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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JARRETT J. OSBORNE,
Court of Appeals No. A-11929
Appellant, Trial Court No. 4FA-13-375 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2589 - March 2, 2018
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Bethany Harbison, Judge.
Appearances: Elizabeth W. Fleming, Attorney at Law, Kodiak,
under contract with the Office of Public Advocacy, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Craig W. Richards,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
Senior Judge. *
Judge ALLARD, writing for the Court.
Senior Judge COATS, dissenting.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
----------------------- Page 2-----------------------
Jarrett J. Osborne was searched by police officers after he came to the door
of a Fairbanks house owned by William Young. At the time Osborne arrived at the
house, the police were executing a search warrant at the residence for evidence of
methamphetamine sales. One of the provisions of this search warrant authorized the
police to search "any person" who might arrive on the premises while the warrant was
being executed.
Based in part on the search of Osborne's person, Osborne was charged with
various drug and weapon offenses. Osborne later moved to suppress the evidence found
on his person, asserting that the search warrant application for Young's residence failed
to establish probable cause for the search-all-persons provision. In response, the State
argued that the same probable cause showing that supported granting the police the
authority to search Young's residence for evidence of drugs and drug sales also
supported granting the police the authority to search any and all persons who might
approach the residence during the execution of that search. The State also argued, in the
alternative, that the policehad sufficient independent reasons to detain, arrest, and search
Osborne, even without the search-all-persons warrant provision, based on the suspicious
circumstances of Osborne's middle-of-the-night arrival at Young's residence and the
totality of the information about Young's drug dealing known to the police at the time.
The superior court agreed with the State that the search warrant application
established probable cause for the "search any person" warrant provision. The court
therefore upheld the search of Osborne's person on that basis, without reaching the
State's alternative argument. Osborne was later convicted following a jury trial.
On appeal, Osborne argues that the superior court erred when it concluded
that the search warrant application established probable cause to search any and all
persons who might arrive on the premises during the execution of the search warrant.
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----------------------- Page 3-----------------------
To resolve Osborne's appeal, we must revisit an issue of law that we
1
discussed, but did not have to fully resolve, in Davis v. State .
Specifically, we must
decide what kind of proof the police must offer in a search warrant application to justify
a warrant provision that allows the police to search any person who might arrive on the
premises during the execution of the warrant.
For the reasons explained in this opinion, we conclude that such a broad
grant of search authority is justified only if the search warrant application affirmatively
establishes good reason to believe that any and all persons arriving at the premises during
the execution of the warrant will probably be participants in the criminal activity being
investigated and will probably be carrying evidence of that criminal activity on their
2
person.
Because the search warrant application in the present case failed to meet
this standard, we conclude that the superior court erred in upholding the search of
Osborne's person under the "search any person" warrant provision. We therefore
remand this case to the superior court so that the court can consider the State's alternative
argument for upholding the lawfulness of that search.
Background facts and prior proceedings
Around midnight on February 9, 2013, officers from the Fairbanks drug
enforcement unit executed a warrant to enter the residence of William Young and arrest
him for drug-related crimes.
1 Davis v. State , 938 P.2d 1076 (Alaska App. 1997).
2 See Betts v. State , 920 P.2d 763, 764 (Alaska App. 1996) (citing State v. De Simone,
288 A.2d 849, 850 (N.J. 1972)); see also 2 Wayne R. LaFave, Search and Seizure § 4.5(e),
at 759-60 (5th ed. 2012); William E. Ringel, Searches & Seizures, Arrests and Confessions ,
§ 5.17 (2d ed. Nov. 2017 Update).
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----------------------- Page 4-----------------------
During their protective sweep of the residence, the police observed
numerous flat screen televisions, which were linked to surveillance cameras. The police
also observed that the outside of the residence was equipped with motion detecting flood
lights, and that all entryways to the residence were protected by barred security doors.
The police ultimately found Young hiding in a bedroom of his house.
Young was searched incident to his arrest, and a large amount of cash was found in his
pockets. In close proximity to Young, the police found a glass pipe containing drug
residue; the residue field-tested positive for methamphetamine. The police also found
Ziploc baggies in the bedroom closet.
