IN THE SUPREME COURT OF IOWA
No. 82 / 05-1521
Filed August 24, 2007
STATE OF IOWA,
Appellee,
vs.
KEVIN KAWANZEL HARRIS,
Appellant.
________________________________________________________________________
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Marsha M.
Beckelman, Judge (motion to suppress) and Douglas S. Russell, Judge
(trial).
Criminal defendant appeals denial of his motion to suppress
evidence. DECISION OF THE COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Dennis D.
Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant
Attorney General, Harold Denton, County Attorney, and Susan Nehring,
Assistant County Attorney, for appellee.
2
STREIT, Justice.
What does a suspect in custody need to do to invoke his right to an
attorney? He just needs to ask for one. In the present case, the suspect
repeatedly requested to speak with an attorney. Instead of ending the
interrogation, the detective responded “You don’t trust us enough to do it
without a lawyer?” We find Kevin Harris’s Fifth Amendment right to the
presence of an attorney was violated when the detective continued to
interrogate him after he invoked this right. Moreover, the detective
violated Harris’s statutory right to contact a family member by refusing
to allow Harris to call his brother. Both violations require suppression of
Harris’s subsequent statements. It was error to deny Harris’s motion to
suppress. This error was not harmless. We remand for a new trial.
I. Facts and Prior Proceedings.
On January 6, 2003, at approximately 1:00 a.m., a 1995 Lincoln
Continental automobile parked on the side of a road in Cedar Rapids was
set on fire. The Cedar Rapids Fire Department and Police Department
responded. When the fire was extinguished, police and firefighters
discovered Joseph Harris’s burned body inside the vehicle. He had three
bullet wounds to the head. The authorities eventually assembled a case
against Miguel Jones and Kevin Harris.
Jones was arrested for arson. Harris eluded police until
August 23, 2004 when he was taken into custody after being arrested for
failure to appear. He was also held on a material witness warrant in
regard to the aforementioned homicide investigation. That morning,
Cedar Rapids Police Detective Doug Larison questioned Harris about his
role in Joseph’s death. Harris eventually admitted to witnessing
Joseph’s murder. According to Harris, Jones pulled out a gun and killed
3
Joseph while the three of them were in the Lincoln. Harris admitted
pouring gasoline over the interior of the vehicle and Joseph’s body and
lighting the gasoline with a cigarette lighter. He claimed he did so only
because he feared Jones would kill him too.
After Harris’s confession, he was charged with arson in the second
degree, a class C felony, in violation of Iowa Code sections 712.1 and
712.3 (2003) and obstruction of justice, an aggravated misdemeanor, in
violation of Iowa Code section 719.3. Harris filed a motion to suppress
his confession,1 arguing the detective violated his Miranda rights and his
statutory right to speak with a family member. See Iowa Code § 804.20.
The district court denied the motion. Harris waived his right to a jury
and stipulated to a bench trial on the minutes of testimony. He was
found guilty of both counts.
Harris appealed, arguing the district court erred by denying his
motion to suppress. He claimed the detective violated his Miranda rights
by continuing the interrogation after he requested an attorney.
Moreover, Harris alleged the detective violated Iowa Code section 804.20
when he denied Harris’s requests to call his brother. According to Harris,
both violations required his confession to be suppressed. The State
argued the detective did not violate Miranda because Harris’s requests for
an attorney were either (1) ambiguous, or (2) if unambiguous, Harris
subsequently waived his right to have an attorney present by initiating
further communication with the detective. The State conceded the
detective violated Iowa Code section 804.20. However, it argued
1Harris’s motion to suppress was filed more than forty days after his
arraignment. We agree with the district court there was good cause to accept the late
filing of the motion because newly appointed counsel needed time to receive and review
the nearly four hours of videotape. See Iowa R. Crim. P. 2.11(3), (4). Thus, error was
preserved and we do not reach the issue of ineffective assistance of counsel.
4
suppression of Harris’s statements was not the appropriate remedy.
Alternatively, the State argued it was harmless error for the district court
to admit Harris’s confession.
Harris’s appeal was transferred to the court of appeals, which
affirmed the district court’s denial of his motion to suppress. On further
review, we hold Harris’s Fifth Amendment right to have an attorney
present during interrogation and his statutory right to contact a family
member were violated. Harris’s motion to suppress should have been
granted. We remand for a new trial.
II. Scope of Review.
We review constitutional claims de novo. State v. Naujoks, 637
N.W.2d 101, 106 (Iowa 2001). Our review of the district court’s
interpretation of Iowa Code section 804.20 is for errors at law. State v.
Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).
