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
JOHN BENJAMIN WALLACE, JR., )
) Court of Appeals No. A-5964
Appellant, ) Trial Court No. 3AN-S93-7066CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1514 - February 28, 1997]
)
Appeal from the Superior Court, Third Judicial District,
Anchorage, Mark C. Rowland, Judge.
Appearances: Phillip Paul Weidner and Nicole D. Stucki, Weidner
& Associates, Inc., Anchorage, for Appellant. W.H. Hawley,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and Mannheimer, Judges.
COATS, Judge.
On June 16, 1993, Detective Ronald Robinson of the
Anchorage Police Department (APD) received an anonymous telephone
call informing him that there was a marijuana growing operation
located at 14201 Specking Road, "possibly in the upstairs and
basement areas." The caller told Robinson "you can smell the
marijuana outside of the building and you can hear fans running
inside the building." Robinson said the caller had a "female
voice" and spoke in a lucid manner. Robinson did not know the
basis of the caller's information.
Robinson then telephoned a Chugach Electric Association
(CEA) employee and requested information concerning the electric
usage at 14201 Specking Road. Robinson did not obtain a search
warrant or a subpoena for this information. Robinson was informed
that the dwelling at this address was a duplex and that John
Benjamin Wallace, Jr. was being billed for power consumption at
both apartments. Robinson was told that the average monthly
consumption was 3092 kilowatt-hours (kwh) for one apartment and
2557 kwh for the other. Robinson stated he knew from prior
investigations that the average CEA customer uses 700 kwh of power
per month.
On June 17, 1993, Robinson drove to 14201 Specking Road,
accompanied by APD Detective Patrick O'Brien. O'Brien stayed in
the car while Robinson walked up the driveway of the residence.
Robinson said that as he approached the residence he smelled the
"fresh pungent odor of growing marijuana." He also heard fans
running inside the residence. Robinson then passed through a gate,
went up to the porch and rang the door bell. A man came to the
door whom Robinson recognized from a driver's license photo as John
Benjamin Wallace, Jr. Robinson asked Wallace if a fictitious
person lived there and Wallace said he did not. Robinson asked if
the residence was a duplex and Wallace responded it was not.
Robinson stated in his affidavit for a search warrant that the
smell of marijuana was stronger at the open door than in the
driveway. When Robinson returned to the police car, O'Brien said
he could smell marijuana on Robinson's clothing.
On June 18, 1993, Robinson submitted an affidavit and
applied for a search warrant based on the information above. The
magistrate issued a search warrant for the residence located at
14201 Specking Road.
On the evening of June 18, 1993, Robinson, accompanied by
four other APD officers and two members of the Alaska National
Guard, went to the Specking residence to serve the warrant. No one
was home and the officers forced entry through the back door. A
marijuana growing operation was discovered in the basement. The
members of the National Guard assisted in the search of the
basement and in dismantling the growing operation. Robinson found
photographs of what appeared to be a different marijuana grow set
up in a similar manner to the Specking Road grow just discovered.
Paperwork was found upstairs, including a lease of a warehouse at
6100 Co Associates," a power bill for the location, and a hand
diagram of the warehouse indicating a "Lab 'A'" and a "Lab 'B.'"
Robinson and four other APD officers then went to the
warehouse at 6100 Cordova Street. While standing in the dirt road
leading to the parking lot of the warehouse, all five officers said
they could smell the "fresh pungent odor of growing marijuana" and
could hear what sounded like powerful fans inside the building.
Based upon this information, on June 19, 1993, Robinson obtained a
search warrant for the warehouse. Robinson, accompanied by four
other APD officers and nine members of the National Guard, went to
6100 Cordova Street to serve the second search warrant. The police
forced entry after there was no response to their knocking. The
police found John B. Wallace, Jr. and Don Beaujean harvesting
marijuana from a marijuana growing operation. Members of the
National Guard stood around the perimeter of the warehouse when the
police entered. The Guardsmen entered the warehouse after it was
secured, dismantled the growing operation, and transported the
marijuana and equipment to storage.
On September 15, 1993, an information was filed charging
Wallace with six counts of fourth-degree misconduct involving a
controlled substance. Wallace filed several pretrial motions,
including a motion to suppress the evidence seized at his residence
and at the warehouse. On January 6, 1995, Judge Mark C. Rowland
denied these motions.
