Opinion
Court of Appeals No. A-8088.
January 16, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mary E. Greene and Mark I. Wood, Judges, Trial Court No. 4FA-01-128 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT ON REHEARING
After Illya Brown petitioned this court for rehearing of an earlier opinion in this case, we remanded the case for additional findings to resolve the question of what issues the parties agreed were preserved for appeal when Brown entered his Cooksey plea. Originally, Brown entered his plea before Superior Court Judge Mary E. Greene, but Judge Greene retired and the case was assigned to Superior Court Judge Mark I. Wood for the additional findings. After we received the additional findings, we ordered briefing from the parties. We now address the remaining issues below.
See Brown v. State, Alaska App. Memorandum Opinion and Judgment No. 4770 (October 8, 2003), 2003 WL 22304141.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
The police, acting at the direction of a probation officer, entered the hotel room that Brown occupied and arrested him. Judge Greene found that the officers saw a cleaning rod associated with crack cocaine use in Brown's pocket in plain view when they contacted him. Brown argues that the police acted unlawfully when they seized him without a warrant. He also argues that Judge Greene's finding that the cleaning rod was in plain view is clearly erroneous, and that Judge Greene acted improperly by inspecting the cleaning rod before ruling on this issue. We reject Brown's arguments for the reasons expressed below.
The officers did not unlawfully seize Brown
As we discussed in an earlier opinion in this case, Alaska State Trooper James O'Malley, a member of a state-wide drug enforcement unit, received a phone call on January 10, 2001, from an employee of the Fairbanks Comfort Inn. The hotel employee was concerned that something suspicious was unfolding in a room registered to Charmayne Washington. The employee reported an unusual number of incoming phone calls to the room and that some callers said they had been paged with the number to the room. The employee also reported that a man identifying himself as Reginald Williams called from the room to pay for another night, but that Williams was not listed on the registration card for the room.
Trooper O'Malley checked computer records for both Williams and Washington. He learned that Charmayne Washington was on probation for a drug charge and that one of several people in the database with the name Reginald Williams had been convicted of robbery in Anchorage in 1991. Washington was subject to a probation condition that included her consent to a search of her residence by a probation officer.
Trooper O'Malley called Washington's probation officer, Glenn Bacon, and told him that he suspected Washington of drug activity at the hotel. Trooper O'Malley also told Bacon that Washington was in the room with someone who was known to be involved with drugs (apparently referring to the Reginald Williams with the robbery conviction). Bacon took no immediate action. Trooper O 'M alley and Investigator Teague Widmier, another member of the drug unit, watched the room registered to Washington for half an hour.
Trooper O'Malley later contacted Bacon with an update on the stakeout. Three federal agents — two Drug Enforcement Administration agents and one investigator from the Internal Revenue Service — joined Trooper O'Malley at the hotel and waited for Bacon to arrive. Bacon arrived at the hotel to conduct a "home visit" — that is, an inspection of Washington's room to see if she was complying with probation conditions. (Washington's probation conditions for a prior felony drug offense required that she "[s]ubmit to a warrantless, non-consensual search . . . of [her] person, personal property, residence . . . for controlled substances and prohibited weapons, at the direction of a probation officer.")
See State v. James, 963 P.2d 1080, 1081 (Alaska App. 1998).
Washington's behavior in the weeks leading up to the January 10 "home visit" at the hotel led Bacon to believe that Washington was "unstable." She had missed an office visit on December 20, 2000, and, one week later, had submitted a "hot UA" (a urinalysis that tested positive for cocaine). And Washington had recently lost her job under curious circumstances and had reported changes of address, most recently to another Fairbanks hotel.
After Bacon arrived at the hotel, he announced that he would be the person to contact Washington. Two of the federal agents went outside to watch the window to the room registered to Washington and reported seeing an African-American woman (Washington is African-American) look out the window. The remaining officers gathered at the door to the room. Bacon knocked and announced that he was Washington's probation officer and that he needed to speak to her. A male voice (Brown) replied that Washington was not in the room. Bacon knocked again, and again the male voice responded that Washington was not there. After Bacon knocked a third time, Trooper O'Malley announced that they were state troopers and told the man that he must open the door immediately or he would be arrested. Trooper O'Malley heard movement behind the door during the exchange. The man responded again that Washington was not there and said that he needed to get dressed.
The officers attempted to open the door with a key provided by hotel management, but the door was bolted. The man inside stated again that Washington was not there and asked if the officers had a warrant. Bacon responded that he was Washington's probation officer and he did not need a warrant. When the officers heard the deadbolt on the hotel room door unlatch, they opened the door with the key and entered the room. The officers forced Brown, who was near the door, onto the bed. The police saw a cleaning rod commonly used to clean crack pipes in Brown's jacket pocket. The only other person in the room when the officers entered was nineteen-year-old Tamerian White.
The police seized a used crack pipe from Brown's clothing and over $4000 in cash. They also seized crack cocaine that was in plain view.
Considering Judge Wood's findings, which included Washington's recent "hot" urinalysis, her missed appointment, her employment and housing problems, and the heavy phone traffic directed to the hotel room that was registered in her name, we conclude that Bacon had reasonable suspicion that Washington was in violation of her probation and was engaged in illegal drug activity. These findings are supported by the record and justified the police entry into the hotel room.