Based on the discovery of these items, the police applied for a second
warrant to search the premises (the house and the surrounding curtilage) for evidence of
drug possession and drug sales.
Attached to the search warrant application were two boilerplate lists of
items that the police wanted to search. The first attachment - "Attachment A
Methamphetamine" - included nine different categories of things to be searched, most
of which involved physical items such as money, business records, personal documents,
etc., that might be found in the house. The second attachment - "Attachment B
Electronic Devices, Digital Media" - included a list of the various electronic items that
the police wanted to examine forensically.
Buried in Attachment A's boilerplate list of items to be searched was the
following provision:
Persons on the Premises to Be Searched: Any person on the
premises at the time of service of the search warrant, for
purposes of checking for the possession, sale or distribution
of controlled substances and further for the purpose of
identification.
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----------------------- Page 5-----------------------
The search warrant application did not include any direct reference to this provision.
Nor did the search warrant application explain why this additional grant of search
authority was being requested in this case, or why it might be justified.
The search warrant for the premises was granted around 3:00 a.m., and the
police were authorized to conduct the search "immediately" (rather than waiting until
7:00 a.m.3
). Once the warrant was issued, the team of law enforcement officers, who
were already at Young's residence, served the warrant and began to search the residence.
A short time after the warrant had been served and the search had begun,
Osborne knocked at the front door of Young's residence. A plainclothes officer
answered the door, and Osborne asked if "Bill" was home. Osborne was detained,
brought inside the residence and questioned, and ultimately searched. The search of
Osborne's person revealed $8,390 in cash, 3.5 grams of methamphetamine, and a cell
phone with text messages between Osborne and Young. Based on this evidence, the
police obtained a search warrant to search Osborne's house. As a result of that search,
the police seized drugs, money, and weapons. Osborne was later indicted for various
criminal offenses, including misconduct involving a controlled substance, misconduct
4
involving weapons, and conspiracy.
Prior to trial, Osborne's attorney filed a motion to suppress the evidence
found on Osborne's person and in his house, asserting that the initial search of Osborne's
person was unlawful and that the later search of Osborne's house was fruits of that initial
3 See Alaska Criminal Rule 37(a)(3)(C).
4 See former AS.11.71.030(a)(1) (2013) (third-degree misconduct involving a controlled
substance); AS 11.61.195(a)(1) (second-degree misconduct with weapons); AS 11.61.200-
(a)(1) (third-degree misconduct involving weapons); former AS 11.71.030(a)(1) (2013) and
AS 11.31.120 (conspiracy to commit third-degree misconduct involving a controlled
substance).
- 5 - 2589
----------------------- Page 6-----------------------
unlawful search. The defense attorney argued, in particular, that the search of Osborne's
person could not be justified under the "search any person" provision of the warrant
because the search warrant application failed to establish that there was probable cause
to grant the police such a broad grant of search authority.
In response, the State argued that the search warrant affidavit established
probable cause to believe that illegal drugs were being sold out of the residence and that,
by logical inference, there was probable cause to believe that any and all persons who
came onto the premises while the police were executing the warrant would also be
involved in drug sales or purchases. The State also argued, in the alternative, that the
police had independent grounds to detain, arrest, and search Osborne, even if the "search
any person" warrant provision was not valid.
Following an evidentiary hearing, the superior court denied Osborne's
motion to suppress. Citing this Court's prior decision in Davis, the superior court ruled
that the search warrant application established probable cause to search any and all
persons who might arrive on the premises during the execution of the search. The court
also ruled that the search of Osborne's person fell within the "search any person" warrant
provision because Osborne arrived on the premises (i.e., at the front door of the
residence) while the search of the premises was still ongoing. The court did not address
the State's alternative arguments for upholding the search.
Osbornewas later convicted, following ajury trial, ofmisconductinvolving
a controlled substance, misconduct involving weapons, and conspiracy. This appeal
followed.
