Opinion
Court of Appeals No. A-8975.
January 18, 2006.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar and Winston S. Burbank, Judges. Trial Court No. 4FA-04-1043 CR.
Bethany Spalding, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Zachary W. Seay was pulled over by a University of Alaska at Fairbanks police officer because the vehicle he was driving had a non-functioning brake light. When the officer contacted Seay, he smelled marijuana, and he asked Seay if there were any drugs in the car. During the discussion that followed, Seay made several self-incriminatory statements. Ultimately, he gave the officer three baggies of marijuana and consented to a search of his car.
Seay argues that the district court should have suppressed all his statements and the three baggies of marijuana. He argues that his statements and his consent to the search were involuntary because they were induced by the officer's assurances that he would not be arrested and that prosecution for marijuana possession was "no big deal."
Seay also claims that the court erred by allowing the officer to testify at trial about his specialized training in drug crimes, because the officer was never qualified as an expert and gave only his lay opinion that the substance Seay gave him was marijuana.
For the reasons below, we reject Seay's claims and affirm his conviction.
Facts and proceedings
On the afternoon of March 9, 2004, a University of Alaska at Fairbanks police officer stopped Seay because the vehicle he was driving had a broken brake light. When the officer, Steven F. Goetz, contacted Seay, he observed smoke between Seay's legs. Seay explained that he had just extinguished a cigarette. Officer Goetz told Seay he was going to issue him a warning for the broken brake light. Later in the contact, Officer Goetz told Seay that he smelled marijuana, and he asked Seay if he had any marijuana in the car. Seay denied that he had any marijuana. Officer Goetz asked Seay if he could search the vehicle, and Seay said he could not. Officer Goetz also asked Seay if it was "just" marijuana in the vehicle, or something "more serious." Seay responded: "Nothing serious."
Officer Goetz told Seay he was going to impound the vehicle and apply for a search warrant, and he asked Seay to step out of the car. Seay asked if he could call his father. Goetz told Seay he could not call his father at that time. After searching Seay for weapons, Goetz told Seay to relax and told him he had two options. He told Seay he could consent to a search of his car. If there was marijuana in the car, he would not arrest Seay but would issue a summons. Alternatively, Goetz said he would impound Seay's car and apply for a search warrant. In either case, Goetz said, Seay would not be arrested and would be free to leave. Goetz added that "if it's just marijuana, it's no big deal . . . a class B misdemeanor, right above a traffic ticket." At Seay's request, Goetz explained the process of applying for a search warrant. Goetz acknowledged that he might not be able to obtain a warrant to search the car.
Following this discussion, Seay indicated that there was marijuana in the car, and he retrieved three baggies of marijuana and handed them to Goetz. Goetz asked if he could search the car to make sure there was nothing else in there, and Seay said "it's your car." While searching the vehicle, Goetz asked Seay if he had any pipes. Seay told Goetz there was a pipe made out of a Sobe can in the glove box. After collecting this physical evidence, Goetz issued Seay two summonses and allowed him to leave the scene in his vehicle.
Seay was charged with fifth-degree misconduct involving a controlled substance, a class A misdemeanor, for possession of the Sobe pipe with residue. He was charged with sixth-degree misconduct involving a controlled substance, a class B misdemeanor, for possession of marijuana.
AS 11.71.050(a).
AS 11.71.060(a).
Before trial, Seay filed a motion to suppress the physical evidence that was seized as a result of the traffic stop (the marijuana and the Sobe pipe), as well as the statements he made to Officer Goetz. After an evidentiary hearing, District Court Judge Jane F. Kauvar granted Seay's motion in part. Judge Kauvar suppressed the Sobe can with the residue on it but not the marijuana because the "defendant voluntarily turned over the marijuana." She also suppressed the statements Seay made after he was ordered out of the car and asked to stand with his hands behind his back.
Following these rulings, the State dismissed the charge of fifth-degree misconduct involving a controlled substance (possession of the Sobe pipe). A jury convicted Seay of sixth-degree misconduct involving a controlled substance. Seay appeals the partial denial of his motion to suppress.
