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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| LARS N. ANDERSON and | ) |
| LANA W. ANDERSON, | ) |
| ) Court of Appeals Nos. A-9003 / A-9005 | |
| Appellants, | ) Trial Court Nos. 3KO-04-191 Cr |
| ) and 3KO-94-192 Cr | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 2068 October 20, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Joel H. Bolger, Judge.
Appearances: Steven P. Gray, Kodiak, for the
Appellants. Kenneth M. Rosenstein, 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.
MANNHEIMER, Judge.
Lars and Lana Anderson were convicted of hindering
prosecution in the first degree for hiding their son in their
house, and lying to law enforcement officers about his
whereabouts, when they knew that the authorities were trying to
arrest their son for violating his felony probation.
The Andersons appeal presents two issues. First, does
the Andersons conduct fit within the statutory definition of
first-degree hindering prosecution, AS 11.56.770(a)? And second,
did the police violate the Andersons constitutional rights when
they entered the Andersons home and searched the Andersons
bedroom for their son?
For the reasons explained here, we conclude that the
Andersons conduct falls within the definition of first-degree
hindering prosecution, and we further conclude that the police
entry into the Andersons home, and the ensuing search of the
Andersons bedroom, were constitutional. We accordingly affirm
the Andersons convictions.
Underlying facts
As explained above, this case involves the
efforts of law enforcement officers to arrest the
Andersons twenty-year-old son, Daniel Anderson, for
violation of his felony probation. Daniel was
convicted of third-degree sexual abuse of a minor in
2002; he received a sentence of 48 months imprisonment
with 42 months suspended (6 months to serve), and he
was placed on probation for 7 years.
On the night of March 24, 2004, Sergeant Kyle
Valerio of the Kodiak Police Department responded to a
noise disturbance at the apartment of Matt Stutes.
Daniel Anderson was present when the officer arrived,
but he identified himself as James Coyt Anderson.
(James Anderson was Daniels younger brother.)
Daniel appeared to be intoxicated. Because
Daniel was a minor, Valerio asked him to submit to a
portable breath test. Daniel said that he would take
the test, but he proceeded to provide invalid breath
samples. Sergeant Valerio then issued Daniel a
citation for being a minor in possession of alcoholic
beverages.
When Valerio returned to the police station,
he discovered Daniels true identity from a collection
of adult probationer photographs. He also realized
that Daniel was on felony probation. Daniels
conditions of probation expressly prohibited him from
consuming alcohol. In addition, because Daniel was 20
years old, his consumption of alcohol violated state
law.1
Valerio returned to Matt Stutess apartment to
look for Daniel, but it appeared that Daniel was no
longer there. Valerio observed that a blue Chevrolet
that had earlier been parked outside the apartment, and
that was registered to Daniels father, Lars Anderson,
was no longer there.
A little later that night (around 1:00 a.m.
on March 25th), Valerio discovered that the blue
Chevrolet was now parked outside the residence of Lars
and Lana Anderson, 415 Maple Street. Valerio therefore
went up to the Andersons house in search of Daniel.
Daniels mother, Lana Anderson, answered the
door. Sergeant Valerio explained to her that Daniel
had provided false identification earlier in the
evening, and that Valerio wished to speak with him.
Lana Anderson confirmed that Daniel lived with her and
her husband; she told Valerio that Daniel slept on the
couch. Lana told Valerio that she did not think Daniel
was home at present.
Valerio asked for permission to enter the
house to look for Daniel, but Lana refused. She then
agreed to search the house herself, but she again
asserted that she did not think Daniel was there. At
that point, Lanas husband Lars appeared. Lars
confirmed that Daniel was not home.
Valerio reminded the Andersons that Daniel
was on felony probation, and that he (Valerio) could
return with Daniels probation officer to search the
house.
Following the interaction with Lars and Lana
Anderson a second police officer went to Stutess
apartment to inquire about Daniels whereabouts. Stutes
told this officer that, because Daniel was intoxicated,
Stutes and another friend used Daniels car (i.e., the
blue Chevrolet registered to Lars Anderson) to drive
Daniel home. Stutes drove Daniel to his parents house
and watched Daniel go inside.
