NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANK STEFFENSEN, )
) Court of Appeals Nos. A-4471,
Appellant, ) A-4492, A-4493, & A-4494
) Trial Court Nos. 4FA-91-2898
Cr,
v. ) 4FA-88-596 Cr, 4FA-88-1207 Cr,
) & 4FA-88-1390 Cr
STATE OF ALASKA, )
)
Appellee. )
________________________________)
STATE OF ALASKA, )
) Court of Appeals No. A-4931
Appellant, ) Trial Court No. 4FA-92-1980
Civ
)
v. ) O P I N I O N
)
FRANK STEFFENSEN, )
)
Appellee. ) [No. 1420 - July 28, 1995]
________________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: Marcia E. Holland, Assistant Public
Defender, Fairbanks, John B. Salemi, Public Defender, Anchorage,
and Frank Steffensen, pro se, Fairbanks, for Appellant in A-
4471/4492/4493/4494 and for Appellee in A-4931. William H.
Hawley, Assistant Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee in A-4471/4492/4493/4494 and for
Appellant in A-4931.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
This case involves five related appeals: four appeals
brought by Steffensen from a criminal conviction and three
probation revocations, and one appeal brought by the State from
the superior court's decision to grant Steffensen post-conviction
relief. As explained in more detail below, we reverse the
superior court's decision in the post-conviction relief action
and remand for further proceedings. Accordingly, we hold
Steffensen's four appeals in abeyance pending the superior
court's decision on remand.
Explanation of the Five Appeals
In 1988, Frank Steffensen was convicted of three felony
offenses: third-degree misconduct involving a controlled
substance (possessing cocaine with intent to distribute),
AS 11.71.030(a)(1), in case number 4FA-88-596 Cr; fourth-degree
misconduct involving a controlled substance (possession of
cocaine), AS 11.71.040(a)(3)(A), in case number 4FA-88-1207 Cr;
and felony failure to appear, AS 12.30.060(1), in case number 4FA-
88-1390 Cr. Steffensen served a jail sentence and was released
on probation.
On September 26, 1991, Steffensen was indicted on three
counts of third-degree misconduct involving a controlled
substance (three sales of cocaine) in case number 4FA-91-2898 Cr.
These cocaine sales were alleged to have occurred six months
before, in March of 1991. Following a jury trial, Steffensen was
convicted of two of the three counts. Based on these
convictions, the superior court revoked Steffensen's probation
from the three prior felonies. Steffensen appealed his new
conviction as well as the probation revocations from his three
prior convictions. These four appeals (Nos. A-4471, A-4492, A-
4493, and A-4494) were consolidated for decision.
While Steffensen's appeal was pending, he filed a
petition for post-conviction relief (case number 4FA-92-1980
Civ). The superior court granted Steffensen's petition,
suppressed some of the evidence against Steffensen (tape
recordings of the cocaine sales), and ordered that Steffensen
receive a new trial in case number 4FA-91-2898 Cr. The State
appealed the superior court's decision in the post-conviction
relief action, and that appeal (No. A-4931) was consolidated with
Steffensen's four appeals.
Factual Background
In March 1991, the Bureau of Drug Enforcement (a joint
operation of the Fairbanks police and the Alaska State Troopers)
set up a series of controlled cocaine purchases between
Steffensen and a police informant, Reltha C. Miller. The first
of these transactions (March 5) was not recorded, but the second
and third transactions (March 11 and 18) were recorded pursuant
to Glass warrants. See State v. Glass, 583 P.2d 872 (Alaska
1978).
When the Glass warrants were issued, the superior court
authorized the State to wait 90 days before informing Steffensen
of the execution of the warrants. However, the State allowed
this deadline to pass without either informing Steffensen of the
warrants or asking the superior court to extend the deadline.
Shortly after these alleged drug sales, Steffensen was
arrested for probation violations unrelated to any drug offense.
