Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869 This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

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.


Kelley v. State (4/10/2015) ap-2449

Kelley v. State (4/10/2015) ap-2449

                                                 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 @ akcourts.us
  



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MARGARET A. KELLEY,  

                                                                Court of Appeals No. A-10882  

                                  Appellant,                  Trial Court No. 3PA-09-1654 CR  



                         v.                                             O P I N I O N 



STATE OF ALASKA,  



                                  Appellee.                       No. 2449 - April 10, 2015  



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

                 Ap                                      

                 Gregory Heath, Judge.  



                 Appearances:  Marjorie Mock, under contract with the Public  

                 Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                 Anchorage,  for  the  Appellant.    Eric  A.  Ringsmuth,  Assistant  

                 Attorney General, Office of Special Prosecutions and Appeals,  

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

                 for the Appellee.  



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

                 Senior Court of Appeals Judge. *  

                                                          



                 Judge ALLARD, writing for the Court.  

                 Chief Judge MANNHEIMER, concurring.  

                 Senior Judge COATS, dissenting.  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11  of  the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                    Shortly  after  midnight,  acting  on  an  anonymous  tip,  two  Alaska  state  



troopers drove up Margaret A. Kelley's driveway to her residence in Willow, Alaska,  



rolled down the windows of their idling patrol car, and sniffed the air.  After detecting  

                                                                                                           



the odor of marijuana, the troopers obtained a warrant to search Kelley's home.  During  

                                                     



that search they discovered and seized evidence of a commercial marijuana grow.  



                    For the reasons explained here, we conclude that the troopers had no legal  

                                                                                             



right to approach Kelley's home at that time of night, in the manner that they did, to  

                                                                                       



gather evidence of a marijuana grow.  Kelley is therefore entitled to suppression of the  

                                



evidence obtained as a result of this illegal search.  



          Facts and proceedings  



                    Margaret Kelley's home is located at mile 85.5 of the Parks Highway.  The  

                                                                                                   



residence is rural, set back a considerable distance from the highway, and there are no  



neighbors close by.  



                    On  June  30,  2009,  at  12:30  a.m.,  Sergeant  Robert  Langendorfer  and  

                                                                          



Investigator  Kyle Young drove onto Kelley's property to investigate an  anonymous tip  

                     

that she was growing marijuana to sell.1  The troopers drove up the driveway and parked  



                                                

their patrol car directly in front of Kelley's house, leaving the engine idling for several  



                                                         

minutes.  The troopers made no effort to contact the occupants of the residence.  Instead,  



         

they rolled down the windows of their patrol car and sniffed the air.  According to the  



                                                                          

later search warrant application, they were able to detect the odor of growing or recently  



harvested marijuana.  



                    Further investigation revealed that Kelley owned the property but that her  



electrical usage was "unremarkable" - that is, not indicative of a commercial grow  



     1    The record provides no details about the nature of the tip or when it was received.   



                                                            - 2 -                                                       2449
  


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

operation.  Nevertheless, the troopers obtained a warrant to search the property.  When  



they  executed  the  warrant,  they  discovered  numerous  marijuana  plants  and  other  



evidence of a commercial grow operation.  Based on this evidence, the State charged  

Kelley with four counts of fourth-degree misconduct involving a controlled substance.2  

                                                                                          



                   Kelley moved to suppress the evidence obtained during the search of her  



home, arguing that the officers unlawfully intruded onto her property when they drove  

                                                                                       



up her driveway after midnight to sniff for narcotics.  The trial court denied the motion,  

                                                        



ruling that the driveway to Kelley's house was impliedly open to public use because it  

                                        



provided public ingress to and egress from her property, and that the troopers therefore  

                                                                                             



had a right to be there, even after midnight.  The court reasoned that "[a] way of ingress  



or egress does not cease to exist after a certain time of night."  



                   Kelley was then convicted  in  a  bench trial on stipulated facts, and she  

                                                                



appealed her conviction to this Court.  While her appeal was pending, the United States  

                                                                                                   

Supreme Court issued its decision in Florida v. Jardines .3  

                                                                                    Because Jardines  spoke to  



the propriety of this type of police approach to residential premises, we directed the  



parties to submit supplemental briefing addressing the case.  



