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State v. Anderson (7/18/2003) ap-1889
State v. Anderson (7/18/2003) ap-1889
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
STATE OF ALASKA, )
) Court of Appeals No. A-
8257
Petitioner, ) Trial Court No.
3AN-00-2574 CR
)
v. ) O P I N I O
N
)
BARRY A. ANDERSON, )
)
Respondent. ) [No. 1889 July
18, 2003] )
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Michael
L. Wolverton, Judge.
Appearances: John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg M. Renkes, Attorney General, Juneau,
for Petitioner. Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In this case, the superior court found that the police
recklessly omitted facts when applying for a warrant to
surreptitiously record conversations between a police informant
and suspects in a robbery and homicide. The superior court
concluded that when the omitted facts were added to the facts
presented to the issuing judge, there was no longer probable
cause supporting the warrant. Based on our review of the record,
we conclude that addition of the omitted information does not
undercut the warrant. Accordingly, we reverse the superior
courts order and remand for further proceedings.
Background and proceedings
On the morning of September 25, 1999, the police
responded to a reported burglary at Godfathers Pizza on Benson
Boulevard in Anchorage. The police found the body of the night
manager, Keith Dirkes, in the walk-in freezer. Dirkes had been
shot twice in the head with a .45 caliber gun. The days cash and
the back-up cash were missing from the store. The police found
no signs of forced entry into the store, and two other employees
who remained at the store until closing said that the front and
back doors were locked when they left. Further investigation
showed that Barry A. Anderson was a former employee of that
Godfathers restaurant and had worked with Dirkes. Anderson had
been a closing manager and knew the restaurants closing routine.
The police learned that Anderson had been hanging around the
restaurant after closing about a week before the robbery.
On October 7, 1999, an employee of a Footlocker store
in Anchorage was robbed at gunpoint when he drove into the
parking lot of the Northrim Bank on Old Seward Highway to drop
off the nights deposit. There were two robbers, and the employee
described the one without a gun as an African-American man
wearing a green jacket. He described the gun as a chrome, large-
caliber, semi-automatic handgun. Shortly after the police
responded to this robbery report, an officer saw a car on Old
Seward driven by an African-American man in a green jacket. The
driver, Bert Oliver, was a former employee of Footlocker and had
worked with one of the robbery victims. He consented to a search
of the car and police found two black ski masks, a bullet-
resistant vest, and a loaded magazine to a .45 caliber semi-
automatic handgun. The police also found a package of developed
film in the trunk with the name E. Colvin on it. Oliver said the
car belonged to his friend, Eric Colvin, and, in fact, the car
was registered to Colvin. Police showed a photo of Colvin found
in the trunk to the victim, but the victim did not identify
Colvin as a suspect. Oliver worked at the Subway shop at
University of Alaska Anchorage (UAA).
On October 13, 1999, Jeff Tynes reported that someone
stole a UAA van parked on campus. Tynes had been delivering
pastries and collecting deposits from a coffee shop on campus and
said that while he used the restroom, he left the keys in the
van. He also left a money bag underneath the seat that contained
a total of $3536.30.
Tynes was charged with theft after making incriminating
statements that the police recorded pursuant to a Glass warrant.1
Tynes told the police that his cousin, Eric Colvin, worked at the
Subway at UAA, and that Colvin knew the delivery schedule of the
van but did not know that Tynes carried money from other
deliveries. On the day of the theft, Colvin arrived at work late
an hour and twenty minutes after the theft. After that day,
Colvin never returned to Subway.
On the evening of October 17, 1999, the Cash Alaska
pawn shop on Spenard Road was robbed by two gunmen, one of whom
brandished a silver Ruger semi-automatic pistol. One gunman took
jewelry that had not yet been placed in a safe. The other gunman
walked past two locked safes and directed the employees to open a
third, which happened to be the only safe to which the employees
had a combination. This led one of the employees to believe the
gunman had inside information about the safes.
Police learned that a Ruger P90 .45 caliber handgun was
missing from the Cash Alaska pawn shop on Muldoon and that
Anderson, who worked at the store, had inventoried that gun about
a month before the Spenard robbery. Anderson was also working at
the Spenard Cash Alaska when the robbery occurred.
