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Brand v. State (4/3/2009) ap-2211

Brand v. State (4/3/2009) ap-2211

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DONALD BRAND, )
) Court of Appeals No. A-9844
Appellant, ) Trial Court No. 3KN-04-1926 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2211 April 3, 2009
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Kenai,  Charles  T.  Huguelet  and  John  E.
          Suddock, Judges.

          Appearances:   Marjorie  Allard,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,  Anchorage, for Appellant.   Nancy
          R. Simel, Assistant Attorney General, Office
          of   Special   Prosecutions   and   Appeals,
          Anchorage,  and  Talis J. Colberg,  Attorney
          General, Juneau, for Appellee.

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

          BOLGER, Judge.

          Alaska  State  Trooper Elizabeth Haddad secured  Donald
Brand  and  Gretchen Smith outside of their home after a  violent
confrontation.  Kenai Police Sergeant Gus Sandahl then discovered
a  marijuana-growing operation as he walked through the house  to
determine  whether there was anyone else inside.  But the  police
may  not enter a home for a protective sweep unless they  have  a
reasonable  belief  that  there  is  an  individual  inside   the
residence  who  could put them in danger.  We therefore  conclude
that the superior court should have suppressed the fruits of this
illegal search.

     I.   BACKGROUND
          On   August  2,  2004,  Trooper  Elizabeth  Haddad  was
dispatched to the Brand residence to support a welfare check  for
a  possibly  suicidal woman.  When Haddad arrived  at  the  home,
paramedics  were already treating Gretchen Smith with  oxygen  in
the  back  of  an ambulance.  After speaking with  Haddad,  Smith
became agitated and ran into the home.
          Haddad  attempted to pursue Smith into the  house,  but
was  then  confronted by Donald Brand at the front  door.   Brand
told  Haddad to leave his property.  During this encounter, Smith
twice emerged from the house:  at one point she threatened Haddad
with  a  large  bulldog, and at another she brandished  a  knife.
Haddad felt that Brand was causing a distraction and told him  to
put  his  hands  behind his back so that she could handcuff  him.
When  Brand  refused,  Haddad  drew  her  taser.   Haddad  fired,
unfortunately striking Brand in the groin.  After this  occurred,
she handcuffed him and the paramedics took him to their ambulance
for treatment.
          Meanwhile,  Kenai  Police  Sergeant  Gus  Sandahl   and
Officer  Mitch Langseth were informed by dispatch that a  trooper
was   requesting  emergency  assistance.   Sandahl  and  Langseth
proceeded  to  the  Brand residence with  their  patrol  vehicles
lights  and  sirens  activated.  While  en  route,  the  officers
received information that Trooper Haddad had used her taser on an
individual at the scene.
          When  the  Kenai officers arrived at the scene,  Donald
Brand  and  his brother, James Brand, were outside  of  the  home
while  Smith was still inside.  Donald Brand was secured  in  the
ambulance and James Brand was wandering around, but not bothering
anyone.  Sandahl thought that Smith might have barricaded herself
in  the home, so he went to his patrol car to retrieve his patrol
rifle.   However,  by the time Sandahl returned with  his  rifle,
Haddad was already securing Smith outside of the home.
          Haddad   then   informed  Sandahl  that   she   smelled
marijuana,  and  Langseth  suggested  that  Sandahl   perform   a
protective  sweep.  The officers had James Brand secure  his  dog
(which was inside the house) and then Sandahl walked through  the
residence.   When  Sandahl reached the upstairs  portion  of  the
house,  he discovered a marijuana-growing operation of more  than
forty plants.
          Trooper  Mark  Pearson arrived after Sandahl  completed
the  protective sweep. After learning of the marijuana discovery,
Pearson  confronted Brand about the marijuana and asked  for  his
consent to search the house.  Brand initially refused to consent,
but  ultimately assented when Trooper Pearson told Brand that  he
would  obtain  a  warrant.  Officers then seized the  plants  and
equipment.
          Brand  was  later indicted on three counts  of  fourth-
degree misconduct involving a controlled substance.1  Brand filed
a  pretrial motion to suppress the States evidence  arguing  that
the  protective sweep was illegal and that the subsequent consent
to  search was tainted.  Superior Court Judge Charles T. Huguelet
denied  the  motion, ruling that the protective sweep was  proper
and that the consent was voluntary.
          After  proceeding to trial, Brand was convicted of  two
counts   of   fourth-degree  misconduct  involving  a  controlled
substance.2   These  two counts merged for the  purposes  of  his
sentencing, and on November 22, 2006, Superior Court  Judge  John
E. Suddock sentenced Brand to 4 years imprisonment on this merged
count.


