State of Iowa v. Adam Golden McCain

IN THE COURT OF APPEALS OF IOWA

No. 19-1810
Filed July 21, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ADAM GOLDEN MCCAIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Lee (South) County, Mary Ann

Brown, Judge.

Adam Golden McCain appeals his conviction for murder in the first degree.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Darrell Mullins, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., and Tabor and Ahlers, JJ.
2

AHLERS, Judge.

This case calls for us to decide when and under what circumstances law

enforcement officers can reinitiate questioning of a suspect after the suspect has

invoked the suspect’s right to remain silent.

Shortly after 10:00 p.m. in Keokuk on February 5, 2019, a passerby found

a woman lying face down on the sidewalk near a business establishment. There

was a trail of blood leading to the woman, who was crying and calling for help. The

woman managed to tell the passerby that she had been stabbed by Adam McCain.

Around the same time police and medical personnel were being dispatched

to help the stabbing victim, law enforcement dispatch received a call that a white

car struck some parked cars and had not stopped. Law enforcement officers

began looking for the vehicle. A Lee County deputy sheriff came across a white

car and its male driver stopped along a road outside of Keokuk. The car was

disabled from front-end damage and a flat tire that had been driven down to the

rim. The male driver was identified as Adam McCain. While the deputy was talking

to McCain about the hit-and-run, the deputy received word from dispatch that the

man he was investigating for the hit-and-run may be the suspect in the stabbing

incident. The deputy placed McCain in handcuffs, told him he was being detained,

and began questioning him. After a few questions, McCain said, “I plead the fifth.”

The deputy then asked a few more investigatory questions before stopping the

interrogation. McCain was taken to jail.

In the meantime, it was determined the stabbing victim had died and that

she was the mother of McCain’s child. The Iowa Division of Criminal Investigations

(DCI) was contacted to help with the investigation. Law enforcement officers
3

obtained a search warrant for McCain’s body and clothing to look for evidence

related to the stabbing. Around seven hours after McCain was taken into custody,

a DCI agent and an officer with the Keokuk Police Department arrived at the jail to

execute the search warrant. Jail staff awakened McCain, who had been asleep

for about five hours, so the officers could execute the search warrant.

While the search warrant was being executed, McCain began asking

questions of the officers. The officers told him they would be willing to talk to

McCain and answer any questions he may have, but they would need to complete

their work on the search warrant first. After the officers finished executing the

search warrant, they asked McCain if he wanted to talk. This led to McCain

agreeing to talk, the giving of Miranda1 warnings, and an interrogation of McCain

that resulted in McCain confessing to stabbing the victim and then crushing her

against a bolted down trash can with his car before leaving the scene. McCain

was also allowed to make phone calls to relatives, during which McCain admitted

murdering the victim. It is this interrogation at the jail and the statements made

during subsequent phone calls to family members that create the issues on appeal.

McCain was eventually charged with murder in the first degree2 and was

found guilty of that offense following a bench trial. He appeals.

I. Issues Presented

McCain raises several issues related to the admission of his statements to

officers while being questioned at the jail and the statements to family members

1 See Miranda v. Arizona, 384 U.S. 436 (1966).
2 See Iowa Code §§ 707.1, 707.2(1)(a) (2019).
4

on the phone while in jail.3 In particular, McCain asserts: (1) the statements to

officers during questioning at the jail were obtained in violation of his right to remain

silent under the United States Constitution and Iowa Constitution because

(a) officers did not scrupulously honor his invocation of his right to remain silent

and (b) McCain did not voluntarily waive his rights; (2) a claimed waiver of the right

to remain silent under the United States Constitution and the Iowa Constitution

after the suspect has invoked the right should have to be proved objectively by a

written waiver by the suspect or a video recording showing the waiver; and

(3) suppression should extend to the statements McCain made to relatives on the

phone as fruit of the poisonous tree.

