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Osborne v. State (3/2/2018) ap-2589

Osborne v. State (3/2/2018) ap-2589

                                                     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  



JARRETT J. OSBORNE,  

                                                                    Court of Appeals No. A-11929  

                                    Appellant,                     Trial Court No. 4FA-13-375 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                         No. 2589 - March 2, 2018  



                                     

                  Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                  Fairbanks, Bethany Harbison, Judge.  



                  Appearances: Elizabeth W. Fleming, Attorney at Law, Kodiak,  

                                                                                

                  under  contract  with  the  Office  of  Public  Advocacy,  for  the  

                                                                 

                  Appellant.      Eric  A.  Ringsmuth,  Assistant  Attorney  General,  

                                                                                         

                  Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                               

                  Attorney General, Juneau, for the Appellee.  



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

                                                         

                  Senior Judge. *  

                                       



                  Judge ALLARD, writing for the Court.  

                  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-----------------------

                    Jarrett J. Osborne was searched by police officers after he came to the door  

                                                                                                                              



of a Fairbanks house owned by William Young.  At the time Osborne arrived at the  

                                                                                                                



house, the police were executing a search warrant at the residence for evidence  of  

                                                                                                                                 



methamphetamine sales.  One of the provisions of this search warrant authorized the  

                                                                                                                                



police to search "any person" who might arrive on the premises while the warrant was  

                                                                                                                               



being executed.  

           



                    Based in part on the search of Osborne's person, Osborne was charged with  

                                                                                                                              



various drug and weapon offenses. Osborne later moved to suppress the evidence found  

                                                                                                                            



on his person, asserting that the search warrant application for Young's residence failed  

                                                                                                                            



to establish probable cause for the search-all-persons provision.  In response, the State  

                                                                                                                             



argued that the same probable cause showing that supported granting the police the  

                                                                                                                                



authority  to  search  Young's  residence  for  evidence  of  drugs  and  drug  sales  also  

                                                                                                                              



supported granting the police the authority to search any and all persons who might  

                                                                                                                            



approach the residence during the execution of that search. The State also argued, in the  

                                                                                                                                



alternative, that the policehad sufficient independent reasons to detain, arrest, and search  

                                                                                                                           



Osborne, even without the search-all-persons warrant provision, based on the suspicious  

                                                                                                                     



circumstances of Osborne's middle-of-the-night arrival at Young's residence and the  

                                                                                                                                



totality of the information about Young's drug dealing known to the police at the time.  

                                                                                                                                      



                    The superior court agreed with the State that the search warrant application  

                                                                                                                    



established probable cause for the "search any person" warrant provision.  The court  

                                                                                                                             



therefore upheld the search of Osborne's person on that basis, without reaching the  

                                                                                                                                



State's alternative argument.  Osborne was later convicted following a jury trial.  

                                                                                                                             



                    On appeal, Osborne argues that the superior court erred when it concluded  

                                                                                                                     



that the search warrant application established probable cause to search any and all  

                                                                                                                                



persons who might arrive on the premises during the execution of the search warrant.  

                                                                                                                                    



                                                              - 2 -                                                         2589
  


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

                       To resolve Osborne's appeal, we must revisit an issue of law that we                                                        



                                                                                                              1  

discussed, but did not have to fully resolve, in                                   Davis v. State            .                                  

                                                                                                                  Specifically, we must  



                                                                                                                                             

decide what kind of proof the police must offer in a search warrant application to justify  



                                                                                                                                                   

a warrant provision that allows the police to search any person who might arrive on the  



                                                                                   

premises during the execution of the warrant.  



                                                                                                                                              

                       For the reasons explained in this opinion, we conclude that such a broad  



                                                                                                                                  

grant of search authority is justified only if the search warrant application affirmatively  



                                                                                                                                             

establishes good reason to believe that any and all persons arriving at the premises during  



                                                                                                                                               

the execution of the warrant will probably be participants in the criminal activity being  



                                                                                                                                                

investigated and will probably be carrying evidence of that criminal activity on their  



             2  

person.   



                                                                                                                                                

                       Because the search warrant application in the present case failed to meet  



                                                                                                                                                    

this standard, we conclude that the superior  court erred in upholding the search of  



                                                                                                                                        

Osborne's  person  under  the  "search  any  person"  warrant  provision.                                                       We  therefore  



                                                                                                                                      

remand this case to the superior court so that the court can consider the State's alternative  



                                                                                                 

argument for upholding the lawfulness of that search.  



                                                               

            Background facts and prior proceedings  



                                                                                                                                                

                       Around midnight on February 9, 2013, officers from the Fairbanks drug  



                                                                                                                                               

enforcement unit executed a warrant to enter the residence of William Young and arrest  



                                                   

him for drug-related crimes.  



      1     Davis v. State , 938 P.2d 1076 (Alaska App. 1997).  



      2     See Betts v. State          , 920 P.2d 763, 764 (Alaska App. 1996) (citing State v. De Simone,  



288 A.2d 849, 850 (N.J. 1972)); see also 2 Wayne R. LaFave, Search and Seizure   4.5(e),  

at 759-60 (5th ed. 2012); William E. Ringel,                              Searches & Seizures, Arrests and Confessions                                 ,  

 5.17 (2d ed. Nov. 2017 Update).  



