Opinion
Court of Appeals No. A-9441.
January 9, 2008.
Appeal from the Superior Court, Third Judicial District, Unalaska, Sharon L. Gleason, Judge, Trial Court No. 3UN-03-00166 CR.
David W. Miner, Attorney at Law, and Joshua P. Fink, Public Advocate, Office of Public Advocacy, Anchorage, for the Appellant. W.H. Hawley, 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
Joel Apostle Cabral, following a bench trial with stipulated facts, was convicted of third-degree misconduct involving a controlled substance (for possession of methamphetamine with intent to deliver), a class B felony. Cabral raises four separate issues on appeal. First, Cabral alleges that the superior court erred in finding that exigent circumstances justified the warrantless seizure of his apartment. Based upon the facts that the police legally entered Cabral's apartment and did not obtain any evidence against Cabral as a result of the seizure before they searched his apartment under authority of a search warrant, we conclude that the superior court did not err in denying Cabral's motion to suppress. Second, Cabral claims the court erred in finding the inevitable discovery doctrine justified the warrantless search of his car. We uphold the search, but for a different reason: we conclude the search warrant authorized the police to search Cabral's car. Third, Cabral claims the court erred in failing to dismiss the indictment against him because the prosecutor did not present possibly exculpatory evidence to the grand jury. We uphold the superior court's ruling. Fourth, Cabral claims his conviction is not supported by sufficient evidence and must be overturned. We also uphold the superior court's conclusion that the evidence which the State presented at trial was sufficient to justify Cabral's conviction.
AS 11.71.030(a)(1).
Factual and procedural background
On May 31, 2003, the Unalaska Department of Public Safety received an anonymous tip regarding the sale of methamphetamine at the nearby UniSea facility. (UniSea is a seafood company with a large processing facility in Unalaska; the facility includes employee residential housing.) The tip led the police to contact Martin Diaz, the safety and security supervisor at UniSea. In turn, Diaz notified the police of his suspicions regarding methamphetamine use by an employee named Larry Pangilinan.
Unalaska Police Officer John Merrion confronted Pangilinan on June 2. Pangilinan denied using methamphetamine and consented to a search of his apartment at UniSea. The search yielded no evidence. But, later that morning, Pangilinan was ordered by UniSea management to provide a urine sample at the UniSea dispensary. The urine tested positive for methamphetamine use.
Pangilinan's positive drug test jeopardized his continued employment with UniSea. Diaz persuaded Pangilinan to cooperate with police by promising to speak favorably about him to UniSea Human Resources. Pangilinan told Officer Merrion that he bought his methamphetamine from Joel Cabral, another UniSea employee. According to Pangilinan, Cabral stored the methamphetamine in the shower curtain rod in Cabral's apartment, in the base of a candle holder in Cabral's apartment, and under the Velcro strap of Cabral's sandals.
Officer Merrion had other reasons to suspect Cabral was selling drugs. In January 2003, Eric Flavin had contacted Unalaska police. Flavin, stating he was tired of being accused of dealing drugs at UniSea, told police that Joel Cabral was coming to UniSea soon and would be bringing methamphetamine to sell. Also, in April 2003, Allen Bautista was arrested for possession of methamphetamine. Bautista told police that Cabral sold him the drugs from Cabral's UniSea apartment. Based on Bautista's statement, the police went to Cabral's apartment and were given permission to search inside. This search revealed no signs of drug use.
As a result of the new information from Pangilinan, Officer Merrion decided to set up a controlled methamphetamine buy from Cabral, using Pangilinan as the buyer. Two officers and Diaz accompanied Pangilinan to his apartment at UniSea to discuss the plan. Pangilinan said the standard procedure to buy methamphetamine was to telephone Cabral to set up a meeting. Officer Merrion asked Pangilinan to follow this procedure in order to avoid alerting Cabral to police involvement. Pangilinan called Cabral to set up the drug buy, but Cabral was sleeping and said he would return the call later. At this point, Officer Merrion left UniSea to begin working on the paperwork required for the warrant to electronically record the drug buy. To ensure Pangilinan did not alert Cabral to the investigation, Officer Merrion left Felix Cruz, a different UniSea security officer, with Pangilinan. (Pangilinan, Cabral, and Cruz all spoke Tagalag, but Diaz did not.)
Shortly thereafter, Cabral knocked on Pangilinan's apartment door. Cruz hid in the bathroom so he could overhear the conversation without being seen. Cabral questioned Pangilinan about who had just been in Pangilinan's room; Cabral stated he believed he had seen police officers with Pangilinan throughout the day. Pangilinan attempted to reassure Cabral that he (Pangilinan) had only been speaking to UniSea security, not the police. Cabral and Pangilinan then left the room.
Immediately after this, Cruz called Diaz to notify him of Cabral's visit. At 11:43 a.m., Diaz called Officer Merrion at the police station. Officer Merrion drove back to UniSea to meet with Diaz and Cruz to discuss the options in their investigation. The three concluded that Cabral was "very suspicious" and he "thought something was going to happen."
This shifted the police investigation from an attempted controlled buy to an investigation into Cabral's possession of the methamphetamine. Officer Merrion called his sergeant to discuss how best to prevent Cabral from destroying evidence while the police obtained a search warrant for Cabral's apartment. The police decided to preemptively seize Cabral's apartment while applying for the search warrant. Before the seizure could occur, Officer Ron Dupee had to join Officer Merrion at UniSea.
