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Braund v. State (11/9/00) ap-1703
Braund v. State (11/9/00) ap-1703
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
CHRIS BRAUND, )
) Court of Appeals No. A-7083
Appellant, ) Trial Court No. 3AN-96-9412 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1703 November 9, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Maria Bahr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, 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.
Chris Braund was charged with fourth-degree controlled
substance misconduct and tampering with physical evidence [Fn. 1]
after police executed a search warrant at his residence and found
two trash bags containing 341 grams (about 12 ounces) of marijuana
roots and stalks. Following a jury trial, Braund was convicted of
both charges. However, we conclude that Braund's convictions must
be reversed because the trial judge improperly prevented Braund from
cross-examining a witness concerning the favorable treatment that
this witness had received from the State.
In addition, it is possible that the evidence against
Braund must be suppressed. The police had a warrant to search
Braund's residence, but they actually conducted two searches. After
the police finished their initial search and left the residence,
they realized that they had not searched the yard behind Braund's
house. They promptly returned to Braund's property, searched the
yard, and discovered the 341 grams of marijuana plants. This
renewed search may have violated the rule that a search warrant
generally authorizes only one intrusion. Because this issue turns
on the specific facts of the case, and because the superior court
did not specifically address this problem, we remand Braund's case
for additional proceedings on this issue.
The denial of Braund's right to cross-examine Johanna
Hoffman
(a) Hoffman's involvement in the case
One of the witnesses against Braund was a woman named
Johanna Hoffman. Hoffman was the one who informed the police that
Braund was growing marijuana.
In the early morning of November 19, 1996, the Alaska
State Troopers received a 911 call from Hoffman. Hoffman was
calling from Braund's house. She told the dispatcher, "This person
has an attitude. Help me. I just want to go home." Hoffman
identified the "person" as Chris Braund. Almost immediately, Braund
got on the phone and complained to the dispatcher about Hoffman's
behavior. Braund told the dispatcher:
[S]he's been drinking all night and ... I just
want her out of here ... . I really don't know what to do: I've
told her [to leave] three times, she's still standing right here.
... I just ... want her to leave my house.
Braund began giving the dispatcher directions to the house
(which was located on an unmarked road off the Seward Highway and
had no address). Then Hoffman got back on the phone. The
dispatcher asked her, "Well, what's going on? ... [H]e just doesn't
want you there anymore?" Hoffman responded, "He's growing pot and
... I just don't want to be here. ... I just want to get back home,
with my parents."
Trooper Joseph Masters arrived at Braund's residence about
forty minutes later. He found Hoffman and Braund standing in the
driveway. Masters interviewed Hoffman in his patrol car. She
repeated her allegation that Braund was growing marijuana in his
house and in an adjacent garage. Masters left Hoffman in the patrol
car and knocked on the door of Braund's residence. He asked Braund
if he was growing marijuana. Braund replied by giving Masters
permission to search his house.
Masters walked through the house with Braund. During this
search, Masters found a twelve-pack of starter marijuana plants on
the floor of a bedroom closet. Only one of the plants was still
living. Trooper Masters asked Braund if the marijuana was for
personal use, and Braund replied that it was. He denied selling
marijuana.
During the search of the rest of the house, Masters found
a "marijuana light" on a kitchen counter. He also observed a locked
door to a room in the basement; Braund explained that a friend of
his was using this room for storage and that he didn't have a key.
Masters observed a rolled-up towel against the bottom of that door.
Lastly, Masters observed that the basement was unusually warm
approximately 85 degrees. Braund explained that he heated the house
from the basement, and that he had cut a hole in the ceiling to
permit the heat to circulate to the upstairs rooms.
Masters issued Braund a citation for sixth-degree
controlled substance misconduct (a class B misdemeanor) for the
small marijuana plant in the closet. [Fn. 2] Masters then returned
to his car and spoke with Hoffman again.
