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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Gibson (1/13/2012) sp-6635

State v. Gibson (1/13/2012) sp-6635

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA,                                ) 
                                                )       Supreme Court No. S-13509 
                        Petitioner,             ) 
                                                )       Court of Appeals No. A-9720 
        v.                                      )       Superior Court No.  3AN-02-06007 CR 
                                                ) 
ROBERT DUANE GIBSON, III,                       )       O P I N I O N 
                                                ) 
                        Respondent.             )      No. 6635 - January 13, 2012 
                                                ) 

                Petition for Hearing from the Court of Appeals of the State of 
                Alaska, on appeal from the Superior Court, Third Judicial 
                District, Anchorage, Michael L. Wolverton, Judge. 

                Appearances:      W. H. Hawley, Assistant Attorney General, 
                Office of Special Prosecutions and Appeals, Anchorage, and 
                Daniel S. Sullivan, Attorney General, Juneau, for Petitioner. 
                Sharon   Barr,   Assistant   Public     Defender,   and   Quinlan   G. 
                Steiner, Public Defender, Anchorage, for Respondent. 

                Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                WINFREE, Justice. 
                CHRISTEN, Justice, dissenting. 

I.      INTRODUCTION 

                In this appeal we consider the long-standing emergency aid exception to 

the general requirement that a search warrant be obtained prior to police entry into a 

residence.  Today we establish that the Alaska Constitution's standards for justifying the 

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

doctrine's application go beyond those required by the United States Constitution, and 
we adopt the standards our court of appeals first implemented in Gallmeyer v. State.1               We 

then consider whether the court of appeals correctly applied the doctrine when it reversed 

the trial court's ruling that the doctrine excused the warrantless police entry in this case. 

Because the police had a reasonable belief of an emergency justifying a warrantless entry 

into the residence, we conclude the court of appeals did not and we reverse its decision. 

II.     FACTS AND PROCEEDINGS 

        A.      The Incident 

                In July 2002 Lisa Bevin and Robert Gibson lived together in Gibson's 

trailer.    Bevin     became     angry    when     she   awoke    to   Gibson    preparing     to  cook 

methamphetamine; Gibson reacted by threatening to "stab [her] in the head." Bevin then 

called 911.     The 911 operator logged the call as:        "Female stated male was threatening 

to stab her in the head," and noted she could hear a disturbance in the background. 

Anchorage   Police   Officers   Justin   Doll   and   Francis   Stanfield   were   dispatched   to   the 

scene, arriving in separate patrol cars. 

                When the officers arrived they heard a distressed "female voice crying, 

upset, screaming, yelling" from inside the trailer.  As the officers approached the trailer, 

Bevin tumbled out the door wearing only a tank top and crying "help me."                    Bevin had 

visible swelling in one eye and a bleeding cut on the back of her head.   The officers drew 

their weapons and called for backup. Against the officers' urgings, Bevin returned inside 

for more clothing. 

        1       640   P.2d   837,   842   (Alaska   App.   1982)   (adopting   standards   requiring 

"reasonable   grounds   to   believe   .   .   .   an   emergency   [is]   at   hand,"   that   search   not   be 
"primarily motivated by intent to arrest and seize evidence," and "some reasonable basis 
. . . to associate the emergency with the area or place to be searched" (quoting People v. 
Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976))). 

                                                  -2-                                             6635
 

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

                 As Bevin started back into the trailer, Gibson became visible through the 

doorway.     The officers ordered Gibson out of the trailer, handcuffed him, and put him 

in   a  patrol   car.  Bevin     emerged     from    the  trailer  fully  clothed,    but  was    agitated, 

argumentative, and uncooperative when questioned by the officers.  Worried "she might 

start to fight" with them or Gibson, the officers put Bevin in a patrol car.                The officers 

then informed the backup officer that he no longer needed to respond at the emergency 

level "because of the increased danger involved" in such a response. 

                 The officers were not certain at that time who had   called 911, whether 

anyone else lived in the trailer, or who the assailant had been.   After Bevin and Gibson 

were detained, Officer Stanfield did not "hear any evidence of any kind that another 

party, a third person was in [the] trailer."          Officer Doll similarly did not see or hear 

anyone   inside   the   trailer,   and   "saw   nothing   else   that   would   indicate   that   there   was 

another person inside."         Bevin, when asked, told the officers nobody else was in the 

trailer.  Neither officer took Bevin's statement "at face value"; in Officer Stanfield's 

experience people "[r]egularly" lie "in domestic violence situations," and in Officer 

Doll's experience "people [had] lied to [him] in the past." 

                 When   Officer   Gerard   Asselin   arrived   approximately   25   minutes   after 

Gibson and Bevin were secured, Officers Stanfield and Doll entered the trailer.  Officer 

Doll testified that because the dispatch indicated "a disturbance possibly involving a 

knife," the officers wanted "to make sure that nobody [was] . . . lying wounded inside 

the   trailer."  Officer   Doll   further   confirmed   that   entering   the   premises   in   domestic 

violence situations "that may have involved a weapon," where "the risk is a little higher," 

is   "standard   operating   procedure"   even   when   an   officer   has   "no   reason   to   believe 

somebody is inside" because, as he noted, police "have a duty to provide aid to anybody 

inside."  While they were "clearing" the trailer, the officers noticed evidence suggesting 

methamphetamine manufacturing. 

                                                    -3-                                              6635
 

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

                After exiting the trailer Officer Doll told Officer Asselin that there "could 

be a meth lab" inside.   As Officer Asselin was more familiar than Officers Stanfield and 

Doll with methamphetamine labs, and because he "[knew] them to be dangerous in 

nature," he entered the trailer to determine whether "it need[ed] to be dealt with right at 

that moment." Observing chemicals, glassware, and other evidence of methamphetamine 

production,     Officer   Asselin    concluded    that  "production     of  methamphetamine        was 

occurring." 

                Based on Officer Asselin's conclusion, Detective Bruce Bryant and another 

detective from the Anchorage Police Department's Metro Drug Unit were dispatched to 

the scene. Following a brief walk-through of the trailer, Detective Bryant applied for and 

obtained     a  search   warrant.    The    police   executed    the   warrant   that  night,   seizing 

methamphetamine production evidence from the trailer. 

        B.      The Superior Court 

                In September 2002 the State of Alaska indicted Gibson on four counts 

related to the manufacture of methamphetamine.              Bevin was indicted on the same four 

counts.  In May 2003 the State added one count of fourth-degree assault against Gibson 

for "recklessly caus[ing] physical injury" to Bevin.           The State later dropped one of the 

methamphetamine-related counts against Gibson and amended another. 

