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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CRAIG NICHOLAS BERUMEN II, | ) |
| ) Court of Appeals No. A-9711 | |
| Appellant, | ) Trial Court No. 3AN-04-11581 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2164 May 2, 2008] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Allan Beiswenger, Anchorage,
for the Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Wishing to serve a warrant for the arrest of Craig
Nicholas Berumen II, officers of the Anchorage Police Department
knocked on the door of Berumens hotel room but they did not
announce who they were. (One of the officers later testified
that they were hoping that they could gain entry by having
someone ... simply come to the door and answer it.) The officers
knocked on the hotel room door for at least twenty seconds, but
no one responded to this knocking. The officers then used a
hotel pass key to open the door and enter the room. As they
began their entry, they announced that they were Anchorage police
officers but they still made no announcement of their authority
for entering the room (service of the arrest warrant), and they
never asked for permission to enter.
Inside the room, the officers found four persons. The
man they were looking for Berumen was asleep. The officers
also found marijuana and cocaine in plain sight which led to
Berumens indictment for third-degree controlled substance
misconduct (possession of cocaine with intent to distribute), as
well as two counts of second-degree contributing to the
delinquency of a minor (because there were two minors in the room
with Berumen and the drugs).1
Following his indictment, Berumen asked the superior
court to suppress the evidence found in the hotel room. Berumen
argued that suppression was warranted because the police entered
the room in violation of Alaskas knock and announce statute, AS
12.25.100. The superior court concluded that the officers had
substantially complied with this statute, and therefore the court
denied Berumens motion. Berumen then entered a Cooksey plea of
no contest, preserving his right to renew his suppression
argument on appeal.2
We conclude that the officers did not substantially
comply with AS 12.25.100. This statute declares that a law
enforcement officer is authorized to break into a building to
effect an arrest, but only if the officer is refused admittance
after the officer has announced the authority and purpose of the
entry.
Here, although the officers identified themselves as
police officers, they never announced the authority for, and the
purpose of, their entry into Berumens hotel room. Moreover, the
officers never requested or demanded entry into the room.
Because of this, no one ever refused them admittance, nor could
the officers have reasonably interpreted the lack of response
from inside the hotel room as a tacit refusal of admittance.
The remaining question is whether a violation of this
statute requires suppression of the resulting evidence.
Recently, in Hudson v. Michigan, 547 U.S. 586, 126
S.Ct. 2159, 165 L.Ed.2d 56 (2006), the United States Supreme
Court concluded that a violation of the federal knock and
announce law does not require suppression of evidence. But the
issue before us is one of state law, so the United States Supreme
Courts decision in Hudson does not bind us. While the majority
and dissenting opinions in Hudson may have persuasive value, our
ultimate duty is to employ the test set forth in Harker v. State,
637 P.2d 716, 719 (Alaska App. 1981),3 to independently
determine whether a violation of our state statute triggers the
exclusionary rule.
For the reasons to be explained here, we conclude that
suppression of evidence is the remedy for serious violations of
AS 12.25.100 that is, violations that can not be excused under
the doctrine of substantial compliance. Accordingly, we reverse
Berumens convictions.
Alaskas knock and announce statute
For more than a century, Alaska law has
regulated the authority of law enforcement officers to
break into a building to effect an arrest. As
explained above, AS 12.25.100 is the statute that
currently codifies Alaska law on this subject. This
statute reads:
Breaking into building or vessel to
effect arrest. A peace officer may break
into a building or vessel in which the person
to be arrested is or is believed to be, if
the officer is refused admittance after the
officer has announced the authority and
purpose of the entry.
(Emphasis added)
This statute was enacted in 1962 by
Alaskas first state legislature: SLA 1962,
ch. 34, 2.11. But the legal rule codified
in this statute is much older.
AS 12.25.100 is a direct descendant
of an earlier statute that had been in effect
since Alaskas territorial government was
first created. Section 2397 of the 1913
Compiled Laws of the Territory of Alaska
codified essentially the same knock and
announce requirement that is found in our
current statute:
[An] officer may break open any outer or
inner door or window of a dwelling house, or
otherwise, to execute [an arrest] warrant, if
after notice of his authority and purpose he
be refused admittance.
