Opinion
Court of Appeals No. A-9462.
November 14, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-04-230 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Madison L. Legette Jr. contends that a search warrant authorizing the police to search his camper was invalid for several reasons. Because we reject Legette's arguments, we affirm the superior court. Background facts and proceedings
About 2:30 a.m. on October 10, 2003, Trooper Joseph Hazelaar and Sergeant Tim Schoenberg of the Alaska State Troopers went to Legette's camper located in Moose Creek to arrest Legette on an outstanding warrant. The troopers approached Legette's camper carefully, because they had information that Legette might possess a firearm. Trooper Hazelaar knocked on the door of Legette's camper. Legette asked who it was, and Trooper Hazelaar identified himself as "Joe" and asked Legette to come to the door. After Legette opened the door, Trooper Hazelaar smelled an odor of chemicals that he associated with the manufacture of methamphetamine coming from inside the camper while he took Legette into custody.
Trooper Hazelaar applied for a search warrant for Legette's camper based on his observations during the arrest of Legette. In the affidavit in support of the search warrant application, Trooper Hazelaar stated that "when [Legette] opened the door, [Trooper Hazelaar] immediately smelled an overwhelming odor of chemicals that [he] recognized as being consistent with the illicit manufacture of methamphetamine." Trooper Hazelaar also stated that he "could see from the doorway, coffee filters with brown-red residue[,] rock salt[,] and razor blades. These are items associated with methamphetamine laboratories."
In testimony before the issuing magistrate, Trooper Hazelaar stated that he saw "rock salt on the floor of the trailer, as well as spilled all the way up onto the top of where the cooking surface was." The magistrate granted the search warrant. After the court issued the search warrant, Trooper Hazelaar contacted the officers waiting at Legette's camper and told them to search the camper while Hazelaar returned to the camper from the courthouse.
The address on the first search warrant was "the only camper/travel trailer located in the yard at 4217 Rivers Street in Moose Creek, Alaska." When Trooper Hazelaar returned, he concluded that the street address was not correct. He instructed the officers to stop searching, and contacted the prosecutor and magistrate by telephone. After further testimony, the magistrate issued a second search warrant, authorizing the search of Legette's camper at "4713 Rivers Street." The officers resumed their search.
At trial, Legette was convicted of two counts of second-degree and one count of fourth-degree misconduct involving a controlled substance. Discussion
AS 11.71.020(a)(4) and AS 11.71.040(a)(3)(A), respectively.
Legette moved to suppress the evidence the troopers seized when they executed the search warrants. He argued that probable cause to support the search warrant was based on illegally obtained evidence, that the search warrant was defective because the warrant had an incorrect street address for the camper, and that the telephonic correction of the search warrant was inappropriate under AS 12.35.015(a).
At a hearing over a year after Legette's arrest, Trooper Hazelaar testified that he saw rock salt, razor blades, and coffee filters through the open door of Legette's camper. He testified that he could see into the camper after Legette opened the door. Immediately after Legette opened the door, Trooper Hazelaar smelled a "strong and distinct odor of iodine" coming from inside the camper. He testified that sometime shortly after handcuffing Legette, he looked in through the camper door, which was still ajar. When he looked in the camper, he saw coffee filters and other items associated with a meth lab. He testified that the camper was lit from the inside by either a lamp or the glow from a television, and that he may also have used his flashlight to look inside the camper. Although he could not recall exactly when he looked inside the camper, he testified that he was sure that neither he nor Sergeant Schoenberg entered Legette's camper during that initial contact.
Sergeant Schoenberg testified that after Trooper Hazelaar handcuffed Legette, he (Schoenberg) stepped up to the doorway without stepping over the threshhold, and looked inside the camper using a flashlight to make sure there were no threats to the officers' safety. Sergeant Schoenberg testified that he recalled Trooper Hazelaar shining his flashlight into the camper at some point, perhaps after Legette asked him to retrieve his shoes from inside. Sergeant Schoenberg testified that he saw rock salt and coffee filters inside the camper. Sergeant Schoenberg also smelled a "distinctive . . . chemical smell" which indicated the presence of a methamphetamine laboratory. Based on the presence of this odor, and the items which both troopers saw inside the camper, the troopers agreed they should obtain a search warrant.
Trooper Hazelaar could not remember where he had obtained the address used in the warrant, but conceded that it was not accurate. When Trooper Hazelaar returned to the camper after obtaining the original search warrant, he noticed that the street address on the warrant, "4217," was wrong. He halted the search and contacted the prosecutor and magistrate by telephone to correct the address. The magistrate issued a second search warrant, with the house number changed to "4713." Trooper Hazelaar testified that he thought he had simply mixed up the numbers when recording the original address.
