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Bohanan v. State (11/26/99) ap-1656

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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


GLEN A. BOHANAN,              )
                              )          Court of Appeals No. A-6907
                 Appellant,   )       Trial Court No. 4FA-97-207 Cr
                              )
                  v.          )              
                              )           O  P  I  N  I  O  N
STATE OF ALASKA,              )                
                              )
                  Appellee.   )     [No. 1656     November 26, 1999]
                              )


          Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jane F. Kauvar, Judge.

          Appearances:  Frederic E. Brown, Fairbanks, for
Appellant.  Marcelle K. McDannel, 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.

          Glen A. Bohanan was convicted of second-degree sexual
assault [Fn. 1] and attempted first-degree sexual assault [Fn. 2]
for trying to rape D.B., one of his wife's friends.  He now appeals
these convictions, asserting a variety of errors.  For the reasons
explained here, we affirm Bohanan's convictions. 

          Facts pertaining to Bohanan's claim that some of the
     State's evidence was gathered illegally

          Bohanan and his family lived in Fairbanks.  D.B., a close
friend of Bohanan's wife, was visiting from Lake Minchumina.  On May
9, 1997, Bohanan invited D.B. to his house while his wife and
children were not home.  Bohanan kissed D.B. several times on the
mouth, groped her breasts and buttocks, pushed his groin against her
in a simulation of sexual intercourse, and held her tightly as he
tried to lead her into a bedroom.  D.B. eventually broke away from
Bohanan and fled the house. 
          After D.B. reported Bohanan's conduct to the state
troopers, the troopers decided to have D.B. telephone Bohanan in an
attempt to obtain incriminating statements from Bohanan.  The
troopers obtained a Glass warrant [Fn. 3] to monitor these
anticipated conversations. 
          The troopers planned for D.B. to call Bohanan from the
trooper station, where recording equipment was installed, but the
plan was made difficult by the fact that D.B.  lived in Lake
Minchumina.  The initial Glass warrant was not executed because D.B.
could not make it into Fairbanks from Lake Minchumina.  The warrant
was extended, but again D.B. had difficulty coming to Fairbanks, and
when she was available, the officer in charge of the investigation
was out of town.  Finally, everything was ready and D.B. called the
Bohanan residence, but Bohanan's wife answered the phone.  D.B. did
not try to engage Bohanan in conversation about the sexual assault
because she believed that Bohanan would not speak freely in the
presence of his wife. 
          After these attempts, the troopers changed their tactics. 
There were no officers in Lake Minchumina, and D.B. could not stay
in Fairbanks any longer, so the troopers gave D.B. one of their
telephones and a tape recorder.  They told D.B. to take this
equipment home and to try to call Bohanan from Lake Minchumina.  The
troopers also instructed D.B. on how to elicit the kinds of
statements that would be helpful to the case. 
          Later, D.B. contacted the troopers and informed them that
she had been successful in talking to Bohanan about the sexual
assault.  But when D.B. described the conversations with Bohanan,
the troopers learned that D.B.'s husband had also talked to Bohanan
during one of the conversations.  This had not been part of the
troopers' plan, and they had not asked D.B.'s husband to participate
in the electronic monitoring.  Based on this new information, the
troopers applied for another Glass warrant that authorized both D.B.
and her husband to engage in taped conversations with Bohanan.  
          After Bohanan was indicted, he asked the superior court
to suppress all of the Glass warrant tapes because the taping had
been done by civilians rather than by the troopers themselves. 
Bohanan also asked the court to suppress the conversation in which
D.B.'s husband participated before his name was added to the Glass
warrant.  Superior Court Judge pro tempore Jane F. Kauvar denied
these motions, and Bohanan renews his arguments on appeal. 

