Opinion
Court of Appeals No. A-8935.
February 22, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. Trial Court Nos. 4FA-01-516 CI, 4FA-90-2090 CR.
Nelson Traverso, Law Office of Nelson Traverso, Fairbanks, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
In 1995, Eugene Fields was convicted of second-degree murder. This court consolidated his direct appeal of that conviction and his appeal of the superior court's decision denying his first post-conviction relief application. This court affirmed Fields' conviction and the denial of his requested post-conviction relief. Fields then filed this second application for post-conviction relief, alleging that his trial attorneys and his appellate attorney had been ineffective because they had failed to litigate whether an alleged warrantless search had occurred. The superior court summarily denied Fields' claim of ineffective assistance of counsel for failure to raise sufficient issues of material fact. Fields appeals that dismissal.
Factual and Procedural Background
In 1990, Fields was charged with the murder of Leon Urban. The factual background regarding Mr. Fields' second-degree murder conviction was laid out as follows in Fields v. State, Alaska App. Memorandum Opinion and Judgment No. 4139 (Oct. 20, 1999):
In July of 1990, 57 year old Eugene Fields and 80 year old Leon "Curly" Urban each owned cardrooms in downtown Fairbanks. Fields owned the Pastime, and Curly Urban owned Star Recreation. On July 7, 1990, Fields made several visits to Star Recreation during the late afternoon and early evening. More than one witness observed that Fields was somewhat intoxicated, and testified to a heated exchange between Fields and Urban at Star Recreation. Fields apparently wanted to fight, but Urban said something to the effect that he was too old and sick to fight, and that he'd just "blow [Fields'] head off." Fields then left. Later in the evening, a witness saw Fields next door at the Mecca Bar in downtown Fairbanks.
Fields later left the Mecca Bar, walked out onto Second Avenue, and approached Urban's car, a white Cadillac. Joseph Gooshaw, a bartender at the Mecca, observed Fields pacing around Urban's Cadillac, and leaning against it. Gooshaw saw Fields approach and get in Urban's Cadillac on the passenger side, and Urban get in his car on the driver's side. The Cadillac then drove away.
Fields resided at the Fairview Manor, in Apartment 2-C-2. Late in the evening of July 7, several residents of Fairview Manor observed a white or light-colored Cadillac slowly drive up and/or heard sounds resembling popping or backfire. The residents noticed that the driver was leaning over against the driver's side door and the passenger was driving the car. One resident testified that she saw Fields walking away from the car and towards Building 2 of Fairview Manor. Residents summoned paramedics to the scene. Curly Urban was found in the Fairview Manor parking lot at about 9:40 p.m. behind the wheel of his Cadillac with two fatal gunshot wounds to the right side of his chest from a large caliber handgun. The wounds were later identified as probably coming from a .38 or a .357 caliber handgun.
The police investigation centered on Fields. On July 8, 1990, police sought and obtained a search warrant for Fields' apartment 2-C-2, in Fairview Manor in Fairbanks. This warrant was executed that afternoon. Fields was not at home at the time. During the search, the police found a black nylon holster for a .38 or a .357 caliber handgun, but did not find a gun. Detective David Curwen saw keys for a General Motors car in the apartment. During the search, Officer David Kendrick pointed out a tan Cadillac (a General Motors car) parked near the apartment building; he told Detective John Drews that he had seen Fields driving it "on several occasions" in the past, and that the vehicle was registered to Kathy Jimmie. The police discovered that day that the vehicle was registered to Jimmie at Fields' apartment address at 2-C-2 Fairview Manor.
In the early morning hours of July 10, police sought and obtained an arrest warrant for Fields and arrested him. While Fields was in custody, he was read his Miranda rights and declined to give a statement. Also while Fields was in custody at the station, Detective Paul Keller asked Fields where the keys were to the cars (the tan Cadillac and a maroon Chrysler). Keller told Fields that the cars were going to be impounded. Keller told Fields that if the police had the keys, they could get in the trunks without damaging the cars. Fields told the officers where the keys were.
