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Moore v. State (09/02/2005) ap-2006
Moore v. State (09/02/2005) ap-2006
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
JOHN E. MOORE,
)
Court of Appeals Nos. A-8696/8697
)
Trial Court Nos.4FA-02-03717 CR
Appellant,
)
4FA-03-00148 CR
)
v.
)
O P I N I O N
)
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2006 - September 2, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Pro Tem Judge Jane
F. Kauvar, Charles R. Pengilly and Neisje J.
Steinkruger, Judges.
Appearances: Robert S. Noreen, Fairbanks,
for Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
This case raises the question of whether the defendant,
John E. Moore, consented to have the police search his residence
to look for a methamphetamine laboratory. We conclude that,
because the troopers obtained Moores consent by telling him that
they had already found a methamphetamine laboratory in a search
of a shed in his back yard, and because this search was later
determined to be illegal, Moores consent was tainted by the prior
illegal search. We accordingly reverse the trial courts decision
denying Moores motion to suppress.
Factual and procedural background
On June 21, 2002, law enforcement officers went to the
residence of John E. Moore to provide security for a state social
worker who was doing a child welfare check on Moores daughter.
The police were also there to investigate the possibility that
Moore had a methamphetamine laboratory at his residence.
University of Alaska Police Officer Steven Goetz went to the rear
of Moores residence to provide security. He saw an extension
cord which went into an outbuilding. He looked in the
outbuilding to see if there was anyone in there. When he looked
in the building, he found a methamphetamine laboratory. After
making this observation, Officer Goetz walked to the front of the
residence to inform Alaska State Trooper Investigator Teague
Widmier.
At the same time Officer Goetz was discovering the
methamphetamine laboratory, Investigator Widmier knocked on the
front door of Moores residence. When Moore came to the door, the
social worker, Yvonne LeClerk, told Moore that they were there to
investigate a report she had received about his daughter.
Investigator Widmier told Moore that he was with the statewide
drug enforcement unit and asked for Moores identification. At
the social workers request, John Moore closed the door and
retreated back inside to get January Moore, his former wife, and
his daughter California.
Investigator Widmier had a tape recorder with him.
While the door was closed, Investigator Widmier stated that John
Moores hands were stained with iodine. He also stated on the tape
that he smelled something in the house, but the smell was
difficult to identify because of other odors.
While the door was closed, Officer Goetz walked to the
front porch area and informed Investigator Widmier of the
methamphetamine laboratory in the shed. Then, January Moore
returned to the door, opened it, and then attempted to close it.
But Investigator Widmier used his foot as a block so she could
not close the door. Investigator Widmier asked January Moore if
drug activity was taking place inside the residence. She
responded, Not that Im aware of. January Moore left the
residence with a child, accompanied by the social worker.
After January Moore left, Investigator Widmier spoke
again with John Moore. He informed Moore that he noticed iodine
stains on his fingers and that he had detected the smell of a
possible methamphetamine laboratory. Moore protested that the
stains on his fingers were from nicotine. He explained that he
was a heavy smoker. According to the transcript of the tape
recording, Investigator Widmier replied as follows:
TW: Nicotine, I dont think so. I
investigate Meth Labs, but I know pretty
much what iodine is and everything
associated with a meth lab, okay? And
the smell thats coming out of this
residence is possibly associated with a
lab. If you want me to come in and look
around and make sure that theres not a
lab here, Id, Id appreciate that, and
then you dont have to worry about me
buggin you but I would also like to look
around the other property here
concerning items associated with a Meth
Lab, okay? For my safety and other
safety - theres another investigator on
the other side of this building right
here. Hes already cleared that shed
over there and told me theres a Meth Lab
in that shed. Is that true?
JM: Uh, that is true.1
Investigator Widmier explained that if Moore did not
consent, then he would secure the residence and apply for a
search warrant. Moore agreed to allow the troopers to search his
residence. When they entered the residence the police found that
Moore had a methamphetamine laboratory.
The State indicted Moore on three counts of second-
degree2 and one count of fourth-degree misconduct involving a
controlled substance.3 Moore moved to suppress the evidence
seized during the search. Superior Court Judge Charles R.
Pengilly denied the motion. A jury convicted Moore of all four
counts.
On October 20, 2002, while Moore was released on bail
before his indictment and conviction on the former charges, the
trial court issued a warrant for Moores arrest. When the
troopers went to Moores residence to arrest him, they again
smelled an odor associated with methamphetamine. After Moore
consented to a search, the officers found chemicals used in
manufacturing methamphetamine and methadone. As a result, the
State indicted Moore on three additional counts of second-degree
and two counts of fourth-degree misconduct involving a controlled
substance. Moore moved to suppress, arguing that the arrest
warrant was an illegal fruit of the earlier search which led to
the first set of charges. The trial court denied the motion.
Moore pled no contest to one count of second-degree misconduct
involving a controlled substance, reserving his right to appeal
the denial of the second motion to suppress. The remaining four
counts were dismissed.
Moores consent was tainted by the prior illegal search
of the shed
Judge Pengilly found that Officer Goetzs search of the
shed in the back of Moores residence was an illegal search.
Judge Pengilly appears to have concluded that there was no legal
basis for the police to go behind Moores residence to search the
shed to ensure officer safety. The State did not contest this
finding at the evidentiary hearing and does not contest it on
appeal. But the State points out that Judge Pengilly found that
the information which Investigator Widmier had (that Moore had
iodine on his hands and that there was an odor coming from Moores
house, which suggested a methamphetamine laboratory was present
in the residence) was sufficient to give Investigator Wiedmier
probable cause. Judge Pengilly found that, at that point,
Investigator Widmier could properly inform Moore that the
troopers would secure the residence and apply for a search
warrant unless Moore consented to allow the troopers to inspect
the residence. The State argues that we should uphold Judge
Pengillys ruling.
The problem with Judge Pengillys ruling and the States
argument is that it completely ignores the effect of the prior
illegal search on Moores consent. When the police obtain the
defendants consent after conducting an illegal search or arrest,
the unlawful police action presumptively taints the defendants
related consent to search.4 In the present case, the police
conducted an illegal search, discovering the methamphetamine
laboratory in the shed. Investigator Wiedmier confronted Moore
with this discovery. In response, Moore admitted that he had a
methamphetamine laboratory in the shed. Where the government has
conducted an illegal search, the government must demonstrate a
break in the causal connection between the prior illegality and
the defendants consent.5 Unless the government can show that the
consent is sufficiently insulated from the prior misconduct, the
defendants consent is considered to be tainted.6 The State
simply has not made any showing that Moores consent to search was
not tainted by the prior police discovery of the methamphetamine
laboratory in the shed. The State has not argued any theory to
justify the search of Moores residence other than consent. We
accordingly conclude that Judge Pengilly erred in denying Moores
motion to suppress. Since the evidence that the State found as a
result of the search was admitted in Moores trial and the State
has not contended that admission of this evidence was harmless,
we reverse those convictions.
Moore has not challenged on appeal his conviction for
misconduct involving a controlled substance in the second degree
that arose from the search that occurred on October 20, 2002. We
accordingly affirm that conviction.
Moores convictions in Case No. A-8696 are REVERSED.
His conviction in Case No. A-8697 is AFFIRMED.
_______________________________
1 Emphasis added.
2 AS 11.71.020(a)(4).
3 AS 11.71.040(a)(3)(A).
4 Norman v. State, 379 So.2d 643, 646-47 (Fla. 1980); see
also Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407,
416, 9 L.Ed.2d 441 (1963) (holding that the exclusionary rule
applies to both physical and verbal evidence obtained either
during or as a direct result of an unlawful invasion); Brown v.
Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)
(affirming Wong Sun and holding that Miranda warnings are not
sufficient to break the causal connection between a prior illegal
search and/or arrest and a subsequent verbal confession).
5 United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th
Cir. 1994); see also Florida v. Royer, 460 U.S. 491, 507-08, 103
S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983); Wong Sun, 371 U.S. at
487-88, 83 S.Ct. at 417.
6 United States v. Taheri, 648 F.2d 598, 601 (9th Cir.
1981).