                                                                        -  3 -                                                                2589
  


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

                                                              During   their   protective   sweep   of   the   residence,   the   police   observed  



numerous flat screen televisions, which were linked to surveillance cameras. The police                                                                                                                                                                                                                                                                                               



also observed that the outside of the residence was equipped with motion detecting flood                                                                                                                                                                                                                                                                                                  



lights, and that all entryways to the residence were protected by barred security doors.                                                                                                                                                                                                                                                                                            



                                                              The police ultimately found Young hiding in a bedroom of his house.                                                                                                                                                                                                                                                                                   



Young was searched incident to his arrest, and a large amount of cash was found in his                                                                                                                                                                                                                                                                                                              



pockets.   In close proximity to Young, the police found a glass pipe containing drug                                                                                                                                                                                                                                                                                                      



residue; the residue field-tested positive for methamphetamine.                                                                                                                                                                                                                                          The police also found  



Ziploc baggies in the bedroom closet.                                                                                                                                            



                                                              Based on the discovery of these items, the police applied for a second                                                                                                                                                                                                                                            



warrant to search the premises (the house and the surrounding curtilage) for evidence of                                                                                                                                                                                                                                                                                                                



drug possession and drug sales.                                                                                                                       



                                                              Attached to the search warrant application were two boilerplate lists of                                                                                                                                                                                                                                                                



items   that   the   police   wanted   to   search.     The   first  attachment   -   "Attachment   A  



Methamphetamine" - included nine different categories of things to be searched, most                                                                                                                                                                                                                                                                                                       



of which involved physical items such as money, business records, personal documents,                                                                                                                                                                                                                                                                        



etc.,   that might be found in                                                                                                          the house.                                              The second                                                     attachment  - "Attachment B                                                                                                              



Electronic Devices, Digital Media" - included a list of the various electronic items that                                                                                                                                                                                                                                                                                                       



the police wanted to examine forensically.                                                                                                                                                               



                                                              Buried in Attachment A's boilerplate list of items to be searched was the                                                                                                                                                                                                                                                            



 following provision:                                                                             



                                                                                                                                                                                                                                                                                                                                     

                                                              Persons on the Premises to Be Searched:  Any person on the  

                                                                                                                                                                                                                                                                                                                                    

                                                              premises at the time of service of the search warrant, for  

                                                                                                                                                                                                                                                                                              

                                                              purposes of checking for the possession, sale or distribution  

                                                                                                                                                                                                                                                                                                                                       

                                                              of  controlled  substances  and  further  for  the  purpose  of  

                                                              identification.  



                                                                                                                                                                                              - 4 -                                                                                                                                                                                    2589
  


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

The search warrant application did not include any direct reference to this provision.                                                                                                                     



Nor   did the search warrant application                                                        explain   why   this additional grant of search                                          



authority was being requested in this case, or why it might be justified.                                                                       



                               The search warrant for the premises was granted around 3:00 a.m., and the                                                                                          



police were authorized to conduct the search "immediately" (rather than waiting until                                                                                                         

7:00  a.m.3                                                                                                                                                                                   

                        ).      Once the warrant was issued, the team of law enforcement officers, who  



                                                                                                                                                                                                           

were already at Young's residence, served the warrant and began to search the residence.  



                                                                                                                                                                                         

                               A short time after the warrant had been served and the search had begun,  



                                                                                                                                                                                        

Osborne  knocked  at  the  front  door  of  Young's  residence.                                                                                    A  plainclothes  officer  



                                                                                                                                                                                   

answered the door, and Osborne asked if "Bill" was home.   Osborne was detained,  



                                                                                                                                                                                                    

brought inside the residence and questioned, and ultimately searched.  The search of  



                                                                                                                                                                                               

Osborne's person revealed $8,390 in cash, 3.5 grams of methamphetamine, and a cell  



                                                                                                                                                                                                 

phone with text messages between Osborne and Young.  Based on this evidence, the  



                                                                                                                                                                                        

police obtained a search warrant to search Osborne's house.  As a result of that search,  



                                                                                                                                                                               

the police seized drugs, money, and weapons.  Osborne was later indicted for various  



                                                                   

criminal offenses, including misconduct involving a controlled substance, misconduct  



                                                                                    4  

                                                          

involving weapons, and conspiracy. 



                                                                                                                                                                                    

                               Prior to trial, Osborne's attorney filed a motion to suppress the evidence  



                                                                                                                                                                                 

found on Osborne's person and in his house, asserting that the initial search of Osborne's  



                                                                                                                                                                                           

person was unlawful and that the later search of Osborne's house was fruits of that initial  



        3       See Alaska Criminal Rule 37(a)(3)(C).  



        4       See  former AS.11.71.030(a)(1) (2013) (third-degree misconduct involving a controlled                                                                             



substance); AS 11.61.195(a)(1) (second-degree misconduct with weapons); AS 11.61.200- 

(a)(1) (third-degree misconduct involving weapons); former AS 11.71.030(a)(1) (2013) and  

                                                               

AS  11.31.120  (conspiracy  to  commit  third-degree  misconduct  involving  a  controlled  

substance).  



                                                                                               -  5 -                                                                                      2589
  


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

unlawful search. The defense attorney argued, in particular, that the search of Osborne's  

                                                                                                                     



person could not be justified under the "search any person" provision of the warrant  

                                                                                                                         



because the search warrant application failed to establish that there was probable cause  

                                                                                                                            



to grant the police such a broad grant of search authority.  

                                                                                          



                    In response, the State argued that the search warrant affidavit established  

                                                                                                                    



probable cause to believe that illegal drugs were being sold out of the residence and that,  

                                                                                                                              



by logical inference, there was probable cause to believe that any and all persons who  

                                                                             



came onto the premises while the police were executing the warrant would also be  

                                                                                                                                 



involved in drug sales or purchases.  The State also argued, in the alternative, that the  

                                                                                                                                



police had independent grounds to detain, arrest, and search Osborne, even if the "search  

                                                                                                                          



any person" warrant provision was not valid.  

                                                                        



                    Following an evidentiary hearing, the superior court denied Osborne's  

                                                                                                                     



motion to suppress.  Citing this Court's prior decision in Davis, the superior court ruled  

                                                                                                                             



that the search warrant application established probable cause to search any and all  

                                                                                                                                 



persons who might arrive on the premises during the execution of the search.  The court  

                                                                                                                             



also ruled that the search of Osborne's person fell within the "search any person" warrant  

                                                                                                                         



provision  because  Osborne  arrived  on  the  premises  (i.e.,  at  the  front  door  of  the  

                                                                                                                               



residence) while the search of the premises was still ongoing. The court did not address  

                                                                                                                          



the State's alternative arguments for upholding the search.  

                                                                                           



                    Osbornewas later convicted, following ajury trial, ofmisconductinvolving  

                                                                                                                       



a controlled substance, misconduct involving weapons, and conspiracy.  This appeal  

                                                                                                                           



followed.  



