Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Starkey v. State (3/9/2012) ap-2348

Starkey v. State (3/9/2012) ap-2348

                                               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 



DALE G. STARKEY, 

                                                            Court of Appeals No. A-10593 

                                Appellant,                 Trial Court No. 4FA-08-2424 Cr 



                        v. 

                                                                    O   P  I  N  I  O  N 

STATE OF ALASKA, 



                                Appellee.                    No. 2348    -   March 9, 2012 



                Appeal     from   the  Superior   Court,   Fourth   Judicial   District, 

                Fairbanks, Paul R. Lyle, Judge. 



                Appearances:  Robert John, Fairbanks, for the Appellant.  Mary 

                A.   Gilson,   Assistant   Attorney    General,    Office   of  Special 

                Prosecutions     and   Appeals,   Anchorage,     and  John   J.  Burns, 

                Attorney General, Juneau, for the Appellee. 



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

                Judges. 



                MANNHEIMER, Judge. 



                In early April 2008, a group of law enforcement officers went to the Salcha 



residence of Dale G. Starkey in response to a tip that he was growing marijuana on a 



commercial scale.  The officers attempted to make contact with Starkey, but no one was 



home.    While they were standing in the yard, the officers smelled the odor of growing 


----------------------- Page 2-----------------------

marijuana, they heard the noise of lighting ballasts and/or fans coming from within the 



house, and they saw numerous items in the yard (dozens of one- and five-gallon buckets, 



plus a quantity of fertilizer and growing medium) that were indicative of an ongoing 



agricultural endeavor. 



                 Based on the informant's tip and on these corroborative observations, the 



officers decided to seek a warrant to search Starkey's residence.   One of the officers - 



Investigator Garrett Frost - left the scene to apply for the warrant, while the rest of the 



officers waited at the residence, both to secure the residence pending the issuance of the 



warrant and to aid in the search after the warrant was issued. 



                 While the officers were waiting at the residence, Starkey came home.  After 



the   officers   apprised   Starkey   of   the   situation,   Starkey   seemingly   gave   the   officers 



permission   to   enter   his   house   without   a   warrant.     We   say   "seemingly"   because   the 



superior court later found that, even though a reasonable law enforcement officer would 



have   believed   that   Starkey   consented   to   the   entry,   Starkey   had   not   actually   given 



unequivocal consent to the entry. 



                 Inside Starkey's residence, the officers observed some five dozen marijuana 



plants.    The   officers   then   tried   to   contact   Investigator   Frost   to   apprise   him   of   this 



discovery, but they could not reach him; Frost was already in the process of presenting 



the search warrant application to the magistrate. 



                 About   five   minutes   later,   Frost   contacted   the   officers   at   the   scene   to 



announce   that   he   had   obtained   the   search   warrant,   and   that   he   was   returning   to   the 



residence.      When Frost returned, he served a copy of the warrant on Starkey - but by 



that   time,   the   other   officers   were   already   in   the   process   of   dismantling   and   seizing 



Starkey's marijuana growing operation. 



                                                    - 2 -                                                2348
 


----------------------- Page 3-----------------------

               Starkey was ultimately convicted of fourth-degree controlled substance 



misconduct     under   AS   11.71.040(a)(3)(G)    -   possession   of  twenty-five   or  more 



marijuana plants. 



              As we explained above, Starkey seemingly gave the officers permission to 



enter and search his house, and the officers initially entered the house on this basis, 



without waiting for Investigator Frost to obtain the search warrant.        But the superior 



court later ruled that Starkey had not given unequivocal consent to this entry and search, 



and that the discovery and seizure of Starkey's marijuana plants could not be sustained 



under a "consent" theory.   The primary question presented in this appeal is whether the 



issuance of the search warrant (only minutes later) cured whatever defect there may have 



been in the initial entry and search of Starkey's residence. 



        Was there a defect in the initial entry and search of Starkey's residence? 



              After    Starkey   was   indicted  for  fourth-degree    controlled   substance 



misconduct, his attorney filed a motion seeking suppression of the marijuana plants and 



other evidence seized from Starkey's home.   Superior Court Judge Paul R. Lyle held an 



evidentiary hearing to investigate this matter. 



              At the evidentiary hearing, the State relied on the theory that Starkey had 



consented to the officers' entry into his house, but Judge Lyle concluded that the search 



of Starkey's house could not be upheld on that basis.       Specifically, Judge Lyle found 



(1) that a reasonable, objective observer on the scene could have thought that Starkey 



had consented to the entry and search of his residence, and thus the officers acted in good 



faith   when   they   entered   Starkey's home without a warrant, but (2) Starkey   did   not 



actually give an unequivocal consent to the entry and search. 



