Opinion
Court of Appeals No. A-9212.
November 25, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-04-890 Cr.
Robert John, Law Offices of Robert John, Fairbanks, for the Appellant.
W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
On November 12, 2003, two law enforcement officers — Fairbanks Police Officer Bruce Barnett and Alaska State Trooper Teague Widmier — came to the front door of the Fairbanks residence that Ross Dow shared with his girlfriend, Starla Noyes-Norris.
The two officers were responding to a report from a local pharmacy that Dow had purchased a large quantity of Actifed ® (a cold and allergy remedy) between August 1 and October 8, 2003. Dow purchased a total of 768 tablets during those ten weeks — a rate of more than 300 tablets per month. The pharmacy also reported that Dow attempted to make yet another Actifed purchase on October 8th, but the pharmacy staff turned him away.
In his testimony at the suppression hearing, Trooper Widmier referred to the cold tablets as "Sudafed". However, when Widmier was talking to Dow on the phone, and later during their conversation at the house, Widmier repeatedly referred to the cold tablets as "Actifed". This is also how the cold tablets are described in the pre-sentence report.
At that time ( i.e., in late 2003), Actifed tablets contained pseudoephedrine hydrochloride. Pseudoephedrine is a decongestant, but it also can be chemically reduced to methamphetamine. For this reason, cold and allergy tablets containing pseudoephedrine are often used as a source ingredient by people who wish to manufacture methamphetamine — and Alaska law forbids the possession of pseudoephedrine if the possessor intends to use the chemical to manufacture methamphetamine.
See the article "Actifed" in Wikipedia: http://en.wikipedia.org/wiki/Actifed. According to this article, the formula of Actifed was changed in 2006; in the new version, the active decongestant ingredient is no longer pseudoephedrine, but rather phenylephrine hydrochloride.
See the article "Methamphetamine" (Illicit Production / Synthesis) in Wikipedia: http://en.wikipedia.org/wiki/Methamphetamine.
See AS 11.71.020(a)(4) (prohibiting the possession of a "listed chemical" with intent to manufacture methamphetamine or an immediate chemical precursor of methamphetamine) and AS 11.71.200(13) (defining pseudoephedrine as one of the "listed chemicals").
When Officer Barnett and Trooper Widmier knocked on the door to the residence, Ms. Noyes-Norris answered the door. The officers told Noyes-Norris that they wanted to speak to Dow. Noyes-Norris told the officers that Dow was at work. The officers then asked Noyes-Norris if she knew why Dow was purchasing so many cold tablets. Noyes-Norris told the officers that she did not know anything about the cold medicine. However, during her ensuing conversation with the officers, Noyes-Norris admitted that both she and Dow were methamphetamine users, and she also stated that "they just do enough for personal use" — an apparent admission that she and Dow were engaged in manufacturing methamphetamine.
During this initial conversation, the officers asked Noyes-Norris if they could come into the arctic entryway of the house, and she consented to this. A little later in the conversation, while they were standing in the arctic entryway, the officers asked Noyes-Norris if she would allow them to look in the basement of the house, but she refused. She did, however, allow them to go into the kitchen.
While they were in the kitchen, the officers spoke to Dow by telephone. They advised him that they were at his house, and that they believed that there was a methamphetamine lab in his basement. The officers gave Dow the choice of either consenting to a search of the basement or having the officers apply for a search warrant to search his house. In response, Dow drove home from work. When he arrived, he told the officers, "I'll show you . . . everything I got." Dow then admitted that he was "cooking" methamphetamine for his personal use, and he allowed the officers to search the basement — where they found Dow's meth lab. Dow described his manufacturing process for the officers in detail, and he repeatedly assured the officers that he made the methamphetamine purely for personal use.
Based on these events, Dow was indicted on ten counts of controlled substance misconduct. After Dow's motion to suppress the evidence against him proved unsuccessful, Dow reached a Cooksey plea agreement with the State: Dow pleaded no contest to four counts of second-degree controlled substance misconduct and two counts of fourth-degree controlled substance misconduct, with the understanding that he would be able to pursue his suppression arguments on appeal. In addition to his suppression arguments, Dow raises various challenges to his sentence.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
For the reasons explained here, we reject all of Dow's suppression arguments, and we further reject his challenges to his sentence.
Dow's argument that the Alaska Constitution should be construed to require the police to have a reasonable suspicion of criminal activity before they come to a residence in furtherance of a criminal investigation and ask for permission to enter
As we explained above, the two law enforcement officers came to Dow's residence, knocked on his door, and then engaged Noyes-Norris in conversation about Dow's large purchases of cold medicine. In the superior court proceedings, and in the briefs on appeal, the parties describe the police officers' conduct as a "knock and talk" investigation — an investigative tactic of going to a residence, knocking on the door, and seeing if the people who reside there will consent to speak to the officers, and perhaps allow the officers to enter the residence.
Dow argues that the Alaska Constitution should be construed to prohibit the police from engaging in this tactic, or at least to prohibit the police from requesting entry into a residence, unless the police have a reasonable suspicion of criminal activity. But even if we were to construe the Alaska Constitution in this proposed fashion, the test would be satisfied in Dow's case.
As we explained above, the officers knew that Dow had been purchasing Actifed tablets at the rate of approximately 300 per month, and that he had unsuccessfully tried to purchase still more of this medicine. Because Actifed tablets contained pseudoephedrine, a precursor chemical used in the manufacturing of methamphetamine, the officers had a reasonable suspicion that Dow was engaged (either personally or as an accomplice) in the illicit production of methamphetamine.
Accordingly, Dow's argument is moot.
Dow's argument that the Alaska Constitution should be construed to require the police to expressly advise homeowners of their right to refuse consent before the police seek permission to enter a residence
Dow argues that whenever police officers arrive unannounced at a person's residence and ask for permission to enter, the circumstances are inherently coercive. Thus, Dow argues, if the homeowner consents to have the police enter the residence, there is no guarantee that the homeowner's consent is knowing and voluntary, as opposed to an acquiescence to a show of authority. For this reason, Dow contends that the Alaska Constitution should be construed to require the police to expressly advise homeowners of their right to refuse entry.
