Opinion
Court of Appeals No. A-10113.
July 15, 2009.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge, Trial Court No. 3KN-06-00377 CR.
Mark D. Osterman, Osterman Law Office, P.C., Kenai, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3. Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Bert Nelson was indicted on four counts of misconduct involving a controlled substance in the fourth degree after police discovered marijuana growing in his garage and in a cabin on his property. Nelson moved to suppress the evidence against him on several grounds. Superior Court Judge Harold M. Brown denied Nelson's motion to suppress. Nelson entered a no-contest plea and reserved his right to appeal Judge Brown's denial of his suppression motion. We find that we are unable to resolve Nelson's appeal and remand the case to the superior court for further findings.
AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), (a)(5).
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Factual and procedural background
Trooper Lawrence Erickson and his trainee, Trooper Wertanen, went to Hazel Court at around 1:30 a.m. on February 16, 2006, to investigate an anonymous phone call reporting a suspected marijuana grow on Hazel Court. Trooper Erickson testified that he had specialized training in the detection and investigation of cases involving controlled substances. He testified that when he arrived at Hazel Court he could clearly smell the strong odor of freshly grown marijuana. He followed the odor for about 200 feet to the front door of a cabin.
In his affidavit in support of a search warrant, Trooper Erickson stated that he knocked at the door of the cabin but got no response. He stated that the odor of marijuana was very strong from both the cabin and a detached garage nearby. Trooper Erickson then followed what he described as a "well worn path" through the snow, approximately four to five feet wide, around the side of the cabin. From there, he could see that the path led to a newer house about 150 feet away. As he began walking down the path, Trooper Erickson could see into the cabin through a window. When he looked through the window, Trooper Erickson saw what appeared to be a grow-light system and other evidence indicating an "obvious marijuana grow operation going on." (The evidence is disputed as to whether Trooper Erickson had to step up on a snow berm to make these observations. Although the State appears to have conceded this issue at the evidentiary hearing, Judge Brown did not resolve this factual dispute in his written order.)
Trooper Erickson continued up the footpath to the house, but was unable to contact anyone there. He stated in his affidavit that the address of this house was 42160 Salamatoff Drive. As Trooper Erickson walked back from the house along the path, he detected a very strong odor of fresh marijuana coming from the garage. He also heard electric humming which indicated the presence of electrical ballasts and fans. He was unable to contact anyone in the garage.
Trooper Erickson also checked the electric meters next to the older residence and the detached garage. He observed that both of these meters were spinning very rapidly. Based upon his experience as a homeowner and from investigating marijuana grows, he concluded that the meters indicated more electrical usage than he would expect from a normal residence with the lights out in the middle of the night.
Trooper Erickson then contacted the next-door neighbor, Rodney Nelson, at 2:00 a.m. Rodney Nelson told Trooper Erickson that his son, Bert Nelson, owned the property that Trooper Erickson had been investigating and that Bert Nelson lived in the newer house. Trooper Erickson asked Rodney Nelson about the strong odor of marijuana coming from Bert Nelson's property. Rodney Nelson stated that he did not smell the marijuana at that moment and that he knew nothing about his son growing marijuana. But he stated that he thought his son had a medical-use marijuana card. Trooper Erickson checked the Alaska Public Safety Information Network, which indicated that Bert Nelson did not have a medical-use marijuana card.
Trooper Wertanen, the trainee, interviewed Pamela Beard, who lived directly across the street from Bert Nelson. Beard stated that she suspected Nelson of growing marijuana because she had smelled its odor coming from his property since July of 2001. She suspected that he was growing marijuana in the garage because of the light coming from it.
Trooper Wertanen also interviewed George Hunt, who lived next to Bert Nelson. Hunt stated that he was a former police officer and knew what marijuana smelled like. Hunt told Trooper Wertanen that he knew Bert Nelson well and that they spoke often. Hunt stated that he had smelled the odor of marijuana coming from Bert Nelson's property for the last couple of years, and had smelled it very strongly in the last couple of weeks. He claimed that Bert Nelson was not employed but had a new house, four wheelers, and a motorhome.