                                            - 3 -                                        2348
 


----------------------- Page 4-----------------------

                In their briefs to this Court, both Starkey and the State apparently assume 



that Judge Lyle's findings preclude any further argument that the entry and search of 



Starkey's residence could be justified as a consent search.             But that is not so. 



                The law is currently unsettled as to whether, when the government claims 



that a search was lawful under a "consent" theory, the validity of the consent should be 



assessed according to (1) the facts and circumstances as they appeared, at the time, to a 



reasonable person in the police officer's position, or (2) all the relevant facts developed 



at a later evidentiary hearing, and assessed in hindsight. 



                This   question   is   discussed   at   length   in   Wayne   R.   LaFave,  Search   and 



Seizure: A Treatise on the Fourth Amendment (4th ed. 2004),  8.1(b), Vol. 4, pp. 15-19. 



Professor LaFave notes that, although early decisions on this point focused on whether 



the suspect had  actually given a voluntary consent to the search, the great weight of 



authority now favors the "circumstances as they reasonably appeared" approach.                        In a 



supplemental footnote that appears in his 2011-12 pocket part, Professor LaFave writes: 



                        As noted in [ United States v.]  Grap, [403 F.3d 439 

                (7th Cir. 2005)], the "standard of what is reasonably apparent 

                to a reasonable inquiring officer, with its emphasis on the 

                deterrence rationale of the exclusionary rule, is the correct 

                approach",   and   thus   "after-presented   evidence"   as   to   the 

                person's actual mental condition "would be relevant only to 

                impeach the credibility of the officer or to shed any light on 

                what was reasonably apparent to him when he obtained the 

                consent." 



Search and Seizure, Pocket Part for 2011-12, p. 4, new footnote 54.1. 



                Although we note this question of law, we conclude that we should not 



decide it.   First, the parties have not briefed this question.          Second, as we are about to 



explain,   the   validity   of   Starkey's   consent   is   a   moot   issue: the   seizure   of   Starkey's 



                                                  - 4 -                                             2348
 


----------------------- Page 5-----------------------

marijuana plants was rendered lawful when, a few minutes after the officers' initial entry, 



a judicial officer issued an untainted search warrant for the residence. 



        Why we conclude that the issuance of the search warrant cured any defect 

        in the officers' initial entry and search of Starkey's residence 



               When Starkey's suppression motion was litigated in the superior court, the 



parties and Judge Lyle framed the issue as whether, because of the issuance of the search 



warrant, the marijuana plants growing in Starkey's house would have been "inevitably 



discovered".    But the facts of this case are more accurately characterized as a situation 



where the government had an "independent source" for the evidence. 



               The    "inevitable   discovery"    doctrine   applies   to  situations  where    the 



government concedes that the challenged evidence was obtained unlawfully, but argues 



that the evidence inevitably would have been lawfully discovered and seized if events 



had run their course.     The "independent source" doctrine, on the other hand, applies to 



situations where, despite a preceding illegal search or seizure, the government ultimately 



obtained    the  challenged    evidence   in  an  ostensibly  lawful   manner   (e.g.,   under  the 



authority of a search warrant), and the question is whether the government's authority 



for seizing the evidence was indeed independent of the prior illegality. 



               This   distinction   is   explained   by   Professor   LaFave: "[T]he   inevitable 



discovery [doctrine] is hypothetical in nature, [and] it does not apply if [an] alternative, 



legitimate source is actually used to seize the evidence".  Wayne R. LaFave, Search and 



Seizure:   A Treatise on the Fourth Amendment (4th ed. 2004),  11.4(a), Vol. 6, p. 265, 

n. 55. 1  This distinction was also addressed by the Alaska Supreme Court in Smith v. 



State, 948 P.2d 473 (Alaska 1997): 



    1   Quoting State v. Boll, 651 N.W.2d 710, 716 (S.D. 2002). 



                                              - 5 -                                           2348 


----------------------- Page 6-----------------------

                 [P]roperly applied, the "independent source" exception [to 

                 the exclusionary rule] allows the prosecution to use evidence 

                 only if it was, in fact, obtained by fully lawful means.  ...  The 

                 "inevitable      discovery"     exception      ...  differs  in  one    key 

                 respect[:]   ... the [challenged] evidence ... [was] not actually 

                 ...   obtained   from   an   independent   source,   but   rather would 

                 have been discovered as a matter of course if independent 

                 investigations [had been] allowed to proceed. 



