Notice: This opinion is subject to formal correction before
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LINDALEE COWLES, )
) Court of Appeals No. A-6381
Appellant, ) Trial Court No. 4FA-S95-2145CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1599 - July 31, 1998]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Colleen A. Kosluchar, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Lindalee Cowles was convicted, following a jury trial, of
theft in the second degree, a class C felony. AS 11.46.130(a).
Superior Court Judge Ralph R. Beistline sentenced Cowles to serve
eighteen months of incarceration with twelve months suspended.
Judge Beistline placed Cowles on probation for a period of five
years. Judge Beistline ordered Cowles to pay restitution of
$8,750.83. Cowles appeals her conviction and the order of
restitution to this court. We affirm the conviction, but vacate
the restitution order and remand for reconsideration of the amount
of the restitution.
From October 1993 until April 1995, Lindalee Cowles was
the department secretary and the manager of the box office of the
Theater Department at the Fairbanks campus of the University of
Alaska (UAF). Tickets to theatrical events were sold at this
office; patrons paid for the tickets by cash, by check or by credit
card. Money received from these ticket sales was periodically
deposited at the UAF Business Office.
In March 1995, the university's Business Office and Audit
Department became concerned because it appeared that the box office
was no longer bringing cash to the Business Office. On March 21,
1995, the university performed an audit of the department and found
that cash had stopped being deposited in November 1993,
approximately the same time Cowles had started making the theater
box office deposits. Cash deposits started up again after the
audit, but the auditor concluded that these had been "forced" by
the audit.
The audit showed that, although student workers primarily
sold the theater tickets, Cowles took responsibility for all of the
reconciliations and deposits; furthermore, these deposits were
turned in to the Business Office so late that there was "lots of
opportunity for manipulation." The auditor sent the results of his
audit to UAF counsel on March 30, 1995, concluding that Cowles was
likely the person responsible for the shortage of cash deposits.
Additionally, the university received a report in April
1995, from a student worker who was a box office employee, that
Cowles was taking money from the box office receipts for her
personal use. The student worker was also concerned because she
had seen cash coming in from theater shows which she knew was not
being deposited.
In April 1995, UAF officials requested that the UAF
Police Department start an investigation. Chief Florian directed
Officer Brown to conduct the investigation. On April 20, 1995,
Officer Brown installed a video camera in the ceiling over Cowles'
desk. On April 22, through the use of a master key, Officer Brown
entered Cowles' office and recorded the serial numbers of the money
in the safe. The camera was activated on April 24, 1995, and was
used to record Cowles' activities at her desk, on and off, for
about two and a half hours. Officer Brown testified that he
activated the camera at that time because it was a Monday morning,
after weekend shows, and he wanted to see if Cowles made a deposit.
During this time, Officer Brown was in the ceiling outside of
Cowles' office monitoring the recording. The camera recorded
Cowles removing a money bag from the safe, altering a cash deposit
receipt, taking cash from the money bag and placing it in her desk
drawer on three occasions, covering the cash in the drawer with
papers, moving the cash from the drawer to her purse and combining
it with her own money.
After viewing this activity, Officer Brown went to the
district attorney's office. On the afternoon of April 24, 1995, he
obtained search warrants authorizing him to search Cowles' purse
and her office. Officer Brown and Chief Florian returned to the
theater box office, told Cowles that they had search warrants for
her office and purse, and advised her to accompany an officer to
the UAF Police Department. Cowles became upset and asked if she
was under arrest; Chief Florian told her that she was not and that
he would explain it at the office, if she had any questions. The
search subsequently revealed that serial numbers on bills found in
Cowles' purse matched those on the bills that had been in the safe.
Cowles was transported to the police department by police
car, because she was on crutches and could not walk there.
According to Cowles' testimony, she was held there, under guard,
for 20-25 minutes before being interrogated. According to
Florian's and Brown's testimony, Cowles was never restrained in any
fashion, or precluded from leaving the building. During that time,
Cowles asked if she could make a phone call and was told she could;
she called her boss and told him why she was not in the office.
When Chief Florian returned to the station, she was invited back to
his office for questioning.
During questioning, Cowles was emotional and upset and
told Florian that she was not aware of any money being missing.
