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Haskins v Municipality of Anchorage (05/04/2001) ap-1738
Haskins v Municipality of Anchorage (05/04/2001) ap-1738
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
MICHAEL W. HASKINS, )
) Court of Appeals No. A-7435
Appellant, ) Trial Court No. 3AN-99-668 Cr
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1738 May 4, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, James N. Wanamaker, Judge.
Appearances: Robin L. Koutchak, Anchorage, for
Appellant. Carmen E. ClarkWeeks and John E. McConnaughy, III,
Assistant Municipal Prosecutors, and Mary K. Hughes and William A.
Greene, Municipal Attorneys, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
On the evening of January 22, 1999, two Anchorage police
officers were on their way home at the end of their shift when they
heard their dispatcher report a hit-and-run. The two officers were
close to the location of the accident, so they drove to the scene.
When they arrived to investigate, witnesses told one of the officers
that the suspect vehicle, a Chevrolet Suburban, had just pulled into
a driveway.
The officers discovered that this was the driveway of
Michael W. Haskins's house. When the two officers knocked on the
door of the Haskins residence, they were met by his wife. One of
the officers, James Triplett, had attended high school with Ms.
Haskins. Triplett told her about the hit-and-run, and he asked her
if she had been driving the Suburban. Ms. Haskins told Triplett
that she had not been driving, but she indicated that her husband
had just arrived home.
Triplett then asked if he and his fellow officer could
talk to Haskins. Ms. Haskins told the officers to come into the
entryway of their split-level home. She said that her husband was
downstairs, and she started down the stairs. Triplett and his
fellow officer followed her. The officers found Haskins in a
downstairs bedroom. Based on Haskins's statements to the officers,
based on Haskins's physical condition, and based also on the
officers' observations of Haskins's vehicle, the officers arrested
Haskins and charged him with driving while intoxicated.
Haskins asked the district court to suppress all of the
Municipality's evidence stemming from the officers' entry into his
home. Haskins conceded that his wife had invited the officers
inside, but he claimed that the officers exceeded the scope of that
consent by coming downstairs. District Court Judge James N.
Wanamaker held an evidentiary hearing into this matter, and he
ultimately denied the suppression motion. Haskins then entered a
Cooksey plea [Fn. 1], reserving the right to pursue the suppression
issue on appeal.
When we conducted our initial review of this case, we
realized that Judge Wanamaker had failed to resolve a material
conflict in the testimony. As already explained, Haskins conceded
that his wife gave the officers permission to enter the front door.
The Municipality argued that Ms. Haskins then implicitly invited the
officers to follow her downstairs by turning around, proceeding
down the stairs, and allowing the officers to follow her, knowing
that they had come to interview her husband. But in her testimony,
Ms. Haskins declared that she expressly told the officers to wait
in the entryway while she went to get her husband.
Because we believed that proper resolution of the
suppression motion might turn on this disputed factual issue, we
directed Judge Wanamaker to make supplemental findings. See
Criminal Rule 12(d). [Fn. 2]
In his supplemental findings, Judge Wanamaker found that
Ms. Haskins invited the two officers to come through the door and
into the entryway, out of the cold, but then she directed them to
go upstairs while she went downstairs to fetch her husband. Judge
Wanamaker concluded that, although the officers initially began to
go upstairs, they then "reversed their course and came back down to
the landing and [then] followed Mrs. Haskins into the basement."
Judge Wanamaker concluded that the two officers "realized
[that they] were not invited into the basement", but they decided
to go downstairs anyway so that they could keep an eye on Ms.
Haskins (and ultimately, Haskins himself) as a safety precaution.
The judge further found that the officers positioned themselves far
enough behind Ms. Haskins that she was not aware that they were
following her as she descended the stairs.
Based on Judge Wanamaker's supplemental findings, we
conclude that the officers' entry into the basement of the Haskins
residence can not be justified as a consensual search. Even though
Ms. Haskins knew that the police had come to speak to her husband,
she only gave the officers permission to come in and wait while she
fetched him. That limited consent constituted the boundary of the
officers' freedom within the house. According to Judge Wanamaker's
supplemental findings, Ms. Haskins did not give the officers
permission to follow her into the interior spaces of the residence
or to otherwise roam the house in search of her husband. The fact
that Ms. Haskins failed to protest when the officers ignored her
wishes and followed her into the downstairs portion of the house
does not constitute the affirmative act of consent that the Fourth
Amendment requires. [Fn. 3]
In its supplemental brief, the Municipality contends that
the officers' warrantless intrusion into the residence can be
justified on the ground of officer safety. The Municipality argues
that once the officers were invited into the house, they were
justified in following Ms. Haskins in order to maintain surveillance
of her and of her husband indeed, surveillance of all areas of
the house from which the officers might be attacked. The
Municipality urges us to remand this case to Judge Wanamaker yet
again, so that the judge can make findings on the question of
whether the officers' intrusion might be justified as a protective
search.
