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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fraiman v. State (6/14/2002) sp-5580

Fraiman v. State (6/14/2002) sp-5580

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.


DANIEL FRAIMAN,               )
                              )    Supreme Court No. S-10026
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3HO-99-100 CI
STATE OF ALASKA,              )    O P I N I O N
DEPARTMENT OF            )
ADMINISTRATION, DIVISION )    [No. 5580 - June 14, 2002]
OF MOTOR VEHICLES,            )
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Jonathan H. Link, Judge.

          Appearances:   Max D. Garner, Birch,  Horton,
          Bittner  &  Cherot, Anchorage, for Appellant.
          Timothy   W.   Terrell,  Assistant   Attorney
          General,  Anchorage, and  Bruce  M.  Botelho,
          Attorney General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          FABE, Chief Justice.


          The  Division  of Motor Vehicles (DMV) administratively

suspended Daniel Fraiman's driver's license for refusal to take a

chemical  breath test following Fraiman's arrest for  eluding  an

officer.   Because Fraiman was arrested while in the cabin  of  a

friend,  he  attempted to raise a defense  based  on  an  alleged

Fourth  Amendment violation.  We agree with the  hearing  officer

and  the  superior  court that Fraiman did not have  standing  to

raise  his Fourth Amendment concerns, and we consequently  affirm

the decision to suspend his license.


          Just  after  midnight on May 20, 1999, Daniel  Fraiman,

age  eighteen,  was  driving west on  East  End  Road  in  Homer.

Driving in the other direction, Alaska State Trooper David  Tracy

noticed  that  the taillights on Fraiman's red Subaru  were  out.

Trooper Tracy turned on his overhead lights, but Fraiman did  not

pull  over.  Trooper Tracy followed Fraiman to the house of Kathy

Morton  on Shelby Kay Street.  Trooper Tracy knocked on the  door

of  the  house, and asked Morton if she knew the identity of  the

driver  of the red Subaru.  Morton replied that she did  not  but

that it might be a friend of her son; she then went back into the


          Trooper Tracy called in the license plate on the Subaru

and learned that it was registered to Douglas Fraiman, the father

of  Daniel  Fraiman.   Upon receiving this  information,  Trooper

Tracy asked Morton if he could come inside her house to look  for

Douglas Fraiman.  Morton refused.  When Trooper Tracy then stated

his  plan  to seek a search warrant, Morton allowed him to  enter

the  house.   The only other person Trooper Tracy  found  in  the

house  was  a  friend of Morton.  Because Morton and  the  friend

appeared  to  have been recently awakened by his  visit,  Trooper

Tracy ruled them out as drivers of the red Subaru.  In his search

of the house, Trooper Tracy noted that there did not appear to be

a  place  where Morton's son stayed.  Trooper Tracy asked  Morton

about this, and she replied that her son and daughter slept in  a

cabin  in back of the house.  Trooper Tracy asked Morton to  lead

him to the cabin and she agreed.

          Morton  knocked loudly on the cabin door and  announced

that  a  state trooper was looking for the driver of  the  Subaru

parked  in  the driveway.  After a brief delay, Morton's  twenty-

year-old  daughter answered the door and informed  Trooper  Tracy

that her brother and his friend were in the loft, which could  be

reached via ladder through a trap door.  Kathy Morton knocked  on

the  trap  door  and, after the trap door opened, asked  for  the

driver  of  the  Subaru to come out.  When this did  not  happen,

Trooper Tracy climbed into the loft and discovered Daniel Fraiman

crouched in a corner.  Although Trooper Tracy did not have  Kathy

Morton's  express  permission to enter the  cabin,  she  did  not

object to his entry.

          Trooper  Tracy arrested Daniel Fraiman for  eluding  an

officer.1   After  taking  him to the squad  car,  Trooper  Tracy

noticed  that  Fraiman had an odor of alcohol on his  breath  and

that  his  speech  was slurred.  Trooper Tracy asked  Fraiman  to

perform   a   variety  of  field  sobriety  tests,  including   a

preliminary  breath test,2 at which point the trooper  determined

that  Fraiman was under the influence and took him to  the  Homer

jail.  Once there, Fraiman refused to submit to a chemical breath

test,  causing Trooper Tracy to revoke his driver's license under

Alaska's implied consent law.3

          Fraiman requested and received a review hearing  before

the  Division of Motor Vehicles.  The hearing took place on  June

29,   1999   before  hearing  officer  Rebecca  Janik.    Fraiman

challenged  the  license suspension on the grounds  that  Trooper

Tracy lacked probable cause to make an arrest and that the arrest

occurred as the result of an illegal warrantless search.  Fraiman

requested  that his refusal to take the chemical breath  test  be

suppressed,  but  Janik  stated that she did  not  think  Trooper

Tracy's  entry  into  the  cabin was  within  the  scope  of  the

administrative hearing.  Janik further stated, though, that  even

          if the issue was within the scope of the hearing, it was her

belief  that Fraiman was not an "invited guest" in the cabin  and

thus  lacked  standing  to raise his Fourth  Amendment  argument.