At about 2:00 a.m. (that is, approximately
one hour after Sergeant Valerio spoke to Lana and Lars
Anderson at their home), this second police officer
returned to the Andersons house, accompanied by Daniels
probation officer, Sherry Saunders. Saunders and the
police officer knocked on the door repeatedly, but no
one answered although they observed movement behind
the blinds, indicating that someone was home.
Several hours later that morning, at around
9:00 a.m., Saunders telephoned the Andersons residence.
Lars spoke to the probation officer and informed her
that Daniel was not there. Lars told Saunders that
Daniel had not come home the previous night.
Two hours later, at 11:00 a.m., Daniel called
the probation office. He informed Saunders office that
he was at a friends house in the Flats. Daniel was
instructed to come to the office, but he never showed
up. Saunders then filed a petition to revoke Daniels
probation and asked the court to issue a bench warrant
for Daniels arrest, since Daniel ha[d] been consuming
alcohol and at this time his whereabouts are unknown.
The revocation petition listed Lars and Lana Andersons
address, 415 Maple Street in Kodiak, as Daniels last
known address.
The following day (March 26th), the court
issued the requested warrant for Daniels arrest.
Apparently believing that Daniel would have left his
parents residence by then, Saunders provided the Alaska
State Troopers with a list of other locations where
Daniel might be found.
The troopers first went to a residence in
Bells Flats. When they could not find Daniel there,
they proceeded to a residence at 323 Maple Street
(i.e., a residence down the street from Lars and Lana
Andersons home). It was then that one of the troopers
noticed that the blue Chevrolet (the car that Daniel
had been using) was parked outside the Andersons
residence at 415 Maple Street.
Sergeant Valerio drove to Maple Street and
joined the three state troopers at the Andersons
residence to execute the arrest warrant. They arrived
there at about 6:00 in the evening. (Probation Officer
Saunders was not present.)
The troopers knocked on the doors, the
windows, and the walls of the Anderson home, but nobody
answered. The trooper dispatcher called the house
several times and left messages informing the Andersons
that the troopers were stationed outside the house,
that they had come to arrest Daniel, and that anyone
inside the house was required to open the door. In
addition, one of the troopers proclaimed loudly that
the troopers had a warrant for Daniels arrest, that
they believed that Daniel was in the house, and that
any adult who harbored Daniel within the house would be
arrested for hindering prosecution.
Sergeant Valerio could hear music from inside
the house. He also noticed a small child peer out of a
window briefly, but then someone pulled the child back
behind the closed blinds. Drawn by the commotion,
people began gathering in the yards of the neighboring
houses. Still, no one inside the Andersons house
responded to the troopers.
After waiting about 15 or 20 minutes, the
troopers kicked the door open and entered the house
where they found Lars and Lana Anderson. Lana told the
troopers that Daniel had been at the house earlier, and
she added that she thought he might still be in the
house. Lars then indicated that Daniel was in the back
bedroom. The troopers proceeded to the back of the
house and found Daniel in the bedroom, hiding under a
desk and concealed by a blanket, with a chair blocking
access to him. The troopers arrested Daniel.
Based on this incident, Lars and Lana
Anderson were charged with hindering prosecution in the
first degree, AS 11.56.770(a). Both of the Andersons
eventually pleaded no contest, reserving their right to
litigate the issues raised in this appeal.2
The Andersons conduct falls within the definition of
first-degree hindering prosecution
Under AS 11.56.770(a)(1), a person commits
the crime of hindering prosecution in the first degree
if they (1) render[] assistance (2) to a person who has
committed a crime punishable as a felony, and if they
render this assistance (3) with [the] intent to ...
hinder the apprehension, prosecution, conviction, or
punishment of the person who has committed the felony.
(Subsection (b) of the statute defines
various prohibited methods of render[ing] assistance.
The two pertinent methods, under the facts of the
Andersons case, are (b)(1) (harbor[ing] or conceal[ing]
the other person) and (b)(4) (prevent[ing] or
obstruct[ing], by means of force, threat, or deception,
anyone from performing an act which might aid in the
discovery or apprehension of the other person).)
The Andersons do not dispute that they
harbored and concealed their son, nor do they dispute
that they used deception in an attempt to frustrate the
discovery and arrest of their son. They argue,
however, that their son was not a person who has
committed a crime punishable as a felony within the
meaning of AS 11.56.770(a).
