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Lewis v. State (9/29/00) ap-1689
Lewis v. State (9/29/00) ap-1689
NOTICE: The text of this opinion can be corrected
before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SHERMAN R. LEWIS, )
) Court of Appeals No. A-7176
Appellant, ) Trial Court No. 3AN-S96-9756CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1689 - September 29, 2000]
Appellee. )
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Maria Bahr, Assistant Public
Defender, Anchorage, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. John A. Scukanec, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Facts and Proceedings.
Police officers searched Sherman R. Lewis' home and car
under the authority of search warrants which authorized the police
to search for evidence of taking a moose illegally and wanton waste
of the moose. [Fn. 1] In executing the search warrant, the police
found evidence which resulted in Lewis' indictment for several
felony drug crimes. When Lewis moved to suppress, Superior Court
Judge Milton M. Souter found that the evidence which the police
presented to the magistrate was insufficient to establish probable
cause to believe that evidence of the game violations would be
found at Lewis' residence. But he concluded that there was an
independent basis for upholding the warrant: that the affidavit
established probable cause to believe that Lewis had violated a
condition of his probation by possessing a firearm and that
evidence of this offense would be found at Lewis' residence. Lewis
argues that Judge Souter erred in reaching this decision. But we
uphold the decision.
Fish and Wildlife Trooper Danny Sides submitted the
affidavit in support of the search warrant. The following facts
are taken from the affidavit. Trooper Sides was investigating the
illegal killing of a moose in the Point McKenzie area. On December
10, 1996, at 4:30 p.m., Trooper Sides interviewed Kenneth Webeck
who told Trooper Sides that he saw a man illegally shoot and kill
a bull moose in the Point McKenzie area. Webeck stated that the
suspect had fired six to eight shots from an "assault" style rifle.
The suspect was driving an older model Yamaha snow machine with a
single headlight. He was accompanied by another rider who also had
a snow machine with a single headlight. Neither man made any
attempt to salvage the meat or antlers from the dead animal.
Webeck stated he had picked up a spent cartridge from the scene
which he gave Trooper Sides. Trooper Sides described the casing as
a "point 30 cal. military, 7.62 NATO ([c]ivilian version is .308
cal.) round with 'CAVIM 92' stamped on the bottom of the brass."
Twenty minutes later, Trooper Sides contacted two
suspects about one mile from the illegal moose kill. Trooper
Sides examined the men's hunting licenses and tags. One of the men
was Sherman R. Lewis, Jr. and the other man was Robert L. Lemoine.
Trooper Sides saw Lewis place an assault style rifle in a rifle
case. When he was talking with Lewis, Trooper Sides saw Lewis drop
a cartridge on the ground. Trooper Sides picked up the cartridge
and saw that it had "CAVIM 92" stamped on the bottom. Sides stated
that Lewis was riding on an older model Yamaha snow machine with a
single headlight and that Lemoine also had a snow machine with a
single headlight. Sides also obtained the license number of the
blue Ford Bronco which the men were driving and using to pull a
trailer with the snow machines.
Trooper Sides then visited the site where the bull moose
had been killed that morning. Sides described the moose as an
illegal bull which had been killed by several rounds from a small
caliber rifle.
The next day, Sides learned from computer records that
Lewis had "a [f]elony conviction involving weapons." The records
directed any law enforcement officer who had contact with Lewis to
contact his probation officer. Trooper Sides contacted John
Baiamonte, Lewis' probation officer. Baiamonte told Sides that
Lewis was not allowed to be in possession of a firearm. He gave
Sides Lewis' address. Fish and Wildlife Aide Larson went to the
address and found the blue Ford Bronco and two snow machines.
Trooper Sides presented his affidavit to the magistrate
to obtain a search warrant for evidence of the crimes of illegally
taking a bull moose and wanton waste of the game. The magistrate
issued a warrant authorizing the police to search Lewis' residence
for evidence of these crimes. The warrant authorized the police to
search for evidence of the game violations, including the assault
style rifle and 7.62 caliber NATO military style ammunition with
"CAVIM 92" stamped on the base of the bullet.
Based on comments made by Lewis' probation officer,
Trooper Sides had reason to believe that Lewis was a heroin dealer.
