NOTICE: Formal errors in the text of this opinion can
be corrected before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the attention of
the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LAREENE BURRECE, )
) Court of Appeals No. A-6688
Appellant, ) Trial Court No. 3PA-S96-52CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1618 - February 5, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Beverly W. Cutler, Judge.
Appearances: Eugene B. Cyrus, Eagle River, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
COATS, Chief Judge, concurring.
MANNHEIMER, Judge, dissenting.
Lareene Burrece pleaded no contest to one count of fourth-
degree misconduct involving a controlled substance. [Fn. 1] She
preserved her right to appeal the order denying her unsuccessful
attack on the search warrant for her property in Big Lake. [Fn. 2]
Burrece claims that the tip supporting the warrant was stale, that
evidence of electric consumption could not corroborate that tip, and
that the district court's reliance on a trooper's telephonic
testimony that supplemented his affidavit was impermissible. We
conclude that all of those claims fail and affirm her conviction.
Facts and proceedings
According to the affidavit filed in support of the search
warrant application for Burrece's property, Alaska State Trooper
Timothy L. Bleicher interviewed Troy Heaven on August 4, 1995,
regarding his possession of marijuana. In that interview, Heaven
told Bleicher that he stole the marijuana when he and two juveniles
burglarized the Big Lake Laundry Mat. Heaven also told Bleicher
that he knew of another place where marijuana was grown. That place
was located on Tract D, Echo Hills Subdivision, located at about .5
mile Echo Lake Drive. Heaven knew of the place because a friend of
his had lived there.
In the interview, Heaven told Bleicher that his friend had
been asked to leave by the owner of the property. Heaven said he
drove out to the property about four months before the interview and
found his friend removing a large bag of marijuana from a white
trailer located on the property. Heaven reported that his friend
told him that there were about twelve marijuana plants inside the
trailer.
Bleicher went to the property and observed several
structures including a white trailer with "boarded up and covered"
windows. Bleicher learned that Mike and Lareene Burrece were the
owners of the property that Heaven identified.
Bleicher asked John Bogue, the Matanuska Electric
Association's Energy Service Manager, about the electricity
consumption for that property. He was told by Bogue that there
were two accounts on the property, both in the names of Mike and
Lareene Burrece. Bogue told him that the electrical consumption was
suspicious and consistent with a marijuana grow because the pattern
of consumption was inconsistent with the normal increase in the
winter months and the normal decrease in the summer months. Bogue
did not provide any data on the kilowatts used on the property but
did indicate that the unusual pattern had continued after Heaven's
visit to the property.
On August 9, 1995, Bleicher executed an affidavit that
included the information obtained from Heaven and from his
investigation. He filed that affidavit in support of a request for
a search warrant for Burrece's property. On August 10, 1995,
District Court Judge Peter G. Ashman called from the Palmer court
to the Trooper's office in Wasilla and asked Trooper Bleicher some
questions about the investigation and his affidavit. Judge Ashman
stated in part:
Trooper Bleicher is present at my request, by
telephone today, I received a long affidavit for a search warrant
in 3PA-95106SW and I . . . I'm basically prepared to grant the
search warrant but I need to clarify a few points in the affidavit.
[ ] I'm really basing my decision there's probable cause to search
on matters contained in the affidavit, um and since that's been
presented to me and sworn to, I believe that taking this additional
telephonic testimony is [ ] I think there's ground to go forward
in this fashion.
Judge Ashman asked Bleicher several questions and then announced,
"I'm going to find that this is really not a proceeding on
telephonic testimony but rather a telephonic . . . an opportunity
for the court to announce the basis of its decision and for the
officer to take advisement telephonically." Judge Ashman granted
the search warrant.
On August 14, 1995, the troopers served the search warrant
and found eleven marijuana plants (two of them dead), "starter"
marijuana plants, and over a pound of marijuana.
Burrece was indicted on three counts of fourth-degree
misconduct involving a controlled substance. She moved to suppress
the evidence that was seized pursuant to the warrant. Following a
hearing, Superior Court Judge Beverly M. Cutler denied Burrece's
motion. Burrece entered a no contest plea to one of the counts,
preserving the issues that she argues on appeal.
