STORY v. STATE, A-10636 (Alaska App. 8-24-2011)

KRISTINE A. STORY, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10636.Court of Appeals of Alaska.
August 24, 2011.

Appeal from the District Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge, Trial Court No. 4FA-08-1265 CR.

Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Corinne Vorenkamp, Assistant District Attorney, Fairbanks, and John J. Burns, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Kristine A. Story appeals from her conviction for driving while under the influence.[fn1] She claims that the district court should have suppressed the evidence against her because the police unlawfully entered her home to investigate the DUI, and becausePage 2
correctional officers did not honor her request for an independent chemical test when she was booked into the Fairbanks Correctional Center. Story also claims that the district court should have taken judicial notice that the Federal Food and Drug Administration had posted information on its website that Ambien, a prescription drug she was taking, can cause “sleep driving.” For the reasons set out here, we affirm Story’s conviction.

Background

On April 24, 2008, the Fairbanks police department received a number of calls from concerned citizens reporting a suspected drunk driver. One motorist who called 911 followed the vehicle while speaking to the police dispatcher.

The vehicle was driven to a house in Fairbanks, where the driver parked in the garage. Fairbanks Police Officer Gregory Foster responded to the police dispatch and soon arrived at the house. Although he was not the officer assigned to the case, he made contact with the driver, Story, who was by then inside the house.

Foster knocked on the door, and when Story answered, he asked if he could enter the residence to talk to her. Story allowed him to do so. When Foster offered to stand by the door, Story requested that he follow her through the house and into the kitchen. She explained that there were children asleep in the house.

Story told Foster that her identification was in her vehicle, which was in the garage. The garage was accessible through a door in the kitchen. When Story opened the door, Foster, from his vantage in the kitchen, could see that the vehicle was parked askew in the garage. Because Story appeared to be intoxicated, Foster did not want her to get in the vehicle. He asked her not to go into the garage.

At about this time, the officer assigned to the case, Fairbanks Police Officer Burlyn Rigdon, arrived at Story’s residence. The door was open, and he knocked andPage 3
announced himself. He heard Foster respond that they (he and Story) were in the house. Rigdon then entered and joined them in the kitchen area. Story made no objection to Rigdon’s entry into the residence, or to his continued presence.

Rigdon saw that Story appeared heavily intoxicated and he asked her to attempt some field sobriety tests. Story did “very poorly” on the tests that she attempted.

While Rigdon spoke with Story, Foster searched the house to see if there were in fact children present and if the police would need to arrange for child care if they arrested Story. He found two young children.

Story was arrested for DUI and transported to the Fairbanks Police Department for a DataMaster test. According to the test, her blood alcohol level was .223 percent. Story was charged with DUI and with two counts of endangering minor children. (Story was acquitted of the endangering charges.)

Before trial, Story moved to suppress the evidence, asserting that the police had unlawfully entered her home without a warrant, had failed to inform her of her Miranda rights before interrogating her, and had violated her right to an independent chemical test. A hearing was held to resolve the motion. Prior to this hearing, Story requested that the court take judicial notice — based on Federal Food and Drug Administration warnings published on the FDA website — that Ambien, a drug that Story had been prescribed to help her sleep, could cause “sleep driving.”

At the hearing, Story testified that she had no recollection of that evening until she was transported to the jail. She did recall that she had been drinking earlier in the evening and that she had taken Ambien just before she went to sleep. But she could not remember anything after taking the Ambien until she “awoke” in the patrol car driving up to the correctional center. She said she asked personnel at the jail for an independent chemical test.Page 4

A nurse practitioner, Mary Gardner, testified on Story’s behalf. Gardner said she had recently prescribed Ambien to Story, and had done so in the past. She said Story had never reported any problems while taking Ambien. Gardner testified that in April 2008 a notice “came around for A mbien . . . about complex sleep-related behaviors . . . without a lot of detail.” But she said that there had been no studies showing that Ambien caused sleep driving. All the evidence suggesting that Ambien caused sleep driving were anecdotal. She mentioned that there had been one study by the manufacturer showing that sleep walking had occurred in one in one thousand cases when using Ambien. However, Gardner could not comment on the study because she had not read it.