In support of this argument, Dow relies on the Alaska Supreme Court's decisions in Sleziak v. State, 454 P.2d 252 (Alaska 1969), and Pistro v. State, 590 P.2d 884 (Alaska 1979). Neither of these cases provides much support for Dow's argument.
In Sleziak, the supreme court discussed the question of whether a person should receive a warning of their Fourth Amendment rights (similar to the Miranda warnings of the right to silence and the right to the assistance of counsel) before the police ask the person to consent to a search. The court concluded that it was not necessary to resolve this question — because, even though the defendant was not under arrest, he had received Miranda warnings. By virtue of the Miranda warnings, the defendant was on notice "that the things which might be found in a search could be used against [him]", and that the officers speaking to him were "[not] acting solely in his interest".
Sleziak, 454 P.2d at 258-59.
Id. at 254.
Id. at 259 (quoting and adopting the reasoning of Gorman v. United States, 380 F.2d 158, 164 (1st Cir. 1967)).
This, the Sleziak court concluded, provided a sufficient foundation for the defendant's consent to search. The court therefore decided to leave the question of Fourth Amendment warnings unresolved until the court was "presented with a factual situation in which no warnings of fifth or sixth amendment rights have been given prior to the obtaining of consent".
Id. at 259-260.
The supreme court followed this same reasoning in Pistro. The Pistro decision involved a defendant who was in custody — and yet, despite this fact, the supreme court did not require the police to give Pistro an express advisement of his Fourth Amendment rights. Rather, the supreme court upheld the trial court's ruling (that Pistro's consent to the search was knowing and voluntary) because Pistro had already received Miranda warnings, and thus he was "on notice" of his general right to "refuse to cooperate with law enforcement authorities".
Pistro, 590 P.2d at 887-88.
Id. at 887 (internal citation and quotation omitted).
The case that is seemingly fatal to Dow's contention is Frink v. State, 597 P.2d 15 4 (Alaska 1979), a case decided four months after Pistro. The defendant in Frink was subjected to an investigative stop; during this stop, the police obtained his consent for a search of his car. On appeal, Frink argued that his consent to this search could not, as a matter of law, be deemed voluntary and knowing unless the State presented evidence that Frink had been expressly advised of his Fourth Amendment rights, or other evidence affirmatively demonstrating that Frink "knew of his right to refuse to allow the search".
Frink, 597 P.2d at 159-160.
Id. at 169.
The Frink court noted that this same contention had been rejected under the federal Constitution — see Schneckloth v. Bustamente, 412 U .S. 218, 227; 93 S.Ct. 2041, 2048; 36 L.Ed.2d 854, 862-63 (1973) — and then the court declared, "[W]e do not believe that the Alaska Constitution requires a different standard for noncustodial consent searches."
Id. at 169.
Dow attempts to avoid the Frink holding by arguing that his girlfriend, Noyes-Norris, was essentially in custody when she was talking to the two officers — or, at least, that she was subjected to the same level of coercion as if she had been in custody. This argument is unconvincing. Noyes-Norris was not under arrest, nor was she even subjected to an investigative stop (like the defendant in Frink). Rather, Noyes-Norris was standing inside her own residence.
The Alaska Supreme Court has acknowledged that citizens may feel a certain amount of pressure to cooperate with police officers and to answer their questions — but this inherent aspect of a police-citizen encounter does not turn all of these encounters into seizures for purposes of the federal Fourth Amendment or the search and seizure clause of the Alaska Constitution. As our supreme court explained in Waring v. State, 670 P.2d 357 (Alaska 1983):
Not all contacts between police and citizens involve "seizures" of persons. . . . Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. . . . If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.
Waring, 670 P.2d at 363, quoting Florida v. Royer, 460 U.S. 491, 497-98; 103 S.Ct. 1319, 1324; 75 L.Ed.2d 229 (1983).
The Waring court acknowledged that "upon being confronted by a police officer, the average person would feel an obligation to respond to the officer's questions and not to walk away." But despite this inherent pressure to cooperate, the court declared, the encounter between the officer and the citizen "will amount to a seizure `only if the officer added to those inherent pressures by engaging in' `conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen.'" Waring, 670 P.2d at 364, quoting Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978), § 9.2, Vol. 3 at 53 54.
Waring, 670 P.2d at 364.
In the present case, Noyes-Norris was subjected to substantially less coercion than the defendant in Frink (who was stopped by four police officers as he was backing his car out of a parking lot). Therefore, the present case is governed by the supreme court's decision in Frink — specifically, the supreme court's holding that a consensual search can be valid even though it is not preceded by an express advisement of the person's Fourth Amendment right to refuse consent.
Frink, 597 P.2d at 159.
We further note that even if we applied the Pistro test that governs a consent to search given by someone in custody, the consent given by Noyes-Norris would satisfy the test (given the findings of fact made by Judge Wood).
As we explained above, the supreme court upheld Pistro's consent to search even though Pistro was in custody and even though Pistro was not expressly advised of his Fourth Amendment right to refuse consent. The court concluded that Pistro's consent was valid because he had received Miranda warnings — warnings which put him "on notice" of his general right to "refuse to cooperate with law enforcement authorities".
Pistro, 590 P.2d at 887 (internal citation and quotation omitted).
In the present case, Superior Court Judge Mark I. Wood found that Noyes-Norris was aware of her right to refuse to cooperate with the police — as evidenced by the fact that she denied the officers' requests to examine the basement of the home. This finding (that Noyes-Norris was aware of her right to refuse the officers' requests to search the house) is not clearly erroneous. Therefore, even if we agreed with Dow that Noyes-Norris was in "custody" in some sense, her consent to have the officers come into the arctic entryway of the home, and her later consent to have the officers come into the kitchen, would still be valid.
For these reasons, we hold that Noyes-Norris could validly consent to the officers' request to come into the arctic entryway, and could consent to their later request to come into the kitchen, even though the officers failed to expressly advise her of her right to refuse consent. Dow's alternative argument that, as a factual matter, Noyes-Norris's consent to the officers' entry into the home was not voluntarily given
Dow argues in the alternative that Noyes-Norris did not voluntarily consent to have the officers enter the residence. There was conflicting evidence on this point, and the superior court resolved this evidentiary dispute in favor of the State. In order to explain why we uphold the superior court's ruling, we must now describe the encounter between the officers and Noyes-Norris in some detail.
