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.
Comments (15)
Add commentYou've got to be [filtered
You've got to be [filtered word] kidding me.
Back in the day if we made a mistake
I worked for the State of Alaska a division of Fish and Game, and if mistakes where made like that, (Ooops it was an honest mistake, Human error,) for example there was someone getting fired !! NOW it seems, like well just put a band aide over what you did and call it a day.. Whatever!! Does anyone have to answer to there Oopsie daisy anymore with consequence of actual being fired on the spot anymore. Someone should be spanked for this one, if the crimminal in this case goes free, someone is gonna have to pay for the damages this crimminal did, perhaps it should be the one who didnt push the button? Leason learned..
Smells
Can you say plea deal?
He is innocent
He is innocent until proven guilty something that I hope we all can remember. I think it is reasonable that Rae be able to make sure his constitutional rights were not violated. If the don't records exist then we must assume that it didn't happen especially when the record cannot be recreated. I doubt Collins can remember the address that she issued the search warrant for six months later which I'm sure will be one of the questions that she will be asked. She was and is being paid well now in retirement for her understanding and application of the law. I think he will beat the criminal charges but not the civil charges. I hope he gets some counseling for his problem with alcohol.
Just imagine if JPD could go from home to home searching for anything illegal or even appears to be illegal and seize it. JPD probably did well in this case but we might not ever know.
if they have record
They still have record that a search warrant was given then what is the big deal? Just because its not on a recorder somewhere doesn't mean squat, its still recorded in paper that they were given the search warrant. Ridiculous.
I've known of this guy for
I've known of this guy for years. Check out his court record and you will see that he is not a very upstanding citizen. It's too bad that a technicality may let this guy go, when the "evidence" clearly shows he is the perpetrator of this crime. Is this how we REALLY want our system to operate?
HE IS STILL HUNG
THEY HAVE PROOF, WAIT AND SEE.........DANO ALREADY BOOKED HIM....OVER..
not free
The neighbor's testimony of the idiot backing the Breeze -In truck to his house and unloading beer is enough. Even if they can't bust him on the possesion, they still have auto theft and vandalism.
This is the problem with our
This is the problem with our court system. Facts do not matter, allegations, technicalities, and hearsay rule the system.
Facts and doing the right thing are no longer importiant.
We have to follow the rules
We have to follow the rules of the system. Even if it seems wrong, we still have to do it. If we don't follow the rules the whole system breaks down. I'd rather let one dirtbag go free--since he'll get in trouble for something else soon enough--than to have our whole system slide into the sewer.
Common sense should play a
Common sense should play a factor. Also, if it was just an occasional person it would be one thing. There is an entire profession looking for minor errors to get dirt bags off so our liberal courts can tell them not to do it again.
I used to have faith in our judicial system. After watching or participating in 100's of hours and many cases I found it is all a game.
You can get a $10,000.00 fine, jail time, forfeit of property and probation for shooting a critter out of season. If you assault a person you get probation credit for time served and a small fine. That appears backwards to me.
BTW, I have a clean record and never been arrested. We have a very broken system that has strayed away from the orignal intent.
The system is effed. They
The system is effed. They book the innocent and follow the book with the guilty. Is it just me or is this wrong?
Go to this
I apologize for posting an outside link on this blog that pertains to this man. I was sent a "form letter" from Juneau Empire that I was violating user agreement because someone complained about it, or because I posted an outside link. But shouldn't public know? I did not use profanity, vulgar language, or even use words that would offend a first grader. I urge all readers to go to State of Alaska Court Website, Juneau Police Department website and Google to become informed. I do this for myself just so my family and I are "in the know" and safe because of my being informed about who's living next door to me and my loved ones. I will always use the internet to be informed of my surroundings, and do the old fashioned way of doing neighborhood watch, walking around and looking at everything. I am very adamant about keeping my "hood" safe and sound from vandals and thieves. You really should too. Think I'm being paranoid? Just wait until it happens to you.
Alleged thief defiant in
Alleged thief defiant in courtroom
Michael Rae claims illegal incarceration, asks for self-representation
Posted: June 16, 2011 - 9:18pm | Updated: June 17, 2011 - 5:50am
Klas Stolpe / Juneau Empire Michael Rae looks through his court filings in Juneau Superior Court on Wednesday. Rae has been accompanied by two court officers for many of his proceedings due to his obstinance concerning incarceration and representation.