Superior Court Judge Michael A. MacDonald, sitting in the district court, denied the motion to suppress the DataMaster results. The judge found that the police had entered Story’s home with her consent, that Story had validly waived her right to an independent test, and that there had been no Miranda violation because Story had not been subjected to custodial interrogation.[fn2] Judge MacDonald ruled that he would not take judicial notice that Ambien could cause sleep driving because the truth or accuracy of this purported fact was not readily ascertainable.

The police did not enter Story’s home unlawfully

On appeal, Story claims that she gave the police a limited consent to enter her home and that the police violated the scope of that consent. Specifically, she claims that her consent was limited to Officer Foster, and that she did not consent to the entry of any other officers.Page 5

It is well settled that unless some recognized exception exists, police need a warrant to enter a home.[fn3] One such exception exists when a resident voluntarily consents to the entry.[fn4] When the government relies on the consent exception, the prosecution has the burden of showing that the consent was voluntary.[fn5] Courts determine the voluntariness of consent by examining the totality of the circumstances.[fn6]

Here, Judge MacDonald ruled that the State had proven by clear and convincing evidence that Story gave Officer Foster express consent to enter the house and to follow her into the kitchen. The record supports this ruling. Foster asked if he could come inside to speak to Story and he offered to stand inside the entryway. Story not only invited Foster to enter the residence, she asked him to follow her through the house and into the kitchen. In addition to Foster’s testimony, Judge MacDonald had the audiotape of the contact. On that audiotape, Story can be heard inviting Foster in. Story’s invitation contained no restrictions or limitations, and there was no evidence to the contrary.

Nor did Story object when, a short time later, Officer Rigdon announced his presence at the front door and entered when Foster told him that they were in the kitchen. Relying on Phillips v.State, [fn7] Judge MacDonald found that Story’s consent to Foster’s entry extended to Rigdon’s entry because Rigdon’s entry was closely related to Foster’s, and because Story voiced no objection to Rigdon joining them in the kitchen.Page 6

Story argues that this ruling was error because each person arriving and seeking entry requires a separate consent. But Story has provided no authority for this assertion, and the case law does not support it. (Moreover, we are unpersuaded by Story’s claim that the supreme court’s decision in Phillips was overruled by the United States Supreme Court in Florida v. Jimeno which held that it was reasonable for an officer to consider a general consent to search a car to include containers in the car.[fn8])

In Phillips, the police were invited into a cabin by a resident.[fn9] The police left the cabin, and later reentered, followed by additional investigators.[fn10] Although express consent was only given for the initial entry, the residents did not object to the subsequent entries.[fn11] The Alaska Supreme Court held that although an “initial consent [to entry] cannot be inferred from lack of objection, [the] lack of objection to subsequent, closely related entries and searches, after valid consent to an initial entry, can imply that the initial consent continued.”[fn12]

The circumstances in Phillips were different than in Story’s case. In Phillips, the police were responding to a telephone call concerning a dead body found in the cabin. But the Alaska Supreme Court applied the same test in Phillips that courts use whenever the police claim that a person consented to an entry: the validity of the disputed consent is a question of fact to be determined from all the circumstances.[fn13] The Phillips court didPage 7
not limit its holding to cases in which citizens ask for police assistance in their homes, or to “death scene” investigations. In fact, the court noted that the United States Supreme Court had recently rejected the “death scene” exception to warrantless entries and searches.[fn14] And while the Phillips court noted that it might have been prudent for the police to obtain a specific consent for each new police intrusion, the court concluded that, under the circumstances, the failure to do so did not vitiate the implied continuing consent.[fn15]

Although the circumstances of Phillips were different than in Story’s case, we have applied Phillips in other contexts. For instance, in Baxter v. State, [fn16] a case that involved a traffic stop, we relied on Phillips to support our conclusion that a defendant who had consented to a search of her person had not withdrawn that consent when the police began to search her wallet. We explained: “Once voluntary consent has been given . . . the person’s `lack of objection to subsequent closely related entries and searches’ implies that the defendant’s consent was not withdrawn.'”[fn17]

