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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Koen (02/16/2007) sp-6102
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Supreme Court No. S- 11963 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-8864 | |
| v. | ) Superior Court No. 3HO-04-77CR |
| ) | |
| DAVID KOEN, SR., | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6102 - February 16, 2007 |
| ) | |
Petition for Hearing
from the Court of Appeals of the State of
Alaska, on Appeal from the Superior Court,
Third Judicial District, Kenai, Harold M.
Brown, Judge.
Appearances: W. H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for Petitioner. Kathleen Murphy, Assistant
Public Defender, Anchorage, and Quinlan
Steiner, Public Defender, Anchorage, for
Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM.
I. INTRODUCTION
Shortly after receiving reports that David Koen had
child pornography stored on computers in his home, an Alaska
State Trooper obtained a warrant to search Koens residence.
Although the affidavit supporting the warrant listed Koens
address as the premises to be searched, it failed to say that the
listed address was Koens residence or to explain how the address
had been determined. Based on these deficiencies, the superior
court declared that the warrant was not supported by probable
cause. After the court of appeals affirmed this ruling, we
granted the states petition for hearing to decide whether the
affidavit established probable cause despite its failure to
specify that the premises to be searched were Koens residence.
Because we conclude that a common sense reading of the entire
affidavit supports a reasonable inference that Koen resided at
the listed address, we hold that the affidavit implicitly drew
the connection required to establish probable cause.
II. FACTS AND PROCEEDINGS
On February 27, 2004, at about 4:47 p.m., Homer
resident Sara McLeod contacted Alaska State Trooper Ryan Browning
at the trooper post in Homer to report that David Koen, a friend
of Saras husband, had child pornography on his home computer.
McLeod told the trooper that she had been checking her email at
Koens residence and had inadvertently seen photos on Koens
computer that depicted adolescent children engaged in sexual
acts. Less than an hour later, at 5:43 p.m., Trooper Browning
spoke by telephone with Saras husband, Michael, who confirmed
Saras report. Michael added that he had personally visited Koens
residence and had seen Koen looking at child pornography while
surfing the web on his computer. According to Michael, Koen had
also admitted sexually molesting his daughter and videotaping his
actions.
Shortly after receiving the McLeods reports, Trooper
Browning submitted an affidavit for a search warrant to the
district court. His affidavit alleged that he had reason to
believe that on the premises known as: 1st residence on left of
Greentimbers Drive at Homer, Alaska, there is now being concealed
property, namely: Personal Computers and accessories depicting
child pornography. In support of this belief, the affidavit
summarized the McLeods reports as follows:
On 2-27-04 at approximately 1647 hours, I was
contacted by Sarah Mcleod at the Homer
Trooper Post. S. MCLEOD reported to me that
she wanted to report that David KOEN Sr, was
in possession of child pornography, and that
she had seen photos of adolescent children
depicted in sexual acts. MCLEOD stated that
she was at KOENs residence checking her e-
mail and that she inadvertently found the
pornographic photos. S. MCLEOD further
stated that KOEN is a friend of her husband,
Michael MCLEOD, and that KOEN disclosed to M.
MCLEOD that he had been viewing and storing
child pornography in his personal computer.
On 2-27-04 at approximately 1743 hours, I
interviewed M. MCLEOD telephonically. M.
MCLEOD stated that approximately a week ago,
he was at KOENs residence and saw KOEN
surfing the web looking for child pornography
and that he had seen KOEN looking a[t] child
pornography in KOENs computer. M. MCLEOD
further stated that S. MCLEOD was checking
her e-mail a few weeks ago and opened a
minimized folder on KOENs computer and saw
pornographic pictures of children
approximately 1 year old engaged i[n] sexual
acts. M. MCLEOD further stated that KOEN
told him that he had been sexually molesting
his 13 [year old] daughter, S.K., and that he
had recorded a video of that when she was 8
years old.
Magistrate David Landry issued the search warrant at
6:30 p.m., less than an hour after Trooper Browning had finished
interviewing Michael McLeod. A search of Koens residence yielded
computer evidence similar to that described by the McLeods, which
led to an indictment charging Koen with thirty counts of
possessing child pornography.
