Opinion
Court of Appeals No. A-8676.
October 12, 2005.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-98-9058 Cr.
Phillip Paul Weidner, Weidner Associates, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Rex M. Hainsworth was convicted of two felonies (fourth-degree controlled substance misconduct and second-degree weapons misconduct) arising out of his cultivation of marijuana for commercial purposes. Much of the evidence against Hainsworth was obtained during the execution of a search warrant at his residence.
AS 11.71.040(a)(3)(F) and AS 11.61.195(a)(1), respectively.
In this appeal, Hainsworth contends that this search warrant was not supported by probable cause. In the alternative ( i.e., assuming that the search warrant application established probable cause for the search), Hainsworth argues that the search warrant application was flawed by the inclusion of illegally obtained information concerning his last name, his telephone number, and his residence address. Additionally, relying on our supreme court's decision in State v. Malkin, Hainsworth argues that the search warrant application was fatally flawed by material misstatements and omissions. In sum, Hainsworth argues that all of the evidence obtained under the warrant should be suppressed.
For the reasons explained here, we conclude that the search warrant affidavit establishes probable cause for the search of Hainsworth's residence. We further conclude that Hainsworth has failed to show that it was improper for the police to include the information concerning Hainsworth's last name, his telephone number, and his residence address.
However, with regard to Hainsworth's Malkin claims, we must remand this case to the superior court for more explicit findings of fact.
Underlying facts — the contents of the challenged search warrant affidavit
On August 14, 1998, Mary Ransom returned to Alaska after spending a year out of state. She went to the house in Chugiak that she co-owned with her former husband, Robert Ransom. Upon entry, Mary discovered dozens of marijuana plants growing inside the house. She then summoned the police and consented to their search of the residence.
Inside the Chugiak residence, the police found over one hundred marijuana plants. They also found papers and photographs belonging to Robert Ransom and his girlfriend, Kristina Stjern.
Five days later, the police contacted Stjern to ask her about the marijuana. Stjern told the police that, although Robert Ransom owned the Chugiak house, the marijuana was being grown by Ransom's tenant, a man named "Rex". According to Stjern, Rex paid rent to Ransom (between $4000 to $6000 every other month) for the use of the house. Stjern told the police that she and Ransom had been to the house a couple of times to water the marijuana plants, but that was the extent of their involvement in the operation.
Following the interview with Stjern, the police contacted Robert Ransom. Ransom confirmed that he rented the house to a man named "Rex". Ransom told the police that Rex and a couple of other men, including a man named John Mattson, had been "busted" recently, but that the authorities had had to release Rex because the evidence against him was obtained in an unlawful search.
Hainsworth and Mattson had indeed been arrested the month before, in connection with a police search of an Anchorage residence that was being used for growing marijuana. The charges against the men were dropped after a judge invalidated the search of that residence.
Ransom knew that Rex's telephone number was 346-xxxx, and that Rex lived near Service High School, in a home off Birch Road. Ransom told the police that he had visited Rex's home a few months before (in May or June 1998), and that he had seen gallon-size plastic bags filled with marijuana bud in Rex's freezer. Ransom stated that there was no marijuana growing in Rex's house at the time of his visit, but that the house had previously been used for marijuana cultivation and that Rex was currently selling marijuana from this house.
Ransom provided the police with a specific seven-digit telephone number. We are masking that number in the interest of privacy.
Following the interview with Ransom, the police performed a computer search for "John Mattson". They found that Mattson had been arrested with a man named Rex M. Hainsworth, who gave his telephone number as 346-xxxx (the same number that Ransom had identified as Rex's telephone number). In addition, Hainsworth listed his residence as 5550 East 104th Avenue. This address is off Birch Road, near Service High School.
The previous year (in March 1997), the police had conducted an investigation into an alleged marijuana-growing operation at this East 104th Avenue address. During that earlier investigation, the police contacted Hainsworth. When he was interviewed, Hainsworth admitted that he had had a marijuana-cultivation operation some six months before, but he declared that this operation was now ( i.e., in March 1997) shut down.
Based on this information, the police asserted (and the magistrate found) that there was probable cause to search Hainsworth's house on East 104th Avenue for paperwork and other physical evidence linking Hainsworth to the marijuana-cultivation operation discovered at the Ransom house in Chugiak.
Does the search warrant application establish probable cause for the search?