On January 9, 1995, Wallace entered nolo contendere pleas
on two of the counts; the other four counts were dismissed.
Wallace preserved the issues he has raised in this appeal under
Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
On appeal, Wallace first contends that the Anchorage
Police Department's use of the National Guard soldiers to execute
the search warrants violated the Posse Comitatus Act and that the
appropriate remedy is exclusion of the evidence discovered in the
searches.
18 U.S.C. sec. 1385 (1988) (amended 1994), known as the
Posse Comitatus Act, states:
Whoever, except in cases and under
circumstances expressly authorized by the
Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as
a posse comitatus or otherwise to execute the
laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both.
The critical inquiry which must be answered is whether or not the
Alaska National Guard constitutes "any part of the Army or the Air
Force." 10 U.S.C. sec. 3062(c)(1) (1994) states:
The Army consists ofþ
the Regular Army, the Army National Guard of the United
States, the Army National Guard while in the service of
the United States, and the Army Reserve[.]
(Emphasis added.) Likewise, 10 U.S.C. sec. 8062(d)(1) (1994)
states:
The Air Force consists ofþ
the Regular Air Force, the Air National Guard of the
United States, the Air National Guard while in the
service of the United States, and the Air Force Reserve
[.]
(Emphasis added.) (EN1) As stated above, when the Guardsmen
partici-pated in the search of Wallace's home and the Cordova Sreet
warehouse, they were acting as members of the Alaska National Guard
and were not in the service of the United States (also known as
being "federalized"). Therefore, the Guardsmen were not "part of
the Army or the Air Force." Under the plain language of the
statute, the participation of the National Guard soldiers in
serving the search warrant did not violate the Posse Comitatus Act.
Both the Third Circuit and a federal district court in
Oregon have concluded that use of National Guard soldiers to
enforce state criminal drug laws does not violate the Posse
Comitatus Act. In United States v. Benish, 5 F.3d 20, 25-26 (3d
Cir. 1993), the Pennsylvania State Police used a squad from the
Pennsylvania Army National Guard to assist them in the surveillance
and investigation of a marijuana growing operation. The court
concluded that the Posse Comitatus Act was not violated because the
Guard unit was not in federal service. In United States v. Kyllo,
809 F.Supp. 787 (D.Or. 1992), overruled on other grounds, 37 F.3d
526 (9th Cir. 1994), a member of the Oregon National Guard operated
a thermal imaging device in investigating a drug operation. The
court ruled that the Posse Comitatus Act was not violated, noting
that: "[t]he Supreme Court has recognized the dual nature of a
National Guard and the fact that National Guardsmen only lose their
status as a member of a state National Guard when they are 'drafted
into federal service by the President.'" Id. at 793 (citing
Perpich v. Department of Defense, 496 U.S. 334, 344 (1990)). (EN2)
Both the plain language of the Posse Comitatus Act and
case law interpreting the Act support the conclusion that the
state's use of National Guard soldiers to execute the search
warrants did not violate the Posse Comitatus Act. We accordingly
conclude that Judge Rowland did not err in finding that the state
did not violate the Posse Comitatus Act in this case.
Wallace next contends that state statutes did not
authorize the use of National Guard soldiers to execute the search
warrants. However, the Alaska Constitution provides that "[t]he
governor is commander-in-chief of the armed forces of the State.
He may call out these forces to execute the laws, suppress or
prevent insurrection or lawless violence, or repel invasion."
Alaska Const., art. 3, sec. 19. Therefore, under the
constitutional language, the governor is authorized to use National
Guard soldiers to execute the laws. The statutes regulating the
National Guard are set out in Chapter 5 of Title 26 of the Alaska
Statutes. The parties have not cited any provision in that chapter
that would prohibit the use of National Guard soldiers in this
case.
Wallace argues that "[t]here is no federal law
authorizing the National Guard's activities in the instant case."
Wallace cites 10 U.S.C. sec. 375 (1994), which prohibits the
"direct participation by a member of the Army, Navy, Air Force, or
Marine Corps in a search, seizure, arrest, or other similar
activity unless participation in such activity by such member is
otherwise authorized by law." However, as we have previously
discussed, the members of the Alaska National Guard who
participated in the two searches were not members of the "Army,
Navy, Air Force, or Marine Corps" because they were under the
command of the Alaska National Guard and were not "in the service
of the United States." Furthermore, 32 U.S.C. sec. 109 (1994)
states that "[n]othing in this title limits the right of a State .