Officer Barnett and Trooper Widmier both testified that they initially decided to go to Dow's residence because they thought (based on Dow's large purchases of Actifed) that he was involved in the illicit production of methamphetamine. Trooper Widmier testified that when he pulled up to the house, he actually concluded that it was unlikely that Dow was running a meth lab in the home, because the house appeared well cared for. However, both officers became increasingly suspicious that meth was being used or produced in the home when Noyes-Norris answered the door and they observed her appearance and demeanor. Barnett testified that Noyes-Norris had "the obvious appearance of a methamphetamine user": she was jittery, she was skinny, and her face was sunken.
In addition, the officers observed a bag of rock salt on the steps of the residence. Rock salt is used as a de-icer, but it is also an ingredient in the manufacturing of methamphetamine. Officer Barnett observed that the rock salt had not been spread on the steps leading up to the house, even though the steps were icy. This made him suspicious that the rock salt was being used for illicit purposes.
Both officers testified that when Noyes-Norris answered the door, they asked politely if they could come into the house — giving as their reason their desire to question Dow about his purchases of cold medicine. Noyes-Norris gave a different account of this initial encounter. She testified that when the officers asked to come into the arctic entryway, they referred to the fact that it was cold outside. Noyes-Norris told the court that she did not feel that she could refuse the officers' request — but her testimony on this point indicates that the "compulsion" she felt did not stem from the fact that the two people at her door were law enforcement officers. Rather, Noyes-Norris told the court, she let Barnett and Widmier into the arctic entryway because "[if] somebody [was] standing out[side] in the cold, [she would] let them in."
Noyes-Norris also testified that, when the officers asked to be admitted to her home, they told her that they suspected that there was a meth lab in the house, and they also told her that they could get a warrant to compel her to let them come in. However, Judge Wood expressly found that Noyes-Norris's testimony on this point was false.
When Judge Wood issued his ruling ( i.e., when he found that Noyes-Norris had knowingly and voluntarily consented to the officers' entering the house), he declared:
The Court: I don't see any indication that there was any effort at deception or force . . . with respect to them being [allowed] in the house. There certainly wasn't a conversation at that point about search warrants and about . . . seizing the house.
On this question of historical fact ( i.e., whether the officers threatened Noyes-Norris with a search warrant unless she consented to their entry into the house), we must accept Judge Wood's finding unless it is clearly erroneous — and it is not. We note in particular (as we will describe in more detail later) that Noyes-Norris actively exercised her right to refuse to cooperate with the officers when she rejected their requests to look in the basement. This fact lends substantial support to Judge Wood's rejection of Noyes-Norris's claim that she let the officers come into the house only because she yielded to the threat of a search warrant.
Officer Barnett testified that Noyes-Norris was "obviously [high] on methamphetamine" during their conversation. In addition, w hen the officers walked into the arctic entryway, they observed a second bag of rock salt sitting on top of a television set in the arctic entryway. When Widmier asked Noyes-Norris what this rock salt was for, she did not respond.
Widmier asked Noyes-Norris if the officers could go into the basement and look around. Noyes-Norris told him, "No, you can't." Widmier then asked Noyes-Norris, "Is that where the meth lab is?" Noyes-Norris responded, "I don't know what he [ i.e., Dow] does down there."
Barnett asked Noyes-Norris if he could go up into the kitchen and look around. Noyes-Norris said "yes", so the officers went into the kitchen. While they were in the kitchen, Noyes-Norris telephoned Dow at work and told him that the officers were at the house and were asking about his purchases of cold tablets. Dow decided to leave work and come home.
Based on these facts, Judge Wood found that Noyes-Norris had knowingly and voluntarily given unequivocal consent to have the officers enter the home — initially into the arctic entryway, and later into the kitchen. Viewing the evidence in the light most favorable to Judge Wood's rulings, the record amply supports both rulings.
On appeal, Dow argues that it is the State's burden to prove a consent to search by clear and convincing evidence, and Dow asserts that Judge Wood committed procedural error by failing to specify whether he resolved the disputed facts in the State's favor using a "preponderance of the evidence" test or a "clear and convincing evidence" test.
To support his assertion that a consent to search must be proved by clear and convincing evidence, Dow cites only one authority: Judge Coats's concurring opinion in Brown v. State, 182 P.3d 624, 634 (Alaska App. 2008). The statement in Judge Coats's concurrence that there "must be clear and convincing evidence that the consent was unequivocal, specific, and intelligently given" is taken from the Alaska Supreme Court's opinion in Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979). However, one year before Gieffels, in Robinson v. State, 578 P.2d 141, 145 (Alaska 1978), the Alaska Supreme Court apparently applied a preponderance of the evidence test to this same question.
We need not decide whether Alaska law requires the State to prove the voluntariness of a consensual search by clear and convincing evidence, as opposed to a preponderance of the evidence. Dow did not preserve this issue for appeal. When Judge Wood announced his ruling, and when the judge failed to specify the burden of proof that he was applying, Dow neither objected nor made any request for clarification of the judge's decision.
If Dow believed that Alaska law required Judge Wood to hold the State to a "clear and convincing evidence" standard of proof when he assessed whether Noyes-Norris voluntarily consented to the officers' entries into the arctic entryway and the kitchen, and if Dow believed that Judge Wood had failed to apply this standard of proof, it was Dow's duty to object. But he made no objection. Therefore, on appeal, Dow is limited to a claim of plain error.
Given the discrepancy between the Alaska Supreme Court's treatments of this issue in Gieffels and Robinson, and given the fact that this issue is apparently governed by a preponderance of the evidence test under federal law, reasonable judges could differ as to what the law requires — and, thus, Dow's claim of plain error fails. For all of these reasons, we uphold the superior court's ruling that the two officers entered the arctic entryway of Dow's home, and later entered the kitchen, after receiving the voluntary consent of Ms. Noyes-Norris.
See United States v. Matlock, 415 U.S. 164, 177; 94 S.Ct. 988, 996; 39 L.Ed.2d 242 (1974).
See Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007); Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
Dow's argument that, as soon as Dow returned home, the officers were obliged to seek Dow's express consent to their continued presence in the residence — and that, in the absence of Dow's express consent, the officers' continued presence in the home constituted a violation of Dow's rights
Dow argues that even if Noyes-Norris validly consented to the officers' presence in the arctic entryway, and to their later entry into the kitchen, the officers were legally obliged to obtain Dow's additional consent to their presence in the house after Dow returned home. Dow argues that when law enforcement officers seek consent to enter a residence, they must obtain the express consent of every person residing there who is present on the premises — and he further argues that, even if the police initially comply with this requirement (as was true in Dow's case), the situation changes if another resident returns to the home while the police are there. According to Dow, the officers must affirmatively seek this new arrival's consent to their continued presence; otherwise, the officers' continued presence constitutes a violation of the new arrival's rights.
To support this argument, Dow relies on a decision of the Washington Supreme Court: State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989). Dow concedes that Alaska law currently does not incorporate this doctrine, but he urges us to adopt the reasoning of Leach.
However, Dow fails to address the fact that the Alaska Supreme Court's decision in Robinson (a case that we referred to in the preceding section of this opinion) is apparently contrary to his position. In Robinson, the supreme court first concluded that Robinson had not personally consented to the officers' presence in his home, and then the court went on to consider whether the police might have had the consent of another resident. 578 P.2d at 144-45. The implication of the supreme court's discussion is that either resident's consent would have been sufficient.
We need not resolve this issue because we conclude that, by the time Dow arrived at the residence, the officers had an independent justification for remaining in the house: they had probable cause to believe that the house contained a meth lab, and they could therefore temporarily seize the house (to prevent the destruction of evidence) while they attempted to obtain the residents' permission to search the basement or, alternatively, while they pursued a search warrant.
By the time Dow arrived at the residence, the officers had probable cause to believe that the house contained both methamphetamine and a meth lab
As we explained above, shortly after Noyes-Norris consented to have the officers go into the kitchen, Trooper Widmier went back to his car to retrieve his tape recorder.
While Widmier was gone from the kitchen, Barnett and Noyes-Norris spoke about methamphetamine use in the home, and Noyes-Norris asked Barnett questions about search warrants and police searches.
Toward the end of this conversation, Widmier returned to the kitchen and turned on his tape recorder. The beginning of the tape recording contains the following conversation — a conversation which indicates that Noyes-Norris had already admitted to Barnett (while Widmier was gone from the room) that she and Dow were manufacturing methamphetamine:
Widmier: We're out here at 1358 Carat Loop, [the home of] Ross Dow and his girlfriend. What's your name?
Noyes-Norris: Starla.
. . .
Widmier: Anyway, [Starla] gave us consent to come in the house and look around. But [as to our] going downstairs, she won't [consent]. Which gives us indications that the lab is down there. Am I right about that, Starla?
Noyes-Norris: I don't know what he's got going on down there (inaudible).
Widmier: But he does something down there that . . .
Noyes-Norris: He does something down there, yeah.
Widmier: Is it . . . a chemical smell that you smell?
Noyes-Norris: [I] [d]on't smell anything.
Widmier: You don't.
Barnett: Starla, you've already told me that it was personal use, correct?
Noyes-Norris: Mmm.
Barnett: All right.
Widmier: [To Barnett] For him or [for] her?
Barnett: [For] [b]oth. (Inaudible — a telephone is ringing) . . . they just do enough for personal use, is what she was telling me.
At this point, Dow (who was in the process of driving home) called the residence on his cell phone. Noyes-Norris answered the phone, but she handed the telephone to Widmier after Widmier said, "Here, let me talk to Ross."
Here is the portion of that conversation that was captured by the tape recorder in the kitchen — in other words, what was said in the kitchen, without Dow's responses:
Widmier: Hey, Ross? This is Trooper Widmier [of] the Drug Unit. I'm talking with your girlfriend right now concerning [the] possibility that there's a meth lab in the residence here. I came over to talk to you about all the Actifed and Sudafed pills you've been purchasing from Sam's Club. . . . So that's why I'm out here — because the amount of pills that you have purchased is not for cold purposes. Your girlfriend [has] already told us that you guys produce meth, and it's for personal use, and that the lab's downstairs.
Noyes-Norris: I didn't (inaudible).
Widmier: So we [can] go about this a couple [of] ways. You can come on out . . . and we get consent; we go about it the easy way. Otherwise, we'll go the paper route. . . . That means I seize the house [and] everybody else; I go get a search warrant; I come back. . . . (Pause — apparently, while Dow speaks) Well, then, how far out are you? (Pause — apparently, while Dow speaks) All right. Well, we're going to be . . . sitting up here in the kitchen, `cause I don't want anybody destroying anything. And when you get here, we'll talk about it, [and] we go that route. . . . What we do is we take what's illegal, and then we leave. All right. All right. `Bye.
Immediately after Widmier finished his conversation with Dow, he began talking to Noyes-Norris's teenage daughter, who had entered the kitchen. Based on what Widmier said to the daughter immediately after the phone call ended, it appears that the daughter had already told Widmier (that is, told him before he had the telephone conversation with Dow) that she had discovered drugs in the refrigerator:
Widmier: [To Dow] All right. All right. `Bye. [To the daughter] You told me, as you were walking up [to the kitchen], that you got in the refrigerator, [or] the freezer, and you found a cigarette container?
Daughter: [Re]frigerator.
Widmier: The refrigerator?
Daughter: It fell out.
Widmier: The cigarette container fell out, and you opened it up, and you saw some powder in it?
Daughter: Yeah, they were in (inaudible).
. . .
Widmier: And how long ago was this, that you found this?
Noyes-Norris: Two days [ago].
Daughter: Yeah, two days ago.
Immediately following this conversation, the officers again confronted Noyes-Norris with their suspicions that there was a meth lab in the residence. In response, Noyes-Norris told the officers, "I'm assuming it's for his own [ i.e., Dow's own] personal use." Widmier challenged this answer; he reminded Noyes-Norris that she had "told . . . Investigator Barnett, up in the kitchen, that you, also, use it for personal use." Noyes-Norris replied, "Yes, I do." Widmier then asked Noyes-Norris whether she used methamphetamine on a daily basis. She answered, "Yes", and then she admitted that she currently had some methamphetamine in her purse — which she allowed the officers to retrieve.
This was the situation when Dow arrived home at about 3:30 p.m.