This discussion and coordination took close to an hour and a half. Officers Merrion and Dupee, along with Diaz, proceeded to Cabral's room at a few minutes after 1:00 p.m. The officers knocked on Cabral's door and were given permission to enter.
The police entered Cabral's apartment to find Cabral eating his lunch and watching television. His girlfriend, Veronica Schreiber, lay partially undressed in bed. The officers announced that Cabral and Schreiber were not free to leave the room. Cabral and Schreiber were told the room was being seized while the officers obtained a warrant. Officer Dupee remained to secure the apartment, while Officer Merrion returned to the police station to complete the search warrant application.
Later that afternoon, Officer Merrion, Diaz, and Pangilinan testified before Magistrate Karla Utter at the search warrant proceedings. Immediately before the hearing began, Pangilinan notified Officer Merrion that, in addition to storing methamphetamine in the shower rod curtain and under the candle holders, Cabral kept methamphetamine in Cabral's car. This new information was not contained in Officer Merrion's affidavit, so Officer Merrion immediately presented this new evidence to the magistrate. Pangilinan testified that Cabral's car, a blue Honda Civic, was parked just outside Cabral's apartment and that drugs were hidden inside. Upon questioning, Pangilinan stated he sometimes drove Cabral's car and that he had a key to the car. The magistrate issued the search warrant.
Officer Merrion returned to UniSea to execute the warrant at 3:35 p.m., approximately two and one-half hours after Cabral was first detained. Based on Pangilinan's information, the police found two bindles of methamphetamine hidden under the straps of Cabral's sandals and four bindles hidden in the base of candles on an altar in the apartment. Each bindle contained the typical single use amount of methamphetamine — approximately one-half gram. While no drugs were found in the shower curtain rod, it was apparent that the rod had been repeatedly removed and reinserted.
There were also two black suitcases in the room, which Schreiber claimed she owned. Each bag had a locked pocket, to which Schreiber had the keys. Inside the locked pockets was $5,000 in cash and $20,000 in blank money orders. Schreiber, who was eight months pregnant, said the money was for a C-section.
The police also found a car key hidden in the underwear Schreiber was wearing. The key opened a blue Honda Civic parked directly under the window of Cabral's apartment. The police immediately searched the Civic. They found two bags in the back seat area. The first bag contained 9.1 grams of methamphetamine, divided into 60 individual bindles. The second bag contained another 9.1 grams of undivided methamphetamine.
Based on this evidence, the State charged Cabral with one count of misconduct involving a controlled substance in the third degree (possession with intent to deliver) and one count of misconduct involving a controlled substance in the fourth degree (ongoing use of a home or vehicle to distribute drugs). The grand jury returned an indictment on both charges.
AS 11.71.030(a)(1).
AS 11.71.040(a)(5).
Before Superior Court Judge Sharon L. Gleason, Cabral and the State agreed to a bench trial based upon stipulated facts. Judge Gleason found Cabral guilty of possession of methamphetamine with intent to deliver, but not guilty of the ongoing use of a home or vehicle to distribute drugs charge. Judge Gleason sentenced Cabral to 24 months to serve, with 18 months suspended. Cabral now appeals several aspects of his conviction.
Why we uphold Judge Gleason's decision denying Cabral's motion to suppress evidence the police discovered in Cabral's apartment
Judge Gleason ruled that the police could lawfully enter and seize Cabral's apartment before they obtained a warrant based upon exigent circumstances. Judge Gleason applied the exigent circumstances test which we set out in Ingram v. State.
703 P.2d 415, 422 (Alaska App. 1985).
Cabral argues that Judge Gleason erred in finding that the police entry and seizure of his apartment was justified by exigent circumstances. Cabral points out that the police did not enter his apartment until "over one hour" after Cabral visited Pangilinan, the incident that the police claimed caused them to conclude that Cabral was aware that he was under investigation. He argues that this demonstrates there was no exigency because, by the time the police arrived at Cabral's apartment, Cabral would have destroyed any evidence if he was aware of the investigation. He also points out that Judge Gleason made a factual error concerning the information which Pangilinan told Cabral when Cabral visited him. Judge Gleason found that Cruz testified that Pangilinan told Cabral that he had been visited by the police. Actually, Cruz testified that Pangilinan lied to Cabral and assured him that he had only been visited by security officers. The State agrees that Judge Gleason erred in making this finding. But, in context, it seems clear that this factual error would not have changed Judge Gleason's conclusion that the police reasonably feared that Cabral was aware of the fact that they were investigating him.
The core purpose of the exclusionary rule is to deter police from violating constitutional and statutory protectors for the criminally accused. Several exceptions to the exclusionary rule — such as the inevitable discovery and independent source doctrines — recognize this purpose and do not exclude evidence so long as the evidence is, or could be, "purged of the primary taint" of the police misconduct. Any exclusion of evidence of guilt creates a high societal cost by not punishing the guilty. Therefore, the proper application of the exclusionary rule should put the prosecution in the same position (no better and no worse) then if no police wrongdoing occurred. In this instance, exclusion would needlessly hinder the prosecution — harming society — without any clear deterrence of police misconduct.
See Nix v. Williams, 467 U.S. 431, 442-43, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377 (1984).
Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963) (citation omitted).
Id. See also Smith v. State, 948 P.2d 473, 478 (Alaska 1997).