                Bevin moved to suppress the evidence seized as a result of the warrantless 

searches of the trailer. Gibson filed his own motion to suppress the evidence and dismiss 

the   indictment   against   him.   The   superior   court   held   an   evidentiary   hearing   on   the 

suppression   motions   over   five   days   in   2003.   Officers   Stanfield,   Doll,   and   Asselin 

testified, along with Detective Bryant and others.          The court held oral argument on the 

motions in February 2004, ultimately denying them with a written order making factual 

findings.    The court concluded Officers Stanfield and Doll's "warrantless entry was 

justified by the emergency aid doctrine."  The court confined its findings and conclusions 

                                                  -4-                                            6635
 

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

"to the facts of this case" recognizing that there is not "a general warrantless search 

exception for all domestic violence cases." 

                Analyzing the emergency aid doctrine under the three-prong test the Alaska 
Court of Appeals adopted in Gallmeyer,2   the court determined that all three prongs were 

satisfied.   First, the court found the reasonable grounds factor was met because "the 

officers arrived at the scene of a domestic disturbance reportedly involving a weapon," 

"heard a female screaming," and "saw a woman stumbling out of the trailer half naked 

and injured"; Bevin was "hysterical, uncooperative and argumentative," and the officers 

were     not  "certain   about    how   many     people   were    involved."     The    court   therefore 

concluded   the   officers'   belief   that   an   injured   party   might   be   inside   and   in   need   of 

emergency aid was objectively reasonable.   The court determined the second factor was 

met, as "[t]here was absolutely no evidence . . . that something outside the trailer led [the 

officers] to suspect that there could be a meth lab inside," and the officers' subjective 

motivation for entering the trailer was to determine whether there was anyone inside in 

need of emergency aid.          The court further determined the final factor was met, as the 

search was sufficiently "restricted in time and scope to the nature and duration of the 

particular emergency." Additionally, the court concluded exigent circumstances justified 

Officer   Asselin's   subsequent   search   and   the   inevitable   discovery   doctrine   justified 

Detective Bryant's later search. 

                Following      a  two-week      trial   a  jury  found  Gibson    guilty   on   the  three 

methamphetamine-related counts and of disorderly conduct, a lesser included offense of 

the assault charge. 

        2       See note 1, above. 

                                                   -5-                                                6635 

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

        C.      The Court Of Appeals 

                Gibson      appealed,    arguing     the  superior    court   erred    in  denying     his 
suppression motion.3       The court of appeals applied the Gallmeyer three-prong test and 

reversed, holding Officers Stanfield and Doll's initial entry was not justified under the 
emergency aid exception to the warrant requirement and was therefore unlawful.4                     The 

court concluded "the circumstances surrounding the search . . . would not 'have led a 

prudent and reasonable officer to perceive an immediate need to take action in order to 
prevent death or to protect against serious injury to persons or property.' "5 

                The court further explained: 

                In   order   to   enter   a   home   based   upon   the   emergency   aid 
                exception,      we   believe    that  the   State   must    show    "true 
                necessity - that is, an imminent and substantial threat to life, 
                health,    or   property."     In   addition,    although   Gallmeyer 
                emphasizes   that   a   showing   of   necessity   does   not   "require 
                absolute proof that injury would necessarily have occurred," 
                this test implies that a mere possibility that an emergency 
                exists will ordinarily not be sufficient.[6] 

Finding     "[t]he   State   justifie[d]   the   police   entry   into   Gibson's     home    based    on 

speculation," the court expressed concern that if it "were to authorize the police to enter 

someone's home based on these facts, the police would routinely be able to search a 
residence in most cases where there was a report of a serious domestic dispute."7                      It 

reversed the conviction and remanded the case for the superior court to determine what 

        3       Gibson v. State, 205 P.3d 352, 353 (Alaska App. 2009). 

        4       Id. at 354-56. 

        5       Id. at 353 (quoting Gallmeyer, 640 P.2d at 842). 

        6       Id. at 356 (quoting Gallmeyer, 640 P.2d at 843-44). 

        7       Id. 

                                                   -6-                                             6635
 

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

evidence should be suppressed.8 

               We granted the State's petition for hearing. 

III.    STANDARD OF REVIEW 

               We generally "review a denial of a motion to suppress in the light most 
favorable to upholding the trial court's ruling."9       "The trial court's findings of fact will 

not be disturbed unless they are clearly erroneous."10  But "[w]e independently determine 

whether the trial court's factual findings support its legal conclusions."11  And "[w]hether 

a particular search falls within an exception to the warrant requirement is a question of 
law" that we review de novo.12 

IV.     DISCUSSION 

        A.     The Emergency Aid Exception To The Warrant Requirement 

                1.     Overview 
               Police typically must obtain a warrant to lawfully search a home.13           Under 

the Alaska Constitution14 "a search without a warrant is per se unreasonable unless it 

        8      Id. 

        9      State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001) (citing Castillo v. State, 

614 P.2d 756, 765-66 (Alaska 1980)). 

        10     State v. Miller, 207 P.3d 541, 543 (Alaska 2009) (quoting Joubert, 20 P.3d 

at 1118). 

        11     Id. (quoting Joubert, 20 P.3d at 1118). 

        12     State v. Blank, 90 P.3d 156, 159 n.19 (Alaska 2004) (citing State v. Page, 

911 P.2d 513, 515-16 (Alaska App. 1996)). 

        13     Id. (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978);Lupro v. State, 603 

P.2d 468, 476 (Alaska 1979)). 

        14     The relevant provisions of the Alaska Constitution are article I, sections 14 

                                                                                     (continued...) 

                                                -7-                                           6635
 

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

clearly falls within one of the narrowly defined exceptions to the warrant requirement."15 

Under the Fourth Amendment of the United States Constitution16 "searches and seizures 

inside   a   home   without   a   warrant   are   presumptively   unreasonable."17        "Nevertheless, 

because   the   ultimate   touchstone   of   the   Fourth   Amendment   is   'reasonableness,'   the 

        14       (...continued) 

and 22.    Section 14 provides: 

                         The right of the people to be secure in their persons, 
                 houses     and   other   property,    papers,    and   effects,   against 
                 unreasonable searches and seizures, shall not be violated.  No 
                 warrants shall issue, but upon probable cause, supported by 
                 oath or affirmation, and particularly describing the place to be 
                 searched, and the persons or things to be seized. 

Section 22 provides in relevant part:          "The right of the people to privacy is recognized 
and shall not be infringed." 

        15       Schultz v. State, 593 P.2d 640, 642 (Alaska 1979) (quoting Woods & Rohde, 

Inc. v. State, Dep't of Labor, 565 P.2d 138, 149 (Alaska 1977)). 

        16       The Fourth Amendment provides: 

                         The right of the people to be secure in their persons, 
                 houses,   papers,   and   effects,   against   unreasonable   searches 
                 and   seizures,   shall   not   be   violated,   and   no   Warrants   shall 
                 issue,   but   upon    probable     cause,   supported     by   Oath    or 
                 affirmation,     and   particularly    describing     the  place    to  be 
                 searched, and the persons or things to be seized. 

The Fourth Amendment's protection against unreasonable searches and seizures was 
applied to the states via the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 655 
(1961). 

