NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL HARRISON, )
) Court of Appeals No. A-4338
Appellant, ) Trial Court No. 3PA-S91-0135CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1318 - October 15, 1993]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Palmer, James A. Hanson
and Beverly W. Cutler, Judges.
Appearances: Randall Cavanaugh, Kirk,
Robinson & Cavanaugh, Anchorage, for
Appellant. James L. Hanley, Assistant
Attorney General, Office of Special Prosecu-
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Michael Harrison entered a plea of no contest to one
count of misconduct involving a controlled substance in the
fourth degree (possession of cocaine), reserving the right to
appeal Superior Court Judge Beverly J. Cutler's denial of his
motion to suppress evidence that resulted from a warrantless
entry of Harrison's home by the Alaska State Troopers. Prior to
sentencing, Harrison moved to withdraw his no contest plea.
Following an evidentiary hearing, Superior Court Judge James A.
Hanson denied the motion and subsequently entered judgment
against Harrison. Harrison appeals, challenging Judge Cutler's
denial of the suppression motion and Judge Hanson's denial of the
motion to withdraw. We affirm in part and remand in part for
further findings.
DENIAL OF SUPPRESSION MOTION
On December 7, 1990, Alaska State Trooper Rae Arno went
to Harrison's cabin in Sutton to serve a misdemeanor arrest
warrant. As Arno pulled into the driveway, she saw somebody
through the cabin's picture window at the kitchen table
approximately ten feet from the window. Although Arno could not
identify the person, she believed that he was Harrison. She
recalled her thoughts:
I had no idea what was going on. The
person could have been asleep or passed out
or dead. I had no idea. They were just face
down on the kitchen table with their -- with
his head on his arms.
Arno left her patrol car, walked to the front door, and
"[p]ounded pretty hard" on the door to try to awaken Harrison.
Although the front door was only a short distance from Harrison,
he did not respond. Arno then walked a short distance across the
front yard to the picture window and "just pounded on the window
and absolutely nothing happened." The trooper became concerned
about Harrison's welfare and believed he might not be just
asleep. Arno went back to the front door and pounded with her
flashlight, but there was no response. She returned to pound on
the window a second time; still Harrison did not respond. "He
didn't so much as wiggle. Didn't even stir."
Arno could not see whether Harrison was breathing. She
decided to enter the house to make sure that Harrison was
alright:
I had -- I was wondering what was the
matter with him. I didn't know -- have any
idea what could possibly be the matter with
him, and I was -- I was concerned that he --
that he may have -- he may have been injured
if there was a fight at the house. He could
have a medical problem. He could be dying.
He could be dead. It could be a whole host
of things that could have been a problem with
him not responding.
Arno opened the front door and yelled; hearing no
response, she entered cautiously and walked slowly toward
Harrison, calling out to him the entire time. Still, the trooper
saw no reaction.
When Arno reached Harrison, she pushed on his shoulder
and called out to him; Harrison did not respond. Arno saw what
appeared to be drugs all around Harrison on the kitchen table: a
mirror with white powder residue on it; a "tooter" used to snort
cocaine; an ashtray with what appeared to be a marijuana
cigarette butt in it; a small plastic baggie with a very small
amount of a green leafy substance in it; what she believed to be
cocaine residue "at the table all around his head"; and empty
beer cans.
Although still very concerned about a medical problem,
perhaps a drug overdose, Arno could see that there was "no severe
trauma and he was breathing," so she "knew it wasn't an exigent
medical circumstance." While she "didn't rule out medical
emergency, [she thought that] it wasn't going to be anything that
he was going to die from real soon." Arno left the cabin and
summoned another trooper. Arno and the other trooper reentered
the cabin and placed Harrison in custody. Based on Arno's
observa- tions, the troopers subsequently obtained and executed a
search warrant for Harrison's cabin. The warrant yielded the
cocaine that Harrison was charged with possessing.
In denying Harrison's motion to suppress, Judge Cutler
ruled that Arno's initial warrantless entry of the cabin was
justified under the emergency aid doctrine. Harrison challenges
this ruling on appeal, arguing that Arno lacked sufficient
certainty that an emergency existed, since the trooper believed
only that Harrison "may have been injured" and that "he could
have a medical problem."
A warrantless entry by police into a person's home is
per se unreasonable and violative of the state and federal
constitutions unless it falls within one of the limited
exceptions to the warrant requirement. Payton v. New York, 445
U.S. 573, 586, 589-90 (1980); Johnson v. State, 662 P.2d 981, 984
(Alaska App. 1983).
The emergency aid doctrine is a well recognized
exception to the warrant requirement. Mincey v. Arizona, 437
U.S. 385, 392 (1978); Schraff v. State, 544 P.2d 834, 841 (Alaska
1975); Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App. 1982).
"Under the doctrine, the warrantless entry of a dwelling is
allowed when an officer has reasonable grounds to believe that
there is an immediate need to take action to prevent death or to
protect persons or property from serious injury." Williams v.