                   We have received that briefing, and we now resolve Kelley's appeal.  



     2   AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F) & (G); AS 11.71.040(a)(5).  



     3    133 S. Ct. 1409 (2013).  



                                                          - 3 -                                                   2449
  


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

           Why we conclude that the troopers' conduct was unlawful and that the   

           evidence obtained during the search of Kelley's home must be suppressed                          



                      Under the Fourth Amendment to the United States Constitution and Article     



1, Section 14 of the Alaska Constitution, a warrantless search of a home is illegal in the                            



absence of exigent circumstances.  This protection against unreasonable searches also  



extends to the curtilage of the home - those areas immediately surrounding the home  

in which the resident retains a reasonable expectation of privacy.4  



                                                                                                  

                      However, law enforcement officers may enter an area within the curtilage  



                                                                                                            5  

of a home that is "expressly or impliedly opened to the public use."   More specifically,  



"if  police  utilize  normal  means  of  access  to  and  egress  from  the  house  for  some  



legitimate  purpose,  such  as  to  make  inquiries  of  the  occupant,  ...  it  is  not  a  Fourth  



                                                                                  

Amendment search for the police to see or hear or smell from that vantage point what is  



                                                    6  

happening inside the dwelling."                                                                                     

                                                       Thus, in Pistro v. State , our supreme court held that a  



police officer could lawfully drive up a driveway and observe stolen property in plain  



                                                                                         7  

view through the window of the homeowner's garage.   



                                                                                             

                      Until  now,  we  have  not  had  occasion  to  address  whether  this  "public  



                                                                                           

access" exception to the warrant requirement applies to a middle-of-the-night entry into  



the curtilage of a home.  



     4     See Ingram v. State, 703 P.2d 415, 427 n.10 (Alaska App. 1985) (citing                                             Oliver v.  



United States, 466 U.S. 170, 180 (1984)).  



      5    Pistro v. State , 590 P.2d 884, 886 (Alaska 1979).  



     6     Wallace v. State, 933 P.2d 1157, 1164 (Alaska App. 1997) (quoting 1 Wayne R.   



LaFave, Search and Seizure  2.3(c), at 482-83 (3d ed. 1996)) (internal quotation marks  

omitted).  



      7    Pistro , 590 P.2d at 885-88.  



                                                                  - 4 -                                                             2449
  


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

                    In Jardines ,  the  United  States  Supreme  Court  recognized  that  a  police  



officer has an implicit license to approach a home without a warrant and knock on the  

                                                                                                          

front door because this is "no more than any private citizen might do."8 

                                                                                                           But the Supreme  



                                                                                                                    

Court also recognized that the scope of this implicit license is limited not only to the  



normal paths of ingress and egress, but also by the manner of the visit.  As the Court  



explained,  "[t]o  find  a  visitor  knocking  on  the  door  is  routine  (even  if  sometimes  

                                                                      



unwelcome); to spot that same visitor exploring the front path with a metal detector, or  

                                                                                



marching his bloodhound into the garden before saying hello and asking permission,  

would inspire most of us to - well, call the police."9  

                                                                                   



                    Thus, in the majority opinion in Jardines , the Supreme Court concluded  



                                                                       

that the police did not have an implicit license to walk uninvited onto the front porch of  



a home with a drug-sniffing dog, and the Court therefore upheld the Florida Supreme  

Court's decision suppressing the evidence obtained as a result of that search.10  



                                                                                          11 

                                    

                    The  case  before  us  involves  a  trooper  sniff,                       not  a  dog  sniff,  and  the  



troopers stayed in their car rather than stepping up onto the porch.  But, in another  



respect, the search in this case was more intrusive than the search in Jardines , because  

                   



it took place after midnight.  



     8    Jardines , 133 S.Ct. at 1416 (quoting Kentucky v. King , 131 S.Ct. 1849, 1862 (2011)).   



     9    Id.  



     10   Id. at 1416-18; see also  id. at 1418-20 (Kagan, J., joined by Ginsburg and Sotomayor,       



JJ., concurring).  



