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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIE K. JACKSON, )
) Court of Appeals No. A-5885
Appellant, ) Trial Court No. 4FA-94-3526 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1490 - October 11, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
James L. Hanley, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Willie K. Jackson appeals his conviction for fourth-degree
misconduct involving a controlled substance (possession of cocaine),
AS 11.71.040(a). He contends that the cocaine found on his person
should have been suppressed because it was the fruit of an illegal
arrest. We affirm.
In 1993, Jackson was convicted of selling cocaine (third-
degree misconduct involving a controlled substance). He was
sentenced to 3 years' imprisonment with 18 months suspended (18
months to serve). The duration of Jackson's probation was 3 years
from the time of his release.
Jackson filed an appeal and was released on bail pending
appeal. However, on September 9, 1993 (while Jackson's appeal was
still pending), Acting Superior Court Judge Jane F. Kauvar revoked
Jackson's bail and ordered him incarcerated. Jackson was never
again able to secure bail release. With his appeal still unre-
solved, Jackson served his 18-month sentence of imprisonment and was
released from custody on August 1, 1994.
Five weeks later, on September 8, 1994, the district
attorney's office asked the court to issue a bench warrant for
Jackson's arrest. In the warrant application, Probation Officer
Mike Tanner asserted that Jackson had violated the terms of his
probation by failing to report to his probation officer (Tanner)
upon his release from incarceration. On October 5, 1994, Judge
Kauvar issued the requested bench warrant.
On October 17, 1994, the district attorney's office asked
the court to quash the bench warrant. The district attorney's
office told the court that the bench warrant had been issued in
error: Jackson's appeal was still pending, and thus (the district
attorney concluded) Jackson's probation was stayed by virtue of
Alaska Appellate Rule 206(a)(3). That is, the prosecutor told the
court that Jackson had not violated the conditions of his probation
because Jackson's period of probation had not yet begun.
On October 28, 1994, while the motion to quash was
pending, Fairbanks Police Sergeant John Baus received a tip that
drugs were being sold from a room in the Alaska Motel in downtown
Fairbanks. Baus and another officer went to the Alaska Motel to
investigate. The officers found four people in the motel room; one
of these people was Jackson. The officers asked each person for
identification, and they contacted their dispatcher to see if any
of the four people had outstanding warrants.
The court had not yet ruled on the district attorney's
motion to quash Jackson's bench warrant; thus, the warrant was still
in effect. When the police dispatcher reported that there was a
non-bailable bench warrant for Jackson, Sergeant Baus placed Jackson
under arrest. During the ensuing search of Jackson's person, the
police found cocaine in Jackson's pants pocket.
Following his indictment, Jackson asked the superior court
to suppress this cocaine. Jackson argued that his arrest was
illegal because the court should not have issued the bench warrant
in the first place. Jackson noted that his appeal was pending; he
argued that the pendency of his appeal meant that his probation was
stayed. Jackson contended that, because he was not yet obligated
to abide by the terms of his probation, he had not violated the
terms of his probation when he failed to report.
The State responded that Sergeant Baus had acted in good
faith by executing an outstanding bench warrant, as he was obliged
to do. The State conceded that the warrant should not have been
issued (since Jackson had not yet begun his probation), but the
State noted that the bench warrant was facially valid and that the
warrant application facially established probable cause for issuing
the bench warrant.
Superior Court Judge Ralph R. Beistline found that
Probation Officer Tanner had acted in good faith when he applied for
the bench warrant:
Tanner believed that Jackson was on probation
because [Jackson] had been released from
custody after having served his sentence.
Tanner did not realize that [Jackson's] appeal
was pending at the time he sought the warrant.
Judge Beistline then rejected Jackson's contention that the bench
warrant should not have been issued in the first place:
The warrant in question was issued by a
judge upon application by a probation officer.
... Based on the probation officer's asser-
tion[s] that Jackson was on probation and had
violated the conditions of probation, the judge
found probable cause to arrest Jackson. Al-
though that probable cause determination was
based on what is now known to be a faulty
premise, [this] court finds that the warrant
was valid and binding until quashed. See
United States v. Parsons, 585 F.2d 941 (8th
Cir. 1978), cert. denied, 439 U.S. 113[3], [99
S.Ct. 1057,] 59 L.Ed.2d 96 (1979); State v.
