dash and a hat
pulled down over his face. Despite the loud music, it took
close to twelve minutes for the deputies to rouse the driver,
Ubben. In plain view from the windows of the
truck, the deputies could see packs of Busch Light beer, a
gun holster, and a magazine clip in a cup holder.
eventually was awakened. The deputies could smell alcohol
from outside the truck and on Ubben's person. The
deputies patted him down and placed him in a patrol car.
Ubben had slurred speech, bloodshot and watery eyes, poor
balance, and a poor grasp of the situation: he said he did
not know where he was, where he came from, or where he had
been going. He failed a horizontal gaze nystagmus (HGN) test.
He was unable to follow directions in reciting the alphabet
or counting numbers.
told the deputies he had a dead mountain lion in the back of
his truck but, despite deputies seeing beer, the holster, and
magazine clip, he denied having any alcohol or weapons. He
indicated he had a concealed carry permit. Eventually, he
told the deputies he had been hunting mountain lions in Utah.
One of the deputies administered a preliminary breath test
and found he had a blood alcohol level two times the legal
limit. Leaving Ubben in the patrol car, the two deputies held
a brief conversation, opened the doors of the truck, and
looked inside. They found a handgun lying on the
passenger's seat next to the passenger seat armrest. It
had no cover or case.
returned to the patrol car and informed Ubben he was under
arrest for OWI and for carrying weapons. Deputy Dolleslager
helped Ubben buckle his seatbelt and transported him to the
Grundy County jail while Deputy Ritchey stayed behind to
inventory and impound the truck. Ubben was charged with OWI
and carrying weapons.
suppression hearing, Deputy Ritchey testified it is the
policy of their law enforcement agency that vehicles are
inventoried and towed after an arrest unless circumstances
exist where the vehicle cannot be towed or it is located on
private property. He also testified because the truck was
"dead center" "in the middle of the traveled
portion of the gravel road," it had to be towed. He
testified he and Deputy Dolleslager discussed the situation
and he understood that Ubben was under arrest. He stated
deputies did not open the doors until he began his inventory
search. He then called for a tow truck and began making his
"tow report." Dashboard camera video shows Ritchey
readied his camera shortly after Deputy Dolleslager left with
Ubben and proceeded to photograph the exterior and interior
of the truck. The tow truck arrived about ten minutes later.
moved to suppress the gun, alleging the search of his vehicle
violated the Iowa and Federal Constitutions. He also asserted
he was denied his statutory right to make phone calls under
Iowa Code section 804.20 and his refusal to take a test
should have been suppressed. After a hearing, the district
court overruled the motion to suppress. The court found
"the peace officers were allowed to impound
defendant's vehicle under the facts of this case. The
inventory of defendant's vehicle was reasonable." In
addition, the court found, "The State's theory of
inevitable discovery would also support the
admissibility of the weapon as it was seized from
defendant's vehicle following the impound
inventory." (Emphasis added.) On the section 804.20
claim, the court found the officers "did nothing to gut
or eviscerate defendant's statutory rights . . . .
[A]lthough the defendant clearly indicated an interest in
calling an attorney, he inexplicably elected not to do so
even though Deputy Dolleslager repeatedly informed the
defendant of his right to call an attorney" or anyone
trial, Ubben raised his motion to suppress verbally again,
and the court reserved its ruling for the trial. Following a
trial on the minutes of evidence, the district court found
Ubben guilty of operating while intoxicated and carrying
weapons. There, the court found, in addition to the
inevitable discovery through the inventory search, the
vehicle search was justified by the vehicle exception to the
warrant requirement and ...