Rubey v. City of Fairbanks

• Decision Date: 23 June 1969
• Docket Number: No. 956,956
• Citation: 456 P.2d 470
• Parties: Twyla Mae RUBEY, Appellant, v. CITY OF FAIRBANKS, Appellee.
• Court: Alaska Supreme Court

Page 470

456 P.2d 470

Twyla Mae RUBEY, Appellant, v. CITY OF FAIRBANKS, Appellee.

No. 956.

Supreme Court of Alaska.

June 23, 1969.

Thomas E. Curran, Jr., of Savage, Erwin & Curran, Anchorage, for appellant.

Stephen S. DeLisio, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

DIMOND, Justice.

In a trial by the district court without a jury, appellant was convicted of the offense of assignation, ¹ a misdemeanor. The judgment of conviction was affirmed by the superior court. An appeal was then taken to this court.

Appellant's first point is that she was not adequately advised of her right to counsel under the requirements of Miranda v. Arizona, ² and therefore her signed statement in which she admitted the offense with which she was charged should not have been admitted into evidence against her. ³

City Police Officer Tannenbaum testified that prior to questioning appellant he advised her of 'her rights'. When asked what rights he was talking about, he said:

I told her that I was a police officer and I was going to ask her questions in connection with the arrest that particular morning and she didn't have to answer any of my questions, and anything that she did say would be used against her in Court and she was entitled to an attorney and I asked her if she wanted to call an attorney and she said no.

Later he stated, with regard to appellant's right to counsel, that he advised her: '(S)he's entitled to an attorney and one would be provided for her if she did not have the funds to get one.'

Appellant's contention here is that Tannenbaum's warning that she had the right to retained or appointed counsel was not enough-that a complete Miranda warning required that she be informed she had the right to the presence of an attorney both before and during interrogation.

Miranda does require that a defendant be warned of his right to the 'presence of an attorney'-of the right to have 'counsel present' during any questioning. ⁴ But the fact that Tannenbaum did not specifically tell appellant that she had the right to have counsel 'present' during questioning does not mean that she was not advised of her right in this respect. He told appellant, prior to questioning, that he was a police officer, that he intended to ask her questions in connection with her arrest, that she did not have to answer any questions, that anything she did say would be used against her, and that she was entitled to an attorney. He then asked her, also prior to interrogation, if she wanted to 'call an attorney' and she answered 'no.'

Considering the circumstances in which Tannenbaum said to appellant what he did, we believe that appellant must have understood that if she had asked for an attorney he would have been present during the questioning. The warning given as to her right to counsel, together with the query as to whether she wanted to call an attorney, all of which took place prior to questioning, reasonably would leave the impression in appellant's mind that if she had wished to have counsel represent her the questioning would have been deferred until after she had time to consult with an attorney.

This conclusion is strengthened by the fact that appellant not only did not request the presence of an attorney, but expressly stated she did not wish to call one. There is no reason to believe that appellant did not understand what her rights were. In speaking of appellant Officer Tannenbaum said:

She appeared to be fairly educated, she looked as if she knew what I was talking about, and she seemed to understand and comprehend what I was saying.

We construe appellant's actions as amounting to a knowing and intelligent waiver of her right to have counsel present. ⁵ In order to reach the conclusion urged by appellant, that she was not adequately advised of her right to counsel, we would have to assume that appellant may not have waived her right to counsel if she had been told expressly that her right in this regard was to have counsel present during questioning. And such an assumption logically would require another assumption-that if appellant had understood she had the right to the 'presence of an attorney', rather than just the right to an attorney in general, she would have then requested or demanded that an attorney be present at the questioning, rather than saying as she did, that she did not wish to call one. These are not reasonable assumptions to make under the circumstances.

Appellant was properly advised of her right to counsel, retained or appointed, under Miranda and the cases where the requirements of Miranda have been considered by us. ⁶ She knowingly and intelligently waived that right. The statement she signed, admitting the offense with which she was charged, was properly admitted into evidence. ⁷

A man named Potter had telephoned appellant at Tannenbaum's suggestion and had made arrangements to meet appellant in Room 201 of the Polaris Building in Fairbanks. Tannenbaum gave Potter some marked money. Tannenbaum testified that he and Potter had a prearranged plan whereby Potter would turn over the marked money to appellant, and Potter would then open the door to Room 201 and let Tannenbaum in.

