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THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES CONROY BETTS, )
) Court of Appeals No. A-5757
Appellant, ) Trial Court No. 1JU-S94-1305CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1476 - July 12, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Walter L. Carpeneti, Judge.
Appearances: Patrick W. Conheady, Olmstead &
Conheady, Juneau, for Appellant. W.H. Hawley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
James C. Betts was convicted of one count of misconduct
involving a controlled substance in the fourth degree, in violation
of AS 11.71.040(a)(3)(A). On appeal, Betts challenges the validity
of the search warrant pursuant to which the evidence against him was
seized. We affirm. On August 4, 1994, Juneau law enforcement officers were
alerted to the possibility of drug trafficking at a trailer located
at space 50 in the Sprucewood Trailer Park, Juneau. The officers
promptly applied for and were issued a warrant to search the trailer
and any individuals on the premises for drugs and drug
paraphernalia. The warrant was executed approximately thirty
minutes after it was issued. Upon entering the trailer, the
officers encountered and searched several individuals, including
Betts. Betts was found to be in possession of a small quantity of
cocaine and, as a result, was charged with misconduct involving a
controlled substance in the fourth degree.
Betts moved to suppress the evidence against him,
challenging the validity of the search warrant. He argued that the
warrant was flawed in authorizing officers to search individuals on
the premises. Superior Court Judge Walter L. Carpeneti rejected
this argument and denied Betts' suppression motion. On appeal,
Betts renews this argument.
A warrant authorizing the search of particularly described
premises and "any persons therein" is not per se impermissible. 2
Wayne R. LaFave, Search and Seizure  4.5(e), at 545-46 (3d ed.
1996). "On principle, the sufficiency of a warrant to search
persons identified only by their presence at a specified place
should depend upon the facts." State v. DeSimone, 288 A.2d 849, 850
(N.J. 1972). The guiding principle here, as in other areas of
search and seizure law, is probable cause; the rule in such cases
has been succinctly stated as follows: "So long as there is good
reason to suspect or believe that anyone present at the anticipated
scene will probably be a participant, presence becomes the
descriptive fact satisfying the aim of the Fourth Amendment." Id.
LaFave concurs with this statement of the rule:
Unquestionably, the DeSimone rationale is
correct. A search warrant authorization to
search all persons found within a specifically
described place is not lacking in particularity
in the sense that the executing officer will be
unable readily to determine to whom the warrant
applies. Rather, the question is whether there
is sufficient particularity in the probable
cause sense, that is, whether the information
supplied the magistrate supports the conclusion
that it is probable anyone in the described
place when the warrant is executed is involved
in the criminal activity in such a way as to
have evidence thereof on his person. If the
evidence tendered to the magistrate supports
such a conclusion, then the search-all-persons-
present warrant is unobjectionable.
Search and Seizure,  4.5(e), at 546-57 (footnotes omitted).
In the present case, the superior court issued a
thoughtful decision carefully analyzing the circumstances of Betts'
case and applying the correct rule of law. The court concluded that
good reason existed to believe that all individuals present in the
trailer upon execution of the challenged warrant would probably have
drugs or drug paraphernalia on their persons. Our review of the
briefs and the record convinces us that the superior court's factual
findings are not clearly erroneous and that its legal analysis is
sound. For the reasons stated in the superior court's decision,
relevant portions of which are appended hereto, we conclude that the
court did not err in denying Betts' motion to suppress.
The conviction is AFFIRMED.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT JUNEAU
STATE OF ALASKA, )
)
Plaintiff, )
)
v. )
)
JUANITA JEAN WEBBER, ) Case No. 1JU-S94-1304 CR
JAMES CONROY BETTS, ) Case No. 1JU-S94-1305 CR
ROBERT CARL SWANSON, ) Case No. 1JU-S94-1306 CR
)
Defendants. )
______________________________)
ORDER DENYING MOTIONS
TO SUPPRESS
. . . .
