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Snowden v State (6/19/2015) ap-2456

Snowden v State (6/19/2015) ap-2456

                                                  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  



IVAN J. SNOWDEN,  

                                                               Court of Appeals No. A-10971  

                                  Appellant,                  Trial Court No. 4FA-08-820 CR  



                         v.  

                                                                        O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                  Appellee.                       No. 2456 - June 19, 2015  



                 Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                 Fairbanks, Robert B. Downes, Judge.  



                 Appearances:        Colleen  A.  Libbey,  Libbey  Law  Offices,  

                                                                            

                 Anchorage, 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:    Mannheimer,  Chief  Judge,  Allard,  Judge,  and  

                 Hanley, District Court Judge. *  

                                                          



                 Judge MANNHEIMER.  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                   A little after 3:00 in the morning on March 14, 2008, the Fairbanks police  



received an "open-line" 911 call.  That is, someone called 911, but when the dispatcher  



answered the call, there was no response - just an open telephone line (although the  

                                                                       



dispatcher heard a sound like a cough).   



                   The  911  dispatcher  determined  that  the  call  originated  from  Mom's  



Kitchen,  a  local  restaurant,  and  police  officers  were  dispatched  to  this  restaurant  to  

                         



investigate the call.  During this investigation, the officers entered the residence of Ivan  

                                                                                   



J. Snowden, who lived in an apartment downstairs from the restaurant.  The police found  

                   



no emergency, but they did find drugs in plain view.  Based on the discovery of these  

                                                                                                 



drugs,  Snowden  was  convicted  of  third-  and  fourth-degree  controlled  substance  



misconduct.  



                   In this appeal, Snowden contends that the police entry into his apartment  

                                                                                          



was unlawful, and that the superior court therefore should have suppressed the drugs.  



For the reasons explained in this opinion, we conclude that the entry into Snowden's  



apartment, and the ensuing search of the apartment, were justified under the emergency  

                                                     



aid exception to the warrant requirement.  We therefore uphold the search, and we affirm  

                     



Snowden's convictions.  



          Underlying facts  



                   At 3:16 in the morning on March 14, 2008, the Fairbanks 911 dispatch  



received a 911 call from Mom's Kitchen.  When the 911 dispatcher answered the call  



and asked what was the nature of the emergency, she heard no response - although the  

                                   



caller did not hang up the phone.  As the dispatcher listened to the open line, she heard  

                                 



what she believed was a cough.  



                   Several Fairbanks police officers went to Mom's Kitchen to investigate.  



                                                          - 2 -                                                     2456
  


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

                    Mom's Kitchen occupied the upper floor of a two-story building.  The  



bottom floor of the building was rented as an apartment - although the officers did not  

                                                                                        



know this until later.   



                    The  building  had  a  front  entrance  that  went  into  the  restaurant.    The  



building also had a back entrance (an arctic entry) that led inside to a landing.  From this  

                                                        



landing, stairs went up directly into the restaurant (with no intervening door), and stairs  

                                                                                                                   



also went down into the apartment, but one had to go through an intervening door to get  

                                                                                                                  



into the apartment.   



                    Around the time the officers arrived at Mom's Kitchen, a taxi cab pulled  



up to the rear of the building.  The taxi driver told the officers that he was there to pick  

                                              



up a man named "Jay" - but this person never showed up.    



                    The officers went to the front of the building to try the door, but it was  



locked.  The officers then proceeded to the back entrance, where they discovered that the  

                                                                                               



door was standing open about three to four inches.  Speaking through the open door, the  

                                                                             



officers announced themselves, but there was no response.   



                    The  officers  then  entered  the  building  and  went  up  the  stairs  to  the  



restaurant portion.  There, they found a cordless phone sitting on a table in one of the  

                                         



restaurant booths.  This was the phone that had been used to make the 911 call, and its  

                                                                                                                



line was still open - but there was no one in the restaurant.  The police saw no sign of  

                                                                                                                   



an emergency (or of any criminal activity).   



                    The officers then proceeded down the stairs to search the lower floor of the  

                                       



building.  Finding that the door to the lower floor was locked, the officers knocked on  



the door and announced themselves.  They were greeted with silence.   



                    At this point, the officers still did not know that the lower floor of the  

                                                                                                



building was an apartment.  But when they contacted one of the owners of the building  

                                                                                           



(Lee Brown), Brown informed them that he was renting the lower floor to a man named  

                                                              



                                                             - 3 -                                                       2456
  


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

"Ivan Peterson".  Brown came to the building and brought keys so that the officers could  



enter and inspect the lower floor.   



