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Klemz v. State (11/30/2007) ap-2126

Klemz v. State (11/30/2007) ap-2126

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


THOMAS E. KLEMZ, )
) Court of Appeals No. A-9553
Appellant, ) Trial Court No. 3KN-05-776 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2126 November 30, 2007
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Kenai, Charles  T.  Huguelet,
          Judge.

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Nancy  R.  Simel, 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.

          MANNHEIMER, Judge.

          Thomas  E.  Klemz,  who  was on  felony  probation  for
driving under the influence, arrived for a meeting with his Kenai
probation officer, Ruben Foster.  While Klemz was sitting in  the
lobby  of the probation office, another probation officer (Steven
Meyer)  walked  by  and noticed that Klemz smelled  of  alcoholic
beverages.  One of Klemzs conditions of probation prohibited  him
from   drinking  alcoholic  beverages,  so  Meyer  reported   his
discovery to Foster, and Klemz was brought to Fosters office.
          At  Fosters request, Klemz submitted to a breath  test,
and the result of this test showed that Klemz had a blood alcohol
level of .221 percent.  (The legal limit for driving in Alaska is
.08  percent.)1   Foster then arrested Klemz  for  violating  the
conditions  of  his probation.  Foster searched  Klemz  and  then
handcuffed  him  in  preparation  for  transporting  him  to  the
Wildwood Correctional Center  but Foster did not advise Klemz  of
his Miranda rights.
          As  Foster  and  Meyer escorted Klemz  down  the  hall,
Foster  asked  Klemz how he had gotten to the  probation  office.
Klemz  responded  that he had driven there in his  truck.   Meyer
then  asked Klemz if he meant that he had driven himself, or that
somebody else had driven him.  Klemz answered that he had  driven
himself,  and  that  his truck was parked right  outside  in  the
parking lot.
          Because Klemzs statement was tantamount to a confession
that  he  had  committed a new felony (felony driving  under  the
influence), Foster took Klemz back to his office and  called  the
Kenai police.
          Kenai  Police Officer Casey Hershberger arrived at  the
probation office between five and fifteen minutes later.   Foster
informed Hershberger that Klemz had a blood alcohol level of .221
percent,  and  that  Klemz had driven to his appointment  at  the
probation  office.  Hershberger escorted Klemz back  outside  and
told him, You obviously drove over here, and youve obviously  ...
[,  so] I gotta ask you a couple of questions.  The officer  then
read the Miranda warnings to Klemz in a rapid monotone  and Klemz
waived his rights.
          Klemz  asked Hershberger if he could put his sunglasses
in  his truck. Hershberger told Klemz that he could, and then the
officer  said  to  Klemz:   Obviously,  youve  been  driving  the
vehicle,  and  obviously  youve had  a  little  bit  of  alcohol.
Hershberger  then  asked Klemz how long ago  he  had  driven  his
truck,  and whether he had driven alone.  In responding to  these
questions,  Klemz  again admitted that he had driven  his  truck.
After  administering field sobriety tests to  Klemz,  Hershberger
arrested him for felony driving under the influence.
          Klemzs  self-incriminating  statements  to  Foster  and
Hershberger were the States only direct evidence that Klemz drove
to  his appointment at the probation office.  In fact, Klemz  and
the  State agreed to litigate the new DUI charge at a bench trial
on  stipulated  facts   and Klemzs statements  to  the  probation
officer and the police officer were the only evidence offered  by
the State on the issue of whether Klemz drove the motor vehicle.
          Before  that trial, Klemzs attorney asked the  superior
court  to suppress these statements.  The defense attorney argued
that   Klemzs  initial  statement  to  Foster  and  Klemzs  later
statement  to the police officer were both the fruit  of  Fosters
interrogation   a  custodial  interrogation  that  had  not  been
preceded by Miranda warnings.
          At  the  ensuing hearing on Klemzs suppression  motion,
Foster testified that his main purpose in asking Klemz how he had
come  to  the  probation office was to find out if  Klemz  had  a
          friend or family member waiting for him  someone who should now
be  notified that Klemz had been arrested and was being taken  to
jail.  The other probation officer who was present when Klemz was
arrested,  Steven  Meyer,  testified that  Fosters  question  was
totally  routine  and was asked as a courtesy.  Foster  conceded,
however,  that  he  had  an  additional  reason  for  asking  his