STATEMENT OF FACTS
The relevant facts are as follows:
On August 4, 1994, at about 10:10 p.m., Alaska State
Trooper Sergeant Dan Vanderweele and Juneau Police Department
Investigator Stan Herrera contacted Magistrate John W. Sivertsen,
Jr., via telephone. Vanderweele and Herrera asked Magistrate
Sivertsen to issue a search warrant that permitted them to search
the residence at #50, Sprucewood Trailer Park and any individuals
within the residence for drugs and drug paraphernalia. Sprucewood
is located at 9551 Stephen Richards Drive in Juneau, Alaska. To
justify issuance of the search warrant, Vanderweele relied primarily
on the statements of a Sprucewood resident named David Biddinger who
lived at #51, Sprucewood, which is next door to #50, Sprucewood.
Vanderweele testified under oath that he had talked to
Biddinger on the telephone about an hour earlier, at about 9:00 p.m.
on August 4. Biddinger told Vanderweele that, within the previous
10 minutes, the woman who lived at #50, Sprucewood had asked
Biddinger's mother to come to her residence. At the time,
Biddinger's mother had just arrived at Biddinger's residence and was
exiting her vehicle. Biddinger told Vanderweele that he did not
know the woman's name, but did know that a man named "Bob" lived at
the same residence. Vanderweele and Herrera subsequently relied on
police and intelligence records to identify the residents of #50,
Sprucewood as Webber and Swanson.
After Biddinger's mother went to the Webber/Swanson
residence and returned, Biddinger told Vanderweele that she was
"upset". According to Vanderweele's testimony, Biddinger's mother
informed Biddinger that Webber had offered to sell her marijuana at
the doorway of the residence. Vanderweele further testified that
Biddinger's mother also informed Biddinger that she saw cocaine and
marijuana inside the Webber/Swanson residence. In addition,
Vanderweele testified that Biddinger's mother told Biddinger that
she saw "several dishes of white powder" inside the trailer and
people "sitting around snorting powder off the dish". Biddinger
further told Vanderweele that he has "seen lots of traffic coming
and going" from #50, Sprucewood in the past. As he spoke with
Vanderweele, Biddinger observed a vehicle approach #50, Sprucewood.
To show that Biddinger's statements were credible and
reliable, Vanderweele informed Magistrate Sivertsen that Biddinger
was neither serving as a government informant, nor working off
criminal charges in exchange for the information that he had
provided. (EN1) Biddinger had, however, advised Vanderweele that
he had engaged in illegal activity in the past. Vanderweele
informed Magistrate Sivertsen that a criminal record check on
Biddinger revealed that he had prior convictions for burglary,
larceny, and alcohol-related offenses.
In addition to conveying Biddinger's statements,
Vanderweele provided several other pieces of information to support
the issuance of a search warrant. Vanderweele testified that an
unknown person informed law enforcement officials on March 17, 1980,
that Swanson was selling cocaine, marijuana, and mushrooms from his
residence. At that time, Swanson lived at 7380 North Douglas
Highway.
Vanderweele further testified that on April 30, 1990, a
state-paid informant code-named N-428 had advised law enforcement
officials that Swanson was engaged in the cocaine trade, and that
Swanson had told him that he was obtaining his cocaine from a Juneau
fisherman named "Bear". Vanderweele testified that on December 12,
1990, N-428 purchased a quarter ounce of cocaine from Swanson. When
Magistrate Sivertsen questioned Vanderweele about N-428's
reliability, Vanderweele testified that N-428 had been "truthful and
reliable" during his recent work as an undercover agent for the
Ketchikan Police Department. According to Vanderweele's testimony,
N-428's undercover narcotics purchases had enabled Ketchikan Police
to obtain search warrants, Glass warrants, and arrest warrants.
Vanderweele further testified that an unidentified caller
advised law enforcement officials on September 21, 1991, that
Swanson and Webber were "dealing drugs". According to Vanderweele,
the caller further advised that "there was lots of traffic going in
and out of their place". Vanderweele also testified that the caller
advised that Webber was "using narcotics" and was "all drugged out".