Segura v. United States is the leading federal case discussing impoundment ( i.e., a seizure to prevent the destruction of evidence) and the independent source doctrine. In that case, federal agents (who had established probable cause) arrested Segura in his apartment building on charges that he sold cocaine. The agents took Segura up to his apartment, entered the apartment, and secured it until they could obtain a warrant. In the process of securing the apartment, the police found and seized various items of evidence indicative of drug trafficking. A search warrant was issued approximately nineteen hours after the police initially entered Segura's apartment. The police then thoroughly searched the apartment, finding more evidence.
468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).
Id., 468 U.S. at 798-99, 104 S. Ct. at 3382. See also State v. Lewis, 809 P.2d 925, 929-30 (Alaska App. 1991) (stating that Segura is the leading federal case on this issue).
Segura, 468 U.S. at 799-801, 104 S. Ct. at 3382-83.
The Supreme Court assumed that the police initially entered Segura's apartment illegally. But the Court held that there was an independent source for the challenged evidence since the evidence either was obtained or would have been obtained by a search under the later, valid warrant. The Court concluded that the information on which the warrant was based came from sources which were wholly independent of the illegal police entry of the apartment. The evidence was admissible because it had a source which was independent of the illegal police actions.
Id.
There was a strong dissent in Segura. Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun, pointed out that the police had an incentive to illegally enter Segura's apartment to prevent the destruction of evidence. The dissenters concluded that, because the police would routinely have an incentive to unlawfully enter a residence to prevent the destruction of evidence, the exclusionary rule required deterring this behavior.
Id., 468 U.S. at 817, 104 S. Ct. at 3391 (Stevens, J., dissenting).
Segura, 468 U.S. at 837, 104 S. Ct. at 3402. See also 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(f) at 343-45 (4th ed. 2004) (criticizing the holding in Segura and concluding that the majority's analysis was "unsound").
Because the facts in Cabral's case are much more favorable to the State than the facts in Segura, we are not faced with the same concerns of routine police misconduct expressed in the Segura dissent. Whereas in Segura, the police illegally entered Segura's apartment, the police did not enter Cabral's apartment illegally. According to Judge Gleason's findings, the police knocked on Cabral's door and received permission to enter. We also find that, based on the search warrant affidavit and testimony, the police had probable cause to arrest Cabral. Once the police had lawfully entered Cabral's apartment, they were authorized to arrest Cabral. Although the police did not formally arrest Cabral, under these circumstances, the fact that the police detained Cabral in his home while they waited for two and one-half hours for the arrival of the warrant does not seem unreasonable.
Furthermore, after obtaining consent to enter Cabral's apartment, the police did not obtain any evidence during the time Cabral's apartment was seized. All of the evidence that the police discovered came from the later search that they conducted under the authority of a valid warrant. The exclusionary rule generally extends only to evidence which the police discover by acting illegally. We accordingly conclude that Judge Gleason did not err in denying Cabral's motion to suppress evidence which the police seized from his apartment.
See Nix, 467 U.S. at 443, 104 S. Ct. at 2508 (stating that "[t]he core rationale" the Court has "consistently advanced . . . for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections").
Why we affirm Judge Gleason's decision upholding the police search of Cabral's car
Cabral argues that Judge Gleason erred in not suppressing the 18.2 grams of methamphetamine that the police found in Cabral's blue Honda Civic which was parked directly below Cabral's apartment. Cabral argues that the search of the car was illegal because the search warrant did not authorize the search of Cabral's car. In the trial court, the State did not dispute that Cabral's car was not listed in the search warrant. The State argued that the doctrine of inevitable discovery justified the search. The State argued that it had established probable cause to search the car at the search warrant proceeding and that Officer Merrion reasonably believed that the search warrant authorized the search of the car. The State argued that if Officer Merrion had realized that the search warrant did not authorize a search of the car, he would have obtained a warrant and searched the car.
Judge Gleason concluded that the doctrine of inevitable discovery justified the search. Judge Gleason found that the State presented sufficient evidence to the magistrate to establish probable cause to search Cabral's car. She found that the magistrate who issued the search warrant simply forgot to list Cabral's car as a place to be searched in the search warrant. She found that Officer Merrion was "100 percent certain" that the magistrate had authorized him to search Cabral's car. Relying on the leading Alaska case on inevitable discovery, Smith v. State, she found that "certain proper and predictable investigatory procedures would have been utilized by Officer Merrion, had he noticed that the warrant did not include Mr. Cabral's car." She concluded that, had Officer Merrion noticed that the warrant did not list the car as a place to be searched, he would have reapplied for a warrant that "would have inevitably resulted in the discovery of the evidence found in the car."
948 P.2d 473 (Alaska 1997).
See id. at 480 ("[I]n order to invoke the [inevitable discovery] exception, the prosecution `must establish, first, that certain proper and predictable investigatory procedures would have been utilized in the case at bar, and second, that those procedures would have inevitably resulted in the discovery of the evidence in question.'") (quoting 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 11.4(a) at 248 (3d ed. 1996) (emphasis in original).
Cabral argues that Judge Gleason erred in upholding the search based upon the inevitable discovery doctrine. The State contends we should uphold Judge Gleason's ruling based upon inevitable discovery. In addition, on appeal, the State takes a different position than it did in the trial court — the State argues that the warrant actually authorized the police to search Cabral's car.