During this second interview, Hoffman claimed that Braund
had shown her marijuana plants in his home earlier in the week. She
said that the plants were being grown inside a locked room in the
basement. She told Masters that, while she was making the 911 call,
she watched Braund going up and down the stairs several times,
taking garbage bags out of the house. She claimed that Braund had
told her the plants were worth roughly $2,000 each, and that he
estimated that he probably had $50-60,000 worth of marijuana. She
also told the trooper that, although there were only five or six
marijuana plants inside Braund's house, there were "a whole bunch"
of plants in the garage adjacent to the house.
Based on Hoffman's statements and Masters's observations,
the troopers obtained the warrant to search Braund's residence.
(b) Braund's proposed cross-examination of Hoffman
Hoffman testified for the state at Braund's trial. Braund
(who represented himself at trial) told Superior Court Judge Larry
D. Card that he wished to cross-examine Hoffman concerning her
recent arrest for possession of a crack pipe. Judge Card told
Braund that he did not believe the criminal charge against Hoffman
was relevant. After discussing the potential relevance of the
proposed cross-examination for several minutes, Judge Card asked the
prosecutor if he knew anything about Hoffman's arrest. The
prosecutor replied that Hoffman indeed had been arrested on February
5, 1998 (five weeks before Braund's trial) and charged with fourth-
degree controlled substance misconduct for possessing a crack pipe.
The prosecutor added that the District Attorney's Office had
declined to prosecute Hoffman's case because "it did not meet [their]
office policy for prosecution of those offenses".
During the ensuing discussion, Judge Card asked Braund if
he believed that Hoffman received a break that "the State did her
a favor and declined [prosecution]" because she was a witness in
Braund's case. Braund replied, "That's exactly it." Judge Card then
ruled that Braund could not ask Hoffman about her favorable
treatment unless he had some independent evidence that the District
Attorney's Office formally gave Hoffman favorable treatment in
exchange for her testimony:
The Court: [Unless] you have a good-faith
basis, you can't just ... ask [Hoffman such questions]. You can ask
the State. They'll tell you one way or the other [whether they gave
Hoffman favorable treatment in exchange for her testimony]. If they
did, you can ask [your proposed] question; [then] that would be very
relevant.
. . .
But you're speculating, sir. I mean, ...
if [the State has] given somebody a break, they'll say, "Look, we
declined this. We didn't want to [pursue the charge] because she's
a potential witness." They'll say that. Often, they'll put [such]
things in writing. So you ask [the prosecutor].
Braund: Okay.
The Court: Come back [if] you have ... a
good-faith basis for asking that question[.]
Braund: Okay.
The Court: If [the prosecutor], as the
State's representative, says "no", [then] the State's bound by that,
and you are [also]. If you later find out that there was a formal
agreement [between the State and Hoffman], then this case is going
to get busted. ... I'll reverse [your conviction] and we'll start
over. ... All right, that's the rul[ing].
The constitution guarantees criminal defendants the right
to confront and cross-examine witnesses. One of the main components
of this guarantee is the right to question a witness's motivation
or bias. [Fn. 3] "The partiality of a witness ... is always
relevant as discrediting the witness and affecting the weight of his
testimony." [Fn. 4] For this reason, a trial judge "must be
particularly solicitous toward cross-examination that is intended
to reveal bias, prejudice, or motive to testify falsely." [Fn. 5]
In Mustafoski v. State [Fn. 6], this court addressed a
situation similar to the one presented in Braund's case. A
government witness had been charged with a felony and then had been
allowed to plead to reduced charges (two misdemeanors). This court
ruled that the defense "was entitled to elicit these facts and argue
that [the witness] might be biased in favor of the State after
receiving a lenient disposition of the charge." [Fn. 7]
As explained above, Judge Card was willing to let Braund
question Hoffman about the favorable resolution of the crack cocaine
charge only if the State conceded that the dismissal of that charge
had been the quid pro quo for Hoffman's testimony against Braund.
This was error.
