Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Darin John Cleveland v State of Alaska (7/2/2020) ap-2669

Darin John Cleveland v State of Alaska (7/2/2020) ap-2669

                                                                                      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:  

                                                        303 K Street, Anchorage, Alaska 99501  

                                                                         Fax:  (907) 264-0878  

                                                           E-mail:  corrections @ akcourts.us    



                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DARIN JOHN CLEVELAND,  

                                                                                                              Court of Appeals No. A-12932  

                                                          Appellant,                                      Trial Court No. 3AN-14-09982 CR  



                                            v.  

                                                                                                                                O P I N I O N  

STATE OF ALASKA,  



                                                          Appellee.                                                 No. 2669 - July 2, 2020  



                             Appeal  from  the  Superior  Court,  Third  Judicial   District,  

                                                                                                                                             

                             Anchorage, Michael D. Corey, Judge.  



                             Appearances:                      Emily  Jura,  Assistant  Public  Defender,  and  

                                                                                                                

                             Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                

                             Hazel C. Blum, Assistant Attorney General, Office of Criminal  

                                                                                                                                              

                             Appeals, Anchorage, and Kevin G. Clarkson, Attorney General,  

                                                                                                                                               

                             Juneau, for the Appellee.  



                             Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                               

                             Judges.  



                             Judge ALLARD.  



                             Darin John Cleveland was convicted of second-degree sexual assault after                                                                              



                                                                                                                                                                                           1  

he vaginally penetrated E.C. while she was passed out on her friend's living room floor.                                                                                                      



        1      AS 11.41.420(a)(3).  


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

As part of the investigation, police obtained a Glass warrant to record a conversation  

                                                                                                                 



between  E.C.  and  Cleveland,  but  the  Glass  warrant  inadvertently  stated  that  the  

                                                                                                                               



conversation would take place between E.C. and "Darren T. Cleveland," a real and  

                                                                                                                              



different person. The warrant was executed, and the conversation between E.C. and the  

                                                                                                                                



defendant, Darin John Cleveland, was recorded.   During the recorded conversation,  

                                                                                                               



Cleveland made inculpatory statements and apologized for his conduct.  

                                                                                                 



                    Prior to trial, Cleveland moved to suppress the  Glass recording on the  

                                                                                                                               



ground that it named "Darren T. Cleveland," rather than "Darin John Cleveland."  The  

                                                                                                                              



superior court denied Cleveland's motion to suppress.   Cleveland now appeals that  

                                                                                                                              



ruling.  

            



                    For the reasons we explain in this opinion, we agree with the superior court  

                                                                                                                             



that  the  fact  that  the  Glass  warrant  named  "Darren  T.  Cleveland"  did  not  require  

                                                                                                                         



suppression of the Glass recording.   We therefore affirm Cleveland's conviction for  

                                                                                                                               



second-degree sexual assault.  

                                   



          Background facts  

                               



                    On October 31, 2014, E.C. was drinking with a friend at an Anchorage bar  

                                                                                                                                



when she ran into another friend and her friend's boyfriend, Darin Cleveland.  E.C. had  

                                                                                                                               



previously met Cleveland, and the two were distant cousins. The group of four hung out  

                                                                                                                                



for the remainder of the night, eventually ending the evening at one of their residences.  

                                                                                                                                     



E.C. passed out, and when she awoke, Cleveland was behind her, penetrating her vagina  

                                                                                                                          



with his penis.  

                         



                    Shortly  after  he  left  the  house,  Cleveland  called  E.C.  on  the  phone,  

                                                                                                                         



apologizing for his conduct and asking her "not to call cops and press charges on him."  

                                                                                                                                     



After speaking with Cleveland, E.C. called 911 and reported the sexual assault. E.C. met  

                                                                                                                               



                                                              - 2 -                                                          2669
  


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

with a police officer, Detective Jade Baker, and provided Cleveland's name and phone                                                                                                                                                                                                                                            



number, but she did not spell out his name.                                                                                                         



                                                     Detective Baker applied for a                                                                                  Glass  warrant to record a future conversation                                                                                    



between E.C. and Cleveland.                                                                                              In preparing the warrant application, Detective Baker                                                                                                                                                  



 searched   two   state   databases  for   what   he   believed   to   be   the   proper   spelling   of  