question:   a desire to find out if Klemz had violated any  other
conditions  of  probation   in  particular,  the  condition  that
prohibited Klemz from committing any new crimes.
          Superior  Court Judge Charles T. Huguelet  ruled  that,
even  though  Klemz  was in custody when Foster  questioned  him,
Foster did not need to administer Miranda warnings to Klemz,  nor
did  Foster need to obtain Klemzs waiver of rights, before asking
Klemz  whether  he  had driven himself to the  probation  office.
Judge  Huguelet concluded that Miranda was inapplicable  in  this
situation because Fosters question (i.e., his inquiry as  to  how
Klemz  had gotten to the probation office) was a routine courtesy
a question aimed at discovering whether a family member or friend
might  be waiting in the lobby or outside the building for  Klemz
to be done with his appointment (i.e., a person who should now be
alerted that Klemz was under arrest and was being taken to jail).
          Judge  Huguelet  acknowledged that,  according  to  the
testimony  presented  at the evidentiary hearing,  Foster  had  a
second purpose in asking his question  the desire to know if  Mr.
Klemz  had violated the law and [the] conditions of his probation
by  driving.  However, the judge concluded that [t]he  fact  that
Mr. Foster may have had a secondary reason ... for asking how Mr.
Klemz  got  to  the  probation office does not convert  [Fosters]
question into an interrogation for Miranda purposes.
          We  disagree  with the superior courts ruling  on  this
issue.   After  Foster took Klemz into custody for violating  his
probation  (by drinking alcoholic beverages), Foster  then  asked
Klemz  a  question which, given the circumstances, was reasonably
likely  to  elicit  a  self-incriminating statement  from  Klemz.
Fosters  question therefore constituted interrogation for Miranda
purposes, as defined in Rhode Island v. Innis, 446 U.S. 291, 300-
01; 100 S. Ct. 1682, 1689-1690; 64 L. Ed. 2d 297 (1980).
          Indeed, Foster admitted (during his testimony) that one
of  his conscious purposes for asking this question was to elicit
information as to whether Klemz had committed a new  crime.   The
fact  that  Foster  may also have had a plausible  administrative
purpose  for  asking  his question does not  negate  the  Miranda
violation  if  Fosters  question  constituted  interrogation   as
defined in Innis, and if this interrogation occurred before Klemz
was apprised of, and waived, his rights under Miranda.
          In other words, a question is not exempt from the Innis
definition  of  interrogation merely because the law  enforcement
officer  who  asked  the question may have had an  administrative
purpose for doing so.  Even a purely administrative question  may
constitute custodial interrogation if, under the circumstances, a
reasonable  person  would know that the question  was  likely  to
elicit  an  incriminating response.  See State v. Rossignol,  627
A.2d  524,  526  (Me.  1993) (collecting federal  cases  on  this
point).
          In  Rossignol,  a police officer asked a drunk  driving
suspect  about her possession or ownership of a vehicle found  in
the  middle of the road.  The Maine Supreme Court held  that  the
officers  inquiry did not fall within the administrative question
exception   to   Miranda   because  the  officers  question   was
reasonably  likely to elicit a response [that would be]  material
to  the  proof  of [the suspects] operation of that  vehicle,  an
element of the offense of which [she] was a suspect.  Id. at 526.
          As  Rossignol  recognizes,  the  Innis  test  for  what
constitutes interrogation is an objective test:  it includes  not
only questions that the officer subjectively knew were likely  to
elicit  an  incriminating response, but also questions  that  the
officer  should have known were reasonably likely  to  elicit  an
incriminating  response.  Innis, 446 U.S. at 302,  100  S.Ct.  at
1690 (emphasis in the original).
          As  the  Fifth Circuit emphasized in United  States  v.
Webb, 755 F.2d 382 (5th Cir. 1985), the subjective intent of  the
law  enforcement officer is relevant only to the extent  that  it
bears on whether the [officer] should have known that their words
or  actions  were  reasonably likely to  evoke  an  incriminating
response.  Id. at 388.
          In  Webb,  a  jail  classification  officer  asked  the
defendant,  [W]hat kind of shit did you get yourself into?2   The
defendant  responded, I murdered my son and  buried  him  in  the
desert.3   The  classification officer later testified  that  the
purpose  of  this question was administrative  in particular,  to
determine  where in the jail population the defendant  should  be
placed.4   Based on this testimony, the government  claimed  that