          Civilian participation in the execution of a Glass warrant
     
          Bohanan argues that only police officers can execute Glass
warrants.  He relies on AS 12.35.120, which defines "search warrant"
as a written order, signed by or at the direction of a judicial
officer, "directed to a peace officer, commanding the peace officer
to search for personal property and bring it before the judge". 
(Alaska Criminal Rule 37(a)(3) also specifies that a search warrant
"shall be directed to a peace officer [and] shall command the
officer to search the person or place named for the property
specified [in the warrant]".)  Bohanan contends that the procedure
used in his case   having D.B. operate the recording equipment by
herself   must be illegal because search warrants are directed to
police officers.  
          Bohanan's argument ignores the Alaska statutes that
authorize police officers to enlist the aid of civilians.  AS
12.25.090 states that "[a] peace officer making an arrest may orally
summon as many persons as the officer considers necessary to aid in
making the arrest."  And AS 12.35.040 declares that an officer "has
the same power and authority ... to call any other person to the
officer's aid" when the officer is executing or serving a search
warrant. [Fn. 4]  Indeed, AS 18.65.100 grants even broader powers
to members of the Alaska State Troopers: 
                     
                    Power to command assistance from others.  
                         The Department of Public Safety and
          members of the state troopers may command the assistance of any
able-bodied person to aid in accomplishing the purposes of AS
18.65.020-18.65.110, and when called, the person, during the time
assistance is required, is considered a member of the state troopers
and subject to AS 18.65.020-18.65.110. 
                    
          The purposes of 18.65.020   110 include "the enforcement of all
criminal laws of the state,[including] obtain[ing] legal evidence".
[Fn. 5]  Thus, both AS 18.65.100 and AS 12.35.040 authorized the
state troopers to enlist civilian aid in executing the Glass warrant
in Bohanan's case. 
          No prior Alaska appellate case has discussed how broad
this statutory authorization might be, but cases from other states
illustrate many recurring situations where civilians do the primary
work in the execution of search warrants.  Medical personnel
actually perform the seizure when a search warrant calls for the
drawing of blood or the examination or sampling of body tissues.
[Fn. 6]  Bank officials and computer operators actually perform the
retrieval and copying when a search warrant calls for production of
financial records. [Fn. 7]  Police often recruit large numbers of
civilians (whether formally deputized or not) to aid in
investigations that require the search of a large area of land or
water. [Fn. 8]  And undercover agents often carry the recorder or
monitoring device and control its operation during the execution of
an electronic monitoring warrant. [Fn. 9]  
          See, generally, Civilian Participation in [the] Execution
of [a] Search Warrant as Affecting [the] Legality of [the] Search,
68 A.L.R.5th 549 (1999); Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (3rd ed. 1996), sec. 4.10(d), Vol.
2,
pp. 676-77.   
          In many jurisdictions, the statute that authorizes
civilian participation in the execution of search warrants expressly
requires that a police officer to whom the warrant is addressed be
present and acting in the execution of the warrant. [Fn. 10]  Our
Alaska statutes contain no such proviso.  Nevertheless, when
civilians aid in the execution of a warrant, there are generally
sound reasons to require the presence or at least the supervision
of one or more police officers.  As the Florida Court of Appeals
noted,
                     
                    Police officers are sworn officers of the law
          who take appropriate oaths to carry out the provisions of the
federal and state constitutions and the laws of the state and
nation.  This oath is of no small moment as a protection to our
citizens when their privacy is lawfully intruded upon by a search
pursuant to a warrant.  [Police officers] are especially charged and
trained to see that the search is carried out properly, lawfully,
and in accord with the provisions of the warrant.  There is no
provision in [our statutes] that would permit this responsibility
to be delegated to an unauthorized person. 
                    
