Opinion
Court of Appeals No. A-8809.
September 13, 2006.
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, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
John A. Scukanec, 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
In an earlier decision, we remanded this case to the superior court for additional findings on the issue of inevitable discovery, the last claim remaining after we rejected McCurdy's other claims. After an evidentiary hearing, the superior court found that the police would have inevitably discovered the contraband delivered to Daniel R. McCurdy through predictable investigative processes.
See McCurdy v. State, Alaska App. Memorandum Opinion and Judgment No. 5023 (Nov. 23, 2005), 2005 WL 3116544.
We affirm the superior court because the evidence in the record supports the court's findings.
We discussed the facts of the case in our earlier opinion, but we will summarize the facts needed to resolve this remaining claim. On March 5, 2003, Lisa Dorough opened a package addressed to McCurdy that was delivered to her house. She discovered twenty-one packets of what appeared to her to be heroin inside the trunk of a model car contained within the package. Dorough gave the package to the Kenai police.
The police field tested the substance in the packets and confirmed the presence of heroin. They returned one packet 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 police delivered the package to McCurdy the next day. After waiting approximately ten minutes, the police entered the house. The opened package was on a couch, and the contents, minus the packet of heroin, were on the kitchen counter.
The police found McCurdy in the kitchen and advised him of his Miranda rights. McCurdy asked for a lawyer. The single heroin packet was no longer in the trunk of the model car. After a quick look around the house, Soldotna Police Officer Tobin Brennan remarked, "OK. Someone needs to tell us where the heroin is before we search this entire house."
One of the officers mentioned that McCurdy could also be charged with evidence tampering. McCurdy pulled the heroin from under the refrigerator with his foot.
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).
Superior Court Judge Harold M. Brown granted a motion to suppress McCurdy's statements, including evidence of McCurdy's conduct pointing out the location of the single packet of heroin. However, citing Smith v. State, Judge Brown concluded that the heroin would have been "inevitably discovered based solely on information known to the police[,] and [the heroin was] not subject to suppression."
948 P.2d 473 (Alaska 1997).
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."
Id. at 481.
On remand, the superior court heard the testimony of Officer Tobin Brennan of the Soldotna Police Department and Alaska State Trooper Jeremy Grieme. The officers' testimony established that, when the officers entered the house, the opened package was on a couch and the contents, minus the packet of heroin, were on the kitchen counter. Dorough told the police that after the package was delivered but before the officers entered, McCurdy had been "in the living room, the kitchen, and near the fireplace." The police testified that they would have searched through the house until they found the heroin packet.
In Smith, the supreme court stated that the inevitable discovery doctrine "should come into play only when the evidence in question truly would have been discovered through procedures likely to be employed under the circumstances, rather than through unusual measures which police would only employ if given the benefit of hindsight." The court did not limit the range of what efforts by the police would constitute predictable investigatory procedures, noting that acceptable procedures might include "resourceful investigations which go beyond mere `standard operating procedures.'"
Id. at 480.
Id.
This analysis appears to sanction the admissibility of evidence discovered by the police where the discovery of the evidence was inevitable "in every practical sense." As Judge Brown found, Officer Brennan, acting as a package delivery person, delivered the package containing the heroin packet to Dorough's house. The package was handed to McCurdy. About ten minutes later, the police entered. The opened package was on a couch; the contents were located on a kitchen counter in front of McCurdy. The packet containing the heroin was not in the model car. McCurdy, who was handcuffed, used the tip of his shoe to pull the packet from under the front of the refrigerator, which was immediately behind McCurdy when the officers entered the kitchen.
Commonwealth v. O'Connor, 546 N.E.2d 336, 340 (Mass. 1989).
Judge Brown also found that the normal procedure for the police would have been to search every part of the house where McCurdy had access to find the missing packet, including under the refrigerator where Officer Brennan testified he would have looked. At least two officers, one following behind the other, would search the same area so as to be sure not to miss anything.
Judge Brown concluded that the packet would have been found by the officers' predictable investigative processes. Judge Brown's conclusion is supported by the findings. It is apparent that, in every practical sense, the police would have discovered the heroin with little additional effort had McCurdy not pulled the packet out from underneath the refrigerator with the tip of his shoe. The possible areas where the packet could have been hidden were in a limited area of the house and the packet was within reach of the tip of a shoe. No unusual measures were required to search. All that was required was a diligent and persistent effort by the police to find the heroin packet.
Because the findings support Judge Brown's conclusion that the police would have discovered the heroin packet through predictable investigative processes, we affirm the superior court.
Conclusion
The judgment of the superior court is AFFIRMED.