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Hart v. State (4/14/2017) ap-2548

Hart v. State (4/14/2017) ap-2548

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JONATHON RHEA HART,  

                                                                  Court of Appeals No. A-12077  

                                   Appellant,                    Trial Court No. 1KE-13-897 CR  



                          v.  

                                                                           O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                   Appellee.                        No. 2548 - April 14, 2017  



                  Appeal   f                                      

                              rom   the   Superior   Court,   First   Judicial   District,  

                  Ketchikan, Trevor Stephens and William B. Carey,  Judges.  



                  Appearances: Evan Chyun, Assistant Public Advocate, Appeals  

                                     

                  and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

                  Advocate, Anchorage, for the Appellant.  Diane L. Wendlandt,  

                                                                       

                  Assistant   Attorney  General,   Office   of   Criminal   Appeals,  

                                                                        

                  Anchorage, and Craig W. Richards, Attorney General, Juneau,  

                  for the Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,  

                                                       

                  Senior Judge. *  



                  Senior Judge COATS.  



    *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                       Jonathon  Rhea   Hart   was   convicted   of   one   count   of   second-degree  



misconduct involving a controlled substance and one count of third-degree misconduct                                          



                                                       1  

involving a controlled substance.                                                                                                       

                                                          Prior to trial, Hart moved to suppress evidence seized  



                                                                                                                              

pursuant to a search warrant, alleging that the warrant was issued based on information  



                                                                                                                                         

that did not satisfy the Aguilar/Spinelli test for probable cause. Hart argued, among other  



                                                                                                                                           

claims, that the court issuing the warrant should have rejected the statements that two  



                                                                                                                                         

drug dealers made to a police informant as too unreliable to support the warrant.  After  



                                                                                         

a hearing, the superior court denied the suppression motion.  



                                                                                                                                            

                       On appeal, Hart first contends that this Court should review de novo the  



                                                                                                                                     

district court's decision to issue the search warrant, with no deference to the issuing  



                                                                                                                                          

judge's  decision.               This  proposed  standard  of  review  is  inconsistent  with  the  rule  



                                                                                                                                             

established by our supreme court in State v. Koen, 152 P.3d 1148 (Alaska 2007), so we  



                       

reject Hart's contention.  



                                                                                                                                  

                       Hart also claims that the superior court erred when it denied his challenge  



                                                                                                                                            

to the search warrant.  For the reasons explained in this opinion, we conclude that the  



                                                                                                                       

evidencepresented to themagistratewho issuedthewarrant satisfied the Aguilar/Spinelli  



                                                                                                                                           

test.  In particular, we hold that the magistrate could reasonably rely on statements that  



                                                                                                                                            

two drug dealers made to a reliable police informant when the drug dealers were not  



                                                                                                                                         

aware that the person they were speaking to was a police informant, and that their  



                                                               

 statements would be provided to the police.  



    



      1     Former AS 11.71.020(a)(1) (2014) (possession of heroin with intent to deliver) and  



                                                                                

former AS 11.71.030(a)(1) (2014) (possession of methamphetamine with intent to deliver),  

respectively.  



                                                                     - 2 -                                                               2548
  


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

           The proper standard of review  

                                                



                    As we just noted, Hart argues that this Court should review the sufficiency  

                                                                                                                    



of the warrant application in this case with no deference to the decision of the judge who  

                                                                                                                              



issued the warrant.  Hart asserts that, because he does not contest the assertions of fact  

                                                                                                                               



supporting the warrant application, the sole remaining issue - whether those facts  

                                                                                                                             



support a finding of probable cause - is a question of law that should be reviewed  

                                                                                                                       



de novo, giving no deference to the decision of the issuing judge.  

