Jacobs v. State
| Decision Date | 20 February 1998 |
| Docket Number | No. A-5882,A-5882 |
| Citation | 953 P.2d 527 |
| Parties | Brent S. JACOBS, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Bethany P. Spalding, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before COATS, C.J., and MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice. *
Brent S. Jacobs pleaded no contest to one count of third-degree misconduct involving a controlled substance, AS 11.71.030(a)(1) (), and two counts of fourth-degree misconduct involving a controlled substance, AS 11.71.040(a)(2) and AS 11.71.040(a)(3)(A) (). Jacobs reserved the right to appeal the trial court's denial of his motion to suppress evidence. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Superior Court Judge Michael I. Jeffery sentenced Jacobs to a composite term of five and one-half years of imprisonment. Jacobs appeals, asserting that Judge Jeffery erred in denying his motion to suppress and that his sentence is excessive. We affirm.
On August 11, 1994, Investigator Loretta Lee of the North Slope Borough Department of Public Safety appeared before Magistrate Dan Cadra and applied for a search warrant for a residence located at 6565 Transit Street in Barrow. Lee testified that a confidential informant, referred to as "CRC-126," had called her the week before (on August 3, 1994) and had told her that on August 2, he (the informant) had given Albert Hopson a ride to the residence at 6565 Transit Street. According to the informant, Hopson went into the house and returned with a quarter pound of marijuana. Hopson told the informant that Brent Jacobs had sold him the marijuana, and that Jacobs had stated that there was more marijuana in the house.
Informant CRC-126 called Investigator Lee again on August 11, 1994, and told her that he had again taken Hopson to the residence at 6565 Transit Street. Hopson had again gone into the house and had returned with marijuana, which Hopson said he purchased from Jacobs.
When she applied for the search warrant, Lee told the magistrate that CRC-126 had provided very reliable information to the Department in the past. She also told Magistrate Cadra that informant CRC-126 first began to work for the North Slope Borough Department of Public Safety in exchange "for [favorable] consideration of drug charges that he had against him," but that CRC-126 was now working "on the reward system."
Lee explained to the magistrate that the Barrow police operated a "Reward for Information on Drugs" program, also known as the "RID" program, and that informant CRC-126 was participating in this program. Under RID, the amount of reward money an informant received depended on whether the informant's tip led to an actual seizure of drugs. If no drugs were seized, the informant received nothing. If the police seized drugs based on the informant's tip, then the informant could receive a reward of up to $3000.
Based on Lee's information, Magistrate Cadra issued a search warrant for the residence at 6565 Transit Street. The police searched the residence and seized twenty-one bindles of cocaine weighing a total of 20.55 grams, a plastic bag containing .95 grams of cocaine, thirteen baggies of marijuana, and drug paraphernalia. Subsequently, Jacobs and two co-defendants were indicted for various drug offenses.
Following his indictment, Jacobs moved to suppress the evidence obtained pursuant to the search warrant. He claimed that the North Slope Borough's RID program violated his due process rights because, under the program, the amount of an informant's reward was contingent on the success of the investigation.
Judge Jeffery held an evidentiary hearing on Jacobs' motion. Evidence presented at that hearing established that, under the RID program, informants received a reward of up to $3000 for information relating to the illegal sale and possession of drugs. The precise amount varied, depending on the level of help that the informant provided to the police. One measure of this level of help was the informant's willingness to testify for the government in any ensuing court proceedings. However, the informant in Jacobs' case, CRC-126, was paid his reward ($1,900) on August 18, 1994, shortly after the execution of the search warrant--some three months before Jacobs was indicted (November 15, 1994).
Based on these findings, Judge Jeffery denied Jacobs' motion to suppress.
Jacobs appeals this ruling, renewing his argument that the use of a paid informant violates due process if the informant's reward is contingent on the outcome of the prosecution. Jacobs relies upon State v. Glosson, 462 So.2d 1082 (Fla.1985), a case decided by the Florida Supreme Court under the due process clause of the Florida Constitution.
