Opinion
Court of Appeals No. A-10215.
June 24, 2009.
Appeal from the District Court, Third Judicial District, Anchorage, John R. Lohff, Judge, Trial Court No. 3AN-07-13514 CR.
T. Burke Wonnell, Anchorage, for the Appellant.
Hanley Rebecca Smith, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ronald G. Dill was arrested for driving under the influence. After he was transported to the police station, the police allowed him to call his brother-in-law for advice on whether to submit to a breath test. Later, Dill asked to call his brother-in-law a second time for advice on whether to obtain an independent blood test. The police allowed Dill to make a second call to his brother-in-law, but he was not afforded any privacy during the call — the call was placed on speaker phone and was recorded. Dill argues that the district court should have suppressed the evidence of his breath test result because he w as denied his right to a reasonable amount of privacy during this second call. We conclude that even if Dill had a statutory right to a reasonably private second phone call to his brother-in-law, and the police violated that right, he would not be entitled to suppression of his breath test result because he did not show that he was prejudiced in any way by the lack of privacy. We therefore uphold the district court's decision denying Dill's motion to suppress, and affirm his conviction.
Facts and proceedings
On November 30, 2007, Dill was stopped in Anchorage for operating a motor vehicle with only one working headlight. As a result of this stop, he was arrested for driving under the influence.
At the police station, Dill asked to call his brother-in-law, who is not an attorney, for advice on whether to submit to a breath test. Dill was allowed to talk privately with his brother-in-law. After the call, Dill agreed to submit to the breath test, which showed that he had a blood alcohol level of .083 percent. Dill was then advised of his right to an independent test.
At that point, another officer, Tim Landeis, took over Dill's processing. Officer Landeis allowed Dill to call his brother-in-law again, this time for advice on whether to obtain an independent test. The call was placed on speaker phone, and Officer Landeis kept a tape recorder running, which picked up both sides of the conversation. Officer Landeis stayed in close proximity to Dill during this call, and at one point he participated in the call by speaking directly to Dill's brother-in-law. After the call, Dill declined the offer of an independent test.
Dill was charged with operating under the influence, a violation of the Anchorage Municipal Code. He moved to suppress the evidence of his breath test result on the ground that the police did not take reasonable steps to assure his privacy when he called his brother-in-law for advice on whether to obtain an independent test. District Court Judge John R. Lohff denied the motion, finding that the police had not violated D ill's rights under AS 12.25.150(b) to contact an attorney and a relative or friend and that, even if they had, Dill would not be entitled to suppression of his breath test result.
AMC 9.28.020.A.
Dill entered a plea of no contest to driving under the influence, reserving his right to challenge the denial of his motion to suppress. Why we hold that Dill was not entitled to suppression of the breath test result
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Alaska Statute 12.25.150(b) provides that "[i]mmediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend[.]" In Copelin v. State, the Alaska Supreme Court held that AS 12.25.150(b) and Criminal Rule 5(b) require that a motorist arrested for driving under the influence be given a reasonable opportunity, upon request, to contact an attorney and a relative or friend before deciding whether to submit to a breath test.
659 P.2d 1206 (Alaska 1983).
Alaska R. Crim. P. 5(b) provides that "[i]mmediately after [an] arrest, the prisoner shall have the right forthwith to telephone or otherwise to communicate with both an attorney and any relative or friend" and that, at the request of the prisoner or any relative or friend of the prisoner, any attorney "shall have the right forthwith to visit the prisoner in private."
Copelin, 659 P.2d at 1208.
When an arrestee exercises the right to contact an attorney before deciding whether to submit to a breath test, the police must make "reasonable efforts" to assure privacy during that call. We have never decided whether this statutory right to a reasonably private communication with an attorney extends to a phone call to a relative or friend. And we conclude that we need not resolve that question in this case, because even if we accept Dill's claim that the police violated his right to a reasonably private phone call, Dill has not shown that he was entitled to suppression of his breath test result.
Farrell v. Anchorage, 682 P.2d 1128, 1130 (Alaska App. 1984).
We note, however, that in Eben v. State, 599 P.2d 700, 710 n. 27 (Alaska 1979), the Alaska Supreme Court cautioned that "to the extent deemed appropriate in light of the circumstances" law enforcement should "administer A S 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative, or friend."
As a preliminary matter, we observe that under our decisions in Babb v. Anchorage and Romo v. Anchorage, the police had no duty under AS 12.25.150(b) to allow Dill to call his brother-in-law a second time for advice on whether to obtain an independent test. In those cases we held that once an arrestee's statutory right to call an attorney is satisfied by one unimpeded phone call before administration of a breath test, the police are not obliged to allow the arrestee to make additional calls to the attorney, even if doing so would not delay the DUI processing.
813 P.2d 312 (Alaska App. 1991).
697 P.2d 1065 (Alaska App. 1985).
In Babb, the defendant asked to call his attorney before deciding whether to submit to a breath test, and the police allowed him to make that call. Babb decided to take the breath test, and the police then informed him of his right to an independent test. Babb elected to get an independent test and was transported to the hospital; while he was waiting for a medical technician to prepare the blood test, he asked to speak with his attorney again. The officer accompanying Babb told him he could not delay his DUI processing by calling his attorney a second time. Babb then refused to have his blood drawn.