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----------------------- Page 7-----------------------
The foundation that the law requires before a judicial officer can grant the
police the authority to search any and all persons arriving on a premises
during the execution of a search warrant
This Court first addressed the validity of a search-all-persons warrant
5
provision more than twenty years ago in Betts v. State .
However, unlike the provision
in the current case, the provision in Betts did not extend to "any person" who might
arrive on the premises during the execution of the search. Instead, the provision in Betts
was limited to individuals who were already present in the residence at the time the
6
search warrant was served.
The search warrant in Betts was issued based, in part, on a report from an
eyewitness who had been in the residence approximately an hour before the warrant was
7
obtained.
The eyewitness reported that she saw cocaine and marijuana in plain view,
8
and that various individuals were "sitting around snorting powder off a dish." The
9
eyewitness also reported that one of the individuals tried to sell her drugs. In addition,
the search warrant application asserted that the owners of the residence were known drug
dealers, that the residence had "lots of traffic coming and going," and that another
10
vehicle had just approached the residence when the original call was made to the police.
5 Betts v. State, 920 P.2d 763 (Alaska App. 1996).
6 Id. at 764.
7 Id. at 765-766.
8 Id. at 765.
9 Id.
10 Id.
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----------------------- Page 8-----------------------
The superior court ruled that the information in the search warrant
application established "that the illegal activity at the residence was ongoing and overt,"
and that the police "were likely to find all persons in the residence participating in the
11
sale and use of cocaine and marijuana." The court also noted that granting the police
the authority to search the individuals they found inside the residence would assist or
facilitate the search of the residence itself, since it would prevent those individuals from
12
trying to frustrate the search by hiding drugs on their persons. We agreed with the
superior court's analysis, and we appended the relevant portions of the superior court's
ruling to our decision on appeal.
13
A year after we issued Betts, we issued our decision in Davis v. State .
Davis dealt with a warrant that authorized a search of a "crack house" - i.e., a residence
which (as we described in Davis) was "a commercial establishment devoted to the
14
distribution of crack cocaine." The search warrant in Davis, like the search warrant in
the present case, authorized the police to search "any person on the premises at the time
15
of service of the search warrant." In Davis, we construed this language broadly,
interpreting it to include not just the persons present when the warrant was served, but
also any and all persons who might arrive on the premises during the ensuing execution
of the warrant.
(In Osborne's case, the superior court adopted a similarly broad
interpretation of the "search any person" provision of the warrant. Osborne does not
11 Id. at 767 (internal citations omitted).
12 Id. at 768.
13 Davis v. State , 938 P.2d 1076 (Alaska App. 1997).
14 Id. at 1078.
15 Id.
- 8 - 2589
----------------------- Page 9-----------------------
argue that the court should have construed the provision more narrowly, or that we
should revisit this aspect of our decision in Davis .)
But in Davis, the defendants did not argue that the search warrant
application failed to establish probable cause for the "search all persons" provision of the
warrant. Instead, the defendants asserted that "search all persons" provisions were per
se unconstitutional - that such provisions constituted "general warrants," and that they
16 17
were therefore barred by the Fourth Amendment.
We rejected this argument in Davis,
and our decision of this point simply mirrors recognized Fourth Amendment law. As
Professor LaFave notes in his treatise on the law of search and seizure, a warrant that
authorizes the police to search all persons found within a specifically described place
does not lack specificity "in the sense that the executing officer will be unable readily to
18
determine to whom the warrant applies."
Thereal question, Professor LaFaveexplains,iswhether thesearch warrant
application establishes probable cause for a search of this breadth - "whether the
information supplied [to] the magistrate supports the conclusion that it is probable [that]
anyone in the described place when the warrant is executed is involved in the criminal
19
activity in such a way as to have evidence thereof on his person." If the evidence in the
16 Id. at 1077.
17 Id. at 1077-78 (citing Betts, 920 P.2d at 764).
18 2 Wayne R. LaFave, Search and Seizure § 4.5(e), at 759-60 (5th ed. 2012) (footnotes
omitted).
19 Id.
- 9 - 2589
----------------------- Page 10-----------------------
search warrant application supports suchaconclusion, "thenasearch-all-persons-present
20
provision is unobjectionable."