Malkin, 722 P.2d 943 (Alaska 1986) (negligent
misstatements in an affidavit for a search
warrant do not render the warrant invalid).
The warrant in question was voidable rather
than void. It was clearly valid on its face.
The search and seizure of the cocaine ... was
therefore justified as having been made pursu
ant to a valid arrest warrant.
(Footnotes omitted.) (EN1) On appeal, Jackson challenges the
superior court's ruling.
Did the superior court have concurrent jurisdiction over
Jackson while his appeal was pending?
Jackson first contends that, because his appeal was
pending, the superior court had no jurisdiction to take any action
at all with respect to the probation imposed in his 1993 criminal
case. This contention was not raised in the superior court.
Jackson relies on AS 22.07.020(a)(1), which states: "The
court of appeals has appellate jurisdiction in actions and
proceedings commenced in the superior court involving ... criminal
prosecution[.]" However, AS 22.07.020 simply grants this court
"appellate jurisdiction" over criminal cases. Neither this statute
nor any other provision of AS 22.07 addresses the question of
whether this court's appellate jurisdiction completely pre-empts the
superior court's authority to deal with non-appellate issues that
need to be addressed during the pendency of an appeal.
Alaska Appellate Rule 203 states that "[t]he supervision
and control of the proceedings on appeal [are] in the appellate
court from the time the notice of appeal is filed[.]" At the same
time, however, Rule 203 indicates that the trial court retains
ongoing jurisdiction to decide matters that arise in the underlying
litigation þ even matters affecting the appeal. The last sentence
of Rule 203 empowers the appellate court to "modify or vacate any
order made by the trial court in relation to the prosecution of the
appeal, including any order fixing or denying bail". This language
necessarily implies that the trial court retains the authority to
issue "order[s] ... in relation to the prosecution of the appeal".
Other provisions of the appellate rules clearly indicate
that the trial court retains jurisdiction to enter orders in the
underlying litigation, even orders that collaterally affect the
appeal. For instance, Appellate Rule 205 (which governs stays
pending appeal in civil cases) provides that "[a] motion for a stay
will normally not be considered by the supreme court unless
application has previously been made to the trial court and has been
denied, or has been granted on conditions other than those
requested." Likewise, Appellate Rule 206(b) (which governs release
pending appeal in criminal cases) declares that a defendant seeking
appellate review of his or her bail pending appeal must provide the
appellate court with the details of the defendant's prior "appli-
cation for release pending appeal ... made to the trial court", as
well as "the reasons given by the trial court for denying the
application". Appellate Rule 206(b)(2). See also Appellate Rule
208 (Custody of Prisoner in Habeas Corpus Proceedings); Appellate
Rule 520 (General Authority of Appellate Courts).
The precise issue raised in Jackson's appeal is whether,
pending appeal, a sentencing court has continuing jurisdiction to
order a probationer's arrest and to adjudicate alleged violations
of probation. This issue has not been decided in Alaska. However,
several appellate courts have held that a sentencing court retains
the authority to modify or to revoke a defendant's probation even
when the defendant's appeal is pending. United States v. Becker,
536 F.2d 471, 473 (1st Cir. 1976); United States v. Lindh, 148 F.2d
332, 333 (3rd Cir. 1944); State v. Dubish, 696 P.2d 969, 973 (Kan.
1985); Minovich v. State, 306 A.2d 642, 647 (Md. App. 1973), cert.
denied, 415 U.S. 930, 94 S.Ct. 1441, 39 L.Ed.2d 488 (1974). Jackson
cites no cases to the contrary.
We conclude that, even though Jackson's appeal of his
conviction was pending before this court, the superior court still
had jurisdiction to entertain and to adjudicate a petition to revoke
Jackson's probaton in his underlying criminal case.
Was Jackson's probation automatically stayed by Appellate
Rule 206(a)(3)?
Jackson next argues that, even if a sentencing court
retains jurisdiction to take action against a probationer while an
appeal is pending, the bench warrant issued for Jackson's arrest was
invalid. Jackson asserts that, at the time the superior court
issued the bench warrant, he was not yet on probation and therefore
he could not have violated the reporting requirements of his
probation.
