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Gibson v. State (4/10/2009) ap-2212

Gibson v. State (4/10/2009) ap-2212

                             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


ROBERT DUANE GIBSON III, )
) Court of Appeals No. A-9720
Appellant, ) Trial Court No. 3AN-02-06007 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2212 April 10, 2009
)
          Appeal  from the Superior Court,  Third  Judi
          cial   District,   Anchorage,   Michael    L.
          Wolverton, Judge.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,  Anchorage, for Appellant.   W.  H.
          Hawley, 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.

          COATS,  Chief Judge.

          Robert Duane Gibson III was convicted of two counts  of
misconduct  involving  a  controlled  substance  in  the   second
degree,1 one count of misconduct involving a controlled substance
in  the  fourth  degree,2 and one count of  disorderly  conduct.3
          Gibson appeals, arguing that Superior Court Judge Michael L.
Wolverton  erred  in  denying his motion  to  suppress  evidence.
Gibsons motion to suppress was based on his claim that the police
discovered  the  evidence  of  his  drug  offenses  by  illegally
entering  his trailer without a warrant.  The State  argued  that
the  police  were authorized to enter Gibsons trailer  under  the
emergency  aid  exception  to  the  warrant  requirement.   Judge
Wolverton  found  that the police entry was justified  under  the
emergency  aid exception and denied Gibsons motion  to  suppress.
We reverse Judge Wolvertons decision because we conclude that the
circumstances  surrounding  the search,  as  established  at  the
evidentiary hearing, 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.4

          Factual and procedural background
          On  July  10,  2002, a woman called  911  to  report  a
domestic disturbance.  The 911 operator entered the text,  Female
stated male was threatening to stab her in the head.  Could  hear
1119  [disturbance]  in background, which was  then  transmitted.
Anchorage Police Officers Justin Doll and Francis Stanfield  were
dispatched to the source of the call, a trailer on Eureka Street.
Upon   arriving,  Officers  Doll  and  Stanfield  heard  a  woman
screaming in the trailer.  Moments later, Lisa Bevin tumbled  out
of  the  door  of the trailer wearing only a tank  top.   Officer
Stanfield  noticed that Bevin had a cut on the back of  her  head
that  was  bleeding  and  her eye was  swollen.   Bevin  saw  the
officers and said, Help me, help me.
          As the officers tried to talk to Bevin, Gibson appeared
in  the doorway and then started to go back inside.  Officer Doll
testified that because he did not know who these people were, how
they  were  involved in the call ... [and] we didnt  really  have
control  of [the situation] at that point, he called for  backup.
The officers drew their weapons and ordered Gibson to come out of
the  trailer.   Gibson complied, and the officers took  him  into
custody  outside the trailer.  Gibson offered no  resistance  and
was  cooperative.  Officer Stanfield handcuffed Gibson and placed
him in the back of his patrol car.
          While  the police were dealing with Gibson, Bevin  went
back  into  the trailer and put on a pair of pants.   The  police
asked  her  to come out of the trailer.  She asked for permission
to  put on some shoes, and the police agreed.  She then came  out
of the trailer.
          The  police attempted to talk to Bevin, but  Bevin  was
upset  and screaming and crying and carrying on to such an extent
that  Officer  Stanfield put her in the back  of  a  patrol  car.
Bevin  told  Officer  Doll that there was  no  one  else  in  the
trailer.   Officer Doll testified that he did not know  if  Bevin
was  the  person  who  had made the 911 call,  but  there  is  no
indication that he asked Bevin whether she had made the call.
          Once  Bevin and Gibson were under control, Officer Doll
contacted  the officer who was responding as backup  to  let  him
know that he could proceed to the trailer without his lights  and
          siren, because a suspect was already in custody.  Officer Doll
testified that during that time, they saw nothing else that would
indicate that there was another person inside [the trailer].
          Once  the backup officer arrived, he supervised  Gibson
and  Bevin while Officers Stanfield and Doll entered the  trailer
to  search  for  anyone  who  might  be  injured.   Officer  Doll
explained that, although Bevin had told him that there was no one
else  in the trailer, people had lied to him in the past, and  he
needed to make sure there was no one still inside the trailer who
had been injured in some way.  When they entered the trailer, the
officers  discovered  a methamphetamine laboratory.   The  police
later  obtained  a warrant, reentered the trailer,  and  gathered
evidence of the illegal drug activity.
          The  State charged Gibson with two counts of misconduct
involving  a  controlled  substance  in  the  second  degree  for
manufacturing methamphetamine, and for possessing the  precursors
of  methamphetamine with the intent to manufacture it.  The State
also  charged  Gibson  with  misconduct  involving  a  controlled
substance  in  the fourth degree for maintaining a dwelling  used
for  keeping  or  distributing controlled  substances,  and  with
assault  in  the  fourth degree for his alleged assault  on  Lisa
Bevin.
          Gibson filed a motion to suppress.  In that motion,  he
argued  that  the  police  had discovered  the  evidence  of  the
methamphetamine  laboratory  when  they  illegally  entered   his
trailer without a warrant.  The State argued that the police were
authorized  to  enter his trailer based upon  the  emergency  aid
exception to the warrant requirement.
          Following evidentiary hearings, Judge Wolverton  denied
Gibsons  motion  to  suppress.  Judge Wolverton  found  that  the
officers did not act unreasonably in not relying on Bevins  claim
that no one else was in the trailer when they entered the trailer
to  make  sure that no one else was injured or in need of medical
assistance.
          A  jury  convicted Gibson on two counts  of  misconduct
involving  a  controlled substance in the second degree  and  one
count  of  misconduct  involving a controlled  substance  in  the
fourth  degree.   The  jury also convicted Gibson  of  disorderly
conduct,  a  lesser-included offense of  assault  in  the  fourth
degree.  Gibson appeals.

