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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DALE G. STARKEY,
Court of Appeals No. A-10593
Appellant, Trial Court No. 4FA-08-2424 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2348 - March 9, 2012
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Paul R. Lyle, Judge.
Appearances: Robert John, Fairbanks, for the Appellant. Mary
A. Gilson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
In early April 2008, a group of law enforcement officers went to the Salcha
residence of Dale G. Starkey in response to a tip that he was growing marijuana on a
commercial scale. The officers attempted to make contact with Starkey, but no one was
home. While they were standing in the yard, the officers smelled the odor of growing
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marijuana, they heard the noise of lighting ballasts and/or fans coming from within the
house, and they saw numerous items in the yard (dozens of one- and five-gallon buckets,
plus a quantity of fertilizer and growing medium) that were indicative of an ongoing
agricultural endeavor.
Based on the informant's tip and on these corroborative observations, the
officers decided to seek a warrant to search Starkey's residence. One of the officers -
Investigator Garrett Frost - left the scene to apply for the warrant, while the rest of the
officers waited at the residence, both to secure the residence pending the issuance of the
warrant and to aid in the search after the warrant was issued.
While the officers were waiting at the residence, Starkey came home. After
the officers apprised Starkey of the situation, Starkey seemingly gave the officers
permission to enter his house without a warrant. We say "seemingly" because the
superior court later found that, even though a reasonable law enforcement officer would
have believed that Starkey consented to the entry, Starkey had not actually given
unequivocal consent to the entry.
Inside Starkey's residence, the officers observed some five dozen marijuana
plants. The officers then tried to contact Investigator Frost to apprise him of this
discovery, but they could not reach him; Frost was already in the process of presenting
the search warrant application to the magistrate.
About five minutes later, Frost contacted the officers at the scene to
announce that he had obtained the search warrant, and that he was returning to the
residence. When Frost returned, he served a copy of the warrant on Starkey - but by
that time, the other officers were already in the process of dismantling and seizing
Starkey's marijuana growing operation.
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Starkey was ultimately convicted of fourth-degree controlled substance
misconduct under AS 11.71.040(a)(3)(G) - possession of twenty-five or more
marijuana plants.
As we explained above, Starkey seemingly gave the officers permission to
enter and search his house, and the officers initially entered the house on this basis,
without waiting for Investigator Frost to obtain the search warrant. But the superior
court later ruled that Starkey had not given unequivocal consent to this entry and search,
and that the discovery and seizure of Starkey's marijuana plants could not be sustained
under a "consent" theory. The primary question presented in this appeal is whether the
issuance of the search warrant (only minutes later) cured whatever defect there may have
been in the initial entry and search of Starkey's residence.
Was there a defect in the initial entry and search of Starkey's residence?
After Starkey was indicted for fourth-degree controlled substance
misconduct, his attorney filed a motion seeking suppression of the marijuana plants and
other evidence seized from Starkey's home. Superior Court Judge Paul R. Lyle held an
evidentiary hearing to investigate this matter.
At the evidentiary hearing, the State relied on the theory that Starkey had
consented to the officers' entry into his house, but Judge Lyle concluded that the search
of Starkey's house could not be upheld on that basis. Specifically, Judge Lyle found
(1) that a reasonable, objective observer on the scene could have thought that Starkey
had consented to the entry and search of his residence, and thus the officers acted in good
faith when they entered Starkey's home without a warrant, but (2) Starkey did not
actually give an unequivocal consent to the entry and search.
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In their briefs to this Court, both Starkey and the State apparently assume
that Judge Lyle's findings preclude any further argument that the entry and search of
Starkey's residence could be justified as a consent search. But that is not so.
The law is currently unsettled as to whether, when the government claims
that a search was lawful under a "consent" theory, the validity of the consent should be
assessed according to (1) the facts and circumstances as they appeared, at the time, to a
reasonable person in the police officer's position, or (2) all the relevant facts developed
at a later evidentiary hearing, and assessed in hindsight.
This question is discussed at length in Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 8.1(b), Vol. 4, pp. 15-19.