the  jail  officers question was an administrative question  that
was  normally  attendant to custody, and that  the  question  was
therefore  exempt  from the Innis definition  of  interrogation.5
But  the Fifth Circuit rejected this argument.  The court  noted,
among  other things, that the jail classification officer already
knew  that the defendant had been charged with murder,  and  that
another jail classification officer had testified that it was not
normal  procedure to ask a defendant to comment upon  or  explain
the charge against him.6
          Other  courts have likewise emphasized that  the  Innis
test  focuses  on  the reasonable likelihood of an  incriminating
response,  rather  than  the  officers  potential  administrative
interest  in asking the question.  For instance, a Texas  appeals
court  held  that  a  suspect  had been  subjected  to  custodial
interrogation at the jail when a trooper asked him where  he  had
been  going  when he was pulled over, when and what he  had  last
eaten,   and  whether  he  had  consumed  an  alcoholic  beverage
because,  under Innis, these questions were reasonably likely  to
elicit  an  incriminating response.7  And an Illinois court  held
that  a  drunk  driving suspect was interrogated in violation  of
Miranda  when  the  police asked him if  the  motorcycle  he  was
driving  belonged to him, whether it was registered in his  name,
and  whether it was insured and had valid license plates  because
these  questions  were likely to evoke an incriminating  response
that  could  result  in more charges if the motorcycle  was,  for
instance, stolen or not registered.8
          Returning  to the facts of Klemzs case, Judge  Huguelet
found  that Probation Officer Fosters primary purpose  in  asking
          Klemz how he had come to the probation office was to find out, as
a routine courtesy, whether there was anyone waiting for Klemz in
the lobby or in the parking lot.
          This  finding  is  indeed supported  by  the  testimony
presented at the suppression hearing.  But this finding does  not
support  the  judges  legal conclusion  the conclusion  that  the
officers  question  was not interrogation  for  purposes  of  the
Miranda  rule.  The pertinent question, under Innis,  is  whether
Fosters question was reasonably likely to elicit an incriminating
response under the circumstances.
          Here,  Klemz was on probation for felony driving  while
intoxicated.   He  arrived at a scheduled  probation  appointment
smelling of alcoholic beverages.  Klemz took a breath test at the
request of his probation officer, and the test showed that he had
a  blood  alcohol  level of .221 percent.  Following  this  test,
Foster  arrested Klemz for violating his probation (the condition
that  barred  him  from consuming alcoholic  beverages).   Foster
handcuffed Klemz and started to transport him to jail.   As  they
were  walking down the hall of the probation office, Foster asked
Klemz  how he had gotten to the probation office.  Klemz answered
that  he had driven there in his truck.  Fosters fellow probation
officer, Meyer, then asked Klemz to clarify whether he meant that
he had driven the truck himself, and Klemz answered that this was
so.
          Given these circumstances, Fosters initial question was
reasonably likely to elicit an incriminating response from  Klemz
and  Meyers follow-up question was almost certain to do  so.   It
makes  no  difference, under Innis, that Foster may  have  had  a
plausible administrative reason for asking his question,  and  it
further  makes no difference that Foster and Meyer may have  been
subjectively  surprised that Klemz would admit committing  a  new
felony.
          In  other words, the superior court committed error  in
ruling  Klemz  was  not subjected to custodial interrogation  for
purposes of Miranda.  Klemz was in custody, he was not warned  of
his  rights,  and he was questioned in a way that was  reasonably
likely  to  elicit an incriminating response.  Klemz is therefore
entitled to suppression of the statements he made in response  to
the questions posed by Foster and Meyer.
          This  conclusion  that Foster and Meyer violated Klemzs
rights when they asked Klemz how he had gotten to his appointment
at  the  probation office  requires us to resolve an  issue  that
Judge Huguelet never addressed:  whether this violation of Klemzs
Miranda   rights  requires  suppression,  not  only   of   Klemzs
confession  to  Foster  and  Meyer,  but  also  of  Klemzs  later
reiteration of that confession to Officer Hershberger.
          As  explained  above, Hershberger administered  Miranda
warnings  to  Klemz, and obtained Klemzs waiver  of  his  rights,
before asking Klemz to confirm that he had driven his vehicle  to