Cowles asked whether she needed an attorney, and Florian responded
that he could not advise her on that matter. During this time,
Cowles informed Florian that she had $50.00 of theater department
cash in her purse that she was using to make change. About 20-25
minutes later, Officer Brown arrived back at the station and the
two questioned Cowles for approximately another 30-45 minutes.
After being confronted with the evidence from the videotape, Cowles
admitted taking some of the money that was allegedly missing,
saying she was having problems paying bills. She admitted taking
$240.00 from the theater department proceeds and depositing it into
her parents' bank account. She also admitted she had taken money
from the theater department deposits before, but had paid it back.
She estimated she might have taken a total of $1,000.00 during her
employment there. Cowles testified that at the end of her
interrogation she was escorted back to her office. She was allowed
to collect her personal belongings and leave.
At trial Cowles asserted that her statements to the
police were coerced and that she made the statements in an attempt
to keep her job. She argued that the university records did not
establish that any money was missing. She contended that, to the
extent she had taken any money, she had borrowed it intending to
pay it back, and therefore had not committed theft. At the
conclusion of the trial the jury convicted Cowles on the theft
charge.
Cowles first contends that Judge Beistline erred in
denying her motion to suppress, which was based upon her claim that
the warrantless video tape surveillance of her at her work was an
illegal search. Cowles relies on Article I sec. 14 and Article I
sec. 22
of the Alaska Constitution. The Alaska Supreme Court has adopted
a two-prong test for construing the scope of Article I sec. 14 and
Article I sec. 22 of the Alaska Constitution. [Fn. 1] We set out
this
test in State v. Page, 911 P.2d 513, 515-16 (Alaska App. 1996):
Under these sections of the state
constitution, a person is protected from unreasonable government
intrusion whenever (1) the person manifests a subjective
expectation of privacy in the property or activity being subjected
to government scrutiny, and (2) this expectation of privacy is one
that society recognizes as reasonable.
The first prong of this test (a person's
subjective expectation of privacy) presents a question of fact.
However, the second prong (the reasonableness of any expectation of
privacy) presents a legal question. The answer to this second
prong of the test rests on constitutional intent and, ultimately,
on a judgement concerning the proper balance to be struck between
the rights of the individual and the authority society exercises
over individuals through the agency of government.
(Citations omitted.)
In Page, the defendant was videotaped by police shortly
before and during the delivery of cocaine to an undercover officer.
Page moved to suppress the videotaped evidence under State v.
Glass, 583 P.2d 872 (Alaska 1978). In Glass, the Alaska Supreme
Court held that the police could not surreptitiously record
conversations without first obtaining a warrant. Page contended
that the reasoning of Glass prohibited video taping his actions
without first obtaining a warrant. The state conceded that Page's
conversations were protected from warrantless electronic monitoring
by Glass. Page, 911 P.2d at 515. However, the state argued that
the visual record on the video tapes was admissible. Id. at 516.
We concluded that Page did not have a reasonable expectation of
privacy with respect to the observation of his conduct in public
places. However, we concluded that Page did have a reasonable
expectation of privacy as to his conduct within a private
apartment. We stated:
Page was engaged in a conversation which,
the State concedes, was protected from warrantless monitoring under
Glass. This conversation took place in a private apartment, a
location where Page could reasonably expect that his activities
would not be observed by anyone except those onlookers whose
presence he was aware of. We hold that, in these circumstances,
the Alaska Constitution as interpreted by the supreme court in
Glass requires the police to secure a warrant before engaging in
surreptitious videotaping of conversation. It makes no difference
that the police turn down the audio recording level on their
equipment.
Id. at 517.
Judge Beistline found that "Ms. Cowles harbored a
subjective belief that her actions in the box office the morning of
May 29, 1995, would be private and thus not subject to electronic
monitoring." The state does not contest this finding. Therefore,
this case turns on whether Cowles' "expectation of privacy is one
that society recognizes as reasonable." Id. at 515. Applying the
Page analysis to this case, we must determine whether Cowles' work
place in the theater box office was a location where Cowles could
reasonably expect privacy in her activities.
The theater box office is located inside of the Great
Hall, a common area that connects the theater with various other
departments in the UAF Fine Arts Complex. The box office is small,
measuring approximately 12 by 18-20 feet, with a large window in
the front, from which the office sold tickets to the public, and a
door on the side, which was usually kept open. [Fn. 2] The window
was a "roll-up" window that opened and closed. Aside from Cowles'
desk, the office was equipped with a student desk, computers, a
safe, and file cabinets. Officer Brown testified that, from the
window, the public could view Cowles' desk, portions of the top of
her desk, her computer, and Cowles sitting behind her desk.
