Opinion
Court of Appeals No. A-8809.
November 23, 2005.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge. Trial Court No. 3KN-03-478 CR.
Krista Maciolek, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Daniel R. McCurdy appeals the superior court's ruling that contraband the police seized after McCurdy invoked his Miranda rights would have been inevitably discovered. Because we need additional findings from the superior court to analyze this issue, we remand the case.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On March 5, 2003, Lisa Dorough contacted the Kenai police about a package addressed to McCurdy that was delivered to her house. She had opened the package and discovered twenty-one packets of what appeared to her to be heroin inside the trunk of a model car that was inside the package. Dorough gave the package to the police.
Members of a statewide drug enforcement unit took over the investigation and confirmed with a field test that the packets contained heroin. They decided to attempt a controlled delivery of the package. They returned one packet of heroin to the trunk of the model car; resealed the package; obtained a search warrant contingent upon delivery of the package; and called Dorough's house posing as the package delivery company. Dorough gave the phone to an individual she identified as McCurdy. The police agreed to deliver the package the next day.
The next day, March 6, 2003, the police delivered the package to McCurdy personally after McCurdy provided identification. After waiting approximately ten minutes, the police entered Dorough's house.
The police found McCurdy in the kitchen and advised him of his Miranda rights. After the police asked him if he was expecting a heroin delivery, McCurdy asked for a lawyer. The police stopped questioning McCurdy and looked at the package, discovering that the single heroin packet was no longer in the trunk of the model car. After the police conducted a cursory search and were unable to find the heroin, Soldotna Police Officer Tobin Brennan remarked, "OK. Someone needs to tell us where the heroin is before we search this entire house."
After talking to the district attorney's office, Officer Brennan informed McCurdy that he was under arrest for second-, third-, and sixth-degree misconduct involving a controlled substance. Another officer mentioned that McCurdy could also be charged with tampering with evidence. McCurdy then produced the missing heroin from under the refrigerator.
The grand jury charged McCurdy with one count of second-degree misconduct involving a controlled substance, one count of fourth-degree misconduct involving a controlled substance, and one count of tampering with physical evidence.
AS 11.71.020(a)(1) (possession of heroin with intent to deliver).
AS 11.71.040(a)(3)(A) (possession of heroin).
AS 11.56.610(a)(1).
McCurdy filed a motion to suppress statements obtained during custodial interrogation. McCurdy argued that the statements were obtained in violation of his right against self-incrimination and his right to assistance of counsel. Superior Court Judge Harold M. Brown granted the motion to suppress McCurdy's statements, including evidence of McCurdy's conduct pointing out the location of the single packet of heroin. Judge Brown's order, citing Smith v. State, added that the heroin would have been "inevitably discovered based solely on information known to the police and [the heroin was] not subject to suppression." Neither McCurdy nor the State raised the issue of inevitable discovery during the evidentiary hearing or in their memoranda.
948 P.2d 473 (Alaska 1997).
McCurdy moved the court to reconsider the ruling. McCurdy argued that the court had misapplied the inevitable discovery doctrine adopted by the Alaska Supreme Court in Smith. Judge Brown issued an order rejecting McCurdy's argument and reaffirmed his ruling that the single packet of heroin was admissible. (McCurdy does not discuss the motion to reconsider or the court's rejection of his claim in his brief to this court.)
Thereafter, McCurdy filed a request for a change of plea, indicating that he would enter a Cooksey plea to tampering with evidence with an agreement that he would receive a 24-month sentence with 18 months suspended. When the court accepted the plea, there was no discussion of what would happen with the two remaining charges. At sentencing, the court imposed a flat 2-year term to serve (McCurdy refused to accept probationary supervision) and the court dismissed the charges of misconduct involving a controlled substance.
See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
We express no opinion on the validity of the Cooksey plea.
In Smith, the Alaska Supreme Court described the test for the applicability of the inevitable discovery doctrine as follows: "[I]f the prosecution can show, by clear and convincing evidence, that illegally obtained evidence would have been discovered through predictable investigative processes, such evidence need not be suppressed as long as the police have not knowingly or intentionally violated the rights of the accused in obtaining that evidence."
Smith, 948 P.2d at 481.
The parties litigated the Miranda issue at the evidentiary hearing but not the inevitable discovery question. Judge Brown raised the inevitable discovery doctrine after the evidentiary hearing without the parties delving into the investigative processes the police might have used. We recognize that there was testimony at the evidentiary hearing that the police were considering calling in a drug detection dog to assist in the search for the heroin packet, but there was no direct evidence that a dog was available or that the dog had the capability to find the heroin packet.
The inevitable discovery doctrine permits the introduction of evidence that was otherwise illegally seized. But neither party questioned the witnesses directly about the evidence relating to the application of the inevitable discovery doctrine.
We do not resolve whether the heroin packet was necessarily subject to suppression if it was illegally seized. See United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004), a case in which five justices concluded that a Miranda violation does not require the suppression of reliable physical evidence obtained after the violation. Nor do we decide whether, despite Patane, the State would be entitled to introduce evidence of the location of the heroin packet.
Accordingly, we will remand the case to the superior court for the parties to litigate the inevitable discovery issue. The superior court shall transmit its findings to this court within 120 days. Each party shall have 30 days from the transmission of those findings to submit simultaneous memoranda addressing the findings. We retain jurisdiction.