Police later arrested Anderson for the Spenard Cash
Alaska robbery when he took jewelry stolen in the robbery to a
jeweler to have the gems removed. The police interviewed
Anderson on November 5, 1999, and he stated that he knew of a
plan to rob a Cash Alaska shop by a person named Eric. Anderson
said the Cash Alaska robbery was Erics idea, that he told Eric
not to do it, but that Andersons cut was gonna be ... to get the
[gems] taken out and just to sell em and I get to keep whatever.
Anderson said he met with Eric four days after the robbery and
that Eric gave Anderson some jewelry plus about $500 cash.
Anderson also claimed that Eric committed the Footlocker robbery
and the UAA theft, relating some accurate details of both crimes.
On December 9, 1999, Detective Barth interviewed Carlos
Newton, a friend of Colvins. Newton insisted that Colvin (Eric)
was innocent and that he had heard that Anderson had committed
the Cash Alaska robbery. Barth told Newton he was convinced that
Colvin was involved in the Cash Alaska, Footlocker, and UAA
crimes. Barth suggested that Newton wear a wire against Colvin,
but Newton refused.
On December 15, 1999, Detective Vanderveur interviewed
Newton again. Newton indicated that he heard that Anderson shot
Dirkes during the Godfathers robbery/homicide. Detective
Vanderveur informed Newton that there was a $15,000 reward for
information leading to the conviction of the Godfathers
perpetrator. The police again suggested Newton wear a wire to
speak with Colvin, but Newton suggested that they have Colvin
wear a wire and speak with Anderson instead. Detective
Vanderveur told Newton to tell Colvin to contact him or the
District Attorney through his attorney if he wished to cooperate,
and Detective Vanderveur gave Newton his card and the District
Attorneys phone number.
Eventually, Colvin contacted the police and was
interviewed again on January 14, 2000. Colvin told Detective
Vanderveur that he had been present when Anderson and another
man, Carlos Adams, described the Godfathers robbery/homicide.
They said that Dirkes let Anderson and Adams in the store because
Dirkes knew Anderson. According to Colvin, Anderson said he
looked for both shell casings after shooting Dirkes, but found
only one. Colvin reported that Anderson obtained the gun from
the Muldoon Cash Alaska after an inventory.
Colvin also said that Adams told him that Anderson
wanted the gun discarded, and Colvin drove Adams north of
Anchorage where Adams threw the gun in the Knik River. Colvin
described where Adams disposed of the gun and later led the
police to that location. The police recovered the gun, a Ruger
P90 .45 caliber pistol, later confirmed as the weapon used to
kill Dirkes. There was no clip in the weapon when it was found.
Colvin and the State entered into a plea agreement.
The agreement provided that Colvins unrelated forgery charges
would be reduced to one misdemeanor charge and that he would
serve no additional jail time in exchange for his cooperation in
electronic surveillance of Anderson and others. A clause
provided that the agreement would be void if the State determined
that Colvin had participated in any armed robbery, including the
robbery of the Godfathers Pizza on September 25, 1999, or the
robbery of Cash Alaska on October 17, 1999.
Assisted by the District Attorneys office, Detective
Vanderveur applied for a Glass warrant to record conversations
between Colvin and Anderson. The affidavit filed with the
application included some, but not all, of the facts described
above. Both Vanderveur and Colvin testified in support of the
warrant. Vanderveur did not mention anything about the
Footlocker robbery or the UAA theft in his affidavit or
testimony; in particular, he did not mention that Colvin had been
implicated by Anderson in both crimes. Vanderveur told Superior
Court Judge Elaine M. Andrews that Colvin had a criminal record
but failed to mention that a 1996 robbery charge was for armed
robbery with a handgun; that charge had been reduced to
misdemeanor assault. Vanderveur did not provide Judge Andrews
with a copy of Andersons November 5th statement, Colvins December
8th statement, or either of the interviews with Newton.
Vanderveur did not inform Judge Andrews that police had suspected
that the Godfathers, Footlocker, Cash Alaska, and UAA incidents
were connected and that Colvins name had come up in the Cash
Alaska, Footlocker, and UAA investigations.
