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Pearce v. State (4/19/2002) ap-1799
Pearce v. State (4/19/2002) ap-1799
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
DEWELL WAYNE PEARCE, )
) Court of Appeals No.
A-7445
Appellant, )
Trial Court No. 3VA-94-139 Cr.
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1799 April 19, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Valdez, Joel H. Bolger, Judge.
Appearances: J. Randall Luffberry, Palmer,
for Appellant. Douglas H. Kossler, 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.
In the summer of 1994, Dewell Wayne Pearce tried to
abduct a young woman at gunpoint. He was subsequently convicted
of attempted kidnapping, third-degree assault, and third-degree
weapons misconduct (felon in possession of a concealable
firearm).1
In this appeal, Pearce argues that the superior court
should have suppressed one piece of the States evidence: an
apparent suicide note, handwritten by Pearce, that was discovered
on his boat during the execution of a search warrant. The
warrant authorized the police to search for a handgun and
holster, ammunition, and possible photographs of the handgun.
Pearce points out that the handwritten note did not fall within
any of these categories, and he therefore argues that the officer
who found the note violated Pearces privacy rights when he read
the note (and, after reading it, seized it).
We reject Pearces argument because the trial judge
found that Pearce had no subjective expectation of privacy in the
note, and that finding is not clearly erroneous.
Underlying facts
On July 21, 1994, a young woman, L.W., was
rollerblading alongside the Richardson Highway between
Valdez and Glennallen. A faded red Chevrolet pickup
truck passed her, then turned around and passed her
again. On this second pass, the driver Pearce asked
L.W. how far she intended to skate. Pearce proceeded
down the highway, then turned around and passed L.W. a
third time. Finally, Pearce turned around and passed
L.W. a fourth time. This fourth time, Pearce stopped
his truck in front of L.W., pointed a long-barreled
revolver at her, and ordered her to get into the truck;
Pearce threatened to kill L.W. if she did not comply.
L.W. stalled for time. When she saw another vehicle
approaching, she skated toward it. Pearce fled while
L.W. was flagging down this other car.
Having reached safety, L.W. immediately wrote
down the portion of the red trucks license plate number
that she remembered: 4 6 7 3. Using this partial
number and L.W.s description of the truck, the police
located Pearces truck later that evening in a
subdivision outside Valdez. However, the police did
not find Pearce, for he had left on an overnight
fishing trip. Pearce was arrested on his boat after he
returned the next day.
L.W. identified Pearces truck as the truck
that had followed her on the highway. She also
positively identified Pearce from a photographic line-
up.
The discovery of the apparent suicide note
As part of the investigation of this case,
the superior court issued a search warrant for Pearces
boat. This warrant authorized the police to search for
the revolver and holster, ammunition for the revolver,
and any photographs depicting the revolver.
While searching for these items, Trooper
Burke Waldron examined a duffel bag that was resting on
a dinette table in the boat. When he picked up the
duffel bag, he saw a handwritten note lying face-up on
the table, underneath where the duffel had been
resting. This note consisted of one 8- by 11-inch
sheet of paper, filled with handwriting large enough to
cover the whole page. The note read:
Dearest Mom, Dad, & Granny,
I Love you with all my heart. Please
forgive me for taking my own life, but I just
had too. I Hope to see you in Heaven. Tell
the family that my last thoughts were of you.
My Heart goes out to you.
Love Wayne
[xxx xxx xxxx]2
My Folks
Please Call them
Waldron read the note and concluded that
Pearces apparent suicide threat was relevant
to the criminal investigation. He therefore
seized the note.
The litigation of Pearces motion to suppress the note
Before trial, Pearce asked the superior court
to suppress the handwritten note, arguing that
Waldrons seizure of the note was not authorized by
the warrant. The State responded that the note
was found in plain view and that its potential
importance (as an indication of Pearces guilty
conscience) was evident from a cursory reading.
Superior Court Judge pro tempore Joel H.
Bolger held a hearing on Pearces motion. Only one
witness testified at this hearing: Trooper
Waldron. He described his discovery of the note
and his decision to seize it after he read it.
Pearces attorney did not actively dispute
Waldrons version of events, but he argued
strenuously that Waldron exceeded his authority
under the warrant when he read the handwritten
note. The defense attorney pointed out that
Waldron could immediately see that this
handwritten note was neither a handgun, a holster,
ammunition, or a photograph (i.e., that the note
was not among the items listed in the search
warrant). The defense attorney argued that, under
the plain view exception to the warrant
requirement, the State must prove that the
relevance of the unlisted item was immediately
apparent to the police. Pearces attorney
contended that the relevance of the handwritten
note was not immediately apparent because, as
Waldron conceded on the stand, it took him about
five seconds to read the note and realize that it
spoke of suicide. According to the defense
attorney, Waldrons act of reading the note
constituted an additional and warrantless
intrusion into Pearces privacy.
After hearing Waldrons testimony (and after
examining the note), Judge Bolger denied Pearces
motion on several grounds.
Judge Bolger concluded that Pearce had no
subjective expectation of privacy in the note. The
judge pointed out that the note was found lying face-up
on a table in Pearces boat. Additionally, even though
the main portion of the note was addressed to members
of Pearces family, the closing notation i.e., the
telephone number and the request, My Family; Please
Call them was clearly addressed to whoever happened to
find the note. From this, Judge Bolger concluded that
Pearce left the note on the boat, hoping and expecting
that it would be discovered and read by one or more
third persons.
This finding was sufficient, by itself, to
justify Judge Bolgers denial of Pearces suppression
motion. However, Judge Bolger also concluded that the
handwritten note was seizable under the plain view
exception to the warrant requirement. The judge
pointed out that Waldron was executing a search warrant
on Pearces boat, and the judge found that it was
reasonable for Waldron to examine the duffel bag as a
potential place for finding the items listed in the
warrant. Pearces handwritten note was revealed when
Waldron lifted the duffel bag from the table; thus, it
lawfully came into Waldrons view. Finally, Judge
Bolger ruled that Waldrons act of reading the note was
not an additional search for Fourth Amendment purposes.
The evidence supports Judge Bolgers finding that Pearce
had no subjective expectation of privacy in the
handwritten note
Before a person can complain of a search or
seizure conducted by the government, the person must
establish that they had a protected privacy interest in
whatever was searched or seized. The test for
assessing whether a person has a protected privacy
interest (for search and seizure purposes) was first
enunciated by Justice John Harlan in his concurring
opinion in Katz v. United States:
[T]here is a twofold requirement, first[,]
that a person have exhibited an actual
(subjective) expectation of privacy and,
second, that the expectation be one that
society is prepared to recognize as
reasonable.
Katz v. United States, 389 U.S. 347, 361; 88
S.Ct. 507, 516; 19 L.Ed.2d 576, 588 (1967).
In Smith v. State, 510 P.2d 793,
797 (Alaska 1973), the Alaska Supreme Court
adopted this test as the appropriate standard
for determining what constitutes a protected
privacy interest under the Alaska
Constitution. Thus, Pearces rights under
both the federal and the state constitutions
hinge on whether (1) he subjectively expected
the handwritten note to remain private, and
(2) if so, whether that expectation was
reasonable.
Typically, litigation in this area
commences with the assumption or the
unrebutted proof that the defendant had a
subjective expectation of privacy in the item
searched or seized; the disputed question is
whether the defendants expectation of privacy
was reasonable. Pearces case is different.
Here, Judge Bolger found that Pearce did not
expect the handwritten note to remain
private.
If this finding is upheld, then
Pearce loses this appeal regardless of
whether the note was independently seizable
under the plain view exception to the warrant
requirement. The search or seizure of an
object, even from a defendants house or boat,
does not violate the defendants Fourth
Amendment rights if the defendant can not
demonstrate a protected privacy interest in
that object. As the United States Supreme
Court said in Katz,
[T]he Fourth Amendment protects people, not
places. What a person knowingly exposes to
the public, even in his own home or office,
is not a subject of Fourth Amendment
protection.
389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d
at 582. Thus, if Pearce lacked a subjective
expectation of privacy in the handwritten
note, the troopers act of reading and seizing
the note did not violate Pearces Fourth
Amendment rights.
As noted above, the defendants
subjective expectation of privacy is
typically not disputed, and so this court is
most often asked to determine whether a
subjective expectation of privacy was
reasonable. This is a question of law which
we decide de novo. But whether a defendant
indeed had a subjective expectation of
privacy is a question of fact. Because this
is a question of fact, we defer to the trial
judges finding. In Dye v. State, 650 P.2d
418, 420 n.5 (Alaska App. 1982), we held that
a trial judges finding on this issue will be
affirmed on appeal unless the finding is
clearly erroneous. Federal courts follow the
same rule.3
On appeal, Pearce acknowledges that
Judge Bolger found that he had no subjective
expectation of privacy with respect to the
handwritten note, but Pearce argues that
Judge Bolgers finding was really only a guess
and that the judges conclusion is not
supported by the evidence. We disagree.
Although the main portion of the
note is a letter to Pearces relatives, the
last portion of the note is addressed to an
unknown audience indicating that Pearce did
not expect his family to be the first readers
of the note. As Judge Bolger pointed out,
Pearces concluding notation his plea that
the reader(s) of the note call his family is
strong evidence that Pearce expected and
hoped that other people would find the note,
read it, and forward his message. The fact
that Pearce placed the note on the table of
his boat, rather than mailing it to his
family or taking other steps to hide it from
the eyes of strangers, corroborates Judge
Bolgers conclusion that Pearce wanted the
note to be found and read by third parties.
Pearce presents an alternative
argument in which he likens his note to a
will. That is, Pearce argues that even if
Judge Bolger could reasonably conclude that
he expected other people to read his note, he
did not intend for the note to be read until
after he was dead, and thus he still had a
subjective expectation of privacy in the note
while he lived.
This is an intriguing argument, but
again we must uphold Judge Bolgers finding
unless it is shown to be clearly erroneous.
Pearces argument fails because it rests on
viewing the facts in the light most favorable
to Pearce.
First, Pearces argument is premised
on the assumption that the handwritten note
reflected Pearces honest intention to kill
himself. No evidence was offered on this
point at the pre-trial hearing, and this
conclusion is not self-evident. People who
are being investigated for serious crimes
have been known to stage an apparent suicide
in an attempt to deceive the authorities into
abandoning the investigation. For example,
in Sharp v. State, 837 P.2d 718 (Alaska App.
1992), a defendant accused of sexually
abusing several minors fled Alaska after
manufacturing an apparent suicide in
Turnagain Arm.4 (Sharp enlisted his parents
as accomplices in this endeavor: see Jean
and Homer Sharp v. State, Alaska App.
Memorandum Opinion No. 2370 (March 11,
1992)).
The evidence presented at Pearces
pre-trial hearing was consistent with the
possibility that Pearces note was part of a
similar plan a scheme in which Pearce would
disappear and his note would lead the
authorities to conclude that he had committed
suicide in the ocean. If this was Pearces
intention when he penned the note, then he
obviously intended people to read the note
well before his death.
Alternatively, Pearces note might
have been a cry for help not a reflection of
a true intent to kill himself, but rather a
way of getting people to notice his distress.
But a cry for help works only if other people
hear the cry. Thus, this alternate
interpretation of the note also supports
Judge Bolgers conclusion that Pearce wanted
people to read the note and, thus, that he
had no subjective expectation of privacy.
But even if Pearces note reflected
an honest intention to kill himself, Judge
Bolgers finding that Pearce had no subjective
expectation of privacy in the note is still
supported by the evidence. Taking the words
of the note at face value, Pearce intended to
kill himself and he wanted his family to know
that he still loved them. It is possible
that, after Pearce left the note in his boat,
his plan to kill himself was delayed or he
ultimately repented the idea of suicide.
Nevertheless, the evidence still supports the
inference that Pearce wrote the note and then
purposefully left it where other people would
find it and read it. There was no evidence
that he ever took steps to retrieve the note
and re-assert his privacy interests.
At trial, Pearce offered a
different explanation of the note. Pearce
testified that he wrote the note several
months earlier, when he was feeling
despondent over the breakdown of his
marriage. But Pearce did not offer this
testimony to Judge Bolger at the pre-trial
hearing, nor did Pearce ask Judge Bolger to
re-open the suppression issue after he
offered this alternative explanation at
trial. Moreover, we are obliged to view the
evidence in the light most favorable to Judge
Bolgers ruling, not the light that best
undermines it.5
In conclusion, the evidence amply
supports Judge Bolgers finding that Pearce
lacked a subjective expectation of privacy in
the handwritten note that Trooper Waldron
found on the boat. We therefore uphold the
judges finding. And because Pearce had no
subjective expectation of privacy, we
conclude that Waldrons reading and seizure of
this note did not violate Pearces Fourth
Amendment rights.
Given our disposition of this
issue, we need not reach these other issues
briefed by the parties: (1) Pearces
assertion that Waldron picked up the note
from the table to bring it within comfortable
reading distance and, by doing so, exceeded
the limits of plain view (an issue that was,
in any case, not preserved); (2) Pearces
assertion that Waldrons act of reading the
note (as opposed to merely observing it)
exceeded the limits of plain view; and (3)
the States assertion that even if Waldron
violated Pearces Fourth Amendment rights by
reading the note, any error was harmless
beyond a reasonable doubt, given the minor
role that this evidence played at Pearces
trial.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.300(a)(1)(C), AS 11.41.220(a)(1), and AS
11.61.200(a)(1), respectively.
2 In the original note, this bracketed material is a
telephone number. We have masked the digits of this
telephone number to preserve the privacy of Pearces family.
3 See United States v. Hayes, 120 F.3d 739, 743 (8th Cir.
1997); United States v. Garzon, 119 F.3d 1446, 1449
(10th Cir. 1997); United States v. Taylor, 90 F.3d 903,
908 (4th Cir. 1996); United States v. Blanco, 844 F.2d
344, 349 (6th Cir. 1988).
4 See id. at 720.
5 See Schaffer v. State, 988 P.2d 610, 612 (Alaska App.
1999).