        17       Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Payton v. New York, 

445 U.S. 573, 586 (1980)). 

                                                    -8-                                              6635
 

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

warrant requirement is subject to certain exceptions."18 

               One   such   exception   -     under   both   federal   and   Alaska   law  -  is  the 
emergency   aid  exception.19      This   petition   leads   us   to   consider   the   development   of 

Alaska's emergency aid doctrine, clarify standards for the emergency aid exception to 

the Alaska Constitution's search warrant requirement, and apply those standards in the 

context of two competing policy concerns:  (1) the constitutional right of privacy in the 

home and (2) the scope of police duties during a domestic violence investigation. 

               2.      Alaska Supreme Court cases 

                       a.      Stevens v. State 

               Alaska's emergency aid doctrine originated with Stevens v. State, which 

relied on  United States v. Barone for the general rule that "[t]he right of the police to 

enter and investigate in an emergency without the accompanying intent to either search 

or arrest is inherent in the very nature of their duties as police officers, and derives from 
the common law."20 

               In Stevens,21 Stevens shot and killed a friend during early morning drinking 

at Stevens' house in Hoonah. Stevens' children fled the house and told a neighbor about 

the shooting.     The neighbor phoned the Hoonah chief of police, who went to Stevens' 

        18     Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citing Flippo v. West 

Virginia, 528 U.S. 11, 13 (1999) (per curiam); Katz v. United States, 389 U.S. 347, 357 
(1967)). 

        19     Brigham City, 547 U.S. at 403 (citingMincey v. Arizona, 437 U.S. 385, 392 

(1978)); Stevens v. State, 443 P.2d 600, 602 (Alaska 1968). 

        20     443 P.2d at 602 (quoting  United States v. Barone, 330 F.2d 543, 545 (2d 

Cir. 1964)). 

        21     The following summary of the underlying Stevens facts is based on 443 

P.2d at 601-03. 

                                                -9-                                           6635
 

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

house and knocked on the door.           Stevens' wife opened the door, and the chief entered 

without any comment by either.           When Stevens sobbingly confessed he had "shot his 

'buddy' " and threatened suicide, the chief arrested and jailed Stevens for his own safety. 

The chief returned shortly thereafter with the Hoonah mayor.                    The chief and mayor 

briefly   inspected the house, viewed the victim's body, and then left, padlocking the 

house.     The   mayor   contacted   state   troopers   in   Juneau   for   assistance,   and   a   trooper 

ordered the premises be kept locked and advised the chief to also confine Stevens' wife. 

The troopers arrived seven hours later, ten hours after the chief's original entry, and 

entered the house without a search warrant to conduct a homicide investigation.  Stevens 

and his wife were still incarcerated and were unaware of the troopers' warrantless entry 

into their house. At trial Stevens sought to prevent presentation of the evidence gathered 

during   the   troopers'   warrantless   search   of   his   house,   but   the   trial   court   allowed   it. 

Stevens ultimately was convicted of manslaughter. 
                On appeal Stevens conceded the chief's original entry was lawful.22                  The 

court stated the "general rule" that the right to enter and investigate in an emergency, 

without an accompanying intent to search or arrest, derives from the common law and 
is   an   inherent   police   duty.23 The   court   further   observed   that   "[t]he   criterion   is   the 

reasonableness of the belief . . . as to the existence of an emergency, not the existence of 
an emergency in fact."24       The court concluded that given the phone call from Stevens' 

neighbor, which was based on knowledge gained from Stevens' children, the chief "had 

reason to believe that an emergency existed when he knocked at the door of [Stevens'] 

home," and even though he entered uninvited, his entry   "was made under the same 

        22      Id. at 602. 

        23      Id. (quoting Barone, 330 F.2d at 545). 

        24      Id. (quoting Patrick v. State, 227 A.2d 486, 489 (Del. 1967)). 

                                                  -10-                                                6635 

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

reasonable belief."25 

                The court built on that conclusion, explaining that after legally entering 

Stevens' home and learning of the homicide, the chief's duty to investigate included the 
right to inspect the premises;26 had the chief conducted his investigation immediately, he 

could have taken pictures, made measurements, and retrieved evidence in plain view 

without   violating     Stevens'    constitutional   rights    against   unreasonable      searches    and 
seizures.27  The court concluded the ten-hour delay between the chief's original entry and 

the   troopers'   later   entry   did   not   convert   what   otherwise   would   have   been   a   legal 
investigation into a violation of constitutional privacy rights.28 

                Justice Rabinowitz concurred in the decision, agreeing with the court's 

recognition of the Barone  emergency aid doctrine and its conclusion that the chief's 

initial entry into the home was lawful, but viewing the totality of the circumstances as 
supporting   a   lawful   search   of   Stevens'   house   incident   to   Stevens'   arrest.29   Justice 

Rabinowitz made two key points guiding the assessment of potential emergencies.30 

        25      Id. 

        26      Id. 

        27      Id. 

        28      Id. at 602-03. Using the emergency aid doctrine as a foundational predicate 

to the court's actual holding likely moved the court's approval of that doctrine beyond 
dictum notwithstanding Stevens' concession that the chief's initial entry was lawful. See 
VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (concluding discussion in 
previous case "was necessary for our holding" and therefore not dictum); Gonzales v. 
Krueger, 799 P.2d 1318, 1322 (Alaska 1990) (Moore, J., concurring) (stating language 
in previous decision was not dictum because it was necessary to reach the conclusion). 

        29      Stevens, 443 P.2d at 604-06 (Rabinowitz, J., concurring). 

        30      Id. at 605 (quoting Patrick, 227 A.2d at 489). 

                                                   -11-                                             6635
 

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

First, he noted "[t]he reasonableness of an entry by the police upon private property is 
measured by the circumstances then existing."31               Second: 

                 The preservation of human life is paramount to the right of 
                 privacy      protected     by    search     and     seizure    laws     and 
                 constitutional guaranties; it is an overriding justification for 
                 what   otherwise   may   be   an   illegal   entry.   It   follows   that   a 
                 search warrant is not required to legalize an entry by police 
                 for   the   purpose   of   bringing   emergency   aid   to   an   injured 
                 person.    Frequently, the report of a death proves inaccurate 
                 and     a  spark    of   life  remains,     sufficient   to   respond     to 
                 emergency police aid.         As a general rule . . . an emergency 
                 may be said to exist, within the meaning of the 'exigency' 
                 rule, whenever the police have credible information that an 
                 unnatural death has, or may have, occurred. And the criterion 
                 is   the   reasonableness   of   the   belief   of   the   police   as   to   the 
                 existence of an emergency, not the existence of an emergency 
                 in fact.[32] 

                         b.       Schraff v. State 
                 In Schraff v. State,33  a trooper conducting a routine bar check noted one of 

the   patrons,   Schraff,   was   inebriated.     While   securing   Schraff's   vehicle,   the   trooper 

discovered   a   large   quantity   of   marijuana   and   contacted   narcotics   investigators   for 

assistance.    When a narcotics investigator requested identification, Schraff allowed his 

friend to hand Schraff's wallet to the investigator.              While briefly looking through the 

wallet for identification, the investigator discovered a foil packet containing cocaine. 