          Morris v. State, 622 So.2d at 69. 
          But the warrant in Bohanan's case was a Glass warrant. 
And execution of a Glass warrant does not raise the same policy
concerns as execution of the usual search warrant.  
          A typical search warrant authorizes physical invasion of
a person's land, or inspection and seizure of a person's property,
or both.  But a Glass warrant does not authorize a trespass to land
or chattels. [Fn. 11]  Rather, a Glass warrant authorizes a
different type of invasion of privacy:  it allows one participant
in a conversation to monitor or record that conversation.  Because
Glass warrants do not involve a person's right to physical privacy,
these warrants do not raise questions as to whether the police (or
their agents) ventured into premises or containers they were not
authorized to enter, or inspected or seized property beyond the
scope of the warrant.  For this reason, it is not so important to
have a police officer physically present during the execution of a
Glass warrant.  (Indeed, the open presence of a police officer would
often defeat the purpose of the Glass warrant, by insuring that
nothing of substance was said.) 
          The decision of the federal district court in United
States v. Gambino [Fn. 12] is instructive on this point.  A federal
judge had issued a warrant authorizing FBI agents to surreptitiously
enter the defendant's premises and install electronic devices to
monitor the defendant's conversations.  Rather than having FBI
agents enter the premises, the FBI enlisted their undercover
informant (who was a trusted confidant of the defendant, and who had
the run of the premises) to install, maintain, and replace these
electronic devices during the course of the investigation.  
          Federal law (18 U.S.C. sec. 3105) authorized police
officers
to enlist the aid of civilians in the execution of search warrants,
but only if an officer was "present and acting in execution [of the
warrant]".  Based on this statute, Gambino argued that the
undercover agent's installation, maintenance, and replacement of the
monitoring devices was illegal, and Gambino's recorded conversations
should be suppressed.  But the district court concluded that,
notwithstanding the statute, the FBI had acted properly when they
relied on their undercover informant to install and maintain the
monitoring devices.  
          The district court recognized that the electronic
monitoring warrant infringed on two distinct privacy interests: 
Gambino's right to physical privacy on the premises where the
monitoring devices were installed, and Gambino's right not to have
his conversations intercepted and recorded. [Fn. 13]  But the court
concluded that neither of these privacy interests was unlawfully
infringed.  
          Gambino's right of physical privacy was not infringed
because, even though the warrant authorized FBI agents to trespass
onto the premises and install the devices, they never did.  Instead,
the FBI relied on the undercover agent to do this   and the
undercover agent had Gambino's permission to enter all areas where
the monitoring devices were installed.  Gambino's right of privacy
in his conversations was infringed, but it was infringed on the
authority of the warrant.  The fact that the undercover informant
(acting at the behest of the FBI) placed and maintained the
monitoring devices authorized by the warrant did not alter the scope
or quality of this invasion of Gambino's privacy. [Fn. 14]  For
these reasons, the federal district court upheld the electronic
monitoring.  
          Bohanan's case is analogous.  He suffered no trespass to
land or property. His privacy was infringed, but only in the way
contemplated by the Glass warrant:  his telephone conversations
relating to this offense were recorded.  Moreover, unlike the
federal statute that confronted the district court in Gambino, AS
12.35.040 and AS 18.65.100 do not explicitly require the state
troopers to be physically present when civilians aid them in
executing a warrant.  And we note that, even though the troopers
were not physically present when D.B. used the recording equipment,
they did supervise her participation in the Glass warrant   not only
by instructing her on the use of the equipment, but also coaching
her as to the kinds of statements that would be helpful to the
investigation, and giving her hints on how to elicit these
statements from Bohanan. 
          We assume that Alaska law requires police officers to
participate or supervise the execution of a search warrant to some
degree, even when they enlist the aid of civilians.  But we agree
with the Supreme Court of Massachusetts that there is a "wide
variety of circumstances in which police may seek civilian
assistance in conducting a warranted search", and "the required
level of [police] supervision varies depending on the
circumstances". [Fn. 15]  In Bohanan's case, even though the
troopers instructed D.B. to take the recording equipment home with
her and engage Bohanan in conversation without the direct
participation of any state trooper, we conclude that the required
level of supervision was met.  

