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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM J. MACKELWICH, JR., )
) Court of Appeals No. A-6224
Appellant, ) Trial Court No. 3KN-95-892 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1564 - December 19, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: Michael D. Dieni, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Nancy R. Simel, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
This appeal requires us to interpret AS 16.05.180, a
statute that empowers peace officers and other authorized employees
of the Department of Fish and Game to engage in warrantless searches
when investigating violations of the fish and game laws. The
statute specifies that, before an officer exercises this statutory
authority to conduct a warrantless search, the officer must prepare
a "signed written statement ... [of] the reason the search is being
conducted" and must "submit[] [this statement] to the person in
control of the property or object to be searched". The question
presented in this appeal is whether this statute (and its
requirement of a written statement of the reason for the search)
applies to situations in which peace officers search property after
having obtained the property owner's consent. We hold that
AS 16.05.180 does not apply under such circumstances.
On May 24, 1995, the Alaska State Troopers in Kenai
received an anonymous tip that "Will Mackel-something" had poached
a moose. The anonymous tip also included a second assertion: that
this same person was "possibly [involved with] some type of drugs".
The caller gave a general description of the property where the
alleged moose-poacher lived; the troopers had earlier heard rumors
that marijuana was being cultivated in that general area.
The next day (May 25, 1995), two Alaska State Troopers
went to the residence of William J. Mackelwich, Jr., to investigate
this tip. The troopers explained that they had received a report
of an illegal moose kill, and they asked for permission to search
the property. Both Mackelwich and the other occupant of the
property, Glenda Healy, consented to the proposed search. [Fn. 1]
The troopers conceded that they did not prepare a written
statement of the reason for the search. (The troopers also conceded
that, when they spoke to Mackelwich and Healy, they did not mention
their suspicions about marijuana.)
After receiving Mackelwich's consent to look around the
property, the two troopers separately walked the grounds. One of
the troopers (Trooper Leichliter) found an out-building of unusual
appearance: the building had no windows, it was covered in tar
paper, and it had two padlocks on a heavy door. A generator was
running next to the building. Standing outside this building,
Leichliter could smell the odor of growing marijuana. Having made
these observations, Leichliter concluded his search and waited for
his partner to return.
After the troopers drove back to Kenai, Leichliter applied
for a search warrant. The ensuing search revealed that Mackelwich
was cultivating marijuana. Mackelwich was ultimately convicted of
fourth-degree misconduct involving a controlled substance
(possession of 25 or more marijuana plants), AS 11.71.040(a)(3)(G).
On appeal, Mackelwich argues that the search warrant for
his property was invalid because the warrant application was based
almost entirely on Leichliter's observations of the out-building and
the smell emanating from that building. Mackelwich contends that
these observations must be suppressed because, even though the
troopers had Mackelwich's consent to search the premises, the
troopers failed to provide Mackelwich with a written statement of
the reason for the search as required by AS 16.05.180.
The issue is this: Should AS 16.05.180 be construed to
govern all warrantless searches conducted to investigate fish and
game violations, or should the statute be construed to apply only
when a warrantless search is not justified under some other
recognized exception to the warrant requirement? For the reasons
explained below, we conclude that the latter construction of the
statute is correct.
The provision of law currently codified in AS 16.05.180
has a seventy-year history. A predecessor statute was first enacted
by Congress in 1925 as part of legislation defining the powers of
the Alaska (territorial) Game Commission and its agents. See Alaska
Game Law of Jan. 13, 1925, ch. 75  5, 43 Stat. 741 (codified as
amended at 48 U.S.C.  192 (1940)). This federal statute authorized
officers and employees of the Alaska Game Commission to conduct
warrantless searches of camps and conveyances whenever they had
reason to believe that the search would uncover evidence of game
offenses:
Any officer or employee empowered to enforce
this subchapter shall have authority without warrant to search any
camp, camp outfit, pack or pack animals, automobile, wagon, or other
vehicle, sled, or any boat, vessel, or other craft in the
Territorial waters of the United States, or any boat, vessel, or
other craft of the United States on the high seas when such officer
or employee has reasonable cause to believe that such camp, camp
outfit, pack or pack animals, automobile, wagon, or other vehicle,
sled, boat, vessel, or other craft has therein or thereon any of the
animals or birds, or parts thereof, protected by this subchapter,
taken, possessed, sold, intended for sale, or transported contrary
to law.