     11   See  Wallace, 933  P.2d  at 1165  (noting  that there  is no  reasonable  expectation  of  

                                                                                         

privacy from a trooper with "inquisitive nostrils" provided that the trooper is lawfully where  

                                                                                      

he is entitled to be) (quoting 1 Wayne R. LaFave, Search and Seizure,  2.2(a) at 403 (3d  

ed.1996)).  



                                                              - 5 -                                                         2449
  


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

                       Although a late-night search was not before the Court in                                      Jardines , both the  



majority and the dissent in Jardines were in agreement that there were clear temporal  



limits on the implied license for public access to a private residence.  As Justice Alito  

                                                         



noted in the dissent, a visitor may not "come to the front door in the middle of the night  

                                                                                                                                     



without an express invitation"; indeed, such a late-night intrusion "could be cause for  

                                                                             

great alarm."12  The majority referred approvingly to the dissent's "no-night-visits rule,"  



                                           

noting  that  "the  typical  person  would  find  it  'a  cause  for  great  alarm'  (the  kind  of  



                                            

reaction the dissent quite rightly relies upon to justify its no-night-visits rule...) to find  

a stranger snooping about his front porch with or without a dog." 13  



                                                                                         

                       Before  and  after  Jardines ,  courts  in  other  jurisdictions  have  similarly  



condemned  late-night  police  incursions  onto  private  property,  holding  that  they  are  

generally outside the scope of the implied license for public access.14  

                                                                                                                         



      12   Id. at 1422 (Alito, J., joined by Roberts, C.J., and Kennedy and Breyer, JJ., dissenting)             



(citing State v. Cada , 923 P.2d 469, 478 (Idaho App. 1996) ("Furtive intrusion late at night  

or in the predawn hours is not conduct that is expected from ordinary visitors.  Indeed, if   

observed by a resident of the premises, it could be a cause for great alarm").  



      13   Id. at 1416 n.3 (emphasis in original).  



      14   See, e.g., United States v. Lundin , ___ F. Supp. 2d ___, 2014 WL 2918102, at *6  



(N.D. Cal. 2014) ("[T]he implied license to visit is generally understood to extend during  

                                                                                                    

daylight hours.");  State v. Cada , 923 P.2d 469, 478 (Idaho  App. 1996) (police officers'  

nighttime intrusion "exceeded the scope of any implied invitation to ordinary visitors and was  

                                                                                                                                  

not conduct to be expected of a reasonably respectful citizen"); People v. Burns , ___ N.E.3d  

                                           

___, 2015 WL 404355, at *8 (Ill. App. Jan. 30, 2015) (condemning warrantless use of drug- 

detection dog to sniff apartment front door at 3:20 a.m.);  Commonwealth v. Ousley, 393  

                                                                   

S.W.3d  15,  31  (Ky.  2013)  (midnight  intrusion  by  police  on  homeowner's  driveway  

                                                                                             

unconstitutional because "[a]bsent an emergency, such as the need to use a phone to dial 911,  

                                                                 

no reasonable person would expect the public at his door at [that] time[]"); State v. Ross, 4  

                         

P.3d 130, 136  (Wash. 2000) (suppressing evidence where police used driveway to enter  

                                                                                                                               

property  at  12:10  a.m.  to  search  for  evidence  of  marijuana  grow,  with  no  intention  of  

                                                                                                                             (continued...)  



                                                                     - 6 -                                                               2449
  


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

                       In State v. Ross, for example, the Washington Supreme Court held that law                                 



enforcement agents conducted an illegal search when they approached a homeowner's   



garage  shortly   after   midnight   "for   the   express,   and   sole,   purpose   of   searching  for  

evidence of a marijuana grow operation in order to obtain a search warrant."                                                     15  In finding  



the  entry  unlawful,  the  Washington  Supreme  Court  emphasized  that  "[t]he  deputies  



                                                                                     

entered the property at 12:10 a.m., an hour when no reasonably respectful citizen would  

be welcome absent actual invitation or an emergency." 16  



                       Similarly, in Commonwealth v. Ousley, the Kentucky Supreme Court held  



that  a  middle-of-the-night  police  intrusion  onto  the  curtilage  of  a  home  to  search  a  



                                                                               17  

garbage can violated the Fourth Amendment.  