III. Merits.
A. Miranda.
The Fifth Amendment of the United States Constitution guarantees
“[n]o person . . . shall be compelled in any criminal case to be a witness
against himself.” There is no similar provision in the Iowa Constitution
but the Fourteenth Amendment extends the privilege against self-
incrimination to state prosecutions. See Malloy v. Hogan, 378 U.S. 1, 6,
84 S. Ct. 1489, 1492–93, 12 L. Ed. 2d 653, 658 (1964).
In the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court held “the
privilege against self-incrimination is jeopardized” when an individual is
subjected to custodial interrogation. Miranda, 384 U.S. at 478, 86 S. Ct.
at 1630, 16 L. Ed. 2d at 726. “[T]he term ‘interrogation’ under Miranda
5
refers not only to express questioning, but also to any words or actions
on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Rhode Island v. Innis, 446
U.S. 291, 301, 100 S. Ct. 1682, 1689–90, 64 L. Ed. 2d 297, 308 (1980).
The Court in Miranda determined an individual in custody
must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires.
Miranda, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726; see
also Dickerson v. United States, 530 U.S. 428, 444, 120 S. Ct. 2326,
2336, 147 L. Ed. 2d 405, 420 (2000) (holding that because Miranda was
a constitutional decision, it cannot be overruled by an act of Congress).
The Court in Miranda dictated the subsequent procedure police
must follow if an individual invokes his Fifth Amendment privilege:
If the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease. . . . If the individual states that he
wants an attorney, the interrogation must cease until an
attorney is present. At that time, the individual must have
an opportunity to confer with the attorney and to have him
present during any subsequent questioning. If the individual
cannot obtain an attorney and he indicates that he wants
one before speaking to police, they must respect his decision
to remain silent.
Miranda, 384 U.S. at 473–74, 86 S. Ct. at 1627–28, 16 L. Ed. 2d at 723.
Absent a recitation of the Miranda warnings and a valid waiver of
the right to remain silent and the right to the presence of an attorney,
any statement made by an individual in response to custodial
6
interrogation is inadmissible. Id. at 476, 86 S. Ct. at 1629, 16 L. Ed. 2d
at 725; see Innis, 446 U.S. at 299–300, 100 S. Ct. at 1689, 64 L. Ed. 2d
at 307 (holding voluntary declarations made while in custody, whether or
not the Miranda warnings have been given, are admissible if they are not
made in response to police questioning). The State has the burden to
prove the individual “knowingly and intelligently waived” these privileges.
Miranda, 384 U.S. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724; see
Davis v. United States, 512 U.S. 452, 461, 114 S. Ct. 2350, 2356, 129
L. Ed. 2d 362, 373 (1994) (referring to a “knowing and voluntary waiver
of the Miranda rights”); State v. Lamp, 322 N.W.2d 48, 54 (Iowa 1982)
(stating a waiver “must consist of some affirmative conduct indicative of
voluntary, intentional, and knowing relinquishment of the right to
counsel; waiver cannot be presumed from inaction or mere silence”),
overruled on other grounds by State v. Heminover, 619 N.W.2d 353, 357
(Iowa 2000).
“[W]hen an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights.”
Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884–85, 68
L. Ed. 2d 378, 386 (1981). In other words, “an accused, . . . having
expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Id. at 484–
85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386 (emphasis added). “But even
if a conversation . . . is initiated by the accused, where reinterrogation
7
follows, the burden remains upon the prosecution to show that
subsequent events indicated a waiver of the Fifth Amendment right to
have counsel present during the interrogation.” Oregon v. Bradshaw,
462 U.S. 1039, 1044, 103 S. Ct. 2830, 2834, 77 L. Ed. 2d 405, 412
(1983). A valid waiver under these circumstances requires the individual
to “evince[] a willingness and a desire for a generalized discussion about
the investigation.” Id. at 1045–46, 103 S. Ct. at 2835, 77 L. Ed. 2d at
412.
With these principles in mind, we turn to the facts of this case. It
is undisputed Harris was subjected to custodial interrogation on
August 23, 2004. At approximately 8:49 that morning, the detective
began questioning Harris about the arson and homicide. The
interrogation was videotaped. Prior to any questioning, Detective Larison
read Harris the Miranda warning. Harris verbally agreed to answer
questions without counsel present, but he declined to provide a written
waiver of his Miranda rights.