(Steffensen was taken into custody for changing his residence
without permission of his probation officer). As noted above,
Steffensen was not indicted for these alleged sales until Septem
ber 26. Only after Steffensen was indicted did he learn that he
had been the subject of electronic monitoring.
When Steffensen discovered that the State had failed to
honor the superior court's 90-day deadline for notifying him of
the electronic monitoring, Steffensen filed a pre-trial motion
asking the court to suppress the tapes. Steffensen argued that
the police had intentionally failed to notify him of the
electronic surveillance, and he also argued that the State's
failure to promptly notify him had prejudiced his defense.
Steffensen asserted that his defense would be premised mainly on
attacking Miller's (the police informant's) credibility.
Steffensen suggested that Miller had set him up _ that Miller had
engaged Steffensen in conversation but that the cocaine Miller
turned over to the police had come from another source.
Steffensen asserted that Miller had ready access to drugs, that
Miller was obtaining drugs without the Bureau of Drug
Enforcement's knowledge, and that, during the electronic
surveillance, Miller had turned off the tape recorder and had
walked in and out of buildings where he (Miller) was not under
police surveillance _ suggesting that Miller could have obtained
the cocaine from someone other than Steffensen. Steffensen
argued that, if he had known earlier that the police had executed
the Glass warrants, he would have been able to locate witnesses
who could impeach Miller.
Following an evidentiary hearing, Superior Court Judge
Jay Hodges found that the State had not intentionally concealed
the electronic surveillance from Steffensen; rather, the police
had negligently failed to seek an extension of the 90-day
deadline.1 Additionally, Judge Hodges found that, at least on
the record before him, Steffensen had failed to establish any
prejudice stemming from the delay in notification. However,
Judge Hodges kept the door open if Steffensen could later show
prejudice to the defense:
THE COURT: [T]he court does not find
that, at this point in the case, based on the
state of the evidence, there is any prejudice
shown in connection with preparation for
trial. That is without prejudice to
[Steffensen's ability to] renew [the motion]
at the time of the conclusion of the State's
case, depending on what the State's case
shows and what showing the defense can make
with respect to prejudice.
At Steffensen's ensuing trial, the State introduced the
challenged tape recordings. Steffensen was ultimately convicted
of the second and third sales (the two that had been taped); the
jury was unable to reach a verdict on the first sale (the one
that had not been taped).
Steffensen filed a motion for new trial, relying on new
evidence that he had been prejudiced by the State's failure to
give him timely notification of the electronic surveillance. In
particular, Steffensen presented the testimony of Douglas Felix.
Felix testified that another man, Michael Stickman, had told him
that Miller had set up Steffensen because Steffensen would not
provide Miller with cocaine. Stickman was unavailable to testify
regarding this conversation because he had committed suicide on
October 24, 1991 (four weeks after Steffensen was indicted).
Steffensen argued that, if he had received timely notice of the
Glass warrants, he would have found Stickman and induced Stickman
to testify concerning Miller's motives for fabricating a case
against Steffensen.
Judge Hodges agreed that Steffensen had been prejudiced
by the delay. The judge found that, had Steffensen been indicted
in March and his trial held within 120 days, Steffensen would
likely have located Stickman before Stickman committed suicide,
and Stickman would have been a defense witness. However, Judge
Hodges found that the error was harmless because of the other
evidence Steffensen introduced at trial to attack Miller's
credibility and motives.
On October 26, 1992, Steffensen filed a petition for
post-conviction relief. In his petition, Steffensen asserted
that he had found another new witness, Marla Jimmie, who would
have corroborated the assertion that Steffensen was set up, and
whose testimony would have appreciably affected the jury's
verdict. Steffensen further asserted that, because of the
State's delay in notifying him of the electronic surveillance,
(1) he had been unable to locate Jimmie until well after his
trial and (2) her memory of the events litigated was now
significantly faded.
