IN THE SUPERIOR COURT FOR THE STATE OF ALASKA



THIRD JUDICIAL DISTRICT AT ANCHORAGE





STATE OF ALASKA, )

)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxxxxxxxx, )

)

Defendant. )

___________________________________) Case No.



MOTION TO SUPPRESS THE "Glass"

WARRANT DUE TO THE LACK OF PROBABLE CAUSE

AND EXCLUDE THE TAINTED FRUIT



VRA CERTIFICATION

I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12.61.140 or (2) a residence or business address or telephone number of a victim of or witness to any offense unless it is an address used to identify the place of the crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court.

On May 3, 1996, the State requested and obtained a Glass warrant to be used in an attempt to engage Mrs. xxxxxx in a recorded conversation where it was hoped she would admit to sexual misconduct involving a minor. The Glass warrant was obtained based on the affidavit of Richard M. Mills. See Exhibit A, Affidavit of Richard M. Mills. The discussion below elaborates on the proof necessary to obtain a Glass warrant and illustrates the warrant should be suppressed for a lack of probable cause, along with the fruits of the warrant. (1)

DISCUSSION

The Alaska and Federal Constitutions require that a search warrant be issued only after a showing of probable cause. Keller v. State, 543 P.2d 1211, 1215 (Alaska 1975). This legal requirement is important as it prevents the police from "hasty, ill-advised, or unreasonable actions in `the often competitive enterprise if ferreting out crime.'" Keller, 543 P.2d at 1219 (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). The law allows police to interfere with an individual's right to be free from search and seizure only when the infringement is deemed reasonable. Id. A warrant can only be issued when "probable cause" is shown, based on reliable information of sufficient detail, that criminal activity or evidence of criminal activity will be found in the place to be searched. Williams v. State, 737 P.2d 360, 362 (Alaska App. 1987). This requires that a nexus be shown between the place to be searched, the criminal activity and the items sought. Metler v. State, 581 P.2d 669, 672 (Alaska 1978); Bodoino v. State, 785 P.2d 39, 41 (Alaska App. 1990); Snyder v. State, 661 P.2d 638, 645 (Alaska App. 1983).

The nexus requirement is important. A search warrant is not only a document authorizing a search, but also the instrument by which permissible bounds of a search are formally limited. Namen v. State, 665 P.2d 557, 564 (Alaska App. 1983). Police officers must limit their search to places reasonably likely to reveal the items listed in the warrant. Anderson v. State, 555 P.2d 251, 261 (Alaska 1976). Without a reasonably particularized limitations the warrant provides no protection against a generalized search, which is invalid. Namen, 665 P.2d at 564.

Assessment of whether the requisite "probable cause" exists presents a mixed question of law and fact. Once the facts are determined, the question of whether the facts constitute probable cause is a question of law which a reviewing court determines independently. Rynearson v. State, 950 P.2d 147, 150 (Ak. App. 1997). In this matter, a pure legal issue is raised: whether the facts stated in the Mills affidavit constitute probable cause to justify issuance of a Glass warrant.

A. The Legal Requirements Necessary to Obtain a Glass Warrant.

In State v. Glass, 583 P.2d 872 (Alaska 1978), the Alaska Supreme Court set forth the requirements to obtain a warrant for electronic seizure of a conversation from a person. Before law enforcement can secretly record a person's conversations "a search warrant should be obtained from an impartial magistrate, based on probable cause to believe that criminal activity will be discovered." Glass, 583 P.2d at 881 (emphasis added). These protections were deemed necessary as "one who engages in a private conversation is ... entitled to assume that his words will not be broadcast or recorded absent his consent or a warrant." Id. at 875. The Court recognized that through "clever prodding" one may elicit "thoughtless comments about sex, religion, politics . . . and even one's innermost thoughts." Id. at 878. Due to these infringements on Constitutional rights, the warrant requirement in Glass is a narrow one. Jones v. State, 646 P.2d 243, 247 (Alaska App. 1982). For a warrant to be valid there must be a nexus between the place to be searched, the criminal activity and the information sought. This nexus requirement is illustrated by review of Glass and other secret recording cases.

