State of Iowa v. Zachary Earl Brain

IN THE COURT OF APPEALS OF IOWA

No. 23-0446
Filed February 19, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ZACHARY EARL BRAIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Keokuk County, Crystal S. Cronk,

Judge.

On discretionary review, the appellant challenges the denial of his motion

to suppress. AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Heard by Greer, P.J., and Langholz and Sandy, JJ.
2

GREER, Presiding Judge.

After being nearly involved in a head-on collision, which resulted in injuries

to the driver of the other vehicle, Zachary Brain was investigated for driving while

under the influence of drugs or alcohol. As part of that investigation, officers spoke

with Brain on the scene, conducted standardized field tests and preliminary breath

tests, and then obtained a warrant for a bodily specimen from Brain. Pursuant to

the warrant, Brain completed a breath test, which showed a BAC of .175. After

being charged by trial information,1 Brain moved to suppress the evidence

obtained through his interactions with officers and the result of the breath test. The

district court denied Brain’s motion to suppress, and he sought discretionary

review, which our supreme court granted before transferring the case to us.

Here, Brain seeks suppression of the evidence via multiple theories. First,

he argues he was in police custody during the roadside investigation and subject

to interrogation without a Miranda warning, so his statements to officers (and

everything that followed from them) should be suppressed. Second, he argues it

is improper for officers to obtain an Iowa Code chapter 808 (2021) warrant for

bodily specimens and that obtaining a warrant instead of relying on implied consent

violates the constitutional guarantees of equal protection and due process. Third,

he urges the warrant in his case was not supported by probable cause, that the

officers who obtained it included material falsehoods in the application, and that

the warrant violated the particularity clause of the Fourth Amendment because it

1 Brain was charged with three counts of serious injury by vehicle, a class “D”

felony, under three separate theories of the crime, and one count of burglary in the
second degree.
3

allowed the troopers to decide on the type of bodily specimen. Finally, Brain

argues his statutory right to see a family member and consult an attorney was

violated. See Iowa Code § 804.20.

I. Background Facts and Proceedings.

At approximately 6:40 p.m. on December 21, 2021, Trooper Jacob

Vanderpol responded to a call for a possible “serious injury” accident. After arriving

at the scene and speaking to other emergency personnel, Vanderpol located Brain

and asked him to come back to his patrol car to sit. Almost immediately, Brain

described the accident as his fault.2 When asked if he had been drinking, Brain

said yes, that he had consumed a drink that was a mix of vodka and Red Bull, and

that he made it in a twenty-ounce cup, adding one small can of Red Bull and filling

the rest of the cup with vodka. Brain reported he had the drink about two and a

half hours before but, when asked what time he thought it currently was, he stated

it was 9:06. According to Vanderpol, the time was actually 7:07 p.m. Vanderpol

asked Brain to report his own level of intoxication on a scale from zero to ten; Brain

responded, “Two.” Having noted Brain’s bloodshot, watery eyes, Vanderpol asked

Brain to complete field sobriety tests. Brain initially resisted, mentioning his

adrenaline and that he felt uncomfortable at the scene.3 After further discussion,

2 Brain explained that he was in the left lane passing a semitruck on the two-lane

highway when he saw another vehicle driving straight toward him. He was in the
middle of the length of the semitruck; he could not re-enter his own driving lane.
Attempting to not hit each other head on, both Brain and the other driver left the
roadway. While Brain was able to get himself out of his vehicle and was up and
speaking, the other driver was ultimately extracted from his vehicle and eventually
taken by helicopter to the hospital.
3 At this point, the other driver was still being rescued from his vehicle; the medical

helicopter was not yet on scene but several emergency vehicles were present.
4

he submitted to the horizontal gaze nystagmus test before asking to return to the

patrol car to warm up. Vanderpol later testified that Brain showed six out of six

clues of intoxication.

