Opinion
Court of Appeals No. A-9030.
January 25, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court Nos. 4FA-03-1556 CR 4FA-03-0359 CR.
Nelson Traverso, Law Office of Nelson Traverso, Fairbanks, for the Appellant. Diane L. Wendlandt, 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
Bruce H. Gillam was convicted of four counts of misconduct involving a controlled substance in the second degree (for manufacture of methamphetamine and possession of certain chemicals for that purpose) and one count of misconduct involving a controlled substance in the third degree, a class B felony (for possession of methamphetamine with intent to deliver). In the trial court, Gillam filed a motion to suppress. He argued that the information the police presented to the magistrate did not establish probable cause to support the search of his residence. During this search, the police found evidence of the manufacture and possession of methamphetamine. He also argued that the police made intentional or reckless material false statements to obtain the warrant. Superior Court Judge Charles R. Pengilly denied Gillam's motion to suppress. On appeal, Gillam argues that Judge Pengilly erred in denying the motion to suppress. Gillam also argues that Superior Court Judge Randy Olsen erred in denying his motion to dismiss based on Alaska Criminal Rule 45, the speedy trial rule. We reject Gillam's allegations of error and affirm his convictions.
AS 11.71.020(a).
AS 11.71.030(a)(1).
Factual and procedural background
On January 31, 2003, the State charged Gillam with one count of third-degree misconduct involving a controlled substance — possession of methamphetamine with intent to deliver. This charge resulted from a three-year investigation culminating in the issuance of a warrant to search Gillam's residence on January 30, 2003. Pursuant to this search warrant, the police discovered methamphetamine on Gillam's person. In Gillam's residence, the police found $4,650 in cash, drug measuring scales, "dime baggies," and over 100 used and unused syringes. Alaska State Trooper Teague Widmier later testified that this was a medium-to-large methamphetamine lab.
Id.
On March 11, 2003, Gillam filed a motion to suppress the evidence discovered through this search warrant. Gillam alleged that the warrant failed to establish probable cause and that the magistrate therefore wrongfully issued the warrant. Judge Pengilly denied Gillam's motion on April 3, 2003. Gillam pleaded to the possession charge on April 28, 2003.
One month later, the State charged Gillam with five counts of second-degree misconduct involving a controlled substance. These charges were based upon the contention that Gillam was engaged in the manufacture of methamphetamine and possession of certain chemicals for that purpose. These charges arose from evidence discovered in the January 30th search. Gillam then moved to dismiss based upon Criminal Rule 45. Judge Olsen denied Gillam's motion to dismiss.
See AS 11.71.020(a)(2)-(4).
On July 31, 2003, Gillam moved to withdraw his earlier plea and to join all of the charges. Judge Pengilly granted Gillam's motion to withdraw his plea on August 22, 2003. Gillam also renewed his motion to suppress. He argued that paragraphs five and six of the search warrant affidavit contained intentional misstatements. Judge Pengilly held an evidentiary hearing with regard to these alleged misstatements. Judge Pengilly denied the motion to suppress and consolidated the cases on December 1, 2003.
A jury found Gillam guilty of four counts of misconduct involving a controlled substance in the second degree and one count of misconduct involving a controlled substance in the third degree. Gillam was sentenced to 7 years, none suspended. Gillam now appeals the denials of his motion to suppress and his motion to dismiss.
Why we conclude the search warrant affidavit established probable cause to search Gillam's residence
According to the search warrant affidavit, the Fairbanks Statewide Drug Enforcement Unit had been receiving information about Gillam's involvement in the manufacture of methamphetamine for about three years. According to the affidavit, on September 8, 1999, a local business contacted the police and reported that a person driving a car registered to Janet and Bruce Gillam purchased toluene, a solvent commonly used in the manufacture of methamphetamine. Then, on March 26, 2002, the affiant, Trooper Widmier, stated that he had received a report from an unnamed woman that a person driving a car registered to Bruce Gillam had purchased pure iodine from Beaver Sports. Iodine is a major ingredient in the manufacture of methamphetamine. Trooper Widmier stated that on December 20, 2002, while at Fairbanks Paint and Glass, he observed a white male adult purchase five gallons of toluene. Trooper Widmier followed the driver and observed him take the five gallons of toluene from the car into 3330 VanHorn Road — the residence of Bruce Gillam.
