Opinion
Court of Appeals No. A-10833 Trial Court No. 1JU-09-1172 CR No. 5935
04-10-2013
ALEXANDER K. BEARDEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Caitlin Shortell, Shortell Gardner LLC, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Caitlin Shortell, Shortell Gardner LLC, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
ALLARD, Judge.
Alexander K. Bearden was convicted of drug and weapons offenses after he sold methamphetamine to a police informant and later purchased a gun from the informant in exchange for a combination of drugs and cash. At Bearden's trial, the State introduced electronic recordings of conversations between Bearden and the informant. Bearden challenges the Glass warrant that authorized those recordings, arguing that it was not supported by probable cause. He also argues that the recording of the gun-drug transaction exceeded the scope of the warrant. Lastly, Bearden argues that the superior court should have dismissed the two weapons counts after it ruled that the State could not introduce the gun into evidence. For the reasons explained below, we reject these claims and affirm Bearden's convictions.
Facts and proceedings
In early October 2009, Crystal Lyons told Alaska State Trooper Christopher Russell that Bearden was selling methamphetamine out of his mother's house in Juneau. Lyons was facing drug charges at the time, and she was working for Russell as a confidential informant, providing information in exchange for a reduction in her charges or sentence. Based on the information Lyons provided, Russell gave Lyons money and directed her to purchase methamphetamine from Bearden. On October 6, the day after Lyons successfully completed this controlled buy, Russell obtained a thirty-day Glass warrant from Superior Court Judge Patricia A. Collins to electronically monitor Lyons's conversations with Bearden related to the sale of methamphetamine.
See State v. Glass, 583 P.2d 872 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that the Alaska Constitution requires police to obtain judicial authorization before surreptitiously recording a person's private conversations).
About three weeks later, on October 28, Lyons told Russell that Bearden had sent her a text message indicating that he wished to buy a gun. Russell told Lyons to tell Bearden she might be able to help him with that. In the negotiations that followed, Bearden initially told Lyons he had $200 to buy a gun, but he later said he had no cash but would trade methamphetamine for the gun. To facilitate this transaction, Russell obtained a Glock pistol from the Juneau Police Department.
On October 29, Russell applied for three additional warrants. Two of those warrants are relevant to this appeal: a warrant authorizing the troopers to seize the Glock pistol back from Bearden, once Lyons sold it to him, and a warrant authorizing the troopers to record conversations between Bearden and Lyons related to the sale of the pistol. After Magistrate Brad J. Brinkman issued these warrants, Lyons wore a wire while she sold Bearden the pistol for a combination of cash and one-half gram of methamphetamine.
1JU-09-278 SW.
1JU-09-279 SW.
Bearden was charged with four counts of third-degree controlled substance misconduct for selling methamphetamine. He was also charged with two weapons offenses stemming from his purchase of the pistol: third-degree weapons misconduct for being a felon in possession of a concealable firearm, and second-degree weapons misconduct for possessing a firearm during the commission of a felony drug offense.
AS 11.71.030(a)(1).
AS 11.61.200(a)(1).
AS 11.61.195(a)(1).
Before trial on those charges, Bearden moved to suppress all the evidence seized under the warrants, arguing that the warrants were not supported by probable cause. Superior Court Judge Philip M. Pallenberg upheld the October 6 Glass warrant issued by Judge Collins. But he ruled that the warrants issued on October 29 by Magistrate Brinkman — the warrants authorizing seizure of the gun and the recording of conversations related to the gun-drug transaction — were invalid. Judge Pallenberg suppressed the Glock pistol and other evidence seized under the invalid warrants. But he declined to suppress the electronic recording of the gun-drug transaction, even though the October 29 warrant authorizing that recording was invalid, because he ruled that the October 6 Glass warrant gave Russell independent authority to record that transaction.
Bearden was acquitted of one of the drug counts and convicted of all other charges. He appeals.
Was the October 6 warrant supported by probable cause?
Probable cause to issue a search warrant exists when reliable information is set forth in sufficient detail to warrant a reasonably prudent person to believe that a crime has been or is being committed. In Alaska, when a search warrant is based on the hearsay statements of an informant, the judicial officer considering the application must apply the two-prong Aguilar-Spinelli test. That test "requires the issuing court ... to independently determine, first, that the informant's source of information is reliable, and, second, that the informant was truthful in communicating the information to the authorities."