Janik  also  found that Trooper Tracy had reasonable  grounds  to

arrest Fraiman for driving a vehicle while intoxicated.

          Fraiman   appealed  to  the  superior  court,   arguing

primarily  that  the  hearing officer erred in  finding  that  AS

28.15.166(g) bars motorists from seeking suppression of  evidence

in  administrative hearings.  The superior court  did  not  reach

this  argument, affirming the hearing officer on the ground  that

Fraiman  lacked  standing to challenge Trooper Tracy's  allegedly

illegal  entry into the cabin.  The superior court further  found

that Trooper Tracy had probable cause to arrest Fraiman both  for

eluding  an  officer and for driving while intoxicated.   Fraiman



          Courts  are  to  review administrative  revocations  of

drivers'  licenses  for  driving  while  intoxicated  under   the

standards  set  forth in AS 28.15.166(m), which  provides:   "The

court  may  reverse the department's determination if  the  court

finds  that  the department misinterpreted the law, acted  in  an

arbitrary   and   capricious  manner,  or  made  a  determination

unsupported  by the evidence in the record."4  The  present  case

involves questions of both law and fact.

          The   standard  of  review  for  issues  of   statutory

interpretation  is  the  "substitution of judgment"  test,  under

which we conduct an independent review.5  This standard of review

is  applied  to  agency  decisions "where the  questions  of  law

presented   do  not  involve  agency  expertise."6   Under   this

standard,  "a  reviewing court [can] substitute its own  judgment

for  that  of the agency's, even if the agency's decision  had  a

reasonable   basis  in  law."7   In  such  cases,   we   exercise

independent  review  of the superior court's  decision,  "as  the

superior court [acts] as an intermediate court of appeal."8   For

          determinations of fact by an administrative agency, we apply the

"substantial  evidence" test, under which  "the  reviewing  court

determines whether the findings are supported by such evidence as

a   reasonable  mind  might  accept  as  adequate  to  support  a



          Fraiman  argues  that  the hearing officer  erroneously

interpreted  AS  28.15.166(g) to bar his legal challenge  to  the

admissibility  of  evidence  that  he  maintains   was   obtained

illegally.  Fraiman contends that precedent exists for  expanding

the  scope  of  an  administrative license  hearing  beyond  that

expressly  permitted by AS 28.15.166(g).10    Fraiman  relies  on

Javed  v. State, Department of Public Safety,11 in which we  held

that   due  process  required  a  determination  at  the  license

revocation  hearing  of whether or not the accused  was  actually

driving  the  car, even though this issue falls  outside  of  the

apparent scope of AS 28.15.166(g).  Although the hearing  officer

disagreed  with Fraiman's analysis on this point  and  found  the

issue of whether Trooper Tracy conducted an illegal search to  be

"beyond the scope of this hearing," she made an alternate finding

that  Fraiman  "[did]  not have standing to  raise  an  issue  of

illegal  search of someone else's home."  Because hearing officer

Janik made findings on Fraiman's Fourth Amendment claims, despite

believing them to be beyond the scope of the hearing, we need not

resolve  the  question of whether claims of  illegal  search  and

seizure are appropriately raised at administrative hearings.

          Both   the  hearing  officer  and  the  superior  court

concluded  that  Fraiman did not have standing  to  sue  for  the

allegedly illegal search of someone else's home.  We agree.   The

United  States Supreme Court has established that "absent consent

or  exigent circumstances" police cannot search for a fugitive in

the  house  of a third party without a warrant based on  evidence

that  the  fugitive is expected to be in the house of  the  third

party.12   More  specifically touching on the present  case,  the

          Supreme Court in Minnesota v. Olson ruled that overnight guests

have  a  legitimate expectation of privacy.13   Consequently,  an

overnight  guest  can  invoke  the  protections  of  the   Fourth

Amendment against a warrantless arrest while staying in the house

of  a friend.14  Minnesota v. Carter, however, limited the Fourth

Amendment protection based on a reasonable expectation of privacy

to those who possess a "degree of acceptance into the household."15

          In concluding that Fraiman was not an invited overnight

guest,  the hearing officer relied on the facts presented at  the

hearing,  especially that the car that Fraiman  was  driving  was

followed  to the residence and that Fraiman was discovered  fully

clothed while his friend and the friend's sister were in sleeping

attire.  Indeed, Janik concluded that Fraiman's conduct "was of a

person  hiding  from  the  police in someone  else's  home."  The

finding  that Fraiman was not an overnight guest thus places  him

within  the  more limited framework of Minnesota  v.  Carter,  as

opposed to that of Minnesota v. Olson.  Because Fraiman could not

have had a "legitimate expectation of privacy" in the cabin,16 he

does  not  have  standing to assert third-party Fourth  Amendment


          Alaska  law  confirms this conclusion.   In  Waring  v.

