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Martin v. State (3/29/2013) ap-2388

Martin v. State (3/29/2013) ap-2388

                                               NOTICE
 

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                               303 K Street, Anchorage, Alaska  99501
 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



GENE V. MARTIN JR., 

                                                             Court of Appeals No. A-10592 

                                Appellant,                  Trial Court No. 3PA-08-387 CR 



                        v. 

                                                                    O    P  I  N  I  O  N 

STATE OF ALASKA, 



                                Appellee.                     No. 2388   —    March 29, 2013 



                Appeal from the Superior Court, Third Judicial District, Palmer, 

                Eric Smith, Judge. 



                Appearances:      Gene V. Martin Jr., in propria persona, Seward, 

                for   the  Appellant.   Timothy   W.     Terrell,  Assistant   Attorney 

                General,     Office    of   Special    Prosecutions     and    Appeals, 

                Anchorage, and Michael C. Geraghty, Attorney General, Juneau, 

                for the Appellee. 



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

                Judges. 



                Judge MANNHEIMER. 



                Gene V. Martin Jr. appeals his convictions for second-degree and fourth- 



degree      controlled     substance      misconduct,       based     on    his   manufacturing        of 



methamphetamine.          The   primary   evidence   against   Martin   was   obtained   during   the 



execution of a search warrant at a residence that Martin was visiting at the time.                 This 


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

search warrant, in turn, was based in large measure on the testimony of a state trooper 



who walked up to the residence, looked through a narrow opening in the window blinds, 



and   observed   a   number   of   supplies   that   are   commonly   used   for   making   metham­ 



phetamine. 



                The question presented in this appeal is whether the state trooper acted 



lawfully when he approached the residence and peered through the window.                     As we 



explain more fully in this opinion, the evidence supports the trial court’s findings that the 



trooper   made   his   observations   by   looking   through   a   window    while   standing   on   a 



walkway or deck that was open to the public, and that the methamphetamine supplies 



were in plain view through an opening in the window blinds.   Based on these findings, 



the trooper’s observations were lawful.   We therefore uphold the search warrant for the 



residence, and we accordingly affirm Martin’s convictions. 



        Underlying facts 



                On February 17, 2008, a loss prevention officer working at the Fred Meyer 



store in Wasilla contacted Trooper Mike Ingram.  The loss prevention officer informed 



Trooper Ingram that a group of three individuals appeared to be interested in various 



items that are commonly used in the manufacture of methamphetamine. 



                Ingram arrived at the store while the individuals were still there, and the 



loss prevention officer identified some of those individuals to Ingram.  Trooper Ingram 



then followed two of the people as they left the Fred Meyer store, joined two other 



people in a pickup truck, and drove to 405 North Old Glenn Highway, the site of a multi­ 



unit residence.  There were five residential units at this address; because Trooper Ingram 



had to drive past the address to remain undetected, he did not see which of the five units 



the suspects entered. 



                                               – 2 –                                           2388
 


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                Ingram requested the assistance of other law enforcement officers, and then 



he   and   the   backup   officers   waited   at   the   building   (watching   the   suspects’   car   and 



apparently hoping that one or more of the four suspects would emerge).                  After waiting 



for approximately two hours, Ingram approached the structure, walked onto the deck or 



walkway adjacent to the building, and looked through the window of the first unit he 



came to. 



                This window had blinds, and the blinds were closed.  But through a crack 



in the closed blinds (an opening created by a broken piece of blind), Ingram spotted 



various items used in making methamphetamine:                 several bottles of the fuel additive 



“HEET”, Pyrex glassware, a container of solvent, and tubing.                 Ingram also noticed a 



slight chemical odor. 



                After making these observations, Ingram returned to his patrol car and 



telephonically obtained a search warrant for this residential unit.            During the execution 



of this warrant, Gene Martin and three companions were arrested inside the residence. 