Detective Curwen returned to Fields' apartment after the second search of the apartment and asked Flossie Jimmy, a woman living or visiting there when Fields was arrested, if she knew where the keys were. Jimmy responded that she wasn't sure, but started looking for them. Detectives then asked her about the keys hanging inside the closet. Officers took the keys, impounded the tan Cadillac and a maroon Chrysler and towed them to police property. On July 10, 1990, at 4:30 p.m., officers sought a search warrant for the tan Cadillac. Search warrant No. 90-245 was issued to allow the search of the Cadillac for any large caliber weapons, ammunition and other paraphernalia.
In support of the warrant, Detective Drews testified that no weapons had been found to date in their investigations, and that a tan Cadillac had been parked in the Fairview Manor parking lot near the building where Fields resided. He testified that Officer Kendrick had told him that Fields had been seen driving the car in the past, and that the car was registered to Kathy Jimmie, an ex-girlfriend of Fields. Further, the keys to that vehicle were located inside Fields' apartment, 2-C-2. The magistrate issued the warrant and a search of the Cadillac trunk yielded one box of .357 ammunition which was introduced at trial.
Fields moved to suppress the statements which he made to Detective Keller, the keys to the Cadillac, and the box of .357 ammunition. Fields argued that his statement to Detective Keller was obtained in violation of his Miranda rights; that the keys were a fruit of the Miranda violation; and that there was no probable cause to support the warrant since it was based on the illegally obtained statement. Fields also contended that the police had acted illegally in impounding the Cadillac before obtaining a search warrant and that the police had made reckless or intentionally misleading statements to obtain the warrant.
Following an evidentiary hearing on the motion to suppress, Judge Hodges suppressed Fields' statement to Detective Keller concerning the location of the keys. He also suppressed the keys as a product of the illegal statement. The state has not contested this ruling on appeal. Judge Hodges additionally found that, even with the illegally obtained data excised from the testimony presented to obtain the search warrant, the remaining information was sufficient to support issuance of the warrant. He concluded that the law enforcement officers were entitled to impound the Cadillac for safekeeping while they obtained a warrant.
Fields, Memorandum Opinion and Judgment No. 4139 at 2-5.
Ultimately, in 1995, a jury convicted Fields of second-degree murder. Fields then filed his first application for post-conviction relief, alleging ineffective assistance by his trial counsel for failure to request a heat of passion instruction and the trial court's failure to instruct the jury on heat of passion. The superior court denied his application. Fields then appealed both his conviction and the superior court's denial of his post-conviction relief application to this court. This court consolidated the appeals and affirmed both the conviction and the superior court's denial of the post-conviction relief application.
Shortly after Fields filed the opening brief in those proceedings, appellant's counsel, in preparing a supplemental brief, discovered what she believed to be documentation of a warrantless search of the Cadillac's locked trunk where the police discovered the ammunition. The search warrant for the Cadillac, Search Warrant No. 90-245, appears to have been issued at 4:38 p.m. on July 10, 1990. However, the search warrant return slip notes that Detective John Drews of the Fairbanks Police Department served the warrant at 12:30 p.m. that same day. Appellant's counsel attempted to supplement the appeal with this new information but this court determined that Fields had waived this argument by raising it for the first time on appeal. Fields filed a supplemental application for post-conviction relief arguing that the police had conducted a prior illegal search of the Cadillac before obtaining the search warrant and that his attorneys had been ineffective in not raising this issue. The superior court refused to appoint counsel for what it characterized as Fields' second post-conviction relief application (Fields had filed and litigated the earlier post-conviction relief application) and dismissed the action. This court reversed, and remanded the case so that the superior court could appoint counsel and to determine whether Fields had made a prima facie case.
On December 12, 2003, Fields filed another application for post-conviction relief, arguing that his first post-conviction relief and appellate attorney provided ineffective assistance of counsel when failing to recognize the alleged warrantless search. Superior Court Judge Randy Olsen dismissed the application, stating that Fields had failed to set forth sufficient issues of fact to preclude summary disposition. Fields appeals the denial of his second application for post-conviction relief.