Trooper Widmier also described participating in the service of a search warrant on January 28, 2003, at Harold Griffin's residence, where the police seized a methamphetamine laboratory. Trooper Widmier interviewed Griffin. Griffin told Widmier that, on several occasions, he had taken his girlfriend, Cinda Ingle, to Gillam's residence at 3330 VanHorn Road, where she delivered chemicals suitable for the manufacture of methamphetamine.
Trooper Widmier also stated that on January 30, 2003, he reviewed a purchase report from Sam's Club on Gillam. The report indicated that Gillam purchased many items appropriate for the manufacture of methamphetamine. Trooper Widmier outlined the various purchases. Trooper Widmier then stated that on January 30, 2003, he went to Gillam's residence at VanHorn Road. He saw three cars in the driveway. One car was registered to J. Lee Way, whom Widmier identified as a methamphetamine cook. He described another car that was registered to Sherry Chesley, whom he described as a known methamphetamine user. Trooper Widmier confirmed Gillam's address and description from police records. He indicated that the police records showed that Gillam had been charged with drug offenses in 1997 and 2001, but that both charges had been dismissed.
Gillam contends that this affidavit inadequately established probable cause to support the warrant. He argues that the warrant was based upon information from unreliable informants and that much of the information used to obtain the warrant was stale.
"Probable cause to search exists when reliable information is presented in sufficient detail to persuade a reasonably prudent person that criminal activity or evidence of criminal activity will be found in the place to be searched." This court gives "great deference to the issuing magistrate's probable cause finding and doubtful or marginal cases are usually resolved in favor of upholding the warrant." When the search warrant affidavit is based on hearsay declarations, the statements must be evaluated under the two part Aguilar/Spinelli test. This test requires the affidavit to establish the informant's basis of knowledge and credibility or reliability. The basis of knowledge prong is satisfied by information that is based on "personal observations, not [the informant's] suspicions or beliefs" or "information so detailed as to support an inference of personal knowledge." The veracity prong is "established by demonstrating [the informant's] past reliability, or by independent police corroboration of detailed facts in the informant's story."
Williams v. State, 737 P.2d 360, 362 (Alaska App. 1987) (citations omitted).
Id. at 362 (citations omitted).
State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985).
Id. at 320.
Id. at 324 (citations omitted).
Id. at 325 (citations omitted).
Gillam points first to the second paragraph in the affidavit, in which Trooper Widmier stated that: "On September 8, 1999, Investigator Tim Brit, received information from a local business that the occupant of DVR321, registered to Janet Gillam and Bruce Gillam[,] had purchased Toluene." Gillam argues that this statement fails to meet the second part of the Aguilar/Spinelli test because the magistrate lacked enough information to determine the veracity of the unnamed informant.
Under the veracity prong of the Aguilar/Spinelli test, an informant is determined trustworthy by past reliability, independent police corroboration of the informant's story, or if the "informant is among the class of people presumptively deemed credible, such as the `citizen informants.'" To establish the credibility of a citizen informant, "the police need only verify `some of the details of the information.'"
Rynearson v. State, 950 P.2d 147, 150 (Alaska App. 1997) (citations omitted).
Lloyd v. State, 914 P.2d 1282, 1286 (Alaska App. 1996).
It is a reasonable inference that the informant worked at a local business and reported the transaction. The informant therefore appears to be a citizen informant. Furthermore, Trooper Widmier's personal observation that he saw a white male adult purchase five gallons of toluene and take it to Gillam's residence corroborates the earlier report from the citizen informant. These two observations, corroborated by the other information that Trooper Widmier set out in the affidavit, established probable cause.
Gillam notes that the first observation set out in the affidavit took place in September 1999, while the search of his residence did not take place until January 30, 2003. Gillam argues that the information in the search warrant was too remote in time to support the warrant. But the search warrant established that the police had observed a continuous course of conduct over a three-year investigation. Trooper Widmier's more recent observations of the cars parked at Gillam's residence, which he made on the day of the search, tended to establish that Gillam was involved in the ongoing manufacture of methamphetamine. Accordingly, we conclude that Judge Pengilly did not err in determining that the affidavit in support of the search warrant established probable cause.
Morrow v. State, 704 P.2d 226, 230 (Alaska App. 1985) (discussing Snyder v. State, 661 P.2d 638, 646-47 (Alaska App. 1983)).
