Sleziak v. State
| Decision Date | 05 May 1969 |
| Docket Number | No. 955,955 |
| Citation | 454 P.2d 252 |
| Parties | Wladyslaw SLEZIAK, a/k/a Walter Sleziak, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
The principal contention in this appeal centers on the trial court's overruling of appellant's motion to suppress evidence which was allegedly obtained as the result of an illegal search and seizure.
Appellant was indicted upon three separate counts of murder in the first degree. 1 Guilty verdicts of murder in the first degree were returned and appellant received a sentence of life imprisonment. 2
The victims of these homicides were an elderly couple, Walter and Mildred Feagley, who at the time of their deaths owned and operated a bakery which was located some eight miles from the city of Anchorage. Appellant was an employee of the Feagleys and resided within walking distance of the bakery. Living with appellant was Howard Mosquito, another employee of the bakery. Also sharing appellant's residence were appellant's mistress, Lois Harris, and Julia Barr who was the mistress of Howard Mosquito.
In the early morning hours of June 21, 1967, appellant was requested to come to the headquarters of the Alaska State Troopers in Anchorage. At this point in time the police had just begun their investigation into the shootings and had obtained information that two employees of the bakery, appellant and Mosquito, had been seen in the vicinity of the bakery shortly after the deaths of the Feagleys had been discovered. While appellant was at headquarters, two Alaska state troopers went to his residence and obtained a .32 caliber revolver, four shells, a partial box of shells, an overcoat, and a set of keys.
At the hearing which was held in regard to appellant's motion to suppress, a factual dispute developed as to whether appellant had consented to the search, as well as to the extent that either Howard Mosquito or Lois Harris had voluntarily produced these items for the officers who had gone to the residence of appellant.
Appellant denied giving consent to any search and generally denied the substance of Trooper Dankworth's testimony. This officer testified that at the time he spoke to appellant at police headquarters appellant was not under arrest, and that the posture of the police investigation was still general in character. Trooper Dankworth further testified that he advised appellant he had the right to remain silent, that he had the right to the presence of counsel, and that if he could not afford counsel, then counsel would be furnished him prior to any questioning. 3 According to Dankworth's evidence, after this warning had been given, appellant was still willing to talk to him. Denkworth then asked appellant.
if he owned a weapon and he told me that he did; that he had purchased one in Chicago. I asked him at that time, where the weapon was and he said it was at his home. I spent some time at that time explaining what ballistics were and that the police naturally would like to take the weapons of the employees of this establishment and test them, and asked him if he had any objections for our testing his weapon to determine if it had been fired. At this point, the defendant told me, '* * * Well, you'll find that it has been fired.' And, I said, 'When was that'?, and he said that the-the day prior, he and Mosquito had been out target practicing. I spent some time explaining that that wouldn't effect the ballistic tests that I had in mind and asked if he had any objection to our using this weapon and sending it to the FBI and he told me that he had not done anything and had no reason to object to my taking the weapon and that I could have the weapon. At that point, I asked him if I could send a trooper out to his place and pick up the gun, which he agree to. And, I dispatched a trooper out.
According to Trooper Dankworth, during the time this conversation took place appellant was neither the prime suspect nor even a suspect, and that the police did not know the size of the bullets which had killed the Feagleys since no autopsy had as yet been performed.
As a result of Trooper Dankworth's conversation with appellant, Troopers Church and Ulfers were dispatched to pick up appellant's revolver. Trooper Church testified that when they drove up to the appellant's residence in their squad car both Howard Mosquito and Lois Harris came out on the front porch, that Howard Mosquito recognized him and shook his hand, and that he then identified himself as an investigator with the Alaska State Troopers and also introduced investigator Ulfers. According to Church,
at this time, we didn't even ask about the gun; Howard Mosquito said, 'The gun's inside.', and we all went in. Howward Mosquito pointed toward an open closet, which is this one big front room in there, and Lois Harris went over and handed me the overcoat, which the gun was in.
* * * (T)he gun was bulging out in the pocket and I took the gun out of the pocket * * *.
* * * (A)t that time, Lois Harris handed me several other items; a box of .32 caliber shells-a partial box, and an American Express Money Order. I think she reached in the pocket as far as I can recall, reached in the pocket of the coat and brought four empty shells out and a set of keys, and handed those to me too.