University of Alaska Fairbanks Police Investigator Stephen Goetz testified that in the course of his investigation, he looked on a borough map and drove up and down the street in question, and found that both addresses were wrong.
Superior Court Judge Mark I. Wood found that Trooper Hazelaar did not intentionally provide an inaccurate address on the original search warrant application. He found that as soon as Trooper Hazelaar discovered the error, he "did a very reasonable thing" by contacting the prosecutor and the court in an attempt to correct the address that he supplied. Judge Wood concluded that there was no question that the officers conducting the search were at the right location — Legette's camper — where the troopers observed evidence of a possible meth lab only hours before. Thus he found that the error was not fatal to the warrant.
Although a search warrant must describe the place to be searched with particularity, in Johnson v. State, the Alaska Supreme Court held that this requirement is met "if the description is such that the officer [executing] the search warrant can, with reasonable effort, identify the place intended." Accordingly, a defendant who challenges a search warrant for lack of specificity in its description of the premises to be searched must show that there was a reasonable probability that the wrong premises would be searched.
617 P.2d 1117 (Alaska 1980).
Id. at 1125 (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 2d 757 (1925)).
Id.
For example, in Johnson, the search warrant mistakenly described the premises to be searched as a green cabin although the cabin was, in fact, red. Nevertheless, the Supreme Court held that this mistake did not affect the validity of the warrant because "the record show[ed] that there were no green cabins in the area and the officer who was to execute the warrant . . . was personally familiar with the house to be searched[,] since he had kept watch on it in the past."
Id. (The text of the search warrant is quoted in footnote 5 of the Johnson opinion, 617 P.2d at 1121 n. 5.)
Id.
In Legette's case, the record shows that Trooper Hazelaar and other law enforcement officers went to the camper to arrest Legette. After the arrest, Hazelaar went to apply for the search warrant while other officers remained at the premises, waiting for Trooper Hazelaar's return. As Judge Wood found, "[t]here was no question whatsoever that [the officers] were . . . at the right place" when they executed the search warrant.
Given these circumstances, even though Trooper Hazelaar supplied the wrong street address, there was no reasonable possibility that the officers would search the wrong premises. Thus, under the rule explained in Johnson, the search warrant remained valid despite the error in the street address.
See also United States v. Gamboa, 439 F.3d 796, 806 (8th Cir. 2006) (when assessing whether a search warrant failed the particularity requirement because the warrant did not include the precise address to be searched, a court may consider the police officer's personal knowledge of the place to be searched, gained through surveillance before applying for the warrant, on the issue of whether there was any chance that the police would search the wrong location); United States v. Vega-Figueroa, 234 F.3d 744, 756 (1st Cir. 2000) (holding that a search warrant met the particularity requirement in spite of an incorrect address when the officer executing the warrant was involved in the surveillance of the place to be searched and there was "no risk that [the officers] would be confused and stumble into the wrong house" (quoting United States v. Bonner, 808 F.2d 864, 866 (1st Cir. 1986)); United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998) (upholding a search warrant with an inaccurate address where the officer who applied for the warrant had come from the place to be searched and later directed the execution of the warrant).
Legette also argues that Trooper Hazelaar's attempt to correct the address in the warrant telephonically was unauthorized because the trooper did not satisfy the requirements of AS 12.35.015(a). This issue is moot because even though the street number on the warrant was inaccurate, there was no question that Trooper Hazelaar sought a warrant to search Legette's camper and Trooper Hazelaar was certain of the camper's location, and we ruled above that the warrant was valid. Furthermore, evidence obtained when a warrant was sought with telephonic testimony is not subject to a motion to suppress based on non-compliance with AS 12.35.015(a) unless there is a showing of bad faith. The superior court did not find bad faith by the troopers nor did Legette request such a finding.
AS 12.35.015(f).
Legette argues that the search warrant is invalid because Trooper Hazelaar must have illegally entered Legette's residence, then relied on information he obtained in that illegal entry when applying for the search warrant.
Generally, if illegally obtained evidence is presented in support of a search warrant, the search warrant remains valid unless (after excising the illegally obtained evidence) the remaining evidence is not sufficient to uphold the search warrant.
Schmid v. State, 615 P.2d 565, 575 (Alaska 1980).
Legette argues that Trooper Hazelaar could not have seen the razor blades, discolored coffee filters, or large quantities of rock salt from "a momentary glance" into the camper from the doorway. Legette contends that the trooper could only have obtained knowledge of this evidence by entering the camper or by hearing about this evidence from Sergeant Schoenberg. He relies on the limited visibility into the camper from the door and the very short time that Trooper Hazelaar was at the door when Legette was arrested. However, Trooper Hazelaar did not testify that he stepped into the camper and there is no direct evidence that he did so. Legette argues an inference from the evidence that is favorable to his argument.
