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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
| DARRIN HOTRUM, | ) |
| ) Court of Appeals No. A-9020 | |
| Appellant, | ) Trial Court No. 3PA-03-2081 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2038 - March 10, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Verne E. Rupright, Wasilla, for
the Appellant. Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Darrin Hotrum was convicted of misconduct involving a
controlled substance in the fourth degree, a class C felony, for
possessing more than twenty-five marijuana plants.1 Hotrum
entered a no contest plea pursuant to Cooksey v. State,2
preserving two issues for appeal. In his first issue, Hotrum
claims that the police found the marijuana plants following an
unlawful warrantless entry and search of his residence. We
uphold Superior Court Judge Eric Smiths ruling that the police
entry and search of Hotrums residence was justified under the
emergency aid exception to the general warrant requirement.
In his second issue, Hotrum points out that, although
he possessed more than twenty-five marijuana plants, which under
the Alaska Statutes constitutes a felony, he actually possessed
little more than two ounces of dried marijuana. He argues that
the Alaska Statutes are in direct conflict with the Alaska
Supreme Courts decision in Ravin v. State.3 In Ravin, the
Alaska Supreme Court held that the privacy provision of the
Alaska Constitution, article I, 22, protects the right of an
adult to possess a small amount of marijuana in his home for
personal use.4 Hotrum contends that, because the plants he
possessed totaled only a little over two ounces of marijuana,
prosecution of his case contravenes Ravin. We conclude that the
legislature has the power to set reasonable limits on the amount
of marijuana that people may possess for personal use in their
homes. We therefore conclude that criminalization of the
possession of twenty-five or more marijuana plants, regardless of
the weight of the marijuana in its processed form, does not
conflict with Ravin.
Factual and procedural background
On October 3, 2003, Alaska State Trooper dispatch
received a 911 call reporting that there were gunshots and
yelling coming from a red house off Piccadilly Road in Houston,
Alaska. At approximately 10:19 p.m., a dispatcher relayed this
information to Alaska State Troopers Howard Anthony Peterson and
Odean Farnhan Hall III. Troopers Hall and Peterson responded to
the call.
The troopers parked their patrol vehicle down the
street from where they believed the house was located. As the
troopers began their approach to the house they contacted a man
approximately two houses down from the suspected residence. The
man told the troopers that gun shots and yelling were coming from
the red house two houses down on the right. From the roadway
the troopers could hear very loud music coming from the house.
The troopers went down the roadway and approached the
house. They saw vehicles in the yard and light emanating from an
arctic entryway. The door was standing wide open and there was a
key in the deadbolt with the lock turned. Trooper Peterson and
Trooper Hall made repeated attempts to announce their presence,
yelling state troopers. Is anybody there? The troopers made
attempts to yell over the music and to announce themselves
between songs. There were lights on in the house. The troopers
had requested backup that arrived as they were trying to make
contact through the open entryway.
Trooper Hall testified that, based on the information
he had available to him at that point, he was not sure if
something had happened inside or outside the home or whether
someone needed his assistance, but that he believed that
something was going on in the house. He added that when walking
up to the house he did not know whether there was an ongoing
emergency. But given the fact that there had been a report of
shots fired and yelling, and the presence of a door standing wide
open in the middle of the night, he felt that something was going
on that required him to ensure that nobody was being harmed.
At this point Troopers Hall and Peterson, along with
Alaska State Troopers Paul Anthony Wezgryn and Mike Ingram,
entered the house with their weapons drawn. Upon entry into the
arctic entryway, Trooper Peterson observed a doorway covered with
a blanket directly in front of him. Behind the blanket was a
closed door. To the left of Trooper Peterson was an open hallway
that led to the living room with a loft and a kitchen in the
back. Trooper Peterson instructed Trooper Ingram to check the
doorway with the blanket covering it while he, Trooper Wezgryn
and Trooper Hall went left, into the living room area. Behind
the blanket and closed door Trooper Ingram discovered forty-three
live marijuana plants.
In the living room, Troopers Peterson and Hall found a
bed with two feet protruding from under a sheet. With the music
blaring, Trooper Hall announced their presence and there was no
reaction. Trooper Peterson testified that at that point he
believed they were dealing with a homicide. The troopers noticed
a semi-automatic handgun and some bullets lying near the bed.
With their weapons trained on the bed, the troopers shut off the
stereo and removed the sheet from the body it was covering and
again announced their presence. The troopers then cleared the
rest of the room, checking the spaces that their line of sight
did not cover. The individual, who turned out to be sleeping,
was Darrin Hotrum, who was fully clothed and lying face up. Upon
waking, Hotrum immediately asked the troopers why they were
there and told them that they were not allowed in his home, and
that it was a private home.