Koen moved to suppress the evidence, arguing that
Trooper Brownings affidavit failed to establish probable cause,
since it neglected to draw any connection between the McLeods
report and the premises described in the warrant:
No statement as to the address or
location of the Koens residence was contained
within the four corners of the affidavit.
Although the affiant [Trooper Browning]
stated that he had reason to believe that the
evidence sought was located at the first
residence on the left Green Timbers Ave. at
Homer, Alaska; this is a conclusionary
statement by the officer. The affidavit
failed to establish that the first residence
was Koens residence. There was no nexus
established between Koens residence and the
first residence.
Superior Court Judge Harold M. Brown granted Koens
motion, ruling that Trooper Brownings affidavit failed to
establish probable cause because it drew no connection between
the place to be searched and the crime allegedly committed by
Koen. The court of appeals affirmed, likewise concluding that
the affidavit was fatally flawed in failing to connect the
targeted premises to Koen; moreover, the court observed, even if
one could infer that the trooper . . . believed that the house .
. . was Koens residence, the affidavit was flawed in failing to
explain the basis for the troopers belief.1
In a dissenting opinion, Chief Judge Coats reached the
opposite conclusion, reasoning that a common sense reading of the
affidavit as a whole supported a reasonable inference that the
Greentimbers Drive address was Koens residence and that Trooper
Browning had received the address from the McLeods, who were
intimately familiar with the home.2
The state petitioned for hearing, and we granted the
petition to consider the validity of the warrant.
III. DISCUSSION
The narrow issue we address is whether the search
warrant lacked probable cause because Trooper Brownings affidavit
failed to specify that the residence on Greentimbers Drive the
premises the trooper sought permission to search was Koens
residence.
Questions concerning the existence of probable cause
ultimately present issues of law, which we review independently.3
But when such questions involve a magistrates decision to issue a
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
magistrates discretion4 and resolve marginal cases in keeping
with the traditional preference accorded to warrants.5 Our
inquiry focuses on whether the magistrate had a substantial basis
to conclude that probable cause to search existed.6 In applying
this standard, we must read the affidavit submitted in support of
the search warrant in a commonsense and realistic fashion,7
considering the affidavit in its entirety instead of dissecting
it into isolated bits and pieces of information.8
The court of appeals identified two flaws in Trooper
Brownings affidavit. First, the court faulted the affidavit
because it did not identify the house on Greentimbers Drive as
Koens residence [and did not] otherwise explain any connection
between the Greentimbers Drive premises and the evidence being
sought.9 Second, the court noted that even if the affidavit
might imply that Trooper Browning believed the Greentimbers
address to be Koens residence, the affidavit nonetheless failed
to explain the troopers reason for having this belief.10 In the
courts view, the Constitution required Browning to explain this
reason so that Magistrate Landry could independently evaluate
it.11
In challenging the court of appeals ruling, the state
adopts Chief Judge Coatss dissenting view of the case, insisting
that, when viewed as a whole and given a common sense meaning,
the affidavit sets out enough facts to support a reasonable
inference that Trooper Browning believed the Greentimbers Drive
address to be Koens residence and that the trooper based his
belief on information from the McLeods who unquestionably had
first-hand knowledge. Koen responds by insisting that the
majority opinion of the court of appeals correctly ruled that the
affidavit left Magistrate Landry no evidence to independently
evaluate the basis for searching the premises described in the
warrant.
In our view, the states position is the most
persuasive. Trooper Brownings affidavit began by declaring under
oath that the trooper had reason to believe that evidence of the
crime of possessing child pornography was being concealed on the
Greentimbers Drive premises. The affidavit went on to say that
the facts tending to establish Trooper Brownings grounds for
asserting this belief were as follows. The facts that followed
centered entirely on the reports that the McLeods had given the
trooper within the two hours immediately preceding his
application.
As described in the affidavit, the McLeods reports made
it clear that Sara and Michael McLeod were both personally
acquainted with Koen, knew where he resided, and had been in his
home. Both reported having recently seen child pornography on
Koens home computer, and each expressly pinpointed the computer
as being located in Koens residence. Moreover, neither of the
McLeods reported any information remotely suggesting that
evidence concerning Koens misconduct might be found anywhere
other than in Koens home. Nor did Trooper Brownings affidavit
describe any other circumstances indicating that such evidence
would be found anywhere besides Koens home.