Schraff was arrested and later convicted of cocaine possession. 

        31       Id. (quoting Patrick, 227 A.2d at 489). 

        32       Id. (quoting Patrick, 227 A.2d at 489). 

        33       544 P.2d 834 (Alaska 1975).            The following summary of the underlying 

Schraff facts is based on 544 P.2d at 836-38. 

                                                    -12-                                               6635
 

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

                 Schraff appealed his conviction, challenging the investigator's search.34  In 

relevant   part   the   State   claimed   the   wallet   search   "was   designed   to   provide   crucial 

information       in  the  rendition     of  emergency      aid"   in   light  of   Schraff's    "stupified 
condition."35    The court pointed to Barone for the modern emergency aid doctrine and 

noted the Stevens court's recognition of the " 'emergency' exception" to the warrant 
requirement.36     The court also noted the "business of policemen and firemen is to act, not 

to   speculate   or   meditate   on   whether   [a]   report   is   correct. People   could   well   die   in 

emergencies if police tried to act with the calm deliberation associated with the judicial 
process.    Even the apparently dead often are saved by swift police response."37 

                 The court reviewed cases from other jurisdictions to evaluate the State's 

emergency aid claim. These included a Sixth Circuit case upholding a search of a seizing 
man's   luggage,38      a   D.C.   Circuit   case   upholding   a   search   of   an   unconscious   man's 

person,39 a California case upholding a search of a man in shock and suffering from knife 

wounds,40  an Illinois case upholding a search of a disoriented and incoherent man who 

        34       Id. at 837-38. 

        35       Id. at 841. 

        36       Id. at 841-42 (quoting Barone, 330 F.2d at 545) (citing Stevens, 443 P.2d 

at   602)   (stating  Stevens  court "upheld   the search   because the officers' belief   in   the 
existence of an emergency was reasonable"). 

        37       Id. at 842 n.10 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. 

Cir. 1963)). 

        38       Id. at 842 (citing United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973)). 

        39       Id. at 842-43 (citing Vauss v. United States, 370 F.2d 250 (D.C. Cir. 1966)). 

        40       Id. at 843 (citing People v. Gonzalez, 5 Cal. Rptr. 920 (Cal. Dist. App. 

1960)). 

                                                    -13-                                              6635
 

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

did not seem drunk,41 and a Washington case upholding a search of an unconscious man 

in his hotel room based on needle track marks on his arms.42                In each case the reviewing 

court   had   upheld   the   challenged   search   as   within   the   ambit   of   the   emergency   aid 

doctrine. 

                 The court nevertheless rejected the State's claim.  The court first noted the 

narcotics investigator arrived at the scene to engage in a narcotics investigation, not to 

render   emergency   aid,   and   that   multiple   motives        -    including   crime   detection   - 
prompted him to search Schraff's wallet.43             The cited emergency aid cases, in contrast, 

involved "officers [who] claimed that their only motivation was that of rendering aid to 
an injured person."44      The court also noted Schraff was not totally unconscious and was 

accompanied by a "somewhat responsive" companion, suggesting the officers had a way 
of getting necessary information about Schraff without searching his wallet.45 

                 Justice Boochever and Chief Justice Rabinowitz concurred, agreeing that 

the   emergency       aid  doctrine    was    inapplicable     based   on   the  facts   of  the  case,   but 

contending that if the officers had "reasonably believed that it was necessary" to gather 

Schraff's identification for medical purposes, the search ought not be disqualified simply 
because of an accompanying motive to detect crime.46                   To do so would inhibit police 

        41       Id. (citing People v. Smith, 265 N.E.2d 139 (Ill. 1970)).
 

        42       Id. (citing State v. Jordan, 487 P.2d 617 (Wash. 1971)).
 

        43       Id. at 844.
 

        44       Id.
 

        45       Id.
 

        46
      Id. at 848 (Boochever, J., concurring).  The concurring opinion also noted 

"[t]he   emergency   doctrine   is   based   on   a   showing   of   a   true   necessity   -   that   is,   an 
                                                                                            (continued...) 

                                                    -14-                                               6635
 

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

from fulfilling common law duties to Alaskan citizens that all members of the court 
agreed police owe.47      They also felt a rule requiring an "alone and unconscious" victim 

too "narrow a reading of the emergency exception," and were inclined to allow the 

emergency aid exception to the warrant requirement when police reasonably believed a 

"medical emergency existed (an imminent and substantial threat to life or health)" and 
that a search of the sick or injured person for immediate identification was necessary.48 

                        c.       City of Nome v. Ailak 
                City of Nome v. Ailak49 involved a homeowner's civil suit for, among other 

claims, trespass.  When Nome police officers stopped Ailak outside his residence on the 

report of a rape and murder, the man who had reported the crimes pointed at Ailak's 

house and told police that a body was inside. Without obtaining permission or knocking, 

the police entered Ailak's home and asked the people occupying the home where the 

body was; the occupants explained that "a crazy girl" had attempted to gain entry earlier 

but they would not let her in.          The officers subsequently left.         After trial on Ailak's 

claims, a jury awarded him $10,000 for trespass. 

                On   appeal   the   City   conceded   its   police   had   entered   Ailak's   residence 

without consent, but maintained police may assert as a defense to trespass that they are 

privileged   to   enter   a   citizen's   home   without   permission   or   a   warrant   in   emergency 

        46      (...continued) 

imminent and substantial threat to life, health or property."  Id. at 848 n.1. 

        47      Id. at 848. 

        48      Id. 

        49      570 P.2d 162 (Alaska 1977).           The following summary of the underlying 

City of Nome facts is based on 570 P.2d at 165-67. 

                                                  -15-                                             6635
 

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

situations.50  The court acknowledged the case did not confront whether a warrant was 

necessary to justify police entry into Ailak's residence, but cited Justice Rabinowitz's 

Stevens concurrence with approval, stating the same concerns applied "to the issue of 

whether     police   officers   should   be   civilly  liable  for  trespass   as   a  result  of  their 
unauthorized   entry   into   a   home."51     The   court   quoted   Justice   Rabinowitz's   broad 

formulation of potential emergencies:  "As a general rule . . . an emergency may be said 

to exist . . . whenever the police have credible information that an unnatural death has, 
or may have[,] occurred."52 

                The court reiterated that police owe civilly actionable duties "to go to the 
aid of imperiled citizens."53      The court stated the "reasonableness of the belief of the 

police as to the existence of an emergency, not the existence of an emergency in fact" 
controlled the propriety of the police's actions.54         Because the officers were told that a 

body was in the Ailak home, and "police officers should be encouraged to check out such 

reports as quickly as possible in case 'a spark of life remains,' " the court concluded the 
officers' entry into the Ailak home was privileged as a matter of law.55 

        50      Id. at 166.
 

        51      Id.
 

        52      Id. (quoting Stevens, 443 P.2d at 605).
 

        53      Id.
 

        54      Id. at 167 (quoting Stevens, 443 P.2d at 602). 

        55      Id.  The court expressly refrained from ruling whether the situation was 

sufficient to justify entry without a warrant for a criminal case.  Id. at 167 n.8. 