Cleveland's name:                                                             "Darren Cleveland."                                                                       Detective Baker's search returned a single                                                                                                         



result:    "Darren T. Cleveland."                                                                                                  Believing this to be the person E.C. had described,                                                                                                                         



Detective Baker named Darren T. Cleveland in the                                                                                                                                                         Glass  warrant.   Thus, on its face, the                                                                                            



warrant stated that, in November 2014, Darren T. Cleveland was expected to make                                                                                                                                                                                                                                                   



 statements about the sexual assault to E.C. As part of the warrant application, Detective                                                                                                                                                                                                                         



Baker included an affidavit summarizing what E.C. had told him about the assault,                                                                                                                                                                                                                                         



including that Cleveland called E.C. after the assault to apologize, that he told her not to                                                                                                                                                                                                                                                     



call the police, and that he asked "if they could meet somewhere and talk about it."                                                                                                                                                                                                                                          



                                                     A magistrate granted the                                                                              Glass  warrant on November 1, 2014, and, that                                                                                                                                 



 same day, E.C. used her cell phone to contact Cleveland -                                                                                                                                                                                   i.e., Darin John Cleveland,                                      



the defendant in this case.                                                                                 The phone call was recorded, and Cleveland again made                                                                                                                                                                 



inculpatory statements and apologized for his conduct.                                                                                                                                  



                                                     Prior to trial, Cleveland moved to suppress the                                                                                                                                                     Glass recording on the                                                            



ground that the warrant named a different person, Darren T. Cleveland.                                                                                                                                                                                                                            The superior   



                                                                                                                                                                                                                                  2  

court, relying on                                                 Johnson v. State                                                  , rejected this argument.                                                                                                                                                     

                                                                                                                                                                                                                                         In Johnson, a case involving  



                                                                                                                                                                                                                                                                                                                                        

a premises search of a cabin that was described in the warrant as green when it was  



                                                                                                                                                                                                                                                               

actually red, the Alaska Supreme Court held that "if there is no reasonable probability  



                                                                                                                                                                                                                                                                                          3  

                                                                                                                                                                                                                                                                                                                                          

that the wrong premises will be searched, the description is sufficient."                                                                                                                                                                                                                         Applying that  



             2            Johnson v. State , 617 P.2d 1117 (Alaska 1980).  



              3           Id. at 1125.  



                                                                                                                                                                   - 3 -                                                                                                                                                                2669
  


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

standard to the             Glass  warrant in Cleveland's case, the superior court determined that                                                



there was no reasonable probability that the wrong conversation would be recorded.                                                                   It   



therefore refused to suppress the                         Glass  recording.   



                        Cleveland now appeals.      



            The superior court did not err in refusing to suppress the Glass recording  

                                                                                                                            

                                                                                                                            



                        In State v. Glass, the Alaska Supreme Court held that police must obtain  

                                                                                                                                              



a warrant before secretly recording a conversation between a police informant and the  

                                                                                                                                                   

subject  of  a  criminal  investigation.4  

                                                                                                                                           

                                                                       Under  Article  I,  Section  14  of  the  Alaska  



                                                                                                                                                   

Constitution, a warrant must "particularly describ[e] the place to be searched, and the  



                                                                                                                                                     

persons or things to be seized."  The basic purpose of the particularity requirement is to  



                                                                                                        5  

                                                                                                                                                    

                                                                                                             The  required  degree  of  

"prevent  generalized  or  overbroad  searches  or  seizures." 



                                                                                                                                            

particularity is difficult to state with precision, as it "must be determined by the totality  



                                                             6  

                                                                                                                                                  

                                                                In the context of Glass warrants, we have held that  

of the circumstances in each case." 



                                                                                                                                                   

this goal is usually accomplished if the warrant "state[s] with reasonable specificity the  



                                                                                                                                           

time and subject matter of the anticipated conversation, as well as the person or persons  



                                                                        7  

                                                            

with whom the conversation will occur." 