Smith, 948 P.2d at 479-480 (emphasis added, and citations omitted). 



                 One     further    aspect    of  the   "independent       source"     doctrine    must    be 



emphasized: the doctrine applies to situations like the one in Starkey's case - situations 



where      the  police    initially  discover     the  evidence     unlawfully,      but  ultimately     take 



possession      of   the   evidence   through   a   lawful   means   that   is   untainted   by    the   prior 



illegality.   As Professor LaFave explains: 



                 [The     "independent      source"    doctrine]    applies    not  only   to 

                 [situations where the] evidence [is] obtained for the first time 

                 during an independent lawful search, but also to [situations 

                 where the] evidence [is] initially discovered during, or as a 

                 consequence        of,  an   unlawful     search,   but   later   obtained 

                 independently   [through]   activities   untainted   by   the   initial 

                 illegality.    Thus, as in Murray [v. United States, 487 U.S. 

                 533,   108    S.Ct.   2529,   101    L.Ed.2d     472   (1988)],   bags    of 

                 marijuana       first  seen    by   the    police    during    an    illegal 

                 warrantless search of a warehouse may, when later seized 

                 under a warrant to search that place, have an independent 

                 source in the warrant - provided , of course, that neither the 

                 decision to seek that warrant nor the decision to issue it was 

                 influenced   by   the   earlier   illegal   entry   and   viewing   of   the 

                 bags. 



                                                    - 6 -                                               2348
 


----------------------- Page 7-----------------------

Search and Seizure,  11.4(a), Vol. 6, p. 261 (internal quotation marks omitted; emphasis 



in the original). 



                 The Alaska Supreme Court applied this principle in Cruse v. State, 584 P.2d 



1141 (Alaska 1978).         In Cruse, law enforcement officers opened the trunk of a vehicle 



and discovered evidence of a recently committed robbery.                     The police suspected that 



their search of the trunk might have been illegal, but they also believed that there was 



sufficient   probable   cause   to   justify   a   search   of   the   trunk   (even   without   knowing   its 



contents), so the officers applied for a search warrant and did not tell the magistrate about 



the earlier discovery of the evidence.  The magistrate issued the warrant, the vehicle was 

searched again, and the evidence was seized. 2             Cruse was later convicted of robbery. 3 



                 On appeal, Cruse argued that the initial search of the trunk was unlawful, 

and that this unlawful search tainted the later search warrant. 4                The Alaska Supreme 



Court concluded that there was no need to decide whether the initial search of the trunk 



was lawful - because, even if the initial search was unlawful, the later search warrant 

constituted an independent source for the evidence. 5 



                 The supreme court noted that the "independent source" doctrine stemmed 



from the United States Supreme Court's decision in Wong Sun v. United States, 371 U.S. 



471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).               Wong Sun is the seminal case defining the 



"fruit of the poisonous tree" doctrine - the rule that all evidence deriving from unlawful 



police conduct must be suppressed.  In  Wong Sun, the Supreme Court declared that the 



test for suppression of derivative evidence was whether the challenged evidence "had 



    2   Cruse, 584 P.2d at 1143. 



    3   Id. at 1142. 



    4   Id. at 1144. 



    5   Id. at 1145. 



                                                   - 7 -                                                2348 


----------------------- Page 8-----------------------

been     [obtained]    by   exploitation    of  [the   original]   illegality   or  instead   by   means 

sufficiently distinguishable to be purged of the primary taint." 6 



                Applying this rule, the Alaska Supreme Court declared that the question to 



be decided in Cruse's case was "whether the subsequent search warrant [was] a product 

of the prior allegedly illegal trunk search". 7        The court held that the search warrant was 



not tainted: 



                The     [challenged]      evidence    here    was    obtained    through 

                information wholly independent of the initial trunk search. 

                The evidence presented to the district court in support of the 

                search warrant was procured without resort to any clue or 

                knowledge        gained    from    the   trunk   search.     [And     the] 

                investigation leading to the lawful search [under the authority 

                of the warrant] was not intensified or significantly focused by 

                reason of any tainted information. 



Cruse, 584 P.2d at 1145.         Thus, the supreme court concluded, the later search of the 



trunk   conducted   under   the   authority   of   the   search   warrant   was   not   tainted   by   any 



potential illegality in the initial search of the trunk.        Ibid. 



                Starkey's case is governed by this same "independent source" principle. 