The warrants were executed on December 13, 1996 by Trooper Sides
and six to eight other law enforcement officers. Probation Officer
Baiamonte participated in the search. Trooper Sides knocked on
Lewis' door and announced himself three times. He received no
response, but heard scrambling noises inside. The officers then
kicked the door in. The time between the first knock and the
forced entry was about one minute. Upon entry, State Trooper
Nashalook heard the toilet flush on the second level of the house.
He ran upstairs and found Lewis sitting on the toilet with his
shorts pulled up. Trooper Nashalook looked into the toilet bowl
and saw a white substance dissolving rapidly. The trooper got a cup
and scooped the white substance out of the toilet. He conducted a
field test on the substance, which tested positive for cocaine.
Troopers then obtained an additional warrant to search for evidence
of a drug violation.
A jury found Sherman R. Lewis guilty of misconduct
involving a controlled substance in the third degree, [Fn. 2] a
class B felony; misconduct involving a controlled substance in the
fourth degree, [Fn. 3] a class C felony; three counts of misconduct
involving weapons in the second degree (possession of a firearm
during a felony drug offense), [Fn. 4] class B felonies; and
tampering with physical evidence, [Fn. 5] a class C felony. In
addition, Lewis pled no contest to two counts of misconduct
involving weapons in the third degree (felon in possession), [Fn.
6] class C felonies. Judge Souter imposed a composite sentence of
18 years to serve.
Omissions and Misstatements in Original
Affidavit.
Lewis first contends that Judge Souter erred in denying
his motion to suppress the evidence which the police obtained from
the search of his residence and car. In his motion, Lewis
contended that Trooper Sides' affidavit contained material
misstatements and omissions and did not establish probable cause to
search for evidence of the game violations. He also contended that
the police illegally exceeded the scope of the warrant when they
obtained the cocaine from the toilet bowl. Following an
evidentiary hearing at which Trooper Sides testified, Judge Souter
issued a decision. Judge Souter first relied on State v. Malkin.
[Fn. 7] Malkin sets up a framework for evaluating the validity of
a search warrant that is based, in part, on intentional, reckless,
or negligent misstatements. First, the defendant must point out
statements that are false. [Fn. 8] Once the defendant has made
this showing, the burden shifts to the state to show that the
statement was not intentionally or recklessly made. [Fn. 9] If the
statement was intentionally made, then the search warrant is
invalidated. [Fn. 10] If the statement was recklessly made, then
that statement is excised and the remainder of the affidavit is
evaluated for probable cause. [Fn. 11] If the statement was made
negligently, then it is not excised. [Fn. 12] The Malkin analysis
also applies to omissions in search warrant affidavits:
[O]nce a misstatement or omission is
established, the burden of proving that it was neither reckless nor
intentional shifts to the state. A failure to meet this burden
will vitiate the warrant if the misstatement or omission is
material, that is, if deletion of the misstated information from or
inclusion of the omitted information in the original affidavit
would have precluded a finding of probable cause. A non-material
omission or misstatement - one on which probable cause does not
hinge - requires suppression only when the court finds "a
deliberate attempt to mislead [the magistrate]." [Fn. 13]
Judge Souter applied this analysis and found that the
state had not presented sufficient evidence to show that several
omissions of "highly material facts" in Trooper Sides' affidavit
were not reckless. Two of the omissions which Judge Souter
considered bear comment. First, Judge Souter found that Trooper
Sides recklessly omitted the fact that witness Webeck saw the moose
shooting at 10:30 a.m. - six hours before Sides had contact with
Lewis. This omission was material because, based on the affidavit,
which lacked an explanation of when Webeck saw the shooting and
when Sides encountered Lewis, the magistrate would have the
impression that the events were virtually contemporaneous. This
would make it more likely that Lewis was the person who shot the
moose. Therefore, the evidence of the six-hour time gap was
material exculpatory evidence.
Judge Souter also found that Trooper Sides recklessly
omitted a conflict between Webeck's description of the color of the
shooter's snow machine and the color of the snow machines Lewis and
Lemoine were driving. Sides testified at the hearing that Webeck
told him that he saw the shooter riding a snow machine with a white
cowling. Sides testified that he saw Lewis and Lemoine load blue
or dark-colored snow machines on to their trailer. Sides omitted
these descriptions of the snow machines from his affidavit. The
information appears to be material since it would shed doubt on the
conclusion that the snow machines that Lewis and Lemoine rode were
the machines Webeck had seen the moose shooters riding. Judge
Souter's determination that the trooper's omission of this material
from the affidavit was reckless is not clearly erroneous.