In Glass, police wired an informant who then entered Glass' home where she purchased a quantity of heroin from Glass and the conversation surrounding the purchase was secretly recorded. 583 P.2d at 874. The secret recording was done without a warrant and law enforcement sought to use the recording in Glass' criminal trial. The evidence was suppressed and the trial court's order upheld on appeal. Importantly, the Court noted a warrant could have been obtained based on "an affidavit of the informant as to earlier non-monitored conversations" and a showing of probable cause to support the informant's belief she could purchase heroine at Glass' home. Id. at 881 (emphasis added).

The Glass court noted that if the above information was provided then a warrant could have been secured. Id. This is because a nexus existed between the place to be searched (conversation between the informant and defendant), the criminal activity and the items sought (recorded confession). The informant had prior conversations with the defendant regarding the questioned criminal activity and had probable cause to believe she could again engage the defendant, in the future, about the criminal activity. A solid nexus exists between all three aspects. Review of post Glass cases further illustrates the nexus requirement.

In Latham v. State, 790 P.2d 717 (Alaska App. 1990), a warrant authorizing an electronically monitored conversation was upheld. The informant told law enforcement officials he was a friend of a robber who had told the informant he had committed the robbery. Also, the informant was able to give details of the robbery that would be known only by someone who communicated with an individual actually involved in the robbery. Latham, 790 P.2d at 719. Based on this information a warrant was issued to record a private conversation between Latham and the informant about the robbery. Importantly, the warrant was issued based on testimony of the informant as to earlier non-monitored conversations and detailed facts about the robbery that would lead a reasonably prudent person to believe the conversation had taken place and the robber would again confess to his friend. Before the warrant was issued a nexus was shown between past conversations with the defendant, the robbery and future conversations.

Similarly, in Linne v. State, 674 P.2d 1345 (Alaska App. 1983), an electronic recording warrant was challenged based on insufficient probable cause in a case that involved theft by deception. The Glass warrant was upheld based on affidavit testimony that the informant had earlier non-monitored conversations with Linne where Linne attempted to fraudently solicit funds from the informant to avoid being beaten up. 674 P.2d at 1355. The affidavit was also supported with bank statements showing several large payments to Linne which supported the notion that Linne's solicitation of money was deceptive. Id. at 1356. Thus, the Glass warrant was approved based on reliable information of a nexus between prior conversations between the subjects that concerned a criminal activity, detailed facts to support the belief of discovering a criminal activity and future conversations about the criminal activity were likely.

In Bell v. State, 668 P.2d 829 (Alaska App. 1983), a Glass warrant was found to have been properly issued. The informants were minors who one week before had worked for Bell as prostitutes. 668 P.2d at 836. The appellate court found it was logical to assume that Bell would have some interest in discussing the criminal activities with the informants since they had recently been employed by Bell and given him five thousand dollars. Id. Thus, two people had detailed information about the criminal activity and a reasonable basis existed to believe that information about the criminal activity would be discussed if the informants contacted their former employer.

Likewise, in Jones v. State, 646 P.2d 243 (Alaska App. 1982), an electronic monitoring warrant was upheld. Probable cause to support issuance of the warrant was a prior drug purchase and a future pre-arranged drug sale. Specifically, information was provided that the warrant was based on testimony that the informant had made a prior purchase of cocaine at Jones' house and arranged a another deal scheduled to shortly take place. 646 P.2d at 246. Reliable information was presented that criminal activity would be discovered based on a prior unmonitored drug sale and a pre-arranged future drug sale.

These cases demonstrate that to obtain a valid Glass warrant the requesting officer must have more then a mere "belief" that the wire will yield admissions. Sufficient information must be set forth to establish that a reasonably prudent person, based on a nexus between prior conversations, criminal activity and detailed facts, would believe the wire will produce fruit. The prior relationship between the secret recorder and the defendant is key. "The issuance of a Glass warrant presupposes that the informant who is the monitoring participant in the defendant's conversation will already have access, by virtue of the defendant's own consent and entirely independent of the warrant, both to the location where the illegal transaction is to occur and to the defendant's spoken words." Jones, 646 P.2d at 247. Thus, a necessary foundation is that the defendant and third party have a prior relationship which involves the alleged criminal activity.

