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Swett v. Municipality of Anchorage3/22/2000
nswered at the Anchorage public defender number referred Williams to the Anchorage law firm that provides legal assistance for indigent clients charged with municipal crimes. Williams called that number and got a recording. Then Williams called the Sitka lawyer again and was able to have that person speak to Swett. At that point, Williams announced that he was turning off the tape recorder, turned off the tape recorder, and took no notes during Swett's conversation. When Swett kept dropping the phone because he was handcuffed, Williams stepped in and held the phone so that Swett could maintain a conversation with the attorney. After Swett submitted to the breath test, Williams called the Sitka attorney again at Swett's request so that Swett could speak to the attorney one more time.
Swett argues that Williams could have handcuffed him in front of Swett's body or "handcuffed one cuff to a desk leg". But Williams testified that he handcuffed Swett behind his back for two reasons: because it was department policy and because of his concerns for safety. Williams testified that officers have been severely assaulted at the Fifth Avenue substation by defendants who had been handcuffed with their hands in front. Police do not have to compromise their safety to allow a defendant a greater degree of privacy when making a phone call. In Kameroff v. State, we stated that "an arrestee's right to call an attorney is not absolute. Police officers certainly need not jeopardize their own safety (or the safety of others) to allow a prisoner to make a telephone call."
We agree with Judge Wanamaker that Williams did not violate Swett's statutory right to confer with counsel.
The judgment of the district court is AFFIRMED.
MANNHEIMER, Judge, dissenting.
The defendant, Randy Swett, was arrested for driving while intoxicated and was taken to a police substation. The arresting officer, Matt Williams, offered Swett the opportunity to call an attorney, but the officer would not remove Swett's handcuffs or even allow Swett to place his cuffed hands in front of him. Because Swett could not use his hands to hold the telephone, it was necessary for Williams to stand directly next to Swett and hold the phone to Swett's face during the entire conversation. The question is whether this procedure was an undue infringement of Swett's right to speak with an attorney.
In a series of cases , we have acknowledged that arrestees are entitled to a modicum of privacy when they consult an attorney following their arrest. At the same time, we have also recognized that this right of privacy must be weighed against the officer's need to maintain control of the arrestee and the officer's need to observe the arrestee for the 15 minutes mandated by 13 AAC 63.040(a)(1) before asking the arrestee to take a breath test. In Mangiapane v. Anchorage and in Kiehl v. State , we held that an arrestee's right of privacy is not unduly infringed merely because an officer remains nearby. Rather, the test is whether the police "engaged in additional intrusive measures, intrusions that convinced [the arrestee] that the [police] were intent on overhearing and reporting [the arrestee's] conversations with their attorney."
In Mangiapane, we concluded that the arrestee's right of privacy was not violated when the officer stood ten to fifteen feet away during the arrestee's conversation with the attorney. But in Swett's case, the officer's physical proximity to Swett - and the attendant psychological effect of this proximity - were quite different. Officer Williams stood right next to Swett, holding the telephone receiver to Swett's face, while Swett's hands remained manacled behind his ba
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