Michael Rae propped his foot up against the jury box, leaned his reading glasses atop his head, grinned and shook his head as District Attorney Dave Brower objected to Rae’s desire to be his own counsel in Juneau Superior Court on Wednesday in an aborted omnibus hearing. Then Rae covered his mouth with his shackled hands in mock terror as Brower disclosed Rae’s prior court antics to visiting Judge Pro Tempore Larry Card. “Mr. Rae had a conviction reversed some years ago when a judge had him bound and gagged in front of the jury without proper findings that that was the least restrictive alternative,” Brower said. “At the one I was at, the judge brought up the case, Mr. Rae would not stop talking, I asked if the jail could mute his phone so he wouldn’t interrupt but he could still hear. I think if he were to represent himself, I think he would make a mockery of the court.”
Card allowed Rae to represent himself but said “If at some point he becomes disruptive, that’s time against the defendant, and he would be appointed counsel against his wishes.”
On April 29, Rae allegedly stole a vehicle, then crashed into the Alaska Brewing Company and stole beer.
According to court documents, an Alaskan Brewing Company employee arrived at work early that morning and noticed a Breeze In box truck backed into the parking lot. The employee went to the back of the building to open up the delivery doors and saw the same vehicle drive slowly past with its back door rolled up. He then went to the front of the building and observed damage to the gift shop, including shattered windows and damage to the frame of the brewery’s awning. Juneau Police Officers responded and found a black vehicle bumper with a license plate registered to Breeze In Corp. on the ground near the damage. A brewery employee reported at least two 5-gallon kegs were taken and a number of 12-bottle boxes of beer. Damage was estimated at roughly $15,000 and merchandise taken was estimated at $500.
A Breeze In manager said the truck had been parked behind the Lemon Creek Breeze In after the driver’s last delivery at 3 a.m. The vehicle’s keys were kept in the center console to allow access by the next shift.
Further investigation by police led to location of the vehicle at 5:50 a.m. at a 1700 Northwood Drive parking lot with the keys inside and the engine warm. There was extensive damage to the cab, the windshield was cracked, and the bumper missing.
A witness sleeping in a vehicle outside of a trailer at 6590 Glacier Highway saw Rae arrive in the truck, run up to the front door of the trailer, return to the truck and begin unloading the alcohol. After unloading, Rae drove the truck away. He returned later to the residence, exiting several times and walking up people’s driveways checking to see if anyone saw the incident.
A Walmart security video showed the movement of the truck and Rae. A warranted search of the residence revealed several empty bottles of Alaskan Amber beer and the two kegs. Another man contacted in the residence said he woke up to find Rae and the beer in the trailer and knew nothing about it. Rae was arrested on scene. He was also identified as the man who stole a laptop computer from Walmart on April 20 and was charged with that offense as well.
Rae is charged with first-degree vehicle theft, second-degree burglary and third-degree criminal mischief, all class ‘C’ felonies. He also faces a misdemeanor count of third-degree theft. He is currently lodged at Lemon Creek Correctional Center.
Rae has filed multiple interview review requests with the security sergeant at LCCC, alleging he is being restrained illegally at the behest of Attorney General John Burns through Brower and Assistant District Attorney Angie Kemp. He claimed Kemp initiated a criminal information which was never a validated complaint made upon oath or affirmation from his arrest.
Rae also wrote he was held captive against his will and in violation of U.S. original jurisdiction by Alaska Department of Corrections Commissioner Joe Schmidt and LCCC Superintendant Scott Wellard. He also engaged in a bizarre exchange with Judge Keith Levy on May 2, disputing the validity of the charging documents filed against him. This led to Levy’s ordering Rae to be removed from the courtroom. On May 19, when Levy tried to enter a plea for him in the computer theft case, Rae objected, saying “Judicial determination, you cannot represent me and sit on the bench.” Rae went on to say Levy was denying his right to petition the government to redress grievances under the First Amendment and Bill of Rights.
Rae shouted “tyranny” in Judge Philip Pallenberg’s courtroom during a May 13 arraignment.
Wednesday, Rae argued with Card, saying, “I’m not giving jurisdiction to this court to commence, but I am requesting to proceed sui juris in my own defense.”
Card told Rae not to speak Latin, that it was hard enough to read, let alone understand.
Rae stated he had the right to present his own issues under the First Amendment to which Card replied, “You have a qualified right, not an absolute right. You can appeal the decision I make.”
The omnibus hearing was then continued to June 23.
Rae stated he was presently on maximum hold, didn’t have access to a typewriter and asked for the judge to order the relieved public defender to give full discovery.
“You’ll need to file motions,” Card said. “Just like your lawyer would do. I’m not going to entertain oral motions.”
THIS guy
Thanks for sharing that, Grandma.
"He was also identified as the man who stole a laptop computer from Walmart on April 20"
I can't believe he spent the peaceful and amazing holiday of 4/20 stealing a computer. This is reason enough to make him do time.
He sounds like a yoyo. Making jokes out of everything. No way he's winning this case. Good luck in the slammer, bro. Hope you learn some maturity in there.