While Brain sat in the patrol car, Vanderpol spoke to another trooper, who

reported he was able to smell alcohol coming from Brain’s person and that a

previously-opened bottle of whiskey was found in Brain’s truck.4 Vanderpol

returned to Brain and presented the option of leaving the scene and going to the

local law center to complete field sobriety tests. Brain interjected, “That’s fine.” At

about the same time, the medical helicopter arrived on the scene for the other

driver. At that point, Brain seemed to ask Vanderpol to take him to the law center,

saying “Take me up there buddy,” and “I gotta get out of here [be]cause this is

driving me fucking nuts, I feel like I killed a guy.”5

During the several minute drive to the law center, Vanderpol and Brain

casually chatted about things unrelated to the incident.

After they went inside the law center, Brain completed both the walk-and-

turn test and one-leg-stand test. At the suppression hearing, Vanderpol testified

Brain exhibited three of eight clues of intoxication on the first and three of four clues

on the second. Then Vanderpol asked Brain to complete a preliminary breath test.

After getting the result, Brain expressed disbelief at the level of his BAC, and

Vanderpol asked him if he wanted to try again. Brain said, “Yes, please,” and

Vanderpol administered a second preliminary breath test.

4 Trooper Vanderpol testified he had lost his sense of smell after having COVID-

19; he relied on the other trooper for this observation.
5 These statements are taken from the audio of Trooper Vanderpol’s dashcam

footage; we do not have a transcript of the audio.
5

Vanderpol then prepared a warrant application, asking for authorization to

obtain “[a] blood, urine, and/or breath specimen” from Brain. Vanderpol included

observations from the scene of the accident in the application, including that a

sergeant and a trooper smelled alcohol coming from Brain, that Vanderpol

observed signs of impairment, and that Brain admitted to drinking. Vanderpol

included the following “observations of impairment” in his application:

Vanderpol drove the paper warrant application to a magistrate while

Trooper Tracy Vanderwiel stayed with Brain at the law center. After the magistrate

issued the warrant, Vanderpol contacted Vanderwiel and told him he had a signed
6

warrant in hand and to get Brain’s breath specimen. At first, Brain indicated that

he would not comply with giving a breath sample. After Vanderwiel spoke to

Vanderpol again, Vanderwiel told Brain that refusing to comply with the warrant

could lead to a finding of contempt and jail time. Then, Brain submitted to a

DataMaster test of his breath specimen; his BAC was .175 at 9:16 p.m. When

Vanderpol returned to the law center, he placed Brain under arrest.

Brain moved to suppress evidence on several theories. Following a

hearing, the district court rejected each of Brain’s claims and denied his motion to

suppress. Specifically, the court ruled: (1) Trooper Vanderpol’s decision to obtain

a warrant for Brain’s breath specimen—rather than invoking implied consent under

chapter 321J—did not violate Brain’s equal protection rights; (2) Brain’s

section 804.20 rights were not violated because Brain retained his cell phone while

at the law center, was told he could use it as he wished, and Brain did use his

phone; (3) Vanderpol had probable cause to administer the preliminary breath

tests, to which Brain consented; (4) the fact that the warrant allowed the troopers

to decide on the type of bodily specimen to obtain and test (“[a] blood, urine, and/or

breath specimen”) did not make it so broad that it was an impermissible general

warrant; (5) Brain failed to establish his claim that his due process rights were

violated by Trooper Vanderpol’s failure to inform him of the possible uses of his

preliminary breath test results and his right to refuse the test; and (6) because the

investigatory stop of Brain did not evolve into police custody, he was not entitled

to Miranda warnings earlier in the encounter.6 Brain appeals.

6 Brain filed a motion to enlarge and reconsider, which the district court denied.
7

II. Standard of Review.

When reviewing the district court’s interpretation and application of

chapter 321J, our review is for the correction of errors at law. State v. Flynn, 13

N.W.3d 843, 846 (Iowa 2024).

“When a defendant challenges a district court’s denial of a motion to

suppress based upon the deprivation of a state or federal constitutional right, our

standard of review is de novo.” State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019)

(citation omitted).