We agree with the State that the search warrant authorized the police to search Cabral's car. Officer Merrion's affidavit and the testimony at the search warrant hearing established sufficient probable cause to search Cabral's car while simultaneously describing Cabral's car with particularity. In Officer Merrion's affidavit, which he filed in support of the search warrant, he set out his expertise in drug investigations. Officer Merrion stated that, based upon his training and experience in drug investigations, he knew that individuals who were engaged in drug trafficking frequently kept drugs and evidence of drug trafficking in their residences, businesses, and vehicles.
See Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992) (stating that appellate court may affirm lower court ruling on any legal basis clear in the record).
Accordingly, the affidavit requested permission: (1) to search room #428 of the UniSea Attu building (Cabral's apartment); (2) to search the residences, businesses, and/or vehicles of suspected drug traffickers; (3) to seize caches of drugs, currency, financial instruments, jewelry and other items of value resulting from drugs transactions; and (4) to search other persons who may be present during the execution of the warrant.
The affidavit did not provide any identification of Cabral's vehicle because, before the hearing, Officer Merrion was unaware of the car's existence or importance. However, the affidavit did inform the magistrate that, based on Officer Merrion's experience in narcotics investigations, persons involved in drug trafficking use their vehicles to conceal caches of drugs or contraband.
Just before the hearing, Officer Merrion's informant, Pangilinan, notified him that Cabral occasionally kept methamphetamine in his car. The officer presented this information to the magistrate and provided a detailed description of the car. The officer described the car and its location: "[T]here is a blue Honda Civic out front . . . it's the only blue Honda Civic that's parked in front of the building and Mr. Cabral occasionally stores methamphetamine under the dashboard on the inside . . . and the backseat." Officer Merrion did not know who actually owned the blue Honda Civic, or what the license plate number was. Pangilinan testified that he did not know the license plate number, and that he had permission to drive the car. He then confirmed that the car was parked in the UniSea parking lot, directly below Cabral's apartment.
The magistrate questioned Pangilinan to confirm this information. Pangilinan stated he had observed, when he purchased methamphetamine within the last week from Cabral, that Cabral retrieved the methamphetamine from the car. Pangilinan stated that he knew this was methamphetamine based on his prior drug use. The magistrate then confirmed, through the testimony of Diaz, a UniSea security officer, that Pangilinan had tested positive for methamphetamine use that morning. Furthermore, Diaz informed the magistrate the Pangilinan had admitted to methamphetamine use, despite the fact that he would most likely be terminated from his employment. Diaz told the magistrate his suspicions of Cabral were also based on the unusually high number of visitors to Cabral's apartment.
The magistrate then expressed concern about the fact that the officers had conducted a prior search of Cabral's apartment and had not found any drugs. She asked why the officers expected a different result. Officer Merrion stated that, although the police had not found evidence of drugs in the prior search, the officers had not searched the specific places — under the candle holder, inside the shower curtain rod, and within the car — that Pangilinan had discovered. Officer Merrion specifically confirmed that the police had not searched Cabral's car during the first search.
After a brief recess, the magistrate reengaged Pangilinan about Cabral's car. She confirmed that he had the keys to the car, but that Cabral owned the car. Following this testimony, the magistrate asked if Officer Merrion still intended to search Cabral's apartment, and not just the car. She asked, "What makes you think the drugs are in the room as opposed to the car?" Officer Merrion indicated his intention to search both places when he replied, "I don't know for sure, but [Pangilinan] said that it could be either way, because [Cabral's] kept them there in the past in those places, but [Cabral] said that he had a quantity of [methamphetamine] and that he was going to sell [Pangilinan] some." The magistrate concluded that she would issue the search warrant. She clarified the name of the apartment building and struck out the written request to seize any jewelry found. The magistrate then issued the search warrant.
The police established probable cause that Cabral was hiding evidence of his drug distribution either in his apartment, his car, or both. In the search warrant affidavit, Officer Merrion set out his reasons to believe, as an experienced investigator of drug offenses, why he suspected that Cabral would have evidence of his drug distribution in his residence or in his car. The information which the police presented to the magistrate, even excluding Pangilinan's testimony about Cabral's car, would support the issuance of a warrant to search Cabral's car. But, in addition to these facts, Pangilinan testified that he had seen Cabral retrieve methamphetamine from his car approximately one week prior. When the magistrate pointed out that the police had not found drug evidence in a prior search of Cabral's apartment, Officer Merrion informed her that the police had not searched the three specific places that Pangilinan now informed them that Cabral kept methamphetamine — the candle holder, the shower curtain rod, and the car. It is clear that these were the specific places that the police intended to search.
Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990) ("Probable cause to issue a search warrant exists when reliable information is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime has been or was being committed" and "[a] nexus [is] shown between the place to be searched, the criminal activity, and the items sought.") (citing Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973); Snyder v. State, 661 P.2d 638, 645 (Alaska App. 1983)).
See Spinner v. United States, 618 A.2d 176, 178-79 (D.C. Cir. 1992) (holding that police officer made reasonable conclusion, based on his experience with local drug dealers, in believing that drug dealers would store narcotics and proceeds of drug sales in vehicle parked nearby) (citing Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)).
And it seems apparent from the search warrant proceedings and from the warrant itself that the magistrate intended to authorize the police to search Cabral's car. The search warrant authorized the police to search "vehicles of suspected drug traffickers." Certainly, as Cabral points out, this language, standing alone, raises an issue of whether the warrant describes the place to be searched with sufficient particularity. Judge Gleason found that the magistrate "left the automobile out of the warrant by accident." From the fact that the magistrate left in the warrant the language which authorized the police to search "vehicles of suspected drug traffickers" while striking language from the warrant that gave permission for the officers to search for jewelry, it appears that there are only two reasonable possibilities for why the magistrate did not put in the warrant a specific description of Cabral's car. First, the magistrate might have forgotten to put in the more detailed description. Second, the magistrate might have concluded that it was unnecessary to put a more detailed description in the warrant.