                Martin     and   the  others   were    indicted   for  second-degree       misconduct 



involving a controlled substance (i.e., manufacturing methamphetamine, and possessing 



precursor chemicals with the intent to manufacture methamphetamine), as well as fourth- 



degree misconduct involving a controlled substance (possession of methamphetamine). 



                Prior to trial, Martin asked the superior court to conduct an  in camera 



review of the personnel file of every officer and other law enforcement employee who 



would be a witness in the case.       The superior court denied this request. 



                Martin was ultimately tried for, and convicted of, the controlled substance 



offenses. 



                                                 – 3 –                                            2388
 


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        The trooper’s observation of the methamphetamine supplies 



                Martin     argues   that   Trooper   Ingram    violated   our  state’s  constitutional 

guarantee against unreasonable searches 1 when he approached the apartment and then 



peered through the closed blinds. 



                For purposes of our legal analysis, Ingram’s actions had two components: 



first, the trooper’s act of approaching the apartment to the point where he was standing 



outside the window; and second, the trooper’s act of looking through the crack in the 



blinds. 



                The law allows a law enforcement officer to approach a residence without 



a warrant, and without an invitation, if the officer’s path of approach is impliedly open 



to the public.   As our supreme court explained in Pistro v. State , 590 P.2d 884 (Alaska 



1979), the question is whether the officer “[is] standing upon a part of [the] property that 



has been expressly or impliedly opened to the public use”: 



                        Thus,    it  [was]   held  that  an   officer  who    [left  the] 

                driveway [of a residence] and crosse[d] a portion of a yard 

                which was not a normal access route to any door, so as to 

                position himself next to a window in order to spy through a 

                gap of about two inches at the bottom of a window shade, 

                unlawfully intruded on the rights of privacy of the occupants. 



                        In contrast, a [court upheld a search involving] a police 

                officer’s observations through a screen door, ... [when the 

                officer used] a normal means of access to the house leading 

                up to a side door.     Similarly, observations from a common 

                passageway between apartments have been upheld.                  [And] 

                officers walking through an unfenced driveway to inquire at 



    1   Article I, Section 14 of the Alaska Constitution. 



                                                 – 4 –                                              2388 


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

                 premises      have   been    held   not   to  invade    any   reasonable 

                 expectation of privacy. 



Pistro , 590 P.2d 886-87 (internal citations omitted). 



                 As this Court noted in Michel v. State , 961 P.2d 436, 437 (Alaska App. 



1998),   “[t]he   underlying   premise   of Pistro   is   that   visitors   —   including   unsolicited 



visitors — can be expected to use normal means to approach a residence.” 



                 In   Martin’s   case,   Trooper   Ingram   approached          the   apartment,   and   the 



window, by walking on a deck or walkway that ran along the building. The superior 



court found that this deck was impliedly open to the public: 



                         Ms. Foley [the tenant living in the apartment] may well 

                 be correct [in her testimony] that the people who live in the 

                 building   treat   the   front   deck   as   private   property. But   she 

                 testified that delivery people will walk along the deck if they 

                 go to the wrong door.   More important, the [photographs] of 

                 the building demonstrate that a reasonable person walking up 

                 to the building would have no reason to believe that the deck 

                 [was   the]   private   property   [of   the   individual   renters].    ... 

                 [T]he deck is not divided into separate areas; there are no 

                 signs ... indicating that any of the deck is private; all of the 

                 deck    is  readily   accessible    from    the  parking    area   for  the 

                 building; and the deck leads around to the south side of the 

                 building[,]     to  a  door   which     provides    access    to  another 

                 apartment. ... A reasonable person, such as a delivery person 

                 or a repair person, would feel free to walk onto and along the 

                 deck to gain access to the appropriate apartment. 



                 The record amply supports the superior court’s underlying findings of fact, 



and we agree with the superior court’s legal conclusion:  under these facts, and under the 



rule announced by our supreme court in Pistro , Trooper Ingram acted lawfully when he 



approached the residential unit and walked up to the window. 



