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

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


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

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                               

             errors to the attention of the Clerk of the Appellate Courts:    

                                                   303 K Street, Anchorage, Alaska  99501  

                                                                    Fax:  (907) 264-0878  

                                                        E-mail:  corrections@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



                                                                                                       Court of Appeals No. A-12377  


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


                                                                                                                    O  P  I  N  I  O  N  



                                                      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

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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).                                                                 



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





                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

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                    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                                                                                                                             


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

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                    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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