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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Gibson (1/13/2012) sp-6635
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-13509
Petitioner, )
) Court of Appeals No. A-9720
v. ) Superior Court No. 3AN-02-06007 CR
)
ROBERT DUANE GIBSON, III, ) O P I N I O N
)
Respondent. ) No. 6635 - January 13, 2012
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: W. H. Hawley, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau, for Petitioner.
Sharon Barr, Assistant Public Defender, and Quinlan G.
Steiner, Public Defender, Anchorage, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
WINFREE, Justice.
CHRISTEN, Justice, dissenting.
I. INTRODUCTION
In this appeal we consider the long-standing emergency aid exception to
the general requirement that a search warrant be obtained prior to police entry into a
residence. Today we establish that the Alaska Constitution's standards for justifying the
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doctrine's application go beyond those required by the United States Constitution, and
we adopt the standards our court of appeals first implemented in Gallmeyer v. State.1 We
then consider whether the court of appeals correctly applied the doctrine when it reversed
the trial court's ruling that the doctrine excused the warrantless police entry in this case.
Because the police had a reasonable belief of an emergency justifying a warrantless entry
into the residence, we conclude the court of appeals did not and we reverse its decision.
II. FACTS AND PROCEEDINGS
A. The Incident
In July 2002 Lisa Bevin and Robert Gibson lived together in Gibson's
trailer. Bevin became angry when she awoke to Gibson preparing to cook
methamphetamine; Gibson reacted by threatening to "stab [her] in the head." Bevin then
called 911. The 911 operator logged the call as: "Female stated male was threatening
to stab her in the head," and noted she could hear a disturbance in the background.
Anchorage Police Officers Justin Doll and Francis Stanfield were dispatched to the
scene, arriving in separate patrol cars.
When the officers arrived they heard a distressed "female voice crying,
upset, screaming, yelling" from inside the trailer. As the officers approached the trailer,
Bevin tumbled out the door wearing only a tank top and crying "help me." Bevin had
visible swelling in one eye and a bleeding cut on the back of her head. The officers drew
their weapons and called for backup. Against the officers' urgings, Bevin returned inside
for more clothing.
1 640 P.2d 837, 842 (Alaska App. 1982) (adopting standards requiring
"reasonable grounds to believe . . . an emergency [is] at hand," that search not be
"primarily motivated by intent to arrest and seize evidence," and "some reasonable basis
. . . to associate the emergency with the area or place to be searched" (quoting People v.
Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976))).
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As Bevin started back into the trailer, Gibson became visible through the
doorway. The officers ordered Gibson out of the trailer, handcuffed him, and put him
in a patrol car. Bevin emerged from the trailer fully clothed, but was agitated,
argumentative, and uncooperative when questioned by the officers. Worried "she might
start to fight" with them or Gibson, the officers put Bevin in a patrol car. The officers
then informed the backup officer that he no longer needed to respond at the emergency
level "because of the increased danger involved" in such a response.
The officers were not certain at that time who had called 911, whether
anyone else lived in the trailer, or who the assailant had been. After Bevin and Gibson
were detained, Officer Stanfield did not "hear any evidence of any kind that another
party, a third person was in [the] trailer." Officer Doll similarly did not see or hear
anyone inside the trailer, and "saw nothing else that would indicate that there was
another person inside." Bevin, when asked, told the officers nobody else was in the
trailer. Neither officer took Bevin's statement "at face value"; in Officer Stanfield's
experience people "[r]egularly" lie "in domestic violence situations," and in Officer
Doll's experience "people [had] lied to [him] in the past."
When Officer Gerard Asselin arrived approximately 25 minutes after
Gibson and Bevin were secured, Officers Stanfield and Doll entered the trailer. Officer
Doll testified that because the dispatch indicated "a disturbance possibly involving a
knife," the officers wanted "to make sure that nobody [was] . . . lying wounded inside
the trailer." Officer Doll further confirmed that entering the premises in domestic
violence situations "that may have involved a weapon," where "the risk is a little higher,"
is "standard operating procedure" even when an officer has "no reason to believe
somebody is inside" because, as he noted, police "have a duty to provide aid to anybody
inside." While they were "clearing" the trailer, the officers noticed evidence suggesting
methamphetamine manufacturing.
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After exiting the trailer Officer Doll told Officer Asselin that there "could
be a meth lab" inside. As Officer Asselin was more familiar than Officers Stanfield and
Doll with methamphetamine labs, and because he "[knew] them to be dangerous in
nature," he entered the trailer to determine whether "it need[ed] to be dealt with right at
that moment." Observing chemicals, glassware, and other evidence of methamphetamine
production, Officer Asselin concluded that "production of methamphetamine was
occurring."
Based on Officer Asselin's conclusion, Detective Bruce Bryant and another
detective from the Anchorage Police Department's Metro Drug Unit were dispatched to
the scene. Following a brief walk-through of the trailer, Detective Bryant applied for and
obtained a search warrant. The police executed the warrant that night, seizing
methamphetamine production evidence from the trailer.
B. The Superior Court
In September 2002 the State of Alaska indicted Gibson on four counts
related to the manufacture of methamphetamine. Bevin was indicted on the same four
counts. In May 2003 the State added one count of fourth-degree assault against Gibson
for "recklessly caus[ing] physical injury" to Bevin. The State later dropped one of the
methamphetamine-related counts against Gibson and amended another.
Bevin moved to suppress the evidence seized as a result of the warrantless
searches of the trailer. Gibson filed his own motion to suppress the evidence and dismiss
the indictment against him. The superior court held an evidentiary hearing on the
suppression motions over five days in 2003. Officers Stanfield, Doll, and Asselin
testified, along with Detective Bryant and others. The court held oral argument on the
motions in February 2004, ultimately denying them with a written order making factual
findings. The court concluded Officers Stanfield and Doll's "warrantless entry was
justified by the emergency aid doctrine." The court confined its findings and conclusions
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"to the facts of this case" recognizing that there is not "a general warrantless search
exception for all domestic violence cases."
Analyzing the emergency aid doctrine under the three-prong test the Alaska
Court of Appeals adopted in Gallmeyer,2 the court determined that all three prongs were
satisfied. First, the court found the reasonable grounds factor was met because "the
officers arrived at the scene of a domestic disturbance reportedly involving a weapon,"
"heard a female screaming," and "saw a woman stumbling out of the trailer half naked
and injured"; Bevin was "hysterical, uncooperative and argumentative," and the officers
were not "certain about how many people were involved." The court therefore
concluded the officers' belief that an injured party might be inside and in need of
emergency aid was objectively reasonable. The court determined the second factor was
met, as "[t]here was absolutely no evidence . . . that something outside the trailer led [the
officers] to suspect that there could be a meth lab inside," and the officers' subjective
motivation for entering the trailer was to determine whether there was anyone inside in
need of emergency aid. The court further determined the final factor was met, as the
search was sufficiently "restricted in time and scope to the nature and duration of the
particular emergency." Additionally, the court concluded exigent circumstances justified
Officer Asselin's subsequent search and the inevitable discovery doctrine justified
Detective Bryant's later search.
Following a two-week trial a jury found Gibson guilty on the three
methamphetamine-related counts and of disorderly conduct, a lesser included offense of
the assault charge.
2 See note 1, above.
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C. The Court Of Appeals
Gibson appealed, arguing the superior court erred in denying his
suppression motion.3 The court of appeals applied the Gallmeyer three-prong test and
reversed, holding Officers Stanfield and Doll's initial entry was not justified under the
emergency aid exception to the warrant requirement and was therefore unlawful.4 The
court concluded "the circumstances surrounding the search . . . would not 'have led a
prudent and reasonable officer to perceive an immediate need to take action in order to
prevent death or to protect against serious injury to persons or property.' "5
The court further explained:
In order to enter a home based upon the emergency aid
exception, we believe that the State must show "true
necessity - that is, an imminent and substantial threat to life,
health, or property." In addition, although Gallmeyer
emphasizes that a showing of necessity does not "require
absolute proof that injury would necessarily have occurred,"
this test implies that a mere possibility that an emergency
exists will ordinarily not be sufficient.[6]
Finding "[t]he State justifie[d] the police entry into Gibson's home based on
speculation," the court expressed concern that if it "were to authorize the police to enter
someone's home based on these facts, the police would routinely be able to search a
residence in most cases where there was a report of a serious domestic dispute."7 It
reversed the conviction and remanded the case for the superior court to determine what
3 Gibson v. State, 205 P.3d 352, 353 (Alaska App. 2009).
4 Id. at 354-56.
5 Id. at 353 (quoting Gallmeyer, 640 P.2d at 842).
6 Id. at 356 (quoting Gallmeyer, 640 P.2d at 843-44).
7 Id.
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evidence should be suppressed.8
We granted the State's petition for hearing.
