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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
| ROBERT DUANE GIBSON III, | ) |
| ) Court of Appeals No. A-9720 | |
| Appellant, | ) Trial Court No. 3AN-02-06007 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2212 April 10, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. W. H.
Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
Robert Duane Gibson III was convicted of two counts of
misconduct involving a controlled substance in the second
degree,1 one count of misconduct involving a controlled substance
in the fourth degree,2 and one count of disorderly conduct.3
Gibson appeals, arguing that Superior Court Judge Michael L.
Wolverton erred in denying his motion to suppress evidence.
Gibsons motion to suppress was based on his claim that the police
discovered the evidence of his drug offenses by illegally
entering his trailer without a warrant. The State argued that
the police were authorized to enter Gibsons trailer under the
emergency aid exception to the warrant requirement. Judge
Wolverton found that the police entry was justified under the
emergency aid exception and denied Gibsons motion to suppress.
We reverse Judge Wolvertons decision because we conclude that the
circumstances surrounding the search, as established at the
evidentiary hearing, would not have led a prudent and reasonable
officer to perceive an immediate need to take action in order to
prevent death or to protect against serious injury to persons or
property.4
Factual and procedural background
On July 10, 2002, a woman called 911 to report a
domestic disturbance. The 911 operator entered the text, Female
stated male was threatening to stab her in the head. Could hear
1119 [disturbance] in background, which was then transmitted.
Anchorage Police Officers Justin Doll and Francis Stanfield were
dispatched to the source of the call, a trailer on Eureka Street.
Upon arriving, Officers Doll and Stanfield heard a woman
screaming in the trailer. Moments later, Lisa Bevin tumbled out
of the door of the trailer wearing only a tank top. Officer
Stanfield noticed that Bevin had a cut on the back of her head
that was bleeding and her eye was swollen. Bevin saw the
officers and said, Help me, help me.
As the officers tried to talk to Bevin, Gibson appeared
in the doorway and then started to go back inside. Officer Doll
testified that because he did not know who these people were, how
they were involved in the call ... [and] we didnt really have
control of [the situation] at that point, he called for backup.
The officers drew their weapons and ordered Gibson to come out of
the trailer. Gibson complied, and the officers took him into
custody outside the trailer. Gibson offered no resistance and
was cooperative. Officer Stanfield handcuffed Gibson and placed
him in the back of his patrol car.
While the police were dealing with Gibson, Bevin went
back into the trailer and put on a pair of pants. The police
asked her to come out of the trailer. She asked for permission
to put on some shoes, and the police agreed. She then came out
of the trailer.
The police attempted to talk to Bevin, but Bevin was
upset and screaming and crying and carrying on to such an extent
that Officer Stanfield put her in the back of a patrol car.
Bevin told Officer Doll that there was no one else in the
trailer. Officer Doll testified that he did not know if Bevin
was the person who had made the 911 call, but there is no
indication that he asked Bevin whether she had made the call.
Once Bevin and Gibson were under control, Officer Doll
contacted the officer who was responding as backup to let him
know that he could proceed to the trailer without his lights and
siren, because a suspect was already in custody. Officer Doll
testified that during that time, they saw nothing else that would
indicate that there was another person inside [the trailer].
Once the backup officer arrived, he supervised Gibson
and Bevin while Officers Stanfield and Doll entered the trailer
to search for anyone who might be injured. Officer Doll
explained that, although Bevin had told him that there was no one
else in the trailer, people had lied to him in the past, and he
needed to make sure there was no one still inside the trailer who
had been injured in some way. When they entered the trailer, the
officers discovered a methamphetamine laboratory. The police
later obtained a warrant, reentered the trailer, and gathered
evidence of the illegal drug activity.
The State charged Gibson with two counts of misconduct
involving a controlled substance in the second degree for
manufacturing methamphetamine, and for possessing the precursors
of methamphetamine with the intent to manufacture it. The State
also charged Gibson with misconduct involving a controlled
substance in the fourth degree for maintaining a dwelling used
for keeping or distributing controlled substances, and with
assault in the fourth degree for his alleged assault on Lisa
Bevin.
Gibson filed a motion to suppress. In that motion, he
argued that the police had discovered the evidence of the
methamphetamine laboratory when they illegally entered his
trailer without a warrant. The State argued that the police were
authorized to enter his trailer based upon the emergency aid
exception to the warrant requirement.
Following evidentiary hearings, Judge Wolverton denied
Gibsons motion to suppress. Judge Wolverton found that the
officers did not act unreasonably in not relying on Bevins claim
that no one else was in the trailer when they entered the trailer
to make sure that no one else was injured or in need of medical
assistance.
A jury convicted Gibson on two counts of misconduct
involving a controlled substance in the second degree and one
count of misconduct involving a controlled substance in the
fourth degree. The jury also convicted Gibson of disorderly
conduct, a lesser-included offense of assault in the fourth
degree. Gibson appeals.