the probation office.  Thus, the legal question to be resolved is
whether  the  police  officers administration  of  these  Miranda
warnings to Klemz was sufficient to insulate Klemzs ensuing self-
incriminating  statements from the taint of the  earlier  Miranda
violation.
          Most  often, the resolution of this kind of issue would
require findings of historical fact, and we would have to  remand
the  case  to the lower court with directions to make the  needed
findings  of  fact.  In the present case, however, all  pertinent
aspects  of Klemzs interaction with the police officer were  tape
recorded   and, with the exception of the first two  minutes  and
ten  seconds of that interaction, videotaped.  Moreover, in their
briefs  to this Court, the parties do not disagree regarding  any
pertinent facts.
          Thus,  the only remaining task is to legally categorize
the  facts  of the case.  In this kind of situation,  we  (as  an
appellate court) have the authority to resolve the Miranda  taint
issue  even  though the superior court did not reach this  issue.
And,  as  we  are  about  to explain, we conclude  that,  despite
Hershbergers   administration   of   Miranda   warnings,   Klemzs
statements  to  Hershberger were indeed tainted  by  the  earlier
Miranda  violation, even under the rule of Oregon v. Elstad,  470
U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
          We  confronted a similar factual situation in  Crawford
v.  State,  100  P.3d 440 (Alaska App. 2004).  The  defendant  in
Crawford was arrested for driving with a revoked license, but  he
was  not  immediately given Miranda warnings.  During post-arrest
questioning, Crawford admitted that there was cocaine  under  the
seat  of  his  vehicle.9   As  soon  as  Crawford  admitted  this
additional crime, the arresting officer took Crawford back to his
patrol  car  and,  for the first time, advised  Crawford  of  his
Miranda rights.10  Crawford waived his Miranda rights and  agreed
to further questioning.11
          As  we described in our Crawford opinion, the arresting
officer began this post-Miranda questioning by reminding Crawford
of  the  things  he had previously admitted  in  particular,  his
possession  of  ...  cocaine under the seat of  his  car.12   The
officer questioned Crawford further about this cocaine, and  then
he  obtained  Crawfords  consent  to  search  the  car.13   After
receiving  this  consent, the officer entered Crawfords  car  and
found a bag of cocaine under the drivers seat.14
          We  held  that,  even though Crawford received  Miranda
warnings,  the  statements  he  made  about  the  cocaine   after
receiving  those  Miranda warnings had  to  be  suppressed  under
federal law.15
          In  reaching  this  conclusion, we  acknowledged  that,
under the Supreme Courts decision in Oregon v. Elstad, all of the
statements  that  Crawford made after receiving Miranda  warnings
(and  after  waiving  his  rights) were presumptively  admissible
against  him.16   Under Elstad, federal law  presumes  that  once
Miranda  warnings have been given, thus apprising the suspect  of
the  constitutional rights to silence and to  the  assistance  of
counsel, the suspects choice whether to exercise his privilege to
remain silent should [thereafter] ordinarily be viewed as an  act
of  free will.  Crawford, 100 P.3d at 446-47 (quoting Elstad, 470
U.S. at 311, 105 S.Ct. at 1294).
          But  as  we  also pointed out in Crawford,  the  Elstad
decision  acknowledges  that there  may  be  instances  in  which
defendants  can  show that, despite receiving  Miranda  warnings,
they  were nevertheless illegally pressured to continue  speaking
instances  in  which  the police exploit the  [earlier]  unwarned
          admission to pressure [the defendant] into waiving his [or her]
right  to  remain  silent.  Crawford, 100 P.3d  at  447  (quoting
Elstad, 470 U.S. at 316, 105 S.Ct. at 1296).
          We concluded that Crawfords case was one of this latter
type   an  instance  in  which  the police  improperly  exploited
Crawfords   unwarned   confession  to   obtain   a   post-warning
reiteration of that confession.
          We  pointed out that Crawford was arrested, handcuffed,
and  then questioned without being advised of his rights.  During
this  pre-warning interrogation, Crawford admitted  that  he  was
guilty  of a felony (possession of cocaine).  Upon hearing  this,
the arresting officer advised Crawford of his Miranda rights  but
then   the  officer  began  his  post-warning  interrogation   by
immediately  reminding  Crawford that he had  just  confessed  to
possessing  cocaine under the seat of his car, and by questioning
Crawford further about the cocaine.17  We concluded that, viewing
these facts objectively,
          