III. STANDARD OF REVIEW
We generally "review a denial of a motion to suppress in the light most
favorable to upholding the trial court's ruling."9 "The trial court's findings of fact will
not be disturbed unless they are clearly erroneous."10 But "[w]e independently determine
whether the trial court's factual findings support its legal conclusions."11 And "[w]hether
a particular search falls within an exception to the warrant requirement is a question of
law" that we review de novo.12
IV. DISCUSSION
A. The Emergency Aid Exception To The Warrant Requirement
1. Overview
Police typically must obtain a warrant to lawfully search a home.13 Under
the Alaska Constitution14 "a search without a warrant is per se unreasonable unless it
8 Id.
9 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001) (citing Castillo v. State,
614 P.2d 756, 765-66 (Alaska 1980)).
10 State v. Miller, 207 P.3d 541, 543 (Alaska 2009) (quoting Joubert, 20 P.3d
at 1118).
11 Id. (quoting Joubert, 20 P.3d at 1118).
12 State v. Blank, 90 P.3d 156, 159 n.19 (Alaska 2004) (citing State v. Page,
911 P.2d 513, 515-16 (Alaska App. 1996)).
13 Id. (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978);Lupro v. State, 603
P.2d 468, 476 (Alaska 1979)).
14 The relevant provisions of the Alaska Constitution are article I, sections 14
(continued...)
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clearly falls within one of the narrowly defined exceptions to the warrant requirement."15
Under the Fourth Amendment of the United States Constitution16 "searches and seizures
inside a home without a warrant are presumptively unreasonable."17 "Nevertheless,
because the ultimate touchstone of the Fourth Amendment is 'reasonableness,' the
14 (...continued)
and 22. Section 14 provides:
The right of the people to be secure in their persons,
houses and other property, papers, and effects, against
unreasonable searches and seizures, shall not be violated. No
warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Section 22 provides in relevant part: "The right of the people to privacy is recognized
and shall not be infringed."
15 Schultz v. State, 593 P.2d 640, 642 (Alaska 1979) (quoting Woods & Rohde,
Inc. v. State, Dep't of Labor, 565 P.2d 138, 149 (Alaska 1977)).
16 The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The Fourth Amendment's protection against unreasonable searches and seizures was
applied to the states via the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 655
(1961).
17 Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Payton v. New York,
445 U.S. 573, 586 (1980)).
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warrant requirement is subject to certain exceptions."18
One such exception - under both federal and Alaska law - is the
emergency aid exception.19 This petition leads us to consider the development of
Alaska's emergency aid doctrine, clarify standards for the emergency aid exception to
the Alaska Constitution's search warrant requirement, and apply those standards in the
context of two competing policy concerns: (1) the constitutional right of privacy in the
home and (2) the scope of police duties during a domestic violence investigation.
2. Alaska Supreme Court cases
a. Stevens v. State
Alaska's emergency aid doctrine originated with Stevens v. State, which
relied on United States v. Barone for the general rule that "[t]he right of the police to
enter and investigate in an emergency without the accompanying intent to either search
or arrest is inherent in the very nature of their duties as police officers, and derives from
the common law."20
In Stevens,21 Stevens shot and killed a friend during early morning drinking
at Stevens' house in Hoonah. Stevens' children fled the house and told a neighbor about
the shooting. The neighbor phoned the Hoonah chief of police, who went to Stevens'
18 Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citing Flippo v. West
Virginia, 528 U.S. 11, 13 (1999) (per curiam); Katz v. United States, 389 U.S. 347, 357
(1967)).
19 Brigham City, 547 U.S. at 403 (citingMincey v. Arizona, 437 U.S. 385, 392
(1978)); Stevens v. State, 443 P.2d 600, 602 (Alaska 1968).
20 443 P.2d at 602 (quoting United States v. Barone, 330 F.2d 543, 545 (2d
Cir. 1964)).
21 The following summary of the underlying Stevens facts is based on 443
P.2d at 601-03.
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house and knocked on the door. Stevens' wife opened the door, and the chief entered
without any comment by either. When Stevens sobbingly confessed he had "shot his
'buddy' " and threatened suicide, the chief arrested and jailed Stevens for his own safety.
The chief returned shortly thereafter with the Hoonah mayor. The chief and mayor
briefly inspected the house, viewed the victim's body, and then left, padlocking the
house. The mayor contacted state troopers in Juneau for assistance, and a trooper
ordered the premises be kept locked and advised the chief to also confine Stevens' wife.
The troopers arrived seven hours later, ten hours after the chief's original entry, and
entered the house without a search warrant to conduct a homicide investigation. Stevens
and his wife were still incarcerated and were unaware of the troopers' warrantless entry
into their house. At trial Stevens sought to prevent presentation of the evidence gathered
during the troopers' warrantless search of his house, but the trial court allowed it.
Stevens ultimately was convicted of manslaughter.
On appeal Stevens conceded the chief's original entry was lawful.22 The
court stated the "general rule" that the right to enter and investigate in an emergency,
without an accompanying intent to search or arrest, derives from the common law and
is an inherent police duty.23 The court further observed that "[t]he criterion is the
reasonableness of the belief . . . as to the existence of an emergency, not the existence of
an emergency in fact."24 The court concluded that given the phone call from Stevens'
neighbor, which was based on knowledge gained from Stevens' children, the chief "had
reason to believe that an emergency existed when he knocked at the door of [Stevens']
home," and even though he entered uninvited, his entry "was made under the same
22 Id. at 602.
23 Id. (quoting Barone, 330 F.2d at 545).
24 Id. (quoting Patrick v. State, 227 A.2d 486, 489 (Del. 1967)).
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reasonable belief."25
The court built on that conclusion, explaining that after legally entering
Stevens' home and learning of the homicide, the chief's duty to investigate included the
right to inspect the premises;26 had the chief conducted his investigation immediately, he
could have taken pictures, made measurements, and retrieved evidence in plain view
without violating Stevens' constitutional rights against unreasonable searches and
seizures.27 The court concluded the ten-hour delay between the chief's original entry and
the troopers' later entry did not convert what otherwise would have been a legal
investigation into a violation of constitutional privacy rights.28
Justice Rabinowitz concurred in the decision, agreeing with the court's
recognition of the Barone emergency aid doctrine and its conclusion that the chief's
initial entry into the home was lawful, but viewing the totality of the circumstances as
supporting a lawful search of Stevens' house incident to Stevens' arrest.29 Justice
Rabinowitz made two key points guiding the assessment of potential emergencies.30
25 Id.
26 Id.
27 Id.
28 Id. at 602-03. Using the emergency aid doctrine as a foundational predicate
to the court's actual holding likely moved the court's approval of that doctrine beyond
dictum notwithstanding Stevens' concession that the chief's initial entry was lawful. See
VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (concluding discussion in
previous case "was necessary for our holding" and therefore not dictum); Gonzales v.
Krueger, 799 P.2d 1318, 1322 (Alaska 1990) (Moore, J., concurring) (stating language
in previous decision was not dictum because it was necessary to reach the conclusion).
29 Stevens, 443 P.2d at 604-06 (Rabinowitz, J., concurring).
30 Id. at 605 (quoting Patrick, 227 A.2d at 489).
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First, he noted "[t]he reasonableness of an entry by the police upon private property is
measured by the circumstances then existing."31 Second:
The preservation of human life is paramount to the right of
privacy protected by search and seizure laws and
constitutional guaranties; it is an overriding justification for
what otherwise may be an illegal entry. It follows that a
search warrant is not required to legalize an entry by police
for the purpose of bringing emergency aid to an injured
person. Frequently, the report of a death proves inaccurate
and a spark of life remains, sufficient to respond to
emergency police aid. As a general rule . . . an emergency
may be said to exist, within the meaning of the 'exigency'
rule, whenever the police have credible information that an
unnatural death has, or may have, occurred. And the criterion
is the reasonableness of the belief of the police as to the
existence of an emergency, not the existence of an emergency
in fact.[32]
b. Schraff v. State
In Schraff v. State,33 a trooper conducting a routine bar check noted one of
the patrons, Schraff, was inebriated. While securing Schraff's vehicle, the trooper
discovered a large quantity of marijuana and contacted narcotics investigators for
assistance. When a narcotics investigator requested identification, Schraff allowed his
friend to hand Schraff's wallet to the investigator. While briefly looking through the
wallet for identification, the investigator discovered a foil packet containing cocaine.
Schraff was arrested and later convicted of cocaine possession.
31 Id. (quoting Patrick, 227 A.2d at 489).
32 Id. (quoting Patrick, 227 A.2d at 489).
33 544 P.2d 834 (Alaska 1975). The following summary of the underlying
Schraff facts is based on 544 P.2d at 836-38.