Why we conclude that warrentless entry into
Gibsons trailer was not justified by the emergency
aid exception
We discussed the emergency aid exception to the warrant
requirement in Gallmeyer v. State.5 In Gallmeyer, the defendant
appealed his conviction for being a felon in possession of a
concealable firearm.6 He argued that the police obtained the
firearm by illegally entering his home.7
The case arose from a domestic dispute in which David
Gallmeyer hit his wife, Linda, in the face, pointed a gun at her,
and pushed her out of their house.8 Linda fled across the street
and called the police from a neighbors house. She informed
Gallmeyer that she had called the police and told him that if he
put their baby on the porch, she would not ask the police to
enter the house when they arrived.9 In response, Gallmeyer put
the baby on the front porch.10
After the police arrived, Linda told them that her
husband was intoxicated and that he had struck her, threatened
her with a gun, and ejected her from the house.11 She also
disclosed that there were numerous guns in the house.12 Linda
urged the police to bring her daughter to her.13 Based on
Gallmeyers violent and intoxicated state and the fact that he
both possessed guns and had recently made threats with them, the
police officers feared for their own safety and that of the
child.14 They decided the safest course of action would be to
try to calm Gallmeyer down before attempting to pick up the
baby.15 A police officer testified that he did not attempt to
pick up the baby because he thought this would not be safe for
either him or the child.16 When the officer got to the house, he
talked to Gallmeyer, who was inside the home. The officer
ultimately entered the house, pulled a gun from Gallmeyers
waistband, and struggled with him as he reached for another gun,
which went off.17 No one was injured. Gallmeyer was arrested.18
We upheld the trial courts ruling denying Gallmeyers
motion to suppress. We first set out the basic rule that
warrantless entries are deemed per se unreasonable and may be
tolerated only if they fall within one of the well-established
and specifically defined exceptions to the warrant requirement.19
We then went on to discuss the emergency aid exception to the
warrant requirement.20 We adopted and applied the three-part
test articulated by the New York Court of Appeals in People v.
Mitchell:21
(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
place to be searched.[22]
In concluding that the emergency aid exception had been
satisfied in Gallmeyers case, we observed that the emergency aid
doctrine ordinarily requires true necessity that is, an
immediate and substantial threat to life, health, or property.23
We went on to observe:
[T]rue necessity has never been construed to
require absolute proof that injury would
necessarily have occurred. ... Rather, in
determining necessity, the probability and
potential seriousness of the threatened harm
must be viewed objectively and balanced
against the extent to which police conduct
results in a violation of privacy
interests.[24]
Applying this test to Gallmeyers case, we concluded
that the officers decision to contact David Gallmeyer before
attempting to pick up the Gallmeyer baby was a reasonable and
direct effort to deal with the threat of danger existing at the
time, and that [the officers] entry of the Gallmeyer residence to
establish this contact was permissible.25
Applying the Gallmeyer standard to Gibsons case, we
conclude that the State did not present sufficient evidence to
justify entering Gibsons home without a warrant. The Gallmeyer
test requires us to give substantial weight to a citizens right
to privacy in his home. In order to enter a home based upon the
emergency aid exception, we believe that the State must show true
necessity that is, an imminent and substantial threat to life,
health, or property.26 In addition, although Gallmeyer
emphasizes that a showing of necessity does not require absolute
proof that injury would necessarily have occurred, this test
implies that a mere possibility that an emergency exists will
ordinarily not be sufficient.27
The State justifies the police entry into Gibsons home
based on speculation. The States case rests on the contention
that the officers did not know whether Bevin was the person who
made the 911 call, that the police were responding to a serious
assault which apparently involved a knife, that Bevin was
hysterical and uncooperative, and the police could not rely on
her statement that there was no one else in the trailer. But the
facts known to the officers at the time they entered the trailer
strongly support the conclusion that Bevin was the person who
made the 911 call. Bevins injuries were consistent with the
threat that the caller reported, but the police never asked Bevin
whether she was the person who made the call. Perhaps this was
because Bevin was uncooperative or because the officers were not
willing to credit Bevins statements given the emotionally charged
nature of the situation. At the time the police entered the
trailer, there was no sign that there was anyone inside, and the
police had both Gibson and Bevin in custody. At this point, the
police had no reason to believe that there was anyone else in the
trailer.
Our concern is that, if we were to authorize the police
to enter someones home based on these facts, the police would
routinely be able to search a residence in most cases where there
was a report of a serious domestic dispute. We conclude that,
under the circumstances of Gibsons case, the emergency aid
exception to the warrant requirement did not justify the police
entry into Gibsons home. Although it is understandable that the
police wanted to eliminate even the most remote possibility that
there was an additional victim in the home, the scant evidence
supporting that possibility in Gibsons case was not sufficient to
override the important constitutional requirement that the police
have a warrant to enter a home.
Conclusion
We hold that the police unlawfully entered Gibsons
trailer following his arrest. We do not address the questions of
what evidence should be suppressed as a result of this illegal
search, or whether the indictment should be dismissed. The trial
court has not had the opportunity to decide these issues.
Accordingly, we REVERSE the decision of the trial court and
REMAND for further proceedings consistent with this opinion.
_______________________________
1 AS 11.71.020(a)(2), (4).
2 AS 11.71.040(a)(5).
3 AS 11.61.110.
4 Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982).
5 640 P.2d 837.
6 Id. at 839.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id. at 840.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. at 841.
20 Id.
21 347 N.E.2d 607 (N.Y. 1976). The second prong of this
test has been abrogated under federal law by Brigham City, Utah
v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1947, 164 L. Ed.
2d 650 (2006).
22 Id. at 609, quoted in Gallmeyer, 640 P.2d at 842.
23 Gallmeyer, 640 P.2d at 843 (quoting Edward G. Mascolo,
The Emergency Doctrine Exception to the Warrant Requirement Under
the Fourth Amendment, 22 Buff. L. Rev. 419, 434 (1973)).
24 Id. at 844.
25 Id. at 845.
26 Id. at 843 (quoting Edward G. Mascolo, The Emergency
Doctrine Exception to the Warrant Requirement Under the Fourth
Amendment, 22 Buff. L. Rev. 419, 434 (1973)).
27 Id. at 844.
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