Although the defendants in Davis did not directly argue that the search
warrant application failed to support the "search all persons" provision of the warrant,
we did note in Davis that there is a distinction between (1) the probable cause needed to
support a search of all persons present when the police arrive to serve a warrant, as
opposed to (2) the probable cause needed to support a search of any and all persons who
might later arrive on the premises while the police are conducting the search.
Wedid not address this distinctionfurther, becausewefound thedistinction
to be inconsequential under the facts of Davis :
For some purposes, one might need to distinguish
between the act of "serving" a search warrant (an act that
occurs at a particular instant) and the act of "executing" the
warrant (that is, the ensuing search of the premises, which
might take hours). However, we do not believe that this
distinction is useful for construing the scope of the search
authorized by the warrant in this case.
In the present case, the magistrate found probable
cause to believe that the residence at 1550 Old Pioneer Way
was being used as a "crack house" - a commercial
establishment devoted to the distribution of crack cocaine.
The magistrate also found that a person's [mere] presence at
the house established probable cause to search them[, and
the] appellants do not dispute this finding.
[Because] the probable cause for the search of Davis's
and Fox's persons depended on their voluntary presence at
the site of an ongoing criminal enterprise[, we] do not see
how this probable cause was diminished by the fact that
20 Id.
- 10 - 2589
----------------------- Page 11-----------------------
Davis and Fox arrived after the police, but while the police
21
were still executing the warrant.
Thus, in Davis, we did not have to address the different types of probable
cause that are necessary to support these two different types of "search all persons"
provisions.
In the present case, however, Osborne does challenge the sufficiency of the
search warrant application to support a warrant provision that authorized the police to
search any and all persons who might arrive at the premises while the police were
conducting the search. We must therefore directly address the type of showing that the
police must make to justify such a provision.
Because of the important Fourth Amendment rights at stake, other
jurisdictions have established specific criteria for assessing the validity of such broad
grants of search authority. We agree in general with the following formulation used by
the courts of Iowa and New York:
[The search warrant] application must set out the
character of the premises, including its location, size, and
public or private character; the nature of the illegal conduct
at issue; the number and behavior of persons expected to be
present when the warrant is to be executed; whether any
persons unconnected with the alleged illegal activity have
been seen on the premises; and the precise area and time in
which the alleged activity is to take place. ... Taken as a
whole, the facts presented to the judge must present a
substantial probability that the authorized invasions of
privacy will be justified by the discovery of the items sought
22
from all persons present when the warrant is executed.
21 Davis, 938 P.2d at 1078.
22 State v. Thomas, 540 N.W.2d 658, 664 (Iowa 1995) (citing People v. Nieves , 330
(continued...)
- 11 - 2589
----------------------- Page 12-----------------------
As various courts and commentators have noted, this type of focused inquiry serves the
critical purpose of ensuring that the judicial officer issuing the warrant does not grant the
police the authority to search all persons who may be present, or who may later arrive
on the premises, without "carefully weigh[ing]" the risk that "an innocent person may
be swept up in a dragnet and searched." 23
This is not to say that a search-any-person warrant provision could never
be supported by a less detailed showing. But when the police seek this type of broad
search authority in their search warrant application, the application must, at a bare
minimum, demonstrate some acknowledgment that they are asking the magistrate to
authorize additional intrusions into the privacy rights of unknown persons. And the
application must then provide sufficient information to allow the magistrate to determine
whether there is probable cause to support such a broad grant of authority.
For instance, in William E. Ringel's Searches & Seizures, Arrests and
Confessions, § 5.17 (2d ed. November 2017 Update), the applicable law is described as
follows:
The warrant must carefully describe the character of the
premises and the nature of the illegal activity going on; also,
the magistrate must be told how many people frequent the
place, when they come and leave, and what they appear to be
doing. Another important factor is whether anyone who
seems to have no connection with the illegal conduct is ever
seen there.
The search warrant application in the present case failed to meet these basic
requirements. The application did not flag the "search any person" provision, nor did
22 (...continued)
N.E.2d 26 (N.Y. 1975)).