The State dismissed a felony charge against Hoffman just
before she was to testify against Braund. This sequence of events,
in itself, raised an inference of favoritism. Braund was entitled
to present the facts and ask the jury to draw the inference. If the
State wished to prove that the District Attorney's Office was simply
following established policy and that no favoritism was involved,
the State was free to present witnesses on this issue. But it was
error to prohibit Braund from cross-examining Hoffman on this issue
unless the government explicitly conceded the existence of the deal
that Braund was trying to prove.
Moreover, as this court noted in Wood v. State, "the test
is the witness' expectation or hope of a reward, not the actuality
of a promise by the State." [Fn. 8] Even if there was no formal
agreement between Hoffman and the State, Hoffman might have
subjectively believed that her willingness to testify against Braund
was the reason the State chose to dismiss her possession-of-cocaine
charge. Conceivably, Hoffman might also have believed that the
felony charge could be revived if she did not continue to cooperate.
Braund should have been allowed to cross-examine Hoffman concerning
these potential grounds of bias.
The State argues that even if Braund's right of cross-
examination was unlawfully abridged, this error was harmless.
Because we are dealing with constitutional error, it is the State's
burden to show that the error was harmless beyond a reasonable
doubt. [Fn. 9] In Braund's case, we can not say that the unlawful
restriction on cross-examination was harmless.
Braund was convicted of possessing marijuana for purposes
of delivery. The State correctly points out that the physical
evidence against Braund was derived from the search of his
residence. But, as explained above, that search yielded only one
small live plant from Braund's house and, in the yard, discarded
marijuana plants that weighed about 12 ounces (including roots and
stalks). On the issue of whether Braund's marijuana was for
personal use or commercial purposes, this physical evidence left the
matter debatable.
But Johanna Hoffman testified that Braund had 20 marijuana
plants growing inside the house and more than 100 plants in the
adjacent building. According to Hoffman, Braund bragged that "he
probably [had] $50-60,000 worth of plants". Hoffman's testimony was
among the State's strongest evidence that Braund was growing
marijuana for commercial purposes. We therefore conclude that the
restriction on Braund's right to cross-examine Hoffman was not
harmless. Braund's conviction must be reversed.
The sufficiency of the search warrant application, and the
sufficiency of the evidence at trial
Although we are reversing Braund's conviction, we must
address three other issues that he raises. Two of these issues
involve the sufficiency of the evidence to support the search
warrant and the sufficiency of the evidence to support Braund's
conviction.
First, Braund contends that the search warrant issued for
his residence should be thrown out because, when the troopers
applied for the warrant, they misstated some pertinent facts and
failed to mention others. Braund also contends that the troopers
failed to present sufficient corroboration of Hoffman's credibility
to satisfy the Aguilar - Spinelli test. [Fn. 10] We agree with the
State that Braund failed to preserve these issues in the trial
court.
Next, Braund argues that the State's evidence at trial was
insufficient to support his convictions. Braund's argument depends
on viewing the evidence in the light most favorable to himself. But
we are obliged to view the evidence in the light most favorable to
upholding the jury's verdicts. [Fn. 11] Viewing the evidence in
that light, we conclude that the evidence supports Braund's
convictions.
The debatable second search of Braund's property
The final issue we must address is the legality of the
second search of Braund's property. As explained above, the police
had a warrant to search Braund's residence (his house, a neighboring
apartment, plus the adjacent garage) and Braund's vehicle for
evidence of a marijuana-growing operation. The problem in this case
arises because the troopers entered Braund's premises twice when
they executed this warrant.
(a) Facts of the two searches
When the troopers began their initial search, Braund gave
them a key to a locked basement room, and then he left the premises.
The troopers had the place to themselves.
Inside the locked basement room, the troopers found an
apparatus that might have been used for track lighting. They also
found wooden boards with water stains, and a stand that might have
been used for a fan. A nearby closet yielded lights, heat
reflectors and empty planting pots. The troopers' search of the
rest of Braund's house revealed a triple-beam scale, some dried
marijuana in a tin in the kitchen, some marijuana seeds and pipes,
and a book described as a "marijuana grower's handbook". But neither
the house nor the nearby buildings contained any marijuana plants.