Given these facts, and given Dow's large purchases of cold medicine, the officers had probable cause to believe (1) that Dow's residence housed a meth lab, (2) that quantities of methamphetamine were located in the residence, and (3) that quantities of a precursor chemical, pseudoephedrine, could be found in the residence. Any of these three beliefs was sufficient to justify the officers in seeking a search warrant — and in securing the house while they did so.
For these reasons, we conclude that it is irrelevant whether the officers might have been obliged, under different circumstances, to obtain Dow's express consent to their continued presence in the house after Dow arrived.
For these same reasons, we reject Dow's contention that he was subjected to an illegal detention when he arrived home — when the officers patted him down for weapons and required him to remain in their immediate presence (sitting on a couch). We note that even though the officers required Dow to sit on the couch, they explicitly told him that neither he nor Noyes-Norris was under arrest — and that they would not be arrested "unless [they got] out of control".
Again, for these same reasons, we reject Dow's contention that the officers subjected him to improper coercion when they asked him to consent to a search of the basement (instead of requiring the officers to pursue a search warrant).
Dow concedes that, under this Court's decision in Punguk v. State, 784 P.2d 246, 248 (Alaska App. 1989), police officers who have probable cause to seek a search warrant can validly inform a suspect that they will do so, and that they will temporarily detain the suspect (to prevent the destruction of evidence) while they apply for the warrant, unless the suspect consents to the search. See also Schikora v. State, 652 P.2d 473, 477 (Alaska App. 1982); Hubert v. State, 638 P.2d 677, 688 (Alaska App. 1981); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 8.2(c), Vol. 4, p. 69-75.
However, Dow asserts that the police lacked probable cause to support a search warrant application until Noyes-Norris's daughter described her discovery of the white powder in the refrigerator, and Dow further asserts that the daughter did not describe this until after Widmier spoke with Dow on the telephone and first confronted him with the choice of consenting to the search or having the officers apply for a warrant. There are two flaws in Dow's argument.
First, as we have explained, even though the recorded conversation between Widmier and the daughter took place just after Widmier got off the telephone with Dow, it is obvious from the recording that Widmier was asking the daughter to recapitulate a conversation that had already occurred before Widmier spoke to Dow on the telephone.
Second, the officers already had probable cause to apply for a search warrant before Noyes-Norris's daughter told them about finding the white powder in the refrigerator. The officers knew about Dow's large purchases of pseudoephedrine, and they had observed large quantities of rock salt at the residence. Noyes-Norris appeared to be under the influence of methamphetamine, and she exhibited the physical characteristics and mannerisms of a methamphetamine user. More importantly, the beginning of the tape recording reflects that Noyes-Norris had already told Officer Barnett that Dow was making methamphetamine, although only in quantities sufficient for their personal use. On the tape, Barnett tells Widmier (who has just returned from retrieving his tape recorder), "They just do enough for personal use, is what she was telling me."
Dow further asserts that Trooper Widmier affirmatively misrepresented the situation to him during their telephone conversation, when Widmier asserted that Noyes-Norris had already admitted that there was a meth lab in the basement of the house. Here, again, is what Widmier said to Dow:
Widmier: . . . Your girlfriend [has] already told us that you guys produce meth, and it's for personal use, and that the lab's downstairs.
Noyes-Norris: I didn't (inaudible).
Widmier: So we [can] go about this a couple of ways. You can come on out . . . and we get consent; we go about it the easy way. Otherwise, we'll go the paper route. . . . That means I seize the house [and] everybody else; I go get a search warrant; I come back. . . .
Dow argues that Widmier knowingly lied to him about what Noyes-Norris had said, and that this is proved by the fact that Noyes-Norris interjected "I didn't." But Dow's argument is premised on viewing the evidence in the light most favorable to him, and his argument also hinges on viewing Noyes-Norris's interjection in isolation rather than in the context of the entire conversation.
The entire recorded conversation shows that, before Widmier got on the telephone with Dow, he and Barnett discussed what had happened while Widmier was outside the house retrieving the tape recorder. Barnett turned to Noyes-Norris and said:
Barnett: Starla, you've already told me that it was personal use, correct?
Noyes-Norris: Mmm.
Barnett: All right.
Widmier: For him or [for] her?
Barnett: [For] [b]oth. (Inaudible — a telephone is ringing) . . . they just do enough for personal use, is what she was telling me.
Noyes-Norris made no objection to Barnett's description of their earlier conversation.
Widmier's ensuing telephone conversation with Dow must be viewed in light of this preceding conversation. Widmier made three assertions to Dow: "Your girlfriend [has] already told us that you guys produce meth, and it's for personal use, and that the lab's downstairs." At this point — i.e., following Widmier's third assertion (that Noyes-Norris had told the officers that the meth lab was in the basement) — Noyes-Norris interjected, "I didn't."
Noyes-Norris's interjection was true: she had not told the officers that the meth lab was in the basement. Instead, she had told them that Dow did "something" down there, but she did not know what. However, viewing the tape recording in the light most favorable to the State, Noyes-Norris had told Barnett that Dow was manufacturing methamphetamine for the personal use of both himself and Noyes-Norris — even though Noyes-Norris had not identified the precise location of the meth lab.
When Judge Wood issued his ruling on the suppression motion, he found that Widmier made an "inaccurate" statement to Dow when he told Dow that Noyes-Norris had admitted that the meth lab was in the basement. But Judge Wood declined to find that Widmier "lied" to Dow. According to Judge Wood (and the record supports this finding), Widmier told Dow that the officers knew that the meth lab was in the basement because Widmier inferred that this was so — since the basement was the area of the house that Noyes-Norris refused to allow the officers to inspect. When Dow arrived home, Widmier clarified this matter to Dow. He told Dow, "We ask[ed] [Noyes-Norris] if we could come in and look around [to allay] our concerns — [then] we can just leave, [if] there's no [meth] lab here. . . . We asked if we could downstairs and look. She says no. . . . So my suspicions are, like, okay, [it's] obvious that something's down there that she doesn't want us to see."
Widmier then described how Noyes-Norris's daughter had found methamphetamine in a cigarette pack in the refrigerator. Almost immediately afterward, Dow began confessing to his manufacture of methamphetamine. He declared that he was only "trying to make ends meet", and he told the officers, "I'll cooperate with you guys, and everything."
