Opinion
Court of Appeals No. A-9641.
March 5, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric B. Smith, Judge, Trial Court No. 3PA-04-2795 CR.
Renee McFarland, Assistant Public Defender, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Blair M. Christensen, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Richard B. Deremer III was convicted of murder in the first degree, arson in the first degree, burglary in the first degree, and tampering with physical evidence. Prior to his conviction, Deremer filed two motions to suppress the fruits of a Glass warrant and a search warrant for his residence that had been authorized by District Court Judge Gregory L. Heath. In one motion, he claimed that the State had omitted important information when it applied for the warrants — that the police had a prior suspect in the murder. He asked for an evidentiary hearing to develop this claim. He also argued that the State had not presented probable cause for the search warrants, because they had not established that a crime actually occurred.
AS 11.41.100(a)(1)(A).
AS 11.46.400.
AS 11.46.300(a)(1).
AS 11.56.610(a)(1).
See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that the Alaska Constitution requires the police to obtain judicial authorization before electronically monitoring or recording a person's private conversations).
Superior Court Judge Eric B. Smith denied Deremer's motions to suppress. Judge Smith found that the search warrant applications provided probable cause and that any omission was not material because the affidavits would have provided probable cause even with the additional information about the prior suspect. Deremer appeals. We affirm Judge Smith's decision.
Factual and procedural background
Early in the morning on November 24, 2003, firefighters and troopers responded to a fire in Big Lake. After the fire was under control, firefighters discovered a dead body lying on the couch. The firefighters initially suspected that the victim had been shot with a shotgun, and the medical examiner confirmed that the victim had fragments of pellets in his head. Chief Medical Examiner Franc G. Fallico M.D. determined that David G. McKinney (identified through dental records) was shot with a shotgun at close range. Because there was no evidence of soot staining in the airway, Dr. Fallico concluded that McKinney died prior to the start of the fire. After sifting through the debris of the fire, firefighters and troopers were unable to find a firearm within twenty feet of the victim's body, and therefore concluded that McKinney had been murdered. Deputy Fire Marshall Donald Cuthbert determined that the most likely source of the fire was an ignition device being thrown through a window into the back bedroom on the first floor. Alaska State Trooper David A. Willson was assigned to investigate a floor safe found in the back bedroom. The safe, inset into the concrete floor (flush with the ground so that it was completely hidden by a carpet), was still locked but contained a large hole. Inside the safe, Trooper Willson found a four and one-half inch diameter cutting wheel.
On the day of the fire, Alaska State Trooper Investigators Dallas Massie and Leonard E. Wallner Jr. interviewed Deremer and his wife, Cynthia J. Estes. During that interview, Deremer indicated that McKinney was Estes's cousin. Deremer also admitted that, approximately eight to ten days earlier, McKinney, in a heated argument, had accused Estes of stealing his prescription medication. The confrontation resulted in Deremer getting a baseball bat to force McKinney to leave their residence. Deremer stated that Estes had regularly done housework for McKinney, and he admitted to knowing that McKinney had a floor safe.
On November 25, 2003, the Frontiersman ran an article regarding three house fires in the Matanuska-Susitna region over the past two days. The article stated that in the third fire, in Big Lake, the body of David G. McKinney was located inside the burned house. The newspaper reported that the fire claiming McKinney's life was still being investigated, but foul play was not suspected. On December 2, 2003, the Frontiersman ran another article indicating that the death of McKinney was now "being considered a homicide case."
2 People Die in Weekend Fires: Third Fire Results in Arrest, Mat-Su Valley Frontiersman, Nov. 25, 2003, available at http://www.frontiersman.com/articles/2003/11/25/news/news3.txt.
Steve Kadel, Fire Death Investigated as Homicide, Mat-Su Valley Frontiersman, Dec. 2, 2003, available at http://www.frontiersman.com/articles/2003/12/02/news/news02.txt.
In February 2004, a man named Terry E. Sudbury was arrested for an unrelated pharmacy robbery. Sudbury told police investigators that he had information regarding a fire and murder in Big Lake, that he knew two individuals who claimed to be the killers, that "kitchen utensils" were utilized as weapons, and that the death had been accidental. Investigator Wallner believed that Sudbury was intentionally withholding additional information in an attempt to negotiate favorable treatment for his current charge. Sudbury also began telling his cell mate, James Watford, that he knew information regarding a murder in Big Lake.
