Opinion
Court of Appeals No. A-9595.
June 4, 2008.
Appeal from the Superior Court, Third Judicial District, Homer, Charles T. Huguelet, Judge, and Margaret L. Murphy, Judge pro tem, Trial Court No. 3HO-04-443 CR.
George J. Dozier Jr., Eagle River, for the Appellant.
Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Todd L. Burns was convicted of one count of fourth-degree misconduct involving a controlled substance, three counts of third-degree misconduct involving a controlled substance, and one count of conspiracy to commit third-degree misconduct involving a controlled substance. Burns appeals, arguing that the superior court erroneously denied his motion to suppress. Burns also claims that the superior court mistakenly permitted a potential defense witness to assert a Fifth Amendment privilege not to testify.
AS 11.71.040(a)(1).
AS 11.71.030(a)(1).
AS 11.71.030(a)(1), AS 11.31.120.
The superior court denied Burns's motion to suppress without entering findings as required by Criminal Rule 12(d). However, the evidence later admitted at Burns's trial unquestionably supports the superior court's decision to deny the motion to suppress. Therefore, we uphold that decision.
With regard to the witness's claim of privilege, we conclude that the record is insufficient for us to determine whether the superior court was correct. Accordingly, we remand so the superior court can reconsider the claim of privilege.
Because we are remanding the case, we do not address Burns's attack on his sentence.
Facts and proceedings
Burns lived in H omer w ith his girlfriend, Carol A. Kumle. M ichael J. Smith — a confidential informant working with the Alaska Bureau of Alcohol and Drug Enforcement — lived across the street. Smith suspected that Kumle was illegally selling prescription medications. O n Jun e 23, 20 04, Investigator Jeremy G rieme secured a Glass warrant to monitor and record Smith's conversations with Kumle.
See State v. Glass, 583 P.2d 872, 881 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that under the Alaska Constitution, police must obtain judicial authorization before surreptitiously recording a seemingly private conversation).
Smith telephoned Kumle from his residence on June 24, 2004, and arranged to purchase a prescription painkiller from her. This telephone call was recorded. Smith then walked across the street to Kumle's residence wearing an electronic device. The device enabled the police to record Smith's conversations with Kumle. When Smith arrived, Burns was inside in the living room. Smith told Burns that Kumle had something for him. He said he had money and he asked Burns if Kumle was around. Kumle was in the bedroom, but Burns did not summon her. Burns reached into a drawer, and pulled out a pill. Smith gave Burns money in exchange for the pill. Smith then went to Kumle's bedroom and thanked her. The pill was later identified as Alprazolam, a schedule IVA controlled substance. The encounter between Smith and Burns was recorded even though the Glass warrant only permitted recording conversations between Smith and Kumle.
See AS 11.71.170(b)(21).
Another purchase was arranged on July 9, 2004. This transaction was not recorded. Investigator Grieme, dressed in plain clothes and posing as Smith's cousin, accompanied Smith to K umle's residence. This time, Smith and Grieme k new that K umle would not be at the trailer because, when Smith called to arrange a purchase, Burns told Smith that Kumle was not home. Burns answered the door and sold Smith five pills and gave him some white powder. The pills were later identified as hydrocodone and acetaminophen. A field test indicated that the powder was positive for cocaine.
On July 14, 2004, Grieme obtained a Glass warrant to monitor and record conversations between Smith and Burns. On July 22, Smith telephoned Kumle to arrange another drug purchase. Smith went to Kumle's residence the next day and purchased five Vicodin pills from Burns. This transaction was recorded. Based on this evidence, the grand jury indicted Burns and Kumle for several felonies. On August 27, a search warrant was executed on Kumle's trailer, and police seized narcotics and drug paraphernalia.
Discussion Burns's motion to suppress the June 24, 2004 recorded conversation
Burns moved to suppress the electronic recording from June 24, because the Glass warrant the police had at that time only authorized electronic monitoring of conversations between Smith and Kumle, not conversations between Smith and Burns. The State argued that the warrantless recording of the conversation between Smith and Burns was justified by exigent circumstances because Burns's participation was unexpected.
