Lowry v. State, A-249
| Decision Date | 11 October 1985 |
| Docket Number | No. A-249,A-249 |
| Citation | 707 P.2d 280 |
| Parties | Edward P. LOWRY, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Edward P. Lowry, pro se.
Maryann E. Foley, and Alan Higbie, Lynch, Farney & Crosby, Anchorage, for appellant.
Robert D. Bacon, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Following a jury trial, Edward P. Lowry was convicted of the first-degree murder of his wife, Sally Dale Lowry. Lowry appeals his conviction, arguing that the trial court erred in failing to suppress certain statements made by Lowry during police interrogation and certain evidence seized from Lowry's home by a private security guard. While we find no error in the trial court's refusal to suppress statements made by Lowry during his interrogation, we find that evidence was improperly seized from Lowry's home. Accordingly, we reverse Lowry's conviction and remand the case for a new trial.
On December 24, 1982, Anchorage fire fighters were called to put out a fire in a duplex in Spenard and found the burned remains of a human body in the fireplace. Despite an outside temperature of only 11? F., the windows of the duplex were open, creating a draft that allowed the fire to burn more rapidly. Wood in the wall of the house underneath the fireplace was burning, indicating that some type of inflammable liquid had been used on the fire. An accelerant had also apparently been used on the body. Subsequent investigation revealed that the body was that of Lowry's wife. It appeared that the victim was dead before being exposed to the fire. The position in which the body was found was inconsistent with death by natural causes, an accident, or suicide.
Anchorage Police Lieutenant Doug Jones was called to the scene of the fire. He learned from neighbors that Lowry and his wife lived in the house. Inside the house, Jones found dispatch papers indicating that Lowry was on a job in Eagle River. Jones instructed Officer John Reed to try to contact Lowry by telephone. When Reed reached Lowry on the job and told him the police wanted to speak to him, Lowry expressed a willingness to talk and asked if he should return to Anchorage or if the police would come to his work place to meet with him. Reed told Lowry to stay where he was. Police cars in the Eagle River area were then contacted by a police dispatcher, who requested that Lowry be contacted and detained, but not arrested. Because of the serious nature of the crime and because a number of guns were found in the Lowry residence, Lowry was described as potentially armed and dangerous. This description was in keeping with normal police procedure.
At about 10 a.m. the same morning, shortly after receiving the police dispatch, two Anchorage police officers in separate patrol cars reached Lowry's jobsite. They saw Lowry seated in his car. The officers pulled their squad cars behind Lowry. Using a squad car public address system, they told him to get out. As Lowry emerged from his car, one officer held a shotgun leveled at him while the other approached and frisked him. A brief search of Lowry's car was conducted for weapons, and when no weapon was disclosed, the officer with the shotgun replaced it in his patrol vehicle.
Following the initial stop, one of the officers expressly advised Lowry that he was not under arrest. The officer asked if Lowry would be willing to accompany the police to the station in Anchorage for questioning, and Lowry agreed. Lowry remained at the scene for approximately five or six minutes, until a police investigator from Anchorage arrived. In the interim, several additional uniformed officers arrived. Lowry then entered a police car and was driven to Anchorage. He was not handcuffed or otherwise physically restrained. 1
In Anchorage, two investigators talked with Lowry for about thirty or forty-five minutes without advising him of his Miranda 2 rights. They did not talk specifically about the homicide, but Lowry recounted a history of marital difficulties occurring over the past year and a half. When Lowry was eventually advised of his rights, he declined to sign a written waiver and, shortly thereafter, asked for an attorney. The questioning ceased, but Lowry remained at the police station. He was formally arrested between two and three o'clock that afternoon.
Soon after Lowry's arrest, police obtained search warrants for his residence and his automobiles. They also obtained a warrant permitting the taking of blood samples from Lowry. Pursuant to the latter warrant, Lowry was transported to Humana Hospital, where Dr. Donald Rogers drew specimens of Lowry's blood. According to Dr. Rogers, the blood specimens contained levels of codeine and valium that were "well above the therapeutic range ... in the low toxic range." Dr. Rogers stated that, while a person with such levels of codeine and valium in his system would be unlikely to experience hallucinations, he could be expected to be drowsy or depressed, and he might suffer distorted perceptions and judgment. Dr. Rogers further opined, however, that a person taking codeine and valium regularly could develop a tolerance to both drugs.
