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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.
THE SUPREME COURT OF THE STATE OF ALASKA
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
house.
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
appeals.
III. STANDARD OF REVIEW
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
conclusion."9
IV. DISCUSSION
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
protections.17
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.
V. CONCLUSION
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
(1981).
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
(1967)).
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
Waring).
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"
standard).
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
innocence.").
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).