At 9:50 a.m., after being questioned for approximately one hour
about the night of the murder, Harris said, “If I need a lawyer, tell me
now.” The detective responded, “That’s completely up to you” and
continued the interrogation. Harris’s statement was not sufficient to
invoke his right to the presence of an attorney. See State v. Washburne,
574 N.W.2d 261, 267 (Iowa 1997) (asking whether counsel is needed is
not sufficient to invoke right to counsel). Officers have no obligation to
stop questioning an individual who makes an ambiguous or equivocal
request for an attorney. Davis, 512 U.S. at 461–62, 114 S. Ct. at 2356,
129 L. Ed. 2d at 373. Thus, the detective was permitted to continue
questioning Harris after this exchange.
8
The detective told Harris his investigation had already revealed
Harris was involved and encouraged Harris to tell his “side of the story.”
Harris said he did not have a side of the story; he claimed to not know
what the detective was talking about and said he did not like the
detective’s “trick questions.” At 10 a.m., the detective asked again for
Harris’s “side of the story.” Harris replied, “I don’t want to talk about it.
We’re going to do it with a lawyer. That’s the way I got to go.” The
detective said, “What do you mean?” Harris responded, “You got all
these trick questions. I don’t understand.” The detective said, “You
want to do it with a lawyer, is that what you’re saying?” Harris replied,
“Yeah, because I don’t understand all these questions.”
Harris clearly and unequivocally requested an attorney at this
point in the interrogation. The Supreme Court has said “a suspect need
not ‘speak with the discrimination of an Oxford don.’ ” Id. at 459, 114 S.
Ct. at 2355, 129 L. Ed. 2d at 371 (quoting Justice Souter’s concurrence).
Instead, he must make “his desire to have counsel present sufficiently
clear[] that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.” Id. at 459,
114 S. Ct. at 2355, 129 L. Ed. 2d at 371.
At this juncture, Detective Larison properly stopped interrogating
Harris. He asked Harris if he had a lawyer. Harris said, “No, but I can
get one though.” The detective asked Harris if there was anyone in
particular he wanted to represent him. Harris replied, “Uh, I don’t know.
I got to find one. Get my people to find me one. And then we can get a
lawyer and then you can get my story.” Harris told the detective “Dave
Grinde” had previously represented him. The detective asked whether
Harris wanted him to call Mr. Grinde. Harris replied, “Yeah, because
9
these are trick questions. If you get my story out of me, I want my
lawyer to be there.”
Harris could not have been more clear—he wanted an attorney
present during police questioning. The detective was obligated to stop
questioning Harris regarding the arson and homicide. Miranda, 384 U.S.
at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723. Instead, the detective
continued the conversation by asking “You don’t trust us enough to do it
without a lawyer?” The State claims this question was a “rhetorical
question” or “a mere observation.” We do not find this question so
innocent. A police officer may not “cajole[]” a defendant into waiving his
Fifth Amendment rights. Miranda, 384 U.S. at 476, 86 S. Ct. at 1629, 16
L. Ed. 2d at 725. While it is good police practice to clarify an ambiguous
request, it is not appropriate to ask a suspect to justify his unequivocal
decision to have an attorney present.
By asking “You don’t trust us enough to do it without a lawyer?”
the detective deftly and subtly kept Harris talking. Shortly thereafter,
the detective resumed his interrogation. He said, “And you want to get
this behind you.” Harris replied, “Hell yeah.” The detective said, “And
get it out on the table. Tell us what really happened.” Harris responded,
“Yup, because I ain’t got time for this, man.” The detective then asked,
“Because you’re thinking what we’re hearing isn’t the accurate truth?”
This dialogue, initiated by the detective was impermissible because it was
“reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at
301, 100 S. Ct. at 1689–90, 64 L. Ed. 2d at 308. In Edwards, the
Supreme Court held once a suspect has invoked his Fifth Amendment
right to an attorney, he shall not be subject to further interrogation
unless he initiates further communication. Edwards, 451 U.S. at 484–
10
85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386; see Miranda, 384 U.S. at
474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723 (“Without the right to cut off
questioning, the setting of in-custody interrogation operates on the
individual to overcome free choice in producing a statement after the
privilege has been once invoked.”). Thus, Harris did not waive his
previously invoked right to have an attorney present when he responded
to the detective’s questions. See Edwards, 451 U.S. at 484, 101 S. Ct. at
1884–85, 68 L. Ed. 2d at 386.
It was also improper for the detective to delay calling the attorney
Harris requested by name as part of a strategy for interrogation.
Detective Larison told Harris, “We also need to go through the county
attorney because they’re the ones that make the final decision on who
gets charged, who doesn’t get charged, who gets charged with what.
They make the final decision on that, okay?” Harris replied, “Cool.” The
detective asked, “And so would you like me to call them too and let them
know you want to tell us exactly what happened with an attorney so that
we can make some kind of arrangement? Because you said you don’t
want to go to jail for this.” Harris responded, “No, not for nothing I didn’t
do, man.” The detective said, “If I were to tell you we were only interested
in the person who pulled the trigger.” Harris said, “Then I got you. I
promise you that.”