The troopers concluded their search at 9:50 a.m..
The search team left Braund's property and re-assembled
at a nearby gas station on the Seward Highway. As they discussed
the search, the lead trooper, Sergeant Franco D'Angelo, realized
that no one had searched the grounds behind Braund's house.
D'Angelo also realized that he had forgotten to leave Braund a copy
of the inventory of items seized. So D'Angelo returned to Braund's
residence to search the grounds and to leave a copy of the
inventory.
At the bottom of the hill behind Braund's house, D'Angelo
found and seized two trash bags containing dirt, roots, and stalks
of several marijuana plants, and some reflective Mylar material.
The total weight of the seized plants (after processing) was 341
grams slightly more than 12 ounces. Two of Braund's fingerprints
were later found on the bags.
(b) The "one warrant, one search" rule, and the
federal authority that rejects this rule
Braund challenges the troopers' second entry onto his
land. He asserts that, once the troopers decided that their search
was complete, and once they voluntarily ceased their search and left
his premises, they had no authority to return unless they obtained
another warrant.
Braund's argument is based on the majority rule in this
country that "a warrant may be executed only once". [Fn. 12] Under
this rule, if the police execute a warrant, perform a search, and
then leave, they may not return to search again unless they have
secured another warrant [Fn. 13] or unless the search is authorized
by some exception to the warrant requirement. [Fn. 14] The
rationale for the "one warrant, one search" rule was explained by
the Tennessee Supreme Court in McDonald v. State: if the law
allowed the police to repeatedly enter and search a residence or
business at will until the warrant expired, the warrant "could become
a means of tyrannical oppression in the hands of an unscrupulous
officer". [Fn. 15]
Professor LaFave gives an example of the operation of this
rule:
[W]here the police unsuccessfully searched
premises for a gun and departed[,] but then returned an hour later
and searched further because in the interim an informant told the
police of the precise location of the gun, the second search could
not be justified as an additional search under the authority of the
warrant.
Wayne R. LaFave, Search and Seizure (3rd ed., 1996), sec. 4.10(d),
Vol.
2, p. 679.
There is, however, a (short) line of federal cases
rejecting the majority rule and adopting the contrary rule that a
search warrant remains active until it expires, no matter how many
times it has been executed. The first in this series of cases was
the Sixth Circuit's decision in United States v. Bowling. [Fn. 16]
In Bowling, the court declared that even though a search warrant had
been served the previous day, this fact "did not vitiate its powers
[on] the following morning" because, under applicable state law, the
warrant did not expire for another seven days. [Fn. 17] The Bowling
court provided no authority for this statement, and the court did
not acknowledge the majority rule to the contrary. Nevertheless,
the Eighth Circuit has followed Bowling's suggestion that a search
warrant can be repeatedly executed until it expires. [Fn. 18]
In Braund's case, we need not definitively decide which
of these rules to follow. The State concedes that the normal rule
is "one warrant, one search", and the State does not ask us to adopt
the Bowling rule. Moreover, as explained in the next section, even
though Judge Card upheld the second entry onto Braund's land, he
implicitly assumed that a search warrant normally authorizes only
one search. We therefore confine our discussion to the "one warrant,
one search" rule, and how this rule might apply to Braund's case.
(c) The exceptions that some courts have recognized
to the "one warrant, one search" rule
As we have explained, the majority rule is that the police
may perform only one search per warrant. Yet, sometimes, even those
courts which adhere to the "one warrant, one search" rule will uphold
a second or renewed search under the same warrant. The facts of
these cases vary widely, and it is difficult to educe one rule of
decision that adequately explains them all. But, speaking
generally, these courts have upheld a second search if there was an
articulable reason why the subsequent search should be viewed as a
continuation of, or a necessary follow-up to, the first search.
