Opinion
Court of Appeals No. A-10440.
April 27, 2011.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-07-1863 CR.
Rex Lamont Butler, Rex Lamont Butler Associates, Inc., Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jason and Douglas Selvester were camped on state land when a park ranger approached them to investigate a tip that someone from their camp had been trying to sell hallucinogenic mushrooms. The ranger's search of the Selvesters' truck yielded drugs, drug paraphernalia, and a large sum of cash. Jason argues that the evidence discovered by the ranger should be suppressed because he failed to preserve a digital recording of the investigation. He also argues that the evidence should be suppressed because the brothers did not voluntarily consent to searches of the truck and because they were interrogated before they were advised of their Miranda rights. We conclude that the trial court reasonably found that the Selvesters freely consented to searches of their possessions, that they were never subjected to custody that would require Miranda warnings, and that sanctions for destruction of evidence would be inappropriate.
Background
Jason and Douglas Selvester were camped on state land off Chena Hot Springs Road, along with Douglas's girlfriend and another acquaintance. State Park Ranger Paul Lhotka was on patrol in the area and received a tip from another camper that individuals from the Selvesters' camp were selling mushrooms. The Selvesters' accounts of their interactions with Lhotka differ greatly from Lhotka's account.
At a suppression hearing, Lhotka testified that Douglas emerged from a tent after Lhotka approached the camp. Lhotka intended to record the contact on his portable digital recorder, but either the device malfunctioned or the recordings were accidentally erased. Douglas admitted that he had consumed mushrooms but denied offering them for sale. Douglas then retrieved some empty baggies with mushroom residue from the truck.
Lhotka testified that Douglas agreed that Lhotka could look in the truck, and Lhotka discovered marijuana pipes and $7,450 in cash in the center console. Lhotka then contacted the troopers for assistance, while waiting for Jason to return to the camp.
Jason arrived at the camp about an hour later on a four-wheeler. He admitted that the mushrooms were his, but he denied offering them for sale. Lhotka asked if he had any more drugs, and Jason retrieved a shaving kit bag from behind the driver's seat containing mushrooms and marijuana.
After Jason returned to the campsite, Alaska State Trooper Barry Cebulski arrived on the scene. When Cebulski asked Jason who owned the mushrooms and marijuana, Jason explained that the drugs were his and that he had decided to turn them over after learning that the ranger wanted to search the truck.
Jason was charged with misconduct involving a controlled substance in the fourth degree (for possessing mushrooms) and in the fifth degree (for possessing more than an ounce of marijuana).
AS 11.71.040(a)(3)(A).
AS 11.71.050(a)(2)(E). The judgment mistakenly indicates that Jason was convicted under AS 11.71.050(a)(1) for possession of less than one ounce of marijuana with the intent to distribute. The amended indictment indicates that Jason was charged under AS 11.71.050(a)(2)(E) for possession of more than one ounce of marijuana.
Jason moved to suppress the evidence discovered during Lhotka's search of the truck because Lhotka failed to preserve a digital recording of Douglas's consent to search. Judge Wood denied the motion, finding that Lhotka made a good faith effort to record the conversation, but the recorder malfunctioned.
Jason then filed a second motion to suppress, this time claiming that both Douglas and he were subjected to custodial interrogation in violation of Miranda v. Arizona, and that the consent they gave to search the truck was not voluntary. At a hearing on the motion, the court heard testimony from Douglas, Jason, Lhotka, and Cebulski. Lhotka and Cebulski testified as set out above.
384 U.S. 436 (1966).
Douglas and Jason presented a different perspective. Douglas testified that after he handed over the baggie with mushroom residue, Lhotka just began to search the truck without asking for any permission. Douglas also testified that Lhotka parked his patrol vehicle in a way that blocked Douglas's truck and that the ranger forced him to stand still during the investigation.
Jason testified that he turned over the mushrooms and marijuana only because Lhotka threatened to impound Douglas's truck. Jason testified that he was afraid that they would be stuck in the middle of nowhere.
Judge Wood rejected Douglas's testimony because of inconsistencies and bias. The judge also rejected some of Jason's testimony for similar reasons. The judge concluded that neither Selvester was in custody for Miranda purposes during their contact with Lhotka, and that they voluntarily retrieved the drugs and consented to the search of the truck. But Judge Wood suppressed all of Jason's statements to Cebulski because Jason was in custody at the time of that interview, and Cebulski did not give Jason sufficient Miranda warnings.
Jason was convicted after a bench trial, and he now appeals.
Discussion Standing
T he State argues that Jason lacks standing to challenge the constitutionality of Lhotka's contacts with Douglas since Jason cannot show that Lhotka engaged in gross or shocking misconduct, or that he deliberately violated Douglas's rights. But the State did not make this argument to Judge Wood. We have "consistently held that the state cannot argue that a defendant does not have standing to raise a suppression issue when the state has not contested this issue in the court below." The State is now precluded from asserting that Jason lacks standing because this issue was not raised in the superior court.
See generally Waring v. State, 670 P.2d 357, 363 (Alaska 1983) ("[W]e hold that a defendant has standing to assert the violation of a co-defendant's fourth amendment rights if he or she can show (1) that a police officer obtained the evidence as a result of gross or shocking misconduct, or (2) that the officer deliberately violated a co-defendant's rights.").