          Why   we  conclude  that  warrentless  entry  into
          Gibsons trailer was not justified by the emergency
          aid exception
          
          We discussed the emergency aid exception to the warrant
requirement in Gallmeyer v. State.5  In Gallmeyer, the  defendant
appealed  his  conviction for being a felon in  possession  of  a
concealable  firearm.6  He argued that the  police  obtained  the
firearm by illegally entering his home.7
          The  case arose from a domestic dispute in which  David
Gallmeyer hit his wife, Linda, in the face, pointed a gun at her,
and pushed her out of their house.8  Linda fled across the street
and  called  the  police from a neighbors  house.   She  informed
          Gallmeyer that she had called the police and told him that if he
put  their  baby on the porch, she would not ask  the  police  to
enter  the house when they arrived.9  In response, Gallmeyer  put
the baby on the front porch.10
          After  the  police arrived, Linda told  them  that  her
husband  was  intoxicated and that he had struck her,  threatened
her  with  a  gun,  and ejected her from the house.11   She  also
disclosed  that  there were numerous guns in the house.12   Linda
urged  the  police  to bring her daughter  to  her.13   Based  on
Gallmeyers  violent and intoxicated state and the  fact  that  he
both possessed guns and had recently made threats with them,  the
police  officers  feared for their own safety  and  that  of  the
child.14   They decided the safest course of action would  be  to
try  to  calm  Gallmeyer down before attempting to  pick  up  the
baby.15   A  police officer testified that he did not attempt  to
pick  up  the baby because he thought this would not be safe  for
either him or the child.16  When the officer got to the house, he
talked  to  Gallmeyer,  who was inside  the  home.   The  officer
ultimately  entered  the  house, pulled  a  gun  from  Gallmeyers
waistband, and struggled with him as he reached for another  gun,
which went off.17  No one was injured.  Gallmeyer was arrested.18
          We  upheld  the trial courts ruling denying  Gallmeyers
motion  to  suppress.   We  first set out  the  basic  rule  that
warrantless  entries are deemed per se unreasonable  and  may  be
tolerated  only  if they fall within one of the  well-established
and specifically defined exceptions to the warrant requirement.19
We  then  went on to discuss the emergency aid exception  to  the
warrant  requirement.20   We adopted and applied  the  three-part
test  articulated by the New York Court of Appeals in  People  v.
Mitchell:21
          (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.[22]
               