For instance, in People v. Schuldt [Fn. 19], the police
searched an apartment, seized several items, and placed them in
evidence bags, but then they inadvertently left some of these items
behind when they departed. A few hours later, after trying
unsuccessfully to contact the owner of the apartment and get his
permission to return, the police broke into the apartment to
retrieve these items. The Illinois court held that this second
entry to regain control of the evidence was authorized by the search
warrant. [Fn. 20]
Similarly, in Commonwealth v. Baldwin [Fn. 21], the police
executed a warrant at an auto shop to search for stolen vehicles.
The officers wrote down the vehicle identification numbers of the
cars in the shop, and they checked these numbers on their computer,
but none of the vehicles appeared to be stolen. Later, the police
realized that they had not performed the computer check correctly,
so they ran the VINs again. According to the new computer check,
one of the vehicles they had seen was reported stolen. The officers
returned to the auto shop the next day and asked to see this
particular vehicle, but now it was missing. Two of the auto shop
employees suggested that the car must have been stolen from the shop
overnight. The police officers were skeptical of this explanation.
They undertook a more rigorous search of vehicles, parts, and
paperwork thereby uncovering more stolen vehicles. [Fn. 22]
The Massachusetts court upheld this second search on two
alternative grounds. The court noted that a state statute
authorized certain public officials (and police officers at their
direction) to examine the inventory and paperwork of any used car
dealer (apparently, for evidence of trafficking in stolen vehicles).
[Fn. 23] But the court also held that the second search was
authorized by the search warrant that had initially been served the
day before. [Fn. 24]
In United States v. Huslage [Fn. 25], the police used a
flashlight to search an automobile at 4:00 in the morning, just one
hour before their warrant was to expire. They were looking for a
pistol, which they did not find. But one of the officers involved
in the case was insistent that there had been a pistol in the car
earlier. So later in the morning at around 10:00 the officers
looked again. This time, they found the pistol concealed behind an
interior panel. [Fn. 26] The court upheld the second search as a
continuation of the first, a continuation that was needed so that
the police could search the car in daylight. [Fn. 27]
(d) Judge Card's ruling that D'Angelo's second entry
onto Braund's property was merely a continuation of the initial
search, and why we reject that ruling
Judge Card adopted a similar approach in Braund's case.
The judge ruled that Sergeant D'Angelo's return to the premises was
not a second search, but merely a continuation of the initial
search. He found that D'Angelo had a valid purpose for re-entering
the premises: the officer had forgotten to leave Braund an
inventory of the property seized during the search. (The law
requires the police to give a copy of this inventory to the property
owner. [Fn. 28]) Judge Card concluded that, because D'Angelo had
not yet completed his duties with respect to serving the warrant,
D'Angelo was authorized to return to Braund's premises and, once
there, he could continue the search.
We acknowledge that it seemingly makes sense to allow
police officers to return to re-enter the property if they have
inadvertently left items of evidence behind or, as in Braund's case,
if they have inadvertently failed to perform a task that is part of
their legal duty when serving a search warrant. Nevertheless, we
are hesitant to fully endorse this approach, at least at this time.
There are two potential problems with such a rule.
First, with regard to the specific facts of Braund's case
the troopers' failure to leave a copy of the inventory it seems
counter-intuitive to authorize the troopers to commit a second
trespass onto Braund's land so that they can perform a task that the
law requires for Braund's benefit. A property owner is entitled to
an inventory so that they can ascertain what has been taken from
them during a search. [Fn. 29] But the law also requires the police
to file the same inventory with the court that issued the search
warrant. [Fn. 30] Because a property owner can obtain a copy of
the inventory from the court, there seems to be little justification
for authorizing the police to re-enter the property without the
property owner's consent, or even against the property owner's will,
to remedy their failure to leave a copy of the inventory on the
premises. It would seem more consistent with a property owner's
rights to make the police contact the owner and either mail the
inventory to them or seek their permission to return to the
premises.
Second, if we ruled that a second, non-consensual entry
is always allowed whenever the police leave an item of evidence
behind or whenever they fail to leave a copy of the inventory at the
residence, police officers might soon discover a substantial
benefit in "inadvertently" doing these things. Because of this act
of "inadvertence", they could perform a surprise second search when
they went back to rectify their "error".
