Court of Appeals of AlaskaJul 2, 2008
Court of Appeals No. A-9726 (Alaska Ct. App. Jul. 2, 2008)

Court of Appeals No. A-9726.

July 2, 2008.

Appeal from the District Court, First Judicial District, Craig, Kevin G. Miller, Judge, Trial Court No. 1CR-05-112 Cr.

Thomas H. Abel, in propria persona, Juneau, for the Appellant.

Stephen R. West, District Attorney, Ketchikan, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.



Thomas H. Abel appeals his conviction for fifth-degree controlled substance misconduct (possession of marijuana or marijuana compounds in an aggregate weight of one ounce or more). As we explain in more detail later, Abel raises three issues of search and seizure law: (a) whether the observations reported by the police officer in this case gave rise to probable cause to believe that a sale of marijuana was occurring or had just occurred; (b) whether, given the officer's physical location, the officer actually could have made the observations that he reported; and (c) whether, if the officer did in fact make these observations, and if these observations gave rise to probable cause that a sale of marijuana was occurring or had just occurred, the officer was authorized to enter a private residence without a warrant to seize evidence of the apparent marijuana sale.

AS 11.71.050(a)(2)(E).

For the reasons explained here, we conclude that the answer to all three of these questions is "yes". We therefore affirm Abel's conviction.

Underlying facts

On May 27, 2005, the Craig police received a report that two puppies at the home of Janice Isaac appeared to be sick and neglected. Craig Police Sergeant Mark Habib responded to this report by going to the Janice Isaac residence to check on the dogs.

When Habib arrived at the residence, he saw the two dogs behind the house. He also saw Janice Isaac's daughter, Elsie, standing on the porch near the front door of the house. Habib decided to talk to Elsie Isaac about the dogs, but (according to Habib) Elsie "got a strange look on her face" as he approached her. She turned away from Habib and walked back into the house. As she did so, Habib heard Elsie say, "Put it away. Put it away, guys. The cops."

Elsie left the door open when she went back into the house. Habib walked onto the porch and up to the open door. Habib later testified that, from his position on the porch, "standing directly outside the door", he was able to see the dining room area of the residence. According to Habib, he observed "several persons sitting around the table", including Abel. Abel's back was to the door, and he was generally facing away from Habib, but Habib stated that he could see that Abel was holding a clear baggie, about the size of a sandwich bag, which was half-full of a green substance, and that Abel was also holding paper currency "kind of pressed up against the bag, between the bag and his right thumb."

According to Habib, while he was looking at the people in the dining room, Abel turned and saw Habib. Abel then "immediately moved his right hand down to his right side, as if trying . . . to hide what he had in his hand." As this occurred, the person sitting to Abel's immediate left got up and walked into another part of the house, out of Habib's line of vision.

Habib testified that, based on the foregoing — that is, based on Elsie's actions and words, as well as his own observations from the front porch — he believed that he had just walked in on a drug sale. He entered the residence and ordered Abel to put his hands on the table. According to Habib, Abel initially refused. Then Abel raised his left hand and placed it on the table, but he kept his right hand down and under the table. When Habib took hold of Abel's right arm, Abel placed his right hand into his jacket pocket and resisted Habib's efforts to control his right hand and arm.

Habib told Abel that he was placing him under arrest. Then, because Abel was continuing to resist Habib's efforts to control his right arm, and because there were an unknown number of people in the residence, Habib used his radio to request assistance from other police officers.

Habib eventually managed to extract Abel's right hand from the jacket pocket, and he then handcuffed Abel. At this point, Habib searched Abel's jacket pocket and found the plastic baggie and the currency that he had seen earlier. Inside the plastic baggie were five other sandwich bags, each containing marijuana. The money totaled $125 in value.

Regarding H abib's decision to enter the residence without a w arrant, H abib acknowledged in his testimony that he knew he had the option to secure the house and try to obtain a search warrant. However, he was by himself, and he knew that the house had toilets, so the evidence he had observed could easily have been destroyed if he delayed. Habib therefore decided to enter the house and secure the evidence.

Later, after Abel was transported to the police station, he was found to be wearing a fanny pack. Inside this fanny pack was a blue wallet. This wallet contained $5700 in currency, as well as two personal checks for $100 made out to Abel and a money order for $100. The fanny pack also contained a marijuana pipe, a small glass jar with marijuana, and a Ziploc bag containing two foil packets, each containing one gram of marijuana.

Abel presented testimony — his own and that of three other witnesses — that contradicted Habib's account of events.