Given this record, we conclude that the officers could validly put Dow to the choice of either consenting to a search of his house or having the house temporarily secured while the officers pursued a search warrant. We further conclude that the record supports Judge Wood's finding that Dow voluntarily consented to the search of his house after this choice was presented to him.
In his brief on appeal, Dow suggests that his consent to the search was not valid because, when Trooper Widmier spoke to Dow on the telephone (before Dow returned to the residence and actually gave his consent to the search), Widmier suggested that Dow would be subjected to harsher treatment if he refused to give his consent and instead forced the officers to seek a warrant. Dow refers, in particular, to the portion of the telephone conversation where Widmier told Dow, "[If] I go get a search warrant [and] come back [and] find illegal stuff relating to a meth lab, . . . people will go to jail."
We reject this argument for two reasons.
First, even though Trooper Widmier's above-quoted remark might have led Dow to believe that he would be arrested if he forced the officers to seek a search warrant (and they then discovered the meth lab), the officers told Dow something different when he later arrived home. As we noted above, when Dow arrived at the house, the officers patted him down and then Trooper Widmier directed Dow and Noyes-Norris to sit on a couch. But Widmier also explicitly told Dow and Noyes-Norris:
Widmier: You're not under arrest. Neither one of you are under arrest; okay? And you're not going to be arrested unless you get out of control and I have to arrest you for disorderly conduct or assaulting a police officer.
Widmier's statements thus seemingly rebutted any earlier implication that Dow faced arrest unless he consented to the search.
Our second reason for rejecting Dow's argument is that this issue was not preserved in the superior court. To the extent that factual findings could be required to resolve this question of voluntariness (that is, the question of how Widmier's remarks might have affected the voluntariness of Dow's later consent to the search of his basement), Judge Wood made no factual findings on this issue — because Dow never asked him to.
In Dow's written suppression motion, his sole argument was that his consent to the search of his house was invalid because, lacking probable cause to obtain a search warrant, the officers threatened to seize the house and detain Dow and Noyes-Norris while they obtained a warrant. Dow's attorney repeated this same argument at the ensuing suppression hearing.
In his written suppression motion, Dow also mentioned that, at one point, the officers suggested to Noyes-Norris that the Division of Family and Youth Services might take custody of her teenage daughter unless Noyes-Norris cooperated with the officers. But this exchange did not occur in Dow's presence, and there is no indication in the record that Dow knew about the officers' remark when he came home and consented to have the officers search the basement.
For these reasons, we conclude that Dow has failed to adequately preserve his claim that Widmier's remark during the telephone conversation about "people . . . go[ing] to jail" had an improper coercive influence on Dow's decision to consent to the search of his basement.
Dow's argument that the search of the basement was unlawful because, even if Dow validly consented to this search, the officers never asked Noyes-Norris for her separate consent
As an alternative theory for suppressing the evidence found in the basement, Dow argues that even if he validly consented to the search, his co-resident, Ms. Noyes-Norris, was also present in the house, and the officers never asked Noyes-Norris for her separate consent to the search. Dow again relies on case law from other jurisdictions — cases holding that, when two or more co-residents are present at the residence that the police wish to search, the police must obtain the consent of each coresident.
See State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989).
We have already discussed the fact that our supreme court's analysis in Robinson appears to be contrary to the rule that Dow suggests. But, again, we need not resolve this legal issue. Even if Noyes-Norris's separate consent was required, and even if her consent could not be inferred from her unprotesting acquiescence in the search (after Dow expressly gave his consent), Dow would not be entitled to the suppression of evidence that he seeks.
Fourth Amendment rights are individual. That is, in most circumstances, one person can not complain that another person's Fourth Amendment rights were violated.
Rakas v. Illinois, 439 U.S. 128, 132-34; 99 S.Ct. 421, 424-25; 58 L.Ed.2d 387 (1978); Waring v. State, 670 P.2d 357, 360-63 (Alaska 1983).
The Alaska Supreme Court has created some limited exceptions to this doctrine: a criminal defendant can seek suppression of evidence based on the violation of someone else's Fourth Amendment rights if the defendant can show (1) that the police obtained the evidence as a result of gross or shocking misconduct, or (2) that the police deliberately violated the other person's rights to obtain evidence against the defendant. Waring v. State, 670 P.2d 357, 363 (Alaska 1983).
However, Judge Wood made no findings pertinent to either of the two Waring exceptions because Dow never raised this argument in the superior court — neither during the initial litigation of Dow's suppression motion nor during the parties' renewed Cooksey plea discussions and revised plea agreement following our first decision in this case.
Therefore, even if the officers were obliged to obtain Noyes-Norris's separate consent to a search of the basement, and even if her consent can not be inferred on these facts, the State would still be entitled to use the evidence found in the basement in its criminal prosecution of Dow.
Dow's sentencing arguments
We have now analyzed and rejected all of Dow's attacks on his convictions (that is, his suppression arguments). We next turn to Dow's attacks on his sentence.
In its pre-sentencing pleadings, the State asserted that Dow should be sentenced as a third felony offender because he had two previous felony convictions from California: a 1981 conviction for being an accessory after the fact to an attempted robbery (conduct which would constitute the crime of hindering prosecution under Alaska law), and a 1988 conviction for first-degree burglary. Judge Wood found that both of these California felonies qualified as "prior felony convictions" for purposes of Alaska's presumptive sentencing law, and Judge Wood therefore sentenced Dow as a third felony offender.
See AS 11.56.770 — 780. In Borja v. State, 886 P.2d 1311, 1313-14 (Alaska App. 1994), we held that the California offense of being an accessory after the fact to a felony was sufficiently similar to the Alaska offense of hindering prosecution to constitute a "prior felony conviction" for presumptive sentencing purposes under AS 12.55.145(a)(1)(B).
On appeal, Dow raises several challenges to the superior court's ruling that he was subject to sentencing as a third felony offender. Dow's claim that the California offense of being an accessory after the fact to an attempted robbery does not qualify as a prior felony conviction under Alaska law
First, Dow argues that his conviction for being an accessory after the fact to an attempted robbery does not qualify as a "prior felony conviction" under AS 12.55.-145. Subsection (a)(1)(B) of AS 12.55.145 declares that an out-of-state criminal conviction constitutes a prior felony for purposes of Alaska's presumptive sentencing law if the out-of-state offense has "elements similar to those of a felony defined as such under Alaska law at the time the offense was committed". Dow apparently concedes that if he had been convicted in California of being an accessory after the fact to a completed robbery, his California conviction would qualify as a "prior felony conviction" under the statute. Dow argues, however, that the statute does not cover his conviction for being an accessory after the fact to an attempted robbery.
