Opinion
Court of Appeals No. A-10698 Trial Court No. 3PA-06-1039 CR No. 5963
07-24-2013
MICHAEL J. LADAN, Appellant v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Bolger, Supreme Court Justice.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Michael J. Ladan was convicted of fourth-degree misconduct involving a controlled substance. Ladan appeals, arguing that the superior court erred in denying his pro se motion to suppress and in denying as untimely a second motion to suppress that was filed by the attorney he later retained. For the reasons discussed below, we affirm the rulings of the superior court.
Factual and procedural background
On March 8, 2006, Trooper Kyle Young smelled the odor of growing marijuana while driving on Big Lake Road. Young walked along a public trail near the road and determined that the source of the odor was a nearby residential property. Young had previously searched this property in 2002, and he knew that it was the residence of Michael Ladan and Tory Elbrader. Young had found a marijuana grow operation during the 2002 search, but the evidence was later suppressed based on deficiencies in the search warrant affidavit.
Young contacted another officer, Officer Kelly Swihart, who confirmed the smell of growing marijuana while walking along the same public trail. Young checked the borough records and determined that the property was listed in the name of Tory Elbrader. The borough records showed only one structure on the property — a 252 square-foot cabin. However, Young knew, partly from his previous search, that there were three structures on the property — a cabin, a two-story structure, and a small shop. Young estimated the size of the two-story structure to be around 800-1000 square feet.
Young checked the Matanuska Electric Association records and learned that Michael Ladan was listed as the electrical subscriber for the property. Based on comparisons to other electrical usage rates of residences with much larger square footage, Young concluded that the property's usage was "suspiciously high."
Young applied for a search warrant, submitting an affidavit containing the above information. The affidavit also contained statistical information compiled by Trooper Young purportedly showing that when law enforcement officers detect the smell of growing marijuana from outside a person's property line, this is strong evidence that the smell comes from a felony-level marijuana grow operation.
This Court is familiar with Trooper Young's statistics from other appeals. See, e.g., Starkey v. State, 272 P.3d 347, 353 (Alaska App. 2012); Hamilton v. State, Mem. Op. & J. No. 5903, 2012 WL 6062097, at *3-*4 (Alaska App. Dec. 5, 2012); McGowen v. State, Mem. Op. & J. No. 5893, 2012 WL 5275022, at *1 (Alaska App. Oct. 24, 2012); State v. Smith, 182 P.3d 651, 654 (Alaska App. 2008). See also United States v. Thoms, 788 F. Supp. 2d 1001, 1005-16 (D. Alaska 2011) vacated on procedural grounds and remanded, 684 F.3d 893 (9th Cir. 2012), cert. denied, 133 S. Ct. 1477, 185 L. Ed. 2d 366 (2013). We note that Trooper Young's search warrant application in Ladan's case was submitted in 2006, prior to most of the litigation involved in the above cases.
The search warrant application was granted. The state troopers executed the search warrant on March 13, 2006. During the search, the troopers learned that Elbrader was currently living in the cabin and Ladan was living in the two-story structure. The troopers searched the two story structure and seized thirty marijuana plants, processed marijuana, growing equipment, scales, paperwork, and drug paraphernalia. The dried weight of the plants plus the dried weight of the processed marijuana totaled 7.08 pounds.
Ladan was subsequently indicted on four counts of fourth-degree misconduct involving a controlled substance. Initially proceeding pro se, Ladan filed multiple motions in his case, including a motion to suppress. Because he was proceeding pro se, Ladan requested that his case follow behind various other marijuana cases where similar suppression issues were being litigated.
In January 2009, almost three years after the initial indictment, Superior Court Judge Beverly Cutler held an evidentiary hearing on Ladan's motion to suppress. The evidentiary hearing lasted four days and involved extensive questioning of Trooper Young by Ladan, the prosecutor, and Judge Cutler. At the conclusion of the evidentiary hearing, Judge Cutler denied Ladan's motions to suppress.
After his pro se motion was denied, Ladan hired attorney Rex Butler. Judge Cutler warned Ladan that while he was free to retain a lawyer, the court would not welcome additional delay as the case was already three years old.
Butler entered his appearance in April and filed a notice of an expert witness and a motion to continue the trial. Judge Cutler granted the motion to continue the trial and set a motions filing deadline for April 30. On May 11, after the motions deadline had expired, Butler filed a new motion to suppress, along with a motion to accept the late filing. Judge Cutler denied the motion to accept late filing, concluding that the motion to suppress was both untimely and repetitive of matters on which she had already ruled.