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Schraff appealed his conviction, challenging the investigator's search.34 In
relevant part the State claimed the wallet search "was designed to provide crucial
information in the rendition of emergency aid" in light of Schraff's "stupified
condition."35 The court pointed to Barone for the modern emergency aid doctrine and
noted the Stevens court's recognition of the " 'emergency' exception" to the warrant
requirement.36 The court also noted the "business of policemen and firemen is to act, not
to speculate or meditate on whether [a] report is correct. People could well die in
emergencies if police tried to act with the calm deliberation associated with the judicial
process. Even the apparently dead often are saved by swift police response."37
The court reviewed cases from other jurisdictions to evaluate the State's
emergency aid claim. These included a Sixth Circuit case upholding a search of a seizing
man's luggage,38 a D.C. Circuit case upholding a search of an unconscious man's
person,39 a California case upholding a search of a man in shock and suffering from knife
wounds,40 an Illinois case upholding a search of a disoriented and incoherent man who
34 Id. at 837-38.
35 Id. at 841.
36 Id. at 841-42 (quoting Barone, 330 F.2d at 545) (citing Stevens, 443 P.2d
at 602) (stating Stevens court "upheld the search because the officers' belief in the
existence of an emergency was reasonable").
37 Id. at 842 n.10 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.
Cir. 1963)).
38 Id. at 842 (citing United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973)).
39 Id. at 842-43 (citing Vauss v. United States, 370 F.2d 250 (D.C. Cir. 1966)).
40 Id. at 843 (citing People v. Gonzalez, 5 Cal. Rptr. 920 (Cal. Dist. App.
1960)).
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did not seem drunk,41 and a Washington case upholding a search of an unconscious man
in his hotel room based on needle track marks on his arms.42 In each case the reviewing
court had upheld the challenged search as within the ambit of the emergency aid
doctrine.
The court nevertheless rejected the State's claim. The court first noted the
narcotics investigator arrived at the scene to engage in a narcotics investigation, not to
render emergency aid, and that multiple motives - including crime detection -
prompted him to search Schraff's wallet.43 The cited emergency aid cases, in contrast,
involved "officers [who] claimed that their only motivation was that of rendering aid to
an injured person."44 The court also noted Schraff was not totally unconscious and was
accompanied by a "somewhat responsive" companion, suggesting the officers had a way
of getting necessary information about Schraff without searching his wallet.45
Justice Boochever and Chief Justice Rabinowitz concurred, agreeing that
the emergency aid doctrine was inapplicable based on the facts of the case, but
contending that if the officers had "reasonably believed that it was necessary" to gather
Schraff's identification for medical purposes, the search ought not be disqualified simply
because of an accompanying motive to detect crime.46 To do so would inhibit police
41 Id. (citing People v. Smith, 265 N.E.2d 139 (Ill. 1970)).
42 Id. (citing State v. Jordan, 487 P.2d 617 (Wash. 1971)).
43 Id. at 844.
44 Id.
45 Id.
46
Id. at 848 (Boochever, J., concurring). The concurring opinion also noted
"[t]he emergency doctrine is based on a showing of a true necessity - that is, an
(continued...)
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from fulfilling common law duties to Alaskan citizens that all members of the court
agreed police owe.47 They also felt a rule requiring an "alone and unconscious" victim
too "narrow a reading of the emergency exception," and were inclined to allow the
emergency aid exception to the warrant requirement when police reasonably believed a
"medical emergency existed (an imminent and substantial threat to life or health)" and
that a search of the sick or injured person for immediate identification was necessary.48
c. City of Nome v. Ailak
City of Nome v. Ailak49 involved a homeowner's civil suit for, among other
claims, trespass. When Nome police officers stopped Ailak outside his residence on the
report of a rape and murder, the man who had reported the crimes pointed at Ailak's
house and told police that a body was inside. Without obtaining permission or knocking,
the police entered Ailak's home and asked the people occupying the home where the
body was; the occupants explained that "a crazy girl" had attempted to gain entry earlier
but they would not let her in. The officers subsequently left. After trial on Ailak's
claims, a jury awarded him $10,000 for trespass.
On appeal the City conceded its police had entered Ailak's residence
without consent, but maintained police may assert as a defense to trespass that they are
privileged to enter a citizen's home without permission or a warrant in emergency
46 (...continued)
imminent and substantial threat to life, health or property." Id. at 848 n.1.
47 Id. at 848.
48 Id.
49 570 P.2d 162 (Alaska 1977). The following summary of the underlying
City of Nome facts is based on 570 P.2d at 165-67.
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situations.50 The court acknowledged the case did not confront whether a warrant was
necessary to justify police entry into Ailak's residence, but cited Justice Rabinowitz's
Stevens concurrence with approval, stating the same concerns applied "to the issue of
whether police officers should be civilly liable for trespass as a result of their
unauthorized entry into a home."51 The court quoted Justice Rabinowitz's broad
formulation of potential emergencies: "As a general rule . . . an emergency may be said
to exist . . . whenever the police have credible information that an unnatural death has,
or may have[,] occurred."52
The court reiterated that police owe civilly actionable duties "to go to the
aid of imperiled citizens."53 The court stated the "reasonableness of the belief of the
police as to the existence of an emergency, not the existence of an emergency in fact"
controlled the propriety of the police's actions.54 Because the officers were told that a
body was in the Ailak home, and "police officers should be encouraged to check out such
reports as quickly as possible in case 'a spark of life remains,' " the court concluded the
officers' entry into the Ailak home was privileged as a matter of law.55
50 Id. at 166.
51 Id.
52 Id. (quoting Stevens, 443 P.2d at 605).
53 Id.
54 Id. at 167 (quoting Stevens, 443 P.2d at 602).
55 Id. The court expressly refrained from ruling whether the situation was
sufficient to justify entry without a warrant for a criminal case. Id. at 167 n.8.
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d. State v. Myers
In State v. Myers,56 police officers on routine patrol conducted a security
check in an alley and discovered a theater's fire exit door open. Following customary
procedures, they entered the building to search for intruders. As the officers walked
down a hallway they heard voices from a backstage area. They looked in and saw three
individuals, including the theater manager, sitting on the floor with cocaine
paraphernalia. The officers arrested the individuals and seized the evidence. The trial
court granted the defendants' suppression motion and the State appealed.
The court reversed, holding the entry and limited search were police actions
for which no warrant was required and were otherwise reasonable within the meaning
of constitutional protections.57 Relying on diminished expectations of privacy in
commercial premises, the court ruled police:
may enter commercial premises without a warrant only when,
pursuant to a routine after-hours security check undertaken to
protect the interests of the property owner, it is discovered
that the security of the premises is in jeopardy, and only
when there is no reason to believe that the owner would not
consent to such an entry. . . . Any search conducted incident
to a legitimate entry must be brief and must be limited and
necessary to the purpose of ensuring that no intruders are
present on the premises.[58]
Justice Rabinowitz concurred, but on the basis that the search fell within
56 601 P.2d 239 (Alaska 1979). The following summary of the underlying
Myers facts is based on 601 P.2d at 240-41.
57 Id. at 241.
58 Id. at 244.
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the emergency aid exception to the warrant requirement.59 Justice Rabinowitz believed
the court should expressly adopt the emergency aid exception delineated in the New
York case of People v. Mitchell with the following essential components:
(1) The police must have reasonable grounds to
believe that there is an emergency at hand and an immediate
need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by
intent to arrest and seize evidence.
(3) There must be some reasonable basis,
approximating probable cause, to associate the emergency
with the area or place to be searched.[60]
Chief Justice Boochever dissented, concluding the court's general
reasonableness analysis was too generous in light of the availability of other less
intrusive alternatives to the police entry.61 Reasoning that the only possible exception
59 Id. at 245 (Rabinowitz, J., concurring) (citing Schraff, 544 P.2d at 841;
Stevens, 443 P.2d at 602).
60 Id. (quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976)). The
Mitchell court considered the emergency aid doctrine under the Fourth Amendment to
the United States Constitution and noted the difficult problems of evaluation and
judgment by both the police and reviewing courts. Mitchell, 347 N.E.2d at 609. The
court articulated the necessary guidelines for the doctrine's application and further
explained the underpinnings of each prong of its standard, summarized as follows:
(1) police must have valid reasons for the belief of an emergency, grounded in empirical
facts rather than subjective feelings; (2) protection of human life or property must be the
primary motivator for the police; and (3) the limited privilege afforded by the emergency
doctrine does not give police carte blanche to look for evidence of a crime - there must
be a direct relationship between the search area and the emergency. Id. at 609-10.
61 601 P.2d at 245-47 (Boochever, C.J., dissenting).