In addition, Vanderweele testified that on March 22, 1994,
Juneau attorney Fred Baxter advised law enforcement officials that
members of Webber's family had told him that she was living with
Swanson and using heroin. According to Vanderweele, Baxter also
stated that Webber's family believed that she had traveled to
Anchorage on March 16, 1994, to obtain cocaine and bring it to
Juneau. Vanderweele also testified that Baxter said that Webber's
family knew that she had visited a medical clinic where doctors
found needle marks on her arms.
Vanderweele also testified that an anonymous caller had
informed law enforcement officials on July 27, 1994, that people
were selling cocaine from #50, Sprucewood. The anonymous caller
further advised that he believed that "a new shipment of drugs was
getting into the trailer there on an estimation of every two weeks."
Herrera testified that an immediate search warrant was
required to prevent the dissipation of evidence.
Based on the testimony of Vanderweele and Herrera,
Magistrate Sivertsen found that Biddinger and his mother had
provided "credible" and "reliable" information. Magistrate
Sivertsen then concluded that there was "probable cause to believe
that the alleged offense of misconduct involving a controlled
substance" had been or was being committed. Magistrate Sivertsen
also concluded that it was reasonably certain that items of the
alleged offense could be found at #50, Sprucewood. Magistrate
Sivertsen then issued a telephonic search warrant at 10:40 p.m. that
permitted law enforcement authorities to search #50, Sprucewood and
any individuals on the premises for drugs and drug paraphernalia at
anytime, day or night. Within 30 minutes of the issuance of the
warrant, police officers entered #50, Sprucewood and searched the
residence and its three occupants, Webber, Swanson, and Betts, for
drugs. Evidence supporting the present indictment was found at that
time.
. . . .
III. THE MAGISTRATE HAD PROBABLE CAUSE TO ISSUE A
SEARCH WARRANT THAT PERMITTED LAW ENFORCEMENT
OFFICIALS TO SEARCH ALL PERSONS PRESENT AT #50,
SPRUCEWOOD FOR DRUGS AND DRUG PARAPHERNALIA.
. . . Betts contends that Vanderweele and Herrera
presented "no reliable information of any detail" from which the
magistrate could find probable cause to issue a search warrant that
permitted law enforcement officials to search Betts for drugs and
drug paraphernalia. Betts relies primarily on Beeler v. State, 677
P.2d 653, 656 (Okla. Crim. App. 1984), and on Ybarra v. Illinois,
444 U.S. 85, 91 (1979), to bolster his position. In Beeler, the
Oklahoma Court of Criminal Appeals stated:
Where probable cause is the standard, a search
or seizure of a person must be supported by
probable cause particularized with respect to
that person. That requirement may not be
undercut by pointing to the coincidental
existence of probable cause to search or seize
another or to search the premises where the
person may happen to be. Ybarra v. Illinois,
444 U.S. 85, 91 (1979).
In the present case, the magistrate issued a warrant that
authorized law enforcement officials to search any and all persons
present at #50, Sprucewood. An "all persons present" search warrant
is valid where:
[T]here is sufficient particularity in the
probable cause sense, that is, whether the
information supplied the magistrate supports
the conclusion that it is probable anyone in
the described place when the warrant is
executed is involved in the criminal activity
in such a way as to have evidence thereof on
his person.
WAYNE R. LAFAVE, SEARCH & SEIZURE; A TREATISE ON THE FOURTH
AMENDMENT sec. 4.5(e), at 231 (2d ed. 1987). The magistrate had
sufficient evidence to find probable [cause] to issue an "all
persons present" search warrant for the following reasons. First,
Vanderweele's testimony established that, within the previous 90
minutes, Biddinger's mother had seen "people snorting white powder"
from dishes inside the residence. The testimony further established
that Biddinger's mother believed that the white powder was cocaine.