All four defense witnesses (Abel, Elsie Isaacs, Marvin George, and Janice Isaacs) stated that they were present at the residence on the night in question. They testified that Habib entered the residence without permission, and that he ( i.e., Habib) was the one who announced that everyone should put everything away.

Moreover, both Janice and Elsie Isaac testified that it was impossible to see the dining room table from the front door, and that Habib could not have seen the dining room table or anyone sitting in the dining room from his position on the porch.

(Marvin George, however, conceded that Habib might have been able to see a small portion of the dining area from the porch. George also acknowledged that there was marijuana on the table at the time.)

Abel testified that he did not see Habib until Habib entered the house, and that he did not know what was happening because he was sitting with his back to Habib. Abel admitted that he was holding a container with marijuana in it, but he asserted that he "[did] [n]ot really" try to hide this container from Habib. Abel also admitted that he had purchased five baggies of marijuana and an additional two grams of marijuana while in Craig, and that these baggies had cost him $100 apiece.

To support his assertion that Habib could not possibly have observed the things he testified to, Abel introduced a hand-drawn diagram of the Isaac residence's floor plan. The purpose of this drawing was to demonstrate that, from the front porch, Habib could not have seen Abel at the dining room table.

When the prosecutor cross-examined Abel by asking if he was holding cash and marijuana when Habib entered the house, Abel did not deny that he had been holding marijuana and cash. Instead, Abel responded by saying that he did not know exactly when Habib entered the house. When the prosecutor pressed Abel, asking if he had held cash and marijuana together in his hand at any time during the evening, Abel replied that he "may have". Abel also conceded that he might have put the cash and marijuana in his pocket.

Following the presentation of the defense testimony, the State called Craig Police Chief James See to offer a rebuttal. Chief See testified that, over the years, he had been to the Isaac residence a number of times. He further testified that, when the door to the house was open, it was possible to stand on the porch and see the dining room area where Abel was sitting. See added that, when he arrived at the Isaac residence that evening to take Abel into custody, he stood on the front porch and, while standing on the porch, he observed the dining room table "and [other] stuff" in the dining room area.

Having heard and considered this competing testimony, District Court Judge Kevin Miller issued an eight-page decision denying Abel's suppression motion.

Judge Miller found that when Elsie Isaac saw Habib approaching the front of the house, she told the people inside something to the effect of, "Put it away. Put it away, guys. The cops."

Judge Miller also found that Habib had been lawfully on the front porch of the house, that the front door of the house was open, and that, from his position on the porch, Habib had been able to see Abel seated at the dining room table. Judge Miller based these findings primarily on Habib's and See's testimony, although the judge noted that the hand-drawn diagram submitted by Abel also supported these findings.

Judge Miller credited Habib's assertion that he saw Abel holding cash and a baggie containing a green substance. Judge Miller reached this conclusion based on Habib's testimony as well as Abel's admission that he may have been holding a baggie of marijuana and cash in his hand on the evening in question, as well as the testimony of another defense witness, Marvin George, that there was marijuana on the dining room table.

Judge Miller concluded that Habib's observations supported a reasonable conclusion that a drug sale was occurring or had just occurred — thus giving Habib probable cause to arrest Abel and seize the baggie and the cash. The judge also found that it was reasonable for Habib to conclude, based on Elsie Isaac's verbal warning and Abel's effort to conceal the baggie and the cash that he was holding, that this evidence would be destroyed if Habib left the residence to seek a search warrant. For this reason, Judge Miller ruled that Habib's w arrantless entry of the home to secure this evidence was justified by exigent circumstances.

Follow ing Judge Miller's ruling, Abel entered a Cooksey plea of no contest, preserving his right to renew his suppression arguments on appeal.

See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

Why we uphold the district court's decision

The validity of the district court's decision hinges on the answers to three questions. First, what did Sergeant Habib hear and see before he entered the Isaac residence? Second, did Habib's observations give rise to probable cause to believe that a drug sale was occurring or had just occurred? And third, if the answer to the preceding question is "yes", could Habib lawfully enter the residence without first obtaining a search warrant?

On appeal, Abel points out that there was conflicting testimony at the evidentiary hearing concerning what Habib heard as he approached the house, and what Habib could have seen from the porch. But Judge Miller resolved these conflicts in the testimony in favor of the State. The judge concluded that Habib had indeed heard Elsie Isaac say, "Put it away, guys. The cops," as he approached the porch. The judge further concluded that, from the porch, Habib had seen Abel sitting at the dining room table, holding both cash and the baggie of green-colored material in his hand, and that Habib had seen the man sitting next to Abel get up and move out of sight.