Professor LaFave notes that, although early decisions on this point focused on whether
the suspect had actually given a voluntary consent to the search, the great weight of
authority now favors the "circumstances as they reasonably appeared" approach. In a
supplemental footnote that appears in his 2011-12 pocket part, Professor LaFave writes:
As noted in [ United States v.] Grap, [403 F.3d 439
(7th Cir. 2005)], the "standard of what is reasonably apparent
to a reasonable inquiring officer, with its emphasis on the
deterrence rationale of the exclusionary rule, is the correct
approach", and thus "after-presented evidence" as to the
person's actual mental condition "would be relevant only to
impeach the credibility of the officer or to shed any light on
what was reasonably apparent to him when he obtained the
consent."
Search and Seizure, Pocket Part for 2011-12, p. 4, new footnote 54.1.
Although we note this question of law, we conclude that we should not
decide it. First, the parties have not briefed this question. Second, as we are about to
explain, the validity of Starkey's consent is a moot issue: the seizure of Starkey's
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marijuana plants was rendered lawful when, a few minutes after the officers' initial entry,
a judicial officer issued an untainted search warrant for the residence.
Why we conclude that the issuance of the search warrant cured any defect
in the officers' initial entry and search of Starkey's residence
When Starkey's suppression motion was litigated in the superior court, the
parties and Judge Lyle framed the issue as whether, because of the issuance of the search
warrant, the marijuana plants growing in Starkey's house would have been "inevitably
discovered". But the facts of this case are more accurately characterized as a situation
where the government had an "independent source" for the evidence.
The "inevitable discovery" doctrine applies to situations where the
government concedes that the challenged evidence was obtained unlawfully, but argues
that the evidence inevitably would have been lawfully discovered and seized if events
had run their course. The "independent source" doctrine, on the other hand, applies to
situations where, despite a preceding illegal search or seizure, the government ultimately
obtained the challenged evidence in an ostensibly lawful manner (e.g., under the
authority of a search warrant), and the question is whether the government's authority
for seizing the evidence was indeed independent of the prior illegality.
This distinction is explained by Professor LaFave: "[T]he inevitable
discovery [doctrine] is hypothetical in nature, [and] it does not apply if [an] alternative,
legitimate source is actually used to seize the evidence". Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 11.4(a), Vol. 6, p. 265,
n. 55. 1 This distinction was also addressed by the Alaska Supreme Court in Smith v.
State, 948 P.2d 473 (Alaska 1997):
1 Quoting State v. Boll, 651 N.W.2d 710, 716 (S.D. 2002).
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[P]roperly applied, the "independent source" exception [to
the exclusionary rule] allows the prosecution to use evidence
only if it was, in fact, obtained by fully lawful means. ... The
"inevitable discovery" exception ... differs in one key
respect[:] ... the [challenged] evidence ... [was] not actually
... obtained from an independent source, but rather would
have been discovered as a matter of course if independent
investigations [had been] allowed to proceed.
Smith, 948 P.2d at 479-480 (emphasis added, and citations omitted).
One further aspect of the "independent source" doctrine must be
emphasized: the doctrine applies to situations like the one in Starkey's case - situations
where the police initially discover the evidence unlawfully, but ultimately take
possession of the evidence through a lawful means that is untainted by the prior
illegality. As Professor LaFave explains:
[The "independent source" doctrine] applies not only to
[situations where the] evidence [is] obtained for the first time
during an independent lawful search, but also to [situations
where the] evidence [is] initially discovered during, or as a
consequence of, an unlawful search, but later obtained
independently [through] activities untainted by the initial
illegality. Thus, as in Murray [v. United States, 487 U.S.
533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)], bags of
marijuana first seen by the police during an illegal
warrantless search of a warehouse may, when later seized
under a warrant to search that place, have an independent
source in the warrant - provided , of course, that neither the
decision to seek that warrant nor the decision to issue it was
influenced by the earlier illegal entry and viewing of the
bags.
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Search and Seizure, § 11.4(a), Vol. 6, p. 261 (internal quotation marks omitted; emphasis
in the original).
The Alaska Supreme Court applied this principle in Cruse v. State, 584 P.2d
1141 (Alaska 1978). In Cruse, law enforcement officers opened the trunk of a vehicle
and discovered evidence of a recently committed robbery. The police suspected that
their search of the trunk might have been illegal, but they also believed that there was
sufficient probable cause to justify a search of the trunk (even without knowing its
contents), so the officers applied for a search warrant and did not tell the magistrate about
the earlier discovery of the evidence. The magistrate issued the warrant, the vehicle was
searched again, and the evidence was seized. 2 Cruse was later convicted of robbery. 3
On appeal, Cruse argued that the initial search of the trunk was unlawful,
and that this unlawful search tainted the later search warrant. 4 The Alaska Supreme
Court concluded that there was no need to decide whether the initial search of the trunk
was lawful - because, even if the initial search was unlawful, the later search warrant
constituted an independent source for the evidence. 5
The supreme court noted that the "independent source" doctrine stemmed
from the United States Supreme Court's decision in Wong Sun v. United States, 371 U.S.