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to the warrant requirement was the emergency aid exception,62 Chief Justice Boochever
concluded the court should recognize the emergency aid exception as defined inMitchell,
subject to a requirement that no search could be justified under that exception if a
reasonable alternative were available.63 But the Chief Justice noted the emergency
exception was not applicable under the facts of the case because the police had
reasonable alternatives to the warrantless entry into the theater.64
3. Alaska Court of Appeals
In Gallmeyer v. State65 an intoxicated Gallmeyer struck his wife, threatened
her with a firearm, and forcibly expelled her from their home. The wife ran to a
neighbor's house and called the police, asking for help removing the couple's 15-month-
old daughter from the home. Two officers were dispatched, but highway delays
substantially slowed their arrival. The wife called again, insisting she needed immediate
help. The wife then approached her home and asked Gallmeyer to bring their daughter
outside - she told him that in exchange, she would not ask the police to enter the house
once they arrived. Gallmeyer complied, leaving the infant on the front porch; the wife
did not remove the child. Once the officers arrived, the wife - speaking hysterically
and with a bloody mouth - asked them to retrieve the child. She informed the officers
that Gallmeyer was drunk, described the domestic violence, and warned them that he
possessed several handguns. One of the officers approached the home. Fearing for both
62 Id . at 247-48 (discussing Schraff's listing of exceptions to warrant
requirement and concluding only emergency aid exception possible under facts of case).
63 Id. at 251.
64 Id. at 250-51.
65 640 P.2d 837. The following summary of the underlying Gallmeyer facts
is based on 640 P.2d at 837-42.
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his and the child's safety, the officer decided to speak with Gallmeyer first rather than
immediately remove the baby from the porch. Gallmeyer acknowledged the officer, who
then entered the home. The officer immediately noticed Gallmeyer had a gun in his
pants waistband and reached to remove it. Gallmeyer reached for another firearm nearby
and a fight broke out. The officer subdued Gallmeyer without injury and arrested him
for possession of a firearm while intoxicated.
After an investigation revealed Gallmeyer had a prior felony conviction, he
was indicted for being a felon in possession of a firearm.66 He moved to suppress
evidence of his firearms as the product of a warrantless entry into and search of his
home.67 The superior court denied Gallmeyer's motion on the ground that the police
entry "was solely investigative in nature and was meant to assure the safety of the officer
and the Gallmeyers' baby."68 Gallmeyer was convicted and he appealed.69
On appeal the State argued the emergency aid exception to the warrant
requirement justified the police entering Gallmeyer's home.70 The court of appeals noted
the emergency aid doctrine "has been uniformly recognized as an exception to the
warrant requirement," referenced Schraff's "recognition" and Stevens' "appli[cation]"
of the doctrine, and pointed to the Barone statement of the doctrine as "[p]erhaps the
most commonly cited statement of the doctrine."71 It then looked to Mitchell to set out
66 Id. at 841.
67 Id.
68 Id.
69 Id. at 839.
70 Id. at 841.
71 Id. at 841-42 (citations omitted).
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the emergency aid doctrine elements: (1) the police must have reasonable grounds to
believe there is an emergency at hand and an immediate need for their assistance in the
protection of life or property; (2) the search must not be primarily motivated by the intent
to arrest a person or to seize evidence; and (3) there must be some reasonable basis,
approximating probable cause, to associate the emergency with the area or place to be
searched.72
The court of appeals first acknowledged that it must accept the superior
court's factual findings unless clearly erroneous and must view the evidence in the light
most favorable to upholding the superior court's decision.73 The court then considered
whether there were reasonable grounds for the officers' belief that an emergency existed
at the Gallmeyers' home.74 The court described this first prong of the test as an
"objective standard,"75 designed to determine "whether the evidence would have led a
prudent and reasonable officer to perceive an immediate need to take action in order to
prevent death or to protect against serious injury to persons or property."76
Gallmeyer argued that because he was the house's only occupant, no risk
of death or harm to anyone justified police intrusion.77 Taking a broad view of the facts
and drawing all favorable inferences on factual findings in favor of the State, the court
72 Id. at 842 (quotingMitchell, 347 N.E.2d at 609); cf.Myers, 601 P.2d at 245
(Rabinowitz, J., concurring); id. at 249, 251 (Boochever, C.J., dissenting).
73 640 P.2d at 839.
74 Id. at 843.
75 Id. at 842.
76 Id. (citing 2 WAYNE R. LAFAVE, SEARCH & SEIZURE § 6.6(a), at 468
(1978)).
77 Id. at 843.
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rejected Gallmeyer's argument, noting: the wife's two emergency calls requesting
immediate assistance, the wife was obviously upset at the scene, the wife was bloody and
had recently been struck, Gallmeyer had reportedly brandished a weapon, Gallmeyer
possessed weapons inside, and the wife had not attempted to secure her daughter without
the police.78 The court concluded it was "apparent that [the police officers] had ample
cause to fear that [Gallmeyer] posed an immediate threat of inflicting serious and
potentially fatal injury" to his wife, his daughter, or the officers.79
Only after concluding the officers had an objectively reasonable basis to
believe an emergency existed did the court passingly mention the "true necessity"
concept: "In reaching this conclusion, we are not unmindful that emergency aid
ordinarily requires true necessity - that is, an imminent and substantial threat to life,
health or property."80 The court did not indicate whether this "true necessity"
requirement clarified, modified, or simply reiterated its earlier description of the first
element under Mitchell - a situation leading "a prudent and reasonable officer to
perceive an immediate need to take action" to avert death or serious injury.81 But the
court did state that "true necessity" does not require absolute proof that injury would
necessarily have occurred without emergency intervention: "in determining necessity,
the probability and potential seriousness of the threatened harm must be viewed
objectively and balanced against the extent to which police conduct results in a violation
78 Id.
79 Id.
80 Id. (quoting Myers, 601 P.2d at 242 n.4).
81 Id. at 842.
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of privacy interests."82
The court ultimately found the second and third prongs of the test
satisfied,83 noting the superior court's findings on the officer's subjective motivations
were "amply supported by the evidence" and conclusively showed the officers were not
motivated primarily by a desire to arrest Gallmeyer or search for incriminating
evidence.84 As to the scope of the entry and search, the court further found "the record
supports the conclusion that [the officer] was justified in believing" an emergency
reasonably precipitated his entry into Gallmeyer's home.85 The court emphasized
granting officers great flexibility in responding to reasonably perceived emergencies
when it analyzed this third element: "[O]nce the existence of an emergency has been
determined, and once it has been found that an officer's conduct was motivated by the
apparent need to render assistance . . . officers must be allowed a broad scope of
judgment in the precise manner of dealing with emergency situations."86 Speaking more
particularly to cases of domestic violence, the court added that:
situations such as the present one, where officers are called
upon to intervene in episodes of domestic violence, are often
particularly hazardous. . . . Thus, when officers responding
to a call involving domestic violence encounter objective
factors sufficient to indicate an imminent danger of death or
serious injury . . . it is particularly appropriate for courts to be
flexible in assessing the reasonableness of the particular
82 Id. at 844.
83 Id. at 844-46.
84 Id. at 844.
85 Id. at 844-45.
86 Id. at 845.
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[ ]
manner chosen to deal with the emergency. 87
The court affirmed Gallmeyer's conviction.88
4. United States Supreme Court
In 2006 the United States Supreme Court, which had been essentially silent
on the emergency aid exception since 1978,89 granted certiorari in Brigham City v. Stuart
"in light of differences among state courts and the [federal] Courts of Appeals
concerning the appropriate Fourth Amendment standard governing warrantless entry by
law enforcement in an emergency situation."90 The Court held that police "may enter a
home without a warrant when they have an objectively reasonable basis for believing
that an occupant is seriously injured or imminently threatened with such injury."91 The
Court emphasized that the searching officers' subjective intentions and motivations are
irrelevant, and consequently rejected the Mitchell test's second prong for the purposes
of analyzing searches justified under the Fourth Amendment's emergency aid
exception.92
87 Id. at 845 n.13.
88 Id. at 846.
89 See Mincey v. Arizona, 437 U.S. 385, 392 (1978) ("We do not question the
right of the police to respond to emergency situations."); Michigan v. Tyler, 436 U.S.
499, 509 (1978) (noting "the importance of 'prompt inspections, even without a warrant,
. . . in emergency situations' " (quoting Camara v. Municipal Court, 387 U.S. 523, 539
(1967) (alteration in original))).
90 Brigham City, 547 U.S. at 402.
91 Id. at 400.
92 Id. at 404 ("An action is 'reasonable' under the Fourth Amendment,
regardless of the individual officer's state of mind, 'as long as the circumstances, viewed
objectively, justify [the] action.' The officer's subjective motivation is irrelevant."
(continued...)
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B. We Adopt The Mitchell/Gallmeyer Standard As The Alaska
Constitutional Standard For The Emergency Aid Doctrine.