In his affidavit, Trooper Erickson stated that based upon his experience, he concluded that the marijuana grow was a lot larger than a personal-use marijuana grow. Because of the odor he smelled coming from Bert Nelson's property, what he saw in the old cabin, and the sounds and lights emanating from the detached garage, Trooper Erickson determined that Nelson was running a commercial-grow operation.
Bert Nelson arrived home shortly before 6:00 a.m. He spoke with Sergeant Sabala, a member of the Statewide Drug Enforcement Unit who had remained on the scene. Nelson admitted that he was growing marijuana. He indicated that he had more than ten plants, but less than fifty.
Trooper Erickson presented all of the above information in his affidavit in support of the search warrant. When the warrant was issued, Trooper Erickson returned to the property and executed the warrant around 7:00 a.m. The troopers executing the warrant discovered marijuana growing in the cabin and in a hidden room in the garage.
They also found a small amount of marijuana in the newer house. After it was processed, the final weight of the seized marijuana was 4.78 pounds.
Bert Nelson was charged with misconduct involving a controlled substance in the fourth degree. He moved to suppress the evidence against him, contending that Trooper Erickson conducted an illegal search, particularly when he looked into the window of the cabin and saw evidence of the marijuana-grow operation. He also maintained that the warrant was fatally flawed because it did not adequately describe the property to be searched and it authorized the search of the wrong building. Nelson also argued that the search warrant did not establish that he possessed marijuana in an amount that was greater than that authorized for personal use. He further argued that the troopers unlawfully seized him and his residence while they were waiting for a warrant and that they violated his Miranda rights in obtaining his statement.
Judge Brown denied Nelson's motion to suppress. Judge Brown found that there was probable cause to issue the search warrant and concluded that "the conduct of Trooper Erickson prior to the issuance of the search warrant in the course of investigating the criminal activity was appropriate." Judge Brown found that the affidavit in support of the search warrant was adequate to describe the property to be searched. Nelson appeals.
Nelson's argument that the trooper conducted an illegal search when he followed the path around the cabin and stepped up on the snow berm Pistro v. State is one of the leading Alaska cases on the constitutional protections extended to the areas surrounding a home. In Pistro, the police were investigating the theft of a pickup, and their investigation led them to a garage where Pistro and another man were standing. The officer pulled into the driveway leading to the garage, and proceeded to the side door. When he was about ten to twenty feet away, the officer saw an engine that matched the type from the stolen pickup. He could also determine that the two men in the garage matched the description of the suspects. Pistro was ultimately convicted of larceny and concealing stolen property.
590 P.2d 884 (Alaska 1979).
Id. at 885.
Id.
Id.
Id.
Id.
Because the engine and the occupants of the garage would not have been visible from the road, Pistro argued on appeal that the officer had conducted an illegal search by entering the driveway and approaching the garage. The Alaska Supreme Court held that, because the driveway was a normal way for the public to make contact with the occupants of the house, a police officer could approach the house by the driveway without violating the rights of the occupants. Anything the officer observed from the vantage point of the driveway was in plain view:
Id. at 886.
Id. at 887.
The driveway was a normal means of ingress and egress impliedly open to public use by one desiring to speak to occupants of the garage, or to park off the street while visiting occupants of the house. This is not a case of an officer leaving such a means of public access to spy from an area not impliedly open to the public. There was no invasion of rights to privacy, and [the officer] could constitutionally observe what was in plain view in the garage.
Id.
In Chilton v. State, the supreme court revisited Pistro to decide whether police officers conducted an unconstitutional search when they followed a footpath to an area behind an apartment building. The officers were on a public stairwell when they heard voices coming from an area where they had previously encountered people smoking marijuana. The officers went through a gap in the handrail down a beaten path that dead-ended near the rear of an apartment building. From this vantage point, the officers observed the defendant through a window snorting cocaine. The supreme court first held that the officers did not have probable cause to enter the private property of the apartment building, and then examined whether the pathway was impliedly open to public use.
611 P.2d 53 (Alaska 1980).
Id. at 54.
Id.
Id.
Id. at 56.
The supreme court observed that there was nothing in the record regarding the condition of the path at the time of the search, nor any evidence regarding how the path was created, or who might have been authorized to use it. Because the burden was on the State to show that the officers were lawfully positioned when they made their observations, the court found that the officers' observations were the product of illegal conduct and reversed Chilton's conviction.
