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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                       Court of Appeals No. A-12377
                            Appellant,                Trial Court No. 1KE-14-802 CR

                     v.
                                                              O P I N I O N
TERRA L. ADAMS,

                            Appellee.                   No. 2612 — August 3, 2018


              Appeal from the Superior Court, First Judicial District,
              Ketchikan, Trevor N. Stephens, Judge.

              Appearances: Elizabeth T. Burke, Assistant Attorney General,
              Office of Criminal Appeals, Anchorage, and Craig W. Richards
              and Jahna Lindemuth, Attorneys General, Juneau, for the
              Appellant. Galen Paine, Law Office of Julie Willoughby,
              Juneau, under contract with the Office of Public Advocacy, for
              the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             The State appeals the superior court’s suppression of evidence in the
prosecution of Terra L. Adams for the unlawful distribution of oxycodone.
             According to the Alaska State Troopers’ investigation, Adams would use
other people — “runners” or “mules” — to transport oxycodone tablets from other states
to Alaska. The State Troopers identified Pamela Helgesen as one of these “runners”.
             In December 2014, investigators received information that Adams had used
airline miles to purchase a round-trip ticket for Helgesen from Ketchikan to Seattle and
back. The officers obtained a warrant to search Helgesen’s person and property for
drugs, and they waited for her return to Ketchikan.
             Upon Helgesen’s arrival at the Ketchikan airport, two officers intercepted
her and informed her of the search warrant. During their conversation with Helgesen,
the officers asked a number of questions about Helgesen’s involvement in transporting
oxycodone for Adams.
             Helgesen initially denied any involvement in Adams’s drug activities, but
Helgesen eventually made statements that implicated both herself and Adams in the illicit
distribution of oxycodone. After making these statements, Helgesen told the officers that
she did not wish to talk further. However, Helgesen agreed to assist the officers by
sending a text message to Adams — a text message stating that she (Helgesen) had made
it back to Ketchikan, and that she would meet Adams “on the other side at the ticket
booth” and give her the oxycodone tablets.
             Adams responded to Helgesen’s text, saying that she was on her way. The
officers waited for Adams at the rendezvous location, and they arrested her shortly after
she arrived. Adams was subsequently indicted for second-degree controlled substance
misconduct, and for conspiracy to commit this crime.
             Following Adams’s indictment, her attorney asked the superior court to
suppress all evidence stemming from Helgesen’s text message to Adams. In particular,

                                          –2–                                       2612

the defense attorney sought suppression of Adams’s reply that she was “on her way”, as
well as the fact that Adams subsequently arrived at the airport and proceeded to the
rendezvous location, and the statements that Adams made when she was contacted by
the officers.
                Adams’s attorney argued that Adams was entitled to the suppression of this
evidence because the officers violated Helgesen’s rights under Miranda v. Arizona 1
when they questioned her at the airport — and that Helgesen’s text message to Adams
was the tainted fruit of this Miranda violation. Thus, according to Adams’s attorney, all
the evidence flowing from that text message should be suppressed.
                Under federal law, a criminal defendant lacks standing to seek suppression
of evidence obtained through a police violation of someone else’s constitutional
rights. 2 But Alaska law recognizes a limited exception to this lack-of-standing rule.
In Waring v. State, 670 P.2d 357, 363 (Alaska 1983), our supreme court held that even
though criminal defendants normally lack standing to complain if the police violate
someone else’s constitutional rights, a defendant in Alaska can assert a violation of
another person’s constitutional rights if the police engage in a “gross or shocking”
violation of rights, or if the police deliberately violate another person’s rights for the sole
purpose of obtaining evidence against the defendant. 3




   1
       384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
   2
      See Rakas v. Illinois, 439 U.S. 128, 132-34; 99 S.Ct. 421, 424-25; 58 L.Ed.2d 387
(1978).
   3
        Waring, 670 P.2d at 363 n.11; Fraiman v. Division of Motor Vehicles, 49 P.3d 241,
245 n. 18 (Alaska 2002) (declaring that even though the holding in Waring was limited to
the intentional violation of a co-defendant’s rights, a defendant in Alaska has standing to
assert the intentional violation of any third person’s rights).