Jimmie and Steffensen had been friends for
approximately eight years. Steffensen submitted an affidavit
stating that he had been in contact with Jimmie for several
months following his arrest in March of 1991 but that he had lost
contact with Jimmie before his indictment in September.
Steffensen asserted that, after he became aware that he faced
drug charges, he and his attorney tried to contact Jimmie but
they were unable to find her until about four months after
Steffensen's trial.
At an ensuing evidentiary hearing, Jimmie corroborated
Steffensen's claim that she lost contact with him about six
months after his arrest. Jimmie had moved to Anchorage in April
or May of 1991, had stayed there for about one month, and then
had begun moving back and forth between Anchorage and Fairbanks.
She could not remember when Steffensen first re-established
contact with her, but it was sometime shortly before he filed his
petition for post-conviction relief.
Jimmie testified that, in March of 1991, she was
present on three or four occasions when Steffensen and Miller
were at the Savoy Bar together. She could no longer identify the
exact dates of these occurrences, but she stated that she was
with Steffensen "almost every day" during March 1991 and that she
had stayed at his residence on a few occasions. During this time
period, Jimmie had no indication that Steffensen was selling
cocaine, and she never witnessed any drug transactions between
Steffensen and Miller. However, Jimmie did witness what she
thought were drug transactions between Miller and a man who wore
"either an army jacket or a plaid shirt".
According to Jimmie, Miller had approached her on
several occasions, asking her to provide him with cocaine or to
get Steffensen to provide him with cocaine. Miller asked Jimmie
why Steffensen would not make a deal with him. He seemed
disappointed by Steffensen's refusal to sell him cocaine, but he
was nevertheless able to obtain cocaine from other sources, and
he offered some to Jimmie. Miller told Jimmie "that he would get
to [Steffensen], one way or another, or something like that."
Judge Hodges granted Steffensen's petition for post-
conviction relief. The judge reiterated his earlier finding that
the State's failure to provide timely notice had not been
intentional (although he found it to be extremely negligent).
This time, however, Judge Hodges found that Steffensen had shown
actual prejudice:
THE COURT: At the time of trial ...
there was some conflicting testimony
concerning what the various officers had
observed; there was conflicting testimony con
cerning the character of [Miller]. [I]t was
critical as to what had actually transpired.
[T]estimony has been presented that at or
about the time of these transactions, Ms.
Jimmie, who was a friend of ... Steffensen,
spent a considerable amount of time with ...
Steffensen in the downtown area of Fairbanks.
Her testimony is essentially [that] she was
present during most, if not all, of the
occasions when ... Steffensen was present in
and about the area where these transactions
occurred. The testimony is, further, that
because of the passage of time, the specific
times, dates, and places ... cannot [be remem
bered]. ... [B]ecause of the delay in not
complying with the search warrant
[notification] requirements, [Steffensen] was
precluded from obtaining the evidence from
... Jimmie as to the specifics of the time,
dates, and places where she would have been
with him [and] she may well have been with
him [during these] alleged transactions.
Under the Brannen case [Brannen v. State, 798
P.2d 337, 339 (Alaska App. 1990)], ... if the
defense can show prejudice, the remedy is
suppression of the seized evidence and a new
trial.
Because Judge Hodges concluded that Steffensen had made a
sufficient showing of prejudice, he ordered a new trial with the
tape-recorded evidence suppressed.
In Gallagher v. State, 651 P.2d 1185, 1186-87 (Alaska
App. 1982), this court held that a violation of the notification
requirement of Alaska Criminal Rule 37(b) should result in
suppression of the fruits of a validly issued Glass warrant only
when the violation is intentional or when the delay in
notification results in actual prejudice to the accused. (This
holding was re-affirmed in Brannen, 798 P.2d at 339.) In the
present case, Judge Hodges concluded that the violation of the 90-
day notice requirement did prejudice Steffensen's defense. To
review Judge Hodges's ruling, we must examine the meaning of
"prejudice" as this term is used in Gallagher and Brannen.