While police officers attempted to locate and contact Lowry, fire fighters at the Lowry residence found it necessary, in order to put out the fire, to cut a large hole in the outside wall of the house and remove the fireplace. Because of the security problem this created, the coroner's office--charged with the duty of preserving the victim's property intact--contracted with Smith Security Service, a private guard firm, to station guards at the house. Pursuant to the contract, Wesley Klein, a Smith guard, was assigned to the house from midnight to 10 a.m. on December 30. Klein, evidently bored, picked up a book from the hall closet bookshelf and began to read it. Inside the book Klein found some folded, handwritten notes. He read the top sheet, concluded that the papers might be important to the murder investigation, and turned them over to the police. One of the notes found by Klein contained two poems written by Lowry. The poems were admitted into evidence at trial by the prosecutor on the issue of Lowry's intent.
On appeal, Lowry argues that the trial court erred in refusing to suppress from evidence statements that he made between the time he was contacted by the police in Eagle River and the time he invoked his right to counsel later the same morning. In support of this argument, Lowry advances two closely-related theories, both premised on the claim that his initial contact with the police amounted to an arrest. First, Lowry maintains that he was arrested without probable cause. He reasons that his subsequent statements at the police station must be suppressed as fruits of the unlawful arrest. Second, Lowry notes that he was not given Miranda warnings until he had been at the police station for approximately thirty to forty-five minutes. He insists that all statements he made before receiving Miranda warnings were obtained by the police in violation of his right to remain silent and must therefore be suppressed.
The state responds by adopting the same position relied on by the trial court as a basis for rejecting Lowry's pretrial motion to suppress evidence: that the initial contact between the police and Lowry in Eagle River did not amount to an arrest but was, instead, an investigative stop. According to the state, once the investigative stop had been accomplished, Lowry voluntarily consented to accompany the police to Anchorage for an interview. Although we believe the issue to be an extremely close one, we find that the state's argument has merit.
At the outset, the state correctly acknowledges that the initial encounter between the police and Lowry in Eagle River amounted at least to a temporary seizure of Lowry's person--an investigative stop. See Waring v. State, 670 P.2d 357, 366 (Alaska 1983); Coleman v. State, 553 P.2d 40, 43-45 (Alaska 1976). See also Howard v. State, 664 P.2d 603, 608-609 (Alaska App.1983); Romo v. Anchorage, 697 P.2d 1065, 1067-1068 (Alaska App.1985). There can be little doubt that the stop would have ripened into a full-blown arrest if Lowry had still been in detention when transported to Anchorage for questioning; probable cause as well as the administration of Miranda warnings would then have been required. See, e.g., Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); State v. Cassell, 602 P.2d 410, 415 (Alaska 1979); Howard v. State, 664 P.2d at 610 (Alaska App.1983).
Yet, in the present case, the trial court determined that Lowry's transportation to Anchorage and his interrogation at the police station was not a continuation of the initial investigative stop. The court found, rather, that Lowry was taken to Anchorage voluntarily, after consenting to be interviewed at the police station. We find substantial evidence in the record to support the trial court's finding of voluntary consent.
We nevertheless recognize that the issue of consent in this case is a particularly troublesome one. By definition, the liberty of any individual who is subjected to an investigative stop is restrained; hence, the stop operates as a seizure for purposes of the fourth amendment. Waring v. State, 670 P.2d 357, 366 (Alaska 1983). Certainly, a temporary stop cannot be equated with a formal arrest, even when considerable force is used in effectuating the stop. See Howard v. State, 664 P.2d 603, 608-609 (Alaska App.1983). Yet, especially when force is used or a display of weapons is made, a person who has been stopped and placed in the effective custody--albeit temporary--of the police may find little consolation in being advised that a formal arrest has not been made. The person so detained will certainly understand that he has been placed in...
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