But we need not decide this issue in Braund's case. For
even if we assume that D'Angelo was authorized to re-enter Braund's
property to leave a copy of the inventory, this does not mean that
D'Angelo could initiate a search of the back yard. Judge Card found
that D'Angelo's renewed intrusion onto Braund's land was justified
because the officer had yet to fulfill a particular warrant-related
task. This being so, the scope of D'Angelo's renewed intrusion
would be limited by the rationale that brought him back to Braund's
residence.
D'Angelo returned to leave a copy of the inventory inside
Braund's front door. To accomplish this task, D'Angelo had no need
and therefore no authority under a "one warrant, one search" rule
to walk around to the back of the house and search Braund's yard
for additional evidence of marijuana cultivation. Thus, even if we
assume that D'Angelo was authorized to commit a second trespass onto
Braund's land in order to leave a copy of the inventory (i.e., to
fulfill his administrative duties under AS 12.35.020(b) and Alaska
Criminal Rule 37(b)), this second authorized trespass was
necessarily of limited scope, and D'Angelo exceeded that scope. The
search of Braund's back yard can not be upheld on this basis.
(e) The State's alternative rationale
Because the troopers' duty to leave a copy of the
inventory at Braund's house did not justify the entry into Braund's
back yard, the State must provide an alternative rationale for that
search. The State suggests one. The State argues that the
inventory issue is ultimately irrelevant because, even without
reference to the inventory, the troopers' return and their search
of Braund's yard should be deemed merely a continuation of the
initial intrusion authorized by the warrant.
The State points out that the scope of the second search
was consistent with the search originally authorized by the warrant,
and that the items seized were the types of property covered by the
warrant. The State also points out that the troopers came back to
Braund's property only a few minutes after they quitted it. The
State argues that this short interval was not significant enough to
constitute a new invasion of Braund's privacy rights, especially
given the fact that the sole occupant of the residence, Braund, was
not home. The State also notes that the troopers simply searched
a portion of the premises that they had been authorized to search
and had inadvertently overlooked. Thus, the State concludes, the
troopers worked no constitutional harm when they returned.
To answer the State's argument, we must address two
questions: Should Alaska adopt the "one warrant, one search" rule?
And, assuming that we do adopt this majority rule, what is the
precise meaning of "one search"?
We have several reasons for declining to answer these
questions at this time. First, neither party has directly addressed
the question of whether the "one warrant, one search" rule is
preferable to the Bowling rule. (The State has argued Braund's case
under the assumption that the "one warrant, one search" rule
controls.) Second, as explained above, Judge Card decided Braund's
suppression motion on a different ground: he upheld the search
because D'Angelo, by failing to leave a copy of the inventory, had
not yet completed the execution of the warrant. Having adopted this
rationale, Judge Card did not have to address the harder issues
posed by the State's alternative argument that two police entries
onto a person's property should be deemed a single search if the two
entries are performed close in time and are motivated by the same
purpose. Finally, Braund represented himself at trial; because of
this, we can not be sure that the legal complexities of these issues
were adequately aired when Judge Card was asked to make his
decision. Now Braund is represented by the Public Defender Agency.
For these reasons, and because we have ruled that Braund
is entitled to a new trial in any event (because he was denied his
right to cross-examine Johanna Hoffman), we conclude that the best
and most prudent course is to allow the parties to re-litigate the
legality of the second search when Braund's case returns to the
superior court.
Conclusion
Because Braund was denied his right to cross-examine a
government witness concerning her potential bias, we REVERSE
Braund's convictions.
Further, the superior court's decision upholding the
troopers' search of Braund's back yard is VACATED. If the State
chooses to re-prosecute Braund, the superior court is directed to
reconsider this issue in light of the cases we have discussed in
this opinion (as well as any others the parties may find).
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(2) and AS 11.56.610(a)(1), respectively.
Footnote 2:
This charge was apparently dropped.
