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Swett v. Municipality of Anchorage3/22/2000
osed less of a danger and where, presumably, Williams could quickly summon help if Swett became unruly or violent. More importantly, there is no evidence that Swett was unruly or that he threatened violence to the officer. That is, there was no case-specific justification for the officer's refusal to let Swett handle the telephone himself. The only offered justification was Williams's assertion that he keeps all suspects, even the most peaceable and submissive, handcuffed behind their backs.
It is perhaps "safer" to bind all arrestees hand and foot. Indeed, one could argue that it is safer to gag all arrestees (for fear that they might try to bite an officer). But when a peaceable arrestee like Swett is brought to a place of detention or to an established police facility, we should no longer rely on generalized speculation about what some other arrestees might do. Instead, the law should focus on the specific circumstances of this particular arrestee's case. In Swett's case, the question is whether Swett gave any indication that it would be unsafe to allow him to handle the telephone himself.
The government failed to present any evidence that Swett was unruly or violent, that he was acting unpredictably, or that his words or conduct gave Officer Williams any other articulable reason to believe that it would be dangerous to let Swett handle the telephone. I therefore conclude that Williams violated Swett's right to consult his attorney in relative privacy.
I do not minimize the danger that police officers face on a daily basis, especially from people who are angry and intoxicated. And I reiterate what this court said in Kameroff v. State: "Police officers certainly need not jeopardize their own safety (or the safety of others) to allow a prisoner to make a phone call." But we must not allow generalized claims of officer safety to stand as a ready answer whenever an arrestee's rights are restricted.
In this case, there is no case-specific justification for Officer Williams's refusal to allow Swett to handle the telephone himself. Because there was no apparent reason for the officer's decision, I conclude that the officer's actions - standing right next to Swett and controlling the telephone receiver during Swett's entire conversation with his attorney - were sufficient to convince a reasonable person in Swett's position that the officer was "intent on overhearing and reporting" Swett's conversation. Swett's motion to suppress should have been granted.
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