IN THE COURT OF APPEALS OF IOWA

No. 18-1643

Filed November 6, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

RUDY DANILO DEPAZ COLOCHO,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, 

District Associate Judge.

A defendant appeals his conviction for third-offense operating while 

intoxicated challenging the suppression ruling. AFFIRMED.

Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman 

P.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant 

Attorney General, for appellee.

Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
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Tabor, Judge.

Rudy Colocho appeals his conviction for third-offense operating a vehicle 

while intoxicated. During a traffic stop, a police officer accommodated Colocho’s 

request to urinate before he performed field sobriety tests. The officer took 

Colocho to the police station, but after he used the restroom he refused sobriety 

testing and instead requested an attorney. The officer spurned the request, saying 

“you don’t call your lawyer in the middle of a traffic stop.” Colocho moved to 

suppress evidence from the stop, and the district court found the officer violated 

Iowa Code section 804.20 (2018). But the court also found the officer cured that 

violation by later advising Colocho of his rights. The court found Colocho’s refusal 

to take the DataMaster test to be admissible. Colocho stipulated to the minutes of 

testimony, and the court found him guilty. He now appeals contesting the 

suppression ruling.

Because the officer’s delayed advisory of Colocho’s rights satisfied the 

purpose of section 804.20 and, alternatively, because any violation was harmless 

error, we affirm.

I. Facts and Prior Proceedings

Around 2:00 a.m. on a Saturday in April 2018, West Des Moines Police 

Officer Blake Mills saw a Hyundai Sonata strike a raised median as the car turned 

onto Mills Civic Parkway. As the officer followed the car, he noticed it swerving 

within the lane of traffic and even leave the lane a few times. Once the car neared 

the interstate, it came to a full stop at a yellow light—half in the turning lane and 

half into the curb marked by white lines. The driver—who the officer later identified 

as Colocho—then negotiated a U-turn but veered too wide and “both passenger 
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tires went up and over the curb and began riding through the grass on the outskirts 

of the road.”

At that point, Officer Mills turned on his blue lights, and Colocho pulled over.

The officer asked Colocho to perform field sobriety tests. But, according to Mills,

Colocho was “very uncooperative and continually stated he had to pee and would 

not move beyond that train of thought.” The officer told Colocho he would take him 

to the police station so he could use the restroom. Officer Mills testified he did not 

want Colocho to urinate on the side of the road in public. The officer patted 

Colocho down, handcuffed him, and placed him in back of the patrol car. 

Upon arriving at the police station, the officer’s body camera showed him 

usher Colocho through two sets of secured doors. Another officer opened a third 

door for them to enter. Once inside the station’s hallway, Mills again patted down 

Colocho before removing his handcuffs. Mills then allowed Colocho to use the 

restroom under his close supervision.

After that, the officer moved Colocho further inside the station where he 

again asked Colocho to perform field sobriety tests. Colocho first complied by 

placing his feet together and arms to his sides. Officer Mills asked Colocho to 

maintain that position. In response, Colocho said he did not understand the 

directions. Colocho then started speaking Spanish and asked for a lawyer.

Officer Mills told Colocho he was asking him to perform the same tests he 

would have conducted at the roadside and he could not call his lawyer in the middle 

of the traffic stop. The officer informed Colocho that once they completed those 

tests, he could call his lawyer. 
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Colocho continued to speak in Spanish, and Officer Mills eventually made 

calls to find an interpreter. After the interpreter arrived, Colocho still refused to 

perform the field sobriety tests. Colocho also refused to take a preliminary breath 

test. Officer Mills then placed Colocho in custody and advised him of his rights 

under section 804.20. The officer provided Colocho with his cell phone and a 

phone book, but Colocho “did not make a single call.” The officer recalled Colocho 

was “opening and closing the Facebook app and was zooming in and out of Google 

Maps without attempting to make any form of communication.” Colocho eventually 

dropped his phone on the floor and “didn’t even try to pick it up.” The officer 

estimated Colocho had just a little under an hour to make a phone call before the 

officer invoked implied consent. Colocho refused to take the DataMaster test.

