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State v. Amend (3/11/2011) ap-2299

State v. Amend (3/11/2011) ap-2299

                                                NOTICE 
        The text of this opinion can be corrected before the opinion is published in thePacific 
        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 

STATE OF ALASKA,                                 ) 
                                                 )         Court of Appeals No. A-10496 
                            Petitioner,          )         Trial Court No. 3KN-08-671 CR 
                                                 ) 
             v.	                                 ) 
                                                 )                O    P   I  N  I  O  N 
JOHN S. AMEND,                                   ) 
                                                 ) 
                            Respondent.	         ) 
                                                 )            No. 2299 - March 11, 2011 

                Appeal from the Superior Court, Third Judicial District, Kenai, 
                Carl Bauman, Judge. 

                Appearances:       Kenneth     M.   Rosenstein,     Assistant   Attorney 
                General, Office of Special Prosecutions and Appeals, Anchorage, 
                and    Daniel    S.  Sullivan,  Attorney    General,    Juneau,   for  the 
                Petitioner.  Doug Miller, Assistant Public Advocate, and Rachel 
                Levitt, Public Advocate, Anchorage, for the Respondent. 

                Before:     Coats,    Chief  Judge,   and   Mannheimer      and   Bolger, 
                Judges. 

                BOLGER, Judge. 

                John   Amend   was   stopped   outside   a   convenience   store   for   shoplifting. 

Immediately after he was stopped, Amend admitted to the crime.  The police officer then 

handcuffed Amend and advised him of his Miranda rights. Amend waived his rights and 

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agreed to continue speaking to the officer at the scene; he also agreed to let the officer 

search the pockets of his clothing. 

                When the officer searched Amend, he discovered some stolen food items 

and several OxyContin tablets.         When Amend was asked about the tablets, he told the 

officer that he intended to sell them. 

                Amend filed a pretrial motion seeking suppression of his statements to the 

police.   Superior Court Judge Carl Bauman ruled that Amend's statements should be 

suppressed because (1) the officer failed to remind Amend of his Miranda rights in light 

of the potential felony drug charges and (2) the officer should have recorded the ensuing 

conversation. 

                We conclude that the officer was not required to make an audio recording 

because the interrogation took place in the field and not in a place of detention.  We 

conclude that there was no need for the officer to remind Amend about hisMiranda rights 

before he began questioning Amend about the OxyContin because Amend could readily 

understand the purpose of the officer's questions and the potential adverse consequences 

of answering those questions. 

        Background 

                Kenai    Police   Officer   Aaron    Turnage     was   dispatched    to  the  Holiday 

convenience store in Kenai in response to a shoplifting report.            The dispatch indicated 

that the shoplifter was an adult male wearing a checkered coat and welding glasses. 

Turnage   saw   a   man   matching   the   description   and   pulled   into   a   nearby   parking   lot. 

Turnage called to the man and, when he turned around, Turnage recognized him as 

Amend. 

                Turnage   asked   Amend   about   the   shoplifting,   and   Amend   immediately 

admitted that he had stolen food from the store.           Turnage handcuffed Amend and gave 

                                                - 2 -                                           2299
 

----------------------- Page 3-----------------------

Amend standard Miranda warnings.              Amend stated that he understood his rights and 

agreed to speak with Turnage. 

                Turnage asked Amend for consent to search his pockets and Amend agreed. 

Inside Amend's jacket were five burritos and two boxes of cookies.  Turnage then found 

seventeen-and-a-half OxyContin tablets in Amend's pants pocket. 

                According to Turnage, Amend said he was released from jail earlier in the 

day, but had no money.         After his release he went to Ninilchik to obtain the tablets. 

Amend stated that he was selling the tablets for $120 apiece and that he already had buyers 

lined up. 

                Turnage did not record his conversation with Amend.   Turnage ordinarily 

recorded investigative contacts, and he could not explain why he had not recorded the 

conversation in this case. 

                Amend was charged with fourth-degree theft,1 second-degree misconduct 

                                       2                                               3 
involving a controlled substance,  and violation of his conditions of release.           Amend filed 

a motion to suppress the statements he made to the police.  The court held an evidentiary 

hearing on the motion and took the testimony described above.   In Amend's testimony, 

he acknowledged that he   made the statements admitting that he intended to sell the 

OxyContin tablets, but asserted that he was only joking. 

                Judge Bauman found that Turnage provided Amend with Miranda warnings 

at the outset of their encounter.       The judge also found that Amend, "though high at the 

time, had sufficient wherewithal and control of his faculties to knowingly and freely waive 

his right to remain silent and his right to counsel with regard to the shoplifting charges." 