Discussion
Fields' argument centers on the discrepancy between the times listed for the hearing on the application for the search warrant and the time that the police placed on the search warrant return slip. According to court records, the police obtained the warrant to search Fields' Cadillac at 4:28 p.m. on July 10, 1990. The search warrant return slip indicates that the warrant was served at 12:30 p.m. that same day. Fields contends that this evidence shows that Detective Drews conducted the search before he obtained the warrant. He argues that his trial attorneys were ineffective because they did not notice this discrepancy. He argues that a competent attorney, having noticed this discrepancy, would have filed a motion to suppress the ammunition that the police found in his car based on the illegal search. (The ammunition was important because it tended to connect Fields to the weapon used in the homicide.) Fields further argues that his post-conviction relief attorneys should have noticed the time discrepancy and argued that his trial attorneys were ineffective in failing to raise the suppression motion.
In order to prevail, Fields needed to overcome numerous hurdles. First, he needed to establish that his post-conviction relief attorney was ineffective in failing to notice the time discrepancy. He must further prove that upon noticing the discrepancy, the post-conviction relief attorney provided ineffective assistance for not arguing that the trial attorneys had been ineffective in failing to file a motion to suppress because of the time discrepancy. And thus, Fields had to show that his trial attorneys were ineffective in failing to file the suppression motion. Fields also had to show that, had his trial attorneys filed the suppression motion, the evidence would have been suppressed. Lastly, Fields had to show that, if his trial attorneys succeeded in suppressing the evidence, the outcome in his trial might have been more favorable.
Grinols v. State, 10 P.3d 600, 617-18 (Alaska App. 2000); State v. Steffensen, 902 P.2d 340, 343 (Alaska App. 1995).
In response to Fields' application for post-conviction relief, the State filed a motion to dismiss. The State disputed the fact that Detective Drews had conducted a prior illegal search of his car before obtaining a warrant. The State pointed out that Detective Drews had sought numerous search warrants in the case over a period of several days. The State explained that Detective Drews would not have had the warrant return slip before the issuance of the warrant. Therefore, Detective Drews could not have filled out the return slip before obtaining the search warrant. The State also asserted that it lacked sense to assume that Detective Drews had conducted a prior illegal search and had intentionally withheld this information from the magistrate, but documented his earlier search on the warrant return slip.
The State also argued that, even if Detective Drews had searched Fields' car before obtaining the warrant, he did not use any information obtained in the illegal search to obtain the warrant. Thus, assuming the prior illegal search occurred, the State argued that it did not taint the search warrant. The State analogized this situation to Cruse v. State.
584 P.2d 1141 (Alaska 1978).
Judge Olsen granted the State's motion to dismiss. Judge Olsen first concluded that Fields did not establish that his post-conviction relief attorney provided ineffective assistance of counsel for failing to discover the time discrepancy between the warrant hearing and the return slip. Judge Olsen also concluded that, under Cruse, even if Fields showed that Detective Drews conducted a prior illegal search, the record showed that the police had probable cause to obtain the search warrant without using any information from the prior illegal search. He agreed with the State that, even if Detective Drews conducted a prior illegal search of Fields' car, he had sufficient probable cause without using any information from the prior search to obtain the warrant. Therefore, had Fields' attorney brought a motion to suppress, a court would have denied that motion. Fields could not have been prejudiced by his attorneys' failure to file the motion.
Fields' allegations that his counsel were ineffective
In order to dismiss Fields' application for post-conviction relief, Judge Olsen had to find that, even if Fields proved all of the allegations in his application, he would not be entitled to relief. Fields provided affidavits from his various attorneys. The affidavit of his lead post-conviction relief attorney, interpreted in the light most favorable to Fields, provides some support for Fields' claim. The attorney states that:
[I]n failing to spot the warrantless search and seizure documented in the record and to ensure that the warrantless search was specifically reflected in Mr. Fields's application for Post-Conviction Relief and Points on Appeal, I provided representation to Mr. Fields which fell short of the minimum competency expected of any criminal law practitioner.
The attorney recalls that he briefly noticed the discrepancy, but "just assumed [that] I had misread or misinterpreted the times noted in the search warrant documents." He explains that this was a serious mistake.