We first reiterate our statement in Stevens that "[t]he right of the police to
enter and investigate in an emergency without the accompanying intent to either search
or arrest is inherent in the very nature of their duties as police officers, and derives from
the common law."93 As Justice Rabinowitz stated in his concurrence:
The preservation of human life is paramount to the right of
privacy protected by search and seizure laws and
constitutional guaranties; it is an overriding justification for
what otherwise may be an illegal entry. It follows that a
search warrant is not required to legalize an entry by police
for the purpose of bringing emergency aid to an injured
[94]
person.
We also agree with Justice Rabinowitz that "an emergency may be said to
exist . . . whenever the police have credible information that an unnatural death has, or
may have, occurred" and that "the criterion is the reasonableness of the belief . . . as to
the existence of an emergency, not the existence of an emergency in fact."95 And we
reiterate our earlier statement that the "business of policemen . . . is to act, not to
speculate or meditate on whether [a] report is correct. People could well die in
emergencies if police tried to act with the calm deliberation associated with the judicial
92 (...continued)
(quoting Scott v. United States, 436 U.S. 128, 138 (1978) (emphasis and alteration in
original))).
93 Stevens, 443 P.2d at 602 (quoting Barone, 330 F.2d at 545).
94 Id. at 605 (Rabinowitz, J., concurring) (quoting Patrick, 227 A.2d at 489).
95 Id. (quoting Patrick, 227 A.2d at 489).
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process."96
We believe Professor LaFave has aptly described the nature of the question
about a reasonable belief of an emergency:
Thus, the question is whether there were "reasonable grounds
to believe that some kind of an emergency existed," that is,
whether there is "evidence which would lead a prudent and
reasonable official to see a need to act." The officer must "be
able to point to specific and articulable facts which, taken
with rational inferences from those facts, reasonably warrant
that intrusion." But . . . this probable cause requirement[]
must be applied by reference to the circumstances then
confronting the officer, including the need for a prompt
assessment of sometimes ambiguous information concerning
potentially serious consequences. As one court usefully put
it, the question is whether "the officers would have been
derelict in their duty had they acted otherwise." This means,
of course, that it "is of no moment" that it turns out there was
in fact no emergency.[97]
Over 40 years ago two members of our court urged the adoption of the
Mitchell standard for applying the emergency aid doctrine.98 Our court of appeals first
embraced and applied theMitchell standard in Gallmeyer, in the context of a suppression
challenge under the Fourth Amendment of the United States Constitution,99 and has
96 Schraff, 544 P.2d at 842 n.10 (quoting Wayne, 318 F.2d at 212).
97 3 WAYNE R.LAFAVE,SEARCH & SEIZURE § 6.6(a), at 452-53 (4th ed. 2004)
(footnotes omitted).
98 Myers, 601 P.2d at 245 (Rabinowitz, J. concurring); id. at 245-47
(Boochever, C.J., dissenting).
99 Gallmeyer, 640 P.2d at 842-43.
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applied that standard since then.100 But as noted earlier, the United States Supreme Court
recently clarified that the Fourth Amendment does not provide privacy protection as
broadly as articulated in Mitchell.101
We therefore consider whether in this context the Alaska Constitution
requires more than the Fourth Amendment and, if so, whether Gallmeyer's adoption of
the Mitchell standard is appropriate for Alaska. Neither Gibson nor the State actually
argues against the Mitchell standard but, as we discuss below, the State argues
Gallmeyer's application of the standard is inconsistent with the principles outlined in
Stevens and Schraff and should be overruled.
We conclude the Alaska Constitution article I, sections 14 and 22, affords
greater protection against warrantless searches and seizures in the emergency aid context
than the United States Constitution102 and the Alaska Constitution prior to the enactment
100 See Hotrum v. State, 130 P.3d 965 (Alaska App. 2006); Mark v. State,
Mem. Op. & J. No. 7661, 2002 WL 341979 (Alaska App., Mar. 6, 2002); Larson v.
State, Mem. Op. & J. No. 7032, 2000 WL 19199 (Alaska App., Jan. 12, 2000); Johnson
v. State, Mem. Op. & J. No. 6407, 1998 WL 19470 (Alaska App., Jan. 21, 1998);
Harrison v. State, 860 P.2d 1280 (Alaska App. 1993); Williams v. State, 823 P.2d 1
(Alaska App. 1991); Montgomery v. State, Mem. Op. & J. No. 1185, 1986 WL 1160968
(Alaska App., May 28, 1986); Krukoff v. State, 702 P.2d 664 (Alaska App. 1985); Spein
v. State, Mem. Op. & J. No. 7259, 1984 WL 908539 (Alaska App., June 20, 1984); Zinn
v. State, 656 P.2d 1206 (Alaska App. 1982). See also Hahn v. State, Mem. Op. & J. No.
6462, 1998 WL 119468 (Alaska App., Mar. 18, 1998) (concluding defendant's
arguments contesting application of emergency aid doctrine were not preserved, but
noting it would find no plain error in trial court's application of doctrine even if
defendant were entitled to raise argument).
101 See note 92, above, and accompanying text.
102 See Brigham City, 547 U.S. at 407-08 (Stevens, J., concurring) (noting state
constitutions can offer more robust protection against warrantless searches than Fourth
Amendment); see also Erwin Chemerinsky, Privacy and the Alaska Constitution:
(continued...)
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of section 22.103 Although the State accurately observes that article I, section 22, does
not create an independent ground for suppressing evidence, Alaska courts have used
section 22's right to privacy to give section 14's protection against unreasonable
searches and seizures "a liberal interpretation."104 Alaskans' heightened right to privacy
is safeguarded by requiring the State to meet all three Mitchell test prongs when seeking
to justify a warrantless search under the emergency aid exception. We therefore hold the
Alaska Constitution requires that warrantless searches under the emergency aid doctrine
satisfy all three Mitchell test prongs specified in Gallmeyer: (1) the police must have
reasonable grounds to believe there is an emergency at hand and an immediate need for
their assistance in the protection of life or property; (2) the search must not be primarily
motivated by the intent to arrest a person or to seize evidence; and (3) there must be
some reasonable basis, approximating probable cause, to associate the emergency with
102 (...continued)
Failing to Fulfill the Promise, 20 ALASKA L. REV . 29, 30 (2003) ("Alaska constitutional
law is clear that greater rights can be protected under the Alaska Constitution than are
recognized under the United States Constitution."); Ronald L. Nelson, Welcome to the
"Last Frontier," Professor Gardner: Alaska's Independent Approach to State
Constitutional Interpretation, 12 ALASKA L. REV . 1, 21 (1995) ("Alaska's discourse on
the right to privacy reflects both the state's independence and its unique tradition of
emphasizing individual liberties.").
103 See, e.g., Beltz v. State, 221 P.3d 328, 334 (Alaska 2009) ("[W]e
acknowledge that the explicit protection of privacy set out in article I, section 22 of the
Alaska Constitution necessarily modifies [earlier precedent] and increases the likelihood
that a person's expectation of privacy in garbage can be deemed objectively
reasonable.").
104 Municipality of Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993)
(quoting Wortham v. State, 641 P.2d 223, 224-25 n.2 (Alaska App. 1982), aff'd, 666
P.2d 1042 (Alaska 1983)); see also id. ("[T]he right to privacy granted by Article I,
Section 22 does not create a separate, independent right to seek exclusion of evidence.").
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the area or place to be searched.105
C. TheMitchell/Gallmeyer "True Necessity" Standard Is Flexibly Applied.
We now consider the State's argument that the court of appeals misapplied
the Mitchell standard's first prong in Gallmeyer. The State focuses on Gallmeyer's "true
necessity" requirement as a part of the Mitchell standard's first prong, arguing "[t]he
court of appeals erred in requiring the [S]tate to establish 'true necessity' in order to
justify the entry." Gibson responds that " '[t]rue necessity' . . . serves merely to define
the term 'emergency' and is in accord with this court's prior decisions." The State
replies if "true necessity" defines "emergency," the definition "requires proof of a greater
emergency than this court required in Stevens and its progeny."
The term "true necessity," in the context of the emergency aid exception,
originated in People v. Smith, a 1972 case in which the California Supreme Court held
a police officer's entry into an apartment was unconstitutional under both the United
States and California Constitutions.106 In concluding the search did not fall under the
Fourth Amendment's emergency aid exception to the warrant requirement, the California
court stated: "[T]he [emergency aid] exception must not be permitted to swallow the
rule: in the absence of a showing of true necessity - that is, an imminent and substantial
threat to life, health, or property - the constitutionally guaranteed right to privacy must
prevail."107 Smith's "true necessity" language first appeared in Alaska case law as a
footnote to Justice Boochever's Schraff concurrence.108 Several years later, inMyers, we
105 640 P.2d at 842 (quoting Mitchell, 347 N.E.2d at 609).
106 496 P.2d 1261, 1263-64 (Cal. 1972).