III. Discussion.

A. Were Miranda Warnings Required?

“No person . . . shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. Recognizing the need for “adequate

safeguards to protect precious Fifth Amendment rights,” the Supreme Court

requires police officers to advise suspects of their Fifth Amendments rights before

custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 457 (1966). Police

must tell the individual

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.

Id. at 444. Statements made during custodial interrogation by an individual who

was not given Miranda warnings are inadmissible. See State v. Ortiz, 766 N.W.2d

244, 251 (Iowa 2009); New York v. Quarles, 467 U.S. 649, 654 (1984).
8

Miranda warnings are only required when an individual is “both in custody

and subject to interrogation.”7 State v. Park, 985 N.W.2d 154, 168 (Iowa 2023).

Here, the district court concluded the investigatory stop did not evolve into custody

until Brain was formally placed under arrest, so there was no violation of Brain’s

Fifth Amendment rights and suppression was not required. Brain argues he was

in custody at the scene when Vanderpol arrived and began investigating him for a

crime. He asks us to suppress his statements not only in a future criminal trial but

also for the purpose of Trooper Vanderpol’s warrant application.

“Custody means there was a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” Id. (cleaned up). We

use an objective test when deciding whether the individual was in custody; the

question is “if a reasonable person in the defendant’s position were to believe they

were in custody.” Id. “The test is based on ‘objective circumstances, not the

subjective belief of the officers or the defendant.’” Id. (citation omitted). And we

use four factors to guide our decision: “(1) the language used to summon the

individual; (2) the purpose, place, and manner of interrogation; (3) the extent to

which the defendant is confronted with evidence of her guilt; and (4) whether the

defendant is free to leave the place of questioning.” Id. (quoting State v.

Countryman, 572 N.W.2d 553, 558 (Iowa 1997)).

7 It is undisputed that Brain was subjected to interrogation. See Rhode Island v.
Innis, 446 U.S. 291, 301 (1980) (“[T]he term ‘interrogation’ under Miranda 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.” (footnotes omitted)). So, the question of whether Miranda warnings were
required for Brain’s statements to be admissible hinges on whether Brain was in
custody at the time he made them.
9

Brain argues he was in police custody immediately upon Trooper

Vanderpol’s arrival on scene because Trooper Vanderpol was investigating him

for a crime, he was not free to leave the area, and he could not unilaterally end the

encounter. But the fact that an individual is being investigated for a potential crime

while having less than absolute freedom of movement does not automatically

translate to “custody.” See Terry v. Ohio, 392 U.S. 1, 22 (1968); State v. Tyler,

830 N.W.2d 288, 293 (Iowa 2013) (“Our decisions have universally held that the

purpose of a Terry stop is to investigate crime.”). Courts have repeatedly held that

a person is not in custody for purposes of Miranda when they are briefly detained

in a traffic or Terry stop—a time when they are generally being investigated for a

possible crime and are not free to flee. See, e.g., Maryland v. Shatzer, 559 U.S.

98, 113 (2010) (“[T]he temporary and relatively nonthreatening detention involved

in a traffic stop or Terry stop does not constitute Miranda custody.” (internal citation

omitted)); State v. Scott, 518 N.W.2d 347, 350 (Iowa 1994) (“The temporary

detention of a motorist in an ordinary traffic stop is not considered ‘in custody’ for

purposes of Miranda.”). And asking the suspect questions relevant to the possible

crime and to participate in field sobriety tests does not necessarily convert the

encounter into “custody.” See In re S.C.S., 454 N.W.2d 810, 812–14 (Iowa 1990)

(applying Berkemer v. McCarty, 468 U.S. 420 (1984)). That said, “the evolution of

interrogation from ordinary fact-finding into a highly confrontational and

accusatorial proceeding [can] convert[] a voluntary encounter into a custodial

interrogation.” State v. Schlitter, 881 N.W. 2d 380, 407 (Iowa 2016) (Appel, J.,

dissenting in part), abrogated on other grounds by State v. Crawford, 972 N.W.2d
10

189, 202 (Iowa 2022). So, we consider the Countryman factors to determine

whether Brain was in custody before he was formally placed under arrest.