23 Commonwealth v. Smith, 348 N.E.2d 101, 107 (Mass. 1976).
- 12 - 2589
----------------------- Page 13-----------------------
the application explain why such a provision was being requested. (As we explained
earlier, this provision was buried in a boilerplate list of items related to drug sales.)
Nor is Osborne's case like Davis, where the search warrant application
established that the "residence" involved was actually a crack house - i.e., a premises
functioning solely as a commercial establishment for the illegal sale and consumption of
drugs, thus providing reason to believe that anyone present was engaged in illegal
activity.
Here, the premises was a stand-alone house in a residential neighborhood.
Although the house was apparently owned by a drug dealer, the search warrant
application contained no reports of other individuals coming onto the premises to engage
24
in drug sales or drug consumption.
Nor was there any indication that the residence had
previously been under police surveillance, or that there had been reports of suspicious
traffic coming in and out of the residence.
The warrant application also did not address the possibility that innocent
persons might come to the residence and be swept up in the "dragnet" of the "search all
persons" warrant provision. Although the application noted that Young was alone in the
house when he was arrested, the application provided no other information as to whether
Young lived alone, and (if so) whether it was reasonably foreseeable that he would be
25
visited by family members or friends who had no connection to his illegal activities.
24 See Betts, 920 P.2d at 764-65.
25 See Marks v. Clarke, 102 F.3d 1012, 1029 (9th Cir. 1997) (noting that a "search all
persons present" warrant might be appropriate for a structure that was dedicated exclusively
to criminal activity - "for example, a building or apartment used as a crack house, a barn
used as a methamphetamine lab, or a warehouse used exclusively as a storage place for
[illegal] arms" - but that such a provision would not be appropriate "with respect to a raid
on any family home where innocent family members or friends might be residing or
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----------------------- Page 14-----------------------
The warrant application also did not provide any estimate of how long the
search of the residence was expected to take, nor did it indicate whether the search would
be in progress during normal daytime hours, when innocent visitors such as mail carriers
26
or delivery persons might reasonably be expected to arrive. Nor did the application
make any effort to limit the scope of the "search all persons" warrant provision so that
27
it would exclude such innocent visitors.
In his dissent, Senior Judge Coats ignores these deficiencies in the search
warrant application. Rather than requiring the police to affirmatively justify this type of
broad search authority when they apply for a warrant, Judge Coats argues that "common
sense" supports the "search all persons" provision of the warrant.
We agree that search warrant applications should be read in a "common
sense and realistic" manner, and that marginal cases should be resolved in favor of
28
upholding the warrant. But this does not mean that reviewing courts should ignore
obvious deficiencies in a search warrant application. Nor does it mean that appellate
courts are allowed to uphold search warrants by speculating about the potential
25 (...continued)
visiting").
26 See, e.g., State v. Reid, 872 P.2d 416, 419 (Or. 1994) (noting that persons reasonably
expected to be approaching the front door of a private residence for innocent purposes
include mail carriers, package deliverypersons, volunteers soliciting donations for charitable
purposes, and neighbors seeking to borrow sugar).
27 See, e.g., State v. Allard, 674 A.2d 921, 922-23 (Me. 1996) (upholding a search "all
persons" warrant provision where the magistrate judge made a specific exception for "people
who may arrive upon or be upon said premises in a regular course of business, (i.e. postman,
delivery people)").
28
Rosa v. State, 633 P.2d 1027, 1030 (Alaska App. 1981); see also State v. Koen, 152
P.3d 1148, 1151 (Alaska 2007).
- 14 - 2589
----------------------- Page 15-----------------------
significanceofinformation thatwas never directly provided to the judicial officer issuing
the warrant.
Here, a "common sense and realistic" reading of the search warrant
application suggests one of two possibilities: either the officer who applied for the
warrant forgot that Attachment A's boilerplate list of "items" to be searched included a
"searchall persons"warrant provision, or (alternatively) theofficer erroneously believed
that such a provision was routine in all drug cases - and that if there was probable cause
to search the house, then there was automatically probable cause to search any and all
persons who might come to the house while the police were there.