                                                              -  6 -                                                        2589
  


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

             The foundation that the law requires before a judicial officer can grant the                                                               

             police the authority to search any and all persons arriving on a premises                                                      

             during the execution of a search warrant                          



                          This   Court   first   addressed   the   validity   of a                                   search-all-persons   warrant  



                                                                                                           5  

provision more than twenty years ago in                                         Betts v. State            .                                             

                                                                                                               However, unlike the provision  



                                                                                                                                                               

in the current case, the provision in Betts  did not extend to "any person" who might  



                                                                                                                                                                 

arrive on the premises during the execution of the search. Instead, the provision in Betts  



                                                                                                                                                                     

was limited to individuals who were already present in the residence at the time the  



                                                     6  

                                                          

search warrant was served. 



                                                                                                                                                                       

                          The search warrant in Betts was issued based, in part, on a report from an  



                                                                                                                                                                    

eyewitness who had been in the residence approximately an hour before the warrant was  



                  7 

obtained.                                                                        

                      The eyewitness reported that she saw cocaine and marijuana in plain view,  



                                                                                                                                                              8  

                                                                                                                                                                   

and that various individuals were "sitting around snorting powder off a dish."                                                                                     The  



                                                                                                                                                9  

                                                                                                                                                          

eyewitness also reported that one of the individuals tried to sell her drugs.                                                                       In addition,  



                                                                                                                                                                  

the search warrant application asserted that the owners of the residence were known drug  



                                                                                                                                                                             

dealers, that the residence had "lots of traffic coming and going," and that another  



                                                                                                                                                                        10  

                                                                                                                                                                             

vehicle had just approached the residence when the original call was made to the police. 



       5     Betts v. State, 920 P.2d 763 (Alaska App. 1996).
  



       6     Id. at 764.
  



       7     Id. at 765-766.
  



       8     Id. at 765.
  



       9     Id.
  



       10    Id. 
 



                                                                                 -  7 -                                                                         2589
  


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

                          The   superior   court   ruled   that   the   information   in   the   search   warrant  



application established "that the illegal activity at the residence was ongoing and overt,"                                                                  



and that the police "were likely to find all persons in the residence participating in the                                                                          



                                                                              11  

                                                                                                                                                              

sale and use of cocaine and marijuana."                                            The court also noted that granting the police  



                                                                                                                                                                      

the authority to search the individuals they found inside the residence would assist or  



                                                                                                                                                                 

facilitate the search of the residence itself, since it would prevent those individuals from  



                                                                                                                             12  

                                                                                                                                                                    

trying to frustrate the search by hiding drugs on their persons.                                                                  We agreed with the  



                                                                                                                                                             

superior court's analysis, and we appended the relevant portions of the superior court's  



                                                                   

ruling to our decision on appeal.  



                                                                                                                                                                       13  

                                                                                                                                                                            

                          A year after we issued Betts, we issued our decision in Davis v. State . 



                                                                                                                                                       

Davis dealt with a warrant that authorized a search of a "crack house" - i.e., a residence  



                                                                                                                                                                   

which (as we described in Davis) was "a commercial establishment devoted to the  



                                                           14  

                                                                                                                                                                       

distribution of crack cocaine."                                 The search warrant in Davis, like the search warrant in  



                                                                                                                                                                  

the present case, authorized the police to search "any person on the premises at the time  



                                                                     15  

                                                                                                                                                         

of service of the search warrant."                                         In Davis, we construed this language broadly,  



                                                                                                                                                                    

interpreting it to include not just the persons present when the warrant was served, but  



                                                                                                                                                        

also any and all persons who might arrive on the premises during the ensuing execution  



                                

of the warrant.  



                                                                                                                                                             

                          (In  Osborne's  case,   the   superior  court  adopted  a  similarly  broad  



                                                                                                                                                                    

interpretation of the "search any person" provision of the warrant.  Osborne does not  



       11    Id.  at 767 (internal citations omitted).
                                 



       12    Id. at 768.
  



       13    Davis v. State , 938 P.2d 1076 (Alaska App. 1997).  



       14    Id. at 1078.  



       15    Id.  



                                                                                -  8 -                                                                         2589
  


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

argue that the court should have construed the provision more narrowly, or that we                                                                                 



should revisit this aspect of our decision in                                             Davis .)   



                            But   in   Davis,  the   defendants   did   not   argue   that   the   search   warrant  



application failed to establish probable cause for the "search all persons" provision of the                                                                                  



warrant.   Instead, the defendants asserted that "search all persons" provisions were                                                                                       per  



se  unconstitutional - that such provisions constituted "general warrants," and that they                                                                                  



                                                                                                    16                                                                          17  

were therefore barred by the Fourth Amendment.                                                                                                                      

                                                                                                        We rejected this argument in Davis, 



                                                                                                                                                                             

and our decision of this point simply mirrors recognized Fourth Amendment law.  As  



                                                                                                                                                                            

Professor LaFave notes in his treatise on the law of search and seizure, a warrant that  



                                                                                                                                                                         

authorizes the police to search all persons found within a specifically described place  



                                                                                                                                                                                

does not lack specificity "in the sense that the executing officer will be unable readily to  



                                                                                     18  

                                                                   

determine to whom the warrant applies." 



                                                                                                                                                                    

                            Thereal question, Professor LaFaveexplains,iswhether thesearch warrant  



                                                                                                                                                                             

application establishes probable cause for a search of this breadth - "whether the  



                                                                                                                                                                         

information supplied [to] the magistrate supports the conclusion that it is probable [that]  



                                                                                                                                                                   

anyone in the described place when the warrant is executed is involved in the criminal  



                                                                                                                                     19  

                                                                                                                                                                              

activity in such a way as to have evidence thereof on his person."                                                                       If the evidence in the  



       16     Id. at 1077. 
 



       17     Id. at 1077-78 (citing Betts, 920 P.2d at 764).
  



       18     2 Wayne R. LaFave, Search and Seizure   4.5(e), at 759-60 (5th ed. 2012) (footnotes
  



omitted).  



       19     Id.  



                                                                                     -  9 -                                                                             2589
  


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

search warrant          application supports suchaconclusion,                         "thenasearch-all-persons-present     



                                                20  

provision is unobjectionable."                      