When we review a trial court’s ruling on a motion to suppress the evidence, we view the record in the light most favorable to the trial court’s ruling.[fn18] JudgePage 8
MacDonald found that Story expressly consented to Foster’s entry, and that Rigdon’s entry occurred just minutes later. Rigdon’s entry was not only close in time to Foster’s, it was identical in scope. Story offered no evidence that Rigdon went anywhere that Story had not allowed Foster to go, or that he viewed anything Story had not allowed Foster to view. Story has thus not shown that Rigdon violated any protected privacy right that she had not already voluntarily surrendered to Foster.[fn19] Absent any evidence that Story objected to Rigdon’s entry, Judge MacDonald reasonably found that Story impliedly consented to the entry. We note that Foster testified that if Rigdon had not been present, he would have investigated Story for DUI based on what he had observed.

Story also argues that she did not consent to the entry of two other officers. (In her motion in district court, Story only objected to the entry of one other officer, Dustin Stonecipher.) Judge MacDonald’s ruling did not expressly include the entry of these other officers, and Story did not request that Judge MacDonald modify or reconsider his ruling to address this claim. Therefore, Story must show plain error.[fn20]Page 9

Story made no objection when these other officers entered her home, nor has she identified any prejudice from their entry. Officer Stonecipher testified that he had no direct contact with Story and that he did little more than stand by while Rigdon conducted his investigation. The other officer took photographs of Story’s vehicle and how it was parked in the garage, but most of these photographs — all but those showing what Foster could see of the garage from his vantage in the kitchen — were suppressed. We find no plain error.

Suppression of the DataMaster results was not warranted because Rigdon provided Story with a reasonable opportunity to obtain an independent test and Story validly waived her right to that test

Story next claims that Judge MacDonald erred in not suppressing the DataMaster result because, even though she initially waived her right to an independent chemical test when offered one by Rigdon, her later request for an independent test at the Fairbanks Correctional Center was not honored by corrections officers.

In Lauderdale v. State, [fn21] the Alaska Supreme Court held that, in order to introduce the results of a police-administered breath test in evidence in a DUI case, due process required that the state preserve a sample of the defendant’s breath for independent testing.[fn22] Later, in Gundersen v. Anchorage, [fn23] the court held that this due process right was satisfied, and that the defendant’s breath test results were admissible, if the policePage 10
provided the defendant with notice of the right to an independent chemical test and offered the defendant assistance in obtaining a test.[fn24]

Judge MacDonald found that Rigdon, the arresting officer in this case, fulfilled his obligations under Alaska law to inform Story that she had a right to obtain an independent test and to afford her a reasonable opportunity to obtain the test. The judge also found that Story had validly waived the right. Story does not challenge these findings. Instead, Story claims that even after a defendant has been transported to jail, and the defendant’s custody has been transferred to the Department of Corrections, jail personnel must honor a request for an independent test. As Judge MacDonald recognized, this is not the rule set out in Gundersen.

Story asks us to expand the Gundersen rule to include DUI arrestees who, like her, validly waive the right to an independent test, but then attempt to invoke that right after being transferred to the custody of a correctional facility. To support this claim, Story points to a footnote in this court’s decision inGundersen, where we noted that we did not mean to suggest by our decision “that Gundersen forfeited his right to a test by not demanding it at the police station.”[fn25] But this was not the final word in Gundersen’s case. The supreme court, in affirming our decision, emphasized that the requirements of due process were satisfied by a reasonable opportunity to obtain an independent test. The court added: “we do not believe that having to make a choicewhile in police custody so diminishes the value of the notice of the right to an independent test that it makes it an unreasonable opportunity to challenge the accuracy of the Intoximeter test result.”[fn26]Page 11
In light of this discussion, Story has not convinced us that the due process clause requires us to expand the right to an independent chemical test to encompass the circumstances of her case.