                                                                                           



                    Hart is correct that, ultimately, an appellate court exercises independent  

                                                                                                                  



review in assessing whether a warrant is supported by probable cause.  But the Alaska  

                                                                                                                          



Supreme Court has directed us to give "great deference" to the magistrate's decision to  

                                                                                                                                  



issue a warrant.  Here is how the supreme court explained the standard of review in  

                                                                                                                                  



State v. Koen:  

             



                     Questions  concerning  the  existence  of  probable  cause  

                                                                                                      

                    ultimately         present       issues      of     law,     which        we     review  

                                                                                                    

                    independently.               But   when   such   questions   involve   a  

                                                                                                             

                    magistrate's  decision  to  issue  a  warrant,  we  begin  by  

                                                                                                           

                    recognizing  that  magistrates  have  broad  latitude  to  draw  

                                                                                                        

                    reasonable inferences from the evidence placed before them.  

                                                                                                                  

                    Accordingly, we give "great deference" to the magistrate's  

                                                                                              

                     discretion and resolve marginal cases in keeping with the  

                                                                                                           

                    traditional  preference  accorded  to  warrants.                         Our  inquiry  

                                                                                                     

                     focuses on whether the magistrate had a substantial basis to  

                                                          

                     conclude that probable cause to search existed.  In applying  

                                                                                 

                    this standard, we must read the affidavit submitted in support  

                                                                                                     

                     of  the  search  warrant  "in  a  commonsense  and  realistic  

                                                                                                   

                     fashion," considering the affidavit "in its entirety" instead of  

                                                                                                              

                     dissecting it into isolated "bits and pieces of information."  

                                                                                         



Koen, 152 P.3d at 1151 (internal citations omitted).  

                                                                  



                    Accordingly, this is the standard that we apply.  

                                                                                    



                                                              -  3 -                                                        2548
  


----------------------- Page 4-----------------------

                   The warrant was supported by probable cause                                                                        



                                     In December 2013, Ketchikan Police Sergeant Andrew Berntson applied   



for and received a warrant to enter and search the vacation rental where Hart was staying                                                                                                                                     



in Ketchikan.                            Berntson personally testified in support of the warrant application, but                                                                                                                        



most of his testimony was based on information obtained from other sources.                                                                                                                                                    These  



sources   were   (1)   a   citizen   informant   named   Adam Archibald,                                                                                                               (2)   a   reliable   police  



informant named Aaron McColley, and (3) information that McColley obtained from his                                                                                                                                                       



conversations   with   two  local   drug   dealers,   James   Doe   and   Jane   Roe.     (These   are  



pseudonyms.)  



                                     When the police executed the search warrant the next day, they found                                                                                                                        



heroin and methamphetamine, packages of syringes, a digital scale, a straw scoop, a                                                                                                                                                           



package of balloons, cash, and other drug-related items in Hart's vacation rental.  The  

                                                                            



charges against Hart were based on this evidence.  

                                                                                                                 



                                     Probable cause to issue a search warrant exists when "reliable information                                                                                                  



is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that  

                                                                                                                                                                                                                                        

a crime has been or was being committed."2  

                                                                                       



                                                                                                                                                                                                                                 

                                     Hart  contends  that  the  warrant  was  not  supported  by  probable  cause  



                                                                                                                                                                                                                                                     

because the State did not establish that the two drug dealers, James Doe and Jane Roe,  



                                                                                                                                                                                                                      

were credible and reliable sources of information under the Aguilar/Spinelli test.  



                                                                                                                                                                                                                                     

                                     Under the Aguilar/Spinelli test, "[w]hen a search warrant application rests  



                                                                                                                                                                                                                            

on hearsay information, the government must establish (1) that each of its hearsay  



         2         Van Buren v. State, 823 P.2d 1258, 1261-62 (Alaska App. 1992) (citing Badoino v.  



                                                                                                                                                                                                 

State, 785 P.2d 39, 41 (Alaska App. 1990) (quoting Harrelson v. State, 516 P.2d 390, 396  

(Alaska 1973))).  