Judge Andrews issued the Glass warrant, explicitly
finding that Colvins testimony was corroborated by the fact that
he led the police to the murder weapon and that he had known that
only one shell casing remained at the scene of the crime.
Anderson moved to suppress his recorded statements
under State v. Malkin,2 arguing that the Glass warrant was
invalid because Detective Vanderveur intentionally or recklessly
omitted material facts. An evidentiary hearing was held before
Superior Court Judge Michael L. Wolverton on February 15-16,
March 30, and April 9-10, 2001. Judge Wolverton did not find
that any facts were intentionally omitted, but he found that
certain facts were recklessly omitted and granted Andersons
motion. Judge Wolverton suppressed the wired conversations
seized when the Glass warrant was executed. The State appeals
this ruling.
Discussion
In Lewis v. State,3 we described the Malkin analysis as
follows:
[O]nce a misstatement or omission is
established, the burden of proving that it
was neither reckless nor intentional shifts
to the state. A failure to meet this burden
will vitiate the warrant if the misstatement
or omission is material, that is, if deletion
of the misstated information from or
inclusion of the omitted information in the
original affidavit would have precluded a
finding of probable cause. A non-material
omission or misstatement one on which
probable cause does not hinge requires
suppression only when the court finds a
deliberate attempt to mislead [the
magistrate].[4]
We employ differing standards of review in this analysis. A
finding that an officer recklessly omitted or misstated facts
will be upheld unless we are convinced the finding is clearly
erroneous.5 However, we exercise independent judgment on the
question whether the evidence presented in support of the warrant
(after adding reckless omissions under Malkin) is sufficient to
establish probable cause.6
Judge Wolverton found that Detective Vanderveur
recklessly omitted material facts in his search warrant affidavit
and testimony before Judge Andrews. Among the facts Judge
Wolverton found were omitted included the fact that, in addition
to the Cash Alaska robbery, Anderson had also implicated Colvin
in the UAA theft and the Footlocker robbery. He found that
Vanderveur recklessly failed to inform Judge Andrews that the
police believed there might be a connection between all of these
crimes, including the Godfathers robbery/homicide, and that
police reports in the UAA theft and Footlocker robbery (which
Vanderveur never read nor provided to Judge Andrews) mentioned
that Colvin had connections with both of these crimes. Judge
Andrews was not informed that Colvin also had a connection to the
same type of weapon believed to have been used in the Godfathers
and Cash Alaska incidents. Judge Wolverton also found that the
police recklessly omitted the fact that the weapon recovered with
Colvins assistance had no clip (magazine) and that a magazine for
the same caliber handgun was found in Colvins car shortly after
the Footlocker robbery.
In addition to Colvins connection to the UAA and
Footlocker crimes, Judge Wolverton found that other facts bearing
upon Colvins credibility had been omitted: that in his first
interview, Colvin lied about knowing Anderson, refused to take a
polygraph test, and was informed that Anderson had implicated him
in the UAA and Footlocker crimes; that information corroborating
Colvins testimony had been disclosed to Anderson, who later spoke
to Colvin; and that Colvin may have been motivated to cooperate
with police only after his friend, Newton, related information
Newton had learned during an interview with Detective Barth. The
information Newton may have told Colvin included the existence of
a substantial cash reward for information on the Godfathers
robbery/homicide, that police knew Colvin was responsible for the
Footlocker and UAA crimes, and that the gun clip seized from
Colvins car matched the murder weapon (which has not been
established).
The State does not dispute that Detective Vanderveur
omitted information in his warrant affidavit and testimony, but
contends that the omitted facts were immaterial or that Judge
Wolverton erred when he found the officer recklessly omitted the
facts. Most of these findings depend on Judge Wolvertons view of
the credibility of the witnesses who testified over the course of
several days of evidentiary hearings.