Why we uphold Judge Pengilly's rejection of Gillam's contention that Trooper Widmier intentionally or recklessly made material false statements in the search warrant affidavit
In State v. Malkin, the Alaska Supreme Court ruled that where the police make intentional or reckless false statements in an affidavit for a search warrant, those statements must be excised from the affidavit. The reviewing court must determine whether, with those statements excised, the affidavit establishes probable cause.
722 P.2d 943 (Alaska 1986).
Id. at 946.
Id.
In his second motion to suppress, Gillam contended that Trooper Widmier made false statements in the affidavit in support of the search warrant. Following an evidentiary hearing, at which Trooper Widmier testified, Judge Pengilly concluded that Trooper Widmier did not make false statements in the affidavit. Furthermore, Judge Pengilly concluded that, even if he excised the parts of the search warrant affidavit that Gillam challenged, the affidavit would still establish probable cause.
Gillam first asserted that paragraph five of the search warrant contained misstatements. Paragraph five of the search warrant affidavit stated:
On January 28, 2003, your affiant was involved in a search warrant service at Harold Griffin's residence where a Methamphetamine laboratory was seized. While interviewing Harold Griffin, he made statements to your affiant that he had transported his girlfriend, Cinda Ingle, on several occasions to Bruce Gillam's residence located at 3330 VanHorn Road where she delivered combined chemicals relating to [a] Methamphetamine Laboratory.
Gillam points out that Griffin made other statements that were inconsistent with the information Trooper Widmier put in the affidavit. But Judge Pengilly had before him a partial transcript of Griffin's statements. Judge Pengilly also heard Trooper Widmier testify at the evidentiary hearing. Trooper Widmier conceded that, during the interview, Griffin admitted Ingle's participation in drug activities and later withdrew those admissions. But Widmier stated that he believed his statements in the search warrant affidavit were a reasonable summary of what Griffin had said.
Following the hearing, Judge Pengilly found that Trooper Widmier had not made any false statements in the affidavit. He concluded that the trooper had "simply paraphrased what he heard in . . . a fair and rational way." We are to defer to Judge Pengilly's determination concerning the credibility of witnesses and are to reverse his factual findings only if we conclude that they are clearly erroneous. We conclude that Judge Pengilly's findings are supported by the record.
See Nathan v. Anchorage, 955 P.2d 528, 531 (Alaska App. 1998).
Gillam also contends that Trooper Widmier misleadingly presented the items that Gillam had purchased from Sam's Club. These items were potentially useful for the manufacture of methamphetamine. Gillam argues that Trooper Widmier's presentation was misleading because it suggested that Gillam had purchased the items in one day rather than over a period of eight weeks. Judge Pengilly's findings do not directly address Gillam's contention. But it seems apparent from his findings that he found that Trooper Widmier did not intend to mislead the magistrate. Moreover, even though the purchases may have taken place over an eight-week period, this information still supported the issuance of the search warrant. Therefore, Judge Pengilly did not err in denying the motion to suppress.
Why we conclude Judge Olsen did not err in denying Gillam's motion to dismiss under Criminal Rule 45
The police searched Gillam's residence on January 30, 2003. During the search, the police found a large number of chemicals that they suspected Gillam used for the manufacture of methamphetamine. In addition, the police found what appeared to be methamphetamine on Gillam's person. The police conducted a field test on the suspected methamphetamine. The test was positive. But there was no field test for the chemicals that the police suspected were used for manufacturing the methamphetamine. Therefore, on January 31, 2003, based on the field test that showed that Gillam was in possession of methamphetamine, the State charged Gillam with misconduct involving a controlled substance in the third degree, for possession of methamphetamine with the intent to distribute.
On March 17, 2003, the State crime lab issued a report verifying that the chemicals the police seized during the search of Gillam's residence were chemicals commonly used in the manufacture of methamphetamine. On May 28, 2003, Gillam entered a no contest plea to the original possession of methamphetamine with intent to distribute charge. On May 21, 2003, the State indicted Gillam on five counts of misconduct involving a controlled substance in the second degree, which were based on the State's contention that Gillam manufactured methamphetamine. Two weeks later, on June 2, 2003, Gillam filed a motion to dismiss based upon Criminal Rule 45. In his motion to dismiss, Gillam argued that the State had all of the evidence leading to the manufacturing of methamphetamine charges when the police searched his residence on January 30, 2003. He argued that these charges should therefore have been joined with the possession of methamphetamine charges that the State filed on January 31, 2003. He argued that, under Criminal Rule 45, the State could not file additional charges after he entered his no contest plea to the possession charges on April 28, 2003.