The purpose of the warrant in this matter was to record conversations between R.B. and Kimberly xxxxxx because it was "believed that these conversations [would] yield admissions by Kimberly xxxxxx that she sexually abused J.B." Exhibit A, Mills Affidavit, p. 8, ¶ 17. The affidavit discusses the sex abuse accusation of J.B., and an alleged unwarranted kiss, but fails to discuss the relationship between R.B. and Mrs. xxxxxx, the likelihood of obtaining a confession and the nexus between these elements.

Under the Glass test the first issue is whether factual details were presented, in Mills' affidavit, which establish "earlier non-monitored conversations" between Ms. xxxxxx and R.B. Glass, 583 P.2d at 881. This examines both the relationship between the defendant and the secret recorder and whether it will likely lead to a criminal confession.

In Jones v. State, 646 P.2d 243, 247 (Alaska App. 1982), the court noted that when dealing with a Glass warrant it is presupposed that a relationship exists between the secret recorder and the defendant. Obviously, this is one of the most important factors as criminals are not likely to confess to strangers with whom they have no relationship. A review of Mills' affidavit on this topic is important.

Despite the submission of a nine page affidavit, Mills' affidavit only contains two sentences on the foundational relationship. The information provided is that R.B. is J.B.'s mother, is also an employee of the Anchorage School District and that she prohibited J.B. from having any contact with Mrs. xxxxxx, outside of school, in the Spring of 1994. Exhibit A, ¶ 15. That is it. There is no claim of any relationship or that they have ever spoken before.

In comparison, in cases which have upheld a Glass warrant there is strong evidence of the parties relationship. For example, a prior confession such that the informant could provide details of the crime known only by one who had spoken with the robber, Latham, 790 P.2d 717; prior involvement with the defendant in a drug purchase and such a relationship that a future drug purchase was arranged; Jones, 646 P.2d 243, cf. Glass, 583 P.2d 872; prior involvement with the defendant in profitable criminal activity such that in future dealings the defendant would likely request further criminal activity, Bell, 668 P.2d 829. In Mills' affidavit, there is no evidence that Mrs. xxxxxx even knew R.B. The foundation for a Glass warrant is entirely lacking in this matter. Without establishing a relationship a criminal confession is most unlikely, and probable cause does not exist.

Officer Mills improperly relied on allegations of inappropriate conduct, rather then address the relationship and likelihood of a confession. The affidavit sets forth two accusations. First, is the assertion from J.B., a minor, who claims to have had sexual relations with a former teacher. Exhibit A, ¶ 14. Second, the affidavit sets forth a second act that involves, no sex abuse, but an alleged unwarranted kiss. (2) Exhibit A, pp. 2-6. All that exists is one accusation of sex abuse and an unwarranted kiss. Whether there are one or a hundred accusations it is insufficient information to establish probable cause for a Glass warrant, unless combined with information that shows the person is likely to confess. The affidavit is void of any information that suggests Mrs. xxxxxx would confess to R.B.

There is no assertion that Mrs. xxxxxx previously made any confessions or admissions about sexual abuse to R.B. There is no information that R.B. was told by Mrs. xxxxxx about any prior criminal activity. There is no evidence that Mrs. xxxxxx had any prior conversations with R.B. where she discussed any improprieties with J.B. There is no evidence to indicate that Mrs. xxxxxx is the type of person who would confess to a stranger about sexual relations with a minor. There is no evidence that teachers who engage in sexual acts with minors are likely to confess. There is no evidence, such as expert testimony, to indicate that adults who engage in sexual acts with minors are likely to confess. Quite simply, there is nothing in the affidavit about any prior conversations or activities between R.B. and Mrs. xxxxxx.

All that can be taken from the affidavit is that Mills' subjectively "believed" Mrs. xxxxxx would confess, and R.B. "enthusiastically agreed to participate" in the secret recording. Exhibit A, ¶ 16. The essential aspect of a probable cause finding is establishing that the search will result in evidence. Williams v. State, 737 P.2d 360, 362 (Alaska App. 1987). Mills' affidavit provides no recognized basis such that a reasonably prudent person would believe evidence will be found.

