Johnson v. State, 3527

• Decision Date: 19 September 1980
• Docket Number: No. 3527,3527
• Citation: 617 P.2d 1117
• Parties: Pia JOHNSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1117

617 P.2d 1117

Pia JOHNSON, Appellant, v. STATE of Alaska, Appellee.

No. 3527.

Supreme Court of Alaska.

Sept. 19, 1980.

T. G. Batchelor, Faulkner, Banfield, Doogan & Holmes, Juneau, for appellant.

Larry R. Weeks, Dist. Atty., Anchorage and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., CONNOR, BOOCHEVER, ^* and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

MATTHEWS, Justice.

This is an appeal from a conviction after a jury trial of distribution of cocaine in violation of AS 17.10.010. ¹ The conviction rests in part upon evidence ² which was seized pursuant to a search warrant from a residence in the nighttime.

In May of 1976, James McHaley approached Sergeant Windred of the Juneau Police Department and offered to help him "get the major ... (drug) dealer in the Juneau area," one Raymond Johnson. Windred had been investigating Raymond Johnson over a period of several years, spending many hours in accumulating evidence of his drug dealings. Windred had formally staked out Raymond's driveway for three days in 1975, and had kept a watch on the cabin through "countless" patrols in front of the cabin over a period of years.

Windred accepted McHaley's offer. In the weeks following, the two had several meetings and telephone conversations relating to drug dealings and dealers in the Juneau area in general, and to Raymond Johnson in particular. McHaley told Windred that Raymond was receiving weekly shipments of drugs from Seattle, and that the shipments were sometimes arranged by Johnson's wife Pia, the appellant here. At the same time that McHaley was reporting on Raymond Johnson's drug dealings, McHaley himself was involved in the local drug trade.

On June 18, 1976, McHaley reported to Windred that Raymond Johnson, from whom he had recently tried to purchase some drugs, told him that he was expecting a shipment of heroin on the following day. The drugs would be sent by appellant from Seattle via Gold Streak on Alaska Airlines. Windred promptly phoned the Seattle airport police with a description of appellant and a request to contact him if she showed up at the airport with a package destined for Juneau via Gold Streak. On the following evening, Windred got his call from Seattle and was informed that appellant, using an alias and acting unusually, ³ had dropped off a package at the Alaska Airlines counter consigned to Sherry Peters, for pick-up at the Juneau terminal. Sherry Peters is Raymond Johnson's sister. Windred got the waybill number and, after ascertaining the flight arrival time in Juneau to be 11:30 p. m., arranged to meet the District Attorney and a magistrate at a location near the airport to get a search warrant. On the way to the airport Windred prepared an affidavit to submit in support of the warrant.

Windred, the District Attorney, several other law enforcement officers, and Magistrate Siangco met in a Volkswagen bus near the airport. The proceedings before the Magistrate lasted approximately five minutes. Sergeant Windred submitted an affidavit in support of his request for a search warrant which is set forth in the margin. ⁴ In addition, he offered oral testimony that he was positive that the drugs would be taken to Raymond's house. The warrant, ⁵ authorizing an immediate search of Johnson's premises, was then issued.

After the issuance of the warrant, two police officers were dispatched to the airport by Windred to observe the delivery of the package. Sherry Peters claimed it and left in a truck driven by Scott LaFavour. They were followed into Juneau where the truck stopped to let LaFavour out. The truck then proceeded to Raymond Johnson's house with Windred and other police officers following at a distance. When the vehicle pulled into the driveway at Johnson's house, Windred and the others stopped several hundred feet short of the driveway.

The police waited a few minutes, then proceeded to the cabin. Raymond Johnson came to the door and opened it. The police announced their presence and told Johnson he was under arrest. Johnson ran back in the cabin, slamming the door. The police then broke through the door and arrested Raymond Johnson and Sherry Peters, who had apparently been in the process of diluting, and packaging narcotics. A search of the cabin revealed the opened Gold Streak package and a large quantity of cocaine and heroin.

Appellant moved to suppress the drugs and drug related paraphernalia seized during the search. The motion was denied. On appeal it is urged that this was error because, first, Alaska Rule of Criminal Procedure 37(a)(3)(iv) was violated.

