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Michel v. State (7/24/98) ap-1598
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.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH M. MICHEL and ) Court of Appeals Nos. A-6521/6527
STEPHANIE A. MICHEL, ) Trial Court Nos. 3PA-96-412 Cr
) and 3PA-96-499 Cr
Appellants, )
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1598 - July 24, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Verne E. Rupright, Stepovich,
Kennelly & Stepovich, Anchorage, for Appellant
Joseph Michel. Mark L. Nunn, Anchorage, for Appellant Stephanie
Michel. 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, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The Alaska State Troopers received a tip that Joseph and
Stephanie Michel were growing marijuana at their residence in
Willow, Alaska. Two troopers were dispatched to the Michels'
residence to investigate this tip.
The Michels' residence lies off the Parks Highway. The
house is not visible from the highway, and the only approach to the
house is a 300-yard-long driveway. Four "No Trespassing" signs were
posted along this driveway. Driving past these signs, the troopers
went up to the house and knocked on the door. When Joseph Michel
opened the door, the troopers perceived a strong odor of growing
marijuana. This discovery prompted the troopers to seek a search
warrant, and the ensuing search confirmed that the Michels were
growing marijuana.
The primary question presented in this appeal is whether
the troopers could lawfully proceed up the Michels' driveway to the
house despite the presence of the "No Trespassing" signs. The
Michels argue that, by posting these signs along their driveway,
they created an enclave of privacy on their property, thus giving
them a reasonable expectation that law enforcement personnel would
not enter the property without a warrant.
This court has never decided whether "No Trespassing"
signs placed along a driveway create a reasonable expectation that
law enforcement officers will not approach a residence without a
warrant. However, the Alaska Supreme Court's decision in Pistro v.
State [Fn. 1] suggests that the posting of "No Trespassing" signs
along a driveway will not (at least by itself) insulate a homeowner
from unsolicited visits by members of the public.
Pistro holds that a homeowner must reasonably expect that
members of the public will approach a residence via an ungated
driveway. The supreme court declared that "[a] driveway [is] a
normal means of ingress and egress impliedly open to public use by
one desiring to speak to occupants of ... the house". [Fn. 2] The
question, then, is whether the posting of "No Trespassing" signs
along the driveway alters this result.
The underlying premise of Pistro is that visitors
including unsolicited visitors can be expected to use normal means
to approach a residence. Thus, to analyze the Michels' case under
Pistro, we must ask the following question: Would a reasonable
person, seeing "No Trespassing" signs posted along a driveway,
conclude that the homeowner desired to exclude members of the public
who wished to visit the residence for a legitimate social or
commercial purpose?
Several states have held that the answer is "no": the
presence of "No Trespassing" signs does not prevent police officers
from approaching a residence to see if the owner is willing to speak
to them. For instance, the Idaho Court of Appeals held that the
presence of "No Trespassing" signs
cannot reasonably be interpreted to exclude
normal, legitimate inquiries or visits by mail carriers, newspaper
deliverers, census takers, neighbors, friends, utility workers and
others who restrict their movements to the areas of one's property
normally used to approach the home. A criminal investigation is as
legitimate a societal purpose as any other undertaking that would
normally take a person to another's front door. ... In other
words, when the police come onto private property to conduct an
investigation or for some other legitimate purpose and restrict
their movements to places ordinary visitors could be expected to go,
observations made from such vantage points are not covered by the
Fourth Amendment. [Fn. 3]
The Washington Court of Appeals has similarly held that "No
Trespassing" signs do not, by themselves, manifest a homeowner's
intent to keep away all visitors. [Fn. 4]
The law presumes that a homeowner generally consents to
"allow visitors to take reasonable steps to make contact with the
occupant". [Fn. 5] This presumption can be overcome only when a
homeowner manifests a clear intent to prohibit all visitors from
even approaching the house. [Fn. 6]
We agree with the reasoning of these decisions, and we
apply that reasoning to the present case. The Michels live in rural
Alaska, and their residence lies some distance off the main highway,
connected by a long driveway. Under these circumstances, a visitor
to the Michels' residence would reasonably conclude that the
"No Trespassing" signs posted along the driveway were intended to
deter people who might be tempted to leave the highway and use the
Michels' driveway as an access route for their own purposes (e.g.,
hunting, camping, hiking, or the like). Persons visiting the
residence for social or commercial purposes would not construe those
signs as meant to prohibit their entry. Thus, the troopers did not
need a warrant to proceed along the driveway to the Michels'
residence.
The Michels raise three other issues in this appeal. [Fn.
7] However, this appeal comes to us via a Cooksey plea [Fn. 8],
and none of these other issues was preserved for appeal.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
590 P.2d 884 (Alaska 1979).
Footnote 2:
590 P.2d at 887.
Footnote 3:
State v. Rigoulot, 846 P.2d 918, 923 (Idaho App. 1992)
(citations omitted).
Footnote 4:
State v. Gave, 890 P.2d 1088, 1091 (Wash. App. 1995).
Footnote 5:
State v. Gabbard, 877 P.2d 1217, 1221 (Or. App. 1994). See
also State v. Clark, 859 P.2d 344, 349 (Idaho App. 1993).
Footnote 6:
Compare State v. McIntyre, 860 P.2d 299 (Or. App. 1993)
(holding that a tall wooden fence and a metal gate blocking a
homeowner's driveway did not adequately manifest an intent to keep
visitors from approaching the front door) with State v. Russo, 683
P.2d 163 (Or. App. 1984) (holding that "No Trespassing" signs, a
cable blocking the driveway, and a sign instructing visitors to honk
before entering the property manifested an intent to exclude all
visitors).
Footnote 7:
The Michels argue (1) that the state troopers recklessly or
intentionally omitted material information when they applied for the
search warrant, (2) that the search warrant application failed to
establish probable cause for the issuance of the warrant, and
(3) that the search of the Michels' residence violated the Posse
Comitatus Act, 18 U.S.C. sec. 1385 (1878) (as amended 1994), because
members of the National Guard aided in the search.
Footnote 8:
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