Police obtained a Glass warrant to record conversations between Watford and Sudbury. The police recorded five conversations between Watford and Sudbury in March 2004. The police also applied for search warrants with respect to two of Sudbury's associates and for Sudbury's residence. By the time the investigators had listened to the fourth Glass warrant conversation, however, Investigator Wallner concluded that he was "listening to . . . a scripted conversation [that was] not authentic, not real." Troopers continued to investigate Sudbury and his associates until April 2004. The parties do not contest that the police ceased their investigation of Sudbury at that point in time.
On September 15, 2004 — more than four months after troopers had discontinued their investigation of Sudbury and his associates — an anonymous male telephoned the Palmer police station to provide information regarding the unsolved homicide of McKinney and arson of his home. The following day, the same anonymous male again telephoned the police station — this time to arrange for himself, his wife, and his employee to meet with officers at the police station. Three individuals arrived at the police station: Jason Chew, Jamie Chew, and Aron Niles.
Jamie Chew told the police that Deremer was an employee at her business (the police had already determined that Deremer was also Jason Chew's cousin). Jamie Chew stated that a few days earlier, she had been driving with Deremer to a building supply store when they passed Deremer's wife, Cynthia Estes. At that point, Jamie Chew reported to the police, Deremer told her that he wanted to leave his wife and take their son to Washington, but that Deremer was concerned that Estes would tell the authorities about when Deremer "pulled the trigger and lit the fire."
In a separate interview, Niles told the police that Deremer told him that he was having marriage trouble, but could not leave his wife because she was threatening to turn him in to the authorities for the murder of her cousin the previous winter (2003). Niles stated that Deremer said he and McKinney had an earlier confrontation, that he knew McKinney had a lot of prescription drugs and $3000 in cash, that Deremer and Estes hatched a plan to kill McKinney, that Deremer went to the victim's residence and kicked in the door, that the victim was on the couch when Deremer shot him with a twelve gauge shotgun with number nine birdshot, that he "was the man who pulled the trigger," that a rug was used to conceal the body, that Estes knew that McKinney kept the combination to the safe in his wallet but that they were unable to read the numbers because they were faded, and that he went to the shop to get some tools to open the safe. Niles also said that Deremer told him that if he left Alaska with his son, he would probably be extradited because "I blew half his fucking skull off. Blood was squirting out of his head for forty-five seconds because his heart was still pumping."
Investigator Wallner applied for a Glass warrant using the information he obtained from the Chews and Niles. On September 17, 2004, Judge Heath granted the Glass warrant. On September 18, as authorized by the warrant, Jason Chew engaged Deremer in a recorded face-to-face conversation during which Deremer readily admitted that around Thanksgiving 2003 Deremer's wife suggested killing McKinney; that it took only two kicks to open the door; that McKinney was lying on the couch; that he shot McKinney in the head with birdshot; that he and his wife could not get the safe open so they returned home to get a torch, a flat bar, a hammer, and a skilsaw with a five-inch disc, and they ultimately were able to open the safe; and that he lit the torch and set it against the door frame prior to leaving the residence.
On September 18, Investigator Wallner applied for a search warrant for Deremer's residence to look for the shotgun, skilsaw, cutting discs, torches, prescription medication, clothing and shoes containing blood or gunshot residue, and various other items. Judge Heath also granted this search warrant. Investigator Wallner executed the search warrant for Deremer's residence on September 19. Deremer was arrested that day. Deremer and Estes were indicted on September 28, 2004.
In July 2005, Deremer filed a motion to suppress the fruits of the Glass warrant and the search warrant for Deremer's residence on the basis that Investigator Wallner failed to include information in his affidavits that indicated that the troopers had previously investigated Terry Sudbury for the murder of McKinney. He argued that he set forth sufficient evidence to require an evidentiary hearing to determine whether the omission of this information was deliberate. Deremer also filed a second motion to suppress the fruits of the Glass warrant and the search warrant for Deremer's residence — this time on the basis that there was not probable cause within the four corners of the affidavits because the affidavits did not set out any information in support of the propositions that in fact "there ever was a fellow named McKinney[,] there ever was a fire at his residence[,] there was a body discovered at that residence . . . [,] there was a death by means of a shotgun[,] there ever was a safe in this residence[, or] there was evidence that the safe was entered." Judge Smith found that Deremer had not met his burden under State v. Malkin, and therefore was not entitled to an evidentiary hearing. He also found that the search warrant applications "provided probable cause on their face." Judge Smith therefore denied the motions to suppress. Deremer appeals.