II. Scope of Review.

We review the district court’s ruling under section 804.20 for errors at law. 

State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997) (citing State v. Frake, 450 

N.W.2d 817, 818 (Iowa 1990)). If the district court properly applied the law and 

substantial evidence supports its findings of fact, we will uphold its ruling on a 

motion to suppress. State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005). We 

consider evidence to be substantial when reasonable minds could accept it as 

adequate to reach a conclusion. State v. Garrity, 765 N.W.2d 592, 595 (Iowa 

2009).

III. Analysis

Our legislature provided this statutory protection for arrested persons:

Any peace officer . . . 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 
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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.

Iowa Code § 804.20.

A. Violation of Rights Under Section 804.20 and Exclusion of 

Evidence

In this appeal, Colocho asks us to decide if an initial denial of this right to 

communications requires exclusion of all incriminating evidence gained for the 

duration of the detention or if a later advisory can cure the violation. 

To set the stage, Colocho contends the district court was partially right—in 

finding Officer Mills violated his rights under section 804.20 when he asked for a 

lawyer at the police station. The State disagrees. Citing State v. Davis, 922 

N.W.2d 326 (Iowa 2019), the State argues Colocho’s request for an attorney did 

not trigger section 804.20 because (1) Colocho was not in custody, (2) he was at 

the place of detention only to use the restroom, and (3) Officer Mills had not 

completed the investigatory portion of his traffic stop. 

In Davis, a deputy transported a suspected drunk driver to the jail’s sally 

port to conduct field sobriety tests because of snowy conditions at the roadside. 

922 N.W.2d at 328. Our supreme court held the deputy did not violate the driver’s 

communication rights by denying his request to call his wife until after field sobriety 

testing occurred because the sally port was a location for testing, not a “place of 
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detention” within the meaning of section 804.20. Id. at 332. Colocho distinguishes 

Davis, contending Davis was not handcuffed or taken inside a secure police station 

to conduct the field sobriety tests. 

The district court did not have the benefit of the analysis in Davis when 

deciding Colocho’s suppression ruling. And we need not resolve this appeal on 

that ground. Assuming without deciding the district court was correct in ruling that 

Officer Mills initially violated Colocho’s rights under section 804.20, we agree with 

the court’s additional finding that the officer remedied the situation by later advising 

Colocho of his rights.

That remedy does not sit well with Colocho. He lobbies for a more sweeping 

exclusionary rule under section 804.20. Colocho contends that because the officer 

violated his statutory rights in declining his request to call an attorney, any 

evidence collected after that should be suppressed. He believes all later proof is 

tainted under the fruit-of-the-poisonous-tree doctrine. See State v. Naujoks, 637 

N.W.2d 101, 111 (Iowa 2001) (explaining concept that indirect evidence may be 

“tainted” by original illegality). 

In his appellant’s brief, Colocho argues that if the officer had timely afforded

him the opportunity to seek guidance from an attorney, “the entire subsequent 

proceedings would have gone more smoothly” and he would not have uttered

incriminating words or engaged in incriminating actions. But at the oral argument, 

counsel was unable to provide any examples of incriminating words or actions—
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subject to exclusion under section 804.201—that occurred between the alleged 

violation and the officer’s giving of the advisory. Because no excludable evidence 

emerged in that window of time, we need not apply a fruits analysis.

The defendant further argues that when the officer did provide Colocho the 

tools to call a lawyer or family member, it was likely Colocho believed “the ship had

sailed.” In other words, a call would have come “too late in the proceedings to 

make any difference.” We find this argument unpersuasive. “As a pragmatic 

matter, it is unrealistic to expect law enforcement to hand an accused a phone the 

minute he or she steps foot into the detention center.” State v. Smith, No. 16-0749, 

2017 WL 510957, at *2 (Iowa Ct. App. Feb. 8, 2017). And “the ship could not have 

sailed” if Colocho cannot point to any evidence that would have been excluded as 

a result of the alleged violation of section 804.20. 

