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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-10322 | |
| Petitioner, | ) Trial Court No. 1SI-08-182 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| ALLEN SIFTSOFF JR., | ) |
| ) | |
| Respondent. | ) No. 2262 April 30, 2010 |
| ) | |
Petition for Review from the Superior Court,
First Judicial District, Sitka, David V.
George, Judge.
Appearances: David L. Brower, Assistant
Attorney General, Criminal Division Central
Office, and Richard A. Svobodny, Acting
Attorney General, Juneau, for the Petitioner.
Michael Jude Pate, Assistant Public Defender,
Sitka, and Quinlan Steiner, Public Defender,
Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
Sergeant Daryl Rice of the Sitka Police Department saw
a truck traveling at approximately sixty to sixty-five miles per
hour in a forty-five mile per hour zone. Sergeant Rice activated
his overhead lights and pursued the truck, reaching speeds which
he estimated at eighty to eighty-five miles per hour. Sergeant
Rice pursued the truck as it slowed down to turn into the gravel
road of a trailer park. The truck momentarily fishtailed, kicked
up some gravel and dust, and then continued, apparently under
control. Sergeant Rice recognized the driver as Allen Siftsoff
Jr.
Siftsoff got out of his truck and started walking
toward a trailer that Sergeant Rice knew was Siftsoffs trailer.
Sergeant Rice told Siftsoff that he was conducting a traffic stop
and told him not to go into the trailer. Siftsoff shook his head
and went into the trailer.
After calling for backup and checking to make sure no
one else was in the truck, Sergeant Rice knocked on the trailer
door, announced his presence, and then proceeded to open the
trailer door and enter. In the trailer, he encountered Siftsoff,
who was apparently intoxicated. Sergeant Rice took Siftsoff into
custody.
A grand jury indicted Siftsoff on three counts: (1)
failure to stop at the direction of a peace officer,1 a class C
felony; (2) reckless driving,2 a misdemeanor; and (3) misdemeanor
driving under the influence.3 Siftsoff filed a motion to
suppress, arguing that Sergeant Rice had illegally entered his
residence and asking the court to suppress all of the evidence
which derived from the entry the evidence of Siftsoffs
intoxication. The State argued that Sergeant Rices entry into
Siftsoffs residence was justified under the doctrine of hot
pursuit.
Following an evidentiary hearing, Superior Court Judge
David V. George granted the motion to suppress. Judge George
held that, to enter a home, the police must not only have
probable cause, but also that an emergency or exigency must also
exist and the emergency or exigency must be of such a nature that
it compels entry into a persons home by police before a warrant
can be secured. Judge George concluded that the police had not
met this standard. He concluded that Sergeant Rice had probable
cause to believe Siftsoff was driving the vehicle [that Sergeant]
Rice observed and that Siftsoff remained in the house at the time
of [Sergeant] Rices entry. Judge George stated that there was
little danger that Siftsoff would have been able to escape, that
he would not have gotten very far if he had attempted to escape,
and that Siftsoff would not have been a danger to others. Judge
George further stated that there was no indication that Siftsoff
was armed or dangerous. Despite finding that Sergeant Rices
pursuit was immediate and continuous, Judge George concluded that
given the specific facts of this case the appropriate action
would have been for Sergeant Rice to await the arrival of back-up
and obtain a warrant from a neutral judge or magistrate.
Why we uphold Judge Georges decision
We conclude that Judge Georges order accurately
reflects Alaska law. We have reviewed the Alaska cases which
discuss the hot pursuit exception to the warrant requirement. In
reviewing these cases, we find that the decisions do not support
allowing the police to enter a residence merely because the
police are engaged in an immediate and continuous pursuit of a
suspect. The police must have a compelling need for official
action and no time to secure a warrant.4
We discuss the cases in chronological order. In Gray
v. State,5 the Alaska Supreme Court discussed the hot pursuit
doctrine. Relying on United States v. Robinson,6 the supreme
court stated that hot pursuit requires an exigency in which time
[is] of the essence and it is not practical to obtain a warrant.7
In Anchorage v. Dunkelberger,8 an unpublished decision,
we decided a case with facts similar to Siftsoffs case. In
Dunkelberger, a police officer was investigating an automobile
accident. One of the drivers involved in the accident informed
the officer that the other driver had fled from the scene on
foot. The officer was able to obtain information about the
driver who had fled from the drivers vehicle registration. The
driver who had remained at the scene pointed out the apartment to
which the other driver had fled. The officer went to the
apartment, saw the door was slightly ajar, and saw someone lying
on the bed inside. After knocking and identifying himself, the
police officer called out Dunkelbergers name. He heard a groan
which he interpreted as a response and entered the apartment and
arrested Dunkelberger.
Dunkelberger moved to suppress. The Municipality
argued that the officers entry was justified either by the
doctrine of hot pursuit or by Dunkelbergers consent. We upheld
the trial courts ruling:
We believe that the trial court could
reasonably conclude that the entry into
Dunkelbergers apartment was not justified by
hot pursuit. This exception clearly
contemplates that the entry into a private
residence must be necessary because of
circumstances of an emergency nature. There
was no showing that there was an emergency
which would justify a hot pursuit entry.[9]
In Johnson, we generally discussed exigent
circumstances, including hot pursuit.10 We observed that a
warrantless entry into a persons home to arrest him is per se
unreasonable and therefore in violation of the state and federal
constitutions unless it falls within one of the limited
exceptions to the warrant rule.11 We set out a number of factors
for a court to consider to determine whether there were exigent
circumstances which would justify such an entry. But we
summarized the test for whether there were exigent circumstances
by stating that exigent circumstances occurred where there is a
compelling need for official action and no time to secure a
warrant.12
We addressed the doctrine of hot pursuit again in
Wilson v. State.13 We set out the facts of Wilson as follows:
On the evening of January 14, 1983, state
troopers observed Wilson driving erratically.