                   When Brown arrived on the scene, he met the officers in the restaurant  

                                                                                     



portion of the building.  Brown told the officers that there was a photograph of Ivan  

                                                                                



Peterson on the restaurant wall.  When Brown pointed out this photograph, one of the  



officers recognized "Peterson" as a man named Ivan Snowden - a man who was known  



to the police because of his involvement with drugs.   



                   When the officers asked Brown if Snowden's apartment was self-contained,  



Brown told them that it was not:  Snowden had access to the restaurant because there was  

                                                                                                      



no bathroom in his apartment, so he used the one upstairs in the restaurant.   



                    The officers returned to the door that led downstairs into the apartment.  



They knocked loudly on the door, and they announced themselves as police officers.  In  

                                                   



response to their announcement, the officers heard movement inside the apartment; they  

                                                 



then heard someone "fiddling" with the door, and Snowden opened the door.   



                    The officers had Snowden step out of the door, and they frisked him for  



weapons. Following this frisk, the officers asked Snowden what was going on inside his  

                                



apartment.  Snowden replied that he was just watching a movie with two of his friends.  

                                                                                                     



The officers then placed Snowden in handcuffs, and one of them took Snowden upstairs  

                                                                                       



to the restaurant.   



                   After restraining Snowden, the police entered Snowden's apartment to see  

                                                                           



if anyone inside needed assistance. Inside the apartment, the officers smelled both burnt  

                                                                                                     



and fresh marijuana.  They also found a man and a woman, both of whom appeared to  

                                                             



be intoxicated, sitting in the apartment.   



                    In response to the officers' questions, the man and the woman declared that  

                                                                                             



they had not called 911.  In addition, neither of the two was named "Jay" (the person that  

                                                                    



the taxi driver was waiting for).   



                                                            - 4 -                                                      2456
  


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

                    The man and the woman told the officers that there was no one else in the  

                                              



apartment.  Nevertheless, the officers looked through the apartment.  They found no  



other  people  -  although  they  did  see  some  marijuana  in  plain  view.    During  their  



examination of the apartment, the officers discovered that the apartment contained an  



office area, which was locked.  Because the officers were concerned that there might be  

                                                                 



a person inside this office area, they unlocked the office (with a key that they had seized  

                                               



from Snowden during the frisk).  The office was empty, and it contained no evidence of  

                                                        



either an emergency or criminal activity.   



                    After inspecting the office, the officers looked behind a bar area in the  



apartment.  At this point, one of the officers smelled the odor of cocaine and noticed a  

                                                       



white, powdery substance on one of the counters.  When the officer took a swab of the  

                                                       



substance and tested it with a drug kit, the substance tested positive for cocaine.   



                    Based on this drug evidence, the police obtained a search warrant.  The  

                                                  



ensuing search of the apartment (under the authority of the warrant) yielded 20.8 grams  

                                                                                                    



of  cocaine,  7.6  grams  of  methamphetamine,  130.4  grams  of  marijuana  (about  4-  

                   



ounces), and two tablets of MDMA.   



          The legality of the officers' warrantless entry into Snowden's apartment  



                    Under  both  the  Alaska  constitution  and  the  federal  constitution,  police  



officers  can  enter  a  dwelling  without  a  warrant  if  their  entry  is  for  the  purpose  of  



investigating or responding to what they reasonably believe is an ongoing emergency.  

                                                      



State v. Gibson, 267 P.3d 645, 658-59 (Alaska 2012); Gallmeyer v. State, 640 P.2d 837,  

                                                                                                



841-42 (Alaska App. 1982); Brigham City v. Stuart , 547 U.S. 398, 403; 126 S.Ct. 1943,  

                                                         



1947; 164 L.Ed.2d 650 (2006).  



                                                            - 5 -                                                       2456
  


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

                                                                                         

                    In State v. Gibson, our supreme court laid out a three-part test to govern the  



                                                                               

question of whether, under the Alaska constitution, a warrantless entry into a residence  



is justified under this emergency aid exception to the warrant requirement:  



                      

                                                                                 

                    [T]he Alaska Constitution requires that warrantless searches  

                                    

                    under the emergency aid doctrine satisfy [the] three ... prongs  

                    specified in Gallmeyer:  (1) the police must have reasonable   

                    grounds  to  believe  there  is  an  emergency  at  hand  and  an  

                                                                          

                    immediate need for their assistance in the protection of life or  

                                                                            

                    property; (2) the search must not be primarily motivated by  

                                                                             

                    the intent to arrest a person or to seize evidence; and (3) there  

                                                                         

                    must  be  some  reasonable  basis,  approximating  probable  

                                                                                                        

                    cause, to associate the emergency with the area or place to be  

                    searched.   