II. Standard of Review

We review a district court’s refusal to suppress statements
allegedly made in violation of constitutional guarantees de novo.
State v. Ortiz, 766 N.W.2d 244, 249 (Iowa 2009); State v. Turner,
630 N.W.2d 601, 606 (Iowa 2001). Under this standard of review,
we make “‘an independent evaluation of the totality of the
circumstances as shown by the entire record.’” Turner, 630 N.W.2d
at 606 (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993)).
“We give deference to the district court’s fact findings due to its
opportunity to assess the credibility of witnesses, but we are not
bound by those findings.” Id. We consider both the evidence
introduced at the suppression hearing as well as the evidence
introduced at trial. State v. Countryman, 572 N.W.2d 553, 557 (Iowa
1997).

State v. Palmer, 791 N.W.2d 840, 844 (Iowa 2010).

3 Via a pretrial motion to suppress, McCain sought to suppress his statements to
the deputy on the side of the road, his statements to officers while being questioned
at the jail, and his statements to family members on the phone while at the jail.
The parties stipulated to suppression of the roadside statements. The district court
denied McCain’s motion regarding the other statements.
5

III. Discussion

We address each issue separately.

A. Right to Remain Silent

We begin by discussing McCain’s right to remain silent under the United

States Constitution.

1. United States Constitution

Under the Fifth and Fourteenth Amendments to the United States

Constitution, authorities are required to advise suspects of their Miranda rights

before beginning a custodial interrogation. Palmer, 791 N.W.2d at 844. The State

concedes, and we agree, that McCain was in custody and subjected to

interrogation during the interview at the jail during which McCain made the

challenged statements, so Miranda applies. The Miranda warnings inform the

suspect of the suspect’s Fifth Amendment rights to remain silent and to have

counsel present during questioning. Id. Statements made during a custodial

interrogation are inadmissible unless adequate Miranda warnings have been given

and the suspect validly waived the suspect’s rights. Id. at 844–45. For a suspect

to waive those rights, the waiver must be given knowingly, intelligently, and

voluntarily. Id. at 845. The burden is on the State to prove: (1) the suspect

knowingly and intelligently waived the right by showing the waiver was made with

a full awareness of the right and the consequences of the decision to abandon it;

and (2) the suspect voluntarily waived the right by showing the waiver was “the

product of a free and deliberate choice rather than intimidation, coercion, or

deception.” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).
6

a. Scrupulously Honoring Invocation

Miranda also requires a second level of procedural safeguards before

questioning can be resumed after a suspect invokes the suspect’s Fifth

Amendment privilege to remain silent. Id.; Michigan v. Mosley, 423 U.S. 96, 103–

04 (1975). In that situation, a resumption of questioning is permissible only when

the suspect’s right to cut off questioning has been “scrupulously honored.” Palmer,

791 N.W.2d at 846. To determine whether the suspect’s right to cut off questioning

has been scrupulously honored, we look at the totality of the circumstances and

consider the factors set forth in Mosley: (1) whether law enforcement officers

immediately ceased the interrogation after the right to remain silent was invoked;

(2) whether questioning was resumed “only after the passage of a significant

period of time”; (3) whether law enforcement officers provided the suspect with a

fresh set of Miranda warnings; and (4) whether a new law enforcement officer, in

another location, “restricted the second interrogation to a crime that had not been

a subject of the earlier interrogation.” Id.

Here, while arguments can be made that McCain’s roadside invocation of

his Fifth Amendment rights was limited to an isolated question, we find McCain’s

statement, “I plead the Fifth, sir,” to be an unequivocal invocation of his right to

remain silent in general. See Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th

Cir. 2001) (holding that, for a suspect to invoke the suspect’s right, the suspect

must “unequivocally express his desire to remain silent”); but cf. United States v.

Reynolds, 743 F. Supp. 2d 1087, 1090 (D.S.D. 2010) (holding suspect’s statement,

“I plead the Fifth on that,” was an expression of selective invocation of his right to

remain silent that only applied to the specific question); State v. Wright, 537
7

N.W.2d 134, 137–38 (Wis. Ct. App. 1995) (holding invocation of right to remain

silent only applied to a specific question when the suspect stated he would “plead

the Fifth on that one” in response to the question). As a result, law enforcement

needed to scrupulously honor McCain’s right to remain silent before resuming

questioning. We analyze the Mosley factors to determine whether that occurred.