When the troopers attempted to pull Wilson
over he refused to stop and nearly lost
control of his truck trying to get away.
After hitting one of the patrol cars and
running a red light, Wilson drove to his
home. There he jumped out of his truck and
attempted to run into a greenhouse. The
troopers followed him and after a scuffle
Wilson was subdued and handcuffed.[14]
We held that the officers were in hot pursuit of Wilson when they
entered the greenhouse and therefore did not need a warrant.15
Wilson is distinguishable from Siftsoffs case. It appears from
the circumstances of the case that the police had to act promptly
to take Wilson into custody.
In 1993, in Garcia v. State,16 an unpublished
decision, we again relied on the Johnson test to determine
whether the police were justified by exigent circumstances to
enter a persons home: in light of the totality of the
circumstances was there a compelling need for official action and
an insufficient time to obtain a warrant?17
In 1999, in Reekie v. Anchorage,18 an Anchorage police
officer developed reasonable suspicion that the driver of a car
was intoxicated. He followed the driver, who parked his car in
one of eight parking spaces in an underground garage. The
officer stopped his car outside the garage, walked into the
garage, and contacted Reekie, who was sitting in his car. The
officer arrested Reekie for driving while intoxicated. Reekie
moved to suppress all evidence obtained as a result of the
warrantless entry into the garage of his condominium. In the
trial court, the Municipality conceded that Reekie had an
expectation of privacy in his garage but argued that exigent
circumstances justified the entry.19 The trial judge ordered the
evidence suppressed.
We held that probable cause to arrest Reekie would not
have justified a warrantless entry into his garage unless exigent
circumstances required an immediate entry. In assessing the need
for immediate action, we examine the totality of the
circumstances, balancing the nature of the exigency against the
intrusiveness of the warrantless entry.20 We observed that
Alaska statutes provide a method to obtain search warrants
telephonically. We stated that the Municipality did not attempt
to show that a telephonic warrant would have been ineffectual to
prevent the loss of evidence in this case. Nor is there any
indication that it was necessary to immediately restrain Reekie
to prevent him from escaping or committing further crimes. We
upheld the trial courts decision suppressing the evidence.
In this case, Judge George applied the hot pursuit
analysis that our supreme court originally set out in Gray.21
Although Gray dealt with the warrantless entry of a motor
vehicle, this court has consistently applied the Gray analysis to
situations where the police enter a residence in hot pursuit of a
suspect.
Under this analysis, police officers in hot pursuit of
a suspect may enter a residence without a warrant if (1) the
officers have probable cause to believe that the person has
committed a serious offense; (2) the officers know or have
probable cause to believe that the person is in the residence
they are about to enter; and (3) the officers have probable cause
to believe that some additional exigent circumstance requires a
prompt entry into the residence for instance, that the person is
armed or otherwise presents an imminent threat of harm to the
officers or others, or that the person will flee the residence
and escape unless the officers make an immediate arrest, or that
the person will destroy evidence unless immediately apprehended.
Finally, even when these criteria are met, the law requires the
police to restrict themselves to a peaceable entry unless the
situation reasonably requires the use of force.
Having reviewed the record in this case, we conclude
that Judge George appropriately applied this analysis to the
facts presented here, and that he properly granted Siftsoffs
suppression motion.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 28.35.182(a).
2 AS 28.35.400.
3 AS 28.35.030(a)(2).
4 Johnson v. State, 662 P.2d 981, 985 (Alaska App. 1983)
(citing Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942,
1949-50, 56 L. Ed. 2d 486 (1978)). See also Ingram v. State,
703 P.2d 415, 422 (Alaska App. 1985).
5 596 P.2d 1154 (Alaska 1979).
6 533 F.2d 578 (D.C. Cir. 1976), cert. denied, 424 U.S. 956,
96 S. Ct. 1432, 47 L. Ed. 2d 362 (1976).
7 Gray, 596 P.2d at 1156-57.
8 Memorandum Opinion and Judgment No. 106 (Alaska App., May
16, 1982), 1982 WL 889220.
9 Dunkelberger, 1982 WL 889220 at *1 (internal citations
omitted).
10 Johnson, 662 P.2d at 984-88.
11 Id. at 984.
12 Id. at 985-86 (citations omitted).
13 680 P.2d 1173 (Alaska App. 1984).
14 Id. at 1177.
15 Id. (citation omitted).
16 Memorandum Opinion and Judgment No. 2650 (Alaska App.,
Mar. 24, 1993), 1993 WL 13156622.
17 Id. at *3.
18 Memorandum Opinion and Judgment No. 3998 (Alaska App.,
Feb. 24, 1999), 1999 WL 91810.
19 Reekie, 1999 WL 91810 at *1.
20 Id. at *2 (citations omitted).
21 596 P.2d at 1157.
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