722 P.2d 943 (Alaska 1986).
Why we conclude that Judge Smith did not err in denying Deremer's request for an evidentiary hearing
In State v. Malkin, the Alaska Supreme Court held that a warrant based on reckless or intentional misstatements may be declared invalid. The supreme court ruled that if statements in a search warrant affidavit are false, then the State must show by a preponderance of the evidence that the statements were not made intentionally or with reckless disregard for the truth. "If the [S]tate does not meet this burden then the misstatements must be excised and the remainder of the affidavit tested for probable cause." The court noted, however, that the entire search warrant must be invalidated if the police officer affiant intentionally made misstatements in a deliberate attempt to mislead a judicial officer. But if the officer can show that the misstatements were made negligently, the statements do not have to be excised from the affidavit. The rule that emerges from Malkin, therefore, is that (1) negligent or innocent misstatements do not have to be struck from an affidavit, (2) statements made with reckless disregard must be struck from an affidavit and the remainder of the affidavit tested for probable cause, and (3) intentional misstatements meant to mislead the magistrate must be struck from an affidavit and the warrant invalidated regardless of the remaining presence of probable cause.
Id. at 946 n. 6.
Id. at 946.
Id.
Id. at 946 n. 6.
Id. at 946-47 n. 8.
Id. at 946 n. 6, 947 n. 8.
In Lewis v. State, this court extended the holding in Malkin to also apply to omissions. This court determined that a material omission is one that would have precluded a finding of probable cause if included in the original affidavit. "A non-material omission or misstatement — one on which probable cause does not hinge — requires suppression only when the court finds `a deliberate attempt to mislead [the magistrate].'"
862 P.2d 181 (Alaska App. 1993).
Id. at 186 (alteration in original) (quoting Malkin, 722 P.2d at 946 n. 6).
In Deremer's first motion to suppress, he asserted that the affiant omitted "critical information demonstrating that the [S]tate had concluded a different individual was the murderer." Deremer asserted that he had met the burden in Malkin of pointing out specific omissions, and he argued that if the State contested his motion, then an evidentiary hearing was required (presumably to allow the State an opportunity to establish by a preponderance of the evidence that the omissions were not intentional or reckless). Judge Smith disagreed. Judge Smith noted that Judge Heath "was well aware of the case against the first suspect, as several warrants had been issued with respect to that person." In fact, in Deremer's case, the affidavits explicitly stated that previous warrants had been issued for the "residence of suspect Terry SUDBURY," "residence of suspect Wilson DAVIS," and "Glass warrant with James WATFORD targeting Terry SUDBURY." Therefore, Judge Smith concluded that "[t]he only information not provided to the magistrate was that the troopers were no longer pursuing that suspect. It is difficult to believe that the fact that the formerly prime suspect was no longer a suspect somehow could undercut a finding of probable cause as to the new suspects."
Judge Smith specifically found that an evidentiary hearing was not required because Deremer did not meet his burden of going forward under Malkin. Judge Smith also concluded that any omission was not material to a finding of probable cause, in part because the affidavits included information "strong enough to provide probable cause under virtually any scenario."
We agree with Judge Smith's determination that it was unnecessary to hold an evidentiary hearing. In the first place, when they applied for warrants in Deremer's case, the police referenced the warrants they had obtained from the court in the Sudbury investigation. Deremer argues that, because these prior warrants were not attached to the warrants that the police obtained in his case, the magistrate who issued the warrant could not consider these prior warrants. But here, there was no "risk of after-the-fact manipulation of documents supporting [the] search warrant[s]." The same judge who authorized the Glass warrant for Deremer had also authorized the earlier Glass warrant for Sudbury, and the previous warrants could be reviewed. Under these facts, we see no reason why the police could not incorporate these warrants by reference. In any event, the failure of the State to physically attach the prior search warrants to the application for the search warrant does not rise to the level of a reckless or intentional misrepresentation.
2 Wayne R. LaFave, Search and Seizure § 4.3(d), at 518 (4th ed. 2004).
Furthermore, we agree with Judge Smith's finding that the application for a search warrant established probable cause to record Deremer's conversations even though the police had previously investigated Sudbury as a suspect. Adding the facts of all the prior police investigation of Sudbury would not have diminished the State's showing of probable cause. In obtaining the Glass warrant, the police presented to the magistrate two informants who worked with Deremer and knew him well. These informants had told the police that Deremer had confessed to committing a homicide. Deremer's statements were detailed admissions that the magistrate could certainly find were credible. Even if the police were reckless in failing to tell the magistrate about the Sudbury investigation, the remedy would be to add the information about the investigation to the warrant and re-determine probable cause. We agree with Judge Smith that the search warrant application established probable cause to record the conversation with Deremer even if this information about the Sudbury investigation had been added to the application.