                                                                                                                                

                     Although the defendants in Davis  did not directly argue that the search  



                                                                                                                        

warrant application failed to support the "search all persons" provision of the warrant,  



                                                                                                                                        

we did note in Davis that there is a distinction between (1) the probable cause needed to  



                                                                                                                                       

support a search of all persons present when the police arrive to serve a warrant, as  



                                                                                                                                    

opposed to (2) the probable cause needed to support a search of any and all persons who  



                                                                                                                              

might later arrive on the premises while the police are conducting the search.  



                                                                                                                          

                     Wedid not address this distinctionfurther, becausewefound thedistinction  



                                                                            

to be inconsequential under the facts of Davis :  



                                                                                                   

                                For  some  purposes,  one  might  need  to  distinguish  

                                                                                                         

                     between the act of "serving" a search warrant (an act that  

                                                                                            

                     occurs at a particular instant) and the act of "executing" the  

                                                                                                           

                     warrant (that is, the ensuing search of the premises, which  

                                                                                                               

                     might take hours).                However, we do not believe that this  

                                                                                                           

                     distinction is useful for construing the scope of the search  

                                                                                    

                     authorized by the warrant in this case.  



                                                                                                       

                                In  the  present  case,  the  magistrate  found  probable  

                                                                                                              

                     cause to believe that the residence at 1550 Old Pioneer Way  

                                                                                                 

                     was  being  used  as  a  "crack  house"  -  a  commercial  

                                                                                                                       

                     establishment devoted to the distribution of crack cocaine.  

                                                                                                                   

                     The magistrate also found that a person's [mere] presence at  

                                                                                                               

                     the house established probable cause to search them[, and  

                                                                             

                     the] appellants do not dispute this finding.  

  

                                                                                                          

                                [Because] the probable cause for the search of Davis's  

                                                                                                                   

                     and Fox's persons depended on their voluntary presence at  

                                                                                                                

                     the site of an ongoing criminal enterprise[, we] do not see  

                                                                                                               

                     how  this  probable  cause  was  diminished  by  the  fact  that  



     20    Id.  



                                                                -  10 -                                                          2589
  


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

                       Davis and Fox arrived after the police, but while the police                                



                                                                             21  

                       were still executing the warrant.                          



                                                                                                                                     

                       Thus, in Davis, we did not have to address the different types of probable  



                                                                                                                                                     

cause that are necessary to support these two different types of "search all persons"  



                     

provisions.  



                                                                                                                                               

                       In the present case, however, Osborne does challenge the sufficiency of the  



                                                                                                                                                

 search warrant application to support a warrant provision that authorized the police to  



                                                                                                                                           

 search any and all persons who might arrive at the premises while the police were  



                                                                                                                                              

conducting the search.  We must therefore directly address the type of showing that the  



                                                                                

police must make to justify such a provision.  



                                                                                                                                         

                       Because  of  the  important  Fourth  Amendment  rights  at  stake,  other  



                                                                                                                                          

jurisdictions have established specific criteria for assessing the validity of such broad  



                                                                                                                                               

grants of search authority.  We agree in general with the following formulation used by  



                                                            

the courts of Iowa and New York:  



                                                                                                                       

                                  [The  search  warrant]  application  must  set  out  the  

                                                                                                                      

                       character of the premises, including its location, size, and  

                                                                                                               

                       public or private character; the nature of the illegal conduct  

                                                                                                                         

                       at issue; the number and behavior of persons expected to be  

                                                                                                                      

                       present when  the warrant is to  be executed; whether any  

                                                                                                                     

                       persons unconnected with the alleged illegal activity have  

                                                                                                                          

                       been seen on the premises; and the precise area and time in  

                                                                                                                           

                       which the alleged activity is to take place.   ...   Taken as a  

                                                                                                                          

                       whole,  the  facts  presented  to  the  judge  must  present  a  

                                                                                                                        

                       substantial  probability  that  the  authorized  invasions  of  

                                                                                                                  

                       privacy will be justified by the discovery of the items sought  



                                                                                                                   22  

                                                                                                    

                       from all persons present when the warrant is executed. 



      21   Davis, 938 P.2d at 1078.  



      22    State v. Thomas, 540 N.W.2d 658, 664 (Iowa 1995) (citing People v. Nieves                                                      , 330  



                                                                                                                             (continued...)  



                                                                     -  11 -                                                             2589
  


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

As various courts and commentators have noted, this type of focused inquiry serves the                                                                                                   



critical purpose of ensuring that the judicial officer issuing the warrant does not grant the                                                                                            



police the authority to search all persons who may be present, or who may later arrive                                                                                  



on the premises, without "carefully weigh[ing]" the risk that "an innocent person may       

be swept up in a dragnet and searched."                                                 23  



                                                                                                                                                                                   

                              This is not to say that a search-any-person warrant provision could never  



                                                                                                                                                                                   

be supported by a less detailed showing.  But when the police seek this type of broad  



                                                                                                                                                                                     

search authority in their search warrant application, the application must, at a bare  



                                                                                                                                                                                           

minimum, demonstrate some acknowledgment that they are asking the magistrate to  



                                                                                                                                                                                         

authorize additional intrusions into the privacy rights of unknown persons.  And the  



                                                                                                                                                                          

application must then provide sufficient information to allow the magistrate to determine  



                                                                                                                                                                       

whether there is probable cause to support such a broad grant of authority.  



                                                                                                                                                                                       

                              For instance, in William E. Ringel's Searches & Seizures, Arrests and  



                                                                                                                                                                                           

Confessions,  5.17 (2d ed. November 2017 Update), the applicable law is described as  



                    

follows:  



                                                                                                                                                           

                              The  warrant  must  carefully  describe  the  character  of  the  

                                                                                                                                                        

                             premises and the nature of the illegal activity going on; also,  

                                                                                                                                                           

                              the magistrate must be told how many people frequent the  

                                                                                                                                                             

                             place, when they come and leave, and what they appear to be  

                                                                                                                                                        

                              doing.            Another  important  factor  is  whether  anyone  who  

                                                                                                                                                         

                              seems to have no connection with the illegal conduct is ever  

                                                        

                              seen there.  