As we discuss later in this opinion, Hainsworth raises various legal challenges to the information contained in the search warrant application. But before we address those challenges, we must first determine whether, putting those challenges aside for the moment, the assertions in the warrant application establish probable cause for the search of Hainsworth's residence.
Because the search warrant application rests on hearsay provided by Robert Ransom and Kristina Stjern, the statements attributed to Ransom and Stjern must be analyzed under the Aguilar-Spinelli test.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of state law, the Aguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure).
Hainsworth argues that the search warrant affidavit does not establish any reason to believe that Ransom and Stjern had first-hand knowledge of Hainsworth's connection to the marijuana operation.
The affidavit contains ample information to support the inference that Ransom had first-hand knowledge of Hainsworth's involvement in the marijuana operation. According to the affidavit, Ransom was a co-owner of the house in Chugiak, and he was the one who allowed Hainsworth to use the house (in return for a fee). Ransom may not have known Hainsworth's last name, but he knew Hainsworth's telephone number and where Hainsworth lived. Ransom asserted that he had visited Hainsworth's house and had seen quantities of marijuana stored there in the freezer. Ransom also told the police that, in a recent conversation, Hainsworth had spoken about leaving town for a little while (apparently because of legal difficulties).
The affidavit is thinner with respect to Stjern's first-hand knowledge. Stjern's statements to the police definitely support the inference that she had first-hand knowledge of the marijuana-cultivation operation in Chugiak. But the way the search warrant affidavit is worded, Stjern's assertions about Hainsworth's involvement in this marijuana operation conceivably could be based solely on hearsay obtained from Ransom.
Despite this, we conclude that Stjern's statement to the police contains enough detail to support an inference of personal knowledge. She described the amount of rent that Hainsworth was paying to Ransom, and how frequently that rent was paid (every other month). She described Hainsworth's vehicle, and she told the police that Hainsworth liked to frequent a particular bar in Anchorage. She further stated that Hainsworth met with Ransom on Saturday, August 15, 1998 — apparently to talk about the police visit to the Chugiak house the day before. Based on all of this, we conclude that a magistrate could reasonably infer that Stjern had personal knowledge of Hainsworth's involvement in the marijuana cultivation in Chugiak.
For discussions of how, under the Aguilar-Spinelli test, personal knowledge can be inferred from the detail of an informant's tip, see Draper v. United States, 358 U.S. 307, 309; 79 S.Ct. 329, 331; 3 L.Ed.2d 327, 329-330 (1959); Schmid v. State, 615 P.2d 565, 574-75 (Alaska 1980); Rynearson v. State, 950 P.2d 147, 150 (Alaska App. 1997); Hugo v. State, 900 P.2d 1199, 1201 (Alaska App. 1995).
For these reasons, we conclude that the search warrant affidavit satisfies the "basis of knowledge" prong of Aguilar-Spinelli with respect to both Ransom and Stjern.
The next question is the "veracity" prong of Aguilar-Spinelli: whether the search warrant application offered good reason to credit Ransom's and Stjern's assertions. For purposes of this second prong, we assume that both Ransom and Stjern are police informants whose statements are presumptively suspect — meaning that the search warrant affidavit must affirmatively offer the magistrate good reason to credit those statements.
Hainsworth argues that Ransom and Stjern simply gave the police "bald accusations and conclusory statements" concerning Hainsworth's participation in the marijuana operation. He further argues that these accusations and statements were unworthy of belief because both Ransom and Stjern were motivated "to curry favor with the police" and to shift the focus of blame to a third party.
One can not reasonably deny that Ransom and Stjern were potentially motivated to shift blame from themselves to a third party. But that is why, under the Aguilar-Spinelli test, the State was required to provide the magistrate with good reason to trust Ransom's and Stjern's statements. Here, the question is whether these statements were sufficiently corroborated by independent police investigation. Our point of departure is the search warrant affidavit that was judged to be inadequate in State v. Jones, 706 P.2d 317 (Alaska 1985).
In Jones, a juvenile told the police that he and his companions had been purchasing cocaine from Jones over the past several months. The juvenile pointed out Jones's apartment to the police. The juvenile asserted that he had been inside this apartment, and that Jones used a set of triple-beam scales to measure the cocaine. However, the police offered only one piece of information as independent confirmation of the juvenile's story: the police confirmed that the identified apartment was indeed Jones's residence. The supreme court ruled that this search warrant application was insufficient to establish probable cause for the search.
Jones, 706 P.2d at 319-320.
Id. at 320.