107 Id. at 1263.
108 Schraff, 544 P.2d at 848 n.1 (Boochever, J., concurring) (citing Smith, 496
(continued...)
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cited a law review article for the parenthetical proposition that " 'emergency aid'
ordinarily requires 'true necessity [-] that is, an imminent and substantial threat to life,
health or property.' "109
We reiterate that invocation of the emergency aid doctrine requires only
that the police have objectively reasonable grounds to believe an emergency at hand
creates an immediate need for their assistance for the protection of life or property. We
also reiterate that this standard does not require the existence of an emergency in fact:
"[T]he criterion is the [objective] reasonableness of the belief . . . as to the existence of
an emergency, not the existence of an emergency in fact."110 Gallmeyer's "true
necessity" language does not alter these fundamental propositions. We believe the "true
necessity" language simply emphasizes the Gallmeyer court's recognition that different
balancing of interests must arise in different factual settings: "[I]n determining necessity,
the probability and potential seriousness of the threatened harm must be viewed
objectively and balanced against the extent to which police conduct results in a violation
of privacy interests."111
As noted above, the "true necessity" language first appeared in Justice
108 (...continued)
P.2d at 1263).
109 Myers, 601 P.2d at 242 n.4 (citing Edward G. Mascolo, The Emergency
Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 BUFF .
L. REV . 419, 434 (1973)). It appears the Gallmeyer court was actually quoting this
parenthetical, not the law review article to which the opinion attributed the quote.
Compare id. with Gallmeyer, 640 P.2d at 843.
110 Stevens, 443 P.2d at 602 (quoting Patrick, 227 A.2d at 489); see also
Gallmeyer, 640 P.2d at 844 ("But 'true necessity' has never been construed to require
absolute proof that injury would necessarily have occurred.").
111 Gallmeyer, 640 P.2d at 844.
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Boochever's Schraff concurrence; in that case the police encountered an individual
sufficiently incapacitated to justify concern for his physical safety.112 Validity of the
officers' actions turned on whether the officers had a reasonable belief a wallet search
was necessary to alleviate the perceived emergency.113 The court concluded Schraff was
not so incapacitated that an emergency justifying a wallet search could be objectively
seen from the circumstances.114 In that narrow factual context, "true necessity" - as the
court of appeals used that term in Gallmeyer - was lacking. But, as discussed below,
where a perceived emergency's circumstances are far more undefined and the potential
harm is more serious, a more liberal view of "true necessity" than the court of appeals
used in this case must be invoked to allow the police to fulfill their duties to the public.
We therefore agree with both parties to some extent. Gibson is correct that
"true necessity" is a part of the first prong inquiry whether objectively reasonable
grounds support a belief an emergency exists. But as discussed below in the context of
this case, the State is also correct that the concept of "true necessity" does not in every
case require those objectively reasonable grounds to be based on probabilities rather than
possibilities. Application of the emergency aid exception to the warrant requirement
cannot be evaluated with across-the-board, rigid, and formalistic standards; it is a flexible
doctrine that, as the court of appeals noted in Gallmeyer, must be evaluated on a case-by-
case basis, balancing the competing interests in light of the actual facts, perceived
dangers, and circumstances encountered by police.
112 544 P.2d at 848 (Boochever, J., concurring).
113 Id. at 844 (majority opinion).
114 Id.
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D. We Reverse The Court Of Appeals' Application Of The
Mitchell/Gallmeyer Standard In This Case
We next consider whether the court of appeals correctly applied the
Mitchell/Gallmeyer standard to the facts of this case when it concluded the police did not
have an objectively reasonable belief of an emergency when they searched Gibson's
trailer, reversed the trial court's denial of Gibson's suppression motion, and vacated
Gibson's convictions. We conclude it did not and therefore reverse its decision.
1. Police duties
The emergency aid doctrine is predicated on the notion that during
emergencies police have duties to take action that might otherwise violate legally
protected rights.115 We note Professor LaFave's approval of a court's artful articulation
of the relevant question in the warrantless search context as whether the police would
have been "derelict in their duty" by not taking action.116 Because this case involves
domestic violence, we consider the relevant police duties in that context.
In Alaska there are circumstances where "[a] police officer is under a duty
to protect the lives and property of the public."117 The Alaska Legislature has passed a
law specifically outlining the duties of a police officer responding to a crime involving
domestic violence.118 Alaska Statute 18.65.515, entitled "Duties of peace officer in a
115 Id.
116 LAFAVE, note 97, above, § 6.6(a), at 453 (quoting State v. Hetzko, 283 So.
2d 49, 52 (Fla. Dist. App. 1973)).
117 Deal v. State, 626 P.2d 1073, 1080 (Alaska 1980) (finding police officer
justified in entering unsecured vehicle for limited purpose of securing it); see also Lee
v. State, 490 P.2d 1206, 1209-10 (Alaska 1971) (establishing police officer duty to go
to aid of citizens).
118 AS 18.65.515. This case does not present, and we do not consider, the
(continued...)
-32- 6635
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crime involving domestic violence,"119 provides in relevant part:
(a) A peace officer investigating a crime involving
domestic violence shall protect the victim and any member of
the victim's family and prevent further violence by
(1) transporting an adult victim and any
member of the victim's family from the place of
the offense . . . to a location within the
community . . . that is a shelter [or other
location] requested by the victim;
(2) assisting the victim in removing from
the residence essential items belonging to the
victim . . .;
(3) assisting the victim and any member
of the victim's family in obtaining medical
treatment necessitated . . . by contacting
emergency medical services or by transporting
the victim to a local medical facility . . . .[120]
The text of .515(a), .515(a)(1), and .515(a)(3) each refers to not only the
victim of domestic violence but also "any member of the victim's family." This
language was deliberate. The bill leading to the addition of AS 18.65.515 as currently
in force was passed with conscious reference to the Model Code on Domestic and Family
Violence;121 the analogous Model Code provision to .515(a), however, speaks only to
118 (...continued)
question of whether this statute establishes a duty of care for a civil action.
119 Id.
120 Id.
121 Minutes, Sen. Judiciary Comm. Hearing on H.B. 314, 19th Leg. 2d Sess.
(Apr. 15, 1996) (statement of Sean Parnell, Representative, Alaska House of
Representatives) ("At the request of many interested individuals and groups, the
(continued...)
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protecting the victim of domestic violence, without mentioning family members or other
residents.122 Similarly, the Model Code analog of .515(a)(3) requires providing only "the
victim and any child" access to medical treatment; AS 18.65.515 broadens this
requirement to apply to any member of the victim's family. While chapter 18.65 does
not define "family," the same title borrows the Model Code's extremely broad definition
of "family or household member," defining "family" and "household members"
interchangeably.123 In light of our legislature's special focus on family members, it is
relevant that in nearly half of domestic violence incidents in Anchorage between 1999
and 2002, children under the age of 18 were present.124
In this context we must also reiterate our recent statements about domestic
violence. In State v. Miller, we noted "the danger that a report of verbal domestic
dispute portends."125 We also noted a September 2005 study ranked Alaska first in the
nation for the rate of intimate partner violence resulting in homicide, and that nationally
92% of female victims were murdered by someone they knew and 62% were killed by
121 (...continued)
proposed committee substitute presents a more comprehensive approach to domestic
violence in Alaska. The committee substitute is based, in part, on the Model Code on
Domestic and Family Violence and is focused on victim protection and domestic
violence prevention.").
122 MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE § 204(1) (1994).
123 Compare AS 18.66.990 (defining "household member" broadly,
encompassing virtually all arrangements of cohabiting adults and children), with MODEL
CODE ON DOMESTIC AND FAMILY VIOLENCE § 102(2) (1994) (defining "family or
household members" broadly, including virtually all cohabiting adults and minors).
124 Manny Rivera et al., Assaults in Domestic Violence Incidents Reported to
Alaska State Troopers, 25 ALASKA JUSTICE FORUM, Fall 2008, at 7-12.
125 207 P.3d 541, 545 (Alaska 2009) (emphasis added).
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husbands, ex-husbands, or boyfriends.126 The court of appeals itself noted in Gallmeyer
that police intervention in domestic violence incidents is "often particularly hazardous"
and courts should be "flexible in assessing the reasonableness of the particular manner
chosen to deal with the emergency."127
The emergency aid exception to the warrant requirement must be viewed
against that backdrop in this case. We do not mean to suggest the legislature could
eviscerate Alaska's constitutional right of privacy merely by statutorily delineating
police duties in specific situations. But in the domestic violence context we can say it
is undisputable that the threat of injury or death affecting multiple people, including
children and other family members, is a serious consideration for responding officers.
2. The officers' initial search was justified by the emergency aid
exception to the warrant requirement.