                                                                                                                                                                                     

                              The search warrant application in the present case failed to meet these basic  



                                                                                                                                                                                         

requirements.  The application did not flag the "search any person" provision, nor did  



       22      (...continued)  



N.E.2d 26 (N.Y. 1975)).  



       23      Commonwealth v. Smith, 348 N.E.2d 101, 107 (Mass. 1976).  



                                                                                         -  12 -                                                                                   2589
  


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

the application explain why such a provision was being requested.                                                                                                              (As we explained      



earlier, this provision was buried in a boilerplate list of items related to drug sales.)                                                                                                                              



                                  Nor is Osborne's case like                                             Davis, where the search warrant application                                             



established that the "residence" involved was actually a crack house -                                                                                                                 i.e., a premises      



functioning  solely  as a commercial establishment for the illegal sale and consumption of                                                                                                                               



drugs, thus providing reason to believe that anyone present was engaged in illegal                                                                                                                           



activity.  



                                  Here, the premises was a stand-alone house in a residential neighborhood.                                                                              



Although  the  house  was  apparently  owned  by  a  drug  dealer,  the  search  warrant  

                                                                                                                                                                                                         



application contained no reports of other individuals coming onto the premises to engage                                                                                                                    



                                                                                       24  

in drug sales or drug consumption.                                                                                                                                                                                   

                                                                                              Nor was there any indication that the residence had  



previously been under police surveillance, or that there had been reports of suspicious  



                                                                                  

traffic coming in and out of the residence.  



                                                                                                                                                                

                                  The warrant application also did not address the possibility that innocent  



                                                                                                                                                                                                                        

persons might come to the residence and be swept up in the "dragnet" of the "search all  



                                                                                                                                                                                                                       

persons" warrant provision. Although the application noted that Young was alone in the  



                                                                                                                                                                                                          

house when he was arrested, the application provided no other information as to whether  



                                  

Young lived alone, and (if so) whether it was reasonably foreseeable that he would be  



                                                                                                                                                                                                                        25  

                                                                                                                                                                                                                              

visited by family members or friends who had no connection to his illegal activities. 



         24      See Betts, 920 P.2d at 764-65.  



         25      See Marks v. Clarke, 102 F.3d 1012, 1029 (9th Cir. 1997) (noting that a "search all  



persons present" warrant might be appropriate for a structure that was dedicated exclusively  

                                                                                                                                                                               

to criminal activity - "for example, a building or apartment used as a crack house, a barn  

                                                                                                                                                                        

used as a methamphetamine lab, or a warehouse used exclusively as a storage place for  

 [illegal] arms" - but that such a provision would not be appropriate "with respect to a raid  

                                                                                                                   

on  any  family  home  where  innocent  family  members  or  friends  might  be  residing  or  



                                                                                                        -  13 -                                                                                                2589
  


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

                            The warrant application also did not provide any estimate of how long the                                                                        



search of the residence was expected to take, nor did it indicate whether the search would                                                                            



be in progress during normal daytime hours, when innocent visitors such as mail carriers                                                                            



                                                                                                                            26  

                                                                                                                                                            

or delivery persons might reasonably be expected to arrive.                                                                       Nor did the application  



                                                                                                                                                                           

make any effort to limit the scope of the "search all persons" warrant provision so that  



                                                                                  27  

                                                                                        

it would exclude such innocent visitors. 



                                                                                                                                                                      

                            In his dissent, Senior Judge Coats ignores these deficiencies in the search  



                                                                                                                                                                               

warrant application. Rather than requiring the police to affirmatively justify this type of  



                                                                                                                                                               

broad search authority when they apply for a warrant, Judge Coats argues that "common  



                                                                                                                                         

sense" supports the "search all persons" provision of the warrant.  



                                                                                                                                                              

                            We agree that search warrant applications should be read in a "common  



                                                                                                                                                                              

sense and realistic" manner, and that marginal cases should be resolved in favor of  



                                                28  

                                                                                                                                                                     

upholding the warrant.                                But this does not mean that reviewing courts should ignore  



                                                                                                                                                                

obvious deficiencies in a search warrant application.  Nor does it mean that appellate  



                                                                                                                                                                

courts  are  allowed  to  uphold  search  warrants  by  speculating  about  the  potential  



       25     (...continued)  



visiting").  



       26     See, e.g., State v. Reid, 872 P.2d 416, 419 (Or. 1994) (noting that persons reasonably  



                                                                                              

expected to be approaching the front door of  a private residence for innocent purposes  

                                                                            

include mail carriers, package deliverypersons, volunteers soliciting donations for charitable  

purposes, and neighbors seeking to borrow sugar).  



       27     See, e.g., State v. Allard, 674 A.2d 921, 922-23 (Me. 1996) (upholding a search "all  

                                 

persons" warrant provision where the magistrate judge made a specific exception for "people  

who may arrive upon or be upon said premises in a regular course of business, (i.e. postman,  

                                                                                                                                      

delivery people)").  



       28  

                                                                                                                                                                            

              Rosa v. State, 633 P.2d 1027, 1030 (Alaska App. 1981); see also State v. Koen, 152  

P.3d 1148, 1151 (Alaska 2007).  



                                                                                   -  14 -                                                                             2589
  


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

significanceofinformation thatwas never directly provided to the judicial officer issuing  

                                                                                                                          



the warrant.  

                    



                    Here,  a  "common  sense  and  realistic"  reading  of  the  search  warrant  

                                                                                                                        



application suggests one of two possibilities:   either the officer who applied for the  

                                                                                                                                



warrant forgot that Attachment A's boilerplate list of "items" to be searched included a  

                                                                                                                                   



"searchall persons"warrant provision, or (alternatively) theofficer erroneously believed  

                                                                                                                        



that such a provision was routine in all drug cases - and that if there was probable cause  

                                                                                                                             



to search the house, then there was automatically probable cause to search any and all  

                                                                                                                                 



persons who might come to the house while the police were there.  

                                                                                                        



                    Judge Coats's dissent ignores the indirect manner in which  the police  

                                                                                                                           



requested the "search all persons" provision. Instead, the dissent focuses on "facts" that  

                                                                                                                               



were not part of the search warrant application.  