Because the office had cement walls, Officer Brown set up
the video equipment through the vent system, in the office's
ceiling. Officer Brown also testified that any member of the
public could see everything in the camera's range if they walked
around from the box office door to the window. In finding that
Cowles could not reasonably expect that her activities would be
private, Judge Beistline made the following findings:
Ms. Cowles' activities on the day in
question could have been readily observed in great detail by any
member of the public who happened to visit the office or ticket
window. This fact weighs heavily against a finding that society
would be prepared to recognize her privacy expectation as
reasonable. Another factor which suggests that any subjective
expectation of privacy by Ms. Cowles is objectively unreasonable is
the presence of numerous co-workers and visitors during the
surveillance in question. In this regard the Court notes that in
viewing the videotape, it is clear that Ms. Cowles' desk appears to
have been quite busy. The tape reveals an almost continuous flow
of traffic about her desk. Ms. Cowles is seen conversing with
various people at different locations in relation to her desk. At
one point someone brings her a sandwich, at another point a hand
appears and Ms. Cowles can be clearly seen thrusting a large wad of
cash into its outstretched palm. Another instance which the Court
found particularly telling was a point in the tape when Cowles
retrieves the cash from her desk and begins counting and sorting
the bills. During the period when she is obviously handling a
large amount of cash (at least some of which originated from the
locked bank bag containing the receipts of the weekend
performances), a person appears to her left and starts a lengthy
conversation. The fact that person could appear and observe Ms.
Cowles' desk precisely at the time when presumably her privacy
interest is most heightened serves to seriously undermine the
privacy right now asserted by Ms. Cowles. Even if that person were
a co-worker, Ms. Cowles' privacy assertion was seriously undermined
by the fact that she's sorting the University's money taken from
her desk, right under the nose of another person. Under these
circumstances the Court cannot find that the second prong of the
test is met.
Although we are to uphold Judge Beistline's factual findings unless
they are clearly erroneous, we must determine de novo, based upon
the facts which he found, whether to uphold his finding that
Cowles' expectation of privacy was not one that society would
recognize as reasonable. See Page, 911 P.2d at 515. We conclude
that Judge Beistline did not err in making this determination.
In United States v. Cuevas-Sanchez, 821 F.2d 248, 251
(5th Cir. 1987), the court stated that video "surveillance provokes
an immediate negative visceral reaction: indiscriminate video
surveillance raises the spectre of the Orwellian state." In United
States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984), the court
stated: "television surveillance is exceedingly intrusive . . . and
inherently indiscriminate, and . . . could be grossly abused to
eliminate personal privacy as understood in modern Western
nations." See also State v. Bonnell, 856 P.2d 1265, 1277 (Haw.
1993); State v. Thomas, 642 N.E.2d 240, 245 (Ind. App. 1994).
But, several factors lead us to the conclusion that
Cowles' constitutional rights were not infringed in this case.
Cowles was videotaped in a place where, accordingly to Judge
Beistline's findings, her activities "could have been readily
observed in great detail by any member of the public who happened
to visit the office or ticket window." In addition, her activities
were open to view by fellow employees. Judge Beistline observed
that there was "an almost continuous flow of traffic about her
desk." We therefore believe that the open and public nature of the
place where Cowles worked argues against finding that she had a
reasonable expectation of privacy. See G.R. v. State, 638 P.2d
191, 197 (Alaska App. 1981).
A second basis for finding that the videotaping was
reasonable is that Cowles worked in a fiduciary capacity in an
office where members of the public exchanged money for tickets.
Money belonging to the university was regularly handled in the
office, and was stored in a safe to which Cowles had access. Video
surveillance is commonly conducted in stores and commercial offices
where money is exchanged, such as areas in banks where tellers
work. Thus, the nature of the work performed in Cowles' office
argues against finding that she had a reasonable expectation of
privacy.
Based upon the open and public nature of the place where
Cowles worked, and the fiduciary nature of the work she was doing,
we conclude that Cowles did not have a reasonable expectation of
privacy from video surveillance in the box office. We accordingly
conclude that the police actions did not violate Article I sec. 14
of
the Alaska Constitution. [Fn. 3]
Cowles next contends that Judge Beistline erred in
failing to suppress the statements which she made to the police
when she was questioned at the UAF Police Department. Cowles
points out that the police never gave her Miranda warnings and
contends that because she was subject to custodial interrogation
the trial court should have suppressed her statements.