Subsequent proceedings
The troopers arrested Hotrum at his residence. The
State charged him with several offenses arising out of his
possession of marijuana.
Hotrum filed a combined motion to suppress the evidence
and to dismiss the indictment. In his motion, Hotrum claimed
that the troopers warrantless entry of his home was illegal
because it failed to fall within any of the recognized exceptions
to the warrant requirement. Hotrum filed an additional motion to
dismiss on the ground that the warrantless seizure of his
marijuana plants had resulted in the recovery of only 2.02 ounces
of consumable marijuana. He argued that his possession of this
amount of marijuana was within the protection of Ravin.
Judge Smith conducted an evidentiary hearing. Following
the hearing, he denied Hotrums motion to suppress. Judge Smith
found that the troopers actions were reasonable under the
emergency aid doctrine. Judge Smith reasoned that there was
probable cause to believe that the emergency was located at
Hotrums residence based on the report from trooper dispatch and
the gentleman on the road, and the loud music and open door.
Additionally, Judge Smith concluded that the search was not a
pretext to conduct a warrantless search. Judge Smith also denied
Hotrums claim that his conduct was protected under Ravin.
Hotrum later entered a no contest plea to a single
count of misconduct involving a controlled substance in the
fourth degree for possession of twenty-five or more marijuana
plants. This appeal followed.
Why we uphold Judge Smiths finding that the
police search of Hotrums residence was lawful
under the emergency aid doctrine
The emergency aid doctrine is a well-recognized
exception to the general rule that the police need a warrant to
conduct a search.5 The emergency aid doctrine allows the
warrantless entry of a dwelling when an officer has reasonable
grounds to believe that there is an immediate need to take action
to prevent death or to protect persons or property from serious
injury.6
For the emergency aid doctrine to be
applicable in a given case, three conditions
must be met:
(1) The police must have reasonable grounds
to believe that there is an emergency at hand
and an immediate need for their assistance
for the protection of life or property.
(2) The search must not be primarily
motivated by intent to arrest and seize
evidence.
(3) There must be some reasonable basis
approximating probable cause to associate the
emergency with the area or the place to be
searched.[7]
In his findings, Judge Smith concluded that the
troopers had reasonable grounds to believe, and did believe, that
when they approached Hotrums residence there was an emergency
that required them to enter the residence and investigate. Judge
Smiths findings are supported by the record and support his
decision to deny Hotrums motion to suppress.
Why we reject Hotrums claim that his
possession of marijuana was protected by the
supreme courts decision in Ravin v. State
In Ravin, the Alaska Supreme Court held that the
privacy provision of the Alaska Constitution, article I, 22,
protected the right of an adult to possess a limited amount of
marijuana in his home for purely personal non-commercial use.8
The court stated that its decision did not protect possession of
marijuana in the home in amounts which were indicative of an
intent to sell the drug.9
In 1982, the legislature adopted statutes which
modified the states marijuana possession laws.10 These
statutes prohibited a person from possessing four ounces or more
of marijuana but did not criminalize possession of less than four
ounces.11 The commentary to the legislation stated that the
legislators intent was to define the amount of marijuana an adult
could possess in the home without violating the law.12
In Walker v. State,13 we had before us a case where the
defendant was convicted of possession of more than one-half pound
of marijuana.14 We upheld that conviction, holding that the
legislature could reasonably regulate the personal possession of
marijuana in the home over certain amounts. We held that this
regulation did not conflict with Ravin even if the defendant had
no intent to sell the drug.15
In Pease v. State,16 we discussed the legislative
history behind the statute that criminalized the possession of
twenty-five or more marijuana plants.17 That statute was enacted
after police officers asked the legislature to address the
problem police faced after they raided a marijuana grow and found
only growing, unharvested plants.18 Specifically, under the
statutory definition of marijuana, the police could not simply
cut the plants down and weigh them.19 To establish the weight
of marijuana seized under the statute, the police had to cut
down the plants, dry them, and then cut the leaves, buds, and
flowers from the stalks.20 The legislatures solution was to enact
AS 11.71.040(a)(3)(G), the statute under which Hotrum was
prosecuted, which prohibits possession of twenty-five or more
marijuana plants.21 The House Judiciary Committee adopted the
suggestion of an assistant attorney general that twenty-five
average marijuana plants would, after processing, weigh over one
pound.22 The assistant attorney general specifically addressed
the question of whether it would be fair to prosecute a person
for possession of twenty-five small marijuana plants. She
suggested that the small plants had the potential of growing into
much larger plants, and therefore the fact that the small plants
did not weigh much and did not produce very much usable marijuana
was immaterial.23 It appears that the legislature adopted this
reasoning.
