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State v. Koen (05/27/2005) ap-1984
State v. Koen (05/27/2005) ap-1984
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
STATE OF ALASKA, )
) Court of Appeals No.
A-8864
Petitioner, )
Trial Court No. 3HO-04-077 Cr
)
v. )
) O P I N
I O N
DAVID KOEN SR., )
)
Respondent. )
[No. 1984 May 27, 2005]
)
Petition for Review from the Superior Court,
Third Judicial District, Kenai, Harold M.
Brown, Judge.
Appearances: W. H. Hawley Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Petitioner. Kathleen A. Murphy,
Assistant Public Defender, and Barbara K.
Brink, Public Defender, Anchorage, for the
Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
The Alaska State Troopers received a report that David
Koen Sr. had child pornography on his computer. Possession of
child pornography is a criminal offense under AS 11.61.127(a).
Based on this report, a state trooper applied for (and obtained)
a warrant to search [the] 1st residence on [the] left of
Greentimbers Drive [in] Homer, Alaska. However, the search
warrant application did not explain how the house at this
location was connected to the reported crime, or why the troopers
believed that this house contained evidence of Koens possession
of child pornography. Superior Court Judge Harold M. Brown ruled
that this omission was a fatal flaw in the warrant application,
and that the evidence obtained under the warrant must be
suppressed.
A warrant application must explain why there is reason
to believe that the evidence being sought will be found at the
specified premises to be searched. The warrant application in
this case does not contain the required explanation. The warrant
application does not identify the house on Greentimbers Drive as
Koens residence, nor does the application indicate in any other
way why the troopers believed that this house contained the
evidence they were seeking. In addition, even if one could infer
that the troopers believed that Koen lived at the Greentimbers
Drive address, the warrant application fails to explain the basis
for this belief.
We therefore affirm the decision of the superior court.
The content of the search warrant application
The affidavit submitted by Trooper Ryan
Browning stated that Sara McLeod came to the Homer
state trooper post to report that David Koen Sr. had
child pornography in his possession. McLeod told
Trooper Browning that she had been at Koens residence
and had used Koens computer to check her e-mail. While
using Koens computer, McLeod discovered that the
computer contained digital photographs depicting
adolescent children engaged in sexual acts.
Sara McLeod also told Trooper Browning that
her husband, Michael McLeod, was a friend of Koens.
According to Sara, Koen told Michael that he had been
viewing and storing child pornography on his computer.
About one hour later, Trooper Browning
interviewed Michael McLeod by telephone. Michael said
that, approximately one week before, he had been at
Koens residence and had seen Koen surfing the Internet
for child pornography. Michael also said that he had
seen Koen looking at child pornography on his computer.
Michael McLeod also told Trooper Browning
about an earlier episode in which his wife Sara was
checking her e-mail on Koens computer although it is
difficult to tell, from Brownings affidavit, whether
Michael was referring to the same incident that Sara
had described. According to Michael, Sara told him
that she was using Koens computer to check her e-mail a
few weeks ago and that, while using the computer, she
opened a minimized folder and saw pornographic
photographs of children. However, in contrast to Saras
description of adolescent children engaged in sex acts,
Michael stated that Sara told him that the children
depicted in the photographs were approximately one year
old.
Finally, Michael McLeod told Trooper Browning
that Koen had confided to him that he was sexually
abusing his own adolescent daughter, and that he had
videotaped an act of sexual abuse when she was eight
years old.
The search warrant
Based on the warrant application we have just
described, Magistrate David Landry issued a warrant
authorizing the troopers to search the premises known
as [the] 1st residence on [the] left of Greentimbers
Drive [in] Homer, Alaska.
(According to the zip code look-up feature on
the United States Postal Services web site, and
according to the MapQuest web site, there is no
Greentimbers Drive in Homer, Alaska. There is,
however, a street named Green Timbers Road.1)
The flaw in the warrant
As can be seen, the warrant application makes
no mention of the first residence on the left of
Greentimbers Drive in Homer, Alaska. Trooper Brownings
affidavit contains sufficient information to support a
search for, and a search of, the computers at David
Koens residence, but the affidavit gives no information
as to where that residence might be located.