The Andersons do not dispute that they knew
that their son was convicted of a felony in 2002, and
that their son was on felony probation at the time of
the events in this case. The Andersons point out,
however, that the authorities were looking for Daniel,
not because he had committed a new felony, but because
he had violated his felony probation in ways that were
not, themselves, felonies. Rather, Daniels violations
of probation were lesser crimes: consuming alcoholic
beverages as a minor, and (potentially) giving Valerio
false information concerning his identity when Valerio
contacted him at the Stutes residence. See
AS 11.56.800(a)(1)(B)(i).
The Andersons argue that the first-degree
hindering prosecution statute should not be construed
to cover all acts of assistance to anyone who, at some
time in the past, has committed a felony. Rather, the
Andersons argue, the statute must be construed to cover
only acts of assistance to someone who is currently
being sought for felony conduct. The Andersons contend
that, because their son Daniel was not being sought for
his 2002 felony, nor for any new felony, but rather for
his violations of probation the night before, their act
of harboring and concealing Daniel did not constitute
first-degree hindering prosecution.
The question, then, is whether the offense of
hindering prosecution in the first degree encompasses
the act of rendering assistance (within the meaning of
AS 11.56.770(b)) to felony probationers who have
committed misdemeanor or even non-criminal violations
of their probation. For the reasons explained here, we
conclude that the answer is yes.
To convict a defendant of first-degree
hindering prosecution under AS 11.56.770(a), the State
must prove that the defendant rendered assistance to a
person who has committed a crime punishable as a
felony. A person on felony probation has, by
definition, committed a crime punishable as a felony.
The statute further requires proof that the
defendant, in rendering the assistance, acted with the
intent to hinder the apprehension, prosecution,
conviction, or punishment of the person who committed
the felony.
One could certainly argue that a person who
hides a felony probationer in their house, knowing that
the police are seeking to arrest the probationer for
violating probation, acts with the intent to hinder the
apprehension of that probationer. The counter-argument
would be that, given the wording of the statute in
particular, the order of the words apprehension,
prosecution, conviction, [and] punishment it appears
that the legislature may have been reciting the various
stages of a criminal prosecution in chronological
order. If so, then apprehension might refer only to
the apprehension of a defendant before trial.
But however that issue might be resolved, the
statute also covers assistance that is rendered with
the intent to hinder the ... punishment of a person who
has committed a felony. This description fits the
Andersons conduct in the present case.
When a felony defendant receives a term of
suspended imprisonment and is released on probation,
the defendants liberty is conditional: if the
defendant violates probation, the sentencing court can
increase the defendants punishment by imposing some or
all of the suspended imprisonment,3 or by extending
the defendants term of probation.4 When this occurs,
the additional term of imprisonment or the extended
term of probation is not a punishment for the
defendants new conduct even though that new conduct
may itself be an independent criminal offense. Rather,
the altered sentence is a revision of the defendants
punishment for the underlying felony. As we said in
Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990), a
sentence imposed upon revocation of probation
constitutes punishment for the defendants original
offense.5
Thus, when a person renders assistance to a
felony probationer by harboring or concealing the
probationer, knowing that the police are trying to
arrest the probationer for violating the terms of
probation, the person acts with the intent to hinder
the punishment of a person who has committed a felony
within the meaning of AS 11.56.770(a)(1).
We acknowledge that courts from around the
country are split on the question of whether their
particular felony hindering prosecution statutes cover
the rendering of aid to people who are wanted for
felony probation violations. Generally, these courts
interpretations of their statutes hinge on a close
parsing of the statutory language. The broader the
language describing the group of people aided, the
wider the range of persons covered by the hindering
prosecution statute.
Compare State v. Sapp, 55 S.W.3d 382 (Mo.
App. 2001), Key v. State, 800 S.W.2d 229, 230-31 (Tex.
App. 1990) (holding that their statutes do not cover
the rendering of aid to persons who are sought for non-
felony violations of their felony probation) with State
v. Fisher, unpublished, 2005 WL 750071 at *2 (Ohio App.