Dow's argument stems from the fact that, under California law, an "attempt" is any "overt act" "directed towards immediate consummation" of the target offense, while Alaska law requires proof that the defendant undertook a "substantial step toward the commission of [the target] crime". Dow contends that the California requirement of any "overt act" is substantially broader ( i.e., inclusive of more conduct) than the "substantial step" required under Alaska law. Thus, according to Dow, many defendants will be convicted of an attempted criminal offense under California law when these same defendants could not be convicted of attempt under Alaska law.
See People v. Dillon, 668 P.2d 697, 703; 194 Cal.Rptr. 390, 396 (Cal. 1983); People v. Superior Court, 21 Cal.Rptr.3d 126, 131-32 (Cal. App. 2004) (superseded on other grounds by People v. Superior Court, 157 P.3d 1017, 58 Cal.Rptr.3d 421 (Cal. 2007)).
AS 11.31.100(a).
Our research shows that Dow has misconstrued the relationship between California law and Alaska law on this point. Alaska's "substantial step" requirement mirrors the Model Penal Code formulation of "attempt". And in People v. Dillon, 668 P.2d 697, 194 Cal.Rptr. 390 (Cal. 1983), the California Supreme Court explained that the Model Penal Code's requirement of a "substantial step" is broader than California's requirement of an "overt act" "directed towards immediate consummation" of a crime. In other words, more conduct qualifies as an "attempt" under the Model Penal Code formulation. Here is what the California Supreme Court said in Dillon:
See Model Penal Code (Official Draft, 1962), §§ 5.01(1)(c) (the basic definition of "attempt") and 5.01(2) (the definition of "substantial step").
[T]he draftsmen of the Model Penal Code would require even less [than the overt act required under California law], making punishable as an attempt any act or omission that constitutes "a substantial step in a course of conduct planned to culminate in . . . commission of the crime," so long as that step is "strongly corroborative of the actor's criminal purpose." (Model Pen. Code (Proposed Official Draft 1962), §§ 5.01(1)(c), 5.01(2).) Under this standard, acts normally considered only preparatory would be sufficient to establish liability. (See Wechsler et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy (1961), 61 Colum. L. Rev. 571, 592-607.
Dillon, 668 P.2d at 702 n. 1, 194 Cal.Rptr. at 395 n. 1.
We therefore reject Dow's argument that California's definition of a criminal "attempt" is more inclusive than Alaska's definition. The reverse is true. It follows that the superior court correctly counted Dow's conviction for being an accessory after the fact to an attempted robbery as a prior felony conviction for purposes of Alaska's presumptive sentencing law.
Dow's claim that the California offense of first-degree burglary does not qualify as a prior felony conviction under Alaska law
Dow next argues that his California conviction for first-degree burglary does not qualify as a "prior felony conviction" under AS 12.55.145(a)(1)(B) because, according to Dow, California's definition of burglary is substantially broader than Alaska's.
Dow did not raise this argument in the superior court. Nevertheless, since both parties have briefed the matter, and because the matter can be decided as a question of law ( i.e., without any findings of fact outside the current record), we will resolve this issue.
Dow relies on the fact that, under California Penal Code § 459, the offense of burglary includes any entry onto mining property (even entries that do not include an entry into an above-ground structure or an underground excavation) if the entry is effected with the intent to steal or to commit a felony. Dow contrasts this California statute with the Alaska statute defining burglary, AS 11.46.310, which requires proof of an entry into "a building" as defined in AS 11.81.900(b)(5).
See People v. Silver, 108 P.2d 4, 7-8 (Cal. 1940).
Dow has correctly identified a particular type of criminal activity — entry onto mining property with intent to commit a crime — that would qualify as burglary under California law but would not qualify as burglary under Alaska law. This, in and of itself, does not resolve the question of whether a California conviction for burglary qualifies as a "prior felony conviction" under AS 12.55.145(a)(1)(B) — because our statute does not require strict congruence between the out-of-state criminal statute and the corresponding Alaska statute. Rather, AS 12.55.145(a)(1)(B) requires only that the out-of-state statute have "elements similar to those of a felony defined as such under Alaska law at the time the offense was committed".
But we need not decide this issue to resolve Dow's case — because Dow was convicted of first-degree burglary in California. California Penal Code § 460 divides burglaries into two classes:
(a) Every burglary of an inhabited dwelling house, [or] vessel . . . which is inhabited and designed for habitation, [or] floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.
(b) All other kinds of burglary are of the second degree.
Given this statutory distinction between burglaries of the first degree and burglaries of the second degree, it is clear that essentially all conduct qualifying as first-degree burglary in California would also qualify as a burglary under Alaska law. The superior court therefore correctly counted Dow's conviction for first-degree burglary as a prior felony conviction for purposes of Alaska's presumptive sentencing law.
Dow's claim that the State failed to prove that Dow was on felony supervision stemming from his last felony — the 1988 California burglary offense — within the 10 years preceding his current drug offenses
Even when a defendant's prior criminal convictions qualify as "prior felonies" for presumptive sentencing purposes, the Alaska Legislature has imposed a time limit on prior felonies of lesser seriousness. Under AS 12.55.145 (a)(1)(A), a defendant's prior unclassified and class A felonies are always counted toward a defendant's presumptive sentencing status, but a defendant's other felonies do not count toward the defendant's presumptive sentencing status "if a period of 10 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding [felony] offense and [the defendant's] commission of the present offense".
If a defendant wishes to contend that their prior felonies should not be counted because 10 years or more have elapsed since the defendant's unconditional discharge on the last felony, the defendant must file a notice of this defense, and then the matter is referred to the sentencing judge for decision. It is the defendant's initial burden to present "substantial evidence" that they were released from felony supervision 10 years or more before their current offense. If that burden of production is met, then it becomes the State's burden to prove the contrary beyond a reasonable doubt.