Id.
Id.
This court applied Pistro in Michel v. State, which examined whether posting "No Trespassing" signs along a driveway creates a sufficient expectation of privacy to require police to obtain a warrant before approaching a house. This court noted that Pistro was based on the premise that "visitors — including unsolicited visitors — can be expected to use normal means to approach a residence" and, more specifically, "a homeowner must reasonably expect that members of the public will approach a residence via an ungated driveway." The "law presumes that a homeowner generally consents to `allow visitors to take reasonable steps to make contact with the occupant.'" This court held that posting "No Trespassing" signs, without more, is not sufficient to overcome that presumption and create an expectation of privacy, because normal social and business visitors would not be deterred from approaching the house by such signs.
961 P.2d 436 (Alaska App. 1998).
Id. at 437.
Id.
Id. at 438 (quoting State v. Gabbard, 877 P.2d 1217, 1221 (Or.App. 1994)).
We have also applied Pistro in several unpublished decisions. Why we must remand for further findings on this issue
See Neuharth v. State, Alaska App. Memorandum Opinion and Judgment No. 5264 (Sept. 19, 2007), 2007 WL 2745156; Trail v. State, Alaska App. Memorandum Opinion and Judgment No. 4641 (Dec. 4, 2002), 2002 WL 31714218; Conner v. State, Alaska App. M emorandum O pinion N o. 4565 (A pr. 24, 2002), 2002 W L 663677; Tunnell v. State, Alaska App. Memorandum Opinion and Judgment No. 4472 (Oct. 17, 2001), 2001 WL 1691636; State v. Vandort, Alaska App. Memorandum Opinion and Judgment No. 2184 (Mar. 20, 1991), 1991 WL 11259113.
Under Pistro and subsequent cases, the question is whether Trooper Erickson exceeded the range of movement that a homeowner might reasonably expect from any social or business visitor using normal means of access to make contact with the occupants of a residence. In his brief, Nelson concedes that Trooper Erickson could approach his property by the "main ingress and egress." But Nelson argues on appeal, as he did before the trial court, that Trooper Erickson violated his rights when he followed the path around the cabin and then departed from the path and stood on the snow berm to look into the window of the cabin.
Judge Brown did not address this issue in his findings. Judge Brown merely found that "the conduct of Trooper Erickson prior to the issuance of the search warrant in the course of investigating the criminal activity was appropriate." We therefore must remand the case for the superior court to make specific findings on whether Trooper Erickson, under the circumstances, departed from a normal means that a person would use to make contact with the occupants of a residence.
The State's argument that, even if Trooper Erickson conducted an illegal search and this evidence is excluded, the search warrant still established probable cause
The State argues that Nelson's sole contention was that Trooper Erickson violated his constitutional rights when he stood on the snow berm and looked into the window of the old cabin. The State argues that, even if this occurred and constituted an illegal search, all of the other evidence that the State presented to obtain a warrant was obtained independently. The State contends that this independent evidence established probable cause for the warrant. Nelson has not addressed this argument.
The State relies on Cruse v. State. In Cruse, a state trooper arrested several armed robbery suspects. Before turning the investigation over to an Anchorage police officer, the trooper searched the trunk of the suspect's car. The police officer saw incriminating evidence in the trunk and applied for a warrant, but agreed with the assistant district attorney not to disclose the prior search because there was sufficient other evidence to support a finding of probable cause. The warrant was issued, the evidence found, and Cruse was convicted.
584 P.2d 1141 (Alaska 1978).
Id. at 1143.
Id.
Id.
Cruse moved to suppress, and the trial court denied the motion. The Alaska Supreme Court affirmed. Assuming, without deciding, that the prior search of the trunk had been illegal, the court first noted that "the exclusionary rule would prohibit the use of both primary and derivative evidence gained from" the illegal search. But the court held that if the evidence "is gained from an independent source or has become `so attenuated as to dissipate the taint,' it may be admissible." In Cruse, because the officer had sought the warrant based only on the information which "was obtained . . . wholly independent of the initial trunk search," and not on any observations from the illegal search, the evidence they obtained came from "an independent and lawful source" and was therefore admissible. Cruse is distinguishable from this case because the police in Cruse obtained all of the information necessary for the warrant before they conducted the illegal search. In Nelson's case, if there was an illegal search, it occurred during the time in which the police were still gathering information. Cruse appears to suggest that, under these circumstances, the court would have to exclude not only any illegal evidence which Trooper Erickson obtained, but also any evidence which was derived from this illegal evidence.