                                                   – 5 –                                               2388
 


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

                The remaining question is whether Ingram acted lawfully when he looked 



through the window.  As we have explained, the window had blinds, and the blinds were 



closed, but there was a gap in the blinds, apparently caused by a broken blind.  Ingram 



(who was standing beside the window) looked through this gap to see if he could observe 



anything inside the apartment. 



                This issue is not as straightforward as the question of whether Ingram was 



entitled to approach the apartment by means of the deck or walkway. 



                The fact that the blinds were closed indicates that the people inside the 



apartment   wished   privacy,   and   it   also   suggests   that   these   people   had   a   subjective 



expectation of privacy.  Moreover, based on our review of the record, it appears that the 



gap in the blinds was small enough that it would not have allowed people to look inside 



the apartment from a distance.         This gap afforded a view into the apartment only when 



someone stood by the window. 



                We concede that many reasonable people might find it distasteful to have 



police officers approach residential windows and peer through gaps in the curtains or 



blinds. However, the case law on this point overwhelmingly favors the government.  As 



long as the police officer is situated in a public vantage point, courts generally uphold 



a police officer’s act of looking through small openings in walls or window coverings. 



                The law on this point is summarized in Wayne R. LaFave, Search and 



Seizure (5th edition, 2012), § 2.3(c), Vol. 1, pp. 749-767. 



                For specific cases, see United States v. Fields, 113 F.3d 313, 321-22 (2nd 



Cir. 1997) (upholding police observations through a 5- or 6-inch gap in the window 



blinds); United States v. Pace, 955 F.2d 270, 275-76 (5th Cir. 1992) (upholding police 



officers’ observation of the interior of a barn when the officers, from a public vantage 



point, pressed their faces against the barn exterior to peer through a small hole); United 



States    v.  Wright,   449   F.2d  1355,    1356,   1362,   1366    (D.C.   Cir.  1971)   (upholding 



                                                 – 6 –                                            2388
 


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

observations made by a police officer who, with the aid of a flashlight, looked into a 



garage through an 8-inch opening in closed, locked garage doors); People v. Berutko , 



453 P.2d 721, 726; 77 Cal.Rptr. 217, 222 (Cal. 1969) (upholding observations made 



through an aperture in a window curtain).  People v. Superior Court , 109 Cal.Rptr. 106, 



109-110 (Cal. App. 1973) (upholding observations made through cracks in a garage 



door);  People   v.   Galfund ,   72    Cal.Rptr.   917,   920-21     (Cal.   App.   1968)   (upholding 



observations made by a police officer who obtained a neighbor’s permission to enter the 



adjoining yard and, standing three feet away from the suspect’s window, was able to 



view the interior of the room through a gap in closed blinds); People v. Cortorreal , 695 



N.Y.S.2d 244, 246 (N.Y. App. 1999) (upholding observations made by an officer who 



peered through the opening in a broken garage door from an adjoining alleyway); State 



v. Buzzard , 860 N.E.2d 1006, 1008-1010 (Ohio 2007) (upholding observations made 



through a narrow crack between warped double garage doors); Harkins v. State , 782 



S.W.2d   20,   23   (Tex.   App.   1989)   (upholding   a   police   officer’s   observation   of   drug 



paraphernalia through a two-inch gap in the motel room curtains while the officer was 



standing on the sidewalk adjacent to the room); State v. Bobic, 996 P.2d 610, 616 (Wash. 



2000) (upholding observations made by a police officer who looked through a small hole 



in the wall separating two commercial storage units). 