Gibson, 267 P.3d at 659.  



                                                   

                    In the present case, the superior court expressly applied the Gibson test to  



the  facts  of  Snowden's  case  and  concluded  that  the  police  could   validly  conduct  a  



warrantless entry of the building, and later of Snowden's apartment, to investigate the  



"open-line" 911 call.  More specifically, the superior court concluded that the police  



could reasonably suspect that the telephone line was left open because "the person who  

                                                   



had made the call was interrupted [while] making the call", or because the caller "[put]  

                                                                            



the phone down and ran", or because the caller "was immediately grabbed or seized, and  



the phone ... wasn't hung up."   



                    On appeal, Snowden argues that an open-line 911 call is not sufficient,  



standing alone, to justify a warrantless entry into a dwelling.  Snowden further argues  



that there was nothing else about the facts of his case to affirmatively corroborate the  



existence  of  an  emergency  (i.e.,  an  "immediate  need  for  [police]  assistance  in  the  



protection of life or property").  Gibson, 267 P.3d at 659.  



                                                             - 6 -                                                         2456
  


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

                    We agree with Snowden's first assertion:  An open-line 911 call is not  



sufficient,  standing  alone,  to  justify  a  warrantless  entry  into  a  dwelling.                                      We  

                 



acknowledge that an open-line call to an emergency operator is obviously a suspicious  

                                               



circumstance.  But whenever the State seeks to justify a warrantless entry under the  



emergency aid exception to the warrant requirement, the proposed justification for the  

                                                                                 



entry must be assessed in light of the totality of the circumstances.  As our supreme court  



stated in Gibson:  



                      

                    Application of the emergency aid exception to the warrant  

                    requirement cannot be evaluated with across-the-board, rigid,  

                    and formalistic standards; it is a flexible doctrine that ... must  

                                                              

                    be    evaluated        on    a    case-by-case          basis,   balancing          the  

                                                                                      

                    competing  interests  in  light  of  the  actual  facts,  perceived  

                    dangers, and circumstances encountered by police.  



267 P.3d at 661.  



                    But we disagree with Snowden's assertion that there was nothing else to  

                                                      



affirmatively corroborate the police officers' suspicions of an emergency.  



                    Here, the 911 call was made in the middle of the night - shortly after 3:00  

                                                                                                                           



in the morning.  When the police arrived at Mom's Kitchen in response to the call, they  

                                                                             



found the back door to the building standing ajar.  In addition, the police knew that a taxi  

                                        



had been summoned to that address, but the customer never appeared.   



                    Before  the  police  entered  the  building  through  the  back  door,  they  



announced themselves, but they received no response.  Inside the restaurant (i.e., on the  

                                                              



upper floor), the officers located the cordless phone that had been used to make the 911  

                                                                                    



call.  This phone still had an open line, but there was no one in the restaurant.   



                    At this point, the police turned their focus to the lower floor of the building  

                                                        



- which, they learned, was rented by Snowden.  When the officers knocked on the door  

                                                                                                    



and  announced  who  they  were,  Snowden  opened  the  door  and  told  the  police  that  

                                                                                                                



                                                             - 7 -                                                       2456
  


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

nothing was wrong; he told the officers that he was just watching a movie with two of  

                                                                               



his friends.   



                    As both a factual and legal matter, this was a turning point in Snowden's  



case.  As a factual matter, the police officers had to make a decision:  they could either  

                                                                                                         



accept Snowden's statement, and simply write off the 911 call as unexplained, or they  



could enter Snowden's apartment to investigate further.  



                    The  related  legal  issue  -  the  issue  that  this  Court  must  resolve  -  is  

                                                                                                              



whether, after Snowden told the officers that he was simply watching a movie with  

                                                                                                              



friends,  the  officers  still  had  reasonable  grounds  to  believe  that  an  emergency  was  

                                                                              



occurring, as well as "some reasonable basis, approximating probable cause, to associate  



[that] emergency" with Snowden's apartment.  Gibson at 659.  