See Johnson v. State, 617 P.2d 1117, 1125 (Alaska 1980) (outlining particularity requirement).
But, in either event, the testimony in the search warrant proceeding gave a clear description of the vehicle to be searched and its location. The car was described as "a blue Honda Civic out front. . . . [I]t's the only blue Honda Civic that's parked in front of the building." There is no evidence that the description of the vehicle provided at the search warrant hearing was imprecise or misleading. The officers executing the warrant easily located this car and conducted the search pursuant to the bounds of the warrant.
See Fleener v. State, 686 P.2d 730, 734 (Alaska App. 1984) (upholding search warrant where there was "no reasonable possibility" that the wrong premises would be searched) (citing Johnson, 617 P.2d at 1125).
Unquestionably, it would have been better for the magistrate to set out in the search warrant the specific description of Cabral's car that the police presented to her in the hearing to obtain the warrant. But where it is clear that the police presented probable cause to search Cabral's car, that the police gave a precise description of Cabral's car and its location, and that the magistrate gave the police permission to search the car, then the police did not conduct an unlawful search. We accordingly affirm Judge Gleason's decision denying Cabral's motion to suppress evidence which the police seized from his car.
Why we find Judge Gleason did not err in refusing to grant Cabral's motion to dismiss the indictment
Cabral contends that Judge Gleason erred in failing to grant his motion to dismiss the indictment. In the motion, Cabral claimed that the prosecutor wrongfully failed to notify the grand jury of exculpatory evidence that Pangilinan exercised control over Cabral's blue Honda Civic, where the police found the majority of the methamphetamine.
The duty to present exculpatory evidence to the grand jury stems from Alaska Criminal Rule 6(q). In Frink v. State, the Alaska Supreme Court read Criminal Rule 6(q) to require the prosecutor to inform the grand jury of exculpatory evidence.
597 P.2d 154 (Alaska 1979).
Id. at 165.
Our case law narrowly defines what constitutes exculpatory evidence under Criminal Rule 6(q). The prosecution is only under a duty to present material which is "substantially favorable to the defendant." For grand jury purposes, evidence is "substantially favorable" only if it "tends, in and of itself, to negate the defendant's guilt." Evidence that could, under the guidance of a skilled defense attorney, be crafted to demonstrate reasonable doubt is not necessarily exculpatory.
Tookak v. State, 648 P.2d 1018, 1021 (Alaska App. 1982) (citations omitted).
State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994) (citing Tookak, 648 P.2d at 1021; York v. State, 757 P.2d 68, 73 (Alaska App. 1988)).
McDonald, 872 P.2d at 639.
Judge Gleason rejected Cabral's claim that the prosecutor failed to present exculpatory evidence by not presenting evidence that Pangilinan had access to Cabral's car. Judge Gleason concluded that, while evidence that Pangilinan had access to the car was evidence which was favorable to Cabral's defense, it was not the kind of evidence that substantially negated Cabral's guilt. She concluded that this was not the kind of evidence which the prosecutor had a duty to present to the grand jury.
We agree with Judge Gleason's reasoning. The evidence that Pangilinan had access to Cabral's car, while favorable to the defense, is not the kind of exculpatory evidence which would substantially tend to negate Cabral's guilt. Therefore, the prosecutor was not required to present this evidence to the grand jury. Judge Gleason did not err in denying Cabral's motion to dismiss the indictment.
Why we find there was sufficient evidence to convict Cabral
Cabral argues that the stipulated facts which the State presented at his trial were insufficient for Judge Gleason to find him guilty of misconduct involving a controlled substance in the third degree. In order to convict Cabral, the State was required to prove, beyond a reasonable doubt, that Cabral possessed methamphetamine with the intent to deliver it.
AS 11.71.030(a)(1).
Cabral argues that, because the trial was conducted based upon stipulated facts, there is no reason for us to defer to the trial court on matters of credibility. Cabral argues for de novo review. But Cabral offers no authority for this proposition. The established test which we apply is whether, viewing the evidence and the inferences therefrom in the light most favorable to the State, Judge Gleason could have concluded that the State established Cabral's guilt beyond a reasonable doubt.
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980); McKinney v. State, 556 P.2d 653, 662 (Alaska 1977), overruled on other grounds by Evans v. State, 645 P.2d 155, 160 n. 11 (Alaska 1982).
We conclude that Judge Gleason could find Cabral guilty of possession of methamphetamine with the intent to deliver the drug. Cabral concedes that six bindles of methamphetamine were found on his person or in his immediate vicinity. But he points out that most of the methamphetamine was found in the Honda Civic — 60 bindles weighing a total of 9.1 grams, and one bag of methamphetamine which also weighed 9.1 grams. He concedes that his girlfriend, Veronica Schreiber, had the key to the Civic in her underwear. Also, locked inside Schreiber's two suitcases in the apartment, the police found $5,000 in cash and blank money orders totaling $20,000.