In Miranda v. Arizona, 384 U.S. 436 (1966), the United
States Supreme Court established safeguards to protect against the
danger of coercion inherent in custodial surroundings. "In order
for a person's Miranda rights to be triggered, the statements must
be the product of both custody and interrogation." Beagel v.
State, 813 P.2d 699, 705 (Alaska App. 1991).
In Hunter v. State, 590 P.2d 888 (Alaska 1979), the
Alaska Supreme Court adopted an objective test for determining when
a person is in custody for purposes of Miranda: if a reasonable
person in the suspect's position would not have felt free to leave
and break off police questioning, then the defendant was in
custody. Id. at 895; see also Edwards v. State, 842 P.2d 1281,
1284-85 (Alaska App. 1992) (finding defendant's Miranda rights
violated when police conditioned his freedom to leave the police
station on his willingness to answer questions). The Hunter
decision provides general guidelines for making the custody
determination:
At least three groups of facts would be
relevant to this determination. The first are those facts
intrinsic to the interrogation: when and where it occurred, how
long it lasted, how many police were present, what the officers and
the defendant said and did, the presence of actual physical
restraint on the defendant or things equivalent to actual restraint
such as drawn weapons or a guard stationed at the door, and whether
the defendant was being questioned as a suspect or as a witness.
Facts pertaining to events before the interrogation are also
relevant, especially how the defendant got to the place of
questioning -- whether he came completely on his own, in response
to a police request, or escorted by police officers. Finally, what
happened after the interrogation -- whether the defendant left
freely, was detained or arrested -- may assist the court in
determining whether the defendant, as a reasonable person, would
have felt free to break off the questioning.
Id. at 895 (footnotes omitted).
The trial court concluded that Cowles was not in custody
during her interview:
Here the interrogation took place at the
University police station over the course of approximately two
hours with one and then two officers present. The officers
indicated that Ms. Cowles was caught on [video] tape and wanted to
hear her side of the story. There is no doubt she was being
interviewed as a suspect, and there is no doubt she left on her own
free will and was not arrested. Cowles was escorted to the police
station in a police car; however, this fact has little weight when
one understands that Ms. Cowles was injured at the time and
required the assistance of a crutch or cane to move around. When
Ms. Cowles determined to terminate the interview and leave, she
accepted a ride to her car in a police vehicle. . . . [T]he fact
that Cowles was interviewed at the police station appears to have
been motivated by convenience to both parties rather than being an
attempt to further a custodial purpose. . . . Reviewing the tape in
this case convinces the Court that . . . a reasonable person in
Lindalee Cowles' position would have felt free to leave or cut off
police questioning.
Our review of the record convinces us that Judge
Beistline did not err in determining that a reasonable person in
Cowles' position "would have felt free to break off the
questioning." See Hunter, 590 P.2d at 895. Judge Beistline found
that the officers took Cowles to the police station for the
convenience of both Cowles and the police. At the beginning of the
interview, the police assured Cowles that she was not under arrest.
Our review of the tape leads us to the same conclusion which Judge
Beistline reached: Cowles was not in police custody. As Judge
Beistline pointed out, at the end of the questioning, Cowles told
the police that she needed to go. It appears that she fully
expected to go home as soon as she asked and the police quickly
terminated the interview in response to her request. We conclude
that Judge Beistline did not err in denying Cowles' motion to
suppress her statements. [Fn. 4]
Cowles contends that Judge Beistline erred in limiting
testimony of two defense witnesses. Cowles intended to present
testimony from Linda Aronow-Brown regarding the change-making
practices of both the Theater Department box office and the
Fairbanks Light Opera Theater. In an offer of proof, Aronow-Brown
testified that she had worked as a secretary assisting the box
office manager of the UAF Speech and Drama Department and that she
had worked as a box office manager for the Fairbanks Light Opera
Theater. According to Aronow-Brown, in both theater box offices,
the box office manager would make change by taking big bills out of
the till and putting them in a pocket or purse until change could
be gotten from the UAF Business Office or a bank.
