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State v. Siftsoff (4/30/2010) ap-2262

State v. Siftsoff (4/30/2010) ap-2262

                             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.

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         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA, )
) Court of Appeals No. A-10322
Petitioner, ) Trial Court No. 1SI-08-182 CR
)
v. ) O P I N I O N
)
ALLEN SIFTSOFF JR., )
)
Respondent. ) No. 2262 April 30, 2010
)
          Petition for Review from the Superior  Court,
          First  Judicial  District,  Sitka,  David  V.
          George, Judge.

          Appearances:   David  L.  Brower,   Assistant
          Attorney General,  Criminal Division  Central
          Office,  and  Richard  A.  Svobodny,   Acting
          Attorney General, Juneau, for the Petitioner.
          Michael Jude Pate, Assistant Public Defender,
          Sitka,  and Quinlan Steiner, Public Defender,
          Anchorage, for the Respondent.
          
          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          COATS,  Chief Judge.

          Sergeant Daryl Rice of the Sitka Police Department  saw
a  truck traveling at approximately sixty to sixty-five miles per
hour in a forty-five mile per hour zone.  Sergeant Rice activated
his  overhead lights and pursued the truck, reaching speeds which
he  estimated at eighty to eighty-five miles per hour.   Sergeant
Rice  pursued the truck as it slowed down to turn into the gravel
road of a trailer park.  The truck momentarily fishtailed, kicked
up  some  gravel  and dust, and then continued, apparently  under
control.   Sergeant Rice recognized the driver as Allen  Siftsoff
Jr.
          Siftsoff  got  out  of  his truck and  started  walking
toward  a  trailer that Sergeant Rice knew was Siftsoffs trailer.
Sergeant Rice told Siftsoff that he was conducting a traffic stop
and told him not to go into the trailer.  Siftsoff shook his head
and went into the trailer.
          After  calling for backup and checking to make sure  no
one  else was in the truck, Sergeant Rice knocked on the  trailer
door,  announced  his presence, and then proceeded  to  open  the
trailer door and enter.  In the trailer, he encountered Siftsoff,
who was apparently intoxicated.  Sergeant Rice took Siftsoff into
custody.
          A  grand  jury indicted Siftsoff on three counts:   (1)
failure  to stop at the direction of a peace officer,1 a class  C
felony; (2) reckless driving,2 a misdemeanor; and (3) misdemeanor
driving  under  the  influence.3   Siftsoff  filed  a  motion  to
suppress,  arguing that Sergeant Rice had illegally  entered  his
residence  and asking the court to suppress all of  the  evidence
which   derived  from  the  entry   the  evidence  of   Siftsoffs
intoxication.   The State argued that Sergeant Rices  entry  into
Siftsoffs  residence  was justified under  the  doctrine  of  hot
pursuit.
          Following an evidentiary hearing, Superior Court  Judge
David  V.  George granted the motion to suppress.   Judge  George
held  that,  to  enter  a home, the police  must  not  only  have
probable cause, but also that an emergency or exigency must  also
exist and the emergency or exigency must be of such a nature that
it  compels entry into a persons home by police before a  warrant
can  be secured.  Judge George concluded that the police had  not
met  this standard.  He concluded that Sergeant Rice had probable
cause to believe Siftsoff was driving the vehicle [that Sergeant]
Rice observed and that Siftsoff remained in the house at the time
of  [Sergeant] Rices entry.  Judge George stated that  there  was
little danger that Siftsoff would have been able to escape,  that
he  would not have gotten very far if he had attempted to escape,
and  that Siftsoff would not have been a danger to others.  Judge
George  further stated that there was no indication that Siftsoff
was  armed  or  dangerous.  Despite finding that  Sergeant  Rices
pursuit was immediate and continuous, Judge George concluded that
given  the  specific  facts of this case the  appropriate  action
would have been for Sergeant Rice to await the arrival of back-up
and obtain a warrant from a neutral judge or magistrate.

