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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Koen (02/16/2007) sp-6102
Notice: This opinion is subject to correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail email@example.com. THE SUPREME COURT OF THE STATE OF ALASKA
|STATE OF ALASKA,||)|
|) Supreme Court No. S- 11963|
|) Court of Appeals No. A-8864|
|v.||) Superior Court No. 3HO-04-77CR|
|DAVID KOEN, SR.,||) O P I N I O N|
|Respondent.||) No. 6102 - February 16, 2007|
Petition for Hearing from the Court of Appeals of the State of Alaska, on Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge. Appearances: W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. M rquez, Attorney General, Juneau, for Petitioner. Kathleen Murphy, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for Respondent. Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices. PER CURIAM. I. INTRODUCTION Shortly after receiving reports that David Koen had child pornography stored on computers in his home, an Alaska State Trooper obtained a warrant to search Koens residence. Although the affidavit supporting the warrant listed Koens address as the premises to be searched, it failed to say that the listed address was Koens residence or to explain how the address had been determined. Based on these deficiencies, the superior court declared that the warrant was not supported by probable cause. After the court of appeals affirmed this ruling, we granted the states petition for hearing to decide whether the affidavit established probable cause despite its failure to specify that the premises to be searched were Koens residence. Because we conclude that a common sense reading of the entire affidavit supports a reasonable inference that Koen resided at the listed address, we hold that the affidavit implicitly drew the connection required to establish probable cause. II. FACTS AND PROCEEDINGS On February 27, 2004, at about 4:47 p.m., Homer resident Sara McLeod contacted Alaska State Trooper Ryan Browning at the trooper post in Homer to report that David Koen, a friend of Saras husband, had child pornography on his home computer. McLeod told the trooper that she had been checking her email at Koens residence and had inadvertently seen photos on Koens computer that depicted adolescent children engaged in sexual acts. Less than an hour later, at 5:43 p.m., Trooper Browning spoke by telephone with Saras husband, Michael, who confirmed Saras report. Michael added that he had personally visited Koens residence and had seen Koen looking at child pornography while surfing the web on his computer. According to Michael, Koen had also admitted sexually molesting his daughter and videotaping his actions. Shortly after receiving the McLeods reports, Trooper Browning submitted an affidavit for a search warrant to the district court. His affidavit alleged that he had reason to believe that on the premises known as: 1st residence on left of Greentimbers Drive at Homer, Alaska, there is now being concealed property, namely: Personal Computers and accessories depicting child pornography. In support of this belief, the affidavit summarized the McLeods reports as follows: On 2-27-04 at approximately 1647 hours, I was contacted by Sarah Mcleod at the Homer Trooper Post. S. MCLEOD reported to me that she wanted to report that David KOEN Sr, was in possession of child pornography, and that she had seen photos of adolescent children depicted in sexual acts. MCLEOD stated that she was at KOENs residence checking her e- mail and that she inadvertently found the pornographic photos. S. MCLEOD further stated that KOEN is a friend of her husband, Michael MCLEOD, and that KOEN disclosed to M. MCLEOD that he had been viewing and storing child pornography in his personal computer. On 2-27-04 at approximately 1743 hours, I interviewed M. MCLEOD telephonically. M. MCLEOD stated that approximately a week ago, he was at KOENs residence and saw KOEN surfing the web looking for child pornography and that he had seen KOEN looking a[t] child pornography in KOENs computer. M. MCLEOD further stated that S. MCLEOD was checking her e-mail a few weeks ago and opened a minimized folder on KOENs computer and saw pornographic pictures of children approximately 1 year old engaged i[n] sexual acts. M. MCLEOD further stated that KOEN told him that he had been sexually molesting his 13 [year old] daughter, S.K., and that he had recorded a video of that when she was 8 years old. Magistrate David Landry issued the search warrant at 6:30 p.m., less than an hour after Trooper Browning had finished interviewing Michael McLeod. A search of Koens residence yielded computer evidence similar to that described by the McLeods, which led to an indictment charging Koen with thirty counts of