Discussion
First, Burrece argues that Heaven's tip was stale because
it was four months old when given to Bleicher. Because the tip was
four months old, she argues that there was no reasonable ground to
believe there was evidence on the property when Bleicher applied for
the warrant.
Before a search warrant can be issued, the issuing judge
or magistrate must be satisfied that current information supports
a finding that probable cause to search presently exists. [Fn. 3]
Whether the information presented to the court is fresh or stale is
determined by a flexible test. That test considers the totality of
the circumstances. One of those circumstances is the span of time
that has passed from the acquisition of that information by the
informer or the police officer and the presentation of that
information to the court. [Fn. 4] Other relevant circumstances
include the type of crime involved and the character of the items
sought. [Fn. 5]
Probable cause to search requires sufficient information
to permit the conclusion that the criminal activity, the contraband,
or the evidence of the crime will be found at the place to be
searched. [Fn. 6] That conclusion does not have to reach an
absolute certainty, but the State must provide "reasonable grounds"
to justify the conclusion that the items searched for are at the
premises to be searched. [Fn. 7]
Bleicher's affidavit described the large amount of
equipment commonly found in an operating grow, including high
intensity lights, ballasts, tracks, timers, heaters, fans, pumps,
and other equipment. Bleicher also noted that the electrical power
for such an operation commonly is provided by the local utility and
that windows in structures containing a grow are commonly covered
to enhance the artificial-light cultivation. His affidavit also
noted that the pattern of power consumption had not changed since
Heaven had been at the property and that the trailer described by
Heaven had boarded-up windows. All of this indicates that the site
of marijuana cultivation is not likely to move in the four-month
period between Heaven's visit to Burrece's property and the
application for the search warrant.
Considering the totality of the circumstances in this
case, we conclude that Judge Ashman could properly find that the
information before him provided reasonable grounds to believe that
evidence of a marijuana grow would be found when he issued the
warrant. Judge Ashman could reasonably rely on the large amount of
equipment that can be required for the cultivation of marijuana,
the ongoing character of plant cultivation, coupled with the
specific information in Bleicher's affidavit about Burrece's
property to conclude that there would be evidence of a marijuana
grow on Burrece's property. The specific information included the
report of the unchanging pattern of electrical consumption (which
provided an additional basis to infer that the cultivation was
ongoing and to conclude that Heaven's tip was not stale) and
Heaven's report to Bleicher about the marijuana. Thus, we reject
Burrece's contention that the warrant was invalid because Heaven's
tip was stale.
Burrece argues that Judge Ashman could not rely on the
evidence of electrical consumption when granting this warrant. But
as we noted above, the evidence of the pattern of electrical usage
that was provided in the warrant permitted an inference that there
was no significant change in the activity on the property since
Heaven visited. We conclude that the district court could rely on
the description of Burrece's pattern of electrical consumption to
infer that Heaven's tip described an ongoing operation.
Finally, Burrece relies on AS 12.35.015(a) [Fn. 8] to
attack the district court's use of Trooper Bleicher's telephonic
testimony in support of the warrant. Burrece argues that the
exclusionary rule should be applied to suppress any evidence
obtained pursuant to the warrant because Judge Ashman did not follow
the procedure established in that statute. For purposes of
resolving this issue, we assume that the statute applies to this
case.
While Judge Ashman did not make the findings required by
AS 12.35.015(a), Burrece has neither shown nor argued any bad faith
on the part of the court or the trooper. [Fn. 9] Burrece argues
that a violation of the statute by Judge Ashman is sufficient to
suppress the evidence obtained pursuant to the warrant. But she
does not argue that any of Bleicher's testimony was a critical or
indispensable component of Judge Ashman's probable cause finding.
In several decisions, our appellate courts have faced the
question whether the government's violation of a statute should
result in the suppression of evidence. [Fn. 10] An analysis of
those decisions shows that the exclusionary rule embodied in Alaska
Rule of Evidence 412 has not been applied when the statute that has
been violated is wholly unrelated to a defendant's constitutional
rights. [Fn. 11] Furthermore, in Sundberg, a factor in the supreme
court's analysis was the absence of a legislative directive to apply
the exclusionary rule to the violation of the statute at issue.