. . to use its National Guard . . . within its borders in time of
peace." Also, 32 U.S.C. sec. 112(d) (1994) states:
Nothing in this section shall be construed as
a limitation on the authority of any unit of
the National Guard of a State, when such unit
is not in Federal service, to perform law
enforcement functions authorized to be
performed by the National Guard by the laws of
the State concerned.
Because federal law does not prohibit the use of the Alaska
National Guard, and because the Guard was under the control of the
State of Alaska's chain of command, the only restraint on the use
of the Guard would be state law. As we have previously pointed out, state law
does not appear to limit the governor's power to use the National Guard "to
execute the laws."
Wallace next contends that the state did not show that the governor
actually
authorized the use of the National Guard soldiers to execute the search warrants in
this case.
He contends that Judge Rowland improperly limited his ability to argue this issue
by examining
documents in camera and not turning them over to the defense.
In Braham v. State, 571 P.2d 631, 643 (Alaska 1977), cert. denied, 436
U.S. 910
(1978), the Supreme Court of Alaska stated the following concerning the duty of
the prosecution
to disclose confidential material to the defense:
Non-disclosure was proper only if (1) the prosecution
showed that discovery of the evidence would be inconsistent with
protection of persons or enforcement of the laws and (2) the trial
judge concluded that the material was not relevant to the defense.
If the district attorney failed to show that disclosure would harm
enforcement or pro-tection efforts, the materials must be disclosed.
The question of relevance would then be decided in an adversary
context; both counsel would have the opportunity to make their
respective arguments.
Disclosure is also required if the judge's in camera
inspection showed that the material was relevant to the
defenseþwhether or not the prosecutor had demonstrated that
discovery would be inconsistent with enforcement or protection
efforts. In the latter circumstance, the state must decide between
continuing to prosecute, while incurring the problems posed by
disclosure, and terminating the prosecution in order to maintain the
material's secrecy.
(Footnotes omitted.)
In the instant case Wallace requested disclosure of the Alaska National
Guard
Counterdrug Plan. We have reviewed the materials which Judge Rowland
reviewed in camera.
We conclude that Judge Rowland did not err in refusing to require the prosecution
to disclose
to the defense the Alaska National Guard Counterdrug Plan. Judge Rowland could
properly find
that "discovery of the evidence would be inconsistent with protection of persons
or enforcement
of the laws" and "that the material was not relevant to the defense." The plan
itself provides
no insight into whether or not the governor of Alaska had authorized use of the
National Guard
for law enforcement purposes.
We believe that the record in this case sufficiently establishes that the
use of
National Guard soldiers to aid the police in executing the search warrant was
properly
authorized. A letter in the record from the statewide narcotics unit chief written
on behalf of
the attorney general, certified that the unit chief had reviewed the National Guard
Counterdrug
Plan for the fiscal year ending September 30, 1993, and concluded that "all
operations and
activities for the federal funding under the plan are consistent with and not
prohibited by state
law." We do not believe that the state was required to show that the governor
had specifically
authorized the use of the National Guard in each individual case. We rely on State
v. Wheelon,
903 P.2d 399 (Or. App. 1995). In that case the court stated:
Defendants also argue that the execution of the warrant was
unconstitutional, because the Guard participated in it without
direct, formal, written authorization from the Governor. The state
argues that the use of the Guard was properly authorized. The
trial court found that, although the Governor had not authorized
the use of the Guard in this particular case, she had ordered the
Guard to cooperate with the Yamhill County Interagency Narcotics
Team. The trial court further found that, in this case, the Guard
participated under the direct supervision of the state police.
Defendant does not challenge those findings. The question,
therefore, is whether the Governor's more general authorization
suffices.
Id. at 405. Relying on the Oregon statutes, the court concluded that there was
"no express
requirement for the issuance of a formal, written order for each action the Guard is
directed to
take." Id. Similarly, as we have previously pointed out, the Alaska Constitution
gives the
governor broad authority to use the National Guard "to execute the laws." Alaska
Const., art.
3, sec. 19. There is no requirement in the statutes regulating the National Guard
(AS 26.05)
which would require the governor to issue a formal written order for every
individual action of
the Guard.
Courts are entitled to rely on the presumption of regularity which
attaches to the
acts of public officials. The supreme court set out this presumption in Wright v.
