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Albert Peter Macasaet III v. State of Alaska (2/14/2025) ap-2798

Albert Peter Macasaet III v. State of Alaska (2/14/2025) ap-2798

                                                          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@akcourts.gov  

                                                                  

                                                                  

                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  

  

  

ALBERT PETER MACASAET III,                                             

                                                                            Court of Appeals No. A-13574  

                                       Appellant,                        Trial Court No.  1PW-16-00136 CR  

                                                                       

                             v.                                        

                                                                                        O P I N I O N   

STATE OF ALASKA,                                                       

                                                                       

                                       Appellee.                            No. 2798 - February 14, 2025  

                                                                       

  

                    Appeal from the Superior Court, First Judicial District, Prince  

                    of Wales, David V. George and M. Jude Pate, Judges.  

                      

                    Appearances: Kelly R. Taylor, Assistant Public Defender, and  

                    Samantha   Cherot,   Public   Defender,   Anchorage,   for   the  

                    Appellant. Seneca Theno Freitag, Assistant Attorney General,  

                    Office of Criminal Appeals, Anchorage, and Treg R. Taylor,  

                    Attorney General, Juneau, for the Appellee.  

                      

                    Before:  Allard,  Chief  Judge,  and  Wollenberg  and  Harbison,  

                    Judges.  

                      

                    Judge HARBISON.  

                      


----------------------- Page 2-----------------------

                 Following a jury trial,  Albert Peter  Macasaet  III was convicted of first- 



degree murder for killing Judylee  Guthrie, his long-term girlfriend and the mother of  



                1 

his children.    



                 Macasaet  appeals  his  conviction,  raising  three  claims.  First,  Macasaet  



challenges  the  superior  court's  denial  of  his  motion  to  suppress  certain  evidence  



obtained from a search of his cell phone. He contends that the warrant authorizing the  



search lacked probable cause to obtain Facebook Messenger messages and call logs on  



his cell phone, that the warrant was insufficiently particular, and that the relevant search  



was conducted outside of the time limit set by the court. For the reasons explained in  



this opinion, we conclude that the warrant lawfully authorized the search of Macasaet's  



phone for text messages and call logs that were made close in time to Guthrie's death,  



and that the police conducted the search before the information supporting the warrant  



had become stale.   



                  Second,  Macasaet argues that the court erred by denying his motion to  



suppress certain statements that he made without first receiving Miranda warnings. We  



agree that the police should have read Macasaet Miranda warnings before questioning  



him during the execution of a warrant to seize biological samples from his body and in  



the immediate aftermath. However, we have reviewed the record and conclude that the  



admission of the challenged statements at trial was harmless beyond a reasonable doubt.  



                 Third, Macasaet argues that the superior court erred by denying his motion  



for a mistrial. During trial, a police officer violated a protective order by suggesting that  



Macasaet had not expressed "genuine emotion" when he discussed Guthrie's death. We  



agree that the challenged testimony was improper, but we conclude that the court did  



not abuse its discretion by not ordering a mistrial.   



                 We therefore affirm Macasaet's conviction for first-degree murder.   



  



                                     

     1   AS 11.41.100(a)(1)(A).  



                                                      - 2 -                                                  2798  


----------------------- Page 3-----------------------

        Background facts  



                 Albert  Peter  Macasaet III and Judylee  Guthrie  lived together with their  



children on Prince of Wales Island. On the evening of July 30, 2016, Macasaet, Guthrie,  



and some friends were drinking at Macasaet's mother's house in Klawock. Macasaet  



and Wesley Allen Minch left to get more beer at the store in Craig, which is six miles  



from Klawock.  But when they got to Craig,  they  decided that instead of buying beer  



and returning to Klawock, they would remain in Craig and drink at the Hill Bar.   



                 Macasaet testified at trial that while he was at the Hill Bar, he briefly spoke  



with an acquaintance, Chelsi Sage. According to Macasaet, he "shoo[ed]" Sage away,  



                                                                     2 

but Sage testified that their interaction was flirtatious.    



                 Eventually, Guthrie and her sister, Violet Guthrie (Violet), drove to Craig  



and joined Minch and Macasaet at the bar . Multiple witnesses  (including Macasaet)  



testified that Guthrie was upset. The bar closed just before 3:00 a.m., and by this time,  



all four members of the group were intoxicated. Macasaet later described his level of  



intoxication as "extremely drunk."   



                 Macasaet and Guthrie left the Hill Bar together  in their  car. Guthrie and  



Macasaet were in the front seats, and two acquaintances from the bar were in the back  



      3 

seat.  Initially, the group drove approximately six miles from Craig to Klawock, where  



one passenger exited the car. Afterwards, Guthrie and Macasaet drove back to Craig to  



drop off the other passenger.   



                 At  trial,  Macasaet  testified  that  after  they  dropped   off  the   second  



passenger, they drove straight to the Sunnahae hiking trailhead, which is located on the  



                                    

    2    Sage  testified  that  Macasaet  told  her  she  "looked  cute"  and  suggested  that  they  



should get "a room."  



    3    At trial, there was conflicting testimony about who drove the car.  Macasaet and  



James Mills testified that Guthrie was driving. However, Violet testified that Macasaet was  

driving.  



                                                     - 3 -                                                 2798  


----------------------- Page 4-----------------------

outskirts of  Craig  off  the  highway  to  Klawock. Macasaet  testified  that  Guthrie was  



driving the car, and he acknowledged that she remained "upset" with him at this time.  



According to Macasaet, Guthrie stopped the car at the trailhead, said, "Fine, you drive,"  



                                                                                             4 

exited the car, and walked  towards the bike path alongside the highway.   Macasaet  



yelled for Guthrie to return, but she kept walking. After Guthrie did not return, Macasaet  



drove from the Sunnahae trailhead back to his mother's house in Klawock.  



                 The next morning, Macasaet called the police to report that  Guthrie was  



missing.  Macasaet  initially  told  the  police  that  he  had  not  seen  Guthrie  since  the  



previous night. Macasaet spoke with the police four more times later that morning and  



in the afternoon. In these subsequent conversations, Macasaet clarified that he last saw  



Guthrie early that morning at the Sunnahae trailhead.  



                 That evening, at  5:28 p.m., Macasaet  called the police and reported that  



he was  actively looking for Guthrie in Craig. Then, at 5:55 p.m., Macasaet  called the  



police back to report that he had just located Guthrie's body in Klawock, near a gravel  



pit, during what he described as a random search.  



                 When  first  responders  arrived  at  the  gravel  pit,  Macasaet  did  not  



accompany them to find the body. Rather, Macasaet remained inside a patrol car in the  



parking area while at least six first responders walked up a logging road located above  



the gravel pit. Initially, all of these first responders walked past the location of Guthrie's  



body without noticing it. It was not until two officers backtracked towards the gravel  



pit and stopped to talk that one officer spotted the body in vegetation "so thick that you  



had to be standing in the right spot to really see in there."  



    4   A bike path runs alongside the Craig-Klawock Highway between the town of Craig  



and Craig High School. The bike path ends at the high school; it does not continue all the  

way to Klawock.  The Sunnahae trailhead  is located along a part of the highway serviced  

by this bike path.  



                                                   - 4 -                                               2798  


----------------------- Page 5-----------------------

                  Guthrie's  death was  ruled  a homicide. According to the  autopsy  report,  



Guthrie  was  strangled using  the drawstring of her  hooded  sweatshirt  and died from  



asphyxia.  



                 The police focused on  Macasaet  as their prime  suspect. While no  direct  



evidence  identified  Guthrie's killer,  the  State  relied  on  the  following  circumstantial  



evidence  of Macasaet's guilt  at trial: (1) Macasaet was the last person to see  Guthrie  



alive, and the  two  had been  arguing;  (2)  Macasaet  decided to search for Guthrie in  



Klawock, even though Macasaet told the police he had last seen Guthrie alive in Craig;  



(3) Macasaet quickly located Guthrie's body near the gravel pit, even though her body  



was well-hidden by brush; (4) Macasaet provided numerous inaccurate and inconsistent  



statements to the police that minimized his potential involvement; and (5) Macasaet had  



                                                         5 

a documented history of strangling Guthrie.    



                   



         Prior proceedings  



                 Approximately two weeks after  Guthrie's death, Macasaet was charged  



                                                   6 

with  one count of  first-degree murder.   Ahead of trial,  Macasaet's attorney  filed two  



motions to suppress evidence that are relevant to this appeal.   



                 First,  the  defense  attorney  moved to suppress  statements that Macasaet  



made to the police during an interview on August 2, 2016. Macasaet voluntarily drove  



                                     

    5    At trial, the State introduced evidence that Macasaet had strangled Guthrie on two  



prior occasions. In December 2009, Macasaet strangled Guthrie with his hands, which left  

her with red marks on her neck and swollen lips. Macasaet ultimately pleaded guilty to  

third-degree assault pursuant to a plea agreement. In October 2014, Macasaet strangled  

Guthrie in the presence of others, but was not charged for this offense. However, Macasaet  

provided a recorded statement to the police admitting that he "went straight for [Guthrie's]  

throat" and "put her on the ground," and this statement was admitted at trial.  



    6    AS  11.41.100(a)(1)(A).  Initially,  Macasaet  was  also  indicted  on  two  counts  of  



kidnapping  and  charged  by  information  with  fourth-degree  assault  and  resisting  arrest.  

AS  11.41.300(a)(1)(B), AS 11.41.230(a)(3), and AS 11.56.700(a)(1), respectively. These  

charges were dismissed before trial.  



                                                      - 5 -                                                  2798  


----------------------- Page 6-----------------------

to  the  police  station  for  this  interview,  but  partway  into  the  interview,  the  police  



executed a search warrant to obtain biological samples from Macasaet's body  and to  



seize electronic devices. Macasaet moved to suppress all statements that he made after  



the  police  executed  this  warrant,  alleging  that  he  was  subjected  to  a  custodial  



interrogation  without  receiving  Miranda  warnings.  The  superior  court  denied  this  



motion.  



               Second,  the  defense  attorney  moved  to  suppress  data  obtained  from  



Macasaet's cell phone. After seizing the cell phone, the police obtained two warrants to  



search  and  seize  data  from  it.  Macasaet  argued  that  these  search  warrants  were  



overbroad, violating his constitutional rights, and that data was obtained during a search  



of his phone that was conducted outside of the timeframe  permitted by the warrants .  



The superior court denied this motion as well.   



               The matter proceeded to a multi-week jury trial. After opening statements,  



Macasaet moved to preclude Trooper Benjamin Mank  from offering his opinion  that  



Macasaet's  demeanor  after  Guthrie's  death  was  inconsistent  with  an  expression  of  



genuine  emotion.  The  State  did  not  oppose  this  request,  and  the  court  granted  the  



protective order.   



               During the State's case, the prosecutor called Trooper Mank as a witness.  



On direct examination, the prosecutor asked  Mank  about a  conversation he had with  



Macasaet  shortly  after  Guthrie's  body  was  discovered.  Mank  testified  that  the  only  



moment he observed "any tears, or . . . genuine emotion" in Macasaet's eyes was when  



Macasaet "started asking about what [he should] tell his boys." This statement implied  



that Macasaet did not show "genuine emotion" when he discussed Guthrie's death itself.  



The parties subsequently agreed that this testimony violated the protective order.  



               Macasaet moved for a mistrial, arguing that the violation of the protective  



order had undermined his  right to a fair trial.  The superior court  found that  Mank's  



testimony was improper, but it denied the mistrial motion, opting instead to take other  



curative measures, including striking the majority of Mank's testimony.  