Id. at 1144.
Id. at 1145.
Id. (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 2d 307 (1939)).
Id.
The State never advanced this contention in the trial court, and Judge Brown consequently never addressed this issue. On remand, the trial court should address this issue even if it concludes that Trooper Erickson did not conduct an illegal search. The trial court should exclude the contested evidence and any evidence which was derived from it and determine if the warrant was sufficient without this information. Our judgment is that by having the trial court address this issue, we will advance the resolution of this case.
The search warrant adequately described the places to be searched
Nelson argues that the search warrant did not adequately describe the place to be searched. The search warrant itself, based upon Trooper Erickson's affidavit, authorized the search of "the premises known as: 42160 Salamatoff Dr.[,] a two story wood sided tan in color residence, a single story wood sided blue in color building and detached wood sided blue in color garage," as well as the curtilage, outbuildings, and vehicles.
At the evidentiary hearing on the motion to suppress, Bert Nelson introduced a photograph of his mailbox, tax documents, and borough records showing that his physical address at his house was 42150 Salamatoff Drive. Nelson testified that when he lived on the lot containing the cabin, he used the address 42160 Hazel Court, and that this was still the valid address for that residence. Nelson argues that there was no probable cause to search the newer house at 42150 Salamatoff Drive. He argues that Trooper Erickson misrepresented the addresses and that the police entry into his house under the search warrant was improper. Judge Brown rejected this contention. He found that the search warrant, read in its entirety, "provided a substantial and reliable evidentiary basis" to search the house, the cabin, and the garage, and that the search warrant adequately described these buildings.
According to LaFave, technical deficiencies in the description of the place to be searched can be cured by the warrant affidavit, or by "facts known by the executing officer other than by examination of the affidavit." For example, a normally insufficient description can be cured if "the executing officer was also the affiant and the affidavit indicates that he had previously investigated personally the premises to which reference in the warrant was intended."
2 Wayne R. LaFave, Search and Seizure § 4.5(a), at 567-68 (4th ed. 2004).
Id. at 567 (citations omitted).
Here, Trooper Erickson conducted the initial investigation of the property before leaving to apply for a warrant. Because he was familiar with the property, and that familiarity is clear from his affidavit, there was little risk that he would return to the wrong property to execute the warrant. The warrant, read in its entirety, clearly set out the places to be searched. The warrant described the buildings on Nelson's property. Trooper Erickson was familiar with the buildings, and Sergeant Sabala and other officers had remained on the scene. Consequently, there was no risk that the police were going to search the wrong property.
In addition, the warrant set out probable cause to search the newer house. In his brief conversation with Rodney Nelson, Trooper Erickson confirmed that Bert Nelson owned all of the adjacent properties. Although the affidavit did not specify an independent reason to search the house, the warrant authorized the police to search for "Books, Pamphlets or Printed Material," "Items Relating to Illegal Transactions," and "Money," all of which would more likely be found in the primary residence.
The warrant established probable cause that Nelson's marijuana grow was not for his own personal use
Nelson argues that the State did not establish that he possessed marijuana for any purpose other than personal use at the time the warrant was issued. Contrary to Nelson's assertion, the affidavit included: (1) reports of a strong odor of marijuana during the nights (suggesting venting); (2) reports of periodic heavy traffic in and out of the residence; (3) the trooper's observation of electrical ballasts, a vent hole, and a box for a 10,000-watt grow light bulb, and plant food; (4) the trooper's observation of high use of electricity in a house that appeared to be heated by fuel; (5) a neighbor's report that Nelson was unemployed but had built a house and purchased four wheelers and a motor home; (6) evidence of two grows in different locations on the property; (7) Nelson's own admission that he had a multiple-stage marijuana grow with more than ten plants; and (8) Trooper Erickson's assertion that based on his experience, his observations led him to believe that the grow operation was not for personal use. This evidence was sufficient to establish probable cause that Nelson possessed marijuana for more than just personal use.