                    We have found a few other court decisions dealing with similar facts:  a  



warrantless police entry prompted by a suspicious 911 call (either an open-line call like  



the one in this case, or a call where the caller immediately hung up and did not answer  

                                             



the 911 operator's return call), where the occupant of the home told the police that there  

                                                                                 



was no emergency.   



                    For instance, in the New Jersey case of State v. Frankel, 847 A.2d 561  

                                                                                                              



(N.J. 2004), a police dispatcher received an open-line 911 call from a telephone number  

                                                                                              



listed in the defendant's name.  Because the dispatcher could not make contact with the  

                                                              



911 caller, an officer was dispatched to the defendant's residence.  Id. at 574.  



                    When an officer arrived at the front door, he found that someone had hung  

                                                             



a sheet inside the house, obstructing his view of the interior.  In response to the officer's  

                                                       



knocking, the defendant poked his head out from behind this sheet and told the officer  

                                      



that he lived alone, and that he did not make the 911 call.  Ibid.  Fearing that there was  

                                                                     



an incapacitated victim inside the house, the officer asked the defendant to explain the  

                                                                                               



                                                             - 8 -                                                         2456
  


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

911 call.  According to the officer, when the defendant responded to this question, he  

                                  



was unusually nervous and agitated, and he stumbled over his words.  Ibid .  



                     The New Jersey court noted that a 911 call "is tantamount to a distress  

                                                



call[,] even when there is no verbal communication over the telephone to describe the  



nature of the emergency."  Ibid.  Thus, "[a] responding police officer is not required to  



accept blindly the explanation ... offered by the resident answering the door, but must  

                                                                                                         



base his decision on the totality of the circumstances."  Ibid.  The court held that, given  

                                                                                                               



the circumstances in this case, the officer "did not have to give uncritical acceptance to  

                                        



defendant's belated explanation that his computer modem may have caused a false 911  

                                                                                                                        



transmission", and that the officer could justifiably enter the house to investigate.  Id. at  

                                                                                                       



574-75.  



                     Similarly, in People v. Greene , 682 N.E.2d 354 (Ill. App. 1997), a police  

                                                                                                                          



dispatcher received a "hang-up" call to 911.  When the dispatcher made a return call to  

                                                                                                                   



that number, the dispatcher was connected to an answering machine.  The dispatcher  

                                                                                               



thereupon sent officers to the residence where the call originated.  Id. at 355-56.   



                     The officers knocked on the screen door to the defendant's porch, and they  

                                                                                                                         



received no response.  They then opened the porch door and proceeded to the front door.  

                                                                                            



Ibid .  Looking through a window in the front door, the officers saw the defendant seated  

                                                                               



on a couch in the living room.  When they knocked on the door and announced their  

                                                                                                             



presence, the defendant walked to the door, locked the dead bolt lock, and then returned  

                                                                                                            



to the couch, at which time he appeared to hide something under a cushion.  Ibid.  

                                                                                                                               



                     The officers persisted in their knocking until the defendant returned to the  

                                                                                                                



door and opened it.  The officers told the defendant that they had received a 911 call  

                                                                                                                      



from his house - to which the defendant replied that he had not called 911, and that he  

                                                                 



was alone in the house.  The police nevertheless entered the house to investigate, and  



they found drugs.  Ibid.  

                                      



                                                               - 9 -                                                          2456
  


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

                    The Illinois court upheld this warrantless entry:  



                      

                              We conclude that these peculiarities made it reasonable  

                    for the police to believe that someone within the house was  

                    attempting  to  call  911  for  help  but  was  prevented  from  

                                      

                    completing the call. Accordingly, the officers' entrance was  

                                                                         

                    justified by the exigent circumstances presented to them.  If  

                                                         

                    we  were  to  adopt  the  rule  urged  by  defendant,  the  police  

                                                 

                    would never be authorized to enter and offer assistance in  

                    such a situation.  



Greene, 682 N.E.2d at 358-59.  



                    In State v. Pearson-Anderson, 41 P.3d 275 (Idaho App. 2001), the court  

                                                                                       



upheld  a  warrantless  entry  into  a  dwelling  in  a  case  where  the  police  received  a  



suspicious 911 call from the defendant's house:  the initial 911 call was a hang-up call,  

                                            



and  when  the  911  operator  called  back,  someone  picked  up  the  phone  but  then  



immediately hung up.  Id. at 275-76.  