          Crawford   was  subjected  to  a   continuing
          interrogation   about   his   possession   of
          cocaine,   with  Miranda  warnings   inserted
          midstream,  with barely an interruption,  and
          after Crawford had already confessed to  this
          crime.    ...    [W]e  conclude   that   this
          midstream administration of Miranda  warnings
          did  not effectively apprise Crawford of  the
          nature of his rights and the consequences  of
          abandoning    them.    Rather,    in    these
          circumstances,   when  Crawford   heard   the
          Miranda  warning that any statements he  made
          could  be  used  against him, Crawford  could
          reasonably conclude that his earlier unwarned
          admissions  would be used against  him   thus
          removing any incentive for Crawford to invoke
          his  right  to  silence when  [the  arresting
          officer]   immediately  asked   Crawford   to
          re-affirm those admissions.
               .  .  .
          
     We  acknowledge that [the  officer]  did
not    subject   Crawford   to   a    lengthy
interrogation  before  he  administered   the
Miranda  warnings to Crawford.  However,  for
purposes of [the officers] investigation into
Crawfords  illegal possession of drugs,  this
short    pre-warning    interrogation     was
sufficient:  [the officer] elicited Crawfords
confession  that he knowingly  possessed  the
cocaine under the seat of his car.

     Immediately  after ... elicit[ing]  this
confession,    [the   officer]   administered
Miranda  warnings  to  Crawford   and   then,
essentially  without  pause,  [the   officer]
reminded  Crawford  of  this  confession  and
     asked  him to re-affirm it.  Under these
circumstances,  we  conclude  that  Crawfords
post-Miranda   admission  stemmed   from   an
improper   exploitation   of   his    earlier
statement  taken  in  violation  of  Miranda.
Thus, the Elstad presumption is rebutted, and
Crawfords    post-Miranda   statements    are
inadmissible.

