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Ivanoff v. State (9/29/00) ap-1691
Ivanoff v. State (9/29/00) ap-1691
NOTICE
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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
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEPHAN H. IVANOFF, SR., )
) Court of Appeals No. A-7278
Appellant, ) Trial Court No. 2KB-S98-84 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1691 -- September 29, 2000]
)
Appeal from the Superior Court, Second Judi-
cial District, Kenai, Richard H. Erlich, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, Anchorage, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Ben M. Herren, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Stephan H. Ivanoff, Sr., appeals his conviction for
fourth-degree misconduct involving a controlled substance. [Fn. 1]
Ivanoff argues that the superior court erred in concluding that
probable cause supported the issuance of a search warrant for his
home. Ivanoff also argues that the court erred in concluding that
execution of the warrant at night was authorized. Because we
conclude that the record before the magistrate does not support a
probable cause finding, we reverse.
Facts and proceedings
On Friday, February 20, 1998, at 7:30 p.m., Robert Cyr
called the Kotzebue Police Department to report that his wife, Annie
Cyr, had purchased a bottle of whiskey from someone in town. The
purchase was unlawful because Kotzebue was a local option community
where the sale of alcohol was prohibited. About thirty minutes
later, Corporal Eric Swisher and Officer Rocky Norris of the
Kotzebue Police Department went to Cyr's home and spoke to Annie Cyr
about the purchase. She said that she bought the alcohol from Otto
Kenworthy.
Later in the evening, Swisher and Norris went to
Kenworthy's home to speak with him. They told Kenworthy that he was
not under arrest and that he did not have to talk to them.
Nevertheless, Kenworthy told them that he had sold a bottle of
whiskey to Annie Cyr earlier that day.
Both officers noticed that Kenworthy smelled like
marijuana. They saw a rolled-up baggie sticking out of the chest
pocket of his bib overalls. Kenworthy told the officers that he was
not selling marijuana, but that he had bought the "quarter bag" of
marijuana for $100 from Ivanoff earlier that day at Ivanoff's house.
Kenworthy said that he went to Ivanoff's home, knocked on
his door, and asked him whether he had any marijuana to sell. He
gave Ivanoff two $50 bills, and Ivanoff gave him a baggie of
marijuana in return. Kenworthy claimed that Ivanoff retrieved the
marijuana from a green fanny pack lying next to him on the couch.
Kenworthy also told the officers that Ivanoff's house was the green
house across from 678 Caribou Drive. Kenworthy said that when he
purchased marijuana from Ivanoff at other times, Ivanoff retrieved
the marijuana from a back room in his house. Finally, Kenworthy
told the officers that Ivanoff shipped the marijuana to Kotzebue on
Alaska Airlines and that Ivanoff sold marijuana to several other
people in town.
Swisher and Norris returned to the police station at about
11:00 p.m. They discussed the case with Officer Pat Octuck, the
department's drug enforcement investigator. Octuck said that during
an investigation of Kenneth Hall, Hall told Octuck that Ivanoff was
selling drugs. Hall was known as a major drug dealer in Kotzebue
and had been convicted of selling drugs several times.
At about 2:00 a.m. on February 21, 1998, the officers
appeared before Magistrate Sherry A. Clark and applied for a search
warrant. Kenworthy did not appear before the magistrate. The
officers submitted an affidavit in support of the application.
Magistrate Clark reviewed the affidavit and initially indicated:
I have read your affidavit and I find that I
have probable cause for a search warrant, but I just want to ask a
couple of questions about either the veracity or the truthfulness
of your informant, or any possibility of corroborating the
informant's statement. [S]o if you have information on Otto
Kenworthy . . . or [Stephan] Ivanoff, I need for you to tell me
about it.
Swisher testified that he heard from Officer Octuck that while
investigating Hall on a separate drug case, Hall mentioned that
Ivanoff was selling drugs. Magistrate Clark stated: "I think that
will work because that way we have some corroboration of the fact
that Mr. Ivanoff does sell, or possibly sell, and it would
corroborate the informant's statement." Norris then
testified that Kenworthy was advised that he was not under arrest
and that he did not have to speak if he did not want to. Norris
also testified that Kenworthy had voluntarily admitted that he sold
alcohol and that Kenworthy's statements were against his penal
interest. Magistrate Clark noted that Kenworthy had personal
knowledge and then found "probable cause to believe that on the
premises [of Ivanoff's home] there is . . . marijuana which is
evidence of the crime of misconduct involving a controlled substance
in the fifth degree."
