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Magee v. State (5/23/2003) ap-1876
Magee v. State (5/23/2003) ap-1876
NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BETTY J. MAGEE, )
) Court of Appeals No.
A-8184
Appellant, )
Trial Court No. 3PA-01-074 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1876 May 23, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Verne E. Rupright, Rupright &
Foster, LLC, Wasilla, for Appellant. Terisia
K. Chleborad, 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 this case, a judicial officer issued what he called
a contingent warrant that authorized the police to search Betty
Magees residence if a certain pre-condition was fulfilled. When
the police applied for this warrant, they were searching for a
meth lab that is, a site for illegally manufacturing
methamphetamine. The officer who applied for the warrant conceded
that the police currently lacked sufficient justification to
search Magees residence. However, the officer argued and the
issuing magistrate agreed that there would be sufficient
justification for a search of Magees residence if the police
first searched another location (a location for which they had a
normal warrant) and found additional incriminatory evidence
there. The magistrate therefore issued a warrant that authorized
the police to search Magees residence contingent upon the police
first searching the other location and finding evidence of either
first-degree or second-degree misconduct involving a controlled
substance.
The question is whether such a warrant violates the
Fourth Amendment to the United States Constitution. As we
explain in more detail below, we conclude that this search
warrant is unconstitutional because the contingent event that
triggered the officers authority to conduct the search the
finding of incriminatory evidence at the other location was not
defined precisely enough to assure judicial control over the
search process.
Underlying facts
In late 2000, the Matanuska-Susitna Narcotics
Team was investigating a possible meth lab at the
residence of Donald Wares. According to information
gathered by the police, Wares had been purchasing or
otherwise accumulating large quantities of chemicals
that, in combination, could be used to manufacture
methamphetamine.
Wares lived in a semi-rural part of Wasilla,
on acreage located at 3998 Pittman Road. Waress
property adjoined Magees, who owned acreage at 3900
Pittman Road.
Wares had certain connections to the Magee
property. He was a friend of Robert Magee, who the
police mistakenly believed was Betty Magees son.
(Robert is, in fact, Magees former brother-in-law.)
The police had information that Robert Magee had
accompanied Wares on one occasion when Wares purchased
toluene, a solvent that can be used in the manufacture
of methamphetamine. And the address on Waress vehicle
registration was Magees address (3900 Pittman Road)
instead of his own address (3998 Pittman Road).
On January 2, 2001, the police applied for a
warrant to search Waress property (3998 Pittman). The
validity of that warrant is not contested here.
However, at the same time, the police applied for a
contingent warrant to search Magees property (3900
Pittman).
The officer who applied for these two
warrants forthrightly told the magistrate that he did
not believe that the police currently had sufficient
information to justify a search warrant for Magees
property. However, the officer argued that if the
police searched Waress property and found evidence of a
meth lab, then a search warrant for Magees property
would be justified. Specifically, the officer argued
that the discovery of the meth lab at Waress property,
combined with Waress association with Robert Magee and
his other connections to the Magee property, would
establish probable cause to believe that meth-making
supplies, or illegal precursor chemicals, or paperwork
documenting the illegal operation would be found on the
Magee property.
The magistrate agreed that if the police
found a meth lab at Waress property, or even evidence
of significant precursors of methamphetamine, this
would establish sufficient justification for a search
of Magees property. The magistrate declared that he
would issue the contingent warrant.
However, the proposed warrant prepared by the
police stated that the search of Magees property could
take place if they found [any] evidence of illegal drug
activity at 3998 Pittman Road (i.e., at Waress
property). The magistrate declined to issue the
warrant with that wording:
The Court: Contingent upon finding
evidence of ... illegal drug activity I
think thats a little broad. I mean, if you
find two joints at [Waress property], thats
illegal drug activity, but ... thats
certainly not enough to [justify the
requested search of Magees property]. [The
warrant will be contingent on your finding]
evidence of misconduct involving a controlled
substance in the ... second or first degree
at [Waress property].
Accordingly, the magistrate drew a line
through the words illegal drug activity and
wrote MICS 2 or 1 (misconduct involving a
controlled substance in the second or first
degree). That is, the magistrate authorized
the police to search Magees property
contingent upon their finding some evidence
of either first-degree or second-degree
controlled substance misconduct at Waress
property when they executed the search
warrant for that property.
The basic rationale of anticipatory or contingent
search warrants
In Magees case, the police and the magistrate
referred to the search warrant as a contingent
warrant. Generally, the cases and the literature
on this topic refer to this type of warrant as an
anticipatory warrant. Whatever the label, the
basic idea is that the warrant authorizes a search
if some future event occurs.