The state objected to Aronow-Brown's testimony on
relevancy grounds, but the trial court ruled that Cowles could
present the testimony. However, after Aronow-Brown testified
regarding the change-making practices of the UAF Theater Department
and as she began testifying about the change-making practices of
the Fairbanks Light Opera Theater, the state reasserted its
objection, and the trial court cut off further questioning on the
practices.
Cowles points out that since she was videotaped putting
box office cash in her purse, testimony that would provide a reason
for the cash to be there would be relevant. However, Aronow-Brown
was allowed to testify to the change-making procedure at the UAF
Theater Department. We conclude Judge Beistline did not abuse his
discretion in refusing to allow Cowles to have Aronow-Brown testify
about the change-making procedures at the Fairbanks Light Opera
Theater. Judge Beistline could properly determine that this
testimony would have little or no relevance. See Alaska Evidence
Rules 402, 403.
Cowles argues that Judge Beistline erred in refusing to
allow her to present testimony from Marie Scholle, who had worked
in UAF's Risk Management Department and had been a campus police
officer, about various break-ins that had occurred in the offices
in the Great Hall, where the Theater Department box office was
located, during the time that cash was reportedly missing from the
Theater Department box office. [Fn. 5] After hearing Scholle's
proposed testimony, Judge Beistline concluded that there was no
connection between the thefts about which Scholle would testify and
the embezzlement that occurred in the Theater Department box
office. We conclude that Judge Beistline did not err in making
this decision. See Smithart v. State, 946 P.2d 1264, 1275-79
(Alaska App. 1997) (holding evidence of potential guilt by third
party must be directly related to crime charged against defendant).
Cowles contends that Judge Beistline erred in calculating
the amount of restitution which he ordered her to pay to the
University of Alaska. In Noffsinger v. State, 850 P.2d 647, 650
(Alaska App. 1993), we discussed the standard of review for an
award of restitution:
An award of restitution must be supported by
substantial evidence. If uncertainty exists, the appropriate
amount for restitution must be proved by a preponderance of the
evidence. When the accused, on appeal, challenges the sufficiency
of the evidence as to restitution, this court does not pass
on issues of credibility, which remain within the sole province of
the sentencing court. Instead, as in other situations involving
claims of insufficient evidence, we construe the record in the
light most favorable to the state and determine whether
a reasonable fact-finder could conclude that the disputed amount
of restitution was established by a preponderance of the evidence.
(Citations omitted).
At Cowles' sentencing hearing, the court considered the
testimony of Ben Shilling, the university's acting director of
internal audits. Cowles presented the testimony of Rockne Wilson,
a certified public accountant. Shilling's testimony summarized a
report he had prepared that analyzed the theater box office's
revenues before, during, and after Cowles' tenure and that computed
the total deposits for the fiscal years 1993, 1994, 1995, and 1996,
and then broke those total deposits down into the portions
comprised of cash, checks, and credit card charges. Shilling also
calculated the totals based on the period when Cowles was serving
as the sole box office manager and the period outside of her tenure
as sole box office manager. Shilling calculated that during the
1993-1996 time frame when Cowles was not the box office manager,
approximately 25% of the total deposits made by the box office were
in the form of cash; however, when Cowles was the manager, during
1993-1995, only 7% of the total deposits were in the form of cash.
Based on Shilling's calculations, the state requested restitution
in the amount of $12,000.
Shilling's analysis was based upon the assumption that
Cowles had tampered with the records of ticket sales on the box
office computer system and/or had substituted checks written to the
UAF Theater Department, for something other than tickets, for cash.
He concluded that a simple balancing of ticket sales against cash
receipts would not accurately reflect the cash shortage.
Rockne Wilson, the accountant who testified on Cowles'
behalf, testified that Shilling's report was based on the unproven
assumption that the ticket sales information in the computer had
been manipulated; and, since he did not agree with that assumption,
he concluded that the audit reports failed to show that any cash
was missing from the UAF Theater Department box office.
Judge Beistline accepted Shilling's basic calculations,
but he reduced the expected percentage of cash deposits from 25% to
20%, thus figuring that 20% of the total deposits during Cowles'
tenure as the sole box office manager should have been cash. Judge
Beistline's calculations can be set out as follows:
Fiscal Year Fiscal Year Total
94 95
Total deposits $35,499.99 $32,279.28
Expected cash
(20% of total) 7,099.99 6,455.85
Actual cash deposited 2,635.50 2,169.50
Estimate of missing cash $ 4,464.49 $ 4,286.35 $ 8,750.84
From our review of the record, we conclude that Judge
Beistline could properly rely on Shilling's estimates to determine
the proper amount of restitution. In Noffsinger, 850 P.2d at
649-50, we upheld a restitution award which was based upon a
similar well-grounded expert estimate.