The magistrate also directed that the warrant could be
served at night. The officers executed the warrant at 2:27 a.m., and
seized more than 300 grams of marijuana and $4,600 in cash.
Ivanoff was indicted on a charge of fourth-degree
misconduct involving a controlled substance [Fn. 2] for possessing
one ounce or more of marijuana with intent to deliver. Ivanoff
moved to suppress the evidence obtained as a result of the search
warrant. Superior Court Judge Richard H. Erlich concluded that
Kenworthy's statements qualified as admissions against his penal
interest, sufficient to meet the veracity prong of the Aguilar-
Spinelli test [Fn. 3] and denied Ivanoff's motion.
Ivanoff pleaded no contest, reserving his right to appeal
the denial of his motion to suppress. [Fn. 4] Judge Erlich imposed
a non-presumptive sentence of 18 months with 12 months suspended.
This appeal followed.
Discussion
Did the police present sufficient evidence to satisfy the
Aguilar-Spinelli test?
The warrant to search Ivanoff's home was issued on the
basis of information supplied to the police by an informant - Otto
Kenworthy. Ivanoff contends that Kenworthy's credibility was not
sufficiently established to support a finding of probable cause.
In addition to the officers' testimony, Magistrate Clark
was presented with an affidavit, which stated in relevant part:
[T]he facts tending to establish the foregoing
grounds for issuance of a search warrant are as follows: On
February 20, 1998, Officers Rocky Norris and Eric Swisher received
a call from Robert Cyr about his wife, Annie Cyr, buying a bottle
of R&R whiskey from Otto Kenworthy. When Officer[s] Norris and
Swisher met with Otto Kenworthy, he told the Officers that he sold
three bottles of R&R whiskey on 02-20-98, one [each] to Annie Cyr,
David Davis, and Dan Henry.
The Officers smelled a strong odor of
Marijuana on Otto Kenworthy's person. Corporal Swisher saw a
rolled-up baggie sticking out of Otto Kenworthy's chest pocket on
his bibs. When asked, Otto Kenworthy said that he bought the
'Quarter Bag' of Marijuana for $100.00 from [Stephan] Ivanoff, who
lives in the green house across from 678 Caribou Drive, on 02-20-98.
(A 'quarter bag' is slang for 3.5-grams of Marijuana.)
Otto Kenworthy said that when he knocked
on [Stephan] Ivanoff's door on 02-20-98, he asked [Stephan] Ivanoff
if he had any Marijuana. Otto Kenworthy said that he paid [Stephan]
Ivanoff two, fifty-dollar bills for the Marijuana. Otto Kenworthy
said that [Stephan] Ivanoff took the money and put it into a green
Fanny Pack, which was laying on the couch beside [Stephan]
Ivanoff[.] [Stephan] Ivanoff [then] took out the baggie of
Marijuana from the Fanny Pack and gave it to Otto Kenworthy.
Otto Kenworthy said that he bought
Marijuana from [Stephan] Ivanoff a couple of times this month before
this and on those separate occasions, [Stephan] Ivanoff went to the
back room of the house to get the Marijuana. Otto Kenworthy said
that [Stephan] Ivanoff brought the Marijuana up to Kotzebue on
Alaska Airlines. Otto Kenworthy told the officers that [Stephan]
Ivanoff sells Marijuana [to] several people in town.
Otto Kenworthy told the officers this
information against his own personal interest. Otto Kenworthy's
statement was tape-recorded. The officers know [Stephan] Ivanoff
to live at 668 Caribou Drive[,] Kotzebue, Alaska, which is a green
house across from 678 Caribou Drive.
When the State relies on informant hearsay to establish
probable cause for a search warrant, a magistrate considering the
application must apply the two-prong Aguilar-Spinelli test. Under
this test, the applicant for the search warrant must provide the
magistrate with sufficient information to independently evaluate
both the basis of knowledge and veracity prongs of the test. [Fn.
5]
Both parties agree that Kenworthy asserted sufficient
personal knowledge to satisfy the first prong of the Aguilar-
Spinelli test. According to the search warrant application,
Kenworthy had personal knowledge of Ivanoff's possession and sale
of marijuana because he purchased some from him earlier that day.