Of course, one can readily infer that Trooper
Browning did not pick this building at random.
Potentially, Sara McLeod might have identified this
location as Koens residence when she spoke to Browning
at the trooper post. Alternatively, Michael McLeod
might have identified this location as Koens residence
when he spoke to Browning on the telephone later in the
afternoon. A third possibility is that, following his
conversations with the two McLeods, Trooper Browning
consulted a telephone directory or other city directory
to ascertain the location of Koens residence.
But there are other possibilities as well.
The McLeods might have told Browning that Koen, fearing
a police investigation, had moved his computer out of
his residence to another location to a business
office, or to the house of a friend or relative and
that this new hiding place was located on Greentimbers
Drive. Or the McLeods might have told Browning that
they had stolen Koens computer to prevent him from
destroying the pornographic images, and that Koens
computer was now located at their residence on
Greentimbers Drive.
The point is that the warrant application
contains no explanation of how Trooper Browning or
Magistrate Landry concluded that the first house on
the left of Greentimbers Drive was the proper place to
search for evidence of Koens crime.
The State points out that courts are to
construe search warrant affidavits in a common-sense
and realistic fashion,2 and that a court must read the
affidavit as a whole, rather than parsing it into
isolated bits and pieces of information.3 The State
asserts that, reading the affidavit in this case as a
whole, it is reasonable to infer (1) that Trooper
Browning must have thought that the house on
Greentimbers Drive was Koens residence, and (2) that
Browning must have had a good reason for thinking so
either because one or both of the McLeods told him, or
because his own independent investigation revealed that
this was where Koen lived.
We agree with the State that these are
reasonable inferences. But this does not mean that the
affidavit is legally sufficient to support the warrant.
Magistrate Landry might well have inferred that
Browning had some good reason to believe that the house
on Greentimbers Drive was Koens residence, but the
Constitution required Browning to explain this reason
so that Magistrate Landry could independently evaluate
it.
Even though Trooper Browning may have had a
valid and adequate reason to believe that the house on
Greentimbers Drive was Koens residence (and that,
therefore, the child pornography images would be found
there), the law requires that the factual basis for his
belief be set forth in the warrant application itself.
As the United States Supreme Court stated in Whiteley
v. Warden, Wyoming State Penitentiary, [An]
insufficient affidavit cannot be rehabilitated by
testimony concerning information possessed by the
[officer] when he sought the warrant but not disclosed
to the issuing magistrate.4
We applied this constitutional principle in
State v. White, 707 P.2d 271 (Alaska App. 1985). The
defendant in White was suspected of burglarizing a
residence, stealing money from inside the house, and
sexually assaulting one of the occupants.5 The police
applied for a warrant to search Whites apartment
Apartment 21-D, Kennedy Camp for evidence of these
crimes. Even though this Court concluded that the
police had probable cause to arrest White for these
crimes at the time they applied for this warrant,6 we
nevertheless invalidated the warrant because the
testimony given in support of the warrant application
did not contain an explanation of why the police
identified 21-D Kennedy Camp as the place to be
searched.
We acknowledged that the police had good
reason for naming that apartment as the place to be
searched. The record showed that, earlier, the police
had interviewed White, and he had told them his
address.7 Moreover, the officer who applied for the
warrant actually informed the magistrate that 21-D
Kennedy Camp was the place where White lived. The
trouble was that this conversation occurred off-record;
the officer never repeated this statement while he was
under oath, giving testimony in support of the
warrant.8
We held that the warrant application could
not be supplemented by statements that the officer made
off-record.9 And, because the only assertion of a
connection between White and the apartment at 21-D
Kennedy Camp occurred off-record, we invalidated the
warrant.10
In some respects, the facts of White might be
considered more favorable to the State than the facts
of Koens case. In White, the police officer at least
explained to the magistrate why they wished to search
the identified premises (albeit in an off-record
conversation). In Koens case, on the other hand, the
magistrate was left to speculate that the house on
Greentimbers Drive must be Koens residence, and then to
speculate as to the troopers basis for identifying this
house as Koens residence.