                                                 -16-                                            6635
 

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

                        d.      State v. Myers 
                In State v. Myers,56 police officers on routine patrol conducted a security 

check in an alley and discovered a theater's fire exit door open.              Following customary 

procedures, they entered the building to search for intruders.               As the officers walked 

down a hallway they heard voices from a backstage area.  They looked in and saw three 

individuals,      including    the   theater   manager,      sitting  on    the  floor   with    cocaine 

paraphernalia.     The officers arrested the individuals and seized the evidence.              The trial 

court granted the defendants' suppression motion and the State appealed. 

                The court reversed, holding the entry and limited search were police actions 

for which no warrant was required and were otherwise reasonable within the meaning 
of   constitutional  protections.57      Relying     on   diminished     expectations    of  privacy    in 

commercial premises, the court ruled police: 

                may enter commercial premises without a warrant only when, 
                pursuant to a routine after-hours security check undertaken to 
                protect the interests of the property owner, it is discovered 
                that   the   security   of   the   premises   is   in   jeopardy,   and   only 
                when there is no reason to believe that the owner would not 
                consent to such an entry. . . .   Any search conducted incident 
                to a legitimate entry must be brief and must be limited and 
                necessary to   the purpose of ensuring that no intruders are 
                present on the premises.[58] 

                Justice Rabinowitz concurred, but on the basis that the search fell within 

        56      601 P.2d 239 (Alaska 1979).            The following summary of the underlying 

Myers facts is based on 601 P.2d at 240-41. 

        57      Id. at 241. 

        58      Id. at 244. 

                                                  -17-                                             6635
 

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

the emergency aid exception to the warrant requirement.59                Justice Rabinowitz believed 

the court should expressly adopt the emergency aid exception delineated in the New 

York case of People v. Mitchell with the following essential components: 

                         (1)     The   police   must   have   reasonable   grounds to 
                 believe that there is an emergency at hand and an immediate 
                 need for their assistance for the protection of life or property. 

                         (2)     The search must not be primarily motivated by 
                 intent to arrest and seize evidence. 

                         (3)     There      must     be    some      reasonable      basis, 
                 approximating probable cause, to associate the emergency 
                 with the area or place to be searched.[60] 

                 Chief     Justice   Boochever       dissented,    concluding      the  court's    general 

reasonableness   analysis   was   too   generous   in   light   of   the   availability   of   other   less 
intrusive alternatives to the police entry.61         Reasoning that the only possible exception 

         59      Id. at 245 (Rabinowitz, J., concurring) (citing Schraff, 544 P.2d at 841; 

Stevens, 443 P.2d at 602). 

         60      Id. (quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976)).  The 

Mitchell court considered the emergency aid doctrine under the Fourth Amendment to 
the   United   States   Constitution   and   noted   the   difficult   problems   of   evaluation   and 
judgment by both the police and reviewing courts.                Mitchell, 347 N.E.2d at 609.  The 
court   articulated   the   necessary   guidelines   for   the   doctrine's   application   and   further 
explained   the   underpinnings   of   each   prong   of   its   standard,   summarized   as   follows: 
(1) police must have valid reasons for the belief of an emergency, grounded in empirical 
facts rather than subjective feelings; (2) protection of human life or property must be the 
primary motivator for the police; and (3) the limited privilege afforded by the emergency 
doctrine does not give police carte blanche to look for evidence of a crime - there must 
be a direct relationship between the search area and the emergency.  Id. at 609-10. 

         61      601 P.2d at 245-47 (Boochever, C.J., dissenting). 

                                                   -18-                                              6635
 

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

to the warrant requirement was the emergency aid exception,62 Chief Justice Boochever 

concluded the court should recognize the emergency aid exception as defined inMitchell, 

subject   to   a   requirement   that   no   search   could   be   justified   under   that   exception   if   a 
reasonable   alternative   were  available.63        But   the   Chief   Justice   noted   the   emergency 

exception      was   not   applicable    under    the  facts  of   the  case   because    the   police   had 
reasonable alternatives to the warrantless entry into the theater.64 

                 3.      Alaska Court of Appeals 
                 In Gallmeyer v. State65 an intoxicated Gallmeyer struck his wife, threatened 

her   with   a   firearm,   and   forcibly   expelled   her   from   their   home.   The   wife   ran   to   a 

neighbor's house and called the police, asking for help removing the couple's 15-month- 

old   daughter   from   the   home.      Two   officers   were   dispatched,   but   highway         delays 

substantially slowed their arrival. The wife called again, insisting she needed immediate 

help.  The wife then approached her home and asked Gallmeyer to bring their daughter 

outside - she told him that in exchange, she would not ask the police to enter the house 

once they arrived.      Gallmeyer complied, leaving the infant on the front porch; the wife 

did not remove the child.         Once the officers arrived, the wife - speaking hysterically 

and with a bloody mouth - asked them to retrieve the child.  She informed the officers 

that Gallmeyer was drunk, described the domestic violence, and warned them that he 

possessed several handguns.  One of the officers approached the home.  Fearing for both 

        62       Id .  at  247-48     (discussing   Schraff's      listing  of   exceptions     to  warrant 

requirement and concluding only emergency aid exception possible under facts of case). 

        63       Id. at 251. 

        64       Id. at 250-51. 

        65       640 P.2d 837.  The following summary of the underlying Gallmeyer facts 

is based on 640 P.2d at 837-42. 

                                                    -19-                                              6635
 

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

his and the child's safety, the officer decided to speak with Gallmeyer first rather than 

immediately remove the baby from the porch. Gallmeyer acknowledged the officer, who 

then entered the home.         The officer immediately noticed Gallmeyer had a gun in his 

pants waistband and reached to remove it. Gallmeyer reached for another firearm nearby 

and a fight broke out.        The officer subdued Gallmeyer without injury and arrested him 

for possession of a firearm while intoxicated. 