However, Ivanoff argues that there was insufficient
evidence presented to the magistrate to establish Kenworthy's
veracity under the second prong of the test. Under the second prong
of the Aguilar-Spinelli test, to establish the informant's veracity,
the applicant must inform the magistrate of "the underlying
circumstances [to support the conclusion] that the informant was
credible or that his information was reliable." [Fn. 6]
Informants are divided into two categories under the
Aguilar-Spinelli analysis: citizen informants and police
informants. Both the State and Ivanoff agree that Kenworthy was
acting as a police informant when he spoke to the police. Police
informants are often associated with the criminal milieu and are
subject to mistrust because they may provide tips in exchange for
payment, favorable treatment in the criminal process, or personal
advantage or revenge. [Fn. 7] However, a police informant's
reliability may be established in the following ways: by
demonstrating his past reliability, by independent police
corroboration of several detailed facts in the informant's tip, or
by the informant's admission against penal interest. [Fn. 8] Here,
the parties agree that no evidence of Kenworthy's past reliability
was offered to the magistrate. Therefore, the discussion turns to
determining whether there was another basis to conclude that
Kenworthy's statement was credible.
The State argues that three factors cumulatively establish
the Aguilar-Spinelli veracity prong. First, the State argues that
Kenworthy's statement was against his penal interest and made at a
time when the police were already able to charge him with a felony
offense. Second, the State argues that Kenworthy's statement was
independently corroborated by "another specifically identified
informant" - Hall's tip to Octuck about Ivanoff that was relayed by
Corporal Swisher. And third, the State argues that Kenworthy's
statement contained self-verifying details.
Were Kenworthy's statements against his penal interest?
In Elerson v. State, [Fn. 9] this court noted that in
certain circumstances, an informant's admission against his penal
interest can be sufficient to establish credibility. [Fn. 10]
"What is needed is a showing that 'the
informant's statements against his own penal interest were closely
related to the criminal activity' for which probable cause to arrest
or search is being established...." Once the appropriate nexus has
been established, the next "fundamental question is whether the
informant would have perceived his remarks as highly incriminating."[[Fn. 11]]
Thus, under Elerson, Kenworthy's admissions must have been closely
related to Ivanoff's criminal activity that was the subject of the
search warrant and Kenworthy must have perceived his remarks as
highly incriminating.
Kenworthy's admission that he bought the marijuana from
Ivanoff establishes the nexus between his admissions and Ivanoff's
criminal activity. Moreover, Ivanoff has not argued that this nexus
was lacking.
Ivanoff argues that Kenworthy would not necessarily have
viewed his statements as highly incriminating. Kenworthy indicated
where and how he purchased marijuana from Ivanoff, both in the
current occasion and on previous occasions. The State claims that
Kenworthy's admissions could conceivably support his prosecution for
soliciting Ivanoff to sell him marijuana under AS 11.31.110 [Fn. 12]
and AS 11.71.050. [Fn. 13] But Kenworthy's potential liability for
solicitation is dubious because, under AS 11.16.120(b)(2), [Fn. 14]
a purchaser of controlled substances is not legally accountable when
his conduct is inevitably incidental to the commission of the
offense. [Fn. 15] The State also points out that Kenworthy could
be prosecuted for possession of marijuana under AS 11.71.060(a)(1).
But this charge is a class B misdemeanor and a minor offense
compared to the potential crime that was the subject of discussion
between the police and Kenworthy: sale of alcohol in a local-option
area, a class C felony. [Fn. 16]
The State also argues that because Kenworthy was subject
to prosecution for the alcohol offense, his statement is more
credible because he risked disfavor with the prosecution if his tip
was false. We recognized the potential merit of this principle in
State v. Bianchi. [Fn. 17] There we noted Professor LaFave's
analysis that an informant is considered more reliable when he makes
a statement against penal interest knowing that the police have
evidence to charge him with a crime:
[O]ne who knows the police are already in a
position to charge him with a serious crime will not lightly
undertake to divert the police down blind alleys. Thus, where the
circumstances fairly suggest that the informant "well knew that any
discrepancies in his story might go hard with him," that is a reason
for finding the information reliable.[ [Fn. 18]]
Kenworthy knew at the time he made these statements about
purchasing marijuana that the police were in a position to charge
him with the felony of selling alcohol in a local option area. [Fn.