Van Buren v. State, 823 P.2d 1258, 1261 (Alaska App.1992) (citing Badoino v. State, 785 P.2d 39, 41 (Alaska App.1990) (quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).
See State v. Jones, 706 P.2d 317, 322-25 (Alaska 1985) (holding that, as a matter of state law, the Aguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure). Cf. Aguilar v. Texas, 378 U.S. 108 (1964), abrogated by Illinois v. Gates, 462 U.S. 213 (1983); Spinelli v. United States, 393 U.S. 410 (1969), abrogated by Illinois v. Gates, 462 U.S. 213 (1983).
Jacobs v. State, 953 P.2d 527, 533 (Alaska App. 1998) (quoting Lewis v. State, 862 P.2d 181, 185 (Alaska App. 1993).
In his affidavit in support of the October 6 warrant, Russell related that Lyons had told him Bearden was selling methamphetamine out of his mother's residence at 9249 Gee Street in Juneau. He also described in detail Lyons's October 5 controlled buy at that address. After hearing this testimony, Judge Collins found that "certainly ... I think that there's probable cause to believe that [Lyons] went in and purchased two grams of methamphetamine from someone in that residence," but she said she needed corroboration of Lyons's assertion that Bearden was the person who lived there and sold her the drugs. In response, Russell conducted a search on the Alaska Public Safety Information Network computer database (APSIN), which confirmed that, as of March 2009, Bearden's mailing and physical address was 9249 Gee Street. A Department of Motor Vehicles check on APSIN showed that Bearden had two vehicles registered at that address. Judge Collins then signed the warrant.
In the trial court proceedings below, Judge Pallenberg ruled that the warrant was supported by probable cause because Lyons's information was corroborated by the October 5 controlled buy and the information provided by the APSIN report. On appeal, Bearden argues that Judge Pallenberg erred because no officer actually saw Bearden during the October 5 controlled buy. But in Mustafoski v. State, we held that when an anonymous informant accuses a person of selling drugs, and then participates in a controlled buy of drugs from that person, this circumstance provides a magistrate with reason to credit the informant's accusation — even if the police temporarily lose sight of the informant when the informant enters the house to make the purchase.
867 P.2d 824, 828 (Alaska App. 1994).
Bearden also argues that it was error to rely on the APSIN report as corroborating Lyons's statement because Russell never independently established the source and reliability of the information contained in the APSIN report. In making this claim, Bearden relies on our unpublished decision in Matus v. State, but his reliance on this decision is misplaced.
Mem. Op. & J. No. 5462, 2009 WL 891006 (Alaska App. Apr. 1, 2009).
In Matus, we held that the trial court erred in admitting information from an APSIN report at Matus's trial because the State failed to lay the proper foundation for either the public records or the business records hearsay exception under Alaska Rule of Evidence 803 (6) & (8). In particular, the State failed to present testimony regarding who gathers the information in APSIN and how that information is placed into and maintained within APSIN. Without these foundational requirements, the APSIN report was inadmissible hearsay at trial.
Matus, 2009 WL 891006, Id at *2- 4; see also R. Evid. 803 (6) & (8).
Id.
Id.
But Matus is inapposite to this case because the rules of evidence do not apply to search warrant application proceedings. Moreover, here, the APSIN report did not form the basis for the Glass warrant, it was simply further corroboration of the underlying reliability of the informant's information. Under the circumstances, Judge Collins was entitled to rely on the APSIN report as corroboration without requiring the officer to establish the additional foundational requirements detailed in Matus.
We conclude that there was probable cause to support the October 6 warrant, and that Judge Pallenberg did not err in denying Bearden's motion to suppress the warrant.
Did Judge Pallenberg err in refusing to suppress the recording of Lyons's October 29 conversation with Bearden?
As already explained, on October 29 Trooper Russell obtained a Glass warrant to record conversations between Lyons and Bearden related to Bearden's intended purchase of a firearm in exchange for methamphetamine and cash. Judge Pallenberg later ruled that the application in support of the October 29 warrant did not satisfy Aguilar-Spinelli. But he nevertheless admitted the recording made under the warrant, because he concluded that it fell within the scope of the October 6 warrant, which independently authorized the recording of conversations between October 6 and November 6 that were expected to produce "evidence of [Bearden's] violation of misconduct involving controlled substance in the third degree."
Bearden does not dispute that the recording of the gun purchase took place within the thirty-day period authorized by the October 6 warrant; nor does he dispute that the recording produced the evidence listed in the warrant (evidence that Bearden committed third-degree controlled substance misconduct). He argues, however, that the recording went beyond the scope of the October 6 warrant to the extent that it produced evidence of a different crime, i.e., weapons misconduct.