                                               - 6 -                                          2798  


----------------------- Page 7-----------------------

                 During the State's case, it introduced data obtained from AT&T detailing  



which  cell  phone  tower  Macasaet's  phone  communicated  with  during  the  night  of  



Guthrie's death: the Craig tower or the Klawock tower. From these records, the State  



inferred that at 3:51 a.m., Macasaet and Guthrie were in Craig dropping off the second  



passenger; between 3:51 a.m. and 4:26 a.m., Macasaet drove from Craig to Klawock;  



                                                                                              7 

and between 4:26 a.m. and 5:19 a.m., Macasaet killed Guthrie in Klawock.    



                 The State also  introduced the results of DNA testing  conducted by  the  



state crime lab. Dr. Julie Webb testified that male DNA was found on Guthrie's breasts,  



anus,  and underneath her fingernails. Using the Y-STR method, these male samples  



were compared to samples taken from Macasaet. Webb testified that while Macasaet  



could have contributed to the DNA on Guthrie's breasts and anus, he did not contribute  



to the DNA under Guthrie's fingernails. Webb also testified that there were two to three  



other unidentified male contributors to the DNA on Guthrie's breasts.   



                 The State additionally introduced exhibits detailing Macasaet's cell phone  



communications in the hours before and after Guthrie's death. These communications  



included  text  messages  and  call  logs  transmitted  using  the  phone's  default  text  



messaging  application,  as  well  as  text  messages  and  call  logs  transmitted using  the  



Facebook Messenger application. The State also introduced an exhibit showing that, a  



few  days  before  Guthrie's  death,  Macasaet  and  Chelsi  Sage  had  exchanged  text  



messages about meeting at the Black Bear Diner.   



                 After the State rested, the defense presented its case and  Macasaet  took  



the stand in his own defense. In his testimony, Macasaet acknowledged that he had a  



history of strangling Guthrie and that he made inaccurate statements to the police after  



                                    

    7   Aside from a small zone between Craig and Klawock, the service area for the Craig  



and Klawock towers did not overlap (meaning cell phones located in Craig and Klawock  

would  ping  their  respective  towers).  The  AT&T  records  showed  the  following:  at  

3:51 a.m., Macasaet's cell phone was in or near Craig, and at 4:26 a.m. and 5:23 a.m., his  

phone was in or near Klawock.   



                                                    - 7 -                                                2798  


----------------------- Page 8-----------------------

             8 

her death.   However, Macasaet denied killing Guthrie, and his attorney published an  



emotional 911 call Macasaet had placed after locating Guthrie's body.   



                 During closing argument, the prosecutor characterized  Guthrie's murder  



as  a  personal  act  of  rage  that  was  consistent  with  Macasaet's  history  of  strangling  



Guthrie. The prosecutor suggested that each of these strangulations followed a pattern;  



Macasaet got drunk, became upset with Guthrie, strangled her, and then was overcome  



with guilt. The prosecutor argued that similarly, after killing Guthrie, Macasaet's guilt  



prompted  him  to  ensure  that  her  body  was  recovered  quickly.  The  prosecutor  also  



suggested that  Macasaet was romantically interested in  Chelsi Sage, which provided  



another motivation for killing Guthrie.  



                 In  Macasaet's  closing  argument,  the  defense  attorney  argued  that  the  



State's case was entirely circumstantial  and  that it  failed to meet the  high  burden of  



proof beyond a reasonable doubt. The attorney also contested the State's interpretation  



of the DNA evidence, arguing that it exonerated Macasaet. According to the defense  



attorney, if Macasaet had strangled Guthrie to death, his DNA would have been found  



under Guthrie's fingernails  (rather than other unidentified  male DNA). The defense  



attorney finished his closing argument by playing Macasaet's emotional 911 call, and  



arguing,  "Nobody  is  that  good  of  an  actor.  That's  real.  That's  raw.  He 's  not  a  



psychopath killer. Albert Macasaet is innocent."  



                 Following  deliberations,  the  jury  convicted  Macasaet  of  first-degree  



murder. This appeal followed.   



                                    

    8    Macasaet  admitted to providing inaccurate statements about the following events:  



how he got from the Sunnahae trailhead to Klawock; what shoes he was wearing the night  

Guthrie disappeared; and whether Guthrie left the Hill Bar with him, or with Wesley Allen  

Minch and Violet.   



                                                    - 8 -                                                 2798  


----------------------- Page 9-----------------------

         The superior court did not err in denying Macasaet's motion to suppress  

         data obtained from his cell phone   



                 On  appeal,  Macasaet  challenges  the  superior  court's order denying  his  



motion to suppress data obtained from his cell phone. Specifically, Macasaet contends  



that the State improperly seized evidence from his cell phone pursuant to warrants that  



lacked particularity, lacked a probable cause nexus to the crime, and had expired by the  



time the search took place.  



                 In evaluating a search warrant,  we view the evidence in the light most  



                                              9 

favorable to upholding the warrant.  Doubtful or marginal cases are resolved in favor  



of  the  warrant,  and  the  evidence  supporting  the  warrant  must  be  considered  in  a  

reasonable and commonsense manner.10 Before evaluating Macasaet's claim, we first  



review  the  information  available  to  the  district  court  when  it  granted  the  search  



warrants, and to the superior court when it ruled on Macasaet's motion to suppress.   



                 On July 31, 2016, the Alaska State Troopers seized Macasaet's cell phone  



(an Android Blu) after they discovered Guthrie's body near the gravel pit. The phone  



was then transferred to the Alaska State Troopers' Technical Crimes Unit in Anchorage,  



where it was placed in a storage locker.  



                 On August 4, 2016, Investigator Ramin Dunford applied for a warrant to  

search Macasaet's phone.11 In this application, Dunford sought permission to search the  



device's SD or SIM card for   



                 call  logs,  text  messages,  photographs,  geolocation  data,  

                 voice recordings, app data, deleted call log entries or deleted  

                 text messages, search history, web pages accessed, email and  

                 to document the cell phones by photographs.  



                                    

    9    State v. Chapman, 783 P.2d 771, 772 (Alaska App. 1989).  



    10   Id.  



    11   At the time of the investigation, Ramin Dunford was an investigator in the Special  



Criminal Investigations Unit, but before trial he was promoted to sergeant.  



                                                     - 9 -                                                 2798  


----------------------- Page 10-----------------------

                Dunford  included  an  affidavit  with  the  warrant  application.  In  this  



affidavit, Dunford gave an overview of the "highly technical" process of conducting a  



forensic analysis of a cell phone.  He explained that after data is extracted from the  



phone,   it  must  be  sorted  to  determine  "which  particular  files  are  evidence  or  



instrumentalities of crimes," a process that can take "weeks or months."  



                Dunford's  affidavit  also  included  a  lengthy  probable  cause  statement  



detailing  why  the  police  suspected  Macasaet  of  killing  Guthrie.  In  this  statement,  



Dunford noted that  Macasaet had used his  cell phone to place  calls  and to send  text  



messages on the day of Guthrie's death.   



                On  August  4,  2016,  the  district  court  granted  the  warrant  to  search  



Macasaet's phone under the parameters that Dunford requested and ordered that the  



search be conducted within thirty days.  



                On August 5, 2016, Dunford asked Nathan Bucknall, an investigator with  



the Technical Crimes Unit, to execute the search warrant. Bucknall later testified that  



the phone was passcode protected when he received it. Consequently, the only way to  



extract  data  was  to  conduct  a  "physical  search"  using  Cellebrite  technology,  which  



extracts  all  available  data  from  the  phone.  Because  Cellebrite  extracts  data  in  an  



unreadable format, a separate software program, Physical Analyzer, is then needed to  



sort and convert the data into a readable format.  



                Bucknall  used  Cellebrite  to  conduct  a  physical  search  of  Macasaet's  



phone. However, Cellebrite returned an error message and was only able  to extract  a  



partial data set. Bucknall then attempted to run this partial data set through Physical  



Analyzer. However, Physical Analyzer was incompatible with  Macasaet's  cell phone  



model. Unable to proceed further, the troopers returned Macasaet's phone to the storage  



locker and retained the unreadable partial data on a network server.  



                Five  months  later,  on  January  9,  2017,  Bucknall  learned  that  Physical  



Analyzer had received a software update and was now compatible with Macasaet's cell  



phone  model.  Consequently, Bucknall  accessed the  partial data  in  electronic storage  



                                                 -  10 -                                            2798  


----------------------- Page 11-----------------------

and  ran  it  through  Physical  Analyzer  again.  This  time,  Bucknall  was  successful.  



Physical Analyzer was able to convert the data into a readable format, and through this  



process,  Bucknall  discovered  "texts,  call  logs,  emails  and  multimedia  information  



relevant to the case." He also recovered the phone's passcode.   



                On  January  17,  2017,  Dunford  applied  for  a  second  warrant  to  search  



Macasaet's phone. This second warrant was identical in scope to the first warrant and  



contained  a  nearly  identical  probable  cause  statement.  In  his  affidavit,  Dunford  



explained that when the first warrant was executed, the police seized text messages, call  



logs, emails, and multimedia information relevant to the case. He then requested a new  



warrant authorizing  the police  to  extract  and analyze  data from Macasaet's phone a  



second time. The district court granted this additional warrant as requested.  



                On February 3, 2017, Bucknall conducted a second search of Macasaet's  



cell phone.  This time, he used  three separate techniques  to extract data : a "physical"  



search (which does not require  the phone 's  passcode),  a "file system"  search (which  



requires  the  passcode),  and  a  "logical"  search  (which  also  requires  the  passcode).  



Collectively, these searches yielded a large quantity of data. Using Physical Analyzer,  



Bucknall then processed this data and prepared a report that he provided to Dunford.  



                Macasaet moved to suppress the  evidence obtained from the two  search  



warrants.  First,  he  argued  that  Bucknall  conducted  an  illegal  warrantless  search  on  



January 9, 2017, when he ran the partial data set through the updated Physical Analyzer  



software because the  first  search warrant  (issued  on  August 4, 2016)  was no longer  



valid.  



                Second,  Macasaet  argued  that  both  warrants  impermissibly  permitted  



searches that were not supported by  probable cause. Macasaet noted that the search  



warrant   applications   contained   information   that,   on   the   morning   of   Guthrie's  



disappearance, he had sent text messages asking about her whereabouts to Wesley Allen  



Minch, who had been in the Hill Bar with them. The search warrant applications also  



indicated that Macasaet initially told police that he last saw Guthrie when she left the  



                                                 -  11 -                                            2798  


----------------------- Page 12-----------------------

bar  with  Minch  and  another  woman.  Macasaet  conceded  that  the  search  warrant  



applications established probable cause to search his phone for "text messages," but he  



argued that the warrants were invalid with respect to all other categories of information  



on  his  phone,  including  "call  logs,"  "photographs,"  "geolocation  data,"  "voice  



recordings,"  "app  data,"  "deleted  call  log  entries  or  deleted  text  messages,  search  



history,"  "web  pages  accessed,"  and  "email  and  to  document  the  cell  phones  by  



photographs." In response to questioning from the court,  Macasaet took the position  



that if there was probable cause to search for a given category of data, such as "text  



messages," then evidence of that data need not be suppressed, even if the warrant was  



overbroad in other respects.  



                Third, Macasaet argued that the warrants could have "been limited in time  



as  well  as  scope,"  suggesting  that  he  believed  that  the  warrant  was  insufficiently  



particular.  



