Opinion
Court of Appeals No. A-11502 No. 6083
08-20-2014
STATE OF ALASKA, Appellant, v. JOHN EDWARD LAKE, Appellee.
Appearances: Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Petitioner. Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Respondent.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4CH-11-053 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge. Appearances: Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Petitioner. Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Respondent. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
The State charged John Edward Lake with felony driving under the influence and felony breath-test refusal. The superior court concluded that the Hooper Bay police lacked probable cause to arrest Lake, and the court therefore suppressed all the evidence arising from Lake's arrest. Having suppressed this evidence, the superior court dismissed the charges against Lake. The State appeals this dismissal.
We now reverse the superior court's ruling. As we explain in this opinion, the superior court's analysis of this case is inconsistent with the law defining "probable cause", the law pertaining to the evaluation of the credibility of citizen informants under the Aguilar-Spinelli test, and the law pertaining to establishing an informant's basis of knowledge under the Aguilar-Spinelli test.
Underlying facts
On the evening of March 3, 2011, the Hooper Bay police received a telephone call from John Lake's mother, Mary Smith. According to Sgt. Demetri Oaks (the officer who took Smith's call from the dispatcher), Smith stated that "he was doing it again". When Oaks asked Smith to clarify just who was doing what again, Smith explained that her son, John Lake, was "DUI'ing again" — that Lake was intoxicated, and that he "just took off with the snow machine". Oaks asked Smith if she knew where Lake was headed, and Smith said that Lake was going to his grandmother's house.
Oaks and another officer, Robert Tinker, drove to Lake's grandmother's house. Mary Smith's snow machine was sitting outside when the officers arrived. (The snow machine had Smith's name on it.)
The officers knocked on the door of the house, and they were invited in. Lake was among the people in the house, and Oaks informed Lake that someone had reported him for driving under the influence. Oaks asked Lake to submit to field sobriety tests, but Lake refused. At this point, Oaks was standing next to Lake, and he could smell a strong odor of alcoholic beverages coming from Lake's person. Lake's eyes were bloodshot, his speech was slurred, and he was swaying back and forth as he stood.
Oaks arrested Lake, brought him to the police station, and asked him to submit to a breath test. Lake refused the breath test.
Lake was subsequently indicted for felony driving under the influence and felony breath-test refusal. (These offenses were charged as felonies because of Lake's prior convictions.)
Following his indictment, Lake filed a motion asking the superior court to suppress all the evidence stemming from his arrest (including his refusal to take the breath test). Specifically, Lake argued that his arrest was not supported by probable cause.
After holding an evidentiary hearing (where Sgt. Oaks presented the testimony that we have just described), the superior court agreed with Lake that there was "a paucity of facts to support a finding of probable cause."
In its written decision, the superior court noted that neither Sgt. Oaks nor Officer Tinker personally observed Lake driving the snow machine. The superior court then declared that the two officers "[made] no attempt to verify that the 'tipster' [i.e., Lake's mother, Mary Smith] saw Lake driving", and the superior court further declared that the two officers "[made no] inquiry into the underlying facts and circumstances to determine whether [Mary Smith's] tip was reasonably trustworthy."
Based on this view of the case, the superior court ruled that the police lacked probable cause to arrest Lake. Here is the concluding portion of the court's written decision:
The undisputed facts show that no witness can attest to Lake driving the snowmachine from ... his mother's house to his grandmother's house where the police found him. The
only investigatory step by the police was a request that the defendant take a field sobriety test. The arresting officers had no independent reliable evidence that the defendant was the driver of the snowmachine, let alone that he was driving intoxicated. ...
Based on all of the above, the officers' warrantless arrest of the defendant was without the requisite probable cause. Therefore, any evidence of the arrest, and any and all statements made during the arrest, and all of the evidence derived from the arrest are suppressed.
After the superior court issued this decision, the State asked for reconsideration, but the superior court re-affirmed its ruling.
In its order denying reconsideration, the superior court faulted the police for not questioning Mary Smith to discover the reasons why she believed that her son was committing DUI. The court declared, "For all that appears [from the information known to the police] at the time of [Lake's] arrest, [Mary Smith's report was] hearsay within hearsay that was completely devoid of any personal knowledge ... ."
The superior court then discounted the fact that Mary Smith was a "citizen informant" for purposes of the Aguilar-Spinelli search and seizure analysis:
[The fact that] Smith is a reliable informant does not get to the heart of the matter. It simply means that she may have been accurately reporting hearsay, or [even] accurately reporting what someone told her another person said [i.e., double hearsay]. Separate and apart from [an] informant's reliability there must be a factual basis upon which the tip rests in order to find probable cause [based on] the tip.
Here there was none. [Sergeant] Oaks did not ask Smith whether it was she who saw Lake driving, whether she
in fact knew he was driving, or even whether it was she who believed Lake to be intoxicated and why.
Why we reverse the superior court's decision
The superior court's analysis of this case is fundamentally at odds with the law defining "probable cause", with the presumed reliability of information received from citizen informers, and with the law relating to the "basis of knowledge" prong of the Aguilar-Spinelli test.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of state law, the Aguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure).
Under the Aguilar-Spinelli test, when the government relies on hearsay to justify a search or seizure, the government must show (1) that the hearsay informant obtained their information in a reliable way (the "basis of knowledge" prong), and (2) that the hearsay informant is a trustworthy person (the "credibility" prong). See Schmid v. State, 615 P.2d 565, 574-75 (Alaska 1980); Rynearson v. State, 950 P.2d 147, 150 (Alaska App. 1997).