"[W]e note that there is no legislative directive calling for
invocation of an exclusionary rule as a sanction . . .." [Fn. 12]
In the statute in question here, the legislature issued a directive
that the exclusionary rule should not apply in the absence of bad
faith. And the statute here does not implement or enforce a
defendant's constitutional right, but regulates the process of
search warrant applications.
Burrece has not claimed that the purported violation of
the statute was in bad faith. Furthermore, she has not claimed that
absent Bleicher's testimony, the warrant would be invalid. We
conclude that the exclusionary rule should not apply.
Conclusion
The judgment of the superior court is AFFIRMED.
COATS, Chief Judge, Concurring.
I write separately because I am concerned that the court's
decision might be read as more critical of Judge Ashman's actions
than it should be. In my view, it is highly questionable whether
Judge Ashman acted in violation of AS 12.35.015(a) when he took
supplemental telephonic testimony from Trooper Bleicher. As Judge
Mannheimer concedes, there was nothing improper in Judge Ashman's
action in having Trooper Bleicher provide supplemental information
to strengthen the state's showing of established probable cause.
[Fn. 1] This appears to me to be the action of a conscientious
magistrate reviewing a search warrant.
Since the information which Trooper Bleicher provided was
not the original application for the search warrant but was
supplemental, in my view there is a serious question whether AS
12.35.015 required Judge Ashman to find, in order to proceed
telephonically, that "the delay might result in loss or destruction
of the evidence subject to seizure." [Fn. 2] Judge Stewart does not
resolve this issue in his opinion. He concludes that even if there
was a violation of the statute, Burrece has not made any claim which
would warrant application of the exclusionary rule.
I agree with Judge Stewart's opinion. However, I would
state the conclusion somewhat more strongly. I think it is an open
question whether Judge Ashman violated AS 12.35.015(a) in taking the
supplemental testimony. I believe Judge Ashman's conclusion that
the statute did not prevent telephonic supplementation was
reasonable. Under these circumstances, I conclude that it would be
inappropriate to find that Judge Ashman acted in bad faith. I
further conclude that it would not be appropriate to apply the
exclusionary rule to this case.
MANNHEIMER, Judge, dissenting.
I agree with the majority's resolution of all issues
except the last: Judge Ashman's decision to take telephonic
testimony from Trooper Bleicher. The record shows that Judge Ashman
knowingly violated AS 12.35.010(b) and AS 12.35.015(a). [Fn. 1]
Judge Coats reasons that Judge Ashman did not violate
these statutes since the trooper's telephonic testimony supplemented
a prior written affidavit. But neither AS 12.35.010(b) nor
AS 12.35.015(a) draws any distinction between an officer's initial
testimony and any later testimony the officer may give to bolster
the search warrant application.
Judge Stewart concludes that even if Judge Ashman violated
these statutes, the violation should be ignored. For the reasons
explained here, I do not agree.
The facts of this case are straightforward. Trooper
Bleicher initially applied for the search warrant by affidavit.
After Judge Ashman read this affidavit, he contacted Bleicher and
asked the trooper to give supplemental telephonic testimony:
THE COURT: Trooper Bleicher is present,
at my request, by telephone today. I received a long affidavit for
a search warrant in [case number] 3PA-95-106 SW, and I -- I'm
basically prepared to grant the search warrant, but I need to
clarify a few points in the affidavit. Trooper Bleicher ... is
[currently] located across the Valley in Wasilla, is that right?
BLEICHER: That is correct.
THE COURT: All right. And you're thirty
minutes or so away from the courthouse?
BLEICHER: At least. Yes.
THE COURT: And it's now 5:10 in the
afternoon. Given that the matters [I wish to inquire into] are
simply ones of ... brief clarification, and [given] that Trooper
Bleicher has testified personally in front of me literally hundreds
of times, I believe that it's appropriate to [take] brief
supplemental telephonic testimony as part of the search warrant
[application]. It's not an [indiscernible] circumstance, and I
don't believe that it would cause the loss or destruction of
evidence. And if the State feels that it would be more appropriate
to set this [hearing] for a time when the trooper could be present
personally, I'd be happy to accommodate the trooper. Trooper
Bleicher, is it your preference to go forward like this today, or
would you like an opportunity to come over [to the courthouse in
Palmer]?
