Alexander v. Municipality of Anchorage , 2000 Alas. App. LEXIS 201 ( 2000 )

MANNHEIMER, Judge,

dissenting.

I dissent from my colleagues' decision.

The defendant in this case, Gregory Alexander, was arrested for driving while intoxicated and was taken to a police substation. The arresting officer, Chris Goldberg, offered Alexander the opportunity to call an attorney, but the officer would not remove Alexander's handcuffs or even allow Alexander to place his cuffed hands in front of him. Because Alexander could not use his hands to hold the telephone, it was necessary for Goldberg to stand directly next to Alexander and hold the phone to Alexander's face during the entire conversation. The question is whether this procedure was an undue infringement of Alexander's right to speak with an attorney.

In a series of cases¹, we have acknowledged that arrestees are entitled to a modicum of privacy when they consult an attorney following their arrest. At the same time, we have also recognized that this right of nriva-cy must be weighed against the officer's need to maintain control of the arrestee and the officer's need to observe the arrestee for the fifteen minutes mandated by 13 AAC 63.040(a)(1) before asking the arrestee to take a breath test. The trial judge in Alexander's case, District Court Judge Natalie K. Finn, expressed understandable frustration that judges are repeatedly required to apply these seemingly contradictory policies when they assess the legality of DWI processing procedures.

In Mangiapane v. Anchorage² and in Kiehl v. State³, we attempted to define a line of demarcation that would resolve the tension between an arrestee's right to consult counsel and a police officer's need to keep the arrestee under observation. We held that an arrestee's right of privacy is not unduly infringed merely because an officer remains nearby. Rather, the test is whether the police "engaged in additional intrusive measures, intrusions that convinced [the ar-restee}] that the [police] were intent on overhearing and reporting [the arrestee's] conversations with their attorney." ⁴

In Mangiapane, we concluded that the arrestee's right of privacy was not violated when the officer stood ten to fifteen feet away during the arrestee's conversation with the attorney.⁵ But in Alexander's case, the officer's physical proximity to Alexander- and the attendant psychological effect of this proximity-were quite different. - Officer Goldberg stood right next to Alexander (approximately eighteen inches away), holding the telephone receiver to Alexander's face while Alexander's hands remained manacled behind his back. Not only did the officer physically control Alexander's access to the telephone receiver, but it was obvious tu Alexander that the officer would overhear everything Alexander said to his attorney.

guilty of driving while intoxicated; Alexander in fact testified that, because of the officer's presence, he felt that he could not truthfully answer his attorney when the attorney asked him how much he had been drinking. Alexander lied, saying that he had consumed only one drink. On the basis of this false information, Alexander's attorney urged him to submit to the breath test and to request an independent blood test. These tests ultimately proved that Alexander was the breath test result was .12 percent blood aleo-hol, while the blood test result was .106 percent.

Officer Goldberg testified that, if an arres-tee can keep the telephone receiver cradled between jaw and shoulder, he will step away and afford the arrestee more privacy. But Alexander could not do this; the receiver kept slipping and, because Alexander's hands were manacled behind his back, he was unable to retrieve and re-position the receiver. For this reason, Goldberg stood directly next to Alexander and held the receiver to Alexander's face.

I assume that Goldberg was only trying to help Alexander and did not purposely arrange things so that he could overhear Alexander's words. Nevertheless, Goldberg's good faith is not a sufficient reason to uphold the abridgement of Alexander's privacy. 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, Goldberg saw that Alexander was finding it impossible to cradle the telephone receiver between his jaw and his shoulder, yet the officer refused to unshackle Alexander's hands or even allow Alexander to move his hands to the front of his body. Instead, Goldberg placed himself directly next to Alexander and held the receiver to Alexander's face. In the absence of some apparent reason for these extraordinary precautions, a person in Alexander's position might well conclude that one of the officer's aims was to overhear the attorney-client conversation. Indeed, Alexander testified that Goldberg's presence constrained him from speaking frankly with his attorney.

There is an alternative rationale for upholding - Officer - Goldberg's _ conduct. Goldberg testified that, to ensure officer safety, he and his fellow police officers are trained to keep all arrestees handcuffed behind their backs.

I do not minimize the danger that police officers face on a daily basis, especially from people who are angry and intoxicated. As this court stated 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." ⁶ But we must not allow generalized claims of officer safety to stand as a ready answer whenever an arrestee's rights are restricted. A specific peaceable arrestee should not be denied the right to a private conversation with their attorney based on generalized concerns about how some hypothetical arrestee might endanger officer safety.

When Alexander placed the phone call to his attorney, Goldberg and Alexander were no longer in the field. They were at a police substation-a more controlled environment where Alexander posed less of a danger and where, presumably, Goldberg could quickly summon help if Alexander became unruly or violent.

Goldberg did testify that Alexander was uncooperative, was unhappy about being arrested, and was especially unhappy about the officer's decision to impound his car. But Goldberg did not say that Alexander was unruly or violent, or that Alexander was acting so erratically that Goldberg felt compelled to keep him handcuffed behind his back.

In fact, the record reveals that Goldberg switched Alexander's cuffs to the front of his body when Alexander had to use the restroom, and that Goldberg removed Alexander's cuffs for the independent blood test. This evidence suggests that Goldberg did not believe he was endangering himself by allowing these short intervals of less intensive restraint. -It also suggests that there was no pressing reason to deny Alexander one additional short interval of reduced restraint, with his hands cuffed in front of his body, so that he could make the telephone call to his attorney.

Arrestees, especially intoxicated arrestees, can be unpredictable, and I can understand why Officer Goldberg, or the police department in general, might adopt a policy of keeping all DWI arrestees, even the most peaceable and submissive, handcuffed behind their backs. But when a peaceable arrestee 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 cireum-stances of this particular arrestee's case. In Alexander's case, the question is whether Alexander gave any indication that it would be unsafe to allow him to handle the telephone himself. The record indicates that the answer is no.

I say "indicates" because Judge Finn apparently upheld the handcuffing on generalized concerns for officer safety; she and the parties never specifically focused on the question of whether there were case-specific reasons to keep Alexander handcuffed behind his back during the telephone call. For this reason, I would remand Alexander's case to the district court. The gov _-nment should be allowed to present evidence of any case-specific reasons why it was prudent to keep Alexander handcuffed behind his back while he conferred with his attorney.

If the government proves that there were articulable reasons to believe that Alexander would pose an unacceptable danger if his cuffed hands were switched to the front of his body during the telephone call, then I would uphold the legality of the behind-the-back restraint and the admissibility of the resulting breath and blood tests. But if the government fails to present evidence that Alexander was unruly or violent, that he was acting unpredictably, or that his words or conduct gave Officer Goldberg any other ar-ticulable reason to believe that it would be dangerous to let Alexander handle the telephone, then I would rule that Goldberg violated Alexander's right to consult his attorney in relative privacy-and that the district court should have granted Alexander's motion to suppress the results of these chemical tests.

1 . See Mangiapane v. Anchorage, 974 P.2d 427 (Alaska App.1999); Kiehl v. State, 901 P.2d 445 (Alaska App.1995); Reekie v. Anchorage, 803 P.2d 412 (Alaska App.1990); Farrell v. Anchorage, 682 P.2d 1128 (Alaska App.1984).

2 . 974 P.2d at 429.

3 . 901 P.2d at 447.

4 . Mangiapane, 974 P.2d at 429 (quoting Kiehl, 901 P.2d at 447).

5 . See id.

6 . 926 P.2d 1174, 1178 (Alaska App.1996).