It is true that if the police or other state agents interfere with a defendant’s right to an independent test, then the result of the breath test must be suppressed.[fn27] But this was not the issue raised or litigated in Story’s case. During the hearing on Story’s motion to suppress, Judge MacDonald summarized Story’s position: Should the DataMaster “be suppressed because of the failure to honor [Story’s] request for an independent test at [the Fairbanks Correctional Center].” Story voiced no objection to this characterization. In her brief on appeal, Story addresses the issue of state interference with the test in two sentences. This is too cursory an argument to preserve the issue on appeal.[fn28] Moreover, Story did not preserve this claim of error in the trial court, because she did not ask for findings or a ruling on this question.

The record supports Judge MacDonald’s conclusions that Rigdon complied with his obligations under Gundersen and that Story validly waived her right to the independent test while in Rigdon’s custody. Story made no further reference to the test until after Rigdon transported her to jail and relinquished custody of Story to correctional officers. Under these circumstances, we conclude that Story has not shown any due process violation requiring suppression of the DataMaster results.Page 12
Judge MacDonald properly rejected Story’s request for judicialnotice

As already described, Story’s attorney asked Judge MacDonald to take judicial notice of a number of Food and Drug Administration warnings and notices posted on the agency’s website, which indicated that the agency had received reports that Ambien can sometimes cause people to “sleep drive” — i.e., cause them to operate a motor vehicle while remaining unaware of their surroundings, and unaware of the fact that they are operating a vehicle.

Judge MacDonald said that he was willing to take judicial notice that the Food and Drug Administration had posted or published these notices, but he declared that he would not take judicial notice of the truth of the underlying reports of sleep driving, nor would he take judicial notice that Ambien was the cause of this reported behavior. The judge’s ruling was correct.

Alaska Evidence Rule 201(b) specifies the rules that govern a judge’s authority to take judicial notice of facts — that is, a judge’s authority to recognize the truth of a fact, even though the proponent of this fact has not introduced any testimony or other evidence to support it.

Under Rule 201(b), a fact does not qualify for judicial notice unless it is “not subject to reasonable dispute” for one of two reasons: either the fact is generally known within the State of Alaska, or the fact is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

We assume, as did Judge MacDonald, that in the absence of any indication that hackers had broken into the Food and Drug Administration’s web site and had posted false information there, it would be proper to take judicial notice of the fact that the FDA hadpublished or disseminated reports or warnings of Ambien causing sleep driving —Page 13
because the fact of publication could be verified by resort to a source (the FDA’s official web site) whose accuracy was not reasonably subject to question.[fn29]

But Story did not ask Judge MacDonald to take judicial notice that such reports had been published. Rather, she asked Judge MacDonald to take judicial notice that the reports were true. As Judge MacDonald recognized, it would have been improper for him to take judicial notice of the truth of these reports.

First, the reports were based on anecdotal evidence, not scientific studies. In other words, the FDA was simply warning health care providers (and consumers) that it had received reports that Ambien sometimes caused this behavior. The FDA was not endorsing the truth of these reports.

But even if the FDA had endorsed the truth of these reports (for example, if the FDA had conducted or commissioned a study that showed that Ambien sometimes caused sleep driving), it still would have been improper for Judge MacDonald to take judicial notice that the results of the FDA’s study were true.

It is common knowledge that, even when reputable scientists conduct a study, other scientists can reasonably question the validity of the procedures used in the study, the validity of the conditions under which the study was carried out, the accuracy of the results observed in the study, and (even if the raw results are deemed accurate) the significance of those results.

In short, even if the FDA had conducted a study and, based on its interpretation of the results of this study, the FDA had declared that Ambien can cause sleep driving in some patients, the FDA’s findings, standing alone, would not be sufficientPage 14
to demonstrate, beyond “reasonable dispute,” the truth of its assertion about the side effects of Ambien. Likewise, the FDA’s findings, standing alone, would not be sufficient to show that the truth of its assertion about Ambien’s side effects was “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Accordingly, we uphold Judge MacDonald’s decision not to take judicial notice that Ambien can cause sleep driving.