The supreme court first noted that the mere confirmation of Jones's address was insufficient to establish the juvenile's veracity. This Court, too, has held that a police informant's veracity can not be established through mere corroboration of "public facts [and] wholly innocuous details".
Id.
Lloyd v. State, 914 P.2d 1282, 1288 (Alaska App. 1996), quoting Carter v. State, 910 P.2d 619, 624 (Alaska App. 1996).
The supreme court then rejected the argument that the juvenile's statement concerning prior purchases of cocaine could be viewed as an inherently trustworthy statement against penal interest. The court noted that the search warrant affidavit failed to describe the circumstances under which the juvenile gave his statement to the police. In particular, the court noted that it would make a great deal of difference whether the juvenile had approached the police as a concerned citizen or, instead, had offered his statement in an attempt to gain official concessions after he was arrested for illegal possession of drugs.
Jones, 706 P.2d at 325-26.
In the present case, as in Jones, the search warrant affidavit fails to explain the context in which Ransom and Stjern offered their statements concerning Hainsworth. In particular, the affidavit does not explain whether Ransom and Stjern knowingly implicated themselves as Hainsworth's accomplices in the marijuana operation without expectation of benefit or whether, instead, Ransom and Stjern gave their statements with the understanding or the hope that their cooperation would lead to reduced charges or might induce the authorities to refrain altogether from filing charges against them. For this reason, we can not attribute inherent reliability to Ransom's and Stjern's statements, even though these statements were seemingly against their penal interests.
Moreover, as pointed out in Jones and in several of our own cases, Ransom's and Stjern's veracity can not be established through police corroboration of public facts and wholly innocuous details such as Hainsworth's place of residence.
However, Ransom's statement to the police offered more than public facts and innocuous details. Ransom told the police that "Rex" had recently been "busted" along with a man named James Mattson (that is, arrested with Mattson in connection with a drug investigation), but that the authorities had had to release the suspects because the search warrant was thrown out. When the police went to their computer files to investigate Ransom's assertion, they found that Hainsworth had indeed been arrested with Mattson the month before, and that the charges were dropped after the search warrant was invalidated.
Hainsworth argues that these details, while not known to the general public, should be considered "public facts" because (according to Hainsworth) anyone involved in the local drug culture would probably know about Hainsworth's arrest and his ensuing good fortune. We do not agree that this is self-evident. Instead, we believe that a magistrate could reasonably conclude that these details of Hainsworth's scrape with the law would be known only to Hainsworth's associates — and that Ransom's knowledge of these details corroborated Ransom's assertion that Hainsworth was the active partner in the marijuana-cultivation operation.
In addition, Ransom told the police that Hainsworth's residence off Birch Road had been used for cultivating marijuana in the past, but that Hainsworth was not currently using the residence for that purpose. Ransom's assertion was corroborated by Hainsworth's own statements to the police during an investigation that took place the year before. In March 1997, the police interviewed Hainsworth in connection with a report that his residence at 5550 East 104th Avenue was being used to cultivate marijuana. At that time, Hainsworth told a police investigator that he had been growing marijuana in the past, but that he had stopped some six months previously.
Hainsworth concedes that he admitted growing marijuana, but he argues that the search warrant affidavit does not explicitly say that he admitted growing marijuana at the East 104th Avenue residence. Here is the pertinent portion of Detective David Koch's affidavit:
20. On 8-20-98 I spoke with Sgt. Henry, of the Anchorage Police Dept., who told me [that] he conducted an investigation into a marijuana grow operation located at 5550 E. 104th on 3-25-97. During that investigation[,] Sgt. Henry said[,] he contacted Rex Hainsworth who admitted having a marijuana grow operation six months before but denied having a grow at that time. . . .
We think that Hainsworth's argument rests on too fine a parsing of the affidavit. Reading this paragraph in a common-sense manner, one can reasonably conclude that the affidavit asserts that Hainsworth was speaking of his former activities at his residence.
Hainsworth further argues that even if the affidavit is read to mean that he admitted engaging in marijuana cultivation at his East 104th Avenue residence in the past, this information was too stale. Hainsworth points out that, by the terms of the affidavit itself, Hainsworth was describing activities that he engaged in no later than the autumn of 1996.