Seay's claim that the marijuana should have been suppressed
Seay argues that Judge Kauvar should have suppressed the baggies of marijuana and all the self-incriminatory statements he made to Officer Goetz because they were induced by promises of leniency — specifically, by Goetz's promises not to arrest him, and Goetz's characterization of marijuana possession as an offense that was "right above a traffic ticket." He also argues that his consent to the search was coerced by Officer Goetz's show of authority in ordering him out of the car, searching him, denying his request to call his father, and threatening to impound his vehicle.
When a defendant consents to a search, the State still must establish that the consent was voluntary; that is, that it was "unequivocal, specific and intelligently given, [and] uncontaminated by any duress or coercion." This question is assessed based on the totality of the circumstances. In determining if a defendant's consent was voluntary, we defer to the district court's findings of fact unless those findings are clearly erroneous. In this case, Judge Kauvar made no findings of fact on the record; however, the pertinent facts are undisputed. "As to matters involving the accused's state of mind and the issue of voluntariness, this court will examine the entire record and make an independent determination."
Schaffer v. State, 988 P.2d 610, 615 (Alaska App. 1999) (quoting State v. Salit, 613 P.2d 245, 254 (Alaska 1980)).
Frink v. State, 597 P.2d 154, 169 n. 30 (Alaska 1979).
Miller v. State, 18 P.3d 696, 699 (Alaska App. 2001); Chilton v. State, 611 P.2d 53, 55 (Alaska 1980).
Beagel v. State, 813 P.2d 699, 704 (Alaska App. 1991).
Among the circumstances we consider in determining if a defendant's will was sufficiently overborne to render his consent involuntary are "the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement."
Miller, 18 P.3d at 699 (quoting Sprague v. State, 590 P.2d 410, 414 (Alaska 1979), quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir. 1966)); see also Frink, 597 P.2d at 167-68 (applying the test for voluntariness of confessions to evaluate the voluntariness of consent to a search).
In support of his claim that his consent was involuntary, Seay relies primarily on our decision in Miller v. State. In Miller, the police were investigating a fire of suspicious origins. Miller initially denied any involvement in the fire, but after the officers assured him that if he started the fire by accident it was "not that big a thing" and would be "an over and done deal," Miller stated that he had set fire to a block of insulation but thought he had fully extinguished the fire before it spread. At trial, the jurors were instructed in a manner that allowed them to convict Miller of arson based on this version of events. Because the police essentially told Miller that he would not be prosecuted for accidentally starting the fire, we concluded that the police had offered an improper inducement for Miller's statements and that the statements were involuntary.
Id. at 697.
Id. at 697-98.
Id. at 701.
Seay also relies on Smith v. State. In Smith, the defendant was convicted of reckless driving and driving with a revoked license. Before trial, Smith moved to suppress his admission that he had been driving. Smith claimed that his confession was involuntary because it was induced by the assurance of a police officer at the accident scene that he was "not interested in prosecuting anyone for drunk driving." We concluded that Smith's confession was involuntary because it followed right on the heels of the officer's assurance and was plainly induced by his promise of leniency.
787 P.2d 1038 (Alaska App. 1990).
Id. at 1039.
Id. at 1039.
Id. at 1039.
The circumstances in this case are different. Officer Goetz did not promise Seay that he would not be prosecuted if he admitted to possessing marijuana. In fact, he made clear that Seay would be prosecuted for a class B misdemeanor. Moreover, Goetz told Seay he would not be arrested and would be free to leave whether he consented to the search or not; Goetz thus offered no benefit to Seay in exchange for his cooperation other than avoiding impoundment of his car. And Seay does not dispute that Goetz had probable cause to impound the car while applying for a search warrant.
Seay's real complaint is that Officer Goetz minimized the seriousness of a class B misdemeanor prosecution by saying it was "no big deal" and "right above a traffic ticket." We do not condone Goetz's statements or agree with his characterization of the seriousness of Seay's offense; a person can be sentenced up to 90 days' imprisonment on a class B misdemeanor. However, we agree with Judge Kauvar that, under the circumstances, the officer's statements did not render Seay's decision to turn over the marijuana involuntary. Seay has not argued that he was unable to understand the significance of a class B misdemeanor prosecution because of his age, intelligence, level of education, mental state, or inexperience, and we see nothing in the record that would support such a conclusion. Moreover, the other circumstances of the traffic stop do not suggest that Seay was coerced into retrieving the marijuana from the car. The stop was brief. After Seay refused to consent to a search of the car, Officer Goetz asked him to step out of the car and patted him down for weapons. He then told Seay to relax. In a calm voice, he explained Seay's two options: he could consent to a search of the vehicle, or Goetz could impound the car and apply for a search warrant. Goetz assured Seay several times that, whichever option he chose, he would not be arrested and would be free to leave. Seay asked Goetz to describe the warrant application process. Goetz did so and acknowledged that he might not get a warrant. Only then did Seay produce the marijuana and consent to a search of the car. At the end of this contact, Seay was allowed to drive away.