See Palmer, 791 N.W.2d at 846.

The first Mosley factor somewhat favors McCain. After McCain invoked his

right to remain silent on the roadside, the deputy did not immediately cease

questioning. We also note that the deputy did not give McCain Miranda warnings

at any time during the roadside custodial interrogation. These facts favor a finding

that McCain’s right to remain silent was not scrupulously honored. This finding is

tempered slightly by the fact that the questioning following the invocation lasted

only twenty-five seconds and consisted of four questions: “Were you hurt?”, “Was

there an altercation?”, “Were you traveling alone?”, and “Did you meet up with

anybody?” While these questions should not have been asked due to the lack of

Miranda warnings and McCain’s invocation of his right to remain silent, this is not

a situation in which the deputy wore McCain down with prolonged questioning.

See State v. Willingham, 933 N.W.2d 619, 628–30 (S.D. 2019) (finding invocation

of right to remain silent was scrupulously honored even though officers briefly

engaged in questioning designed to elicit an incriminating response after the

invocation but before subsequent resumption of questioning).

The second Mosley factor favors the State. After the brief questioning

following McCain’s invocation of his right to remain silent, McCain was not

questioned or otherwise faced with conduct designed to elicit incriminating
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statements for about seven hours. During that seven-hour period, McCain was left

alone to sleep for around five hours before he was awakened to execute the search

warrant. This significant passage of time favors a finding of scrupulously honoring

McCain’s rights. See, e.g., Mosley, 423 U.S. at 104 (finding right to remain silent

was scrupulously honored when suspect was not questioned for over two hours

after invocation of his right); Brown v. Caspari, 186 F.3d 1011, 1015 (8th Cir. 1999)

(finding three-hour interval significant).

Third, McCain was given a full reading of the Miranda warnings before being

questioned at the jail. The full reading took place after McCain was repeatedly told

he did not have to answer any questions if he did not want to do so. This factor

favors the State.

Fourth, different officers conducted the second interrogation in a different

location. While the questioning during the second interrogation focused on the

same crime as the first interrogation,4 this is not fatal to a finding that McCain’s

rights were not scrupulously honored. “[A] second interrogation is not rendered

unconstitutional simply because it involves the same subject matter discussed

during the first interview.” Willingham, 933 N.W.2d at 629 (quoting United States

v. DeMarce, 564 F.3d 989, 994 (8th Cir. 2009)); see also Palmer, 791 N.W.2d at

849 (finding the fact the second interview was conducted by the same officer as

4 At the suppression hearing, the State argued that the questioning on the roadside
related to the hit-and-run investigation while the questioning at the jail related to
the stabbing. On appeal, the State concedes “[i]t is not necessary to quarrel
whether [the roadside questioning] related only to the hit-and-run,” which we
interpret as a concession that the questioning in both instances centered on the
stabbing. Even without the concession, we find the roadside questioning related
primarily, if not exclusively, to the stabbing investigation and not the hit-and-run.
9

the first is not dispositive). “This is especially so when there is no showing that the

police conducted the subsequent interview ‘to induce [the defendant] to abandon

his earlier assertion of his right to remain silent.’” Willingham, 933 N.W.2d at 629

(alteration in original) (quoting Brown, 186 F.3d at 1015). Here, there is no showing

the interview at the jail was conducted to induce McCain to abandon his earlier

invocation. In fact, McCain initiated the conversation that led to the second

interview. We are not naïve enough to suggest that the DCI agent and the police

officer executing the search warrant did not want or hope for the opportunity to

interview McCain, but the fact remains McCain repeatedly started conversations

with those two officers, not the other way around. When questioned by McCain

about the investigation, the officers declined to engage in questioning, informing

McCain that they were there to execute the warrant but offering to talk later if

McCain desired. After completing execution of the search warrant, the officers

then offered to answer McCain’s questions and talk to him. In doing so, the officers

gave McCain the choice of rooms, although stating a preference for the room

McCain ultimately selected. The officers also repeatedly reminded McCain that he

did not have to answer any questions he did not want to answer. In response,

McCain said, “Let’s go talk.” At that point, they went to the room chosen by

McCain, and a full Miranda warning was given followed by McCain answering

questions with no hesitation.

