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State v. Adams (8/3/2018) ap-2612

State v. Adams (8/3/2018) ap-2612

                                                                               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:    



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                                                                    Fax:  (907) 264-0878  

                                                        E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



STATE  OF  ALASKA,  

                                                                                                                                                 

                                                                                                       Court of Appeals No. A-12377  

                                                                                                                                                             

                                                      Appellant,                                     Trial Court No.  1KE-14-802 CR  



                                        v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                 

TERRA  L.  ADAMS,  



                                                      Appellee.                                          No. 2612 - August 3, 2018  

                                                                                                                                                      



                           Appeal   from   the   Superior   Court,   First   Judicial   District,  

                                                                                                                                  

                           Ketchikan, Trevor N. Stephens, Judge.  

                                                                                        



                           Appearances:  Elizabeth T. Burke, Assistant Attorney General,  

                                                                                                                                   

                           Office of Criminal Appeals, Anchorage, and Craig W. Richards  

                                                                                                                                    

                           and  Jahna  Lindemuth,  Attorneys   General,  Juneau,  for   the  

                                                                                                                                             

                           Appellant.              Galen  Paine,  Law  Office  of   Julie  Willoughby,  

                                                                                                                            

                           Juneau, under contract with the Office of Public Advocacy, for  

                                                                                                                                              

                           the Appellee.  

                                                      



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

                                                                                                                                   

                           Superior Court Judge.*  

                                                                        



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                             


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

                                                                                                                              

                    The  State  appeals  the  superior  court's  suppression  of  evidence  in  the  



                                                                                                                   

prosecution of Terra L. Adams for the unlawful distribution of oxycodone.  



                                                                                                                              

                    According to the Alaska State Troopers' investigation, Adams would use  



                                                                                                                            

other people - "runners" or "mules" - to transport oxycodone tablets from other states  



                                                                                                                                    

to Alaska.  The State Troopers identified Pamela Helgesen as one of these "runners".  



                                                                                                                             

                    In December 2014, investigators received information that Adams had used  



                                                                                                                              

airline miles to purchase a round-trip ticket for Helgesen from Ketchikan to Seattle and  



                                                                                                                               

back.   The officers obtained  a warrant to search Helgesen's person and property for  



                                                                                

drugs, and they waited for her return to Ketchikan.  



                                                                                                                   

                    Upon Helgesen's arrival at the Ketchikan airport, two officers intercepted  



                                                                                                                     

her and informed her of the search warrant.   During their conversation with Helgesen,  



                                                                                                                  

the officers asked a number of questions about Helgesen's involvement in transporting  



                                     

oxycodone for Adams.  



                                                                                                                               

                    Helgesen initially denied any involvement in Adams's drug activities, but  



                                                                                                                             

Helgesen eventually made statements that implicated both herself and Adams in the illicit  



                                                                                                                              

distribution of oxycodone.  After making these statements, Helgesen told the officers that  



                                                                                                                               

she did not wish to talk further.   However, Helgesen agreed  to  assist the officers by  



                                                                                                                            

sending a text message to Adams - a text message stating that she (Helgesen) had made  



                                                                                                                           

it back to Ketchikan, and that she would meet Adams "on the other side at the ticket  



                                                                   

booth" and give her the oxycodone tablets.  



                                                                                                                              

                    Adams responded to Helgesen's text, saying that she was on her way.  The  



                                                                                                                             

officers waited for Adams at the rendezvous location, and they arrested her shortly after  



                                                                                                                     

she arrived.  Adams was subsequently indicted for second-degree controlled substance  



                                                                                   

misconduct, and for conspiracy to commit this crime.  



                                                                                                                                 

                    Following Adams's indictment, her attorney asked the superior court to  



                                                                                                                     

suppress all evidence stemming from Helgesen's text message to Adams.  In particular,  



                                                              - 2 -                                                          2612
  


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

the defense attorney sought suppression of Adams's reply that she was "on her way", as                                                                                                         



well as the fact that Adams subsequently arrived at the airport and proceeded                                                                                                        to   the  



rendezvous location, and the statements that Adams made when she was contacted by                                                                                                             



the officers.                 



