Court: Alaska Supreme Court; September 19, 1980; Alaska; State Supreme Court
Pia Johnson appeals her conviction for distribution of cocaine under AS 17.10.010, which is based on evidence seized from a nighttime search of a residence. The case originated when James McHaley approached Sergeant Windred of the Juneau Police Department, offering information on Raymond Johnson, a major drug dealer under investigation for several years. McHaley, who was also involved in drug activities, reported that Raymond Johnson was expecting a heroin shipment from Seattle, allegedly arranged by Pia Johnson.
On June 18, 1976, Windred learned from McHaley that Pia had dropped off a package at Seattle Airport, destined for Raymond's sister, Sherry Peters, in Juneau. Windred contacted Seattle airport police to monitor Pia's actions and subsequently obtained a search warrant based on his affidavit and oral testimony, asserting that the drugs would be delivered to Raymond's residence.
After the warrant was issued, police followed the package delivery to Johnson's house. When confronted by police, Raymond Johnson fled into the cabin, slamming the door. This sequence of events forms the basis of the appeal, highlighting the legality of the search and the sufficiency of evidence leading to the conviction.
Police arrested Raymond Johnson and Sherry Peters while they were allegedly diluting and packaging narcotics in a cabin. A subsequent search revealed a significant amount of cocaine and heroin, along with a Gold Streak package. The appellant sought to suppress the evidence obtained during this search, arguing that it violated Alaska Rule of Criminal Procedure 37(a)(3)(iv), which mandates daytime execution of search warrants unless specific conditions are met. In prior rulings, it was noted that nighttime searches are more intrusive and require judicial affirmation of necessity. The issuing magistrate in this case determined the need for a nighttime search, a decision that is afforded "great deference" in legal evaluations. Courts may consider the circumstances surrounding the warrant's issuance rather than strictly adhering to the written affidavit. The positivity standard for nighttime searches, akin to a former federal rule, does not necessitate proof beyond a reasonable doubt but requires a factual basis that reasonably infers the presence of the property in question. This interpretation aligns with state court readings of similar provisions, allowing for effective law enforcement while safeguarding constitutional rights.
Interpreting the positivity requirement literally would hinder the ability to obtain a nighttime search warrant. A police officer securing a warrant after observing drugs would not be able to affirm their presence at the time of the oath. Thus, "positive" should be understood as "reasonably certain." The affidavit in question is detailed, citing Raymond Johnson as the information source and establishing the informant's reliability, alongside suspicious circumstances surrounding a package shipment. The appellant contends that Sergeant Windred did not explicitly state in the affidavit that he was positive about finding the drugs, which he argues violates Criminal Rule 37(a)(3)(iv). However, Windred provided sworn oral testimony asserting his certainty, summarized by the notation "definite" in the affidavit's margin. Courts interpreting similar provisions have not specifically required a written statement of positivity.
Additionally, the appellant claims the warrant was invalid since Raymond Johnson did not possess the package at the time of issuance. However, this case involves an anticipatory search warrant, permissible constitutionally, which allows for probable cause that evidence will be present in the future. The statutory authority AS 12.35.020(3) supports this interpretation by requiring reasonable belief of possession at the time of execution, not issuance. The concept that positivity cannot be met in anticipatory warrant situations lacks supporting authority and is rejected. Such warrants are valid when there is substantial probability that the property will be present during the search.
The appellant contends that Sergeant Windred's affidavit is inadequate due to perceived inconsistencies regarding the timing of Raymond Johnson's possession of heroin. However, the court finds these inconsistencies minor, as the affidavit clearly indicates that Johnson is about to receive a specific package of illegal drugs. The affidavit's language about possession stems from a printed form, while the future tense is handwritten, leaving no doubt about the situation.
The appellant also challenges the adequacy of the premises description in the search warrant, noting discrepancies such as the cabin's color, proximity to the shoreline, and distance from the highway. The court cites legal precedent establishing that a description is sufficient if it allows a law enforcement officer to identify the premises with reasonable effort. Technical precision is not required, and as long as there is no significant likelihood of searching the wrong location, the description is adequate. Here, the only inaccuracy was the color of the cabin, which was rust red instead of green, but there were no green cabins in the area, and Sergeant Windred was familiar with the property.
Additionally, the appellant argues that Judge Siangco failed to act neutrally and detachedly when issuing the warrant shortly after meeting with police. The court emphasizes the presumption of a magistrate's neutrality and detachment, even when meeting law enforcement outside of the office. The urgency of the situation justified this arrangement, and the time spent reviewing the affidavit does not alone indicate bias. Judge Siangco's involvement was limited to issuing the warrant, maintaining the necessary separation from law enforcement activities.
The affidavit supporting the warrant was thoroughly examined, with Sergeant Windred providing additional sworn testimony to ensure its issuance. The appellant failed to demonstrate that the magistrate acted with anything but neutrality and detachment. The appellant's argument regarding inadequate credibility of the informant was countered by the informant's reliable history concerning drug transactions, satisfying the standard established in Keller v. State. This reliability was further supported by the successful prediction of a drug shipment and the appellant's unusual behavior during the package delivery.