Even so, two of Judge Wolvertons findings are clearly
erroneous. First, Judge Wolvertons finding that Anderson spoke
to Colvin after the police told Anderson that they had recovered
a shell casing at Godfathers is not supported by the record
before us. At the warrant hearing before Judge Andrews, Colvin
denied having had any contact with Anderson or Adams after being
arrested for the forgeries. Colvin also repeatedly denied having
had any conversations with Anderson during his January 14
statement to police. Colvin explained that he could not have
spoken with Anderson after returning from Alabama because
Anderson was already incarcerated and even though he had seen
Anderson in custody at the jail, Colvin did not think that
Anderson saw him or knew he was there. No evidence contradicts
this testimony before Judge Andrews, and Colvin did not testify
before Judge Wolverton. Therefore, we conclude that the trial
courts finding that police had in fact disseminated some of
Colvins so-called corroborative details through interviews with
... Barry Anderson ... [who] later spoke with Colvin is clearly
erroneous.
Additionally, Judge Wolvertons finding that Judge
Andrews was not informed that the handgun recovered with Colvins
assistance had no clip or magazine in it is clearly erroneous.
Detective Vanderveur noted this fact in the affidavit he filed in
support of the Glass warrant.
We turn next to the question whether including the
remaining omissions in the evidence supporting the warrant would
have precluded a finding of probable cause.7 Although the State
argues that Judge Wolverton erroneously found the remaining
omissions to be reckless and material, we need not address these
claims. We conclude that adding the remaining omissions found by
Judge Wolverton to the evidence presented to Judge Andrews does
not preclude a finding of probable cause.
In State v. Joubert,8 the Alaska Supreme Court ruled
that probable cause requires only a fair probability or
substantial chance of criminal activity, not an actual showing
that such activity occurred.9 Probable cause is an objective
standard.10
The evidence presented to Judge Andrews showed there
were no signs of forcible entry at Godfathers. The employees who
remained at the store until after it was closed to walk-in
customers indicated that the front and back doors were locked
when they left, which suggests that Dirkes opened the door to his
attackers after closing. Dirkes knew Anderson because Anderson
was a former employee at that Godfathers restaurant and had
worked with Dirkes. Anderson himself had been a closing manager
and knew the closing routine, so he understood when the store was
closed and when the other employees would be gone. And Anderson
had been seen hanging around the restaurant after closing about a
week before the robbery.
There was also evidence that Anderson was involved in
the Spenard Cash Alaska robbery. Anderson was working there when
the robbery occurred. The employees told police that a gunman
stole some jewelry that had not yet been put into a safe.
Although there were three safes at the back of the store, the
gunman directed them to open the only safe for which the
employees had the combination. Anderson was arrested for the
Cash Alaska robbery after police learned he had taken jewelry
stolen in the robbery to a jeweler to have the gems removed. And
during the subsequent police interview, Anderson admitted he was
aware of a plan to rob a Cash Alaska pawn shop by Eric, but
claimed that he only had the jewels because Eric had given them
to him.
Other information connected Anderson to the handgun
that killed Dirkes and that the police thought was used during
the Cash Alaska robbery. One of the employees present during the
Cash Alaska robbery said the robbers brandished a silver Ruger
semi-auto pistol. A Ruger P90 .45 caliber handgun turned up
missing from the Muldoon Cash Alaska pawn shop after Anderson
inventoried the guns at that location, about a month before the
Spenard Cash Alaska robbery and about a week before the homicide.
With Colvins assistance, the police recovered a gray Ruger P90
.45 caliber pistol from the Knik River and confirmed it as the
weapon used to kill Dirkes.
Colvin told the police and testified before Judge
Andrews that Anderson had admitted his involvement in the
homicide in front of several people. Colvin testified that
Anderson said he looked for the two shell casings after shooting
Dirkes but could find only one. At that time, the police had not
publicly announced that only one shell casing had been discovered
at the scene.
Judge Andrews described Colvin as an informant from the
criminal milieu. She knew that Colvin had a record of crimes of
dishonesty and that his first statements to the police were not
truthful. Judge Andrews acknowledged that there were objective
reasons to doubt Colvins credibility, but when Colvin testified,
Judge Andrews questioned him closely about the plea agreement and
warned him that the police may have more information than he
might realize. She added that if he was not telling the truth,
he would be in very significant trouble and lose the benefits of
the plea agreement.