The legal complexity of Jackson's case arises from Alaska
Appellate Rule 206(a). Rule 206(a) describes how execution of a
criminal judgement is affected by the defendant's filing of an
appeal. The rule is short and, at first blush, appears to be
completely straightforward. Under Appellate Rule 206(a)(1), "[a]
sentence of imprisonment shall be stayed if an appeal is taken and
[if] the defendant is released [on bail] pending appeal". And under
Appellate Rule 206(a)(3), "[a]n order placing the defendant on
probation shall be stayed if an appeal is taken". However, the
facts of Jackson's case demonstrate that even an apparently simple
rule can pose difficult questions.
As described above, Jackson was initially released on bail
pending appeal, but the superior court later revoked Jackson's bail
and remanded him to custody. Because Jackson was no longer on bail
release pending appeal, his prison sentence was no longer stayed.
He served his entire 18-month prison sentence while his appeal
remained undecided. The problem in Jackson's case is to determine
his status when, with his appeal still pending, he emerged from
prison after completing his sentence.
Jackson argues that, under Appellate Rule 206(a)(3), his
probation was automatically stayed because his appeal was still
pending. The State argues, however, that Rule 206(a)(3) does not
apply to Jackson.
The State's argument is premised on the fact that Alaska
Appellate Rule 206(a) derives from former Federal Criminal Rule 38
(as it existed prior to October 1, 1972). Like Alaska Appellate
Rule 206(a)(3), former Federal Criminal Rule 38(a)(4) stated, "An
order placing the defendant on probation shall be stayed if an
appeal is taken." However, an "order placing a defendant on
probation" had (and continues to have) a very specific meaning under
federal sentencing law.
When former Federal Criminal Rule 38(a)(4) was in force,
a federal court could sentence a criminal defendant either to
imprisonment or to probation, but not to both. Federal courts were
not authorized to impose a "split sentence" (a sentence calling for
imprisonment followed by probation) except under the limited
circumstances set forth in the second paragraph of former 18 U.S.C.
sec. 3651. (This statute empowered a court to impose up to 6
months' imprisonment at the beginning of an otherwise probationary
sentence.) Apart from this, the only way that a federal court could
achieve a sentence that was part imprisonment and part probation was
by imposing consecutive sentences on different counts (some
sentences calling for imprisonment, some calling for probation).
See United States v. Entrekin, 675 F.2d 759, 761-62 (5th Cir. 1982);
United States v. Graham, 579 F.Supp. 312, 313 n.2 (N.D. Ind. 1984).
(Alaska law was originally the same. Under sec. 5405 CLA
1933, a sentencing court wishing to place a defendant on probation
could either suspend the imposition of sentence or, alternatively,
impose a prison sentence and then suspend the execution of that
sentence. However, the court's power to suspend execution of a
prison sentence was limited to suspending the entire sentence. This
was changed in 1947, when the territorial legislature amended the
statute to authorize a sentencing judge to suspend the execution of
the sentence "or any part thereof". Ch. 35, sec. 1, SLA 1947. Two
years later, the amended statute was recodified as sec. 66-16-31
ACLA 1949. Following statehood, a slightly reworded version of this
statute became AS 12.55.080.)
Thus, when Federal Criminal Rule 38(a) spoke of "an order
placing the defendant on probation", this meant an order sentencing
the defendant to probation and not to imprisonment. (EN2) The State
asks us to give the same gloss to the language of Appellate Rule
206(a)(3), which was taken from Federal Criminal Rule 38(a).
Interpreted in this manner, Appellate Rule 206(a)(3) would not apply
to Jackson because he received a sentence of imprisonment, not just
a sentence of probation. Jackson's probation therefore would have
commenced when he left prison after serving his unsuspended 18-month
term, and Jacksonþs ensuing failure to report to his probation
officer would constitute a violation of his probation.
The State's interpretation of Rule 206(a)(3) is supported
by the history of the rule, and it is consistent with prior
decisions of this court. (EN3) Jackson argues, however, that even
though he was sentenced to a term of imprisonment in his 1993 case,
the judgement entered against him nevertheless constituted an "order
placing the defendant on probation". He points out that the 1993
judgement has two parts: the first part ordered Jackson "committed
to the care and custody of the ... Department of Corrections" during
the term of his imprisonment, while the second part declared that
Jackson, "after serving [his] term of incarceration[,] is placed on
probation for a period of 3 years". This second portion of the
judgement, Jackson argues, is an "order placing the defendant on
probation" for purposes of Appellate Rule 206(a)(3), and this
portion of the judgement was therefore stayed by virtue of his
still-pending appeal.