Officer Mills declared that he believed the wire tap "would yield admissions by Kimberly xxxxxx that she sexually abused J.B." Exhibit A, ¶ 17. However, no evidence or comment is provided about why R.B. would likely be able to obtain such a confession. The affidavit sums up Officer Mills' interview experience with children, sets forth Mills' subjective belief and provides a single accusation of sex abuse. The officer's interview experience with children is irrelevant as to whether an alleged sex abuser will likely confess. Likewise, so is an officers subjective belief. See State v. Page, 911 P.2d 513, 514 (Alaska App. 1996) ("[B]ecause of the value our society places on individual privacy, we can not give the police unfettered discretion to decide when electronic monitoring of private conversations might be justified to detect or prevent illegal conduct."); Keller v. State, 543 P.2d 1211, 1215 (Alaska 1975) (Magistrate must make decision on basis of facts presented and not an officer's mere belief). This leaves one undetailed accusation of wrongdoing. If a single accusation of wrongdoing establishes probable cause to justify secret electronic recordings then the abuses of the McCarthy era have begun anew. A criminal indictment alone does not constitute sufficient probable cause to issue a search warrant. United States v. Ellsworth, 647 F.2d 957, 964 (9th Cir. 1981) cert. denied 456 U.S. 944 (1982). Likewise, neither should accusations from a single person devoid of specific factual details.

When two years after an alleged crime a single person comes forward and makes accusations of criminal conduct, a Glass warrant is not proper to permit a third party, with no prior relationship to the defendant, to phone the alleged criminal, weave a false web and try to criminally entangle the individual. The Alaska Supreme Court recognized the potential dangers of secret recordings and prescribed a narrow set of parameters that justifies issuance of a Glass warrant. A Glass wire warrant is not authorized when the third-party involved has never had any prior conversations or interactions with the defendant. The warrant issued in this matter fails the initial analysis of the Glass test, and also, as discussed below, fails other criteria.

C. Insufficient Evidence Exists of Criminal Activity.

In order for a search warrant to be issued there must be probable cause of criminal activity. Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973). A Glass warrant is only permitted when police can present evidence from which a reasonably prudent person would believe the search will yield evidence of criminal activity. Glass, 583 P.3d at 881. Before one can obtain evidence of a crime with a warrant there must, at least, be proximate cause of criminal activity. In this case, insufficient evidence exists to even establish probable cause of criminal activity. Mills presents two allegations to support the criminal activity claim.

On the first allegation the affidavit provides that Mrs. xxxxxx "helped [J.B.] remove his clothing" and they had "intercourse." Exhibit A, ¶ 14. The affidavit is void of any detail about the alleged abuse that would be known by someone who had sex several times with a particular person, such as a description of Mrs. xxxxxx's body and identifying characteristics of her body. In fact, this "intercourse" allegation comes two years after the alleged sexual acts. Id. A search warrant is to be based on current information that supports a finding that probable cause to search exists presently. Simmons v. State, 899 P.2d 931, 934 (Alaska App. 1995). A two year-old undetailed account of sex abuse does not satisfy this requirement.

Quality of information is what establishes probable cause. "A house of probable cause can not be built by piling bricks of speculation one atop another; without a mortar of factual detail to bind them, the bricks will fall." Carter v. State, 910 P.2d 619, 625 (Alaska App. 1996). In this matter, the house is missing more than just mortar.

The only information on the alleged crime being investigated is a single undetailed allegation of a juvenile. In State v. Jones, 706 P.2d 317 (Alaska 1985), the Court examined the validity of an affidavit used to obtain a search warrant. The affidavit provided a more detailed assertion that a juvenile informant had witnessed the defendant sale cocaine to a friend. 706 P.2d at 319-20. However, the affidavit failed to establish the informant's veracity. This could have been accomplished by showing the informant provided reliable information in the past or that the police conducted an independent investigation to corroborate the accuracy of the informant's criminal contention. Id. at 325. Due to this omission the Court ruled the warrant was improperly issued as the magistrate did not have sufficient information to make a reasoned decision to issue the search warrant. Id. at 326. The omissions in this case are more glaring.

