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Swett v. Municipality of Anchorage3/22/2000
ck.
My colleagues downplay the difference between the facts of Swett's case and the facts of Mangiapane. Indeed, they declare that Mangiapane is "dispositive" of Swett's case - i.e., they believe that the decision in Mangiapane controls Swett's case without any need to engage in interpretation or extrapolation. It is somewhat surprising that my colleagues would find the facts of Mangiapane to be completely analogous to the facts of Swett's case. As just explained, the officer in Mangiapane stood ten to fifteen feet away from the defendant, while Officer Williams stood right next to Swett, physically controlling Swett's access to the telephone receiver.
But, to my colleagues, the answer lies in Officer Williams's benevolent intent. Williams was only trying to help Swett, who was unable to conduct a telephone conversation with his hands shackled behind his back:
Williams maintained physical proximity, not only to maintain observation, but also to assist Swett with the phone. ... Williams did not engage in additional intrusive conduct [with the intent] to deter Swett from conferring with attorney or to intrude into the privacy of the attorney-client conversation. Williams made it clear to Swett that he was turning off his tape recorder, and he took no notes during the conversation. Slip opinion, page 5.
This reasoning relies on two assumptions. The first assumption is that intrusive police actions can be justified if the officer acted with good intent. This assumption must be rejected because it is at odds with our prior cases. The second assumption is that a specific peaceable arrestee can be denied the right to a private conversation with their attorney based on generalized concerns about how some hypothetical arrestee might endanger officer safety. This assumption should be rejected because it unjustifiably converts police procedure into legal doctrine.
My colleagues contend that the lawfulness of Officer Williams's conduct turns on his subjective benevolent intent. It does not. I assume that Officer Williams acted with the best possible intent, but the test announced in our prior cases is an objective one: Did the police engage in intrusive measures, aside from maintaining physical proximity, that would convince a reasonable person in the arrestee's position that the police were intent on overhearing and reporting the attorney-client conversation?
Here, Williams saw that Swett was finding it impossible to cradle the telephone receiver between his chin and his shoulder blade, yet he refused to unshackle Swett's hands or even allow Swett to move his hands to the front of his body. Instead, the officer placed himself directly next to Swett and held the receiver to Swett's face. In the absence of some apparent reason for these extraordinary precautions, a person in Swett's position might well conclude that one of the officer's aims was to overhear the attorney-client conversation.
My colleagues answer this objection by relying on Officer Williams's testimony concerning his police training. Williams testified that, to ensure officer safety, police officers are trained to keep all arrestees handcuffed behind their backs. The trial judge accepted the officer's testimony without question, and my colleagues do too. In the concluding footnote of the majority opinion, they declare that Williams " not have to compromise [his own] safety to allow [Swett] a greater degree of privacy when making phone call".
I am more skeptical of this explanation. When Swett placed the phone call to his attorney, Williams and Swett were no longer in the field. They were at a police substation - a more controlled environment where Swett p
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