Cabral suggests that the amount of methamphetamine which the police found near him was a quantity consistent with personal use. He argues that the stipulated facts do not establish that he was the owner of the Honda Civic. He argues that the State never established his connection with the larger quantity of methamphetamine which the police found in the car. But Judge Gleason could find that Cabral was connected to the methamphetamine which the police found in the blue Civic. The police found the key to the Civic on Cabral's girlfriend, Schreiber. They also found a large quantity of cash and money orders in her suitcases, which were found in Cabral's apartment. Between Cabral's admitted possession of the six bindles, and his connection with Schreiber, Judge Gleason could properly find that Cabral was in possession of the methamphetamine which the police found in the car. The fact that the evidence tends to also incriminate Schreiber does not exonerate Cabral. We conclude that Judge Gleason could find, beyond a reasonable doubt, that Cabral possessed methamphetamine and that he intended to distribute the methamphetamine.
Conclusion
We have examined Cabral's claims of error and conclude that they do not have merit. We accordingly affirm Cabral's conviction.
AFFIRMED.
Although my colleagues conclude that the search warrant issued by Magistrate Utter authorized the police to search Cabral's car, this possibility was never suggested when the suppression issue was litigated in the superior court. Rather, in the superior court, the State conceded — and Superior Court Judge Sharon L. Gleason agreed — that the warrant did not authorize the search of Cabral's car.
In the written search warrant application that was drawn up by the police before they came to court for the warrant application hearing, the police expressly stated that their request was for authorization to search Cabral's apartment — "to enter and search Room #428 of the Attu [B]uilding, located at Unisea Inc. in Dutch Harbor, Alaska" for items relating to the unlawful possession, distribution, and sale of controlled substances. And when Magistrate Utter issued the warrant, she wrote that the search warrant authorized a search of "the premises known as Unisea Attu Bld[g]. Room #428".
It is true that, at the search warrant application hearing, the police told Magistrate Utter that their informant had just revealed new information about Cabral's car. The police then put the informant, Larry Pangilinan, on the stand. Pangilinan gave testimony indicating that Cabral had used the car on at least one occasion to hold or transport drugs.
However, Pangilinan also testified that he possessed the keys to the car, and that he was currently borrowing Cabral's vehicle (on a long-term basis). After hearing this, Magistrate Utter called a short recess of the proceedings, declaring that she "need[ed] to think about this a little bit longer". When court reconvened, Magistrate Utter stated that "[she] had a few more questions" for Pangilinan.
The magistrate first asked Pangilinan to reaffirm that he had the keys to the car. Pangilinan said that this was so. The magistrate then asked Pangilinan to reaffirm that he had control over the car. Again, Pangilinan said that this was so. The magistrate then asked Pangilinan if the car was left locked. Pangilinan answered that the car was always left unlocked. Finally, the magistrate asked Pangilinan if he had free access to the car, or whether (instead) he had to ask Cabral for permission. Pangilinan answered that he did not have to ask for permission to use the car.
In other words, based on Pangilinan's testimony, it seemed unlikely that Cabral expected any privacy in the vehicle, or that he would treat the car as a safe place to store controlled substances.
After hearing Pangilinan's testimony on these subjects, Magistrate Utter asked the police, "And your request remains . . . to search the premises of the Attu Building, Room 428?" The police agreed that this was their request.
As I already explained, when Magistrate Utter filled in the portion of the search warrant that lists the premises to be searched, she wrote: "Unisea Attu Bld[g]. Room #428".
When Cabral's suppression motion was litigated in the superior court, the State conceded that this search warrant, as written, did not authorize a search of Cabral's car. However, the State sought to uphold the search of the car by arguing a strange version of "inevitable discovery".
The State argued that, even though the search warrant did not authorize a search of the car, the police officers mistakenly thought that the warrant authorized this search. The State further argued that the police would surely have sought another (supplemental) warrant if they had realized their mistake. Thus, the State contended, the evidence in the car would inevitably have been discovered.
Judge Gleason adopted this "inevitable discovery" approach when she denied Cabral's suppression motion. She concluded that the search of the car was lawful because (1) Magistrate Utter made a mistake when she filled out the warrant, and (2) the police would surely have sought a second warrant if only they had perceived the magistrate's mistake.
Specifically, Judge Gleason concluded (1) that, at the search warrant application hearing, the police clearly presented sufficient information to establish probable cause for a search of the car, and (2) that Magistrate Utter had in fact intended to word the warrant so that it authorized both a search of Cabral's apartment and a search of his car — but then (3) Magistrate Utter inadvertently failed to insert language about the car when she filled in the "premises" portion of the warrant.
Judge Gleason's conclusion is flawed both factually and legally.
As I explained above, it is not clear that the police presented sufficient evidence to support a search of the car. According to the testimony presented at the search warrant application hearing, Pangilinan observed Cabral retrieve drugs from the car on at least one occasion. But Magistrate Utter clearly had questions about the significance of this information. After the magistrate heard this testimony, she pursued the issue by asking Pangilinan a series of questions concerning the extent of Pangilinan's control over this vehicle. Pangilinan's answers revealed that he, and not Cabral, had essentially complete control over the vehicle — and that, moreover, the car was always left unlocked.
To justify a search warrant for the vehicle, it was not sufficient for the police to establish that Cabral might have used the vehicle for storing drugs on one occasion in the unspecified past. Rather, the police had to present good reason to believe that Cabral currently expected privacy in the vehicle — probable cause to believe that Cabral would currently treat the car as a safe place to store illegal drugs.
Pangilinan's answers to Magistrate Utter's inquiries negated this essential element. Given Pangilinan's unrestricted use of the vehicle, and given the fact that the vehicle was always kept unlocked when Pangilinan was not using it, it was extremely unlikely that Cabral expected any privacy in the vehicle, or that Cabral would treat the car as a safe storage place for controlled substances.
