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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DARIN JOHN CLEVELAND,
Court of Appeals No. A-12932
Appellant, Trial Court No. 3AN-14-09982 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2669 - July 2, 2020
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael D. Corey, Judge.
Appearances: Emily Jura, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
Darin John Cleveland was convicted of second-degree sexual assault after
1
he vaginally penetrated E.C. while she was passed out on her friend's living room floor.
1 AS 11.41.420(a)(3).
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As part of the investigation, police obtained a Glass warrant to record a conversation
between E.C. and Cleveland, but the Glass warrant inadvertently stated that the
conversation would take place between E.C. and "Darren T. Cleveland," a real and
different person. The warrant was executed, and the conversation between E.C. and the
defendant, Darin John Cleveland, was recorded. During the recorded conversation,
Cleveland made inculpatory statements and apologized for his conduct.
Prior to trial, Cleveland moved to suppress the Glass recording on the
ground that it named "Darren T. Cleveland," rather than "Darin John Cleveland." The
superior court denied Cleveland's motion to suppress. Cleveland now appeals that
ruling.
For the reasons we explain in this opinion, we agree with the superior court
that the fact that the Glass warrant named "Darren T. Cleveland" did not require
suppression of the Glass recording. We therefore affirm Cleveland's conviction for
second-degree sexual assault.
Background facts
On October 31, 2014, E.C. was drinking with a friend at an Anchorage bar
when she ran into another friend and her friend's boyfriend, Darin Cleveland. E.C. had
previously met Cleveland, and the two were distant cousins. The group of four hung out
for the remainder of the night, eventually ending the evening at one of their residences.
E.C. passed out, and when she awoke, Cleveland was behind her, penetrating her vagina
with his penis.
Shortly after he left the house, Cleveland called E.C. on the phone,
apologizing for his conduct and asking her "not to call cops and press charges on him."
After speaking with Cleveland, E.C. called 911 and reported the sexual assault. E.C. met
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with a police officer, Detective Jade Baker, and provided Cleveland's name and phone
number, but she did not spell out his name.
Detective Baker applied for a Glass warrant to record a future conversation
between E.C. and Cleveland. In preparing the warrant application, Detective Baker
searched two state databases for what he believed to be the proper spelling of
Cleveland's name: "Darren Cleveland." Detective Baker's search returned a single
result: "Darren T. Cleveland." Believing this to be the person E.C. had described,
Detective Baker named Darren T. Cleveland in the Glass warrant. Thus, on its face, the
warrant stated that, in November 2014, Darren T. Cleveland was expected to make
statements about the sexual assault to E.C. As part of the warrant application, Detective
Baker included an affidavit summarizing what E.C. had told him about the assault,
including that Cleveland called E.C. after the assault to apologize, that he told her not to
call the police, and that he asked "if they could meet somewhere and talk about it."
A magistrate granted the Glass warrant on November 1, 2014, and, that
same day, E.C. used her cell phone to contact Cleveland - i.e., Darin John Cleveland,
the defendant in this case. The phone call was recorded, and Cleveland again made
inculpatory statements and apologized for his conduct.
Prior to trial, Cleveland moved to suppress the Glass recording on the
ground that the warrant named a different person, Darren T. Cleveland. The superior
2
court, relying on Johnson v. State , rejected this argument.
In Johnson, a case involving
a premises search of a cabin that was described in the warrant as green when it was
actually red, the Alaska Supreme Court held that "if there is no reasonable probability
3
that the wrong premises will be searched, the description is sufficient." Applying that
2 Johnson v. State , 617 P.2d 1117 (Alaska 1980).
3 Id. at 1125.
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standard to the Glass warrant in Cleveland's case, the superior court determined that
there was no reasonable probability that the wrong conversation would be recorded. It
therefore refused to suppress the Glass recording.
Cleveland now appeals.
The superior court did not err in refusing to suppress the Glass recording
In State v. Glass, the Alaska Supreme Court held that police must obtain
a warrant before secretly recording a conversation between a police informant and the
subject of a criminal investigation.4
Under Article I, Section 14 of the Alaska
Constitution, a warrant must "particularly describ[e] the place to be searched, and the
persons or things to be seized." The basic purpose of the particularity requirement is to
5
The required degree of
"prevent generalized or overbroad searches or seizures."
particularity is difficult to state with precision, as it "must be determined by the totality
6
In the context of Glass warrants, we have held that
of the circumstances in each case."
this goal is usually accomplished if the warrant "state[s] with reasonable specificity the
time and subject matter of the anticipated conversation, as well as the person or persons
7
with whom the conversation will occur."
Clevelandargues that the Glass warrant inhis caseviolatedthe particularity
requirement. Cleveland does not claim, however, that the Glass warrant failed to state
"with reasonable specificity the time and subject matter of the anticipated conversation,
as well as the person or persons" involved. Rather, Cleveland argues that the Glass
4 State v. Glass, 583 P.2d 872 (Alaska 1978).
5 Jones v. State , 646 P.2d 243, 248 (Alaska App. 1982).
6 Namen v. State, 665 P.2d 557, 560 (Alaska App. 1983).
7 Jones , 646 P.2d at 248.
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warrant could not be executed against him because it named a different "target" -
Darren T. Cleveland.
In making this argument, Cleveland relies on a line of cases holding,
according to Cleveland, that "where a search warrant 'incorrectly' lists the place to be
searched - and where no other 'correct' description of the place to be searched is
contained in the warrant - the executing officer cannot search a different place simply
because it was their subjectively intended target."
We agree with Cleveland that this is an accurate statement of prevailing
authority. In People v. Royse , for example, the Colorado Supreme Court, writing about
premises searches, held:
To describe the place to be searched with particularity as is
required, certainly means that if the place has an established
street address, and this is the only method of description
utilized, the correct address, and only the correct address, will
suffice. In our view, this is a self-evident constitutional
requirement in those cases where search warrants utilize
street numbers and street names as a means of describing the
place to be searched. [8]
We disagree, however, with Cleveland's assertion that this is the
appropriate rule to apply in his case. Our disagreement stems from Cleveland's implicit
assertion that the target of a Glass warrant - i.e., the person, place, or thing to be
searched or seized - is a person. If this assertion were correct, we would agree with
Cleveland that the Glass warrant itself, which only contained an incorrect name and no
other description of Cleveland, could not be executed against the correct (i.e., intended)
Cleveland, for the same reason that a warrant for a premises search that only contains an
incorrect addressand no other description cannot be executed against the correct address.
8 People v. Royse, 477 P.2d 380, 382 (Colo. 1970) (en banc).
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----------------------- Page 6-----------------------
But Cleveland's implicit assertion that the target of a Glass warrant is a
person is incorrect. As we have previously explained, a Glass warrant does not authorize
the search of a place or person, but rather is "most accurately . . . described as a warrant
9
only for the seizure of conversation from a person."
Because Cleveland is incorrect when he asserts that the target of a Glass
warrant is a person, he is also incorrect when he asserts that the warrant in his case only
contained an incorrect name and no other description of the target. Rather, the face of
the warrant contained three other important pieces of information describing its target:
(1) the anticipated conversation would occur in November 2014; (2) the other participant
in the conversation would be E.C.; and (3) the subject matter of the conversation would
be sexual assault.10
In light of this additional description of the target of the Glass warrant, the
correct test, as the superior court recognized below, comes from the Alaska Supreme
11
In Johnson, the search warrant at issue described
Court's opinion in Johnson v. State .
the place to be searched as being situated at "mile 4 Douglas, being a green cabin
12
approximately on the right side of the highway."
As it turned out, the cabin was red,
13
not green, and was located a short distance from the 4 mile marker. Despite these
9 Jones , 646 P.2d at 247 (emphasis added).
10 As noted above, the warrant application also included an affidavit from Detective
Baker describing what E.C. told him about the assault. The parties dispute whether this
information can be considered in evaluating whether the warrant was sufficiently particular.
Because we conclude that the warrant was sufficiently particular on its face, we need not
resolve that issue.
11 Johnson v. State , 617 P.2d 1117 (Alaska 1980).
12 Id. at 1125.
13 Id.
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inaccuracies, the supreme court upheld the search, noting that "[t]echnical accuracy is
not required" and that the particularity requirement is typically satisfied "if the
description is such that the officer with the search warrant can, with reasonable effort,
14
ascertain and identify the place intended." The supreme court concluded that the
15
description was sufficient, especially given that there were no green cabins in the area.
We reach the same conclusion in this case. The warrant in this case
described an anticipated conversation occurring in November 2014 between Darren T.
Cleveland and E.C. that would reveal information about a sexual assault. Although this
description inadvertently contained an incorrect spelling of Cleveland's first name and
an incorrect middle initial, we agree with the superior court that there was no reasonable
probability the wrong conversation would be recorded. Like the lack of any nearby
green cabins that could have accidentally been searched in Johnson, there was no reason
to believe E.C. was likely to have a conversation with Darren T. Cleveland that could
have accidentally been recorded.
We note, however, that in issuing its ruling below, the superior court
suggested that "[t]he name on the warrant had no bearing on who [E.C.] called."
Echoing this statement, the State contends on appeal that "[u]nder the circumstances in
this case, in which E.C. personally knew the target of the conversation she would be
staging, it was superfluous to even provide Cleveland's name in the first place."
These assertions are questionable, and they prompt us to acknowledge two
significant limitations on our holding. First, there was no dispute in this case that the
Glass warrant was sufficiently particular on its face. As noted above, we have
previously held that a Glass warrant is sufficiently particular if it "state[s] with
14 Id. (quoting Steele v. United States, 267 U.S. 498, 503 (1925)).
15 Id.
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reasonable specificity the time and subject matter of the anticipated conversation, as well
16
as the person or persons with whom the conversation will occur."
Although we cannot
anticipate every possible case, it is unlikely that a Glass warrant would be sufficiently
particular on its face if it completely failed to name (or otherwise describe) the person
with whom the conversation was expected to occur. We therefore disagree with the
State's assertion that it was "superfluous" to provide Cleveland's name on the warrant.
Second, the Glass warrant at issue here contained a name that closely
matched the name of the intended subject. Again, we cannot anticipate every possible
case, but it stands to reason that if the warrant had contained an entirely different name,
the likelihood that the wrong conversation would be recorded would increase
substantially.
With these limitations in mind, the judgment of the superior court is
AFFIRMED.
16 Jones v. State , 646 P.2d 243, 248 (Alaska App. 1982).
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