Whether an officer has objectively reasonable grounds to believe an
emergency exists is a question of law,128 but the resolution of this question depends
heavily on the specific facts of a given case.129 The superior court did a commendable
job establishing a record for review in the present case, conducting evidentiary hearings
126 Id. (citing VIOLENCE POLICY CENTER, WHEN MEN MURDER WOMEN : AN
ANALYSIS OF 2003 HOMICIDE DATA , at 3, 5 (2005)).
127 Gallmeyer, 640 P.2d at 845 n.13.
128 See, e.g., United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995)
("Our de novo review of the record convinces us that the agents did not reasonably
believe that they were confronted with an emergency . . . ."); cf. Beltz, 221 P.3d at 332
(noting in context of warrantless police searches of garbage outside home whether
subjective expectation of privacy is objectively reasonable is question of law).
129 See, e.g., State v. Wood, 149 P.3d 1265, 1267-68 (Or. App. 2006)
("Whether an officer's perceptions of an emergency are objectively reasonable is a
question of law and will depend on the facts of each case." (citing State v. Christenson,
45 P.3d 511, 513 (Or. App. 2002))).
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over five days and making detailed findings of fact, none of which are challenged by
either party. We review these factual findings "in the light most favorable to upholding
the trial court's ruling" to deny the motion to suppress, but "independently determine
whether [its] factual findings support its legal conclusions."130
We take the following factual findings from the superior court's order
denying the suppression motions. The officers were dispatched to Gibson's residence
for "a domestic disturbance involving a knife." On arrival they heard a woman
"screaming distressfully from the inside of the trailer." A woman stumbled out "naked
except for a tank top [and] appeared hurried and visibly injured." She was crying "Help
me, help me!" The officers "did not know how many people were involved," "had a
person coming out of the trailer," and were aware of the "mention of the knife" in the
dispatch, so they requested assistance.
A man "came to the doorway. The officers drew their weapons and ordered
him to come out of the trailer. He complied and was placed in custody." The woman
went back into the trailer to put on pants. The officers ordered her away from the trailer
and tried to question her. They "observed swelling" in one eye and "a cut on the back
of her head," she "was hysterical and uncooperative," when she "became argumentative"
the officers were concerned "she would start a fight" with them or Gibson.
Although the woman denied anyone else was in the trailer, she continued
to be uncooperative and "the officers still could not be certain about how many people
were involved." The officers did not rely on the claim that no one else was in the trailer.
Both officers testified the motivation for the search was "to make sure" there were no
injured people inside in need of their aid, and the superior court found the officers'
testimony credible: "There was absolutely no evidence on the record that something
130 Miller, 207 P.3d at 543.
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outside the trailer led them to suspect that there could be a meth lab inside." Finally, the
superior court determined the officers' search of the trailer fell "well within the time and
scope limits" of an allowable search under the emergency aid doctrine. The superior
court concluded the officers' initial search was justified under the emergency aid
doctrine, but expressly stated it did not find "a general warrantless search exception for
all domestic violence cases" and "the findings are specific to the facts of this case."
The court of appeals reversed, concluding the facts found by the superior
court "would not 'have led a prudent and reasonable officer to perceive an immediate
need to take action in order to prevent death or to protect against serious injury to
persons or property.' "131 The court of appeals interpreted the factual findings as follows:
by the time the officers entered the trailer they knew Bevin was the victim who made the
911 call; Gibson - the apparent assailant - was in custody; and, because there was "no
sign that there was anyone inside," the officers "had no reason to believe that there was
anyone else in the trailer."132 In holding the officers' belief in the existence of an
emergency at the time of the search was not objectively reasonable, the court of appeals
explained the test for an emergency "implies that a mere possibility that an emergency
exists will ordinarily not be sufficient" and that "[t]he State justifies the police entry into
Gibson's home based on speculation."133 The court expressed concern that if it "were
to authorize the police to enter someone's home based on these facts, the police would
routinely be able to search a residence in most cases where there was a report of a serious
131 Gibson, 205 P.3d at 353 (quoting Gallmeyer, 640 P.2d at 842).
132 Id. at 356.
133 Id.
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domestic dispute."134
The State argues the court of appeals "failed to consider the evidence in the
light most favorable" to upholding the trial court's findings when it concluded the
officers' belief an emergency existed was unreasonable. The State asserts the "court of
appeals mistakenly viewed the fast-moving events in isolation and failed to consider the
entire scenario." The State contends the officers' belief was reasonable because of the
"pandemonium" at the scene when the officers arrived and because the officers "did not
know for sure who had placed the 911 call and had not seen or recovered the knife that
had been used to threaten" the 911 caller.
Gibson argues the officers' belief was not objectively reasonable because:
(1) the officers should have known the altercation involved only two parties given the
dispatch call and their own observations when arriving; (2) "[a]ny 'pandemonium' that
existed when the police first arrived had now dissipated or, at a minimum, moved out of
the trailer"; (3) Bevin was obviously the victim "given her injuries and hysteria"; and
(4) there was no indication anyone was in the trailer.
We agree with the State that the court of appeals did not view the superior
court's factual findings in the light most favorable to upholding the denial of the
suppression motion. We also believe the court of appeals took a far narrower view of
an "emergency" than its own post-Gallmeyer cases have taken. The fundamental
question raised by the difference in the superior court's and the court of appeals'
decisions is this: is it enough that the police have good reason to believe there might be,
as opposed to there is, someone injured in the premises? On the facts of this case, we
answer yes. We therefore reverse the court of appeals' decision.
134 Id. To be clear, this case involved not merely "a serious domestic dispute,"
but serious domestic violence - the initial 911 call included a statement about a threat
with a knife and the officers observed Bevin had suffered several head wounds.
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The superior court found the officers could not be certain whether Bevin
and Gibson were the only persons involved in the domestic violence occurring in the
trailer. The court of appeals implicitly found this finding clearly erroneous instead of
considering it an accurate portrayal of the situation, concluding the officers reasonably
should have known they had all the actors accounted for when Gibson and Bevin were
secured.135 Yet the superior court's finding has support in the record: the dispatch to the
officers noted "a disturbance in the background" of the 911 call, and distinct voices of
both the female caller and an unidentified male. The superior court found the officers
reasonably declined to rely on Bevin's claim that no one else was in the trailer. Silence
from the trailer for the 25 minutes the officers waited for the backup officer to arrive was
as equally consistent with someone lying injured in the trailer as it was with no one being
in the trailer. Taking the facts in the light most favorable to upholding the denial of the
suppression motion, we conclude the officers were presented with a domestic violence
emergency shrouded in ambiguity concerning the number of people involved and
possibly involving serious harm to other unknown individuals. We conclude the officers
had a reasonable belief someone might be lying injured in the trailer, notwithstanding
that: (1) after the officers secured Gibson and Bevin, they radioed to inform the backup
officer, for the public's and his own safety, that he no longer needed to respond at an
emergency level; and (2) the officers waited 25 minutes for the backup officer to arrive
before they conducted their search for injured persons in the trailer.
Earlier court of appeals cases considering the emergency aid doctrine are
instructive.136 For example, the court of appeals has found an officer's genuinely held
135 Id.
136 See note 100, above.
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belief in an emergency objectively reasonable even if no known victim existed137 or the
potential victim was believed already dead.138 The court of appeals has upheld belief of
a potential victim as reasonable when the evidence supporting that belief was second-
hand139 or third-hand information,140 an anonymous telephone call,141 or ambiguous
personal observation.142 Additionally, while the delay between when police received and
137 Hotrum, 130 P.3d at 967-68 (entry upheld where police responded to a call
reporting yelling and gunshots inside home, though police neither heard anyone inside
nor received any response to announcement of presence); Mark, 2002 WL 341979, at
*1 (entry upheld where police forcibly entered hotel room after finding body of woman
who had fallen from room to her death); Larson, 2000 WL 19199, at *1 (entry upheld
where police entered home following a report of shooting to ascertain if any further
victims were inside); Krukoff, 702 P.2d at 665-66 (discovery of double homicide with
killer still at large presented emergency situation justifying search of home for known
household weapons, though no expectation of finding additional victims in home).
138 Williams, 823 P.2d at 2-3 (emergency exception applied where defendant's
confession to killing victim prompted search); Spein, 1984 WL 908539, at *1 (upholding
entry under emergency exception after victim's brother witnessed a drunken fight
between victim and her husband, heard husband threaten to kill victim, and later heard
two gunshots from inside victim's home; public safety officer gained entry after 24 hours
of attempts, during which victim was neither seen nor heard from).
139 See, e.g., Spein, 1984 WL 908539, at *1 (witness reported hearing
defendant threatened to kill victim, followed by two gunshots from inside home).
140 Williams, 823 P.2d at 2 (killer confessed to his foster mother, who called
police).
141 Johnson, 1998 WL 19470, at *1 (police received anonymous telephone tip
about burglary on their non-emergency line).