State, 823 P.2d 1, 3 (Alaska App. 1991) (citing Gallmeyer, 640
P.2d at 841-43).
Three conditions must be met for the emergency aid
doctrine to apply:
(1) The police must have reasonable
grounds to believe that there is an emergency
at hand and an immediate need for their
assistance for the protection of life or
property.
(2) The search must not be primarily
motivated by intent to arrest and seize
evidence.
(3) There must be some reasonable basis,
approximating probable cause, to associate
the emergency with the area or place to be
searched.
Gallmeyer, 640 P.2d at 842.
"[T]he existence of an emergency must be determined by
an objective standard -- whether the evidence would have led a
prudent and reasonable officer to perceive an immediate need to
take action in order to prevent death or to protect against
serious injury to persons or property." Id. As in all
situations involving exceptions to the warrant requirement, the
standard is not one of certainty but of probable cause: "[T]he
criterion is the reasonableness of the belief of the police as to
the existence of an emergency, not the existence of an emergency
in fact." Id. at 844 (quoting Patrick v. Delaware, 227 A.2d 486,
489 (Del. 1967)).
As we have previously noted, "courts and commentators
alike have agreed that officers must be allowed a broad scope of
judgment in the precise manner of dealing with emergency
situations." Gallmeyer, 640 P.2d at 845 (citations omitted).
Here, because Arno acted under circumstances requiring "a prompt
assessment of . . . ambiguous information concerning potentially
serious consequences," 2 Wayne R. LaFave, Search & Seizure
6.6(a) at 698 (1987), her actions "should not be reviewed with
severe judicial scrutiny in light of a hindsight analysis of the
evidence." State v. Jones, 608 P.2d 1220, 1222 (Or. App. 1980).
Having reviewed the evidence presented at the
evidentiary hearing on Harrison's motion to suppress, we are
convinced that Judge Cutler could properly find that Arno's entry
of the cabin was not pretextual and was based on probable cause.
Arno had ample reason to believe that an emergency existed and
that there appeared to be an immediate threat to Harrison's
welfare. Judge Cutler did not err in denying Harrison's motion
to suppress.1
DENIAL OF MOTION TO WITHDRAW PLEA
Prior to sentencing, Harrison secured a new attorney
and moved to withdraw his plea of no contest, claiming that he
had entered it without adequately understanding his possible
defenses. Harrison claimed that he would not have entered his no
contest plea had he known that the concept of constructive
possession required proof that he actually exercised dominion and
control over the cocaine. Harrison testified that he told his
first attorney that the drugs seized by the troopers belonged to
someone who had attended a party there the day of Arno's visit.
Harrison testified that his attorney did not discuss the concept
of possession, saying only that "it [the cocaine] was in my house
so it's my -- my problem I guess."
Harrison also expressed dissatisfaction with his first
attorney's handling of the case in other respects, claiming that
his attorney did not properly follow up on Harrison's claim that
the drugs belonged to someone else. Harrison further claimed
that he had not understood Judge Cutler's questions during the
change of plea hearing.
At the evidentiary hearing on Harrison's motion to
withdraw his plea, Harrison's first attorney testified that he
had discussed the concept of possession with Harrison, albeit
only during a rather brief conversation that occurred after the
motion to suppress was denied. Harrison's attorney stated that,
during the discussion, he explained the issue of possession to
Harrison in the context of the case and advised Harrison that a
trial would be "an extremely uphill battle," because Harrison's
fingerprints had been found on a number of articles of drug
paraphernalia:
I just told Mr. Harrison -- I go, look,
your fingerprints are all over this
paraphernalia, I -- I think they -- they have
a real strong case, and I think you're simply
going to lose. And -- and that was it. You
know, it was your place, you know, cocaine
was there, it was on the table, your
fingerprints are on the stuff, I think you're
going to lose. And, you know, and if -- if
indeed there were other people there that
were using cocaine, and it's your place and
you allowed it to happen, you allowed the
stuff to be there, I felt that he would be
convicted under the dominion and control
angle. And I -- and I conveyed that to him.
If I'm wrong on the law there, so be it. But
that's --that's how I conveyed it.
Harrison's attorney was "90 percent sure" that he explained
actual versus constructive possession to Harrison. According to
the attorney, he advised against a trial; Harrison, while not
"thrilled about foregoing a trial," agreed.
In opposing Harrison's withdrawal motion, the state
argued that in order to withdraw his plea, Harrison was required
to establish that his former counsel's representation had been
ineffective. The state maintained that "[o]nly if there's
ineffective assistance of counsel is there a fair and just reason
for withdrawal of a plea."
The hearing on Harrison's motion to withdraw his plea
was conducted before Judge Hanson, who took the motion under
advisement and later issued a summary order denying it. Harrison
challenges Judge Hanson's ruling.