possessing child pornography. Koen moved to suppress the evidence, arguing that Trooper Brownings affidavit failed to establish probable cause, since it neglected to draw any connection between the McLeods report and the premises described in the warrant: No statement as to the address or location of the Koens residence was contained within the four corners of the affidavit. Although the affiant [Trooper Browning] stated that he had reason to believe that the evidence sought was located at the first residence on the left Green Timbers Ave. at Homer, Alaska; this is a conclusionary statement by the officer. The affidavit failed to establish that the first residence was Koens residence. There was no nexus established between Koens residence and the first residence. Superior Court Judge Harold M. Brown granted Koens motion, ruling that Trooper Brownings affidavit failed to establish probable cause because it drew no connection between the place to be searched and the crime allegedly committed by Koen. The court of appeals affirmed, likewise concluding that the affidavit was fatally flawed in failing to connect the targeted premises to Koen; moreover, the court observed, even if one could infer that the trooper . . . believed that the house . . . was Koens residence, the affidavit was flawed in failing to explain the basis for the troopers belief.1 In a dissenting opinion, Chief Judge Coats reached the opposite conclusion, reasoning that a common sense reading of the affidavit as a whole supported a reasonable inference that the Greentimbers Drive address was Koens residence and that Trooper Browning had received the address from the McLeods, who were intimately familiar with the home.2 The state petitioned for hearing, and we granted the petition to consider the validity of the warrant. III. DISCUSSION The narrow issue we address is whether the search warrant lacked probable cause because Trooper Brownings affidavit failed to specify that the residence on Greentimbers Drive the premises the trooper sought permission to search was Koens residence. Questions concerning the existence of probable cause ultimately present issues of law, which we review independently.3 But when such questions involve a magistrates decision to issue a 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 magistrates discretion4 and resolve marginal cases in keeping with the traditional preference accorded to warrants.5 Our inquiry focuses on whether the magistrate had a substantial basis to conclude that probable cause to search existed.6 In applying this standard, we must read the affidavit submitted in support of the search warrant in a commonsense and realistic fashion,7 considering the affidavit in its entirety instead of dissecting it into isolated bits and pieces of information.8 The court of appeals identified two flaws in Trooper Brownings affidavit. First, the court faulted the affidavit because it did not identify the house on Greentimbers Drive as Koens residence [and did not] otherwise explain any connection between the Greentimbers Drive premises and the evidence being sought.9 Second, the court noted that even if the affidavit might imply that Trooper Browning believed the Greentimbers address to be Koens residence, the affidavit nonetheless failed to explain the troopers reason for having this belief.10 In the courts view, the Constitution required Browning to explain this reason so that Magistrate Landry could independently evaluate it.11 In challenging the court of appeals ruling, the state adopts Chief Judge Coatss dissenting view of the case, insisting that, when viewed as a whole and given a common sense meaning, the affidavit sets out enough facts to support a reasonable inference that Trooper Browning believed the Greentimbers Drive address to be Koens residence and that the trooper based his belief on information from the McLeods who unquestionably had first-hand knowledge. Koen responds by insisting that the majority opinion of the court of appeals correctly ruled that the affidavit left Magistrate Landry no evidence to independently evaluate the basis for searching the premises described in the warrant. In our view, the states position is the most persuasive. Trooper Brownings affidavit began by declaring under oath that the trooper had reason to believe that evidence of the crime of possessing child pornography was being concealed on the Greentimbers Drive premises. The affidavit went on to say that the facts tending to establish Trooper Brownings grounds for asserting this belief were as follows. The facts that followed centered entirely on the reports that the McLeods had given the trooper within the two hours immediately preceding his application. As described in the affidavit, the McLeods reports made it clear that Sara