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Alexander v. Municipality of Anchorage (12/15/00) ap-1710
Alexander v. Municipality of Anchorage (12/15/00) ap-1710
NOTICE: 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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GREGORY L. ALEXANDER, )
) Court of Appeals No. A-7502
Appellant, ) Trial Court No. 3AN-M99-2095 CR
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1710 December 15, 2000]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Natalie K. Finn and James N. Wanamaker,
Judges.
Appearances: Randall S. Cavanaugh,
Kalamarides & Associates, Anchorage, for
Appellant. Carmen E. ClarkWeeks, Assistant Municipal Prosecutor,
and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee.
Before: Mannheimer and Stewart, Judges, and
Rabinowitz, Senior Supreme Court Justice.
(Coats, Chief Judge, not participating.)
STEWART, Judge.
MANNHEIMER, Judge, dissenting.
Following a bench trial on stipulated facts, District
Court Judge James N. Wanamaker convicted Gregory L. Alexander of
driving while intoxicated (DWI), a misdemeanor. [Fn. 1] Alexander
appeals, contending that District Court Judge Natalie K. Finn
erroneously denied his motion to suppress the results of his breath
test and his independent blood test. Alexander claims that the
police interfered with his right to consult with his attorney
before taking a breath test. We affirm because Judge Finn's
findings are supported by the record and we agree with Judge Finn
that on that record, suppression of evidence was not warranted.
Facts and Proceedings
On March 12, 1999, at about two in the morning, Anchorage
Police Officer Chris Goldberg stopped Alexander for driving the
wrong way on 5th Avenue, a one-way street. When Goldberg contacted
Alexander, he noticed signs indicating that Alexander had been
drinking. Goldberg administered some field sobriety tests. After
Alexander completed these tests, Goldberg arrested him for DWI.
Goldberg transported Alexander to the 5th Avenue police
substation for a breath test. At the substation, Goldberg kept
Alexander's hands cuffed behind his back. Goldberg testified that
Alexander was intoxicated and uncooperative; he was also upset that
he had been arrested, and angry that his vehicle was impounded.
Goldberg also testified that based on his eight years experience as
a street officer, he has found that intoxicated people are
unpredictable, and that, for safety purposes, with very few
exceptions, he keeps their hands cuffed behind their backs. [Fn. 2]
Goldberg also testified that it was department policy to keep all
DWI arrestees' hands cuffed behind their backs during DWI
processing.
While at the substation, Alexander asked to use a phone.
Alexander wanted to call a specific attorney, but did not know the
attorney's home telephone number. Goldberg helped Alexander call
Alexander's wife to get the attorney's home phone number; then
Goldberg called the attorney. Before calling Alexander's wife,
Goldberg turned off the substation's tape recorder but forgot to
turn off the personal tape recorder that Goldberg had in his
pocket. The substation's recorder remained off until Alexander
completed his calls. Alexander did not know about Goldberg's
personal recorder.
Once Alexander's attorney answered the phone, Goldberg
switched the phone from the speakerphone to the handset, and placed
the handset between Alexander's shoulder and head. Goldberg
testified that he regularly does this, and it usually works.
However, Alexander was unable to keep the phone from slipping out,
so Goldberg held the phone to Alexander's head. Goldberg heard
Alexander's side of the conversation, but could not hear the
attorney.
Goldberg testified that in his experience, regardless of
where he stood in the substation, had the speakerphone been used,
he would have heard both sides of the conversation. Goldberg said
he always tries to have arrestees use the handset because it is
more private.
Alexander also testified. He said that Goldberg was
approximately a foot and a half away, and that having Goldberg
stand so close made him nervous and uneasy when talking to the
attorney; as a result, he lied to his attorney, and told him that
he had only had one drink. Based on this information, the attorney
advised Alexander to request an independent blood test. After this
conversation, Alexander provided a breath sample for the
Intoximeter. The result showed that his blood alcohol content
(BAC) was .120 percent. Alexander requested an independent test,
and was transported to a hospital. Alexander's independent test
showed a blood alcohol content of .106 percent.
Alexander moved to suppress the results of both the
breath and the blood tests. He argued that the police violated his
right to consult privately with counsel because Goldberg stood
close enough to hold the phone, tape recorded the conversation, and
kept Alexander's hands cuffed behind his back.
At an evidentiary hearing before Judge Finn, the
Municipality conceded that Goldberg's inadvertent tape recording of
Alexander's conversation should be excluded. However, the
Municipality argued that there was no basis for suppressing the
test results. Judge Finn accepted the Municipality's concession
regarding the tape, but denied Alexander's motion to suppress the
test results.
On September 17, 1999, following a bench trial based on
stipulated facts, Judge Wanamaker found Alexander guilty of DWI.
Did the police interfere with Alexander's right to confer
with an attorney?
On appeal, Alexander contends that under Farrell v.
Anchorage, [Fn. 3] Goldberg did not make a reasonable effort to
accommodate Alexander's right to consult privately with counsel.
While Alexander acknowledges that the privacy right at issue here
is balanced against the police duty to maintain custodial
observation, he argues that Goldberg took no action to provide any
privacy. This argument, however, is contradicted by the evidence.
According to the record, Goldberg did make efforts to provide
privacy Goldberg turned off the substation's tape recorder before
calling the attorney and switched from speaker phone to the handset
when the attorney answered. Goldberg placed the phone between
Alexander's shoulder and head, and took no notes or other action
that Alexander can identify as additionally intrusive. Goldberg
held the phone only when Alexander was unable to keep the phone in
position without assistance.
Alexander argues that Goldberg did not satisfy Farrell
because he kept Alexander's hands cuffed behind his back, which in
turn required Goldberg to stand close enough to hold the phone. He
also argues that Goldberg violated his rights by inadvertently
recording the conversation.
Following the supreme court's decision in Copelin v.
State, [Fn. 4] we have held that even though police officers have a
duty to maintain custodial observation of an arrestee before
administration of the breath test, the arrestee must be given a
reasonable opportunity to hold a private conversation with his or
her attorney. [Fn. 5] We have also held that "an arrestee's right
to confer with counsel 'is not violated merely because the
arresting officer maintains physical proximity to the [arrestee].'"
[Fn. 6] As we said in Mangiapane v. Anchorage, "this court has
suppressed Intoximeter results only when, in addition to
maintaining physical proximity, 'the police engaged in additional
intrusive measures, intrusions that convinced [arrestees] that the
officers were intent on overhearing and reporting [the arrestees']
conversations with their attorneys.'" [Fn. 7]
Alexander testified that he was nervous and uneasy when
talking to his attorney because Goldberg stood approximately a foot
and a half away from him while helping him with the phone.
However, Alexander did not identify anything other than Goldberg's
proximity that made him uneasy. Nor did he claim that he thought
that Goldberg was trying to listen to the conversation. The record
shows that Alexander was aware that Goldberg had turned off the
substation tape recorder, and was not aware that Goldberg had a
personal tape recorder.
In addition, the record shows that Goldberg did not
insist upon holding the phone to stay close to Alexander instead,
he first tried to have Alexander cradle the phone between his
shoulder and head. Goldberg said that in his experience, this
usually works; only when this was unsuccessful did he hold the
phone. In short, while Goldberg did not release Alexander from his
handcuffs, he also did not stand next to Alexander to hold the
phone until he had to. Thus, except for Goldberg's proximity,
Alexander did not identify anything that Goldberg did that intruded
on Alexander's conversation, or made him believe that Goldberg
intended to overhear and report the conversation.
While Alexander condemns Goldberg's decision to keep
Alexander handcuffed, this fact is but one of the circumstances
reviewed when determining what "measures [to provide privacy]
should be deemed reasonable." [Fn. 8] We have recognized that
police do not have to compromise their safety to allow a defendant
a greater degree of privacy when making a phone call. For example,
in Kameroff v. State, [Fn. 9] we said that "an arrestee's right to
call an attorney is not absolute. Police officers certainly need
not jeopardize their own safety (or the safety of others) to allow
a prisoner to make a telephone call." [Fn. 10] Applying the test
in Farrell, if Goldberg's decision was reasonable, then keeping
Alexander handcuffed would not violate Alexander's right to consult
privately with counsel.
At the evidentiary hearing, Goldberg testified that he
kept Alexander's hands cuffed behind his back because he did not
trust Alexander. [Fn. 11] Goldberg testified that, based on eight
years as a police officer, he had general safety concerns when
dealing with intoxicated people in general because they are
unpredictable. But he also testified that he specifically
distrusted Alexander. In addition to being intoxicated (and, thus,
unpredictable), Alexander had been uncooperative, and was angry and
upset because he had been arrested and because his vehicle had been
impounded. Also, Judge Finn had reviewed part of the audiotape
that Goldberg inadvertently made of the DWI processing. She found
that Alexander's "demeanor when talking to [his] wife and when
talking to the officers [was] somewhere between aggressive and
obnoxious . . . ." [Fn. 12] Based on the testimony and the tape,
Judge Finn found that Goldberg kept Alexander "[hand]cuffed behind
his back for safety reasons. . . . And while the defendant claims
that the officer's presence had a chilling effect on his
conversation with counsel, to the court it sounded like the
defendant was simply posturing within the officer's earshot for the
benefit of the officer and the attorney." The record supports
Judge Finn's findings.
Alexander also argues that Goldberg intruded upon the
privacy of his consultation with his attorney because Goldberg tape
recorded Alexander's side of the conversation. However, we
rejected a similar argument in Kiehl v. State. [Fn. 13] In Kiehl,
we upheld the admissibility of the defendant's breath test even
though the police officer surreptitiously and intentionally
recorded Kiehl's conversation with his attorney. "Kiehl remained
oblivious [to] the recording" and thus "the surreptitious recording
resulted in no discernible impairment of Kiehl's consultation with
counsel." [Fn. 14] Alexander's position is similar to Kiehl's;
Alexander has not shown that his consultation with counsel was
impaired because Goldberg inadvertently recorded Alexander's side
of the conversation. Looking at all the circumstances,
Alexander has not shown that Judge Finn's findings are clearly
erroneous. Based on those findings, we agree with Judge Finn that
Goldberg did not violate Alexander's statutory right to confer with
counsel.
The judgment of the district court is AFFIRMED. [Fn. 15]
MANNHEIMER, Judge, dissenting.
I dissent from my colleagues' decision.
The defendant in this case, Gregory Alexander, was
arrested for driving while intoxicated and was taken to a police
substation. The arresting officer, Chris Goldberg, offered
Alexander the opportunity to call an attorney, but the officer
would not remove Alexander's handcuffs or even allow Alexander to
place his cuffed hands in front of him. Because Alexander could
not use his hands to hold the telephone, it was necessary for
Goldberg to stand directly next to Alexander and hold the phone to
Alexander's face during the entire conversation. The question is
whether this procedure was an undue infringement of Alexander's
right to speak with an attorney.
In a series of cases [Fn. 1], we have acknowledged that
arrestees are entitled to a modicum of privacy when they consult an
attorney following their arrest. At the same time, we have also
recognized that this right of privacy must be weighed against the
officer's need to maintain control of the arrestee and the
officer's need to observe the arrestee for the fifteen minutes
mandated by 13 AAC 63.040(a)(1) before asking the arrestee to take
a breath test. The trial judge in Alexander's case, District Court
Judge Natalie K. Finn, expressed understandable frustration that
judges are repeatedly required to apply these seemingly
contradictory policies when they assess the legality of DWI
processing procedures.
In Mangiapane v. Anchorage [Fn. 2] and in Kiehl v. State
[Fn. 3], we attempted to define a line of demarcation that would
resolve the tension between an arrestee's right to consult counsel
and a police officer's need to keep the arrestee under observation.
We held that an arrestee's right of privacy is not unduly infringed
merely because an officer remains nearby. Rather, the test is
whether the police "engaged in additional intrusive measures,
intrusions that convinced [the arrestee] that the [police] were
intent on overhearing and reporting [the arrestee's] conversations
with their attorney." [Fn. 4]
In Mangiapane, we concluded that the arrestee's right of
privacy was not violated when the officer stood ten to fifteen feet
away during the arrestee's conversation with the attorney. [Fn. 5]
But in Alexander's case, the officer's physical proximity to
Alexander and the attendant psychological effect of this
proximity were quite different. Officer Goldberg stood right
next to Alexander (approximately eighteen inches away), holding the
telephone receiver to Alexander's face while Alexander's hands
remained manacled behind his back. Not only did the officer
physically control Alexander's access to the telephone receiver,
but it was obvious to Alexander that the officer would overhear
everything Alexander said to his attorney.
Alexander in fact testified that, because of the
officer's presence, he felt that he could not truthfully answer his
attorney when the attorney asked him how much he had been drinking.
Alexander lied, saying that he had consumed only one drink. On the
basis of this false information, Alexander's attorney urged him to
submit to the breath test and to request an independent blood test. These tests ultimately
proved that Alexander was guilty of driving while intoxicated; the
breath test result was .12 percent blood alcohol, while the blood
test result was .106 percent.
Officer Goldberg testified that, if an arrestee can keep
the telephone receiver cradled between jaw and shoulder, he will
step away and afford the arrestee more privacy. But Alexander
could not do this; the receiver kept slipping and, because
Alexander's hands were manacled behind his back, he was unable to
retrieve and re-position the receiver. For this reason, Goldberg
stood directly next to Alexander and held the receiver to
Alexander's face.
I assume that Goldberg was only trying to help Alexander
and did not purposely arrange things so that he could overhear
Alexander's words. Nevertheless, Goldberg's good faith is not a
sufficient reason to uphold the abridgement of Alexander's privacy.
The test announced in our prior cases is an objective one: Did the
police engage in intrusive measures, aside from maintaining
physical proximity, that would convince a reasonable person in the
arrestee's position that the police were intent on overhearing and
reporting the attorney-client conversation?
Here, Goldberg saw that Alexander was finding it
impossible to cradle the telephone receiver between his jaw and his
shoulder, yet the officer refused to unshackle Alexander's hands or
even allow Alexander to move his hands to the front of his body.
Instead, Goldberg placed himself directly next to Alexander and
held the receiver to Alexander's face. In the absence of some
apparent reason for these extraordinary precautions, a person in
Alexander's position might well conclude that one of the officer's
aims was to overhear the attorney-client conversation. Indeed,
Alexander testified that Goldberg's presence constrained him from
speaking frankly with his attorney.
There is an alternative rationale for upholding Officer
Goldberg's conduct. Goldberg testified that, to ensure officer
safety, he and his fellow police officers are trained to keep all
arrestees handcuffed behind their backs.
I do not minimize the danger that police officers face on
a daily basis, especially from people who are angry and
intoxicated. As this court stated in Kameroff v. State: "Police
officers certainly need not jeopardize their own safety (or the
safety of others) to allow a prisoner to make a phone call." [Fn.
6] But we must not allow generalized claims of officer safety to
stand as a ready answer whenever an arrestee's rights are
restricted. A specific peaceable arrestee should not be denied the
right to a private conversation with their attorney based on
generalized concerns about how some hypothetical arrestee might
endanger officer safety.
When Alexander placed the phone call to his attorney,
Goldberg and Alexander were no longer in the field. They were at
a police substation a more controlled environment where Alexander
posed less of a danger and where, presumably, Goldberg could
quickly summon help if Alexander became unruly or violent.
Goldberg did testify that Alexander was uncooperative,
was unhappy about being arrested, and was especially unhappy about
the officer's decision to impound his car. But Goldberg did not
say that Alexander was unruly or violent, or that Alexander was
acting so erratically that Goldberg felt compelled to keep him
handcuffed behind his back.
In fact, the record reveals that Goldberg switched
Alexander's cuffs to the front of his body when Alexander had to
use the restroom, and that Goldberg removed Alexander's cuffs for
the independent blood test. This evidence suggests that Goldberg
did not believe he was endangering himself by allowing these short
intervals of less intensive restraint. It also suggests that there
was no pressing reason to deny Alexander one additional short
interval of reduced restraint, with his hands cuffed in front of
his body, so that he could make the telephone call to his attorney.
Arrestees, especially intoxicated arrestees, can be
unpredictable, and I can understand why Officer Goldberg, or the
police department in general, might adopt a policy of keeping all
DWI arrestees, even the most peaceable and submissive, handcuffed
behind their backs. But when a peaceable arrestee is brought to a
place of detention or to an established police facility, we should
no longer rely on generalized speculation about what some other
arrestees might do. Instead, the law should focus on the specific
circumstances of this particular arrestee's case. In Alexander's
case, the question is whether Alexander gave any indication that it
would be unsafe to allow him to handle the telephone himself. The
record indicates that the answer is no.