First, we assess the language Vanderpol used to summon Brain. We note

Vanderpol did not initiate a stop of Brain; he arrived on scene based on a report of

an accident, and Brain was already out of his truck on the side of the road. When

Vanderpol approached Brain, he asked Brain to sit in his patrol car—he did not

demand it. See State v. Tyler, 867 N.W.2d 136, 172 (Iowa 2015) (noting officers

did not demand the defendant speak with them). During their exchange, both

Vanderpol and Brain were polite and amiable toward each other. Vanderpol

expressed understanding of Brain’s feelings following the incident and sought

information about the condition of the other driver at Brain’s request; the two

chatted about other members of law enforcement they both knew, and Brain told

Vanderpol about his daughter and a recent trip they took for his job. Vanderpol

did not make a show of authority. When he first asked Brain about completing field

sobriety tests, Brain responded he did not want to but suggested it was because

of the chaotic nature of the scene and feeling uncomfortable with so many people

around to witness. Vanderpol gave Brain the option to go to the law center, and

Brain expressed that he wanted to do so. Vanderpol drove Brain to a second

location—a building that housed the local jail. But Brain rode in the front of the

patrol car with Vanderpol; he was not handcuffed, and he had control of his cell

phone. See id. (noting the defendant “was neither handcuffed nor forcibly placed

in the back of [the officer’s] vehicle”). The two walked into the law center through

a door open to the public and went to an unlocked room. Vanderpol retained his
11

general freedom of movement—he remained un-handcuffed, he got up and got

water multiple times, and he continued to hold and use his cell phone.

Moving a suspect from the public roadside to a second location that is less

observable by the public sometimes indicates a custodial interaction. Cf. S.C.S.,

454 N.W.2d at 813 (“[I]n a typical traffic stop a motorist does not feel completely at

the mercy of the police. . . . [T]he interaction between the motorist and the officer

is usually seen by pedestrians or other motorists. This public exposure reduces

the ability of an unscrupulous officer to use illegitimate means to elicit self-

incriminating statements.”). But in this specific case, Brain expressed he was cold

and that he was uncomfortable remaining at the scene. Vanderpol presented

going to the local law center as an option, and Brain affirmatively stated he wanted

to do so. The record shows that Brain voluntarily accompanied Vanderpol to the

law center. See State v. Smith, 546 N.W.2d 916, 923 (Iowa 1996) (“Although

coming to the [place of questioning] voluntarily is not alone enough to negate a

finding of custody, it is indicative of the state of mind of a reasonable person in the

situation.”); State v. Brown, 341 N.W.2d 10, 16 (Iowa 1983) (finding no custodial

interrogation where the defendant “accompanied officers to the police station

voluntarily and was at no time subjected to either physical or verbal restraint”).

Although Vanderpol’s motivation to move Brain to the law center may have been

to further his own investigation of the crime rather than Brain’s comfort, “[a]

policeman’s unarticulated plan has no bearing on the question whether a suspect

was ‘in custody’ at a particular time.” Berkemer, 468 U.S. at 442. This factor

weighs against custody.
12

Second, we consider the purpose, place, and manner of the interrogation.

At the suppression hearing, Vanderpol estimated that he responded to the call

about the accident at approximately 6:40 p.m., and Brain completed the

DataMaster test of his breath specimen at 9:16 p.m. and was formally placed under

arrest soon after—a period of less than three hours. See Countryman, 572 N.W.2d

at 558 (“The three-hour length of the conversation did not render it custodial.”);

Brown, 341 N.W.2d at 16 (finding no custody despite two and one-half hours of

questioning). While some of the interrogation took place at the law center, this

alone does not convert the encounter to “custody.” Tyler, 867 N.W.2d at 172. We

consider “factors including the number of persons conducting the questioning, the

number of breaks taken during the questioning, the availability of restroom breaks

or other breaks, and the type of questioning in which those conducting the

interview engage.” Id. at 172–73. The questioning was all conducted by one

person, Trooper Vanderpol. Vanderpol’s tone remained friendly and calm. The

two were engaged in conversation. And as already stated, Brain was allowed to

move around, including getting water as he wished, and he remained in

possession of his cell phone, which he appeared to use at will. This factor also

weighs against finding Brain was in custody.

