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Nielsen v. State6/12/2002
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
No. 4581
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Jeffrey P. Nielsen of four counts of misconduct involving a controlled substance in the third degree for selling cocaine and one count of misconduct involving a controlled substance in the fourth degree for possessing cocaine. Nielsen appeals, arguing that Superior Court Judge Larry C. Zervos erred in failing to suppress evidence obtained pursuant to a search warrant. He also argues that Judge Zervos erred in rejecting his claim that the police intentionally or recklessly presented inaccurate or incomplete information to the magistrate who issued the warrant. Lastly, Nielsen claims Judge Zervos erred in giving a supplemental jury instruction during deliberations. We affirm.
1. Did the police present the magistrate sufficient information to find probable cause to search Nielsen's residence?
On May 24, 1999, Sitka Police Detective Teague Widmier appeared before Magistrate Bruce Horton and applied for a search warrant. Detective Widmier testified that he was supervising an investigation of Jeffrey Nielsen, a local resident suspected of selling cocaine. A critical aspect of Detective Widmier's testimony was the hearsay testimony of a paid police informant, N-720. Detective Widmier testified that N-720 had purchased cocaine from Nielsen on several occasions at Nielsen's residence. In particular, Detective Widmier described a purchase N-720 made on May 20, 1999, from Nielsen at Nielsen's residence. According to Detective Widmier, the purchase was "verified by video." N-720 reported that Nielsen had a large bag full of cocaine in gram amounts and that other people were purchasing cocaine openly in the house while N-720 was present.
Detective Widmier testified that the foot traffic at Nielsen's residence was consistent with an on-going drug business. Detective Widmier testified that several people entered Nielsen's residence and then left after about two minutes. In his experience, this is common at residences where people are involved in drug sales.
Detective Widmier said that he had supervised a total of eight purchases of cocaine from Nielsen by two separate informants. He stated, generally, that the purchases had been monitored and controlled by police (i.e., the police searched the informants prior to the purchase; the police gave the informants money to make the purchase; and the police searched the informants after they returned from purchasing drugs). Three of the purchases had been tape-recorded pursuant to Glass warrants. Moreover, Detective Widmier stated that N-720 had proven reliable as an informant while working previously in Kenai and Ketchikan, where his efforts resulted in both arrests and convictions.
Magistrate Horton initially concluded that, although he found probable cause in other respects, the information supporting probable cause was potentially stale because several days had passed since an informant had made a drug purchase. After a short recess, Detective Widmier testified that N-720 had just purchased cocaine from Nielsen. Based on this current information, the magistrate issued the warrant.
In establishing probable cause, Alaska courts apply the two-prong Aguilar-Spinelli test initially articulated by the United States Supreme Court to determine t
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