BLEICHER: I would like ... [to] proceed
telephonically.
Under AS 12.35.015(a), a judicial officer has the
authority to hear a search warrant application telephonically, but
only "if the judicial officer finds that there is probable cause to
believe that ... [personal] presentation of the applicant's
affidavit or testimony ... would result in delay [that] might result
in loss or destruction of the evidence subject to seizure". The
problem in the present case is that Judge Ashman affirmatively found
that the statutory requirement was not satisfied. That is, Judge
Ashman affirmatively found that there was no reason to believe that
delay might result in loss or destruction of any evidence.
The majority offers three reasons why Judge Ashman's
violation of the statute does not matter.
First, the majority adopts Judge Ashman's rationale that
the search warrant application was essentially complete, that Judge
Ashman had already decided to issue the warrant, and that the judge
only wanted the trooper to provide "brief clarification" of the
matters stated in the affidavit. However, the record shows that
Judge Ashman was not simply seeking clarification of Bleicher's
affidavit. Instead, the judge was trying to supplement the record
with fairly important information.
The search warrant application in this case was based
primarily on hearsay information obtained from Troy Heaven, so the
government had to establish Heaven's "basis of knowledge" and
"credibility" under the Aguilar-Spinelli test. [Fn. 2] Heaven gave
the police a detailed account of discovering marijuana at Burrece's
residence, thus satisfying the "basis of knowledge" prong of
Aguilar-Spinelli. But the evidence supporting Heaven's credibility
was thin. Heaven was a "police informant", and he had not provided
information to the police in the past. Moreover, in his statements
to the police, Heaven provided reason to suspect that he was
motivated by revenge or ill-will toward Burrece. (Heaven had a
friend who was wanted by the law. The friend had been staying at
Burrece's residence; but when Burrece discovered that Heaven's
friend was hiding from a warrant, Burrece threw the friend out.)
Thus, independent corroboration of Heaven's story was crucial to the
issuance of the warrant.
In his affidavit, Trooper Bleicher referred to the fact
that another search warrant had already been issued for a laundry
in Big Lake. This prior search warrant application was based on a
tip provided by Troy Heaven, who was also the informant in Burrece's
case. However, Bleicher's affidavit was unclear regarding what the
police discovered when they served the warrant at the laundry.
Bleicher's affidavit stated:
[The] investigators observed that the Big Lake
laundry mat [sic] had been utilized as a marijuana grow operation
with extensive damage done to the facility, as well as evidence of
marijuana being grown in 3 separate rooms within that building. The
marijuana grow operation appeared to have been an ongoing operation
for an extended time period[,] such as a couple of years.
(Emphasis added) This description, combined with Bleicher's failure
to assert that the troopers found any marijuana or other evidence
of current or recent marijuana cultivation, makes it sound as if the
troopers had found an abandoned marijuana cultivation site. This
state of affairs would arguably be inconsistent with Heaven's
assertion that he had recently burglarized the laundry and had found
marijuana growing there.
As the following portion of the transcript shows, Judge
Ashman knew that the troopers had found quantities of marijuana when
they served that earlier warrant a discovery which indicated that
the site was only recently abandoned:
THE COURT: I reviewed the [trooper's
current] affidavit, and I actually did the search warrant that's
referred to, on ... let's see ...
BLEICHER: 8-4-95?
THE COURT: Yeah, I'm trying to find the
page reference. Okay, the operation referred to on page 3 [of the
current affidavit]; ... a Big Lake laundry was the subject of [an
earlier] search warrant, is that right?
BLEICHER: That's correct.
THE COURT: And ... as I read this
affidavit, that [earlier] warrant was executed, and there were drugs
found?
BLEICHER: That is correct, Your Honor.
. . .