Third, we consider the extent to which Brain was confronted with evidence

of his guilt. Vanderpol did not confront Brain—Brain freely made statements that

the accident was his fault, that he knew better, that he drank a mixed drink of vodka

and Red Bull, and that he was at a “two” on an intoxication scale of zero to ten.

And, when Brain expressed disbelief at the result of his first preliminary breath test,
13

Vanderpol offered him a second test rather than confronting Brain about the

reliability of the result. This also weighs against a finding of custody.

Finally, we consider whether Brain was free to leave the scene or the law

center during Vanderpol’s ongoing investigation. Brain was not free to unilaterally

end the encounter; he did not have a vehicle to leave the area and he would not

have been allowed to leave with someone else. But he was not handcuffed or kept

in a locked room; he retained freedom of movement within the trooper’s presence.

And Brain did not attempt to leave, so Vanderpol made no show of force; he did

not command Brain to stay or physically prevent him from exiting. While Brain

would not have been allowed to leave, “the degree of physical restraint imposed

during the interrogation” was small. See Countryman, 572 N.W.2d at 558. This is

not enough to convert the encounter into police custody for Miranda purposes.

Because Brain was not “in custody” before his formal arrest, there is no

basis to suppress his statements under Miranda.

B. The Search Warrant.

Next, Brain raises several challenges to the search warrant application and

the warrant that issued. He makes a combination of facial and as-applied

challenges.

1. Was the Warrant Supported by Probable Cause?

Brain argues “the district court made no determination of the sufficiency of

the warrant application, much less the falsity or misleading nature of the

information supplied the issuing judge to be stricken.”

A defendant can challenge a warrant either (1) by claiming the facts recited

in the affidavit attached to the warrant application do not establish probable cause
14

that the search will reveal evidence of a crime or (2) by challenging the veracity of

the warrant application itself when the defendant has reason to believe it contains

false or misleading statements. State v. Harbach, 3 N.W.3d 209, 217 (Iowa 2024).

When the defendant wishes to contest the validity of the warrant by challenging

the veracity of the warrant application, the defendant “must make a ‘substantial

preliminary showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in the warrant affidavit.’”

Id. at 218 (quoting Franks v. Delaware, 438 U.S. 154,155–56 (1978)). Then, “[i]f

that preliminary showing is made, the court holds a hearing—referred to as a

‘Franks hearing’—where evidence may be presented to show whether the

statements are knowingly or recklessly false.” Id. “A defendant may also

challenge the warrant application as intentionally omitting material facts that, if

included, would cast doubt on the existence of probable cause.” Id. If, after the

Franks hearing, the court concludes “that any misstatements or material omissions

were made intentionally or with reckless disregard for the truth, [then] the false

statements are excised, the omitted statements are added, and the affidavit’s

remaining content is examined to determine whether it establishes probable cause

to support issuing the search warrant.” Id.

Here, Brain complains the district court did not rule which, if any, statements

in the warrant application were knowingly or recklessly false. And, because it did

not determine which statements were improperly included in the warrant

application, it did not take the next step of considering whether the application was

sufficient even with those statements excised. But Brain never raised this issue to

the district court. Through his questioning at the suppression hearing, Brain
15

suggested that some facts included in the warrant application could have non-

incriminating explanations (like that Brain may have hit his head during the

accident), but those insinuations were not enough to raise a Franks issue to the

district court’s attention.8 Plus, even if he thought the issue was properly raised

but overlooked by the district court, Brain had the burden to ask the district court

for a ruling in his motion to reconsider and enlarge. See Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002) (“When a district court fails to rule on an issue

properly raised by a party, the party who raised the issue must file a motion

requesting a ruling in order to preserve error for appeal.”). We do not consider this

issue further.