State,  we  held  that  standing to  assert  a  Fourth  Amendment

violation  of  a  co-defendant's rights  exists  only  where  the

defendant can show that the police officer "obtained the evidence

as  a  result  of  gross  or  shocking  misconduct,  or  .  .   .

deliberately  violated  a co-defendant's rights."18   Neither  of

these  situations  exist in the present case.   As  the  superior

court noted, Fraiman did not contend that Trooper Tracy's actions

constituted  "gross or shocking misconduct." The  superior  court

further  held that Trooper Tracy's actions were not "a deliberate

violation  of  the  Mortons' right to be free  from  unreasonable

searches of their cabin."  We agree with the superior court  that

Fraiman  did  not  fall  into either of the  standing  exceptions

listed in Waring.

          The "deliberate violation" discussed in Waring is to be

viewed in terms of the person whose rights are directly violated,

not the person asserting the exclusionary rule.19  The record does

not  suggest  that Trooper Tracy's conduct was gross or  shocking

toward  the Mortons.  Trooper Tracy's conduct was, on the  whole,

routine  for an officer pursuing a suspect.  Despite the possible

objection to subtle pressure on Kathy Morton to allow a search of

her  house,  Trooper Tracy's conduct did not rise  to  the  level

where it would "shock the conscience."20

          Neither  did  Trooper  Tracy deliberately  violate  the

Mortons'  rights.   Trooper  Tracy had obtained  permission  from

Kathy Morton to search her residence.  This permission reasonably

extended  to  the  cabin where other family members  slept,  even

though the cabin was not attached to the house:  Kathy Morton led

Trooper  Tracy  to the cabin and assisted in the search  for  the

driver of the red Subaru.21  In short, there is nothing to suggest

that  Trooper  Tracy deliberately violated the  Mortons'  rights.

Therefore,  we agree with hearing officer Janik and the  superior

court that Fraiman did not have standing to assert a violation of

the Mortons' Fourth Amendment rights.

          Fraiman  also  argues that Trooper Tracy did  not  have

probable  cause  to arrest him for eluding an  officer.   Fraiman

claims  that  the  evidence  was insufficient  to  show  that  he

"knowingly" failed to stop once signaled to do so, primarily  due

to the distance between himself and Trooper Tracy.22  The test for

probable cause is whether a reasonable person would believe  that

an  offense had been committed by the defendant.23  The issue  of

probable cause was addressed by hearing officer Janik, who  found

Fraiman's claim that he did not know he was being pursued to lack

credibility.24   The  finding that Tracy had  probable  cause  to

arrest  Fraiman  for  eluding him was affirmed  by  the  superior

court.  Under the applicable "substantial evidence" test,25 it is

clear   that  there  was  sufficient  evidence  to  support   the

conclusion  that  Trooper  Tracy had  probable  cause  to  arrest

          Fraiman for eluding him.  We concur with this conclusion and

therefore  affirm  the findings of the hearing  officer  and  the

superior court.


          Because  Trooper  Tracy had probable  cause  to  arrest

Daniel  Fraiman  and because Fraiman did not  have  a  reasonable

expectation  of privacy in the Mortons' cabin, Fraiman  does  not

have  standing to raise a Fourth Amendment claim at his  driver's

license  revocation hearing.  We AFFIRM the decisions of  hearing

officer Janik and the superior court.

     1     AS  28.35.182(b)  ("A person commits  the  offense  of
failure to stop at the direction of a peace officer in the second
degree  if  the person, while driving or operating a  vehicle  or
motor  vehicle  or  while  operating an aircraft  or  watercraft,
knowingly  fails to stop as soon as practical and in a reasonably
safe manner under the circumstances when requested or signaled to
do so by a peace officer.").

     2     This  test  revealed that Fraiman had a blood  alcohol
level of .086.

     3    See AS 28.15.165; AS 28.35.031.

     4     Saltz  v. State, Dep't of Pub. Safety, 942 P.2d  1151,
1152  n.2  (Alaska 1997) (citing Miller v. State, Dep't  of  Pub.
Safety, 761 P.2d 117, 118 n.2 (Alaska 1988)).

