Davenport v. State

568 P.2d 939, 1977 Alas. LEXIS 523
Alaska Supreme Court·Decided September 2, 1977·No. 2885·Published·Cited by 14 cases

Opinions

OPINION

BOOCHEVER, Chief Justice.

Tyrone Davenport was convicted by a jury of receiving or concealing stolen property in violation of AS 11.20.350 and was sentenced to eighteen months imprisonment to run concurrently with his other sentences imposed for prior convictions.1 This offense occurred while Davenport was on parole for receiving and concealing, assault with a dangerous weapon and a felon in possession.

On appeal, Davenport challenges the superior court’s refusal to suppress evidence. Although the evidence was seized pursuant to a search warrant, Davenport claims the evidence was discovered during an illegal attempt to execute an invalid arrest warrant. Davenport thus raises two questions:

(1) Is an arrest warrant for a parole violator invalid if not supported by sworn complaint or affidavit?

(2) Did the police have probable cause to enter and search the apartment of a third person in an attempt to execute the parole violation warrant?

Additionally, the state appeals from the sentence contending that it was too lenient.

We have concluded that the arrest warrant was valid, that there was probable cause to enter the apartment and search it to the extent necessary to execute the parole violation warrant, and that the sentence was too lenient insofar as it was imposed to run concurrently with the other sentences.

I. STATEMENT OF THE FACTS

During late May, June and early July of 1975, Carroll Smith, Davenport’s parole officer, received information that Davenport had been associating with known felons, that he may have been involved in two burglaries in the Anchorage area and that he had made death threats against two police investigators. This information was provided by Lyle Davis of the Anchorage Police Department, who had been investigating a series of burglaries, and by Bob Clemens, another policeman. Smith did not act on this information, however. In each instance, he asked for proof of the alleged activity. Since none was offered, he felt he did not have “anything [he] felt strong enough to issue a warrant on and wanted to give [Davenport] the opportunity to demonstrate himself.” According to Smith, all contacts between the police and himself had been initiated by the investigators; and [942]*942between July 1 and 14, he had received approximately three calls from Davis. Smith stated that Davis had asked what action might be taken on the case and whether a warrant might be issued. Davis, however, denied having made a specific request for a warrant.

On July 14, 1975, Rev. Lyons of the parole board issued a parole violation warrant for the arrest of Davenport. The state does not deny the fact that no written complaint or affidavits were submitted in support of this warrant. It was requested and prepared by Smith and signed by Rev. Lyons on the basis of Smith’s oral statements that: (1) Davenport had failed to report to Smith in writing during the first two weeks of July; (2) Davenport had failed to advise Smith of a change in employment and had misled Smith into believing he was employed when, in fact, he was not and (3) Davenport had been associating with known felons. Smith had earlier communicated his concerns relating to Davenport’s employment and his association with felons to the head of the parole board in writing. Additionally, he had commented on the alleged criminal activity.

The signed warrant was placed in Davenport’s file. At noon on July 14, Smith called Officer Clemens and informed him that the warrant had been issued, that it was active and that if the police were in contact with Davenport, they could legally arrest him. Neither Clemens nor Davis had asked to be contacted when the warrant was issued. Smith’s call was made pursuant to the “general practice” of advising the police of active warrants.

After receiving notice of the warrant, Davis and two other policemen proceeded to the residence of Lillian White. Four days earlier, Davis had been advised by an informant that Davenport was “going” with Ms. White and had been staying with her. Davis had not, however, watched the apartment in the interval to verify the information. The informant had given information in the recent past, but Davis had not previously tested his credibility or reliability.

Additional information provided by the informant in this case consisted of the following facts: (1) White and her husband had separated, and her husband was a school teacher of some sort; (2) Davenport had been riding in Ms. White’s car and another car, a late model Cadillac of dark color which was “being kept away from” Ms. White’s apartment and (3) Davenport had been making threats on Davis’ life.

Davis testified that Davenport had been observed at several different locations in Anchorage, but that these were not permanent or semi-permanent addresses. He did not believe that Davenport had been staying at his father’s home in Anchorage. Although Davis had never knocked on the door, he had been by that location a number of times and had failed to observe the vehicle which Davenport was reported to have been using.

Davis and the two other officers arrived at Ms. White’s residence at approximately 2:00 p. m. They knocked on the door of her apartment and heard music in the background, but there was no response. Judy Smith, who lived across the hall, came to her door and was questioned by Davis. She stated that the apartment at which the police had been knocking was that of Lillian White and that Lillian had left some hours before.2 She further told the police that when Lillian was leaving, she had seen a Negro male in the doorway of the apartment. According to Davis, the description matched that of Davenport. Ms. Smith indicated that she didn’t know whether or not the man was still there. Davis testified that she also told the police that music had been coming from the apartment when Ms. White had left. Finally, Ms. Smith informed Davis that she had seen Davenport on several occasions, perhaps six or seven times at various times of the day. She did [943]*943not know whether or not he lived at the apartment with Ms. White.

Having knocked loudly on Ms. White’s door several more times and receiving no response, Officer Davis used Ms. Smith’s telephone to contact the building manager, Ms. Holding. He informed her that he had a warrant for Davenport’s arrest and requested a key to the apartment. Ms. Holding testified that she told Davis that she had seen Davenport and Ms. White leaving the apartment together the previous afternoon.

On entering the apartment, the police immediately commenced a search for Davenport and inspected the rooms and the closets. In checking the closet in the bedroom which, according to Davis, was large enough to hold ten to fifteen people, Davis observed several video recording items which he recognized as having come from a burglary which occurred two weeks previously. An additional item was observed on top of a clothes hamper in the bedroom. Davis testified that he was “astonished” to find the items in the apartment, since, in his experience, stolen items were usually quickly disposed of.

On the advice of the District Attorney, whom he had contacted by phone, Davis secured the apartment and obtained a warrant in order to seize the allegedly stolen goods.

On July 15, Davenport was arrested at the office of the parole board. He had apparently come to the office under his own motivation to report to his parole officer.

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Davenport v. State, 568 P.2d 939, 1977 Alas. LEXIS 523 (Ala. 1977).

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