In Noy v. State,24 we confronted a statute that was
enacted when the voters of Alaska approved a ballot proposition
that amended the Alaska statutes to criminalize possession of any
amount of marijuana.25 We concluded that this statute was
unconstitutional because it prohibited the possession of small
amounts of marijuana by adults in their homes for personal use.26
Therefore, it contravened the constitutional right of privacy as
interpreted by the Alaska Supreme Court in Ravin.27 After finding
the statute unconstitutional, we left standing the former
statutes that the initiative had superseded.28 Hotrum
concedes that the troopers found forty-three live marijuana
plants in his home. Under AS 11.71.040(a)(3)(G), Hotrums
possession of more than twenty-five live marijuana plants made
his offense a class C felony. But Hotrum points out that when
the troopers processed these plants by drying them, stripping
them, and weighing the leaves and buds, the total amount of
marijuana he possessed weighed only slightly more than two
ounces. Hotrum argues that, but for AS 11.71.040(a)(3)(G), his
possession of this amount of marijuana would not be a crime. And
had he been convicted of possession of four ounces or more of
marijuana under the other statutes, his offense would have been a
class B misdemeanor.29 Hotrum argues that prosecuting him for
possessing approximately two ounces of marijuana is inconsistent
with Ravin and Noy because it constitutes a prosecution for
possession of a small amount of marijuana in his home for
personal use.
In Ravin, the Alaska Supreme Court did not set out any
specific amount of marijuana that an adult could lawfully
possess. In Walker, we recognized that the legislature
nevertheless has the power to set reasonable limits on the amount
of marijuana that people can possess for personal use in their
homes.30 As we have previously discussed, the legislature has
passed statutes intended to provide a clear line so that the
citizens of the state will know what conduct is prohibited.31 We
have generally found the legislatures efforts to be consistent
with Ravin.32
In particular, in Pease, we discussed the legislative
history of the statute that made a felony offense of possession
of twenty-five or more marijuana plants. The legislative history
showed the legislature considered the possibility that a person
might possess twenty-five or more marijuana plants but that these
plants might constitute a small amount of marijuana. The
legislature concluded that the small marijuana plants could grow
to become a substantial amount of marijuana. The legislature
decided that the defendant should not benefit from the fact that
he was prosecuted before the plants could grow to that level.33
We conclude that this is a judgment that the legislature was
entitled to make. In drafting AS 11.71.040(a)(3)(G), the
legislature adopted a clear and objective line which appears to
be consistent with the Alaska Supreme Courts Ravin decision.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.71.040(a)(3)(G), (d).
2 524 P.2d 1251 (Alaska 1974).
3 537 P.2d 494 (Alaska 1975).
4 Id. at 504.
5 Williams v. State, 823 P.2d 1, 3 (Alaska App. 1991)
(citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408,
2413, 57 L. Ed. 2d 290 (1978); Schraff v. State, 544 P.2d 834,
840-41 (Alaska 1975); Gallmeyer v. State, 640 P.2d 837, 841
(Alaska App. 1982)).
6 Williams, 823 P.2d at 3 (citing Gallmeyer, 640 P.2d at 841-
43).
7 Williams, 823 P.2d at 3 (citing Gallmeyer, 640 P.2d at 841-
43 and Johnson v. State, 662 P.2d 981, 985-86 (Alaska App. 1983)
(listing eleven factors relevant in determining if the emergency
aid doctrine applies)).
8 537 P.2d at 504.
9 Id. at 511.
10 Walker v. State, 991 P.2d 799, 802 (Alaska App. 1999).
11 Former AS 11.71.060(a)(4).
12 Commentary and Section Analysis for the 1982 Revision
of Alaskas Controlled Substance Laws, Conference Committee
Substitute for Senate Bill No. 190 at 19.
13 991 P.2d 799.
14 Id. at 803.
15 Id.
16 27 P.3d 788 (Alaska App. 2001).
17 See AS 11.71.040(a)(3)(G).
18 Pease, 27 P.3d at 789.
19 See AS 11.71.900(14) (marijuana means only the seeds,
and leaves, buds, and flowers of the plant (genus) Cannabis,
whether growing or not; it does not include the resin or oil
extracted from any part of the plants, [and] it does not include
the stalks of the plant[.]); AS 11.71.080 ([f]or purposes of
calculating the aggregate weight of a live marijuana plant, the
aggregate weight shall be the weight of the marijuana when
reduced to its commonly used form.).
20 Pease, 27 P.3d at 789.
21 Id. at 790.
22 Id.
23 Id.
24 83 P.3d 530 (Alaska App. 2003).
25 Id. at 542.
26 Id.
27 Id.
28 Id. at 543.
29 AS 11.71.060(a)(1), (b).
30 991 P.2d at 802.
31 Id. at 803.
32 Id.; Noy, 83 P.3d at 543.
33 Pease, 27 P.3d at 790.
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