                Contrast these holdings with the decision in  United States v. Kim, 415 



F.Supp. 1252, 1254, 1256-57 (D. Haw. 1976), where FBI agents used an 800-millimeter 



telescope (i.e., a telescope with a focal length of 31.5 inches) to observe activities inside 



the defendant’s high-rise apartment from a quarter of a mile away. The federal district 



court rejected the government’s argument that, because the defendant left his curtains 



open, his activities were in plain view.  Id. at 1256-57.  The court held that even though 



the   curtains   of   the   high   rise   apartment   were   open,   the   defendant   had   a   reasonable 



expectation   of   visual   privacy   because   there   were   no   other   buildings   close   by   that 



                                                  – 7 –                                             2388
 


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

afforded a line of sight into his apartment, and because the defendant had a reasonable 



expectation that no one would be using a high-powered telescope to observe his activities 



from a quarter-mile away.  Ibid .  Accord , United States v. Taborda, 635 F.2d 131, 138 



(2nd Cir. 1980); Wheeler v. State, 659 S.W.2d 381, 389–90 (Tex. Crim. App. 1982). See 



also National Treasury Employees Union v. Von Raab , 816 F.2d 170, 175 (5th Cir. 



1987) (“An individual ... may open the curtains of his home to the view of unenhanced 



vision without consenting to the view of a telescope.”). 



                To resolve Martin’s case, we need not decide whether we would approve 



all   the   different   types   of   police   observation   discussed   in   the   foregoing   cases   —   in 



particular, cases where police officers put their faces directly against a door, window, or 

wall and peered through tiny cracks or holes. 2             The facts of Martin’s case are more 



favorable to the government than that. 



                According to Trooper Ingram’s testimony, the crack in the blinds was large 



enough that he could readily see inside the residence while he was standing next to the 



window.     During his testimony, Ingram was asked if he “[had] to bend over to look in 



[the window], or do anything of that nature”, and he answered no: 



                        Ingram :     I didn’t [have to do anything like   that].        I 

                could see [inside the room] from the window itself.   I walked 

                up, and that’s the first thing that caught my eye. 



Ingram explained that it was after midnight, and that lights were on inside the room, 



allowing him to easily see into the residence. 



                Ingram was not engaged in some random fishing expedition. He reasonably 



suspected that the group of people he had followed to the residence had just brought drug 



    2   See  LaFave ,     §  2.3(c),  Vol.  1,  pp.  766-67,   suggesting    that  the  limit  of  lawful 



surveillance is exceeded “when the [police engage in] keyhole-peeping, transom-peeping, 

or looking through minute openings in covered windows.” 



                                                  – 8 –                                              2388 


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

manufacturing supplies into one of the units.  Because Ingram was standing in a public 



vantage point (the deck or walkway directly adjacent to the apartment) when he looked 



through     the   window,   his   observation      of   the   methamphetamine   supplies   inside   the 



apartment was obtained lawfully. 



                 (Because       we     conclude       that   the    trooper’s      observation      of    the 



methamphetamine supplies was lawful, we need not resolve the State’s claim that Martin 



lacked     standing    to  challenge     this  evidence     because    he   was   not   the  renter   of  the 



apartment, but only a visitor). 



        Martin’s      request     for  the   superior    court    to  conduct     an   in   camera 

        examination of the personnel files of every officer and law enforcement 

        employee involved in the investigation 



                 Before his trial, Martin asked the superior court to conduct an in camera 



review of the personnel files of “all testifying officers” — by which he apparently meant 



every officer and law enforcement employee who would be called as a witness in his 



       3 

case. 



                 In support of this request, Martin relied on this Court’s decision in March 



v.   State,   859   P.2d   714   (Alaska   App.   1993),   where   we   indicated   that   an  in   camera 



inspection   of   an   officer’s   personnel   file   would   be   warranted   if   “the   party   seeking 



[disclosure] has a good faith basis for asserting that the materials in question may lead 



to the disclosure of favorable evidence”.  Id. at 718. 



    3   In his brief to this Court, Martin identifies these officers and employees as:             Trooper 



Ingram, Trooper Gary Pacolt, Trooper Eric Spitzer, Trooper Kyle Young, Corrections Officer 

Jason Forester, DEA Agent Timothy Binkley, Wasilla Police Officer Joel Smith, and two 

forensic analysts employed by the State Crime Laboratory. 



