Opinion
Court of Appeals No. A-8762.
April 13, 2005.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge. Trial Court No. 1JU-03-140 CR.
Philip M. Pallenberg, Faulkner Banfield, P.C., Juneau, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Dale D. Zwingelberg was convicted of felony driving while intoxicated. Zwingelberg appeals his conviction. He argues that the superior court erred in denying his motion to suppress evidence obtained before police officers arrested him outside his home.
AS 28.35.030(n).
Zwingelberg argues that police officers remained at his front door unlawfully while awaiting an opportunity to talk with him. Zwingelberg also argues that his wife's consent for the police to enter his home was coerced.
We uphold the trial court's ruling that officers did not violate Zwingelberg's rights by remaining on his front porch because the officers had probable cause to arrest Zwingelberg at that time. Also, after our own review of the record, we agree with the superior court's ruling that Mrs. Zwingelberg's consent was not coerced.
Facts and Proceedings
A sales clerk at the Budget Liquor store in Juneau called the police to report that a very intoxicated man had driven away from the store after the clerk had asked the man to leave because he was so intoxicated. The clerk described the man and the color and license plate number of the Honda Civic in which he drove away.
Patrolling Juneau Police officers checked local bars for the Honda, and then drove to Zwingelberg's residence. (Zwingelberg was the registered owner of the Honda.) The Honda described by the clerk was parked in Zwingelberg's driveway.
Juneau Police Officers Barry Bunnell and Sarah Dallas went to the front door of Zwingelberg's house and rang the doorbell. While standing at the front door, Officer Dallas looked in a window by the door and saw a man sitting motionless in a recliner. The man, who was eventually identified as Zwingelberg, did not respond to the doorbell.
At this point, Zwingelberg's wife, Kim Zwingelberg, drove up in another car accompanied by her son. Mrs. Zwingelberg told the police that the Honda was her husband's car but that she had the keys. Mrs. Zwingelberg also said that she did not know whether her husband was home. Mrs. Zwingelberg and her son then entered the house.
Mrs. Zwingelberg came to the front door and told the officers that her husband was not home. When Officer Dallas asked her who was sitting in the recliner, Mrs. Zwingelberg's head and shoulders "slumped." Officer Bunnell asked if he could talk to Zwingelberg. Mrs. Zwingelberg replied "just a second," and left the officers waiting at the door.
After waiting a few minutes, the officers knocked and rang the doorbell again. Mrs. Zwingelberg returned to the door and told the officers that she was not going to let them in because she needed to talk to her husband. When Officer Dallas asked why he could not speak to Zwingelberg, Mrs. Zwingelberg told the officers they could come back later. Officer Bunnell responded, "We're not going anywhere until we talk to him."
Mrs. Zwingelberg closed the door. Officer Dallas saw through the window that Zwingelberg and his son appeared to be engaged in a physical altercation. The officers knocked on the door, and Mrs. Zwingelberg returned and told the officers that "he won't come to the door, and I can't let you in." Officer Dallas stated that she could see that Zwingelberg and his son were "getting physical." Mrs. Zwingelberg asked someone inside the house (presumably her son) whether he had "grabbed him [Zwingelberg]" and someone replied "no."
Mrs. Zwingelberg then told the officers to come in. As the officers entered the house, Mrs. Zwingelberg told them she thought that Zwingelberg had left via the back door. The officers followed and found Zwingelberg face down in the snow in the back yard. They arrested Zwingelberg.
Zwingelberg was indicted for felony driving under the influence. Zwingelberg moved to suppress all evidence obtained after Mrs. Zwingelberg had refused the officers entry into the home. Superior Court Judge Patricia A. Collins conducted an evidentiary hearing on the motion. Judge Collins denied Zwingelberg's motion, finding that the officers' presence on the Zwingelberg front porch and subsequent entry into the home was consensual. Zwingelberg appeals this ruling.
Did the officers lawfully remain on Zwingelberg's front porch?
We have noted that "[a] sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there."
Wallace v. State, 933 P.2d 1157, 1164 (Alaska App. 1997).
Here, the officers were authorized to stand at Zwingelberg's front door and ring the doorbell. However, Zwingelberg argues that the superior court should have granted his motion to suppress because the police unlawfully remained at his front door after Mrs. Zwingelberg had declined to allow the officers to enter the home and suggested that they come back later.
Zwingelberg concedes that the officers had reasonable suspicion (but not probable cause to believe) that Zwingelberg had been driving the Honda when they arrived at Zwingelberg's home. Zwingelberg contends that the officers conducted an unreasonable search by remaining on the front porch after Mrs. Zwingelberg had refused entry because a person other than a police officer — e.g., a salesman — would not have felt free to remain on the front porch after Mrs. Zwingelberg had refused entry.
When reviewing a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling. We will reverse findings of fact only if we are convinced that the findings are clearly erroneous.
Baxter v. State, 77 P.3d 19, 23 (Alaska App. 2003).
Id.
Judge Collins ruled that the officers did not conduct either a search or a seizure until after Mrs. Zwingelberg had consented for the officers to enter the home. Judge Collins found as follows:
There is room for argument that Mrs. Zwingelberg's statement to the officers while they were on the porch that they could not come inside the house but could come back later was intended as a statement to officers to leave the porch and/or yard. There is also room for argument that Officer Bunnell's response ["We're not going anywhere until we talk to him"] could be viewed as coercive. However, considering the totality of the circumstances, no search or seizure occurred at this moment or thereafter until, following Mrs. Zwingelberg's express invitation to officers to enter the home, officers entered the home.