THE COURT: And it was Troy Heaven who was
one of the ... informants in that [earlier] case? And the State is
asking the court to ... find that Heaven's credibility is
corroborated by the fact that his information about the Big Lake
laundry was verified by the search, is that right?
BLEICHER: That is correct.
In the above-quoted exchange, Judge Ashman indicates that
all of this information about the earlier search was already
contained in Bleicher's affidavit. But the judge's statement is not
supported by the record. Bleicher's affidavit referred to the
earlier search warrant issued for the laundry in Big Lake and the
fact that Troy Heaven provided the tip about that laundry, but
Bleicher's affidavit did not fully describe the results of that
earlier search. From the record, it appears that Judge Ashman
independently knew the results of that search because he was the
judicial officer who issued the earlier warrant.
To me, this record indicates that Judge Ashman was not
simply trying to "clarify" Bleicher's affidavit. Rather, Judge
Ashman was attempting to make a record attempting to supplement
Bleicher's affidavit with material information that the judge
already knew but that Bleicher had forgotten to mention. For this
purpose, Judge Ashman asked Bleicher a series of leading questions
questions that simply required Trooper Bleicher to confirm the
judge's statements.
I am not suggesting that Judge Ashman acted improperly
when he prompted Bleicher to provide supplemental information.
Judicial officers often deal with testimony or affidavits that are
imprecisely or inartfully worded, requiring the judge to elicit
clarifying testimony or supplemental affidavits. Moreover, I do not
believe that judges necessarily overstep their proper role when they
ask police officers to confirm important facts that are already
well-known but that somehow did not find their way into the
officer's search warrant application. The problem here is that
Judge Ashman was eliciting these important facts by telephone.
The fact that the earlier search of the laundry yielded
positive evidence of a recently-abandoned marijuana cultivation site
was not mere "clarification" of Bleicher's affidavit. This
information was not contained in Bleicher's affidavit. Moreover,
judging from the pains that Judge Ashman took to place this
information on the record, the judge did not view this information
as trivial. Rather, the record shows that Judge Ashman considered
this information to be important when assessing the credibility of
Troy Heaven's tip in Burrece's case.
For these reasons, I reject the idea that Bleicher's
telephonic testimony was a mere "clarification" of his affidavit,
and I further reject the majority's conclusion that Bleicher's
telephonic testimony was of trivial importance.
Judge Coats concludes that, even if Bleicher's
supplemental information was material to the ultimate finding of
probable cause, Judge Ashman did not violate AS 12.35.010(b) and
AS 12.35.015(a) when he elicited the trooper's supplemental
testimony by telephone. Judge Coats notes that Trooper Bleicher had
previously submitted an affidavit in support of the search warrant
application; the trooper's telephonic testimony was a "supplement"
to this affidavit. Judge Coats then suggests that the statutes
apply only to the initial testimony in support of a search warrant
that they do not restrict telephonic testimony that "supplements"
prior testimony.
The problem with this analysis is that the two statutes
neither contain nor suggest any such distinction. By their terms,
both AS 12.35.010(b) and AS 12.35.015(a) define the circumstances
in which "[a] judicial officer may issue a search warrant upon ...
sworn oral testimony ... communicated by telephone". The statutes
do not distinguish between testimony that was part of the initial
search warrant application and testimony that was supplied later as
a supplement to the application. If Judge Ashman relied upon
Trooper Bleicher's telephonic testimony when he made his decision
to issue the search warrant (and the record shows that he did), then
Judge Ashman "issue[d] a search warrant upon ... sworn oral
testimony ... communicated by telephone", and the two statutes
governed his conduct.
Moreover, Judge Coats's suggestion that AS 12.35.010(b)
does not apply to "supplemental" testimony leads to unacceptable
results. Applying this same logic to the other subsection of the
statute, AS 12.35.010(a), one might conclude that the requirement
of "oath or affirmation" applies only to the initial search warrant
application that supplemental statements in support of a search
warrant need not be under oath. Such an interpretation, I assume,
would be rejected out of hand. But just as I believe that
AS 12.35.010(a) applies to any and all statements presented in
support of a search warrant application, I likewise believe that its
sibling provision, AS 12.35.010(b), applies to any and all
statements presented in support of a search warrant application.