Criminal Rule 45 provides that a "defendant charged with a felony, a misdemeanor, or a violation shall be tried within 120 days . . . from the date the charging document is served upon the defendant." The commencement date for "a new charge arising out of the same criminal episode shall be the same as the commencement date for the original charge, unless the evidence on which the new charge is based was not available to the prosecution on the commencement date for the original charge."
Alaska Crim. R. 45(b)-(c).
Alaska Crim. R. 45(c)(3).
The State responded to Gillam's motion to dismiss under Criminal Rule 45 by arguing that the evidence for supporting the manufacture of methamphetamine charges was not available until after the State received the laboratory report analyzing the chemicals that the State found in Gillam's residence. Judge Olsen concluded that the State had not shown sufficient reason to justify the delay in filing the manufacture of methamphetamine charges. He therefore calculated the time that had run against Criminal Rule 45 from January 31, 2003, the date when the State filed the original charge of possession of methamphetamine. But he calculated that only 99 days had run against the Criminal Rule 45 time period. He therefore denied Gillam's motion to dismiss.
Gillam has not disputed Judge Olsen's calculation of the amount of time that passed under Criminal Rule 45. Instead, he asserts that when he entered his no contest plea to the possession of methamphetamine charge, the State could not thereafter charge him with manufacturing methamphetamine because the State could have brought these charges at the same time that it brought the original charge of possession of methamphetamine. But Gillam only offers Criminal Rule 45(c)(3) in support of his argument. Criminal Rule 45(c)(3) only provides for a commencement date for charges. It does not provide that the State is foreclosed from bringing a new charge arising out of the same criminal episode when the defendant enters a plea to a charge arising out of that same episode.
Alaska case law appears consistent with this conclusion. In Westdahl v. State, Westdahl was driving a car and struck a pedestrian. He was arrested and charged with violating a city ordinance prohibiting the possession of open bottles of alcoholic beverages by intoxicated persons in automobiles. Westdahl pleaded no contest to this charge and was fined $40. Nearly two months later, the State charged Westdahl with operating a motor vehicle while under the influence of alcohol. The charge was based on the same incident. Westdahl moved to dismiss under Criminal Rule 45.
592 P.2d 1214 (Alaska 1979).
Id. at 1215.
Id.
Id.
Id.
Id. at 1216.
On appeal, the supreme court concluded that the two charges arose out of the same offense, and therefore, the 120 days began at the date of the original open container charge. The supreme court concluded that Westdahl's Criminal Rule 45 right to be tried within 120 days of his arrest was violated. But the supreme court remanded the case to determine whether Westdahl had waived the 120-day rule by not objecting to the trial date the district court had set. The supreme court never considered whether Westdahl's earlier plea to the open container charge would have foreclosed the State from bringing the later charges. And it seems apparent that it would have considered this if a plea to an earlier charge extinguishes the State's ability to bring other charges, as Gillam asserts.
Id. at 1216-17.
Id. at 1217.
Id. at 1218.
A later case, State v. Williams, is even stronger authority on this point. In Williams, the State originally charged Williams with murder, based upon evidence that he had attempted to cover up the crime. But Williams was acquitted of murder. The State then charged Williams with tampering with evidence. Williams moved to dismiss on double jeopardy and Criminal Rule 45 grounds. The trial court dismissed the case on double jeopardy grounds.
730 P.2d 806 (Alaska 1987).
Id. at 806.
Id. at 807.
Id.
Id.
Id.
On appeal, we attempted to avoid the constitutional issue and held that the later tampering indictment violated Criminal Rule 45. The supreme court vacated our decision, concluding that we had misinterpreted Criminal Rule 45. On remand, we concluded that prosecuting Williams for tampering with evidence after he had been acquitted of the murder charge violated double jeopardy.
Id.
Id.
State v. Williams, 704 P.2d 219 (Alaska App. 1985).
On appeal, the supreme court concluded that because the State used essentially the same evidence to charge Williams with tampering with evidence as it had used to attempt to convict him of murder, prosecuting Williams for tampering with evidence violated the double jeopardy clause of the Alaska Constitution. Again, in spite of the fact that both this court and the supreme court considered the Criminal Rule 45 issue, the supreme court concluded that Criminal Rule 45 did not bar the State from charging Williams with tampering with evidence, even though he had been earlier acquitted for murder based upon the same evidence.
Williams, 730 P.2d at 807.