In Glosson, a sheriff initiated a "reverse-sting" operation. The sheriff provided an informant with marijuana and instructed the informant to find buyers for the marijuana; the buyers would then be prosecuted. For his part in this operation, the informant would receive ten percent of the value of all property that was forfeited in civil forfeiture proceedings arising from the criminal investigations in which he participated and testified, so long as those investigations resulted in successful prosecutions. Glosson, 462 So.2d at 1083.
Working under this agreement, the informant proceeded to sell marijuana to various persons, then alerted the authorities to the sales. The informant's activities led to the arrest of Glosson and several co-defendants, and the seizure of large amounts of property (several vehicles and over $80,000 in cash). Id.
The Florida Supreme Court held that the sheriff's arrangement with the informant violated the defendants' right to due process of law under the Florida Constitution. In reaching this conclusion, the court relied heavily on the due process analysis adopted by the Fifth Circuit in Williamson v. United States, 311 F.2d 441 (5th Cir.1962).
In Williamson, an informant was hired by law enforcement officers to make purchases of bootleg whisky from certain named individuals. For each of the named individuals, the informant was promised a pre-determined sum of money if he could make a case against that person. 311 F.2d at 442. The government presented no evidence that the named individuals were known bootleggers or that there was any other reason to suppose that they were violating the liquor laws. The Fifth Circuit held that the government's arrangement with the informant violated the federal due process clause. The court declared that, in the absence of any good reason for the government to target specified people, the court would not allow "a contingent fee agreement to produce evidence against particular named [individuals] as to crimes not yet committed." Williamson, 311 F.2d at 444. The court feared that such agreements would lead to entrapment and "frame-up[s]." Id.
The Florida Supreme Court in Glosson realized that their case was somewhat different from Williamson, since the sheriff had not instructed the informant to target specified individuals. Nevertheless, the Florida court concluded that the agreement in Glosson was fundamentally similar to the agreement in Williamson because it "seemed to manufacture, rather than detect, crime." Glosson, 462 So.2d at 1084. The Florida court cited cases from other states in which courts had overturned convictions when the police instigated crimes, then charged the participants. Id. at 1085. Based on these authorities, the Florida court concluded that
the contingent fee agreement with the informant ... violated the respondents' due process right under our state constitution.... We can imagine few situations with more potential for abuse of a defendant's due process right. The informant here had an enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee. The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.
Jacobs asks us to interpret Alaska's due process clause in the same way that Glosson interpreted Florida's due process clause. We decline for four reasons.
First, the facts of Jacobs' case are fundamentally different from the facts of Glosson and Williamson. In Glosson and in Williamson, the police hired informants to act as agents provocateurs. That is, the informants were instructed to approach people--people whom the police had no prior reason to suspect of criminal activity--and encourage these people to commit new crimes so that the police could prosecute them. In Jacobs' case, however, the informant came to the Barrow police with evidence of on-going criminal activity--sales of marijuana that were being conducted from the house on Transit Street. The informant, CRC-126, had not instigated these sales; in fact, the informant had apparently not even participated in them. Rather, his passenger Hopson had purchased the marijuana; CRC-126 found out about the sales because Hopson made no attempt to conceal his purchases.
As the court in Williamson explicitly recognized, there is a substantial difference between, on the one hand, paying an informant to instigate new criminal activity by people with no known disposition to commit crimes, and, on the other hand, paying an informant to investigate on-going criminal activity by people who have already shown a willingness to break the law. Jacobs' case presents the latter situation.
Our second reason for...
To continue reading
Request your trial
-
Commonwealth v. Gratereaux
...the defendant could not successfully be prosecuted. Id. at 1083. Glosson has not been widely followed (see Jacobs v. State, 953 P.2d 527, 531-533 [Alaska Ct. App. 1998], and cases cited), and even in Florida has been narrowly read. See State v. Hunter, 586 So. 2d 319, 321 (Fla. 1991). In an......