2005), Commonwealth v. Stiver, unpublished, 1994 WL
722526 (Pa. Common Pleas 1994) (holding that their
statutes do cover the rendering of aid in such
circumstances).
Alaskas hindering prosecution statutes, AS
11.56.770 (felony hindering) and AS 11.56.780
(misdemeanor hindering), are based on the corresponding
statutes in the Hawaiian penal code.6 There is no
Hawaii case law addressing the question of whether a
person may be prosecuted for felony hindering if they
render assistance to a felony probationer who is being
sought for a non-criminal (or at least a non-felony)
violation of probation. However, the Hawaiian statutes
are based on the Model Penal Code.7
The Model Penal Code commentary likewise
contains no discussion of this particular point, but
the commentary does explain the rationale of the
hindering prosecution statutes. In the commentary, the
Model Penal Code drafters declared that they wished to
codify an offense which, although similar to the common-
law offense of accessory after the fact, would be
constructed in a way that breaks decisively from that
[common-law] tradition:8
Section 242.3 [of the Model Penal Code]
rejects the theory of accessorial liability
for those who aid the offender after the
consummation of the crime and adopts the
alternative theory of prosecution for
obstruction of justice. A person who aids
another to elude apprehension or trial is
interfering with the processes of government.
The willingness to do that and the harm
threatened by such behavior are the
appropriate focus for penal sanctions, not
the fiction that one who harbors a murderer
thereby becomes a party to criminal homicide.
Model Penal Code (1980), 242.3, Commentary,
p. 225.
Given this underlying purpose of
the statutes that prohibit hindering
prosecution i.e., the punishment of people
who intentionally obstruct the criminal
justice system it makes sense to interpret
AS 11.56.770(a) to encompass the act of
harboring and concealing a person who is
being sought for violating their felony
probation, even if the act that contravened
the terms of probation is not itself a
felony.
Another reason to interpret AS
11.56.770(a) in this manner is the fact that,
if we interpreted the statutory language as
the Andersons propose that is, if we
interpreted has committed a crime punishable
as a felony to apply only when a probationer
is being sought for a new felony this would
create a gap in Alaska law.
We note that both of Alaskas
hindering prosecution statutes (AS 11.56.770
and AS 11.56.780) contain similar language:
section 770 refers to aiding a person who has
committed ... a felony, while section 780
refers to aiding a person who has committed
... a misdemeanor. If we interpreted this
language as requiring proof that a
probationer had committed a new crime
punishable as a felony or a misdemeanor, this
would mean that neither statute applied to
the act of rendering assistance to a
probationer whose violation of probation was
non-criminal. We doubt that the legislature
intended such a result.
The Andersons argue that our
interpretation of the hindering statutes
leads to anomalous results, especially in
instances where the probationers violation of
probation might not be a crime at all as,
for instance, when an adult probationer
violates probation by consuming alcohol or by
leaving their town of residence without first
notifying their probation officer. In such
instances, the Andersons argue, it would be
unfair to impose criminal sanctions on a
person who harbors or conceals the
probationer, when the probationer would not
face any criminal penalty for their violation
of probation.
The flaw in this argument lies in
the principle that we explained earlier:
When a sentencing court revokes a felony
defendants probation and imposes some or all
of a previously suspended term of
imprisonment, this is not punishment for the
act that contravened the defendants
conditions of probation. Rather, it is a
revised punishment for the defendants
underlying felony. Thus, even when a felony
probationers act of violating probation is
not itself a crime, the probationer still
faces felony punishment potentially, the
imposition of several more years in prison.
Accordingly, the laws interest in deterring
people from harboring and concealing a felony
probationer is correspondingly high.
For these reasons, we conclude that
the first-degree hindering prosecution
statute, AS 11.56.770(a)(1), encompasses the
conduct of the Andersons in this case:
rendering assistance to a felony probationer
when they knew that the police were
attempting to take the probationer into
custody for violations of probation, and with
intent to hinder the punishment of the
probationer.
The first-degree hindering statute is not void for
vagueness
The Andersons argue that, even if our
interpretation of AS 11.56.770(a) is a reasonable
one, there are other reasonable interpretations of
the statute. The Andersons further argue that,
because reasonable people could differ as to what
the statute prohibits, the statute is void for
vagueness.