        1   AS 11.46.150. 

        2   AS 11.71.020(a)(1). 

        3   AS 11.56.757(b)(2). 

                                                 - 3 -                                              2299 

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The judge concluded that Amend's statements regarding the shoplifting and his admissions 

about his possession of the tablets were admissible. 

                But the judge concluded that the officer should have interrupted Amend at 

the point that he admitted that he owned the tablets to inform him that he was facing felony 

drug charges and to remind him of his Miranda rights.               The judge also concluded that 

the ensuing conversation should have been recorded. The judge accordingly suppressed 

Amend's admission about his sale of the tablets.               We granted the State's petition for 

review of the superior court's decision. 

        Discussion 

                A single set of Miranda warnings was sufficient for this field interview. 

                We find no reported Alaska cases examining the effect of a change in the 

subject matter of questioning after a validMiranda waiver. But the United States Supreme 
Court addressed this issue in Colorado v. Spring.4             In Spring, the defendant expressly 

waived his Miranda rights but later moved to suppress his confession, arguing that his 

waiver was not knowing and intelligent because the police never told him he would be 
questioned about his involvement in a murder.5                The Court rejected Spring's claim, 

holding   that   "[t]he   Constitution   does   not   require   that   a   criminal   suspect   know   and 
understand every possible consequence of a waiver of the Fifth Amendment privilege."6 

The Court concluded that "a suspect's awareness of all the possible subjects of questioning 

        4   479 U.S. 564 (1987). 

        5   Id . at 567-69. 

        6   Id . at 574-75. 

                                                 - 4 -                                               2299 

----------------------- Page 5-----------------------

in advance of interrogation is not relevant to determining whether the suspect voluntarily, 
knowingly, and intelligently waived his Fifth Amendment privilege."7 

                 We addressed this issue in an unreported decision in Plumlee v. State.8 

Daniel Plumlee confessed to committing an armed robbery after waiving his Miranda 
rights.9   The police then informed Plumlee that his accomplice implicated him in other 

robberies and in a murder that occurred two days earlier.10 Plumlee also confessed to these 

crimes, but argued on appeal that his confession was not voluntary because the police 
misled him about the subject matter of the interrogation.11                We concluded that a suspect 

may make a valid waiver of their privilege against self-incrimination without knowing 
all the subjects of an interrogation in advance.12 

                 We do not perceive any unique aspect of the Alaska constitutional privilege 

against self-incrimination that would require us to question our previous decision in 
Plumlee.13  The Alaska Constitution does not "require the police to supply a suspect 'with 

a flow of information to help him calibrate his self-interest in deciding whether to speak 

         7   Id. at 577.
 

         8   Mem. Op. & J. No. 4265, 2000 WL 1258329, at *4 (Alaska App. Sept. 6, 2000).
 

         9   Id. at *3.
 

         10  Id.
 

         11  Id.
 

         12  Id. at *4.
 

         13  See generally Shorty v. State, 214 P.3d 374, 379 (Alaska App. 2009) (noting that
 

a party who claims that the Alaska Constitution should be interpreted differently than the 
federal   Constitution   should   point   to   something   about   the   "text,   context,   or   history"   that 
justifies a different interpretation). 

                                                    - 5 -                                                2299
 

----------------------- Page 6-----------------------

or stand by his rights.'"14 A "waiver is valid as long as the 'suspect's decision not to rely 

on his rights was uncoerced, that he at all times knew he could stand mute and request 

a lawyer, and that he was aware of the State's intention to use his statements to secure 
a conviction.'"15 

               Even if we were prepared to create a special rule for instances where the 

police actively conceal or misrepresent the nature of their inquiry, there is nothing in the 

circumstances of this case that calls Amend's waiver of Miranda rights into question. 

The officer did not attempt to mislead Amend concerning the subject matters of the 

interrogation or the potentially incriminatory nature of Amend's answers.  Although the 

direction of the interview changed after the officer discovered the OxyContin tablets in 

Amend's pocket, Amend was fully aware that the officer had discovered the OxyContin. 

Thus, Amend presumably understood why the officer would begin to question him about 

this drug, and how his answers to the officer's questions might be self-incriminatory. This 

change in the subject matter of the interrogation had no constitutionally significant impact 

on the validity of Amend's earlier waiver of his rights. 

               The police were not obligated to record this field interrogation. 

               In Stephan v. State, the Alaska Supreme Court held that police are obligated 

to record "custodial interrogations in a place of detention, including the giving of the 
accused's Miranda rights."16  The "unexcused failure to electronically record a custodial 

interrogation conducted in a place of detention violates a suspect's right to due process, 

        14 Forster v. State, 236 P.3d 1157, 1162-63 (Alaska App. 2010) (quoting Moran v. 

Burbine, 475 U.S. 412, 422 (1986)). 

        15 Id. at 1163 (quoting Moran v. Burbine, 475 U.S. 412, 422 (1986)). 

        16 711 P.2d 1156, 1162 (Alaska 1985). 

                                             - 6 -                                         2299 

----------------------- Page 7-----------------------

under     the  Alaska     Constitution,     and   ...  any  statement     thus   obtained     is  generally 
inadmissible."17 

                 The Stephan court stated that this rule applies only when the custodial 
interrogation is conducted in a place of detention.18             A place of detention is a location 

"such as a police station or jail, where it is reasonable to assume that recording equipment 
is available, or can be made available with little effort."19 

                 We have many times recognized that the Stephan rule does not apply to crime 

scene interrogations.  In Resecker v. State, we declined to extend Stephan to crime scene 
interrogations, even if recording equipment is available.20             Similarly, in Shindle v. State, 

we concluded that, since the defendant was not in a place of detention when questioned, 
his case fell outside the Stephan requirement.21              We have also declined to extend the 

Stephan rule in several unpublished decisions.22            Under these decisions, Turnage was not 

required to record his conversation with Amend because the interrogation did not occur 

at a place of detention. 

         17 Id. at 1158. 

         18 Id. at 1165 n.33. 

         19 Id. 

        20   721 P.2d 650, 653 n.1 (Alaska App. 1986). 

        21   731 P.2d 582, 585 (Alaska App. 1987). 

        22  See, e.g.,Watson v. State, Mem. Op. & J. No. 4575, 2002 WL 1150731, at *2 

(Alaska App. May 29, 2002) (reiterating that Alaska case law "unequivocally limits Stephan 
to custodial interrogations occurring in places of detention"); Fredrichs v. State, Mem. Op. 
& J. No. 4238, 2000 WL 852435, at *2 (Alaska App. June 28, 2000) (holding that because 
the defendant was not interrogated in a place of detention, there was no duty to record the 
field contact); Hendricks v. State, Mem. Op. & J. No. 4107, 1999 WL 679025, at *1 (Alaska 
App. Sept. 1, 1999) (indicating that the court has "repeatedly declined to extend the Stephan 
rule to ... investigative interviews" that occur outside a place of detention). 

                                                   - 7 -                                              2299
 

----------------------- Page 8-----------------------

                Judge Bauman noted that, in the absence of a recording, Amend may be 

required to take the stand to support his contention that he was joking when he said that 

he had buyers for the tablets in his pocket.   This may be so.   But this is not a case where 
the   police   have   lost   or   destroyed   critical   audio   or   video   evidence.23 We   have   not 

previously required the police to record or photograph all investigative procedures, even 
though there may be a disagreement about what happened.24  Amend's right to due process 

is sufficiently protected by his right to confront and cross-examine Turnage at trial and 

to offer any evidence that would impeach or contradict his testimony. 

                This case would not be a good opportunity to extend the Stephan rule, even 

if we were inclined to do so.   Turnage arrested Amend almost immediately after he was 

dispatched to the convenience store.          The officer was conducting a search of Amend's 

pockets     incident   to  this  arrest   when   he  discovered     the  OxyContin      tablets  and   he 

immediately asked Amend about his discovery.                 There is no indication that Turnage 

delayed transporting Amend to avoid the Stephan recording requirement.  We conclude 

that Turnage was not required to interrupt his arrest and search of Amend in order to 

activate his recorder. 

        Conclusion 

                We REVERSE the superior court's decision. 

        23  See Thorne v. State, Dep't of Pub. Safety, 774 P.2d 1326, 1331-32  (Alaska 1989) 

(requiring sanctions for unexplained destruction of a videotape of a DUI booking procedure); 
Catlett v. State, 585 P.2d 553, 558 n.5 (Alaska 1978) (suggesting that due process requires 
police to have standard procedures for preserving crime scene photographs). 

        24  See Ostlund v. State, 51 P.3d 938, 942-43 (Alaska App. 2002) (holding that no 

sanctions were required when police did not photograph crime scene); Swanson v. Juneau, 
784 P.2d 678, 681 (Alaska App. 1989) (holding that a videotape (rather than an audiotape) 
of sobriety tests was not required). 

                                                 - 8 -                                               2299 
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