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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TEDDY WILLIE, )
) Court of Appeals No. A-3739
Appellant, ) Trial Court No. 4BE-90-246 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1211 - March 27, 1992]
________________________________)
Appeal from the District Court, Fourth Judi
cial District, Bethel, Craig R. McMahon,
Magistrate.
Appearances: Elizabeth Brennan, Assistant
Public Defender, Bethel, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Ben M. Herren, District Attorney, Bethel, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Teddy Willie pleaded no contest to a charge of
importing alcohol into an area that had voted to prohibit it, AS
04.11.496. When he entered this plea, he reserved the right to
appeal the denial of his motion to suppress the evidence against
him. Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Willie also
appeals his sentence, asserting it is excessive. We remand for
further proceedings.
On April 6, 1990, Norman Black, a resident of Napakiak,
contacted Village Patrol Officer Patrick Black and informed him
that John and Teddy Willie were selling alcohol, that they had
been at the residence of Alice Gray, and that they had a box in
their possession which they had just brought to Napakiak from
Bethel. Napakiak is a village that has voted to ban the posses
sion, importation, and sale of alcohol.
Officer Black relayed this information to Village
Public Safety Officer Wassillie Roland. Black and Roland
traveled by snow machine to look for John and Teddy Willie. They
found the two men on an ATV (all-terrain vehicle), heading toward
the Napakiak airport; John was driving and Teddy was the
passenger. Roland stopped the vehicle.
Both John and Teddy Willie appeared to have been drink
ing. While Teddy Willie was still sober, John Willie was very
intoxicated; he had slurred speech and had a hard time keeping
his balance.
On the back of the ATV was a gray plastic bag wrapped
around what appeared to be a box measuring approximately one foot
by one and one-half feet. Roland asked what was inside the box.
Teddy Willie told Roland that the bag contained groceries.
Believing that John Willie was too intoxicated to
drive, Roland instructed Teddy Willie to drive the ATV to John
Willie's residence; the officers followed. At the residence,
Roland asked Teddy Willie if he would allow Roland to look inside
the box; Willie refused. Roland then told Willie that he was
going to seize the bag and apply for a search warrant.
Roland transported the bag with the box inside it to
the public safety building. Both the weight of the box and the
sloshing noises emanating from it suggested that the box was
filled with bottles of liquid rather than groceries.
Roland applied to Judge Dale O. Curda for a search
warrant to open the box; Judge Curda issued the warrant. The box
was found to contain ten bottles of whisky and a bottle of port.
Willie filed a motion to suppress this evidence.
Willie contended that VPSO Roland had acted illegally when he
seized the box. Willie also asserted that, even if the seizure
had been lawful, Roland's application for the search warrant
failed to establish probable cause for a search.
The State did not respond to Willie's motion, nor was
any hearing held on the motion. Nevertheless, Magistrate Craig
R. McMahon issued a two-page memorandum decision denying Willie's
motion.
Willie's first claim on appeal is that, because it is
the State's burden to justify any warrantless seizure and because
the State failed to respond to his suppression motion, he should
have prevailed by default. We reject this suggestion. A person
seeking court action must plead facts that demonstrate his or her
legal entitlement to the requested action; this is true whether
or not an opposing party files a response. Compare Aziz v.
LeFerve, 830 F.2d 184 (11th Cir. 1987), and Bermudez v. Reid, 733
F.2d 18 (2nd Cir. 1984), holding that a court should not award
default judgement against the government in a proceeding for post-
conviction relief.
The defendant's burden of pleading in no way changes
the government's burden of proof when a defendant challenges a
warrantless search or seizure. Once the defendant establishes
that a search or a seizure has been conducted by the government
without a warrant, it is the government's burden to justify the
intrusion. However, a trial court can deny relief if, even taking
the defendant's assertions of fact in the light most favorable to
suppression, it is clear that no constitutionally protected
search or seizure has occurred or it is clear that a recognized
exception to the warrant requirement applies to the case.
Magistrate McMahon ruled that, under the facts asserted
in Willie's suppression motion, Willie was not entitled to
suppression of the evidence. Willie can challenge that ruling on
appeal, but the State's failure to respond does not entitle
Willie to automatic suppression of the evidence.
Nevertheless, we are troubled by Magistrate McMahon's
decision to rule on Willie's motion in the absence of any
response from the State. Criminal Rule 40(d) states that, after
a party has filed a motion, "[t]he opposing party shall serve
either (1) a written statement that he does not oppose the
motion, or (2) copies of all photographs, affidavits, and other
documentary evidence upon which he intends to rely, together with
a brief, complete written statement of reasons in opposition to
the motion". (Emphasis added) Civil Rule 77(c) contains
essentially the same language.
The State's silence in the face of Willie's motion
violated Criminal Rule 40(d). Leaving this aside, we are also
concerned by another aspect of the trial court's denial of
Willie's motion in the absence of any response from the State.
When a trial judge rules on a motion or other application without
seeking a response from the opposing party (whether that response
be an opposition or a statement of non-opposition), the judge
risks giving the impression of partiality. The losing party may
be prompted to view the trial court as another adversary in the
proceeding rather than as an impartial arbiter of conflicting
claims.