          Why we uphold Judge Georges decision
          
          We   conclude  that  Judge  Georges  order   accurately
reflects  Alaska  law.  We have reviewed the Alaska  cases  which
discuss the hot pursuit exception to the warrant requirement.  In
reviewing these cases, we find that the decisions do not  support
          allowing the police to enter a residence merely because the
police  are engaged in an immediate and continuous pursuit  of  a
suspect.   The  police must have a compelling need  for  official
action and no time to secure a warrant.4
          We  discuss the cases in chronological order.  In  Gray
v.  State,5  the Alaska Supreme Court discussed the  hot  pursuit
doctrine.   Relying  on United States v. Robinson,6  the  supreme
court stated that hot pursuit requires an exigency in which  time
[is] of the essence and it is not practical to obtain a warrant.7
          In Anchorage v. Dunkelberger,8 an unpublished decision,
we  decided  a  case  with facts similar to Siftsoffs  case.   In
Dunkelberger,  a police officer was investigating  an  automobile
accident.   One of the drivers involved in the accident  informed
the  officer  that the other driver had fled from  the  scene  on
foot.   The  officer  was  able to obtain information  about  the
driver  who had fled from the drivers vehicle registration.   The
driver who had remained at the scene pointed out the apartment to
which  the  other  driver  had fled.  The  officer  went  to  the
apartment, saw the door was slightly ajar, and saw someone  lying
on  the bed inside.  After knocking and identifying himself,  the
police  officer called out Dunkelbergers name.  He heard a  groan
which he interpreted as a response and entered the apartment  and
arrested Dunkelberger.
          Dunkelberger   moved  to  suppress.   The  Municipality
argued  that  the  officers entry was  justified  either  by  the
doctrine  of hot pursuit or by Dunkelbergers consent.  We  upheld
the trial courts ruling:
          We   believe  that  the  trial  court   could
          reasonably  conclude  that  the  entry   into
          Dunkelbergers apartment was not justified  by
          hot    pursuit.    This   exception   clearly
          contemplates  that the entry into  a  private
          residence   must  be  necessary  because   of
          circumstances of an emergency nature.   There
          was  no  showing that there was an  emergency
          which would justify a hot pursuit entry.[9]
          
          In    Johnson,    we   generally   discussed    exigent
circumstances,  including  hot pursuit.10   We  observed  that  a
warrantless  entry into a persons home to arrest him  is  per  se
unreasonable and therefore in violation of the state and  federal
constitutions  unless  it  falls  within  one  of   the   limited
exceptions to the warrant rule.11  We set out a number of factors
for  a  court to consider to determine whether there were exigent
circumstances  which  would  justify  such  an  entry.   But   we
summarized  the test for whether there were exigent circumstances
by  stating that exigent circumstances occurred where there is  a
compelling  need  for official action and no  time  to  secure  a
warrant.12
          We  addressed  the  doctrine of hot  pursuit  again  in
Wilson v. State.13  We set out the facts of Wilson as follows:
          On  the  evening of January 14,  1983,  state
          troopers observed Wilson driving erratically.
          When  the  troopers attempted to pull  Wilson
          over  he  refused  to stop  and  nearly  lost
          control  of  his truck trying  to  get  away.
          After  hitting  one of the  patrol  cars  and
          running  a  red light, Wilson  drove  to  his
          home.   There he jumped out of his truck  and
          attempted  to  run  into a  greenhouse.   The
          troopers  followed him and  after  a  scuffle
          Wilson was subdued and handcuffed.[14]
          