Even though search warrant applications are
to be evaluated in a common-sense manner, a warrant
application must explain how the police identified the
named premises as a location where the sought-for
evidence was likely to be found. We are not alone in
construing the Fourth Amendment to require this level
of particularity.
In United States v. Hove,11 the police
suspected that Kimberly Hove was sending threatening
letters to her former husband. These letters were
composed by cutting words out of magazines and then
pasting them on paper, but the envelopes in which the
letters were sent were typed on a typewriter, and the
typewriter had malfunctioning keys.12 The police
applied for a search warrant for Hoves residence,
setting out reasons why they suspected that Hove was
the author of the threatening letters. But the warrant
application never asserted a connection between Hove
and the premises that the police proposed to search.13
The Ninth Circuit concluded that this was a fatal
defect in the warrant.14 In fact, the Ninth Circuit
held that this defect was so blatant that the
government could not rely on the good faith exception
to uphold the search.15
Similarly, in Braxton v. State,16 the
affidavit in support of the search warrant set forth
probable cause to believe that the defendant had
committed a robbery, and the affidavit further asserted
that people who commit armed robberies commonly store
the fruits of the robbery, and the weapons used in the
robbery, in their homes.17 The warrant application
named the premises at 4310 Seminole Avenue, Apartment
203, as the place to be searched.18
A detective had obtained the Seminole Avenue
address by checking the defendants arrest record for
his home address.19 But the search warrant affidavit
failed to explain this. In fact, the affidavit failed
even to assert that the apartment on Seminole Avenue
was the defendants residence, much less explain why the
police believed that this was the defendants
residence.20
The Maryland Court of Special Appeals held
that this was a fatal flaw in the search warrant
application:
In construing the affidavit here, the
issuing judge first had to infer that the
targeted premises was [the defendants]
residence, based on the street address on the
face of the affidavit, coupled with the
general assertion that criminals typically
store fruits and instrumentalities of crime
in their residences. Yet the affidavit
contained absolutely no clue as to why the
police believed [that the defendant] lived at
the particular location identified in the
affidavit and warrant application; [and] the
affidavit failed to provide a factual basis
for the claim that the targeted premises was
the suspects residence. ...
[W]e hold that the mere identification
in the affidavit of [the defendants] address,
without even a single predicate fact showing
the basis for the belief that [the defendant]
resided at that address, did not establish
probable cause to search that location. This
is so even if there was otherwise every
reason to believe that [the defendant]
committed the armed robbery and harbored the
fruits and instrumentalities wherever he may
have lived.
Braxton, 720 A.2d at 42.
Four years later, in Oesby v.
State,21 the Maryland court struck down
another search warrant for the same reason.
The search warrant application in Oesby
established probable cause to believe that
the defendant had committed a sexual assault,
and that evidence of this crime would be
located at his residence. But the warrant
application did not assert or explain the
connection between the defendant and the
specified premises to be searched.22
In State v. Varnado,23 the
Louisiana Supreme Court likewise ruled that a
search warrant was invalid because the
warrant application failed to explain the
connection between the specified premises to
be searched and the crime being investigated.
