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THE COURT OF APPEALS OF THE STATE OF ALASKA
ERIC DALE VAN BUREN, )
) Court of Appeals No. A-3487
Appellant, ) Trial Court No. 3AN-S89-5449CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. )
______________________________) [No. 1193 - January 3, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Victor D. Carlson and Mark C.
Rowland, Judges.
Appearances: Christine Schleuss, Schleuss &
McComas, Anchorage, for Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Eric Dale Van Buren was charged with one count of
misconduct involving a controlled substance in the third degree
(possession of cocaine). Van Buren moved to suppress evidence
seized from his residence pursuant to a warrant, which he
contended had been issued without probable cause. After Superior
Court Judge Mark C. Rowland denied the motion to suppress, Van
Buren entered a plea of no contest, reserving his right to bring
this appeal challenging the superior court's ruling. We affirm.
On August 11, 1989, Superior Court Judge Victor D.
Carlson issued warrants authorizing the Alaska State Troopers to
search Van Buren's residence in Anchorage, as well as residences
occupied by Kenneth Federico and Tomas Pousada-Gonzalez. The
warrants were based on an affidavit submitted by Trooper
Investigator William R. Gause, which Gause supplemented with live
testimony before Judge Carlson.
Gause's affidavit focused on Federico and Gonzalez,
implicating both men in an ongoing course of cocaine distribution
in Anchorage. Gause began the affidavit by describing a series
of controlled purchases of cocaine by an undercover informant
from an individual named Mary Goudreau. The affidavit went on to
relate circumstances indicating that Federico was Goudreau's
source of supply for the cocaine. From there, the affidavit set
forth information indicating Gonzalez's active involvement in
large-scale cocaine trafficking in the Anchorage area. Then, the
affidavit recited facts establishing a link between Gonzalez and
Federico, indicating that Federico sold cocaine for Gonzalez.
The link between Gonzalez and Federico was made out
chiefly through a five-month period of electronic surveillance by
federal agents, who used pen registers and calling line
identifiers to determine the sources and destinations of
telephone calls to and from Gonzalez's apartment. The
surveillance had been authorized by a separate federal court
order.
According to Gause's affidavit, Gonzalez's apartment
received 686 telephone calls during the five-month period of
surveillance, 253 of which were from Federico's primary Anchorage
residence. A handful of additional calls came from other
residences maintained by Federico. The calls occurred at all
hours of the day and night, most lasting only a short time,
usually less than a minute -- a circumstance that Gause, from his
past experience, believed to be consistent with drug trafficking.
In addition, forty-five of the calls to Gonzalez's residence had
originated from twenty-five different pay telephones in the
Anchorage area -- another circumstance Gause believed to be
indicative of drug trafficking.
Gause's affidavit mentioned Van Buren only once. The
mention occurred in connection with information concerning
Gonzalez's telephone activity and appeared toward the end of the
affidavit:
Finally, your affiant has knowledge
that, the Federal pen register indicates that
GONZALEZ is without telephone activity during
regular intervals. Most recently, from June
17 through June 19, 1989, there was no
telephone activity from GONZALEZ' telephone,
indicating that he might have been away from
his home. The telephone activity resumed in
the early morning hours of June 20, 1989,
including an early morning telephone call to
KENNETH FEDERICO, and ERIC VAN BUREN, one
McCaw pager and one Person Page pager, pagers
being a common means for drug dealers to
communicate with one another. This pattern
occurred on other earlier occasions when
GONZALEZ' telephone was inactive. (Emphasis
added.)
Gause provided additional evidence linking Van Buren to
Gonzalez and Federico in his supplemental testimony before Judge
Carlson at the warrant hearing. Gause initially testified about
observations made by N-371, an undercover officer who had moved
into Gonzalez's apartment building to "get close" to Gonzalez.
According to Gause, at about 3:40 p.m. on August 10, the day
before the warrant hearing, N-371 had seen Van Buren approach
Gonzalez's apartment, carrying a shopping bag. Van Buren knocked
and was admitted. He left the apartment about eight minutes
later, without the shopping bag, and drove away from the
building. Fifteen minutes later, N-371 saw Federico leave
Gonzalez's apartment and drive away (N-371 apparently did not
know when Federico entered the apartment). N-371 then left the
area for a short time. Upon returning, at around 4:30 p.m., he
noticed that Van Buren's car had again been parked in front of
the apartment building. N-371 looked again at 5:10 p.m. and the
car was no longer there.
After Gause finished telling Judge Carlson about N-
371's observations, he provided the judge with updated
information concerning telephone activity at the Gonzalez
apartment:
Q:The PEN registers and calling
[indiscernible -- away from mike] identified
that are in place on Tomas Pousada-Gonzalez'
telephone and Kenneth Federico's telephone.
Have you updated information about those
statistics which are actually listed in the
affidavits?