                                                                                                                                    

                        Clevelandargues that the Glass warrant inhis caseviolatedthe particularity  



                                                                                                                                                 

requirement.  Cleveland does not claim, however, that the Glass warrant failed to state  



                                                                                                                                 

"with reasonable specificity the time and subject matter of the anticipated conversation,  



                                                                                                                                              

as well as the person or persons" involved.  Rather, Cleveland argues that the Glass  



      4     State v. Glass, 583 P.2d 872 (Alaska 1978).  



      5     Jones v. State , 646 P.2d 243, 248 (Alaska App. 1982).  



      6     Namen v. State, 665 P.2d 557, 560 (Alaska App. 1983).  



      7     Jones , 646 P.2d at 248.  



                                                                        - 4 -                                                                   2669
  


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

warrant could not be executed against him because it named a different "target" -                                                                                                                                                                                      



Darren T. Cleveland.                                                 



                                          In   making   this   argument,   Cleveland   relies   on   a   line   of   cases   holding,  



according to Cleveland, that "where a search warrant 'incorrectly' lists the place to be                                                                                  



searched - and where no other 'correct' description of the place to be searched is                                                                                                                                                                                        



contained in the warrant - the executing officer cannot search a different place simply                                                                                                                                                                    



because it was their subjectively intended target."                                                                                                            



                                          We agree with Cleveland that this is an accurate statement of prevailing                                                                                                                              



authority.   In  People v. Royse                                                            , for example, the Colorado Supreme Court, writing about                                                                                                           



premises searches, held:                                     



                                          To describe the place to be searched with particularity as is                                                                                                                          

                                          required, certainly means that if the place has an established                                                                                           

                                          street address, and this                                                     is  the only                          method of description                

                                          utilized, the                        correct address, and only the                                                            correct address, will                              

                                          suffice.     In   our   view,   this   is   a   self-evident   constitutional  

                                          requirement   in   those   cases   where   search   warrants   utilize  

                                          street numbers and street names as a means of describing the                                                                                                                       

                                          place to be searched.                                             [8]  



                                                                                                                                                                                                                                                                    

                                          We  disagree,  however,  with  Cleveland's  assertion  that  this  is  the  



                                                                                                                                                                                                                                                        

appropriate rule to apply in his case. Our disagreement stems from Cleveland's implicit  



                                                                                                                                                                                                                                                                        

assertion that the target of a  Glass warrant -  i.e., the person, place, or thing to be  



                                                                                                                                                                                                                                                                  

searched or seized - is a person.  If this assertion were correct, we would agree with  



                                                                                                                                                                                                                                                                        

Cleveland that the Glass warrant itself, which only contained an incorrect name and no  



                                                                                                                                                                                                                                                   

other description of Cleveland, could not be executed against the correct (i.e., intended)  



                                                                                                                                                                                                                                                                         

Cleveland, for the same reason that a warrant for a premises search that only contains an  



                                                                                                                                                                                                                                                       

incorrect addressand no other description cannot be executed against the correct address.  



           8         People v. Royse, 477 P.2d 380, 382 (Colo. 1970) (en banc).  



                                                                                                                                 -  5 -                                                                                                                            2669
  


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

                           But Cleveland's implicit assertion that the target of a                                                        Glass  warrant is a                 



person is incorrect. As                       we have previously explained, a  Glass  warrant does not authorize                                              



the search of a place or person, but rather is "most accurately . . . described as a warrant                                                                    



                                                                                                          9  

only for the seizure of                       conversation  from a person."                                  



                           Because Cleveland is incorrect when he asserts that the target of a Glass  

                                                                                                                                                                    



warrant is a person, he is also incorrect when he asserts that the warrant in his case only  

                                                                                                                                                                       



contained an incorrect name and no other description of the target.  Rather, the face of  

                                                                                      



the warrant contained three other important pieces of information describing its target:  

                                                                                                                                                                   



(1) the anticipated conversation would occur in November 2014; (2) the other participant  

                                                                                                                                                           



in the conversation would be E.C.; and (3) the subject matter of the conversation would  

                                                                                                                                                                    

be sexual assault.10  

                     



                                                                                                                                                                          

                           In light of this additional description of the target of the Glass warrant, the  



                                                                                                                                                              

correct test, as the superior court recognized below, comes from the Alaska Supreme  



                                                                         11  

                                                                                                                                                             

                                                                              In Johnson, the search warrant at issue described  

Court's opinion in Johnson v. State . 



                                                                                                                                                                     

the place to be searched as being situated at "mile 4 Douglas, being a green cabin  



                                                                                                   12  

                                                                              

approximately on the right side of the highway."                                                                                                                        

                                                                                                        As it turned out, the cabin was red,  



                                                                                                                                              13  

                                                                                                                                                                     

not green, and was located a short distance from the 4 mile marker.                                                                                 Despite these  



       9     Jones , 646 P.2d at 247 (emphasis added).  



       10     As noted above, the warrant application also included an affidavit from Detective                                                              



Baker describing what E.C. told him about the assault.                                                          The parties dispute whether this  

information can be considered in evaluating whether the warrant was sufficiently particular.   