At approximately 10:18 a.m., after a bathroom break, the detective
said, “Let me call the county attorney and then we’re going to call your
attorney, just like you wanted.” The detective left Harris in the
interrogation room until approximately 11:37 a.m. when he returned
with the county attorney’s offer of testimonial immunity. After hearing
the offer, Harris said, “That’s bullshit, man. I need an attorney then.
11
That’s bullshit.” Harris explained his involvement was forced because he
was afraid of getting killed too. The detective explained the offer of
testimonial immunity again. The detective said, “Understand, you don’t
have to pull the trigger to be guilty of conspiracy to commit murder.” He
continued, “You have asked for an attorney already so if you want to tell
me what happened I have to make sure that you’ve changed your mind
and you don’t need an attorney here.” Harris replied, “Man, fuck the
attorney. I’m in the right as far as I’m concerned. I’m in the right.” The
detective asked, “You’re confident about that?” Harris said, “I’m confident
about that.” About ten minutes later, Harris acknowledged he was
present when Jones shot Joseph and admitted to starting the fire.
The State argues Harris waived his right to have an attorney
present with this exchange. However, it was inappropriate for the
detective to continue questioning Harris and as part of that questioning
to act as a conduit between the county attorney’s office and Harris, once
Harris requested an attorney. Any “deal” should have been negotiated by
the attorney Harris requested. There was no valid reason to continue
questioning Harris after his request to speak with Mr. Grinde. If Mr.
Grinde was unavailable, then Harris should have been returned to his
jail cell. It appears the detective was hoping Harris would keep talking
once he heard what the county attorney was willing to offer. That is
exactly what happened. Miranda and its progeny make clear an
interrogation must cease once the suspect requests an attorney.
Because the detective continued to interrogate Harris after he asked to
speak to an attorney, there was no valid waiver. See Edwards, 451 U.S.
at 484, 101 S. Ct. at 1884–85, 68 L. Ed. 2d at 386. Consequently,
Harris’s statements made after he unambiguously asked for an attorney
12
should have been suppressed. It was error to deny Harris’s motion to
suppress.
B. Statutory Right to Contact a Family Member.
Harris also argues his statutory right to contact a family member
was violated. Iowa Code 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. . . . A violation of
this section shall constitute a simple misdemeanor.
Iowa Code § 804.20. We have previously held section 804.20 does not
require a police officer to inform an individual in custody of his right to
contact counsel or a family member. State v. Stroud, 314 N.W.2d 437,
439 (Iowa 1982). “An officer may not, however, tell a defendant he does
not have such a right, and once the right is invoked the officer must give
the defendant the opportunity to call or consult with a family member or
attorney.” Moorehead, 699 N.W.2d at 671 (citing State v. Vietor, 261
N.W.2d 828, 831 (Iowa 1978)).
In the present case, Harris asked to call his brother about the
same time he began asking for an attorney. He said, “Yeah, I want to
talk to a lawyer. I want to talk to a lawyer and then I want to talk to my
brother.” The detective said he first needed to call the county attorney to
see if they could “make some kind of arrangement.” Harris replied, “I
know you got to do that. So, this is all I’m going to ask—to talk to the
lawyer, then talk to my brother.” After the detective accompanied Harris
to the bathroom, he escorted Harris back to the interrogation room where
Harris was left alone for approximately an hour and twenty minutes. At
one point, the detective checked on Harris and told him he was waiting
13
to hear back from the county attorney. Harris asked to use the phone.
The detective replied, “Not right now. The first thing I want to do is get
something from the county attorney.”
On appeal, the State concedes the detective violated Harris’s
statutory right to contact a family member. Thus, we are left to
determine the appropriate remedy.
We filed our opinion in Moorehead approximately two months
before the district court conducted a hearing on Harris’s motion to
suppress. In Moorehead, we held a statement obtained after an
“ ‘unnecessary delay’ ” in allowing a defendant to contact a family
member or attorney should be suppressed unless it was made
spontaneously. Moorehead, 699 N.W.2d at 675 (quoting Iowa Code
§ 804.20). Prior to Moorehead, we had “never declared that a violation of
section 804.20, which is not also a violation of Miranda, will in all
instances require suppression of a resulting confession.” State v.
Bowers, 661 N.W.2d 536, 541 (Iowa 2003).