Jackson's interpretation of his judgement and of Appellate
Rule 206(a)(3) is problematic because it leads to results that are
unlikely to represent the intent of the Alaska Supreme Court (the
promulgators of the rule). Under Jackson's reading of the rule, he
was not bound by the conditions of probation when he emerged from
prison. Two scenarios would then be possible: either Jackson
continued to be governed by the conditions of bail pending appeal
previously established by the superior court, or Jackson was also
free of all bail conditions. If Jackson was free of any conditions
(bail or probation), then society was unprotected from a person who,
presumably, continued to pose a danger to society if left unsuper
vised. On the other hand, if the superior court's bail conditions
continued to apply to Jackson, then he should not have been released
from prison: Jackson was in prison to begin with only because he
could not meet the superior court's requirements for bail pending
appeal.
Moreover, Jackson's interpretation of Rule 206(a)(3) would
potentially put that rule in conflict with AS 33.20.040(c). Under
AS 33.20.040(a), when a prisoner serving a sentence of 2 years or
more accumulates sufficient good time credit, he or she is released
on mandatory parole. Under AS 33.20.040(c), if the prisoner's
sentence "includes a residual period of probation, the probationary
period shall run concurrently with [the] period of mandatory parole
... and the prisoner shall be under the concurrent jurisdiction of
the court and the parole board". In other words, the legislature
wished to have a defendant's period of probation supervision
commence on the day he or she leaves prison, rather than have
probation delayed until the defendant has completed mandatory
parole. (EN4)
But under Jackson's interpretation of Rule 206(a)(3),
defendants whose cases are still on appeal at the time of their
release from prison on mandatory parole would be penalized because
their probation would remain stayed. They would spend time under
parole supervision and then, whenever their appeal was decided, they
would commence their probation supervision. Thus, they would spend
more time under government supervision than a similarly situated
prisoner who did not appeal (or whose appeal was already decided).
(Jackson himself did not face this problem because he received a
sentence of only 18 months' imprisonment and thus the mandatory
parole statute did not apply to him.)
Because the State's interpretation of Appellate Rule
206(a)(3) is supported by the statutory derivation of the rule, and
because we believe that Jackson's interpretation of Rule 206(a)(3)
leads to results that are contrary to the intentions of the rule's
drafters, we adopt the State's interpretation of the rule. For
purposes of Appellate Rule 206(a)(3), an "order placing the
defendant on probation" is a suspended imposition of sentence or an
order that suspends a term of imprisonment in its entirety. Rule
206(a)(3) does not apply to a judgement that sentences a defendant
to serve any or all of a term of imprisonment. (EN5)
Given our interpretation of Appellate Rule 206(a)(3), we
hold that Jackson was on probation when he was released from prison,
and the superior court could therefore issue a bench warrant for his
arrest when he failed to report to his probation officer.
Alternatively, even if Jackson's probation was stayed
under Appellate Rule 206(a)(3), the superior court was
authorized to issue a warrant for Jackson's arrest if the
court believed (even mistakenly) that he had violated the
conditions of probation.
We additionally uphold the superior court's bench warrant
on the independent ground that the court was authorized to order
Jackson's arrest if the court had probable cause to believe (even
mistakenly) that Jackson had violated the conditions of his
probation.
Jackson argues that if his probation was stayed under
Appellate Rule 206(a)(3), then the superior court had no authority
to issue a bench warrant for his arrest. Jackson's argument is
premised on the second sentence of AS 33.05.070, the statute that
authorizes the superior court to issue a warrant for the arrest of
a probationer:
At any time within the probation period, or
within the maximum probation period permitted
by AS 12.55.080 and 12.55.090, the court for
the district in which the probationer is being
supervised or, if the probationer is no longer
under supervision, the court for the district
in which the probationer was last under super
vision may issue a warrant for the probationer-
's arrest for violation of probation occurring
during the probation period.
Jackson contends that this statute authorizes the superior court to
issue an arrest warrant only if the person to be arrested is on
probation. Jackson argues that, if he was not on probation (because
of his pending appeal), then AS 33.05.070 gave the superior court
no authority to issue a warrant for his arrest.