                Even if we assume for purposes of argument that the officers' initial entry 



into Starkey's residence and their initial search of the residence were unlawful, the fact 



remains that this initial entry and search occurred while Investigator Frost was in the 



process of applying for a warrant to search Starkey's residence. This search warrant was 



issued only minutes after the officers made their initial entry into the residence, and Frost 



immediately notified his fellow officers that the warrant had been issued.                   Frost then 



    6   Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (quoted in Cruse, 584 P.2d at 1145). 



    7   Cruse, 584 P.2d at 1145. 



                                                  - 8 -                                               2348 


----------------------- Page 9-----------------------

returned to Starkey's residence with the physical warrant, and the warrant was served 



and executed while the officers were still at the residence. 



                 Thus, the authority granted by the search warrant was an "independent 



source" - an independent and lawful justification for seizing the marijuana plants from 



Starkey's residence - provided that the search warrant application was not tainted by 



information that the officers obtained during their pre-warrant entry into Starkey's house. 



                 Judge Lyle recognized that this potential for taint was an issue, and he made 



findings on this issue at the conclusion of the evidentiary hearing. 



                 The testimony at the hearing showed that Investigator Frost had already left 



the scene before Starkey arrived, and before Starkey ostensibly consented to have the 



officers   enter   his   house.   The   testimony   also   showed   that   two   of   the   officers   who 



remained at the scene attempted to contact Frost to tell him that the officers were already 



inside the house, and that they had discovered marijuana plants, but neither of these 



officers could reach Frost. 



                 Based     on  this   evidence,   Judge     Lyle   found    that   none   of   the   officers' 



observations inside the house were communicated to Frost before he obtained the search 



warrant, and that Frost did not rely on any of those observations when he applied for the 



warrant.     Thus,   neither   the   decision   to   apply   for   the   warrant   nor   the   content   of   the 



warrant application was tainted by information obtained during the pre-warrant entry into 



Starkey's residence. 



                 Even though the decision to apply for the search warrant, and the search 



warrant application itself, were not tainted by any information gained during the initial, 



pre-warrant entry into Starkey's residence, it is theoretically possible that the execution 



of the warrant - i.e., the scope or intensity of the ensuing search - might have been 



altered (that is, tainted) by the officers' pre-warrant observations inside Starkey's house. 



But   Starkey   did   not   raise   this   argument   in   the   superior   court,   nor   has   he   made   this 



                                                   - 9 -                                               2348
 


----------------------- Page 10-----------------------

argument on appeal. Moreover, given the nature of the suspected illegal activity (i.e., the 



large-scale growing of marijuana), it is hard to imagine that any search of the residence 



would not entail an attempt to locate and seize marijuana plants. 



                For these reasons, the marijuana plants seized from Starkey's residence 



were   derived   from   a   source   that   was   independent   of   any   potential   illegality   in   the 



officers' initial entry into the house.   Accordingly, the plants were admissible evidence, 



and the superior court correctly denied Starkey's suppression motion. 



        Starkey's alternative argument based on Alaska Evidence Rule 412 



                In his reply brief, Starkey argues for the first time that Alaska Evidence 



Rule 412 provides an independent ground for suppressing the marijuana plants, wholly 



apart from the Fourth Amendment to the federal Constitution or the search and seizure 



provision     of   the   Alaska  Constitution    (Article   I,   Section  14).   Evidence     Rule    412 



provides, with certain exceptions not pertinent here, that "[e]vidence illegally obtained 



shall not be used over proper objection by the defendant in a criminal proceeding". 



                Starkey     argues    that,  because    Evidence     Rule   412   does   not   explicitly 



incorporate   either   the   "independent   source"   doctrine   or   the   "inevitable   discovery" 



doctrine, neither of these doctrines survived the enactment of Evidence Rule 412.  In 



other words, Starkey argues that the Alaska Supreme Court, by enacting Evidence Rule 



412, abrogated the independent source doctrine and the inevitable discovery doctrine. 



                Because this argument is raised for the first time in Starkey's reply brief, 



it is waived, and we shall address it no further.  See, e.g., Petersen v. Mutual Life Ins. Co. 



of New York, 803 P.2d 406, 411 (Alaska 1990); Douglas v. State , 215 P.3d 357, 366 



(Alaska App. 2009). 