But Judge Wood did not draw this inference. He did not directly address whether Trooper Hazelaar entered Legette's camper during the arrest. Instead, Judge Wood analyzed the testimony that was presented and found that Trooper Hazelaar's testimony was believable. He found that although he was not certain precisely when Trooper Hazelaar had looked into the camper, some rock salt on the floor and the stove, and the razor blade on the stove, were visible from the door without entering Legette's camper. He noted that in the photographs taken of the scene, the coffee filters did not appear discolored, but that they could have appeared so at the time Trooper Hazelaar looked inside the camper due to low light conditions.
Legette has not shown that Judge Wood's findings are clearly erroneous. Thus, Judge Wood properly rejected Legette's claim that the troopers supported the warrant with illegally obtained evidence.
We next turn to Legette's claim that Trooper Hazelaar obtained the search warrant by relying on material misstatements of fact. Legette did not raise the issue of misstatements in his original motion to suppress. However, when the motion to suppress was argued at the evidentiary hearing, Legette contended that the testimony revealed a series of misrepresentations by Trooper Hazelaar. Legette was not particularly clear in identifying the precise misrepresentations from the original search warrant affidavit. But Legette's main argument seemed to be that Trooper Hazelaar could not have seen the rock salt, razor blades, and coffee filters from the doorway, so the following statement in the affidavit was a misrepresentation: "In addition, based on the size of the trailer, your affiant could see from the doorway, coffee filters with brown-red residue[,] rock salt[,] and razor blades."
Legette argued that Trooper Hazelaar either entered Legette's camper to view these items, thus rendering his statement that he saw the items "from the doorway" a misrepresentation, or he relied on observations related to him by Sergeant Schoenberg who looked in the camper for officer safety after Legette was arrested. Legette contends that Hazelaar did not actually view the items himself and his statement that the affidavit was based on his personal knowledge was a misrepresentation.
Legette also argued that because of low light in the camper, it would have been impossible for Trooper Hazelaar to see any red-brown residue on the coffee filters that were visible through the open door. Legette argued that it was impossible for Trooper Hazelaar to see "razor blades" (in the plural) on the stove, because photographs later revealed only one item on the stove, a paint scraper, which Legette asserted was not visible from the doorway. He also argued that the majority of the rock salt on the stove top was not visible from the doorway, so his statement to the magistrate that there was rock salt "spilled all the way up onto the top of where the cooking surface was" was either incorrect, or based on information Trooper Hazelaar obtained by entering the camper or talking to Trooper Schoenberg.
Judge Wood found that Trooper Hazelaar's observations could not have been made at the time of his initial contact with Legette when Legette exited the camper and Trooper Hazelaar handcuffed him. Judge Wood stated that he was unsure exactly when Trooper Hazelaar had had the opportunity to look in through the camper door. But he found that someone standing in the door would have been able to see the razor blade and some rock salt on the stove top. He noted that since the affidavit identified "razor blades" (in the plural), but there was only one such item on the stove, this statement was an "exaggeration." Judge Wood also noted that although there did not seem to be discoloration of the coffee filters, the filters could have appeared discolored in low light.
In State v. Malkin, the Alaska Supreme Court held that a search warrant may not properly be based on intentional or reckless misstatements of fact. In Lewis v. State, we described the Malkin analysis as follows:
722 P.2d 943 (Alaska 1986).
Id. at 946-47.
862 P.2d 181 (Alaska App. 1993).
[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]."
Id. at 186 (quoting Malkin, 722 P.2d at 946 n. 6) (citations omitted) (second set of brackets in Lewis).
Judge Wood found no intentional misrepresentation by Trooper Hazelaar. He found that any inconsistencies in the troopers' testimony or uncertainty in their recollections was due to the 15-month gap between Legette's arrest and the evidentiary hearing. The record supports this finding.
Therefore, in order to defeat the warrant, Legette had to show that Trooper Hazelaar was reckless as to the truth or falsity of a material fact. But Judge Wood concluded that there were no material misrepresentations of fact.
We agree with Judge Wood. The significant fact known to Trooper Hazelaar was the unique chemical odor that flowed out of Legette's camper when Legette opened the door. Hazelaar recognized this odor as an odor that is characteristically produced by the chemical reactions in the production of methamphetamine. Trooper Hazelaar also saw rock salt in the camper, a substance regularly used in the production of methamphetamine. These are the significant facts that support the search warrant. Whether there was one or more razors was not crucial to the issuance of the warrant. And Judge Wood found that the explanation for the discrepancy about the coffee filters was due to the low ambient lighting, not because Trooper Hazelaar misrepresented facts. We affirm the superior court's decision denying Legette's motion to suppress.
Conclusion
The judgment of the superior court is AFFIRMED.