If the search warrant affidavit had been relying on Hainsworth's statement as proof that he currently ( i.e., in mid-August 1998) was growing marijuana at the East 104th Avenue residence, then Hainsworth's staleness argument might potentially have some force. But Hainsworth's statement was being offered to prove his past activities — in particular, to corroborate Robert Ransom's statement that Hainsworth's residence had previously been the site of marijuana cultivation, but that the residence was no longer being used for that purpose. In this context, Hainsworth's description of his previous marijuana growing activities was not "stale" information.
For these reasons, we conclude that the search warrant affidavit offered independent corroboration of two significant portions of Ransom's statement to the police. We further conclude that this corroboration was adequate to satisfy the second prong of the Aguilar-Spinelli test with respect to Ransom's assertion that Hainsworth was the active partner in the marijuana-cultivation operation discovered at Ransom's Chugiak residence.
The police need not obtain independent corroboration of the incriminatory details of an informant's tip; such a rule was specifically rejected in Schmid v. State, 615 P.2d 565, 577 (Alaska 1980). What the law requires is independent corroboration that "relate[s] to the tip in a way that lends substantial credibility to the report of illegality". Lloyd v. State, 914 P.2d 1282, 1286 (Alaska App. 1996). We conclude that the affidavit in this case offers this degree of corroboration.
Hainsworth levels one additional attack on the search warrant affidavit. He argues that even if the affidavit provided probable cause to believe that Hainsworth was involved in the marijuana-cultivation operation in Chugiak, there was still no reason to believe that any documents or other evidence connecting him to that operation would be found at his residence on East 104th Avenue.
But as we explained above, Ransom told the police that he had visited Hainsworth's house a few months before, and that he had seen large bags of marijuana bud in Hainsworth's freezer. Ransom further asserted that Hainsworth was selling marijuana from that residence. From Ransom's statements, the magistrate could reasonably conclude that there was good reason to believe that Hainsworth's house would contain records of harvests, records of sales, currency, or other evidence linking Hainsworth to the marijuana operation in Chugiak.
As this Court noted in Van Buren v. State:
It is logical to assume that persons regularly engaged in illicit distribution of controlled substances will keep drugs, drug paraphernalia, and related records in concealed places; [and] absent contrary indications, the most likely place will be the place where those persons live. 823 P.2d 1258, 1263 (Alaska App. 1992). Here, according to the search warrant affidavit, the house in question (5550 East 104th Avenue) was not only Hainsworth's residence, but it was also a place where he sold marijuana. The magistrate could therefore properly conclude that there was probable cause to search this house for the specified evidence.
For all of these reasons, we conclude that the search warrant affidavit established probable cause to believe that Hainsworth was engaged in the commercial cultivation of marijuana at the house in Chugiak, and probable cause to believe that evidence of this crime could be found at Hainsworth's house on East 104th Avenue.
Mary Ransom's authority to consent to the search of the Chugiak house
In the "statement of the case" portion of his brief, Hainsworth asserts in passing that Mary Ransom had no authority to allow the police to search the house in Chugiak. But Hainsworth does not mention this issue in the argument portion of his brief. To the extent that Hainsworth may have intended to attack the search warrant on the basis that the information contained in the search warrant application was the fruit of a potentially illegal search at the Chugiak house, that claim is waived.
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (holding that "where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal").
The scope of the search that the police performed after obtaining the warrant for Hainsworth's residence on East 104th Avenue
Additionally, again in his statement of the case, Hainsworth asserts in passing that when the police executed the search warrant for his residence on East 104th Avenue, the police exceeded the scope of the warrant by searching a basement room. Hainsworth further asserts that it was during this improper search of the basement room that the police discovered more marijuana that Hainsworth was growing.
Again, this is a conclusory assertion made only in passing. Hainsworth does not mention this issue again in the argument portion of his brief. To the extent that Hainsworth may have intended to attack the execution of the search warrant on this basis, that claim is waived.
Id.
Hainsworth's argument that the State is barred from relying on the information concerning Hainsworth's last name, his telephone number, and his residence address that was obtained as a result of Hainsworth's prior arrest at the house at 429 East 10th Avenue
As explained above, Robert Ransom told the police that the man who was using Ransom's Chugiak residence to grow marijuana was named "Rex", that Rex's telephone number was 346-xxxx, and that Rex lived in a house off Birch Road, near Service High School. Ransom also told the police that Rex had recently been busted, along with a man named John Mattson, at another location in Anchorage, but that the men had been released after a court invalidated the search of the property.