In considering the Mosley factors, no single factor is dispositive and we look

at the totality of the circumstances. See Palmer, 791 N.W.2d at 849. While there

are some facts favoring a finding McCain’s right to remain silent was not

scrupulously honored, we find the totality of the circumstances show that his right
10

was so honored. As a result, we reject McCain’s claim that his Miranda rights

under the Fifth Amendment were violated by law enforcement conducting a second

interview after McCain invoked his right to remain silent.

b. Voluntariness of Waiver

We also reject McCain’s claim that his waiver of his rights was not voluntary.

In support of his argument on this issue, McCain relies heavily on his claim that his

invocation of his right to remain silent was not scrupulously honored. As we have

found McCain’s right to remain silent was scrupulously honored, we reject this part

of McCain’s argument. Even so, we also address his independent claim that his

waiver of his right to remain silent was not voluntary.

As previously noted, the burden is on the State to prove a knowing,

intelligent, and voluntary waiver of McCain’s rights by showing (1) the waiver was

made with full awareness of the right and the consequences of the decision to

abandon it and (2) the waiver was “the product of a free and deliberate choice

rather than intimidation, coercion, or deception.” See Palmer, 791 N.W.2d at 845.

(quoting Moran, 475 U.S. at 421). To make those determinations, we look at the

totality of the circumstances surrounding the interrogation. Id.

McCain highlights the fact the officers conducting the interview at the jail did

not capture McCain’s waiver on video or in writing. He also points out that even

the audio recording of the interview did not include a verbal waiver. Instead, the

State relied on the testimony of both officers that McCain nodded his head in

response to the questions related to whether he wanted to waive his rights and

speak with them. While these facts support McCain’s argument, they do not
11

persuade us that his waiver was involuntary after considering the totality of the

circumstances.

As noted, McCain started a discussion about the homicide investigation.

The officers declined to engage in a conversation while they continued to execute

the search warrant. After completing the execution of the search warrant, the

officers returned to the topic of McCain speaking with them. In doing so, the

officers repeatedly reminded McCain that he did not have to answer any questions

and gave him the choice of rooms for the questioning to take place, although

implying a preference for the room eventually chosen. When asked if he still

wanted to talk to them, McCain said, “Let’s go talk.” 5 The three then went to the

5 The exchange at issue went as follows:
DCI Agent: Do you want to step over to the other room and
then we can kind of get into that other stuff?
McCain: Um— (pause)
DCI Agent: Here’s the deal, man. If you don’t want to answer
a question that I ask you, you have that right. You don’t have to
answer anything at all. You don’t have to say anything to us.
Nothing. Alright? That’s completely up to you. But I walked in, I
looked at you, I could tell you had one—like I said, one heck of an
evening. All we’re here to do is to kind of figure out what in the world
is going on, touch bases with you, and kind of see what—go from
there. If I ask you a question you don’t want to answer, you certainly
don’t have to do that. It’s a hundred percent your right. If you want
to talk, we can go over there, we can chat. I can stay—we can stand
right here and talk. If you don’t want to, you can stop it at any time—
McCain: We can go in what room?
DCI Agent: Just the room across the hallway. Yeah.
Unidentified Voice: Just so you can sit down.
DCI Agent: So you’re not standing up in front of us and stuff.
McCain: What kind of a penalty does a homicide charge
carry?
DCI Agent: That’s stuff that we can get into, we can talk about
later, but I’ve got a few things that I have to go over first, before I can
get into that.
McCain: Let’s go talk.
DCI Agent: Alright.
12

room selected by McCain, the door was closed, and a full Miranda warning was

given. After the warning was given, the following exchange occurred:

DCI Agent: Do you understand each of those rights as I’ve
explained them to you?
McCain: (No audible response)
DCI Agent: Are you willing to talk to us?
McCain: (No audible response)
DCI Agent: Okay.