AS 12.55.135(b).
Considered as a whole, these circumstances support the district court's conclusion that Seay did not produce the marijuana because his will was overborne. There is nothing inherently coercive in informing a suspect of the options available to him — however unpleasant those options might be. As we have previously observed: "Bowing to events about which one may be unhappy does not render a consent involuntary." Although a class B misdemeanor prosecution might be more serious than Goetz described — depending on the vantage point of the individual facing prosecution — Seay has not pointed to any circumstance suggesting he was unequipped to evaluate the seriousness of his own situation, or that he was in fact treated more harshly than Goetz predicted.
Punguk v. State, 784 P.2d 246, 248 (Alaska App. 1989).
Id. at 248 (quoting State v. Thorkelson, 611 P.2d 1278, 1280 (Wash.App. 1980)).
Seay's claim that his statements should have been suppressed
As noted earlier, Judge Kauvar suppressed all the statements Seay made to Officer Goetz after he was asked to step out of the car and told to put his hands behind his back. In his brief to this court, Seay argues that all of his prior statements to Officer Goetz should have been suppressed, but he does not identify the statements he believes were wrongly admitted.
Our review of the record suggests that Seay might be objecting to admission of three statements: his initial denial that there were drugs in the car; his statement, after Officer Goetz asked him if there was something more serious than marijuana in the car, that there was "nothing serious"; and Officer Goetz's testimony at trial that Seay "agreed" to retrieve the marijuana. During trial, Seay objected to this last "statement" as a violation of Judge Kauvar's order and requested a mistrial. District Court Judge Winston S. Burbank denied the mistrial motion.
Seay made these first two statements — his denial that there were drugs in the car, and his statement that there was "nothing serious" in the car — before he asked to call his father, before he was asked to step out of the car, before he was searched for weapons, and before Officer Goetz said anything about impounding his vehicle. Seay has not argued, much less shown, that his will was overborne, or that his Miranda rights were violated, at this early point in the contact. Consequently, to the extent that Seay is challenging the admission of his statements on these grounds, his claims fail.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).
If Seay is claiming that these two statements were the product of an illegal seizure, that claim is meritless. Seay does not dispute that Officer Goetz had probable cause to stop him for a broken brake light. Officer Goetz testified that he smelled marijuana when he contacted Seay. In the context of a legal traffic stop, an odor of marijuana detected by an officer familiar with that smell provides more than enough suspicion that criminal activity is afoot for the officer to investigate the possibility that there are drugs in the car.
See Russell v. Anchorage, 706 P.2d 687, 689 (Alaska App. 1985); see also Lustig v. State, 36 P.3d 731, 732 (Alaska App. 2001); Landers v. State, 809 P.2d 424, 427 (Alaska App. 1991); McClelland v. State, 928 P.2d 1224, 1225-27 (Alaska App. 1996).
The other "statement" Seay is arguably objecting to — Officer Goetz's testimony that Seay agreed to retrieve the marijuana from the vehicle — occurred after Seay was ordered out of the car. Thus, if this was a statement, it was subject to Judge Kauvar's protective order.
At trial, after Seay asked for a mistrial, the State argued that this testimony did not reference a statement but rather Seay's conduct in voluntarily retrieving the marijuana. Judge Burbank agreed with the State and denied the mistrial motion on that ground.
On appeal, Seay does not address Judge Burbank's ruling that Officer Goetz's testimony referenced conduct rather than a statement. Therefore, to the extent that Seay is challenging this "statement," his claim is inadequately briefed.
Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978).
Did the court err in allowing Officer Goetz to testify about his training and experience in drug recognition and enforcement?