Footnote 3:
See Davis v. Alaska, 415 U.S. 308, 316-18; 94 S.Ct. 1105,
1110-11; 39 L.Ed.2d 347 (1974); Johnson v. State, 889 P.2d 1076,
1080 (Alaska App. 1995); Wood v. State, 837 P.2d 743, 745-47
(Alaska App. 1992).
Footnote 4:
Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110 (quoting
John Wigmore, Evidence in Trials at Common Law (Chadbourn rev.
1970), sec. 940, Vol. 3A, p. 775).
Footnote 5:
Wood v. State, 837 P.2d 743, 745 (Alaska App. 1992).
Footnote 6:
954 P.2d 1042 (Alaska App. 1998).
Footnote 7:
Id. at 1047.
Footnote 8:
837 P.2d 743, 747 (Alaska App. 1992).
Footnote 9:
See Chapman v. California, 386 U.S. 18, 23; 87 S.Ct. 824, 828;
17 L.Ed.2d 705 (1967); Love v. State, 457 P.2d 622, 631 (Alaska
1969).
Footnote 10:
See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d
723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,
21 L.Ed.2d 637 (1969). And see State v. Jones, 706 P.2d 317, 324-25
(Alaska 1985) (holding that, as a matter of state law, the Aguilar -
Spinelli test continues to govern the evaluation of hearsay
information offered to support a search or seizure).
Footnote 11:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);
Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
Footnote 12:
Wayne R. LaFave, Search and Seizure (3rd ed., 1996), sec.
4.10(d),
Vol. 2, p. 679. See State v. Pi¤a, 383 P.2d 167 (Ariz. 1963),
overruled on other grounds, Yuma County Attorney v. McGuire, 532
P.2d 157 (Ariz. 1975); Delaney v. State, 218 S.E.2d 318 (Ga. App.
1975); State v. Parsons, 200 A.2d 340 (N.J. App. 1964); McDonald v.
State, 259 S.W.2d 524 (Tenn. 1953).
Footnote 13:
See LaFave, sec. 4.10(d), Vol. 2, p. 679.
Footnote 14:
See State v. Trujillo, 624 P.2d 44, 48 (N.M. 1981) (upholding
a second search when that search was justified by exigent
circumstances); United States v. Gagnon, 635 F.2d 766, 768-69 (10th
Cir. 1980) (Federal agents served a search warrant and found a huge
quantity of marijuana, too big to carry away without special
transport; the court ruled that the agents could lawfully remain on
the property overnight to secure the marijuana. The court noted
that the agents slept in their vehicles and did not interfere with
the property owner's use of the property except to the extent needed
to safeguard the contraband.).
Footnote 15:
259 S.W.2d at 525.
Footnote 16:
351 F.2d 236 (6th Cir. 1965).
Footnote 17:
Id. at 241.
Footnote 18:
See United States v. Carter, 854 F.2d 1102, 1107 (8th Cir.
1988).
Footnote 19:
577 N.E.2d 870 (Ill. App. 1991).
Footnote 20:
See id. at 875.
Footnote 21:
416 N.E.2d 544 (Mass. App. 1981).
Footnote 22:
See id. at 546-47.
Footnote 23:
See id. at 549-551 and at 546 n.1 (quoting the pertinent
statute).
Footnote 24:
See id. at 549-550.
Footnote 25:
480 F.Supp. 870 (W.D. Pa. 1979).
Footnote 26:
See id. at 874-75.
Footnote 27:
See id.
Footnote 28:
See AS 12.35.025(b) and Alaska Criminal Rule 37(b).
Footnote 29:
"Notice that property has been seized pursuant to a search
warrant is intended to protect the possessor's rights in relation
to the seized property. The notice enables the person to protect
possessory interests in the property; it also helps assure that the
government will not put the property to improper or unfair use."
Steffensen v. State, 900 P.2d 735, 742 (Alaska App. 1995).
Footnote 30:
See AS 12.35.020(c)-(d) and Alaska Criminal Rule 37(b).