Judge Coats's dissent ignores the indirect manner in which the police
requested the "search all persons" provision. Instead, the dissent focuses on "facts" that
were not part of the search warrant application.
For example, the dissent asserts that the police had "reliable information
that Young was a high-end methamphetamine dealer who dealt in large quantities of the
drug." But this information was presented at a later evidentiary hearing; it was not
included in the search warrant application itself.
The dissent also characterizes Young's residence as "basically a fort where
William Young stored drugs and valuable property that he did not want to put at risk."
From this characterization, the dissent concludes that Young would treat "anyone
approaching the house as a threat," and that therefore Young had probably discontinued
all delivery of mail and packages to his house - thereby making it less likely that an
innocent person would approach the house and be searched for no reason.
But there is nothing in the search warrant application to support the
dissent's assumption that Young had discontinued mail service and commercial delivery
to his residence. That is complete speculation.
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----------------------- Page 16-----------------------
The record also does not support the dissent's characterization of Young's
residence as a "fort" that no ordinary person would visit or even approach.
It is true that the search warrant application describes Young's elaborate
security system. But the application does not indicate the extent to which this extensive
security system would be obvious to a person approaching the house. We note that the
warrant application describes Young's residence as simply "a two-story wood frame
structure with a loft." And a photograph of this residence introduced at the evidentiary
hearing suggests that there was nothing remarkable about the outward appearance of the
house. In fact, the photograph shows a holiday decoration by the front door.
The dissent also focuses on the suspicious nature of Osborne's middle-of-
the-night arrival at Young's house. We agree that the circumstances of Osborne's arrival
at the residence were suspicious. But the issue presented in this appeal is not whether
the police had reason to stop and search Osborne based on the particularized
circumstances of his arrival and the totality of the information known to the officers at
the time. That was the State's alternative argument to uphold the search - the
alternative argument that the superior court never reached.
Rather, the question before us in this appeal is whether there was probable
cause to support a warrant provision authorizing the police to search any and all persons
who arrived at the house while the police were conducting their search. For purposes of
answering this question, the particular circumstances of Osborne's arrival at the house
are immaterial. Instead, the only material information - the only information we can
lawfully consider - is the information contained in the search warrant application itself.
Lastly, thedissent suggests that our concerns about the "search all persons"
provisionofthe warrant are overstated. The dissent minimizestheconstitutional dangers
of such warrants by asserting that we can trust the police to do the right thing. The
dissent declares that we can simply assume that the "it seems unlikely that the police
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----------------------- Page 17-----------------------
would search a mail carrier or a Girl Scout," and that we should "credit the police with
having enough sense to not search someone who knocked on the door unless there were
suspicious circumstances."
Werejecttheseargumentsbecausetheyarefundamentally inconsistent with
the principles behind the Fourth Amendment's warrant requirement.
As a general matter, the police do not need a warrant to conduct a felony
29
arrest and to search the arrestee for evidence of the crime.
If the court had determined
that the police had probable cause to arrest Osborne for such an offense, this appeal
would not be in front of us.
This appeal is before us because the court upheld the search based on the
"search all persons" provision of the warrant - a provision that ostensibly gave the
police the authority to search any and all persons who might arrive at the house while
they were conducting their search, even in the absence of affirmative individualized
suspicion.
Under our state and federal constitutions, we do not give police officers
30
free-ranging authority to conduct such searches.
Instead, this type of broad search
authority can only be approved in advance by a judicial officer through the warrant
process. Moreover, the judicial officer must not grant such blanket search authority
unless the search warrant application establishes that there is probable cause to believe
that any and all persons arriving on the premises during the specified period of time will
29 See 2 Wayne R. LaFave, Search and Seizure § 4.9(c), at 896-97 (5th ed. 2012).
30 U.S. Const. amend. IV, XIV; Alaska Const. art. 1, § 14.
- 17 - 2589
----------------------- Page 18-----------------------
probably be participants in the criminal activity being investigated and will probably be
31
carrying evidence of that criminal activity on their persons.
