State v. Gutman, 7262

• Citation: 670 P.2d 1166
• Decision Date: 21 October 1983
• Docket Number: No. 7262,7262
• Parties: STATE of Alaska, Petitioner, v. Myron GUTMAN, Respondent.
• Court: Court of Appeals of Alaska

Page 1166

670 P.2d 1166

STATE of Alaska, Petitioner, v. Myron GUTMAN, Respondent.

No. 7262.

Court of Appeals of Alaska.

Oct. 21, 1983.

Bill D. Murphree, Asst. Atty. Gen., Harry L. Davis, Dist. Atty., and Wilson L. Condon, Atty. Gen., Juneau, for petitioner.

Dick L. Madson, Cowper & Madson, Fairbanks, for respondent.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

Myron Gutman was charged with one count of possession of cocaine for sale, two counts of sale of cocaine, and two counts of theft by receiving in the second degree. The charges were based in large part on evidence gathered at Gutman's residence pursuant to two search warrants executed by police on July 21, 1982. After being indicted, Gutman moved to suppress all evidence obtained pursuant to the warrants. On November 3, 1982, Fairbanks Superior Court Judge James R. Blair entered an order granting Gutman's suppression motion. Judge Blair based his ruling on the conclusion that the initial warrant, upon which the second warrant was based, was an improper anticipatory warrant. The state petitioned this court for review of Judge Blair's ruling, and we granted the petition. We now reverse.

On the afternoon of July 21, 1982, Fairbanks Police Officer Wilbur Hooks, accompanied by an assistant district attorney, appeared before District Court Judge Ed Crutchfield in Fairbanks and requested the issuance of three warrants. Officer Hooks submitted an affidavit in support of his request for the first warrant, which was for electronic surveillance and recording of a conversation between a police informant identified as "WH-8," and a person known as "Alvalina." ¹ The following facts were included in Officer Hooks's affidavit:

1. WH-8 is a confidential informant who has agreed to work in an undercover capacity and assist your affiant in investigating illegal drug sales that take place in the Fairbanks community.

2. At approximately 4:30 p.m., on July 19, 1982, WH-8 contacted your affiant in person and informed your affiant that WH-8 had spoken with a female known as "Alvalina" on this date and, in that conversation, "Alvalina" agreed to meet WH-8 at 1620 Washington Drive, Apartment # 27, and sell WH-8 one-quarter ounce of Cocaine.

3. WH-8 further informed your affiant that "Alvalina" told WH-8 that she was getting her Cocaine from Michael GUTMAN and that all she had to do was to call Michael GUTMAN on the telephone and that he would deliver whatever amount of Cocaine that she needed.

4. WH-8 also informed your affiant that WH-8 has observed Michael GUTMAN deliver Cocaine to 1620 Washington Drive, Apartment # 27, on numerous occasions.

5. WH-8 intends to meet "Alvalina" in an undercover capacity and make a controlled drug purchase from "Alvalina" and do so while WH-8 is carrying transmitting and recording equipment so that the nature of the conversation between WH-8 and "Alvalina" can be proven at a later date.

Officer Hooks was also called as a witness before Judge Crutchfield and presented sworn testimony to supplement his initial warrant request and to support a request for two additional search warrants. In addition to reaffirming the facts contained in his affidavit, Officer Hooks told Judge Crutchfield that WH-8 had contacted him again that same day, July 21, at about 3:30 p.m., to confirm that Alvalina had contacted him and was ready to go through with the sale as planned. Hooks indicated that the sale would be arranged as soon as possible. Hooks stated that officers would be positioned where they could observe Alvalina's apartment and electronically monitor any conversation between Alvalina and WH-8 in or near the apartment. Officers would also be assigned to maintain visual surveillance of Gutman's house and to follow Gutman in the event he left his house to meet with Alvalina. Hooks testified that marked money would be used by WH-8 to pay for any drugs sold to him by Alvalina.

Based on Officer Hooks's testimony, the state requested two warrants in addition to the warrant for surveillance of the conversation between WH-8 and Alvalina: first, the state asked for issuance of a warrant to search Alvalina's apartment; second, the state sought a warrant to search Gutman's house. The state expressly indicated that these warrants were to be anticipatory in nature and would become effective only in the event the transaction involving WH-8, Alvalina and Gutman occurred as planned.

