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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

State v. Koen (02/16/2007) sp-6102, 152 P3d 1148

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) Supreme Court No. S- 11963
Petitioner, )
) Court of Appeals No. A-8864
v. ) Superior Court No. 3HO-04-77CR
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

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          PER CURIAM.
          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.
          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
            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.
          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
          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
          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
          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
          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.[12]
          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.
          For  these  reasons, we REVERSE the  decisions  of  the
court  of  appeals and the superior court and REMAND for  further
     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

     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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