Because we conclude that there was insufficient information in the search
warrant application in this case to justify such a conclusion, we reverse the superior
court's ruling on Osborne's suppression motion.
However, this reversal does not resolve this case. As we previously
explained, the State argued in the alternative that the police had independent, lawful
reasons to detain and search Osborne, based on the particularized suspicious
circumstances of Osborne's arrival at Young's residence and the totality of the
information known to the police at the time of the search. The superior court did not
address this alternativeargument. Accordingly, weremandthis case to the superior court
so that the court can consider and rule on the State's alternative arguments for upholding
the lawfulness of the search. We express no opinion on the merits of the State's
alternative argument.
Conclusion
The decision of the superior court is REVERSED, and this case is
remanded to the superior court for further proceedings consistent with this opinion.
31 Betts, 920 P.2d at 764; 2 Wayne R. LaFave, Search and Seizure § 4.5(e), at 759-60
(5th ed. 2012).
- 18 - 2589
----------------------- Page 19-----------------------
Senior Judge COATS, dissenting.
This case begins with the police obtaining a warrant to search the
Northwood Drive residence for WilliamYoung. The police had reliable information that
Young was a high-end methamphetamine dealer who dealt in large quantities of the drug
and that he was present at the Northwood Drive residence. 1
The police served the warrant just after midnight on February 9, 2013. The
2
police found Young hiding in the residence. No one else was present. The police
searched Young incident to the arrest. They found a large amount of cash in his pocket.
And they found a pipe which was located near Young which field-tested positive for
methamphetamine.
In a protective sweep of the house, the police discovered "numerous flat
screen televisions and items of value. Linked to the flat screen televisions were
numerous surveillance cameras." Every exterior door to the house was a barred security
door. The exterior of the house was "surrounded by motion detecting flood lights."
1 The warrant for the arrest of William Young was issued by the Fairbanks district court
a short time before his arrest and almost certainly included this information. But even
without this earlier warrant, we can infer that, since this earlier warrant authorized the
police to break into his residence at midnight, Young was a significant drug dealer. To the
extent there was any doubt about this, the amount of security at the residence and the
valuable propertystored within the residence supported the inference that Young was a major
drug dealer and that this residence was a secured warehouse for a major drug operation.
2 It is reasonable to infer that no one besides Young was in the residence when the
police entered and arrested him just after midnight. If someone had been present in the
residence, it would have been an important omission for the police to not reveal this to the
magistrate when they were obtaining the second warrant to search the residence. Given the
level of security at the residence and the large amount of valuable property stored in the
residence, it was reasonable to infer that anyone else "on the premises" would be connected
to the drug operation.
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In the application for the warrant, the police indicated that individuals who
deal with drugs usually have large quantities of cash and unreported income.
Consequently drug dealers go to great lengths, such as the police observed in the
Northwood Drive residence, to protect their illegal business. The many valuable items
which the police observed were also consistent with the illegal business.
It appears to me that the information presented to the issuing judge
established that the Northwood residence was the location of a major drug selling
operation.
The issuing judge issued the warrant at 3:11 a.m. and allowed the search
to take place "immediately." The magistrate authorized the police to search "[a]ny
person on the premises at the time of service of the search warrant, for purposes of
checking for the possession, sale or distribution of controlled substances and further for
the purposes of identification."3
During the search, at approximately 3:30 a.m., Osborne arrived at the
Northwood Drive residence, knocked on the door, and explained that he was looking for
"Bill." It appears to me that Osborne was clearly covered by the warrant under the
circumstances and that the police were authorized to search Osborne under the warrant.
3 The opinion of the court suggests that the police should have focused more on the
possibility that a confederate might show up during the search. But that possibility was not
the focus of the warrant. So it is understandable that the police would not go into great detail
when they were requesting authority to search "all persons on the premises." I believe under
the rule of law that requires us to interpret warrants generously, we should assume that the
police knew what they were asking for when they put this request in the warrant. Similarly,
we are to assume that the district court judge knew what was in the warrant when he issued
it. With the benefit of hindsight, briefing, and time, an appellate court can easily think of
how a warrant could have been better drafted. But the law requires us to give "great
deference" to a magistrate's decision to issue a warrant.