Judge Collins found that officers had probable cause to arrest Zwingelberg when they were at his front door. Judge Collins found that the liquor store clerk had informed police that Zwingelberg drove away from the store while intoxicated. Zwingelberg argues that this finding is clearly erroneous and that without this specific identification, the police did not have probable cause to believe that Zwingelberg was the driver of the Honda.
We need not determine whether Judge Collins's finding is clearly erroneous because, based on the record before us, the police had probable cause to believe that Zwingelberg was the driver of the Honda that the clerk referred to when the police were at the front door of his house. Probable cause requires "a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred." Whether probable cause exists is a mixed question of law and fact. Whether probable cause arises from the facts is a legal question subject to de novo review.
State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001) (quoting Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997)).
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
See id.
Here, the police officers obtained the address of the registered owner of the vehicle — Zwingelberg — from police dispatch. When the officers arrived at Zwingelberg's address shortly after the liquor store clerk had phoned in the report of a very intoxicated driver, they found the Honda in Zwingelberg's driveway. The police also saw a man inside the house in a recliner, not moving and not responding to the doorbell. When Mrs. Zwingelberg arrived, she admitted that the Honda belonged to her husband and claimed that she had the keys to the car. But her claim that her husband was not home was unconvincing, because when the officers pointed out that someone was in the recliner, Mrs. Zwingelberg's head and shoulders "slumped." She also conceded, in her subsequent statements to the officers, that her husband was home. And the officers had no information that any other man drove the Honda to Zwingelberg's house. The facts and circumstances known to the police officers showed "a fair probability or substantial chance" that the man the police saw inside the house had committed the crime of driving while intoxicated. Therefore, the police had probable cause to arrest Zwingelberg, although they did not have authority to enter the house without a warrant. Because the police officers had probable cause to arrest Zwingelberg, they were entitled to wait outside his residence. Thus, officers did not violate Zwingelberg's rights by remaining at his front door before Mrs. Zwingelberg had allowed the officers to enter the house.
See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1375, 63 L.Ed.2d 639 (1980); Johnson v. State, 662 P.2d 981, 984 (Alaska App. 1983).
Did the police coerce Mrs. Zwingelberg to allow them to enter the house?
Zwingelberg argues that the superior court erroneously concluded that the police did not coerce Mrs. Zwingelberg's consent for the police to enter the house. Zwingelberg bases his argument on the fact that Judge Collins stated her conclusion that Mrs. Zwingelberg was not coerced in one sentence of the order.
Zwingelberg correctly argues that Judge Collins stated her ruling on the consent issue rather briefly. However, the determination of whether Mrs. Zwingelberg's consent was coerced depends largely on the same facts that Judge Collins applied to the first issue — i.e., whether a search or seizure occurred.
Zwingelberg also argues that Officer Bunnell's statement that the officers would not leave until they had talked to Zwingelberg coerced Mrs. Zwingelberg's consent. Judge Collins found as follows:
The exchanges between Mrs. Zwingelberg and the officers were cordial. Mrs. Zwingelberg's responses to the officers were at times equivocal and the officers testified without contradiction that Mrs. Zwingelberg's body language was such that they thought they could remain in their position on the porch while Mrs. Zwingelberg attempted to discuss the matter with her husband. At no time did officers attempt to follow Mrs. Zwingelberg into the home. Mrs. Zwingelberg never told officers that they must leave the premises, although she did initially indicate that she could not allow officers into the home. No weapons were drawn; no sirens or police lights were used; the officers never stated or implied that Mrs. Zwingelberg must allow them into the home or that Mr. Zwingelberg must leave the home; the police never left the front porch; no threats were made as to action(s) that would be taken if Mr. Zwingelberg did not come to the door or Mrs. Zwingelberg did not allow officers into the home.
When the State relies on consent to authorize a search, the State must prove that the consent was "voluntary, unequivocal, intelligently given, and not the product of duress or coercion." Whether consent to a search is coerced is a question that must be assessed based on the totality of the circumstances. When we review the superior court's conclusions regarding the accused's state of mind and the issue of voluntariness, we examine the entire record and make an independent determination.
Baxter, 77 P.3d at 23 (quoting Schaffer v. State, 988 P.2d 610, 615 (Alaska App. 1999)).
Id.
Id.
Judge Collins found that the communication between Mrs. Zwingelberg and the officers was cordial. Judge Collins also found that while Mrs. Zwingelberg's statements "were at times equivocal," Officer Bunnell testified credibly that Mrs. Zwingelberg's words and body language were such that the officer believed she had consented to the officers remaining on the porch while she talked to her husband. Judge Collins also found that Mrs. Zwingelberg never asked the officers to leave the premises; that the officers never attempted to force their way inside; that the officers never implied that Mrs. Zwingelberg must allow them to enter or that Zwingelberg must exit; and that the officers never threatened to take certain action if Mrs. Zwingelberg did not allow them to enter.
We have independently reviewed the record and agree with Judge Collins's conclusions. The communication between the officers and Mrs. Zwingelberg does not reflect duress or coercion. The discussion was apparently polite and the officers made no threats, while consistently requesting to talk with Zwingelberg. Mrs. Zwingelberg ultimately admitted the officers into the house in clear words,"O.K., come on in[.]"
Conclusion
The judgment of the superior court is AFFIRMED.