In an attempt to ascertain the identity of "Rex", the police searched their computer database for information related to John Mattson's arrest. They discovered that a man named Rex Hainsworth had been arrested at the same time as Mattson; these arrests took place at a house located at 429 East 10th Avenue in Anchorage. According to the computer database, Hainsworth gave his telephone number as 346-xxxx and he listed his residence as 5550 East 104th Avenue — an address located off Birch Road, near Service High School.
In this appeal, Hainsworth argues that the State was prohibited from relying on this information about his last name, his telephone number, and his residence. Hainsworth points out that the police obtained this information only because they arrested him at the house on East 10th Avenue, and Hainsworth further points out that the police entry of that house was later declared illegal. Based on this, Hainsworth argues that the identifying information obtained as a result of his arrest should be suppressed as the fruits of the illegal police entry.
The State argues that Hainsworth has no standing to protest the State's use of this information. The State contends that, because Hainsworth has never asserted a right of ownership or possession in the East 10th Avenue house, he has no right to protest the police entry of that house or object to the State's use of the fruits of that entry, even if the entry was illegal. But the information concerning Hainsworth's identity was not obtained through documentary evidence discovered during the illegal entry of the house. Rather, it was obtained when the police detained Hainsworth and asked him to provide this identifying information. Hainsworth clearly has standing to protest the seizure of his person and to object to the State's use of the fruits of that seizure.
Nevertheless, even though Hainsworth has standing to object to the State's use of the identifying information, it is far from clear that Hainsworth is entitled to suppression of this information.
The United States Supreme Court held, in Immigration and Naturalization Service v. López-Mendoza, that "[the] identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." In subsequent cases, both state and federal courts — in particular, the Ninth Circuit — have repeatedly enforced this rule, rejecting defendants' attempts to suppress evidence of their identity obtained during an unlawful arrest.
López-Mendoza, 468 U.S. 1032, 1039; 104 S.Ct. 3479, 3483-84; 82 L.Ed.2d 778 (1984).
See United States v. Tarín-Somera, 114 Fed.Appx. 891, 892 (9th Cir. 2004); United States v. Del Toro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004) ("We continue to hold today that the simple fact of who a defendant is cannot be excluded, regardless of the nature of the violation leading to his identity."); United States v. Guzmán-Bruno, 27 F.3d 420, 421-22 (9th Cir. 1994). Accord, United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999); Gibson v. State, 771 A.2d 536, 545-47 (Md.App. 2001).
But compare United States v. García-Beltrán, 389 F.3d 864, 866-69 (9th Cir. 2004), and United States v. Guevara-Martínez, 262 F.3d 751, 756 (8th Cir. 2001), holding that unlawfully obtained evidence proving or tending to establish a defendant's identity should not be suppressed if the evidence was obtained for the purpose of establishing the defendant's identity, but that it should be suppressed if it was obtained for some other investigatory purpose.
Professor LaFave discusses this rule — that evidence of a person's identity is not a suppressible fruit of an illegal arrest — in his treatise on search and seizure: Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 11.4(g), Vol. 6, p. 346. According to Professor LaFave, this rule applies not only to evidence of a defendant's name, but also to photographs and fingerprints taken as part of arrest procedures.
LaFave, § 11.4(g), Vol. 6, pp. 346-48.
Neither Hainsworth nor the State mentions or discusses the law on this point. In particular, Hainsworth seemingly assumes that if the identifying information can be traced to an unlawful arrest or seizure, then suppression is the automatic result. But, as we have just explained, this does not appear to be true.
As the appellant, Hainsworth has the burden of convincing us that it was unlawful for the police to rely on this identifying information when the police applied for the contested search warrant. Given the legal authorities we have just discussed, Hainsworth has not met this burden.
Hainsworth's arguments that the search warrant application contained material misstatements and omissions
In State v. Malkin, 722 P.2d 943, 947-48 (Alaska 1986), the Alaska Supreme Court held that a search warrant can be invalidated on the basis that the warrant application contains misstatements or omissions of fact, depending on (1) the materiality of these misstatements and omissions, and (2) whether the officer who applied for the warrant acted recklessly or intentionally with respect to the misstatements and omissions. In Lewis v. State, we explained the analysis that Malkin requires:
[O]nce a misstatement or omission is established, the burden of proving that it was neither reckless nor intentional shifts to the state. A failure to meet this burden will vitiate the warrant if the misstatement or omission is material, that is, if deletion of the misstated information from or inclusion of the omitted information in the original affidavit would have precluded a finding of probable cause. 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, 186 (Alaska App. 1993).