                                                                                                                  - 4 -                                                                                                             2548
  


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

informants is generally a credible source of information, and (2) that each informant                                            

obtained their present information in a reliable way."                                   3  



                                                                                                                                    

                      When Sergeant Berntson applied for the warrant in this case, he testified  



                                                                                                                                       

that he was working with a police informant, Aaron McColley.  McColley had earlier  



                                                                                                                                             

been arrested for possession and sale of heroin, and he had agreed to cooperate with the  



                                                                                                                                   

police in other investigations.  In this capacity as an informant, McColley had provided  



                                                                                                                                      

reliable information to  the police about other cases.   Hart concedes that the search  



                                                                                                                                        

warrant applicationestablishedthatMcColley was acrediblesourceofinformation under  



                                                                                                                                

the Aguilar/Spinelli  test.   But Hart disputes whether the information that McColley  



                                                                           

relayed from  James Doe and Jane Roe was reliable.  



                                                                                                                                  

                      According  to  the  search  warrant  application,  McColley  told  Sergeant  



                                                                                                                                          

Berntson that Jane Roe, a woman who sold drugs in Ketchikan, had obtained drugs from  



                                                                                                                                           

a man named "Jon" who came to Ketchikan from "down South."   This person was  



                                                                                                                                   

allegedly bringing into Ketchikan a higher grade of heroin than was normally available  



                                                                                                                                              

in town.  Berntson had not previously seen this type of heroin, called China white, in  



Ketchikan.  



                                                                                                                                                   

                      McColley had personally met this out-of-town dealer "Jon," and McColley  



                                                                                                                                           

provided Berntson with a fairly detailed description of him.  McColley also said that  



                                                                                                                                       

James Doe, a friend of McColley, was "a good contact with this man, Jon, and [with]  



                                                                                                                                  

Jane Roe."  McColley said that James Doe sold "gram quantities" for Jon.  Berntson  



                                                                                                                                         

independently knew that James Doe was part of a group of Ketchikan locals who were  



                     

"really into heroin."  



      3     Wilson v. State, 82 P.3d 783, 783 (Alaska App. 2003).  See State v. Jones, 706 P.2d  



                                                                                                               

317,  320,  324-25  (Alaska  1985);  Davis  v.  State,  499  P.2d  1025,  1029  (Alaska  1972),  

overruled on other grounds, 415 U.S. 308 (1974).  



                                                                    -  5 -                                                               2548
  


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

                                                                On November 25, McColley texted a license plate number to Berntson.                                                                                                                                                                                                                                          



McColley said that he had seen the out-of-state dealer "Jon" driving a vehicle with this                                                                                                                                                                                                                                                                                                                   



license plate number.                                                                                            Berntson   determined   through   his own                                                                                                                                                        investigation   that the   



vehicle was owned by a local woman. Police searched the woman's house about a week                                                                                                                                                                                                                                                                                                            



later and found illegal drugs.                                                                             



                                                                A few days after McColley told Bernston about the car, he shared more                                                                                                                                                                                                                                                              



information with Bernston.  McColley told Berntson that James Doe had told him that   



the out-of-town dealer named Jon "had gone South for the time being and would be                                                                                                                                                                                                                                                                                                                               



returning with a large amount of heroin," some of which would be China white.                                                                                                                                                                                                                                                                                  



                                                                About   two   weeks   later,   McColley   participated   in   a   police-recorded,  



controlled drug buy from Jane Roe.                                                                                                                                        During that drug buy, McColley told Jane Roe that                                                                                                                                                                               



he thought he could get a better price from another dealer in town.                                                                                                                                                                                                                                                        Jane Roe responded                              



that she knew who McColley was talking about.                                                                                                                                                                                         When McColley said, "[James Doe's]                                                                                                                    



guy?"  Jane Roe responded, "yes."  According to Jane Roe, that dealer had just gotten  



back to town.                                                       She said she had tried the heroin he was selling as China white and the                                                                                                                                                                                                                                                                   



heroin was no good.                                                  