Because we conclude that the warrant was sufficiently particular on its face, we need not                                                                      

resolve that issue.  



       11    Johnson v. State , 617 P.2d 1117 (Alaska 1980).  



       12    Id. at 1125.  



       13    Id.  



                                                                                   -  6 -                                                                              2669
  


----------------------- Page 7-----------------------

inaccuracies, the supreme court upheld the search, noting that "[t]echnical accuracy is                      



not   required"   and   that  the   particularity   requirement   is   typically   satisfied   "if   the  



description is such that the officer with the search warrant can, with reasonable effort,                               



                                                                            14  

                                                                                                                                                

ascertain and identify the place intended."                                      The supreme court concluded that the  



                                                                                                                                                   15  

                                                                                                                                           

description was sufficient, especially given that there were no green cabins in the area. 



                                                                                                                                              

                       We  reach  the  same  conclusion  in  this  case.                                 The  warrant  in  this  case  



                                                                                                                                                  

described an anticipated conversation occurring in November 2014 between Darren T.  



                                                                                                                                                

Cleveland and E.C. that would reveal information about a sexual assault.  Although this  



                                                                                                                                               

description inadvertently contained an incorrect spelling of Cleveland's first name and  



                                                                                                                                   

an incorrect middle initial, we agree with the superior court that there was no reasonable  



                                                                                                                                          

probability the wrong conversation would be recorded.  Like the lack of any nearby  



                                                                                                                                           

green cabins that could have accidentally been searched in Johnson, there was no reason  



                                                                                                                                            

to believe E.C. was likely to have a conversation with Darren T. Cleveland that could  



                                         

have accidentally been recorded.  



                                                                                                                                            

                       We note,  however,  that in  issuing  its ruling  below,  the superior court  



                                                                                                                                                       

suggested  that  "[t]he  name  on  the  warrant  had  no  bearing  on  who  [E.C.]  called."  



                                                                                                                                                   

Echoing this statement, the State contends on appeal that "[u]nder the circumstances in  



                                                                                                                                                 

this case, in which E.C. personally knew  the target of the conversation she would be  



                                                                                                                                                       

staging,  it  was  superfluous  to  even  provide  Cleveland's  name  in  the  first  place."  



                                                                                                                                                

                       These assertions are questionable, and they prompt us to acknowledge two  



                                                                                                                                                

significant limitations on our holding.  First, there was no dispute in this case that the  



                                                                                                                                             

Glass  warrant  was  sufficiently  particular  on  its  face.                                        As  noted  above,  we  have  



                                                                                                                                             

previously  held  that  a  Glass  warrant  is  sufficiently  particular  if  it  "state[s]  with  



      14   Id. (quoting Steele v. United States, 267 U.S. 498, 503 (1925)).  



      15   Id.  



                                                                      -  7 -                                                                 2669
  


----------------------- Page 8-----------------------

reasonable specificity the time and subject matter of the anticipated conversation, as well                                                                      



                                                                                                                             16  

as the person or persons with whom the conversation will occur."                                                                                             

                                                                                                                                 Although we cannot  



                                                                                                   

anticipate every possible case, it is unlikely that a Glass warrant would be sufficiently  



particular on its face if it completely failed to name (or otherwise describe) the person  



                                                                                                                                                                   

with whom the conversation was expected to occur.  We therefore disagree with the  



                                                                                                                                                                           

State's assertion that it was "superfluous" to provide Cleveland's name on the warrant.  



                                                                                                                                                 

                          Second, the  Glass warrant at issue here contained a name that closely  



                                                                                                                                                         

matched the name of the intended subject.  Again, we cannot anticipate every possible  



                                                                                                                                                              

case, but it stands to reason that if the warrant had contained an entirely different name,  



                                                                                                                                                        

the  likelihood  that  the  wrong  conversation  would  be  recorded  would  increase  



                            

substantially.  



                                                                                                                                                                     

                          With  these  limitations  in  mind,  the  judgment  of  the  superior  court  is  



AFFIRMED.  



       16    Jones v. State , 646 P.2d 243, 248 (Alaska App. 1982).  



                                                                                -  8 -                                                                          2669
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC