Opinion
Court of Appeals No. A-9107.
June 20, 2007.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-03-2498 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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
Sean Moore appeals his convictions for two counts of second-degree misconduct involving a controlled substance and one count of fourth-degree misconduct involving a controlled substance. Moore contends that the police executed a search warrant that was not supported by probable cause, and that the superior court therefore erroneously denied his motion to suppress. Moore also claims that insufficient evidence supports his convictions.
AS 11.71.020(a) and AS 11.71.040(a), respectively.
We reject Moore's arguments. We conclude that the search warrant was supported by probable cause. We also conclude that fair-minded jurors exercising reasonable judgment could conclude that the State had proven its case beyond a reasonable doubt.
Facts and proceedings
On November 29, 2003, Investigator Jeremy Grieme applied for a warrant to search Moore's Kenai residence. The application was supported by an affidavit sworn by Investigator Grieme. Investigator Grieme listed his general qualifications and background information about methamphetamine production and trafficking. Investigator Grieme then described four areas of evidence relating to Moore.
First, in early September 2003, Officer Aaron Turnage investigated a shoplifting incident at the Safeway store in Kenai. The investigation showed that Moore purchased denatured alcohol and 2000 books of matches and concealed four boxes of cold medicine containing pseudoephedrine. All of these ingredients are often used when producing methamphetamine.
Second, in late September 2003, Kenai police officers found four bags of trash abandoned at the end of a road behind some bushes. The bags contained hundreds of matchbooks with the striker plates missing, eight full boxes of ephedrine-based cold medicine, over 100 matchbook striker plates, and three empty cans of starter fluid. (Matchbook striker plates, ephedrine, and starter fluid are often used in methamphetamine production.) The bags also contained bills addressed to Moore at his home address.
Third, in late October or early November 2003, Officer Turnage was told by a clerk at a gas station convenience store in Kenai that a person often came into the store at night and purchased ephedrine-based cold medicine and Coleman fuel. According to Investigator Grieme's affidavit, "Officer Turnage questioned the clerk and the description of the purchaser matched that of Moore."
Fourth, on three occasions in November 2003, Officer Turnage and Investigator Grieme saw a modified gas can in Moore's carport. There was a hose duct-taped to the spout. The affidavit stated that "[m]eth cooks will commonly use gas cans (or similar containers) as hydrogen chloride gas generators during one part of the meth cooking process. Tubes are often stuck in the gas cans [sic] pour spout and wrapped with duct tape to help seal the fumes in."
On the basis of this affidavit, the court issued a search warrant for Moore's residence on December 2, 2003. The search warrant was executed at Moore's residence on December 4. The police officers found and seized two syringes and a baggie containing residue of methamphetamine. The syringes were of a type normally used for measuring chemicals, not for injection.
The grand jury indicted Moore on two counts of second-degree misconduct involving a controlled substance and one count of fourth-degree misconduct involving a controlled substance. Moore moved to suppress the evidence seized when the search warrant was executed, arguing that the warrant was not supported by probable cause. Superior Court Judge Charles T. Huguelet denied the motion.
AS 11.71.020(a)(2)(A) (manufacturing methamphetamine) (4)(A) (possession of a listed chemical with intent to manufacture methamphetamine).
AS 11.70.040(a)(5) (maintaining premises for purposes of keeping or distributing methamphetamine).
After the State presented its case at trial, Moore moved for a judgment of acquittal on two of the counts, arguing that there was insufficient evidence that those offenses occurred "on or about December 4th, 2003." Judge Huguelet denied the motion. The jury convicted Moore as charged. Moore appeals.
Discussion The search warrant
Moore's attack on the search warrant rests on three grounds. First, he claims that the evidence regarding the modified gas can was innocuous, so it was no more indicative of criminal conduct than of non-criminal conduct. Second, Moore claims that the information from the store clerk about purchases of cold medicine and stove fuel was unreliable. Third, he claims that much of the evidence supporting the warrant was stale.
Moore relies on Carter v. State for his proposition that evidence presented in support of a warrant application must be "more consistent with criminal activity tha[n] with non-criminal activity." In Carter, this court found that a defendant's unusually high consumption of electricity had "no inherent incriminatory value" because there were "many common and legitimate uses of electricity that might account for high or unusual electrical consumption." We thus held that
910 P.2d 619 (Alaska App. 1996).
Id. at 625.
[a]lthough a proper showing of probable cause need not rule out all possibilities consistent with innocence, neither can it consist of an undifferentiated showing that, among multiple competing possibilities, one is consistent with guilt. Probable cause must at least point the finger of likelihood toward a possibility consistent with guilt.
Id. at 625-26.
However, we noted that evidence that might otherwise appear innocuous can be significant "if other solid facts have been presented to the issuing magistrate to indicate that criminal activity is afoot or to eliminate legitimate explanations for the [evidence]." In Carter, this circumstance was not present — the only other evidence consisted of anonymous tips which also did not indicate that any criminal activity was afoot.
Id. at 626.
Id.
Moore argues that the presence of a gas can in his carport does not indicate criminal activity. He contends that a hose that is duct-taped to a gas can is possibly an innocent occurrence. However, as the State points out, Investigator Grieme's affidavit connected the altered gas can with possible methamphetamine production. And there was other evidence supporting criminal activity, namely the shoplifting incident and the evidence from the trash bags. This other evidence supports the existence of probable cause and renders the evidence of the gas can, although perhaps relatively innocuous in isolation, properly supportive of probable cause for the issuance of a search warrant.
See Dunn v. State, 653 P.2d 1071, 1079 (Alaska App. 1982) (holding that probable cause existed even though "various factors, if taken individually, are as readily consistent with innocence as guilt, [because] the main point to be made is that the factors did not occur individually, and in isolation from each other").
Moore next argues that the information attributed to the gas station clerk is unreliable and should not be used to find probable cause. Investigator Grieme's affidavit in support of the warrant application stated that Officer Turnage was "told by a clerk at the Tesoro 2Go Mart located at 12624 Kenai Spur Hwy that someone was coming in frequently during the evenings to purchase ephedrine-based cold medicine and Coleman Fuel." Upon questioning the clerk, Officer Turnage determined that "the description of the purchaser matched that of Moore."
Moore contends that the store clerk should be considered an "anonymous witness." In this appeal, Moore does not elaborate on the reason the clerk should be considered anonymous, but in his motion to suppress below, he argued that because "[t]he name of the informant is not revealed, . . . she must be considered a confidential informant." Moore relies on this court's treatment of anonymous tips in Carter. In Carter, the police relied on several anonymous tips that were called in to the police department over a period of years when applying for a warrant. Because the anonymous tips provided no basis on which to evaluate the tipster's basis of knowledge or veracity, the two prongs on which an informant's tip is evaluated, the tips provided no support for probable cause.
Carter, 910 P.2d at 621.
Id. at 623-25. See also State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985).
In Alaska, a search warrant application that relies on hearsay must establish that the hearsay informant is a credible source of information, and that the informant obtained the information in a reliable way.
See Jones, 706 P.2d at 324-25 (holding that, as a matter of state law, hearsay information must satisfy the Aguilar-Spinelli test). See also Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
To establish that the informant obtained the information in a reliable way, the application must show that the information was "based on the informant's personal observations, not his suspicions or beliefs." Here, the application shows that the clerk spoke to Officer Turnage and said that a customer (whose description shared characteristics with Moore) was "coming in frequently during the evenings to purchase ephedrine-based cold medicine and Coleman Fuel." This evidence reasonably establishes the clerk's personal knowledge.
Jones, 706 P.2d at 324 (citing Davis v. State, 499 P.2d 1025, 1029 (Alaska 1972), rev'd on other grounds, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)).
The analysis of the credibility of the informant depends on whether he or she is a citizen informant or a police informant. An informant's status as a citizen informant or a police informant for Aguilar-Spinelli purposes depends on the "motive of the informant's involvement with the incident being investigated and his or her motivation for coming to the authorities." A police informant is sometimes associated with the criminal milieu and subject to mistrust because the informant may provide a tip for compensation, for favorable treatment from the government in the criminal process, or for personal advantage or revenge.
Gustafson v. State, 854 P.2d 751, 756 (Alaska App. 1993).
See Evans v. State, 550 P.2d 830, 842 n. 35 (Alaska 1976) (quoting Fresneda v. State, 483 P.2d 1011, 1015 (Alaska 1971)); Effenbeck v. State, 700 P.2d 811, 813-14 (Alaska App. 1985).
Nothing in the affidavit supports an inference that the clerk was a police informant. The search warrant application reasonably establishes that the clerk was a citizen informant. A court considering information from a citizen informant may reasonably assume that the citizen informant is credible. Therefore, it is not improper to rely on the information supplied by the clerk when deciding whether the application establishes probable cause.
See Landon v. State, 941 P.2d 186, 190 (Alaska App. 1997); Stam v. State, 925 P.2d 668, 670 (Alaska App. 1996).
Finally, Moore argues that the evidence connected to the concealment of merchandise at Safeway and the items found in the garbage bags was stale, and thus could not properly support probable cause for a search warrant.
Probable cause for issuance of a search warrant requires "sufficient information to permit the conclusion that criminal activity or evidence of crime will be found at the place to be searched." The search warrant application "must recite current information which supports the conclusion that probable cause to search exists at the time the [application] is presented." In contrast, an application "which contains facts indicating that probable cause only existed at some earlier time" is insufficient. The question of staleness "depends on an evaluation of the circumstances related by the [application] and the length of time between the issuance of the search warrant and the time of the most recent incriminating activity described in the affidavit." It is also possible to distinguish a case involving one isolated criminal act from one involving repeated or continuous criminal activity:
Snyder v. State, 661 P.2d 638, 645 (Alaska App. 1983).
Id. at 646.
Id. at 646-47.
Id. at 647.
Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.
United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), quoted in Snyder, 661 P.2d at 647.
Moore points out that the utility bills in the garbage bags were dated August 2003, about four months before the warrant application, and that the Safeway shoplifting incident occurred in September 2003, about three months before the application. From these dates, Moore argues that the evidence was not "current" information supporting a finding that probable cause to search presently existed. He cites several authorities for the proposition that information supporting warrant applications in cases involving possession or sale of contraband is often found to be stale where the evidence relied upon is more than a few days old.
See Snyder, 661 P.2d at 646-47.
See People v. Miller, 75 P.3d 1108, 1111 (Colo. 2003) (invalidating a warrant to search for evidence of the manufacture of methamphetamine where "[n]early a month expired between the event the informant related and application by the police for the warrant"); People v. Siemieniec, 118 N.W.2d 430, 432 (Mich. 1962) (holding invalid a search warrant issued based on an officer's assertions that he had observed illegal sales four days earlier); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.7(a), at 375 (4th ed. 2004).
But the application contended that there was a likelihood that Moore had been producing methamphetamine. The evidence showed that Moore was procuring the ingredients for methamphetamine production over a period of months before the police applied for the warrant. It is reasonable to infer from the evidence in the application that evidence relating to methamphetamine production would still be found at Moore's residence if the search warrant was issued.
We conclude that probable cause supported the issuance of the warrant.
Moore's sufficiency of the evidence claim
The indictment charged that Moore committed the offenses "on or about December 4, 2003" — the day the police executed the search warrant. Moore argues that there was insufficient evidence that "any offenses" were committed on that date. He claims that the accuracy of the date listed in the indictment should be governed by "reasonable limits" and requires "approximate accuracy." Essentially, Moore contends that the State failed to prove that the offenses happened "within months" of the date in the indictment, and that this does not meet "reasonable limits" or "approximate accuracy" standards.
Larkin v. State, 88 P.3d 153, 155 (Alaska App. 2004) (quoting 1 Charles Alan Wright, Federal Practice and Procedure: Criminal § 125, at 573-77 (3d. ed. 1999)).
Raphael v. State, Alaska App. Memorandum Opinion and Judgment No. 4693 (Apr. 23, 2003), 2003 WL 1922592.
The court instructed the jury regarding the date specified in the indictment: When, as in this case it is alleged that the crime charged was committed "on or about" a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient that the proof shows that the crime was committed on or about that date. The state, however, cannot charge on one incident and convict on another.
As we noted in Larkin v. State, when a defendant does not challenge the sufficiency of the evidence proving the conduct constituting the offenses, but only argues that the State did not prove that conduct occurred "on or about" the date charged in the indictment, the defendant is making a variance argument, not a sufficiency of the evidence argument. Moore did not argue below, nor does he argue here, that the evidence was insufficient to show that he committed the offenses, but only that the evidence was insufficient to prove the offenses were committed "on or about December 4, 2003." In fact, Moore has conceded in this appeal that "there was evidence that Mr. Moore may have committed offenses at some prior time."
Id. at 154.
In Larkin, this court held that the date of the commission of an offense is not normally an element of that offense. Thus, absent a showing that the date is an element, any variance between the date specified in the indictment and the date shown by evidence at trial will only lead to a judgment of acquittal if the defendant can show that the variance prejudiced his ability to prepare or present his defense at trial.
Id.
Id.
Moore claims that the State charged him with one offense, but convicted him of another. But he does not claim any specific prejudice in the preparation or presentation of his case at trial. Because he has not demonstrated prejudice, we reject his variance claim.
Conclusion
The judgment of the superior court is AFFIRMED.