48 U.S.C.  192. With slight modification, this provision was later
codified as  44 of the 1933 Compiled Laws of Alaska. With the
addition of clauses allowing the warrantless search of fish creels
and aircraft, and with the addition of clauses recognizing that
fish, bird nests, and bird eggs were also protected, the statute was
codified as  39-6-7 of the 1949 Compiled Laws of Alaska. [Fn. 2]
The present form of the statute AS 16.05.180 was
enacted in 1959 during the first session of the newly-organized
state legislature. See SLA 1959, art. I, chap. 94, sec. 22. The
statute now provides:
Each peace officer designated in
AS 16.05.150 may without a warrant search any
thing or place if the search is reasonable or is not protected from
searches and seizures without warrant within the meaning of art. I,
 14, Alaska State Constitution, which specifically enumerates
"persons, houses and other property, papers, and effects." However,
before a search without warrant is made[,] a signed written
statement by the person making the search shall be submitted to the
person in control of the property or object to be searched, stating
the reason the search is being conducted. A written receipt shall
be given by the person conducting the search for property which is
taken as a result of the search. The enumeration of specific things
does not limit the meaning of words of a general nature.
The current statute differs in three major ways from its
predecessors.
First, the legislature dropped the prior detailed listing
of places that might be searched without a warrant basically,
camps and conveyances. Instead, the legislature declared that
officers enforcing the fish and game laws could conduct a warrant-
less search of "any thing or place".
Second, the legislature added two formal requirements.
An officer who intends to conduct a warrantless search must prepare
a written statement of the reason for the search and give this
written statement to the person in control of the property.
Additionally, after the search is completed, the officer must
provide a written receipt for any items seized. However, in
Nathanson v. State, 554 P.2d 456, 459-460 (Alaska 1976), the supreme
court held that when no person is in immediate control of the
property to be searched, so that compliance with the statutory
requirement of written notice would unreasonably delay the
investigation, officers conducting the search are excused from these
requirements.
Finally, the legislature expanded the scope of the
warrantless searches authorized by the statute. The prior statute
(in its various forms) had authorized warrantless searches if the
officer conducting the search had "reasonable cause" to believe that
the search would uncover evidence of a fish and game violation.
Although the syntax of AS 16.05.180 is a little garbled, it appears
that the current statute was intended to authorize warrantless
searches in two different situations. The first situation is "if
the search is reasonable". This is analogous to the old requirement
of "reasonable cause". The legislature also authorized warrantless
searches if the "thing or place [being searched] ... is not
protected from searches and seizures without warrant within the
meaning of art. I,  14 [of the] Alaska State Constitution".
However, this second clause has been rendered largely moot by two
court decisions: Wamser v. State, 600 P.2d 1359, 1360-61 (Alaska
1979) (holding that the notice requirements of AS 16.05.180 do not
apply when a defendant has no constitutionally protected expectation
of privacy in the evidence seized), and Dye v. State, 650 P.2d 418,
422 (Alaska App. 1982) (holding that the notice requirements of
AS 16.05.180 do not apply when the defendant has no constitutionally
protected expectation of privacy in the area or property searched).
[Fn. 3]
In Mackelwich's case, the property that was searched was
the land surrounding his residence; this property was protected from
warrantless search under Article I, Section 14 of the Alaska
Constitution. See Pistro v. State, 590 P.2d 884, 886-87 (Alaska
1979). Moreover, Mackelwich was present when the officers arrived
at the property to conduct their investigation. Thus, we are
squarely presented with the issue of whether AS 16.05.180 governs
the consent search of Mackelwich's land by officers investigating
a violation of the fish and game laws.
Mackelwich argues that the written notice requirement
contained in AS 16.05.180 applies to any warrantless search
conducted to investigate a potential violation of the fish and game
laws. Under Mackelwich's interpretation, AS 16.05.180 was intended
to divide warrantless searches into two categories those conducted
to investigate potential violations of the fish and game laws, and
all others. Any warrantless search in the first category (that is,
a search conducted to investigate a fish and game offense) is
governed by special procedural requirements specifically, the
requirements of written advance notice and a receipt for articles
seized.
Because AS 16.05.180 does not speak of the recognized
exceptions to the warrant requirement, Mackelwich contends that the
statute must apply to all warrantless searches, even searches that
would be justified under one or more of those recognized exceptions.
Thus, Mackelwich concludes, the statutory requirement of advance
written notice applies to warrantless searches like the one in his
case a search conducted with the consent of the person who owns
or controls the property.
We reject Mackelwich's interpretation of the statute for
two reasons. First, it is inconsistent with the statutory history;
second, it leads to unreasonable results.
Since 1925, AS 16.05.180 and its various predecessor
statutes have granted officers enforcing fish and game laws the
authority to conduct warrantless searches as long as the search was
supported by "reasonable cause" or, as AS 16.05.180 now puts it,
as long as the search "is reasonable". Because the pre-statehood
versions of the statute did not impose special procedural
requirements on the officers conducting the search, it is fairly
clear that those pre-statehood versions of the statute were intended
to extend the authority of officers enforcing the fish and game
laws. The statute was a legislative attempt by Congress to bestow
authority on government officials to conduct fish and game searches
without a warrant.
