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THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD T. KIEHL, )
) Court of Appeals No. A-5492
Appellant, ) Trial Court No. 4TO-S94-13CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1432 - August 25, 1995]
Appellee. )
______________________________)
Appeal from the District Court, Fourth
Judicial District, Tok, Jane F. Kauvar,
Judge.
Appearances: A. Rene Broker and Zane D.
Wilson, Cook Schuhmann & Groseclose,
Fairbanks, for Appellant. Jacqueline L.
Parris and Gregory S. Fisher, Assistant
District Attorneys, Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Donald T. Kiehl appeals his conviction for driving
while intoxicated (DWI), arguing that the district court should
have suppressed the results of Kiehl's breath test because the
officer who arrested Kiehl did not afford Kiehl a reasonable
opportunity to consult privately with his attorney. We affirm.
Trooper Rae Arno arrested Kiehl for DWI and took him to
the Tok trooper station for processing. As was her usual
practice, Arno kept an audiotape recorder running throughout
Kiehl's processing. She placed the recorder on a table near the
telephone. After Arno read Kiehl the implied consent form
advising him that he was required to take a breath test, Kiehl
asked to talk to his lawyer. Arno gave Kiehl the telephone and
helped him place a call to an attorney. As Kiehl placed the
call, the first side of the tape ran out, so Arno flipped the
tape over to continue the recording. At that point the trooper
was "directly in front of" Kiehl. Arno did not turn the tape
recorder off while Kiehl spoke on the telephone. During Kiehl's
telephone conversation, Arno was in and out of the room where the
telephone was located and remained within earshot of Kiehl.
After speaking with his attorney, Kiehl agreed to take the
Intoximeter test. He failed the test and was charged with DWI.
Kiehl moved to suppress the results of his breath test,
claiming that Arno had failed to provide him a reasonable
opportunity to consult privately by telephone with his attorney.
At the suppression hearing, Kiehl admitted that he had not
noticed that his conversation was being recorded. Nevertheless,
Kiehl claimed that, prior to his arrest, he had heard that the
troopers in Tok recorded people "ninety percent of the time." He
had thus assumed there was a recorder turned on during the
telephone conversation. According to Kiehl, he would have said
"a few more things" to his attorney, but his suspicion that he
was being recorded kept him from doing so. Kiehl also testified
that, due to Arno's movements in and out of the room, he had not
felt comfortable and had not felt that he could speak privately
with his attorney.
At the suppression hearing, Arno acknowledged that she
had turned her tape recorder on as a routine matter at the
inception of her contact with Kiehl, intending to tape the entire
arrest process. While confirming that she had allowed the
recorder to continue running throughout the telephone
conversation, Arno denied that she had ever specifically intended
to record Kiehl's conversation.1 Arno also acknowledged that, as
Kiehl spoke with his attorney, she had walked in and out of the
room and had always remained within earshot. However, according
to Arno, these movements were for the purpose of performing
routine duties; the trooper paid no attention to Kiehl's
conversation, which was not noticeably affected by her presence.
After hearing Kiehl's and Arno's testimony, District
Court Judge Jane F. Kauvar found that Arno had acted
impermissibly in allowing her recorder to remain running during
Kiehl's conversation with his attorney. Accordingly, Judge
Kauvar suppressed all portions of the telephone conversation that
had been recorded. Judge Kauvar nevertheless declined to
suppress the results of Kiehl's breath test. The judge reasoned
that, because Kiehl had not been aware that Arno was recording
his call, the officer's conduct did not actually impair Kiehl's
communications with his attorney. Judge Kauvar further reasoned
that apart from recording the telephone conversation -- which had
no actual effect on Kiehl's conversation -- Arno had done nothing
to deprive Kiehl of a reasonable opportunity to consult with his
attorney.
Judge Kauvar did not err in reaching these conclusions.
Under AS 12.25.150(b) and Copelin v. State, 659 P.2d 1206, 1208
(Alaska 1983), Kiehl had a right to consult his attorney before
deciding whether to take the breath test. Even though police
officers have a duty to maintain custodial observation of a
defendant before administration of the breath test, the defendant
must be given a reasonable opportunity to hold a private
conversation with his or her attorney. Reekie v. Anchorage, 803
P.2d 412 (Alaska App. 1990); Anchorage v. Marrs, 694 P.2d 1163
(Alaska App. 1985); Farrell v. State, 682 P.2d 1128 (Alaska App.
1984).
Farrell, Marrs, and Reekie provide guidance for
accommodating the competing interests of maintaining custodial
observation and allowing reasonable privacy. In Farrell, the
defendant's conviction was reversed "because an officer stood
next to [the defendant] and took notes on the conversation as he
spoke with his attorney." Reekie, 803 P.2d at 414. In Reekie,
"one or two officers remained `close by' during [the defendant's]
telephone call" to his attorney. Id. at 413. In fact, at one
point, one of the officers interrupted the attorney-client
conversation so that the officer could speak to the defendant's
attorney himself. Id. Moreover, the defendant "was aware that
the officers had a recorder running" during the conversation.