19] But it is not clear whether Kenworthy believed he would face
any official displeasure if, when Ivanoff's house was searched, the
police found no marijuana. The police already suspected that it
might be too late to catch Ivanoff with the marijuana. When the
officers applied for the warrant for Ivanoff's house, they told the
magistrate that it was essential to serve the warrant quickly
because they feared that Ivanoff's supply of marijuana would soon
be sold - that very night - because it was a payday and the
beginning of a weekend. This being the case, it does not seem
likely that Kenworthy would face adverse consequences if the search
failed to turn up evidence to substantiate his statements about
Ivanoff's selling marijuana.
Kenworthy's statement did contain admissions that he
possessed marijuana in addition to the crime for which the police
were interviewing him (the alcohol violation). In Atkinson v.
State, [Fn. 20] a juvenile informant admitted that he possessed
marijuana after his father reported him to the police. [Fn. 21] The
juvenile told the police that he had taken marijuana from Atkinson's
house more than once after breaking in with the intention of
stealing the marijuana. [Fn. 22] We noted that the juvenile's
admission to possessing marijuana might not have been sufficiently
against his penal interest to establish the reliability of his tip
that there was marijuana growing in the defendant's home. [Fn. 23]
However, the informant admitted to far more than "the misconduct for
which he had already been apprehended: he acknowledged engaging in
a series of burglaries at [the defendant's] house that had as yet
evidently gone undetected." [Fn. 24] This court held that this
admission was clearly against the juvenile's penal interest. [Fn.
25]
Kenworthy's admission that he bought marijuana from
Ivanoff on a few occasions and particularly on the day in question
hardly incriminated Kenworthy to the extent of the admission in
Atkinson. Kenworthy did admit that he purchased marijuana from
Ivanoff a few times and obviously the police found him in possession
of three grams at home. But we noted in Atkinson that an informant
caught in possession of marijuana has "little to lose by admitting
his possession and much to gain by naming someone else who could
also be blamed." [Fn. 26] We also noted that courts are reluctant
to recognize these types of statements (by drug informants) as
admissions against an informant's penal interest. [Fn. 27]
Furthermore, there is no evidence in this record nor any findings
that Kenworthy, in fact, understood that his statements about the
marijuana were particularly incriminating. We conclude that the
information about Kenworthy's statements submitted to the magistrate
did not establish that Kenworthy would have viewed his statements
as particularly incriminating. Therefore, Kenworthy's statements
do not qualify as admissions against penal interest.
The State also argues that the police had independent
corroboration of Kenworthy's tip from Hall's comment to Officer
[Octuck]. Swisher's testimony at the search warrant hearing that
he "heard from Officer [Octuck] . . . with the Kotzebue Police
Department that while investigating Kenneth Hall on [a] separate
drug case, he had mentioned that . . . Ivanoff was selling drugs."
However, in his final order, Judge Erlich based his denial of the
suppression motion solely on his finding that Kenworthy made
statements against his penal interest. Nevertheless, the State
argues that Hall's statement provided additional "cross-
corroboration" for Kenworthy's admission.
"For purposes of the Aguilar-Spinelli doctrine, the
veracity of a statement given by a police informant whose
reliability is unknown may be established by a corroborating
statement from another informant[.] 'Cross-corroboration among
informants is a well-accepted method of demonstrating the validity
of the information given.'" [Fn. 28] However, in Carter v. State,
[Fn. 29] we noted that cross-corroboration does not enhance
credibility when it involves "[t]he mere repetition of a conclusory
accusation." [Fn. 30] Here, Hall's statement was a flat claim that
Ivanoff sold drugs without any support for that conclusion. Thus,
Hall's statement that Ivanoff sold drugs is a "conclusory
allegation" and does not qualify as cross-corroboration.
The State also argues that Kenworthy's statements were
"self-verifying"; that is, the statements, by themselves,
established Kenworthy's reliability because they contained a "wealth
of details" concerning Kenworthy's purchase of marijuana from
Ivanoff. The detail contained in an informant's tip can be used to
establish the personal knowledge prong of the Aguilar-Spinelli test,
[Fn. 31] but it cannot be used to establish the veracity or
credibility prong. This point is explained by Professor LaFave in
this treatise on the law of search and seizure:
[T]he self-verifying detail test should be
used only with respect to the basis of knowledge and not with
respect to veracity. ... As explained in Stanley v. State,[ [Fn. 32]]
the "self-verifying detail" technique
cannot repair a defect in the "veracity" prong. The notion that
great detail implies personal observation rather than the
overhearing of barroom gossip, presupposes an honest informant. If
the informant is concocting a story out of whole cloth, he could
fabricate in fine detail as easily as with rough brush strokes.
Minute detail[] tells us nothing about "veracity."[ [Fn. 33]]
We therefore reject the State's argument that Kenworthy's
credibility was established by the detail of his statements.
From our review of the record, we conclude that the record
before the magistrate did not satisfy the Aguilar-Spinelli test.
Therefore, the search warrant was not based on probable cause.
Because the warrant was invalid, we need not reach Ivanoff's claim
that the magistrate should not have authorized the execution of the
warrant at night.
Conclusion
The judgment of the superior court is REVERSED.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(2).
Footnote 2:
Id.
Footnote 3:
See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United
States, 393 U.S. 410 (1969); State v. Jones, 706 P.2d 317, 324-25
(Alaska 1985).
Footnote 4:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 5:
See Jones, 706 P.2d at 324.
Footnote 6:
Id. at 324-25 (citing Davis v. State, 499 P.2d 1025, 1029
(Alaska 1972), rev'd on other grounds, 415 U.S. 308 (1974)).
Footnote 7:
See Evans v. State, 550 P.2d 830, 842 n.35 (Alaska 1976)
(quoting Fresneda v. State, 483 P.2d 1011, 1015 (Alaska 1971));
Effenbeck v. State, 700 P.2d 811, 813-14 (Alaska App. 1985).
Footnote 8:
See Lloyd v. State, 914 P.2d 1282, 1286 (Alaska App. 1996);
Jones, 706 P.2d at 325; Davis, 499 P.2d at 1029.
Footnote 9:
732 P.2d 192 (Alaska App. 1987).
Footnote 10:
See id. at 194; Jones, 706 P.2d at 325.
Footnote 11:
Elerson, 732 P.2d at 194 (quoting 1 Wayne R. LaFave, Search and
Seizure sec. 3.3(c), at 531 (1978)).
Footnote 12:
Alaska Statute 11.31.110(a) provides:
A
person commits the crime of solicitation if, with intent to cause
another to engage in conduct constituting a crime, the person
solicits the other to engage in that conduct.
Footnote 13:
Alaska Statute 11.71.050(a)(2) provides:
[A]
person commits the crime of misconduct involving a controlled
substance in the fifth degree if the person . . . manufactures or
delivers, or possesses with the intent to manufacture or deliver,
one or more preparations, compounds, mixtures, or substances of an
aggregate weight of less than one-half ounce containing a schedule
VIA controlled substance, for remuneration[.]
Footnote 14:
Alaska Statute 11.16.120(b)(2) provides:
Excep
t as
otherwise provided by a provision of law defining an offense, a
person is not legally accountable for the conduct of another
constituting an offense if the offense is so defined that the
person's conduct is inevitably incidental to its commission.
Footnote 15:
See State v. Burden, 948 P.2d 991, 992-93 (Alaska App. 1997).
Footnote 16:
See AS 04.16.200(b).
Footnote 17:
761 P.2d 127 (Alaska App. 1988).
Footnote 18:
Id. at 131 (quoting 2 Wayne R. LaFave, Search and Seizure sec.
3.3(c), at 129 (3d ed. 1996)).
Footnote 19:
See AS 04.11.010; AS 04.16.200(b).
Footnote 20:
869 P.2d 486 (Alaska App. 1994).
Footnote 21:
See id. at 489.
Footnote 22:
See id.
Footnote 23:
See id. at 491.
Footnote 24:
Id.
Footnote 25:
See id.
Footnote 26:
Id.
Footnote 27:
See id.
Footnote 28:
Lewis v. State, 862 P.2d 181, 186 n.5 (Alaska App. 1993)
(quoting State v. Prince, 760 P.2d 156, 1359-60 (Or. App. 1988) (en
banc).
Footnote 29:
910 P.2d 619 (Alaska App. 1996).
Footnote 30:
Id. at 625.
Footnote 31:
See, e.g., Schmid v. State, 615 P.2d 565, 574-75 (Alaska 1980).
Footnote 32:
313 A.2d 847 (Md. App. 1974).
Footnote 33:
2 Wayne R. LaFave, Search and Seizure sec. 3.3(e), at 156-57
(3d ed. 1996).