Babb, 813 P.2d at 313.
Id.
Id.
Id.
Babb later moved to suppress the evidence of his breath test result. He argued that because he was not allowed to call his attorney for advice on whether to get an independent test, he was effectively denied his right to obtain evidence that might have cast doubt on his breath test result. In an affidavit, Babb asserted that he would have obtained a blood test if he had been allowed to consult his attorney. The district court denied Babb's motion to suppress and we affirmed that decision, ruling that Babb's first call to his attorney before administration of the breath test "fully satisfied" his right to call his attorney under AS 12.25.150(b).
Id.
Id.
Id. at 314.
Dill argues that his case is distinguishable because a second phone call would have delayed Babb's blood test, while in his case the police obviously were not concerned about the delay — because they allowed him to make a second call.
It is true that when the police prevent an arrestee from exercising the right to a phone call for advice on whether to submit to a breath test, the government must justify that decision by showing that the arrestee "demanded an unreasonable amount of time [to contact an attorney], thereby interfering with the `prompt and purposeful investigation' of the case." But in Romo we held that when an arrestee has already been given a reasonable opportunity to contact an attorney, has spoken with an attorney, and then has terminated the call, the government does not have the burden to show that it was not unreasonable in denying the arrestee the opportunity to delay the breath test for further consultation.
Romo, 697 P.2d at 1071 (quoting Copelin, 659 P.2d at 1212 n. 14).
Id. at 1071; see also Anchorage v. Marrs, 694 P.2d 1163, 1166 (Alaska App. 1985) (holding that, because defendant had opportunity to consult attorney, he received rights guaranteed by Copelin, and police had no duty to delay administration of breath test until attorney could be present, regardless of how short a period that might have entailed).
Our decisions in Babb and Romo make clear that Dill's right under AS 12.25.150(b) to call to a relative or friend was satisfied by his one unimpeded phone call before administration of the breath test. Thus, the Municipality could deny him a second phone call after administration of the breath test, even if allowing him a second call would not have delayed the DUI processing. We applied a similar analysis when an arrestee sought to call his wife a second time to arrange for bail.
See Moses v. State, 32 P.3d 1079, 1081 (Alaska App. 2001) (holding that defendant not entitled to second call to wife for purpose of arranging bail).
Because the police had no statutory duty to allow Dill to make a second phone call to his brother-in-law, it is arguable that the police also had no duty to make reasonable efforts to protect the privacy of that second call — even assuming the right to a reasonably private phone call to an attorney extends to a call to a relative or friend. The reason the police must make reasonable efforts to accommodate an arrestee's right to privately consult an attorney is "in order to comply with the statutory mandate of AS 12.25.150(b)" — that is, in order to give substance to an arrestee's right to confer with an attorney. It arguably follows that once an arrestee's right under AS 12.25.150(b) is satisfied, the police have no duty to provide privacy during additional calls that are permitted as a courtesy.
Farrell, 682 P.2d at 1130 (citing Copelin, 659 P.2d at 1210).
See Kiehl v. State, 901 P.2d 445, 446 (Alaska App. 1995) (refusing to suppress breath test result even though police intentionally and surreptitiously recorded arrestee's conversation with attorney, because arrestee was oblivious to recording and thus consultation with counsel not impaired).
We need not decide this issue, however, because even assuming that Dill had a right to a reasonably private second phone call to his brother-in-law, he would not be entitled to suppression of his breath test result because he has not asserted, much less shown, that his conversation with his brother-in-law was constrained by the lack of privacy. We generally will not suppress evidence based on the violation of a statutory right unless the violation "demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense." In the context of the right under AS 12.25.150(b) to call an attorney, we have held that the defendant is only entitled to suppression of the breath test result if the defendant shows that the police intrusions on the privacy of the call actually impaired the consultation with counsel. We see no reason why a different rule would apply when an arrestee invokes the statutory right to call a relative or friend.
Winfrey v. State, 78 P.3d 725, 730 (Alaska App. 2003).
Kiehl, 901 P.2d at 447 n. 2, 448 (holding that suppression of breath test not required because Kiehl failed to show that conversation with counsel was affected to any appreciable degree by officer's conduct, where Kiehl admitted he had not noticed conversation was being recorded); see also Alexander v. Anchorage, 15 P.3d 269, 271 (Alaska App. 2000) (acknowledging that Alexander testified that he was nervous and uneasy when talking with his attorney because an officer was nearby, but finding no violation of right to private phone call where Alexander did not know conversation was being recorded); Reekie v. Anchorage, 803 P.2d 412, 413, 415 (Alaska App. 1990) (finding violation of right to reasonably private phone call where record supported Reekie's testimony that officers were close by, that he was aware they had recorder running, and that he felt inhibited in communicating).
Because Dill did not meet his burden of showing that his conversation with his brother-in-law was constrained by the lack of privacy, we uphold Judge Lohff's decision denying Dill's motion to suppress.
Conclusion
We AFFIRM Dill's conviction.