Section 804.20 guarantees detained suspects a reasonable opportunity to 

communicate with a lawyer or family member. See State v. Hicks, 791 N.W.2d 89, 

95 (Iowa 2010). When that opportunity is denied, evidence that would have been 

protected by the guarantee is off limits in the prosecution. Id. at 97. But that does 

not include all incriminating conduct at the police station. See Garrity, 765 N.W.2d 

at 597 (declining to exclude video of “Garrity’s body motions, judgment, slurred 

speech and inability to communicate”). This precedent undermines Colocho’s call 

for a broader exclusionary rule.

 

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“The exclusionary rule extends to the exclusion of breath tests, breath test refusals, and 

non-spontaneous statements obtained after unnecessary delay in allowing the person the 

statutory right to consult with an attorney or family member.” Garrity, 765 N.W.2d at 597.
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Under the existing exclusionary rule, the only evidence hanging in the 

balance was Colocho’s refusal to submit to chemical testing. In State v. Vietor, the 

Iowa Supreme Court discussed the statutory right to counsel in operating-whileintoxicated investigations. 261 N.W.2d 828, 832 (Iowa 1978). The court decided 

an officer must permit an arrested person to call a lawyer “before being required 

to elect whether he shall submit to a chemical test.” Id. After advising Colocho of 

his rights under section 804.20, Officer Mills afforded Colocho plenty of time to 

contact an attorney before asking him to decide whether to provide a breath 

sample. Colocho chose not to make any calls though he had access to his cell 

phone and a phone book. Colocho refused the DataMaster test nearly an hour 

after receiving the advisory. Under these circumstances, the test refusal was 

admissible evidence in his stipulated bench trial.

B. Harmless Error 

Even if the officer’s delayed advisory did not cure the initial violation of 

Colocho’s rights under section 804.20, the conviction stands if the error was 

harmless. See Garrity, 765 N.W.2d at 597. For nonconstitutional error, like 

violations of section 804.20, we ask: “Does it sufficiently appear that the rights of 

the complaining party have been injuriously affected by the error or that he has 

suffered a miscarriage of justice?” Id. We presume prejudice, but may find 

harmless error if the evidence related to the violation was cumulative to other 

admissible evidence. Id. 

Here, the record shows Colocho’s chemical-test refusal did not loom large 

in the district court’s finding of guilt. The far more compelling evidence came from 

the video recordings and the officer’s observations of Colocho’s behavior. Officer 
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Mills testified to Colocho’s poor driving. See State v. Truesdell, 679 N.W.2d 611, 

616 (Iowa 2004) (finding police reports regarding defendant’s erratic driving

supported a finding he was under the influence of alcohol when he operated his 

vehicle). In his report, the officer noted “a strong odor of an alcoholic beverage 

coming from [Colocho’s] person” as they interacted during the stop. The officer 

also noted Colocho’s impaired balance—“he was leaning and nearly fell towards 

me.” And Colocho was uncooperative during the stop, swearing and ignoring the 

officer’s directions. Colocho’s slurred speech can be detected on the recordings 

in the record. See State v. Morgan, 877 N.W.2d 133, 137 (Iowa Ct. App. 2016)

(discussing common indicia of intoxication). All told, the stipulated record 

contained strong evidence Colocho was operating while under the influence. We 

find any violation of Colocho’s rights under section 804.20 was harmless error. 

See Garrity, 756 N.W.2d at 598. Colocho is not entitled to new trial.

IV. Conclusion

To recap, we assume without deciding the district court properly found an 

initial violation of section 804.20. But we conclude the court also was correct in 

finding that violation was resolved when the officer eventually advised Colocho of 

his right to communicate with an attorney and allowed him nearly an hour to 

exercise that right before his test refusal. Colocho’s argument that his actions

would have been different if he had an earlier opportunity to speak with an attorney 

is speculative in nature. In the alternative, any violation of section 804.20 was 

harmless error.

AFFIRMED.