From the information in the search warrant affidavit,
when it is modified by the material omissions which Judge Souter
found should be added to the affidavit, we conclude, as did Judge
Souter, that the affidavit in support of the search warrant did not
establish probable cause that Lewis was the person who committed
the game violation and therefore that evidence of that offense
would be found at his residence. There is nothing in the affidavit
which would establish, and it is far from obvious to us, that the
ammunition which Lewis possessed was unusual. The fact that Lewis
was in the general area of the moose kill with a partner on snow
machines with an assault style rifle several hours after the
violations does not appear to be sufficient, when coupled with the
other information in the affidavit, to establish probable cause.
Probable Cause to Search Lewis' Residence and
Vehicle for Evidence of a Probation Violation.
We now turn to Judge Souter's findings that the affidavit
established probable cause to search for evidence of a probation
violation. Judge Souter concluded that there was no "requirement
that probable cause be limited to the charged crime or a crime
specified in the warrant or in the magistrate's statement of
probable cause. In essence, there is no Fourth Amendment
requirement that the crime under investigation be specified."
Judge Souter relied on three cases, two from Illinois and one from
Connecticut. [Fn. 14] These cases stand for the proposition that
even if the warrant does not state the crime under investigation or
improperly states the crime under investigation, the warrant will
still be upheld if it establishes probable cause to search a
particular place for the evidence named in the warrant.
It does seem clear that the warrant established probable
cause that Lewis was in violation of his conditions of probation by
possessing the assault rifle. Trooper Sides knew that Lewis had a
"felony conviction involving weapons." Lewis' probation officer
told Sides that Lewis was not allowed to be in possession of a
firearm. It is a reasonable inference from this information that
Lewis' conditions of probation provided that he was not to be in
possession of any firearm and that he had violated that condition
of probation. Therefore, within the affidavit, the magistrate had
information which established probable cause to search for the
assault rifle and the ammunition as evidence of the probation
violation, and probable cause to believe that this evidence would
be found at Lewis' residence.
Lewis argues that even if this is so, the police did not
seek the warrant to look for evidence of a probation violation and
the magistrate did not grant it on that ground. But the United
States and Alaska Constitutions state merely that "[n]o warrant
shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized." [Fn. 15] The literal
language of the United States and Alaska Constitutions requires
only that the warrant establish probable cause to search, and
describe the place to be searched and the thing to be seized. In
the present case, the warrant did establish probable cause to
search Lewis' residence and vehicle for the assault rifle,
ammunition, and other evidence of Lewis' probation violation. The
fact that the magistrate and the police may have believed that
these items were also evidence of Lewis' game violation does not
appear to us to be controlling.
Two principles lead us to conclude that the better course
of action is to uphold the warrant. The first principle is that an
appellate court may uphold a trial court's decision on any basis
existing on the record, even though it is different from the reason
relied upon by the trial court. [Fn. 16] Applying this principle
to the magistrate's decision to issue the warrant, it seems
reasonable to uphold the magistrate's decision because, even if the
warrant did not establish probable cause to search for evidence of
the Fish and Game violation, it did establish probable cause to
search for the rifle and the ammunition as evidence of the
probation violation.
The second principle is that when the police conduct a
search without a warrant, we do not look to what the police
subjectively believed was the justification for their conduct; we
look to determine whether the information which the police had
objectively supported the search. [Fn. 17] If the search is
objectively justified, it is immaterial whether the police stated
the correct reason for their search. Certainly, we want to
encourage the police to seek search warrants whenever possible
rather than to conduct searches without warrants. It would be
inconsistent to uphold a warrantless search which is objectively
reasonable but to condemn a search with a warrant when the
information presented in support of the warrant objectively
justifies the search for items specifically listed in the warrant.
[Fn. 18]
A case which illustrates this principle is State v.
Green. [Fn. 19] In Green, the defendant's girlfriend, with whom he
lived, disappeared. The police wanted to search Green's house for
information which might lead to an explanation of her
disappearance. The reviewing court ignored the police's belief
that they were searching, not for evidence of a crime, but to help
explain the girlfriend's disappearance. The appellate court
concluded that the warrant contained a sufficient factual basis
from which the magistrate could have found that the girlfriend's
disappearance had resulted from criminal activity and that a
reasonable person could infer that evidence of the activity would
be found at Green's residence. Therefore, in upholding the
warrant, the court looked to the objective information supporting
the warrant. Similarly, in the present case, where the information
supporting the warrant authorized the police to search for evidence
named in the warrant (the assault rifle and ammunition), we should
uphold the search.