Claims of improper police conduct and entrapment were dismissed due to a lack of evidentiary support. The appellant's motion to dismiss was appropriately denied. Although the appellant argued restrictions on cross-examination of Sergeant Windred, any perceived error was rectified when the prosecutor later withdrew objections to the questioning. The trial court's exclusion of testimony regarding the informant's bad character was deemed appropriate, as the informant did not testify, aligning with the discretion established in Jones v. State.
The judgment was affirmed, with a dissenting opinion highlighting concerns over the positivity requirement for nighttime search warrants under Alaska R.Crim. P. 37(a)(3)(iv). The dissent argued that the affidavit lacked sufficient factual basis to show that drugs would be found at the appellant's residence, citing the need for a higher standard of proof in nighttime searches due to privacy concerns. The dissent contended that Sergeant Windred's statements did not meet this requirement, questioning the assumption that drugs would be taken to the appellant's home following their arrival at the airport.
Sworn testimony must be recorded in court to support a defective affidavit, as per Alaska R.Crim. P. 37(a)(1)(i)(bb). Since Sgt. Windred's testimony was not recorded before the issuing magistrate, it cannot be used to validate the warrant. Even if such oral testimony were admissible, Sgt. Windred's vague assertions and the use of the term "definite" in the affidavit fail to meet the requirement that a magistrate is provided with adequate supporting facts rather than mere suspicions (Keller v. State, 543 P.2d 1211, 1215 (Alaska 1975)). There is insufficient evidence to justify a warrant for a nighttime search at Raymond Johnson's residence. The majority opinion contradicts the explicit positivity requirement of Rule 37.
The case involves an indictment against the appellant for distributing heroin and cocaine, with a mistrial declared for the heroin charge due to a hung jury, which was later dismissed. The affidavit, submitted by Sgt. Dennis Windred of the Juneau Police Department, asserts that a crime of Possession of Heroin with Intent to Sell was committed by Johnson, who allegedly received a package containing five pounds of heroin. The affidavit details the belief that certain items related to the crime are located at Johnson's residence, including a package addressed to Sherry Peters. Windred claims to have received information from an informant regarding a shipment of heroin to Johnson on June 19, 1976.
The informant provided information sourced directly from Raymond Johnson, indicating that Pia Johnson, Raymond's wife, would ship a package of heroin from Seattle. Previous tips from the informant regarding illegal drug transactions had been corroborated by independent investigations. Authorities in Seattle confirmed that Pia Johnson delivered a five-pound package to Alaska Airlines for delivery to Sherry Peters, Raymond's sister, shortly before Flight 69's departure on June 19, 1976. Sgt. A. Dee Carter of the Seattle Port Authority identified Pia Johnson using her driver’s license and noted that she appeared to be under the influence of drugs during the delivery. Following the package delivery, Pia was found unconscious in a restroom due to an apparent overdose for 45 minutes. The informant also indicated that Pia was staying at the Milner Hotel in Seattle, which was verified. Raymond Johnson is recognized as a long-time illegal drug dealer with a prior drug-related felony conviction from 1972.
Dennis Windred, the affiant, requested a search warrant to search Raymond Johnson's person and his residence at Mile 4, North Douglas, for illegal drugs and related materials. The search warrant issued by Judge Richard Siangco mandated the immediate search for Gold Streak Express Package No. 027X1972132 and its contents, specifically heroin. The warrant outlined the requirements for issuance under Alaska R.Crim. P. 37(a), including the necessity of an affidavit sworn before a judge, establishment of probable cause, identification of the property, and particulars about the person or place to be searched. The warrant was to be executed by a peace officer, detailing the grounds for its issuance and directing the officer to search for the specified property.
The Model Code of Pre Arraignment Procedure, SS 220.2, does not mandate a positivity requirement for nighttime searches, suggesting that such searches should not occur if a daytime search would suffice. The current positivity standard is deemed inadequate, prompting a referral to the advisory committee on Criminal Rules for potential revision. The court draws parallels to jury trials, emphasizing that the standard of evidence to send a case to the jury should be consistent across civil and criminal cases, and the jury must be instructed to exclude all reasonable doubt before convicting.
In a motion to suppress, Sergeant Windred confirmed he informed Judge Siangco he was "positive" about the information regarding drug activity at Raymond Johnson's residence. For anticipatory warrants, probable cause must exist that the items will be present at the time of execution, preventing premature actions. It is suggested that warrants should stipulate execution contingent upon an event indicating probable cause, rather than authorizing immediate execution.
The Fourth Amendment does not explicitly demand that probable cause be established by a neutral magistrate, but case law, including Coolidge v. New Hampshire, affirms that neutrality is constitutionally required. The purpose of the warrant requirement is to curb unreasonable police actions, ensuring that rights to be free from unreasonable search and seizure are protected, as established in prior rulings.