Both the Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Alaska Constitution
protect against "unreasonable searches and seizures". Construing
this phrase, both the United States Supreme Court and the Alaska
Supreme Court have declared that, absent the consent of the person
in control of the property, a warrantless search is per se
"unreasonable" unless it falls within "certain carefully defined"
exceptions to the warrant requirement. Camara v. Municipal Court,
387 U.S. 523, 528-29; 87 S.Ct. 1727, 1730-31; 18 L.Ed.2d 930, 935
(1967); Woods & Rohde, Inc. v. Alaska Dept. of Labor, 565 P.2d 138,
149, 151 (Alaska 1977). Given these constructions of the federal
and state Constitutions, there is obviously some question as to
whether the legislative branch of government has the authority to
declare that certain searches may be conducted without a warrant.
See Woods & Rohde, 565 P.2d at 150-52 (striking down a statute that
authorized warrantless inspections of workplaces to investigate
employers' compliance with the Alaska Occupational Safety and Health
Act; the court held that such warrantless inspections violated the
search and seizure clause of the Alaska Constitution).
However, in the context of the present appeal, it is only
necessary to identify the legislative purpose behind the statute;
it is not necessary to decide whether that purpose is
constitutional. We conclude, from the legislative history, that the
purpose of the statute was to expand the government's authority to
conduct warrantless searches for evidence of fish and game
violations. The government already had the authority to conduct
warrantless searches by consent. Thus, the statute must have been
intended to address instances in which the person in charge of the
property had not consented to the search to confer the authority
to conduct warrantless searches when there was no consent.
Given this legislative purpose behind the earlier versions
of the statute, we conclude that the limitations written into
earlier versions of the statute (the list of specified places and
objects that might be searched without a warrant) did not restrict
government officers' ability to conduct other warrantless searches
with the consent of the person in charge of the property. Rather,
these statutory limitations applied only when there was no consent
for the search.
The current version of the statute, AS 16.05.180, contains
different limitations on warrantless searches. The current statute
no longer limits the places or objects that may be searched without
a warrant, but it does impose procedural requirements on warrantless
searches requiring written advance notice of the reason for the
search, and a receipt for any objects seized. Again, however, we
interpret these limitations to apply only to warrantless searches
that depend upon the statute for their justification. Consent
searches are lawful without reference to AS 16.05.180, and we
therefore conclude that the procedural requirements contained
AS 16.05.180 do not apply to consent searches.
Mackelwich argues against this conclusion by asserting
that there is a different purpose behind the notice requirement
contained in AS 16.05.180. He argues that the notice requirement
was intended to ensure that the power of warrantless search would
not be misused: by requiring officers to make a contemporaneous
written record of the reason for the search (before the search is
conducted), evidence uncovered during a warrantless search can not
be used to justify the search after the fact.
We agree that Mackelwich has identified a plausible
purpose for the written notice requirement. His interpretation of
the statute is, however, inconsistent with the supreme court's
decision in Nathanson (discussed above), where the court held that
officers need not comply with the written notice requirement if the
person in charge of the property is not present and it would be
unreasonable to delay the search. 554 P.2d at 459-460. If the
purpose of the written notice requirement were to ensure the
creation of a contemporaneous memorandum of the reason for the
search, this purpose would seemingly apply all the more forcefully
when the person in charge of the property is not present to speak
with the officers. Yet the court in Nathanson reached a different
conclusion.
Moreover, even assuming that the legislature saw a value
in requiring officers to write down, in advance, their reason for
conducting a warrantless search, the fundamental question still
remains: Did the legislature intend this notice requirement to
apply to all warrantless searches conducted to investigate fish and
game violations? Or did the legislature intend instead for the
requirement to apply only when the warrantless search would not be
authorized but for the statute?
If the notice requirement applies only to warrantless
searches that would not be authorized absent AS 16.05.180, then the
rationale behind the notice requirement has considerable force. It
would be reasonable for the legislature to grant an expanded power
to conduct warrantless searches, but then condition the exercise of
that power on observance of additional procedural safeguards (such
as the written notice requirement).