                                                                                                                 

                                                                                   Noting that "the time of the day of the  



                                                                                               

invasion matters," the court held that "just as the police may invade the curtilage without  



                                                                         

a warrant only to the extent that the public may do so, they may also invade the curtilage  



                                                           18  

only when the public may do so."                               



                       Here, the record shows (and the State does not dispute), that the troopers  



                                                                                                                                  

entered the constitutionally protected curtilage of Kelley's home when they drove down  



      14    (...continued)  



contacting defendant); State v. Johnson , 879 P.2d 984, 991-93 (Wash. App. 1994) (noting  

that danger of "violent confrontation"considerably heightened during 1:00 a.m. intrusion).  



      15   Ross , 4 P.3d at 136.  



      16   Id.  



      17    Ousley, 393 S.W.3d at 31.  



      18   Id. ; see also id. at 30 ("Girl Scouts, pollsters, mail carriers, door-to-door salesmen just         



do not knock on one's door at midnight; and if they do, they are more likely to be met by an   

enraged (and possibly armed) resident than one with a welcoming smile.").  



                                                                       - 7 -                                                                2449
  


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

her private driveway and parked their car directly in front of Kelley's home.19                                                             The  



                     

record  also  shows  (and  again,  the  State  does  not  dispute),  that  the  purpose  of  this  



                                                                                                                        

midnight visit was to gather evidence related to the anonymous tip  that  Kelley was  



growing marijuana to sell.  



                                   

                       There  is  no  allegation  that  the  troopers  had  prearranged  business  with  



                                                             

Kelley, that they were expecting or intending to have direct contact with her, or that any  



                                                                       

exigency existed that otherwise justified their conduct.  Nor is there any evidence that  



                                                                                                                   

Kelley impliedly consented to the arrival of visitors after midnight  - by, for instance,  



operating  a  night-time  business  from  her  home  or  hosting  a  large,  late-night  social  



                 20  

gathering.            Indeed, the State has articulated no reason to justify the troopers' decision  



to  conduct  this  investigation  after  midnight  instead  of  during  the  day,  when  the  



investigation would have accorded with the conduct of a respectful citizen and well- 



settled law.  



                       In urging us to uphold the search, the State emphasizes that, in Alaska in  



                                                                                 

midsummer, it is still light out at 12:30 a.m. But the law's aversion to nighttime searches  



                                                                                 

is not based on the time of sunset, which varies by season, but on the widely recognized  



                                                                                                                   21  

                                                                                                                       We note that in  

right of the individual to privacy and repose in the home at night. 



deference to this right, Alaska law requires a search warrant to be executed between the  

                                                                          



      19   See Jardines, 133 S.Ct. at 1415 (defining curtilage as area "immediately surrounding  



and associated with the home").  



      20   The dissent notes that some part of Kelley's driveway was shared with a business.   



This assertion appears only in the search warrant affidavit, and was never mentioned or relied                       

on by the State in response to Kelley's motion to suppress.  As we noted earlier, the State did           

not dispute Kelley's characterization of her home as "rural in character" and "not close to any                                   

adjacent neighbors."  



      21   See State v. Witwer, 642 P.2d 828, 833 (Alaska App. 1982) (noting that a nighttime                                    



search is a "greater violation of privacy" than a daytime search).  



                                                                     - 8 -                                                               2449
  


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

hours of 7:00 a.m. and 10:00 p.m., regardless of the season, unless there is good cause       

to execute the search at some other hour.22  



                       In his dissent, Senior Judge Coats observes that a number of courts have  



                                                                                    

upheld late-night police approaches to residences for the purpose of conducting a "knock  



                                                                 

and talk" with the occupants.  But the legal principles that govern a "knock and talk" do  



                                                                                    

not apply here, because the State never asserted, and the record does not show, that the  



                                                                                                                        

troopers approached Kelley's residence to engage in a knock and talk.  As the Kentucky  



Supreme Court noted in Ousley, "[w]here the officer seeks only to search and does not  