The holding in Gallagher was explicitly modeled after
federal cases construing Federal Criminal Rule 41, the
counterpart to Alaska Criminal Rule 37. These federal cases hold
that improper execution of a search warrant will require
suppression of the resulting evidence only if the defendant was
actually prejudiced or the government's non-compliance was
deliberate. Gallagher, 651 P.2d at 1186-87 & 1187 n.3. Although
Gallagher cites only one supporting case by name (United States
v. Marx, 635 F.2d 436, 441 (5th Cir. 1981)), numerous other cases
support this rule. Among the more recent decisions are United
States v. Gerber, 994 F.2d 1556, 1559-1561 (11th Cir. 1993),
United States v. Ritter, 752 F.2d 435, 440-41 (9th Cir. 1985),
United States v. $22,287.00 in United States Currency, 709 F.2d
442, 447-48 (6th Cir. 1983), and United States v. Stefanson, 648
F.2d 1231, 1235 (9th Cir. 1981).
All of these cases agree that, before evidence will be
suppressed because of the government's non-compliance with a
procedural rule governing the execution of search warrants, a
defendant must demonstrate that he or she was prejudiced by the
government's non-compliance.2 Moreover, all of these cases
employ the same formula to define "prejudice" when examining
violations of the procedural rules:
[V]iolations of [Federal Criminal] Rule 41 alone should
not lead to exclusion [of evidence] unless (1) there was
"prejudice" in the sense that the search might not have occurred
or would not have been so abrasive if the Rule had been followed,
or (2) there is evidence of intentional and deliberate disregard
of a provision in the Rule.
$22,287.00 in United States Currency, 709 F.2d at 448.
This formulation of the test traces its origin to Judge
Friendly's opinion in United States v. Burke, 517 F.2d 377, 386-
87 (2nd Cir. 1975). Charles A. Wright, Federal Practice and
Procedure (Criminal) (1982), 665.1 & 673. While recent court
decisions do not always attribute this test to Burke, the wording
of the test (in particular, Judge Friendly's idiosyncratic use of
"abrasive") has remained remarkably unchanged over the
intervening twenty years.
Using this definition of "prejudice", it is difficult
to see how prejudice would ever arise from the government's
failure to serve after-search notification upon the person whose
privacy interest has been affected. That is, if the government's
only violation of law was its failure to give notice after the
search was completed, it would be close to impossible to show
that, absent this violation, the search would not have occurred
or would not have been so intrusive. Perhaps in tacit
recognition of this problem, the federal courts have applied an
altered definition of "prejudice" when dealing with situations in
which the government has failed to give notice of electronic
monitoring.
The federal cases suggest three rationales for
requiring the government to notify people that their
conversations have been surreptitiously monitored or recorded.
Two of these rationales deal primarily with protection of civil
interests. First, notice is required so that the subject of the
electronic monitoring "can seek appropriate civil redress ... if
he feels that his privacy has been unlawfully invaded". United
States v. Donovan, 429 U.S. 413, 438; 97 S.Ct. 658, 673; 50
L.Ed.2d 652 (1977) (quoting the United States Senate report on
the federal wiretap statute, 18 U.S.C. 2518).3 Second, notice
of the electronic monitoring reduces the opportunity for unlawful
use of the recorded conversation(s). See, e.g., United States v.
Lawson, 545 F.2d 557, 564 (7th Cir. 1975).
The third rationale, and the one most pertinent in the
context of criminal litigation, is that notice of the electronic
monitoring allows defendants in criminal cases to be informed of
the evidence obtained through monitoring, to investigate the
circumstances underlying the monitoring, and to seek suppression
of the resulting evidence when appropriate. However, even a
tardy notice will satisfy these purposes as long as the notice
arrives in time for the defendant to file suppression motions and
prepare to meet the evidence at trial.
