Betts v. State

• Decision Date: 12 July 1996
• Docket Number: No. A-5757,A-5757
• Citation: 920 P.2d 763
• Parties: James Conroy BETTS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 763

920 P.2d 763

James Conroy BETTS, Appellant, v. STATE of Alaska, Appellee.

No. A-5757.

Court of Appeals of Alaska.

July 12, 1996.

Patrick W. Conheady, Olmstead & Conheady, Juneau, for Appellant.

W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

BRYNER, Chief Judge.

James C. Betts was convicted of one count of misconduct involving a controlled substance in the fourth degree, in violation of AS 11.71.040(a)(3)(A). On appeal, Betts challenges the validity of the search warrant pursuant to which the evidence against him was seized. We affirm.

On August 4, 1994, Juneau law enforcement officers were alerted to the possibility of drug trafficking at a trailer located at space 50 in the Sprucewood Trailer Park, Juneau. The officers promptly applied for and were issued a warrant to search the trailer and any individuals on the premises for drugs and drug paraphernalia. The warrant was executed approximately thirty minutes after it was issued. Upon entering the trailer, the officers encountered and searched several individuals, including Betts. Betts was found to be in possession of a small quantity of cocaine and, as a result, was charged with misconduct involving a controlled substance in the fourth degree.

Betts moved to suppress the evidence against him, challenging the validity of the search warrant. He argued that the warrant was flawed in authorizing officers to search individuals on the premises. Superior Court Judge Walter L. Carpeneti rejected this argument and denied Betts' suppression motion. On appeal, Betts renews this argument.

A warrant authorizing the search of particularly described premises and "any persons therein" is not per se impermissible. 2 Wayne R. LaFave, Search and Seizure § 4.5(e), at 545-46 (3d ed. 1996). "On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts." State v. DeSimone, 60 N.J. 319, 288 A.2d 849, 850 (1972). The guiding principle here, as in other areas of search and seizure law, is probable cause; the rule in such cases has been succinctly stated as follows: "So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment." Id.

LaFave concurs with this statement of the rule:

Unquestionably, the DeSimone rationale is correct. A search warrant authorization to search all persons found within a specifically described place is not lacking in particularity in the sense that the executing officer will be unable readily to determine to whom the warrant applies. Rather, the question is whether there is sufficient particularity in the probable cause sense, that is, whether the information supplied the magistrate supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence thereof on his person. If the evidence tendered to the magistrate supports such a conclusion, then the search-all-persons-present warrant is unobjectionable.

Search and Seizure, § 4.5(e), at 546-57 (footnotes omitted).

In the present case, the superior court issued a thoughtful decision carefully analyzing the circumstances of Betts' case and applying the correct rule of law. The court concluded that good reason existed to believe that all individuals present in the trailer upon execution of the challenged warrant would probably have drugs or drug paraphernalia on their persons. Our review of the briefs and the record convinces us that the superior court's factual findings are not clearly erroneous and that its legal analysis is sound. For the reasons stated in the superior court's decision, relevant portions of which are appended hereto, we conclude that the court did not err in denying Betts' motion to suppress.

The conviction is AFFIRMED.

APPENDIX

IN THE SUPERIOR COURT FOR

THE STATE OF ALASKA

FIRST JUDICIAL DISTRICT

AT JUNEAU

STATE OF ALASKA, Plaintiff,

v.

JUANITA JEAN WEBBER, JAMES CONROY BETTS, ROBERT CARL

SWANSON, Defendants.

Case No. 1JU-S94-1304 CR

Case No. 1JU-S94-1305 CR

Case No. 1JU-S94-1306 CR

ORDER DENYING MOTIONS TO SUPPRESS

....

STATEMENT OF FACTS

The relevant facts are as follows:

On August 4, 1994, at about 10:10 p.m., Alaska State Trooper Sergeant Dan Vanderweele and Juneau Police Department Investigator Stan Herrera contacted Magistrate John W. Sivertsen, Jr., via telephone. Vanderweele and Herrera asked Magistrate Sivertsen to issue a search warrant that permitted them to search the residence at # 50, Sprucewood Trailer Park and any individuals within the residence for drugs and drug paraphernalia. Sprucewood is located at 9551 Stephen Richards Drive in Juneau, Alaska. To justify issuance of the search warrant, Vanderweele relied primarily on the statements of a Sprucewood resident named David Biddinger who lived at # 51, Sprucewood, which is next door to # 50, Sprucewood.