(Emphasis added) Indeed, this same language
appears in the very earliest codification of
Alaska law in section 288 of Part II
(Criminal Procedure) of the Carter Code of
1900.4
In Davis v. State, 525 P.2d 541
(Alaska 1974), our supreme court implicitly
ruled that the requirements of AS 12.25.100
are broader (i.e., more protective) than the
related protection against unreasonable
searches and seizures found in Article I,
Section 14 of the Alaska Constitution. The
supreme courts view of this matter is
demonstrated by the fact that, after the
court concluded that the police entry in
Davis was constitutional under Article I,
Section 14, the court then declared that a
more substantial question remained: whether
the entry was lawful under AS 12.25.100. Id.
at 543.
With this as a background, we now
turn to the first question presented in this
appeal: whether the police violated AS
12.25.100 when they entered Berumens hotel
room.
Why we conclude that the police violated AS 12.25.100
when they entered Berumens hotel room, and why we
further conclude that the officers conduct did not
amount to substantial compliance with this statute
As we explained at the beginning of this
opinion, when the police went to Berumens hotel room to
serve the warrant for his arrest, the officers simply
knocked on his door without announcing who they were.
Their apparent hope was that someone would answer the
door and allow them in thus obviating the need for a
breaking. See Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (4th ed. 2004),
6.2(b) (Manner of entry for which notice [is]
ordinarily required), Vol. 3, pp. 332-35.
But no one came to the door or otherwise
responded to the officers knocking, so the officers
used a pass key to open the door. This was a breaking
for purposes of AS 12.25.100.
See Lockwood v. State, 591 P.2d 969, 971-72
(Alaska 1979), where our supreme court held that the
police triggered AS 12.25.100 by using a ruse to induce
a motel occupant to open the door to his room by a few
inches, and then having an officer place a foot across
the threshold so that the door could not be re-closed.
See also the discussion of this point in LaFave,
6.2(b), Vol. 3, p. 332: Notice is also a usual
prerequisite to entry by pass key or by opening a
closed but unlocked door ... .
See also State v. Rogers, 861 P.2d 258 (N.M.
App. 1993), and Mu¤oz v. United States, 325 F.3d 23
(9th Cir. 1983), both holding that entry of a hotel
room with a pass key is a breaking for purposes of
their knock and announce statutes.
AS 12.25.100 declares that police officers
are not allowed to break into a building to serve a
warrant unless (1) they have announced the authority
for, and the purpose of, their entry, and (2) they are
refused admittance (either expressly or tacitly).
The State concedes that the officers violated
the letter of this statute when they entered Berumens
hotel room. However, the State argues that this
violation should be excused because the officers
substantially complied with the statute.
In Lockwood, 591 P.2d at 972, the Alaska
Supreme Court endorsed the doctrine that a technical
violation of the knock and announce statute will be
excused if the officers demonstrate substantial
compliance with the statute that is, if police
procedures fail to conform to the precise demands of
the statute but nevertheless serve its policies.5
To explain why we conclude that the officers
actions in this case did not amount to substantial
compliance with the statute, we must draw a distinction
between (1) a police officers act of identifying
themself as a police officer and (2) a police officers
act of stating their authority and purpose for entering
a building or vessel.
We acknowledge that, in many circumstances,
the announcement of an officers identity and purpose
will be tantamount to a statement of their authority
as, for example, when an officer announces, Police. I
have a search warrant. Indeed, several Alaska knock
and announce decisions including Lockwood refer to
the rule as requiring the police to announce their
identity and purpose. See Lockwood, 591 P.2d at 972;
Hudson v. State, 792 P.2d 290, 291 (Alaska App. 1990);
Sandland v. State, 636 P.2d 1196, 1197 (Alaska App.
1981).
But the mere fact that law enforcement
officers come to the door of a dwelling and knock on
the door does not, by itself, serve to notify the
occupants that the officers have the authority and
purpose to force their way in, regardless of the wishes
of the occupants and this remains true even if the
officers, while knocking, identify themselves as law
enforcement officers.