The search warrant application in
Varnado set forth probable cause to believe
that the defendant had committed rape and
robbery, and the warrant application named
2220 Delery Street as the premises to be
searched. The police had obtained that
address from the defendant at the time of his
arrest, but the warrant application failed to
explain this.24
The Louisiana court acknowledged
that, given the particular offenses alleged
in the search warrant application, it would
be reasonable to infer that evidence of these
crimes would be found at the defendants
residence, and thus [t]he police ... had
probable cause in this case to search the
defendants residence.25 The court concluded,
however, that the police made a critical
omission in the warrant application by
failing to identify the targeted premises as
the defendants residence.26
In People v. Gall,27 the police
applied for a warrant to search the
defendants apartment. The affidavit in
support of the warrant clearly identified the
address of the apartment to be searched, and
the affidavit also clearly asserted that this
apartment was the defendants residence, but
the affidavit did not explain the basis for
the assertion that the identified apartment
was the defendants residence.28 Because the
affidavit was silent regarding this link in
the chain of inferences required for probable
cause to search [that] particular apartment,
the Colorado Supreme Court concluded that the
affidavit probably failed to provide a
substantial basis for the magistrates
issuance of the warrant.29 However, the
Colorado court upheld the admissibility of
the resulting evidence under the good faith
exception recognized in United States v.
Leon.30
See also United States v.
Procopio,31 where the First Circuit
suggested that a warrant application to
search a suspects residence is defective if
nothing in the affidavit establishe[s]
probable cause to believe that [the suspect]
live[s] there.32 (The court did not resolve
this issue because the court concluded that,
even if this omission was a fatal defect, the
warrant was saved by the Leon good faith
exception.)
Based on these cases our own
decision in White, plus the decisions from
other jurisdictions that we have just
discussed we conclude that the search
warrant application in Koens case was
defective. The warrant application did not
identify the house on Greentimbers Drive as
Koens residence, nor did it otherwise explain
any connection between the Greentimbers Drive
premises and the evidence being sought.
Moreover, even if one could infer that the
trooper who applied for the warrant believed
that the house on Greentimbers Drive was
Koens residence, the warrant application does
not explain the basis for the troopers
belief. Because of this, the warrant
application was not sufficient to support a
warrant for a search of the house located on
Greentimbers Drive.
As we mentioned in passing above,
the United States Supreme Court has ruled
that when police officers act in good-faith
and reasonable reliance on a seemingly valid
search warrant, the evidence obtained under
that warrant will be admissible even though
the warrant ultimately proves to be invalid.
United States v. Leon, 468 U.S. 897, 913,
922; 104 S.Ct. 3405, 3415, 3420; 82 L.Ed.2d
677 (1984). However, we have not yet decided
whether to adopt a similar rule as a matter
of state law.33 Moreover, the State does not
assert the good-faith exception in Koens
case.
Conclusion
The judgement of the superior court is
AFFIRMED.
COATS, Chief Judge, dissenting.
The facts of this case are simple. Sarah
McLeod and Michael McLeod were friends of the defendant
David Koen. They both had been in David Koens house
and observed that he had child pornography on his
computer. Koen had told Michael McLeod that he had
been viewing and storing child pornography on his
personal computer and that he had been sexually
molesting his 13-year-old daughter. He had recorded a
video of the molestation when his daughter was 8 years
old.
Trooper Ryan Browning put this information in
an affidavit in support of the search warrant. In the
affidavit, Trooper Browning stated that he had reason
to believe that evidence of child pornography was
located on personal computers and video tapes at the
first residence on the left of Greentimbers Drive at
Homer, Alaska.
The alleged defect in the warrant is that the
warrant does not indicate why Trooper Browning believed
that the evidence would be at the Greentimbers Drive
address. The United States Supreme Court and the
Alaska Supreme Court have both stated that affidavits
submitted in support of the search warrant should be
read as a whole and tested and interpreted in a common
sense and realistic fashion.1 Courts are encouraged to
review warrants charitably to encourage police officers
to obtain a warrant.2 And we are to give the
magistrates determination that probable cause exists
great deference.3
Applying these standards, it is apparent that
the Greentimbers Drive address is Koens residence where
the McLeods saw the child pornography. The McLeods
reported that they saw the evidence of the child
pornography at Koens residence. In the affidavit,
Trooper Browning swears that he believes that evidence
of child pornography is on personal computers and video
tapes at the Greentimbers Drive address. Looking at
the warrant in a common sense manner, it is apparent
that the trooper is asking to search Koens residence
where the McLeods reported seeing the child
pornography.