We reject Jackson's construction of AS 33.05.070 because
it is at odds with the language of the statute. The statute allows
the superior court to issue a warrant for a probationer's arrest,
not just "within the probation period", but "[a]t any time ...
within the maximum probation period permitted by AS 12.55.080 and
12.55.090". (At the time of Jackson's 1993 offense, this maximum
period was 5 years.) A second clause of AS 33.05.070 also clearly
states that the court's authority to issue a warrant is not tied to
the defendant's period of probation: the statute provides that "if
the probationer is no longer under supervision" þ that is, if the
defendant has completed his probation þ "the court for the district
in which the probationer was last under supervision" still may issue
an arrest warrant based on an earlier violation of probation.
As this court ruled in Galaktionoff v. State, 733 P.2d
628, 630 (Alaska App. 1987), AS 33.05.070 was intended to implement
the court's authority to retrospectively revoke a defendant's
probation at any time within the maximum period specified in AS 12.-
55.090 þ even after a defendant has completed probation supervision
þ if it is later discovered that the defendant committed a crime
while on probation. (As Galaktionoff points out, federal courts
construing the parallel federal provision, former 18 U.S.C. sec.
3653, uniformly reached the same result. See the cases cited in
Galaktionoff, 733 P.2d at 630.)
Galaktionoff addresses a sentencing court's power to
retrospectively revoke a defendant's probation after the period of
probation supervision has ended. Thus, one might argue that even
though AS 33.05.070 grants sentencing courts the power to issue an
arrest warrant "[a]t any time ... within the maximum probation
period permitted by ... [AS] 12.55.090", this power does not go into
effect until after the defendant commences probation. But under
Alaska law, a sentencing court is also empowered to prospectively
revoke a defendant's probation if the defendant commits a new crime
before the defendant begins probation supervision. Enriquez v.
State, 781 P.2d 578, 579-580 (Alaska App. 1989). Because the
legislature has empowered a sentencing court to prospectively revoke
a defendant's probation before probation supervision begins, it
would make little sense to construe AS 33.05.070 to prohibit the
sentencing court from issuing an arrest warrant to bring such a
defendant before the court. If AS 33.05.070 were construed to deny
the superior court this power, it would be inconsistent with AS
22.10.050, which grants the superior court "all power and authority
necessary to carry into complete execution all its judgments,
decrees, and determinations in all matters ... according to the
constitution, the laws of [this] state, and the common law".
We therefore hold that the superior court's authority to
issue a bench warrant for a probationer's arrest under AS 33.05.070
is not temporally bounded by the defendant's period of probation
supervision. The court has jurisdiction to issue a warrant for a
probationer's arrest from the time of sentencing (even before the
defendant has begun probation supervision) until the expiration of
the maximum probation period specified in AS 12.55.090 (even after
the defendant has completed probation supervision).
What, then, of the possibility that Jackson's probation
was stayed because of his pending appeal? We conclude that it is
irrelevant whether or not Jackson was on probation when the court
issued the bench warrant. Even if the warrant application
inaccurately stated that Jackson was on probation, this of itself
would not invalidate the warrant.
The Fourth Amendment to the United States Constitution
provides, "No warrants shall issue, but upon probable cause[.]"
Article I, Section 14 of the Alaska Constitution similarly declares,
"No warrant shall issue but upon probable cause[.]" This language
could conceivably be read to completely invalidate a warrant issued
on less than probable cause. However, neither the United States
Supreme Court nor the Alaska Supreme Court has interpreted these
constitutional provisions that way. A warrant does not become a
nullity when the assertions of probable cause in the warrant
application later turn out to be false. The warrant can be attacked
based on misstatements of fact in the warrant application, but if
those false assertions were the product of innocent or even
negligent mistake, the warrant remains valid. Franks v. Delaware,
438 U.S. 154, 155-56; 98 S.Ct. 2674, 2676; 57 L.Ed.2d 667, 672
(1978); State v. Malkin, 722 P.2d 943, 946 (Alaska 1986).
Given our construction of AS 33.05.070, and given Franks
and Malkin, Judge Beistline was correct when he ruled that the bench
warrant issued for Jackson's arrest was "voidable" but not "void".
Even assuming for purposes of argument that Jackson had not yet
commenced his probation and was not yet bound by the conditions of
his probation, this would undermine the probable cause statement in
the warrant application (probable cause to believe that Jackson had
violated the conditions of his probation), but it would not negate
the superior court's judicial authority to issue the warrant.