We therefore agree with Judge Souter that the affidavit
in support of the warrant established probable cause to believe
that Lewis had violated a condition of his probation by possessing
the assault rifle and that evidence of this probation violation
would be found in Lewis' car or home. We accordingly uphold Judge
Souter's decision.
Items for which Police Had Authority to
Search.
The next question we must answer is whether the
affidavit, as so interpreted, established probable cause to search
for and seize the specific items listed in the warrant. [Fn. 20]
We conclude that it did. The original warrant authorized the
police to seize the assault rifle, ammunition, clothing, hunting
license, and other evidence connected to Lewis' hunting activities
on December 10, 1996. All of these items were also evidence that
Lewis was in possession of and was using firearms in violation of
his conditions of probation on that date. In addition, the
affidavit establishes probable cause to believe that all of these
items would be found at Lewis' residence. We conclude that the
warrant, as we have interpreted it, validly authorized the police
to seize all the specific items listed in the warrant.
Execution of Warrant.
Lewis contends that the service of the search warrant was
merely a subterfuge to conduct a search of Lewis' home to search
for evidence of a drug offense. He also argues that the search
exceeded the scope of the warrant because the police searched for
drugs, not the items named in the warrant.
Judge Souter found "that the evidence does not support
the conclusion that the first search was a pretext to justify the
second search. The evidence at most demonstrates that the officers
strongly suspected that they would discover drugs and related
paraphernalia in the defendant's apartment." He found that "the
drugs were found in plain view in the defendant's apartment during
the officers' valid search of the defendant's apartment pursuant to
the initial warrant[.]"
The police had a warrant which, as we interpret it,
authorized them to search for evidence of Lewis' probation
violation for possessing a firearm. As noted, the police had
authority to search for the assault rifle, the ammunition, and
other items listed in the original warrant. The fact that the
police had information that Lewis was a drug dealer and that they
might find evidence of drug offenses at his residence did not
affect the police authority to search under the warrant. For
instance, in State v. Davenport, [Fn. 21] the police had probable
cause to believe that Davenport had stolen handguns at his
residence. The police were also informed that they might find furs
which were proceeds from a burglary. An informant told the police
that he had seen Davenport place the furs in an attic. The police
obtained a warrant to search for the guns and, during the search,
searched the attic, finding the furs. The police did not find any
handguns, but seized the furs. [Fn. 22] Davenport argued that the
police's seizure of the furs was illegal because the police had
engaged in a pretext, searching for the furs instead of for the
guns. The supreme court rejected this contention.
Davenport's argument is that since the
police had reason to believe they might find the furs in the attic,
the search lacked good faith. There is no evidence in the record
to suggest that the search for the guns was a pretext to conduct a
search for the furs. The search for the handguns was undertaken
pursuant to a valid warrant and conducted within the scope of the
objectives of that warrant. The warrant was not employed as a
means for exercising a general search. There was no evidence
produced to suggest that the search would have been less extensive
or in any way conducted differently had the police not received
information relating to the furs. We cannot agree that simply
because the police had reason to believe that they might find
certain furs in the course of their search, that the search was
therefore tainted with bad faith. The underlying basis for the
intrusion into the Davenport home was legitimate, and the search
was conducted in a lawful manner. Thus, we conclude that the
search was conducted in good faith. [Fn. 23]
Similarly, in the present case, the police had a warrant
which, as we have construed it, authorized them to search for
evidence of Lewis' probation violation. The fact that the police
believed that they might find evidence of a drug offense does not
affect the validity of the warrant as long as the police confined
their search to the scope of the warrant as we have construed it -
that is, limited their search to areas where one might reasonably
expect to find firearms, ammunition, or other evidence of the
probation violation listed in the warrant.
Lewis argues that the police, who were executing a
warrant to search for evidence of a probation violation, exceeded
the scope of their authority by rushing upstairs and seizing the
cocaine from the toilet. He argues that the police were really
searching for drugs rather than for the evidence which the warrant
authorized them to search for, evidence of the probation violation.