The district court refused to apply Moorehead to the present case
because the opinion had “not yet been released for publication” and “was
released after the interrogation . . . .” Instead, the court relied on case
law, which was overruled in Moorehead, and ultimately concluded
Harris’s statements made after he was denied permission to call his
brother were admissible.
It was wrong to ignore Moorehead. Our opinions are binding on
Iowa’s courts as soon as they are filed.2 Iowa Rule of Appellate Procedure
2
Procedendo had not yet issued for Moorehead when the district court filed its
suppression ruling in this case because a petition for rehearing, which was ultimately
denied, was still pending. See Iowa R. App. P. 6.30 (“Unless otherwise ordered by the
supreme court, no procedendo shall issue for 15 days after an opinion of the supreme
court is filed, nor thereafter while a petition for rehearing, filed according to these rules,
is pending.”). Although some courts hold opinions are not binding until procedendo
14
6.14(5)(b), which states “unpublished opinions shall not constitute
controlling legal authority,” is not applicable to our authored opinions
because it defines “an ‘unpublished’ opinion [as] an opinion the text of
which is not included or designated for inclusion in the National Reporter
System.” (Emphasis added.) All of the supreme court’s opinions (with the
exception of per curium opinions) are published in the Northwest
Reporter. See Iowa R. App. P. 6.25. Courts may not ignore our opinions
pending Northwest Reporter citations. Under Moorehead, Harris’s
statements made after he first requested permission to speak to his
brother should have been suppressed because Harris was never given
the opportunity to call his brother.
C. Harmless Error.
The district court should have granted Harris’s motion to suppress.
The State argues it was harmless error to deny the motion. Most federal
constitutional errors, including the erroneous admission of evidence in
violation of a defendant’s Fifth Amendment rights, do not require reversal
if the error is harmless. State v. Peterson, 663 N.W.2d 417, 430 (Iowa
2003). “To establish harmless error, the State must ‘prove beyond a
reasonable doubt that the error complained of did not contribute to the
verdict obtained.’ ” Id. at 431. As for a nonconstitutional error, reversal
is “required if it appears the complaining party has suffered a
__________________________________
has issued, we think the better rule is opinions are binding the day they are filed
(unless we specifically provide a different effective date) and remain so until a petition
for rehearing is granted. See Stoke v. Converse, 153 Iowa 274, 276, 133 N.W. 709, 710
(1911) (“the granting of a rehearing has the effect to withdraw the opinion previously
filed . . . .”); Pitkin v. Peet, 96 Iowa 748, 751, 64 N.W. 793, 795 (1895) (“when the
rehearing was ordered, that opinion was suspended . . . .”). To hold otherwise would
allow meritless petitions for rehearing to delay the precedential effect of our decisions.
It would also elevate the importance of a procedendo when “[t]he entire purpose of a
procedendo is to notify the lower court that the case is transferred back to that court.”
In re M.T., 714 N.W.2d 278, 282 (Iowa 2006).
15
miscarriage of justice or his rights have been injuriously affected.”
Moorehead, 699 N.W.2d at 672.
While there was certainly other evidence to support the verdict,3
the district court’s findings of fact relied heavily on Harris’s confession.
We cannot say the confession had no affect on the verdict. Thus, a new
trial is required.
IV. Conclusion.
Harris’s Fifth Amendment right to an attorney and his statutory
right to contact a family member were violated. Both violations required
suppression of the statements made by Harris after he requested an
attorney and requested permission to call his brother. Thus, the district
court erred by not granting Harris’s motion to suppress. This error was
not harmless. We order a new trial.
DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND REMANDED.
3Harris and Jones were pulled over in a Jeep for speeding minutes after the
Lincoln Continental was set on fire. Harris, who was in the front passenger seat, was
wearing a white t-shirt with reddish-brown discoloration on the chest area. The ends of
his hair appeared to be singed. Harris was allowed to leave the scene. While the officer
was preparing traffic tickets for Jones, he heard over dispatch an attempt to locate a
vehicle matching the Jeep’s description. As a result, the officer continued to detain
Jones and the Jeep. The owner of the Jeep soon arrived at the traffic stop. He told the
officers that Harris had called him and instructed him to remove a coat and some keys
from the Jeep. He was not allowed to do so. An eye witness was brought to the scene
and identified the Jeep as the vehicle he saw leaving the fire. Police executed a search
warrant on the Jeep and found a gasoline can in the back of the Jeep. A burned nylon
parka was on top of the gasoline can. Officers found a set of keys belonging to the
Lincoln. Harris’s fingerprint was found on the rear hatch of the Jeep near where the
gasoline can was located. The owner of the Jeep later told officers he saw Jones and
Harris place the gasoline can into the Jeep on the evening of January 5, 2003.