Plea withdrawal is governed by Alaska Criminal Rule
11(h).2 Under the express terms of Rule 11(h)(2), because
Harrison moved to withdraw his plea prior to sentencing, he was
not required to establish manifest injustice; rather the superior
court was authorized to grant the motion "for any fair and just
reason." Id. When, as in this case, the state makes no showing
of potential prejudice, pretrial motions for plea withdrawal
should be liberally granted. Ningealook v. State, 691 P.2d 1053,
1055 (Alaska App. 1984); Travelstead v. State, 689 P.2d 494, 497
(Alaska App. 1984); Love v. State, 630 P.2d 21, 24 (Alaska App.
1981).
Under Criminal Rule 11(h)(1)(ii)(aa), proof by Harrison
that his counsel had actually rendered ineffective assistance
would have amounted to proof of manifest injustice entitling
Harrison to withdraw his plea as a matter of right. But even in
the absence of a showing of ineffective assistance of counsel,
the superior court had broad discretion to find a "fair and just
reason" to allow withdrawal of Harrison's plea if it accepted
Harrison's basic assertion that, in initially deciding to plead
no contest, he was confused -- for whatever reason -- as to the
legal definition of possession and the scope of his potential
defenses. Conversely, if the court rejected Harrison's testimony
in its entirety, concluding that Harrison had simply changed his
mind or was attempting to manipulate the system, it would have
been justified in finding that Harrison had failed to show a fair
and just reason to withdraw his plea. Wahl v. State, 691 P.2d
1048, 1053 (Alaska App. 1984).
In the absence of express findings, we would ordinarily
presume that, in denying Harrison's motion to withdraw, the
superior court simply resolved issues of credibility against him
and reached precisely this latter conclusion. In the procedural
setting of this case, however, we are convinced that reliance on
the usual presumption would be inappropriate.
Here, the state mistakenly argued that withdrawal would
be warranted only if Harrison actually proved ineffective
assistance of counsel. By making this argument, the state
effectively urged Judge Hanson to base his ruling on the
"manifest injustice" standard. Because the state argued an
inappropriate legal standard and the superior court made no
express findings, it is impossible for us to determine what
standard Judge Hanson actually applied. Under these
circumstances, the usual presumption becomes unreliable, for "if
the trial court's decision . . . was the result of . . . an
incorrect application of the law, the inevitable effect of
incorrectly presuming that the basic facts were decided in favor
of the State would be to insulate the court's error from
detection on appeal." Johnson v. State, 631 P.2d 508, 511
(Alaska App. 1981).
We therefore find it necessary to remand this case to
the superior court for further consideration of Harrison's motion
to withdraw his plea. If the court's original order denying the
motion to withdraw was based on the conclusion that Harrison's
testimony was not credible and that Harrison had failed to
establish any fair and just reason for withdrawal, the court
should enter express findings to that effect. On the other hand,
if the court based its ruling solely on the conclusion that
Harrison failed to establish ineffective assistance of counsel,
the court should reconsider its original ruling, applying the
"any fair and just reason" legal standard. We retain
jurisdiction over this appeal pending completion of proceedings
on remand.
The order denying Harrison's motion to suppress is
AFFIRMED. This case is REMANDED for further consideration of
Harrison's motion to withdraw his plea.
_______________________________
1. Harrison argues on appeal that, even if Arno's initial
warrantless intrusion was justified under the emergency aid
doctrine, her second warrantless entry of the cabin -- during
which Arno and another Trooper placed Harrison in custody -- was
unlawful. However, Harrison has failed to allege or establish
any causal connection between the second entry and issuance of
the search warrant that resulted in the seizure of the cocaine
Harrison was charged with possessing. Nor has Harrison specified
any evidence that was obtained in the course of the second entry
rather than the first. Because it appears that the search
warrant was based exclusively on information Arno discovered
during the initial entry, the warrant would not be a fruit of the
poisonous tree, even if the second entry were unjustified. Under
the circumstances, we need not consider the legality of the
second warrantless entry.
2. Alaska Criminal Rule 11(h) provides, in pertinent part:
(h) Plea Withdrawal.
(1) The court shall allow the defendant to withdraw
his plea of guilty or nolo contendere whenever the defendant,
upon a timely motion for withdrawal, proves that withdrawal is
necessary to correct manifest injustice.
....
(ii) Withdrawal is necessary to correct a manifest
injustice whenever it is demonstrated that:
(aa) The defendant was denied the effective assistance
of counsel guaranteed by constitution, statute or rule, or
....
(cc) The plea was involuntary, or was entered without
knowledge of the charge or that the sentence actually imposed
could be imposed, or
....
(2) Once the plea has been accepted by the court and
absent a showing that withdrawal is necessary to correct a
manifest injustice, a defendant may not withdraw a plea of guilty
or nolo contendere as a matter of right. Before sentence, the
court in its discretion may allow the defendant to withdraw a
plea for any fair and just reason unless the prosecution has been
substantially prejudiced by reliance upon the defendant's plea.
