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Swett v. Municipality of Anchorage3/22/2000
iams's testimony, Judge Wanamaker found that Williams had taken reasonable steps under the circumstances. He found that Williams had done the best he could to preserve the privacy of the attorney-client communication and that Williams did not hear anything that the attorney said to Swett. Judge Wanamaker found that because Swett was handcuffed, it was necessary that Williams stood near enough to Swett to hold the phone so that Swett could talk to the lawyer. Judge Wanamaker also found that Williams would have been able to hear Swett's portion of the conversation even if he backed off because of the size of the room. The judge therefore denied Swett's request to suppress the Intoximeter result.
On appeal, Swett asserts that under Farrell v. Anchorage and Reekie v. Anchorage, police must make a reasonable effort to accommodate an arrestee's right to consult privately with an attorney. Judge Wanamaker, however, found that considering the confines of the sub-station, and the duty to constantly observe Swett's face, Williams made a reasonable effort to protect the privacy of the communication between Swett and the attorney. Swett asserts that Williams, like the police in Farrell, made no effort to grant Swett any amount of privacy. Williams, however, like the officer in Mangiapane v. State, did make efforts to provide some measure of privacy - Williams turned off his tape recorder and made no notes of Swett's conversation. Williams heard nothing of what the attorney said. Williams stood in physical proximity to Swett to enable the phone call with the lawyer because Swett kept dropping the phone.
Swett attempts to distinguish his case from Mangiapane by pointing out that Williams was only an "arm's length" away, while the officer in Mangiapane stepped 10 to 15 feet away. As we recently held in Mangiapane, however, mere proximity alone does not violate the right to confer with counsel.
In a series of cases, [Kiehl v. State, 901 P.2d 445 (Alaska App. 1995); Reekie v. Anchorage, 803 P.2d 412 (Alaska App. 1990); Anchorage v. Marrs, 694 P.2d 1163 (Alaska App. 1985); Farrell v. Anchorage, 682 P.2d 1128 (Alaska App. 1984),] this court has held that " ven though police officers have a duty to maintain custodial observation of [an arrestee] before administration of the breath test, [the arrestee] must be given a reasonable opportunity to hold a private conversation with his or her attorney." But an arrestee's right to confer with counsel "is not violated merely because the arresting officer maintains physical proximity to the [arrestee]". This court has suppressed Intoximeter results only when, in addition to maintaining physical proximity, "the police engaged in additional intrusive measures, intrusions that convinced [arrestees] that the officers were intent on overhearing and reporting [the arrestees'] conversations with their attorneys."
In Swett's case, Williams stood next to Swett to help Swett with the phone. In Mangiapane, the defendant spoke to his attorney using the speaker phone capability. Although Williams was closer to the defendant than the officer in Mangiapane, the use of the handset prevented Williams from hearing anything that the lawyer said to Swett.
The record shows that Williams did not engage in unnecessary intrusive conduct to deter Swett from conferring with the attorney or to intrude into the privacy of the attorney-client conversation. The record does show that Williams undertook exceptional efforts to contact counsel for Swett. The police initially made a long distance call to a Sitka public defender identified by Swett. When the Sitka lawyer referred Williams to the Anchorage public defender number, Williams called that number. Whoever a
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