Vanderweele testified under oath that he had talked to Biddinger on the telephone about an hour earlier, at about 9:00 p.m. on August 4. Biddinger told Vanderweele that, within the previous 10 minutes, the woman who lived at # 50, Sprucewood had asked Biddinger's mother to come to her residence. At the time, Biddinger's mother had just arrived at Biddinger's residence and was exiting her vehicle. Biddinger told Vanderweele that he did not know the woman's name, but did know that a man named "Bob" lived at the same residence. Vanderweele and Herrera subsequently relied on police and intelligence records to identify the residents of # 50, Sprucewood as Webber and Swanson.

After Biddinger's mother went to the Webber/Swanson residence and returned, Biddinger told Vanderweele that she was "upset". According to Vanderweele's testimony, Biddinger's mother informed Biddinger that Webber had offered to sell her marijuana at the doorway of the residence. Vanderweele further testified that Biddinger's mother also informed Biddinger that she saw cocaine and marijuana inside the Webber/Swanson residence. In addition, Vanderweele testified that Biddinger's mother told Biddinger that she saw "several dishes of white powder" inside the trailer and people "sitting around snorting powder off the dish". Biddinger further told Vanderweele that he has "seen lots of traffic coming and going" from # 50, Sprucewood in the past. As he spoke with Vanderweele, Biddinger observed a vehicle approach # 50, Sprucewood.

To show that Biddinger's statements were credible and reliable, Vanderweele informed Magistrate Sivertsen that Biddinger was neither serving as a government informant, nor working off criminal charges in exchange for the information that he had provided. ¹ Biddinger had, however, advised Vanderweele that he had engaged in illegal activity in the past. Vanderweele informed Magistrate Sivertsen that a criminal record check on Biddinger revealed that he had prior convictions for burglary, larceny, and alcohol-related offenses.

In addition to conveying Biddinger's statements, Vanderweele provided several other pieces of information to support the issuance of a search warrant. Vanderweele testified that an unknown person informed law enforcement officials on March 17, 1980, that Swanson was selling cocaine, marijuana, and mushrooms from his residence. At that time, Swanson lived at 7380 North Douglas Highway.

Vanderweele further testified that on April 30, 1990, a state-paid informant code-named N-428 had advised law enforcement officials that Swanson was engaged in the cocaine trade, and that Swanson had told him that he was obtaining his cocaine from a Juneau fisherman named "Bear". Vanderweele testified that on December 12, 1990, N-428 purchased a quarter ounce of cocaine from Swanson. When Magistrate Sivertsen questioned Vanderweele about N-428's reliability, Vanderweele testified that N-428 had been "truthful and reliable" during his recent work as an undercover agent for the Ketchikan Police Department. According to Vanderweele's testimony, N-428's undercover narcotics purchases had enabled Ketchikan Police to obtain search warrants, Glass warrants, and arrest warrants.

Vanderweele further testified that an unidentified caller advised law enforcement officials on September 21, 1991, that Swanson and Webber were "dealing drugs". According to Vanderweele, the caller further advised that "there was lots of traffic going in and out of their place". Vanderweele also testified that the caller advised that Webber was "using narcotics" and was "all drugged out".

In addition, Vanderweele testified that on March 22, 1994, Juneau attorney Fred Baxter advised law enforcement officials that members of Webber's family had told him that she was living with Swanson and using heroin. According to Vanderweele, Baxter also stated that Webber's family believed that she had traveled to Anchorage on March 16, 1994, to obtain cocaine and bring it to Juneau. Vanderweele also testified that Baxter said that Webber's family knew that she had visited a medical clinic where doctors found needle marks on her arms.

Vanderweele also testified that an anonymous caller had informed law...