Next, Brain argues that he did not voluntarily submit to either the field

sobriety tests or the preliminary breath tests. He maintains that the results of those

tests should not have been included in the search warrant application because,

while participation is optional, he was repeatedly told to complete them rather than

being allowed to refuse. Cf. Iowa Code § 321J.5(1) (providing when an officer

“may request that the operator provide a sample of the operator's breath for a

preliminary screening test” (emphasis added). Even if we were persuaded that

Brain was improperly pressured to complete the voluntary tests and that those test

results should be excised from the warrant application, we would still find the

warrant was properly supported by probable cause.

8 As our supreme court stated in Harbach, “[t]hat other explanations might exist for

an officer’s observations is insufficient to establish the statement’s falsity.”
3 N.W.3d at 221.
16

Brain was nearly part of a head-on collision when he was driving in the left

lane of a two-lane highway. When troopers found Brain at the scene, he had

bloodshot, watery eyes and smelled of an alcoholic beverage. An open alcohol

container was found in Brain’s vehicle, and Brain admitted drinking a mixed drink

with vodka in it. Based on these facts from the warrant application, a reasonable

person would believe that Brain was likely driving while impaired and that evidence

of Brain’s intoxication could be confirmed by testing a body specimen. See State

v. Baker, 925 N.W.2d 602, 613 (Iowa 2019) (“The test for probable cause is

‘whether a person of reasonable prudence would believe a crime was committed

on the premises to be searched or evidence of a crime could be located there.’”

(citation omitted)); see also State v. Wenzel, 987 N.W.2d 473, 485 (Iowa Ct. App.

2022) (concluding issuing judge had probable cause to issue warrant for bodily

specimen). There was a substantial basis to grant the warrant—even without the

field sobriety tests and the preliminary breath tests. See id.

2. Can a Chapter 808 Warrant be Used to Obtain a Bodily Specimen?

Brain argues it was improper for Vanderpol to obtain a chapter 808 warrant

for a bodily specimen rather than invoking the implied consent procedures in

section 321J. Our supreme court recently considered this issue in State v. Laub,

2 N.W.3d 821 (Iowa 2024). Like this court before it, the supreme court held that

the implied consent statute in chapter 321J “is not the exclusive means by which

law enforcement may obtain chemical testing.” Laub, 2 N.W.3d at 826 (quoting

State v. Frescoln, 911 N.W.2d 450, 454 (Iowa Ct. App. 2017)). Warrants obtained

pursuant to chapter 808 can be used to collect and test bodily specimens for the

criminal investigation of driving-while-impaired cases. Id. at 833–34 (collecting
17

cases). We are bound by this precedent, so we do not consider this issue further.9

See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at

liberty to overturn Iowa Supreme Court precedent.”).

3. Was the Warrant Impermissibly Broad?

Brain argues the warrant violated the particularity clause of the Fourth

Amendment because it allowed the troopers to decide on what bodily specimen to

obtain: “[a] blood, urine, and/or breath specimen.” Of those approved specimens,

the trooper proceeded with obtaining only the least intrusive means—as the State

commented at oral argument, Brain is essentially complaining that law

enforcement should have “taken more from him.” “Both the Iowa and United States

Constitutions, as well as the Iowa Code, require that the warrant and affidavits

particularly describe what is to be searched and what is to be seized.” State v.

Randle, 555 N.W.2d 666, 671 (Iowa 1996) (citing U.S. Const. amend. IV, Iowa

Const. art. I, § 8). “The particularity requirement ensures that nothing is ‘left to the

discretion of the official executing the warrant.’” Id. at 669 (citation omitted). But

we are not “hypertechnical” in our application of this requirement. Id.; see also

Hemm v. State, No. 09-0616, 2010 WL 786049, at *4 (Iowa Ct. App. Mar. 10, 2010)

(reviewing “the specificity of [a] search warrant under a ‘practical accuracy’

standard” (citation omitted)).