and Michael McLeod were both personally acquainted with Koen, knew where he resided, and had been in his home. Both reported having recently seen child pornography on Koens home computer, and each expressly pinpointed the computer as being located in Koens residence. Moreover, neither of the McLeods reported any information remotely suggesting that evidence concerning Koens misconduct might be found anywhere other than in Koens home. Nor did Trooper Brownings affidavit describe any other circumstances indicating that such evidence would be found anywhere besides Koens home. When read together in a common sense manner, Trooper Brownings assertion that he had grounds to believe that evidence would be found on the premises at Greentimbers Drive, coupled with his ensuing description of facts relating exclusively to evidence in Koens home, would fairly support a reasonable inference that Trooper Browning listed the Greentimbers Drive address because he believed that it actually was Koens home. In reaching the opposite conclusion, the court of appeals acknowledged that the trooper might have obtained the address from the McLeods but reasoned that other explanations that might have existed as well: The McLeods might have told Browning that Koen, fearing a police investigation, had moved his computer out of his residence to another location to a business office, or to the house of a friend or relative and that this new hiding place was located on Greentimbers Drive. Or the McLeods might have told Browning that they had stolen Koens computer to prevent him from destroying the pornographic images, and that Koens computer was now located at their residence on Greentimbers Drive. But probable cause is by definition a standard that hinges on probability rather than certainty, so a showing of probable cause need not rule out other explanations that are merely possible. As long as an affidavit gives the magistrate a substantial basis to find that one of several possible outcomes is probable, the affidavit will suffice to establish probable cause. Here, Trooper Brownings affidavit certainly did not rule out the other possible explanations described by the court of appeals. But for purposes of determining whether his affidavit established probable cause the key question is not whether these alternative explanations might have been possible; instead, it is whether their hypothetical possibility precluded the magistrate from drawing an otherwise fair inference that the Greentimbers Drive address probably described the location of Koens home. Given Trooper Brownings sworn belief that evidence could be found at Greentimbers Drive and his ensuing description of recently reported facts that pertained exclusively to evidence seen in Koens home, we think that even though other more speculative explanations might be hypothesized the affidavit provided a strong substantial basis for drawing the common sense inference that the Greentimbers Drive address was in all likelihood where Koen resided.13 We reach a similar conclusion as to the second disputed inference that the court of appeals found lacking: evidence establishing Trooper Brownings basis for asserting that Koen actually lived at the Greentimbers Drive address. Given the recency and first-hand nature of the McLeods reports, the affidavits exclusive focus on information provided in those reports, and the McLeods obvious awareness of where Koen resided, the affidavit as a whole provides a strong basis for inferring that Trooper Browning probably obtained the Greentimbers Drive address directly from the McLeods. Although it would have been preferable to describe the source of this information, courts have recognized that [i]t is not necessary that every assertion of fact be traced to its ultimate source.14 In reaching a contrary conclusion, the court of appeals viewed its prior decision in State v. White15 as controlling precedent.16 But White is inapposite. In contrast to the circumstances at issue here, the disputed affidavit in White provided no factual basis for inferring that evidence of the crime committed in that case might be found at Whites residence; that the address described in the warrant was intended to refer to Whites address; or that the officer applying for the warrant had a reliable basis for determining Whites address.17 The court of appeals in this case also cited several cases from other jurisdictions that it viewed as analogous.18 But in contrast to this case, the cases cited by the court of appeals all dealt with affidavits that failed to set out any facts suggesting that evidence might be found at the suspects residence or any facts expressly or implicitly linking the defendant to the premises to be searched.19 Moreover, most of the cited cases effectively addressed