                              Adams's attorney argued that Adams was entitled to the suppression of this                                                                                     

evidence because the officers violated                                                    Helgesen's   rights under                                Miranda v.                  Arizona 1  



when they questioned her at the airport - and that Helgesen's text message to Adams  

                                                                                                                                                                                    



was the tainted fruit of this Miranda violation.  Thus, according to Adams's attorney, all  

                                                                                                                                                                                               



the evidence flowing from that text message should be suppressed.  

                                                                                                                                                        



                              Under federal law, a criminal defendant lacks standing to seek suppression  

                                                                                                                                                                          



of  evidence  obtained  through  a  police  violation  of  someone  else's  constitutional  

                                                                                                                                                                    

rights. 2            But Alaska law recognizes a limited exception to this lack-of-standing rule.  

                                                                                                                                                                                                      



In  Waring v. State, 670 P.2d 357, 363 (Alaska 1983), our supreme court held that even  

                                                                                                                                                                                         



though  criminal defendants  normally  lack  standing to  complain  if  the  police  violate  

                                                                                                                                                                                    



someone else's constitutional rights,  a defendant in Alaska can  assert a violation of  

                                                                                                                                                                                               



another  person's  constitutional  rights  if  the  police  engage  in  a  "gross  or  shocking"  

                                                                                                                                                                             



violation of rights, or if the police deliberately violate another person's rights for the sole  

                                                                                                                                                                                           

purpose of obtaining evidence against the defendant. 3  

                                                                                                                            



        1      384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).                                                                 



        2  

                                                                                                                                                                                            

               See Rakas v. Illinois, 439 U.S. 128, 132-34; 99 S.Ct. 421, 424-25; 58 L.Ed.2d 387  

                  

(1978).  



        3  

                                                                                                                                                                                           

                Waring, 670 P.2d at 363 n.11; Fraiman v. Division of Motor Vehicles , 49 P.3d 241,  

                                                                                                                                                                                                

245 n. 18 (Alaska 2002) (declaring that even though the holding in  Waring was limited to  

                                                                                                                                                                                               

the intentional violation of a co-defendant's rights, a defendant in Alaska has standing to  

                                                                                                                                

assert the intentional violation of any third person's rights).  



                                                                                             - 3 -                                                                                        2612
  


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

                                                                                                                          

                    In Adams's case, the superior court granted Adams's suppression motion  



                                                                                                                               

under the first of these rationales:  The superior court found that  the officers did not  



                                                                                                                        

intentionally violate Helgesen's Miranda  rights, but the court found that the officers'  



                                                                                                          

unintended violation of Helgesen's Miranda rights was "egregious".  



                                                                                                                                

                    The superior court based this finding of egregiousness on the fact that the  



                                                                                                                               

officers continued to engage in conversation with Helgesen after she "clearly stated that  



                                                     

she did not want to talk further".  



                                                                                                                  

                    The court  acknowledged that, after Helgesen said this, the investigators  



                                                                                                                              

"did attempt to shift the focus [of the conversation]" - no  longer  "questioning Ms.  



                                                                                                                               

Helgesen  [about  her  activities]"  but  rather  "seeing if  she  would  be  willing to  text  



                                                                                                                              

Ms. Adams."  The court characterized the investigators' actions as "attempting, at least  



                                                                             

[to] some degree, to honor [Helgesen's] request".  



                                                                                                                               

                    But the court then noted that when the investigators asked Helgesen if she  



                                                                                                                              

would be willing to send the text message to Adams, they told her that she "could help  



                                                                                                                                 

herself by doing so", and that if she decided not to send the text to Adams, "her lack of  



                                                                                                                                  

cooperation would be noted".  The court further noted that, when the officers talked to  



                                                                                                                     

Helgesen about what she should  say  in  her text message to Adams,  the discussion  



                                                                        

returned to Helgesen's "drug mule activities".  



                                                                                                                               

                    Based  on  these  circumstances,  the  superior  court  concluded  that  the  



                                                                                                                                

officers' violation of Helgesen's Miranda rights was "egregious" in the sense that the  



                                                                                                                                

violation "would have been apparent to any reasonable police officer".  And based on  



                                                                                                                                

this conclusion, the superior court ruled that the State was barred from using any of the  



                                                                                                                                

evidence obtained against Adams after the point when Helgesen told the officers that she  



                                                   

wanted to stop talking to them.  