We addressed this same argument in De Nardo
v. State, 819 P.2d 903 (Alaska App. 1991). In De
Nardo, we explained that a statute is
unconstitutionally vague only if its meaning is
unresolvably confused or ambiguous after it has
been subjected to legal analysis. Id. at 908
(emphasis in the original).
[T]he fact that people can, in good faith,
litigate the meaning of a statute does not
necessarily (or even usually) mean that the
statute is so indefinite as to be
unconstitutional. ... If study of the
statutes wording, examination of its
legislative history, and reference to other
relevant statutes and case law makes the
statutes meaning clear, then the statute is
constitutional.
Id.
In the Andersons case, using
accepted methods of statutory construction,
we have concluded that the first-degree
hindering prosecution statute applies to
people who, acting with the intent to hinder
the punishment of a felony probationer,
render assistance to a probationer who is
sought by the authorities for violations of
probation. Given our interpretation of the
statute, the statute clearly applies to the
Andersons conduct. Accordingly, the statute
is not void for vagueness.
The police entry into the Andersons house was lawful
As explained earlier in this opinion, the
superior court issued a warrant for Daniel
Andersons arrest, based on his alleged violations
of probation, and the troopers were armed with
this warrant when they went to Lars and Lana
Andersons house on the morning of March 26th.
Under Payton v. New York,9 if the police
have a warrant authorizing them to arrest a person, and
if the police have reason to believe that the person
named in the warrant can be found in their home, the
police may enter that persons home to perform the
arrest. However, the Supreme Court held in Steagald v.
United States10 that the police need a separate search
warrant to enter the house of a third party to execute
an arrest warrant.
The Andersons raise three arguments as to why
the troopers entry into their house violated the Fourth
Amendment as construed in Payton and Steagald. First,
the Andersons argue that even though the troopers had
an arrest warrant for Daniel, the fact that the Maple
Street house was also the Andersons residence means
that the troopers were required to obtain a separate
search warrant before entering the house (to overcome
the Andersons right of privacy as co-residents).
Second, the Andersons argue that even if the troopers
could enter the house based solely on the authority of
the arrest warrant for Daniel, the troopers lacked
probable cause to believe that Daniel was currently
inside the house. And third, the Andersons argue that
even if Payton and Steagald authorize police entry into
a shared residence based solely on an arrest warrant
for one of the residents, and even if the troopers had
probable cause to believe that Daniel was inside, the
troopers nevertheless violated Steagald by entering the
Andersons personal bedroom without obtaining a separate
warrant authorizing their entry into that part of the
house.
We address these contentions in turn.
The Andersons concede that their situation is
a blend of the facts in Payton and the facts in
Steagald because their son Daniel was sharing a
residence with them. Moreover, the record shows that
the authorities were aware that Daniel was living with
his parents on Maple Street. In Daniels required
monthly reports to his probation officer, he listed his
parents house as his residence. And, as we noted
earlier in this opinion, when Sergeant Valerio visited
the Andersons house around one oclock in the morning on
March 25th, looking for Daniel, Lana Anderson told
Valerio that Daniel lived with her and her husband,
although he slept on the couch.
Thus, to the extent that Payton requires the
police to have probable cause to believe that the
particular building they are about to enter is, in
fact, the residence of the person named in the arrest
warrant, this requirement was satisfied.
Neither Payton nor Steagald directly answers
the question of whether the United States Constitution
requires a separate warrant when the suspect named in
the arrest warrant shares a residence with third
parties. However, we conclude that the troopers
authority to enter the house under the authority of the
arrest warrant is not affected by the fact that Daniel
shared this residence with his parents.
The language of Payton is broad enough to
support the conclusion that the warrant for Daniels
arrest was sufficient to authorize the entry: [F]or
Fourth Amendment purposes, an arrest warrant founded on
probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is
within. Payton, 445 U.S. at 603, 100 S.Ct. at 1388
(emphasis added). But this issue was not squarely
presented in Payton or in its companion case, Riddick
v. New York. Thus, the Supreme Courts language can
not be taken as a ruling on the question of what the
Fourth Amendment requires when two or more adults share
a residence.