State, 501 P.2d
1360, 1372 (Alaska 1972), where the court quoted from Gallego v. United States,
276 F.2d 914,
917 (9th Cir. 1960):
Where no evidence indicating otherwise is produced, the
presumption of regularity supports the official acts of public
officers, and courts presume that they have properly discharged
their official duties.
This court and the supreme court have adhered to this principle in subsequent
cases. See
Tallman v. Dept. of Public Works, 506 P.2d 679, 681 (Alaska 1973) (where the
losing party
in a civil trial challenged the array of the jury panel, the supreme court stated,
"[u]nless a
challenging party makes some showing of a miscarriage of the official duty, we
shall presume
that duty has been regularly performed") (footnote omitted); Finkelstein v. Stout,
774 P.2d 786,
790 (Alaska 1989) (presumption of regularity was rebutted concerning the casting
of absentee
ballots); Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993), cert. denied,
510 U.S. 1100
(1994) (þThe presumption of regularity attaches to this situation, requiring this
court to presume,
in the absence of a contrary showing, that the trial court acted in accordance with
its ruling[.]");
Houston-Hult v. State, 843 P.2d 1262, 1266-67 (Alaska App. 1992) (finding state
established
chain of evidence suffi-ciently, relying on presumption of regularity).
Employing the presumption of regularity, we conclude that Judge
Rowland did
not err in concluding that the use of the National Guard troops in this case was
pursuant to
lawful orders. We further conclude that Judge Rowland did not err in denying
Wallace's motion
to suppress on the ground that the use of these troops had not been properly
authorized under
state law.
Wallace next contends that there was insufficient
evidence to support the issuance of the warrants to search
Wallace's house and warehouse. However, the information which the
police presented to the magistrate in support of the warrant to
search Wallace's house is very similar to the information which we
recently found was sufficient in McClelland v. State, ___ P.2d ___,
Op. No. 1503 (Alaska App., Dec. 6, 1996). In McClelland, we
followed "the vast majority of cases [which] support the conclusion
that either the smell of growing marijuana or the odor of burning
marijuana will support the issuance of a search warrant." Id. at
5.
In the instant case, in his affidavit in support of the
search warrant, Detective Robinson set out his extensive background
in drug enforcement, including participation "in serving [thirty-
two] search warrants involving indoor marijuana grow operations."
He stated that "[b]ased on this experience I have come to be able
to distinguish the fresh, pungent odor of growing or freshly
harvested or processed marijuana." He then stated that he smelled
the "fresh pungent odor of growing marijuana" as he approached
Wallace's residence and the smell of marijuana was stronger at the
open door of the residence. According to Detective Robinson, when
he returned to the car after talking with Wallace, his partner,
Detective Pat O'Brien, "who had not gotten out of the vehicle said
he could smell marijuana on [Robinson's] clothing." From this
testimony, the magistrate could properly determine that both
officers were familiar with the odor of growing marijuana, could
identify that odor, and smelled the odor coming from Wallace's
residence. See McClelland at 6. Additionally, in his affidavit
Robinson also supported his conclusion that Wallace had a marijuana
growing operation at his house with evidence of Wallace's high
electrical usage and the information from the anonymous telephone
call. Although the anonymous tip and Wallace's electrical
consumption are insufficient by themselves to establish probable
cause, this information does corroborate the most significant
information supporting the search warrant þþ the fact that the
officers smelled growing marijuana at Wallace's residence. We
conclude that the information which Detective Robinson presented to
the magistrate was sufficient for the magistrate to issue the
search warrant. See McClelland at 6-7.
Wallace next raises several arguments concerning the
search of the warehouse. He first contends that the seizure of the
documents and photographs at Wallace's house, which led the police
to the warehouse, was not authorized by the warrant. Judge Rowland
found that "the documents seized were within the ambit of the
mandate contained in the warrant and related to legitimate purposes
of the warrant in the Specking Street address." Judge Rowland's
ruling is not clearly erroneous. The warrant authorized an
extensive search for drugs and drug-related materials, and it
appears that the photographs and documents which led the police to
the warehouse were authorized by the warrant.