Trooper Church gave further testimony that no search was conducted of appellant's residence at this time. Trooper Church testified that Harris and Mosquito agreed to come to headquarters. After Trooper Church had returned to headquarters, Trooper Dankworth showed the weapon to appellant. According to Dankworth,
(h)e identified it as his weapon and I went on and explained further that it may require that I keep this gun for some time as I needed his permission to keep it for some time as it needed to be sent back to the FBI again. This he agreed to. 4
Howard Mosquito's and Lois Harris' versions of what transpired are in harmony with the testimony of Trooper Church at many significant points. Such conflicts as do appear in the record concern what transpired immediately upon the officers' arrival at appellant's residence. Howard Mosquito testified that the officers asked if they could search the place and he then let them in. Lois Harris' version was that the officers stated they wanted to see appellant's clothing.
At the conclusion of the suppression hearing, the trial judge denied appellant's motion to suppress. In articulating the reasons for his ruling, the trial judge stated in part:
I'm of the opinion in this case that Mr. Sleziak did give permission to get the gun. In that respect, I find that Mr. Sleziak's testimony is not credible and that the officers' testimony is credible. I find that there was neither a search nor seizure under the circumstances existing, and that whatever the officers did was certainly not unreasonable under the circumstances. * * * Taking the whole thing together and having watched and listened to the witnesses that testified * * * I'm of the opinion that * * * there (was) neither any search nor any seizure; that the officers had specific permission to do what they did, and that, in any event, whatever they did wasn't unreasonable.
We affirm the superior court's denial of appellant's motion to suppress.
Both the fourth amendment to the federal constitution and its counterpart found in article I, section 14 of the Alaska constitution furnish guarantees against unreasonable searches and seizures. 5 Granted a warrantless search and seizure indicates unreasonableness in the constitutional sense, we have heretofore recognized certain exceptions to the necessity of procuring a warrant as a prerequisite to a lawful search and seizure. In Goss v. State 6 we held that a warrantless search incident to and contemporaneous with a lawful arrest was an exception to the rule that a search must rest upon a search warrant. In the more recent case of Stevens v. State 7 this court, in sustaining the search and seizure therein qujestioned, adopted the 'exigency rule' exception to the necessity for a search warrant. It is also well established by both federal and state precedent that, 'When an accused consents to a search or seizure conducted without a search warrant, the protection he would have enjoyed under the Fourth Amendment is lost to him.' 8 In the case at bar we are concerned with this latter exception.
The guiding criterion in resolving search and seizure issues is one of reasonableness in the constitutional sense. 9 Concerning the problem of determining reasonableness, we said:
There seems to be no exact formula for the determination of reasonableness in connection with a search and seizure and so each case must be decided on its own facts and circumstances. 10
In light of these general principles, we have concluded that the trial cuort's ruling on appellant's motion to suppress is sustainable on several independent grounds. First, we are of the opinion that the element of unreasonableness is absent here. Our study of the entire record has brought us to the conclusion that no unreasonable search or seizure in fact occurred. Additionally, we are of the opinion that appellant's consent removed the necessity for the obtaining of a search warrant in the case at bar.
Turning first to the question of appellant's consent, the second circuit's opinion in United States v. Smith 11 affords an appropriate basis for initial analysis of the consent issue as raised in the case at bar. In the Smith case, the court said in part:
(A)n accused's voluntary consent must be proven by clear and positive evidence. A consent is not a voluntary one if it is the product of duress or coercion, actual or implicit. Moreover, to be voluntary, a consent must have been unequivocal,...
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Com. v. Dressner
...held valid where it can be shown that the consenter was advised of his constitutional rights prior to giving his consent. Sleziak v. State, 454 P.2d 252 (Alaska 1969), cert. denied 396 U.S. 921, 90 S.Ct. 252, 24 L.Ed.2d 202; State v. McPeak, 243 N.C. 243, 90 S.E.2d 501 (1955), cert. denied ......
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...given and uncontaminated by duress or coercion. State v. Brough (1976), 556 P.2d 1239, 1241, 171 Mont. 182, 185; Sleziak v. State (Alaska 1969), 454 P.2d 252, 257-58, cert. den. 396 U.S. 921, 90 S.Ct. 252, 24 L.Ed.2d 202 (1969). This Court has held that there is a heavy burden of proof requ......