We do not imply any doubts regarding Magistrate
McMahon's fairness or impartiality in this case. However, judges
must take care not only to do justice but also to perform their
duties in a manner that assures litigants and the public that
justice is being done. See Canon 2A of the Alaska Code of
Judicial Conduct.
When either the defendant or the government files a
motion and the opposing party does not respond, the trial court
is generally authorized to construe the opposing party's failure
to respond as a non-opposition and to grant the motion if the
relief requested appears to be justified. The court is also
authorized to deny a patently frivolous motion even in the
absence of a response. However, when the motion is neither
routine nor frivolous, and when the assertions of fact and law
contained in the motion do not appear to justify the requested
relief, we believe a judge is better advised to elicit a response
by calling the other party's attention to Criminal Rule 40(d).
Of course, an opposing litigant's continuing neglect of or
refusal to comply with the mandate of Criminal Rule 40(d) cannot
block a court from taking action on the pending motion.
If a trial judge has tentatively decided to deny a
suppression motion even though the government has filed no re
sponse, the trial judge should give the defendant notice of the
intended denial, accompanied by an explanation of the judge's
reasons, and give the defendant the opportunity to supplement the
factual assertions of the original suppression motion. After the
defendant has had the opportunity to respond to the judge's
tentative denial, if the judge still concludes that the defendant
has failed to state a prima facie case for suppression, the judge
can deny the motion.
Returning to the facts of this case, Magistrate McMahon
concluded, from the assertions in Willie's motion, that Officer
Roland's seizure of the box had been lawful. We agree with
Magistrate McMahon that the facts asserted in Willie's motion
fail to establish a prima facie case for suppression.1
Roland had, through Officer Black, received information
from a village resident (Norman Black) that John and Teddy Willie
had been at Alice Gray's residence, that they were selling
alcohol, and that they had a box in their possession. Roland and
Black found John and Teddy Willie on an ATV heading toward the
airport. Despite the fact that Napakiak is a "dry" village, both
men had been drinking. John Willie, the driver of the ATV, was
intoxicated -- too intoxicated to drive. Teddy Willie had been
drinking too, but he was still "pretty sober". On the back of
the ATV was a gray plastic bag wrapped around a box measuring
about a foot by a foot and a half.
Roland's knowledge of these facts gave him probable
cause to seize the box so that he could apply for a warrant to
open it. Roland's initial information came from a named village
resident, Norman Black. From the details furnished by Black (the
Willies' presence at a specific residence, and their possession
of a box), it could be inferred that Norman Black had first-hand
knowledge of the information he imparted to Officer Patrick Black
and to Roland.
Roland's own observations when he stopped John and
Teddy Willie corroborated and verified Norman Black's report.
Napakiak is a "dry" village -- a village allowing neither importa
tion nor possession of alcohol -- yet it was clear to Roland that
both John and Teddy Willie had been drinking. There was a box on
the back of the Willies' ATV, and this box was of a size that
would be used to carry liquor bottles.
This knowledge gave Roland probable cause to seize the
box and apply for a warrant. See Chadwick v. United States, 433
U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Compare Erickson
v. State, 507 P.2d 508, 517-19 (Alaska 1973) (arrest upheld when
based on minimal corroboration of a citizen informer's tip).
Willie's next argument is that, even if Roland's
seizure of the box was legal, his ensuing application for a
search warrant failed to set forth probable cause for a search of
the box. Willie notes that the search warrant application omits
any mention of Norman Black as the source of Roland's initial
information; instead, the warrant application states that Roland
received the initial report from Officer Patrick Black -- a
statement that is correct but incomplete.
The normal rule is that, when a defendant challenges a
search warrant application on the ground that it omits a material
fact, the material fact is added to the information presented in
the application and probable cause is re-evaluated. Schmid v.
State, 615 P.2d 565, 577 (Alaska 1980). Here, if information
regarding the true source of the initial report is added to the
search warrant application, probable cause for the search still
exists.
Moreover, by the time Roland applied for the warrant,
he had, in addition to the knowledge that had given him probable
cause to seize the box, new information obtained from his
handling of the box -- the facts that the box felt like a
cardboard box of the type used to transport liquor, that the
contents of the box made sloshing noises characteristic of liquid
in bottles, and that the box weighed what one would expect if its
contents were bottles of liquor.
Thus, based entirely on the information contained in
Willie's suppression motion and the application for the search
warrant contained in the court's file, Magistrate McMahon could
properly reject Willie's attacks on both Roland's initial seizure
of the box and on the ensuing search warrant issued by Judge
Curda. However, as indicated above, a judge should give notice
before he or she denies an unopposed suppression motion. We
therefore remand this case to the district court with directions
that Willie be given an opportunity to supplement the assertions
in his motion.
Because we are remanding this case to the district
court, we will not address Willie's argument that his sentence is
excessive.
The judgement of the district court is VACATED and this
case is REMANDED for further proceedings as described in this
opinion.
_______________________________
1 The following facts are drawn solely from Willie's "State
ment of Facts" filed in support of his "Motion to Suppress".