One of the trial attorneys states that she did not notice the discrepancy between the time on the warrant and the return slip. She explains that the failure to notice this discrepancy was not a trial tactic. Fields' lead trial attorney similarly states that he did not notice the discrepancy. He states that, had he noticed the discrepancy, he would have used this information to Fields' benefit at trial.
In his findings, Judge Olsen concluded that Fields did not show that the post-conviction relief attorney was ineffective. He noted that none of Fields' trial attorneys noticed the discrepancy. He concluded that the post-conviction relief attorney unduly criticized his own performance and that Fields did not establish that his counsel had been ineffective.
See Simeon v. State, 90 P.3d 181, 185 (Alaska App. 2004); Dolchok v. State, 639 P.2d 277, 295 (Alaska 1982).
We agree with Judge Olsen that Fields' showing of ineffective assistance of counsel appears weak. But, at this point in the proceedings, the question is whether Fields has presented some evidence, which if believed, would establish ineffective assistance of counsel. In his affidavit, the post-conviction relief attorney stated that he provided Fields with ineffective assistance of counsel. Viewed in the light most favorable to Fields, a reasonable inference from the post-conviction relief attorney's affidavit is that any competent attorney would have noticed the discrepancy and would have pursued legal remedies for Fields based on this discrepancy. We therefore conclude that the affidavit presented some evidence that his attorneys were ineffective.
Cruse v. State
In Cruse, the supreme court was faced with facts similar to the ones presented here. There, three young men in a white car caused trouble at an Anchorage drive-in theater, which attracted the attention of a theater employee. After obtaining permission to eject the young men, the employee returned to find the car leaving the theater. Minutes later, the cashier of the theater reported to the employee that he had just been robbed and provided a description matching the three young men in the white car. The two employees then provided police with a detailed description of the men, including body size and clothing, as well as a description of their car. A state trooper observed a white car matching the description suspiciously parked at a liquor store, a short distance away from the theater. The trooper then stopped the vehicle. The trooper, believing the suspects were under arrest, called for a wrecker to impound their vehicle. Following standard trooper policy, which was to inventory the contents of all vehicles impounded for other than evidentiary purposes, the trooper opened the trunk to inventory its contents. An Anchorage Police Department (APD) officer arrived at the same time the troopers were opening the trunk and observed a long-barreled revolver, a garden hose, and a brown paper bag. The APD officer then closed the trunk and informed the trooper that he wanted the car for evidence and that he needed to obtain a warrant to search the trunk (it was not APD policy to conduct inventory searches of impounded vehicles as a matter of course). The officer then prepared an affidavit for a search warrant. He and the assistant district attorney agreed not to tell the district court judge about the prior search until after the judge signed the warrant because they felt that sufficient probable cause supporting the warrant existed. The judge issued the warrant and the police performed a full search of the car.
Cruse, 584 P.2d at 1143.
Id.
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One of the defendants, Cruse, filed a motion to suppress all the items seized in the search, arguing that his arrest and the initial search were illegal. Therefore, all evidence obtained from that search and the subsequent warrant search should have been suppressed. The supreme court held that even assuming an initial illegal search, "there was sufficient other probable cause to support the issuance of the subsequent warrant upon which authority the items in question were seized."
Id.
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The court went on to state that if the police conduct a prior illegal search, besides establishing that they had sufficient probable cause without the illegal conduct, the police must still demonstrate that the illegal conduct did not increase the police's motivation to seek the warrant. The court also recognized the possibility that a police officer could omit information from an affidavit "with the deliberate intent to mislead the court. . . ." The court reserved deciding whether such a statement would invalidate the warrant even if the deliberate omission was unnecessary to establish probable cause.
Id. See also Meyers v. Anchorage, 838 P.2d 817, 818-19 (Alaska App. 1992).
Cruse, 584 P.2d at 1147 n. 14.
Id.