Professor LaFave appears to take the
position, presumably based on the breadth of Paytons
language, that an arrest warrant, standing alone, is
sufficient to authorize the police to enter all
portions of a residence where the suspect might be
concealed, regardless of whether other people live in
the residence too.11 This position finds support in
the dissent in Steagald, which proceeds from the
premise that Payton authorizes a police entry into a
suspects home based on an arrest warrant alone, even
when the suspect does not live alone:
Payton makes clear that an arrest warrant is
all that is needed to enter the suspects home
to effect the arrest. ... If a suspect has
been living in a particular dwelling for any
significant period, say a few days, it can
certainly be considered his home for Fourth
Amendment purposes, even if the premises are
owned by a third party and others are living
there ... . In such a case[,] the police
could enter the premises with only an arrest
warrant.
Steagald v. United States, 451 U.S. at 230-
31, 101 S.Ct. at 1657 (Rehnquist, J.,
dissenting) (emphasis added).
Case law from around the country
supports the view that, in situations like
the Andersons case, an arrest warrant alone
(coupled with a reasonable belief that the
person named in the warrant is currently in
the residence) authorizes the police to enter
the suspects own home to execute the warrant,
regardless of whether the suspect has co-
residents.12 The suspect need not be the
owner of the dwelling.13
We, too, adopt this view of the
law. Accordingly, because the troopers had a
warrant for Daniel Andersons arrest, the
troopers needed no additional warrant to
enter the residence that Daniel shared with
his parents, so long as the troopers had
probable cause to believe that Daniel was
inside that residence.
(The Payton decision refers to a
requirement that the police have reason to
believe that the person named in the warrant
is inside the building, but Payton does not
specify whether this reason needs to rise to
the level of probable cause or,
alternatively, need merely be a reasonable
suspicion.14 However, regardless of the
federal test, the search and seizure
provision of the Alaska Constitution (Article
I, Section 14) requires the police to have
probable cause in this situation. See
Davenport v. State, 568 P.2d 939, 949 (Alaska
1977), and Taylor v. State, 642 P.2d 1378,
1383 (Alaska App. 1982).)
We therefore turn to the question
of whether the troopers had probable cause to
believe that Daniel Anderson was inside the
residence when they made their entry on the
evening of March 26th.
Viewing the facts in the light most
favorable to the superior courts ruling, we
conclude that the troopers had probable cause
to believe that Daniel was inside the house.
As we explained above, the
authorities had probable cause to believe
that Daniel was residing with his parents at
the Maple Street address. And, as Professor
LaFave notes, probable cause to believe that
a suspect is in his own home can arise as a
matter of inference from a lack of
information indicating [that] the defendant
is elsewhere.15
It is true (as the Andersons point
out) that, in the petition to revoke Daniels
probation, his probation officer declared
that Daniels whereabouts were currently
unknown (although the petition listed the
Maple Street house as Daniels last known
address). But the question is not whether
there was probable cause to believe that
Daniel was inside the Maple Street house at
the time that Daniels probation officer filed
the petition to revoke his probation on March
25th. Instead, the question is whether the
troopers had probable cause to believe that
Daniel was inside the house when they entered
the house on the evening of March 26th.
When Sergeant Valerio and the
Alaska State Troopers arrived at the
Andersons residence to serve the warrant for
Daniels arrest, they could see the car that
Daniel normally drove the blue Chevrolet
registered to Lars Anderson parked outside
the house.
In addition, because the probation
office had earlier received a telephone call
from Daniel in which he claimed that he was
at a friends house in the Flats, the police
had gone to a residence in Bells Flats, but
Daniel was not there. And the troopers were
following another tip that Daniel was at a
house at 323 Maple Street when they happened
to see Daniels car parked at 415 Maple
Street.
Thus, the fact that the troopers
were able to rule out Daniels presence at two
other addresses, coupled with the fact that
his car was parked outside the home at 415
Maple Street, strengthened the inference that
Daniel was currently inside this residence.