For instance, in United States v. Donovan, two of the
defendants argued that they were prejudiced because the
government failed to include their names in the list of people
who had been monitored. Because the two defendants' names were
not in the government's list, the federal district court did not
send them notification of the wiretap, and the two defendants did
not learn that their conversations had been electronically
monitored until after they were indicted. The Supreme Court
held, however, that the defendants had not been prejudiced:
[Defendants] Merlo and Lauer were not preju
diced by their failure to receive
postintercept notice under ... the District
Court's inventory orders. As noted earlier,
the Government made available to all defend
ants the intercept orders, applications, and
related papers. ... And in response to
pretrial discovery motions, the Government
produced transcripts of the intercepted
conversations.
Donovan, 429 U.S. at 439 n.26, 97 S.Ct. at 673-74 n.26.
Donovan, then, apparently stands for the proposition
that late notification of electronic monitoring will "prejudice"
a defendant only when the lateness of the notice hampers the
defendant's ability to file pre-trial suppression motions or gain
pre-trial knowledge of the monitored conversations. As the First
Circuit declared in United States v. Harrigan, 557 F.2d 879, 884
(1st Cir. 1977), "[W]e doubt that many defendants will be able to
make a showing of actual prejudice [from the government's failure
to file a timely notice of electronic monitoring]. The [Supreme]
Court's opinion in Donovan indicates that the [subsequent]
service of a 2518(9) notice will often preclude any such
claim."
This court's prior decisions in Gallagher and Brannen
suggest the same definition of prejudice. Gallagher involved a
claim that the State's failure to give timely notice had
prejudiced the defendant's ability to challenge the admissibility
of the monitored conversations. This court found that the
defendant had been apprised of the pertinent information in time
to fully raise suppression issues, and thus the defendant had not
been prejudiced by the tardiness of the notice. Gallagher, 651
P.2d at 1187.
In Brannen, the defendant claimed a different sort of
prejudice. Brannen was convicted of sexually abusing his step
daughter. He argued on appeal that, because the State failed to
give him timely notice that the police were monitoring his
conversations, he continued to hold conversations with his
stepdaughter and thus further incriminated himself. This court
rejected Brannen's suggested prejudice:
[T]he prejudice that we adverted to in
Gallagher is that which occurs when delay [in
notification] places a defendant at a disad
vantage in challenging the evidence obtained
through surreptitious monitoring of a
conversa-tion. See [United States v.]
Orozco, 630 F.Supp. [1418,] 1536 [(S.D.Cal.
1986)]. Nothing in Gallagher suggested that
prejudice can be established by a mere claim
that, by being tipped off to the existence of
an investigation, the defendant would have
been able to take evasive action to thwart
future investigative efforts.
Brannen, 798 P.2d at 339.
In Steffensen's case, the superior court applied a
definition of "prejudice" that is similar to the type of
prejudice asserted and rejected in Brannen _ in the sense that
Judge Hodges found prejudice in the fact that Steffensen had not
received early warning that the State had targeted him in a
criminal investigation. However, Steffensen's claim of prejudice
differs in an important respect from the claim raised in Brannen.
The defendant in Brannen did not have a protected right to "take
evasive action to thwart [ongoing] investigative efforts". Id.
at 339. Steffensen, on the other hand, did have a right to
reasonable notice of the State's charges so that he could
investigate the case and prepare his defense. This due process
right is recognized in the case law dealing with pre-accusation
delay. See, for example, United States v. Marion, 404 U.S. 307,
324; 92 S.Ct. 455, 465; 30 L.Ed.2d 468 (1971); State v. Mouser,
806 P.2d 330 (Alaska App. 1991).
However, for a defendant to prevail on a claim of
unreasonable pre-accusation delay, the defendant must establish
both that he or she was actually prejudiced by the delay and that
the government had no valid reason for its delay in filing the
criminal charge against the defendant. Mouser, 806 P.2d at 336.