The DCI agent then proceeded with questions, which McCain answered without

hesitation. While no audible response was given by McCain, both officers present

testified that McCain nodded his head “yes” in response to the questions. The

district court found this testimony credible, as do we on our de novo review. The

flow of the conversation is consistent with McCain having nodded agreement to

the questions and inconsistent with any claim that McCain responded in a negative

way or not at all. As a result, we find McCain expressed agreement to the

questions asked and voluntarily participated in the interview.

Along with the fact McCain expressed consent to the interview after having

been given Miranda warnings, we note there was no intimidation, coercion, or

deception to gain McCain’s waiver of his rights. Again, the opening of the door

that led to the second interview occurred because McCain began asking questions

about the investigation. As a result, we find no intimidation, coercion, or deception

at that stage. Once the officers began talking to McCain, the conversation involved

no aggression, flaunting of authority, or demanding language or conduct. The

officers spoke to McCain in a civil and pleasant tone, made no demands as to

where the questioning would take place, and repeatedly noted McCain’s right not
13

to answer any questions. Nothing about the interaction between the officers and

McCain could be characterized as intimidating, coercive, or deceptive.

Based on our de novo review of the totality of the circumstances resulting

in McCain’s submission to the second interview, we find McCain waived his rights

knowingly, intelligently, and voluntarily. Therefore, we find no violation of McCain’s

rights under the United States Constitution.

2. Iowa Constitution

In support of his claim that his right to remain silent was violated, McCain

argues that, if no relief is afforded under the United States Constitution, relief

should be granted under the Iowa Constitution. McCain asserts the Iowa

Constitution should be interpreted to provide “more protective standards and/or

more stringent application of federal standards.” While McCain points out that our

supreme court has declined to find the Iowa Constitution provides less protection

against self-incrimination than the Fifth Amendment, see State v. Heard, 934

N.W.2d 433, 440 n.3 (Iowa 2019), he cites no persuasive authority supporting his

claim the Iowa Constitution provides more protection.6 He also provides no

suggestion as to what those greater protections should be. With no cited authority

and no suggested standard, we decline McCain’s invitation to interpret article I,

6 Not only is there no persuasive authority supporting McCain’s claim the Iowa
Constitution provides more protection than the United States Constitution, there is
authority for the proposition that the Iowa Constitution does not contain a privilege
against self-incrimination at all. See State v. Kilby, ___ N.W.2d ___, 2021 WL
2483566, at *10 (Iowa 2021) (McDonald, J., concurring specially) (“The Iowa
Constitution, unlike the Federal Constitution, does not contain a privilege against
self-incrimination.”); State v. Gibbs, 941 N.W.2d 888, 907–10 (Iowa 2020)
(McDonald, J., concurring specially).
14

section 9 of the Iowa Constitution to provide greater protection against self-

incrimination than the Fifth Amendment.

B. Requiring Objective Proof of Waiver

McCain asserts we should impose a requirement on law enforcement

officers to provide objective proof of a post-invocation waiver of rights by recording

it in writing or on video. However, McCain acknowledges that our supreme court

declined to impose such an obligation. See State v. Madsen, 813 N.W.2d 714,

721–22 (Iowa 2012) (encouraging electronic recording of noncustodial

interrogations but declining to adopt a per se rule requiring it); State v. Hajtic, 724

N.W.2d 449, 455 (Iowa 2006) (encouraging but not requiring videotaping of

custodial interrogations). We find Madsen and Hajtic to be controlling supreme

court precedent, which we are not free to overrule. See State v. Beck, 854 N.W.2d

56, 64 (Iowa Ct. App. 2014) (“We are not at liberty to overrule controlling supreme

court precedent.”). As controlling precedent declines to impose the requirement

to prove waiver by written or video-recorded means, we reject McCain’s request

to adopt such a requirement.

