 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Blank v. State5/19/2000
Gibson's statement that she had no reason to leave the scene was a material misstatement. Also, because Blank told Trooper Tyler that she thought she had driven around the pedestrians with enough room, Blank argues that Trooper Gibson's statement that she had no reason for failing to avoid McDowell was a material misstatement.
The parties agree that Blank's claims are governed by State v. Malkin. In Malkin, our supreme court adopted the rule established by the U.S. Supreme Court in Franks v. Delaware: that intentional or reckless misstatements or omissions must be excised from an application for a search warrant. Once the offending items are excised, the remainder of the application for a search warrant is scrutinized for probable cause and the warrant will be upheld if probable cause exists. However, if the misstatements or omissions were deliberately made and calculated to mislead the magistrate, the warrant is invalidated and the evidence suppressed. A misstatement or omission is material if essential to the probable cause determination.
Judge Cutler heard Trooper Gibson's testimony on this claim at an evidentiary hearing. She found that Gibson had not deliberately omitted information when he testified in support of the warrant. Gibson learned of Blank's statements from Tyler's reports. From our review of the record, Judge Cutler's findings are not clearly erroneous. Furthermore, the record establishes that there was probable cause to issue a search warrant and nothing Blank points to is a material omission that would defeat the issuance of a warrant.
Judge Cutler also found that Trooper Gibson had not been deliberate or reckless when Gibson said that Blank had no reason for leaving the scene of the accident or for failing to avoid hitting McDowell. Furthermore, Judge Cutler concluded that those statements were not material to the issuance of the search warrant. Judge Cutler found that none of Gibson's purported misstatements or omissions were reckless or intentional. The record supports Judge Cutler's findings. We conclude that the superior court did not err in failing to suppress the evidence from the first search warrant.
Blank advances similar arguments in support of her challenge to the second search warrant for the car. The car had been in the continuous custody of the troopers since the investigation began. Because of that continuous custody, it is questionable if a warrant was required to subject the car to additional testing. In State v. McDonald, we quoted LaFave, Search and Seizure, for the settled principle that:
n object lawfully seized as evidence may be kept in custody pending trial, and during that period "it is plainly within the realm of police investigation to subject [such an object] to scientific testing and examination" when such is done "for the purpose of determining its evidentiary value." That is, if the initial seizure was upon probable cause that the item would be of evidentiary value, it may be tested and examined for the purpose maximizing its value in this respect.
Even so, Judge Cutler considered Blank's motion and analyzed the evidence offered in support of the second warrant. Judge Cutler noted that the second warrant was "basically based on the first warrant" and denied Blank's motion for the same reasons that she denied the motion as to the first warrant. Even though the second warrant was probably not necessary, Judge Cutler's ruling on the second warrant can be affirmed for the same reasons that we affirmed her decision on the first warrant - the record supports her findings that none of the purported misstatements or omissions were reckless or intentional.
Finally, Blank argues that
Page 1 2 3 4 5 6 7 8 9 10 11 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|