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Lost record could be key to beer heist case

Posted: December 4, 2011 - 1:09am

What could keep the Juneau man accused of stealing a Breeze In box truck, ramming it into the Alaska Brewing Company building and stealing two 5-gallon kegs of Alaskan White and Summer Ale, and one 24-case and five 12-packs of beer out of prison?

Perhaps, the simple act of not pressing a button.

Turns out there is no electronic recording of the search warrant hearing that took place in Juneau Superior Court, throwing a wrench in the case since a record of an application for a search warrant in Alaska is required by state law.

During oral arguments in court before Judge Louis Menendez on Thursday, it was said that back in April, Juneau Police Department Detective Krag Campbell had appeared before the now-retired Judge Patricia Collins to apply for a warrant to search the residence of Michael Rae, 54, the alleged beer heist operative who now faces serious felony charges of vehicle theft, burglary and criminal mischief.

Collins granted the search warrant on April 29 based on Campbell’s in-person oral testimony, finding enough probable cause to believe the stolen items would be found in the trailer on Glacier Highway where Rae was staying as a guest and where an eyewitness saw him rolling kegs from the truck into the trailer.

When Rae requested a copy of that record when he was serving as his own lawyer, he discovered it was devoid of any reviewable testimony. A further inquiry in late October led to the confirmation by the clerk of courts that there was no electronic recording of that proceeding.

District Attorney Dave Brower, who as the state prosecutor bears the burden of proving the record exists, told Menendez his office looked into what happened, and found that the court’s “black box” hadn’t been turned on.

“My understanding is that right now this court is recording everything that is going on. If the recording is shut off, it still records” he said. “... But there has to be what is referred to as a ‘black box.’ and our office went down to talk to somebody who also said the black box wasn’t turned on. So when the court looked into their records for the search warrant, they could see that there was no recording of backup, but that’s why there’s not a record.”

Brower stressed it was surely an accident, and that it was not an attempt to cover up police misconduct.

“The officer came to the court in good faith, and I’m sure the judge in good faith thought she was recording,” he said.

The mistake still gave Rae’s lawyer Kevin Higgins an opportunity to allege his client’s due process rights were violated under Alaska Constitution, and as implemented through state statute and criminal rules, since the actual record of the search warrant application cannot be “meaningfully reviewed.” The warrant, and all evidence obtained by it, must be suppressed, he argued.

“We’re saying the suppression is the appropriate remedy,” he told the judge during the hour-long argument Thursday. “It’s an extreme remedy, and it’s a remedy for violations of Article 1, Section 7, the due process right to have these in-house sessions recorded.”

He cites, among other case law, Nelson v. State, in which the Alaska Supreme Court held, “If no record exists, then the search warrant must be suppressed.”

If the warrant were suppressed, the evidence of the stolen items would be erased from the record of the grand jury proceedings. That would mean the only evidence that links Rae to the crime is the testimony of the single eyewitness, whom Higgins describes as a “nakedly biased observer.”

Menendez pointed out it is known that an electronic record does not exist, but at this point in time, it is unknown if a record exists. He agreed with the state that a hearing should be held to determine if there is a another record of the proceeding, and if not, if one can be reliably reconstructed by calling in Collins and Campbell to testify about what they remember was said in that April meeting.

In the end, Menendez granted Brower’s request for an evidentiary hearing to be able to attempt to reconstruct an accurate record.

“Here we have the inadvertent failure to press a button and record a search warrant proceeding that can be reconstructed, perhaps, by subsequent hearings,” Menendez said.

The judge said he is aware the meeting took place about six months ago — and that time lapse can be problematic — but that Higgins will have an opportunity to cross-examine the witnesses to determine if their memory is faulty. That hearing will be held Dec. 12.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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