When this Court reviews the findings of historical fact made by a trial court, we are obliged to view the evidence in the light most favorable to the judge's ruling, and we are required to uphold the judge's findings of fact unless, viewing the evidence in this light, the findings are clearly erroneous.

Stumbaugh v. State, 599 P.2d 166, 172 (Alaska 1979); Gallmeyer v. State, 640 P.2d 837, 839 (Alaska App. 1982).

(For these purposes, a finding of fact is "clearly erroneous" only if the appellate court's review of the evidence "leaves the [court] with a definite and firm conviction . . . that a mistake has been made, although there may be evidence to support the finding.")

Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981) (quoting Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978)); Noyakuk v. State, 127 P.3d 856, 864 n. 7 (Alaska App. 2006).

It is a trial court's task (not an appellate court's task) to assess the credibility of witnesses and to resolve conflicts in the testimony. Moreover, Judge Miller provided a reasonable explanation for why he believed that the State's version of events was more convincing. For these reasons, we conclude that Judge Miller's findings of fact are not clearly erroneous — and we therefore uphold them.

Palfy v. Rice, 473 P.2d 606, 609 (Alaska 1970) ("Where there is conflicting testimony, the trial court is in a better position than [an appellate court] to evaluate and resolve the conflict in view of the trial court's opportunity to hear and observe the witnesses in person and judge their credibility. [Appellate courts] do not have this opportunity. That is why [an appellate court] shall not set aside a trial judge's findings except when they are `clearly erroneous.'")

The next question is whether Habib's observations gave rise to probable cause to believe that a drug sale was occurring or had just occurred inside the residence. In his brief on appeal, Abel suggests that there are other, innocent explanations for why a person might have a baggie and currency together in their hand. This may be true, but the concept of "probable cause" does not require the State to negate all potential innocent explanations of what the police have observed. Rather, probable cause "requires only a fair probability or substantial chance of criminal activity", as opposed to conclusive proof. Here, Habib heard Elsie Isaac tell the people inside the house to "put it away" because "the cops" were there. Then Habib observed Abel sitting at the dining room table, holding the baggie and the currency. Almost immediately, Abel dropped his hand below the table, and the man sitting next to Abel got up and moved away, out of Habib's line of sight. We agree with Judge Miller that these circumstances, taken together, gave rise to probable cause to believe that a drug sale either was occurring or had just occurred.

See McCoy v. State, 491 P.2d 127, 130 (Alaska 1971) (holding that probable cause existed despite possible innocent explanations for the observed conduct).

State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001).

The remaining question is whether, in light of this probable cause, Habib was authorized to enter the residence for the purpose of seizing the evidence pertaining to this crime, even though he did not have a search warrant.

The fact that Habib observed the evidence inside the residence is not enough, by itself, to justify his warrantless entry into the residence. To justify a warrantless entry to secure evidence, not only must the police have probable cause to believe that evidence of a crime is inside, but in addition the police must have good reason to believe that an immediate entry is necessary to prevent the destruction of that evidence.

State v. Spietz, 531 P.2d 521, 523 (Alaska 1975) ("plain view alone is never enough to justify the warrantless seizure of evidence").

M oore v. State, 817 P.2d 482, 484 (Alaska App. 1991); Ingram v. State, 703 P.2d 415, 422 (Alaska App. 1985).

In Finch v. State, 592 P.2d 1196, 1197-98 (Alaska 1979), the Alaska Supreme Court set out the criteria for determining when a warrantless search is permissible under the destruction of evidence exception. The basic rule is that the police must have probable cause to believe that the evidence is present, coupled with good reason to conclude that the evidence will be destroyed or removed before a search warrant can be obtained. In assessing the second part of this test, courts must consider "the degree of urgency involved; the amount of time [that would be] necessary to secure a warrant; the possibility of danger to police officers guarding the site while a warrant is sought; [the likelihood that] the possessors of the evidence are aware the police are on their trail; and [whether the evidence is] read[ily] destructib[le]." Finch, 592 P.2d at 1198.

When we apply these criteria to assess the situation confronting Habib in this case, we reach the same conclusion as Judge Miller: we conclude that exigent circumstances justified Habib in entering the residence to seize the evidence before it could be destroyed or discarded down the toilet.


For the reasons explained here, the judgement of the district court is AFFIRMED.