                 After an investigation revealed Gallmeyer had a prior felony conviction, he 
was   indicted   for   being   a   felon   in   possession   of   a   firearm.66 He   moved   to   suppress 

evidence of his firearms as the product of a warrantless entry into and search of his 
home.67     The superior court denied Gallmeyer's motion on the ground that the police 

entry "was solely investigative in nature and was meant to assure the safety of the officer 
and the Gallmeyers' baby."68          Gallmeyer was convicted and he appealed.69 

                 On appeal the State argued the emergency aid exception to the warrant 
requirement justified the police entering Gallmeyer's home.70               The court of appeals noted 

the   emergency   aid   doctrine   "has   been   uniformly   recognized   as   an   exception   to   the 

warrant requirement," referenced Schraff's "recognition" and Stevens' "appli[cation]" 

of the doctrine, and pointed to the Barone statement of the doctrine as "[p]erhaps the 
most commonly cited statement of the doctrine."71               It then looked to Mitchell to set out 

        66       Id. at 841. 

        67       Id. 

        68       Id. 

        69       Id. at 839. 

        70       Id. at 841. 

        71       Id. at 841-42 (citations omitted). 

                                                    -20-                                              6635
 

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

the emergency aid doctrine elements:           (1) the police must have reasonable grounds to 

believe there is an emergency at hand and an immediate need for their assistance in the 

protection of life or property; (2) the search must not be primarily motivated by the intent 

to arrest a person or to seize evidence; and (3) there must be some reasonable basis, 

approximating probable cause, to associate the emergency with the area or place to be 
searched.72 

                The court of appeals first acknowledged that it must accept the superior 

court's factual findings unless clearly erroneous and must view the evidence in the light 
most favorable to upholding the superior court's decision.73              The court then considered 

whether there were reasonable grounds for the officers' belief that an emergency existed 
at   the   Gallmeyers'   home.74     The   court   described   this   first   prong   of   the   test   as   an 

"objective standard,"75 designed to determine "whether the evidence would have led a 

prudent and reasonable officer to perceive an immediate need to take action in order to 
prevent death or to protect against serious injury to persons or property."76 

                Gallmeyer argued that because he was the house's only occupant, no risk 
of death or harm to anyone justified police intrusion.77           Taking a broad view of the facts 

and drawing all favorable inferences on factual findings in favor of the State, the court 

        72      Id. at 842 (quotingMitchell, 347 N.E.2d at 609); cf.Myers, 601 P.2d at 245 

(Rabinowitz, J., concurring); id. at 249, 251 (Boochever, C.J., dissenting). 

        73      640 P.2d at 839. 

        74      Id. at 843. 

        75      Id. at 842. 

        76      Id.   (citing   2   WAYNE  R.  LAFAVE,  SEARCH         &  SEIZURE       6.6(a),   at   468 

(1978)). 

        77      Id. at 843. 

                                                  -21-                                             6635
 

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

rejected   Gallmeyer's   argument,   noting:        the   wife's   two   emergency   calls   requesting 

immediate assistance, the wife was obviously upset at the scene, the wife was bloody and 

had recently been struck, Gallmeyer had reportedly brandished a weapon, Gallmeyer 

possessed weapons inside, and the wife had not attempted to secure her daughter without 
the police.78   The court concluded it was "apparent that [the police officers] had ample 

cause   to   fear   that   [Gallmeyer]   posed   an   immediate   threat   of   inflicting   serious   and 
potentially fatal injury" to his wife, his daughter, or the officers.79 

                Only after concluding the officers had an objectively reasonable basis to 

believe   an   emergency   existed   did   the   court   passingly   mention   the   "true   necessity" 

concept:     "In   reaching     this  conclusion,   we   are   not   unmindful   that   emergency   aid 

ordinarily requires true necessity - that is, an imminent and substantial threat to life, 
health    or  property."80     The     court   did  not   indicate   whether     this  "true   necessity" 

requirement clarified, modified, or simply reiterated its earlier description of the first 

element   under  Mitchell   -   a   situation   leading   "a   prudent   and   reasonable   officer   to 
perceive an immediate need to take action" to avert death or serious injury.81                   But the 

court did state that "true necessity" does not require absolute proof that injury would 

necessarily have occurred without emergency intervention:                  "in determining necessity, 

the   probability    and   potential   seriousness     of  the  threatened     harm   must    be  viewed 

objectively and balanced against the extent to which police conduct results in a violation 

        78      Id. 

        79      Id. 

        80      Id. (quoting Myers, 601 P.2d at 242 n.4). 

        81      Id. at 842. 

                                                   -22-                                             6635
 

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

of privacy interests."82 

                 The     court   ultimately    found     the  second     and   third   prongs    of  the   test 
satisfied,83 noting the superior court's findings on the officer's subjective motivations 

were "amply supported by the evidence" and conclusively showed the officers were not 

motivated       primarily    by   a  desire   to  arrest   Gallmeyer      or   search    for  incriminating 
evidence.84     As to the scope of the entry and search, the court further found "the record 

supports   the   conclusion   that   [the   officer]   was   justified   in   believing"   an   emergency 
reasonably   precipitated   his   entry   into   Gallmeyer's   home.85           The   court   emphasized 

granting officers great flexibility in responding to reasonably perceived emergencies 

when it analyzed this third element:             "[O]nce the existence of an emergency has been 

determined, and once it has been found that an officer's conduct was motivated by the 

apparent   need   to   render   assistance   .   .   .   officers   must   be   allowed   a   broad   scope   of 
judgment in the precise manner of dealing with emergency situations."86                    Speaking more 

particularly to cases of domestic violence, the court added that: 

                 situations such as the present one, where officers are called 
                 upon to intervene in episodes of domestic violence, are often 
                 particularly hazardous. . . .        Thus, when officers responding 
                 to   a   call   involving   domestic   violence   encounter   objective 
                 factors sufficient to indicate an imminent danger of death or 
                 serious injury . . . it is particularly appropriate for courts to be 
                 flexible    in  assessing     the  reasonableness       of   the  particular 

         82      Id. at 844. 

         83      Id. at 844-46. 

         84      Id. at 844. 

         85      Id. at 844-45. 

         86      Id. at 845. 

                                                     -23-                                               6635
 

----------------------- Page 24-----------------------

                                                                        [ ] 
                 manner chosen to deal with the emergency. 87
 

                 The court affirmed Gallmeyer's conviction.88
 

                 4.      United States Supreme Court 

                 In 2006 the United States Supreme Court, which had been essentially silent 
on the emergency aid exception since 1978,89 granted certiorari in Brigham City v. Stuart 

"in    light  of  differences     among     state   courts   and   the   [federal]   Courts     of  Appeals 

concerning the appropriate Fourth Amendment standard governing warrantless entry by 
law enforcement in an emergency situation."90               The Court held that police "may enter a 

home without a warrant when they have an objectively reasonable basis for believing 
that an occupant is seriously injured or imminently threatened with such injury."91                     The 

Court emphasized that the searching officers' subjective intentions and motivations are 

irrelevant, and consequently rejected the Mitchell test's second prong for the purposes 

of    analyzing     searches     justified   under    the   Fourth     Amendment's        emergency       aid 
exception.92 

        87       Id. at 845 n.13. 

        88       Id. at 846. 

        89       See Mincey v. Arizona, 437 U.S. 385, 392 (1978) ("We do not question the 

right of the police to respond to emergency situations."); Michigan v. Tyler, 436 U.S. 
499, 509 (1978) (noting "the importance of 'prompt inspections, even without a warrant, 
. . . in emergency situations' " (quoting Camara v. Municipal Court, 387 U.S. 523, 539 
(1967) (alteration in original))). 