                             

interact with the resident, he has no 'legitimate' purpose as understood in the knock-and- 

talk cases."23  



                                                          

                       We further note that the knock-and-talk cases cited by the dissent recognize  



that the lateness of the hour is an important factor to be considered in assessing the  



                                                                                             24 

                                                                                                  Here, we reach our conclusion  

overall coerciveness and lawfulness of a knock and talk. 



that  the  troopers'  conduct  violated  the  Fourth  Amendment  to  the  United  States  



                                                

Constitution and Article I, Section 14 of the Alaska Constitution based on all  of the  



                               

circumstances of this case - including the time of night, the troopers' conduct, the  



                                                     

State's failure to advance any reason why the troopers could not gather their evidence  



during the day, or to believe that Kelley impliedly consented to such a late-night visit.  



                       The dissent also suggests that our decision will hamper legitimate night- 



                                                

time police investigations.  We disagree.  Nothing in our decision bars the police from  



      22   Alaska R. Crim. P. 37(a)(3)(C). 
 



      23    Commonwealth v. Ousley, 393 S.W.3d 15, 30 (Ky. 2013).
  



      24   See Fern L. Kletter, Construction and Application of Rule Permitting Knock and Talk
  



Visits Under Fourth Amendment and State Constitutions, 15 A.L.R. 6th 515,  2 (2006).  



                                                                      - 9 -                                                               2449
  


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

                                                                                                                                                              25  

approaching a residence late at night when they have good reason to do so.                                                                                         Likewise,  



nothing in our decision - or in Jardines  - bars the police from using the normal means                                     



of ingress or egress to approach a residence, even in the absence of an invitation or  



exigent  circumstances,  provided  that  the  manner  and  time  in  which  they  do  so  is  

consistent with the conduct of an ordinary, respectful citizen.26  



                             The search warrant in this case was based almost entirely on the evidence  

                                                                                                                                                              



obtained by the troopers' midnight entry onto Kelley's property.  Because the troopers  

                                                                                                                       



were not in a place where they had a legal right to be when they conducted the sniff, the  

                                                        



search warrant they obtained is tainted by the illegal search, and the evidence obtained  

                                 

as a result of the warrant must be suppressed.27  



               Conclusion  



                            We REVERSE the judgment of the superior court.  



       25     See,  e.g.,  United    States  v.  McDowell,  713  F.3d  571,  572-74  (10th  Cir.  2013)  



(affirming denial of suppression motion based on evidence obtained from nighttime driveway  

sniff where police were on the property because they were attempting to locate suspect in       

assault investigation).  



       26     Accord Florida v. Jardines , 133 S.Ct. 1409, 1415 (2013) ("Complying with the terms  



of [the implied license for public access] does not require fine-grained legal knowledge; it         

is generally managed without incident by the Nation's Girl Scouts and trick-or-treaters.").  



       27     See Chandler v. State, 830 P.2d 789, 796 (Alaska App. 1992).  



                                                                                      - 10 -                                                                                 2449
  


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

Judge MANNHEIMER, concurring.  



                    I   agree  with  the  analysis  set  forth  in  the  majority  opinion,  and  I  write  



separately only to point out another pertinent aspect of Justice Scalia's majority opinion   



in Florida v. Jardines , __ U.S. __, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).  



                    As Judge Allard explains, both the majority and the dissent in Jardines  



agree that, for Fourth Amendment purposes, a nighttime entry onto residential property  

                                  



is different from a daytime entry - because the test is whether the entry is within the  

                                                                                                        



"implicit license" granted to visitors by the homeowner, and because homeowners have  

                                                        



differing expectations regarding daytime and nighttime visitors.  



                    But  Justice  Scalia's  opinion  in  Jardines  contains  an  analysis  that  is  

                                                                                                                         



potentially of greater significance to this case, and to future cases:  he asserts that "[t]he  

                                                                                                     



scope of a [homeowner's implied] license ... is limited not only to a particular [physical]  

                                                                



area, but also to a specific purpose."  Id. , 133 S.Ct. at 1416 (emphasis added).  