                    When police officers arrived at the residence, they observed the defendant  

                                                                                         



and her live-in boyfriend struggling with one another on the floor across the threshold  

                                                                                                                



of the back door.  Id. at 276.  The defendant told the police that she was fighting with her  

                                                                                              



boyfriend because he "had given a key to the home to another woman", and this woman  



had entered the house and damaged some of the defendant's belongings.  Ibid.  The  

                                                                       



defendant told the police that this other woman had been there "earlier", but she had left.  

                                                                             



Ibid.  

         



                    One of the officers decided to enter the home to see if any third persons  

                                                                                                



were present in the home and in need of assistance.  Id. at 277.  The officer found no one  

                              



in distress, but he did discover a meth lab.  Ibid .  



                    The Idaho court upheld the warrantless entry into the home.  The court  

                                                                                                   



reasoned that the initial hang-up 911 call, followed by someone hanging up the phone  



                                                             - 10 -                                                        2456
  


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

when the dispatcher called back, "suggested that someone in the home ... was in need of  

                                                                           



help" and that this person "had been prevented by another person from communicating  

                              



with the operator."  Id. at 278.  The court rejected the defendant's contention that the  



officers  were  barred  from  entering  the  home  after  someone  at  the  scene  offered  a  



seemingly plausible explanation for the hang-up call and assured the officers that no one  

                                                                                                                     



was in distress.  Id. at 276, 278.  



                     See also State v. Lynd, 771 P.2d 770 (Wash. App. 1989), where the court  

                                                                                                                        



upheld a warrantless entry into a dwelling in a case where a police dispatcher received  

                                                                  



a hang-up 911 call, the line was busy when the dispatcher called back, and the defendant  

                                                                                                           



admitted to the police that he and his wife had been fighting, but the defendant claimed  

                                          



that his wife was no longer at home.  



                    As we said earlier in this opinion, the law does not allow police officers to  

                                                     



enter a home without a warrant simply because the police have received a suspicious 911  

                                                                                               



call.    There  will  be  times  when  the  explanation  offered  by  the  people  in  the  home,  

                                                                                          



coupled with the officers' observations at the scene, will dispel any reasonable ground  

                                                              



for believing that there is an ongoing emergency.  But the police are not required to set  

                                                                                                    



aside their reasonable concerns that people are in danger simply because someone at the  

                                                 



home claims that there is no emergency.  



                    In Snowden's case, someone called 911 from Mom's Kitchen at 3:00 in the  

                                                                                                                      



morning.  After this person made the 911 call, they left the line open, they left the phone  

                                                                                    



on the table of the empty restaurant, and then they seemingly disappeared.  A taxi cab  



was waiting outside the building  for  a  customer who never showed up.  The police  

                                                     



searched the upper floor of the building, and they found no one.  The only place left to  

                                                 



look was the lower floor - Snowden's apartment.   



                    It is true that Snowden disclaimed any knowledge of the 911 call, and he  

                                                                                                             



told the police that he had simply been socializing and watching a movie.  But given the  



                                                             - 11 -                                                          2456
  


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

other  suspicious  circumstances,  the  police  were  not  required  to  uncritically  accept  



Snowden's statement.  



                  In the end, the question here is whether the totality of the circumstances,  



including Snowden's statement, left the police with reasonable grounds to believe that  

                                                                  



there  was  an  emergency  at  hand  (i.e.,  an  immediate  need  for  their  assistance  in  the  



protection of life or property), and a reasonable basis, "approximating probable cause",  



to associate this emergency with Snowden's apartment.   



                  We conclude that the answer to this question is "yes", and we therefore  



conclude that the officers' warrantless entry into Snowden's residence was justified  



under the emergency aid exception to the warrant requirement.  



         The scope of the officers' search of the apartment  



                  In his brief to this Court, Snowden presents the alternative argument that  



even if the officers' entry into his apartment was justified, the officers' search of the  

                                                 



apartment was at least partially unlawful - under the theory that the scope of this search  

                               



exceeded the kind of search that would be justified by the apparent emergency.  



                  Although Snowden mentioned this argument in passing when he argued his  



suppression motions in the superior court, he obtained no ruling from the superior court  



on this issue.  Snowden therefore failed to preserve this claim for appeal.  And under the  

                                                                            



supreme court's decision in Moreau v. State , 588 P.2d 275, 280 (Alaska 1978), Snowden  

                                                                                 



can not raise this claim for the first time on appeal.  We therefore do not reach the merits  

                                                           



of this claim.  



         Conclusion  



                  The judgement of the superior court is AFFIRMED.  



                                                       - 12 -                                                   2456
  

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