See AS 12.55.145(c)(1)(D).
See AS 12.55.145(d): "Matters alleged in a notice of denial [under subsection (c)(1)] shall be heard by the [sentencing] court sitting without a jury."
AS 12.55.145(d).
id.
During the superior court litigation, Dow never directly asserted that 10 years or more had elapsed since his release from supervision on his most recent felony (his 1988 conviction for first-degree burglary). Rather, he raised a different claim relating to his felony supervision.
In addition to asserting that Dow was a third felony offender (because of his California convictions), the State asserted that Dow's current drug offenses were aggravated under AS 12.55.155(c)(20) because Dow was still on felony probation at the time he committed his current offenses. In fact, the State asserted that, as of the date of its sentencing memorandum — November 7, 2004 — Dow was a fugitive from justice, the State of California having issued a warrant for Dow's arrest for violating his probation.
In response, Dow filed a motion asserting that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he was entitled to a jury trial on aggravator (c)(20) — in other words, entitled to a jury trial on the factual issue of whether he was still on probation from California when he committed his drug offenses in Alaska.
Dow then attempted to bootstrap this Blakely claim into an attack on the State's use of his burglary conviction as a prior felony conviction. Dow filed a pleading in which he asserted that the California burglary could be counted as a prior felony conviction only if the State could show that Dow was still subject to supervision on that burglary conviction when he committed his present offenses — the same factual issue that the State would have to prove to establish aggravator (c)(20). Dow then argued that, because he had a right to a jury trial on aggravator (c)(20), that same right to a jury trial must apply to the State's proof of the prior burglary conviction. Dow told the superior court:
Unless the State can establish the prior burglary conviction without also showing [that Dow] has not been unconditionally discharged from probation [in California], this [burglary] conviction cannot be used [as a] predicate [to] the increased [presumptive term]. . . .
The obvious flaw in Dow's argument is that the State's ability to use the California burglary conviction as a "prior felony conviction" for presumptive sentencing purposes did not hinge on proof of aggravator (c)(20). That is, the State did not have to prove that Dow was still on California felony probation when he committed his current drug offenses. Rather, the State only had to prove that Dow's California probation ended within 10 years of the date of his current offenses.
Even at the ensuing sentencing hearing, when Dow's attorney orally addressed this issue, it is unclear whether he understood or addressed this distinction. However, giving Dow the benefit of the doubt, we will proceed under the assumption that his attorney articulated the claim that Dow was entitled to a jury trial on the issue of whether Dow was on felony probation from California within 10 years of his current offenses.
We need not resolve the issue of whether a defendant has a Sixth Amendment right to jury trial when, as in Dow's case, the defendant's status as a second or third felony offender hinges on the question of when their prior felony supervision ended. Even if we assume that Dow had the right to a jury trial on this issue, any error was harmless beyond a reasonable doubt.
In a series of cases beginning with Milligrock v. State, 118 P.3d 11, 16-17 (Alaska App. 2005), and Ned v. State, 119 P.3d 438, 443-44 (Alaska App. 2005), we held that a Blakely error is harmless if, given the facts of the case, there is no reasonable possibility that a jury (applying the "beyond a reasonable doubt" standard of proof) would have reached a different decision. The United States Supreme Court ratified this view of the matter in Washington v. Recuenco, 548 U.S. 212, 221-22; 126 S.Ct. 2546, 2552-53; 165 L.Ed.2d 466 (2006).
Here, Dow's Blakely claim is that a jury should have decided the question of exactly when his California felony supervision ended. We find that any potential error was harmless beyond a reasonable doubt, because the superior court heard uncontroverted evidence that Dow's California probation continued through December 2004.
At Dow's continued sentencing hearing on March 24, 2005, the State presented certified court documents from both of Dow's California prosecutions, and also testimony from a records custodian for the Shasta County (California) Superior Court, Ms. Melissa Fowler-Bradley.
The State's evidence established that Dow was convicted in December 1981 of being an accessory after the fact to an attempted robbery, and that he was unconditionally discharged from probation in that case on December 20, 1983.
The State's evidence also established that Dow was convicted in September 1988 of first-degree burglary, that he was sentenced to serve 270 days in jail, and that this sentence was suspended on condition that Dow complete a term of 4 years' probation. However, on May 25, 1990, Dow's probation officer filed a petition to revoke his probation, after Dow failed to report to his probation officer as required, and the Shasta County Superior Court issued a bench warrant for Dow's arrest on that same day.
Dow was never brought back before the Shasta County Superior Court. The Shasta County records custodian, Ms. Fowler-Bradley, testified that, according to the court records, Dow's status as a probationer continued from the date of his initial sentencing through December 8, 2004 — the date of Dow's first sentencing hearing in the present Alaska case. On that date, the California probation department finally asked the superior court to release Dow from further supervision.
According to Ms. Fowler-Bradley, the May 1990 petition to revoke Dow's probation served to "stop[] the clock" on Dow's probation, which would otherwise have expired on September 16, 1992.
Based on the California court records and on Fowler-Bradley's supplemental explanation of those records, Judge Wood concluded that Dow's "[California] probation was terminated sometime in December 2004" — in other words, more than one year after Dow committed his current drug offenses in Alaska.
As we explained above, under AS 12.55.145(d), when a defendant claims that they were discharged from felony supervision 10 years or more before their current offense, the State is not required to prove the date of the defendant's discharge from supervision until the defendant presents "substantial evidence" that their discharge date occurred 10 years or more before their current offense. Here, Dow presented no evidence — only speculation — that his California supervision might have ended before December 2004. Thus, under Alaska law, Dow never presented sufficient evidence to put the State to its proof.
But even assuming that the State's burden of proof was triggered under AS 12.55.145(d), the State met that burden. The evidence is uncontroverted that Dow was accused of violating his California probation, that a bench warrant was issued for his arrest in May 1990, that this California bench warrant was never served, and that (as a consequence) Dow's probation continued to run until the California authorities finally asked the superior court to terminate Dow's probation in December 2004 — that is, after Dow had pleaded no contest to the Alaska drug offenses and was facing imminent sentencing.
Accordingly, any Blakely error that occurred is harmless beyond a reasonable doubt. Conclusion
For the reasons explained here, the judgement of the superior court is AFFIRMED.