The quintessential anticipatory warrant
involves the controlled delivery of contraband illegal
drugs, illegal weapons, etc. to an identified physical
location. Generally, in such cases, the package or
other shipping container has already been intercepted
and opened (either by the police or by agents of the
shipper), so the police know to a reasonable certainty
that the package contains contraband. The only element
of probable cause still lacking is the fact that this
contraband has not yet arrived on the premises that the
police wish to search. See Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment (3rd ed.
1996), 3.7(c), Vol. 2, pp. 362-63, 368.
Under the Fourth Amendment, a court can issue
a warrant to search particular premises only if there
is probable cause to believe that evidence of a crime
will be found there. In the case of a controlled
delivery of contraband, until the moment when the
contraband is delivered to the suspect premises, it is
clear that this contraband will not be found on the
premises. But in such cases, most jurisdictions have
allowed judicial officers to issue an anticipatory
warrant that pre-authorizes a search of the premises,
contingent upon the delivery being made. These
jurisdictions have ruled that such search warrants are
valid so long as the information supporting the warrant
establishes probable cause to believe that the
specified contraband will be present on the premises at
the time of the search. LaFave, supra, 3.7(c), Vol.
2, p. 364. This position was adopted by our supreme
court in Johnson v. State, 617 P.2d 1117, 1124 & n. 11
(Alaska 1980).
In cases involving controlled deliveries, an
anticipatory warrant plainly offers advantages to the
police. Since the police control when the delivery
will be made, they can lay out their information to a
magistrate in advance. Once the delivery is made, the
officers can immediately proceed to make the search
without the interruption of trying to find a magistrate
to hear this final piece of the probable cause showing,
and without the administrative bother of asking a
judicial officer to stand by on the telephone, waiting
for the moment when the contraband is delivered.
The question is whether this increase in
efficiency can be squared with the Constitution. In
general, courts have answered yes. LaFave quotes the
following passage from Alvidres v. Superior Court, 90
Cal.Rptr. 682, 686 (Cal. App. 1970), as a sound
explanation of why this type of anticipatory warrant
does not violate the Fourth Amendment:
We must ask ourselves whether the
objective of the [warrant clause] is better
served by permitting officers [in controlled
delivery cases] to obtain a warrant in
advance of the delivery of the narcotic or by
forcing them to go to the scene without a
warrant and there make a decision at the risk
of being second-guessed by the judiciary if
they are successful in recovering evidence or
contraband. We believe that achievement of
the goals [of] the exclusionary ... rule is
best attained by permitting officers to seek
warrants in advance when they can clearly
demonstrate that their right to search will
exist within a reasonable time in the future.
LaFave, supra, 3.7(c), Vol. 2, p. 365.
The requirement that the contingency be strictly
defined
Among the jurisdictions that allow judicial
officers to issue anticipatory warrants, there is
general agreement that the contingency the event
that triggers the authority to conduct the search
must be strictly and precisely defined. LaFave
quotes the following passage from the First
Circuits decision in United States v. Ricciardelli
as an accurate statement of this requirement:
[T]he magistrate must ensure that the
triggering event is both ascertainable and
preordained. The warrant should restrict the
officers discretion in detecting the
occurrence of the event to almost ministerial
proportions, similar to [the officers]
discretion in locating the place to be
searched. Only then ... are the ends of
explicitness and clarity preserved.
LaFave, supra, 3.7(c), Vol. 2, p. 369, quoting Ricciardelli, 998
F.2d 8, 12 (1st Cir. 1993). To ensure that the police play
merely a ministerial role in deciding whether the triggering
event has occurred, courts require that the triggering event be
clear, explicit, and narrowly drawn.1
Courts generally assert that the rationale for this
requirement is to prevent premature execution of the warrant,
either by accident or as a result of police manipulation. See
LaFave, supra, p. 368 and 2003 Supplement, p. 57. But the true
rationale, it seems to us, is to preserve the constitutional
mandate that judicial officers, and not police officers, are to
decide whether the police may conduct the search.
The Constitution forbids a judicial officer from ceding
to the police the authority to decide whether a search is
justified. The law further requires that, when the police apply
for a warrant, the judicial officer must be presented with the
particular facts that the police are relying on to justify the
search. Moreover, to assure an aggrieved citizens right to
challenge a search, and to ensure proper judicial review of the
magistrates decision, a contemporaneous record (an affidavit, or
testimony presented in court, or both) must be made of the facts
that the police are relying on.