In earlier cases, we have noted that an informants
credibility can be bolstered when the informant aids the
authorities and takes the risk that the authorities will discover
that the information the informant has provided is not true.11
And Colvin not only cooperated with the authorities, he took the
additional step of appearing before Judge Andrews and testifying
under oath so that the State might obtain the authorization to
record conversations between Colvin and Anderson.12 Judge
Andrews thought that the physical evidence, the Ruger handgun and
the single shell casing found at Godfathers, were very persuasive
pieces of physical corroboration[.] She knew there were reasons
to distrust Colvins account, but under the circumstances, she
credited his information and issued the warrant.
The facts that Judge Wolverton found were omitted
recklessly provide additional information that could be used in
an analysis of Colvins credibility. But based on our review of
the record, we conclude that the evidence presented to Judge
Andrews, when combined with the omissions identified by Judge
Wolverton, still demonstrates a fair probability or substantial
chance that Anderson was connected with the Godfathers
homicide.13 The police investigation showed that Dirkes had been
shot twice with .45 caliber bullets. Anderson was connected to
the Godfathers restaurant and to the .45 caliber Ruger handgun
missing from the Muldoon Cash Alaska. Anderson knew Dirkes
because he had been a co-worker with Dirkes at Godfathers and,
because Anderson had also been a night manager at Godfathers, he
was familiar with the closing routine. Anderson had been seen
around the restaurant at closing a few days before the homicide.
There was no sign of forced entry, which tended to show that
Dirkes let the person who killed him inside the restaurant
because he knew the person. Anderson also had worked at the
Muldoon Cash Alaska where he had inventoried the missing .45
caliber Ruger handgun shortly before the homicide.
Colvin testified that Anderson admitted his involvement
in the Godfathers robbery and homicide. He said that Anderson
told him that he shot Dirkes twice but recovered only one of the
shells. This meshed with the police investigation. And Colvin
led the police to a place on the shore of the Knik River where
Colvin saw a cohort of Andersons throw a handgun in the water.
The police searched this place and found the murder weapon.
While the additional facts added to the evidence are relevant to
an analysis of Colvins credibility, the very persuasive pieces of
physical corroboration cited by Judge Andrews still remain.
Based on our analysis of the evidence presented to Judge Andrews
and the additional facts that must be added pursuant to Judge
Wolvertons findings, we conclude that the additional facts do not
preclude a finding of probable cause. Accordingly, we reverse
the superior courts order suppressing the taped conversations
obtained when the police executed the Glass warrants.
Conclusion
The order of the superior court suppressing the taped
conversations obtained when the Glass warrants were executed is
REVERSED.
_______________________________
1 See State v. Glass, 583 P.2d 872 (Alaska 1978), on
rehg, 596 P.2d 10 (Alaska 1979) (holding that the Alaska
Constitution requires police to obtain judicial authorization
before secretly recording a persons private conversations).
2 722 P.2d 943 (Alaska 1986).
3 862 P.2d 181 (Alaska App. 1993).
4 Lewis, 862 P.2d at 186 (quoting Malkin, 722 P.2d
at 946 & n.6) (citations omitted).
5 See Lewis v. State, 9 P.3d 1028, 1033 (Alaska App.
2000); Blank v. State, 3 P.3d 359, 365 (Alaska App. 2000);
McLaughlin v. State, 818 P.2d 683, 685-86 (Alaska App. 1991).
6 See Lewis, 9 P.3d at 1033.
7 Lewis, 862 P.2d at 186.
8 20 P.3d 1115 (Alaska 2001).
9 Id. at 1119 (quoting Van Sandt v. Brown, 944
P.2d 449, 452 (Alaska 1997)).
10 Reeves v. State, 599 P.2d 727, 741 n.44
(Alaska 1979).
11 See Gustafson v. State, 854 P.2d 751, 757
(Alaska App. 1993); State v. Bianchi, 761 P.2d 127, 131 (Alaska
App. 1988).
12 See McLaughlin, 818 P.2d at 686 (an
informants appearance before a magistrate and willingness to
submit to an oath and questioning by the magistrate provides a
sound basis for assessing the informants credibility).
13 See Joubert, 20 P.3d at 1119 (quoting Van
Sandt, 944 P.2d at 452).