                                                 -  10 -                                            2348
 


----------------------- Page 11-----------------------

       Starkey's alternative argument that the search warrant application failed 

       to establish probable cause for the search 



               In his application for the search warrant, Investigator Frost informed the 



magistrate that the authorities had received a tip from a confidential informant on April 



3, 2008 (i.e., six days before the warrant application) that Dale Starkey was growing 



large numbers of marijuana plants at his Salcha residence.        The confidential informant 



stated that Starkey had approximately 200 marijuana plants in the residence, and the 



informant claimed to have personally seen marijuana plants growing inside the residence 



in the past. 



               Frost further informed the magistrate that, around noon on April 9th, he and 



several other officers went to Starkey's residence, hoping to find him there and to speak 



with him about this allegation.   They knocked on the door, but no one responded to their 



knocking.  However, while standing at the door, they could smell "a strong odor of plant 



marijuana" emanating from the house.  They could also hear the sounds of what seemed 



to be lighting ballasts and/or ventilating fans running inside the residence.   The officers 



observed that the electric meter for the property was spinning "at an unusual[ly] fast 



pace" for a building of comparatively small size (16 feet by 20 feet). 



               In addition, the officers observed twenty-five 5-gallon buckets and twenty 



1-gallon buckets lying outside in plain view, as well as a 30-pound bag of growing 



medium (plant starter / fertilizer).    Frost told the magistrate that it was common for 



marijuana growers to keep and use large numbers of buckets, because they grow each 



individual plant in a separate bucket.    Frost stated that the large number of buckets in 



Starkey's yard tended to show that Starkey was growing marijuana in criminal quantities 



                                            -  11 -                                       2348
 


----------------------- Page 12-----------------------

(i.e., that he was growing a large number of plants that would yield more than four 

ounces of harvested marijuana). 8 



                 In addition to the foregoing information, Frost included a statistical analysis 



of   the   Matanuska-Susitna        Drug    Enforcement       Unit's   raids   on   marijuana     growing 



operations during the preceding four years.              This analysis was provided to Frost by 



Investigator Kyle Young.  Here, verbatim, is what Investigator Frost told the magistrate 



about this statistical analysis: 



                         Of the marijuana grows seized by the Mat-Su Drug 

                 Unit during this time period, 81 were discovered by officers 

                 smelling the odor of cultivating marijuana.  Of these 81 cases: 



                         90.2% contained over one pound of marijuana. 

                         92.6% contained over 1/4 pound of marijuana. 



                         Of the cases with less than 1/4 pounds of marijuana, 

                 2   were   felony    commercial      grow    operations     and   4  were 

                 harvested between the time officers smelled the grow and the 

                 grow was seized, and much of the marijuana was distributed 

                prior to seizure (based upon statements from the defendants 

                 and evidence of harvest and/or dismantle). 



                         This data indicates that when [an] officer can smell the 

                 odor   of   cultivating   marijuana   on   the   outside   air   or   during 

                 contact   at   the   suspect's   residence,   96%   of   the   time   it   is   a 

                 felony level, commercial grow operation. 



    8   See State v. Crocker, 97 P.3d 93, 96 (Alaska App. 2004), where this Court held that 



no    search   warrant   can   issue   for  evidence    of  marijuana     possession    unless   the  State 

affirmatively establishes probable cause to believe that the type of marijuana possession at 

issue is something other than the type of possession protected by Alaska's right to privacy 

as construed in Ravin v. State , 537 P.2d 494 (Alaska 1975), and Noy v. State , 83 P.3d 538, 

542-43 (Alaska App. 2003), on rehearing, 83 P.3d 545, 546-48 (Alaska App. 2003). 



                                                  -  12 -                                             2348
 


----------------------- Page 13-----------------------

It appears that Frost put this information in the search warrant application to bolster the 



conclusion that Starkey was growing marijuana in criminal quantities, based on the smell 



of growing marijuana emanating from the residence. 



                Starkey   argues   that   Investigator   Young's   statistical   analysis   of   the   81 



marijuana raids was of questionable scientific validity, and that Investigator Frost should 



not have been allowed to rely on this statistical analysis in his search warrant application 

until the statistical information was subjected to a Daubert / Coon analysis. 9 



                When this issue was raised in the superior court, Judge Lyle concluded that 



Young's statistical analysis of the prior drug raids was not "scientific" evidence for 



purposes   of Daubert   and  Coon,   but   was   rather   a   report   or   summary   of   information 



accumulated by the Mat-Su drug unit through actual experience. Judge Lyle accordingly 



concluded that, under the Alaska Supreme Court's decision in Marron v. Stromstad , 123 



P.3d 992, 1004 (Alaska 2005), Young's statistical analysis did not need to satisfy the 



Daubert / Coon test. 