Butler filed a motion for reconsideration, which Judge Cutler denied. Butler then filed a second motion for reconsideration, which asserted that new evidence would show that the wind direction was the opposite of what Young claimed in his application for a search warrant. Judge Cutler denied this second motion for reconsideration.
Ladan subsequently agreed to a bench trial on stipulated facts. After the State dismissed the first count of the indictment, Judge Cutler found Ladan guilty of the remaining three counts. At a later sentencing hearing, Judge Cutler sentenced Ladan to 5 years' probation and ordered him to pay a $13,000 fine.
This appeal followed.
Did the superior court err in denying Ladan's pro se motion to suppress?
On appeal, Ladan argues that his pro se motion to suppress should have been granted because (1) Trooper Young's statistical research was flawed and contained reckless and/or intentional misrepresentations; (2) the 2006 search warrant application was based on information gained through the 2002 illegal search; and (3) the 2006 search warrant included misleading information about how many residences were on the property.
Did Trooper Young's statistical data contain reckless and/or intentional misrepresentations?
Under State v. Malkin and Lewis v. State, once the defendant has identified a misstatement or omission in a search warrant application, the burden shifts to the State to prove by a preponderance of the evidence that the statements were not made intentionally or with reckless disregard for the truth. Recklessly false statements are excised from the affidavit, and the court then determines if the remaining affidavit would nonetheless establish probable cause. If an officer intentionally made a misstatement in order to deliberately mislead the judge or magistrate, the entire search warrant is invalidated regardless of whether probable cause would remain absent the misstatement.
See State v. Malkin, 722 P.2d 943, 946 (Alaska 1986); Lewis v. State, 862 P.2d 181, 186-87 (Alaska App. 1993).
Malkin, 722 P.2d at 946.
Id. at 946 n.6.
Ladan argues that the statistics contained in Trooper Young's affidavit were flawed and that they were intended to mislead the court regarding a trooper's ability to identify a marijuana grow operation by smell alone. In the trial court proceedings, Ladan challenged the statistics on multiple grounds, including challenges to the way the statistics were compiled and interpreted. The superior court recognized the validity of some of Ladan's attacks, finding that he had "some valid bones to pick" about Young's methodology and interpretation. But the court also found that any mistakes were innocent or at worst negligent, and that none of the flaws undermined Young's main assertion that there was at least some correlation between the strong odor of growing marijuana and the size of the marijuana grow operation that produced that smell.
On appeal, Ladan argues that the trial court's findings are clearly erroneous because "while one mistake may appear innocent or negligent, a multitude of flaws leads to the conclusion that the mistake or omission was reckless or intentional." Ladan also argues that Trooper Young's testimony regarding his ability to smell marijuana from such a long distance was not credible.
But, as the State points out, Trooper Young's sense of smell in this case was corroborated by Officer Swihart, whose credibility was never challenged below. Moreover, while Ladan may have identified some methodological flaws in Trooper Young's statistical analysis, the superior court found that Trooper Young was unaware of those flaws in April 2006 when he filed the affidavit in this case. We will uphold a superior court's findings regarding an officer's credibility and his mental state unless clearly erroneous. We do not find clear error here.
Was the 2006 search warrant application improperly based on knowledge gained in the 2002 search?
Ladan argues that the evidence seized pursuant to the 2006 search warrant should have been suppressed as "fruit" of the 2002 illegal search; he asserts that information obtained from the prior illegal search (the existence of the outbuilding and the estimated size of the two-story structure) was used in the later search warrant application. Ladan also argues that the prior illegal search intensified the troopers' motivation to secure the new warrant.
The exclusionary rule generally prohibits the use of evidence gained from an illegal search. In addition, a prior illegal search will taint a subsequent warrant if illegally obtained evidence intensified the police's motivation to seek the warrant, or significantly focused their investigation. It is the State's burden to prove that the evidence the defendant seeks to suppress was not tainted by a prior illegal search.
Cruse v. State, 584 P.2d 1141, 1145 (Alaska 1978).
Meyers v. Anchorage, 838 P.2d 817, 818-19 (Alaska App. 1992).
Johnston v. State, Mem. Op. J. No. 4561, 2002 WL 563609, at *3 (Alaska App. Apr. 17, 2002).
Here, Trooper Young testified that law enforcement's suspicions regarding this property predated the 2002 search and that the 2002 search did not intensify or focus the 2006 investigation. The superior court credited this testimony and found that the 2006 search warrant application was based on an independent investigation and an independent determination of probable cause.