I say "indicates" because Judge Finn apparently upheld the
handcuffing on generalized concerns for officer safety; she and the
parties never specifically focused on the question of whether there
were case-specific reasons to keep Alexander handcuffed behind his
back during the telephone call. For this reason, I would remand
Alexander's case to the district court. The government should be
allowed to present evidence of any case-specific reasons why it was
prudent to keep Alexander handcuffed behind his back while he
conferred with his attorney.
If the government proves that there were articulable
reasons to believe that Alexander would pose an unacceptable danger
if his cuffed hands were switched to the front of his body during
the telephone call, then I would uphold the legality of the behind-
the-back restraint and the admissibility of the resulting breath
and blood tests. But if the government fails to present evidence
that Alexander was unruly or violent, that he was acting
unpredictably, or that his words or conduct gave Officer Goldberg
any other articulable reason to believe that it would be dangerous
to let Alexander handle the telephone, then I would rule that
Goldberg violated Alexander's right to consult his attorney in
relative privacy and that the district court should have granted
Alexander's motion to suppress the results of these chemical tests.
FOOTNOTES
Footnote 1:
Anchorage Municipal Code sec. 9.28.020.
Footnote 2:
Goldberg said he cuffed Alexander's hands in front for a short
period when Alexander had to use the restroom. Later, during the
blood test at the hospital, Goldberg had to remove the cuffs to
allow blood to be drawn.
Footnote 3:
682 P.2d 1128 (Alaska App. 1984).
Footnote 4:
659 P.2d 1206 (Alaska 1983).
Footnote 5:
See Farrell v. Anchorage, 682 P.2d at 1130 ("Copelin . . .
makes it clear that, in order to comply with the statutory mandate
of AS 12.25.150(b), police must make a reasonable effort to
accommodate an arrestee's right to consult privately with counsel
once a call has been made".); see also Mangiapane v. Anchorage, 974
P.2d 427, 429 (Alaska App. 1999); Kiehl v. State, 901 P.2d 445, 446
(Alaska App. 1995); Reekie v. Anchorage, 803 P.2d 412, 414 (Alaska
App. 1990); Anchorage v. Marrs, 694 P.2d 1163, 1165 (Alaska App.
1985) (accord).
Footnote 6:
Mangiapane, 974 P.2d at 429 (quoting Kiehl, 901 P.2d at 447).
Footnote 7:
Id.
Footnote 8:
Farrell, 682 P.2d at 1131 ("Precisely what measures should be
deemed reasonable will necessarily depend upon the circumstances of
the individual case.") (citing Copelin, 659 P.2d at 1212).
Footnote 9:
926 P.2d 1174 (Alaska App. 1996).
Footnote 10:
Id. at 1178.
Footnote 11:
As noted above, Goldberg also said that police department
policy requires that officers keep DWI arrestees handcuffed.
Footnote 12:
At one point during the processing, Alexander, before calling
the attorney, told Goldberg that, "I've been really super polite,
but I am getting pissed."
Footnote 13:
901 P.2d at 445.
Footnote 14:
Id. at 447.
Footnote 15:
Appellee urges this court to reexamine its precedents in this
area and hold that suppression of any breath or blood alcohol test
results is only warranted when there has been a total denial of the
arrestee's right under Copelin and AS 12.25.150(b) to consult
privately with an attorney. We find it unnecessary to address this
contention given our holding.
FOOTNOTES (Dissent)
Footnote 1:
See Mangiapane v. Anchorage, 974 P.2d 427 (Alaska App. 1999);
Kiehl v. State, 901 P.2d 445 (Alaska App. 1995); Reekie v.
Anchorage, 803 P.2d 412 (Alaska App. 1990); Farrell v. Anchorage,
682 P.2d 1128 (Alaska App. 1984).
Footnote 2:
974 P.2d at 429.
Footnote 3:
901 P.2d at 447.
Footnote 4:
Mangiapane, 974 P.2d at 429 (quoting Kiehl, 901 P.2d at 447).
Footnote 5:
See id.
Footnote 6:
926 P.2d 1174, 1178 (Alaska App. 1996).