Crawford,   100   P.3d   at   450   (internal
quotations and footnotes omitted).
          The  facts  of Klemzs  case  differ
slightly from the facts of Crawford, but  not
in any significant way.
          Klemzs  probation officer  (Foster)
arrested  Klemz  for  a  violation   of   his
probation   (drinking  alcoholic  beverages).
Foster handcuffed Klemz and then, assisted by
another  probation officer (Meyer), he  began
escorting  Klemz to jail.  Even  though  both
probation officers knew (based on the  breath
test)  that  Klemzs blood alcohol  level  was
almost  three  times  the  legal  limit   for
driving, neither officer warned Klemz of  his
Miranda  rights.  Instead, as the  three  men
were walking out of the building, both Foster
and  Meyer put questions to Klemz that  could
reasonably    be    expected    to     elicit
incriminating responses  questions concerning
whether  Klemz  had driven to  the  probation
office.
          As  soon as Klemz admitted that  he
had  driven himself to the probation  office,
Foster  and Meyer took Klemz back inside  and
summoned  the  police.   Officer  Hershberger
arrived  within fifteen minutes (and  perhaps
as quickly as five minutes).
          When  Hershberger  arrived,  Foster
apprised  him that Klemz had a blood  alcohol
level  of  .221 percent, and that  Klemz  had
driven  to  his appointment at the  probation
office.  Hershberger then took Klemz outside,
accompanied by one of the probation officers.
Hershbergers  first  words  of  substance  to
Klemz  were:  Heres the deal, Tom.  ...   You
obviously   drove   over  here,   and   youve
obviously ... [, so] I gotta ask you a couple
of questions.
          Hershberger  then read the  Miranda
warnings to Klemz  although we note  that  he
did  so  in  a  fast-paced monotone,  without
pause.   Hershberger then asked Klemz  if  he
understood these rights and if he was willing
to talk.  Klemz said yes.
          Hershbergers    next    words    of
substance  to Klemz were a renewed  assertion
that  it was obvious that Klemz had committed
a  new felony:  Obviously, youve been driving
the vehicle, and obviously youve had a little
bit  of  alcohol.   Klemz then  repeated  his
confession  that he had driven his  truck  to
his  appointment  at  the  probation  office.
Both  of  the probation officers was  present
during  Hershbergers conversation with Klemz.
That  is,  the officials who had heard  Klemz
make  his  initial unwarned  confession  were
standing by, apparently ready to step  in  if
Klemz  decided to retract or deny his earlier
admission that he had driven his truck to the
probation office.  To a reasonable person  in
Klemzs   situation,  the  presence   of   the
probation  officer would have reinforced  the
perception  that it was pointless  to  invoke
the Miranda right to silence.
          In   other  words,  just  like  the
defendant in Crawford, Klemz was subjected to
a  continuing  interrogation  about  his  new
offense   felony  DUI  with Miranda  warnings
inserted    midstream,   with    barely    an
interruption, and after [Klemz]  had  already
confessed to this crime.18
          As  in  Crawford, we conclude  that
this   midstream  administration  of  Miranda
warnings did not effectively apprise Klemz of
the nature of his rights and the consequences
of   abandoning  them.   Klemzs  post-warning
reiteration of his confession stemmed from an
improper   exploitation   of   his    earlier
confession  the one obtained in violation  of
Miranda.   Thus,  the Elstad  presumption  is
rebutted,  and Klemzs post-warning statements
are  no  more admissible than his pre-warning
statements.
          In  other words, the superior court
should  have suppressed all of the challenged
statements  in  this case.  Accordingly,  the
judgement  of the superior court is REVERSED,
and Klemz is entitled to a new trial.
_______________________________
  1 See AS 28.35.030(a)(2).

2 Id. at 386.

  3 Id.

  4 Id.

  5 Id., 755 F.2d at 388-89.

  6 Id. at 389.

  7 Branch v. State, 932 S.W.2d 577, 581 (Texas App. 1995).

  8 People v. Pierce, 673 N.E.2d 750, 751-52 (Ill. App. 1997).

9 Id. at 442.

  10Id.

  11Id.

  12Id.

  13Id.

  14Id.

  15Id. at 450-51.

  16Id. at 446-47.

17Crawford, 100 P.3d at 449-450.

18  Crawford, 100 P.3d at 450.

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