Because of this, the defendant testified, he "felt that he could
not speak openly to [his attorney]." Id.
In contrast, this court found no violation of the
defendant's statutory right to confer with counsel in Marrs, 694
P.2d 1163, even though "[an] officer kept in `close proximity' to
[the defendant] throughout the telephone conversation." Reekie,
803 P.2d at 414. Even though the defendant in Marrs "testified
that he was unable to talk openly with his attorney because of
the officer's presence" and was confined to giving "yes" and "no"
answers to his attorney's questions, this court nevertheless
"found that the mere proximity of [the] arresting officer did not
violate Marrs' right to consult privately with his attorney."
Reekie, 803 P.2d at 414.
Unlike Farrell, there was no attempt by the
observing officers to stand next to Marrs and
write down what he was saying.
Marrs, 694 P.2d at 1166 (quoted in Reekie, 803 P.2d at 414).
The rule elucidated by Farrell, Reekie, and Marrs is
that a defendant's right to confer with counsel is not violated
merely because the arresting officer maintains physical proximity
to the defendant. Rather, this court reversed the convictions in
Farrell and Reekie because the police engaged in additional
intrusive measures, intrusions that convinced the defendants that
the officers were intent on overhearing and reporting the
defendants' conversations with their attorneys.
In the present case, Trooper Arno intruded on Kiehl's
privacy in two different ways. She recorded Kiehl's telephone
conversation, and she was in and out of the room while Kiehl was
speaking to his attorney. We consider in turn each aspect of
Arno's conduct.
As Judge Kauvar properly recognized, under Farrell and
Reekie, Arno's actions in recording Kiehl's conversation amounted
to a violation of Kiehl's right to confer with his attorney. As
Judge Kauvar also properly recognized, this violation
necessitated suppression of any portion of the recorded
conversation. However, it is undisputed that Kiehl remained
oblivious of the recording. Arno's conduct, while undeniably
improper, did nothing to impair Kiehl's conversation.2 Because
the surreptitious recording resulted in no discernible impairment
of Kiehl's consultation with counsel, Arno's misconduct had no
effect on the ensuing breath test. In no sense was the test a
product of the impropriety. Hence, the impropriety does not
itself justify suppression of the test result.3
The effect of Arno's proximity to Kiehl must next be
considered. Even though Arno was intermittently present in the
room with Kiehl, this by itself does not show that Kiehl's rights
were violated. The primary consideration is "the confidentiality
of the attorney-client communications, and not . . . the
separation of the arrestee from the arresting officers."
Farrell, 682 P.2d at 1130.
In Kiehl's case, Arno's physical presence was less
intrusive than the officer's presence in Marrs, which we found
permissible. Rather than "[keeping] in `close proximity' to [the
defendant] throughout the telephone conversation," Arno came and
went during Kiehl's conversation with his attorney. If this
conduct demonstrated anything, it was that Arno did not have a
particularly keen interest in overhearing what Kiehl was saying
to his attorney.
In sum, our review of the record convinces us that
Judge Kauvar was not clearly erroneous in finding that Kiehl
failed to show that his telephone conversation with counsel was
affected to any appreciable degree by Arno's conduct. Despite
the impropriety of Arno's actions in allowing her recorder to
continue running, suppressing the breath test result would not
have been "tailored to the injury suffered" and so was not an
appropriate remedy. United States v. Morrison, 449 U.S. 361, 364-
65 (1981).
The judgment is AFFIRMED.
_______________________________
1. Arno testified that, following Kiehl's arrest, she
had changed her usual practice and no longer allowed her recorder
to run while an arrestee placed a call to counsel.
2. Kiehl testified that he had heard that the
troopers in Tok recorded most conversations, assumed that his
conversation was being recorded, and therefore felt somewhat
constrained in speaking with his attorney. This testimony,
however, does not strengthen his claim of prejudice resulting
from Arno's recording of the conversation, since Kiehl admittedly
remained unaware that his conversation was actually recorded.
Given Kiehl's preconceived suspicion that the troopers would be
recording him, it seems fair to infer that Kiehl would have felt
ill-at-ease during the telephone conversation even if Arno had
not recorded the conversation. Because Kiehl's fear that he
might be taped was concededly not based on anything that Arno
said or did, the district court correctly found that Arno's act
of running the tape recorder had no effect on Kiehl's
conversation with his attorney.
3. Our conclusion might be different if the record
established that Arno's actions were motivated by an express
desire to eavesdrop on Kiehl's attorney-client discussions.
Kiehl insists that in fact Arno did intentionally record his
conversation. We disagree. Arno's testimony, which was accepted
by Judge Kauvar, establishes that eavesdropping on Kiehl's
attorney-client discussions was never Arno's objective. Although
the trooper unquestionably acted "intentionally" in the sense
that she knowingly allowed her recorder to run during the
telephone conversation, Arno's only purpose in doing so was to
ensure that a complete record of Kiehl's post-arrest processing
would be preserved. At no point was Arno motivated by an express
desire to eavesdrop on the conversation itself.