                We believe that Judge Lyle's resolution of this issue was correct. Although 



there    were   certainly   grounds     for  questioning    the   validity  of  the   conclusions    that 



Investigator     Young     drew   from    the  81  prior  cases,   Young's     conclusions     were   not 



"scientific"   for  Daubert      purposes,   because   they   "did    not   rest   on   arcane   scientific 



principles, or on the results of experiments or tests that could only be understood and 



interpreted by experts."  Ratliff v. State , 110 P.3d 982, 985 (Alaska App. 2005).  Rather, 



Young's conclusions rested on fairly straightforward mathematics - and some implicit 



or unarticulated assumptions about the facts of the 81 underlying cases.  The Daubert / 



Coon test does not apply to this kind of evidence. 



    9   See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 



L.Ed.2d 469 (1993); State v. Coon , 974 P.2d 386, 394 (Alaska 1999) (adopting the Daubert 

standard for evaluating the admissibility of scientific evidence). 



                                                 -  13 -                                             2348 


----------------------- Page 14-----------------------

                 We note, in addition, that even if this statistical analysis of the prior 81 



cases were removed from Investigator Frost's search warrant application, the application 



would still provide probable cause for the search warrant. 



                 According       to  the  application,    the   authorities    received    a  tip  from    a 



confidential informant that there were large numbers of marijuana plants growing in 



Starkey's   residence   in   Salcha.      When   the   officers   visited   Starkey's   residence,   they 



smelled growing marijuana; they heard noise coming from inside the house indicating 



the presence of electrical ballasts and/or ventilating fans; they observed that the house 



appeared to be using an unusual amount of electricity; they found a large number of 



buckets in Starkey's yard (nearly four dozen), of the sort used by marijuana growers; and 



they observed a 30-pound bag of growing medium. 



                 Even   without   Young's   statistical   analysis   (and   Young's   accompanying 



assertion     that   the   perceptible   smell   of   marijuana   is   a   reliable   indicator   of   a   large 



marijuana      growing      operation),    the   information     contained     in  the   search    warrant 



application justified the magistrate's conclusion that there was probable cause to believe 



that Starkey was using his residence to grow marijuana in criminal quantities. 



                 Starkey attempts to avoid this result by asserting that Frost's inclusion of 



Young's statistical analysis in the search warrant application was "part of a conscious 



effort to circumvent and undermine the constitutional safeguard of probable cause".  In 



other words, Starkey asserts that Frost's inclusion of this information was an intentional 



attempt to mislead the magistrate into issuing a search warrant that was not actually 



justified - thus requiring invalidation of the search warrant, regardless of whether this 



information made any difference to the showing of probable cause. 



                 (See State v. Malkin, 722 P.2d 943, 946 n. 6 (Alaska 1986), as interpreted 



in Lewis v. State , 862 P.2d 181, 186-87 (Alaska App. 1993), and Gustafson v. State, 854 



P.2d 751, 756 (Alaska App. 1993) - both holding that, for purposes of applying the 



                                                  -  14 -                                             2348
 


----------------------- Page 15-----------------------

suppression rule announced in Malkin , a conscious misstatement or omission in a search 



warrant   application   is   "intentional"   only   if   it   was   done   in   a   "deliberate   attempt   to 



mislead" the issuing magistrate.) 



                It is unclear whether Starkey preserved this claim in the superior court.  It 



is true that, at the evidentiary hearing, Starkey's attorney asserted that the state troopers 



knew that Young's statistical analysis was flawed, and the defense attorney declared that 



the troopers' inclusion of these statistics in the search warrant application was "a blatant 



and ... intentional" misrepresentation to the court.  But when Judge Lyle announced his 



decision     (denying    Starkey's    suppression      motion),    the  judge   declared    -    without 



objection from the defense attorney - that the question of whether Young intentionally 



tried to mislead anyone, or whether Young recklessly disregarded the truth when he 



applied for the search warrant, was "not really an issue in this case". 



                Moreover, even if this issue was preserved, Judge Lyle explicitly found 



"that the State [had] met its burden of showing that [Young's] statistical analysis [was] 



valid."   This was tantamount to a finding that Young had not acted recklessly when he 



compiled his statistical analysis, and that Frost had not acted recklessly when he included 



this information in the search warrant application. 



                For these reasons, we reject Starkey's contention that the search warrant 



application contained intentional misstatements. 



        Conclusion 



                The judgement of the superior court is AFFIRMED. 



                                                 -  15 -                                            2348
 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC