Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
SADRUDDIN ABDULLAH, )
) Court of Appeals No. A-3166
Appellant, ) Trial Court No. 3AN-S88-6804CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1157 - September 13,
1991]
)
___________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Eric A.
Johnson, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Douglas B. Baily, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Sadruddin Abdullah was convicted, following a court
trial, of two counts of misconduct involving a controlled
substance in the third degree, and one count of aiding and
abetting another person to commit that offense. AS
11.71.030(a)(1) and AS 11.16.110(2)(B). Abdullah appeals,
arguing that Superior Court Judge Joan M. Katz erred in denying
his motion to suppress evidence. We affirm.
In her order denying Abdullah's motion to dismiss the
indictment and suppress evidence, Judge Katz found the following
facts:
On June 16, 1988, defendant Abdullah was
charged with possession of cocaine in a
Kodiak case. At the time of the subsequent
events relating to the present case, Abdullah
had asserted his right to counsel and was out
on bail on the Kodiak charges. Alaska State
Trooper Grimes was informed of the Kodiak
charges. She agreed to assist the Kodiak
police by checking Anchorage to Kodiak
flights for Abdullah and otherwise keeping an
eye out for him.
In August, 1988, Grimes was contacted by
one Arthur Alexander, an inmate at Cook Inlet
Pretrial facility. Mr. Alexander offered to
cooperate with the state in arranging a buy
from Mr. Abdullah. Alexander was not
considered to be a reliable informant.
Grimes agreed, therefore, to use him only to
the extent of having him make a telephonic
introduction of an undercover officer to
Abdullah. The introduction was accomplished.
The officer, Wilbur Hooks, was able to
conclude two transactions with Abdullah.
These transactions form the basis of the two
counts set forth in the present indictment.
Abdullah contends that the charges in the Anchorage
case resulted from a single and continuous investigation of his
drug dealing activities in Kodiak. He argues that his right to
counsel, invoked in the Kodiak case, extended to the Anchorage
investigation. He therefore claims that the police were thus
precluded from contacting him and eliciting statements without
the presence of counsel. He argues that when Hooks contacted him
and elicited statements from him, his right to counsel under both
the United States and Alaska Constitutions was violated. U.S.
Const. amend. VI; Alaska Const. art. 1, 11.
In rejecting Abdullah's motion, Judge Katz found:
Investigator Grimes did obtain her first
information regarding Abdullah from the
Kodiak law enforcement officials. But she
investi-gated to ascertain if there was
ongoing criminal activity, distinct from the
specific possession charge filed in Kodiak.
No right to counsel had attached to these
ongoing activities, since no "critical stage"
had been reached in the proceedings regarding
such activities.
In reaching her decision, Judge Katz relied on Maine v. Moulton,
474 U.S. 159 (1985), and McLaughlin v. State, 737 P.2d 1361
(Alaska App. 1987). We agree with Judge Katz that those
decisions compel the result in this case. The record supports
Judge Katz's finding that the police contacted Abdullah to
ascertain if he was involved in ongoing drug activity. The fact
that Abdullah had counsel appointed to represent him on the
charge of possession of cocaine that arose in Kodiak did not
serve to shield him so that he could sell drugs in Anchorage
without fear of police interference.
Abdullah also contends that Judge Katz erred in denying
his motion under the due process clause of the Alaska
Constitution. Article 1, 7 of the Alaska Constitution
provides:
No person shall be deprived of life,
liberty, or property, without due process of
law. The right of all persons to fair and
just treatment in the course of legislative
and executive investigations shall not be
infringed.
In particular, Abdullah points to the language concerning "fair
and just treatment in the course of legislative and executive
investigations" to support his contention that the Alaska due
process clause should be interpreted more broadly than the due
process clause of the United States Constitution. It is
questionable whether the language Abdullah relies upon was
intended to apply to routine criminal investigations. However,
the courts of this state have interpreted the Alaska Constitution
to provide broader protections for criminal defendants than the
Federal Constitution. See, e.g., Blue v. State, 558 P.2d 636,
641 (Alaska 1977). However, based on our foregoing analysis, we
see no reason to extend the Alaska Constitution to prohibit the
police activity about which Abdullah complains.
Abdullah argues that Judge Katz erred in failing to
make sufficient findings under Criminal Rule 12(d) in rejecting
his due process challenge. Criminal Rule 12(d) provides that:
A motion made before trial shall be
determined before trial unless the court
orders that it be deferred for determination
at the trial of the general issue. Where
factual issues are involved in determining a
motion to suppress evidence, the court shall
state its essential findings on the record.
This court has previously explained that the purpose of Rule
12(d) is to require a court to make an accurate record for
appellate review where there is direct factual conflict in the
testimony on a suppression issue. Burks v. State, 706 P.2d 1190,
1191 (Alaska App. 1985). Judge Katz made sufficient findings for
us to review the due process issue Abdullah raises. His due
process issue essentially overlaps his right to counsel issue.
The question before us is a legal issue requiring no additional
factual findings. We find no error.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