See State v. Crocker, 97 P.3d 93, 94 (Alaska App. 2004) (holding that, to obtain a search warrant, the State must establish probable cause to believe that the person possesses an unlawful amount of marijuana).
The police could lawfully restrict Nelson from entering his house while they obtained a search warrant
At around 5:40 a.m., Bert Nelson and his wife arrived home and were contacted by Sergeant Sabala. Sergeant Sabala identified himself and asked Nelson if he was growing marijuana; Nelson nodded yes. Through questioning, Nelson indicated that he had more than ten plants, but less than fifty. Nelson and his wife asked to go into the house, but Sergeant Sabala informed them that they could only enter the house if accompanied by one of the troopers. Bert Nelson entered the house with an officer and let the dog out. Eventually the Nelsons and the police went into the house and waited in the living room for Trooper Erickson to return with the warrant. Although the police accompanied Nelson into his house, they told him that he was not under arrest at that time and was free to leave. Sergeant Sabala told Nelson that he was not sure whether they would be able to get a warrant, but he had to wait there until they "found out one way or the other."
On appeal, Nelson argues that the police illegally seized both him and his house by remaining on the scene and not allowing him to enter his residence unaccompanied while Trooper Erickson was out obtaining the search warrant.
The police may take reasonable steps to prevent the destruction of evidence by preventing a person from entering his property unaccompanied while they apply for a search warrant if they have probable cause to believe that the property contains evidence of a crime.
See, e.g., Illinois v. McArthur, 531 U.S. 326, 331-33, 121 S. Ct. 946, 950-51, 148 L. Ed. 2d 838 (2001); Punguk v. State, 784 P.2d 246, 247 (Alaska App. 1989).
In the present case, Nelson and his wife arrived home around 5:40 a.m. Trooper Erickson returned to the property, and the officers executed the warrant at around 7:00 a.m. The actions the police took to prevent the destruction of evidence were reasonable.
Nelson has not preserved his Miranda argument for appeal
Nelson also argues that Sergeant Sabala acted illegally by questioning Nelson about whether he was growing marijuana without informing him of his Miranda rights. As the State points out, Nelson did not argue the Miranda issue in the trial court. His only mention of Miranda in the trial court was a passing reference in his reply to the State's opposition to his motion to suppress. Consequently, Judge Brown never addressed this issue, and Nelson has not preserved it for appeal. Conclusion
See Harris v. Keys, 948 P.2d 460, 468-69 (Alaska 1997) (holding that "[a]rguments not raised in the trial court are waived and will not be considered on appeal, except to the extent that plain error has been committed") (quoting Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)); Fuzzard v. State, 13 P.3d 1163, 1166 (Alaska App. 2000) ("It was incumbent on Fuzzard to raise his present argument before [the trial court] to preserve his objection."); Tallent v. State, 951 P.2d 857, 863 (Alaska App. 1997) (holding that an issue which was argued for the first time on appeal was not preserved).
We REMAND this case to the superior court for further proceedings and findings consistent with this decision. The trial court shall enter its findings and forward those findings to this court within sixty days of the issuance of this decision. We retain jurisdiction.
O n remand, the superior court must first address, under the Pistro standard, whether Trooper Erickson acted unlawfully when he followed the path around the cabin. Assuming that it was lawful to go down the path, the court must decide whether it was unlawful for the trooper to step on the snow berm. In deciding this question, the court should make factual findings regarding whether Trooper Erickson stepped onto the snow berm in order to observe the interior of the cabin. If so, the court must then determine whether Trooper Erickson acted unlawfully by departing from the path, stepping up on the berm, and looking in the window. If Trooper Erickson did act unlawfully by looking in the window, the court should determine whether he acquired any information that he had not already observed from a place where he was entitled to be.
The next question the court must address is the State's argument under Cruse: whether, even if some of the information which the police presented in the search warrant was illegally obtained, the legally obtained information in the search warrant was sufficient by itself to establish probable cause to support the warrant. In making this determination, the court should exclude from the warrant any information which it determines was illegally obtained and any information which was derived from this illegally obtained evidence. In other words, if all the information derived from these actions is excluded from the warrant, was the remaining information in the warrant sufficient to establish probable cause? The court should address this question even if it holds that Trooper Erickson's conduct was lawful.