Originally, Burns's motion also sought suppression of a July 9 recording because he mistakenly thought the police had recorded that conversation as well. But at the evidentiary hearing on the motion, Grieme testified that there was no recording of the July 9 transaction. Although the police were prepared to record the call, they stopped recording because Burns answered the phone and told Smith that Kumle was not home. G rieme w as asked about the June 24 transaction, but he repeatedly stated that he w as only prepared to testify about the July 9 transaction. Nevertheless, on cross-examination, Grieme testified that he "vaguely remembered" that when Smith called Kumle immediately prior to the June 24 transaction, Burns answered and informed Smith that Kumle was not home. But Grieme explained that he would "actually have to refer to the report to confirm that," and he did not have the June 24 report with him. Then, contradicting his earlier testimony, Grieme testified that neither he nor Smith expected Burns to participate in the transaction that day.
To the extent that this testimony was conflicting about Kumle's presence at the house on June 24, both Grieme's and Smith's testimony at trial established that Kumle was in fact present at the residence on June 24. It was during the telephone call before the July 9 transaction that Burns told Smith that Kumle was not at home.
After the evidentiary hearing but before the trial testimony described above, the parties filed supplemental memoranda. Superior Court Judge Charles T. Huguelet denied Smith's motion to suppress without making written findings.
Normally, the State can electronically monitor a conversation only if it has procured a warrant. However, exigent circumstances may justify a warrantless recording when there is a "compelling need for official action and not time to secure a warrant."
Glass, 583 P.2d at 881.
Ingram v. State, 703 P.2d 415, 422 (Alaska App. 1985) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949, 56 L. Ed. 2d 486, 498 (1978)).
Burns argues there was no compelling need for official action and that there was time to secure a warrant on June 24. Burns claims the police knew that Kumle was not at home when Smith walked across the street on June 24. Burns also asserts that the State "manufactured" exigen t circumstances w hen it allowed Smith to proceed to Kumle's home knowing that she would not be there and then claimed surprise that Burns would be involved.
However, when Smith called Kumle immediately before the June 24 transaction, he spoke with Kumle and arranged the sale. The police recorded this conversation pursuant to the Glass warrant, and the State played this recorded conversation for the jury at trial. Kumle was at home during the transaction. These facts were uncontested at trial.
Burns objects to relying on evidence admitted at trial. He argues that this court should only review the evidence presented at the suppression hearing because the superior court could not have relied on the trial testimony to deny the motion to suppress.
In Hubert v. State, this court adopted the federal rule that "evidence presented at trial may be considered on appeal to uphold the ruling of a trial court on a suppression issue." The court stated as follows:
638 P.2d 677 (Alaska App. 1981).
Id. at 680 n. 2 (citing Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925); United States v. Canieso, 470 F.2d 1224, 1226 (2nd Cir. 1972)).
We believe the federal rule allowing consideration of the full record, including testimony at trial, to be a sound one; under the circumstances of the present case we conclude that it is appropriate to consider the issues raised in this appeal in light of the entire factual record, including relevant testimony presented at trial.
Id.
The record in this case established that Smith called Kumle before walking over to Kumle's residence on June 24 to buy drugs. Smith spoke with Kumle on the telephone, the call was recorded, and the recording was played for the jury at trial. When Smith walked across the street to Kumle's home, Burns answered the door but he did not summon Kumle. Instead, he personally exchanged a pill for the money Smith presented.