A:Yes, the PEN register activity had been
updated through some time around 8 o'clock
this morning, the calling line identifier
with incoming phone calls, had not been
updated since approximately a week and a half
ago and that's because it usually takes eight
to ten days to obtain the information from
the phone company.
Q:Okay, and what -- how many telephone calls
had Tomas Pousada-Gonzalez made to Eric Van
Buren at this point in time?
A:He's made approximately 60 phone calls to
Mr. Van Buren at his residence at 2221
Muldoon, space 500. He also made five phone
calls to a pager which has been identified as
belonging to Mr. Van Buren.
Q:Also at that address?
A:Yes. It comes back via -- the information
from -- the subscriber information from the
pager company that unit is [indiscernible --
bad recording].
Q:And how many phone calls has Gonzalez now
made to Federico's home phone number on Sun
Crest Drive?
A:72 phone calls. Approximately 72.
Gause went on to describe Van Buren's residence, and
testified that Van Buren's car had been seen parked there that
morning. Based on the foregoing information, Judge Carlson
concluded that the state had established probable cause to search
Van Buren's home. Execution of the warrant issued by Judge
Carlson yielded the cocaine that resulted in Van Buren's
conviction in this case.
Van Buren contends on appeal that the evidence
presented to Judge Carlson did not amount to probable cause. He
argues that the evidence included no direct proof of his
involvement in drug trafficking, indicating at most a general
association with Gonzalez. Moreover, Van Buren contends that the
evidence established no nexus between his residence and any
dealings that he might have had with Gonzalez.
We use the following standard to determine probable
cause in this context:
In evaluating a search warrant we view the
evidence in the light most favorable to
upholding the warrant and will only
invalidate the warrant if the magistrate
abused her discretion. Doubtful or marginal
cases are resolved in favor of the warrant,
and the evidence presented to the magistrate
must be considered "in a reasonable and
common sense manner."
State v. Chapman, 783 P.2d 771, 772 (Alaska App. 1989) (citations
omitted).1
Applying this standard to the totality of the evidence
before Judge Carlson, we conclude that the judge did not abuse
his discretion in deciding to authorize the search of Van Buren's
residence.
The fact that the information relating to Van Buren was
circumstantial and included no direct observations of drug-
related transactions is beside the point:
Probable cause to issue a search warrant
exists when "reliable information is set
forth in sufficient detail to warrant a
reasonably prudent [person] in believing that
a crime has been or was being committed."
Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990) (quoting
Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)). Regardless
of whether the evidence offered in support of probable cause is
direct or wholly inferential, the ultimate inquiry is the same:
The magistrate is not required to determine
whether in fact the items to be searched for
are located at the premises to be searched,
but only whether there is reasonable ground
to believe they are there.
Metler v. State, 581 P.2d 669, 672 (Alaska 1978) (emphasis in
original) (citation omitted) (quoting United States v. Bowers,
534 F.2d 186, 192 (9th Cir. 1976)).
The evidence in this case connecting Van Buren to
Gonzalez's and Federico's drug-selling activities, though
circumstantial, was indicative of far more than a casual and
legitimate association between an innocent person and persons
separately engaged in illegal activities. See, e.g., Sibron v.
New York, 392 U.S. 40, 62-63 (1968) (defendant's mere presence in
a bar during the execution of a search warrant did not establish
probable cause to search the defendant's person). Here, the
evidence tended to show Van Buren's integral involvement in the
same illegal activities that Gonzalez and Federico were pursuing.
Gause's affidavit convincingly established that
Gonzalez and Federico were involved in ongoing cocaine
trafficking and that they relied heavily on the telephone to
carry on their criminal enterprise. The affidavit also revealed
that a distinctive pattern of telephone calls had emerged in the
course of the federal surveillance: telephone activities at
Gonzalez's apartment would cease altogether for intervals of
several days and would thereafter resume with calls from
Gonzalez's telephone to Federico's residence, Van Buren's
residence, and two telephone pagers.2
Gause's testimony provided a further indication of Van
Buren's involvement in Gonzalez's and Federico's criminal
enterprise. According to Gause, in the one and one-half week
period immediately preceding the warrant hearing, approximately
sixty calls were placed from Gonzalez's apartment to Van Buren's
residence, with five additional calls to a pager belonging to Van
Buren. In the same period, approximately seventy-two calls were
made to Federico's primary residence.3
Standing in isolation, the information concerning Van
Buren's involvement in telephone traffic with Gonzalez's
apartment might not amount to probable cause. However, against
the strong backdrop of evidence showing Gonzalez's and Federico's
ongoing involvement in drug trafficking and the pattern of
telephone activity that emerged therefrom, the information about
Van Buren's telephone communications provides a telling
indication of his probable participation in the same illegal
enterprise.