this point in dictum, ultimately upholding the challenged search under the good faith exception adopted by the United States Supreme Court in United States v. Leon.20 In summary, then, we find no fatal flaw in Trooper Brownings affidavit. It certainly would have been best had the trooper explicitly identified the premises at Greentimbers Drive as Koens residence and specified his basis for the identification. Since it appears that the trooper easily could have provided the information, the superior court and the court of appeals were understandably troubled by the affidavits failure to explicitly draw the connection. Yet the affidavit as a whole provides a substantial and reliable evidentiary basis to support an inference that the listed address on Greentimbers Drive probably was Koens residence and that evidence of his possession of child pornography probably was concealed on the premises. In light of the evidence drawing an implicit connection, we hold that omitting an explicit nexus did not amount to a failure to establish probable cause. IV. CONCLUSION For these reasons, we REVERSE the decisions of the court of appeals and the superior court and REMAND for further proceedings. _______________________________ 1 State v. Koen, 113 P.3d 675, 680 (Alaska App. 2005). 2 Id. at 681-82. 3 In re J.A., 962 P.2d 173, 175 (Alaska 1998). 4 See, e.g., Lord v. Wilcox, 813 P.2d 656, 659 (Alaska 1991). 5 Metler v. State, 581 P.2d 669, 673 (Alaska 1978) (citing United States v. Ventresca, 380 U.S. 102, 109 (1965)). 6 Lord, 813 P.2d at 659. We have described this substantial basis review as more deferential than de novo review. See In re J.A., 962 P.2d at 185 (Matthews, C.J., dissenting) ([W]here a magistrate has issued a search warrant, deferential rather than de novo review of the probable cause determination is called for.). However, substantial basis review is less deferential than clearly erroneous review. 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 3.1(c), at 16 (3d ed. 1996). 7 Ventresca, 380 U.S. at 108; State v. Malkin, 722 P.2d 943, 947 n.10 (Alaska 1986); State v. Davenport, 510 P.2d 78, 82 n.8 (Alaska 1973). 8 Massachusetts v. Upton, 466 U.S. 727, 732 (1984). 9 Koen, 113 P.3d at 680. 10 Id. 11 Id. at 678. 12 Id. at 677. 13 The strength of the inference can be confirmed by considering the flip side of the proposition: assuming that a search conducted under the warrant had led the troopers to search a location that was not Koens residence, it seems hard to imagine that the search would not have been challenged on the theory that Trooper Browning had misrepresented material facts by misleading the magistrate to believe that the warrant was aimed at Koens residence. Cf. State v. Malkin, 722 P.2d 943 (Alaska 1986) (holding that a warrant may be vitiated when supporting affidavit intentionally or recklessly misrepresents material facts). 14 Davenport, 510 P.2d at 82 n.8. In this regard, we note that the Ninth Circuit Court of Appeals has broadly ruled that when a police officers affidavit establishes probable cause to believe that evidence of a crime can be found at a suspects residence and provides an address for the residence, the affidavit need not describe how the officer established the residences address for the affidavit. United States v. Baldwin, 987 F.2d 1432, 1436 (9th Cir. 1993). In light of our conclusion that Trooper Brownings affidavit implicitly established that he had a reliable basis for believing that Koen lived at the Greentimbers Drive address, we need not consider the Ninth Circuits broader holding in Baldwin. 15 State v. White, 707 P.2d 271, 277 (Alaska App. 1985). 16 Koen, 113 P.3d at 680-81. 17 White, 707 P.2d at 274, 277. 18 Koen, 113 P.3d at 679-80. 19 See United States v. Hove, 848 F.2d 137, 139-40 (9th Cir. 1988) ([T]he final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza residence [her fathers home]. . . . [T]he affidavit offer[ed] no hint as to why the police wanted to search this residence.); State v. Varnado, 675 So. 2d 268, 270 (La. 1996) (in sexual assault and robbery case, police had probable cause . . . to search the defendants residence but made a critical omission in the warrant application by failing to identify the targeted premises as the defendants residence); Oesby v. State, 788 A.2d 662, 665-66 (Md. App. 2002) (in sexual assault case, affidavit did not permit judge to infer link between suspect and the street address of place to be searched); Braxton v. State, 720 A.2d 27, 33 (Md. App. 1998) (affidavit disclosed only that address had been learned from further investigation; affidavit did not report the existence of any informant who would have known suspects address). 20 United States v. Leon, 468 U.S. 897 (1984).
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