142 Hotrum, 130 P.3d at 967 (when investigating call reporting yelling and
gunshots inside home, police observed open doorway in middle of night and neither
heard anyone inside nor received any response to announced presence); Johnson, 1998
WL 19470, at *1 (when investigating reported burglary, officers observed destroyed
(continued...)
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responded to information reporting an emergency may be a factor in determining the
objective reasonableness of belief in an emergency, delays in police response have not
been dispositive.143 This is true whether the delays are caused by external events144 or
police inaction.145 These delays have extended from brief attempts to procure peaceable,
rather than forcible, entry into an emergency scene146 to multiple-hour delays.147 The
142 (...continued)
patio furniture and burning planter box and heard fight inside); Harrison, 860 P.2d at
1282 (when officer approached resident's house to serve misdemeanor arrest warrant,
officer saw man face down at table, apparently seriously ill or dead); Williams, 823 P.2d
at 2 (as officer approached apartment, he saw clothing on ground outside bedroom
window and several apparent blood stains on steps leading to apartment).
143 See Williams, 823 P.2d at 3 ("The passage of time, however, though
relevant to the possible existence of an emergency, is not determinative." (citing State
v. Beaumier, 480 A.2d 1367, 1373 (R.I. 1984))); see also Montgomery, 1986 WL
1160968, at *1-2 (entry upheld after seven hours of negotiations); Spein, 1984 WL
908539, at *6 (entry upheld more than 24 hours after shots were heard).
144 See, e.g., Williams, 823 P.2d at 2-3 (more than six-hour delay in finding
victim's apartment).
145 Montgomery, 1986 WL 1160968, at *1 (entry upheld despite seven-hour
delay when police negotiated with apparently suicidal resident); Spein, 1984 WL
908539, at *6 (upheld despite more than 24-hour delay attempting to peacefully enter
residence).
146 Harrison, 860 P.2d at 1282 (before entering home to assist apparently
ill/dead individual, officer knocked on front door, tapped on window, knocked on door
again, tapped on window again, opened front door and yelled in, and continuing calling
to apparent victim while approaching); Williams, 823 P.2d at 2-3 (police stopped to
knock and identify themselves, sought apartment manager for a key, and again knocked
and identified before entering, despite evidence of apparent altercation and blood stains).
147 Williams, 823 P.2d at 2-3 (upheld despite more than six-hour delay in
finding victim's apartment);Montgomery, 1986 WL 1160968, at *1 (seven-hour delay);
(continued...)
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court of appeals also has afforded police wide latitude in their response or non-response
to a perceived emergency: emergencies were found to exist when the police immediately
called for backup,148 when the police deliberately chose not to act out of safety
concerns,149 and when the police simply failed to request medical assistance or backup.150
Professor LaFave notes two relevant examples of situations in which
emergency circumstances have traditionally justified warrantless entry: (1) after police
learn of a shooting at a specific location from which one injured victim has been taken
to the hospital, "the possibility that 'others may have been injured and may have been
abandoned on the premises' provides a sufficient basis for an immediate entry 'to render
aid to anyone in distress' ";151 and (2) after police learn of a recently burglarized
property, a warrantless entry is justified "to seek possible victims of violence."152 This
is consistent with the court of appeals' post-Gallmeyer consideration of the emergency
aid doctrine until Gibson's appeal. But under the court of appeals' current view, neither
example raised by Professor LaFave would support the emergency aid doctrine in Alaska
because the police entries would be based on speculation.
147 (...continued)
Spein, 1984 WL 908539, at *6 (24-hour delay).
148 Johnson, 1998 WL 19470, at *1 (police waited until backup arrived before
forcing entry into apartment).
149 Montgomery, 1986 WL 1160968, at *1 (police did not enter immediately,
instead engaged in negotiations with apparently suicidal resident for seven hours).
150 Harrison, 860 P.2d at 1282 (officer did not call for ambulance, police
backup, or other medical back up despite apparently seriously ill or dead individual).
151 LAFAVE, note 97, above, § 6.6(a), at 457 (quoting People v. Hill, 528 P.2d
1, 19-20 (Cal. 1974)).
152 Id. at 461.
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The court of appeals' current view also has been rejected in Washington,
which applies the same emergency aid doctrine standard and shares the same heightened
constitutional concerns about warrantless entry into a residence.153 In State v. Johnson,
the police responded to a domestic violence report by a non-participant in the domestic
dispute and a male came out of the residence, was handcuffed, and placed in a police car;
an officer went to the door, a bloodied female answered, she was told to stay put, and the
officer entered the residence "to protect [her] and other potential victims . . . and to
ensure an orderly investigation."154 The court rejected the argument that police entry
should be allowed only with a "strong" belief that "a specific person" is in "actual need"
of assistance.155 The court explained this limitation "would frustrate the purpose of the
emergency exception" for two reasons.156 First, the court noted the emergency exception
serves the "important purpose" of "allow[ing] police to carry out their community
caretaking function to protect citizens and property."157 Second, such a limitation "would
largely defeat the purpose of the doctrine" as officers often "lack the specific
information" necessary to meet this standard, such as the particular person in need or the
exact number of potential victims; instead, while "[t]he officers may not know the exact
nature of the need . . . they know that something is amiss."158
153 See State v. Johnson, 16 P.3d 680 (Wash. App. 2001).
154 Id. at 682.
155 Id. at 684-85.
156 Id. at 685.
157 Id.
158 Id.
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We believe the Washington courts, Professor LaFave, and the court of
appeals' earlier considerations of the Mitchell/Gallmeyer standards reflect the
appropriate application of the emergency aid doctrine in this case. It is important to
contrast the facts of this case with the hypothetical fact pattern the court of appeals
presumably was concerned about when reversing the trial court's suppression ruling:
this is not a case of an anonymous third-person report of a verbal domestic dispute
uncorroborated by any auditory or visual evidence upon the officers' arrival. That fact
pattern is not before us and we express no view on the application of the emergency aid
doctrine to that fact pattern.159
What we do express is that where: (1) the police respond to a domestic
violence call and find serious domestic violence has occurred; and (2) it is unclear
whether the police have accounted for everyone, especially children, who may have
caused or been affected by the serious domestic violence, the police may have a
reasonable belief that some unknown person(s) might be lying injured and enter the
premises to search for possible victims. Given the factual findings made by the trial
court in this case, and given our directive that those facts be viewed in the light most
favorable to upholding the trial court's suppression decision, we must reverse the court
of appeals' decision that the police did not have a reasonable belief of an emergency
justifying a warrantless entry into Gibson's trailer.
159 Cf. State v. Menz, 880 P.2d 48, 49-50 (Wash. App. 1994) (holding
warrantless entry lawful under emergency aid doctrine when responding to an
anonymous report of domestic violence despite not observing any signs of violence at
scene, because "a reasonable person facing this combination of circumstances would
have thought that someone inside needed assistance").
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V. CONCLUSION
We REVERSE the court of appeals' decision that the emergency aid
doctrine is inapplicable because the officers did not have an objectively reasonable belief
of an emergency justifying the initial warrantless entry into Gibson's residence. Because
the court of appeals stopped its consideration of Gibson's appeal at this first prong of the
emergency aid doctrine, we remand to the court of appeals for consideration of the
remainder of Gibson's issues on appeal in light of our decision.160
160 In his appeal to the court of appeals, Gibson also challenged the second and
third searches of the trailer, conducted by Officer Asselin and Detective Bryant,
respectively, as part of his claim that the superior court should have granted his motion
to suppress, dismissed the indictment, and reversed his conviction. These issues remain
for the court of appeals to address on remand.
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CHRISTEN, Justice, dissenting in part.
I agree with the court's articulation of the Gallmeyer test as the correct
standard for the warrantless entry of a private residence under the emergency aid
exception, but I agree with the court of appeals that the first prong of the test was not met
here. In Alaska, it is necessary for police officers to base the suspicion that an
emergency exists on objectively reasonable facts. Gallmeyer requires more than pure
speculation that an emergency could be ongoing.1 Despite its lengthy review of fact
patterns from other cases that justified warrantless searches - where babies were
obviously at risk or where citizens had been injured or were clearly in peril - the bottom
line in this case is that no objective facts provided grounds for the warrantless entry.
None are cited by the court.
In my view, the court of appeals was disciplined in its application of
Gallmeyer and correctly concluded that if a warrantless search could be upheld under the
circumstances of this case, then a warrantless search could be permitted in virtually all
domestic disturbance 911 calls. The Alaska Constitution requires more. Because the
decision issued today allows the emergency aid exception to swallow the rule that
warrantless entries of private homes are not permitted in Alaska, I respectfully dissent.
1 Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982) ("[I]t is well
settled that the existence of an emergency must be determined by an objective standard
- whether the evidence would have led a prudent and reasonable officer to perceive an
immediate need to take action in order to prevent death or to protect against serious
injury to persons or property.").
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