This evidence, in turn, was bolstered by Gause's
testimony concerning Van Buren's comings and goings at Gonzalez's
apartment the day before the search warrant hearing, as well as
Gause's testimony that Van Buren apparently delivered a shopping
bag to Gonzalez and that Federico emerged from Gonzalez's
apartment a short time later. Again, this information was
certainly not peculiarly significant in its own right, being in
itself only marginally suggestive of drug trafficking. Yet, by
establishing a personal link between Gonzalez, Federico, and Van
Buren, this evidence significantly reduced the possibility that
the anonymous telephone activity between Gonzalez's residence and
Van Buren's might have involved a third party other than Van
Buren; by the same token the evidence substantially lessened the
possibility that the police were misreading the apparent
significance of the calls from Gonzalez to Van Buren.
Viewing the totality of the evidence in a reasonable
and common sense manner, we believe that Judge Carlson could
properly find probable cause to believe that Van Buren was
actively engaged in an ongoing course of cocaine distribution.
The remaining issue is whether the information given to Judge
Carlson supports the further inference that evidence of
Van Buren's misconduct would likely be found at his residence.
See generally Metler v. State, 581 P.2d 669, 672-73 (Alaska
1978).
In the absence of direct observation, the nexus between
a person who is engaged in criminal activity and the particular
premises for which a warrant is sought may be established by
consideration of factors such as the type of crime committed, the
nature of the items sought, the suspect's opportunity to conceal
those items, and the normal inferences as to where such items
might be concealed. Id. at 672; State v. Conway, 711 P.2d at
555, 557 (Alaska App. 1985).
It is logical to assume that persons regularly engaged
in illicit distribution of controlled substances will keep drugs,
drug paraphernalia and related records in concealed places;
absent contrary indications, the most likely place will be the
place where those persons live. See, e.g., State v. Conway, 711
P.2d at 557; Morrow v. State, 704 P.2d 226, 230 (Alaska App.
1985); State v. Gutman, 670 P.2d 1166, 1171 (Alaska App. 1983);
Stuart v. State, 698 P.2d 1218, 1221 (Alaska App. 1985). See
also Snyder v. State, 661 P.2d 638, 645-46 (Alaska App. 1983).
In Van Buren's case, although there was evidence that
Federico maintained multiple residences -- a practice commonly
used by drug dealers to minimize the risk of detection -- there
was no evidence suggesting that Van Buren maintained any place
other than his residence where he could conceal drugs.
Furthermore, evidence that a large number of recent calls were
placed from Gonzalez's apartment to Van Buren's home strongly
supports the inference that Van Buren conducted business at home.
We believe that the nexus established to Van Buren's residence
was sufficient in this case to support the issuance of the
challenged warrant.
Accordingly, we conclude that the superior court did
not err in denying Van Buren's motion to suppress.
Van Buren's conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Van Buren notes that Judge Rowland referred to the
"clearly erroneous" standard of review in upholding Judge
Carlson's decision to issue a search warrant. Van Buren argues
that the clearly erroneous standard is unduly deferential and
that Judge Rowland's reliance on it was unjustified. However,
when this court considers the issue of probable cause for a
warrant in an appeal in which there is no dispute as to the
evidence presented to the issuing judge, our reviewing function
is essentially identical to that of the court ruling on the
motion to suppress at the trial level. State v. Conway, 711 P.2d
at 555, 557 (Alaska App. 1985). Accordingly, any error by Judge
Rowland in applying the clearly erroneous standard has no effect
on this court's ruling.
2. Gause's affidavit described the most recent occurrence
as being between June 17 and 19. The affidavit did not
specifically describe other occurrences, but stated, "[t]his
pattern occurred on other earlier occasions when Gonzalez'
telephone was inactive." In his brief and at oral argument, Van
Buren has maintained that the affidavit's mention of calls to
Federico and Van Buren was meant as a description of a single
occurrence, and not as part of the "pattern" of calls described
by Gause in the affidavit. Although Gause's affidavit might be
interpreted in the manner suggested by Van Buren, it is also
capable of being read to mean that the pattern of telephone
activities included not only periodic interruption of calls from
Gonzalez's residence but also the regular resumption of telephone
activity by calls to Federico and Van Buren. Judge Carlson could
reasonably have adopted the latter interpretation. The deference
we owe to the issuing judge and our consequent duty to construe
the evidence in the light most favorable to upholding the warrant
require us to reject Van Buren's proposed reading of Gause's
affidavit.
3. Van Buren contends that Gause did not specify that the
sixty calls to Van Buren and seventy-two calls to Federico were
made in the one and one-half weeks immediately before the warrant
hearing. Van Buren reads Gause's testimony as indicating only
that the calls were made at some time over the five-plus months
of federal surveillance. However, a common sense reading of
Gause's testimony would support the conclusion that Gause was
describing calls occurring during the most recent, one and one-
half week time period covered by Gause's update. Again, any
ambiguity in this regard must be resolved in favor of upholding
the warrant.