     5     Wik v. State, Dep't of Pub. Safety, 786 P.2d 384, 385-
86 (Alaska 1990).

     6     Earth  Resources  Co. of Alaska  v.  State,  Dep't  of
Revenue, 665 P.2d 960, 965 (Alaska 1983).

     7    Id.

     8     Haynes  v. State, Dep't of Pub. Safety, 865 P.2d  753,
754 (Alaska 1993).

     9     Borrego v. State, Dep't of Pub. Safety, 815 P.2d  360,
363 (Alaska 1991).

     10     That  statute limits the issues at the administrative
hearing to (1) whether the law enforcement officer had reasonable
grounds  to believe that the person was operating a motor vehicle
that  was  involved  in  an  accident causing  death  or  serious
physical injury or was operating a vehicle while intoxicated, and
(2)  whether  the  person either failed  or  refused  to  take  a
chemical breath test.

     11    921 P.2d 620, 624 (Alaska 1996).

     12     Steagald  v. United States, 451 U.S.  204,  213,  216

     13     495  U.S.  91,  99  (1990).  The  requirement  of  an
expectation  of  privacy comes from Rakas v. Illinois,  439  U.S.
128,  143 (1978) ("[The] capacity to claim the protection of  the
Fourth Amendment depends not upon a property right in the invaded
place  but  upon whether the person who claims the protection  of
the  Amendment  has a legitimate expectation of  privacy  in  the
invaded place.") (citing Katz v. United States, 389 U.S. 347, 353

     14     Olson, 495 U.S. at 99-100.  The state court in  Olson
had   found  an  absence  of  exigent  circumstances  that  might
otherwise have justified arrest.  Id. at 100.

     15     525 U.S. 83, 90 (1998) (holding that a person who was
in  an apartment for the purpose of packaging cocaine, which  the
Court  likened  to  a  business transaction,  could  not  have  a
legitimate expectation of privacy).

     16    Id. at 91.

     17    Id.

     18     670 P.2d 357, 363 (Alaska 1983).  The court in Waring
stated  that it "express[es] no opinion as to whether a defendant
can  assert  the  violation  of the fourth  amendment  rights  of
persons  other than co-defendants or co-suspects."   Id.  at  363
n.11.   Given the subsequent United States Supreme Court opinions
in  Olson and Carter, though, this question appears to have  been
answered.   There are also Alaska cases suggesting that  the  co-
defendant  standing established in Waring applies  to  any  third
party.  See Samson v. State, 919 P.2d 171, 174 (Alaska App. 1996)
(contemplating,  but rejecting, the possibility of  standing  for
search of one's utility records); State v. J.R.N., 861 P.2d  578,
580  n.6  (Alaska 1993) (holding that a minor cannot  assert  the
standing  rights  of  a  parent absent the exceptions  listed  in

     19     See  Bright v. State, 826 P.2d 765, 774 (Alaska  App.
1992);  Christianson v. State, 734 P.2d 1027, 1029  (Alaska  App.
1987); Giel v. State, 681 P.2d 1364, 1367 n.3 (Alaska App. 1984).

     20    See Giel, 681 P.2d at 1367 n.3 (commenting that Waring
does  not  specifically establish criteria for gross or  shocking
behavior  but that the court did invoke a "shocks the conscience"

     21     See Care v. United States, 231 F.2d 22, 25 (10th Cir.
1956)  (holding  that  Fourth  Amendment  protections  "apply  to
buildings  within the curtilage [of a farm residence]  which  may
include  a  garage,  a barn, a smokehouse,  a  chicken  house  or
similar  property.   Whether the place  searched  is  within  the
curtilage  is  to  be  determined from the facts,  including  its
proximity or annexation to the dwelling, its inclusion within the
general  enclosure  surrounding the dwelling,  and  its  use  and
enjoyment as an adjunct to the domestic economy of the family.");
Stuart  v. State, 698 P.2d 1218, 1221 (Alaska App. 1985) (holding
that  metal sheds on a property were within the curtilage of  the
home);  Ingram  v.  State, 703 P.2d 415, 427 (Alaska  App.  1985)
(holding that a storage shed connected to a four-plex was  within
the curtilage of the four-plex).

     22    AS 28. 35.182(b) (emphasis added).

     23     State  v.  Grier, 791 P.2d 627, 632 n.3 (Alaska  App.
1990)  ("Where a person of reasonable caution would be  justified
in  the  belief  that  an  offense has  been  committed  and  the
defendant committed it, probable cause is established even though
the  facts  known  to the officer could also be  reconciled  with

     24    Janik did at one point state that the issue of probable
cause  was  "not  an  issue in this hearing,"  but  as  with  the
standing issue, the factual findings provided were sufficient  to
reach the conclusion that probable cause existed.

     25     Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360,
363 (Alaska 1991).