                    In his opinion, Justice Scalia appears to ratify the approach that (1) police  

                                                                              



officers, like other citizens, are entitled to take advantage of a homeowner's implied  

                                            



permission  to  have  visitors  enter  their  property,  but  (2)  the  scope  of  that  implied  



permission depends, in part, on the visitor's purpose, and (3) homeowners typically do  

                                                                                              



not consent to have visitors enter their property to investigate crimes that the homeowner  

                                                  

might have committed. 1  

                                       



                                                                                      

                    Justice Scalia's approach potentially raises significant Fourth Amendment  



                                                        

questions.  However, I conclude that we should not pursue this matter further in Kelley's  



case.  The parties' briefs do not raise this point, and the facts of Kelley's case do not  



require us to resolve the additional questions raised by Justice Scalia's opinion.  



     1    See Jardines, 133 S.Ct. at 1416-17 & n. 4.  



                                                             -  1111 -                                                     2449
  


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

COATS, Senior Judge, dissenting.  



                   The facts in this case are undisputed.  The Alaska State Troopers received  

                                                                          



a tip that Margaret Kelley was growing and selling marijuana at her residence at mile  

                                                                                            



85.5  of  the  Parks  Highway.    At  approximately  12:30  a.m.  on  June  30,  2009,  two  

                                                                                           



members of the Mat-Su drug unit, Investigator Young and Sergeant Langendorfer, pulled  



into the driveway of Kelley's residence.  



                   While  still  in  their  vehicle,  both  troopers  smelled  the  odor  of  "fresh  

                                                  



marijuana."    The  troopers  were  directly  in  front  of,  and  downwind  from,  Kelley's  



residence.    Moreover,  there  were  no  other  nearby  residences  upwind  of  the  Kelley  



residence.    There  was  no  indication  that  Kelley's  residence  was  occupied,  and  the  



troopers left without attempting to contact anyone.   



                   Based primarily on this information, the police obtained and served a search  



warrant on Kelley's residence.  They found a number of marijuana plants as well as  

                                                                                  



marijuana growing equipment.  Based on this evidence, the grand jury indicted Kelley  

                                               



on four counts of misconduct involving a controlled substance in the fourth degree.    



                   Kelley filed a motion to suppress in which she argued that the troopers  

                                                     



conducted an illegal search under Article I, Section 14 of the Alaska Constitution and  

                                                                                                      



violated her right to privacy under Article I, Section 22 of the Alaska Constitution.  



                   Superior Court Judge Gregory Heath denied the motion to suppress and  

                                                                                                           



Kelley was then convicted in a bench trial based on stipulated facts.  



                   The majority of this Court reverses Kelley's conviction, concluding that the  



police acted illegally by entering her property at 12:30 a.m. to investigate the tip that she  



was growing marijuana.  



                   Alaska law provides that law enforcement officers may enter onto private  

                                                   



property to conduct an investigation without a warrant if they restrict their movements  

                                   



                                                          - 12 -                                                     2449
  


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

                                                                                             1  

to places where an ordinary visitor would be expected to go.   There are no Alaska cases   



that restrict the time of day or night the police may use a residence's normal means of   



ingress and egress to investigate a crime.   



                     In this case, Judge Heath found that the troopers entered Kelley's property  

                                                                                                             



by means of her driveway, which was the normal way to approach her residence.  The  

                                                                               



troopers did not get out of their vehicle, and they stayed for only a few minutes.  Judge  

                                                   



Heath assumed that, at 12:30 at night, the officers had the patrol car's headlights on, and  

                                                                                                                             



that the car's engine made some noise as it approached.  The judge concluded that this  

                                                    



was  not  the  type  of  "furtive"  nighttime  investigation  that  courts  in  some  other  

jurisdictions have condemned. 2  

                                                       



                                                                            3 

                                                                                                                

                     As we recognized in Michel v. State ,  a police investigation is "as legitimate 



                                                                                                             

a  societal  purpose  as  any  other  undertaking  that  would  normally  take  a  person  to  



                                  4 

another's front door."                                                                                      

                                     In his treatise on search and seizure, Professor LaFave points out  



that the courts that have directly addressed the issue "have not been inclined to view  



                                                                              5  

nocturnal entries upon the curtilage as improper."   