Quoting Malkin, 722 P.2d at 946 n. 6.
In his brief to this Court, Hainsworth asserts that the search warrant application was flawed by the following misstatements and omissions:
1. the failure to explicitly state that Ransom was facing felony charges in connection with the marijuana-cultivation operation at the Chugiak residence, thus giving him a potential motive to provide false information;
2. the failure to state that the police promised lenient treatment to Ransom if he cooperated with their investigation;
3. the failure to state that the electrical records for Hainsworth's residence on East 104th Avenue showed that the consumption of electricity at this residence was relatively low, and thus inconsistent with the premise that this residence was being used for marijuana cultivation;
4. the failure to state that Ransom misdescribed Hainsworth's height by four inches;
5. the failure to clarify that, even though Ransom thought that Hainsworth and Mattson had been arrested in Sand Lake, the two men were in fact arrested at 429 East 10th Avenue, several miles from Sand Lake;
6. the failure to mention that none of the fingerprints lifted from Ransom's Chugiak residence matched Hainsworth's prints;
7. the failure to highlight several inconsistencies between Ransom's statement and Stjern's statement. According to Hainsworth, Ransom and Stjern differed in their descriptions of the model of truck that Hainsworth drove (Ford vs. Chevy); the amount of rent that Hainsworth paid to Ransom ($1000 per month vs. $2000-$3000 per month); and the bar that Hainsworth frequented (the Black Angus vs. the Long Branch). In addition, according to Hainsworth, Stjern said that she and Ransom occasionally helped to water the plants at the Chugiak residence, whereas Ransom denied all knowledge of the marijuana operation in his house.
8. the misstatement (or the failure to renounce the inference) that Stjern had first-hand knowledge of Hainsworth's role in the marijuana cultivation operation. According to Hainsworth, all of Stjern's information came second-hand from Ransom.
9. the misstatement that Ransom described the marijuana bags in Hainsworth's freezer as "large gallon baggies" when, in fact, they were not;
10. the misstatement (attributed to Ransom) that "Rex" had been "busted" with John Mattson when, in fact, Ransom never explicitly stated that Rex was arrested.
In its responding brief, the State contends that many of Hainsworth's assertions about the facts of the case are wrong. The State further contends that the search warrant application does not misrepresent the facts in the ways that Hainsworth suggests. Finally, the State contends that, to the extent that the facts presented in the warrant application might not be completely accurate, the officer who applied for the warrant presented the facts as he reasonably believed them to be.
The problem we face, as an appellate court reviewing this dispute, is that the superior court made no findings of fact on any of these contentions. In particular, the superior court made no findings as to whether the search warrant affidavit did indeed contain misstatements of fact or significant omissions of fact. Nor did the superior court make any findings as to whether, if there were misstatements or omissions in the search warrant application, (1) these misstatements and omissions were done with the intent to mislead the magistrate, or (2) these misstatements and omissions were done with reckless disregard for the truth, and were material to the determination of whether there was probable cause for the search of Hainsworth's residence.
Under Alaska Criminal Rule 12(d), when a motion to suppress evidence requires a trial court to resolve disputed issues of material fact, "the court shall state its essential findings on the record". Although we have never interpreted this rule to require oral findings (as opposed to written ones), we have enforced this rule by sending cases back to the trial court in situations where the judge failed to make explicit findings (either oral or written) and the record failed to otherwise clarify the factual basis of the judge's ruling. We conclude that we must do the same thing in Hainsworth's case regarding his Malkin claims.
See, e.g., Long v. State, 837 P.2d 737, 742 (Alaska App. 1992); Burks v. State, 706 P.2d 1190, 1191 (Alaska App. 1985).
Conclusion
We hold that the search warrant affidavit establishes probable cause for the search of Hainsworth's residence at 5550 East 104th Avenue. We further hold that Hainsworth has failed to show that he is entitled to suppression of the identifying information obtained during his earlier arrest at 429 East 10th Avenue.
With regard to Hainsworth's Malkin claims, we must remand this case to the superior court for more explicit findings of fact. The superior court shall make its findings and forward them to this Court within 60 days of our remand. After the superior court issues its findings, Hainsworth shall have 30 days to file a memorandum addressing those findings, and the State shall then have 30 days to file a responding memorandum. No reply memorandum will be allowed.
After we have received the superior court's findings and the parties' memoranda, we shall resume our consideration of Hainsworth's Malkin claims.