I therefore conclude that AS 12.35.010(b) and AS 12.35.015(a) apply
to all telephonic testimony in support of a search warrant even
telephonic testimony that "supplements" an earlier search warrant
application.
The majority offers a second reason for concluding that
Judge Ashman's violation of the statute does not matter. A separate
clause of AS 12.35.015 subsection (f) declares that, "[a]bsent
a finding of bad faith, evidence obtained under a warrant issued
under this section is not subject to [suppression] on the ground
that the circumstances did not support [the warrant's] issuance
under (a) of this section." Translating subsection (f) into plain
English, the legislature has declared that when a search warrant is
issued on the basis of a telephonic application, the warrant will
generally remain valid even if the defendant later shows that there
was, in fact, no probable cause to believe that delay in issuing the
warrant would result in loss or destruction of evidence. The only
exception is for situations in which someone has acted in bad faith.
The majority asserts that "Burrece has neither shown nor
argued any bad faith on the part of [Judge Ashman] or the trooper".
I am not sure what the majority means by "bad faith". If, by "bad
faith", the majority means "evil motive", the answer is that no evil
motive is required.
As the transcript demonstrates, Judge Ashman knew that
AS 12.35.015(a) authorized him to accept a telephonic search warrant
application only under specific circumstances. The judge declared
that these circumstances did not exist (and the trooper did not
dispute the judge's statement). The judge then stated that he would
take Bleicher's telephonic testimony anyway. No other sort of "bad
faith" is required to establish a violation.
The majority offers a third reason why Judge Ashman's
violation of the statute does not matter. According to the
majority, Burrece's challenge to the warrant must be rejected
because Burrece has failed to assert that, but for Bleicher's
telephonic testimony, the search warrant would not have been issued.
It is true that Burrece does not directly assert that Bleicher's
telephonic testimony was material to Judge Ashman's decision to
issue the warrant, but the record certainly suggests that this was
the case.
As explained above, Bleicher's telephonic testimony was
not merely a trivial clarification of his affidavit; rather, it
materially supplemented the information in the affidavit. Moreover,
Judge Ashman went to a great deal of effort to make sure that
Bleicher's "clarification" was placed on the record. To me, this
strongly implies that Judge Ashman was not willing to issue the
warrant until Bleicher provided the supplemental testimony.
For these reasons, I can not join in the majority's
decision to ignore Judge Ashman's violation of AS 12.35.015(a). I
conclude that the statute was inexcusably violated, and I further
conclude that the violation was important to the issuance of the
search warrant.
One might be tempted to ask what difference all of this
makes. We live in an age of global wireless telephonic communica-
tion, an age of fax and of Internet e-mail. What purpose could be
served by limiting a court's authority to accept telephonic search
warrant applications especially in a state like Alaska, where
great distances have always hampered traditional forms of
communication? I have two answers.
First, it is important that the guardians of the law take
pains to observe the law. Whatever the arguments may be for
unrestricted telephonic search warrants, the legislature has decreed
that courts can accept telephonic search warrant applications only
in limited circumstances. Trial judges and magistrates should not
knowingly ignore these limitations, nor should this court turn a
blind eye when the statute is violated as I believe it was in this
case.
The district court decided to take Bleicher's telephonic
testimony in fact, the court actively solicited Bleicher's
telephonic testimony because it was the end of the business day
(5:10 p.m.) and because Bleicher was some thirty minutes away by
car. The court took Bleicher's testimony telephonically even though
the court openly acknowledged that there was no reason to believe
that a thirty-minute delay might result in loss or destruction of
evidence. Inconvenience is not a valid reason to ignore the
statute.
Second, the legislature's decision to limit telephonic
search warrant applications is supported by important policy
considerations. Clearly, the limitation on telephonic search
warrant applications is not intended to ensure that officers apply
in person for search warrants; if that had been the legislature's
aim, they would have outlawed search warrant applications by
affidavit. Instead, I conclude that telephonic testimony is
disfavored because of the different way in which the oath is
administered to the person(s) applying for the warrant.