Moreover, the record simply does not support Judge Gleason's conclusion that Magistrate Utter intended to write the warrant so as to authorize a search of the car. As I explained above, after Pangilinan testified that he exercised complete control over the car, and that the car was always kept unlocked, Magistrate Utter expressly asked the police if their "request remain[ed] . . . to search the premises of the Attu Building, Room 428?" The police agreed that this was their request.
The police never asked Magistrate Utter to include the car in the wording of the warrant, and Magistrate Utter never said anything to indicate that she intended to do so. For these reasons, I conclude that the record does not support the factual premises of Judge Gleason's ruling.
The legal flaw in the judge's ruling is that it is based on a mistaken application of the doctrine of inevitable discovery.
The doctrine of inevitable discovery applies to cases where, even though the police have conducted an unlawful search or seizure, the State can nevertheless show that the same evidence would inevitably have been discovered, irrespective of the unlawful search, if the police had simply pursued their investigation in a normal and predictable manner. As the Alaska Supreme Court explained in Smith v. State, 948 P.2d 473, 481 (Alaska 1997), the doctrine of inevitable discovery will allow the government to avoid the usual consequences of the exclusionary rule "if the [government] can show, by clear and convincing evidence, that [the] illegally obtained evidence would have been discovered through predictable investigative processes, . . . as long as the police [did] not knowingly or intentionally violate the rights of the accused in obtaining that evidence."
But I have not been able to find any case (either in Alaska or in any other jurisdiction) holding that the doctrine of inevitable discovery should be applied to cases where the police conduct an illegal search and then testify later that they surely would have applied for a proper search warrant if only they had known the search was unlawful.
There are, of course, instances where the police intentionally violate a person's Fourth Amendment rights — instances where they conduct a search or seizure even though they know that their actions violate the Fourth Amendment. But one can safely assume that, in most instances where the police conduct a search or seizure in violation of the Fourth Amendment, the officers would be able to honestly testify that they would have sought a warrant (or would have pursued their investigation in a different way) if they had understood that their actions violated the Fourth Amendment.
Thus, if the doctrine of "inevitable discovery" were applied in the fashion proposed by the State, it would amount to a rule that the fruits of an unlawful search or seizure should never be suppressed unless the police knew (and did not care) that their actions violated the Fourth Amendment.
It might be argued that Judge Gleason's approach to this case facially resembles the "good faith" exception to the exclusionary rule recognized under federal law.
In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held that the exclusionary rule should not be applied in cases where the police act in reasonable and good-faith reliance on an apparently valid search warrant, even though it turns out later that there was a flaw in the warrant. The Alaska appellate courts have never decided whether to adopt a similar exception to the exclusionary rule. See Jackson v. State, 926 P.2d 1180, 1184 n. 1 (Alaska App. 1996).
However, even if Alaska were to follow the good faith exception to the exclusionary rule, there is a problem with applying that doctrine to the facts of this case. The good faith exception applies when a mistake is made by the judicial officer issuing a search warrant, and the police reasonably rely on the judicial officer's mistaken action. That is not what happened here.
Judge Gleason did not find that a reasonable police officer would have interpreted the wording of the warrant as authorizing a search of Cabral's vehicle. Moreover, at no point during the search warrant application hearing did Magistrate Utter verbally assure the police that the warrant (as worded) would authorize a search of the vehicle. Finally, at no point during the hearing did Magistrate Utter promise the police that she would alter the wording of the warrant (before she issued it) so that the warrant would include the vehicle.
Thus, Judge Gleason did not base her ruling on the premise that the police officers reasonably relied on the wording of the warrant, nor did she base her ruling on the premise that the officers reasonably relied on something that Magistrate Utter said during the hearing about the scope of the authorized search. Instead, Judge Gleason upheld the search of the vehicle because she found that Magistrate Utter had subjectively intended to alter the wording of the warrant to include a search of the car, but then the magistrate somehow forgot to do this.
As I explained above, the record does not support this finding. But even if the record had supported this finding, Judge Gleason's application of the good faith exception exceeds the bounds of the exception.
The good faith exception applies when (1) the issuing magistrate makes a mistake and (2) the police reasonably rely on that mistake.
Even if we assume that Magistrate Utter subjectively intended to alter the wording of the warrant to include an authorization for the search of Cabral's car, and even if we assume that her failure to alter the text of the warrant was sheer inadvertence, there was no proof that the magistrate ever informed the police about her purported intention to amend the wording of the warrant. Thus, even if we assume that Magistrate Utter meant to alter the wording of the warrant and mistakenly failed to do so, there is no evidence that the police reasonably relied on the magistrate's purported mistake.
As I noted before, when this issue was litigated in the superior court, the State never contended, and Judge Gleason never found, that a reasonable police officer would have interpreted the wording of the warrant as authorizing a search of Cabral's vehicle. Rather, both the State and Judge Gleason proceeded under the theory that the wording of the warrant could not reasonably be interpreted to authorize that search.
And as I further noted above, Judge Gleason did not find that Magistrate Utter ever mistakenly assured the police that the warrant did indeed authorize a search of the car, or that the magistrate ever told the police that she would alter the wording of the warrant to achieve this goal before she signed it.