                The superior court conducted an evidentiary hearing and then denied the  



motion to suppress.  In its order, the court rejected Macasaet's  claim that the warrant  



lacked probable cause. The court explained that around the time of Guthrie's murder,  



Macasaet "used his cell phone to call or text at least three people," and that the police  



therefore had probable cause to search "logs or records of voice or visual contacts, text  



contacts, photographic contacts, and  geolocation  . . .  within Macasaet 's phone." The  



court also found that text messages sent using Facebook's messaging capability fell  



within the scope of the probable cause. The court explained: "Facebook has messaging  



capability, and though not a program dedicated to messaging, police could properly  



search the site under the probable cause here."   



                With regard to "app data," the court construed this term to include phone  



applications that contained, managed, or enabled the other categories of information for  



which there was probable cause. The court pointed out that Macasaet had not identified  



any  evidence  that  was  outside  of  these  categories,  and  also  that  he  had  agreed  that  



"suppression would only lie for those items police seized for which probable cause was  



                                                 -  12 -                                            2798  


----------------------- Page 13-----------------------

lacking."12 Because of this narrow interpretation of "app data," the court found that the  



warrant, including this provision, was sufficiently particular.   



                 The  superior  court  also  concluded  that  the  officers  did  not  conduct  a  



Fourth Amendment "search" when they ran the stored partial data set through Physical  



Analyzer following the software update.   



                 At trial, the State introduced an exhibit detailing every message and phone  



call that Macasaet's phone sent or received  during a twenty-one-hour window from  

July 30   to   July   31,   2016   (shortly   before   and   after   Guthrie's   death).13   These  



communications  included  text  messages  and  call  logs  from  the  phone's  default  



messaging applications, as well as instant messages and call logs transmitted using the  

Facebook Messenger application.14 The State also introduced an exhibit showing that  



Macasaet and Chelsi Sage had exchanged messages on July 28, 2016, using Facebook  



Messenger.  



                 On  appeal,  Macasaet  renews  his  challenges  to  the  search  warrants,  



contending       that   the   superior     court    should     have    suppressed       evidence     of    his  



communications using Facebook Messenger. In arguing that the warrants were invalid,  



Macasaet  does  not  challenge  the  provision  authorizing  the  search  for  his  "text  



messages."  However, he argues that the  warrants  lacked probable cause  and that the  



provision  of  the  warrants  that  authorized  a  search for  "app  data"  was  insufficiently  



particular.  



                                    

     12   The superior court also determined that the term "app data" should be viewed in the  



context of Dunford's affidavit, and that, so construed, it had a sufficiently narrow meaning.  



     13   The last communication in this exhibit was an outgoing phone call on July 3 1, 2016,  



at 5:55 p.m. when Macasaet called the Craig police to report finding Guthrie's body.  



     14   Facebook Messenger is a proprietary instant messaging application developed by  



Meta that is used to send messages and exchange,  inter alia, photos, audio, and video.  

Features, Messenger, https://www.messenger.com/features (last visited Feb. 3, 2025).   



                                                    -  13 -                                               2798  


----------------------- Page 14-----------------------

                 As we are about to explain, we have reviewed the search warrants and the  



warrant applications, and we agree with the superior court that the provision authorizing  



the search of "text messages" was a category that includes instant messages sent through  



Facebook Messenger and that this provision was particular and supported by probable  



cause. We also conclude that each of the searches that were conducted took place within  



the timeframe permitted by the warrants. And while we agree with Macasaet that the  



warrants were defective in some ways, we do not agree that the deficiencies required  



suppression of the Facebook Messenger messages.   



                   



         1.      The warrant provision  authorizing a search of all of Macasaet's  

         cell  phone 's  "app  data"  was unlawful,  but  the  Facebook  Messenger  

         messages were admissible based on the provision authorizing a search for  

         "text messages"  



                 The United States and Alaska Constitutions prohibit the government from  

engaging in "unreasonable searches and seizures."15  Prior to engaging in a search or  



seizure, the government  ordinarily must  obtain a warrant based on "probable cause,  



supported by Oath or affirmation, and particularly describing the place to be searched,  

and the persons or things to be seized."16 This requirement seeks to prevent government  



officials from having "unbridled discretion" over what should be searched or seized.17  



                 In Riley v. California , the United States Supreme Court's seminal case  



involving cell phone searches, the Supreme Court explained that cell phone technology  



                                    

     15   U.S. Const. amend. IV; Alaska Const. art. I, §  14; see  Alaska Const. art. I, § 22  



("The right of the people to privacy is recognized and shall not be infringed.");  State v.  

Gibson, 267 P.3d 645, 659 (Alaska 2012) ("Alaska courts have used  section 22's right to  

privacy to give section 14's protection against unreasonable searches and seizures 'a liberal  

interpretation.'" (quoting Municipality of Anchorage v. Ray ,  854 P.2d 740, 750 (Alaska  

App.  1993))).  



     16    U.S. Const. amend. IV; Alaska Const. art. I, §  14.  



     17   Namen v. State, 665 P.2d 557, 560 (Alaska App. 1983).  



                                                    -  14 -                                                2798  


----------------------- Page 15-----------------------

increases law enforcement's ability to conduct a wide-ranging search into a person's  

private affairs.18 The Supreme Court noted that modern cell phones are "minicomputers  



that also have the capacity to be used as a telephone ."19  It described cell phones as  



devices that "could just as easily be called cameras, video players, rolodexes, calendars,  



tape recorders, libraries, diaries, albums, televisions, maps, or newspapers" that enable  

people to "keep on their person a digital record of nearly every aspect of their lives."20  



                  Similarly, in Pohland v. State, this Court stated that "[p]ortable computing  



devices" (laptops, tablets,  and smart phones) "will often offer a compendium of that  



person's family and social life, their private and business interests, their recreational  

activities, and their intimate thoughts."21 We explained that "[t]he prevalence of these  



digital devices has  caused courts to re-think the contours of the Fourth Amendment's  

prohibition  against  unreasonable  searches  and  seizures."22  And  more  recently,  in  



Chandler v. State, we again acknowledged the "uniquely important role that computing  



devices have assumed in the personal lives of most citizens," observing that "courts are  



beginning to recognize these devices may be entitled to special Fourth Amendment  

protections."23  



                  Relying  on  this  line  of  cases,  Macasaet  asserts  that  cell  phone  search  



warrants must be carefully tailored so that they do not authorize a general exploratory  



                                     

     18   See Riley v. California, 573 U.S. 373, 393-97 (2014).   



     19   Id. at 393.   



    20   Id. at 393, 395.  



    21   Pohland v. State, 436 P.3d 1093, 1098 (Alaska App. 2019).   



    22   Id.;  see  also   United  States  v.  Otero,  563  F.3d  1127,  1132  (10th  Cir.  2009)  



(explaining that the particularity requirement is of increased importance in the context of  

personal computer searches).  



    23   Chandler v. State, 487 P.3d 616, 629 (Alaska App. 2021).   



                                                     -  15 -                                                  2798  


----------------------- Page 16-----------------------

search of the vast array of data that may be found on a cell phone. He also contends that  



the provision of the warrants that authorized the police to search for "app data" on his  



phone  lacked probable cause  and  was  insufficiently  particular. We agree with these  



contentions.   



                 The warrants in this case permitted the police to search all "app data" -  



i.e.,  all  cell  phone  application  data  -   on  Macasaet's  cell  phone.  Cell  phone  



applications, which  are commonly referred to as  "apps,"  are broadly defined as types  

of  software  designed  for  use  on  smartphones  and  tablets.24  "Users  access  e-mail  



messages,  calendars,  photographs,  files,  notes,  and  other  personal  data  on  all  their  

devices - phones, computers, and tablets - via mobile apps."25 Thus, cell phone data  



that is specific to the user will be found in the phone's application data.26 For this reason,  



when a  warrant authorizes  the search of  all application data  contained within  a cell  



phone, the resulting search is akin to a search of the entire cell phone.  



                                     

    24   Adam          Volle,         app:        mobile          device         software,         Britannica,  



https://www.britannica.com/technology/mobile-app (last updated Jan. 23, 2025).   



    25   Brief  of  Amicus  Curiae  Electronic  Privacy  Information  Center  (EPIC)  et  al.  In  



Support of Petitioner at 11, Riley v. California , 573 U.S. 373 (2014) (No. 13-132); Adam  

Volle,     app:      mobile      device     software,       Britannica,      https://www.britannica.com/ 

technology/mobile-app (last updated Jan. 23, 2025).  



    26   Application   data   includes,   for   example,   user   demographics,   voice   and   text  



communications, internet search history, application usage patterns, medical information,  

financial information,  location data,  and possibly even data relating to bodily functions  

tracked via smartwatches like heartbeat and blood pressure history. See Brief of Center for  

Democracy & Technology and Electronic Frontier Foundation as Amici Curiae in Support  

of Petitioner in No. 13- 132 and Respondent in No. 13-212 at 9-12, Riley v. California, 573  

U.S. 373 (2014) (Nos. 13-132, 13-212); Brief of the Center for Democracy and Technology  

as Amicus Curiae in Support of Petitioner at 9, Carpenter v. United States,  585 U.S. 296  

(2018) (No. 16-402) ("[M]ore than one million apps extend far beyond health and finance  

to cover every conceivable need and interest -  from politics, to addiction treatment, to  

romance and shopping.").   



                                                     -  16 -                                                 2798  


----------------------- Page 17-----------------------

                 In Macasaet's case, the police did not have probable cause to search the  



entire contents of Macasaet's cell phone. As the United States Supreme Court explained  



in Riley, modern cell phones are more than communication devices; they function as  



"cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums,  

televisions, maps, or newspapers."27 And, as we have just explained, in order to perform  



these  functions,  cell  phones  contain  a  broad  array  of  applications  which  contain  an  



enormous amount of data about the cell phone's user. Here, the superior court correctly  



determined  that  the  search  warrant  established  probable  cause  that  evidence  of  



Guthrie's homicide would be found within the applications of Macasaet's phone used  



for text messaging, voice calling, location tracking, photography, and videorecording.  



However,  the  warrant  did  not  establish  probable  cause  that  evidence  of  Guthrie's  



homicide  would  be  found  within  applications  used  to  perform  the  other  diverse  



functions of the phone.   



                 We also conclude that the warrant provision authorizing the search of "app  



data"  was  insufficiently  particular.  To  pass  constitutional  muster,  a  warrant  must  



"particularly  describ [e]  the  place  to  be  searched,  and  the  persons  or  things  to  be  

seized."28  We  accordingly  have held  that  when  a warrant  authorizes  the  search  of  a  



digital storage device, it must "provide a reasonably specific description of the material  

that the police can search for within the device."29   



                 This requirement applies to a warrant to search cell phones. Given the vast  



array  of  information  that  can  be  found  within  modern  "smartphones,"  a  warrant  



authorizing the search of a  cell phone, or of the data contained in a cell phone, must  



provide a sufficiently precise description of the type of data that the police are permitted  



                                     

    27   Riley, 573 U.S. at 393.  



    28   U.S. Const. amend. IV; Alaska Const. art. I, §  14.  



    29   Pohland v. State, 436 P.3d 1093, 1100 (Alaska App. 2019).  



                                                     -  17 -                                                 2798  


----------------------- Page 18-----------------------

to examine - i.e., the "place" within the cell phone that the police may search - and  



also of the type of data that the police are authorized to seize - i.e., the "things" to be  

seized.30 When a warrant does not provide such a description and instead authorizes the  



search of all application  data contained within  a cell phone, the resulting search  does  

not meet the particularity required by the Fourth Amendment.31   



                 We thus conclude that the provision of the warrants authorizing a search  



for "app data" lacked probable cause and was insufficiently particular. We must next  



consider Macasaet's related argument that, because the provision authorizing a search  



for  "app  data"  was  invalid,  the  evidence  obtained  from  his  phone's  Facebook  



Messenger application was inadmissible at his trial.   