9 Brain also argues “the district court never considered or ruled upon the
misrepresentations made to obtain a breath specimen under threat of arrest for
refusal not provided under [a chapter 808] warrant rendering submission
involuntary.” As this issue was never ruled on by the district court, we do not
address it. See Meier, 641 N.W.2d at 537 (“It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court
before we will decide them on appeal.”).
18

The district court rejected Brain’s argument, concluding:

The present warrant authorized law enforcement to collect a
blood, urine, or breath sample from [Brain] in order to determine his
blood alcohol content. It is undeniable that the warrant clearly
identifies the subject of the search and seizure i.e., the blood, urine,
or breath of [Brain], and does not venture in the realm of a general
warrant. [Brain’s] argument that the warrant impermissibly allowed
law enforcement to exercise discretion to determine which of three
samples to take is a hypertechnical interpretation of the warrant. The
option of the three methods is a practical consideration in situations
of suspected intoxicated driving when the suspect may be unable or
unwilling to provide one type of sample, but a sample obtained from
one of the other methods is available. For example, if a suspect was
unwilling provide a breath sample, even when presented with the
warrant, law enforcement could get a blood sample instead. It would
be impractical, and offer no additional constitutional protections, to
require law enforcement to obtain a warrant for the breath in hopes
that the suspect would be compliant and then obtain a second
warrant for the blood.

We agree with the district court; Brain’s argument fails.

4. Did the Warrant Process Violate Brain’s Constitutional Rights?

Brain asserts that by using a warrant, rather than invoking implied consent

under chapter 321J, police violated his rights to equal protection, due process, or

both. He urges that in this constitutional realm there are still unanswered questions

following our supreme court’s decision in Laub.

Equal Protection. At their core, the equal protection guarantees of the

federal and state constitutions “are meant to protect ‘against intentional and

arbitrary discrimination, whether occasioned by express terms of a statute or by its

improper execution through duly constituted agents.’” Laub, 2 N.W.3d at 834

(citation omitted).

Chapters 321J and 808 make “no distinctions between persons, let alone

distinctions between similarly situated persons.” Id. So the threshold test is not
19

satisfied as to the first step of the equal protection test. See id. Insofar as Brain

challenges Vanderpol’s exercise of discretion in choosing one path over the other,

“[t]here are some forms of state action which by their nature involve discretionary

decisionmaking based on a vast array of subjective, individualized assessments.”

Id. at 835 (cleaned up). “A statutory scheme that allows a peace officer to exercise

investigative discretion, and a peace officer’s exercise of that discretion, in and of

itself, does not violate the federal or state constitutional guarantees of equal

protection under the law.” Id.

Brain’s equal protection challenge fails.

Due Process. Brain urges that both his procedural and substantive due

process rights were violated by obtaining a warrant rather than invoking implied

consent. He argues his procedural due process rights were violated because he

was prevented from refusing to provide the bodily specimen, which he would have

been allowed to do under Iowa Code section 321J.10.

But as our supreme court recently held in Laub, because “statutory implied

consent procedures are not mandated by the due process provisions of the United

States Constitution,” the decision to forego those procedures is not a violation of a

defendant’s right to procedural due process. 2 N.W.3d at 837 (cleaned up); see

also State v. Baraki, 981 N.W.2d 693, 697 (Iowa 2022) (recognizing that while the

statutory implied consent procedures give a potentially intoxicated driver a choice

whether to comply with a breath test, “[t]he choice is not constitutionally required”).