Wallace next contends that the search warrant for the
warehouse was invalid because Robinson made misrepresentations in
his affidavit in support of the search warrant. Robinson stated in
his affidavit that paperwork found at Wallace's house "indicated"
that Wallace leased and paid the electricity bills for the Cordova
Street warehouse. In fact, Wallace elicited from Robinson that
none of the paperwork regarding the Cordova Street warehouse
actually had Wallace's name on it. Robinson apparently concluded
that Wallace was associated with the warehouse because the
paperwork was found in his house and because the warehouse
paperwork was in the name of "J.B. Walsh" or "John Walsh," and
Wallace's name is John B. Wallace, Jr. Robinson's affidavit could
have led the magistrate to believe that Wallace's name was actually
on the lease for the warehouse and its utility bills.
The Alaska Supreme Court in State v. Malkin, 722 P.2d 943
(Alaska 1986), held that misstatements in affidavits must be
excised and the remainder of the affidavit tested for probable
cause if (1) the defendant specifically points out the statements
in the affidavit that are false, and (2) the state does not show by
a preponderance of the evidence that the statements were not made
intentionally or with reckless disregard for the truth. Id. at
946.
Robinson testified how he reached his conclusion that Wallace leased the
warehouse and paid the utility bills. This testimony was sufficient for Judge
Rowland to
conclude that Robinson did not make intentional or reckless misstatements in order
to obtain the
search warrant. Also, Judge Rowland found that the search warrants were
supported by
sufficient evidence. Even if the information connecting Wallace with the
warehouse was more
specifically explained, the magistrate would have likely issued the warrant anyway.
This is
because the warrant was based almost entirely on the other information which the
police found
at the Specking Road house which led them to the warehouse, and upon the fact
that the five
officers smelled growing marijuana at the warehouse. Therefore, Judge Rowland
did not err in
failing to suppress the second search warrant based upon the statements Detective
Robinson
presented to the magistrate.
Wallace contends that the state presented insufficient evidence to the
magistrate
to support the issuance of the second search warrant. However, as we indicated
in our previous
discussion, the materials which the police seized at Wallace's Specking Road
house, coupled
with their investigation of the warehouse (particularly the odor of marijuana
emanating from the
warehouse), supported the issuance of the search warrant.
Wallace next reasons that since the search warrants in question
empowered "any
peace officer" to serve the warrants, the search warrants did not authorize the
police to allow
the National Guard soldiers to assist them in serving the search warrant because
the soldiers
were not peace officers. When confronted with this argument, Judge Rowland
pointed out that
a police officer can call upon any citizen for assistance. Judge Rowland's
observation is
supported by AS 12.35.040, which provides that an officer executing a warrant
has the power
and authority "to call any other person to the officer's aid." We accordingly
conclude that Judge Rowland did not err in rejecting this argument.
Wallace asserts that Detective Robinson violated his rights to privacy and
freedom from unreasonable searches and seizures when he went through a gate in
Wallace's fence, walked up the driveway to the front porch, and rang the doorbell.
Wallace argues that this constituted a warrantless search of the curtilage
surrounding his home, leading to the discovery
of the odor of marijuana when Wallace opened his door. On this issue, Professor
Wayne R. LaFave cites Lorenzana v. Superior Court, 511 P.2d 33 (Cal. 1973) for
the principle that "[a]
sidewalk, pathway, common entrance or similar passageway offers an implied
permission to the
public to enter which necessarily negates any reasonable expectancy of privacy in
regard to
observations made there." 1 Wayne R. LaFave, Search and Seizure, sec. 2.3(c) at
482-83 (3d
ed. 1996). LaFave continues by citing other cases:
[C]ourts have held "that police with legitimate business may enter
the areas of the curtilage which are impliedly open to use by the
public," and that in so doing they "are free to keep their eyes open
and use their other senses." This means, therefore, that if police
utilize "normal means of access to and egress from the house" for
some legitimate purpose, such as to make inquiries of the occupant
. . . it is not a Fourth Amendment search for the police to see or
hear or smell from that vantage point what is happening inside the
dwelling.
Id. at 483-84 (footnotes omitted).
The Alaska Supreme Court has adopted this rationale. In Pistro v. State,
590
P.2d 884 (Alaska 1979), an Alaska State Trooper, with information that stolen
truck parts may
be in defendant Pistro's garage, drove into his driveway. As he walked up to the
side door of
the garage to talk to two men he saw inside, he observed through the garage
window an engine
hanging on a block and tackle. Pistro was ultimately convicted of larceny and
concealing stolen
property. On appeal, Pistro argued that the trooper, by moving up the driveway,
was
trespassing and searching without a warrant. The court stated:
Police officers walking through an unfenced driveway to inquire
at premises have been held not to invade any reasonable
expectation of privacy. The driveway was a normal means of
ingress and egress impliedly open to public use by one desiring to
speak to occupants of the garage, or to park off the street while
visiting occupants of the house. This is not a case of an officer
leaving such a means of public access to spy from an area not
impliedly open to the public. There was no invasion of rights to
privacy, and [the trooper] could constitutionally observe what was
in plain view in the garage.