In the present case, Judge Hodges found that Steffensen was
actually prejudiced by the State's delay in filing the drug
charges (the event that led Steffensen to comprehend the
potential importance of Marla Jimmie's testimony). However,
because Steffensen's claim was litigated as a Glass warrant
violation instead of an assertion of pre-accusation delay, Judge
Hodges did not examine the second prong of the pre-accusation
delay test: he did not require Steffensen to prove that the
State had no valid reason for its delay in notifying Steffensen
that he was the subject of criminal charges.
If Steffensen had framed his claim in terms of pre-
accusation delay, the State would have been entitled to introduce
evidence explaining its delay in filing charges against
Steffensen. The question thus presents itself: Does it make any
difference that Steffensen's claim rests on the State's failure
to give timely notice of electronic monitoring under a Glass
warrant?
We hold that the answer to this question is "no": the
State is still entitled to introduce evidence explaining the
delay. We reach this answer because, as this court noted in
Brannen, the requirement that people be notified of electronic
monitoring is not meant to serve as a target warning to those
under investigation.
The law has long required law enforcement officers who
execute search warrants to contemporaneously notify the person in
possession of the property that was seized. Alaska Criminal Rule
37(b), provides:
The officer taking property under the warrant
(1) shall give to the person from whom or
from whose premises the property was taken a
copy of the warrant, a copy of the supporting
affidavits, and [a] receipt for the property
taken, or (2) shall leave the copies and the
receipt at the place from which the property
was taken.
Notice that property has been seized pursuant to a search warrant
is intended to protect the possessor's rights in relation to the
seized property. The notice enables the person to protect
possessory interests in the property; it also helps assure that
the government will not put the property to improper or unfair
use.
On the other hand, the notice is not intended to sound
an alarm as to the possibility of future prosecution. This is
obvious from the wording of Criminal Rule 37(b). Rule 37(b)
directs law officers to leave notice with the person who was in
possession of the property when it was seized. But the possessor
of the property will not always be the owner of the property, and
he or she will often not be the person under investigation.
We thus conclude that the notification requirement of
Rule 37(b) is aimed at protecting the person who has suffered a
trespass to land and/or chattels. The possessor of the property
may, in fact, be the person under investigation or may be a
friend of the person under investigation. In such circumstances,
when the police leave the notice required by Criminal Rule 37(b),
the effect may be to deliver an early "target warning" to the
person under investigation. But this is not the intended
function of Rule 37(b).
This point is exemplified by this court's decision in
Jones v. State, 646 P.2d 243 (Alaska App. 1982), a case in which
this court was called upon to clarify the relationship between
Glass warrants and the notice requirement of Criminal Rule 37(b).
The defendant in Jones claimed that evidence of his conversations
(which had been monitored pursuant to a Glass warrant) should be
suppressed because the police failed to give him contemporaneous
notification after they executed the Glass warrant. But this
court recognized that, when the police seek a warrant to engage
in electronic monitoring of a person's conversations, that person
is generally under investigation _ and thus the notice
requirement of Rule 37(b) would almost always serve as an early
warning of the government's investigative efforts. For that very
reason (that is, to prevent Rule 37(b) from functioning as a
target warning), this court held that the contemporary notice
requirement of Rule 37(b) should normally be relaxed for Glass
warrants:
[W]e recognize that in most cases involving
[Glass warrants], compelling reasons will
exist to postpone service of an inventory, or
notice that a warrant has been executed, upon
the subject of the warrant. ... [I]mmediate
dis-closure of [police informants'] identity
would severely jeopardize their safety and
impair investigatory efforts in other cases.
Moreover, in many cases, the interests of
effective law enforcement might require that
substantial follow-up investigation occur
after the monitored [conversation]. ... A
strict requirement that an inventory be
served upon the defendant at the time his
conversation is monitored would obviously
render potential follow-up investigation
ineffective.
Jones, 646 P.2d at 249.