We refuse the Municipality's request for another remand
because we are convinced that, as a matter of law, the facts of this
case would not support a protective search. We rejected essentially
the same argument in Taylor v. State. [Fn. 4]
In Taylor, two police officers were investigating an armed
robbery. Their suspect was named Ernest Taylor. The officers
identified a house where Taylor might be hiding, and they knocked
on the door. When a man answered, the officers announced themselves
and asked the man who he was. The man identified himself as David
Taylor. When the officers asked David Taylor for identification,
he replied that his identification was in the bedroom. As David
Taylor started to go to the bedroom, the officers asked if they
could come in. Taylor said yes. The two officers entered the
apartment, but then one of them followed David Taylor down the hall
to the back bedroom. As the officer followed David Taylor down the
hall, he observed Ernest Taylor attempting to hide in another
bedroom. Ernest Taylor was then arrested, and incriminating
evidence was found in his possession. [Fn. 5]
The trial judge concluded that, while David Taylor might
have consented to the officers' entry into the apartment, the State
had failed to prove that David Taylor consented to having one of the
officers follow him to the bedroom. Thus, the trial judge
concluded, that intrusion could not be justified under a consent
theory. However, the trial judge upheld the legality of the
intrusion under the rationale of officer protection. The judge
ruled that it was reasonable for the officers to protect themselves
by having one of them follow David Taylor down the hall, since the
officers had reason to believe that Taylor might be sheltering (or
might be the accomplice of) Ernest Taylor, a suspected armed robber.
[Fn. 6]
We rejected this rationale and held that the facts of the
case could not support a search for protective purposes:
[While w]e conclude that the facts here
present a close case, we do not find that the objective facts known
to the police were sufficient to justify the police intrusion into
the home. Police frequently are called upon to go to residences
that may harbor people who are suspected of serious crimes. We
believe that the fourth amendment allows entry into a residence on
the basis of a protective search only under compelling circum-
stances. Since an argument can frequently be made that[,] when the
police are investigating a serious crime, exigent circumstances
exist which would allow them to follow a suspect into his home in
order to protect themselves, it follows that only in the most
serious situations can we allow this justification to be used. See
e.g. Gallmeyer v. State, 640 P.2d 837 (Alaska App. 1982). To rule
otherwise would seriously compromise the special protection which
the home has been afforded under the fourth amendment of the United
States Constitution and under the Alaska Constitution. We therefore
reject the argument that the protective search exception justifies
the entry into the residence and the act of following David Taylor
to his bedroom.
Taylor, 642 P.2d at 1382 (footnote omitted).
The facts of Haskins's case are even less supportive of
a protective search than the facts of Taylor. In Taylor, at least,
the police could justifiably say that their suspect was believed to
be armed and dangerous. The Municipality makes no such claim here,
nor would the record support such a claim. Rather, the Municipality
broadly argues that whenever the police obtain permission to step
inside a residence to investigate a crime or question a suspect,
they are entitled to make a sweep of the house for their own
protection. We rejected this argument in Taylor, and we re-affirm
that decision here.
Under the Municipality's proposed rule, all homeowners who
consent to have a police officer enter their front door would
effectively be consenting to a search of every room in their home.
As we stated in Taylor, such a rule "would seriously compromise the
special protection which the home has been afforded under ... the
United States Constitution and under the Alaska Constitution." [Fn.
7] Although a warrantless protective search may sometimes be
justified, we will uphold such a search "only in the most serious
situations". [Fn. 8] Haskins's case does not present one of those
situations.
We therefore reject the Municipality's proposal to remand
this case to Judge Wanamaker for a ruling on whether the officers'
actions might be justified as a protective search. Under the facts
of this case, we rule as a matter of law that the officers' actions
can not be justified under this rationale.
Because the officers did not have consent to enter the
downstairs area of the Haskins residence, and because their entry
can not be justified as a protective search, the officers violated
Haskins's rights under the search and seizure clauses of the federal
and state constitutions, and the district court should have
suppressed all evidence arising from that violation.
When Haskins entered his Cooksey plea, the Municipality
agreed that the DWI charge against him would have to be dismissed
if Haskins showed that he was entitled to suppression of this
evidence. Accordingly, the judgement of the district court is
REVERSED.
FOOTNOTES
Footnote 1:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 2:
The relevant portion of Rule 12(d) states, "[When] factual
issues are involved in determining a motion to suppress evidence,
the court shall state its essential findings on the record."
Footnote 3:
See Schaffer v. State, 988 P.2d 610, 615-16 (Alaska App. 1999)
(even a person's express assent to a search may not be the
affirmative, voluntary consent required by the Fourth Amendment).
Footnote 4:
642 P.2d 1378 (Alaska App. 1982).
Footnote 5:
See id. at 1380.
Footnote 6:
See id. at 1381.
Footnote 7:
Id. at 1382.
Footnote 8:
Id.