We held that the officers were in hot pursuit of Wilson when they
entered  the  greenhouse and therefore did not need a  warrant.15
Wilson  is distinguishable from Siftsoffs case.  It appears  from
the circumstances of the case that the police had to act promptly
to take Wilson into custody.
             In  1993,  in  Garcia  v.  State,16  an  unpublished
decision,  we  again  relied  on the Johnson  test  to  determine
whether  the  police were justified by exigent  circumstances  to
enter  a  persons  home:   in  light  of  the  totality  of   the
circumstances was there a compelling need for official action and
an insufficient time to obtain a warrant?17
          In  1999, in Reekie v. Anchorage,18 an Anchorage police
officer developed reasonable suspicion that the driver of  a  car
was  intoxicated.  He followed the driver, who parked his car  in
one  of  eight  parking  spaces in an  underground  garage.   The
officer  stopped  his  car outside the garage,  walked  into  the
garage,  and contacted Reekie, who was sitting in his  car.   The
officer  arrested  Reekie for driving while intoxicated.   Reekie
moved  to  suppress  all evidence obtained as  a  result  of  the
warrantless  entry  into the garage of his condominium.   In  the
trial  court,  the  Municipality  conceded  that  Reekie  had  an
expectation  of  privacy in his garage but  argued  that  exigent
circumstances justified the entry.19  The trial judge ordered the
evidence suppressed.
          We  held that probable cause to arrest Reekie would not
have justified a warrantless entry into his garage unless exigent
circumstances required an immediate entry. In assessing the  need
for   immediate   action,  we  examine  the   totality   of   the
circumstances, balancing the nature of the exigency  against  the
intrusiveness  of  the  warrantless entry.20   We  observed  that
Alaska  statutes  provide  a  method to  obtain  search  warrants
telephonically.  We stated that the Municipality did not  attempt
to  show that a telephonic warrant would have been ineffectual to
prevent  the  loss of evidence in this case.  Nor  is  there  any
indication  that it was necessary to immediately restrain  Reekie
to  prevent  him from escaping or committing further crimes.   We
upheld the trial courts decision suppressing the evidence.
          In  this  case,  Judge George applied the  hot  pursuit
analysis  that  our supreme court originally set out  in  Gray.21
Although  Gray  dealt  with  the warrantless  entry  of  a  motor
vehicle, this court has consistently applied the Gray analysis to
situations where the police enter a residence in hot pursuit of a
suspect.
          Under this analysis, police officers in hot pursuit  of
a  suspect  may enter a residence without a warrant  if  (1)  the
          officers have probable cause to believe that the person has
committed  a  serious  offense; (2) the  officers  know  or  have
probable  cause  to believe that the person is in  the  residence
they are about to enter; and (3) the officers have probable cause
to  believe that some additional exigent circumstance requires  a
prompt entry into the residence  for instance, that the person is
armed  or  otherwise presents an imminent threat of harm  to  the
officers  or  others, or that the person will flee the  residence
and  escape unless the officers make an immediate arrest, or that
the  person will destroy evidence unless immediately apprehended.
Finally,  even when these criteria are met, the law requires  the
police  to  restrict themselves to a peaceable entry  unless  the
situation reasonably requires the use of force.
          Having  reviewed the record in this case,  we  conclude
that  Judge  George appropriately applied this  analysis  to  the
facts  presented  here,  and that he properly  granted  Siftsoffs
suppression motion.
          The judgment of the superior court is AFFIRMED.

_______________________________
     1 AS 28.35.182(a).

     2 AS 28.35.400.

     3 AS 28.35.030(a)(2).

4  Johnson  v.  State,  662  P.2d 981,  985  (Alaska  App.  1983)
(citing  Michigan v. Tyler, 436 U.S. 499, 509, 98  S.  Ct.  1942,
1949-50,  56 L. Ed. 2d 486  (1978)).  See also Ingram  v.  State,
703 P.2d 415, 422 (Alaska App. 1985).

     5 596 P.2d 1154 (Alaska 1979).

     6 533 F.2d 578 (D.C. Cir. 1976), cert. denied, 424 U.S. 956,
96 S. Ct. 1432, 47 L. Ed. 2d 362 (1976).

     7 Gray, 596 P.2d at 1156-57.

     8  Memorandum Opinion and Judgment No. 106 (Alaska App., May
16, 1982), 1982 WL 889220.

     9  Dunkelberger,  1982 WL 889220 at *1  (internal  citations
omitted).

     10   Johnson, 662 P.2d at 984-88.

     11   Id. at 984.

     12   Id. at 985-86 (citations omitted).

     13   680 P.2d 1173 (Alaska App. 1984).

14   Id. at 1177.

     15   Id. (citation omitted).

     16    Memorandum Opinion and Judgment No. 2650 (Alaska App.,
Mar. 24, 1993), 1993 WL 13156622.

     17   Id. at *3.

     18    Memorandum Opinion and Judgment No. 3998 (Alaska App.,
Feb. 24, 1999), 1999 WL 91810.

     19   Reekie, 1999 WL 91810 at *1.

     20   Id. at *2 (citations omitted).

     21   596 P.2d at 1157.

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