As a fallback position on this issue, McCain asserts the failure to provide

written or video-recorded proof of McCain’s waiver of his right to remain silent

should weigh heavily against a law enforcement officer’s claim of waiver in

assessing the totality of the circumstances. We have considered that failure, but

we have also considered other circumstances. Those circumstances include

McCain’s response, “Let’s go talk,” after being informed he did not have to answer

any questions. Those circumstances also include the fact the interview was audio-

recorded. While it would have been better if the officers had asked McCain to
15

confirm his head nod in response to their waiver questions by requesting an

audible response, the recording still corroborates the officers’ testimony. Judging

by both the officers’ and McCain’s responses to the questions about waiver and

the investigative questions that followed, it is clear McCain acknowledged that he

understood his rights and still desired to answer the officers’ questions despite the

fact he did not give audible responses to the waiver questions. Based on the

totality of the circumstances, we find adequate proof of McCain’s waiver of his right

to remain silent.

C. Statements to Relatives—Fruit of the Poisonous Tree

McCain also seeks to suppress the statements he made to relatives on the

telephone after the second interview. While McCain does not identify the specific

statements he seeks to suppress, he presumably seeks to suppress incriminating

statements to his uncle7 and his grandmother.8 McCain asserts these statements

must be suppressed as fruit of the poisonous tree. See Wong Sun v. United

States, 371 U.S. 471, 487–488 (1963) (holding evidence is “fruit of the poisonous

tree” and thus inadmissible when the evidence is obtained by exploitation of

illegally obtained evidence).

McCain’s claim fails for at least two reasons. First, a combination of lack of

error preservation and waiver precludes us from addressing it. Both in his motion

to suppress and at the suppression hearing on the motion, McCain’s position was

7 During his phone call with his uncle, McCain stated, “I lost it and I fuckin’
murdered [the stabbing victim],” and “I just fuckin’ lost my shit and fuckin’ stabbed
her and ran her over. I couldn’t deal with the fuckin’ pain anymore.”
8 As he was saying goodbye to his grandmother at the end of their phone call,

McCain said, “Yeah, but I killed that bitch though, so . . . .”
16

that the statements he made to his relatives were obtained in violation of his rights

under Iowa Code section 804.20,9 not that they were the fruit of the claimed

improper interrogation. On appeal, McCain has abandoned any claim based on a

violation of Iowa Code section 804.20. Instead, he asserts the phone statements

were fruit of the improperly obtained admissions in violation of his constitutional

right to remain silent.

We cannot address the violation of section 804.20 urged at the district court

because McCain has not asserted the issue on appeal and has therefore waived

it. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an

issue may be deemed waiver of that issue.”). We cannot address the fruit-of-the-

poisonous-tree issue urged on appeal because McCain did not assert the issue to

the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“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.”).

As a result, we reject McCain’s claim on error-preservation grounds.

9 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. 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.
17

Second, even if we sidestep the error-preservation problem, McCain’s claim

that his statements to his relatives were fruit of the poisonous tree fails because

the tree was not poisonous. McCain’s claim presumes that his confession to law

enforcement was obtained in violation of his constitutional right to remain silent

and, once the cat was out of the bag by his unlawfully obtained confession to law

enforcement, he had no incentive to refrain from making further confessions to

relatives. However, as we have explained, McCain’s confession to law

enforcement was not obtained in violation of his right to remain silent, so the

premise of McCain’s fruit-of-the-poisonous-tree claim is faulty. As the confession

to law enforcement was not improperly obtained, even if the confession contributed

to McCain’s later confessions to relatives, there was no impropriety that warrants

suppression of the statements to the relatives.

IV. Conclusion

For the foregoing reasons, we conclude the district court properly denied

McCain’s motion seeking to suppress his statements to law enforcement officers

and relatives. We affirm McCain’s conviction of murder in the first degree.

AFFIRMED.