Conclusion

Story’s conviction is AFFIRMED.

[fn1] AS 28.35.030(a).

[fn2] On appeal, Story does not challenge Judge MacDonald’sMiranda ruling.

[fn3] Zinn v. State,656 P.2d 1206, 1207-08 (Alaska App. 1982).

[fn4] Sleziak v. State, 454 P.2d 252, 256 (Alaska 1969).

[fn5] Frink v. State, 597 P.2d 154, 167 (Alaska 1979).

[fn6] Sleziak, 454 P.2d at 256; see also Frink,597 P.2d at 169 n. 30.

[fn7] 625 P.2d 816 (Alaska 1980).

[fn8]500 U.S. 248, 251-52, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297 (1991).

[fn9] 625 P.2d at 817.

[fn10] Id. at 816-17.

[fn11] Id. at 818.

[fn12] Id.

[fn13] Id. at 817 (citing Gray v. State,596 P.2d 1154, 1158 n. 18 (Alaska 1979)).

[fn14] Id. at 818 n. 7.

[fn15] Id. at 818.

[fn16] 77 P.3d 19 (Alaska App. 2003).

[fn17]Id. at 25 (quoting Phillips, 625 P.2d at 818). Seealso Ingram v. State,703 P.2d 415, 425 n. 7 (Alaska App. 1995) (relying onPhillips to hold that consent to search an apartment extended to the search of a wallet and jacket on the floor of the apartment);Staats v. State, 717 P.2d 413, 418-19 (Alaska App. 1986) (relying on Phillips to hold that consent to hotel security to enter a room to search for contraband extended to subsequent reentries by hotel security and police).

[fn18] Baxter, 77 P.3d at 23.

[fn19] See Sleziak, 454 P.2d at 256 (quoting United States v.Smith, 308 F.2d 657, 663 (2d Cir. 1962)) (“When an accused consents to a search or seizure conducted without a search warrant, the protection he would have enjoyed under the Fourth Amendment is lost to him.”). See also United States v. Rubio,727 F.2d 786, 797 (9th Cir. 1983) (“Once consent has been obtained from one with authority to give it, any expectation of privacy has been lost. We seriously doubt that the entry of additional officers would further diminish the consenter’s expectation of privacy[.]”);United States v. Bramble, 103 F.3d 1475, 1479 (9th Cir. 1996) (accord).

[fn20] See, e.g., Marino v. State,934 P.2d 1321, 1327 (Alaska App. 1997) (defendant cannot raise an issue on appeal if he chose to proceed at trial without seeking a ruling on the merits of his motion on that issue); Erickson v.State, 824 P.2d 725, 733 (Alaska App. 1991) (“[I]n order to properly preserve this issue for appeal, it was [the defendant’s] duty to insist that the trial court rule on his motion.”).

[fn21] 548 P.2d 376 (Alaska 1976).

[fn22] Id. at 381.

[fn23] 792 P.2d 673 (Alaska 1990).

[fn24] Id. at 677.

[fn25] Gundersen v. Anchorage,769 P.2d 436, 439 n. 2 (Alaska App. 1989).

[fn26] Gundersen, 792 P.2d at 677 (emphasis added).

[fn27] Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995).See also Ward v. State, 758 P.2d 87, 89-91 (Alaska 1988) (holding that exclusion of evidence was the proper remedy for state interference with the right to an independent test to deter illegal police conduct and to protect the defendant’s right to challenge the police-administered breath test).

[fn28] See Adamson v. Univ. of Alaska,819 P.2d 886, 889 n. 3 (Alaska 1991) (“[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.” (internal citations omitted)).

[fn29] See, e.g., Federal Trade Commission v. Pantron ICorp., 33 F.3 d 1088, 1092 (9th Cir. 1994), where the court took judicial notice that the Food and Drug Administration had issued arule that prohibited marketers of over-the-counter baldness treatments from labeling their products as “effective.”Page 1