Jackson could attack the warrant under Malkin, but absent such an
attack the warrant was valid and enforceable.
In the trial court, Jackson and the State agreed that,
contrary to the assertions in the warrant application, Jackson had
not commenced his probation and thus had not violated his reporting
requirement. Jackson, however, did not argue that the warrant
should be invalidated under Malkin because the person who applied
for the warrant recklessly or intentionally misstated the facts.
Instead, Jackson argued that, under the objective facts, the
superior court had no authority to issue the warrant. In effect,
Jackson asserted that the affiant's state of mind was irrelevant:
no matter whether the probation officer acted in good faith or bad,
the fact remained that Jackson was not on probation, and thus the
superior court had no power to issue a warrant. Judge Beistline
rejected Jackson's argument, and we have just upheld his ruling.
On appeal, Jackson makes an alternative argument based on
Malkin. He asserts that even if the superior court had the
authority to issue the bench warrant for his arrest, nevertheless
both Probation Officer Tanner and the judge who issued the warrant
(Jackson's trial judge) must have knregard for the truth, Jackson
contends, the warrant must be invalidated.
This claim is forfeited. Generally, Fourth Amendment
claims can not be raised for the first time on appeal. Moreau v.
State, 588 P.2d 275, 279-280 (Alaska 1978). Moreau indicates that
"[s]ingularly egregious violations [of the Fourth Amendment] might
be [raised] for the first time on appeal". Id. at 280 n.13.
However, to avail himself of this exception, Jackson would have to
demonstrate that the existing record plainly reveals a singularly
egregious illegality. It does not.
The officers who performed the search of Jackson's person
at the motel were simply executing an arrest warrant that had been
issued by the superior court. As to the probation officer who
applied for the arrest warrant and the judge who issued it, even if
we assume for purposes of argument that Jackson's probation was
in fact stayed by operation of Appellate Rule 206(a)(3), it was
nevertheless at least reasonably debatable whether Appellate Rule
206(a)(3) automatically stayed a defendant's probation under the
circumstances of Jackson's case. It therefore follows that the
record does not plainly demonstrate that the probation officer or
the judge acted in bad faith or in reckless disregard of the truth
when they (respectively) applied for and issued the warrant.
Jackson attempts to avoid this procedural forfeiture by
arguing that a Malkin argument was implicit in his assertion that
the warrant application misstated his probationary status. However,
Malkin requires a defendant to do more than simply point out that
a warrant application contains material misstatements of fact.
Describing the foundational assertions that a defendant must make,
the Alaska Supreme Court quoted with approval the following passage
from Franks v. Delaware, 438 U.S. at 171, 98 S.Ct. at 2684, 57
L.Ed.2d at 682:
To mandate an evidentiary hearing, the challen-
ger's attack must be more than conclusory and
must be supported by more than a mere desire to
cross examine. There must be allegations of
deliberate falsehood or reckless disregard for
the truth, and those allegations must be
accompanied by an offer of proof.
Malkin, 722 P.2d at 946 n.5.
This passage is somewhat problematic. It might be read
to mean that a defendant raising a Malkin claim is required to
establish a prima facie case of intentional or reckless misstatement
before the court need hold a hearing on the matter. Such a reading
is arguably inconsistent with the supreme court's decision to place
the burden on the government to prove innocent or negligent mistake.
Malkin, 722 P.2d at 947-48. However, leaving aside questions
concerning the burden of proof, it is clear that the quoted passage
at a mininum establishes a burden of pleading: a defendant who
challenges a warrant under Malkin must at least allege that the
warrant application contains either intentional or reckless
misstatements of fact. (EN6)
In the trial court, Jackson never asserted that the
probation officer who applied for the bench warrant or the judge who
issued it acted recklessly or in bad faith. Thus, Jackson's Malkin
argument is not preserved.
We therefore uphold the bench warrant for Jackson's arrest
on the independent ground that, even if it later turned out that the
warrantþs factual premise was mistaken (i.e., even if Jackson was
not on probation because of his pending appeal), the superior court
still was authorized to issue the warrant and the warrant remained
enforceable because Jackson did not allege that the misstatements
in the warrant application were anything more than negligent.
