IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA AT ANCHORAGE
UNITED STATES OF AMERICA,
Plaintiff,
V.
xxxxxxxxxxxxxxxxxxx,
Defendant.
CASE NO. xxxxxxxxxxxxx Cr.
MOTION FOR SUPPRESSION OF EVIDENCE
(F.R.Cr.Proc. 12(b)(3); 41(f))
COMES NOW the Defendant, RONALD D. xxxx, by and through counsel of record, REX LAMONT BUTLER AND ASSOCIATES, to move this Court, pursuant to Federal Rules of Criminal Procedure 12(b) (3) and 41 (f) , for an order suppressing for use at trial any and all evidence obtained through an illegal search and seizure. In support of the Motion, Defendant would show the Court the following:
I.
Defendant herein contends that all of the relevant physical evidence introduced before the grand jury to support the indictment in this case was obtained, directly or indirectly through an illegal search and seizure. As such, this evidence will be inadmissible at trial in this case in that the exclusionary rule bars the use of evidence obtained in violation of the Fourth Amendment in a criminal trial against the victim of an illegal search and seizure. See Weeks v. United States, 232 U.S. 383, 398 (1914) ; Mapp v. Ohio, 367 U.S. 643, 655 (1961) . This rule "applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence." Nix v. Williams, 467 U.S. 431, 441 (1984).
II.
This motion is supported by the attached memorandum of law and fact and transcript of the state search warrant proceedings, 3 AN 95-871 SW and 3 AN 95-872 SW.
Excludable delay under 18
U.S.C. 3161 (h) will. occur as a result of this request.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA AT ANCHORAGE
UNITED STATES OF AMERICA,
Plaintiff,
V.
RONALD D. xxxx,
Defendant.
CASE NO. xxxxxxxxxxxx
MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO SUPPRESS EVIDENCE
COMES NOW the Defendant,
RONALD D. xxxx, by and through counsel of record, REX
LAMONT BUTLER AND ASSOCIATES, and submits the following to the attention of the Court:
STATEMENT OF FACTS
On Friday, May 12, 1995, at 8:25 p.m., a search warrant proceeding before the Honorable Brian Johnson, District Court Magistrate in the District Court for the State of Alaska, Third Judicial District at Anchorage, took place. Transcript Attachment A (Tr.). John J. Novak, IV, Assistant District Attorney was present as the attorney for the state, making application for two search warrants - one for a residential house trailer at 3407 Spenard Road, Space Number 56 and the other for a 1990 white and red GMC or Chevrolet pickup truck with the license plate 6114 CR. Each warrant application sought authorization to search for drugs and drug-related paraphernalia or cocaine and cocaine-related paraphernalia.
The only testimony that the state offered to the magistrate was the uncorroborated testimony of criminal informant David Dang, and that of Trooper Timothy L. Bleicher. Trooper Bleicher subsequently participated in the searches of the home and personal vehicle. Criminal informant Dang had been arrested that day for a narcotics transaction involving another person, Deborah Reeves, and was in custody at the time of his testimony. Trooper Bleicher's testimony relied solely on representations made to him by criminal informant Dang, subsequent to Dang's arrest earlier that same day. Based on Dang's uncorroborated testimony and Trooper Bleicher's testimony, searches were authorized for any time of the day or night, with the expectation that the search would take place immediately that night. (1) (Tr. 44, 45)
At the search warrant hearing, Trooper Bleicher testified that he had worked for the Statewide Drug Enforcement Unit for a little over three years, only since April 1992, and that his work principally involved the Palmer/Wasilla area. (Tr. 5) (Trooper Bleicher later testified that he had fourteen years of experience with the State Troopers. (Tr. 21) Acknowledging that his testimony was based only on information that he obtained from the arrested criminal informant, Dang, Trooper Bleicher affirmed that "other than that, there was nothing to indicate anything else." (Tr. 21, Lines 6-12)
The availability of Dang as a witness at the hearing arose out of the following circumstances. On the same day as the search warrant proceeding, May 12, 1995, Dang was arrested for his part in a drug transaction with Deborah Reeves. Trooper Bleicher explained that Ms. Reeves had been the object of an eight month (or more) investigation. (Tr. 6) After his arrest, while in custody, Dang provided the information which the state and Trooper Bleicher relied upon to make their application for the search warrants. The record indicates that the information that criminal informant Dang provided was information they had never before known or suspected.
The eight month investigation of Ms. Reeves began when Trooper Bleicher was contacted by Officer Jeff Sullivan of the Valdez Police Department. He was told that a criminal informant N517, had provided the name and number of a person in the Wasilla area as an alleged cocaine distributor (Dang lived in Anchorage). Subsequently, an investigation of Ms. Reeves began and included five narcotics transactions - one in October 1994, one in November 1994, one in February 1995, one in April 1995, and finally the fifth transaction in May 1995. (Tr. 6-7) In the course of the investigation of her narcotics activities, which led to Dang's arrest, Trooper Bleicher continued to rely on criminal informant N517. (Tr. 5-11)
Trooper Bleicher testified that he "suspected Mr. Dang as a source" for Ms. Reeves. (Tr. 10) (But see facts infra, showing Dang admits to selling a kilo of cocaine earlier in the day, the same day of his arrest, which, from the record, it appears the police had no knowledge of.) The record indicates criminal informant N517 never provided any information about the defendant, Ronald xxxx. There is no indication that any other source, as part of Trooper Bleicher's eight month investigation or any other investigation, provided information about Mr. xxxx, his home (located at 3407 Spenard Road), or his pickup According to Trooper Bleicher, the fifth narcotics transaction between N517 and Ms. Reeves was set up earlier that day for 11 a.m. (on May 12, 1995) at Anchorage International Airport. (Tr. 8) While under surveillance, Ms. Reeves made contact with Mr. Dang. Trooper Bleicher testified that Ms. Reeves was observed making contact with Mr. Dang just prior to her returning to the airport and completing the drug deal resulted in her being taken into custody. (Tr. 11)
The events surrounding Mr. Dang's arrest and statements that he made are unclear. (Tr. 11-13) According to the transcript of the search warrant hearing, Trooper Bleicher's sworn testimony indicates that Mr. Dang was contacted by Sergeant DeAngelo, and found to have $1,200 on his person. (Tr. 12) Search warrants were obtained for Mr. Dang's locker at McLaughlin Youth Center, for his residence, and for the vehicle that he used in transaction with Ms. Reeves. Trooper Bleicher testified he "would like to point out that prior to the service of the search warrant, he [Dang] had indicated what would be found in car and in the residence, and that appears to be consistent with what he had told me." (Tr. 12) Cash ($30,000) was found in the locker. Scales and cutting agents (drug paraphernalia) were found in his residence. Cocaine was found in his car. Then, according to Trooper Bleicher' s testimony, Dang was place in custody and arrested at Trooper Bleicher' s direction by DeAngelo after the cash, cocaine, and drug paraphernalia were found. (Tr. 13) According to Trooper Bleicher's testimony, Dang was advised of his Miranda rights, and then simply agreed talk without any promises or agreements being made. (Tr. 13) (See facts infra regarding Dang's bail, custody, and case; see also Affidavit of Counsel) . Trooper Bleicher also testified that the interview with Dang was recorded.
The state charging document describes a different scenario. According to the charging document, Dang advised them about $30,000 in his locker at work and cocaine in his car after he was arrested. That document indicates that Dang was arrested before the cash, cocaine, and drug paraphernalia were found. (2) Attachment B
In custody, criminal informant Deng claimed that out of$30, 000 that was found in his locker, he had to pay $25, 000 to an individual that he knew only as "Ron." He claimed that "Ron," had fronted him a kilo of cocaine. He did not know "Ron's" last name or address. Criminal informant Dang then took Trooper Bleicher to 3407 Spenard Road, Space 56. At the time, a red and white pickup truck with license plate 6114 CR pulled into the space, and criminal informant Deng indicated to him that that was "Ron."' (Tr. 15) Trooper Bleicher admitted that he did not observe the occupants. (Tr. 15)
Upon running a computer check, Trooper Bleicher obtained the name of the registered owner of the pickup truck as Ronald xxxx. However, he testified that the name was too common for him to obtain any other information. (Tr. 16) Trooper Bleicher claimed that criminal informant Dang had described Mr. xxxx as a man in his mid-sixties, but Dang's testimony was that Mr. xxxx was "probably 59, in his 60 (sic)." (Tr. 14, 40) Trooper Bleicher testified that the computer check came up with five other Ronald xxxxs, including "one individual who is approximately 63 years old, and there is (sic) two others that are approximately in their fifties...." (Tr. 16)
Until criminal informant Dang's arrest and in-custody statements, the record indicates that even though Trooper Bleicher had been conducting an eight month investigation, and was an officer assigned to the Statewide Drug Enforcement Unit, he had no knowledge of the defendant, Mr. xxxx. The record indicates that Mr. xxxx had never been under investigation by him for anything. The state charging document shows that Mr. xxxx has no criminal record. There is no indication at the search warrant proceedings that he was ever the object of any surveillance. The record seems to indicate that Trooper Bleicher had never before heard of , "Ron." Trooper Bleicher' s testimony indicates that he had not, in the course of his drug investigation, been to the Spenard trailer park site, and certainly did not know of Mr. xxxx or his address until criminal informant Dang's in-custody interview and ride to the trailer park (at Dang' s direction). The record indicates that Trooper Bleicher never did a check on utility records or any other verification of ownership or control of the residence. (Tr. 24) When he testified, Trooper Bleicher was not certain of Mr. xxxx's age, citizenship, or even of his ethnic group, "other than Mr.Dang describing Ron as a white male." (Tr. 24) The record indicates that Trooper Bleicher relied completely and solely on criminal informant Dang's uncorroborated statements for his testimony to the magistrate.
Trooper Bleicher also testified that he had not entered into any type of agreement or made any promises to criminal informant Dang. He stated that he was unaware of any deals or agreements offered to Dang by anyone else. Trooper Bleicher did admit that he had told criminal informant Dang that "his cooperation would be advised to the judge." (Tr. 17)
Trooper Bleicher was specifically asked if he was aware of criminal informant Dang's criminal history. He testified that he had checked the Department of Public Safety records and that Dang had the following chronology of convictions:
1) 1979 conviction for burglary
2) 1983 conviction for larceny
3) 1994 conviction for assault.(Tr. 18) Although it is readily accessible public information, Trooper Bleicher omitted telling the magistrate that criminal informant Dang had been convicted of making a false report of crime, subsequent to the 1983 larceny conviction but prior to the 1994 assault conviction. On December 14, 1989, criminal informant Dang was charged with making a false report of crime, which he pled no contest to on January 10, 1990. Attachment C.
Interestingly, the transcript indicates that Trooper Bleicher faltered in his recitation of the convictions, saying " a 1983 conviction for larceny, and a nineteen eighty --- 1994 conviction for assault."
Other convictions were also not disclosed to the court. In 1979, Dang had the following convictions: Burglary in a Dwelling - 4FA-79-1044 Cr.; Burglary in a Dwelling/Forgery - 3AN-79-1452 Cr.; Attempted Larceny in a Building - 3AN-79-3577 Cr.. See Attachment D. In 1980, Dang made "Harassing Communications." Dang, it is reported, telephoned a police officer who was hospitalized after being shot. Dang pretended to be the brother of the officer's assailant, and threatened the police officer's life over the telephone. See Attachment E.
In addition, less than 24 hours later, the state charging document cited the 1990 conviction, characterizing it as "1990 Making False Report," also listing "Harassing Communications." The same state's attorney present at the search warrant hearing, Mr. Novak, is the state attorney who signed the state charging document. Attachment B. Also, in criminal case 3AN-S-93-750, the State of Alaska served "Notice of Intent to Impeach"' on defendant Dang, listing his January 10, 1990 conviction for "Making a False Report," the same language used by Mr. Novak. Attachment F. Therefore, the state knew Dang's criminal history.Mr. Novak, the attorney for the state, failed to advise the magistrate, even after inquiry, of the total record.