The seizure of the cleaning rod was justified because it was in plain view
Once the police had entered the room, they ordered Brown to back up to the bed. When Brown did not comply, Trooper O'Malley and Investigator Widmier forced him onto the bed. Judge Greene found that Trooper O'Malley saw a cleaning rod used to clean crack pipes in plain view in Brown's jacket pocket and seized it.
Brown argues that his seizure was not justified. When the police have reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred, they are authorized to perform an investigatory stop. Because the police and the probation officer had reasonable suspicion that illegal drug sales were occurring in the room, the investigatory stop of Brown was justified. And because, moments after contacting Bro w n, Trooper O'M alley noticed the cleaning rod in plain view in Brown's pocket, the police were entitled to seize it and to arrest Brown. Judge Greene's inspection of the cleaning rod does not warrant additional proceedings
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
See Joseph v. State, 145 P.3d 595, 598-99 (Alaska App. 2006).
See Dollison v. State, 5 P.3d 244, 247 (Alaska App. 2000); Snider v. State, 958 P.2d 1114, 1118 (Alaska App. 1998).
During the evidentiary hearing on Brown's motion to suppress the evidence seized in the hotel room, Trooper O'Malley testified that, when Brown was seized and placed on the bed, he saw the cleaning rod sticking out of Brown's jacket pocket. Brown introduced his jacket into evidence, and he testified that the cleaning rod and other paraphernalia were in zipped pockets, and that the cleaning rod was in the same zipped pocket as his wallet. Brown argued that, therefore, the police could not have seen the incriminating evidence that was found in his jacket.
At the end of the evidentiary hearing, after making several findings, Judge Greene indicated that, before she completely resolved the motion, she needed to listen to the audiotape of the hotel encounter again and to see the cleaning rod that was discussed in the testimony. Judge Greene announced that if she found that it was more likely than not that Trooper O'Malley "saw the rod during the pat down," she would deny the motion to suppress. Brown did not object when Judge Greene arranged to see the cleaning rod.
A few days later, Judge Greene issued a written decision denying the motion to suppress. In the decision, she credited Trooper O'Malley's testimony that the cleaning rod was visible and discredited Brown's testimony to the contrary. Apparently, Judge Greene examined how the rod fit in the jacket because she found that "it is possible to completely zip the pocket with the rod inside, but to do so is difficult and the rod must be put [in] diagonally."
Brown moved for reconsideration, arguing that the court had misconceived a material fact when it found that the rod was exposed. Brown asked to present additional evidence in an attempt to demonstrate how his wallet and the rod would fit together in his zipped jacket pocket.
Judge Greene denied the motion for reconsideration, ruling that Brown could not present additional evidence in a motion for reconsideration.
Brown argues that Judge Greene erred when she denied the motion for reconsideration. Brown contends that he was denied due process and the right to confront the evidence against him because Judge Greene apparently checked how the cleaning rod fit in the pocket that, according to Brown's testimony, contained the cleaning rod. Brown did not raise this argument in the superior court.
Brown argues that the court's inspection of the coat and the cleaning rod is analogous to an unauthorized jury experiment, and he relies on the discussion of jury experiments in Bowlin v. State. In Bowlin, this court cited several cases that rejected claims that a jury wrongly performed experiments in the jury room, usually with evidence admitted in the case and provided to the jury for its deliberations. In State v. Pease, we discussed additional cases that rejected claims that a jury acted improperly by performing experiments in the jury room, along with the same cases already cited in Bowlin.
823 P.2d 676 (Alaska App. 1991).
Taylor v. Reo Motors, Inc., 275 F.2d 699, 705 (10th Cir. 1960)). Id. at 679 (citing People v. Kurena, 410 N.E.2d 277 (Ill.App. 1980); State v. Thompson, 524 P.2d 1115 (Mont. 1974); People v. Engler, 540 N.Y.S.2d 591, 594 (N.Y.App. 1989); State v. Best, 232 N.W.2d 447, 457 (S.D. 1975); and Allen v. State, 146 S.W.2d 384, 386 (Tex.Crim.App. 1940), overruled on another point by Stiles v. State, 520 S.W.2d 894 (Tex.Crim.App. 1975).
163 P.3d 985 (Alaska App. 2007).
Id. at 990-92.
Apparently, Judge Greene checked whether the cleaning rod would fit in the zipped coat pocket and found that it could. Even assuming that the case law regarding jury experiments applies to a court's post-hearing examination of evidence to decide a motion to suppress, Judge Greene's examination of the coat and the cleaning rod was permissible. This is so because, as explained in Bowlin and Pease, even if the coat and the rod had been exhibits at a jury trial and had been provided to the jury, a jury that checked whether the rod could fit in the pocket would not be performing an unauthorized experiment.
Furthermore, Judge Greene ultimately found that the rod would fit in the pocket — a finding that was consistent with Brown's position at the hearing. Even so, Judge Greene rejected Brown's testimony that the rod was not visible and credited the officers' testimony that the rod was in plain view. This court "give[s] broad deference to the trial judge's ability to observe the demeanor of witnesses, to form first hand impressions of their credibility, and to decide the weight that should be given to their testimony." We conclude that Judge Greene did not err when she denied the motion for reconsideration.
Maloney v. State, 667 P.2d 1258, 1267 (Alaska App. 1983).
Because we reject these remaining claims advanced by Brown, we need not address the State's claim that the evidence would have been inevitably discovered.
Conclusion
The judgment of the superior court is AFFIRMED.