However, if we accept Mackelwich's interpretation of the
statute that the notice requirement applies to any and all
warrantless searches conducted for fish and game purposes, even when
those searches are justified by a recognized exception to the
warrant requirement then it is much harder to come up with a
rationale for the notice requirement. Mackelwich offers a plausible
explanation of why the legislature might, as a matter of policy,
want officers to give written notice of their grounds for conducting
a warrantless search. But this policy would seemingly apply to any
and all warrantless searches. Mackelwich offers no convincing
explanation of why the legislature would want enforce this notice
requirement only upon officers conducting a warrantless search to
investigate a fish and game violation, and to exempt all other
warrantless searches from the requirement. [Fn. 4]
Indeed, there are sound policy reasons for not construing
the statute as Mackelwich suggests. Under Mackelwich's interpreta-
tion, the applicability of AS 16.05.180 and its requirement of
written notice would hinge on the subjective motivation of the
officer conducting the search. The same law enforcement officer
could conduct two warrantless searches, each of exactly the same
degree of intrusiveness and scope, and the procedural requirements
governing the two searches would depend on what the officer had in
mind when he conducted the search. If the officer intended to
investigate a potential fish and game violation, the notice
requirement would apply. If the officer intended to investigate any
other type of criminal offense, the notice requirement would not
apply.
The facts of Mackelwich's case illustrate the problem with
such a rule. Mackelwich argues that the troopers were bound by the
notice requirement of AS 16.05.180 because they were investigating
a moose kill. The State responds that, even though this was part
of the reason for the search, the troopers were also investigating
the second part of the tip the information about drugs. Thus,
the State argues, AS 16.05.180 should not govern this case because
the troopers had an independent motivation for the search.
We believe that the arguments of both parties are
misguided. We have repeatedly held that the propriety of a search
or seizure is not judged by the subjective intentions of the
officer, but rather by an objective legal analysis of the facts.
See Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App. 1995);
Beauvois v. State, 837 P.2d 1118, 1121-22 & n.1 (Alaska App. 1992).
It would run counter to this rule of law if we were to hold that an
officer's subjective reason for conducting a warrantless search
determined the applicability of AS 16.05.180.
For all of the foregoing reasons, we reach the following
conclusions:
First, AS 16.05.180 was intended to expand the authority
of law enforcement officers to conduct warrantless searches when
investigating fish and game violations. The purpose of the statute
is to grant officers the authority to conduct warrantless searches
even when the circumstances would not support any of the recognized
exceptions to the warrant requirement.
Second, the procedural requirements of AS 16.05.180 apply
only to those warrantless searches whose legality rests on the
statute searches that do not fit within any other recognized
exception to the warrant requirement, and that would be illegal but
for the statute. Even though the troopers in this case were
investigating a fish and game violation, Mackelwich consented to the
search of his property. Consent searches are a recognized exception
to the warrant requirement. Thus, AS 16.05.180 did not apply to the
search of Mackelwich's property.
The superior court properly denied Mackelwich's
suppression motion. Mackelwich's conviction is therefore AFFIRMED.
FOOTNOTES
Footnote 1:
The superior court also heard a materially different version
of this encounter. Mackelwich and Healy both denied that they had
consented to a search of the property. They told the court that the
troopers had never asked for permission to search; instead, the
troopers had instead simply informed Mackelwich and Healy that they
were going to "look around" for evidence of a moose kill.
After hearing this conflicting testimony, Superior Court
Judge Jonathan H. Link found that Mackelwich and Healy had in fact
consented to the search of the property. Mackelwich does not
challenge this finding on appeal.
Footnote 2:
The pertinent portion of  39-6-7, 1949 CLA provided:
Any officer or other person empowered to enforce this Act
shall have authority without warrant to search any camp, camp
outfit, fish creel, pack or pack animals, automobile, aircraft,
wagon or other vehicle, sled, or any boat, vessel, or other craft
in the territorial waters of the United States, or any boat, vessel,
or other craft of the United States on the high seas when such
officer or employee has reasonable cause to believe that such camp,
camp outfit, fish creel, pack or pack animals, automobile, aircraft,
wagon, or other vehicle, sled, boat, vessel, or other craft has
therein or thereon any of the animals, birds, or fishes, or parts
thereof, or nests or eggs of birds, protected by this Act taken,
possessed, sold, intended for sale, or transported contrary to law.
Footnote 3:
See also Klockenbrink v. State, 472 P.2d 958, 960-61 (Alaska
1970), where the supreme court held that AS 16.05.180 does not apply
when evidence is observed in plain view. The supreme court reasoned
that when an officer observes objects in plain view (assuming the
officer has committed no trespass to obtain that view), the officer
does not conduct a "search" within the meaning of the search and
seizure clause, and thus the statute does not govern the officer's
actions.
Footnote 4:
Mackelwich argues that, had the troopers prepared a written
notice of their reason for searching his property, the superior
court would not have had to resolve the conflicting testimony
regarding whether Mackelwich and Healy consented to the entry upon
that property. This contention appears dubious. Even if the
troopers had written down their reason for wanting to search
Mackelwich's property, this writing would not have resolved the
question of whether Mackelwich consented to the search.