                  If  this  unlawful  provision  was  the  only  provision  of  the  warrant  that  



authorized   a   search   for   Facebook   Messenger   messages,                  we   would   agree   with  



Macasaet's argument. But the search for these messages was also authorized by  the  



                                     

     30   Ridenour v. State, 539 P.3d 530, 539-40 (Alaska App. 2023); State v. Wilson, 884  



S.E.2d  298,  300  (Ga.  2023)  (invalidating  a  search  warrant  that  provided  a  "limitless  

authorization to search for and seize any and all data that can be found on [] cell phones");  

State  v.  Smith,  278  A.3d  481,  251-52  (Conn.  2022)  (concluding  that  the  particularity  

requirement of the Fourth Amendment invalidated a warrant which allowed for a search of  

the entire contents of a cell phone because it did not limit the search by describing the areas  

within  the  phone  to  be  searched  or  a  time  frame  reasonably  related  to  the  crimes);  

Richardson v. State, 282 A.3d 98, 124 (Md. 2022) (holding that it is not reasonable for a  

warrant to authorize police to search everything on a cell phone); People v. Coke, 461 P.3d  

508, 516 (Colo. 2020) (invalidating a search warrant that allowed police to search "all texts,  

videos,  pictures,  contact  lists,  phone  records,  and  any  data  that  showed  ownership  or  

possession"); State v. Bock, 485 P.3d 931, 936 (Or. App. 2021) (concluding that a warrant  

authorizing seizure of any item on a cell phone that might later serve as  circumstantial  

evidence  of  a  crime  is  tantamount  to  a  general  warrant).  See  generally  Adam  M.  

Gershowitz,  The Post-Riley Search Warrant: Search Protocols and Particular ity in Cell  

Phone Searches, 69 Vand. L. Rev. 585, 601-02 (2016) (explaining that while "any and all"  

data warrants are usually invalid, this broad language may be acceptable in cases where the  

type of evidence that the police are seeking could be hidden anywhere on the phone).   



     31   See generally Gershowitz, supra note 30, at 600-01.  



                                                     -  18 -                                                 2798  


----------------------- Page 19-----------------------

provision of the warrants that allowed police to search for "text messages." Macasaet's  



argument that his Facebook Messenger messages should have been suppressed is based  



in part on his view that the challenged messages were not "text messages." But in this  



case, the  superior  court found that the  affidavit established probable cause to search  



applications  containing  text  messages  and  that,  because  Facebook  has  messaging  



capabilities, the probable cause extended to such messages.   



                The record supports the  superior  court's finding. During the evidentiary  



hearing, Dunford explained that text messages may be sent through many different cell  



phone  applications.  According  to  Dunford,  "text  messages"  can  be  sent  through  



applications such as Facebook, WhatsApp,  and Kik. In response to questioning from  



the court and the prosecutor, Dunford explained that the Facebook application   



                works just like any other app  service where you can send a  

                text message or a message  through Facebook and it shows  

                up in the other person 's Facebook account. They click on it  

                and   they   see   the   message,   and   they   can   carry   on   a  

                conversation in that same window.  



He further testified that Facebook text messages would be transmitted from phone to  



phone, and that  



                [t]here's all kinds of different programs that allow you to  

                communicate  through  different  medi[ums].  I  mean,  take  

                WhatsApp. WhatsApp is a type of application that allows  

                you to communicate from one person to the other via text  

                and  you  can  send  photos  through  WhatsApp.  Skype  is  

                another. There's  -  there's -  as long as you have a data  

                connection or connected Wi-Fi or you have a phone that 's  

                connected to a cellular network that has data capability you  

                can use those types of apps.   



                                                -  19 -                                            2798  


----------------------- Page 20-----------------------

                  Dunford's  description comports  with  the  common use  of the term  "text  

message"32 to refer to any short electronic communication sent from one cell phone to  



another by typing words.33  Although  the  phrase  "text message" may have  originally  



                                                                                                                    

referred  to  messages  sent  from  one  phone  to  another  via  cellular  connection , the  



prevalence  of  messaging  applications  (including  Facebook  Messenger)  that  use  an  

internet connection has changed our everyday understanding of the term.34 As Dunford  



explained,   text   messages   are   often   sent   through   a   phone's   default   messaging  



application, but they may also be sent through other applications. Thus, we agree with  



the  superior  court's  finding  that  the  affidavit  supporting  the  warrant  established  



probable cause to search the messages on Macasaet's phone that were sent through the  

Facebook Messenger application.35   



                                       

     32   See State v. Chapman, 783 P.2d 771, 772 (Alaska App. 1989) (explaining that when  



interpreting  search  warrants,  evidence  supporting  the  warrant  must  be  considered  in  a  

reasonable and commonsense manner).   



     33   Text   message,   Merriam-Webster,   https://www.merriam-webster.com/dictionary 



/text%20message  (last  updated  Dec.  16,  2024)  ("[A]  short  message  sent  electronically  

usually   from   one   cell   phone   to   another .");   Text   message,   Cambridge   Dictionary  

https://dictionary.cambridge.org/us/dictionary/english/text-message#                              (last       visited  

Feb. 3, 2025) ("[A] written message, often containing short forms of words, sent from one  

cell phone or pager to another.").  



     34   See Youngjin Choi, Mobile Instant Messaging Evidence in Criminal Trials, 26 Cath.  



U.  J.  L.  &  Tech  1,  1-8  (2017);  Karen  Church  &  Rodrigo  de  Oliveira,  What's  up  with  

WhatsApp?  Comparing  Mobile  Instant  Messaging  Behaviors  with  Traditional  SMS,  in  

Proceedings  of  the  15th  international  conference  on  Human-computer  interaction  with  

mobile devices and services 352, 352-53, 360 (2013); Victoria Shannon,  15 years of text  

messages,         a      'cultural        phenomenon, '           N.Y.       Times        (Dec.        5,     2007),  

https://www.nytimes.com/2007/12/05/technology/05ihtsms.4.8603150.html?searchResult 

Position=1.  



     35   See State v. Koen, 152 P.3d 1148,  1151 (Alaska 2007) (explaining that although an  



appellate court ultimately exercises independent review in assessing whether a warrant is  

supported by probable cause, the appellate court must give "great deference" to the issuing  



                                                        - 20 -                                                     2798  


----------------------- Page 21-----------------------

                  Indeed, while Macasaet asserts that the "app data" provision of the warrant  



was invalid, he agrees that the warrant application contained probable cause to search  



messages contained on the cell  phone's default text messaging application.  Further,  



during the trial court proceedings, Macasaet also agreed that that the warrant established  



probable cause to search for his "text messages."   



                  This is important because all federal circuit courts, as well as many state  



courts, have applied the severability doctrine, whereby the invalid parts of an overbroad  



warrant are severed from the valid parts and suppression is only required for those items  

seized pursuant  to  the  invalid parts.36  Alaska's  appellate  courts have not previously  



                                     

court's  discretion  and  will  "revolve  marginal  cases  in  keeping  with  the  traditional  

preference accorded to warrants").   



    36   See In re Search Warrant Dated July 4, 1977 , 667 F.2d 117, 133 (D.C. Cir.  1981);  



United States v. Riggs, 690 F.2d 298, 300-01 (1st Cir.  1982);  United States v. George, 975  

F.2d 72, 79 (2d Cir.  1992);  United States v. Christine,  687 F.2d 749, 759 (3d Cir.  1982);  

United States v. Jacob,  657 F.2d 49, 52 (4th Cir.  1981);  United States v. Cook,  657 F.2d  

730, 735 (5th Cir.  1981);  United States v. Blakeney, 942 F.2d 1001, 1027 (6th Cir.  1991);  

United States v. Reed, 726 F.2d 339, 342 (7th Cir.  1984);  United States v. Fitzgerald, 724  

F.2d 633, 636 (8th Cir.  1983);  United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.  

1984);  United States v. Brown, 984 F.2d 1074, 1077-78 (10th Cir.  1993); United States v.  

Wuagneux,  683 F.2d 1343, 1354 (11th Cir.  1982); see also  United States v.  Giresi,  488  

F. Supp.  445,  459  n.17  (D.N.J.  1980)  (listing  numerous  state  cases  that  support  the  

severability doctrine).  



    Many courts have also held that there are limits to the applicability of the severability  

doctrine. See, e.g., United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993) (severability  

doctrine   is   only   applicable   if   the   valid   portions   of   the   warrant   are   sufficiently  

particularized, distinguishable from the invalid portions, and make up the greater part of  

the warrant); Aday v. Alameda County , 362 P.2d 47, 52 (Cal. 1961) (invalid portions of a  

warrant are not severable under all circumstances, and courts thus will not tolerate an abuse  

of the warrant procedure whereby wholesale seizures are made pursuant to warrants that  

are essentially general in character, but meet the requirement of particularity as to minor  

items); Thomas v. State, 305 A.3d 683, 701 (Del. 2023) (holding that if a court determines  

that a warrant is general, it must suppress all evidence obtained pursuant to it, but if the  

warrant is overbroad, the trial court may narrow it to strike out those portions of the warrant  

that are invalid for lack of probable cause).   



                                                     - 21 -                                                   2798  


----------------------- Page 22-----------------------

determined whether  and to what extent the severability doctrine applies to  overbroad  

search warrants.37   



                  But in this case, during the evidentiary hearing on Macasaet's motion to  



suppress, the superior court asked Macasaet what remedy he should be afforded if some,  



but not all, of the warrant was constitutionally invalid. In response, Macasaet's attorney  



stated that Macasaet would only be entitled to suppression of evidence obtained from  



parts  of  the  warrant  that  were  invalid.  In  other  words,  Macasaet's  defense  attorney  



directly conceded during the superior court proceedings that, even if the warrant were  



overbroad,  the  invalid  portions  were  severable  from  the  valid  portions.  Given  this  



procedural posture,  we will assume, for purposes of this appeal, that  the severability  



doctrine applies. We therefore conclude that the court did not err in denying Macasaet's  



motion to suppress these messages.   



                  We   take   this   opportunity,   however,   to   again   emphasize   that   law  



enforcement officers and judges should exercise great care in drafting and ratifying a  



search warrant's description of the places and  things to be searched  for and seized,  



particularly in the context of searches of digital computing and storage devices where  

"the likelihood of the seizure of innocent articles by mistake is the most substantial."38  



                    



                                     

    We need  not determine the applicability or scope of this doctrine  given Macasaet's  

concession in the superior court proceedings that it applies here.  



    37   Cf.  O'Connor  v.  State,  2019  WL  1579688,  at  *4  (Alaska  App.  Apr.  10,  2019)  



(unpublished)  (noting  that  the  defense  attorney  had  acknowledged  that  although  the  

warrant authorized the seizure of items for which there was no probable cause, this did not  

invalidate the entire warrant).  



    38   Pohland v. State, 436 P.3d 1093, 1100 (Alaska App. 2019) (internal quotation marks  



and citation omitted).  