                                                                           



                    For example, the dissent asserts that the police had "reliable information  

                                                                                                                   



that Young was a high-end methamphetamine dealer who dealt in large quantities of the  

                                                                                                                                



drug."   But this information was presented at a later evidentiary hearing; it was not  

                                                                                                                                



included in the search warrant application itself.  

                                                                            



                    The dissent also characterizes Young's residence as "basically a fort where  

                                                                                                                            



William Young stored drugs and valuable property that he did not want to put at risk."  

                                                                                                                            



From  this  characterization,  the  dissent  concludes  that  Young  would  treat  "anyone  

                                                                                                                       



approaching the house as a threat," and that therefore Young had probably discontinued  

                                                                                                                 



all delivery of mail and packages to his house - thereby making it less likely that an  

                                                                                                                                 



innocent person would approach the house and be searched for no reason.  

                                                                                                                    



                    But  there  is  nothing  in  the  search  warrant  application  to  support  the  

                                                                                                                               



dissent's assumption that Young had discontinued mail service and commercial delivery  

                                                                                                                         



to his residence.  That is complete speculation.  

                                                                         



                                                              -  15 -                                                       2589
  


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

                     The record also does not support the dissent's characterization of Young's  

                                                                                                                         



residence as a "fort" that no ordinary person would visit or even approach.  

                                                                                                                      



                     It is true that the search warrant application describes Young's elaborate  

                                                                                                         



security system.  But the application does not indicate the extent to which this extensive  

                                                                                                                       



security system would be obvious to a person approaching the house.  We note that the  

                                                                                                                                 



warrant application describes Young's residence as simply "a two-story wood frame  

                                                                                                                             



structure with a loft."  And a photograph of this residence introduced at the evidentiary  

                                                                                                                     



hearing suggests that there was nothing remarkable about the outward appearance of the  

                                                                                                                                 



house.  In fact, the photograph shows a holiday decoration by the front door.  

                                                                                                               



                     The dissent also focuses on the suspicious nature of Osborne's middle-of- 

                                                                                                                     



the-night arrival at Young's house. We agree that the circumstances of Osborne's arrival  

                                                                                                                            



at the residence were suspicious.  But the issue presented in this appeal is not whether  



the  police  had  reason  to  stop  and  search  Osborne  based  on  the  particularized  

                                                                                                               



circumstances of his arrival and the totality of the information known to the officers at  

                                                                                                                                   



the  time.        That  was  the  State's  alternative  argument  to  uphold  the  search  -  the  

                                                                                                                                



alternative argument that the superior court never reached.  

                                                                                            



                     Rather, the question before us in this appeal is whether there was probable  

                                                                                                                        



cause to support a warrant provision authorizing the police to search any and all persons  

                                                                                                                          



who arrived at the house while the police were conducting their search. For purposes of  

                                                                                                                                   



answering this question, the particular circumstances of Osborne's arrival at the house  

                                                                                                                             



are immaterial.  Instead, the only material information - the only information we can  

                                                                                          



lawfully consider - is the information contained in the search warrant application itself.  

                                                                                                                             



                     Lastly, thedissent suggests that our concerns about the "search all persons"  

                                                                                                                         



provisionofthe warrant are overstated. The dissent minimizestheconstitutional dangers  

                                                                                                                                       



of such warrants by asserting that we can trust the police to do the right thing.  The  

                                                                                                                               



dissent declares that we can simply assume that the "it seems unlikely that the police  

                                                                                                                            



                                                              -  16 -                                                        2589
  


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

would search a mail carrier or a Girl Scout," and that we should "credit the police with                                                                                                                            



having enough sense to not search someone who knocked on the door unless there were                                                                                                                                



suspicious circumstances."   



                                  Werejecttheseargumentsbecausetheyarefundamentally inconsistent                                                                                                                   with  



the principles behind the Fourth Amendment's warrant requirement.                                                                                                                   



                                  As a general matter, the police do not need a warrant to conduct a felony     



                                                                                                                                                   29  

arrest and to search the arrestee for evidence of the crime.                                                                                                                                      

                                                                                                                                                          If the court had determined  



                                                                                                                                                                                                              

that the police had probable cause to arrest Osborne for such an offense, this appeal  



                                                                

would not be in front of us.  



                                                                                                                                                                                                                        

                                   This appeal is before us because the court upheld the search based on the  



                                                                                                                                                                                                                       

"search all persons" provision of the warrant - a provision that ostensibly gave the  



                                                                                                                                                                                                                 

police the authority to search any and all persons who might arrive at the house while  



                                                                                                                                                                                          

they were conducting their search, even in the absence of affirmative individualized  



                            

suspicion.  



                                                                                                                                                                                                           

                                  Under our state and federal constitutions, we do not give police officers  



                                                                                                                               30  

                                                                                                        

free-ranging authority to conduct such searches.                                                                                                                                                              

                                                                                                                                       Instead, this type of broad search  



                                                                                                                                                                                                           

authority can only be approved in advance by a judicial officer through the warrant  



                                                                                                                                                                                                       

process.   Moreover, the judicial officer must not grant such blanket search authority  



                                                                                                                                                                                                             

unless the search warrant application establishes that there is probable cause to believe  



                                                                                                                                                                                                                      

that any and all persons arriving on the premises during the specified period of time will  



         29       See 2 Wayne R. LaFave, Search and Seizure   4.9(c), at 896-97 (5th ed. 2012).   



         30      U.S. Const. amend. IV, XIV; Alaska Const. art. 1,  14.  



                                                                                                        -  17 -                                                                                                 2589
  


----------------------- Page 18-----------------------

probably be participants in the criminal activity being investigated and will probably be                                                                



                                                                                                           31  

carrying evidence of that criminal activity on their persons.                                                    



                                                                                                                                                  

                        Because we conclude that there was insufficient information in the search  



                                                                                                                                              

warrant application in this case to justify such a conclusion, we reverse the superior  



                                                                                           

court's ruling on Osborne's suppression motion.  