In its motion to dismiss, the State assumes that Cruse stands for the proposition that if the police conduct an illegal search, and the police do not use any of the information gained because of the illegal search to obtain the search warrant, a valid search warrant exists if it is supported by probable cause. In his order dismissing Fields' application for post-conviction relief, Judge Olsen adopted this reasoning and upheld the warrant because the police presented probable cause supporting the warrant's issuance. But this reasoning overstates the holding in Cruse. Cruse was a relatively easy case. It is clear from the facts in Cruse that, if the police conducted an illegal search, it was done in good faith. Furthermore, the police informed the magistrate, after he issued the warrant, about the prior search. It was also clear from Cruse that the prior search did not motivate the police to obtain the warrant and that they had not intentionally withheld any information from the court.
In the motion to dismiss, the State conceded (in the alternative) that the police had conducted a prior illegal search of Fields' Cadillac. That means, for purposes of the motion to dismiss, Fields established that the police had conducted a prior illegal search and had withheld this information from the court in spite of the earlier Cruse holding directing them to inform the magistrate of the prior illegal search. The question is: was this a sufficient showing on Fields' part to avoid a motion to dismiss? According to the Cruse case, Fields had a duty to show that the evidence resulted from the illegal search:
Although the [S]tate has the ultimate burden of persuasion on the issue of whether the subsequently obtained evidence was untainted by the prior illegality, the defendant has the initial burden of demonstrating by specific evidence that the evidence about which he complains grew out of the illegal search.
Id. at 1145.
Regardless of what burden the Cruse case places on the defendant, we believe that the later case of State v. Malkin places the burden on the State to show, if there was a prior illegal search, that the prior illegal search did not taint the search warrant.
722 P.2d 943 (Alaska 1986).
In Malkin, the supreme court held that the defendant has the burden to point out the false statements in the affidavit. If the defendant showed the false statements, the burden then shifted "to the [S]tate to show by a preponderance of the evidence that the statements were not made intentionally or with reckless disregard for the truth. If the State does not meet this burden, then the misstatements must be excised and the remainder of the affidavit tested for probable cause." The court provided the following reason for placing the burden on the State once the defendant showed that the statement was false:
Id. at 946.
Since it is the police officer alone who knows the circumstances under which he made the statements in the affidavit, to make the defendant prove intent or recklessness would probably impose an insurmountable burden on him.
Id. at 948 (citation omitted).
From the reasoning in Malkin, we conclude that when the defendant shows that the police have conducted a prior illegal search, the State has the burden of showing that the prior illegal search did not taint the search warrant. We agree with Judge Olsen that the State has established that the affidavit in support of the search warrant established probable cause. But it appears to us that the State, if it concedes that the police conducted a prior illegal search (with regard to the alternative Cruse argument), must establish that the illegal search did not materially influence the police motivation to obtain the warrant. Furthermore, in Malkin, the supreme court clarified the issue that they reserved in Cruse. The supreme court stated that if the police deliberately attempted to mislead a judicial officer the entire warrant would be invalidated even if it established probable cause. On this record, assuming the State concedes that the police engaged in a prior illegal search and did not reveal this during the extended course of this litigation, Fields would have a claim that the State engaged in intentional conduct that should result in suppression.
Meyers, 838 P.2d at 818-19; Cruse, 584 P.2d at 1145.
Malkin, 722 P.2d at 946 n. 6.
The State has conceded (for purposes of the Cruse argument) that there was a prior illegal search of Fields' Cadillac. But Cruse does not stand for the proposition that a prior illegal search is permissible if the police can show that they had sufficient probable cause without using the prior illegality. Such a holding would allow the police, if they had probable cause, to search without a warrant. If they found evidence, they could then obtain a warrant. Cruse appears to be limited to situations where the police made a good faith mistake, but the mistake did not influence the police's decision to obtain a warrant. Cruse also assumes that the police have been honest with the court and have not attempted to mislead the court in obtaining the warrant. Here, the State has not asserted that the time discrepancy was an honest, good faith mistake. If we assume that the police conducted the prior illegal search, the State has not shown that Cruse governs the search of Fields' Cadillac. We accordingly conclude that Judge Olsen erred in concluding that Cruse permitted him to dismiss Fields' application.
REVERSED and REMANDED.