Criminal informant Dang then testified before the magistrate. Dang testified about the drug deal that he had participated in with Ms. Reeves earlier that day. (Tr. 31-33) Upon questioning by the state's attorney, Mr. Novak, criminal informant Dang, a Vietnamese immigrant, cried and expressed concerns about the custody of his -child. (Tr. 34) He testified that he understood that his cooperation would be brought to the attention of the judges, but no other agreement,, ""at this point in time" had been made. (Tr. 34) He also repeatedly raised the issue of bail. (Tr. 40-41) The state's attorney again reiterated that all of this information would be presented to the judge, but claimed that there were no agreements on what world happen. (Tr. 41)
Ultimately, the disposition of Dang's case differed considerably from the other two co-defendants in the state's case. Subsequently, Dang had his bail reduced to $25,000 cash or corporate. Unlike Ms. Reeves, criminal informant Dang was released to a third party custodian. Unlike Ms. Reeves or Mr. xxxx, criminal informant Dang did not get his case moved to federal court. (State v. Dang, 3AN-S95-3265 Cr.) .
Even though Trooper Bleicher testified that he ""suspected Mr. Dang as a source" for Ms. Reeves (Tr. 10), criminal informant Dang testified that on the very same day as the deal with Ms. Reeves, he had sold a kilo of cocaine to "a guy named Rico...". (TR. 35) Yet, there is no indication that the police knew about this deal until "suspect" Dang, while under arrest, told them about it (suggesting that "suspect" Dang, was not under any kind of surveillance_. Dang claimed that "Ron" had bought him the kilo to sell. (TR.35) Criminal informant Dang did not know "Ron's" address, but did show police the location where he believed "Ron lived. (Tr. 36-37) Dang Offered no significant details or specific descriptions about the trifler that he claimed to have been in. (3) He provided no significant details about any past transactions and offered no evidence of any anticipated events. He stated simply that, of the $30,000 found in his possession, he had to give "Ron" $25,000. (4) Dang claimed he had obtained cocain from "Ron in the past. (Tr. 36-37) Other than Dang's statements, the record does not indicate that the police had prior knowledge of any drug deal that Dang participated in earlier on the same day as the transaction with Ms. Reeves, or of his alleged relationship with "'Ron."
When questioned by Mr. Novak, Dang testified that he had not "been in trouble for 13 years." (Tr. 41) Yet Mr. Novak, the state's attorney, never attempted to correct him or the record regarding any of the convictions, including the conviction for filing a false report of crime. (5)
(Tr. 41) However, less than 24 hours later, Mr. Novak signed the state charging document. Citing Dang's criminal history, Mr. Novak characterized the 1.090 conviction as "Making False Report"',, rather than the actual offense, "False Report of a Crime." Mr. Novak omitted disclosing this crime of dishonesty to the magistrate.
After hearing the uncorroborated testimony of Trooper Bleicher and criminal informant
Dang, State Magistrate Johnson found reasonable grounds to authorize a search of a white
residential trailer at 3407 Spenard Road, Mr. xxxx's home, and of a white and red GMC
and/or Chevrolet pickup truck with license number 6114 CR, Mr. xxxx's personal vehicle.
(Tr. 44-45) decision was based solely on their testimony. (Tr. 21) ("so far the only testimony you have got is that he --apparently
testimony from this Mr. Dang....") and (Tr. 44) ("Based on the testimony of
Trooper Bleicher and Mr. Dang..."). He was not informed of Mr. Dang's conviction and
willingness to file a false report of a crime. It was represented to him that no
agreements or promises had been made to criminal informant Dang.The search ensued-shortly
thereafter, leading to the arrest of the defendant, Mr. xxxx. The fruits of the state's
search by state law enforcement officers are the evidence which the United States
Government now intends to use in its federal prosecution.
ARGUMENT
IN A FEDERAL PROSECUTION, IN DECIDING WHETHER THE SEARCH-H OF MR. xxxx'S HOME AND VEHICLE, WHICH WERE CONDUCTED BY STATE LAW ENFORCEMENT OFFICERS PURSUANT TO A WARRANT ISSUED BY A STATE MAGISTRATE, ARE ILLEGAL THE COURT SHOULD APPLY THE STATE LAW STANDARD FOR DETERMINING THE CONSTITUTIONALITY OF THE SEARCH UNDER THE FOURTH AMENDMENT AND UNDER THE ALASKA STATE CONSTITUTION, ART I, § 14.
To determine the lawfulness of a search by a state officer for a state offense, the court looks to state law. Cf. United States v. Shephard, 21 F.3d 933, 938-39 (9th Cir. 1994) (citing Her v. California, 374 U.S. 23, 37-38, 83 S.C. 1623 1632, 10 LED.2d 276 (1963) (plurality opinion) ; United States v. Mata, 982 F.2d 1384, 387 (9th Cir. 1993); and Henry v. United States, 361, U.S. 98, 102-03, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (19S9) ) . '[E]vidence in a federal prosecution must be suppressed if it was the product of an arrest illegal under state law." Id. at 938-39(citing Mata, supra and Henry, supra). A state's supreme court can decide its own 'test for purposes of the State Constitution." Cf. Illinois v. Gates, 426 U.S. 213, 251-52, 103 S.C. 2317 2339-40, 76 LED.2d 527 (1983) (White, J. concurring) .
In Shepard, the defendant was convicted in the United States District Court for the District of Montana of being a felon in possession of firearm. Shepard, 21 F.3d 933. The gun, discovered as a result of an unlawful arrest under Montana law, was not admissible. Id. Similarly, in Mata, the defendant was convicted in the United States District Court for the Central District of California for possession of counterfeit bills. However, city police officers were not authorized, as a matter of state law, to make an arrest. Mata, 982 F.2d 1384. Therefore, the evidence discovered in a search incident to the unlawful state arrest was inadmissible.
In this case, search warrants were obtained in a state court. The state magistrate issued the search warrants based on the sworn testimony of State Trooper Bleicher and of criminal informant David Dang. Dang had been arrested earlier that same day for state charges stemming from a drug transaction that he participated in. State Trooper Bleicher also participated in the search of Mr. xxxx' s home and vehicle, along with other state law enforcement officers. No federal officials participated in the search warrant proceeding. No federal officials participated in the searches of Mr. xxxx's home or pickup truck, or in his arrest.
Because the warrant was sought by the state, issued by a state magistrate, and resulted in a search conducted solely by state law enforcement officers, the state's legal standard for determining whether a search was illegal under the Alaska State Constitution, Article I, §14 is the applicable standard in the federal prosecution arising out of that search.
II. IN DECIDING WHETHER THERE WAS PROBABLE CAUSE TO AUTHORIZE A SEARCH OF MR. xxxx' S HOME AND PERSONAL VEHICLE, THE STANDARD FOR MISSTATEMENTS OR OMISSIONS MADE TO A JUDICIAL MAGISTRATE COMES WITHIN THE SCOPE OF ARTICLE IF SECTION 14 OF THE ALASKA STATE CONSTITUTION, AND THAT STANDARD SHOULD BE-APPLIED IN A FEDERAL PROSECUTION WHERE THE EVIDENCE WAS OBTAINED DURING A STATE SEARCH OF AN ALASKA CITIZEN HOMEPURSUANT TO A STATE SEARCH WARRANT AND CONDUCTED SOLELYBY STATE LAW ENFORCEMENT OFFICERS.
"(W]e may construe Alaska's constitutional provisions such as Article I, Section 14 as affording additional rights to those granted by the United States Supreme Court under the federal constitution." State v. Jones, 706 P.2d 317, 321 (Alaska1985) (holding that the Aguilar-Spinelli test better protects the rights guaranteed by the state constitution than the federal "totality of the circumstances" approach when an affidavit relies on the hearsay statement of an informant) ; Cf. Illinois v. Gates, 426 U.S. 213. (quoted supra, recognizing that a state court can establish its own. test for purposes of its own constitution) . The guarantee against unreasonable searches and seizures is broader under the Alaska State Constitution than that provided under the Federal Constitution. See, Zehrung v. State, 569 P.2d 189 (Alaska 1977). This broader scope is due, "at least in part because of the more extensive right of privacy (explicitly) guaranteed Alaska citizens by article I, section 22 of our state Constitution." Reeves v. State, 22 P.2d 727, 734 (Alaska 1979). The right to privacy is a fundamental right enshrined in the Constitution of the State of Alaska.Accordingly, "misstatements in affidavits come within the scope of Article I, section 14 of the Alaska Constitution which protects citizens 'against unreasonable searches and seizures,' and which commands that '[no warrants sxxxx issue, but upon probable cause, supported by oath or affirmation."' State v. Malkin, 722 P.2d 943, 946 (Alaska 1986) (adopting Franks v. Delaware, in part, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2670-, 57 L.ED.2d 667, 672 (1978)). The court took care to note that "[t]he most important protection against unreasonable invasions of privacy is the requirement that except in special circumstances, the police officer must go before a neutral judicial officer." Id. at 947(emphasis added) .
The Malkin court then held that once a defendant has pointed out a false statement or misstatement to the court, the burden shifts to the prosecution to justify the misstatements. Id. at 948. The federal standard, under Franks, offers less protection, placing the burden of proof on the defendant. Franks, 438 U.S. 154. The Malkin court reasoned that "the proper way to strike the balance between societal interests in the use of reliable evidence and protection from unreasonable invasions of privacy is to excise misstatements from the police officer's affidavit if he cannot show that they were not made intentionally or recklessly." Id. (emphasis added) (requiring a police officer to show if his statements were not made intentionally or recklessly) .
A. Where the state law enforcement officer, Trooper Bleicher, who also participated in the subsequent searches, and the state's attorney, Mr. Novak, intentionally or recklessly made misstatements or omissions to the magistrate who issued the search warrants (for anytime subsequent to the signing at 9:25 pm.) for Mr. xxxx's home and vehicle, the officer and the state must prove that these misstatements were not made intentionally or recklessly.
Adopting Franks v. Delaware, in part, 438 U.S. 154, 155-56, 98 S.C. 2674, 2676, 57 LED.2d 667, 672 )1978), the Alaska Supreme Court ruled once the defendant has pointed out specifically that statements in the affidavit are false, together with a statement of reasons in support of the assertion of falsehood, the burden then shifts to the state to show by a preponderance of the evidence that the statements were not made intentionally or with reckless disregard for the truth. If the state does not meet this burden, then the misstatements must be excised and the remainder of the affidavit tested for probable cause. Malkin, 722 P. 2d at 94 6 (emphasis added) Further,
(i]f, in fact, the police officer affiant intentionally made the misstatements then the search warrant should be invalidated whether or not probable cause would remain from the affidavit after the misstatements were excised. A deliberate attempt to mislead a judicial officer in a sworn affidavit deserves the most severe deterrent sanction that the Exclusionary rule can provide. Further, the fact that the officer has lied puts the credibility of the entire affidavit into doubt.d., n. 6(emphasis added)
Dang's Criminal History
In accordance with Malkin, the defendant, Mr. xxxx, points out to the court that false and misleading statements and omissions were made to the magistrate. Trooper Bleicher misrepresented to the court that the criminal informant's criminal history consisted of only three convictions. He told the court that he had checked the Department of Public Safety Records and claimed that he found that the criminal informant, Dang, had only three convictions - a 1979 conviction for burglary, a 1983 conviction for larceny, and a 1994 conviction for assault. Although it is readily accessible public information, Trooper, Bleicher omitted telling the magistrate that criminal informant Dang had been convicted of making a false report of crime, subsequent to the 1983 larceny conviction, but prior to the l994 assault conviction. On December 14, 1989, criminal informant Dang was charged with making a false report of crime, which he pled no contest to on January 10, 1990. Attachment C. Other criminal offenses not disclosed to the court include the following:) 1979:Convictions for Burglary in a Dwelling - 4FA-79-1044 C@-.Burglary in a Dwelling/Forgery 3AN-79-1452 Cr.Attempted Larceny in a Building 3AN-79-3577 Cr.2) 1980: Harassing Communications(where Dang telephoned a wounded police officer and threatened his life, while pretending to be the brother of the person who had shot the officer) See Attachments D & E.