          D.B.'s husband's participation in eliciting and recording
     Bohanan's statements before the troopers obtained a Glass warrant
that specifically authorized the husband's participation

          The foregoing discussion answers Bohanan's challenge to
the taped statements elicited by D.B., as well as the statements
elicited by her husband after the troopers obtained a modified Glass
warrant that specifically authorized him to engage in conversations
with Bohanan.  What remains is Bohanan's challenge to the statements
elicited jointly by D.B. and D.B.'s husband before the husband's
name was added to the Glass warrant. 
          We concede that D.B.'s husband probably intended to
advance the criminal investigation when he elicited the statements
from Bohanan.  But a private citizen does not become a government
agent simply because they conduct a search out of a desire to aid
law enforcement authorities. [Fn. 16] 
          At the hearing on Bohanan's suppression motion, the
troopers testified that they did not ask D.B.'s husband to
participate in executing the Glass warrant, and they were surprised
when they learned what he had done.  As soon as the troopers learned
that D.B.'s husband had joined in one of the taped conversations,
they applied for a modified Glass warrant.  Based on this testimony,
Judge Kauvar could properly find that D.B.'s husband was not working
in conjunction with the troopers when he elicited the challenged
statements from Bohanan   and that the husband's attempt to aid the
execution of the Glass warrant was in the nature of a private
search, not governed by the search and seizure clauses of the
federal and state constitutions.  
          Bohanan argues that, given the circumstances, the troopers
could reasonably expect that D.B.'s husband would try to talk to
Bohanan and would use the recording equipment to tape Bohanan's
statements   and that, therefore, D.B.'s husband should be deemed
a government agent.  This is one possible inference from the
evidence, but Judge Kauvar reached the opposite conclusion.  Bohanan
has not shown that the judge's view of the evidence is clearly
erroneous. [Fn. 17]  
          For these reasons, we conclude that Bohanan's statements
to D.B.'s husband (before his name was added to the warrant) were
admissible.  And, given our previous conclusion that Bohanan's other
taped statements were admissible, we uphold the superior court's
denial of Bohanan's suppression motion. 

          The superior court's decision to allow the State to
     introduce testimony from the victim of a prior sexual assault
committed by Bohanan

          Bohanan's assault on D.B. ended with sexual contact only. 
To prove the charge of attempted first-degree sexual assault, the
State had to establish that Bohanan acted with the intent to engage
in sexual penetration with D.B..  For this purpose, both at grand
jury and at trial, the State offered testimony from B.J., a woman
who was sexually assaulted by Bohanan in 1984.  
          B.J., like D.B., was a woman who became friends with
Bohanan's wife through church activities.  As he did with D.B.,
Bohanan assaulted B.J. in his house when no one else was home.  Like
the assault on D.B., the assault on B.J. began with fondling and
groping.  But B.J. was ill and could not get away from Bohanan;
thus, while D.B. was able to escape outside, B.J. became the victim
of coerced sexual penetration.  
          Bohanan argued that his assault on B.J. was too remote in
time and too dissimilar to the alleged assault on D.B. to be
admissible.  But Judge Kauvar ruled that this evidence was relevant
to establishing Bohanan's intent to engage in sexual penetration
when he assaulted D.B..   At the same time, Judge Kauvar barred the
State from introducing evidence of another assault Bohanan committed
in 1978.  The judge ruled that this 1978 assault was "[so] far back"
that its probative value was outweighed by its potential for unfair
prejudice. 
          On appeal, Bohanan renews his claim that the assault on
B.J. was so dissimilar to the assault on D.B. that it lacked
probative value.  We have just described the circumstances common
to the two assaults.  Given these circumstances, Judge Kauvar did
not abuse her discretion in finding that Bohanan's assault on B.J.
was probative of his intent when he assaulted D.B.. [Fn. 18] 
          Bohanan also renews his claim that the assault on B.J.
happened too long ago to be appreciably relevant.  But the
"remoteness" of a prior crime does not hinge simply on a
chronological calculation.  A trial judge's determination of
"remoteness" also involves a weighing of the circumstances
surrounding the two incidents (the prior one and the charged one),
an identification of the factors common to the two incidents, and
an assessment of whether the probative value of these connecting
factors is likely to appreciably diminish with the elapsed time.
[Fn. 19]  
          In Bohanan's case, Judge Kauvar was clearly aware of the
remoteness issue, and she took the passage of time into account. 
As noted earlier, even though Judge Kauvar allowed the State to
present B.J.'s testimony about the 1984 assault, she at the same
time barred the State from introducing evidence of a 1978 assault. 
Given this record, and given the similarities between the assault
on B.J. and the assault on D.B., Bohanan has not shown that Judge
Kauvar abused her discretion when she allowed the State to present
B.J.'s testimony. [Fn. 20]

          The superior court's denial of Bohanan's motion to dismiss
     the indictment

          Bohanan asserts that his indictment should be dismissed
because it was based on evidence that was illegally obtained   the
recorded statements obtained pursuant to the Glass warrant.  He also
asserts that his indictment should be dismissed because it was based
on evidence that should have been excluded under Evidence Rule
404(b)   B.J.'s testimony concerning the 1984 assault.  Because we
have concluded that all of this testimony was admissible, we also
uphold the indictment. 