     II.  DISCUSSION
          In  his  denial  of  Brands motion to  suppress,  Judge
Huguelet  ruled  that Sergeant Sandahl reasonably believed  there
may be other individuals in the residence [who] posed a threat to
police  and paramedics.  On appeal, Brand again argues  that  the
protective sweep was unjustified because there was no  basis  for
Sandahl  to  believe that there was anyone  in  the  house.    We
review the trial courts factual findings for clear error, but  we
independently  decide whether those facts constitute  an  illegal
warrantless search.3

          A.   The  Protective Sweep of Brands Residence Was  Not
               Justified.
          A  protective  sweep is a quick and limited  search  of
premises,  incident  to an arrest and conducted  to  protect  the
safety  of  police officers or others.4  Such a  sweep  lasts  no
longer  than  is necessary to dispel the reasonable suspicion  of
danger  and in any event no longer than it takes to complete  the
arrest  and  depart  the premises.5  For  such  a  search  to  be
permissible,  there  must  be  articulable  facts  which,   taken
together  with  the rational inferences from those  facts,  would
warrant  a reasonably prudent officer in believing that the  area
to be swept harbors an individual posing a danger to those on the
arrest scene.6
          Under  Alaska  law, [t]o satisfy the protective  search
doctrine,  the state must prove that: (a) the officers must  have
reasonable cause to believe that their safety is in danger before
engaging  in  such a search, and (b) the search must be  narrowly
limited  to  areas where they could find dangerous persons.7   To
establish  such  reasonable cause, the State must  demonstrate  a
factual  basis  for a reasonable belief that additional  suspects
[beyond  those  under police control] were present  and  posed  a
threat to the safety of the officers.8

          The Superior Courts Decision
            Based on the evidence presented at the hearing, Judge
Huguelet  concluded  that Sandahl believed that  there  could  be
other  individuals in the residence who posed  a  threat  to  the
          police and paramedics:
          Sergeant   Sandahl  arrived  at   the   Brand
          residence to back up Trooper Haddad after the
          situation  at  the  Brand  house  had  become
          dangerous.    Donald  Brand  was  belligerent
          enough   [that]   Trooper  Haddad   felt   it
          necessary  to  shoot him with a  taser.   Ms.
          Smith  had threatened Trooper Haddad  with  a
          knife and a bulldog.  Donald Brand seemed  to
          be   aggressively   supporting   Ms.   Smith.
          Trooper Haddad could smell marijuana from the
          porch.
          
From  these  findings, the judge concluded that  the  threatening
nature of the situation caused Sandahl to be concerned that there
might be others in the Brand residence:
          The environment [Sandahl] arrived to find  at
          the    Brand   residence   was   threatening.
          Sergeant Sandahl saw the need to arm  himself
          with  an  assault rifle.  Donald  Brands  and
          Gretchen  Smiths reactions to Trooper  Haddad
          reasonably  caused  Sergeant  Sandahl  to  be
          concerned [that] more people might be in  the
          house  who  posed  a  danger  to  police  and
          paramedics.   The  scope of  the  search  was
          narrow.   The sweep was not a pretext  for  a
          search for drugs.

Accordingly,  Judge  Huguelet ruled that Sandahl  had  reasonable
cause  to  believe that there were other individuals in the  home
who may have posed a threat to the officers safety.  However,  we
conclude that there was insufficient testimony at the evidentiary
hearing to suggest that Sandahl had reason to believe that  there
were others inside the home.

          The Officers Testimony
          Haddad  and  Sandahl both testified that they  did  not
have  any  reason to believe that there was anyone in  the  home.
Sergeant Sandahl  the officer who performed the sweep   testified
that  both  Smith  and Brand were secured outside  the  residence
prior  to  his  entry  to  conduct the  sweep.   Sandahl  further
testified that he did not remember anyone telling him that  there
were  any  additional persons inside, that he was unable  to  see
anyone  else inside, and that he did not know if there was anyone
else in the residence.  When asked if he had specific information
that there was anyone else inside of the house, Sandahl testified
that  he  did not have information that there was anyone else  in
the house, but qualified that statement with the explanation that
[a]t any point, there could be . . . anyone anywhere.  When asked
if he knew of any threats to the officers, Sandahl testified that
something had happened that caused Trooper Haddad to taze one  of
the  individuals.  Sandahl could not recall whether he was  aware
if anyone had been threatened by Smiths dog.
          Trooper  Haddads testimony on this point is  consistent
with  Sandahls.  Haddad testified that she did not know if anyone
else  was  inside of the house.  She testified that she  did  not
tell  Sergeant Sandahl to perform a protective sweep and did  not
know  why he did so.  Haddad agreed that before Sandahl conducted
the  protective sweep, Brand was secured in the ambulance.  Smith
was  also  secured, and James Brand was wandering around outside.
Haddad  also testified that she did not know if anyone  else  was
inside of the house.
          Thus,  neither Haddad nor Sandahl had any actual belief
that  there  was  someone within the home who posed  any  threat.
More importantly, Sandahl specifically testified that he did  not
have  any  information supporting a belief that there was  anyone
else  in  the  home.    Judge Huguelets conclusion  that  Sandahl
believed  there were others in the house is simply not  supported
by the record.

          The Other Circumstances
          The   State  argues  that  the  protective  sweep   was
justified by the nature of the events at the Brand residence.  In
support of this claim, the State points to the facts that Trooper
Haddad  was  facing  a situation involving a potentially  violent
suicidal individual who had threatened her with both an attack by
a  large,  aggressive  dog  and  a  knife,  and  that  Brand  was
aggressive   and   threatening,  and  .  .  .  appeared   to   be
intentionally diverting the troopers attention from  the  subject
who was reportedly suicidal and violent.
          As  Professor LaFave notes, there are indeed situations
where  the  arresting  officers are  not  possessed  of  concrete
information  tending to show that other persons are presently  in
the  premises  entered, [but the] dominant consideration  is  the
seriousness  of  the criminal conduct for which  the  arrest  was
made,  considering  all the known circumstances.9   For  example,
when police are making arrests in particularly dangerous areas or
are  arresting violent criminals,10 are responding to reports  of
gunfire,11  have  come under fire,12 or are arresting  inherently
dangerous  individuals involved in the drug  trade,13  protective
sweeps  may  be  justified  despite  uncertainty  of  whether   a
residence contains any other individuals.
          Such  reasoning  appears  to  be  consistent  with  the
Alaska  rule  that the protective sweep exception to the  warrant
requirement is applicable when the officers had reasonable  cause
to  believe  that  their safety was in danger because  additional
suspects   beyond  those under police control  were  present  and
posed  a  threat to the officers . . . .14  For example, officers
were  justified in sweeping a residence in Maness v. State  where
they  responded to a shooting and found a victim lying in a  pool
of  blood.15  In that case, even though the officers did not have
concrete facts to indicate that there was someone other than  the
arrestee  within  the building, the sweep was proper  because  of
earlier reports of a crazy man with a shotgun and because  of  an
earlier shooting incident.16
          But  the  instant  case does not present  the  sort  of
serious  situation addressed in the examples above.  Rather  than
investigating  a  serious  crime, the  officers  were  originally
called  to  the  scene to conduct a welfare check on  a  possibly
suicidal  individual. Although Smith did threaten Haddad  with  a
          knife and a dog, her threats were not tied into a broader pattern
of  violence that would still present a threat to officer  safety
after  she  was  secured.    Notwithstanding  Smiths  threats  to
Trooper Haddad or Brands aggressiveness, such behavior would  not
lead  a  reasonable police officer to believe  that  other  armed
confederates were present within the house.