The short time Trooper Browning used to
obtain the warrant reinforces the inference that the
evidence of the child pornography was present at Koens
residence at Greentimbers Drive, rather than some other
place. Trooper Browning obtained the information about
the child pornography on Koens computer and obtained
the warrant and served it within a few hours on the
same day. Sarah McLeod contacted Trooper Browning at
4:47 p.m. on February 27, 2004. The trooper
interviewed Michael McLeod at 5:43 p.m. that same day.
The magistrate issued the warrant at 6:30 p.m. Trooper
Browning served the warrant at Koens residence at 7:30
p.m.
The next question is how did Trooper Browning
obtain the Greentimbers Drive address. It is obvious
that the McLeods were intimately familiar with this
residence. They were friends of Koen and had recently
been in the residence where they saw the child
pornography. It is logical to conclude that Trooper
Browning was not going to search the wrong place. He
could obtain from the McLeods the location of where
they had observed the pornography. All of this is
apparent from the face of the warrant. These are all
reasonable and common sense inferences which the
magistrate could make. To refuse to allow the
magistrate to make these common sense inferences
appears to me to violate the case law which requires us
to evaluate warrants in a common sense and reasonable
manner.
In reaching a different conclusion, the
majority relies on our former case, State v. White.4
But White is easily distinguishable. White was accused
of various counts of burglary, robbery, kidnapping, and
sexual assault.5 In order to search for evidence of
these offenses the police asked for a warrant to search
21-D Kennedy Camp.6 But the police never set out any
reason in the warrant to connect 21-D Kennedy Camp to
White or to the offense.
There was evidence, off the record, that one
of the police officers had told the magistrate that 21-
D Kennedy Camp was Whites address. (There is no
indication that the police told the magistrate why they
suspected that White lived at that address.) We
affirmed the trial judges decision invalidating the
warrant on several grounds. We upheld the trial judges
conclusion that the police had made misstatements and
omissions on the warrants which were material and
intentional. We found that the trial judges inference
of police misconduct and bad faith made it unnecessary
to decide whether to uphold the warrant under the good
faith exception set out in United States v. Leon.7 We
also noted, with apparent approval, the trial judges
decision that the information which the police
presented in the warrant was insufficient to connect
White to the offense.8
The warrant in White was so flawed that it is
difficult to compare it to the present case. But White
can be cited for the proposition that all of the
information necessary to show probable cause to issue a
search warrant must be contained within the information
officially presented to the magistrate. And, if the
process of obtaining the warrant is as flawed as it was
in White, we will not apply the Leon good faith test.
But Koens case is very different. As I have
tried to illustrate, I do not believe that it is
necessary to go beyond the actual information which was
presented to the magistrate to understand that Trooper
Browning was asking to search Koens residence where the
McLeods had seen the child pornography on the computer.
And it was obvious from the face of the affidavit, that
he knew the address of Koens residence where the
evidence was located.
The majority relies on several cases which
are distinguishable from Koens case.9 In all of these
cases, the police had probable cause to believe that
the defendant committed a crime. The affidavit then
states that the police have reason to believe that
evidence of the crime would be found at a particular
address. The defect in the affidavit is that it does
not establish any connection between the defendant and
the place to be searched. Even in these cases, all of
the courts except one10 allow the police to establish
that they acted in good faith under the doctrine set
out in United States v. Leon.11
Koens case would be similar to these cases if
the police set out probable cause to believe that Koen
committed a crime, such as robbery. And the police had
asked to search the Greentimbers Drive address without
stating what the connection was between the address and
the crime or Koen. The first weakness in the affidavit
would be that it did not set any connection between
Koen and the Greentimbers Drive address. The more
important defect is that the affidavit would not set
out how the police determined that the Greentimbers
Drive address was Koens residence. In cases where the
police have probable cause to believe that a defendant
has committed a crime, determining where the defendant
resides can be a problem. Many people do not have
residences that can easily be determined. And, if the
police searched the wrong residence, someones right to
privacy would be seriously violated. However, none of
these factors are present in Koens case.
The McLeods knew that Koen possessed child
pornography at Koens residence because they were in the
residence when they saw the evidence. It appears clear
to me that the police knew the location of the
residence because the McLeods communicated this
information to them. They were simply going to search
the residence where the McLeods had seen the evidence.
Koens case is simply not like the cases relied on by
the majority, where the police have probable cause to
believe that the defendant committed a crime and then
state a particular place that they want to search
without making any connection between the defendant and
the place to be searched. And even in those cases,
where the defects in the warrant appear to be much more
egregious, the courts have not suppressed the evidence,
but allowed the police to establish that they acted in
good faith under United States v. Leon.
I conclude that it was reasonable for the
magistrate to determine that the affidavit in support
of the search warrant set out probable cause to believe
that evidence of child pornography would be found at
the Greentimbers Drive residence. I accordingly
dissent from the majority decision suppressing the
evidence which was seized from Koens residence.
_______________________________
1See http://zip4.usps.com/zip4/welcome.jsp and
http://www.mapquest.com/maps/main.adp (both last visited on
May 4, 2005).
2State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973),
quoting United States v. Ventresca, 380 U.S. 102, 108; 85
S.Ct. 741, 745; 13 L.Ed.2d 684 (1965).
3Massachusetts v. Upton, 466 U.S. 727, 732; 104 S.Ct. 2085,
2088; 80 L.Ed.2d 721 (1984).
4401 U.S. 560, 565 n. 8; 91 S.Ct. 1031, 1035 n. 8; 28
L.Ed.2d 306 (1971).
5White, 707 P.2d at 273.
6Id. at 278-79.
7Id. at 274.
8Id. at 277.
9Id.
10Id.
11848 F.2d 137 (9th Cir. 1988).
12Hove, 848 F.2d at 138.
13Id. at 139.
14Id. at 139-140.
15Id.
16720 A.2d 27 (Md. App. 1998).
17Braxton, 720 A.2d at 33.
18Id.
19Id. at 31.
20Id. at 33.
21788 A.2d 662 (Md. App. 2002).
22Oesby, 788 A.2d at 665-67.
23675 So.2d 268 (La. 1996).
24Varnado, 675 So.2d at 269.
25Id. at 270.
26Id.
2730 P.3d 145 (Colo. 2001).
28Gall, 30 P.3d at 151.
29Id.
30468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
3188 F.3d 21 (1st Cir. 1996).
32Procopio, 88 F.3d at 28.
33See State v. White, 707 P.2d at 276-77.
1United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct.
741, 746, 13 L.Ed.2d 684 (1965); State v. Malkin, 722 P.2d
943, 947 n.10 (Alaska 1986); State v. Davenport, 510 P.2d
78, 82 n.8 (Alaska 1973); Rosa v. State, 633 P.2d 1027, 1030
(Alaska App. 1981).
2Illinois v. Gates, 462 U.S 213, 236, 103 S.Ct. 2317, 2331,
76 L.Ed.2d 527 (1983).
3Ventresca, 380 U.S. at 109, 85 S.Ct. at 747.
4707 P.2d 271 (Alaska App. 1985).
5Id. at 273.
6Id. at 277.
7468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
8White, 707 P.2d at 277-78.
9United States v. Procopio, 88 F.3d 21 (1st Cir. 1996);
United States v. Hove, 848 F.2d 137 (9th Cir. 1988); People
v. Gall, 30 P.3d 145 (Colo. 2001); Oesby v. State, 788 A.2d
662 (Md. App. 2002); Braxton v. State, 720 A.2d 27 (Md. App.
1998); State v. Varnado, 675 So.2d 268 (La. 1996).
10United States v. Hove, 848 F.2d 137 (9th Cir. 1988).
11468 U.S. 897, 104 S.Ct. 3405 (1984).