          The superior court's limiting instruction regarding B.J.'s
     testimony concerning the prior sexual assault

          As noted above, the superior court ruled that the 1984
assault involving B.J. was admissible because it tended to prove
Bohanan's intent.  Judge Kauvar gave the jury a limiting instruction
concerning this evidence, but in this instruction the judge stated
that the jury might consider the evidence to the extent that it
revealed Bohanan's "intent or motive or plan".  On appeal, Bohanan
asserts that the judge committed error by improperly expanding the
topics for which the jury might use this evidence.
          Bohanan did not object to the judge's limiting instruction
at the time it was given, and he later told Judge Kauvar that he
would not seek another instruction on this issue.  Because of his
failure to object, Bohanan must now show plain error.  With regard
to jury instructions, "plain error" is established if the jury
instruction "obviously creates a high likelihood that the jury will
follow an erroneous theory resulting in a miscarriage of justice."
[Fn. 21] 
          There is no plain error here.  Lawyers might be attuned
to the technical distinctions between "intent", "motive", and "plan"
as those words are used in Alaska Evidence Rule 404(b)(1), but a
jury of lay persons would not.  As these words are used in common
speech, it is almost synonymous to assert that Bohanan's "intent"
or "plan" or "motive" in attacking D.B. was to engage in sexual
penetration with her.  There was essentially no chance that the
court's limiting instruction would induce the jury to use the
evidence of Bohanan's assault on B.J. for an improper purpose.  
          For similar reasons, we reject Bohanan's argument that the
fairness of his trial was prejudiced when the prosecutor, in opening
statement, asserted that B.J.'s testimony was relevant to
establishing Bohanan's "plan and motive". 

          The superior court's denial of Bohanan's request to admit
     D.B.'s prior statement into evidence

          During cross-examination of D.B., Bohanan's attorney
pointed out some inconsistencies between D.B.'s testimony and a
written statement that she had earlier given to the state troopers. 
D.B. admitted these inconsistencies.  Bohanan then asked the
superior court to admit D.B.'s written statement into evidence, so
that the jury could have it when they deliberated.  Judge Kauvar
denied this request. 
          When a witness is confronted with an inconsistent prior
statement and concedes the inconsistencies, the trial judge has
considerable discretion whether to allow the cross-examining party
to introduce extrinsic evidence of the witness's prior statement (in
this case, the writing containing the prior statement). [Fn. 22] 
The primary factor the judge should consider is whether the
extrinsic evidence has "substantial probative value beyond the mere
words recorded on it". [Fn. 23]  In Bohanan's case, the jury was
apprised that D.B. had earlier submitted a written statement to the
troopers, that she had reviewed and corrected this statement,  and
that this statement differed in certain ways from her trial
testimony. 
          Bohanan has not shown how the jury's ability to view the
writing itself  would have aided their deliberations or enhanced
Bohanan's impeachment of D.B. in any substantial way.  We therefore
conclude that Judge Kauvar's ruling was not an abuse of discretion. 


          The faulty jury instruction concerning attempted first-
          degree sexual assault
     
          When Judge Kauvar or her staff typed up the jury
instructions, they made a mistake in the wording of the instruction
concerning the elements of attempted first-degree sexual assault. 
There was no error in defining the elements of the crime; rather,
the error occurred at the end of the instruction: 
                     
                         If you find from your consideration of all
                    the evidence that each of [sic] one of these
                    propositions has been proved beyond a
                    reasonable doubt, then you shall find the
                    defendant guilty. 
                    