          The Presence of the Dog
          The  State  also argues that the presence of a  vicious
dog  is  a  factor  that  may  be considered  in  evaluating  the
potential  danger  and whether a protective sweep  is  necessary.
Here, the States argument is not that the officers were concerned
about  some  unidentified third party who could use  the  dog  to
attack  others,  but  rather that Smith could  have  escaped  the
officers  custody, opened the door to the residence, and released
the dog.  In support of these arguments, the State relies on Teer
v.  State17 and United States v. Bernard.18  However, both  cases
are distinguishable from this one.
          In  Teer, officers were stationed around a residence to
arrest a serious violent felon on a warrant.19  After the suspect
was  led  out  of  the house and arrested on  the  porch,  police
conducted  a protective sweep of the residence.20  The  appellate
court  found  that  the sweep was proper because  [t]he  evidence
addressed  at trial showed that there were five other  adults  in
the home . . . .  [And p]olice officers also heard a dog barking,
which turned out to be a pit bull.21  Although the court does not
go  into detail about the presence of the dog, it does not appear
that  the  mere  presence  of a dog independently  justified  the
protective sweep.
          In  Bernard,  police  conducted a raid  on  a  location
after  aerial surveillance revealed fields of marijuana.22  While
investigating  fields  in  the area in  the  past,  the  officers
encountered many traps, including ankle and neck-high trip wires,
barbed wire stretched across paths at eye level, pit-falls, steel
traps, electric fences, and guard dogs.23  When the officers were
unable to locate persons whom they had spotted from the air, they
conducted  a protective sweep of the defendants curtilage,  where
the  officers discovered drying marijuana in plain  view.24   The
appellate  court  held that the protective  sweep  was  justified
basing  its  conclusion  upon the officers  prior  experience  in
securing  other  marihuana  fields;  their  encounter  with   the
neighbors  Doberman  Pinscher; the recently harvested  marihuana;
the value and commercial nature of the crop; and [the] appellants
evasive  response to [an officers] question inquiring  about  the
whereabouts  of  the missing person, which was inconsistent  with
what the officers had seen from the air.25
          In  neither case did the courts find the presence of  a
dog  sufficient to independently warrant a protective sweep.  The
presence  of  a vicious dog is one factor that could  support  an
inference that people within a home could be a threat,  at  least
when  considered in tandem with facts supporting the belief  that
other  people are inside.  The presence of a dog alone,  however,
does  not  satisfy the requirement that police have a  reasonable
belief that other individuals are present in the home who pose  a
threat to officer safety.

          The  Officers Were Outside the Home Before They Started
the Protective           Sweep.
          A  special consideration that applies to this  case  is
that  the  arrest  of Brand and Smith occurred outside  of  their
residence.  In many of the cases reviewing protective sweeps, the
sweep at issue took place after police officers already entered a
residence to effect an arrest.
          In  State  v.  Spietz, the Alaska Supreme Court   noted
the  special constitutional protection for the home:  A  door  of
the  home represents a firm constitutional barrier whether or not
it  is  open.26   In that case, the supreme court held  that  the
officers  entry  into  a home to conduct a protective  sweep  was
unjustified even though the suspect was wanted for assault with a
dangerous weapon and had been observed with what was suspected to
be  marijuana in plain view through his front door.27  Without  a
factual  basis  for a reasonable belief that additional  suspects
were  present  and posed a threat to the safety of the  arresting
officers.  .  .  .   Plain  view  alone  could  not  justify  the
warrantless  entry through the doorway into the  constitutionally
protected area of the . . . house.28
          In  this case, both Donald and James Brand were outside
of  their residence when Sandahl arrived.  Smith was still inside
the residence when Sandahl first arrived, but by the time Sandahl
had retrieved his patrol rifle, Trooper Haddad was securing Smith
outside.   Haddad  testified  that before Sandahl  conducted  the
protective  sweep, Brand was tasered, put away in the  ambulance,
and  no  longer a threat.  Smith was secured and James Brand  was
wandering around not bothering anyone.
          The  trial  courts decision does not  explain  why  the
officers  believed they had to enter the residence  in  order  to
safely  withdraw from the scene.  Although the judge  found  that
Smith  had threatened the officers with a knife and dog,  he  did
not  indicate  that   the  officers  believed  that  these  facts
prevented  their  safe departure.  There is no  evidence  in  the
record  suggesting  that  the  officers  could  not  have  safely
withdrawn from the Brand  home.

                    B.    The  Protective  Sweep  Tainted  Brands
               Consent.
          After  Sergeant Sandahl discovered the grow  operation,
Trooper Mark Pearson arrived at the scene and asked Brand for his
consent to search the house.  While Brand was handcuffed  in  the
back  of  the ambulance, Pearson had him sign a waiver consenting
to  the  search  of  the residence.  Brand now  argues  that  the
unlawful  protective sweep tainted his consent and  rendered  the
search invalid.
          When  the  police obtain the defendants  consent  after
conducting  an  illegal  search or arrest,  the  unlawful  police
action  presumptively taints the defendants  related  consent  to
search.29   To  overcome this presumption,  the  government  must
demonstrate  a break in the causal connection between  the  prior
illegality  and  the  defendants  consent.30   That  is  to  say,
[u]nless the government can show that the consent is sufficiently
insulated  from the prior misconduct, the defendants  consent  is
          considered to be tainted.31
          In  this  case, Trooper Pearson obtained Brands consent
to  search  the residence after Sandahl had already  conducted  a
protective  sweep.   Accordingly, if  the  protective  sweep  was
illegal, then the State would have to show a break in the  causal
connection  sufficient to insulate the consent  Pearson  obtained
from  the search that Sandahl conducted.  However, the State  has
not presented any argument that Brands consent was not tainted.
          Trooper  Pearson arrived at the scene after  Brand  had
been  arrested  and tasered, and after Sandahl had conducted  the
protective  sweep.   Pearson was aware that the  sweep  had  been
conducted  and  that  the marijuana-growing  operation  had  been
discovered.   Brand was handcuffed in the back of  the  ambulance
when  Pearson  asked  him  about  the  marijuana  plants  in  the
residence and threatened to obtain a search warrant if Brand  did
not  consent to a search.  Under these circumstances, we conclude
that  Brands consent was tainted by the prior illegal  search  of
his home.