471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Wong Sun is the seminal case defining the
"fruit of the poisonous tree" doctrine - the rule that all evidence deriving from unlawful
police conduct must be suppressed. In Wong Sun, the Supreme Court declared that the
test for suppression of derivative evidence was whether the challenged evidence "had
2 Cruse, 584 P.2d at 1143.
3 Id. at 1142.
4 Id. at 1144.
5 Id. at 1145.
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been [obtained] by exploitation of [the original] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint." 6
Applying this rule, the Alaska Supreme Court declared that the question to
be decided in Cruse's case was "whether the subsequent search warrant [was] a product
of the prior allegedly illegal trunk search". 7 The court held that the search warrant was
not tainted:
The [challenged] evidence here was obtained through
information wholly independent of the initial trunk search.
The evidence presented to the district court in support of the
search warrant was procured without resort to any clue or
knowledge gained from the trunk search. [And the]
investigation leading to the lawful search [under the authority
of the warrant] was not intensified or significantly focused by
reason of any tainted information.
Cruse, 584 P.2d at 1145. Thus, the supreme court concluded, the later search of the
trunk conducted under the authority of the search warrant was not tainted by any
potential illegality in the initial search of the trunk. Ibid.
Starkey's case is governed by this same "independent source" principle.
Even if we assume for purposes of argument that the officers' initial entry
into Starkey's residence and their initial search of the residence were unlawful, the fact
remains that this initial entry and search occurred while Investigator Frost was in the
process of applying for a warrant to search Starkey's residence. This search warrant was
issued only minutes after the officers made their initial entry into the residence, and Frost
immediately notified his fellow officers that the warrant had been issued. Frost then
6 Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (quoted in Cruse, 584 P.2d at 1145).
7 Cruse, 584 P.2d at 1145.
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returned to Starkey's residence with the physical warrant, and the warrant was served
and executed while the officers were still at the residence.
Thus, the authority granted by the search warrant was an "independent
source" - an independent and lawful justification for seizing the marijuana plants from
Starkey's residence - provided that the search warrant application was not tainted by
information that the officers obtained during their pre-warrant entry into Starkey's house.
Judge Lyle recognized that this potential for taint was an issue, and he made
findings on this issue at the conclusion of the evidentiary hearing.
The testimony at the hearing showed that Investigator Frost had already left
the scene before Starkey arrived, and before Starkey ostensibly consented to have the
officers enter his house. The testimony also showed that two of the officers who
remained at the scene attempted to contact Frost to tell him that the officers were already
inside the house, and that they had discovered marijuana plants, but neither of these
officers could reach Frost.
Based on this evidence, Judge Lyle found that none of the officers'
observations inside the house were communicated to Frost before he obtained the search
warrant, and that Frost did not rely on any of those observations when he applied for the
warrant. Thus, neither the decision to apply for the warrant nor the content of the
warrant application was tainted by information obtained during the pre-warrant entry into
Starkey's residence.
Even though the decision to apply for the search warrant, and the search
warrant application itself, were not tainted by any information gained during the initial,
pre-warrant entry into Starkey's residence, it is theoretically possible that the execution
of the warrant - i.e., the scope or intensity of the ensuing search - might have been
altered (that is, tainted) by the officers' pre-warrant observations inside Starkey's house.
But Starkey did not raise this argument in the superior court, nor has he made this
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argument on appeal. Moreover, given the nature of the suspected illegal activity (i.e., the
large-scale growing of marijuana), it is hard to imagine that any search of the residence
would not entail an attempt to locate and seize marijuana plants.
For these reasons, the marijuana plants seized from Starkey's residence
were derived from a source that was independent of any potential illegality in the
officers' initial entry into the house. Accordingly, the plants were admissible evidence,
and the superior court correctly denied Starkey's suppression motion.
Starkey's alternative argument based on Alaska Evidence Rule 412
In his reply brief, Starkey argues for the first time that Alaska Evidence
Rule 412 provides an independent ground for suppressing the marijuana plants, wholly
apart from the Fourth Amendment to the federal Constitution or the search and seizure
provision of the Alaska Constitution (Article I, Section 14). Evidence Rule 412
provides, with certain exceptions not pertinent here, that "[e]vidence illegally obtained
shall not be used over proper objection by the defendant in a criminal proceeding".
Starkey argues that, because Evidence Rule 412 does not explicitly
incorporate either the "independent source" doctrine or the "inevitable discovery"
doctrine, neither of these doctrines survived the enactment of Evidence Rule 412. In
other words, Starkey argues that the Alaska Supreme Court, by enacting Evidence Rule
412, abrogated the independent source doctrine and the inevitable discovery doctrine.
Because this argument is raised for the first time in Starkey's reply brief,
it is waived, and we shall address it no further. See, e.g., Petersen v. Mutual Life Ins. Co.
of New York, 803 P.2d 406, 411 (Alaska 1990); Douglas v. State , 215 P.3d 357, 366
(Alaska App. 2009).
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Starkey's alternative argument that the search warrant application failed
to establish probable cause for the search
In his application for the search warrant, Investigator Frost informed the
magistrate that the authorities had received a tip from a confidential informant on April
3, 2008 (i.e., six days before the warrant application) that Dale Starkey was growing
large numbers of marijuana plants at his Salcha residence. The confidential informant
stated that Starkey had approximately 200 marijuana plants in the residence, and the
informant claimed to have personally seen marijuana plants growing inside the residence
in the past.
Frost further informed the magistrate that, around noon on April 9th, he and
several other officers went to Starkey's residence, hoping to find him there and to speak
with him about this allegation. They knocked on the door, but no one responded to their
knocking. However, while standing at the door, they could smell "a strong odor of plant
marijuana" emanating from the house. They could also hear the sounds of what seemed
to be lighting ballasts and/or ventilating fans running inside the residence. The officers
observed that the electric meter for the property was spinning "at an unusual[ly] fast
pace" for a building of comparatively small size (16 feet by 20 feet).
In addition, the officers observed twenty-five 5-gallon buckets and twenty
1-gallon buckets lying outside in plain view, as well as a 30-pound bag of growing
medium (plant starter / fertilizer). Frost told the magistrate that it was common for
marijuana growers to keep and use large numbers of buckets, because they grow each
individual plant in a separate bucket. Frost stated that the large number of buckets in
Starkey's yard tended to show that Starkey was growing marijuana in criminal quantities
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(i.e., that he was growing a large number of plants that would yield more than four
ounces of harvested marijuana). 8
In addition to the foregoing information, Frost included a statistical analysis
of the Matanuska-Susitna Drug Enforcement Unit's raids on marijuana growing
operations during the preceding four years. This analysis was provided to Frost by
Investigator Kyle Young. Here, verbatim, is what Investigator Frost told the magistrate
about this statistical analysis:
Of the marijuana grows seized by the Mat-Su Drug
Unit during this time period, 81 were discovered by officers
smelling the odor of cultivating marijuana. Of these 81 cases:
90.2% contained over one pound of marijuana.
92.6% contained over 1/4 pound of marijuana.
Of the cases with less than 1/4 pounds of marijuana,
2 were felony commercial grow operations and 4 were
harvested between the time officers smelled the grow and the
grow was seized, and much of the marijuana was distributed
prior to seizure (based upon statements from the defendants
and evidence of harvest and/or dismantle).
This data indicates that when [an] officer can smell the
odor of cultivating marijuana on the outside air or during
contact at the suspect's residence, 96% of the time it is a
felony level, commercial grow operation.
8 See State v. Crocker, 97 P.3d 93, 96 (Alaska App. 2004), where this Court held that
no search warrant can issue for evidence of marijuana possession unless the State
affirmatively establishes probable cause to believe that the type of marijuana possession at
issue is something other than the type of possession protected by Alaska's right to privacy
as construed in Ravin v. State , 537 P.2d 494 (Alaska 1975), and Noy v. State , 83 P.3d 538,
542-43 (Alaska App. 2003), on rehearing, 83 P.3d 545, 546-48 (Alaska App. 2003).
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It appears that Frost put this information in the search warrant application to bolster the
conclusion that Starkey was growing marijuana in criminal quantities, based on the smell
of growing marijuana emanating from the residence.
Starkey argues that Investigator Young's statistical analysis of the 81
marijuana raids was of questionable scientific validity, and that Investigator Frost should
not have been allowed to rely on this statistical analysis in his search warrant application
until the statistical information was subjected to a Daubert / Coon analysis. 9
When this issue was raised in the superior court, Judge Lyle concluded that
Young's statistical analysis of the prior drug raids was not "scientific" evidence for
purposes of Daubert and Coon, but was rather a report or summary of information
accumulated by the Mat-Su drug unit through actual experience. Judge Lyle accordingly
concluded that, under the Alaska Supreme Court's decision in Marron v. Stromstad , 123
P.3d 992, 1004 (Alaska 2005), Young's statistical analysis did not need to satisfy the
Daubert / Coon test.
We believe that Judge Lyle's resolution of this issue was correct. Although
there were certainly grounds for questioning the validity of the conclusions that
Investigator Young drew from the 81 prior cases, Young's conclusions were not
"scientific" for Daubert purposes, because they "did not rest on arcane scientific
principles, or on the results of experiments or tests that could only be understood and
interpreted by experts." Ratliff v. State , 110 P.3d 982, 985 (Alaska App. 2005). Rather,
Young's conclusions rested on fairly straightforward mathematics - and some implicit
or unarticulated assumptions about the facts of the 81 underlying cases. The Daubert /
Coon test does not apply to this kind of evidence.
9 See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993); State v. Coon , 974 P.2d 386, 394 (Alaska 1999) (adopting the Daubert
standard for evaluating the admissibility of scientific evidence).
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We note, in addition, that even if this statistical analysis of the prior 81
cases were removed from Investigator Frost's search warrant application, the application
would still provide probable cause for the search warrant.
According to the application, the authorities received a tip from a
confidential informant that there were large numbers of marijuana plants growing in
Starkey's residence in Salcha. When the officers visited Starkey's residence, they
smelled growing marijuana; they heard noise coming from inside the house indicating
the presence of electrical ballasts and/or ventilating fans; they observed that the house
appeared to be using an unusual amount of electricity; they found a large number of
buckets in Starkey's yard (nearly four dozen), of the sort used by marijuana growers; and
they observed a 30-pound bag of growing medium.
Even without Young's statistical analysis (and Young's accompanying
assertion that the perceptible smell of marijuana is a reliable indicator of a large
marijuana growing operation), the information contained in the search warrant
application justified the magistrate's conclusion that there was probable cause to believe
that Starkey was using his residence to grow marijuana in criminal quantities.
Starkey attempts to avoid this result by asserting that Frost's inclusion of
Young's statistical analysis in the search warrant application was "part of a conscious
effort to circumvent and undermine the constitutional safeguard of probable cause". In
other words, Starkey asserts that Frost's inclusion of this information was an intentional
attempt to mislead the magistrate into issuing a search warrant that was not actually
justified - thus requiring invalidation of the search warrant, regardless of whether this
information made any difference to the showing of probable cause.
(See State v. Malkin, 722 P.2d 943, 946 n. 6 (Alaska 1986), as interpreted
in Lewis v. State , 862 P.2d 181, 186-87 (Alaska App. 1993), and Gustafson v. State, 854
P.2d 751, 756 (Alaska App. 1993) - both holding that, for purposes of applying the
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suppression rule announced in Malkin , a conscious misstatement or omission in a search
warrant application is "intentional" only if it was done in a "deliberate attempt to
mislead" the issuing magistrate.)
It is unclear whether Starkey preserved this claim in the superior court. It
is true that, at the evidentiary hearing, Starkey's attorney asserted that the state troopers
knew that Young's statistical analysis was flawed, and the defense attorney declared that
the troopers' inclusion of these statistics in the search warrant application was "a blatant
and ... intentional" misrepresentation to the court. But when Judge Lyle announced his
decision (denying Starkey's suppression motion), the judge declared - without
objection from the defense attorney - that the question of whether Young intentionally
tried to mislead anyone, or whether Young recklessly disregarded the truth when he
applied for the search warrant, was "not really an issue in this case".
Moreover, even if this issue was preserved, Judge Lyle explicitly found
"that the State [had] met its burden of showing that [Young's] statistical analysis [was]
valid." This was tantamount to a finding that Young had not acted recklessly when he
compiled his statistical analysis, and that Frost had not acted recklessly when he included
this information in the search warrant application.
For these reasons, we reject Starkey's contention that the search warrant
application contained intentional misstatements.
Conclusion
The judgement of the superior court is AFFIRMED.
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