        90       Brigham City, 547 U.S. at 402. 

        91       Id. at 400. 

        92       Id.  at   404   ("An   action   is   'reasonable'   under   the   Fourth   Amendment, 

regardless of the individual officer's state of mind, 'as long as the circumstances, viewed 
objectively,   justify   [the]   action.'   The   officer's   subjective   motivation   is   irrelevant." 
                                                                                            (continued...) 

                                                    -24-                                               6635
 

----------------------- Page 25-----------------------

         B.	     We      Adopt      The    Mitchell/Gallmeyer          Standard         As    The     Alaska 
                 Constitutional Standard For The Emergency Aid Doctrine. 

                 We first reiterate our statement in Stevens that "[t]he right of the police to 

enter and investigate in an emergency without the accompanying intent to either search 

or arrest is inherent in the very nature of their duties as police officers, and derives from 
the common law."93         As Justice Rabinowitz stated in his concurrence: 

                 The preservation of human life is paramount to the right of 
                 privacy      protected      by    search     and    seizure     laws     and 
                 constitutional guaranties; it is an overriding justification for 
                 what   otherwise   may   be   an   illegal   entry.    It   follows   that   a 
                 search warrant is not required to legalize an entry by police 
                 for   the   purpose   of   bringing   emergency   aid   to   an   injured 
                          [94] 
                 person. 

                 We also agree with Justice Rabinowitz that "an emergency may be said to 

exist . . . whenever the police have credible information that an unnatural death has, or 

may have, occurred" and that "the criterion is the reasonableness of the belief . . . as to 
the existence of an emergency, not the existence of an emergency in fact."95                        And we 

reiterate   our   earlier   statement   that   the   "business   of   policemen   .   .   .   is   to   act,   not   to 

speculate   or   meditate   on   whether   [a]   report   is   correct.     People      could   well   die   in 

emergencies if police tried to act with the calm deliberation associated with the judicial 

         92      (...continued)
 

(quoting Scott v. United States, 436 U.S. 128, 138 (1978) (emphasis and alteration in
 
original))). 

         93      Stevens, 443 P.2d at 602 (quoting Barone, 330 F.2d at 545). 

         94      Id. at 605 (Rabinowitz, J., concurring) (quoting Patrick, 227 A.2d at 489). 

         95      Id. (quoting Patrick, 227 A.2d at 489). 

                                                    -25-	                                               6635
 

----------------------- Page 26-----------------------

process."96 

                We believe Professor LaFave has aptly described the nature of the question 

about a reasonable belief of an emergency: 

                Thus, the question is whether there were "reasonable grounds 
                to believe that some kind of an emergency existed," that is, 
                whether there is "evidence which would lead a prudent and 
                reasonable official to see a need to act."   The officer must "be 
                able to point to specific and articulable facts which, taken 
                with rational inferences from those facts, reasonably warrant 
                that intrusion."    But . . . this probable cause requirement[] 
                must    be   applied   by   reference   to  the  circumstances      then 
                confronting      the  officer,   including   the  need   for  a  prompt 
                assessment of sometimes ambiguous information concerning 
                potentially serious consequences.   As one court usefully put 
                it,   the   question   is   whether   "the   officers   would   have   been 
                derelict in their duty had they acted otherwise."  This means, 
                of course, that it "is of no moment" that it turns out there was 
                in fact no emergency.[97] 

                Over 40 years ago two members of our court urged the adoption of the 
Mitchell standard for applying the emergency aid doctrine.98              Our court of appeals first 

embraced and applied theMitchell standard in Gallmeyer, in the context of a suppression 
challenge under the Fourth Amendment of the United States Constitution,99 and has 

        96      Schraff, 544 P.2d at 842 n.10 (quoting Wayne, 318 F.2d at 212). 

        97      3 WAYNE R.LAFAVE,SEARCH & SEIZURE  6.6(a), at 452-53 (4th ed. 2004) 

(footnotes omitted). 

        98      Myers,     601   P.2d    at  245   (Rabinowitz,     J.  concurring);   id.   at   245-47 

(Boochever, C.J., dissenting). 

        99      Gallmeyer, 640 P.2d at 842-43. 

                                                  -26-                                            6635
 

----------------------- Page 27-----------------------

applied that standard since then.100      But as noted earlier, the United States Supreme Court 

recently clarified that the Fourth Amendment does not provide privacy protection as 
broadly as articulated in Mitchell.101 

                We   therefore   consider   whether   in   this   context   the   Alaska   Constitution 

requires more than the Fourth Amendment and, if so, whether Gallmeyer's adoption of 

the Mitchell standard is appropriate for Alaska.             Neither Gibson nor the State actually 

argues     against   the  Mitchell    standard    but,  as  we   discuss   below,    the   State  argues 

Gallmeyer's application of the standard is inconsistent with the principles outlined in 

Stevens and Schraff and should be overruled. 

                We conclude the Alaska Constitution article I, sections 14 and 22, affords 

greater protection against warrantless searches and seizures in the emergency aid context 
than the United States Constitution102 and the Alaska Constitution prior to the enactment 

        100     See Hotrum v. State, 130 P.3d 965 (Alaska App. 2006); Mark v. State, 

Mem. Op. & J. No. 7661, 2002 WL 341979  (Alaska App.,                      Mar. 6, 2002); Larson v. 
State, Mem. Op. & J. No. 7032, 2000 WL 19199 (Alaska App., Jan. 12, 2000); Johnson 
v.   State,   Mem.   Op.   &   J.   No.   6407,   1998   WL   19470  (Alaska   App.,   Jan.   21,   1998); 
Harrison v. State, 860 P.2d 1280 (Alaska App. 1993);  Williams v. State, 823 P.2d 1 
(Alaska App. 1991); Montgomery v. State, Mem. Op. & J. No. 1185, 1986 WL 1160968 
(Alaska App., May 28, 1986); Krukoff v. State, 702 P.2d 664 (Alaska App. 1985); Spein 
v. State, Mem. Op. & J. No. 7259, 1984 WL 908539 (Alaska App., June 20, 1984); Zinn 
v. State, 656 P.2d 1206 (Alaska App. 1982).  See also Hahn v. State, Mem. Op. & J. No. 
6462,     1998   WL     119468     (Alaska    App.,   Mar.    18,  1998)    (concluding     defendant's 
arguments contesting application of emergency aid doctrine were not preserved, but 
noting   it   would   find   no   plain   error   in   trial   court's   application   of   doctrine   even   if 
defendant were entitled to raise argument). 

        101     See note 92, above, and accompanying text. 

        102     See Brigham City, 547 U.S. at 407-08 (Stevens, J., concurring) (noting state 

constitutions can offer more robust protection against warrantless searches than Fourth 
Amendment);  see   also        Erwin   Chemerinsky,  Privacy   and         the  Alaska    Constitution: 
                                                                                         (continued...) 