In Pruitt v. State and Fox v. State, this court applied the exigent circumstances doctrine to uphold police decisions to execute a Glass warrant even though the person recorded was not named in the warrant. The circumstances in Fox parallel the events in this case. In Fox, an undercover officer went to a residence for a pre-arranged drug transaction. The expected seller was not home, but his brother, Fox, was. When the officer mentioned that he had come to purchase cocaine from Fox's absent brother, Fox "said that he would `take care of' [the officer]." This court upheld the warrantless recording of the informant's transaction with Fox because his brother's absence was unanticipated, as was Fox's involvement. Here, Burns's involvement in the June 24 transaction and Kumle's failure to participate in the transaction were both unanticipated. We conclude that the exigent circumstances exception authorized the police to record the transaction with Burns on June 24.
829 P.2d 1197 (Alaska App. 1992).
825 P.2d 938 (Alaska App. 1992).
Pruitt, 829 P.2d at 1198-99; Fox, 825 P.2d at 939.
Fox, 825 P.2d at 938.
Id. at 939.
Id.
The ruling on Kumle's claim of privilege
By the time of Burns's trial, Kumle had reached a plea agreement on the charges arising from this case. Under the terms of this agreement, she received a suspended imposition of sentence (with credit for the time she had served). In addition, the prosecutor stated that neither Burns nor Kumle faced additional charges based on the evidence seized from their home in August 2004.
Because the charges against Kumle had been resolved, Burns planned to call her as a witness. However, Superior Court Judge pro tempore Margaret L. Murphy concluded that Kumle might still have grounds for asserting the privilege against self-incrimination, and she therefore appointed counsel for Kumle to investigate and, if necessary, litigate this issue. After consulting this attorney, Kumle announced that she would assert her Fifth Amendment privilege with regard to any questioning pertaining to Burns and the charges pending against Burns at his trial.
Burns opposed Kumle's claim of privilege, contending that Kumle did not face a realistic possibility of self-incrimination. In response, Kumle's attorney argued that Kumle's testimony might prompt the State to seek a modification of her conditions of probation. In addition, Kumle's attorney asserted that there were additional reasons why Kumle's testimony might be self-incriminating; the attorney told Judge Murphy that he was prepared to explain these reasons ex parte. However, Judge Murphy apparently concluded that the risk of probation modification was a sufficient basis for claiming the privilege, and she did not require the attorney to present an ex parte presentation of Kumle's other reasons for asserting the privilege.
Having carefully examined the record, we are unable to tell whether Kumle could validly invoke the privilege against self-incrimination under these circumstances. The record is simply too sparse to allow us to determine whether the superior court's ruling was correct. That is, we cannot determine whether, given the questions likely to be posed to Kumle by Burns's attorney or by the prosecutor in cross-examination, Kumle had a reasonable fear that her answers would be self-incriminating. We therefore must remand this issue to the superior court.
See M.R.S. v. State, 867 P.2d 836, 840 (Alaska App. 1994) (noting that the privilege against self-incrimination can properly be claimed only "when a witness has . . . reasonable grounds to fear that [their] answer might be incriminatory." (quoting State v. Gonzalez, 825 P.2d 920, 923 (Alaska App. 1992), aff'd, 853 P.2d 526 (Alaska 1993))); see also McConkey v. State, 504 P.2d 823, 825-26 (Alaska 1972) (explaining that a person may properly invoke the privilege against self-incrimination only when the person has a reasonable basis to fear self-incrimination).
The superior court should hear a full explanation of why Kumle believed that her testimony at Burns's trial would be self-incriminating. Of course, the superior court is entitled to hear some or all of this presentation ex parte under the rules set forth in Taylor v. State.
977 P.2d 123 (Alaska App. 1999).
Because we are remanding Burns's case to the superior court for reconsideration of this issue, we do not address Burns's claims regarding his sentence.
Conclusion
We REMAND this case to the superior court. The court shall conduct whatever proceedings are necessary to determine whether Kumle had a valid basis for asserting the privilege against self-incrimination. The superior court shall transmit its findings to us within 90 days. The parties shall then have 30 days to file supplemental memoranda addressing these findings.
When we have received the superior court's findings and the parties' supplemental memoranda, we will renew our consideration of Burns's appeal.
We retain jurisdiction of this case.