NOTICE: This opinion is subject to formal correction before publication in the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FLORA M. DAVIS, )
) Court of Appeals No. A-6016
Appellant, ) Trial Court No. 4FA-95-650 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
REBECCA L. FOX, )
) Court of Appeals No. A-6025
Appellant, ) Trial Court No. 4FA-95-652 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
EARL J. THRONSEN, JR., )
) Court of Appeals No. A-6036
Appellant, ) Trial Court No. 4FA-95-649 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1528 - May 9, 1997]
______________________________)
Appeals from the Superior Court, Fourth Judi cial District, Fairbanks, Ralph R.
Beistline, Judge.
Appearances: Robert B. Downes, Downes, Mac Donald, & Levengood, Fairbanks, for
Appellant Davis. Susan Downie, Assistant Public Advo cate, Fairbanks, and Brant McGee, Public
Advocate, Anchorage, for Appellant Fox. Thomas E. Fenton, Fairbanks, for Appellant Thronsen. James
L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge, and Joannides, District Court
Judge.
MANNHEIMER, Judge.
Each of the appellants in this case visited a Fairbanks residence while the police
were executing a search warrant for the premises. The officers searched each of the appellants as
they arrived, and the officers found cocaine on each appellant.
Each of the appellants was indicted for possession of cocaine (fourth-degree
misconduct involving a controlled substance), AS 11.71.040(a). Following their indictment, Davis,
Fox, and Thronsen sought suppression of the cocaine; they argued that the police had lacked authority
to search them, either because the warrant was invalid or because the warrant did not empower the
police to search visitors who arrived during the execution of the warrant. The superior court
rejected these contentions, and each of the appellants was subsequently convicted. They now appeal,
renewing their arguments in favor of suppression. We affirm the appellants' convictions.
On October 12, 1994, a Fairbanks magistrate issued a search warrant for a residence
at 1550 Old Pioneer Way; the magistrate found that there was probable cause to believe that the
residence was the site of an ongoing "crack" cocaine selling operation. Besides authorizing the
police to search for drugs, drug paraphernalia, and money, the warrant also authorized the police to
search "[a]ny persons on the premises at the time of service of the search warrant" for evidence of
possession and/or distribution of controlled substances.
Armed with the warrant, the police arrived at the house at approximately 9:45 that
evening. As the officers were arriving, Earl J. Thronsen, Jr., approached the house, opened a screen
door, and walked into the arctic entry an enclosed vestibule leading to the interior front door of
the residence. Standing in the arctic entry, Thronsen knocked on the interior front door. When
someone inside the house opened the door for Thronsen, the police ran up and announced that they were
there to serve a search warrant. The officers brought Thronsen inside the residence and searched
him. This search revealed two bindles of cocaine.
Approximately one hour later, while the police were still searching the house,
Flora M. Davis came into the arctic entry and knocked on the interior front door. The officers
opened the door but did not immediately reveal their identity; they either invited Davis inside or
allowed her to enter. Davis was then searched; the search yielded three pipes used for smoking crack
cocaine.
Rebecca L. Fox also arrived at the house while the search was proceeding. She too
came into the arctic entry and knocked on the interior front door; when she entered the residence,
the officers searched her. This search yielded a glass pipe containing cocaine.
On appeal, Thronsen contends that the search warrant was an unconstitutional
"general warrant" because it authorized the search of any and all persons who might be present on the
premises at the time the warrant was served. [Fn. 1] Thronsen's argument is not based on the facts
of this case (the contents of the warrant application presented to the magistrate); rather, Thronsen
argues that, as a general matter, courts lack the authority to issue this kind of warrant.
Thronsen's contention is governed by this court's recent decision in Betts v.
State, 920 P.2d 763 (Alaska App. 1996). In Betts, we held that warrants authorizing the police to
search "any and all persons present" are not per se unconstitutional. Id. at 764. Such a warrant is
supportable if the warrant application provides probable cause to believe "that all persons present
[on the premises] upon execution of the ... warrant would ... have drugs or drug paraphernalia on
their persons." Id. at 765. We therefore reject Thronsen's attack on the warrant.