The Alaska Supreme Court has addressed the limitations on when the police may seize evidence not specifically listed in a warrant. In State v. Davenport, the police obtained a warrant to search the defendant's residence for handguns that had been stolen from a gun shop. The warrant was based, in part, on the statement of a named informant that he had seen guns in Davenport's residence and that Davenport said the guns came from the gun shop. The informant also told the police that he had seen Davenport place furs in the attic, and the police suspected the furs were from a recent burglary. But the police did not seek a warrant to search the residence for furs. During the search, the police found no handguns, but seized furs that were in plain view.
510 P.2d 78, 80 (Alaksa 1973).
Id.
Id.
Id.
Id. at 81.
Davenport argued that the seizure of the furs was invalid because the police had probable cause to believe they would find the furs but failed to describe them in the warrant. In addressing that claim, the supreme court declared that the seizure of items not described in a warrant will be invalid if the search that led to the discovery of the items was not conducted in good faith. But the supreme court concluded that the police had acted in good faith in Davenport's case:
Davenport, 510 P.2d at 85.
Id. at 86.
Davenport's argument is that since the police had reason to believe they might find the furs in the attic, the search lacked good faith. There is no evidence in the record to suggest that the search for the guns was a pretext to conduct a search for the furs. The search for the handguns was undertaken pursuant to a valid warrant and conducted within the scope of the objectives of that warrant. The warrant was not employed as a means for exercising a general search. There was no evidence produced to suggest that the search would have been less extensive or in any way conducted differently had the police not received information relating to the furs. We cannot agree that simply because the police had reason to believe that they might find certain furs in the course of their search, that the search was therefore tainted with bad faith. The underlying basis for the intrusion into the Davenport home was legitimate, and the search was
conducted in a lawful manner. Thus, we conclude that the search was conducted in good faith.
Id.
We reached the same conclusion in Lewis v. State. In that case, the defendant argued that the police had engaged in subterfuge and exceeded the scope of the warrant. Relying on Davenport, we concluded:
9 P.3d 1028 (Alaska App. 2000).
Id. at 1035-36.
The fact that the police believed that they might find evidence of a drug offense does not affect the validity of the warrant as long as the police confined their search to the scope of the warrant as we have construed it — that is, limited their search to areas where one might reasonably expect to find firearms, ammunition, or other evidence of the probation violation listed in the warrant.
Id. at 1036.
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In this case, Judge Pallenberg found that the troopers foresaw that they would record evidence of a drug offense on October 29, and that they did not make the recording as a pretext to obtain evidence of weapons misconduct. Judge Pallenberg did not explicitly address whether the recording would have been less extensive or conducted differently if the troopers had not received the information that Bearden wished to buy a gun. But the transaction involved an exchange of a gun for drugs, so evidence of one offense necessarily produced evidence of the other. Moreover, Bearden has not argued that the troopers acted in bad faith, or that the manner in which they executed the recording exceeded the scope of the October 6 warrant. We therefore find no error in Judge Pallenberg's decision to admit the recording.
Did Judge Pallenberg err by refusing to dismiss the weapons charges?
Bearden was charged with third-degree weapons misconduct for being a felon in possession of a firearm and with second-degree weapons misconduct for possessing a firearm during the commission of a drug offense. After Judge Pallenberg ruled that the gun had been unlawfully seized, Bearden moved to dismiss the weapons counts, arguing that, as a matter of law, the State could not prove those charges without the gun. Judge Pallenberg denied the motion to dismiss, ruling that a jury could convict Bearden based on the testimony of the State's witnesses, and that the State did not have to offer the gun into evidence to prove its case.
After the close of evidence, Bearden renewed the motion. Judge Pallenberg treated the renewed motion as a motion for judgment of acquittal and denied it on those grounds.
On appeal, Bearden's argument consists of a single conclusory sentence: "Without the evidence of the alleged firearm, which was suppressed, there was inadequate evidence to support the counts of misconduct involving weapons." At trial, the State's proof that Bearden committed weapons offenses was based on Bearden's own statements, the testimony of the informant who sold Bearden the pistol, and the testimony of the officers who facilitated and monitored the sale. The evidence presented at trial was sufficient without the admission of the gun itself.
Conclusion
We AFFIRM Bearden's convictions.