In his treatise on search and seizure, Professor LaFave describes
the rule that courts apply when the police seize items which are
not named in the warrant under authority of the plain view
doctrine. [Fn. 24] He states that if the police find items when
they are looking in places where items authorized by the warrant
could be located before they have discovered the items authorized
by the warrant, then the discovery of the items was authorized by
plain view.
If the items were discovered before those to
which the warrant was properly addressed were found and while the
police were looking in places where the latter objects could be
located, then it may be said that the discovery occurred while
executing the lawful portion of the warrant. [Fn. 25]
In Lewis' case, the police knew that they were entering
a home in which they were expecting to find guns and drugs. Once
Lewis did not open the door and the police heard scrambling noises
inside, it was appropriate for them to enter the residence forcibly
and locate Lewis to insure that he did not offer armed resistance.
When Lewis, after running upstairs, attempted to flush the toilet,
it was reasonable for the police to conclude that Lewis was
attempting to dispose of evidence that police had authority to
search for and seize under the warrant; for instance, small items
like ammunition or a hunting license. When Trooper Nashalook saw
the cocaine in plain view in the toilet, he was authorized to seize
it. Consequently, we conclude that Judge Souter did not err in
finding that the police seizure of the cocaine, which was in plain
view when Trooper Nashalook looked in the toilet, did not exceed
the scope of the warrant.
Criminal Rule 45.
Lewis argues that Judge Souter erred in failing to
dismiss his case under Criminal Rule 45, the Speedy Trial Rule. He
first contends that Judge Souter erred by tolling the period from
June 26, 1997 to July 21, 1997. At a pretrial hearing held on June
26, 1997, Lewis' counsel requested a continuance and Lewis executed
a written waiver of Criminal Rule 45 from August 11, 1997, when his
case was set for trial, until October 6, 1997. Lewis wrote the
word "pressure" on the waiver. Later, Lewis wrote to Judge Souter
asking for a hearing to explain why he signed the waiver. At a
hearing on July 21, 1997, Lewis told Judge Souter that he had not
wanted the continuance. Judge Souter concluded that the Criminal
Rule 45 waiver was invalid. But, relying on State v. Jeske, [Fn.
26] he concluded that the time period from June 26, 1997 until
July 21, 1997 was excluded from Criminal Rule 45. Lewis argues
that this was error. But Jeske holds that:
When a defendant asserts that he or she never
consented to a continuance obtained or stipulated to by defense
counsel, Rule 45 remains tolled until the judge makes an
affirmative finding that the defendant did not consent to the
previously ordered continuance. [Fn. 27]
Therefore, Judge Souter did not err in excluding the time period.
Lewis points out that, even under Judge Souter's
calculations, his trial was held two days over the 120-day limit.
Judge Souter started his Criminal Rule 45 calculations on December
24, 1996. But on February 13, 1997, Lewis requested a change of
plea hearing. Judge Andrews conducted this change of plea hearing
on March 24, 1997. At this hearing, Lewis stated that he did not
change his plea; instead he had questions and did not wish to plead
no contest at that time.
In Mustafoski v. State, [Fn. 28] this court addressed the
issue of Rule 45 calculations in a situation where a defendant
announces an intention to change his plea, then renews his
intention to go to trial. In Mustafoski, this court held that the
Rule 45 clock is restarted at Day 1 when a defendant withdraws a
formally entered plea or announces that he no longer intends to
change his plea. [Fn. 29]
Based on this court's holding in Mustafoski, Judge Souter
should have established March 24, 1997 as Day 1 in his Rule 45
calculation. Taking this correction into account, a total of 108
days would have counted toward Rule 45 as of November 17, 1997,
when Judge Souter issued his ruling on Lewis' Rule 45 motion. The
trial commenced on December 1, 1997. The days between November 17,
1997 and December 1, 1997 were tolled as a result of the
defendant's motion to suppress. [Fn. 30] We therefore conclude
that Criminal Rule 45 was not violated.
Possession of Firearm During Felony Drug
Offense.
Lewis argues that we must reverse his convictions for
possession of a firearm during the commission of a felony drug
offense (AS 11.61.195(a)(1)). In Collins v. State, [Fn. 31] we
held "that AS 11.61.195(a)(1) requires proof of a nexus between a
defendant's possession of a firearm and the defendant's commission
of the felony drug offense." In Collins, we found plain error
because "the indictment returned against Collins did not allege
this element of the offense and the jury at Collins' trial made no
finding with respect to this element." [Fn. 32] The state asks us
to reconsider Collins, but we reaffirm that decision. The state
also argues that the state presented sufficient evidence to prove
a nexus between the drugs and the two handguns which were found in
Lewis' residence. But, as we stated in Collins, since the state
never presented evidence of this element of the offense to the
grand jury and the trial jury never was asked to evaluate this
evidence at trial, there is no basis to sustain the convictions.