After Jones, it is clear that the notice requirement of
Criminal Rule 37(b), as it relates to Glass warrants, is intended
"to serve notice upon a person that his [or her] privacy
interests have been violated", but it is not intended to notify
the targets of a criminal investigation that the government has
commenced an inquiry into their activities. Jones, 646 P.2d at
249. As this court reiterated in Brannen, the fact that the
government obtains a warrant to electronically monitor a person's
conversations does not give the putative defendant a vested right
to receive early notification of the government's investigation.
To summarize: In the context of Glass warrants, tardy
notification of the execution of the warrant "prejudices" a
defend-ant when the lateness of the notice impairs the
defendant's ability to challenge the intercepted conversation.
However, "prejudice" does not include the delay in the
defendant's finding out that he or she is under investigation.
Brannen, 798 P.2d at 339. This second type of prejudice is
directly addressed by the doctrine of pre-accusation delay.
Steffensen's claim for post-conviction relief is based
on his loss of evidence stemming from the government's delay in
notifying him of the planned criminal charges. This claim is
cogni-zable under the rubric of pre-accusation delay. When
Steffensen asserted that his ability to defend the drug charges
was prejudiced by the government's delay in filing the charges
(that is, the government's delay in notifying Steffensen that a
defense was necessary), the law of pre-accusation delay required
Steffensen to prove two things to obtain relief: (1) that the
delay actually prejudiced him (which Judge Hodges has already
found to be so), and (2) that the government had no good reason
for the delay (which remains to be litigated). While it is true
that the government obtained a Glass warrant to monitor
Steffensen's conversations and then failed to comply with the
notice requirement of Criminal Rule 37(b), this fact does not,
and should not, alter the elements of Steffensen's proof _
because the notice required by Criminal Rule 37(b) is not
intended to serve as a target warning. The fact that the police
employed a Glass warrant during their investigation provides no
basis for supplanting the established law of pre-accusation
delay.4
We therefore REVERSE the superior court's order
granting Steffensen post-conviction relief, and we REMAND this
case to the superior court so that Steffensen and the State can
litigate the reason (or lack of reason) for the State's delay in
charging Steffensen with the drug offenses. Pending resolution
of the post-conviction relief litigation, we stay our consid
eration of Steffensen's four appeals (his direct appeal from his
most recent criminal conviction and his appeals of the three
probation revocations). We retain jurisdiction over all five
appeals.
_______________________________
1 More precisely, Judge Hodges appears to have found that the police acted with
gross negligence. He declared that, while the State's conduct was not
"intentional" and was not "reckless", it was "more than negligence".
2 We speak here only of non-compliance with the procedural requirements imposed
by court rule. As the United States Supreme Court has stated, speaking of
the federal wiretap statute:
Nothing in the structure of the Act or [its] legislative history suggests
that incriminating conversations [become] "unlawfully intercepted" [simply
because] parties to those conversations do not receive ... notice as a
result of the Government's failure to inform the District Court of their
identities. At the time inventory notice was served ... , the intercept
had been completed and the conversations had been "seized" under a valid
intercept order.
United States v. Donovan, 429 U.S. 413, 438; 97 S.Ct. 658, 673; 50 L.Ed.2d 652
(1977). Of course, if the government fails to comply with a requirement
imposed by the Fourth Amendment (such as establishing probable cause to
conduct the search), the legal analysis is different.
3 Senate Report No. 1097, 90th Congress, 2nd session, at 105 (1968), U.S. Code,
Congressional & Administrative News, p. 2194.
4 Steffensen argues forcefully that if the police know that they can violate
the Glass warrant notification deadline without jeopardizing the
prosecution, they will deliberately do so to gain a tactical advantage.
However, both the federal cases and this court's prior decisions have
explicitly distinguished situations in which the police are shown to have
deliberately violated the notification requirement. As explained in the
main text, Judge Hodges found that the police had not deliberately violated
the 90-day notice requirement set by the superior court in this case.