Mr. xxxx also alleges that Mr. Novak, the state's attorney, along with Trooper Bleicher, intentionally withheld Dang's crime of dishonesty from the magistrate. Criminal informant Dang testified, "I've been in the United States for 43 (sic) years. I haven't been in trouble for13ears." (Tr.41) Mr. Novak, made no effort to correct the record or testimony. Yet, less than 24 hours later, the state charging document cited the conviction, characterizing it as '1990 Making False Report." Like the conviction for a false report,, ""Harassing Communications" was listed on the state charging document, though not revealed at the search warrant hearing. The same state attorney present at the search warrant hearing, Mr. Novak, is the state attorney who signed the state charging document. Attachment B.
Moreover, even the state considered the false report of a crime to be a crime of dishonesty significant enough to use as impeachment material to present to the court. In State v. Dang, 3AN-S93-750 Cr., the state filed a Notice of Intent to Impeach on March 8, 1993. Attachment F. That notice explicitly lists Dang's conviction of making a false report. The state knew of his convictions. Yet., the record indicates that at no time during the search warrant proceeding, or thereafter, did Mr. Novak make any attempt to apprise the magistrate of the misrepresentation he made to the court, or attempt to undo his subornation of Dang's untruthful testimony that he had not been "in trouble for thirteen years."
Promises and Agreements with Dang
Upon information and belief, the state and Trooper Bleicher intentionally or recklessly misrepresented what promises or agreements had been made to the criminal informant for his testimony. Upon information and belief, the defendant alle-es that criminal informant Dang was assured that his case would not get moved to federal court in exchange for his cooperation. While Ms. Reeves, who purchased drugs from Dang, and the defendant, Mr. xxxx, had their state cases moved to federal court, Dang's case remained in state court. State v. Dang, --ANS95-3265 Cr . Subsequently, Dang was also released to a third party custodian, and had his bail reduced to $25, 000 cash or corporate. In summary, Mr. xxxx alleges that Trooper Bleicher and the state's attorney intentionally and falsely represented the criminal history of criminal informant Dang to the magistrate, and intentionally misrepresented promises or agreements made in an attempt to bolster his otherwise questionable credibility. The state must prove by a preponderance of the evidence that the misstatements and omissions were not intentionally made. Malkin,at 947-48. If the state cannot prove that the statements an d omissions were not intentional then the search warrant obtained should be invalidated. The fruits of the pursuant illegal search would then be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.C. 407, 9 LED.2d 441 (1963).
Alternatively, if the falsely represented criminal history of criminal informant Dang were made with a reckless disregard for the truth, then the remainder of the record must be tested for probable cause. If the state cannot prove that the misstatements or omissions were not recklessly made, then (the record must be read to determine if there is ample evidence to support a finding of probable cause "[wlhen the misstatements are deleted from the record and the omissions added...." Atkinson v. State, 869 P.2d 486, 492 (Alaska App. 1994). (See Argument IIB and III, infra).
B. Where the state law enforcement officer, Trooper Bleicher, and the state's attorney, Mr. Novak, intentionally or recklessly misstated the criminal history of the in custody criminal informant Dang and misled the magistrate, omitting a conviction for filing a false report of a crime and, upon information and belief, withheld from the magistrate the promises or agreements made to criminal informant (who was under arrest for charges stemming from a drug sale that same day), the warrant was based on inaccurate and incomplete information and should be invalidated.
To invalidate a facially valid search warrant based on the allegation of false assertions, two questions must be answered. First, was there a knowing and intentional falsehood or a reckless disregard for the truth? Second, was the cxxxxenged statement essential to the issuing magistrate's finding of probable cause? Franks v. Delaware, 438 U.S. 154, 155-56, l71-72 (1978); United States v. Dozier, 844 F.2d 701, 705 (9th Cir.1988) ; Malkin, 722 P.2d at 946 (adopting Franks v. Delaware. in part).
If the court finds that Trooper Bleicher and/or the state intentionally misrepresented either criminal informant Dang's criminal history or any promises or agreements made to him, then "(T]he warrant should be invalidated whether or not probable cause would remain from the affidavit after the misstatements were excised." Malkin 722 P.2d at 946, n.6; see also United States v. Leon, 486 U.S. 897, 104 S.C. 3405, 82 LED.2d 677(1984) (holding that the good-faith exception to the exclusion rule does not apply where the officer securing the warrant provides false or misleading information) .
In the alternative, if the court finds that Trooper Bleicher and/or the state recklessly disregarded the truth, the warrant should be invalidated because there was not probable cause for issuance of the warrant. The record clearly establishes that the magistrate relied upon the testimony of the criminal informant and Trooper Bleicher. "[S]o far the only testimony you've got is that he -- apparently testimony from this Mr. Dang ... But other than that, there's nothing to indicate anything." (Tr. 21) The magistrate obviously gave credence to each of their statements. However, had the magistrate known that Dang had a conviction for filing a false report of a crime, along with other crimes of dishonesty, such impeachment evidence might have caused him to give little or no credence to the testimony.
Further, had the magistrate known that any promises or agreements were made with Dang, the witness's credibility would have been further undermined. The Alaska courts recognize that the testimony of a criminal informant, like Dang, inherently "convey[s] a certain impression of unreliability.'" Gustafson v State 854 P.2d 751, 756 (Alaska App. 1993) (quoting Erickson v. State, 507 P. 2d 508, 517 (Alaska 1973) ) .
Thus, the law examines a person's connection to the event and his or her probable motive for bringing the information to the police. When a person's primary motive is to obtain some personal benefit, the law requires greater corroboration of the person's information. If, however, the individual comes forward without concern for personal benefit, the law requires less corroboration.Id. at 756-57. Had the magistrate known of any agreements or promises made to Dang, then, as a matter of Alaska law, the magistrate would have been required to corroborate Dang's testimony. No corroboration of Dangs testimony about his alleged relationship or alleged drug dealings with Mr. xxxx is indicated in the record.
The only evidence that the magistrate had to base his finding of"reasonable grounds"and probable cause was Dang" testimony. (Tr. 21, 42, 44) Trooper Bleicher offered no substantive evidence. He merely recited his reliance on the statements made to him by Dang while Dang was in custody. Dang had no history of providing reliable information on prior occasions. No other tips or confidential information had been given to the police. No surveillance had ever taken place. There was nothing to indicate any kind of wrongdoing going on in the home located at 3407 Spenard Road or by Mr. xxxx. Trooper Bleicher had not even verified the ownership or control of the home that he intended to search that night. (Tr. 24) The magistrate relied only on the bald assertions by a criminal informant who had just been arrested for serious drug offenses, and who as still in custody, and on the assertions by a state trooper that no promises or agreements had been made to induce Dang to fabricate his testimony.The magistrate made a clear record that it was the testimony of Trooper Bleicher and criminal informant Dang that he relied upon to find probable cause. "'The judicial officer has the ability and duty to make a searching inquiry as to the validity of the facts in the police officer's affidavit." However, even if the Court finds that the magistrate fulfilled his duty, his efforts to make a searching inquiry were thwarted by the intentional or reckless misstatements and omissions made by the trooper, the informant, and the representative for the state. The magistrate's assessment of the witness's credibility was obviously perverted and corrupted by the misrepresentations and omissions made either intentionally or recklessly by Trooper Bleicher and the state. Had the impeachment evidence been made known to him, as well as promises (upon information and belief) made to the witness, he would have had no credible testimony to rely upon to issue the search of a citizen's home. When the reckless misstatements are deleted and the omissions are added to the record, the search warrants were not based on a sufficient showing of probable cause.
III. WHERE THE ONLY BASIS FOR THE MAGISTRATE'S
FINDING OF PROBABLE CAUSE TO ISSUE SEARCH
WARRANTS AUTHORIZING THE SEARCH OF MJ.
xxxx'S HOME- THAT NIGHT AND OF HIS VEHICLE IS THE TESTIMONY OF DANG, A CRIMINAL INFORMANT WHO IS
CUSTODY, AND THE MERE REPRESENTATIONS BY A STATE
TROOPER THAT THE WITNESS TOLD HIM THE SAME
INFORMATION BUT WHERE NO OTHER EVIDENCE OR CORROBORATION IS OFFERED UNDER THE TOTALITY OF THE CIRCUMSTANCES TEST THERE IS NOT A
SUFFICIENT BASIS FOR A FINDING OF PROBABLE
CAUSE THE-WARRANT SHOULD BE RULED INVALID AND THE
EVIDENCE SEIZED PURSUANT TO THE WARRANTS SHOULD
BE SUPPRESSED.
A.The court should rule that a criminal informant's testimony alone, while he is in custody, recently arrested for serious drug offenses, and seeking bail, cannot provide a substantial basis to conclude that there is probable cause to search a citizens' home.
"[T]he duty of the reviewing court is simply to ensure that the magistrate had a 'substantial basis for... concluding that probable cause existed."' Id. at 238 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.C.725, 736, 4 LED.2d 697 (1960))(emphasis added). "By definition, criminal informants are cut from untrustworthy cloth and must be managed and carefully watched by the government and the courts." United States v. Bernal-Obeso,. 989 F.2d 331, 333(9th Cir. 1993). (6)
Informants do not tend to follow mores. According to one informant, "in the old days" informants abided by a rule not to act as an informant against other informants, but presently informants"will even book their own mother."
This disinclination to follow societal rules extends to their willingness to defile an oath.
Id. at 334 (quoting Report of the 1989-90 Los Angeles County Grand Jury, -Tune 26,, 1990, at 16. See also Mark Thompson, The Truth About the Lies, Cal.Law., Feb. 1989, at 15; Mark Currider,, No Honor Among Thieves, A.B.A. J., June 1989, at 52.).The testimony of some witnesses must be considered with more caution than the testimony of other witnesses.
For example, a paid informer, or a witness who has been promised that he or she will not be charged or prosecuted [or promised that their case will not go federal, but will remain in state court where penalties are less harsh, upon information and belief, as promised to Dang], or a witness who hopes to gain more favorable treatment in his or her own case (as Dang indicated in the course of his testimony that he just wants bail and was concerned about the custody of his child], may have a reason to make a false statement ["I haven't been in trouble for 13 years."] because he wants to strike a good bargain with the Government. So, while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses.Id. (Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit, Criminal Cases, Special Instruction No 1.1 (1985) ) (paraphrased and emphasis added)
Since all that the state had was this criminal informant, and nothing else, it is lear that the magistrate did not consider this testimony with more caution. On the contrary, he took it all at face value. If he had considered it with more caution, then he would have required more before authorizing a search of Mr. xxxx's home. Testimony like Dang' s, standing alone, does not rise to the level necessary to find that the magistrate had a substantial basis for finding probable cause to search a citizen's home.
B. The state trooper and the prosecutor, in misrepresenting the criminal history of the criminal informant witness, and, upon information and belief, in failing to disclose promises made to the criminal-informant witness, breached their duty to safeguard the criminal justice system from treachery.
It is also true, however, that our criminal justice system could not adequately function without information provided by informants and without their sworn testimony in certain cases ....
Thus, we have decided on balance not to prohibit, as some have suggested, the practice of rewarding self-confessed criminals for their cooperation, or to outlaw the testimony in court of those who receive something in return for their testimony. Instead, we have chosen to rely on (1) the integrity of government agents and prosecutors not to introduce untrustworthy evidence into the system; (2) trial judges and stringent discovery rules to subject the process to close scrutiny; (3) defense counsel to test such evidence with vigorous cross examination.Id. at 335 (citations omitted) (emphasis added) "A prosecutor who does not appreciate the perils of using rewarded criminals as witnesses risks compromising the truth-seeking mission of our criminal justice system." Id. at 333.
In this case, knowing that "[tlhe usefulness of an informant as a witness depends in large measure on the degree to which he both is and can be presented to a fact finder as a reliable person, " the state' s attorney, Mr. Novak, in misrepresenting Dang's criminal history and, upon information and belief, in failing to disclose promises made to Dang, acted intentionally or in reckless disregard for the truth in order to present Dang as a reliable informant witness. Id. at 335-36. The government agents did not demonstrate the integrity that is required when it failed to make corrections (as when Dang testified,, "I haven't been in trouble for 13 years"), misrepresented the criminal history, and failed to disclose promises. In so doing, the integrity of the system, which serves to protect citizens .not only from the criminal element, but also against unreasonable searches and seizures' was endangered. U.S. Const. amend. IV; Alaska Const. Art. I, § 14 and Art. It §22.