Therefore, neither the language of Criminal Rule 45 nor cases interpreting it provide any support for Gillam's argument. Accordingly, we conclude that Judge Olsen did not err in denying Gillam's motion to dismiss.
The convictions are AFFIRMED.
I write separately to clarify the purported "speedy trial" issue that Gillam raises in this appeal.
As described in the main opinion, the charges against Gillam were based on evidence seized when the troopers served a search warrant on Gillam's residence on January 30, 2003. The initial charge — possession of methamphetamine with intent to distribute — was filed the very next day. But the subsequent charges — five counts of manufacturing methamphetamine — were not filed until May 21st (almost four months later), after the State had analyzed and identified the precursor chemicals found in Gillam's residence.
On April 28th ( i.e., three weeks before these subsequent charges were filed), Gillam pleaded no contest to the initial charge (methamphetamine possession with intent to distribute). Then on June 2nd, he filed a motion asking the superior court to dismiss the subsequent charges under Criminal Rule 45.
Criminal Rule 45(c)(3) declares that, with some exceptions, the same 120-day calculation governs the trial of all charges arising out of the same criminal episode. But as Judge Olsen correctly recognized, this rule does not affect the result in Gillam's case — because even if January 31st were deemed the Rule 45 starting date for the five subsequently filed charges, the 120 days allowed by Rule 45 would not yet have expired on June 2nd (when Gillam filed his motion to dismiss). (The parties agree that the Rule 45 "clock" was tolled for 23 days, from March 11th to April 3rd, by the filing of a defense motion.)
Gillam does not argue that Judge Olsen's calculation of Rule 45 was wrong. Rather, Gillam insists that, under Rule 45, the State is prohibited from filing new charges that arise from the same criminal episode after the defendant pleads guilty or no contest to one or more already-filed charges.
As Judge Coats explains in the main opinion, Criminal Rule 45 does not address this issue at all. Criminal Rule 45 is a speedy trial rule; it sets the limits on how long a defendant can be held on criminal charges before the government must bring the defendant to trial.
Gillam's contention has nothing to do with this concept. Rather, Gillam's argument is based on the concept of compulsory joinder — the doctrine that the government must bring all related charges at the same time, so that a defendant is not subjected to a series of trials based on different aspects of the same episode or transaction.
For approximately a year and a half (from August 1985 until January 1987), Alaska had a rule of compulsory joinder in criminal cases. In State v. Williams, 704 P.2d 219 (Alaska App. 1985), a majority of this Court held that the double jeopardy clause of the Alaska Constitution (Article I, Section 9) incorporated the rule of compulsory joinder proposed in Model Penal Code § 1.07(2). But in State v. Williams (II), 730 P.2d 806 (Alaska 1987), the Alaska Supreme Court expressly disapproved the portion of this Court's opinion that adopted the Model Penal Code rule of compulsory joinder. 730 P.2d at 809.
There were three separate opinions in Williams. Judges Bryner and Singleton voted to interpret Alaska's double jeopardy clause as incorporating the Model Penal Code provision on compulsory joinder. Williams, 704 P.2d at 224-26. Judge Coats would have decided the case on other grounds. Id. at 222-24.
One of the supreme court's reasons for disapproving the Model Penal Code rule of compulsory joinder was that the Model Penal Code rule would have allowed defendants to engage in the kind of procedural maneuvering that Gillam employed in this case: entering a plea to one charge and then demanding dismissal of all other pending or potential charges arising from the same episode. Id.
The supreme court noted that, in Standard 2.3(d) of the American Bar Association's Standards Relating to Joinder and Severance, the American Bar Association advocated the opposite rule. The ABA's Joinder and Severance Standard 2.3(d) declares that "[the] [e]ntry of a plea of guilty or nolo contendere to one offense does not bar the subsequent prosecution of any additional offense based upon the same conduct or criminal episode." The supreme court also noted that Rule 471(c) of the Uniform Rules of Criminal Procedure adopts the ABA's approach to this issue.
See Williams (II), 730 P.2d at 809 n. 9 (emphasis added).
Id.
No other rule of compulsory joinder has been promulgated in the nineteen years since Williams (II) was decided.
In sum: Gillam asks this Court to enforce a rule of compulsory joinder that finds no support in Criminal Rule 45 and that was expressly disapproved by the supreme court in Williams (II). Because Alaska law offers no support for Gillam's position, I join my colleagues in rejecting Gillam's argument.