Seay next argues that the court erred by permitting Officer Goetz to testify that he had specialized training and experience in drug identification and enforcement, because that testimony made Goetz an expert in the eyes of the jury and the State gave no notice under Criminal Rule 16 that it would be calling an expert.
Alaska R. Crim. P. 16(b)(1)(B).
Before trial, the State indicated that it intended to have Officer Goetz testify about the result of his field test of the marijuana he obtained from Seay. Seay objected on two grounds: he had received no notice that the State would call Officer Goetz as an expert witness, and the State had not established the scientific reliability of that field test under Daubert and Coon. Judge Burbank excluded the field test result but ruled that Goetz could testify as a lay witness:
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (construing the federal evidence rules governing expert testimony), and State v. Coon, 974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper interpretation of Alaska's rules governing expert testimony).
He can certainly testify to . . . what he saw, what he smelled, what he's familiar with based upon his experiences, but as far as the field test in regard to whether [the marijuana] tested positively I feel that it should not be admitted until it passes the scrutiny of the Coon-Daubert cases.
Seay's attorney responded: "I think that's the correct ruling and that's the ruling I've experienced in every other courtroom in this building." Seay thus did not argue that identifying marijuana was an improper subject for lay testimony.
Later, when Officer Goetz testified, Seay objected to the State questioning him about his training in drug identification and enforcement. In an anteroom conference, Seay argued that this testimony was irrelevant because Goetz was not being offered as an expert. Judge Burbank said he would instruct the jury that Officer Goetz was not an expert, and he overruled the objection.
Goetz then testified that he had received basic training in drug identification and enforcement in North Carolina; that he had attended a two-week course on Alaska's drug laws in Sitka; that he had received training on clandestine methamphetamine labs; and that he had attended several relevant two- or three-day courses in Fairbanks. Goetz also said that he had been a police officer for more than eight years, that he had been on call with the drug unit for four years, and that he had been involved in hundreds of cases involving marijuana. Following this testimony, Goetz identified the evidence seized from Seay as marijuana, stating that it had a "distinctive odor" and the "same appearance of marijuana that I've seen hundreds of times."
Evidence Rule 701 provides:
If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
Officer Goetz's testimony identifying the marijuana met this standard. He did not testify that he recognized the substance obtained from Seay as marijuana based on scientific or botanical training that the jurors could not independently evaluate; rather he testified that he recognized the substance because it had the same appearance and odor of marijuana that he had seen hundreds of times before. An individual who has the specialized knowledge to potentially qualify as an expert witness, but who instead testifies as a lay witness, can rely on experience to inform his or her opinion as a lay witness — as long as his ultimate opinion is a lay opinion "rationally based on the perception of the witness" and not expert opinion that relies on "scientific, technical, or other specialized knowledge."
Reutter v. State, 886 P.2d 1298, 1309 (Alaska App. 1994).
A.R.E. 701.
A.R.E. 702.
In any event, Seay had notice before trial that Officer Goetz would testify that the substance he obtained was marijuana. Seay must have anticipated that Officer Goetz would testify about the experiences that gave credence to that identification — indeed, Judge Burbank specifically ruled pre-trial that Goetz could testify based on his experiences. Yet Seay did not ask for a protective order or request a continuance so that he could test the marijuana or hire an expert witness. Nor has he argued that his defense strategy made a continuance an inadequate remedy. Therefore, to the extent that Seay is claiming a discovery violation, his claim is waived.
See Collins v. State, 977 P.2d 741, 745-46 (Alaska App. 1999).
Seay's real claim is that Officer Goetz's testimony about his training and experience should have been excluded because its probative value in establishing a rational basis for Officer Goetz's identification of the marijuana was outweighed by its potential to lead the jury to place undue weight on his testimony. But Judge Burbank specifically instructed the jury that Officer Goetz was not testifying as an expert. Seay does not mention this cautionary instruction in his appellate brief, much less show that it was inadequate to cure any potential prejudice.
See Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981) (cautionary instructions are presumed to be effective to withdraw evidence from the jury).
For the foregoing reasons, we reject Seay's claim that the court erred in permitting Officer Goetz to testify about his training and experience.
Conclusion
The decisions of the district court are AFFIRMED.