C. Under the totality of the circumstances, warrants for the searches of Mr. xxxx's home and personal vehicles should not have been authorized and are therefore invalid.
The court should review the search warrant proceedings under the totality of the circumstances test. The court should consider the reliability and credibility of the criminal informant, as well as the actions of state officers, including Trooper Bleicher, Mr. Novak (the state's attorney), and the issuing magistrate. Gates, 462 U.S. 213.
Gates supports the proposition that the courts must use caution when presented with an informant. Though the court abandoned a rigid test for evaluating an informant's reliability and credibility, corroboration by independent police work of an informant's tip is still of significant value. Gates, 462 U.S. at 214 and 244-45. In Gates, upon receipt of an anonymous tip from an informant, the police pursued the informant's tip prior to seeking a search warrant. Police activity included contacting a second confidential informant, an examination of financial records (through that informant), and surveillance for approximately two days, where suspicious activity by the defendant was observed. The Gates court noted that the police were able to supplement the informant's tip.
In this case, no independent police investigation ever took place. The police went from the informant's tip to the magistrate, with the recently arrested informant in tow, essentially shirking their duty to investigate. The police did not even know Mr. xxxx's name or address. Until the informant, had named "Ron," the police had no suspicions of criminal activity by Mr. xxxx or that his home might be a site where any criminal activity might have taken place.
It should be noted that the testifying officer, Trooper Bleicher, had been conducting an eight month or more investigation which, the record indicates, was to culminate that day with the controlled buy and arrest of Ms. Reeves. one after stumbling upon Dang did Trooper Bleicher obtain any information about Mr. xxxx. Trooper Bleicher then ran to court to get a night time search warrant for Mr. xxxx's home. Dang' s in-custody statements had never, the record indicates, been supplemented by information independently obtained by the police. In this case, the police had only the statements of a recently arrested and in custody informant, who has a criminal history that includes crimes of dishonesty when dealing with law enforcement (false report of a crime and pretending to be someone else while threatening the life of a law enforcement officer) .
It is true that the Gates court noted, in framing the totality of circumstances test, that a rigid test for the reliability and the credibility of an informant's tip is not necessary. However, in its reasoning, the court gave several examples to justify its holding. Gates, 462 U.S. at 2329, n. 7. In each case described, something more than an informant's tip was relied upon. The informant may have had a history of providing reliable and correct information on another occasion. Dang had no such history. Another confidential informant might have corroborated the tip. No such tip was provided to the police, in this case. Independent police work, such as surveillance, might provide probable cause. No police surveillance of Mr. xxxx's home, person, or vehicle had been conducted. The police did not even know the address or the control or ownership of the residence.
In Gates the court held that "an informant's 'veracity' "reliability' and 'basis of knowledge' are all highly relevant in determining the value of his report." Gates, 462 U.S. at 230 (emphasis added) . "Obviously any reliance on factual allegations necessarily entails some degree of reliability upon the credibility of the source. Id., n. 6.
Since the facts of Gates dealt with an informant who did not appear before a magistrate, the government may cite United States v. Elliott, 893 F.2d 220(9th Cir.1990) for the proposition that a person appearing before a magistrate testifying under oath "provides a powerful indicia of veracity and reliability." Elliott,, 893 F.2d 220. However, the witness in Elliott was not from the criminal milieu. In Elliott, the police officer was found to have intentionally or recklessly misled the issuing judge with regard to an electric bill, not with regard to the veracity and reliability of the witness. Mr. xxxx' s case is distinguishable in that the police and state misled the court with misrepresentations and omissions that effectively bolstered I the credibility of the criminal informant. Furthermore, in this particular case, the issue, is not merely the impeachment of the criminal informant's testimony, but the impeachment of the police and government who intentionally or recklessly withheld information regarding Dang's propensity to lie. Elliott at 224.
The informant in this case, Dang, unlike the Elliott witness, had just been arrested for narcotics transactions, and was claiming to have committed other illegal acts with a third party not known to the police. The United States Supreme Court recognized that "(T]he arrest statements of a codefendant have traditionally been viewed with suspicion. Due to his strong motivation to implicate the defendant, and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence.'" Williamson v. United States, __U.S.__, 114 S.C. 2431, 2435, 129 LED.2d 476 (1994) (quoting Lee V. Illinois, 476 U.S. 530, 541, 106 S.C. 2056, 2062, 90 LED.2d 514 (1986)(other citations omitted)). moreover, paraphrasing the opinion,
A reasonable person in (Dang's] position [a Vietnamese immigrant who has just been arrested for serious drug offenses, who is in custody, and who is worried about the custody of his child] might even think that implicating someone else would decrease his practical exposure to criminal liability, at least so far as sentencing goes.Id., 114 S.C. 2431, 2437.
A "common sense" (as characterized in Gates) consideration of the testimony and facts before the magistrate leads to the conclusion that Dang could have taken the police to any house and made the same allegations. Dang could have pointed his finger at any person, any neighbor, and, under the facts of this case, any person's home could have been searched based on the kind of information Dang and the state provided the magistrate. The state's and Trooper Bleicher's "bare bones" application and testimony, compounded with misleading and material misrepresentations and omissions regarding the veracity and the reliability of the criminal informant, endanger the security and privacy guaranteed by the federal and state constitutions. If the misrepresentations are excised and the omissions added, the criminal informant witness has no credibility. Without his testimony, there is no other evidence to support a finding of probable cause. There was no probable cause supporting the issuance of the warrants to search a citizen's home or personal vehicle.
In any event, even with Dang's testimony, the record reflects that there was not sufficient evidence to support a finding of probable cause. A magistrate must "'perform his 'neutral and detached' function and not serve merely as a rubber stamp for police." Leon, 486 U.S. at 914(quoting Aguilar v. Texas, 378 U.S. 108, 111, 84 S.C. 1509, 1512 (1964), and citing Gates, 462 U.S. at 239) . The magistrate simply rubber-stamped Trooper Bleicher's representations. There is nothing in the record that offers the assurances necessary to safeguard the constitutional "right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; Alaska Const. Art. I, § 14 and Art. I, §22. The warrants should be rule invalid and the searches illegal.
IV. THE GOOD-FAITH EXCEPTION TO THE
EXCLUSIONARY RULE DOES NOTAPPLY WHERE THE STATE 0F ALASKA HAS NOT ADOPTED SUCH EXCEPTION NOR DOES IT APPLY WHERE A POLICE OFFICER
TROOPER BLEICHER AND THE STATE, MISLED THE
MAGISTRATE BY DISHONESTY AND RECKLESS
DISREGARD FOR THE TRUTH.
Whether Alaska should "adopt as a rule of decision Alaska the rule that good-faith reliance by police on invalid warrants precludes suppression of the fruits of the service of the warrants" has not yet been decided. State v. White, 707 P.2d 271, 276-77. Therefore, the good faith exception test should not be applied to a state warrant and state search. "'A deliberate attempt to mislead a judicial officer in a sworn affidavit deserves the most severe deterrent sanction that the Exclusionary rule can provide." Malkin, 722 P.2d at 946, n.6. Under Alaska law, if Trooper BLEICHER cannot prove that his statements were not intentional, then the evidence should be suppressed.If, however, the Court rules that the good-faith exception test does apply, the warrant should still be ruled invalid. The "good faith" exception holds that when an officer acting with good faith has obtained a search warrant from a judge or magistrate and acted within its scope, the evidence obtained on a subsequently invalidated search warrant need not be excluded. Leon, 468 U.S. 897. The good-faith exception does not apply where the officer securing the warrant provides false or misleading information, or where the magistrate judge "wholly abandons his judicial role." United States v. Michaelian, 803 F.2d 1042, 1046 (9th Cir. 1986) .
In this case, Trooper Bleicher admits that he, personally, did the criminal history search of Dang in the "Department of Public Safety record." (Tr. 17) He did not rely on the government's attorney. The police had done no extensive investigation of either Dang, its criminal informant witness, or of the defendant. There was, otherwise, no substantial basis for finding probable cause. See United States v. Brown, 951 F.2d 99, at 1004-06. Trooper Bleicher is the officer who provided the false information and misled the magistrate.
Just as "'identifications made by policemen in highly competitive activities, such as undercover narcotic agents .... should be scrutinized with special care, "' so, too, if not more so, should a "bare bones" testimony of a similarly situated law enforcement officer, like Trooper Bleicher, who seeks warrants to search a citizens home and personal vehicle, be scrutinized. Manson v. Brathwaite, 432 U.S. 98, 131, 97 S.C. 2243, 2261, 53 LED.2d 140 (1977) (Marsxxxx,, J. dissenting) (relying on Wall, P. Eye-Witness Identification in Criminal Cases 19-23(1965) (emphasis added) Trooper Bleicher, with fourteen years of experience, should be well-cognizant of the constitutional rights of citizens. However, he has only been with the Statewide Drug Enforcement Unit for approximately three years, a "highly competitive" activity. (Tr. 5)
Trooper Bleicher's intentional or reckless disregard for the truth regarding the reliability and veracity of the witness he offered to-the court, thereby misleading the magistrate, does not trigger the good-faith exception. The good-faith exception evolved in an effort to deal with "the competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are 'acquitted or convicted on the basis of all the evidence which exposes the truth.'" Leon, 468 U.S. at 901 (quoting Alderman v. United States, 394 U.S. 165, 175, 89 S.C. 961, 967, 22 L.Ed.2d 176 (1969).
A. If Trooper Bleicher misled the magistrate with a reckless disregard for the truth and lack of due care and regard for the federal and state constitutional protections to citizens against unreasonable searches of their "persons, houses, papers and effects," then the exclusionary rule is applicable and the court should suppress the illegally obtained evidence.The exclusionary rule "operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect."" Leon, 468 U.S. at 906 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.C. 513, 38 LED.2d 561 (1974)). "It is designed to deter police misconduct....... Leon, 468 U.S. at 916. "'By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused." Id. At 919(quoting United States v. Peltier, citation omitted)(emphasis added).
"Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth."Id. at 925 (emphasis added).
In this case, Trooper Bleicher was the officer securing the warrant and was also one of the searching officers. The record indicates that Trooper Bleicher's own investigation had failed- to uncover any suspicions surrounding the home and vehicle for which he sought warrants to search. When faced with the possibly that his investigative work might not have been complete, he jumped on the tip of a criminal informant in custody, with whom Trooper Bleicher had no history of obtaining reliable information. Instead of conducting an investigation or doing surveillance, he rushed to court, recklessly seeking to invade the privacy of a citizen and to search his home.
If the evidence is not suppressed, then the effect is to wrongfully encourage Trooper Bleicher to continue to intentionally or recklessly disregard the truth when seeking future warrants. It would serve to endorse and enable shabby police investigations, and to foster a lack of due regard by the police for the rights of citizens and of the accused that the state and federal constitutions seek to protect, to say nothing of diminishing those constitutionally guaranteed rights and protections. U.S.Const. amend. IV; Alaska Const. Art. I, § 14 and Art. I,, §22.
CONCLUSION
A criminal informant's testimony alone, while in custody, recently arrested for serious
drug offenses, seeking bail, cannot provide a substantial basis for concluding that
probable cause existed. The warrants to search Mr. xxxxs home and vehicle were invalid.
All of the evidence derived from the illegal searches and seizure, and the tainted arrest
of Mr. xxxx, should be suppressed.
DATED at Anchorage, Alaska, on this 21 day of May, 1995.
Rex Butler (ABN 83105105)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA AT ANCHORAGE
UNITED STATES OF AMERICA
Plaintiff,
V.
RONALD D. xxxx,,
Defendant.
CASE NO.
AFFIDAVIT OF REX LAMONT BUTLER
REX LAMONT BUTLER, being first duly sworn, deposes and states as follows:
1. that I am the attorney of record for the Defendant, Ronald D. xxxx;
2. that the attached memorandum of law was prepared without having the opportunity of reviewing the pre-search warrant testimony to troopers of David Dang;
that a discovery motion for above-mentioned material was filed in state court on May 15,1995;
4. that an order compelling discovery was issued (see Attachment G), but the state dismissed the case before discovering the ordered documents;
5. that I have serious concerns regarding the requested documents and the information therein;
6. that a discovery motion for said documents was filed in federal court on May 26, 1995;
7 . that upon information and belief, promises were made to the state's criminal informant witness prior to his testimony at the search warrant hearing.