Conclusion
Because the bench warrant commanding Jackson's arrest was
valid, the police acted lawfully when they arrested Jackson and,
searching his person incident to arrest, they discovered the
cocaine. The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. Judge Beistline additionally ruled that, even assuming the
arrest was illegal, the cocaine should not be suppressed because
the officers had acted in good faith. Given our disposition of
this case, we need not reach the issues of whether Alaska should
recognize a "good faith" exception to the exclusionary rule and, if
so, whether the facts of this case would qualify as "good faith"
for purposes of this exception.
2. Federal law now authorizes a federal district court to
sentence a defendant to imprisonment followed by probation, but not
the way it is done in Alaska (by suspending a portion of the
defendant's imprisonment). Rather, under 18 U.S.C. sec. 3583, a
sentencing court may add a term of probation on top of the
defendant's sentence of imprisonment. After serving the full
prison sentence, the defendant commences probation. If the
defendant fails to abide by the conditions of probation, the court
can revoke the probation and sentence the defendant to prison, but
this prison term is over and above the defendant's original
sentence, and it is based on the degree of the defendant's offense,
not on the amount of jail time that the defendant originally
received. See 18 U.S.C. sec. 3583(e).
3. This court has only once before been required to construe
Appellate Rule 206(a)(3). In Wickham v. State, 770 P.2d 757
(Alaska App. 1989), rev'd on other grounds, 796 P.2d 1354 (Alaska
1990), the defendant had been convicted of perjury and had received
a suspended imposition of sentence, conditioned on his successful
completion of 3 years' probation. Wickham appealed, but while the
appeal was pending he submitted to Department of Corrections
supervision as a probationer. At the end of the three years,
Wickham asked the sentencing court to set aside his conviction
because he had successfully completed probation. The State
opposed, arguing that, by virtue of Appellate Rule 206(a)(3),
Wickham's probation had been automatically stayed for 16 months
while Wickham's appeal was litigated. The State contended that,
because of the appeal, Wickham still faced several months' more
probation. The superior court was convinced by the State's
argument and refused to set aside Wickham's conviction. Wickham,
770 P.2d at 758.
In Wickham's ensuing appeal to this court, the State
reiterated its argument that, under Appellate Rule 206(a)(3),
Wickham's probation was automatically stayed during the pendency of
his (first) appeal. This court accepted the State's contention,
but we also ruled that it would be fundamentally unfair to deny
Wickham credit for the three years during which he submitted to
Department of Corrections supervision. Id. at 760.
The State's argument in Wickham þ that Wickham's probation was
automatically stayed under Appellate Rule 206(a)(3) þ is not
inconsistent with its argument in the present appeal. Wickham was
on probation because he received a suspended imposition of
sentence. Wickham's SIS would constitute an "order placing the
defendant on probation" under the federal law the State relies on.
The same is true of the one case cited by Jackson, People v.
Taylor, 876 P.2d 130 (Colo. App. 1994). The defendant in Taylor
was "sentenced . . . to probation". Id. at 131.
4. This was a conscious choice on the part of the legislature.
The version of AS 33.20.040 that was in effect until 1987 embodied
the opposite rule: a defendant's probation did not begin to run
until the completion of mandatory parole supervision. See Lipscomb
v. State, 869 P.2d 166, 167 (Alaska App. 1994).
5. When a defendant receives a "split" sentence (a term of
imprisonment followed by probation), Rule 206(a)(1) continues to
govern: if the defendant is released on bail pending appeal, the
defendant's sentence of imprisonment is stayed. Depending upon the
wording of the judgement, this may amount to an automatic stay of
the defendant's probation as well.
For example, the judgement entered in Jackson's case states
that Jackson is to commence his probation "after serving [his] term
of imprisonment". A defendant who is released on bail pending
appeal will not serve the "term of imprisonment" during the
pendency of the appeal. Under the wording of a judgement like the
one Jackson received, probation does not commence until after the
defendant serves the prison term. Thus, a stay of the prison term
necessarily delays the commencement of probation.
If the judgement is not worded this carefully, then the
sentencing court will have to determine on a case-by-case basis
whether to grant a stay of probation to a defendant who receives a
split sentence and who is released on bail pending appeal.
6. Compare Stephan v. State, 711 P.2d 1156, 1165 (Alaska 1985),
where the supreme court held that even though the police fail to
tape record a custodial interview, there is no reason to suppress
the contents of that interview "if no testimony is presented that
the statement is inaccurate or was obtained improperly, apart from
violation of the [taping requirement]".