                                                     - 22 -                                                   2798  


----------------------- Page 23-----------------------

        2.  Officers  conducted  the  search  of  the  phone  within  thirty  days  as  

             required by the warrant when they extracted the data from the phone;  

             their review of the data five months later  did not violate the Fourth  

            Amendment   



                 Macasaet  next  argues  that  the  superior  court  should  have  granted  his  



motion to suppress the Facebook Messenger messages because Bucknall conducted a  



warrantless search on January 9, 2017, when he ran the previously extracted data from  



Macasaet's cell phone through Physical Analyzer. Macasaet points out that the search  



warrant  issued  on  August  4,  2016,  required  law  enforcement  to  "make  the  search"  

within thirty days.39 Bucknall nevertheless reviewed the data using Physical Analyzer  



software  a full five months later, on  January 9, 2017.  Macasaet contends that when  



Bucknall conducted this review of the data, he conducted an untimely "search" after the  



warrant had expired, in violation of the Fourth Amendment.   



                 When  the   superior  court  denied  Macasaet's  motion  to  suppress,  it  



characterized Bucknall's use of Physical Analyzer in January as a "re-examination" of  



the  data, rather than a new "search" of  Macasaet's  cell phone that required its own  



warrant. Under the court's interpretation, the police seized Macasaet's cell phone when  



they  confiscated  it  at  the  crime  scene,  searched  the  cell  phone  when  they  removed  



extractable data from it using the Cellebrite device, and took action that was neither a  



seizure  nor  a  search when  they  later  analyzed  the  data using  the  Physical Analyzer  



software program.  



                 We  agree  with  the  superior  court  that  when  the  police  used  Physical  



Analyzer software to examine the previously-extracted  cell phone data, they  did not  



violate  the Fourth Amendment. The  data  that  was reviewed by  the police  had  been  



transferred from Macasaet's cell phone to a police server months before the review took  



                                    

    39   Alaska R. Crim. P. 37(a)(3)(B). Under this rule, a search warrant must "command  



the  officer  to  search  the  person  or  place  named  for  the  property  specified  within  a  

reasonable period not to exceed 30 days of the issuance of the warrant."  



                                                   - 23 -                                                2798  


----------------------- Page 24-----------------------

place. At the time Bucknall conducted the review, the cell phone remained in a police  



storage  locker,  and  Bucknall  did not  conduct  any  further  examination  of  the phone  



itself; his actions only involved examining the data that had been extracted in August.  



And before the police extracted any additional data from the cell phone, they applied  



for and received a second warrant to conduct a second search for data on the cell phone.  



                 A majority of courts considering this issue have determined that the police  



do not violate constitutional prohibitions against unreasonable searches and seizures if  



they fail to conduct a forensic analysis of a seized electronic computing device, or data  



taken from the device, within the prescribed period for executing  a search warrant -  



as long as the device itself was seized, and its data was extracted, within this prescribed  

time.40 Because we agree with the reasoning of these courts, we reject Macasaet's claim  



                                     

    40   E.g., United States v. Jarman, 847 F.3d 259, 267 (5th Cir. 2017) (explaining that "a  



delay of several months or even years 'between the seizure of electronic evidence and the  

completion of the government's review of [it] . . . is reasonable'  and does not render the  

warrant stale"); State v. Sanchez, 476 P.3d 889, 893 (N.M. 2020) (holding that, although a  

warrant is executed when the search or seizure authorized by that warrant is conducted, a  

search warrant for information stored on an electronic device is executed for purposes of  

the criminal rules when the device is seized or when the data stored on the device is copied  

on site);  Commonwealth v. Bowens, 265 A.3d 730, 751 (Penn. 2021) (deeming a warrant  

for the search of a cell phone to be "executed" upon seizure of the phone); see also  United  

States v. Beckmann, 786 F.3d 672, 680-81 (8th Cir. 2015) (concluding that suppression of  

the evidence was not required even if the police violated the rule requiring the search of an  

electronic device to be completed within a set time where the police did not exhibit reckless  

disregard  for  the  proper  procedure  in  light  of  the  length  of  time  typically  required  to  

conduct computer analyses);  United States v. Syphers, 426 F.3d 461, 469  (1st Cir. 2005)  

(noting that courts have permitted some delay in the execution of search warrants involving  

computers because of the complexity of the search  and concluding that suppression was  

not  warranted  if  the  delay  did  not  cause  a  lapse  in  probable  cause  or  prejudice  to  the  

defendant, unless the officers acted in bad faith); 2 Wayne R. LaFave, Search and Seizure  

§  4.7(a),  at  812  n.21  (6th  ed.  2024)  (explaining  that  courts  generally  have  not  applied  

constitutional protections to the off-site analysis of computer data); Orin S. Kerr, Search  

Warrants in an Era of Digital Evidence, 75 Miss. L.J. 85, 86, 120 (2005) (explaining that  

the law governing the warrant process fails to account for the bifurcated process of  

obtaining  digital  evidence,  making  it  difficult  to  determine  when  delays  in  forensic  

processing render a seizure unreasonable).   



                                                     - 24 -                                                  2798  


----------------------- Page 25-----------------------

that the police violated the Fourth Amendment when they examined the electronic data  



at a time that was outside of the time limit set by Alaska Criminal Rule 37(a)(3)(B) and  



incorporated into the search warrant at issue in this case.  



                  This does not mean that the police have an unlimited amount of time to  



examine digital data that is extracted from a cell phone or that they are free to examine  

such data in order to obtain evidence that is outside of the scope of the initial warrant.41  



When a search is conducted under the authority of a search warrant, the affidavit that  



justified the issuance of the warrant must be based on facts that are "so closely related  



to the time of the issue of the warrant as to justify a finding of probable cau se at that  



                                     

     41   See  State  v.  McDonnell ,  297  A.3d  1114,  1119  (Md.  2023)  ("In  this  case,  we  



conclude  that  .  .  .  Respondent[]  had  a  reasonable  expectation  of  privacy  in  the  data  

contained on his hard drive . . . . We hold that, because the government did not examine  

the  data  before  he  withdrew  his  consent,  Mr.  McDonnell  did  not  lose  his  reasonable  

expectation of privacy in the data, and the examination of the data was a search. As such,  

we conclude that the government conducted an unreasonable search by examining the data  

without any authority to do so, by a warrant or an exception to the warrant requirement.");  

People v. McCavitt, 185 N.E.3d 1192, 1197 (Ill. 2021) ("When defendant was acquitted of  

the sexual assault, his reasonable expectation of privacy in his data relating to that offense  

was  restored.  However,  the  acquittal  did  not  resolve  the  portion  of  the  warrant  that  

authorized  a  search  for  digital  evidence  of  the  unauthorized  video  recording.  The  post  

acquittal  computer  examination  was  reasonably  directed  at  obtaining  evidence  of  the  

unauthorized video recording, and the child pornography that was uncovered during  the  

search was admissible because the images were found in plain view."); People v. Hughes,  

958 N.W.2d 98, 115 (Mich. 2020) ("In summary, the search and seizure of defendant's  

cell-phone  data  pursuant  to  a  warrant  in  the  drug-trafficking  case  did  not  altogether  

eliminate  his  reasonable  expectation  of  privacy  in  that  data.  Rather,  the  police  were  

permitted to seize and search that data, but only to the extent authorized by the warrant.  

Any further review of the data beyond the scope of that warrant constitutes a search that is  

presumptively  invalid  under  the  Fourth  Amendment,  absent  some  exception  to  that  

amendment's  warrant  requirement.");  see  also  Chandler  v.  State,  487  P.3d  616,  619  

(Alaska  App.  2021)  ("So  long  as  the  Troopers  confined  their  search  to  the  boundaries  

authorized by the conditions of Chandler's probation, they did not need this search warrant  

to authorize their continued possession of, and search of, Chandler's computers.").   



                                                     - 25 -                                                   2798  


----------------------- Page 26-----------------------

time."42 For this reason, a search is  constitutionally valid only if it is  executed before  



the probable cause upon which the warrant was based has dissipated  (i.e., before the  

warrant has become stale).43  In order for  an  examination of previously-extracted data  



to  pass  constitutional  muster,  the  examination  must  also  be  conducted  before  the  

probable cause upon which the warrant was based has dissipated.44   



                 To determine whether the information offered in support of a warrant has  



                                                                                                               45 

become stale,  "[t]he mere lapse of substantial amounts of time is not  controlling."                              



Instead, staleness is evaluated "in light of the particular facts of the case and the nature  

of the criminal activity."46 The appropriate inquiry is whether "there is sufficient basis  



to believe, based on a continuing pattern or other good reasons, that the items to be  

seized are still on the premises."47   



                                     

    42   Sgro v. United States, 287 U.S. 206, 210 (1932); see Szajer v. City of Los Angeles,  



632 F.3d 607, 612 (9th Cir. 2011);  United States v. Doyle, 650 F.3d 460, 474 (4th Cir.  

2011); United States v. Church, 823 F.3d 351, 356 (6th Cir. 2016); United States v. Jenkins,  

984 F.3d 1038, 1044 (D.C. Cir. 2021).  



    43   See generally 2 Wayne R. LaFave, Search and Seizure § 4.7(a), at 812 (6th ed. 2024)  



(collecting  cases  and  explaining  that  warrants  that  are  executed  outside  the  time  limit  

provided by the court are unconstitutional if the probable cause upon which they are based  

has dissipated).  



    44   See id.; McCavitt , 185 N.E.3d at  1213 ("A search of digital data that takes several  



years may be reasonable as long as the search ends before trial and does not exceed the  

scope of the original search warrant.").  



    45   Cornel v. Hawaii, 37 F.4th 527, 533 (9th Cir. 2022); United States v. Alvarez, 358  



F.3d 1194, 1203 (9th Cir. 2004)  ("The mere lapse of substantial amounts of time is not  

controlling" where "the ongoing nature of a crime might lead to the maintenance of tools  

of the trade." (quoting United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988))); United  

States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (quoting Dozier , 844 F.2d at 707).   



    46   Cornel, 37 F.4th at 533 (quoting United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.  



1993)).  



    47   United States v. Gann, 732 F.2d 714, 722 (9th Cir. 1984).  



                                                     - 26 -                                                  2798  


----------------------- Page 27-----------------------

                 In Macasaet's case, when the police applied for the first warrant to search  



his cell phone, Dunford's affidavit informed the court that Macasaet's cell phone was  



being held at the Technical Crimes Unit's evidence storage facility. As other courts  



have recognized, when cell phone data rests in the custody of the police and not of the  



                                                                                                               48 

suspect, the basis for the probable cause determination is unlikely to have  changed.                              



Here, the police initially extracted the data from Macasaet's phone within the time limit  



required by  Alaska  Criminal Rule 37 and stored it on a secure police server. Thus,  



although the forensic examination of the data did not occur until months later, the data  



that was examined could not have changed, and the probable cause that supported the  

issuance of the warrant continued to exist.49 Because the  delay in examining the data  



did not result in a search that was conducted after the probable cause had dissipated, the  

superior court did not err in declining to suppress the evidence.50  



                                     

    48   E.g.,  Commonwealth  v.  Knoble,  188  A.3d  1199,  1206-07  (Pa.  Super.  2018);  



Commonwealth v. Ericson, 10 N.E.3d 127, 132-33 (Mass. App. 2014);  Wolf v. State, 266  

P.3d 1169, 1174-75 (Idaho App. 2011); State v. Grenning, 174 P.3d 706, 713-14 (Wash.  

App. 2008); State v. Sanchez, 476 P.3d 889, 894-95 (N.M. 2020).    