                                                                                                                                         

                        However,  this  reversal  does  not  resolve  this  case.                                          As  we  previously  



                                                                                                                                                 

explained, the State argued in the alternative that the police had independent, lawful  



                                                                                                                                         

reasons  to  detain  and  search  Osborne,  based  on  the  particularized  suspicious  



                                                                                                                                                       

circumstances  of  Osborne's  arrival  at  Young's  residence  and  the  totality  of  the  



                                                                                                                                                       

information known to the police at the time of the search.  The superior court did not  



                                                                                                                                                    

address this alternativeargument. Accordingly, weremandthis case to the superior court  



                                                                                                                                           

so that the court can consider and rule on the State's alternative arguments for upholding  



                                                                                                                                                

the  lawfulness  of  the  search.                         We  express  no  opinion  on  the  merits  of  the  State's  



                     

alternative argument.  



            Conclusion  



                        The  decision  of  the  superior  court  is  REVERSED,  and  this  case  is  

                                                                                                                                                         



remanded to the superior court for further proceedings consistent with this opinion.  

                                                                                                                                         



      31    Betts, 920 P.2d at 764; 2 Wayne R. LaFave, Search and Seizure                                                     4.5(e), at 759-60  



(5th ed. 2012).  



                                                                         -  18 -                                                                   2589
  


----------------------- Page 19-----------------------

Senior Judge COATS, dissenting.                  



                            This   case   begins   with   the   police   obtaining   a   warrant   to   search   the  



Northwood Drive residence for WilliamYoung. The                                                             police had reliable information that  



Young was a high-end methamphetamine dealer who dealt in large quantities of the drug                                                                                     

and that he was present at the Northwood Drive residence.                                                                1  



                                                                                                                                                                           

                            The police served the warrant just after midnight on February 9, 2013. The  



                                                                                                                                                       2  

                                                                                                                                                                      

police found Young hiding in the residence.   No one else was present.                                                                                      The police  



                                                                                                                                                                                     

searched Young incident to the arrest.  They found a large amount of cash in his pocket.  



                                                                                                                                                                             

And they found a pipe which was located near Young which field-tested positive for  



methamphetamine.  



                                                                                                                                                                            

                            In a protective sweep of the house, the police discovered "numerous flat  



                                                                                                                                                                        

screen  televisions  and  items  of  value.                                            Linked  to  the  flat  screen  televisions  were  



                                                                                                                                                                   

numerous surveillance cameras." Every exterior door to the house was a barred security  



                                                                                                                                                              

door.  The exterior of the house was "surrounded by motion detecting flood lights."  



       1      The warrant for the arrest of William Young was issued by the Fairbanks district court                            



a short time before his arrest and almost certainly included this information.                                                                                 But even  

without  this  earlier   warrant,  we  can  infer   that,  since  this  earlier  warrant  authorized  the  

police to break into his residence at midnight, Young was a significant drug dealer.  To the  

extent  there  was  any doubt                             about  this,  the  amount  of   security at                                  the  residence  and   the  

valuable propertystored within the residence supported the inference that Young was a major   

drug dealer and that this residence was a secured warehouse for a major drug operation.  



       2      It is reasonable to infer that no one besides Young was in the residence when the  

                                                                                                                                                                             

police entered and arrested him just after midnight.   If someone had been present in the  

                                                                                                                                                                             

residence, it would have been an important omission for the police to not reveal this to the  

magistrate when they were obtaining the second warrant to search the residence.  Given the  

                                                                                                                                                                

level of security at the residence and the large amount of valuable property stored in the  

                                                                                                                                                          

residence, it was reasonable to infer that anyone else "on the premises" would be connected  

to the drug operation.  



                                                                                   -  19 -                                                                             2589
  


----------------------- Page 20-----------------------

                                            In the application for the warrant, the police indicated that individuals who                                                                                                                                                    



deal   with   drugs   usually   have   large   quantities   of   cash   and   unreported   income.  



Consequently   drug   dealers   go   to   great   lengths,   such   as   the   police   observed   in   the  



Northwood Drive residence, to protect their illegal business.                                                                                                                                          The many valuable items                                           



which the police observed were also consistent with the illegal business.                                                                                                                                      



                                            It   appears   to   me   that   the   information   presented   to   the   issuing   judge  



established that the Northwood                                                                              residence   was the location                                                                  of a major                             drug   selling  



operation.  



                                            The issuing judge issued the warrant at 3:11 a.m. and allowed the search  

                                                                                                                                                                                               



to take place "immediately."                                                                       The magistrate authorized the police to search "[a]ny                                                                                                             



person on the premises at the time of service of the search warrant, for purposes of                                                                                                                                                                                               



checking for the possession, sale or distribution of controlled substances and further for  

                                                                                                                                                                                                                                                                                 

the purposes of identification."3  

                                                    



                                                                                                                                                                                                                                                                               

                                            During the search, at approximately 3:30 a.m., Osborne arrived at the  



                                                                                                                                                                                                                                                                                 

Northwood Drive residence, knocked on the door, and explained that he was looking for  



                                                                                                                                                                                                                                                                               

"Bill."   It appears to me that Osborne was clearly covered by the warrant under the  



                                                                                                                                                                                                                                                                

circumstances and that the police were authorized to search Osborne under the warrant.  



           3          The opinion of the court suggests that the police should have focused more on the                                                                                                                   



possibility that a confederate might show up during the search.                                                                                                                                      But that possibility was not   

the focus of the warrant. So it is understandable that the police would not go into great detail     

when they were requesting authority to search "all persons on the premises." I believe under                                                                                                                                                 

the rule of law that requires us to interpret warrants generously, we should assume that the  

police knew what they were asking for when they put this request in the warrant.                                                                                                                                                                           Similarly,  

we are to assume that the district court judge knew what was in the warrant when he issued  

it.  With the benefit of hindsight, briefing, and time, an appellate court can easily think of                                                                                                                                                                    

how   a   warrant  could  have  been  better  drafted.    But  the  law  requires  us  to  give   "great  

deference" to a magistrate's decision to issue a warrant.  