                                             –3–                                          2612

             In Adams’s case, the superior court granted Adams’s suppression motion
under the first of these rationales: The superior court found that the officers did not
intentionally violate Helgesen’s Miranda rights, but the court found that the officers’
unintended violation of Helgesen’s Miranda rights was “egregious”.
             The superior court based this finding of egregiousness on the fact that the
officers continued to engage in conversation with Helgesen after she “clearly stated that
she did not want to talk further”.
             The court acknowledged that, after Helgesen said this, the investigators
“did attempt to shift the focus [of the conversation]” — no longer “questioning Ms.
Helgesen [about her activities]” but rather “seeing if she would be willing to text
Ms. Adams.” The court characterized the investigators’ actions as “attempting, at least
[to] some degree, to honor [Helgesen’s] request”.
             But the court then noted that when the investigators asked Helgesen if she
would be willing to send the text message to Adams, they told her that she “could help
herself by doing so”, and that if she decided not to send the text to Adams, “her lack of
cooperation would be noted”. The court further noted that, when the officers talked to
Helgesen about what she should say in her text message to Adams, the discussion
returned to Helgesen’s “drug mule activities”.
             Based on these circumstances, the superior court concluded that the
officers’ violation of Helgesen’s Miranda rights was “egregious” in the sense that the
violation “would have been apparent to any reasonable police officer”. And based on
this conclusion, the superior court ruled that the State was barred from using any of the
evidence obtained against Adams after the point when Helgesen told the officers that she
wanted to stop talking to them.
             The State asked the superior court to reconsider this ruling. In its motion
for reconsideration, the State argued that the Waring category of “gross or shocking”

                                          –4–                                       2612

violations of constitutional rights did not include all violations that would be apparent
to a reasonable officer. Instead, citing this Court’s 1984 decision in Giel v. State, the
State argued that Waring’s phrase “gross or shocking” applied to a more limited set of
circumstances — circumstances where the police misconduct “shocks the conscience”,
or where it is “of a nature that calls for the judiciary, as a matter of judicial integrity, to
disassociate itself from benefits derivable therefrom” — such as situations where the
police resort to unlawful “coercion, violence, or brutality”. 4
              Although the superior court conceded that this Court’s decision in Giel
“[could] be read to support the State’s position”, the superior court declared that it was
“not convinced” that the State’s interpretation of Waring was correct.
              The court therefore re-affirmed its earlier ruling that, under Waring, Adams
had standing to assert the violation of Helgesen’s Miranda rights so long as that violation
would have been obvious to a reasonable officer.
              The State now appeals the superior court’s ruling. We agree with the State
that the superior court misinterpreted the scope of Waring.
              As we have explained, the superior court declined to reconsider its ruling
because the court was “not convinced” that this Court’s decision in Giel was the proper
interpretation of Waring. But in Fraiman v. Division of Motor Vehicles, 49 P.3d 241
(Alaska 2002), the supreme court expressly endorsed our view of Waring. Citing Giel,
the supreme court declared that the test for vicarious standing under Waring is whether
the police misconduct “[rose] to the level where it would ‘shock the conscience.’” Id.
at 245 & n. 20.




   4
       See Giel v. State, 681 P.2d 1364, 1367 n. 3 (Alaska App. 1984).

                                             –5–                                          2612

              When we apply this legal test to the facts of Adams’s case as found by the
superior court, we conclude that Adams does not have vicarious standing to assert the
violation of Helgesen’s Miranda rights.
              As the superior court acknowledged, as soon as Helgesen stated that she did
not wish to answer further questions, the investigators stopped asking questions about
Helgesen’s involvement in drug trafficking. Instead, they “attempt[ed] to shift the focus
... [to whether Helgesen] would be willing to text Ms. Adams.” The court found that the
investigators’ shift in focus was, in fact, an “attempt[] ... to honor [Helgesen’s] request”.
              The superior court rightly criticized the officers because, when the officers
were trying to decide how to draft the text message that Helgesen would send to Adams,
they asked Helgesen more questions about her activities as a drug courier.
              But under these circumstances, even though the officers may have violated
Helgesen’s Miranda rights, the officers’ conduct does not “shock the conscience” — nor
does this conduct rise to the level where, as a matter of judicial integrity, the courts must
disassociate themselves from the text message that Helgesen sent to Adams, and from
the evidence that was obtained when Adams responded to that text message.
              For these reasons, we REVERSE the decision of the superior court, and we
reinstate the indictment against Adams.




                                            –6–                                         2612