                                                                Hart argues that, although McColleymight becredible, there                                                                                                                                                                                                                                was no reason                      



to believe that the statements that McColley relayed from James Doe and Jane Roe were                                                                                                                                                                                                                                                                                                                



reliable.   But in                                                         State v. Malkin                                                           , this Court recognized that "[i]n certain circumstances,                                                                                                                                       



admissions of crime carry their own indicia of credibility, sufficient to support a finding                                                                                                                                                                                                                                                                                         

of probable cause."                                                                          4  



                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                In  Malkin,  we  noted  that  Professor  LaFave  had  stated  that  when  a  



                                                                                                                                                                                                                                                                                                                                                                                                                    

"secondary source" has "no way of knowing his information would eventually arrive at  



                4               678 P.2d 1356, 1359 (Alaska App. 1984), rev'd on other grounds, 722 P.2d 943                                                                                                                                                                                                                                                                     



 (Alaska 1986).  



                                                                                                                                                                                                   -  6 -                                                                                                                                                                                           2548
  


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

police headquarters" and was merely "relating an occurrence to a friend," then a court                            



could find that this source "had no motive to lie and his information was conveyed in                                                                



                                                                                 5  

circumstances consistent with its reliability."                                                                                                       

                                                                                     Professor LaFave explains that "as a  



                                                                                                                                     

general proposition there is more reason to rely upon such admissions than admissions  



                                                                                                                                                   

made directly to police, for in the latter situation there is always the chance that the  



                                                                                                                                                      6  

                                                                                                                                              

informer is a stoolie who perceives he can admit to criminality without significant risk." 



                                                                                                                                               

                        Other courts have agreed with Professor LaFave.  See, e.g., Comi v. State,  



                                                   

338 A.2d 918, 922 (Md. Ct. Spec. App. 1975) (where the "secondary source" "had no  



                                                                                                                                                  

way of knowing that his information would eventually arrive at police headquarters" and  



                                                                                                                                                  

was merely "relating an occurrence to a friend [a court could find that this source] had  



                                                                                                                                                    

no motive to lie and his information was conveyed in circumstances consistent with its  



                                                                                                                                      

reliability."); State v. Romero, 765 N.W.2d 756, 769 (Wis. 2009) (finding a secondary  



                                                                                                                                          

source reliable because the source's "unwitting participation in a police sting [served]  



                                                                                                                                               

to bolster his credibility"); State v. Gunwall, 720 P.2d 808, 818 (Wash. 1986) (en banc)  



                                                                                                                                                 

(secondary source did not know she was speaking to an undercover police officer, thus  



                                                                                                                   

had no reason to lie when she made statements against her penal interest).  



                                                                                                                                          

                       Additionally Professor LaFave has explained that generally it is unlikely  



                                                                                                                                           

that false information is exchanged when a reliable informant reports a drug seller's  



                                                                                                                                        7  

                                                                                                                        

discussion with a drug buyer as to when drugs will be available for purchase. 



      5     678 P.2d at 1359 n.4 (quoting 1 Wayne R. LaFave, Search and Seizure   3.3(c), at 530  



(1978) (footnotes omitted) (quoting Comi v. State, 338 A.2d 918, 922 (Md. Ct. Spec. App.  

 1975))).  



      6     2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment    

                                                                      

3.3(c), at 174 (5th ed. 2012).  See also Malkin, 678 P.2d at 1359 n.4.  



      7  

                                                                                      

            2 Wayne R. LaFave, Search and Seizure:  A Treatise on the Fourth Amendment    

                                                                                                

3.3(c), at 179-80 (5th ed. 2012).  See Thompson v. State, 298 A.2d 458, 462 (Md. Ct. Spec.  

                                                                                                                                 (continued...)  