          In concluding that the emergency aid exception had been
satisfied in Gallmeyers case, we observed that the emergency  aid
doctrine  ordinarily  requires  true  necessity   that   is,   an
immediate  and substantial threat to life, health, or property.23
We went on to observe:
          [T]rue necessity has never been construed  to
          require  absolute  proof  that  injury  would
          necessarily  have occurred.  ...  Rather,  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   of    privacy
          interests.[24]
          
          Applying  this  test to Gallmeyers case,  we  concluded
that  the  officers  decision to contact David  Gallmeyer  before
attempting  to  pick up the Gallmeyer baby was a  reasonable  and
direct  effort to deal with the threat of danger existing at  the
time, and that [the officers] entry of the Gallmeyer residence to
establish this contact was permissible.25
          Applying  the  Gallmeyer standard to Gibsons  case,  we
conclude  that the State did not present sufficient  evidence  to
justify  entering Gibsons home without a warrant.  The  Gallmeyer
test  requires us to give substantial weight to a citizens  right
to  privacy in his home.  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.26   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.27
          The  State justifies the police entry into Gibsons home
based  on  speculation.  The States case rests on the  contention
that  the officers did not know whether Bevin was the person  who
made  the 911 call, that the police were responding to a  serious
assault  which  apparently  involved  a  knife,  that  Bevin  was
hysterical  and uncooperative, and the police could not  rely  on
her statement that there was no one else in the trailer.  But the
facts  known to the officers at the time they entered the trailer
strongly  support the conclusion that Bevin was  the  person  who
made  the  911  call.  Bevins injuries were consistent  with  the
threat that the caller reported, but the police never asked Bevin
whether  she was the person who made the call.  Perhaps this  was
because Bevin was uncooperative or because the officers were  not
willing to credit Bevins statements given the emotionally charged
nature  of  the  situation.  At the time the police  entered  the
trailer, there was no sign that there was anyone inside, and  the
police had both Gibson and Bevin in custody.  At this point,  the
police had no reason to believe that there was anyone else in the
trailer.
          Our concern is that, if we were to authorize the police
to  enter  someones 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.  We conclude  that,
under  the  circumstances  of Gibsons  case,  the  emergency  aid
exception  to the warrant requirement did not justify the  police
entry into Gibsons home.  Although it is understandable that  the
police wanted to eliminate even the most remote possibility  that
there  was  an additional victim in the home, the scant  evidence
supporting that possibility in Gibsons case was not sufficient to
override the important constitutional requirement that the police
have a warrant to enter a home.

          Conclusion
          We  hold  that  the police unlawfully  entered  Gibsons
trailer following his arrest.  We do not address the questions of
what  evidence should be suppressed as a result of  this  illegal
search, or whether the indictment should be dismissed.  The trial
court  has  not  had  the  opportunity to  decide  these  issues.
Accordingly,  we  REVERSE the decision of  the  trial  court  and
REMAND for further proceedings consistent with this opinion.
_______________________________
     1 AS 11.71.020(a)(2), (4).

     2 AS 11.71.040(a)(5).

     3 AS 11.61.110.

4 Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982).

5 640 P.2d 837.

     6 Id. at 839.

     7 Id.

     8 Id.

9 Id.

     10   Id.

     11   Id. at 840.

     12   Id.

     13   Id.

     14   Id.

     15   Id.

     16   Id.

     17   Id.

     18   Id.

     19   Id. at 841.

     20   Id.

     21    347 N.E.2d 607 (N.Y. 1976).  The second prong of  this
test  has been abrogated under federal law by Brigham City,  Utah
v.  Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1947, 164 L.  Ed.
2d 650 (2006).

     22   Id. at 609, quoted in Gallmeyer, 640 P.2d at 842.

     23    Gallmeyer, 640 P.2d at 843 (quoting Edward G. Mascolo,
The Emergency Doctrine Exception to the Warrant Requirement Under
the Fourth Amendment, 22 Buff. L. Rev. 419, 434 (1973)).

     24   Id. at 844.

     25   Id. at 845.

     26    Id.  at  843 (quoting Edward G. Mascolo, The Emergency
Doctrine  Exception to the Warrant Requirement Under  the  Fourth
Amendment, 22 Buff. L. Rev. 419, 434 (1973)).

     27   Id. at 844.

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