Finally, the events that transpired
after the troopers and Sergeant Valerio
arrived at 415 Maple Street bolstered the
conclusion that Daniel was inside this
residence. As we explained earlier, the
troopers knocked loudly on the doors,
windows, and walls for approximately 20
minutes, with no response. The trooper
dispatcher called the house several times and
left messages informing the Andersons that
the troopers were outside, seeking to arrest
Daniel, but nobody picked up the telephone or
came to the door. Valerio saw a young child
peek out through a window, and then saw
someone pull the child back behind drawn
blinds. In addition, the troopers could hear
music playing inside the house and, after
one of the troopers shouted that they had a
warrant for Daniels arrest, someone inside
the house turned up the volume of this music.
Given all of these circumstances,
the troopers had probable cause to believe
that Daniel was inside the Maple Street house
when they made their forcible entry to serve
the arrest warrant. And because this house
was Daniels residence, both the Fourth
Amendment and Article I, Section 14 of the
Alaska Constitution were satisfied.
The troopers did not need a separate warrant to enter
Lars and Lana Andersons bedroom at the back of the
house
The Andersons argue in the alternative that,
even if the troopers had probable cause to believe that
Daniel was currently inside the house, this would only
authorize the troopers to enter and search the areas of
the house that belonged to Daniel or that Daniel shared
in common with his parents. As we explained early in
this opinion, the troopers went to the back of the
house and found Daniel hiding in his parents bedroom.
The Andersons assert that their personal bedroom was a
part of the house that they used to the exclusion of
Daniel, and that therefore the troopers needed a
separate warrant before entering that room.
The Andersons argument finds little support
in Payton. The language of the Payton decision
strongly indicates that the Supreme Court viewed the
act of crossing the threshold as the crucial event for
Fourth Amendment purposes. Writing for the Court,
Justice Stevens declared that physical entry of the
home is the chief evil against which the wording of the
Fourth Amendment is directed (emphasis added), and that
the Fourth Amendment has drawn a firm line at the
entrance to the house. Payton, 455 U.S. at 585-86 &
590, 100 S.Ct. at 1379-1380 & 1382.
In post-Payton decisions, courts have
concluded that the strict Fourth Amendment protection
afforded to residents at the threshold of their abode
does not extend to the separate rooms within the home.
For example, in United States v. Pallais, the Seventh
Circuit held that [u]nder Payton, police armed with an
arrest warrant can search the entire residence of the
person named in the warrant in order to execute it.16
And as Justice Rehnquist noted in his dissent in
Steagald, even though the police are not allowed to
conduct an unlimited search of the residence, they are
permitted to search ... those areas in which the object
of the search might hide.17
According to Professor LaFave, courts have
consistently endorsed this view of Payton: when there
has been a lawful entry into a dwelling pursuant to an
arrest warrant, courts uphold police searches of the
premises for the person named in the warrant so long as
the search is limited to the places where the suspect
could hide.18
We conclude that this is the proper rule. As
explained above, the main concern of Payton is the
crossing of the threshold into a residence. Moreover,
even though the individual residents of a multi-
resident dwelling have a privacy interest in their
personal spaces within the residence, this right of
privacy is abridged to only a limited degree, because
the search authorized by Payton is strictly limited in
scope. The police are limited to searching for the
presence of the person named in the warrant. Thus, the
officers are not empowered to search small spaces,
drawers, or closed containers (unless those containers
happen to be large enough to conceal a person).
Finally, it seems to us that the rule
proposed by the Andersons is unreasonable. When the
police enter a residence to effect an arrest under the
authority of a warrant, it seems neither just nor
practical to allow the suspect to run into someone
elses bedroom and then claim sanctuary there.
For these reasons, we conclude that neither
the Fourth Amendment nor Article I, Section 14 of the
Alaska Constitution required the troopers to obtain a
separate warrant to enter the bedroom of Lars and Lana
Anderson.
Conclusion
When the Andersons harbored and concealed
their son Daniel, and when they lied to the troopers
about Daniels whereabouts, knowing that the authorities
were attempting to arrest Daniel for violating his
felony probation, and acting with the intent to hinder
his punishment, the Andersons committed first-degree
hindering prosecution as defined in AS 11.56.770(a)(1).
Because the troopers had a warrant for
Daniels arrest, because they knew that Daniel resided
with his parents at 415 Maple Street, and because they
had probable cause to believe that Daniel was currently
within that residence, the troopers acted lawfully when
they entered the residence to arrest Daniel.
Finally, the troopers needed no separate
warrant to enter the Andersons personal bedroom to
search for Daniel.