FURTHER AFFIANT SAYETH NAUGHT.
DATED at Anchorage, Alaska this day of May, 1995.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA AT ANCHORAGE
UNITED STATES OF AMERICA,
Plaintiff,
V.
RONALD D. xxxx,
Defendant.
CASE NO.
REPLY TO UNITED STATES' RESPONSE
TO DEFENDANT'S MOTION TO
SUPPRESS
COMES NOW the defendant, RONALD D. xxxx, by and through counsel, REX LAMONT BUTLER AND ASSOCIATES, and responds to the United States' Response to the Defendant's Motion to Suppress and Motion for Evidentiary Hearing.
INTRODUCTION
The government represents that the defense claims "'that Alaska State Trooper Tim Bleicher and/or Assistant District Attorney John Novak recklessly, intentionally, or negligently" omitted information to the magistrate judge which were material to the finding of probable cause. (Govt. Resp. 2) The defendant never alleged that either Trooper Bleicher or Mr. Novak were merely negligent. The defendant maintains that Trooper Bleicher and Mr. Novak acted intentionally, or, at the very least, with a reckless disregard for the truth in the course of the search warrant hearing in this case.
The government also mischaracterizes the defendant's allegations that promises or agreements were made with Mr. Dang as allegations of that a "deal" was made. The defendant never used the term "deal," and consistently alleged that promises or an agreement, upon information and belief, were made to the criminal informant, Dang.
SUPPLEMENTAL STATEMENT OF FACTS
Subsequent to the defendant's filing of the aforementioned motions, the defendant obtained transcripts from David Dang's bail hearing and of his statement to the police. Dang's interview with Trooper Bleicher began at 4:17 p.m. on May 12, 1995. (Attachment A,, Transcript - "Police Stmt.") Thereafter, the search warrant hearing at issue took place on May 12, 1995, commencing at 8:25 p.m and ending at approximately 9:25 p.m. Discovery materials indicate that Trooper Bleicher was present at 10:30 p.m. for a briefing just before starting the search of Mr. xxxx's home. The search took place from 10:53 p.m. until approximately 2:26 a.m. on May 13, 1995, lasting over 3 ½ hours. It appears from the record that Dang's bail hearing took place some time between 9:25 p.m. and the 10:30 p.m. briefing. (Attachment B, Transcript - "Bail Tr.") Trooper Bleicher and Dang testified; Mr. Novak was present for the state.
Dang's Criminal History and Dang's Lack of Credibility
The APSIN Printout
Subsequent to the defendant's filing a Motion to Suppress, a Police Affidavit" sworn to by Trooper Bleicher was filed with he court by the government. Except for the introduction and items 1 and 2, the remainder of the Affidavit is written in the third person.
In Item 17 of his affidavit, Trooper Bleicher claims that he ad an APSIN printout of Dang's criminal history, "realizing the importance for the magistrate to evaluate David Dang's testimony in person, to establish in the magistrates (sic) own mind the credibility of the witness." Trooper Bleicher admits that he did not disclose every single arrest and/or conviction. The inference this statement creates is that Trooper Bleicher was motivated by this realization to go out and get the APSIN printout.
Contrary to his affidavit, from the transcript of the police statement, it is apparent that Trooper Bleicher obtained the APSIN printout before realizing that he would even be seeking a search warrant later that night. He did not, as the affidavit suggests, obtain the criminal history for the search warrant earing.
According to the transcript of the police statement, Trooper 3
Bleicher first met with Dang for an interview at 4:17 p.m. on May 12, 1995. Only in the
course of that interview did Trooper Bleicher get information concerning "'Ron."
Trooper Bleicher, the record indicates, did not leave the interview until the point when
he says "Let me get something out of my car. The criminal history."
(Police Stmt. 21) At that point in time, Mr. xxxx had not been identified. Moreover, the
state's charging document indicated that Mr. xxxx has no criminal history. The only person's criminal history Bleicher could
have been grabbing out of the car was Dang's. Trooper Bleicher, did not,
as he suggests, obtain the criminal record in order "to establish in the magistrates
(sic) own mind the credibility of the witness as he claims." Bleicher's Affidavit. He
already had it for his own use.
The Criminal History - Trooper Bleicher's
Testimony at Dang's Bail Hearing
As indicated, Dang's bail hearing took place some time between 9:25 p.m. and the 10:30 p.m. briefing on May 12, 1995, just after the search warrant proceeding. Unlike the search warrant hearing, without any hesitancy or stumbling (indicated in the transcript), Trooper Bleicher testified as follows:
He has a history of burglary in 1979; larceny in 1983; harassing communications, 1980; making a false report in 1990; violated terms of restraining order in 1993; assault in '94.
(Bail Tr. 5)
It should be noted too, that throughout the interview, Dang never accurately revealed his criminal history to Trooper Bleicher. Dang told Bleicher, "I been out of trouble for 10 years, almost 12 years." (Police Stmt. 10) "Eagle River Jail Corrections for 2 years, burglary... Then I was on probation for 5 years .... (Police Stmt. 14) At no time did Dang reveal his true criminal history to Trooper Bleicher. Yet Bleicher testified at the bail hearing as follows:Mr.Dang has been cooperative with us and advised me of that criminal history prior to me running that.
(Bail Tr. 5)
Trooper Bleicher's Reliance on Criminal Dang
As the government indicated, Bleicher had not worked with Dang for any period of time. (Govt.Resp. 3) Bleicher had no history with Dang that would give him a basis to rely on Dang as credible. Yet, with Dang's criminal history in hand, and knowing Dang had lied to him in the interview, Trooper Bleicher still sought a search warrant on the basis of an informant from the criminal milieu whose criminal record demonstrated a propensity to lie to law enforcement and commit crimes of dishonesty.
Police Interview
After being arrested, subsequent to being caught selling narcotics to Deborah Reeves, Dang' s in custody interview (7) with the police began with the following friendly exchange:
Trooper Bleicher: Mr. Dang, my name is Tim Bleicher.
Dang: Nice to meet you.
Trooper Bleicher: I'm a uh a State Trooper, uh, uh, okay, do you mind if I maybe share a chair with you?
(Police Stmt. 1)
Trooper Bleicher: ...[Would you be willing to talk with me now?
Dang: Yeah.
(Police Stmt. 1)
"Search" of Dang's Home
At the search warrant hearing, Trooper Bleicher pointed out to the court that ""prior to the service of that search warrant [for Dang's residence] he had indicated what would be found in the car and in the residence,," and that Dang was then placed in custody. (Tr. 12-13) The inference to be made was that Dang cooperated without any influence by the police and that Dang's house had been subjected to a routine police search. However, the in-custody interview with Dang indicates a different set of facts. At page 17 of the transcript, the following exchange took place:
Dang: Because the thing is, if we can make some kind of deal probation or whatever, I, I, I work for you, cause I'm stickin' my neck out right, gonna get shot.
Trooper Bleicher: Okay, now how about let me ask you this? Uh. right before we do that, uh, we've got some drugs in your car out there, uh, we' re gonna need to get that. How about your house. Would you mind if we look in your house?
Dang: You can look my house, but please all I'm ask you (inaudible)
Trooper Bleicher: Is your is your little 5 year old gonna be there?
Dang: My 5 year old daughter she always thinks she gonna loose (sic) her daddy, because she lost her mom once already, and she went through a lot ....
Trooper Bleicher: No we're not gonna tell her that. Dang. She went through the street to years(sic),calling
Trooper Bleicher: Okay.
Dang: Okay. And you be welcome to go in the house, do whatever yo want okay. What I have, I tell you told you about the marijuana on top, have a gram.... whatever you want okay. exactly what I have. in the drawer, that coke
(Police Stmt. 17-18)
Trooper Bleicher then gets an idea, which he and Dang develop together.
Trooper Bleicher: So if we went over there, just kinda lookin like we do, and took, took care of business, it wouldn't be a problem.
Dang: Naw.
Trooper Bleicher: We don't need to show up, you know...
Dang. Right. You pretend you come in and just do business, and I took care of going in
the room or wait for me, that' s usually I do, I do ....
Trooper Bleicher. Okay....
(Police Stmt. 18)
Later in the interview, Trooper Bleicher directs other officers, not to search Dang's house and car for 31/2 hours like Mr. xxxx's home and truck, but to ""look through his car and house real quick." (Police Stmt. 20)
Promises_or Agreements
Though Trooper Bleicher clearly told the court that no agreements or offers had been made to Dang, the transcript of his interview paints a less clear picture. After Dang told Trooper Bleicher that he had been involved with drugs "'kinda like" now, for thirteen months, Trooper Bleicher started making implied promises.
Trooper Bleicher: Okay, about thirteen months, okay. Alright, well hang in there, you know uh, we, we'll square it away.
Dang: I do need the money, I don't want to lose my daughter.
Trooper Bleicher: Sure. Well nobody is here to take your daughter away from you. Okay.
Dang: I lost my job already, I got nothing to lose now.
Trooper Bleicher: Okay, well no matter where you go, there are gonna be people that are a little better off than you, and people a little worse than you, and uh, we wanted to sit down and talk to you about what's going on....
(Police Stmt. 6)
It is unclear from the record what money Dang is referring to. Dang continued to
plead his case to Trooper Bleicher.
Dang: Look man, look, I, look, I been in trouble before .... I have nothing to lose,...I lost my job, all that matter... and now it my daughter, I might lose my daughter because my ex-wife ...
Trooper Bleicher: Try to use this against you...
Dang: Yes.
Trooper Bleicher: Okay. Well to hang in there.
Dang: I did every fuckin thing... and this guy...
Trooper Bleicher: 5240. Just hang in there.
Dang: I don't know if I, I (inaudible...) I don't care about going jail, because I can
do time. I'm not worry that..
Trooper Bleicher: Okay. well will work it all out. We'll work it out.
(Police Stmt. 8-9)
Dang: Whatever man you guys want to do, I do it, alright.
Trooper Bleicher accepts.
Trooper Bleicher: Okay. Okay.
Police Stmt. 10)
Later in the interview, Trooper Bleicher continued in his efforts, forging a partnership with Dang.
Trooper Bleicher: We want to make a clean slate here, Dave so ...
Apparently interpreting this as an offer, part of a bargained for exchange, Dang promptly provided information to Trooper Bleicher.
Dang: And then I have other people I can get a hold and get some, too. But I don't know the names, I mean I what I can do.
(Stmt. 12)
Trooper Bleicher: Okay so you would be willing to uh, wear a wire for me, go back there and talk to Ron.
Dang: I'd do anything man, I'd do anything.
(Stmt. 14)
Trooper Bleicher: Could you go in and make a small buy for me?
Dang: Oh yeah, I can make any buy.
(Stmt. 15)
Moments later, Trooper Bleicher changed from speaking in the
first person singular to the first person plural.
Trooper Bleicher: Anybody else you think we need to uh, go do something like that with. We could do Ron, and who else could we do?
Dang: We could do Rico.
(Police Stmt. 15)
Only a little more than an hour later, at 5:21 p.m., after a 8 minute gap in the taping of the interview ("Go off at 4:53 ..... and it's 5:21 p.m.), the transcript indicates, after many inaudible" entries, the following exchange between Trooper Bleicher and Dang.
Trooper Bleicher: Okay yeah, like I said, well (sic) take you into a District attorney here in just a minute and it's 5:21 p.m.
Dang: One thing you could ask him about, everything we, I told (inaudible ...
Trooper Bleicher: Okay, well we're not making you any promises, but you know I'll take you to a District Attorney and you could talk to him and tell him the same thing you told me.
Police Stmt. 20).
There is no indication in the transcript that there was any discussion about the District Attorney - "like (Trooper Bleicher] said." There is, however, a large gap in time that went unrecorded. It appears from the transcript that a significant amount of communications were going on, off the record.