Of course, by the time the police obtained the warrant to search Deremer's house, in addition to the evidence that they had when they obtained the Glass warrant, they had Deremer's recorded admissions to Jason Chew in which Deremer made a detailed confession to shooting McKinney. The police clearly had probable cause, based on Deremer's recorded admissions, to search Deremer's house.
Why we agree with Judge Smith's finding that the affidavit established probable cause
Deremer next contends that the search warrants were deficient because they did not set out that there ever had been a homicide or set out the underlying facts of the homicide. Certainly the search warrant applications would have been stronger had they made specific reference to the facts of the McKinney homicide. Deremer's detailed statements meshed with the facts that the police already knew about the murder. But even without this information, Deremer's detailed admissions established probable cause to first record his statements and later, after he confessed to the murder in a recorded conversation, to search his residence.
We conclude that Judge Smith did not err when he denied Deremer's motion to suppress evidence that the police obtained pursuant to the various search warrants. We accordingly AFFIRM Deremer's convictions.
I write separately to address one of Deremer's claims on appeal that receives hardly any mention in the lead opinion.
During the lengthy investigation of the arson and homicide in this case, the police applied for a series of warrants from the Palmer District Court. Most of these warrants were sought when the prime suspects were Terry Sudbury and certain associates of his.
Then, in September 2004, based on new information received from three citizen informants, the police turned their attention to Deremer — and applied for the Glass warrant (issued September 17th) and the search warrant for Deremer's residence (issued September 18th) that are at issue in this appeal.
When the police applied for these warrants, they did not expressly recite all of the background facts concerning the arson and the homicide, nor did the police recite the course of their earlier investigation into the activities of Sudbury and his associates. However, the first substantive paragraph of each search warrant affidavit declared:
The foundation of [the] application for [this] Warrant has previously been provided to the District . . . Court in Palmer by means of a series of search warrants, namely [No.] 3PA-03-403 SW (residence of victim David McKINNEY [at] 14215 Sunrise Drive in Big Lake), [No.] 3PA-03-406 SW (Matanuska Telephone Association records), [No.] 3PA-03-407 SW (Alaska Digitel records), [No.] 3PA-03-408 SW (MTA Wireless records), [No.] 3PA-04-040 SW (residence of suspect Terry SUDBURY [at] 18002 Bryant Road in Big Lake pursuant to A[laska] S[tate] T[rooper] case #03-71660), [No.] 3PA-04-041 SW (residence of suspect Wilson DAVIS [at] perhaps 9142 Business Park Drive near Wasilla pursuant to A[laska] S[tate] T[rooper] case #03-71660), and [No.] 3PA-04-062 SW ( Glass warrant with James WATFORD targeting Terry SUDBURY).
(In the original text, the court file designations "SW" are not capitalized.)
One of Deremer's arguments in this appeal is that these two search warrant applications are invalid because they fail to contain an explicit description of how the police came to know that someone had committed an arson and a homicide. Deremer concedes that the prior search warrant applications presumably contained this information. But Deremer argues that, as a matter of Fourth Amendment law, Judge Heath could not rely on the information contained in those earlier search warrant applications — because the police merely referred to the prior search warrant applications, rather than attaching copies of those prior applications for the judge's inspection or even formally stating that those prior applications were "incorporated by reference".
The underlying question is whether, or under what circumstances, the law allows a judge or magistrate to rely on documents that are extrinsic to the warrant application itself.
Deremer argues that the issuing judge or magistrate is barred from relying on the contents of extrinsic documents unless "the intent to incorporate those documents [is] explicitly stated" in the warrant application. And Deremer further argues that this requirement was not met in his case.
But I conclude that the warrant applications at issue here did explicitly incorporate the earlier search warrant applications by reference. As noted above, each of the two warrant applications began with the declaration that "[t]he foundation of [the] application . . . has previously been provided to the District . . . Court in Palmer by means of a series of search warrants". This declaration was followed by a list of the court file numbers of those earlier warrants, as well as brief descriptions of the searches that were authorized by those earlier warrants.
There is no legal magic in the phrase "incorporated by reference". The important thing is the concept conveyed by that phrase, not the exact words used. Here, the two warrant applications clearly conveyed the idea that the police were relying on the contents of the earlier series of warrant applications — that the "foundation" of the two warrant applications targeted at Demerer was to be found in the listed, and clearly identified, previous search warrant applications on file with the Palmer District Court.