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

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


         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 @



                                                                  Court of Appeals No. A-12077  

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


                                                                           O  P  I  N  I  O  N  


                                   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                                          


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),  


                                                                     - 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  


                                     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  



                      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                                                                


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  



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  



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.  


      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.  



            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.  


                                                                        -  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.  



                    The judgment of the superior court is AFFIRMED.  


                                                             -  9 -                                                       2548

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