At this point, Trooper Bleicher indicated that they were going to take off and directed "'Franco" and "Roger" to '-,look rough his car and house real quick." (Police Stmt. 20)
It is unclear when Dang's house was looked through quickly, ut he and Trooper Bleicher were working together.
Trooper Bleicher: Okay, close that garage door.
Inv. Mares: I'll take care if (sic) the door.
Dang: You didn't happen to have uh, my uh, uh, house key and stuff. Can you give that to my wife? That's the only key I have.
Police Stmt. 21)
Trooper Bleicher said "Yeah, we can work that out." Though suspects normally ride in the back seat of a police vehicle, Trooper Bleicher directed Dang,, "Go ahead and get in the front seat around here." (Police Stmt. 21)
Investigator Walt Kenny submitted an affidavit to this court, stating that "no promise or inducement" was "made to Dang," taking care to specifically qualify that to mean "whether his case would be prosecuted by the State of Alaska or the United States."
However, Investigator Kenny told Dang the following, during the police interview:
Inv. Kenny: Well, right now, things real grim David, but uh, you can be a light at the end of the tunnel, if you will.
Dang: I do anything, man, ....
(Police Stmt. 21).
Later in the transcript,, there is a "long pause, no noise just tape running.... (8)
(Police Stmt. 24) Then, following this gap, Mr. Novak suddenly appears. There is no
transcription of any conversation between Mr. Novak, Trooper Bleicher, and Inv. Kenny, but
Mr. Novak states the following:
Novak: Hi Mr. Dang, uh, my name's John Novak, I'm the Assistant D.A., uh and I've talked to uh, uh, Trp. Bleicher and uh, briefly to Trp. Uh Kenny, as well. And they've indicated that uh, you (sic) interested in cooperating with the authorities, uh, in connection, with uh , testifying before the magistrate and, and uh, making an application to get a search warrant. Is that right?
Dang: Yes.
(Police Stmt. 24)
Novak: And, umm, basically I, I've been told that your (sic) concerned about the custody situation with ...
Dang: My daughter ....
Novak: Okay, and you understand that the only deal that the state is entering into we'll bring your cooperation, umm, to the attention of any authorities in that regard, and there is no other deal on what is going to happen in that regard or any other matter. Is that right?
Dang: Yeah.
Novak: Okay, umm, with that in mind then we'll just go over there and uh, take from there (sic). Any questions you have of me or anybody else at this time?
Dang. Do I possibly get bail or anything?
Novak. Okay, that's going to be up to the judge, when you,, when, when, you appear before the judge ... We can't promise you one way or the other on that. That's going to be totally up to the judge on what happens.
(Police Stmt. 25)
The transcript of Dang's police statement beginning at p. 26 is not clear as to the circumstances under which it was recorded. What is clear is that Dang' s behavior has taken on new air of bold assertiveness towards Trooper Bleicher.
Dang. confiscate that car, you can't t. because it did not come from drug money,...
Trooper Bleicher. Okay.
(Police Stmt. 28)
In the midst of many 'inaudible" entries, Trooper Bleicher tells Dang,
Well, you're, you're cooperating and the district attorney, you know, told you that, uh, you know its gonna be, noted that your (sic) assisting the police here.
(Police Stmt. 31)
Again, amidst many "inaudible" entries, the following is transcribed:
Dang. Inaudible.
Trooper Bleicher. If I don't know, you know it's, I'm not going to lie to you at all, see, so that's why I can't say you know hi or low, long or short...
Dang. Inaudible
Trooper Bleicher. I, I wouldn't, you know the DA and I we're gonna say that your (sic) helping us out here.
Dang. Inaudible.
Trooper Bleicher. Yeah.
(Police Stmt. 33)
Throughout the interview, Trooper Bleicher develops a rapport with Dang, and continues to make implied and explicit promises to Dang. At one point, it appears that Trooper Bleicher and Dang are discussing the prospects of Dang working with Trooper Bleicher.
Trooper Bleicher. Any other dealers out there uh,
Dang. I tell you I know lots of dealers out their, maybe hundreds ....
Trooper Bleicher. (giggle) ... I'm listening if you want to tell me.
Dang. Inaudible ... I don't know their names. I usually contact them....
Trooper Bleicher. Well if you work me, you can't do any. While you work for me.
Dang. I want, I want.
Trooper Bleicher. You gotta be clean.
Dang. I want.
Trooper Bleicher. Well first you'll have to get this all squared away.... I mean you could have in your hand.
Dang. I could have my hand, I don"t want this shit...
(Police Stmt. 36)
Trooper Bleicher. Okay. Well like I said, I, you know, I have, I can't make any promises or anything like that, well (sic) take care of what we're doing today.
(Police Stmt. 37)
Defendant's Home Address
At the search warrant hearing, Trooper Bleicher testified,
"Ron living in a trailer, Space 56. This is what David Dang
said, in trailer space (Tr. 13) In fact, the only indication of the location of "'Ron's trailer by Dang during his interview is as follows:
Trooper Bleicher. Okay, where is his trailer at.
Dang. Over, it is down on Minnesota, I don't know the name,, I just know the area ....
Inv. Kenny. Do you know how to get there?
Dang. Uh... I know how to get there , yes.
Trooper Bleicher. You could show us where it is at. Dang. Yeah, I can....
(Police Stmt. 10) At no time did Dang indicate the trailer space number or the street on which it is located.
In the aforementioned "Police Affidavit" signed by Trooper Bleicher, Bleicher unabashedly continues his misrepresentations to this court as well. In item 14 of his affidavit, Trooper Bleicher swears that Dang described "Ron" as "living in a trailer court, space 56, near Spenard Road and Minnesota Street."
"Urgency" to Search the Defendant's Home at Night
The magistrate issued a warrant which would permit an immediate night time search of the residence. Trooper Bleicher was asked "Is there some urgency for the need to serve it this evening rather than put it--put this searching off until tomorrow during the day?"To this question, Trooper Bleicher testified as follows:
Yes. I feel that it's paramount to serve -- to search as quickly as possible since the individual, Ron, based on Mr. Dang's statement, is expecting the 25,000 for the kilo that he would have allegedly gave (sic) David Dang, and we've already searched David Dang's residence, and his ex-wife is there, and she's been encouraged not to talk to wrong (sic) if he calls looking for the money or Mr. Dang."(Tr. 18)
Trooper Bleicher again misrepresents the truth to the magistrate. During the police interview, it was clear that the money did not have to be delivered that day.
Trooper Bleicher. Okay so you would be willing to uh, wear a wire for me, go back there
and talk to Ron.
Dang. I'd do anything man, I'd do anything.
Trooper Bleicher. Okay. If uh, if you went back to Ron, and uh, see I'm not going to give you uh, I'm not going to give you 25 thousand. I'm not going to give you 25 thousand to take back to Ron. Okay, but if you worked with me, and I sent you back into Ron and talk to him....
Dang. Right, ....
Trooper Bleicher. ....and you didn't have money, is that going to be a problem?
Dang. Well no ....
Trooper Bleicher. Can you just talk to him?
Dang. Well what I could do in there and say Ron man I was suppose to pick up the 25
thousand dollars, and he didn't show up, and I owe you 25 thousand. And he's probably
going to say, well I'm not going to front you anymore until you give m the money. That
basically what it come down to, or like that he would like say...
(Police Stmt. 14-15)
Trooper Bleicher. Okay, if I give you, if I gave you $800.00 bucks, you can go in there and say, I, I don't heave uh, the 25, you know can you give me an ounce.
Dang. Yeah, right, I can post the edge and say look, that 25 thousand is not coming through...
(Police Stmt.14-15) To which Bleicher, in forging their partnership, assists Dang by saying the following:
Trooper Bleicher. You'd able to get in tomorrow or something...
Dang. Yeah, easily.
(Police Stmt. 15)
It is clear that Dang felt that he could easily avoid paying he $25,000 he allegedly owed "Ron." Moreover, Dang indicated hat he could help the police in obtaining more evidence by offering to be wired. The urgency that Trooper Bleicher led the magistrate to believe existed, according to the transcript of Dang's's police statement, did not exist.
Dang's's Admissions
In the course of Dang's interview with police, he admitted o crimes which he was not subsequently charged with. He admitted that he sold a kilo of coke earlier in the day to 'Rico." (Police Stmt. 7) He admitted to "usually" doing 'business" out of his home.
(Police Stmt. 18). He admitted to being a source for at least three other people. (Police Stmt. 2,, 33-35, 36) Dang., however., was only charged with two counts of misconduct involving a controlled substances in the third degree, two class B felonies in state court.
SUPPLEMENTAL ARGUMENT
The government puts forth that had the complete critical history of Dang been presented, the issue would be "whether the court would have found probable cause to issue the warrants had it known that Dang had a prior conviction for making a false report of a crime." The government concede that the answer to this question is "negative." (Govt. Resr). If, however, the court chooses to disregard the governments concession, then the following arguments are made:
I. WHERE THE ALASKA CONSTITUTION ACTUALLY AFFORDS MORE PROTECTION THAN THE FEDERAL CONSTITUTION, THE COURT SHOULD DECIDE THE VALIDITY OF THE SEARCH CONDUCTED BY STATE LAW ENFORCEMENT OFFICERS UNDER THE STATE CONSTITUTION.
The government cites United States v. Brady, 993 F.2d
177 (9th Cir. 1987) and United States v. Chavez, 844 F.2d 1368 (9th Cir. 1987) for the proposition that federal law controls on whether a state issued warrant is valid. (Govt. Resp. at 16) Contra United States v. Nance, 962 F.2d 860(9th Cir. 1992) (where a state search warrant issued by the state judge, which produced the evidence introduced in the federal prosecution, was reviewed under the Oregon statute governing the issuance of warrants).
In Chavez, rights arising under a state's constitution were not addressed. Chavez, 844 F.2d 1368. In Brady, the court reviewed the district court's decision to reject the application of the probable cause standard mandated by the Washington State Constitution. Brady, 993 F.2d 177. In neither case was an explicit right of privacy addressed. Further, in Brady, the argument by the defendant was couched in terms of an evidentiary standard, and not based on the fact that the states's constitution afforded broader protection to its citizens through an explicit fundamental right of privacy. Id.
In any event, subsequent to those decisions, in the case of Acton v. Vernonia School Dist., the court specifically addressed the "'arcane question" of whether a Fourth Amendment search case should be decided on the basis of the state constitution or on the basis of the United States Constitution. Acton v. Vernonia School District 47J, 23 F.2d 1514, 1518 (9th Cir. 1994), cert. granted,, 63 U.S.L.W. 3420(U.S. Nov. 28, 1994)(No. 92-35520); accord Moule v. Paradise Valley Unified Sch. Dist. No. 69, 863 F.Supp. 1098 (D.Ariz. 1994).
The issue addressed in Acton was whether or not a drug testing policy at the school violated a student's right to be free from unreasonable government searches. Id. at 1518. The court held that if "the state constitution actually gives more 20 protection than the federal constitution, we decide validity under the state constitution." Id. at 1518.
In reaching its decision, the court noted that the language in the Oregon constitution was "'almost exactly the same as the language of the Fourth Amendment." Id. However, the court noted that "Oregon insists that its constitutional provision can give more protection than the federal constitution and that it sometimes does so." Id. at 1518. The court cited Oregon case law which found greater protection in the Oregon Constitution for. a roadblock stop, and an aerial search, noting that Oregon courts had "gone out of their way to insist that the federal constitutional analysis does not control Oregon search and seizure analysis." Id.
Also subsequent to Brady and Chavez-Vernaza, the court recognized that, unlike the federal constitution, the right of privacy can be a fundamental right "enshrined-" in a state's constitution. Rattray v. City of National City, 36 F.3d 1480, 1483 (9th Cir. 1994). One of the issues in Rattray was whether a state statute was constitutional in exempting police officers from a prohibition against electronic recording and eavesdropping. The court found no compelling basis to exempt the police from the state's explicit right to privacy, guaranteed by the state constitution. The court cited State v. Glass, 583 P.2d 872, 879-80 (Alaska 1978) in support of its recognition that a state constitution may enshrine the right to privacy as a fundamental right. Id. at 1483.