The Alaska Supreme Court explored this point
in Lockwood. Under Lockwood, if the State is to
establish substantial compliance with the knock and
announce statute, the State must prove, at a minimum,
that the police identified themselves as police
officers. Lockwood, 591 P.2d at 972. But the supreme
court further explained that the officers act of self-
identification, standing alone, is not enough to
establish substantial compliance with the statute:
[I]dentification alone [will] constitute substantial
compliance only if the surrounding circumstances made
the officers purpose clear to the occupants[,] or [if
the circumstances] showed that a demand for admittance
would be futile. Id.6
In Berumens case, the police never announced
their authority or purpose for entering the hotel room,
nor was there any other circumstance that would have
made the officers purpose clear to the occupants.
Seemingly, then, the State failed to establish
substantial compliance under the Lockwood test.
Arguing against this conclusion, the State
points out that in Fleener v. State, 686 P.2d 730, 735-
36 (Alaska App. 1984), this Court found substantial
compliance with the knock and announce statute in a
case where the police identified themselves but did not
announce their purpose or authority before entering the
house to serve a search warrant. However, as this
Court explained at length in Fleener, our ruling rested
on the trial judges findings that Fleener was in fact
aware of the officers purpose and authority, even
without an announcement.
The trial judge found that Fleener was
already aware of the officers presence (they were
visibly staking out her house) and already aware of the
officers purpose (to seize her five pounds of
marijuana, which she had already told them about). Id.
at 735. Given these findings of fact, we declared that
it was reasonable for the trial court to conclude that
Fleener knew [that] the police were [coming to] her
residence to seize marijuana and that they had now
obtained lawful authority to enter. Id. at 736.
There are no comparable findings of fact in
Berumens case. When the superior court denied Berumens
suppression motion, the court noted that the officers
announced their identity as police officers soon after
they crossed the threshold, before they fully entered
the room. This, the court reasoned, was sufficient to
establish substantial compliance as defined in
Lockwood.
But as we have just explained, the officers
speedy act of self-identification does not satisfy the
Lockwood test for there were no circumstances that
made the officers purpose clear to the occupants. The
fact that police officers knock on the door of a
dwelling and identify themselves as police officers
does not, standing alone, satisfy the knock and
announce requirement. The facts of the present case
are even less favorable to the State for the officers
did not announce their identity until they were already
breaking into the room.
Lockwood requires either proof that the
officers announced their authority and purpose or,
failing that, proof that the officers at least
announced their identity and that the surrounding
circumstances independently and adequately communicated
the officers authority and purpose for the entry. The
State failed to prove either of these alternatives.
Accordingly, the State failed to prove substantial
compliance with AS 12.25.100.
Why we conclude that the exclusionary rule should be
applied to violations of AS 12.25.100 when the
violation is not excused under the substantial
compliance doctrine
When Berumens suppression motion was
litigated in the superior court, both the parties and
the court appear to have assumed that, if the court
found a violation of AS 12.25.100, Berumen would be
entitled to suppression of the resulting evidence. The
parties superior court pleadings contain no discussion
of whether the exclusionary rule applies to violations
of this statute.
One reasonable explanation for the parties
failure to discuss this issue is that, in Davis v.
State, 525 P.2d at 543, our supreme court seemingly
resolved this issue. The supreme court stated if a
police entry were found to violate AS 12.25.100, the
evidence obtained [as a result] would not be
admissible. 525 P.2d at 543.
But now, on appeal, the State argues that the
superior courts denial of Berumens suppression motion
can be affirmed on the alternative theory that the
exclusionary rule does not apply to violations of AS
12.25.100 so that, even if the police violated this
statute, Berumen would not be entitled to suppression
of any evidence.
The State concedes that Davis apparently
mandates suppression, but the State points out that
what the supreme court said in Davis on this issue is
only obiter dictum because the court ultimately
concluded that the State had proved substantial
compliance with the statute.
The State further points out that the Davis
court relied on federal case law on this issue and
that, since the time of the Davis decision, federal law
has changed. As explained earlier in this opinion, the
United States Supreme Court has now declared that the
exclusionary rule does not apply to violations of the
federal knock and announce statute. Hudson v.
Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56
(2006).
Berumen, for his part, argues that it is too
late for the State to raise this issue concerning the
applicability of the exclusionary rule because the
State did not argue this in the superior court.
Berumen also argues for the first time on
appeal that the Alaska Constitution independently
guarantees a persons right to the same type of
announcement that is required by AS 12.25.100. Thus,
according to Berumen, even if a violation of the
statute would not trigger the exclusionary rule, the
same facts that give rise to the statutory violation in
his case also give rise to a constitutional violation
and the exclusionary rule would apply to this
constitutional violation.