With respect to the second prong of the test (the trustworthiness of the informant), the law divides informers into two categories: "police informants" and "citizen informants" (including police officers). Generally speaking, police informants are presumed to be untrustworthy, while citizen informants are presumed to be trustworthy. See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985); Mustafoski v. State, 867 P.2d 824, 827 (Alaska App. 1994).
In the present case, no one disputes that Mary Smith — Lake's own mother — should be viewed as a "citizen informant" for purposes of the Aguilar-Spinelli analysis. And because Smith was a citizen informant, the police were entitled to presume that the information she conveyed to them was reliable. This is the rule adopted by the Alaska Supreme Court in Erickson v. State, 507 P.2d 508, 518 (Alaska 1973):
We hold that a valid arrest may be made on information provided by a "citizen informer" and that the informer's prior reliability need not be established before the arrest. The only caveat placed on [this] rule is that some of the details of the information must be verified before [the] arrest occurs.
Under the Erickson decision, the police were required to corroborate at least some details of Mary Smith's tip. Here, the police corroborated Smith's tip in several respects.
Smith told the police that Lake was intoxicated, that he had just left on the snow machine, and that he was headed to his grandmother's house. When the police arrived at the grandmother's house several minutes later, they found Mary Smith's snow machine sitting outside the house, they found Lake inside the house, and they observed that Lake was intoxicated. Thus, the "credibility" prong of the Aguilar-Spinelli test was satisfied.
We now turn to the other basis of the superior court's decision: the superior court's conclusion that the State failed to establish the "basis of knowledge" prong of the Aguilar-Spinelli test — i.e., failed to provide good reason to believe that Smith's information was based on personal knowledge, or that she had otherwise acquired her information in a reliable way.
It is true, as the superior court noted in its decision, that Smith never expressly declared that she was speaking from personal knowledge when she called the police to report that her son was "DUI'ing again" on the snow machine. But the superior court was clearly wrong when it declared that there was nothing in the record to show that Smith spoke from personal knowledge.
From the wording that Smith used when she spoke to Sgt. Oaks, she appeared to be describing an on-going event: Smith reported that her son was "DUI'ing again", that he "just took off with the snow machine", and that he was headed toward his grandmother's house.
Smith's words must be interpreted "in a common-sense and realistic fashion". And the natural inference from Smith's report is that Smith was describing something she had just witnessed, something that was still occurring as she spoke.
State v. Koen, 152 P.3d 1148, 1151 (Alaska 2007) (citing authorities).
Moreover, the "basis of knowledge" prong of the Aguilar-Spinelli test may also be established by inference drawn from the detail of an informant's tip, if the informant furnishes the sort of detail that generally could be obtained only through personal knowledge. Here, Smith did not just say that her son was driving under the influence. She told the police that her son was driving the snow machine, that he had just left, and that he was headed to a particular residence. These are the sort of details that support an inference of personal knowledge — details that are unlikely to come from speculation or from the hearsay reports of others.
See Draper v. United States, 358 U.S. 307, 313; 79 S.Ct. 329, 333; 3 L.Ed.2d 327 (1959); Schmid v. State, 615 P.2d 565, 574 (Alaska 1980); Hugo v. State, 900 P.2d 1199, 1201 (Alaska App. 1995); Chandler v. State, 830 P.2d 789, 795 (Alaska App. 1992).
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Finally, as this Court explained in Chandler v. State, 830 P.2d 789, 795 (Alaska App. 1992), even when a hearsay informant does not expressly assert personal knowledge (or when the informant's personal knowledge is not otherwise obvious), the reliability of the informant's information can be established through other evidence that corroborates the information. In general, see Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 3.3(f), Vol. 2, pp. 229-234.
Here, by the time the police arrested Lake, they had corroborated key aspects of Smith's report: within minutes of receiving Smith's report, the officers found Lake at his grandmother's house, they found Smith's snow machine parked outside, and they observed that Lake was intoxicated.
In its decision, the superior court conjectured that Smith was speaking of things she had no direct knowledge of — that Smith was simply repeating things she had heard from someone else, or even from someone else's double hearsay report. These possibilities are perhaps conceivable. But as our supreme court explained in State v. Koen, 152 P.3d 1148, 1152 (Alaska 2007), "probable cause is by definition a standard that hinges on probability rather than certainty".
Probable cause may exist even though the available information does not rule out other possible explanations. Ibid. The key question is not whether alternative explanations might be possible. Rather, the question is whether the potential alternative explanations are so likely, or so strongly supported, as to undermine a reasonable basis for adopting the State's proposed view of the situation. Ibid. As our supreme court stated in State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001), there is probable cause to make an arrest if the information known to the police raises "a fair probability or substantial chance of criminal activity."
Here, the record provides abundant reason to believe that Lake's mother was speaking from personal knowledge when she reported that her son was committing DUI.
Based on all of this, we conclude that the "basis of knowledge" prong of the Aguilar-Spinelli test was satisfied.
Conclusion
The hearsay report that Mary Smith provided to the police satisfied both prongs of the Aguilar-Spinelli test. Further, the entirety of the information known to the police at the time they arrested Lake (both Smith's report and their own investigation) established probable cause to believe that Lake had committed the offense of driving under the influence. The arrest was therefore proper.
The decision of the superior court is REVERSED, and the charges against Lake are reinstated.