                                                   – 9 –                                                 2388 


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

                As his basis for seeking the  in camera review of these personnel files, 



Martin asserted that Trooper Ingram had previously obtained search warrants by lying 



to magistrates, and he further asserted that Trooper Ingram and another trooper involved 



in his case, Trooper Young, had once planted evidence on an innocent person.  (Martin 



made no specific accusations of misconduct against any of the other officers or law 



enforcement employees potentially covered by his motion.) 



                In its response, the State asserted that Martin had no good-faith basis for 



making these accusations.         The State declared that Martin’s charges were “complete 



fabrication”, and the State challenged Martin to provide specific facts to support his 



accusations of misconduct. 



                Martin   filed   nothing   else,   and   the   superior   court   subsequently   denied 



Martin’s request “for the reasons set forth in the State’s opposition”. 



                On appeal, Martin contends that the superior court should have granted his 



request   for  in   camera  inspection   of   the   various   officers’   personnel   files. However, 



Martin no longer asserts that in camera inspection of these files was required under the 



rule announced in March . Instead, Martin argues that in camera inspection of these files 



was required  despite the rule in March — because (according to Martin) the rule in 



March is unconstitutional. 



                Specifically, Martin contends that “[r]equiring [a defendant] to supply a 



‘good faith basis’ [for disclosure] before [a trial] court conducts an in camera review [of 



personnel files] violates the accused’s due process right to discovery of exculpatory 

information”      under  Brady     v.  Maryland . 4    Martin     argues   that  the March      rule  is 



unconstitutional because it is unreasonable to require a defendant to provide a good-faith 



    4   373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 



                                                –  10 –                                            2388 


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

basis for seeking disclosure of personnel files when the defendant does not have access 



to those files and does not know their contents. 



                We interpret Martin’s current argument as an implicit concession that he 



had no specific facts to support his accusations of misconduct, and that the superior court 



made the correct ruling under March when the court denied Martin’s motion for  in 



camera inspection of the personnel files. 



                The remaining question is the question that Martin raises for the first time 



on appeal:     whether the rule announced in March  violates the due process rights of 



criminal defendants. 



                The Ninth Circuit has ruled that the government has a duty to examine the 



personnel files of any law enforcement officers it intends to call as witnesses, to see if 



those files contain Brady material, and to disclose those portions of the personnel files 



to the defendant (or seek judicial in camera review of the files if the matter is uncertain). 



Milke v. Ryan , __ F.3d __ (9th Cir. 2013), 2013 WL 979127 at *17-18; United States v. 



Henthorn , 931 F.2d 29, 30-31 (9th Cir. 1991); United States v. Cadet, 727 F.2d 1453, 



1467-68 (9th Cir. 1984).        In particular, both Milke and Henthorn specifically reject the 



notion that it is the defendant’s burden to make an initial showing of materiality.  Milke , 



2013 WL 979127 at *17; Henthorn , 931 F.2d at 31. 



                However, other federal circuits have rejected Henthorn and continue to 



require a defendant to make an initial showing that the requested files contain material 



information.  See United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997); United States 



v. Lafayette, 983 F.2d 1102, 1106 (D.C. Cir. 1993); United States v. Driscoll, 970 F.2d 



1472, 1482 (6th Cir. 1992); United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985). 



See   also  State   v.   Robles,   895   P.2d   1031,   1035   (Ariz.   App.   1995)   (a   state   appellate 



decision rejecting Henthorn and continuing to require the defendant to make an initial 



showing). 



                                                 –  11 –                                           2388
 


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

                Because Martin challenges the March rule for the first time on appeal, he 



must show that the superior court’s adherence to March constituted plain error.  But the 



fact that the federal circuits are split on this question means that Martin has failed to 



show plain error.  As this Court has repeatedly stated, “[i]f a claim of error is reasonably 



debatable — if reasonable judges could differ on what the law requires — then a claim 



of plain error fails.”   Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005). 



                We   therefore   uphold   the   superior   court’s   denial   of   Martin’s   discovery 



request. 



        Conclusion 



                The judgement of the superior court is AFFIRMED. 



                                                –  12 –                                          2388
 

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