Like Oregon and California, Alaska citizens have a more extensive right of privacy than that provided under the federal constitution. Its constitution "enshrines" a right of privacy. Like Oregon, the Alaska courts have "gone out of their way to insist that the federal constitutional analysis does not control [Alaska] search and seizure analysis." Acton, 23 F.2d at 1518.
When Alaska amended its constitution, it specifically enumerated the right of the people to privacy. Ravin v. State, 537 P.2d 494, 500-01 (Alaska 1975). "The right of the people to privacy is recognized and sxxxx not be infringed." Id. (quoting Alaska const. art. I,§ 22). The court took great pains to explain that
[iln Alaska we have also recognized the distinctive nature of the home as a place where the individuals privacy receives special protection.... The privacy amendment to the Alaska Constitution was intended to give recognition and protection to the home. Such a reading is consonant with the character of life in Alaska. Our territory and now state has traditionally been the home of people who prize their individuality and who have chosen to settle or to continue living here in order to achieve a measure of control over their own lifestyles which is now virtually unattainable in may of our sister states.The home, then carries with it associations and meanings which make it particularly important as the situs of privacy.Id. at 503-04.
In Taylor v. State, the court emphasized that under the Fourth Amendment and the Alaska Constitution, that " [a] door of the home represents a firm constitutional barrier." Taylor v. State, 642 P.2d 1378, 1381, n.6 (Alaska 1982) See also Glass, 583 P.2d 872 (cited in Rattray, 36 F.3d at 1483) ; and Alaska case law cited in defendant's Memorandum of Law in Support of Motion to Suppress, 15-17.
State law enforcement officers must meet the probable cause standard articulated by Alaska courts before they are given the key to the constitutional door that permits them to cross the threshold and enter the private sanctity of a citizen's home.
For the federal court to ignore the extra protection that the Alaska constitution affords its citizens would be tantamount to reinstating the "silver plate doctrine,," whereby illegally obtained evidence was admitted in federal courts if it was obtained by state officers. That doctrine was abolished in the landmark case Elkins v. United States, 364 U.S. 206, 80 S.C. 1437, 4 LED.2d 1669 (1960).
If a state court were to find that a certain arrest or search passed muster under the Fourth Amendment, but that it violated a comparable provision of the state constitution the fruits of the search would be suppressed in the state proceedings. To admit evidence illegally obtained by state law enforcement officers under the state's constitution into federal proceedings encourages Alaska state law enforcement officers to ignore their own state constitution and forum shop for the court that will admit the evidence. Such forum-shopping effectively denies Alaskans the very rights that they chose to "enshrine" in their constitution when they amended their constitution to include a right to privacy. See Ravin, 537 P.2d 494.
In light of the 1994 mandates of Acton, regarding searches, and Rattray, regarding police violations of a state constitutional right of privacy, the court should review the legality of the search of Mr. xxxx's home and personal vehicle under the Alaska law.
II. MR. xxxx IS ENTITLED TO A FRANKS HEARING BECAUSE TROOPER BLEICHER AND MR. NOVAK, THE STATE'S ATTORNEY, KNOWINGLY OR RECKLESSLY DECEIVED THE MAGISTRATE AT THE SEARCH WARRANT HEARING.
A. When Trooper Bleicher selectively chose to withhold from the magistrate Dang's criminal convictions that demonstrated Dang's contempt for law enforcement and authority, and other information material to a determination of Dang's credibility, Trooper Bleicher and Mr. Novak intentionally misled the magistrate.
The Supreme Court in Franks noted that the Warrant Clause of the Fourth Amendment takes the affiant's good faith as its premise. United States v. Stanert, 762 F. 2d 775, 781 (9th Cir..1985) (citing Franks v. Delaware, 438 U.S. 154,164, 98 S.C. 674, 2680, 57 LED.2d 667(1978)). Moreover, (because it is he magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon is authority if a warrant affidavit, revealed after the fact to obtain a deliberately or recklessly false statement, were to stand beyond impeachment.,"' Id. at 165(quoting Franks, citation omitted).
The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when making a probable cause determination. By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning.See Id. at 168, 98 S.C. at 2682.The government concedes that Trooper Bleicher did not tell the magistrate the total story. Trooper Bleicher, relying on the same APSIN printout, subsequently did tell the magistrate the total story at Dang's bail hearing. That hearing took place on the same evening that he withheld the record during the search warrant proceeding, only shortly thereafter.
The government claims that the omission of the total criminal history can only be characterized as "'negligent omission of an immaterial fact" is ludicrous. If one reads "the warrant affidavit in a common sense and realistic manner,,,' anyone using common sense cannot say that it is not intentional to withhold the most important convictions from the magistrate. United States v. Chesher, 678 F.2d 1353, 1359(9th Cir. 1982) (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.C. 741, 745, 13 LED.2d 684 (1965))(emphasis added).
David Dang was convicted of filing a false report of a crime and of harassing communications for threatening the life of a hospitalized and wounded police officer. Dang's disda4-- for law enforcement, his contempt, was material impeachment inflammation that the magistrate should have been made aware of.
The government lists three cases whose facts it considers to be worse than Trooper Bleicher's intentional or reckless misrepresentations. A reading of those cases indicate otherwise.
In Davis, an officer recapitulated an affidavit from an earlier warrant, but wrote it in the first person. United States v. Davis, 714 F.2d 896 (9th Cir. 1983) . The magistrate was led to believe that the officer had personally interviewed the informants from whom information was received. Even though the information was likely correct, since fellow officers had personally interviewed the informants, and not the affiant, the warrant was ruled to have failed the requirements of Franks. The court explained that when a failure to inform is intentional, the warrant must be invalidated. Id. at 899 (emphasis added) . "The established by a truthful affidavit does not cure the error." Id. (emphasis added). The court noted that it could not "accept the proposition that law enforcement officials may freely submit affidavits they know to be false if they deem the falsehood not to be material." Id. at 900.
The court also explained that while officers in the field are entitled to rely on the information and judgement of fellow officers
[tlhe situation is very different when an application is made for a warrant. Unlike officers in the field, a magistrate is not entitled to rely on the judgment of law enforcement officials. He or she is expected to review the material submitted and make a detached, independent judgement as to the existence of probable cause.Id. (Emphasis added). The court found that "'the magistrate's neutral and detached judgment lacked a substantial basis because it necessarily relied on an affidavit know to be false." Id. (citing Franks, 438 U.S. at 156). Likewise, in this case, the magistrate lacked a substantial basis because he necessarily relied on testimony which was false.
In Stanert the defendants conviction was vacated and remanded to the district court for a Franks hearing. Stanert, 762 F.2d 775. The court explained that the request for a Franks hearing does not require omission.... Such proof is reserved for the evidentiary hearing. At this stage, all that is required is that the defendant make a substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading. Id. at 781. In Stanert, the law enforcement officer informed the judge that the suspect had a criminal history that included an arrest, but failed to inform the judge that there was no conviction. The affiant also misrepresented the facts surrounding an explosion at the defendant's address. Unlike Mr. xxxx's case, however, law enforcement in Stanert had also received two anonymous tips and a third tip from a reliable confidential informant. Additionally, detectives had detected ether odors consistent with drug manufacturing. After purging the affidavit of the falsities and omissions, the court held that the "tip [of a reliable confidential informant], standing alone does not provide a basis for a magistrate's determination that there was probable cause to search (the defendant's residence." id. at 782 (emphasis added) . In this case, the only evidence that the magistrate had to rely on was the testimony of criminal informant Dang. The determination of probable cause rested on Dang's credibility. The criminal history omissions by Trooper Bleicher were far more egregious than in Stanert. Trooper Bleicher had the criminal history in hand and intentionally withheld it from the magistrate, though he swears to this court that he realized "the importance for the magistrate to to evaluate David Dang's testimony in person, to establish in the magistrates (sic) own mind the credibility of the witness." Bleicher's Affidavit at S.
The government also ignores the fact that Trooper Bleicher knew that Dang had lied to him in the course of the police interview as well. Dang did not tell Bleicher his true and complete criminal history. Nevertheless, Bleicher again misled the magistrate, in an effort to bolster Dang's credibility, and testified that-- "Mr. Dang himself told me that he'd been involved in minor crimes...." (Tr. 17)
The government claims that the misdemeanors were of little consequence since Trooper Bleicher did inform the magistrate that there was a criminal history. The government ignores the fact that except for the testimony of an informant from the criminal milieu, the police had no other information for the magistrate to rely on. Trooper Bleicher chose, therefore, to reveal only the three convictions that would least undermine Dang's credibility convictions for burglary, assault, and larceny. (Attachment C Dang's Criminal History) Had he informed the magistrate of Dang's many other convictions, particularly the harassing communications (threatening the life of a law enforcement officer), filing a false report of a crime, as well as a charge of impersonating an officer, the magistrate would have had magistrate was deliberately misled by a law enforcement officer as to the credibility of the witness before him. The government argues that the "omission was clearly immaterial and at the most negligent." (Govt. Resp. 27) However, the court should view this argument with the same skepticism articulated by the Eight Circuit.
This is unfortunately not the first case we have seen where the government failed to successfully complete a routine background check. Such carelessness is unacceptable, particularly in light of the technological advances which make record retrieval readily accessible. We strongly condemn the government's haphazard approach to its own trial preparation and to its duty to serve and facilitate the truth finding function of the courts.United States v. Duke, 50 F.3d 571 (8th Cir. 1995) (citing United States v. Bernal-Obeso, 989 F.2d 331, 333-34 (9th Cir. 1993) (where the government failed to inform the defendant's trial counsel about the government witness's true criminal record, while using his false testimony to bolster his credibility)
In support of its argument that negligent omissions or Misstatements are not fatal to the validity of a search warrant, the government cites United States v. Damitz, 495 F.2d 50 (9th Cir. 1974). In Damitz the false statements were not made by a law enforcement officer, like Trooper Bleicher, entrusted with protecting the integrity of the law, nor knowingly condoned by an assistant district attorney, like Mr. Novak. The false statements which were ultimately uncovered in Damitz were made by a criminal informant who had, like Dang, been arrested on drug charges shortly before lying in an affidavit for a search warrant.
The court explained that its holding was based on the fact that an informant, "a nongovernment affiant," had made the false statements, not a government agent. Id. at 55. The court also noted that if portions of the affidavit are sufficient to show probable cause, then the warrant is valid, "at least in a case like this one, where the affidavit is that of a third party, not that of a government agent. The case might be different if a government agent had made an affidavit containing material false statements." Id. (emphasis added). The court noted that the necessity to deter "lawless police action" may create a different situation. "'This is why the intentional misstatement by an affiant who is a federal agent may vitiate the affidavit, the warrant and the search." Id. at 56. The court recognized that "if the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.'" Id. at 57, n. 11 (quoting Brandeis, J., citations omitted).
The government also cites United States v. Hole, 564 F.2d 298 (9th Cir. 1977). In Hole, material false statements made in support of a request for a search warrant were not known to the other agents who submitted the affidavit. Tropper Bleicher, on the other hand, knew the truth, and intentionally withheld it from the magistrate.
B. Trooper Bleicher intentionally misled the magistrate by representing that urgency required that the search warrant be served that evening rather than put it off until the following day.
Subsequent to receiving the transcript of Dang's police statement, it is clear that the urgency that Trooper Bleicher testified to at the search warrant hearing did not exist. Dang told Trooper Bleicher that he did not have to deliver $25,000 dollars that night to "'Ron", and offered to make contact while being wired. (Police Stmt. 14-15) Trooper Bleicher testified to the magistrate that it was "paramount to serve -- to search as quickly as possible since the individual, Ron, based on Mr. Dang's statement, is expecting the 25,000...." (Tr. 18)
In Alaska, a warrant "sxxxx direct that it be served between 7:00 a.m. and 10:00 p.m., unless the issuing authority by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution other than this time...." Ak.Cr.R. 37(a)(3)(iv). Moreover, "it is difficult to imagine a more sever invasion of privacy than the nighttime intrusion into a private home."' Jones v. United States,, 357 U.S. 493, 498,, 78 S.C. 1253, 2 LED.2d 1514, 1519 (1958). Reading the case law, the rule, and the right of privacy enshrined in the Alaska constitution, along with the facts elicited from Dang, one must conclude that Trooper Bleicher egregiously misled the magistrate into believing there was reasonable cause to issue a warrant for a nighttime search of a citizen's home.