D'Antorio v. State, 837 P.2d 727, 730 (Alaska App. 1992) (collecting cases).
The missing recordings
Selvester first argues that the State violated his right to due process because Lhotka failed to preserve a recording of his contacts with him and his brother. Selvester contends that all of the evidence obtained during those contacts must either be suppressed or, at least, presumed to be favorable to his defense.
But this is not a situation where the police collected evidence and then allowed the evidence to be lost or destroyed. Based on the evidence presented at the hearing, Judge Wood found that no recording was ever made: the judge concluded that, even though Lhotka tried to record his contacts with the Selvesters, his recorder malfunctioned. Thus, Selvester's underlying claim is that Lhotka failed to "collect" (and preserve) evidence when he unsuccessfully attempted to make an audio recording of the contacts.
The general rule, however, is that the State has no duty to collect evidence; the State's duty of preservation applies only to evidence that has actually been gathered.
Snyder v . State, 879 P.2d 1025, 1028 (Alaska App. 1994), rev'd on other grounds, 930 P.2d 1274 (Alaska 1996); March v. State, 859 P.2d 714, 716 (Alaska App. 1993).
The situation would be different if Lhotka had been under a duty to record his contacts with the Selvester brothers. But under Alaska law, Lhotka was not required to record his field contacts with the Selvesters.
See, e.g., Bradley v. State, 197 P.3d 209, 212-14 (Alaska App. 2008) (describing a case where the state lost the recording of the defendant's DUI processing at a police station).
See Shindle v. State, 731 P.2d 582, 584-85 (Alaska App. 1987) (indicating police officers have no constitutional obligation to record crime scene interviews); Resecker v. State, 721 P.2d 650, 653 n. 1 (Alaska App. 1986) (same).
Accordingly, we reject Selvester's argument that he was deprived of due process of law because of Lhotka's failed attempt to record these field contacts.
The Selvesters were not in Miranda custody.
A suspect is entitled to Miranda warnings before any custodial interrogation. Custodial interrogation involves "questioning initiated by law
State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002) (quoting Miranda, 384 U.S. at 467).
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." To determine whether a suspect is in custody we are required to examine two issues: "(1) the circumstances surrounding the interrogation; and (2) given the totality of those circumstances, whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave."
Id. (quoting Miranda, 384 U.S. at 444).
Id. (citing Thompson v. Keohane, 516 U.S. 99, 112 (1995)).
In this case, the interviews took place at a public campground just forty miles from Fairbanks, and the Selvesters arrived there themselves. When Lhotka approached the campsite, he told Douglas that he had received a report of mushrooms being offered for sale. Lhotka conceded that if Douglas had replied, "I don't want to talk to you," then Lhotka would have had no option but to leave. But Douglas instead confessed to having consumed mushrooms. Lhotka asked to have the bags, and Douglas complied. Lhotka then asked if he could look in the truck, and Douglas again complied.
Lhotka talked with Douglas for approximately thirty minutes before he called the troopers. Lhotka did not physically restrain Douglas in any way. After Cebulski arrived, Douglas was handcuffed and placed in the trooper vehicle while Lhotka and Cebulski searched his truck, but then he was released. We agree with Judge Woods that Douglas was not arrested or otherwise placed in custody during his conversation with Lhotka.
When Jason came back to the campsite, Lhotka kept the brothers separate so that he could get independent stories from each of them. Lhotka explained the situation to Jason and asked about the money. Lhotka then asked Jason if he could search the vehicle and if there were any more drugs in the vehicle. Jason then reached behind the driver's seat and pulled out the black shaving kit containing mushrooms and marijuana. Again, there was no restraint to the degree associated with a formal arrest.
The Selvesters voluntarily consented to the searches.
We follow a totality-of-the-circumstances approach to determine if the defendant's will was overborne, thus rendering a consent to search involuntary. In evaluating the totality of the circumstances, we review "both the characteristics of the accused and the details of the interrogation."
Frink v. State, 597 P.2d 154, 167 (Alaska 1979) (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)).
Id. at 168 (quoting Schneckloth, 412 U.S. at 226).
Jason argues that Douglas's initial consent to search the truck was coerced, and that Lhotka then exceeded the scope of the alleged consent to search when he opened the center console. Jason argues that Lhotka threatened to impound the truck if he did not consent to a search, and that he feared being stuck in the middle of nowhere.
Jason's argument depends on crediting the testimony of the Selvester brothers. But we must view the evidence in the light most favorable to the trial court's ruling. Judge Wood completely rejected Douglas's testimony as "unbelievable," and he found Jason's testimony only marginally more credible. We conclude that Judge Wood's findings were adequately supported by the testimony of Lhotka and Cebulski as set forth above.
Crawford v. State, 138 P.3d 254, 258 (Alaska 2006).
Douglas and Jason were both adults who appear from the hearing transcripts to be of normal intelligence. Their conversations with Lhotka were not threatening or lengthy. Lhotka testified that Douglas almost immediately confessed to consuming mushrooms, quickly gave up the empty bags containing residue, and then agreed that the ranger could look in his truck. Jason also agreed to retrieve the mushrooms and marijuana after only a short conversation. There were no threats or promises, no deprivation of food or sleep, or any other type of coercion. Judge Wood reasonably concluded that both Selvesters were acting voluntarily.
Conclusion
We AFFIRM the superior court's judgment.