                         If you find from your consideration of all
                    the evidence that each of [sic] one of these
                    propositions has not been proved beyond a
                    reasonable doubt, then you shall find the
                    defendant not guilty. 
                    
          (Emphasis added.)  The problem is that the second paragraph should
say "any of these propositions" rather than "each one of these
propositions".  
          The erroneous language is in the "boilerplate" of the
instruction   the part that attorneys and judges are so accustomed
to seeing that they often do not really "see" it.  Neither Bohanan's
attorney nor the State's attorney nor the court discovered this
error.  In fact, when Judge Kauvar read this instruction aloud to
the jury, she did not pay close attention to what was actually
written on the page.  Instead she extemporized, reciting the second
paragraph as it should have been written:  "If, on the other hand,
after considering all the evidence, you find any of the propositions
has not been proved beyond a reasonable doubt, you shall find the
defendant not guilty." 
          On appeal, Bohanan contends that the mistake in this jury
instruction should invalidate his conviction for attempted first-
degree assault.  He notes that the instruction, taken literally,
directed the jury not to acquit Bohanan unless they were convinced
that the State had failed to prove every element of the crime.  But
because Bohanan did not object to this instruction until after the
jury returned its verdicts, Bohanan must demonstrate plain error. 
          Having reviewed the record, we are convinced that if the
jury perceived this problem at all   that is, if they read the last
two paragraphs of the instruction more carefully than the attorneys
and the judge   they must have understood that the wording of this
instruction was an inadvertent mistake.  We reach this conclusion
for several reasons.  
          First, as already noted, Judge Kauvar "read" this
instruction correctly when she instructed the jury orally.  
          Second, the equivalent paragraphs of the second-degree
sexual assault instruction were worded correctly.  That is, the
concluding paragraph of the second-degree sexual assault instruction
told the jury: 
                     
                         If, on the other hand, you find from your
                    consideration of all the evidence that any one
                    of these propositions has not been proved
                    beyond a reasonable doubt, then you shall find
                    the defendant not guilty. 
                    
          It is highly unlikely that the jury would have believed that
different standards of proof governed these two offenses.  
          Third, the jury received general instructions informing
them that the government always bears the burden of proving
allegations of criminal conduct beyond a reasonable doubt, and that
the burden of proof never shifts to the defendant.  In particular,
the jury was told that "the burden is upon the prosecution to prove
every essential element of the crime charged, beyond a reasonable
doubt".  The attorneys' summations emphasized the principle that the
defendant could be convicted only if the government proved every
element beyond a reasonable doubt.  
          Finally, if the jury had interpreted the flawed
instruction literally, and if they had concluded that the State had
failed to prove some (but not all) of the elements of attempted
first-degree sexual assault, they would have been unable to reach
a verdict.  Read literally, the erroneous instruction directed the
jury to convict Bohanan if the State proved all the elements of the
crime, and it directed the jury to acquit Bohanan if the State
failed to prove each and every element of the crime, but it failed
to tell the jury what to do if the State proved some but not all of
the elements.  Thus, if the jury had fallen into the error that
Bohanan now suggests, and if they believed that the State had failed
to prove one or more of the elements of attempted first-degree
sexual assault, then the jury either would have declared themselves
unable to decide this count, or they would have asked the court for
further instruction.  Because they did not, it is a fair inference
that they were not misled by the mistaken wording of the
instruction.  
          For these reasons, we find that the miswording of the
instruction does not constitute plain error.  

          Conclusion
     
          We have considered and rejected each of Bohanan's claims
of error.  Accordingly, the judgement of the superior court is
AFFIRMED. 



                            FOOTNOTES


Footnote 1:

     AS 11.41.420(a). 


Footnote 2:

     AS 11.41.410(a). 


Footnote 3:

     See State v. Glass, 583 P.2d 872 (Alaska 1978), on rehearing,
596 P.2d 10 (Alaska 1979) (holding that the Alaska Constitution
requires police to obtain judicial authorization before
electronically monitoring or recording a person's private
conversations).  