When read together in a common sense manner, Trooper
Brownings assertion that he had grounds to believe that evidence
would be found on the premises at Greentimbers Drive, coupled
with his ensuing description of facts relating exclusively to
evidence in Koens home, would fairly support a reasonable
inference that Trooper Browning listed the Greentimbers Drive
address because he believed that it actually was Koens home.
In reaching the opposite conclusion, the court of
appeals acknowledged that the trooper might have obtained the
address from the McLeods but reasoned that other explanations
that might have existed as well:
The McLeods might have told Browning that
Koen, fearing a police investigation, had
moved his computer out of his residence to
another location to a business office, or to
the house of a friend or relative and that
this new hiding place was located on
Greentimbers Drive. Or the McLeods might have
told Browning that they had stolen Koens
computer to prevent him from destroying the
pornographic images, and that Koens computer
was now located at their residence on
Greentimbers Drive.[12]
But probable cause is by definition a standard that
hinges on probability rather than certainty, so a showing of
probable cause need not rule out other explanations that are
merely possible. As long as an affidavit gives the magistrate a
substantial basis to find that one of several possible outcomes
is probable, the affidavit will suffice to establish probable
cause. Here, Trooper Brownings affidavit certainly did not rule
out the other possible explanations described by the court of
appeals. But for purposes of determining whether his affidavit
established probable cause the key question is not whether these
alternative explanations might have been possible; instead, it is
whether their hypothetical possibility precluded the magistrate
from drawing an otherwise fair inference that the Greentimbers
Drive address probably described the location of Koens home.
Given Trooper Brownings sworn belief that evidence
could be found at Greentimbers Drive and his ensuing description
of recently reported facts that pertained exclusively to evidence
seen in Koens home, we think that even though other more
speculative explanations might be hypothesized the affidavit
provided a strong substantial basis for drawing the common sense
inference that the Greentimbers Drive address was in all
likelihood where Koen resided.13
We reach a similar conclusion as to the second disputed
inference that the court of appeals found lacking: evidence
establishing Trooper Brownings basis for asserting that Koen
actually lived at the Greentimbers Drive address. Given the
recency and first-hand nature of the McLeods reports, the
affidavits exclusive focus on information provided in those
reports, and the McLeods obvious awareness of where Koen resided,
the affidavit as a whole provides a strong basis for inferring
that Trooper Browning probably obtained the Greentimbers Drive
address directly from the McLeods. Although it would have been
preferable to describe the source of this information, courts
have recognized that [i]t is not necessary that every assertion
of fact be traced to its ultimate source.14
In reaching a contrary conclusion, the court of appeals
viewed its prior decision in State v. White15 as controlling
precedent.16 But White is inapposite. In contrast to the
circumstances at issue here, the disputed affidavit in White
provided no factual basis for inferring that evidence of the
crime committed in that case might be found at Whites residence;
that the address described in the warrant was intended to refer
to Whites address; or that the officer applying for the warrant
had a reliable basis for determining Whites address.17
The court of appeals in this case also cited several
cases from other jurisdictions that it viewed as analogous.18 But
in contrast to this case, the cases cited by the court of appeals
all dealt with affidavits that failed to set out any facts
suggesting that evidence might be found at the suspects residence
or any facts expressly or implicitly linking the defendant to the
premises to be searched.19 Moreover, most of the cited cases
effectively addressed this point in dictum, ultimately upholding
the challenged search under the good faith exception adopted by
the United States Supreme Court in United States v. Leon.20
In summary, then, we find no fatal flaw in Trooper
Brownings affidavit. It certainly would have been best had the
trooper explicitly identified the premises at Greentimbers Drive
as Koens residence and specified his basis for the
identification. Since it appears that the trooper easily could
have provided the information, the superior court and the court
of appeals were understandably troubled by the affidavits failure
to explicitly draw the connection. Yet the affidavit as a whole
provides a substantial and reliable evidentiary basis to support
an inference that the listed address on Greentimbers Drive
probably was Koens residence and that evidence of his possession
of child pornography probably was concealed on the premises. In
light of the evidence drawing an implicit connection, we hold
that omitting an explicit nexus did not amount to a failure to
establish probable cause.