We disagree with Berumens contention that it
is too late for the State to assert its exclusionary
rule argument. In essence, the State is claiming that
any error in the superior courts substantial compliance
analysis is harmless because, as a matter of law, a
violation of AS 12.25.100 does not trigger the
exclusionary rule.
Berumen cites Moreau v. State, 588 P.2d 275,
280 (Alaska 1978), and Longley v. State, 776 P.2d 339,
343-44 (Alaska App. 1989), for the proposition that
claims involving the exclusionary rule are not
appropriately raised for the first time on appeal. But
in both of these cases, it was the defendant who argued
for the first time on appeal that certain evidence
introduced by the State should have been suppressed.
That is, the defendants in Moreau and Longley were
asking the appellate court to reverse their convictions
based on arguments that were not brought to the
attention of the trial courts. Absent plain error,
this is not allowed.
An appellee, on the other hand, is allowed to
argue for affirmance of a trial courts decision on any
legal basis revealed by the record even though the
trial court did not consider the appellees legal
theory, or even though the trial court considered and
rejected the appellees theory.7 The State, as the
appellee in this case, is therefore entitled to try to
defend the superior courts decision by asserting that
suppression of evidence is not a proper remedy for a
violation of AS 12.25.100.
In contrast, Berumen is precluded from
pursuing his new argument that the Alaska Constitution
independently imposes the same strictures on the police
as the ones found in AS 12.25.100. Absent plain error,
an appellant is not entitled to argue for reversal of
the trial courts judgement on a basis that was not
presented to the trial court. Moreover, Berumens
constitutional argument is raised for the first time in
his reply brief another basis for rejecting it.8
With this as preface, we now turn to the
question of whether Alaska law requires suppression of
evidence obtained through an unexcused violation of
AS 12.25.100.
We agree with the State that our supreme
courts statement about this issue in Davis is only
dictum, not binding precedent. We further agree that,
because the supreme courts statement was supported by
no analysis, and was premised on federal case law that
has now been overturned, the persuasive power of Davis
on this issue is much diminished.
But the State is wrong when it argues that
[t]he only basis for applying [the] exclusionary rule
[to] a violation of AS 12.25.100 is the dictum in
Davis. This Courts decision in Harker v. State, 637
P.2d 716 (Alaska App. 1981), recognizes that it is
sometimes appropriate to apply the exclusionary rule to
violations of a statute (as opposed to violations of
the constitution), and Harker sets forth the factors
that a court should consider when making this
assessment.
Under Harker, we must consider (1) whether
the statutory requirement or restriction is clear and
widely known; (2) whether the statute is primarily
designed to protect the personal rights of individual
citizens, as opposed to being intended more for the
benefit of the people as a whole; (3) whether admission
of evidence obtained in contravention of the statute
would require the court to condone dirty business ; and
(4) whether it appears that the police have engaged in
widespread or repeated violations of the statute.
Harker, 637 P.2d at 719.9
The first Harker factor points toward
application of the exclusionary rule for unexcused
violations of the knock and announce statute. The
knock and announce requirement is both clear and widely
known. It has been a fixture of Alaska law for more
than a century, and it has been frequently litigated in
appellate cases.
The second Harker factor likewise points
toward application of the exclusionary rule. AS
12.25.100 is clearly designed to protect the individual
rights of homeowners, hotel room occupants, and others
who expect privacy in a building or vessel.
The third Harker factor is less clear, but
only because the Harker court did not explain what it
meant by dirty business. However, the Harker court did
say that this phrase was derived from United States v.
Walden, 490 F.2d 372, 377 (4th Cir. 1974). In Walden,
the Fourth Circuits use of the phrase dirty business is
accompanied by a citation to a passage from McNabb v.
United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819
(1943).
McNabb was a case that presented the issue of
whether a confession should be suppressed because the
defendant was kept incarcerated (for the purpose of
continued interrogation) in violation of a federal
statute that mandated prompt court appearances for all
newly arrested criminal suspects. The Supreme Court
held that this violation of the statute required
suppression of the resulting confession. In the
passage cited by the Fourth Circuit in Walden, the
Supreme Court declared:
Plainly, a conviction resting on evidence
secured through such a flagrant disregard of
the procedure which Congress has commanded
[i.e., prompt arraignment of arrested
criminal suspects] cannot be allowed to stand
without making the courts themselves
accomplices in wilful disobedience of [the]
law.