C. The state's attorney, Mr. Novak, and Trooper Bleicher misled the court when they represented that no offers or agreements had been made to Dang before testifying.
The government argues that "as to the defendant's contention that there existed some type of 'deal' with Dang prior to testifying, the affidavits of Troopers Kenny and Bleicher soundly put that claim to rest." (Govt. Resp. 18)
First, the defendant has never explicitly used the word "deal," but described the bargained-for exchange as an agreement or promise. Secondly, the transcript of the interview of Dang by Trooper Bleicher clearly reveals that an implied agreement for favorable treatment. Just as in basic contract law, where an implied contract is found where the parties' conduct indicates that they assented to be bound. Such an implied agreement between Dang and Bleicher took place in the course of the interview, during which the two forged a partnership. As indicated in the preceding supplemental facts, the tone of the interview progressed from "Nice to meet you," (Dang) to "'Anything else you think we need to go do" (Bleicher) to "(giggle) I'm listening if you want to tell me" (Bleicher) to 'While you work for me" (Bleicher) Moreover, rather than being interrogated, Dang directs the search of his home (Police Stmt. 17-19), and controls the police inquiry into his vehicles (Police Stmt. 2628,, 35).
The conduct of the officers and Dang's cooperation constitute an implied promise that Dang will get a benefit from the bargained-for exchange. See Williamson v. United States, U.S. -1 114 S.C. 2431, 129 LED.2d 476(1994)(recognizing that a reasonable person in custody might even think that implicating someone else would decrease his practical exposure to criminal liability, particularly where one who portrays himself as "small fish" is willing to help authorities catch what he leads them to believe is the "big fish", since such "small fish" usually get shorter sentences).
Ultimately Dang did get a benefit from the implied contract. At the bail hearing following the search warrant hearing, the same magistrate explained to him, "To be honest, you're likely going to spend at least the night in jail." Trooper Bleicher explained that Dang had been cooperative, though he once again misled the court by representing that Dang had advised him of his criminal history before he ran the APSIN. (Bail Tr. 5) Dang"s bail was eventually dropped to $25,000 cash or corporate. Then, unlike Mr. xxxx, his case was never moved to Federal Court. Dang received the benefits of the implied agreement negotiated in the course of forging the partnership of Dang and Bleicher.
II. THE MAGISTRATE DID NOT HAVE A SUBSTANTIAL BASIS FOR CONCLUDING THAT PROBABLE CAUSE EXISTED.
A. The court should not find that the testimony of a an informant from the criminal milieu, in custody, standing alone, with no corroboration of his allegations, provides sufficient basis on which to conclude that probable cause exist to cross the threshold of a person's home.
The government argues that substantial probable cause existed even if Dang's conviction for filing a false report were factored in. The government contends that Trooper Bleicher's and Dang's mutual corroboration of Dang's confession supports their argument.
"'[M]ere confirmation of innocent static details is insufficient to support an anonymous tip. The fact that a suspect lives at a particular location or drives a particular car does not provide any indication of criminal activity." United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) (corroboration of anonymous informant must be in the form of evidence of criminal activity and not merely verification of innocent facts). See also Illinois v. Gates, 426 U.S. 213, 103 S.C. 2317, 76 L. Ed. 2d 527 (1983).
The only corroboration by independent police work in this case was corroboration of Dang's confessed crimes. No corroboration to the alleged criminal activities that prompted Trooper Bleicher to seek a warrant to search Mr. xxxx's home was offered. The only corroboration of Dang's allegations by independent police work amounted to traveling to an unknown address with Dang and seeing a truck in the driveway whose registration indicated the owner to be a man named "Ron", who lived in the house Dang pointed to. "[Mlere confirmation of innocent static details" is all that the police had before applying for a search warrant to search a citizen's home. Mendonsa, 989 F.2d at 369.
Prior to Mendonsa, the Ninth Circuit held that a tip from an in-custody informant, recently arrested by the DEA for drug offenses, who said that he wanted to cooperate,, "'standing alone" was not sufficient to establish probable cause. United States v. Roberts, 747 F.2d 537, 544 (9th Circ. 1984)(where the tipster indicated a marijuana growing operation, but gave no reliable indication that it was currently ongoing).
Most recently, in Greenstreet v. County of San Bernardino, the Ninth Circuit held that simply connecting a person to an alleged locus of a drug ring was insufficient to establish probable cause. Greenstreet v. county of San Bernardino, 41 F. 3d 1306 (9th Cir. 1994) The facts in Greenstreet include much corroboration by independent police work. Mr. Greenstreet was observed over a two week period of time coming and going from a location alleged to be a drug locus (a search warrant had been issued for that location). In the course of about 100 hours of surveillance, the police observed Mr. Greenstreet spending approximately 15 - 20 hours at the suspected locus of drug activity. He was tailed to his own address, the address for which a search warrant was sought. Mr. Greenstreet, unlike Mr. xxxx, had a criminal record for possession and sale of controlled substances, and some weapons charges. A reliable informant had provided them with information that led them to believe that Mr. Greenstreet's residence might also be involved in narcotic selling activity.
The court held that the fact that Mr. Greenstreet was surveilled at an alleged drug locus was not sufficient to permit an inference that Richard Greenstreet was other than a 'casual social guest' at the alleged locus of drug activity. Id. at 1309. The court concluded that this "very weak link" did no provide a substantial basis for the magistrate's finding of probable cause. Id.
The criminal history on Mr. xxxx was presented. Mr. xxxx was never tailed to any known locus of drug activity nor was he ever the object of any surveillance by Tropper Bleicher.
Paraphrasing the opinion in Greenstreet, Trooper Bleicher, like the officer in that case,
failed to exercise the requisite reasonable professional judgment when he sought a search warrant for [Mr. xxxx's) residence. Moreover, it appears that [Trooper Bleicher] himself contributed to the magistrate's incorrect probable cause determination when he presented the affidavit at [8:25 p.m., misrepresenting the urgency of the situation, along with Dang's criminal history]. These circumstances undoubtedly led to a hasty review of the affidavit [and testimony]
by the magistrate.
Id. (holding that the police officer was not entitled qualified immunity from Plaintiff's 42 U.S.C. 1983 action)(emphasis added).
The government also argues that the magistrate could give credibility to Dang's testimony because statements made by him were against his penal interest. (Govt. Resp. 25)(citing two Ninth Circuit cases from 1984 and 1987, United States v. Estrada and United States v. Dozier, citations omitted; and United States v. Harris, 403 U.S.
573, 91 S.CL 2075, 29 LED.2d 723 (1971)).
As the defendant indicated in his prior memorandum, more recently, the
Supreme Court, in a unanimous opinion, ruled that statements against penal interests
are not necessarily trustworthy. The court recognized that a self-inculpatory statement
is part of a fuller confession that freely implicates others is not necessarily reliable.
Williamson v. United States, 114 S.Ct. 2431 (1994). the court Pointed out that
(o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
Id. at 2435.
Dang's full statement to the police was never disclosed to the magistrate. The full text of the police statement paints the picture of an arrested narcotics dealer, frantically naming every name he can think of in order to gain favor for himself. (Police Stmt. 29-37; "I tell you I know lots of dealers out their, maybe hundreds." Dang at 36).
Trooper Bleicher had no reason to believe Dang was credible or reliable. Dang never disclosed his full criminal record to Bleicher. There are questionable statements about car ownership by Dang to Bleicher, which would have given a reasonable police officer cause to doubt Dang's credibility. (9) (Police Stmt. 26) Bleicher had never used Dang in any other investigations. (Govt.Resp. 3) There was no corroboration of Dang's allegations towards "Ron." No reasonable and professional police officer would have sought a warrant given the same set of circumstances. Greenstreet, 41 F.3d 1306.
The magistrate had no basis for concluding that there was probable cause to issue a search warrant of an Alaska citizens home, and permitting the police to open the constitutional door which protects a citizen's right of privacy.
III. THE COURT SHOULD SUPPRESS THE EVIDENCE OBTAINED AS A RESULT OF THE SEARCHES BECAUSE OF THE INTENTIONAL ACTS OF TROOPER BLEICHER AND MR. NOVAK'S FAILURE TO INTERVENE AND CORRECT THE RECORD, WHICH PURPOSEFULLY MISLED THE MAGISTRATE IN ASSESSING THE CREDIBILITY OF CRIMINAL INFORMANT DANG.
Although the Court has often emphasized only the deterrent purpose of the (exclusionary] rule ... we know ... that deterrence is not the only consideration...The court has never abandoned its pronouncement ... that in addition to deterrence, the exclusionary rule serves the vital function of preserving judicial integrity .... When evidence is obtained by deliberate violations, or by conduct a reasonable officer should know is in violation of the Constitution, the probative value of that evidence cannot outweigh the need for judicial sanction.
Gonzalez-Rivera v. I.N.S., 22 F.3d 1441 (9th Cir. 1994) (where stop of a vehicle was based purely on ethnicity) (emphasis added) .
The omissions, lies, and failure to act by Trooper Bleicher and Mr. Novak are so outrageous that the court should sanction their egregious conduct by invoking the exclusionary rule. Mr. Novak, like Trooper Bleicher, knew of Dang's criminal history. He failed to apprise the magistrate of it. He never corrected Dang's testimony. He permitted Trooper Bleicher to mislead the court as well.
Prosecutors are subject to constraints and responsibilities that don't apply to other lawyers. While lawyers representing private parties may -indeed, must--do everything ethically permissible to advance their clients' interests, lawyers representing the government in criminal cases serve truth and justice first. The prosecutor's job isn't just to win, but to win fairly, staying well within the rules .... The government here has strayed from this responsibility.
United States v. Koyjayan, 8 F. 3d. 1315 (9th Cir. 1993) .
If the government were to provide the defense with an enhanced tape, further promises and misrepresentations to the magistrate would likely be shown. By presenting a transcript replete with inaudible, the government seeks to mask the constitutional violations in an effort to carry its burden to persuade this court that no misrepresentations took place.
This court should not follow the low road engineered by Trooper Bleicher and Assistant District Attorney, paved with lies, misrepresentations, and omissions.
CONCLUSION
Under the totality of circumstances, all of the evidence derived from the illegal
searches and seizure should be suppressed.
DATED at Anchorage, Alaska this __ day of June, 1995.
Rex Lamont Butler
1. "Based on the testimony of Trooper Bleicher and Mr. Dang, I do find reasonable grounds...." Court. (Tr. 44 )
2. The court will probably want to review the recorded interview.
3. Trooper Bleicher claimed that Dang "indicated...that Ron hides this cocaine in cereal boxes, books that are cut out, and other clandestine type of hiding places within the trailer." (Tr.14) Other than Trooper Bleicher's uncorroborated allegation of such generic "clandestine type of hiding places," no such testimony was offered by Dang.
4. Dang also described his relationship with "Ron," but, again, providing no significant details, only a vague description of past drug activity that anyone could have told.
5. When questioned by Mr. Novak, criminal informant Dang also, inexplicably, told court that he has "been in the United States for 43 (sic) years," even though this is impossible since his birthday is November 17, 1962. Mr. Novak never attempted to correct this misrepresentation. (Tr. 40-41)
6. Therefore, "we expect prosecutors and investigators to take all reasonable measures to safeguard the system. This .responsibility includes the duty...to turn over all material information casting a shadow on a government witness s credibility."' Bernal-Obeso,, 989 F.2d at 334.
7. The defendant should be provided with an enhanced version of the tape. Infra at 42. The transcription indicates an inordinate number of "inaudible" entries and other questionable text.
8. This raises the question as to how the tape can be heard "just running" with no peripheral noises, occurring abruptly, just after arriving at the D.A.'s office.
9. Trooper Bleicher. CUV411, a dark green car that's parked there at your apartment ...
Dang. No, that's not mine ....
Trooper Bleicher. No, it's registered to uh, you.
The transcript indicates that the license numbers and vehicle ownership is never straightened out. Dang controls the conversation.