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Macsurak v. Municipality of Anchorage (1/19/01) ap-1713
Macsurak v. Municipality of Anchorage (1/19/01) ap-1713
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
RODNEY A. MACSURAK, )
) Court of Appeals No. A-7557
Appellant, ) Trial Court No. 3AN-99-2845 Cr
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1713 January 19, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Natalie K. Finn, Judge.
Appearances: Pamela Dale, 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.]
MANNHEIMER, Judge.
In this case, we are asked to decide whether police
officers could reasonably rely on an apartment manager's assertion
that the occupant of an apartment had been evicted and was now both
drunk and trespassing. We conclude that, under the circumstances
of this case, the officers could reasonably rely on the apartment
manager's statement and thus could reasonably enter the apartment
to investigate the situation.
On April 7, 1999, police officers were summoned to an
apartment building on 36th Street in Anchorage. According to the
police dispatch, there was a drunk and disorderly person in
Apartment 1. When the officers arrived, the apartment manager
informed them that Rodney Macsurak was inside Apartment 1. The
manager also told the officers that Macsurak had been evicted and
that he did not know why Macsurak had returned to the apartment.
When the officers approached Apartment 1, they saw a
pickup truck parked outside the apartment. This truck was piled
with furniture and other belongings. The engine was warm.
The door to the apartment was standing open. Looking
through the door, the officers could see that the living room
contained no furniture and that there were no decorations or other
furnishings on the walls of the living room and the adjacent
hallway. In the words of one of the officers, "the apartment
[looked] vacant." Nevertheless, the officers could hear noise coming
from within the apartment, so they knocked and announced their
presence. In response, Macsurak came into the living room, and the
officers walked through the door to speak to him.
While the officers spoke with Macsurak, they observed
various indications that he was intoxicated. Ultimately, the
officers arrested Macsurak for driving while intoxicated. [Fn. 1]
Macsurak later pleaded no contest to this charge, reserving his
right to challenge the legality of the police officers' entry into
the apartment. [Fn. 2]
In this appeal, Macsurak asserts that he was the lawful
occupant of the apartment and that, therefore, the apartment manager
could not authorize the police to enter the apartment. Macsurak
argues in the alternative that even if the apartment manager was
authorized to let the police enter the apartment, this is irrelevant
because the manager never actually asked the officers to go into
Apartment 1.
We note that, in the district court proceedings, Macsurak
argued that he was still the lawful occupant of the apartment
because, even though the manager had commenced eviction proceedings,
Macsurak had cured the violations of his rental agreement and, as
a consequence, his tenancy had been extended until the end of April.
The evidence is perhaps inconclusive on this point. But
we need not decide whether Macsurak continued to be the lawful
tenant of the apartment. Even assuming this to be true, the
officers' entry into the apartment would still be legal if, based
on the apartment manager's statements, the officers reasonably
believed that Macsurak had been evicted and that he had no further
right to occupy the premises. [Fn. 3]
District Court Judge Natalie K. Finn held a hearing on
this issue and concluded from the evidence
that the officers reasonably thought that
[Macsurak] had been evicted from the apartment,
and they [entered the apartment] on that basis. ... [T]he
manager's statement about [Macsurak's] having been evicted was
corroborated by the truck with furniture and belongings in it, and
by the complete absence of furniture or other sign of occupancy in
the apartment. [The officers] confronted ... an apparent trespasser
in [the] apartment, not a person authorized to be there.
"Denial of Motion to Suppress" dated August 25, 1999, page 1.
On appeal, Macsurak argues that the police could not
reasonably rely on the manager's statement that Macsurak had been
evicted. He contends that the circumstances were, at most,
ambiguous, and thus the police were under a duty to make further
inquiry before entering the apartment.
In particular, Macsurak notes that the apartment manager
referred to him as a "tenant", and that this description is echoed
in the police report. But the manager also told the police that
Macsurak had been evicted and that he did not know what Macsurak was
doing in the apartment. Under these circumstances, the district
court could reasonably conclude that when the apartment manager said
"tenant", he was referring to the fact that Macsurak was a recent,
former tenant. Moreover, as Judge Finn noted in her decision, this
interpretation of the manager's statement was corroborated by the
officers' own observations that the apartment contained no
furniture, and that a nearby pickup truck was piled with furniture
and other belongings.
Professor LaFave addresses a similar situation in his
treatise on search and seizure law:
[If] a landlord flatly asserts that [a] tenant
has been evicted and this assertion is rendered plausible by the
fact that [the landlord] has already moved the furnishings into
another apartment, it certainly is not necessary for the police to
file a quiet title suit for the purpose of ascertaining whether the
tenant still retains some possessory interest in the premises.
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment (3rd ed. 1996), sec. 8.3(g), Vol. 3, pp. 747-48 (internal
quotation marks omitted).
We therefore agree with Judge Finn that, under the
circumstances of this case, the police reasonably relied on the
apartment manager's assertion that Macsurak had been evicted and
that he had no further right to be in the apartment.
Macsurak next argues that, even if the police reasonably
believed that Macsurak had been evicted and that the apartment
manager now controlled the apartment, the officers' entry into the
apartment was still illegal because the manager never expressly gave
them permission to enter. This argument overlooks several important
aspects of the situation.
The police had been summoned to the apartment building to
deal with a person who was reported to be drunk and disorderly.
When the officers arrived, the apartment manager identified Macsurak
as the person inside Apartment 1; he told the officers that Macsurak
had been evicted and that he did not know why Macsurak was inside
the apartment. Judge Finn found that the manager's consent to the
entry was implicit under these circumstances:
To the extent that [the] officer[s]
need[ed] the consent of [the] manager to enter
an apparently vacant apartment to [investigate] a person who has
entered there without authority, the court finds that consent was
given for the officers to go to the apartment and address the
problem. The door was open, the person [inside] was apparently an
evicted former tenant, and the officers proceeded only as far as the
living room [i.e., the room immediately inside the door].
"Denial of Motion to Suppress" dated August 25, 1999, pages 1-2.
To overturn this finding of fact on appeal, Macsurak must
show that it is clearly erroneous. [Fn. 4] We have reviewed the
evidence presented in the district court, and we conclude that the
evidence supports Judge Finn's finding.
In sum, we uphold the district court's findings (1) that
the police officers reasonably relied on the apartment manager's
statement that Macsurak had been evicted from the apartment, and (2)
that the apartment manager implicitly authorized the officers to
enter the apartment to find out what Macsurak was doing there.
Given these findings, Judge Finn properly denied Macsurak's
suppression motion.
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
Anchorage Municipal Code sec. 09.28.020(A).
Footnote 2:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 3:
See Nix v. State, 621 P.2d 1347, 1350 (Alaska 1981).
Footnote 4:
See Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991).