Absolutely no information is provided on the veracity of J.B. Officer Mills makes no claim that J.B. has provided reliable information in the past and there is no evidence offered to corroborate the accuracy of J.B.'s contention that he and Mrs. xxxxxx had "intercourse." This claim, standing alone, can not establish probable cause. Jones, 706 P.2d at 325. Likewise, the lack of probable cause evidence is not overcome by Mills' statement he believes the search will yield an admission. Clark v. State, 704 P.2d 799, 804 (Alaska App. 1985) (officer's general conclusion should not be used as verification where no information has been presented to the magistrate concerning how this conclusion was drawn); Jones, 706 P.2d at 326 (Fourth Amendment requires that conclusion of probable cause be drawn from underlying facts and circumstances by the magistrate, not the police). Rather, then address the lack of corroborating evidence Mills discusses a second act unrelated to the alleged intercourse.

Mills attempts to strengthen J.B.'s sex account through discussion of a kiss. Exhibit A, pp. 2-6. This kiss allegedly took place in a small motel room with five people, but there were no witnesses. Exhibit A, ¶ 13(e). The family of C.D., the alleged kissee, did not report the incident to the police, but responded by hiring an attorney to pursue a civil case against Mrs. xxxxxx after she refused to comply with payment demands. Exhibit C, Rejection Letter. It was C.D.'s attorneys who then came to the police and offered evidence, but only if the police agreed to share information with the attorneys that they obtained from their investigation. Exhibit D, Police Report.

This kiss has nothing to do with the alleged crime. Mrs. xxxxxx was accused of having sex with a minor and the warrant was intended to obtain an admission from Mrs. xxxxxx that she had "intercourse" with J.B. A kiss, allegedly intended to please, is not criminal activity. (3) More importantly, C.D. denied having sex with Mrs. xxxxxx, Exhibit A, pp. 4-6, and has no first-hand knowledge of any facts which corroborate J.B.'s assertion. Again, Officer Mills made no attempt to collaborate C.D.'s assertions or his veracity. An alleged kiss does not collaborate an accusation of sex abuse.

When the only evidence presented of criminal activity is a single accusation, that is not collaborated, probable cause does not exist. A single brick of speculation, without any mortar of factual detail, does not make a house of probable cause. The search warrant should not have been issued as the very reason for its creation was unsubstantiated.

D. The Tainted Fruit of the Improper Warrant Must Be Suppressed.

Officer Mills' affidavit, which served as the basis for issuance of the Glass warrant, fails to establish the requisite probable cause. No attempt is made to establish a nexus between R.B., Mrs. xxxxxx or the alleged criminal activity. R.B. had no prior communications with Mrs. xxxxxx regarding the alleged crime and insufficient facts were presented so that a reasonably prudent person would believe the wire tap would likely yield a confession. As a matter of law, Mills' affidavit is insufficient to establish probable cause. Therefore, the warrant is invalid and all fruit obtained through its use must be suppressed due to the unconstitutional harvest.

CONCLUSION

Mills' affidavit fails to present any evidence that the third-party and defendant had prior conversations that concerned the alleged criminal activity, fails to present any detailed facts to support the his subjective belief that the secret recording would yield a confession and even fails to present probable cause of criminal activity. Therefore, defendant respectfully requests that this Court suppress the Glass warrant and exclude all evidence obtained through its use.

Dated at Anchorage, Alaska this _____ day of May, 1998.



INGALDSON MAASSEN, P.C.

Attorneys for Defendant







By: ______________________________

Jim M. Boardman

C:\wwwfpd\nopc.wpd

1. Previously, Defendant attacked the fruits of the warrant, but whether or not probable cause exists has not been addressed in the prior proceedings. Although the issue was not raised before, Judge Card did note the Glass warrant was obtained, as the State was "hoping" Mrs. xxxxxx would admit to sexual misconduct. Exhibit B, Judge Card Order, p. 1.

2. As discussed in footnote 3, infra, this alleged "kiss" is not even a criminal act.

3. The State has charged Mrs. xxxxxx with harassment as a result of the C.D. kiss under A.S. 11.61.120(a)(5). Under the statute, harassment requires proof of intent to harass or annoy another person. See also McKillop v. State, 857 P.2d 358 (Alaska App. 1993). The State's charge is meritless as its position is the kiss occurred because Mrs. xxxxxx was showing affection to C.D., and not to intentionally harass or annoy him.