    49   We also note that Dunford's affidavit provided a detailed explanation of the "highly  



technical" process for conducting a forensic analysis of a cell phone.  The affidavit also  

explained  that  it  could  take  "weeks  or  months"  to  fully  sort  through  the  data  that  was  

extracted from the phone. Thus, when the court issued the warrant authorizing the forensic  

analysis of Macasaet's cell phone, it understood that the  authorities would first copy the  

digital data that was on the phone and then examine it, and that this process that would take  

"weeks  or  months."  Under  these  circumstances,  it  is  reasonable  to  view  the  court's  

directive to "make the search . . . within thirty days" as requiring the police to complete the  

initial extraction of data from the cell phone within thirty  days, rather than requiring the  

police to complete their examination of the extracted data within that time limit.  



    50   Macasaet also suggests that evidence from the search should be suppressed because,  



after the police seized his cell phone, they continued to hold it for over five months. But  

even if the police retained his phone for an unconstitutionally long period of time, this  

would not result in the suppression of any evidence as the police did not search his phone  

again until they obtained a second warrant (and Macasaet did not argue on appeal that the  

search conducted pursuant to  this second warrant  was untimely, nor did he  ask the trial  

court to suppress "text messages" found pursuant to that search).  



                                                     - 27 -                                                  2798  


----------------------- Page 28-----------------------

                 Our  conclusion  is  consistent  with  the  procedure  for  cell  phone  search  

warrants  promulgated  by  the  United  States  Supreme  Court.51  Although  the  Fourth  



Amendment contains no requirements about when a search or seizure is to occur or its  



duration, Federal Rule of Criminal Procedure 41(e)(2)(A) provides that a duly issued  

warrant shall be executed within a specified period not to exceed  fourteen  days.52  A  



separate  provision  of  the  rule,  Federal  Rule  41(e)(2)(B),  governs  warrants  seeking  



electronically stored information. Under this provision, the seizure and onsite copying  



of the electronic data must occur within the fourteen-day period, but later review of the  



information is permissible:   



                 Unless  otherwise  specified,  the  warrant  authorizes  a  later  

                 review  of  the  media  or  information  consistent  with  the  

                 warrant. The time for executing the warrant . . . refers to the  

                 seizure or on-site copying of the media or information, and  

                 not to any later off-site copying or review.[53]  



                 The Advisory Committee's notes on the 2009 amendments to the Federal  



Rules of Criminal Procedure recognized that "practical considerations necessitate that  



a warrant's execution date govern only the date by when the seizure of the device, or,  



alternatively,  on-site  copying  of  the  device,  must  occur,  and  not  when  off-site  

investigation  and  analysis  of  its  contents  must  be  completed."54   The  Advisory  



Committee stated:  



                                    

    51   See Fed. R. Crim. P. 41(e)(2).  



    52   As we have explained, the Alaska counterpart to this rule, Alaska Rule of Criminal  



Procedure 37(a)(3)(B) requires that the search must be conducted within thirty days of the  

issuance of the warrant.   



    53   Fed. R. Crim. P. 41(e)(2)(B).  



    54   United  States  v.  Cleveland,  907  F.3d  423,  430  (6th  Cir.  2018)  (discussing  the  



advisory  committee's  notes  on  the  2009  amendment  to  Federal  Rule  of  Criminal  

Procedure 41).  



                                                    - 28 -                                                 2798  


----------------------- Page 29-----------------------

                 This  rule  acknowledges  the  need  for  a  two-step  process:  

                  officers may seize or copy the entire storage medium and  

                 review  it  later  to  determine  what  electronically  stored  

                 information falls within the scope of the warrant.  



                          . . . .  



                 While consideration was given to a presumptive national or  

                 uniform  time  period within  which  any  subsequent  off-site  

                  copying  or  review  of  the  media  or  electronically  stored  

                 information  would  take  place,  the  practical  reality  is  that  

                 there is no basis for a "one size fits all" presumptive period.  

                 A substantial amount of time can be involved in the forensic  

                 imaging and review of information. This is due to the sheer  

                  size of the storage capacity of media, difficulties created by  

                  encryption   and   booby   traps,  and   the  workload   of   the  

                  computer  labs.  The  rule  does  not  prevent  a  judge  from  

                 imposing a deadline for the return of the storage media or  

                  access to the electronically stored information at the time the  

                 warrant is issued. However, to arbitrarily set a presumptive  

                 time period for the return could result in frequent petitions  

                 to the court for additional time.[55]  



                 Thus, while courts are not constitutionally required to set time limits for  



the review of electronic data, and uniform time limits may not be practical, time limits  



nevertheless  are  useful  prophylactics  against  examining  data  after  the  warrant  that  



authorized the extraction of the data has become stale. Indeed, the longer the police wait  



before examining extracted data, the more likely it is that the situation will change so  



that facts which supported the issuing court's determination of probable cause will no  



longer exist.  



                 We accordingly recommend that,  in order to avoid confusion about the  



scope of the court's grant of authority to law enforcement officers to seize and analyze  



electronic data, trial courts should consider setting reasonable case-specific time limits  



for  completing  the  extraction  and  review  of  the  data. As  we  have  explained,  under  



                                     

    55   Fed. R. Crim. P. 41 advisory committee's notes to 2009 amendment.  



                                                     - 29 -                                                  2798  


----------------------- Page 30-----------------------

Alaska Criminal Rule 37, the police must complete the original extraction, seizure, or  



on-site  copying  of  the  data  within  a  maximum  of  thirty  days.  But  courts  have  the  



authority to set a shorter deadline for completion of this task, and they also have the  

authority to set a deadline for completion of the analysis of the extracted data.56 If the  



police are unable to complete these tasks  within  deadlines set by the court, they may  



seek an extension of time from the trial court by establishing that there continues to be  



probable cause to believe that evidence will be located within the data.  



                    



         3.  Although the search warrant in this case did not contain an adequate  

             temporal limit, suppression of the text messages is not required under  

             the facts of this case  



                  On  appeal,  Macasaet  suggests  that,  in  order  to   satisfy  the  Fourth  



Amendment 's particularity requirement,  a cell phone search warrant must restrict the  



search to data that was generated within a time window that has specific relevance to  



the evidence sought. Macasaet notes that the warrant provision allowing for a search of  



the data from his phone "had no temporal limit" -  i.e., no date restriction regarding  



the data that could be seized. We agree with Macasaet that to pass constitutional muster,  

a warrant to search a cell phone usually must contain some temporal restriction.57   



                                     

    56   See Alaska R. Crim. P. 53 (permitting courts to relax or dispense with rules "in any  



case  where  it  shall  be  manifest  to  the  court  that  a  strict  adherence  to  them  will  work  

injustice").   



    57   See, e.g., Commonwealth v. Snow, 160 N.E.3d 277 (Mass. 2021) (to be sufficiently  



particular, a warrant for a cell phone search presumptively must contain some temporal  

limit); Richardson v. State, 282 A.3d 98, 119 (courts commonly should consider imposing  

a  temporal  limit  when  issuing  a  cell  phone  search  warrant);  United  States  v.  McCall,  

84 F.4th 1317, 1327 (11th Cir. 2023),  cert. denied, 144 S. Ct. 1042 (2024)  (holding that  

there are generally two types of limitations that can adequately particularize a warrant for  

electronically stored information: (1)  imposing a restriction on the subject matter of the  

data that may be examined, or (2) imposing a temporal restriction on the information to be  

searched).  



                                                     - 30 -                                                   2798  


----------------------- Page 31-----------------------

                 The  permissible  temporal  parameter  for  a  cell  phone  search  is  a  fact- 



intensive inquiry that typically must be resolved based on the particular facts of each  



case.  Thus,  we   ordinarily  would  remand  this  matter  to  the  superior  court  for  



"determination whether each piece of proffered evidence would have fallen within a  



reasonable temporal limit" -  i.e., a time window for which the police had probable  

cause to believe they would find evidence of the target crime.58   



                 But in this case, the messages that the  State introduced at trial were sent  

or  received  within  the  three  days  surrounding  Guthrie's  death.59  And  Macasaet  



concedes that, with respect to the provision authorizing a search for the text messages  



on his cell phone, the warrant was particular and supported by probable cause. Further,  



Macasaet does not argue that the time window during which the challenged Facebook  



Messenger messages were transmitted - within three days of Guthrie's death - was  



overly expansive. Because the messages admitted at trial were sent or received close to  



Guthrie's death, we need not order a remand, and we instead affirm the superior court's  



order denying Macasaet's motion to suppress.  



  



         Why  we  conclude  that  the  superior  court  erred  in  denying  Macasaet's  

         motion to suppress his statements   



                 On  August  2,  2016,  two  days  after  Guthrie's  body  was  recovered,  



Macasaet  drove  to  the  Alaska  State  Trooper  station  at  10:00  a.m.  and  voluntarily  



submitted to an interview. Although Macasaet was not under arrest at this time, he was  



aware that he was a suspect in the investigation into Guthrie's death.  



                                    

    58   Snow, 160 N.E.3d at 289.  



    59   In fact, other than the messages between Macasaet and Sage about meeting at the  



Black Bear Diner, all of the messages were sent or received within a twenty-one-hour time  

window.  



                                                    - 31 -                                                 2798  


----------------------- Page 32-----------------------

               Investigator Dunford and Sergeant Grant Miller interviewed Macasaet in  



the station breakroom. During this interview, Dunford did most of the talking. Both  



troopers were armed, but only Miller was wearing his full uniform.  



               Dunford began by advising Macasaet that,  although the breakroom door  



was  closed,  it  was  not  locked  and  Macasaet  was  free  to  leave  anytime.  He  then  



questioned Macasaet for approximately one hour about his relationship with Guthrie  



and  the  events  surrounding  her  disappearance.  The  superior  court  found  that  this  



exchange was "non-accusatory, polite and respectful," and Macasaet concedes that he  



was not subject to custodial interrogation during this initial part of the interview.  



               After an hour of questioning, Dunford informed Macasaet that he had a  



search warrant to collect biological samples from Macasaet and document any physical  



injuries. Macasaet asked Dunford why the troopers' investigation was only focused on  



him.  In  response,  Dunford  acknowledged  that  Macasaet  was  a  suspect  because  the  



police learned that he had a history of strangling Guthrie. Dunford then asked Macasaet  



some questions about these past instances of violence.  



               After   discussing    these    past   incidents,   Dunford     re-directed    the  



conversation  back  to  the  forthcoming  execution  of  the  search  warrant,  which  he  



described as a "very invasive" process. Dunford previewed that the warrant authorized  



him  to  swab  Macasaet's  fingers,  fingernails,  hands,  mouth,  and  penis;  photograph  



Macasaet's body; and seize oral prescription medications and digital devices. Hearing  



this, Macasaet asked whether Dunford planned to seize  the  cell phone  he was using,  



which belonged to his nephew (the police had seized Macasaet's cell phone two days  



earlier).  Dunford  replied  that  he  needed  to  examine  the  phone  before  determining  



whether to seize it. Macasaet handed the phone over to the troopers and provided its  



passcode.  



               Dunford  then  conducted  the search of Macasaet's body,  a process  that  



took just under thirty minutes. Macasaet was not shackled or handcuffed during this  



time. However, Dunford told Macasaet that he was not free to leave while the warrant  



                                             - 32 -                                         2798  


----------------------- Page 33-----------------------

was  being  executed.  The  trial  court  later  found  that,  while  Dunford  executed  the  



warrant,  Dunford  and  Macasaet  "interacted  convivially,"  and  Macasaet  "readily  



complied"  with  each  verbal  order  he  received.  These  orders  required  Macasaet  to  



remove clothing; drop to his knees; submit to touching and photographing of his penis  



and scrotum; and submit to combing and plucking of his pubic hair.  



               After  the search process  was  complete,  Dunford  told Macasaet  that  he  



could leave at any time. However, Dunford did not return the cell phone Macasaet was  



using or clarify when it would be returned. When Macasaet asked Dunford if he could  



get the cell phone back, Dunford responded that he needed to discuss the phone issue  



with his colleague, and that he would "kick [Macasaet] loose" afterwards. Dunford then  



left the breakroom. When Dunford returned to the room, Macasaet immediately asked,  



"You  guys  talk  about  my  nephew's  phone?"  However,  Dunford  did  not  provide  



Macasaet with any update or timetable for when the phone would be returned. Rather,  



Dunford replied, "we'll get to that," and proceeded to ask Macasaet more questions  



about Guthrie.  



               Macasaet  remained  in  the  room  and  answered  Dunford's  additional  



questions. This "recap" - which was largely cumulative of the first hour of questioning  



- lasted for approximately twenty-two minutes. Once the recap was over, Dunford told  



Macasaet that they would "be in touch," and made plans to speak with Macasaet again  



later  that  day.  The  police  returned  the  phone  at  the  very  end  of  the  interview ,  and  



Macasaet then left the police station.  



               Macasaet moved to dismiss all statements he made after the execution of  



the  search  warrant.  Macasaet  argued  that  because  he  was  subjected  to  custodial  



interrogation, the police should have provided him  Miranda  warnings. The superior  



court ruled that Macasaet was not in "custody" at any time for purposes of Miranda .  



Reviewing the transcript and recording of Macasaet's interview, the court concluded  



that  the  police  "did  nothing  particularly  intimidating  that  would  cause  a  reasonable  



                                               - 33 -                                           2798  


----------------------- Page 34-----------------------

person in Macasaet's position to believe they were not free to stop answering questions"  



and that "Macasaet knew that he would be free to leave once the search was over."  



                 The court declined to suppress any part of Macasaet's interview, including  



statements Macasaet made when he was temporarily seized while the warrant was being  



executed.  In  reaching  this  ruling,  the  superior  court  acknowledged  that  Macasaet's  



freedom of movement was restricted while the warrant was executed.  



                 On  appeal,  Macasaet  argues  that  he  was  in  "custody"  while  Dunford  



executed  the  search  warrant,  and  afterward,  when  Dunford  continued  to  question  



Macasaet without returning his nephew's cell phone.  



                 The Fifth Amendment to the United States Constitution guarantees that no  



person "shall be compelled . . . to be a witness against himself" in any criminal case or  

proceeding.60       In    Miranda       v.   Arizona ,     the    Supreme       Court     interpreted      the  



Fifth Amendment  to  require  that,  before  the  police  subject  a  person  to  custodial  



interrogation, the person must be advised of the privilege against self-incrimination and  

their right to an attorney.61 The Alaska Supreme Court has held that Article I, Section 9  



of the Alaska Constitution requires at least the same.62   



                                    

    60   U.S. Const. amend. V; see also Alaska Const. art. I, § 9.  



    61   Miranda v. Arizona , 384 U.S. 436, 444 (1966); see also Beagel v. State, 813 P.2d  



699, 705-06 (Alaska App. 1991) ("In order for a person's Miranda rights to be triggered,  

the statements must be the product of both custody and interrogation.").  



    62   Munson v. State , 123 P.3d 1042, 1047 (Alaska 2005) ("We begin our analysis with  



the words of the Fifth Amendment to the United States Constitution and article I, section  

nine of the Alaska Constitution, both of which guarantee that no person 'shall be compelled  

in any criminal [case or proceeding] to be a witness against himself. ' These simple words  

form the basis of a criminal defendant's rights to counsel and to remain silent. While the  

core protection is a prohibition on compelling a defendant to testify against himself at trial,  



Miranda  and  our  own  cases  under  the  Alaska  Constitution  show  that  this  protection  is  

enforceable in any setting where a suspect is subject to custodial police interrogation.");  

see also State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002); Hunter v. State, 590 P.2d 888,  

895 (Alaska 1979).  



                                                    - 34 -                                                 2798  


----------------------- Page 35-----------------------

                 In   the   present   case,   Macasaet   was   undisputedly   subjected   to   an  



"interrogation" - i.e., words or actions by the police that are "reasonably likely to elicit  

an incriminating response."63  However, the parties dispute whether Macasaet was in  



"custody" when this interrogation occurred.   



                 When evaluating whether a person is in Miranda custody, the trial court  



must engage in a two-step process. First, the court  must evaluate the totality of  the  



circumstances surrounding the interrogation and make all factual findings relevant to  

its  analysis.64  Second,  the  court  must  determine  whether  an  objectively  reasonable  



person faced with those circumstances would have felt free to terminate the questioning  

and leave.65  A defendant  is in custody when "a reasonable person  would feel  [they]  



w[ere] not free to leave and break off police questioning"66 because they were subject  



to a "restraint on freedom of movement of the degree associated with a formal arrest."67  



                 The Alaska Supreme Court has found three groups of factors salient to  



determining whether a person was in custody for purposes of Miranda : (1) events that  



occurred  before  the  interrogation;  (2)  the  circumstances  of  the  interrogation  itself  



(including the time, duration, and location of questioning; the number of police present;  



                                     

    63   Rhode  Island  v.  Innis ,  446  U.S.  291,  301  (1980)  (defining  an  "interrogation"  as  



words  or  actions  by  the  police  that  are  "reasonably  likely  to  elicit  an  incriminating  

response"); see Klemz v. State , 171 P.3d 1169, 1172 (Alaska App. 2007) (holding that the  

probation officer's questions subjected the defendant to custodial interrogation because the  

questions were reasonably likely to elicit an incriminating response).  



    64   Smith, 38 P.3d at  1154.  



    65   Hunter, 590 P.2d at 895 (agreeing that the objective "reasonable person" test is the  



proper  standard  for  determining  custody);  Smith,  38  P.3d  at  1154  (explaining  that  the  

"reasonable person" test is the second step in determining custody for Miranda purposes)  

(citing Thompson v. Keohane, 516 U.S. 99, 112 (1995)).   



    66   Smith, 38 P.3d at 1154 (quoting Hunter, 590 P.2d at 895).   



    67   Id. (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).  



                                                     - 35 -                                                  2798  


----------------------- Page 36-----------------------

the presence of actual physical restraints or their equivalent; and whether the defendant  



was questioned as a suspect or a witness); and (3) and events that occurred  after  the  

interrogation.68  No  one  factor  is  dispositive,  and  courts  must  assess  the  relative  



importance of these factors on a case-by-case basis.69 Appellate courts apply  de novo  



review to the ultimate Miranda custody determination.70   



                  In this case, some of the factors support a finding that Macasaet was not  



in  custody  during  the  execution  of  the  search  warrant.  Macasaet  voluntarily  drove  

himself  to  the  police  station  and  agreed  to  be  interviewed  in  advance.71  When  the  



interview began, Macasaet was positioned in the chair closest to the door, and Dunford  



"took pains to make sure Macasaet knew the door was unlocked and that he could leave  

at any time."72  The interview itself was "non-accusatory, polite and respectful," and  



Dunford and Macasaet "interacted convivially" while Dunford executed the warrant.73  



The police never displayed or threatened force, and Macasaet was seized for the limited  



purpose  of  "collect[ing]  the  specimens  the  search  warrant  authorized."  After  the  



evidence was collected, Dunford again told Macasaet that he was free to leave, and after  



                                     

     68   Hunter, 590 P.2d at 895.  



     69   Smith, 38 P.3d at  1154-55; Hunter , 590 P.2d at 895.  



     70   Smith, 38 P.3d at 1153.  



     71   See  Beltz  v.  State,  895  P.2d  513,  520  (Alaska  App.  1995)  (indicating  that  if  the  



defendant initiates contact with the police, that factor weighs  against custody); State v.  

Murray , 796 P.2d 849, 851 (Alaska App. 1990); cf. State v. Cassell, 602 P.2d 410, 414-15  

(Alaska 1979) (concluding that the defendant was in custodial interrogation because he did  

not go to the police station on his own initiative but was driven in a patrol car).   



     72   See Smith, 38 P.3d at 1157 (the police indicating to a defendant they are free to leave  



anytime is generally a factor that weighs against custody).  



     73   Long v. State , 837 P.2d 737, 743  (Alaska App.  1992) (non-accusatory questioning  



conducted in a manner that is "low-key, not heavy-handed" is a factor that weighs against  

custody).  



                                                     - 36 -                                                  2798  


----------------------- Page 37-----------------------

conducting  further  questioning  of  Macasaet,  Dunford  returned  the  phone  to  him.  

Macasaet was not arrested until a week later, on August 9, 2016.74  



                 However,  many  other  factors  support  a  finding  of  custody.  When  the  

interview  began,   Macasaet   was   aware   that   he   was   a   suspect.75   Macasaet  was  



interviewed at the police station by two  law enforcement  officers, one of whom was  

wearing  his  full  uniform.76  Before  collecting  evidence  from  Macasaet,  Dunford  



confiscated Macasaet's nephew's cell phone.77 Dunford also informed Macasaet that he  



was not free to leave while the "really invasive" warrant was executed (a process that  



required Macasaet to submit to the exposure and swabbing of his genitals and combing  



and plucking of his pubic hair). After the evidence collection concluded, Dunford did  



not return the cell phone and he refused to update Macasaet on when, or if, it would be  



returned. Instead, Dunford continued questioning Macasaet about Guthrie , and he did  



not return the phone until after the questioning was finished.  



                 Weighing these factors  de novo, we conclude that  Macasaet  would not  



have felt free to leave  during the execution of the warrant. Macasaet was temporarily  



detained at the police station while the police  swabbed and photographed his genitals  



and combed  and plucked  his pubic hair.  This type of body search  necessarily  would  



cause  a person  to  feel vulnerable and ashamed, amplifying the coercive nature of a  



simultaneous police interrogation. Such a process creates a restraint on the freedom of  



                                    

    74   Smith, 38 P.3d at  1159 (the release of a person after the interview weighs against  



custody, but this factor is given "limited weight").   



    75   Id. at  1158-59 (questioning a subject as a suspect and suggesting that they are guilty  



is a factor that weighs in favor of custody).  



    76   Id.  at  1156 (interviews at the police stations or patrol vehicles are generally more  



custodial than other locations, a factor that weighs in favor of custody).  



    77   Rockwell v. State, 215 P.3d 369, 373-74 (Alaska App. 2009) (suggesting, without  



deciding, that when a police officer holds onto a suspect's keys during an interview, that  

factor weighs in favor of custody).   



                                                    - 37 -                                                 2798  


----------------------- Page 38-----------------------

a defendant's movements that is commensurate with a formal arrest.78 For these reasons,  



we conclude that Macasaet was in custody during the execution of the search warrant  



and should have been given Miranda warnings.  



                 We  next  consider  whether  Macasaet  remained  in  custody  when  he  



responded to additional questions asked by Dunford, after the search was concluded but  



before  the  officers  returned  the  cell  phone  they  had  taken  from  him.  As  we  have  



explained, after the search process was complete, Dunford told Macasaet that he could  



leave at any time. But Dunford did not return the cell phone he had taken from Macasaet  



or indicate when it would be returned. And when Macasaet asked Dunford if he could  



get the cell phone back, Dunford responded that he needed to discuss the phone issue  



with his colleague, and that he would "kick [Macasaet] loose" afterwards. Dunford did  



not tell Macasaet when the phone would be returned. Rather, Dunford told Macasaet,  



"we'll get to that," and continued asking him questions about Guthrie in order to "recap"  



what  Macasaet  had  previously  told  him .  During  the  questioning,  not  only  did  the  



officers retain the cell phone, they also withheld their decision regarding whether they  



would give it back.  



                 Macasaet argues that, during this additional questioning, he continued to  



be  in  custody  and  that  the  prior  questioning  without  Miranda  warnings  tainted  this  



continued interrogation. We agree.   



                                    

    78   See  United States v. Turner, 761 A.2d 845, 850-53  (D.C. Cir. 2000) (concluding  



that an interrogation that had been non-custodial turned custodial, for purposes of issuing  

Miranda warnings, when the police advised the defendant they had a warrant authorizing  

them to take samples  "of his blood, saliva, and  head and pubic hair");  United States v.  

McCain , 556 F.2d 253, 255 (5th Cir. 1977) (concluding that the defendant was in Miranda  

custody while she was being strip searched, and that she remained in custody after the strip  

search  while  her  luggage  was  being  re-examined);  United  States  v.  Daubmann,  474  

F. Supp.2d  228,  234  (D.  Mass.  2007)  (describing  the  defendant's  "humiliating  state  of  

undress" during the interview as one factor supporting custody).  



                                                   - 38 -                                                 2798  


----------------------- Page 39-----------------------

                 A  person  in  Macasaet's  position,  who  had  just  been  subjected  to  a  



temporary seizure to conduct a highly invasive body search, would reasonably conclude  



that, despite the officers' statements to the contrary, he was not actually free to leave.  



This perception would be amplified by the officers' exercise of authority over the cell  



phone, a valuable item of personal property, and their refusal to discuss its return until  

after Macasaet had answered additional questions.79 Similarly, Dunford's comment that  



Macasaet would be "kicked loose" later, after Dunford had spoken with his colleagues  



about the phone, would have  suggested to a reasonable person that they were not free  



to  leave  during  Dunford's  questioning  of  them.  These  circumstances  amounted  to  



Miranda  custody, and the inherent pressures of this situation could have compelled  



Macasaet to speak against his will.   



                 For  these  reasons, we  conclude  that  Macasaet  was  subject  to  custodial  



interrogation beginning when Dunford executed the search warrant and continuing until  



the police station  interview ended. Miranda warnings should have been given before  



Dunford pursued additional interrogation during the execution of  the search warrant.  



Because warnings were not given, the court should have suppressed all of the statements  



Macasaet subsequently made in response to police questioning.   



                 We   nevertheless   conclude   that           the   admission   of   Macasaet's   un- 



Mirandized  statements  to  Dunford  was  harmless  beyond  a  reasonable  doubt  in  the  

context of Macasaet's trial.80 Critically, the statements in question were cumulative of  



other evidence admitted at trial, including statements Macasaet made in over a dozen  



conversations he had with law enforcement officers on July 31 and  statements he made  



                                    

    79   See Rockwell, 215 P.3d at 373-74 (suggesting, without deciding, that when a police  



officer  holds  onto  a  suspect's  keys  during  an  interview,  that  factor  weighs  in  favor  of  

custody).   



    80   Motta  v.  State ,  911  P.2d  34,  39-40  (Alaska  App.  1996)  (concluding  that  the  



defendant's testimony at trial presented a version of events that paralleled those from his  

tainted confession, rendering harmless the jury's consideration of those facts).  



                                                    - 39 -                                                 2798  


----------------------- Page 40-----------------------

in the first hour of his August 2 interview at the police station, prior to the execution of  



the warrant. Under these circumstances, the admission of the portion of the interview  



that occurred during the search and immediately after it would not have had any impact  



on the jury's verdict.   



                 We accordingly conclude that the error in denying the motion to suppress  



was harmless beyond a reasonable doubt.   



  



        The superior court did not abuse its discretion by denying Macasaet's  

        motion for a mistrial   



                 Macasaet argues that the superior court erred by denying his motion for a  



mistrial after Trooper Benjamin Mank testified that Macasaet did not show "genuine  



emotion"  when  discussing  Guthrie's  death.  We  begin  by  explaining  the  procedural  



posture of this claim in more detail.   



                 Midway  through  trial,  Macasaet  moved  for  a  protective  order  to  limit  



Mank's testimony. After listening to the prosecutor's opening statement, Macasaet was  



concerned that Mank's testimony might  extend beyond his observations, which were  



permissible  evidence,  to  his  opinion  about  how  "an  innocent  man"  in  Macasaet's  



position should have acted, which was impermissible. The prosecutor agreed that Mank  



could testify about what he observed, but had to refrain from offering his opinion on  



whether Macasaet acted guilty or innocent. The court granted the protective order under  



the parameters agreed to by the parties.   



                 The State called Mank to testify during its case-in-chief. On July 31, Mank  



interviewed Macasaet shortly after Macasaet reported finding Guthrie's body.  While  



Mank was on the stand, the State admitted and published a recording of this interview.  



After  Macasaet  began  audibly  crying  on  the  recording,  the  prosecutor  paused  the  



recording  and  asked  Mank  whether  he  had  observed  tears  in  Macasaet's  eyes.  In  



response, Mank testified that those tears were the only time that he saw Macasaet show  



"genuine emotion":   



                                                  - 40 -                                               2798  


----------------------- Page 41-----------------------

                      Prosecutor : All right. And when you were speaking  

               with [Macasaet], did you see any tears in his eyes?  



                      Mank : Only the moment when he started asking about  

               what should he tell his boys. That's the only time I saw any  

               tears, or what I would say genuine emotion .  



                      Prosecutor : And did you see any snot come out of his  

               nose?  



                      Mank : No.   



                      (Emphasis added)  



               Macasaet's attorney did not immediately object to this testimony. Rather,  



he waited until the jury was next excused and then moved for a mistrial.  The defense  



attorney  argued that by  stating that Macasaet only showed genuine emotion when he  



discussed his children, Mank had implied that Macasaet either showed no emotion, or  



non-genuine emotion, when discussing Guthrie's death.   



               The  prosecutor  agreed  that  Mank's  testimony  was  error.  However,  he  



noted that the error was "fleeting" and hard to discern - so much so that the superior  



court did not notice the error when it occurred. The prosecutor urged the court to deny  



the mistrial, but grant whatever curative instruction the defense requested.   



               The  court  found  that  Mank's  testimony  was  improper.  But  the  court  



denied Macasaet's motion for a mistrial, finding that Macasaet could still have a fair  



trial if curative actions were taken. The judge then ordered the curative measures that  



Macasaet requested, including striking not only Mank's improper testimony from the  



record but also the remainder of his testimony about Macasaet's appearance. Macasaet  



asked the court not to provide a curative instruction to the jury, so the court did not  



order one.  



               On appeal, Macasaet argues that the court erred in declining to order a  



mistrial. "The question of whether a particular mistake or occurrence requires a mistrial  



is entrusted to the trial judge's discretion, and an appellate court will reverse the trial  



                                             - 41 -                                         2798  


----------------------- Page 42-----------------------

judge's  decision  only  if  the  judge  has  abused  that  discretion." 81  When  a  mistrial  is  



requested  because  improper  testimony  was  admitted  at  trial,  "[a]  timely  curative  



instruction is presumed to remedy the unfair prejudice that might otherwise arise from  

inadmissible testimony."82 However, even if timely curative actions are taken, a mistrial  



may still be warranted in the interests of justice.83   



                 This Court has repeatedly  cautioned that witnesses may not function as  



"human polygraphs" by offering their opinion on whether another witness's statement  

was truthful.84 The risk of prejudice is particularly acute when the witness is a police  



officer.85  This is because jurors may "surmise that the police are privy to more facts  



than have been presented in court, or they may be improperly swayed by the opinion of  

a witness who is presented as an experienced criminal investigator."86  



                 Here, Mank's testimony was not only improper, but had the imprimatur  



of authority coming from a police officer. Mank's testimony suggested that Macasaet  



either  was  unemotional or  had  feigned emotion when discussing Guthrie's death. A  



                                    

     81   Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008).   



     82   Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002).   



     83   Douglas v. State , 214 P.3d 312, 326 (Alaska 2009)  (noting that "a defendant may  



not  be  retried  for  the  same  offense  unless  he  has  consented  to  a  mistrial  or  there  was  

manifest necessity for granting a mistrial" and that manifest  necessity requires that "the  

ends of public justice would not be served by a continuation of the proceedings").  



     84   Kim v. State, 390 P.3d 1207, 1209 (Alaska App. 2017); see also Thompson v. State,  



769 P.2d 997, 1003-04 (Alaska App. 1989); Flynn v. State, 847 P.2d 1073, 1076 (Alaska  

App. 1993); Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 2008).   



     85   Sakeagak, 952 P.2d at  282  (expressing particular danger when a law enforcement  



officer testifies about a defendant's guilt because jurors may assume that police know more  

information than was presented in court, and jurors may credit their experience); see also  

Kim, 390 P.3d at 1209- 10.  



     86   Sakeagak, 952 P.2d at 282.  



                                                    - 42 -                                                 2798  


----------------------- Page 43-----------------------

reasonable   inference   from   this   testimony   was   that   Macasaet   was   not   acting  



appropriately sad after learning of his girlfriend's death (from which the jury could infer  

that Mank believed that Macasaet was guilty).87   



                 But  while  Mank's  testimony  was  clearly  improper,  we  find  that  the  



superior court did not abuse its discretion by not ordering a mistrial. Mank's testimony  



was fleeting, stricken from the record, and not referenced again by the parties. The  



superior  court ordered every  other  curative measure that Macasaet requested, and it  



went even further by striking not only the improper testimony but also the remainder of  



Mank's testimony about Macasaet's appearance.  



                 Had Mank's testimony been central to the State's evidence of guilt, these  



curative actions may have been insufficient to ensure a fair trial. But in the broader  



context of the State's case, Mank's testimony was peripheral to the State's evidence of  



guilt.  At  trial,  the  State  introduced  audio  recordings  of  Macasaet 's police  contacts;  



geolocation data, text messages, and  call logs from Macasaet's cell phone;  evidence  



that  Macasaet  had  twice  strangled  Guthrie;  and  testimony  about  witnesses  who  



interacted with Macasaet before and after Guthrie's death. In its closing argument, the  



prosecutor 's theory of guilt  emphasized Macasaet's history of  strangling Guthrie, the  



location of Guthrie's body, the suspicious circumstances under which Macasaet located  



the  body,  and  Macasaet's  inconsistent  statements  to  the  police  that  minimized  his  



potential involvement in the crime. Further, the prosecutor's closing argument did not  



mention  Mank's  testimony  about  Macasaet's  emotional  appearance  (in  compliance  



with  the  court's  directive).  Given  this  context,  the  superior  court  did  not  abuse  its  



discretion by denying Macasaet's motion for mistrial.  



                 In   his   appellate   briefing,   Macasaet   argues   that   when   the   police  



intentionally violate a protective order, we should not apply our established framework  



for analyzing mistrial claims. Instead,  he urges us to  "begin [our  analysis] with the  



                                    

    87   Id. ; Flynn, 847 P.2d at 1075-76; Thompson, 769 P.2d at 1003-04.   



                                                   - 43 -                                                 2798  


----------------------- Page 44-----------------------

presumption that a mistrial is appropriate." However, Macasaet never asked the superior  



court to determine whether Mank violated the protective order intentionally (as opposed  



to recklessly or negligently). Consequently, the court never made such a finding. Thus,  



even if we were to adopt Macasaet's alternative analysis, he has not shown that it should  



be applied to the circumstances of this case.   



  



         Conclusion  



                 The judgment of the superior court is AFFIRMED.   



                                                    - 44 -                                                 2798  

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