Anticipatory warrants create the danger that these
rules will be circumvented or defeated. If the police are given
discretion in deciding whether the triggering event has occurred,
or if the triggering event is defined so broadly that a range of
occurrences might arguably be interpreted as triggering the
officers authority to conduct the requested search, then we can
no longer be sure that the judicial officer is the one who is
controlling the process. In such instances, the validity of the
search will rest, in part, on facts whose relevant particulars
are unknown to the magistrate. And by the same token, the pre-
search record the affidavits and testimony presented to the
magistrate will not reveal all of the facts that the government
is relying on to justify the search.
For these reasons, we hold that when a judicial officer
issues an anticipatory warrant, the contingency that triggers the
officers authority to conduct the search must be explicit, it
must be clear, and it must be drawn so narrowly that the officers
role in detecting the occurrence of this event is essentially
ministerial similar to the clarity and precision that is
required in the warrants description of the premises to be
searched.
(As we stated in State v. Gutman, 670 P.2d 1166 (Alaska
App. 1983), a judicial officer who issues an anticipatory warrant
should normally delineate the triggering contingency in the text
of the warrant itself. Id. at 1173 n. 5. However, an
anticipatory warrant will be valid so long as (1) the contingency
is clearly described in the affidavits and/or the testimony
supporting the warrant, and (2) the text of the warrant expressly
incorporates that contingency by reference. Id.)
The First Circuits decision in Ricciardelli imposes a
second requirement on anticipatory warrants: the requirement
that the triggering contingency be pre-ordained i.e., that the
triggering event be on an apparently sure and irreversible course
toward fulfillment. LaFave endorses this second requirement, at
least when government agents are the ones orchestrating the
occurrence of the triggering event. LaFave, supra, 3.7(c), Vol.
2, p. 369 and 2003 Supplement, p. 57.
In State v. Gutman, 670 P.2d 1166 (Alaska App. 1983),
this Court upheld an anticipatory warrant for which the
triggering event was actually a series of events culminating in
the anticipated sale of cocaine by a third person to a police
informant. The occurrence of each step in this series of events
was obviously not pre-ordained, sure, or inevitable. Several
courts (in addition to the First Circuit in Ricciardelli) have
either held or indicated that they would not uphold an
anticipatory warrant under such facts.2
Because the Gutman decision does not discuss this point
of law, it is unclear whether this issue received active
consideration. However, we need not examine this problem further
because, as we explain next, the anticipatory warrant in this
case fails to satisfy the first requirement described above: the
requirement that the triggering contingency be clear, explicit,
and narrowly drawn.
The warrant in the present case does not define the
triggering contingency with sufficient clarity and
precision
The warrant in the present case authorized
the police to search Magees property if they first
searched Waress property and found any evidence of
either first-degree or second-degree controlled
substance misconduct. This contingency is not
sufficiently precise to pass constitutional muster.
Even if the warrant had described the
contingent event as the discovery of a meth lab, one
might still reasonably doubt whether this definition
was sufficiently clear, explicit, and narrowly drawn
to ensure that the police played only a ministerial
role in assessing whether the contingency was met. It
would be one thing if the police caught people red-
handed in the act of extracting methamphetamine from
precursor chemicals. But what if only the precursor
chemicals were found? What if no precursor chemicals
were found, but only the more basic chemicals needed to
conduct the manufacturing process? And what if no
chemicals at all were found, but only vessels and other
hardware that could be used to manufacture
methamphetamine if one had the raw materials?
Conceivably, all of these contingencies might
qualify as the discovery of a meth lab. Thus, even if
the warrant had been worded as precisely as that, we
would still have serious doubts concerning its
constitutionality.
But the warrant was worded far more broadly.
It authorized the police to search Magees residence if,
during their prior search of Waress property, they
discovered evidence of either first-degree or second-
degree controlled substance misconduct.
The phrase evidence of first-degree or second-
degree misconduct involving controlled substances
encompasses far more than the discovery of the meth lab
that the police were looking for. For instance, the
search warrant application contained information that
Wares had been purchasing quantities of acetone and
toluene; both of these chemicals are solvents that can
be used in the manufacture of methamphetamine. Thus,
if the police merely found a container (either full or
empty) of either acetone or toluene at Waress property,
the police could reasonably claim that this container
constituted evidence of second-degree controlled
substance misconduct thus authorizing them to search
Magees property.
We further note that, as defined in AS
11.71.020, the offense of second-degree controlled
substance misconduct includes not only the manufacture
or possession with intent to deliver methamphetamine3,
but also the manufacture or possession with intent to
deliver of any other schedule IA controlled substance
such as heroin4, methadone5, opium6, or codeine7.