Pistro, 590 P.2d at 887 (footnote omitted).
According to Judge Rowland's findings, Detective Robinson, like the
trooper in
Pistro, approached Wallace's residence via the driveway, a normal means of
ingress and egress.
Accordingly, Judge Rowland did not err in rejecting Wallace's argument.
Wallace contends that Detective Robinson acted illegally and without a
proper
purpose, by approaching his residence and asking Wallace if a fictitious person
lived there.
However, courts have routinely allowed police to employ non-coercive trickery in
the course of
investigations, and in serving search warrants. See State v. Weller, 884 P.2d 610,
612 (Wash. App. 1994) (detective knocked on defendant's door and
pretended to be looking for table saw; court held the officer may
lawfully enter porch and smell marijuana without violating the
resident's right to privacy); United States v. Leung, 929 F.2d
1204, 1208 (7th Cir.), cert. denied, 502 U.S. 906 (1991) (police
investigating heroin sale properly used ruse which caused defendant
to open door to hotel room); Lockwood v. State, 591 P.2d 969, 972
(Alaska 1979) (officers serving search warrant used ruse which
caused defendant to open door; entry upheld because officers
substantially complied with knock and announce requirements).
Detective Robinson was not required to be completely candid with
Wallace by
informing him that he was investigating whether Wallace was harboring a
marijuana growing
operation. Under
the law, the police have leeway to conceal the purpose of their investigation to
avoid alerting
suspects to the fact that they are being investigated. Requiring Detective
Robinson to be more
candid with Wallace might very well have alerted Wallace to the fact that he was
being
investigated, and resulted in the destruction of evidence. There is simply no such
legal
requirement.
Wallace next cites McGahan v. State, 807 P.2d 506, 509-11 (Alaska
App. 1991),
in which this court held that reasonable suspicion was required before the
government could
conduct a search with a trained dog to detect drugs. Wallace contends that we
should impose
a similar requirement on police officers, and require a police officer to have
reasonable suspicion
before he can approach a residence to detect drugs using his sense of smell. In
discussing this
issue, Professor LaFave states:
[T]here is no "reasonable expectation of
privacy" from lawfully positioned agents "with
inquisitive nostrils." This means, for
example, that no search in a Fourth Amendment
sense has occurred when a law enforcement
officer, lawfully present at a certain place,
detects odors emanating from private premises,
from a vehicle, or from some personal effects
nearby.
1 LaFave, supra, at 403 (footnotes omitted). We agree with Professor
LaFave's analysis and conclude that Judge Rowland did not err in denying
Wallace's motion to
suppress on this ground.
Wallace asserts that his rights to privacy and freedom
from unreasonable search and seizure were violated by the police
when they obtained his electrical usage records without a warrant.
Wallace acknowledged that at the time he submitted his brief,
Alaska courts had not yet ruled on this issue. Subsequently, this
court addressed this issue in Samson v. State, 919 P.2d 171 (Alaska
App. 1996). This court ruled that "utility records are maintained
by the utility and do not constitute information in which society
is prepared to recognize a reasonable expectation of privacy." Id.
at 173. We adhere to our decision in Samson, and conclude that Wallace had no
reasonable expectation of privacy in his utility records.
The conviction is AFFIRMED.
ENDNOTES:
1. Members of the Alaska National Guard can be members of either
the Army National Guard or the Air National Guard.
2. Wallace focuses on the "military purpose" exception to the
Posse Comitatus Act and argues that the use of the National Guard
in the instant case does not fit within the exception. This
argument is irrelevant. It is true that military personnel can
search suspects and seize evidence, notwithstanding the language of
the Posse Comitatus Act, if an independent military purpose
justifies the military involvement. See Harker v. State, 663 P.2d
932 (Alaska 1983). Wallace correctly asserts that no independent
purpose justified the use of the National Guard to search Wallace's
house and the warehouse. Nevertheless, no violation of the Posse
Comitatus Act occurred because the Guardsmen were not federalized
when they acted.