                                                                        -  7 -                                                                 2548
  


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

                                           Here, both James Doe and Jane Roe were secondary sources who were                                                                                                                                                           



speaking   with   McColley,   a   reliable   informant.     Both   Doe   and   Roe   discussed   with  



McColley either that heroin was currently available, or when it would be available, and                                                                                                                                                                                     



who was providing the heroin.                                                                           The judge who issued the warrant could reasonably                                                                                          



conclude   under   these   circumstances   that   Doe   and   Roe   were   unaware   that   their  



information would be provided to the police.                                                                               



                                           Consequently, thejudgeissuingthewarrant                                                                                                   could reasonably concludethat   



McColley obtained information from Doe and Roe in a reliable way, and that these two                                                                                                                                                                                       



local drug dealers had personal knowledge of their dealings with the out-of-town drug                                                                                                                                                                                   



dealer named Jon who was selling China white heroin.                                                                                                                               



                                           After receiving this information from McColley, Sergeant Berntson was                                                                                                                                                          



contacted by Adam Archibald, a Ketchikan citizen. Berntson knew Archibald, who was                                                                                                                                                                                         



a security officer at the Ketchikan airport.                                                                                                     Hart does not contest that Archibald is                                                                                         

properly classified as a "citizen informant" and therefore presumed to be credible.                                                                                                                                                                                       8  



                                                                                                                                                                                                                                                                                    

                                           Archibald owned a duplex and rented out the downstairs apartment as a  



                                                                                                                                       

vacation rental.  Archibald told Berntson that on December 6 he had received a phone  



                                                                                                                                                                                                                                                         

call froma woman asking about renting his apartment. Afterwards, a man who identified  



                                                                                                                                                                                                                                                                               

himself as "Jon Hart" confirmed the reservation for December 9 through December 19  



                                                                                                                                                                                                                                                                                

with an email. When the man and woman arrived, they told Archibald that they were on  



                                                                                                                                                                                                                                                                            

a "road trip."  Archibald thought this was odd because they did not have a vehicle, and  



                                                                                                                                                                                                                                                                                 

Hart claimed to have no credit cards.  Because Hart had no credit cards, he arranged to  



           7          (...continued)  



App. 1973) (explaining that drug dealers have no incentive to mislead their clientele, who  

                                                                                                                                                                                                  

they depend on to make a profit).  



           8          See Duncan v. State, 178 P.3d 467, 470 (Alaska App. 2008) (quoting Erickson v.  



State, 507 P.2d 508, 517-18 (Alaska 1973)).  



                                                                                                                                    -  8 -                                                                                                                             2548
  


----------------------- Page 9-----------------------

pay for the rental in two large cash payments. He provided two different reasons for this  

                                                                                                                             



arrangement. First he said he was waiting for "a check on a boat." Later he changed his  

                                                                                                                              



story, claiming he had received the cash from an inheritance.  

                                                                          



                    Archibald provided Berntson a description of Hart.  This description was  

                                                                                                                            



quite similar to the description that McColley had given to Berntson of "Jon," the out-of- 

                                                                                                                        



town drug dealer.  Archibald also identified the vehicle he had seen Hart coming and  

                                                                                                                            



going in.  Berntson knew this vehicle:  it was the same vehicle McColley had reported  

                                                                                                                     



the out-of-town drug dealer had been driving two weeks before.  

                                                                                      



                    Archibald also said that Hart always carried a backpack with him, which  

                                                                                          



Berntson explained was common for a person in the drug milieu who carried his drugs  

                                                                                                                          



with him.  

         



                    The  information  that  Berntson  obtained  from  Adam  Archibald,  when  

                                                                                                                         



coupled with the information he had obtained from the informant McColley, provided  



a sufficient basis for the district court to conclude that the Jon Hart who was renting the  

                                                                                                                             



apartment from Adam Archibald was the "Jon" who had recently arrived in town and  

                                                                                                                            



was supplying heroin to local dealers James Doe and Jane Roe.  Therefore, there was  

                                                                                                                            



probable  cause  to  believe  that  the  evidence  of  this  crime  would  be  found  in  the  

                                                                                                                            



apartment.  We conclude that the warrant was supported by probable cause.  

                                                                                                         



          Conclusion  



                    The judgment of the superior court is AFFIRMED.  

                                                                             



                                                             -  9 -                                                       2548
  

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