McNabb, 318 U.S. at 345, 63 S.Ct. at 615.
In the same paragraph of Harker
that discusses the condonation of dirty
business, the Harker court also cites State
v. Danko, 548 P.2d 819 (Kan. 1976). In
Danko, the Kansas Supreme Court ruled that
application of the exclusionary rule to a
violation of the Posse Comitatus Act would be
inappropriate because the illegality (use of
military personnel to perform a search) was
almost a happenstance, given the fact that
regular police officers were also present who
easily could have performed the contested
search if they had understood that the Posse
Comitatus Act presented any problems. Danko,
548 P.2d at 825.
These portions of the Walden,
McNabb, and Danko decisions illuminate what
the Harker court meant by the condonation of
dirty business. And, in this light, we
conclude that the third Harker factor also
points toward application of the exclusionary
rule here.
The police officers in this case
violated a longstanding requirement of Alaska
law that is designed to protect the privacy
and dignity of this states citizens. On the
issue of whether the police must announce
their claimed authority and purpose, and on
the related issue of whether the police are
allowed to break into a building if they have
neither sought nor been refused admittance,
the statute is written in clear and
unambiguous terms. The only exception to the
statutes requirements the exigent
circumstances exception has been identified
and analyzed in Lockwood and in various
subsequent decisions issued by this Court,
and the State concedes that this exception
does not apply to the facts of Berumens case.
Under these circumstances, the
words of the Supreme Court in McNabb are
likewise applicable to Berumens case: the
evidence found in the hotel room was secured
through such a flagrant disregard of the
procedure specified by the Alaska legislature
that it cannot be allowed to stand without
making the courts themselves accomplices in
[willful] disobedience of [the] law.
Finally, the fourth Harker factor
points toward application of the exclusionary
rule. The fact that there are several Alaska
appellate decisions that discuss the meaning
and application of AS 12.25.100 suggests that
this issue comes up more than occasionally in
criminal litigation. And yet, despite this,
it appears that police officers may not be
paying sufficient attention to this statute.
During the evidentiary hearing in this case,
one of the officers could not remember that
one of the reasons for the knock and announce
statute is to protect citizens privacy, and a
second officer testified that he had no idea
why the officers failed to abide by the
requirements of the statute when they entered
Berumens hotel room. Given this history and
this record, we cannot ignore the possibility
that there may be widespread or repeated
violations of the statute.
In sum, we conclude that all four
of the factors mentioned in Harker support
the application of the exclusionary rule to
violations of AS 12.25.100 that are neither
justified by exigent circumstances nor
excused under the substantial compliance
doctrine.
Conclusion
For the reasons explained here, the superior
court should have granted Berumens suppression
motion. The judgement of the superior court is
REVERSED and, pursuant to the Cooksey plea
agreement negotiated by the parties, the superior
court is directed to dismiss the charges against
Berumen.
_______________________________
1 AS 11.71.030(a)(1) and AS 11.51.130(a)(2), respectively.
2 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
3 Overruled on other grounds in Harker v. State, 663 P.2d 932
(Alaska 1983).
4In fact, this statutory requirement is of even older
vintage: the same wording appears in the 1854 Deady
Code of the Oregon Territory: The officer may break
open any outer or inner door or window of a dwelling
house, or otherwise, to execute the warrant, if after
notice of his authority and purpose, he be refused
admittance. (Quoted in State v. Ford, 801 P.2d 754,
759 n. 14 (Or. 1990).)
5 Quoting People v. Peterson, 511 P.2d 1187, 1192; 108
Cal.Rptr. 835, 840 (Cal. 1973).
6 Internal quotation marks and citations omitted.
7 See Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994);
Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Millman v.
State, 841 P.2d 190, 195 (Alaska App. 1992); Russell v.
Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).
8 See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406, 411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641
P.2d 211, 213 n. 4 (Alaska 1982); Charliaga v. State, 157
P.3d 1053, 1055-56 (Alaska App. 2007).
9 Citing United States v. Walden, 490 F.2d 372 (4th Cir.
1974).
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