Second, Vanderweele's testimony established that Webber
and Swanson . . . were selling drugs from their residence. Eight
days prior to the issuance of the warrant, an anonymous caller had
reported that people were selling cocaine from #50, Sprucewood. The
anonymous caller also reported that drugs were being brought to the
residence approximately every two weeks. In addition, the testimony
indicated that when Biddinger's mother went to the residence earlier
that evening, Webber had offered to sell her marijuana. Lastly,
Biddinger reported seeing "lots of traffic coming and going" from
the residence in the past. In fact, Biddinger saw a vehicle arrive
at the residence as he spoke with Vanderweele on the telephone.
Third, Vanderweele's testimony indicated that the listed
residents of #50, Sprucewood, Webber and Swanson, had a history of
reported drug trafficking. As far back as 1980, an anonymous person
informed law enforcement officials that Swanson was selling cocaine,
marijuana, and mushrooms from his then residence at 7380 North
Douglas Highway. In 1990, a reliable police informant had allegedly
purchased a quarter ounce of cocaine from Swanson. In 1991, an
anonymous caller advised law enforcement officials that Swanson and
Webber were "dealing drugs" and that "there was lots of traffic
going in and out of their place". In March, 1994, a Juneau attorney
advised law enforcement officials that members of Webber's family
had told him that she had traveled to Anchorage on March 16, 1994,
to obtain cocaine and bring it back to Juneau. The attorney also
reported that Webber's family told him that she was a heroin user.
The testimony indicated that the illegal activity at the
residence was ongoing and overt and that the police were likely to
find all persons in the residence participating in the sale and use
of cocaine and marijuana. Cf. State in Interest of L.Q., 566 A.2d
223, 226 (N.J. Super. Ct. App. Div. 1989); Gonzales v. State, 761
S.W.2d 809, 811-12 (Tex. Ct. App. 1988). Ironically, a case which
is helpful to the analysis of this issue is People v. Betts, 456
N.Y.S.2d 278, 279 (N.Y. App. Div. 1982). In that case, although the
testimony did not eliminate the possibility of non-criminal
participants being at the residence, the residence was "private and,
therefore, less likely to contain innocent bystanders." Betts, 456
N.Y.S.2d at 279; contrast Ybarra, 444 U.S. 85 (concerning search of
business open to public). The New Jersey Supreme Court provided a
good illustration of the distinction between public and private in
State v. DeSimone, 288 A.2d 849 (N.J. 1972). The court in DeSimone
stated:
A showing that lottery slips are sold in a
department store or an industrial plant
obviously would not justify a warrant to search
every person on the premises, for there would
be no probable cause to believe that everyone
there was participating in the illegal
operation. On the other hand, a showing that
a dice game is operated in a manhole or in a
barn should suffice, for the reason that the
place is so limited and the illegal operation
so overt that it is likely that everyone
present is a party to the offense.
Id. at 850.
The present case involved a residence which is a trailer,
which is much closer in size to a barn or a manhole than a
department store or an industrial plant, and closer to the terms of
restricted access as well. While it was possible that non-criminal
participants in the activities within the trailer might exist, it
was clearly private and less likely to contain innocent bystanders.
In addition, the "all persons present" warrant was
preferable in this case because it is unreasonable to require law
enforcement officials to specify the names of all individuals who
might be in the residence at any one time. See State v. Hinkel, 365
N.W.2d 774, 776 (Minn. 1985); Betts, 456 N.Y.S.2d at 279.
Furthermore, the "all persons present" warrant prevented persons
from hiding cocaine and marijuana evidence in their clothing. See
Commonwealth v. Graciani, 554 A.2d 560, 562 (Pa. Super. Ct. 1989).
This court thus concludes that the magistrate had sufficient
evidence to find probable cause to issue a search warrant that
authorized the search of any and all persons, including Betts,
within the residence at #50, Sprucewood.
ENDNOTES:
1. Indeed, Vanderweele testified that he had never previously
spoken with Biddinger.