After Tannenbaum had waited in the hall of the Polaris Building for about 20 minutes, Potter opened the door to Room 201 and asked Tannenbaum to come in. Potter stood in the doorway unclothed. Tannenbaum entered the room and saw appellant entering the bathroom with only a slip on. At this time Potter pointed to appellant and said, '(Y)ou're under arrest for prostitution.'

Almost immediately thereafter Tannenbaum advised appellant that she was under arrest, and asked her for the money that Potter had given her. Tannenbaum testified:

She said I'm not going to give it to you, I earned it. I said well, I'm afraid you're going to have to * * * ah * * * give it to me and that's when she took it out of her bra and handed it to me * * *.

Appellant contends that the acquisition of the money by Tannenbaum was the result of an unreasonable search and seizure.

Appellant at first refused to hand over the money to Officer Tannenbaum, and then capitulated at his insistence. Since she revealed the location of and handed over the money at a police officer's demand, there was a search and seizure, rather than a voluntary surrender of the money. ⁸ The kind of search and seizure forbidden by constitutional provisions is that which is unreasonable. A search and seizure would be unreasonable if done without a search warrant, unless the facts are such to bring the case within an exception to the rule that there must be a search warrant. The exception we are concerned with here is that which recognizes the validity of a search and resulting seizure made without a warrant when the search is made incident to a lawful arrest. ⁹ And since the arrest in this case was made without a warrant, and the offense involved was a misdemeanor, the lawfulness of the arrest depends on whether the arresting officer was present at the commission of the offense. ¹⁰

Tannenbaum had overheard the telephone conversation between Potter and appellant where arrangements were made for the latter to meet appellant in Room 201 of the Polaris Building for purposes of prostitution. When Tannenbaum entered the room Potter was unclothed and appellant was partially unclothed. Tannenbaum heard Potter say to appellant that she was 'under arrest for prostitution.' These circumstances would give Tannenbaum reason to be aware that at the time he told appellant she was under arrest she was committing the offense of assignation because she was engaged in an act in furtherance of an appointment previously made for prostitution or lewdness. What Tannenbaum observed, considered in the light of his prior knowledge, was sufficiently indicative of the offense of assignation being in the course of commission. ¹¹ The arrest made without a warrant was lawful, and a search and seizure, made as it was incident to such a lawful arrest, was not unreasonable.

Appellant contends that testimony regarding Tannenbaum's seizure of the money was inadmissible because appellant was not at that time given a Miranda type warning as to her right to remain silent and to have retained or appointed counsel represent her. There is no merit to this contention. Miranda forbids the use in evidence of a statement made by a defendant in custody who was not warned of his privilege against self-incrimination and his right to counsel. The Miranda rule has no application to the question of whether a search and seizure is lawful. ¹²

Officer Tannenbaum testified that the Polaris Building where Potter met appellant was located inside they City of Fairbanks. He also testified that the police station from which Potter placed the telephone call to appellant was in the city. However, the Key Board Club where appellant received the call was outside the city. Appellant contends that the term 'assignation' means appointment, that an appointment is the essence of the offense of assignation, and that since appellant made an appointment to meet Potter while she was outside the city limits the court, which was trying a violation of a municipal ordinance, had no jurisdication over the offense.

This contention is untenable. The offense of assignation includes not only the making of an appointment for prostitution or lewdness, but also 'any act in furtherance of such appointment.' ¹³ Appellant kept the appointment she had made by meeting Potter at the Polaris Building. It was at the Polaris Building that she received money from Potter and engaged in the act of prostitution. These were acts in furtherance of the appointment, they constituted 'assignation' within the definition of that offense, and they took place within the City of Fairbanks. The court had jurisdiction to try this violation of the city's ordinance.

Appellant lists some 26 instances where the...