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IN THE SUPREME COURT OF IOWA
No. 50 / 06-0565 Filed August 3, 2007 STATE OF IOWA, Appellant, vs. JEFFREY LEWIS SPENCER, Appellee.

Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.

The State requests discretionary review of a district court ruling granting the defendant's motion to suppress tape-recorded evidence. REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Jennifer Miller, County Attorney, and Paul G. Crawford, Assistant County Attorney, for appellant.

Brandon Brown of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble, and Cook, L.L.P., Des Moines, for appellee.

2 WIGGINS, Justice. The State requests discretionary review of a district court order suppressing tape recordings of conversations allegedly containing evidence of sexual abuse between the defendant and his alleged minor victim. The minor's father made the recordings without the prior consent of either the minor or the defendant. The district court found because there was no prior consent to record, the recordings violated Iowa Code chapter 808B (2005). Because we interpret section 808B.2(2)(c) to allow a parent to

consent to the recording of conversations between his minor child and the defendant under the vicarious consent doctrine, we reverse the district court order and remand the case for further proceedings. I. Background Facts and Proceedings. Jeffrey Spencer was a teacher at Lenihan School. Lenihan School houses a specialized program for students with behavioral and scholastic problems. A.T. transferred to Lenihan about six weeks before the end of the 2005 school year. Spencer taught A.T. in the specialized program. At the time, A.T. was thirteen years old and in the eighth grade. Spencer was forty-two years old. A.T. lived with her father, Arnold Thompson. During the summer of 2005, Thompson became suspicious of A.T.'s relationship with Spencer. Thompson based this suspicion on what he described as "a bunch of little things." For example after school was out, Thompson picked up his home telephone while A.T. was placing a call and heard "a man's voice on a voice recorder." Thompson did not recognize the voice. Suspicious, he asked A.T. whose voice he heard over the phone. She informed him it was Spencer's voice. Thompson asked A.T. why she was calling Spencer. A.T. explained she was checking on some grades. Thompson reminded A.T. her grades

3 had already been released a week before. Thompson became even more suspicious of the phone call after observing A.T. with her two friends. After questioning A.T. about the phone call, Thompson testified her two friends "piped in" and added, "Mr. Spencer's really cool and so on and so forth." Thompson told A.T. not to contact Spencer while school was out. A.T. and her friends left Thompson's home. Shortly thereafter

Thompson received a phone call from one of the friend's mother. The mother informed Thompson she overheard the three girls talking about Spencer and A.T. The mother told Thompson that his suspicions were true. During the last week in June Thompson was unexpectedly at home. At about ten in the morning the phone rang, Thompson answered, and found Spencer on the other end. Spencer asked Thompson if he could speak with A.T. Thompson thought that Spencer "sounded a little

surprised" after Thompson answered the phone instead of A.T. Thompson also noted the number Spencer called from that morning appeared on his caller identification for "a few weeks here and there." Thompson's suspicions were also raised when he discovered Spencer took A.T. on a second swimming field trip to a lake after the school year ended. Finally, Thompson's suspicions of Spencer were heightened

because, although unconfirmed, he heard rumors that Spencer had been sexually involved with a fifteen- or sixteen-year-old girl. On June 14, 2005, Thompson reported his concerns to the Marshalltown police. Thompson advised the police of his fears and that "he planned to further investigate by placing a recorder on his telephone." Thompson testified he began recording his home telephone on either June 29 or 30. He never told his daughter or Spencer that he was recording the phone calls. However, A.T. knew Thompson had a recorder and

4 previously asked her father if he had been recording her telephone conversations. At that time, Thompson was not recording the telephone conversations and told A.T. as much. On July 6 Thompson called the Marshalltown police and informed the police he had recorded several phone conversations between Spencer and A.T. that contained inappropriate content of a sexual nature. Out of

concern for the legality of the recordings, the police did not listen to the recordings, but instead had Thompson inform an officer of the tapes' content. An investigation took place, and on September 29, Spencer was charged with sexual exploitation by a school employee in violation of Iowa Code sections 709.15(1)(f), (g) and 709.15(3)(a); indecent contact with a child in violation of section 709.12(1) or (2); and lascivious contact with a minor in violation of section 709.14. Spencer pled not guilty to all three charges. Claiming Thompson's recordings violated Iowa Code chapter 808B because neither Spencer nor A.T. gave prior consent to record, Spencer filed a motion to suppress the tape recordings of the conversations between himself and A.T. The State resisted and urged the district court to interpret the statute to include the vicarious consent doctrine and find Thompson can and did vicariously consent on behalf of his daughter, A.T., to the recording. After finding the vicarious consent doctrine had not previously been applied in Iowa and declining to adopt the doctrine itself, the district court granted Spencer's motion to suppress. The district court prohibited

admission of the recordings of the conversations between A.T. and Spencer and any testimony pertaining to these recordings.

5 The State applied for discretionary review. We granted the State's application and stayed the district court proceedings until the resolution of this issue. II. Issue and Scope of Review. The sole issue in this case is whether chapter 808B bars the admission of Thompson's recordings of the telephone conversations between A.T. and Spencer. Therefore, because this issue is one of statutory

interpretation, the standard of review is for correction of errors at law. State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003). III. Analysis. A person violates the Iowa interception of communications act by willfully intercepting oral communications that are not otherwise exempt from or subject to an exception contained in chapter 808B. Iowa Code

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