In a normal search warrant application, the officer either
signs an affidavit or testifies in court. In either case, the
officer must personally appear before an official (either a notary
or a judge) and, in that official's presence, the officer must swear
or affirm that they are telling the truth. When an oath is
administered by telephone, on the other hand, there is no formal
moment when the officer must stand before a public official, face
to face, and formally swear or affirm that they are telling the
truth.
Bowing to practical necessity, the legislature has
authorized telephonic testimony and its less-formal oath, but only
in restricted circumstances. Judge Ashman specifically found that
those circumstances did not exist in Burrece's case.
Because there was no justification for the district
court's violation of AS 12.35.015(a), and because Bleicher's
telephonic testimony appears to have been material to the issuance
of the search warrant, I conclude that Burrece should be entitled
to a reversal of her conviction if one other condition is met: if,
as a legal matter, a knowing violation of AS 12.35.015(a) requires
suppression of the resulting evidence.
This question whether courts should apply the
exclusionary rule to purposeful violations of AS 12.35.015(a) has
no easy answer. Moreover, the parties have thus far failed to
address this issue. I would order the parties to brief this issue,
and, if suppression is indeed the remedy for a violation of the
statute, I would reverse Burrece's conviction.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(5).
Footnote 2:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 3:
See Snyder v. State, 661 P.2d 638, 646-47 (Alaska App. 1983).
Footnote 4:
See id. at 647.
Footnote 5:
See id. at 647-48.
Footnote 6:
See id. at 645.
Footnote 7:
Simmons v. State, 899 P.2d 931, 934 (Alaska App. 1995).
Footnote 8:
AS 12.35.015(a) provides:
A judicial officer may issue a search warrant
upon the sworn oral testimony of a person communicated by telephone
or other appropriate means, or sworn affidavit transmitted by
facsimile machine, if the judicial officer finds that there is
probable cause to believe that
(1) the presentation of the applicant's affidavit or
testimony personally before the judicial officer would result in
delay in obtaining a search warrant and in executing the search;
and
(2) the delay might result in loss or destruction of
the evidence subject to seizure.
Footnote 9:
See AS 12.35.015(f) ("Absent a finding of bad faith, evidence
obtained under a warrant issued under this section is not subject
to a motion to suppress on the ground that the circumstances did not
support its issuance under (a) of this section.").
Footnote 10:
See Zsupnik v. State, 789 P.2d 357, 361 (Alaska 1990); Ward
v. State, 758 P.2d 87, 90 (Alaska 1988); Copelin v. State, 659 P.2d
1206, 1214-15 (Alaska 1983); State v. Sundberg, 611 P.2d 44, 50-52
(Alaska 1980); Nathan v. Anchorage, 955 P.2d 528, 533 (Alaska App.
1998); Harker v. State, 637 P.2d 716, 719-20 (Alaska App. 1981).
Footnote 11:
Cf. Zsupnick, 789 P.2d 357, Ward, 758 P.2d 87, and Copelin,
659 P.2d 1206, with Sunberg, 611 P.2d 44, Nathan, 955 P.2d 528, and
Harker, 637 P.2d 716.
Footnote 12:
[Fn. 1] [Fn. 2]Sundberg, 611 P.2d at 50.
Concurring / Dissenting Opinion
Footnote 1:
See Sundberg, 611 P.2d at 50-51.
Footnote 2:
See Sundberg, 611 P.2d at 50-51.
FOOTNOTES (Concurrence)
Footnote 1:
Dissent at page 17.
Footnote 2:
AS 12.35.015(a)(2).
FOOTNOTES (Dissent)
Footnote 1:
AS 12.35.010(b) states, "A judicial officer may issue a search warrant upon the sworn
oral testimony of a person communicated by telephone or other appropriate means, or sworn
affidavit submitted by facsimile machine, in accordance with AS 12.35.015."
The pertinent language of AS 12.35.015 is discussed in this dissent.
Footnote 2:
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v.
United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See State v. Jones, 706
P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of Alaska law, the Aguilar-Spinelli
test continues to govern the evaluation of hearsay information offered to support a search or
seizure).