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As I understand the opinion of the Court, the Court is concerned that the
warrant might be overbroad - that the warrant would authorize the police to search
completely innocent people who had no connection with the drug operation. But I think
that this concern is limited in this case. First, when the police arrested Young, it was just
after midnight and no one was present in the house. The police would have secured the
house while they were obtaining the warrant. And, from the police observations, it
appears that anyone who had spent any time in the house would recognize that this was
not an ordinary residence. Between the extraordinary surveillance and the numerous
valuable items of property that were present in the house it would have been apparent
that this house was the scene of illegal activity.
But this residence did not appear to be the usual retail drug-selling
4
operation which is described in the cases the Court relied upon. In those kinds of cases,
a regular stream of retail customers is going into the house at all hours of the day and
night to obtain drugs. And that is the kind of evidence that the police present to
magistrates to obtain a search warrant for that kind of a retail drug operation. If the
police get a warrant, then they go into the residence. And it would be reasonable to
expect that the stream of people attempting to buy drugs would continue if the police did
nothing to announce their presence within the residence.
But the case before us is an entirely different kind of case. In this case the
residence was basically a fort where William Young stored drugs and valuable property
that he did not want to put at risk. Unlike the cases cited in the Court's opinion, in this
case the police had already been inside the residence - to arrest Young - before
applying for the second warrant. The evidence the police found supported the inference
4 See, e.g., Commonwealth v. Smith, 348 N.E.2d 101, 107 (Mass. 1976), cert. denied,
429 U.S. 944 (1976).
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that Young was protecting his property, and would not want anyone to approach this
residence. Anyone approaching the residence and knocking on the door would be
someone involved in the wholesale operation or perhaps obtaining drugs to sell as part
of a retail operation, rather than a retail customer.
To protect his drug operation, Young would have realized that anyone
approaching the house might see something suspicious and thus, he would have to treat
anyone approaching the house as a threat. He would probably not have had residential
mail or package delivery for that reason. Therefore it does not appear that there was any
reasonable risk of arresting family members who were not involved in the drug trade or
other innocent bystanders. In particular, it seems unlikely that a mail carrier, a UPS
driver, or any other innocent person would be approaching the house, much less
knocking on the door. The fact that the search was initiated a little after 3:00 a.m. would
also limit the risk of an innocent bystander being searched. It therefore seems unlikely
that anyone not involved in the drug operation would be approaching this house.
In addition, in the unlikely event that someone did approach the house and
knock on the door, I think we can credit the police with having enough sense to not
search someone who knocked on the door unless there were suspicious circumstances.
Finally, it seems unlikely that the police would search a mail carrier or a Girl Scout. On
the other hand, someone knocking at the door at 3:30 a.m. and asking for the drug dealer
the police had just arrested would be "on the premises" and covered by the warrant.
Davis v. State, 938 P.2d 1076, 1078-79 (Alaska App. 1997) (people knocking on the
door of a drug house which is being searched by the police are considered to be "on the
premises" for purposes of the search warrant).
In State v. Koen, 152 P.3d 1148, 1151 (Alaska 2007), the Alaska Supreme
Court directed courts reviewing the issuance of a search warrant to give "great
deference" to a magistrate's decision to issue a search warrant:
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[In determining whether there is probable cause for a
magistrate's decision to issue a search warrant] we begin by
recognizing that magistrates have broad latitude to draw
reasonable inferences from the evidence placed before them.
Accordingly, we give "great deference" to the magistrate's
discretion and resolve marginal cases in keeping with the
traditional preference accorded to warrants. (Citations
omitted.)
The supreme court recognized that warrants are issued under emergency
circumstances and that the police and magistrates operate under different circumstances
than an appellate court does. The court recognized that a reviewing court should
encourage the use of warrants and police should be able to rely on them. Under the facts
of this case, I see little risk of abuse based on the circumstances set out in this warrant.
I accordingly dissent.
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