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Moradilla v. State (2/23/01) ap-1725
Moradilla v. State (2/23/01) ap-1725
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HENRY J. MORADILLA, )
) Court of Appeals No. A-7490
Appellant, ) Trial Court No. 2BA-99-082 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1725 February 23, 2001]
)
Appeal from the Superior Court, Second Judicial
District, Barrow, Michael I. Jeffery, Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for Appellant. John A. Scukanec, 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.
MANNHEIMER, Judge.
The issue in this case is whether the district court
should have issued a warrant to search Moradilla's residence based
primarily on an arrestee's statements that he and Moradilla were
engaged in a partnership to sell methamphetamine. Moradilla argues
that the arrestee's statements were insufficiently corroborated to
meet the "veracity" or "credibility" prong of the Aguilar Spinelli
test. [Fn. 1] The State argues that the arrestee's statements were
self-verifying because the arrestee was subjecting himself to
criminal liability. We conclude that, under the circumstances
presented here, the arrestee's statements were not against the
arrestee's interests to a degree sufficient to satisfy
Aguilar Spinelli's second prong. Accordingly, we hold that the
search warrant should not have been issued, and we reverse
Moradilla's conviction.
Facts of the case
On February 16, 1999, the North Slope Borough Police
executed a search warrant on the residence of Jorge Moreno in
Barrow. The police were investigating Moreno's potential
involvement in the sale of methamphetamine, and they discovered
drugs in the residence.
While the police were still inside the residence, and
after the drugs were found, Lieutenant Kelly Cox interviewed Moreno.
Cox urged Moreno to confess his involvement in the sale of drugs.
She falsely assured him that he would be in no greater trouble for
selling drugs than he already faced for possessing them. [Fn. 2]
Moreno made various inculpatory statements during this interview.
The next day, Moreno was re-interviewed, and at that time he told
the police that he was involved in a drug-selling partnership with
the appellant in this case, Henry J. Moradilla.
Moreno asserted that Moradilla received the
methamphetamine in packages that were sent by express mail from
California. Moreno said that he had been at Moradilla's house on
numerous occasions, re-packaging the methamphetimane for sale at
$100 per package. Moreno told the police that Moradilla himself was
a drug user, and that he kept methamphetamine on his person and at
his house. Moreno predicted that if the police searched Moradilla's
house, they would find quantities of cash and drugs. The
methamphetamine, Moreno said, was stashed in cabinets, in jars,
under the bed, and in an eyeglass case next to Moradilla's computer.
Based on Moreno's tip, the police applied for a warrant
to search Moradilla's residence. When the magistrate asked what
steps the police had taken to verify Moreno's assertions, the
officer told the magistrate that the police had corroborated
Moreno's description of Moradilla's residence address and yard. In
particular, Moradilla's employer verified that Moradilla lived at
the same address that Moreno had mentioned, and when the police
drove by this house, they observed a snow machine and an old vehicle
that Moreno had described.
The court issued the warrant, and the police performed a
search of Moradilla's residence that same day. They recovered 14.1
grams of methamphetamine as well as cash, drug paraphernalia,
bindles, baggies, express mail receipts, a digital scale measuring
in tenths of grams, and firearms.
Moradilla was indicted for third-degree misconduct
involving a controlled substance (sale of methamphetamine). [Fn.
3] After the superior court denied his motion to suppress the
fruits of the search warrant, Moradilla entered a Cooksey plea [Fn.
4], reserving the right to appeal the denial of his motion to
suppress.
Why we conclude that the State failed to satisfy the
second prong of the Aguilar Spinelli test
When the government applies for a search warrant and
relies on information obtained from an informant who does not
personally appear before the magistrate, the Aguilar Spinelli rule
requires the government to establish (1) the basis of the
informant's knowledge and (2) reason to believe that the informant
is a trustworthy source of information. As noted above, Moreno
asserted personal knowledge of the events he described to the
police, and Moradilla essentially concedes that the State satisfied
the "basis of knowledge" part of the Aguilar Spinelli test. This
appeal centers on the second aspect of the Aguilar Spinelli test:
whether the State established that Moreno was a credible informant.
An informant's credibility can be established by
independent evidence corroborating the informant's assertions. [Fn.
5] But here, the only independent evidence corroborating Moreno's
accusations was (1) the address of Moradilla's house and (2) the
description of the two vehicles sitting in his yard. Verification
of such "public facts" and "wholly innocuous details" does not satisfy
the Aguilar Spinelli test. [Fn. 6] For instance, in Stam v. State
[Fn. 7], we held that police corroboration of an informant's
description of "the location and physical layout of [the suspect's]
property" was insufficient to establish the informant's credibility
under the Aguilar Spinelli test.
Indeed, the State does not argue that Moreno's credibility
was established through corroborative evidence. Instead, the State
contends that Moreno's statements were against his own penal
interest and were therefore worthy of belief even without
independent corroboration.
The State points out that Moreno's statements during the
February 17th interview incriminated him to a far greater extent
than anything he had said to the police when they searched his house
the day before. In particular, Moreno admitted that he was
Moradilla's partner in the ongoing sale of methamphetamine, and he
offered various details of how the business was run. Because of
these statements, Moreno faced prosecution for a class B felony
(distributing methamphetamine or possessing it for the purpose of
distribution) rather than a class C felony (possessing
methamphetamine for personal use). [Fn. 8]
But when we assess whether Moreno's statements should be
deemed inherently trustworthy for purposes of satisfying the second
prong of the Aguilar Spinelli test, the crucial factor is not
whether Moreno's statements actually tended to subject him to
criminal prosecution and punishment, but rather whether Moreno
perceived his statements as exposing him to significant criminal
punishment. As this court explained in Adkinson v. State, the
"fundamental question is whether the informant would have perceived
his remarks as highly incriminating." [Fn. 9]
As we have already explained, when Moreno was first
interviewed, he was falsely told that he faced no greater criminal
liability if he admitted selling drugs rather than merely possessing
them. Because Moreno received this assurance from a police officer,
it would seem that Moreno would apprehend no danger in later telling
the police about his methamphetamine partnership with Moradilla.
That is, Moreno would not perceive that his statements might subject
him to additional criminal liability.
The State attempts to avoid this inference by pointing out
that, when Moreno was interviewed on February 17th, the officers
conducting the interview were careful to tell Moreno that they could
make no promises of lenient treatment in return for the information
he might furnish. But even though Moreno knew he could not expect
a firm promise of lenient treatment, this does not mean that he
might not hope for lenient treatment in exchange for his
cooperation. And, more important, the officers who interviewed
Moreno on February 17th never told him that he had been misinformed
the previous day, when the officer assured Moreno that a confession
to sale of drugs would not subject him to any additional criminal
liability.
Finally, the State relies on prior Alaska decisions which
declare that an appellate court should accord "great deference" to
a magistrate's decision to issue a search warrant. [Fn. 10] As our
supreme court said in Metler v. State, "the resolution of doubtful
or marginal cases in this area should be largely determined by the
preference ... accorded to warrants." [Fn. 11] When, as in this
case, the issue is whether the allegations contained in a search
warrant application are sufficient to establish probable cause, an
appellate court will not reverse the magistrate's ruling unless it
constitutes an abuse of discretion. [Fn. 12]
But despite this deference, we are obliged to make sure
that search warrant applications comply with the requirements of the
Aguilar Spinelli rule. As the United States Supreme Court said in
Spinelli v. United States,
In [striking down this search warrant], we do
not retreat from the established proposition[] that [a magistrate's]
determination of probable cause should be paid great deference by
reviewing courts[.] But we cannot sustain this warrant without
diluting important safeguards that assure that the judgment of a
disinterested judicial officer will interpose itself between the
police and the citizenry.
393 U.S. at 419, 89 S.Ct. at 590-91 (citation omitted).
Having examined the record in this case, we conclude that
the State's search warrant application failed to establish Moreno's
credibility as a hearsay informer, and thus the search warrant
should not have been issued. The superior court should have granted
Moradilla's suppression motion. Accordingly, the judgement of the
superior court is REVERSED.
FOOTNOTES
Footnote 1:
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). And see State v. Jones, 706 P.2d 317, 324-25
(Alaska 1985) (holding that, as a matter of state law, the Aguilar-
Spinelli test continues to govern the evaluation of hearsay
information offered to support a search or seizure).
Footnote 2:
According to the tape recording of their interview, Cox told
Moreno: "Let me tell you this. You understand that [we have found]
drugs ... . You're not going to get in any more trouble if you were
selling them. So if you're just [denying] that because you think
you're going to get in more trouble, you're not. I'd rather know
the truth. ... So, ... [w]ho do you give it to?
Footnote 3:
AS 11.71.030(a).
Footnote 4:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 5:
See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985); Schmid
v. State, 615 P.2d 565, 576-77 (Alaska 1980).
Footnote 6:
Lloyd v. State, 914 P.2d 1282, 1288 (Alaska App. 1996) (quoting
Carter v. State, 910 P.2d 619, 624 (Alaska App. 1996)).
Footnote 7:
925 P.2d 668, 671 (Alaska App. 1996).
Footnote 8:
Compare AS 11.71.030(a)(1) with AS 11.71.040(a)(3)(A).
Methamphetamine is a Schedule IIA substance; see AS 11.71.150(e)(2).
Footnote 9:
869 P.2d 486, 491 (Alaska App. 1994) (quoting Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment (1st ed.
1978), sec. 3.3(c), Vol. 1, p. 531). The same quote is found in the
current (3rd) edition of LaFave, sec. 3.3(c), Vol. 2, p. 134.
Footnote 10:
See, e.g., Metler v. State, 581 P.2d 669, 673 (Alaska 1978);
Lewis v. State, 862 P.2d 181, 185 (Alaska App. 1993); State v.
Bianchi, 761 P.2d 127, 129-30 (Alaska App. 1988); State v. Conway,
711 P.2d 555, 557 (Alaska App. 1985).
Footnote 11:
581 P.2d at 673 (quoting United States v. Ventresca, 380 U.S.
102, 109; 85 S.Ct. 741, 746; 13 L.Ed.2d 684, 689 (1965)).
Footnote 12:
See State v. Bianchi, 761 P.2d 127, 130 (Alaska App. 1988).