      1    Pistro v. State , 590 P.2d 884, 886-87 (Alaska 1979); Michel v. State , 961 P.2d 436,  



438 (Alaska App. 1998).  



      2    Citing State v. Johnson, 879 P.2d 984 (Wash. App. 1994), and State v. Cada, 923  



P.2d 469 (Idaho App. 1996).  



      3    961 P.2d 436.  



     4     Id. at 437-38 (quoting State v. Rigoulot, 846 P.2d 918, 923 (Idaho App. 1992)).  



      5    1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment                                             2.3  



(c) (5th ed.) (Westlaw, database updated October 2014) (citations omitted).  



                                                               - 13 -                                                         2449
  


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

                        In finding that the troopers' conduct in this case was illegal, the majority   

of this Court relies primarily on Florida v. Jardines ,6 a United States Supreme Court  



case.    In  Jardines ,  the  Supreme  Court  ruled  that  when  the  police  step  onto  a  

                                                                                                    



homeowner's porch with a drug-sniffing dog to investigate the contents of the home they  

conduct a "search" within the meaning of the Fourth Amendment.7  

                                                                                                                           Although Jardines  



did not involve a late-night search, the dissent, written on behalf of four members of the  

                                                                                                                     



Court, stated that there are limitations on when a visitor may approach the front door of  

                                                                      

a residence "in the middle of the night without an express invitation."8  

                                                                                                                                    However, the  



                                                                                                           9 

                                                                                                              

case the dissent relied on for that proposition, State v. Cada,  held only that the late hour 



                                                                                                                                    

at which a police intrusion takes place is one factor for courts to consider in determining  

whether the entry was lawful.10  



                                                          

                        The facts of Cada are far removed from Kelley's case.  In Cada, the police  



               

entered Cada's property at 1:00 a.m. on June 10, 1993, to set up a thermal imaging  



                                                    11  

                                                                                      

device directed at the garage.                           The officers, at least one of them dressed in camouflage,  



entered the property again on June 21, 1993, at approximately 4:00 a.m., and hid a  



                                                                                          

motion-activated low-light infrared video camera and two infrared sensors in the bushes  



                                                                    12  

across the driveway from the garage.                                    



      6      133 S. Ct. 1409 (2013).
  



      7     Id. at 1417-18. 
 



      8     Id. at 1422 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer, JJ.)
     



      9     923 P.2d 469 (Idaho App. 1996).
  



      10    Id. at 478.
  



      11    Id. at 472. 
 



      12    Id.  



                                                                         - 14 -                                                                    2449
  


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

                      In Cada, the Idaho Court of Appeals held that this police entry was illegal       

under the Idaho Constitution.13  

                                                    The court reasoned that  



                      furtive intrusion late at night or in the predawn hours is not  

                      conduct that is expected from ordinary visitors. Indeed, if  

                      observed by a resident of the premises, it could be a cause for  

                                                           

                      great  alarm.  As  compared  to  open  daytime  approaches,  

                      surreptitious  searches  under  cover  of  darkness  create  a  

                      greater  risk  of  armed  response  -  with  potentially  tragic  

                      results - from fearful residents who may mistake the police  

                                       

                      officers for criminal intruders.14  



                      Similarly, in State v. Johnson,15 the Washington Court of Appeals, applying  



the state constitution, found that a police entry onto the defendant's property at 1:00 a.m.  

                                                                  



to investigate a possible marijuana growing operation was illegal.  But again, the time  

                                                                                         



of the entry was but one factor the court considered in finding the entry illegal.  The  

                                                                                                                        



police entered the Johnsons' property via a state park, under cover of darkness.  They  

                                                                                                              



opened a gate marked "Private Property" and "No Trespassing," walked down the road,  



and took readings from a thermal imaging device aimed at the barn.  



                      The  Washington  court  found  that  the  closed  gate  marked  with  "No  



Trespassing" signs indicated that the Johnsons had a "subjective intent to close their  

property." 16  

                     The court also concluded that the officers' surreptitious entry onto the  

Johnsons' property at 1:00 a.m. easily could have resulted in a violent confrontation.17  



      13   Id. at 478.  



      14   Id.   



      15   879 P.2d 984 (Wash. App. 1994).  