IV. CONCLUSION
For these reasons, we REVERSE the decisions of the
court of appeals and the superior court and REMAND for further
proceedings.
_______________________________
1 State v. Koen, 113 P.3d 675, 680 (Alaska App. 2005).
2 Id. at 681-82.
3 In re J.A., 962 P.2d 173, 175 (Alaska 1998).
4 See, e.g., Lord v. Wilcox, 813 P.2d 656, 659 (Alaska
1991).
5 Metler v. State, 581 P.2d 669, 673 (Alaska 1978)
(citing United States v. Ventresca, 380 U.S. 102, 109 (1965)).
6 Lord, 813 P.2d at 659. We have described this
substantial basis review as more deferential than de novo review.
See In re J.A., 962 P.2d at 185 (Matthews, C.J., dissenting)
([W]here a magistrate has issued a search warrant, deferential
rather than de novo review of the probable cause determination is
called for.). However, substantial basis review is less
deferential than clearly erroneous review. 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment 3.1(c),
at 16 (3d ed. 1996).
7 Ventresca, 380 U.S. at 108; State v. Malkin, 722 P.2d
943, 947 n.10 (Alaska 1986); State v. Davenport, 510 P.2d 78, 82
n.8 (Alaska 1973).
8 Massachusetts v. Upton, 466 U.S. 727, 732 (1984).
9 Koen, 113 P.3d at 680.
10 Id.
11 Id. at 678.
12 Id. at 677.
13 The strength of the inference can be confirmed by
considering the flip side of the proposition: assuming that a
search conducted under the warrant had led the troopers to search
a location that was not Koens residence, it seems hard to imagine
that the search would not have been challenged on the theory that
Trooper Browning had misrepresented material facts by misleading
the magistrate to believe that the warrant was aimed at Koens
residence. Cf. State v. Malkin, 722 P.2d 943 (Alaska 1986)
(holding that a warrant may be vitiated when supporting affidavit
intentionally or recklessly misrepresents material facts).
14 Davenport, 510 P.2d at 82 n.8. In this regard, we note
that the Ninth Circuit Court of Appeals has broadly ruled that
when a police officers affidavit establishes probable cause to
believe that evidence of a crime can be found at a suspects
residence and provides an address for the residence, the
affidavit need not describe how the officer established the
residences address for the affidavit. United States v. Baldwin,
987 F.2d 1432, 1436 (9th Cir. 1993). In light of our conclusion
that Trooper Brownings affidavit implicitly established that he
had a reliable basis for believing that Koen lived at the
Greentimbers Drive address, we need not consider the Ninth
Circuits broader holding in Baldwin.
15 State v. White, 707 P.2d 271, 277 (Alaska App. 1985).
16 Koen, 113 P.3d at 680-81.
17 White, 707 P.2d at 274, 277.
18 Koen, 113 P.3d at 679-80.
19 See United States v. Hove, 848 F.2d 137, 139-40 (9th
Cir. 1988) ([T]he final warrant application, while it set forth
facts suggesting that Kimberly Hove had sent threatening letters,
never linked Kimberly Hove or any suspected criminal activity in
any way with the 2727 DeAnza residence [her fathers home]. . . .
[T]he affidavit offer[ed] no hint as to why the police wanted to
search this residence.); State v. Varnado, 675 So. 2d 268, 270
(La. 1996) (in sexual assault and robbery case, police had
probable cause . . . to search the defendants residence but made
a critical omission in the warrant application by failing to
identify the targeted premises as the defendants residence);
Oesby v. State, 788 A.2d 662, 665-66 (Md. App. 2002) (in sexual
assault case, affidavit did not permit judge to infer link
between suspect and the street address of place to be searched);
Braxton v. State, 720 A.2d 27, 33 (Md. App. 1998) (affidavit
disclosed only that address had been learned from further
investigation; affidavit did not report the existence of any
informant who would have known suspects address).
20 United States v. Leon, 468 U.S. 897 (1984).
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