It is true that the State argued — and Judge Gleason apparently agreed — that the officers acted in subjective good faith when they searched Cabral's car. But this is not sufficient to trigger the good faith exception. The good faith exception does not apply to situations where the police make a mistake and violate the Fourth Amendment in good faith. Rather, this exception is limited to situations where (1) the police actively, and in good faith, rely on a judicial officer's mistake, and (2) this reliance on the judicial officer's mistake was objectively reasonable.
See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), §§ 1.3(e)-(f), Vol. 1, p. 71-75.
Thus, even assuming that Judge Gleason was correct when she concluded that Magistrate Utter subjectively intended to word the warrant so that it authorized a search of the car, this fact would not be sufficient to bring this case within the bounds of the good faith exception to the exclusionary rule — because this supposed subjective intention was never objectively manifested. Magistrate Utter did not word the warrant so as to authorize a search of the car, nor did she ever make any comment to the police suggesting that she intended to authorize that search.
This being so, then even if the magistrate inadvertently failed to word the warrant so as to authorize a search of the car, and even if the police officers honestly believed that the warrant authorized that search, the good faith exception would not apply. Judge Gleason affirmatively found that the text of the search warrant did not, in fact, authorize a search of the car. And any police reliance on Magistrate Utter's purported — and wholly unexpressed — intention to authorize that search was unreasonable.
This brings me to the State's new argument on appeal. In addition to the "inevitable discovery" theory that the State advanced in the superior court, the State also argues for the first time that this "inevitable discovery" issue is moot — because (according to the State) the text of the search warrant does in fact authorize a search of Cabral's car.
This argument — this interpretation of the wording of the warrant — is directly at odds with the position taken by the State in the superior court, and it is also directly at odds with the interpretation of the warrant adopted by Judge Gleason. Nevertheless, the State is entitled to argue for affirmance of Judge Gleason's decision on any ground disclosed by undisputed facts in the record. Thus, to the extent that the interpretation of a written search warrant presents a pure question of law, the State may present its new argument on appeal.
See Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992); Russell v. Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).
The State points out that the police, in their application for the search warrant, not only requested permission to search Room 428 of the Attu Building but also requested permission to search all "residences, businesses[,] and/or vehicles of [any] suspected drug traffickers". The police inserted this same language in the draft search warrant that they submitted to Magistrate Utter. This language appears as the final clause of a lengthy paragraph describing various kinds of items that might represent evidence of illegal drug trafficking. And Magistrate Utter did not strike this language from the warrant before she issued it.
This paragraph reads: "Officers request to search for and seize items such as controlled substances and paraphernalia; controlled substance packaging materials and other items related to distribution or possession of controlled substances; items showing ownership, possession or control of property, including books, ledgers, records, receipts, notes, money orders, and other papers relating to the transportation of such; items showing identity, travel[,] or immigration status; items of evidence upon premises within the premises, forfeitable firearms and monies, all as described in this affidavit, from residences, businesses[,] and/or vehicles of suspected drug traffickers."
Based on this, the State argues that the search warrant in this case did, in fact, authorize a search of any vehicle owned, used, or otherwise controlled by a suspected drug trafficker. And because, according to the State, the evidence presented at the search warrant application hearing established probable cause to search Cabral's car, the search warrant authorized a search of the car.
There are two difficulties with the State's argument. First, as I explained above, the testimony presented at the search warrant application hearing did not establish probable cause for a search of Cabral's car. Second, even assuming that the testimony did establish probable cause for a search of the car, the warrant fails to meet constitutional standards in describing the place to be searched.
The wording that the police inserted in the draft warrant — wording that ostensibly gave them the authority to search all "residences, businesses[,] and/or vehicles of [any] suspected drug traffickers" — obviously fails the Fourth Amendment's requirements that (1) warrants be based on probable cause and that (2) warrants specify the places to be searched.
Taken at face value, this language gave the police complete discretion to search any house, building, or vehicle that might be linked to anyone whom the police considered a "suspected drug trafficker". In other words, this language is essentially equivalent to an authorization for a general search — the very thing that the Fourth Amendment was supposed to protect us against. No prosecuting attorney, and no police officer with even a modest understanding of search and seizure law, would think that this sort of authorization could pass muster under the Fourth Amendment.
As LaFave points out, the good faith exception to the exclusionary rule does not apply to warrants that contain this sort of unconstitutionally broad authorization. There can be no claim of good faith when the authorization is "so facially deficient . . . in failing to particularize the place to be searched . . . that the executing [police] officer cannot reasonably presume it to be valid." LaFave, § 4.6, Vol. 2, p. 604.
Quoting Leon, 468 U.S. at 899, 104 S.Ct. at 3408.
The State nevertheless argues — and my colleagues agree — that whenever a search warrant contains this kind of unconstitutionally broad authorization, the warrant must not be adjudged invalid but must, on the contrary, be construed to authorize the search of any house, building, or vehicle so long as the testimony presented at the search warrant application establishes probable cause for that particular search.
This approach is fundamentally at odds with the Fourth Amendment's requirement of specificity. Our Constitution does not allow a magistrate to issue a search warrant that authorizes "any and all searches for which the State's testimony may, in retrospect, provide probable cause". But this, in essence, is how the State would have us interpret the language of the warrant in this case.
We must not reward police officers for inserting such language in the "fine print" of a draft search warrant. Nor should we encourage magistrates to issue warrants containing such language — because this practice violates the Fourth Amendment's mandate that warrants contain an explicit description of the places to be searched.
For these reasons, I dissent from this Court's decision to uphold the search of Cabral's car.