     III.CONCLUSION
          We therefore REVERSE the superior courts judgment.

                                        
_______________________________
     1  AS  11.71.040(a)(3)(G),  AS  11.71.040(a)(3)(F),  and  AS
11.71.040(a)(5).

     2 AS 11.71.040(a)(3)(G) and AS 11.71.040(a)(3)(F).

     3  See  Hilbish  v.  State, 891 P.2d 841, 848  (Alaska  App.
1995).

     4  Maryland  v. Buie, 494 U.S. 325, 327, 110  S.  Ct.  1093,
1094, 108 L. Ed. 2d 276 (1990).

     5 Id. at 335-36, 110 S. Ct. at 1099.

     6 Id. at 334, 110 S. Ct. at 1098.

     7  Earley  v.  State, 789 P.2d 374, 376 (Alaska  App.  1990)
(quoting Murdock v. State, 664 P.2d 589, 596 (Alaska App. 1983)).

     8  Murdock,  664 P.2d at 596 (quoting State v.  Spietz,  531
P.2d 521, 525 (Alaska 1975)).

9  3  Wayne  R.  LaFave, Search and Seizure: A  Treatise  on  the
Fourth Amendment,  6.4(c), at 377 (4th ed. 2004).

     10    See United States v. Burrows, 48 F.3d 1011, 1017  (7th
Cir.  1995) (holding that because officers were making an  arrest
in  a  particularly violent area, and because the arrestees  were
suspected  of committing a violent crime involving a firearm  and
were  allegedly  planning to control the local  drug  trade,  the
sweep   was   justified  because  the  officers  were  especially
concerned for their safety).

     11    See United States v. Carza, 843 F.2d 432, 435-36 (11th
Cir. 1988); United States v. Riccio, 726 F.2d 638, 643 (10th Cir.
1984).

     12    See  State v. McCurry, 587 S.W.2d 337, 340  (Mo.  App.
1979).

     13    See  United States v. Castillo, 866 F.2d 1071, 1080-81
(9th  Cir. 1988) (upholding sweep because officers testified that
they  knew  of cocaine dealers propensities to carry weapons  and
resort to violence).

     14   Maness v. State, 49 P.3d 1128, 1131 (Alaska App. 2002);
see  also  Spietz,  531 P.2d at 525; Earley,  789  P.2d  at  376;
Murdock, 664 P.2d at 596.

     15   Maness, 49 P.3d at 1131.

     16   Id.

     17   738 N.E.2d 283 (Ind. Ct. App. 2000).

     18   757 F.2d 1439 (4th Cir. 1985).

     19   Teer, 738 N.E.2d at 286.

     20   Id.

     21    Id.  (citing Reed v. State, 582 N.E.2d 826, 828  (Ind.
Ct. App. 1991)).

     22   Bernard, 757 F.2d at 1440-41.

     23   Id. at 1441.

     24   See id.

     25   Id.

26   Spietz, 531 P.2d at 525.

     27   See id.

     28   Id.

     29    Moore v. State, 119 P.3d 1018, 1020 (Alaska App. 2005)
(citing  Norman  v.  State, 379 So. 2d 643, 646-47  (Fla.  1980);
Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416
(1975); Wong Sun v. United States, 371 U.S. 471, 486, 83  S.  Ct.
407, 416, 9 L. Ed. 2d 441 (1963)).

     30   Id. (citing Florida v. Royer, 460 U.S. 491, 507-08, 103
S. Ct. 1319, 1329, 75 L. Ed. 2d 229 (1983); Wong Sun, 371 U.S. at
487-88,  83  S. Ct. at 417; United States v. Melendez-Garcia,  28
F.3d 1046, 1053 (10th Cir. 1994)).

     31    Id.  at  1020-21 (citing United States v. Taheri,  648
F.2d 598, 601 (9th Cir. 1981)).

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