                                                                                                                          

                    The State asked the superior court to reconsider this ruling.  In its motion  



                                                                                                                     

for reconsideration, the State argued that the  Waring category of "gross or shocking"  



                                                               - 4 -                                                          2612
  


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

violations of constitutional rights did not include all violations that would be apparent                                                                                                           



to a reasonable officer.                                    Instead, citing this Court's 1984 decision in                                                                      Giel v. State                   , the   



State argued that                           Waring's phrase "gross or shocking" applied to a more limited set of                                                                                                     



circumstances - circumstances where the police misconduct "shocks the conscience",                                                                                                         



or where it is "of a nature that calls for the judiciary, as a matter of judicial integrity, to                                                                                                                      



disassociate itself from benefits derivable therefrom" - such as situations where the                                                                                                                             



                                                                                                                                                   4  

police resort to unlawful "coercion, violence, or brutality".                                                                                           



                                  Although the superior  court conceded that this Court's decision in  Giel  

                                                                                                                                                                                                               



"[could] be read to support the State's position", the superior court declared that it was  

                                                                                                                                                                                                               



"not convinced" that the State's interpretation of  Waring was correct.  

                                                                                                                                                                                  



                                  The court therefore re-affirmed its earlier ruling that, under Waring, Adams  

                                                                                                                                                                                                          



had standing to assert the violation of Helgesen's Miranda rights so long as that violation  

                                                                                                                                                                                                     



would have been obvious to a reasonable officer.  

                                                                                                                              



                                  The State now appeals the superior court's ruling.  We agree with the State  

                                                                                                                                                                                                              



that the superior court misinterpreted the scope of  Waring.  

                                                                                                                                                      



                                  As we have explained, the superior court declined to reconsider its ruling  

                                                                                                                                                                                                            



because the court was "not convinced" that this Court's decision in Giel was the proper  

                                                                                                                                                                                                          



interpretation of  Waring.  But in Fraiman v. Division of Motor Vehicles, 49 P.3d 241  

                                                                                                                                                                                                                 



(Alaska 2002), the supreme court expressly endorsed our view of Waring.  Citing Giel,  

                                                                                                                                                                                                              



the supreme court declared that the test for vicarious standing under  Waring is whether  

                                                                                                                                                                                                      



the police misconduct "[rose] to the level where it would 'shock the conscience.'" Id.  

                                                                                                                                                                                                                   



at 245 & n. 20.  

                                          



         4       See Giel v. State                       , 681 P.2d 1364, 1367 n. 3 (Alaska App. 1984).                                                                     



                                                                                                        - 5 -                                                                                                   2612
  


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

                                                                                                                                

                    When we apply this legal test to the facts of Adams's case as found by the  



                                                                                                                                

superior court, we conclude that Adams does not have vicarious standing to assert the  



                                                              

violation of Helgesen's Miranda rights.  



                                                                                                                                

                    As the superior court acknowledged, as soon as Helgesen stated that she did  



                                                                                                                            

not wish to answer further questions, the investigators stopped asking questions about  



                                                                                                                            

Helgesen's involvement in drug trafficking.  Instead, they "attempt[ed] to shift the focus  



                                                                                                                                

... [to whether Helgesen] would be willing to text Ms. Adams."  The court found that the  



                                                                                                                                      

investigators' shift in focus was, in fact, an "attempt[] ... to honor [Helgesen's] request".  



                                                                                                                         

                    The superior court rightly criticized the officers because, when the officers  



                                                                                                                         

were trying to decide how to draft the text message that Helgesen would send to Adams,  



                                                                                                                   

they asked Helgesen more questions about her activities as a drug courier.  



                                                                                                                         

                    But under these circumstances, even though the officers may have violated  



                                                                                                                                

Helgesen's Miranda rights, the officers' conduct does not "shock the conscience" - nor  



                                                                                                                             

does this conduct rise to the level where, as a matter of judicial integrity, the courts must  



                                                                                                                             

disassociate themselves from the text message that Helgesen sent to Adams, and from  



                                                                                                                      

the evidence that was obtained when Adams responded to that text message.  



                                                                                                                                

                    For these reasons, we REVERSE the decision of the superior court, and we  



                                                             

reinstate the indictment against Adams.  



                                                               - 6 -                                                          2612
  

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