Footnote 4:

     See also AS 12.60.190 (authorizing judges, magistrates, and
police officers to "command the aid of a sufficient number of
persons, armed or otherwise, as may be necessary" to disperse a
riotous assembly); AS 12.70.070 (authorizing police officers to
"command the aid of all peace officers and other persons" to assist
in executing an extradition arrest warrant). 


Footnote 5:

     See AS 18.65.080.  


Footnote 6:

     See Harris v. State, 401 S.E.2d 263, 266 (Ga. 1991) (holding
that a magistrate was empowered to issue a search warrant
authorizing the police to enlist the aid of a dentist in examining
a suspect's teeth in an attempt to match the suspect's dental
structure with bite marks found on the victim).  


Footnote 7:

     See State v. Kern, 914 P.2d 114, 117-18 (Wash. App. 1996)
(upholding the search of bank records when the police officer, who
was unqualified to search the records, allowed disinterested bank
employees to conduct the search authorized by the warrant).  


Footnote 8:

     See Bradford v. State, 361 S.E.2d 838, 839 (Ga. App. 1987)
(even though state law declared that a search warrant must be
directed to peace officers, the court upheld a search of the
defendant's land conducted primarily by private citizens who were
temporarily recruited as "reserve deputies" under the supervision
of regular police officers).  


Footnote 9:

     See United States v. Gambino, 734 F.Supp. 1084, 1090-93
(S.D.N.Y. 1990) (upholding the admissibility of evidence obtained
through electronic monitoring performed by an informant against the
defendant's claim that, under the warrant, only FBI agents were
authorized to install and maintain the devices).  


Footnote 10:

     See, for example, 18 U.S.C. sec. 3105 and Florida Statute
933.08
(quoted in Morris v. State, 622 So.2d 67, 68 (Fla. App. 1993)).  


Footnote 11:

     We previously acknowledged this distinction in Steffensen v.
State, 900 P.2d 735, 742-43 (Alaska App. 1995). 


Footnote 12:

     734 F.Supp. 1084 (S.D.N.Y. 1990). 


Footnote 13:

     See Gambino, 734 F.Supp. at 1093. 


Footnote 14:

     See id. 


Footnote 15:

     Commonwealth v. Sbordone, 678 N.E.2d 1184, 1189 (Mass. 1997). 


Footnote 16:

     See State v. Dold, 722 P.2d 1353, 1355 (Wash. App. 1986); Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
(3rd ed. 1996), sec. 1.8(b), Vol. 1, p. 225 n.46.


Footnote 17:

     See Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991) (an
appellate court is to uphold a trial judge's findings of fact
concerning a suppression motion unless those findings are clearly
erroneous). 


Footnote 18:

     See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) (a trial
judge's evidentiary rulings are to be reversed only if they
constitute an abuse of discretion). 


Footnote 19:

     Compare Demmert v. State, 565 P.2d 155, 158 (Alaska 1977)
(holding that the passage of eight years between the two offenses
"did little to lessen the probative value of the evidence" when both
offenses involved similar sexual acts committed by a mature adult
on a young boy); and Harmon v. State, 908 P.2d 434, 438 (Alaska App.
1995) (holding that, under the circumstances, the passage of twelve
years did not make the defendant's prior sexual assaults too
remote); with Freeman v. State, 486 P.2d 967, 978-79 (Alaska 1971)
(holding that evidence of a prior bad act was inadmissible because
almost twenty years had elapsed between the two offenses and because
the prior offense was of a substantially different nature from the
charged offense). 


Footnote 20:

     See Hawley, 614 P.2d at 1361. 


Footnote 21:

     Aviation Associates, Ltd. v. Temsco Helicopters, Inc., 881 P.2d
1127, 1131 n.7 (Alaska 1994) (quoting Ollice v. Alyeska Pipeline
Service Co., 659 P.2d 1182, 1185 (Alaska 1983)). 


Footnote 22:

     See Nunn v. State, 845 P.2d 435, 440 (Alaska App. 1993) (citing
Patterson v. Cushman, 394 P.2d 657, 661 (Alaska 1964)). 


Footnote 23:

     Nunn, 845 P.2d at 441.