Brain also has not established a substantive due process violation. Brain

does not have a constitutional right “to refuse consent to provide a bodily specimen

for chemical testing on penalty of having [his] license revoked or having [his]
20

refusal be admitted in a criminal trial.” Laub, 2 N.W.3d at 837. And insofar as he

challenges Vanderpol’s conduct—choosing to obtain a search warrant rather than

invoke implied consent—this claim also fails:

A peace officer obtaining a search warrant in compliance with
federal and state constitutional requirements to investigate
suspected criminal activity in no way shocks the conscience or
offends human dignity. To the contrary, the Supreme Court has
explained that use of a search warrant to investigate OWI offenses
is the constitutionally preferred method of investigation.

Id. at 837.

Brain’s constitutional challenges fail.

C. Section 804.20

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.
Such person shall be permitted to make a reasonable number of
telephone calls as may be required to secure an attorney. If a call is
made, it shall be made in the presence of the person having custody
of the one arrested or restrained. If such person is intoxicated, or a
person under eighteen years of age, the call may be made by the
person having custody. An attorney shall be permitted to see and
consult confidentially with such person alone and in private at the jail
or other place of custody without unreasonable delay. A violation of
this section shall constitute a simple misdemeanor.

Brain urges that his statutory right was violated because he was not advised he

could call an attorney and was not allowed to see his mother at the law center

when she arrived. He seeks suppression of the DataMaster test result based on

these alleged violations.

“[S]ection 804.20 does not itself require that a peace officer advise the

detainee of the detainee’s rights under the statute.” State v. Casper, 951 N.W.2d
21

435, 438 (Iowa 2020). But when the right is invoked, an officer cannot deny the

right exists or sit by silently. See State v. Hicks, 791 N.W.2d 89, 94, 96 (Iowa

2010). The peace officer must then “provide the suspect with a reasonable

opportunity to contact an attorney or family member.” Id. at 94. Here, it is not clear

Brain ever asked to speak to an attorney. On appeal, he argues he should have

been advised he could do so without making the request. But as we already stated,

an officer does not have a duty to advise until the defendant invokes the right. See

id. at 94. And Brain was allowed to keep his cell phone in his possession and use

it without restriction—if he wanted to call an attorney he could have done so. In

fact, Brain made at least four phone calls, and a video from the law center admitted

at the suppression hearing appears show him using the device in other ways as

well. See State v. Simmer, No. 02-1125, 2003 WL 21230199, at *2 (Iowa Ct. App.

May 29, 2003) (concluding defendant was given reasonable opportunity to contact

family member or attorney when the defendant was permitted to keep her cell

phone in their possession and had unrestricted use to it).

Additionally, while Brain contends he was prevented from seeing his mother

when she arrived at the law center, no evidence was introduced to establish that

his mother was ever actually present. Based on the video from the law center,

Brain called his mother and asked her to bring him tobacco products. Later, after

Brain had taken the DataMaster test and Vanderpol returned to the law center with

the signed warrant, Brain reported that his mother was on the way. There was

neither testimony nor video evidence that his mother actually came to the law

center before Brain completed the breath test or was placed under arrest. We
22

cannot find a violation of Brain’s statutory rights when there is no evidence to

support his allegation.

And even if Brain’s section 804.20 rights were violated, suppression of the

tests results is not the appropriate remedy because the “results can be traced to a

source independent of any violation of section 804.20”—“a lawfully issued search

warrant.” State v. McMickle, 3 N.W.3d 518, 522 (Iowa 2024). That is not to say

that law enforcement can or should disregard a defendant’s section 804.20

rights—the statute imposes criminal liability on a person who does so. See Iowa

Code § 804.20 (“A violation of this section shall constitute a simple

misdemeanor.”); see also McMickle, 3 N.W.3d at 523 (McDermott, J., concurring)

(“The statutory remedy imposing criminal liability exists notwithstanding a court’s

refusal to suppress evidence when an officer violates [section] 804.20. Simply

because an officer validly obtains evidence against a suspect through other means

does not grant the officer immunity from criminal prosecution for infringing this

right.”). But Brain’s remedy—assuming he could show a violation—is not the

suppression of the DataMaster results.

IV. Conclusion.

We affirm the district court’s denial of Brain’s motion to suppress and

remand for further proceedings.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.