      16   Id. at 992.  



      17   Id. at 993.  



                                                                 - 15 -                                                            2449
  


----------------------- Page 16-----------------------

                                              18  

                     In  State v. Ross,          the Washington Supreme Court likewise condemned a               



surreptitious police entry onto the defendant's property, in a case the court described as  

"very similar" to Johnson .19  



                                              

                     In each of these cases, the court considered the entire context of the police  



                                                        

entry, not just the time of the entry.  Moreover, in finding that the searches were illegal,  



the courts emphasized that the police had engaged in "furtive activity."  



                    As  Judge  Heath  found,  there  was  no  furtive  activity  in  this  case.  The  



officers drove their patrol car up Kelley's driveway, presumably with the headlights on,  

                                                                                 



stayed only a few minutes, and did not get out of the car.  



                     I  would  affirm  Judge  Heath's  decision  that  this  entry  was  lawful.  The  



troopers' investigation differed markedly from the facts of the out-of-state cases that  



found nighttime searches illegal.  Those cases involved extreme facts, where the police,  



in  an  effort  to  avoid  detection,  snuck  onto  the  defendant's  property  under  cover  of  



darkness to obtain evidence.  In Kelley's case, the troopers simply drove up the driveway  



in a patrol car and remained there for several minutes, without getting out of the car.  The  

                                                                                                                    



driveway was the normal approach to the house, and the troopers did not open any gates  

                       



or encounter any "No Trespassing" signs.  



                     This type of approach is unremarkable. Certainly newspapers are routinely  

                                                                                                



delivered at night in this way, as might be advertisements, telephone books, or political  

                                                                                          



material.  An individual might drive up a driveway to check an address - or to look for  

                                                                                                                  



the business that, according to the affidavit in support of the search warrant, shared some  

                                                                  



portion of Kelley's driveway.  I see no basis for excluding the police from making a  

                  



similar approach.  



     18   4 P.3d 130 (Wash. 2000).  



     19   Id. at 136.  



                                                              - 16 -                                                         2449
  


----------------------- Page 17-----------------------

                         The majority relies on the fact that Alaska law requires search warrants to  



be executed between the hours of 7:00 a.m. and 10:00 p.m., unless the State shows good  

                                                                                                                              



cause.  But there is a big difference between driving up the driveway and approaching  

                                                                     



a house without getting out of the car, and entering a house under the force of a warrant  

                                                                                                                                               



and searching it.  

                         Police officers investigate crime around the clock,20  

                                                                                                                                     

                                                                                                                             and there is no per se  



rule that prohibits late-night investigations.  For instance, courts find that "knock and  



talk" investigations, where police approach a residence, knock on the door, and talk to  

                                                                                        



witnesses  or  suspects,  are  generally  reasonable,  even  if  those  contacts  occur  late  at  

night.21                                                                                                                             

                And courts routinely uphold much more intrusive late-night contacts than the  



situation presented in Kelley's case.  



                         In my view, the opinion of the Court is not supported by any authority and  

                                                         



runs the risk of creating uncertainty about the ability of the police to investigate crime  



other than during daytime hours.  I therefore dissent.  



      20     See,  e.g.,  Martin  v.  State ,   297  P.3d  896,   897-900  (Alaska  App.   2013)  (police  



approached a five-unit apartment complex after midnight as part of a drug investigation and                           

saw, through a window, materials used for the manufacture of methamphetamine).  



      21     See Fern L. Kletter,  Construction and Application of Rule Permitting Knock and Talk       



 Visits Under Fourth Amendment and State Constitutions                                                 , 15 ALR 6th 515 (2006) (stating,     

                                                                                                                                 

"Whether a knock and talk has transformed into a search or seizure is dependent upon the  

totality of the circumstances of each particular case... .   [Where] police officers approached  

                                                                                                                    

a residence at 2 in the morning but where lights were on inside indicating that people were  

                                                                                                                                

awake and there was no other evidence indicating that visitors were not welcome to approach  

the front door of the residence[,]" no Fourth Amendment violation occurred).  

  



                                                                             - 17 -                                                                       2449  

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