Thus, had the police searched Waress residence and
discovered any of these other substances under
circumstances indicating that these substances were
being manufactured or were intended for sale, the
police could reasonably conclude that they were now
authorized to search Magees residence.
Similarly, first-degree controlled substance
misconduct includes not only the delivery of
methamphetamine to a minor, but also the delivery of
any schedule IA, IIA, or IIIA substance to a minor8
i.e., substances such as cocaine9, PCP10, LSD11,
mescaline12, barbiturates13, codeine medications14, and
hashish15. Had the police discovered any of these
substances under circumstances indicating potential
sales to minors, they likewise could reasonably
conclude that they were now authorized to search Magees
residence.
Moreover, first-degree controlled substance
misconduct also includes the offense of engaging in a
continuing criminal enterprise. See
AS 11.71.010(a)(3). This offense consists of
committing any felony defined in AS 11.71 if that
felony is part of a continuing series of five or more
violations of [AS 11.71] which the defendant undertakes
in concert with at least five other persons [who are]
organized, supervised, or otherwise managed by the
defendant, and if the defendant obtains substantial
income or resources from this series of crimes.
The police already had information linking at
least five other people to Waress activities. The
search warrant application names eight people
(including Robert Magee) who were associates of Wares
and were at least potentially involved in his suspected
drug activities. Thus, if the police searched Waress
residence and found evidence of any felony drug offense
defined in AS 11.71, they conceivably could have
concluded that they now had evidence of first-degree
controlled substance misconduct and that they were
therefore now authorized to search Magees residence.
The Constitution requires that the police
play a purely ministerial role in identifying the
occurrence of the contingency that triggers their
authority under an anticipatory warrant. But if the
police are to play this ministerial role, if the
decision to authorize the search is to remain with the
magistrate and not be ceded to the police, then the
triggering contingency must be a clearly defined,
readily ascertainable event something that everyone
can agree (both beforehand and afterward) has either
happened or failed to happen. The contingency at issue
here the discovery of evidence of first-degree or
second-degree controlled substance misconduct is not a
clearly defined, readily ascertainable event. Rather,
this phrase authorized a search of Magees property if
the police made any one of a wide range of potential
discoveries at the Wares property. Many of these
discoveries were so ill-defined that people could
reasonably debate (either at the time of the discovery
or later) whether they had occurred.
For these reasons, we conclude that the
anticipatory warrant in this case is unconstitutional.
By defining the triggering contingency as the discovery
of any evidence of either first-degree or second-degree
controlled substance misconduct, the magistrate gave
the police far too much discretion to decide whether to
search Magees property.
There was no clearly defined, readily
ascertainable thing that the police were looking for at
Waress residence, nor was there a clearly defined,
readily ascertainable event that the police expected to
occur at Waress residence. Accordingly, this case
presents the type of situation where the police were
obliged to follow a normal warrant application process.
That is, the police could conduct the search of Waress
property (a search for which they already had probable
cause) and then, if that search yielded pertinent
information that potentially justified a search of
Magees residence, the police could include that
information in their application for a second warrant.
But without a contingency so precisely defined as to
eliminate police discretion and maintain judicial
control of the process, the anticipatory warrant was
unlawful.
Conclusion
The evidence obtained under the search
warrant is suppressed, and the judgement of the
superior court is REVERSED.
_______________________________
1 United States v. Moetamedi, 46 F.3d 225, 229 (2nd Cir.
1995). Accord United States v. Garcia, 882 F.2d 699, 703-04 (2nd
Cir. 1989).
2 See United States v. Leidner, 99 F.3d 1423, 1429 (7th Cir.
1996); United States v. Hendricks, 743 F.2d 653, 654-55 (9th Cir.
1984); Commonwealth v. Coleman, 769 A.2d 462, 467-69 (Pa. App.
2001); State v. Canelo, 653 A.2d 1097, 1101-02 (N.H. 1995); State
v. Ulrich, 628 A.2d 368, 371-72 (N.J. App. 1993); People v. Glen,
282 N.E.2d 614, 617-18 (N.Y. 1972).
3 AS 11.71.020(a)(2).
4 AS 11.71.140(d)(11).
5 AS 11.71.140(c)(40).
6 AS 11.71.140(b)(1).
7 AS 11.71.140(b)(1)(G).
8 AS 11.71.010(a)(1) (2).
9 AS 11.71.150(c).
10 AS 11.71.150(d)(6).
11 AS 11.71.150(b)(12).
12 AS 11.71.150(b)(13).
13 AS 11.71.160(c)(3).
14 AS 11.71.160(e).
15 AS 11.71.160(f).