Judge Crutchfield, after indicating that Officer Hooks's written affidavit would be incorporated by reference and considered along with the testimony supporting the request to search both Alvalina's and Gutman's residences, issued all three warrants. Before issuing the search warrant for Gutman's house, Judge Crutchfield expressly elicited from Officer Hooks and the assistant district attorney statements assuring that the warrant for Gutman's house would be contingent upon the occurrence of (1) a meeting between Alvalina and WH-8 for the purpose of consummating the cocaine sale; (2) the placement of a telephone call by Alvalina, ostensibly to Gutman, during the course of the meeting, followed by observation of Gutman leaving his apartment and meeting with Alvalina; and (3) the actual sale of cocaine by Alvalina to WH-8 after her meeting with Gutman. The search warrant for Gutman's house expressly provided for the search to occur "at any time after the contingent event alleged in the testimony ...."

Fairbanks police followed through with the plan Officer Hooks described to Judge Crutchfield. WH-8 met with Alvalina, obtained a quantity of cocaine, and gave Alvalina marked money in return. ² Police were able to observe WH-8 as he initially contacted Alvalina on the porch of her apartment building; the transaction was electronically monitored. Alvalina left several times during the transaction to visit another apartment. At least once, Alvalina indicated that she was going to make a phone call; upon her return, she told WH-8 the exact price that she would charge for the cocaine, and stated that "Mike" Gutman would be over in a half-hour.

Soon after Alvalina told WH-8 that Gutman would come, police saw Gutman leave his house and drive away in his car. Shortly thereafter, police saw Gutman meet briefly with Alvalina in front of her apartment building; enough time elapsed to allow for an exchange of money and cocaine. Alvalina then returned to her apartment and sold the cocaine to WH-8. After meeting with Alvalina, Gutman returned to his house. At that time police served him with the warrant authorizing the search of his residence. During the search, police seized marked money, cocaine and paraphernalia. They also observed a considerable amount of property they suspected to be stolen. Subsequently, police obtained an additional warrant and conducted a renewed search, this time for stolen property. The second search of Gutman's house yielded a number of stolen articles that served as the basis for charging Gutman with theft by receiving.

In his motion to suppress the evidence seized from his house, Gutman argued that probable cause did not exist to justify the anticipatory search warrant. Judge Blair granted Gutman's suppression motion. Specifically, Judge Blair indicated that although he recognized anticipatory warrants were not per se improper, in this case he thought the duty of finding probable cause had been impermissibly shifted from a neutral and detached magistrate to police in the field. Judge Blair stated, in relevant part:

Proper procedure as I see it in this case would have been to give the same information to the magistrate preparatory to the anticipated incident in this case. Then with the facts that became evident simply make a phone call to the same magistrate and say the material we told you would happen did happen. You now have probable cause and is the warrant issued [?] and the magistrate presumably would have said yes. That would have satisfied the problems of Aguilar that a crime existed and there would have been probable cause to issue a warrant at that [stage]. However, at the time the warrant issued in this case, there had been no crime committed and it was in fact left entirely up to the police to determine whether or not there was probable cause to use a warrant ....

In reviewing Judge Blair's ruling, we must determine whether the conclusions that he made were clearly erroneous. However, to the extent that Judge Blair's ruling was premised on an interpretation of the adequacy of the evidence supporting the search warrant for Gutman's residence, our review must be tempered by the need to give great deference to Judge Crutchfield's original determination of probable cause. We must resolve doubtful or marginal questions concerning interpretation of this evidence in a manner that will validate the warrant and reflect the preference traditionally accorded to warrants. Rosa v. State, 633 P.2d 1027, 1029 (Alaska App.1981). Moreover, in resolving uncertainties and ambiguities we need not artificially limit our inquiry to the warrant and its supporting affidavit and testimony. Instead, we may base our determination on a realistic appraisal of the circumstances surrounding the issuance of the warrant. Johnson v. State, 617 P.2d 1117, 1122 (Alaska 1980).

With this perspective in mind, we proceed to evaluate the sufficiency of Officer Hook's affidavit and testimony to establish probable cause for issuance of the anticipatory warrant permitting search of Gutman's house. ³

When realistically viewed, Officer Hooks's affidavit and testimony were sufficient to establish probable cause to believe that Alvalina would sell cocaine to WH-8 at her apartment and that the transaction would occur on the day of application for the search warrant. Alvalina had previously informed WH-8 of her willingness and ability to sell a specific quantity of cocaine to him, and immediately prior to Officer Hook's testimony, Alvalina had informed WH-8...