Alaska Rule of Criminal Procedure 37(a)(3)(iv) requires that search warrants be executed in the daytime as a matter of course, "but if an affiant is positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time...." ⁶ In State v. Shelton, 554 P.2d 404, 407 n. 8 (Alaska 1976) we noted that a nighttime search was a more extreme intrusion than one conducted in the daytime and observed that "(u)nder this rule the householder is entitled to the assurance that the judge issuing the warrant has decided that the facts presented in the affidavit justify a nighttime search." Id. at 406 (Footnote omitted). The magistrate who issued the warrant in this case plainly made that determination. The question here is whether he erred in doing so.

In approaching questions of this sort, the decision of the judicial officer who has issued the warrant is to be given " 'great deference' and 'the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' " Ellsworth v. State, 582 P.2d 636, 638 (Alaska 1978) (footnote omitted). Further, in resolving uncertainties and ambiguities with respect to search warrants and affidavits made to support them, the court should look to the circumstances surrounding the issuance of the warrant and need not artificially limit its inquiry to the writing itself. Ellsworth v. State, 582 P.2d 636, 638 (Alaska 1978); State v. Shelton, 554 P.2d 404 406 (Alaska 1976).

The positivity requirement expressed in Alaska Criminal Rule 37(a)(3)(iv) is nearly the same as that which was expressed by Federal Rule of Criminal Procedure 41(c) as it existed until 1972, when the requirement was deleted because it had been found cumbersome to apply in practice. Gooding v. United States, 416 U.S. 430, 453, 94 S.Ct. 1780, 1792, 40 L.Ed.2d 250, 266 (1974). Current Federal Rule of Criminal Procedure 41(c)(1) provides with respect to nighttime searches only that "The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime." ⁷

Several cases construing the positivity standard as contained in the former federal rule did not construe it to require a significantly higher standard than probable cause. Thus, it was stated in United States v. Daniels, 10 F.R.D. 225 (D.C.N.J.1950):

It is our opinion that the rule requires nothing more than an explicit statement, supported by positive evidence, as distinguished from negative evidence "that the property is in the place to be searched." The explicit statement may not rest upon inferences drawn from the absence of evidence. The rule requires averments of fact sufficiently persuasive to support a reasonable inference that the property is in fact on the premises. A more rigid construction would require proof beyond a reasonable doubt that the property is in the place to be searched. Such a construction would enable the criminal to completely conceal an illegal enterprise behind an insurmountable barrier, provided, of course, he pursued it only at night.

Id. at 228. See also United States v. Arms, 392 F.2d 300 (6th Cir. 1968); ⁸ United States v. Plemmons, 336 F.2d 731 (6th Cir. 1964). State courts have given similar state provisions a like reading. Stewart v. People, 419 P.2d 650 (Colo.1966); State v. Lindner, 592 P.2d 852 (Idaho 1979).

If the positivity requirement were interpreted literally, it would be practically impossible to obtain a warrant to search premises at night. For example, if a police officer had observed drugs in a building, and then left the building in order to secure a warrant from the nearest available magistrate, he could not be positive that the drugs were in the building at the time that he gave the oath. The language must be construed to equate "positive" with being reasonably certain.

As so defined, we believe that the requirement of positivity expressed in Criminal Rule 37(a)(3)(iv) has been met. The affidavit is explicit and detailed. The ultimate source of the information was said to be Raymond Johnson and the informant who conveyed it was said to be reliable. Further, the circumstances concerning the shipment of the package were detailed and suspicious, and corroborated the information conveyed by the informant.

Appellant also argues that the affiant, Sergeant Windred, did not state in the affidavit that he was positive that the drugs would be found and that this omission violated Criminal Rule 37(a)(3)(iv). Sergeant Windred, however, gave sworn oral testimony to the magistrate that he was positive. ⁹ While this testimony was not tape recorded, it was, in effect, summarized, for the word "definite" was written in the margin of Sergeant Windred's affidavit. We need not decide, however, whether this is sufficient compliance with the recorded testimony requirement of Criminal Rule 37(a)(1)(i)(bb) ¹⁰ because an explicit statement of positivity has not been required by courts interpreting like provisions. See United States v. Arms, 392 F.2d 300 (6th Cir. 1968); United States v. Plemmons, 336 F.2d 731 (6th Cir. 1964); United States v. West, 328 F.2d 16 (2d Cir. 1964); Fry v. United States, 9 F.2d 38 (9th Cir. 1925), cert. denied, 270 U.S. 646, 46...