                                                                                                                                    - 20 -                                                                                                                              2589
  


----------------------- Page 21-----------------------

                                         As I understand the opinion of the Court, the Court is concerned that the                                                                                                                                           



warrant might be overbroad - that the warrant would authorize the police to search                                                                                                                                                                 



completely innocent people who had no connection with the drug operation. But I think                                                                                                                                                                



that this concern is limited in this case. First, when the police arrested Young, it was just                                                                                                                                                               



after midnight and no one was present in the house.                                                                                                          The police would have secured the                                                               



house while they were obtaining the warrant.                                                                                                     And, from the police observations, it                                                                            



appears that anyone who had spent any time in the house would recognize that this was                                                                                                                                                                      



not an ordinary residence.                                                         Between the extraordinary surveillance and the numerous                                                                                              



valuable items of property that were present in the house it would have been apparent                                                                                                                                       



that this house was the scene of illegal activity.                                                                     



                                         But   this   residence   did   not   appear   to   be   the   usual   retail  drug-selling  



                                                                                                                                                                                            4  

                                                                                                                                                                                                                                                     

operation which is described in the cases the Court relied upon.                                                                                                                                  In those kinds of cases,  



                                                                                                                                                                                                                                                           

a regular stream of retail customers is going into the house at all hours of the day and  



                                                                                                                                                                                                                                                                

night  to  obtain  drugs.                                                   And  that  is  the  kind  of  evidence  that  the  police  present  to  



                                                                                                                                                                                                                                                             

magistrates to obtain a search warrant for that kind of a retail drug operation.  If the  



                                                                                                                                                                                                                                                                

police get a warrant, then they go into the residence.  And it would be reasonable to  



                                                                                                                                                                                                                                                             

expect that the stream of people attempting to buy drugs would continue if the police did  



                                                                                                                                             

nothing to announce their presence within the residence.  



                                                                                                                                                                                                                                                              

                                         But the case before us is an entirely different kind of case.  In this case the  



                                                                                                                                                                                                                                             

residence was basically a fort where William Young stored drugs and valuable property  



                                                                                                                                                                                                                                                            

that he did not want to put at risk.  Unlike the cases cited in the Court's opinion, in this  



                                                                                                                                                                                                                                                  

case the police had already been inside the residence - to arrest Young - before  



                                                                                                                                                                                                                                           

applying for the second warrant. The evidence the police found supported the inference  



          4         See, e.g.,  Commonwealth v. Smith, 348 N.E.2d 101, 107 (Mass. 1976), cert. denied,  



429 U.S. 944 (1976).  



                                                                                                                           - 21 -                                                                                                                    2589
  


----------------------- Page 22-----------------------

that Young was protecting his property, and would not want anyone to approach this  

                                                                                                                 



residence.   Anyone approaching the residence and knocking on the door would be  

                                                                                                                                  



someone involved in the wholesale operation or perhaps obtaining drugs to sell as part  

                                                                                                                                



of a retail operation, rather than a retail customer.  

                                                              



                     To protect his drug operation, Young would have realized that anyone  

                                                                                                                          



approaching the house might see something suspicious and thus, he would have to treat  

                                                                                                                               



anyone approaching the house as a threat.  He would probably not have had residential  

                                                                                                                      



mail or package delivery for that reason. Therefore it does not appear that there was any  

                                                                                                                                



reasonable risk of arresting family members who were not involved in the drug trade or  

                                                                                                                                   



other innocent bystanders.  In particular, it seems unlikely that a mail carrier, a UPS  

                                                                                                                               



driver,  or  any  other  innocent  person  would  be  approaching  the  house,  much  less  

                                                                                                                               



knocking on the door. The fact that the search was initiated a little after 3:00 a.m. would  

                                                                                                                            



also limit the risk of an innocent bystander being searched.  It therefore seems unlikely  

                                                                                                                         



that anyone not involved in the drug operation would be approaching this house.  

                                                                                                                   



                     In addition, in the unlikely event that someone did approach the house and  

                                                                                                                                



knock on the door, I think we can credit the police with having enough sense to not  

                                                                                                                                



search someone who knocked on the door unless there were suspicious circumstances.  

                                                                                                                                       



Finally, it seems unlikely that the police would search a mail carrier or a Girl Scout.  On  

                                                                                                                                 



the other hand, someone knocking at the door at 3:30 a.m. and asking for the drug dealer  

                                                                                                                             



the police had just arrested would be "on the premises" and covered by the warrant.  

                                                                                                                                       



Davis v. State, 938 P.2d 1076, 1078-79 (Alaska App. 1997) (people knocking on the  

                                                                                                                                 



door of a drug house which is being searched by the police are considered to be "on the  

                                                                                                                                 



premises" for purposes of the search warrant).  

                                                          



                     In State v. Koen, 152 P.3d 1148, 1151 (Alaska 2007), the Alaska Supreme  

                                                                                                                        



Court  directed  courts  reviewing  the  issuance  of  a  search  warrant  to  give  "great  

                                                                                                                           



deference" to a magistrate's decision to issue a search warrant:  

                                                                                     



                                                              - 22 -                                                         2589
  


----------------------- Page 23-----------------------

                    [In  determining  whether  there  is  probable  cause  for  a  

                                                                                                             

                    magistrate's decision to issue a search warrant] we begin by  

                                                                                                            

                    recognizing  that  magistrates  have  broad  latitude  to  draw  

                                                                                                       

                    reasonable inferences from the evidence placed before them.  

                                                                                                                 

                    Accordingly, we give "great deference" to the magistrate's  

                                                                                             

                    discretion and resolve marginal cases in keeping with the  

                                                                                                           

                    traditional  preference  accorded  to  warrants.                            (Citations  

                                                                                               

                    omitted.)  



                    The supreme court recognized that warrants are issued under emergency  

                                                                                                                   



circumstances and that the police and magistrates operate under different circumstances  

                                                                                                               



than  an  appellate  court  does.                The  court  recognized  that  a  reviewing  court  should  

                                                                                                                         



encourage the use of warrants and police should be able to rely on them. Under the facts  

                                                                                                                             



of this case, I see little risk of abuse based on the circumstances set out in this warrant.  

                                                                                                                       



I accordingly dissent.  

                      



                                                             - 23 -                                                        2589
  

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