We accordingly REVERSE Lewis' indictment and convictions for
possession of a firearm during a felony drug offense. [Fn. 33]
Lewis' convictions for possession of a firearm during a
felony drug offense are REVERSED. In all other respects, his
convictions are AFFIRMED.
FOOTNOTES
Footnote 1:
5 AAC 85.045(a) (hunting season and bag limits for moose);
AS 16.30.010 (wanton waste of big game animals and wild fowl).
Footnote 2:
AS 11.71.030(a)(2).
Footnote 3:
AS 11.71.040(a)(2).
Footnote 4:
AS 11.61.195(a)(1).
Footnote 5:
AS 11.56.610(a)(1).
Footnote 6:
AS 11.61.200(a)(1).
Footnote 7:
722 P.2d 943 (Alaska 1986).
Footnote 8:
Id. at 946.
Footnote 9:
Id.
Footnote 10:
Id. at 946 n.6.
Footnote 11:
Id. at 946.
Footnote 12:
Id. at 946-47.
Footnote 13:
Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993) (quoting
Malkin, 722 P.2d at 946 n.6) (remaining citations omitted)
(emphasis added).
Footnote 14:
State v. Vincent, 640 A.2d 94 (Conn. 1994); State v.
Casillo, 425 N.E.2d 1379 (Ill. App. Ct. 1981); People v. Hanei, 403
N.E.2d 16 (Ill. App. Ct. 1980).
Footnote 15:
U.S. Const. amend. IV; Alaska Const., art. I, sec. 14.
Footnote 16:
See Romann v. State, Dept. of Transp. and Public
Facilities, 991 P.2d 186, 190 n.10 (Alaska 1999); DeNardo v. GCI
Communication Corp., 983 P.2d 1288, 1290 (Alaska 1999).
Footnote 17:
See Snider v. State, 958 P.2d 1114, 1118 (Alaska App. 1998)
(officer stated he arrested defendant on weapons charge, but
officers objectively had sufficient evidence to conduct a
warrantless search for drug evidence); Beauvois v. State, 837 P.2d
1118, 1121-22 n.1 (Alaska App. 1992) (officer's subjective intent
in stopping the vehicle is irrelevant; "[T]he test is whether,
under the facts known to the police officer, the stop . . . was
objectively justified."); State v. Kendall, 794 P.2d 114, 117
(Alaska App. 1990) ("trial court should analyze the objective
information which the police had at the time when they made an
arrest in determining whether there was probable cause to make that
arrest"); see also 2 Wayne R. LaFave, Search and Seizure sec. 3.2
(b)
at 33-37 (3d ed. 1996).
Footnote 18:
See 5 Wayne R. LaFave, Search and Seizure sec. 11.7(c) at
410-15 (3d ed. 1996) (discussing appellate review of probable cause
determination).
Footnote 19:
540 N.W.2d 649 (Iowa 1995).
Footnote 20:
See 2 Wayne R. LaFave, Search and Seizure sec. 4.6(f) at
580-83 (3d ed. 1996).
Footnote 21:
510 P.2d 78, 86 (Alaska 1973).
Footnote 22:
Id. at 81.
Footnote 23:
Id. at 86.
Footnote 24:
See 5 Wayne R. LaFave, Search and Seizure sec. 4.6(f), at
582
(3d. ed. 1996) (footnotes omitted).
Footnote 25:
Id.
Footnote 26:
823 P.2d 6 (Alaska App. 1991).
Footnote 27:
Id. at 10 (footnote omitted).
Footnote 28:
954 P.2d 1042 (Alaska App. 1998).
Footnote 29:
Id. at 1044.
Footnote 30:
See Alaska Criminal Rule 45(d)(1) (excluded periods).
Footnote 31:
977 P.2d 741 (Alaska App. 1999).
Footnote 32:
Id. at 753.
Footnote 33:
Lewis argues that his sentence is excessive. But because
we have reversed his convictions for possession of a firearm during
a felony drug offense, we accordingly decline to address Lewis'
sentencing issues at this time.