Davis, Fox, and Thronsen all argue that, even assuming the validity of the warrant,
the police were not authorized to search them. Although the warrant authorized the police to search
all persons "on the premises", the three appellants contend that they were not "on the premises"
until they entered the main living area. The appellants point out that they entered the main living
area at the invitation (or, in Thronsen's case, at the direction) of the police.
We conclude, however, that the appellants' argument is based on a mistakenly narrow
interpretion of the term "premises". In this case, the arctic entry was part of the "premises" of the
residence. We derive this result from cases construing the law of burglary. When defining the
"premises" of a dwelling for purposes of burglary, a dwelling includes an attached enclosed or
screened-in porch. See Johnson v. Commonwealth, 875 S.W.2d 105, 106-07 (Ky. App. 1994); Commonwealth
v. Jackson, 585 A.2d 533, 534-35 (Penn. App. 1991); State v. Lawrence, 572 So.2d 276, 278-79 (La.
App. 1990); People v. Wiley, 523 N.E.2d 1344, 1346-47 (Ill. App. 1988); State v. Watts, 334 S.E.2d
68, 70 (N.C. App. 1985); People v. Lewoc, 475 N.Y.S.2d 933, 934 (N.Y. App. 1984). See generally
People v. Wise, 30 Cal.Rptr.2d 413, 416-18 (Cal. App. 1994).
Applying this rule to the present case, we conclude that the arctic entry must be
considered part of the "premises" referred to in the search warrant. The arctic entry in this case
was an enclosed vestibule or small porch, attached to the residence, with its own door. When Davis,
Fox, and Thronsen entered the arctic entry, they were "on the premises" of the residence named in the
search warrant. For this reason, the three appellants fell within the scope of the warrant (and were
subject to search) before the police ever invited or brought them through the interior front door
into the main living area of the house.
Davis and Fox additionally argue that, because they arrived at the residence after
the police, the warrant did not authorize the police to search them. Davis and Fox rely on the
wording of the warrant, which authorized the police to search any persons on the premises "at the
time of service of the search warrant". They assert that this language limited the police to
searching the people who were there when the police arrived.
For some purposes, one might need to distinguish between the act of "serving" a
search warrant (an act that occurs at a particular instant) and the act of "executing" the warrant
(that is, the ensuing search of the premises, which might take hours). However, we do not believe
that this distinction is useful for construing the scope of the search authorized by the warrant in
this case.
In the present case, the magistrate found probable cause to believe that the
residence at 1550 Old Pioneer Way was being used as a "crack house" a commercial establishment
devoted to the distribution of crack cocaine. The magistrate also found that a person's presence at
the house established probable cause to search them. (The appellants do not dispute this finding.)
The probable cause for the search of Davis's and Fox's persons depended on their
voluntary presence at the site of an ongoing criminal enterprise. We do not see how this probable
cause was diminished by the fact that Davis and Fox arrived after the police, but while the police
were still executing the warrant. Professor LaFave notes this issue in his treatise on the law of
search and seizure:
[C]ourts ... have allowed persons who enter during the execution [of a warrant] to be
searched for the items named in the search warrant. ... [W]here the search warrant is not for one
specific object (e.g., a stolen diamond ring) but rather for a type of goods (e.g., narcotics [or]
gambling paraphernalia) which are likely present because of ongoing criminal activity involving such
goods, there is no inherent inconsistency in asserting that the person entering during the search may
have the described goods on his person.
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996),
4.9(c), Vol. 2, p. 633 (footnotes omitted); see id. nn.33-34.
The Alaska Supreme Court has consistently followed a "common sense approach ... to
problems presented by search and seizure". State v. Morris, 668 P.2d 857, 864 n.2 (Alaska App. 1983)
(Singleton, J., concurring). Application of common sense to this case leads us to conclude that the
magistrate authorized the police to search people who arrived while the police were searching the
house.
In sum: The warrant issued in this case was not an improper "general warrant", the
three appellants were on the premises of the residence being searched, and the fact that Davis and
Fox arrived after the police did not affect the probable cause for the searches of their persons.
The judgements of the superior court are AFFIRMED.
FOOTNOTES
Footnote 1:
Fox also raises this argument on appeal. However, she did not raise this issue in the
superior court. She is therefore precluded from relying on this argument on appeal. See Moreau v.
State, 588 P.2d 275, 279-280 (Alaska 1978).