In her brief, Cowles points out that the indictment in
her case charged her with committing theft from September 1, 1994,
through April 23, 1995. This time period corresponds with fiscal
year 1995 in Shilling's calculations and in the court's findings.
Cowles argues that there was no basis to require her to pay
restitution for fiscal year 1994, a time period which was not
covered by the dates specified in the indictment. The state has
not replied to Cowles' contention. Judge Beistline did not address
this issue in his findings and we have no basis to resolve this
issue on appeal at this time. We accordingly remand this issue to
the trial court for reconsideration.
Cowles next contends that Judge Beistline erred in
denying her motion for a new trial. Following sentencing, Cowles
alleged that evidence presented by the state at the sentencing
hearing was newly discovered evidence which warranted a new trial.
In order to show she was entitled to a new trial based on newly
discovered evidence, Cowles needed to establish that: (1) the
evidence relied upon was actually discovered after the trial; (2)
she was diligent; (3) the evidence relied on was not merely
cumulative or impeaching; (4) the evidence relied on was material;
and (5) the evidence relied on would probably result in an
acquittal at a new trial. See State v. McDonald, 872 P.2d 627,
656 (Alaska App. 1994).
Cowles' motion was based on the testimony of Ben
Shilling, the university's acting director of internal audits, who
testified about the audit which he performed for UAF to estimate
the amount of money Cowles had stolen. Cowles pointed to the fact
that Shilling's data at sentencing showed that the amount of
reported ticket sales was only $799 more than the amount which was
deposited for ticket sales, while at trial, Shilling had testified
that accounting documents showed $5,000 missing. However, as
Shilling stated at the sentencing hearing, the state's calculations
and conclusions, regarding the amount of money missing, did not
rest simply on the comparison between ticket sales and deposits,
but on the assumption that Cowles had manipulated the underlying
records and on an analysis of the percentage of the total box
office deposits that should have been cash. As the state points
out, even if the $799 figure accurately reflected the amount of
money which Cowles stole, Cowles would still be guilty of theft
in the second degree, which covers thefts of property valued at
$500 or more. See AS 11.46.130(a). We therefore conclude that
Judge Beistline did not abuse his discretion in determining that
the evidence which Cowles offered was not so exculpatory that it
would probably result in an acquittal at a new trial.
The conviction is AFFIRMED. The case is REMANDED for
reconsideration of the amount of restitution. And, having decided
the issues in this appeal that are within our jurisdiction, we now
REFER the sentencing portion of Cowles' case that is outside our
jurisdiction to the supreme court under Alaska Appellate Rule
215(k).
FOOTNOTES
Footnote 1:
Article I, Sections 14 and 22 provide as follows:
SECTION 14. Searches and Seizures. The right
of the people to be secure in their persons, houses and other
property, papers, and effects, against unreasonable searches and
seizures, shall not be violated. No warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
SECTION 22. Right of Privacy. The right of
the people to privacy is recognized and shall
not be infringed. The legislature shall implement this section.
Footnote 2:
The door was equipped with a built-in combination lock,
changed once or twice per semester; however, Officer Brown
testified that the door was kept open for ventilation purposes.
Footnote 3:
In Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993), we
recognized that "the right to privacy granted by Article I sec. 22
does not create a separate independent right to seek exclusion of
evidence."
Footnote 4:
Cowles argues that Judge Beistline erred in failing to
dismiss the indictment and in failing to suppress evidence which
resulted from the video tape surveillance and her statements. We
affirm these rulings based upon our conclusion that Judge Beistline
did not err in refusing to grant Cowles' motion to suppress the
video tape evidence and her motion to suppress her statements.
Footnote 5:
We note Aronow-Brown was previously allowed to testify that
thefts had occurred in the UAF Communications Department office,
located adjacent to the Theater Department box office, during this
same time. Therefore, some of the evidence Cowles was seeking to
present to the jury through Scholle's testimony had already been
presented through the testimony of Aronow-Brown.