Accordingly, the judgements of the superior
court are AFFIRMED.
_______________________________
1AS 04.16.050(a).
2See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
3See AS 12.55.085(b) & AS 33.05.070(b).
4AS 12.55.090(b) & (c); OShea v. State, 683 P.2d 286, 288
(Alaska App. 1984).
5See also Reyes v. State, 978 P.2d 635, 639 (Alaska App.
1999) (the upward modification of a defendants sentence when
the defendants probation is revoked does not violate the
double jeopardy clause).
6See Alaska Criminal Code Revision, Tentative Draft, Part 4
(1977), p. 126; see also Noblit v. State, 808 P.2d 280, 283
n. 4 (Alaska App. 1991).
7See Noblit v. State, 808 P.2d 280, 283 n. 4 (Alaska App.
1991).
8Model Penal Code (1980), 242.3, Commentary at p. 224.
9445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
10451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
11See Wayne R. LaFave, Search and Seizure: A Treatise on
the Fourth Amendment (4th ed. 2004), 6.1(b), Vol. 3, p.
279. Professor LaFave does not discuss the issue directly,
but he notes that when, despite probable cause to believe
that the suspect is within the residence, it turns out that
the suspect is not there, other occupants will consequently
sometimes have their privacy intruded upon.
12Case v. Kitsap County Sheriffs Dept, 249 F.3d 921, 925,
930-31 (9th Cir. 2001) (holding that police armed with an
arrest warrant and a reasonable belief that the subject of
the warrant resided in a given dwelling and was present in
the home at the time police sought to execute the warrant
could forcibly enter the house despite knowledge that a co-
resident was present); United States v. Lovelock, 170 F.3d
339, 345 (2d Cir. 1999) ([T]he requirement [under Payton]
that the person named in an arrest warrant open his doors to
the officers of the law ... does not allow a house-mate to
keep those doors shut. (internal citation and quotation
omitted)); United States v. Litteral, 910 F.2d 547, 553 (9th
Cir. 1990) ([I]f the suspect is a co-resident of [a] third
party, then Steagald does not apply, and Payton allows both
arrest of the subject of the arrest warrant and use of
evidence found against the third party.); Washington v.
Simpson, 806 F.2d 192, 196 (8th Cir. 1986) (upholding the
entry by police into a persons residence to arrest a co-
resident who is the subject of an arrest warrant); People v.
White, 512 N.E.2d 677, 679, 683, 686 (Ill. 1987) (upholding
the trial courts conclusion that the suspects home for
Fourth Amendment purposes was his brothers residence, where
the suspect had been residing for at least seven days and
appeared to intend to reside indefinitely, and, therefore,
police needed an arrest warrant to enter the premises);
Morgan v. State, 963 S.W.2d 201, 204 (Tex. App. 1998)
(holding that an arrest warrant alone authorized police to
enter a motel room that was registered to Morgans sister
where the police had reason to believe that Morgan was
living there and that he was presently inside); Barnes v.
Commonwealth, 360 S.E.2d 196, 200 (Va. 1987) (The police had
reason to believe that Barnes was staying in [his step-
fathers] apartment and was actually present, and the arrest
warrants [for Barnes] gave them the limited authority to
enter the apartment, search for the person described in the
warrants, and arrest him.).
13United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996)
(citing Steagald v. United States, 451 U.S. 204, 230-31; 101
S.Ct. 1642, 1657; 68 L.Ed.2d 38 (1981) (Rehnquist, J.,
dissenting)).
14Payton, 445 U.S. at 603, 100 S.Ct. at 1388. See also the
discussion of this point in Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment (4th ed.
2004), 6.1(a), Vol. 3, p. 265 n. 18.
15Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment (4th ed. 2004), 6.1(b), Vol. 3, p.
282.
16United States v. Pallais, 921 F.2d 684, 691 (7th Cir.
1990), cited in Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (4th ed. 2004), 6.1(b),
Vol. 3, p. 279 n. 66.
17Steagald v. United States, 451 U.S. at 226, 101 S.Ct. at
1655 (Rehnquist, J., dissenting).
18Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment (4th ed. 2004), 6.3(a), Vol. 3, pp. 345-46
& n. 6.
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