The court also found that Trooper Young knew that the property contained multiple structures prior to the 2002 search warrant application and that his 2002 search warrant application reflects that fact. The court specifically found that the additional information that Young gained during the 2002 search (namely, the existence of the shop and the estimated size of the two-story structure) was "de minimis." Finally, the court found that Trooper Young was in a Catch-22 situation with regards to his prior knowledge of the property's structures. If he did not include this information in the affidavit, then the property's electrical usage would look even more suspicious because it would appear as though the 252-square-foot-cabin was solely responsible for this high rate of usage.
These findings are not clearly erroneous and are supported by the record. We therefore affirm the superior court's ruling that the evidence seized pursuant to the 2006 search warrant was not tainted by the previous 2002 illegal search.
Did Trooper Young fail to specify that there were two residences on the
property and was that omission material to the existence of probable cause?
Ladan argues that the trial court erred in denying his pro se motion to suppress because Trooper Young did not explain in his affidavit that the two-story structure and the cabin were both used as residences, which Ladan argues could have accounted for the higher-than-average electrical usage.
As noted above, under Malkin, if an affiant makes a material, false statement or omission in support of a search warrant application and the statement was intentional, the entire search warrant is invalidated. If the statement was made with reckless disregard for the truth, the search warrant will only be invalidated if the affidavit would not establish probable cause absent the misstatement or omission. The trial court's finding on whether an officer recklessly or intentionally omitted or misrepresented facts is reviewed for clear error.
722 P.2d at 946 & n.6.
Id. at 946; Lewis 862 P.2d at 186-87.
State v. Anderson, 73 P.3d 1242, 1245 (Alaska App. 2003).
Here, the superior court found that although Trooper Young had failed to specify that the two main structures were used as residences, this omission was, at most, negligent. The court also found that Young's failure to specify that there were two residences did not materially affect the probable cause finding because the affidavit directly implied that there was more than one residence on the property, and the comparisons to the electrical usage of much larger residences with more occupants suggested that all of the structures were being treated as residential in nature for purposes of the electrical comparison.
The superior court's findings are supported by the record and we therefore reject Ladan's argument that the failure to specify that the two main structures were used as residences was misleading in this context.
Did the superior court err in refusing to consider the late-filed motion to suppress filed by Ladan's newly retained counsel?
Ladan argues that the superior court erred in dismissing his second motion to suppress as untimely and contends that the second motion was not repetitive of matters the court had already ruled on because the motion raised new evidence regarding Trooper Young's credibility and his ability to smell marijuana from long distances.
This Court reviews a trial court's refusal to accept an untimely motion under the abuse of discretion standard. It is generally an abuse of discretion to deny a motion as untimely in a criminal case if the motion is made "sufficiently in advance of trial to permit [its] resolution without disrupting the trial or prejudicing the prosecution." We look to the totality of the circumstances to determine if a defendant showed good cause for the court to decide his untimely motion.
Selig v. State, 750 P.2d 834, 837 (Alaska App. 1988).
Id. (quoting Fox v. State, 685 P.2d 1267, 1270-71 (Alaska App. 1984)).
Fox, 685 P.2d at 1270.
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Looking at the totality of the circumstances in this case, we conclude that the trial court did not abuse its discretion by denying the motion to accept the late filing. As the court made clear, it refused to accept the untimely second motion to suppress and the motions for reconsideration not only because they were untimely but also because they were repetitive of issues that Ladan had already been given a full opportunity to litigate and that the court had already ruled on.
At the time the second motion was filed, Ladan's case was already more than three years old. The trial court had warned Ladan when he sought a last-minute continuance of his trial to hire an attorney that while he was free to retain a lawyer, the court would not welcome any additional delay.
The trial date was then moved twice at the defendant's request — first to give Ladan time to obtain counsel, and then to give counsel time to adequately prepare. On appeal, Ladan downplays the extent to which the second motion to suppress and the associated motions for reconsideration, if granted, would have delayed the trial by focusing on only a few of the arguments he raised in these pleadings. But a review of the eighty-plus pages of pleadings filed by counsel make it clear that counsel's intent was to re-open discovery and re-litigate all of the issues that had been litigated in the prior four-day evidentiary hearing.
Under the circumstances, it was not an abuse of discretion for the superior court to dismiss these pleadings as untimely and repetitive of the issues it had already ruled on.
Conclusion
The judgment of the superior court is AFFIRMED.