                                                  -27-                                             6635
 

----------------------- Page 28-----------------------

of section 22.103    Although the State accurately observes that article I, section 22, does 

not create an independent ground for suppressing evidence, Alaska courts have used 

section   22's   right   to   privacy   to   give   section   14's   protection   against   unreasonable 
searches and seizures "a liberal interpretation."104        Alaskans' heightened right to privacy 

is safeguarded by requiring the State to meet all three Mitchell test prongs when seeking 

to justify a warrantless search under the emergency aid exception. We therefore hold the 

Alaska Constitution requires that warrantless searches under the emergency aid doctrine 

satisfy all three Mitchell test prongs specified in  Gallmeyer:             (1) the police must have 

reasonable grounds to believe there is an emergency at hand and an immediate need for 

their assistance in the protection of life or property; (2) the search must not be primarily 

motivated by the intent to arrest a person or to seize evidence; and (3) there must be 

some reasonable basis, approximating probable cause, to associate the emergency with 

        102     (...continued) 

Failing to Fulfill the Promise, 20 ALASKA L. REV . 29, 30 (2003) ("Alaska constitutional 
law is clear that greater rights can be protected under the Alaska Constitution than are 
recognized under the United States Constitution."); Ronald L. Nelson,  Welcome to the 
 "Last    Frontier,"     Professor    Gardner:      Alaska's     Independent      Approach      to  State 
Constitutional Interpretation, 12 ALASKA L. REV . 1, 21 (1995) ("Alaska's discourse on 
the right to privacy reflects both the state's independence and its unique tradition of 
emphasizing individual liberties."). 

        103     See,    e.g., Beltz   v.  State,  221    P.3d   328,   334   (Alaska    2009)    ("[W]e 

acknowledge that the explicit protection of privacy set out in article I, section 22 of the 
Alaska Constitution necessarily modifies [earlier precedent] and increases the likelihood 
that   a   person's    expectation     of  privacy    in  garbage     can   be   deemed     objectively 
reasonable."). 

        104     Municipality of Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993) 

(quoting  Wortham v. State, 641 P.2d 223, 224-25 n.2 (Alaska App. 1982), aff'd, 666 
P.2d 1042 (Alaska 1983)); see also id. ("[T]he right to privacy granted by Article I, 
Section 22 does not create a separate, independent right to seek exclusion of evidence."). 

                                                  -28-                                            6635
 

----------------------- Page 29-----------------------

the area or place to be searched.105 

        C.     TheMitchell/Gallmeyer "True Necessity" Standard Is Flexibly Applied. 

               We now consider the State's argument that the court of appeals misapplied 

the Mitchell standard's first prong in Gallmeyer. The State focuses on Gallmeyer's "true 

necessity" requirement as a part of the Mitchell standard's first prong, arguing "[t]he 

court of appeals erred in requiring the [S]tate to establish 'true necessity' in order to 

justify the entry."   Gibson responds that " '[t]rue necessity' . . . serves merely to define 

the term 'emergency'   and is in accord with this court's prior decisions."          The State 

replies if "true necessity" defines "emergency," the definition "requires proof of a greater 

emergency than this court required in Stevens and its progeny." 

               The term "true necessity," in the context of the emergency aid exception, 

originated in People v. Smith, a 1972 case in which the California Supreme Court held 

a police officer's entry into an apartment was unconstitutional under both the United 
States and California Constitutions.106     In concluding the search did not fall under the 

Fourth Amendment's emergency aid exception to the warrant requirement, the California 

court stated:   "[T]he [emergency aid] exception must not be permitted to swallow the 

rule: in the absence of a showing of true necessity - that is, an imminent and substantial 

threat to life, health, or property - the constitutionally guaranteed right to privacy must 
prevail."107  Smith's "true necessity" language first appeared in Alaska case law as a 

footnote to Justice Boochever's Schraff concurrence.108      Several years later, inMyers, we 

        105    640 P.2d at 842 (quoting Mitchell, 347 N.E.2d at 609).
 

        106    496 P.2d 1261, 1263-64 (Cal. 1972).
 

        107    Id. at 1263.
 

        108    Schraff, 544 P.2d at 848 n.1 (Boochever, J., concurring) (citing Smith, 496
 

                                                                                 (continued...) 

                                              -29-                                        6635
 

----------------------- Page 30-----------------------

cited   a   law   review   article   for   the   parenthetical   proposition   that   "   'emergency   aid' 

ordinarily requires 'true necessity [-] that is, an imminent and substantial threat to life, 
health or property.' "109 

                 We reiterate that invocation of the emergency aid doctrine requires only 

that the police have objectively reasonable grounds to believe an emergency at hand 

creates an immediate need for their assistance for the protection of life or property.  We 

also reiterate that this standard does not require the existence of an emergency in fact: 

"[T]he criterion is the [objective] reasonableness of the belief . . . as to the existence of 
an    emergency,     not   the  existence    of  an   emergency      in  fact."110  Gallmeyer's       "true 

necessity" language does not alter these fundamental propositions.  We believe the "true 

necessity" language simply emphasizes the Gallmeyer court's recognition that different 

balancing of interests must arise in different factual settings: "[I]n determining necessity, 

the   probability     and  potential    seriousness    of   the  threatened    harm    must    be  viewed 

objectively and balanced against the extent to which police conduct results in a violation 
of privacy interests."111 

                 As noted above, the "true necessity" language first appeared in Justice 

        108      (...continued) 

P.2d at 1263). 

        109     Myers, 601 P.2d at 242 n.4 (citing Edward G. Mascolo, The Emergency 

Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 BUFF . 
L. REV . 419, 434 (1973)).         It appears the  Gallmeyer court was actually quoting this 
parenthetical,   not   the   law   review   article   to   which   the   opinion   attributed   the   quote. 
Compare id. with Gallmeyer, 640 P.2d at 843. 

        110      Stevens,   443   P.2d   at   602   (quoting Patrick,   227   A.2d   at   489); see   also 

Gallmeyer, 640 P.2d at 844 ("But 'true necessity' has never been construed to require 
absolute proof that injury would necessarily have occurred."). 

        111      Gallmeyer, 640 P.2d at 844. 

                                                   -30-                                              6635
 

----------------------- Page 31-----------------------

Boochever's  Schraff   concurrence;   in   that   case   the   police   encountered   an   individual 
sufficiently incapacitated to justify concern for his physical safety.112                 Validity of the 

officers' actions turned on whether the officers had a reasonable belief a wallet search 
was necessary to alleviate the perceived emergency.113              The court concluded Schraff was 

not so incapacitated that an emergency justifying a wallet search could be objectively 
seen from the circumstances.114         In that narrow factual context, "true necessity" - as the 

court of appeals used that term in Gallmeyer - was lacking.                    But, as discussed below, 

where a perceived emergency's circumstances are far more undefined and the potential 

harm is more serious, a more liberal view of "true necessity" than the court of appeals 

used in this case must be invoked to allow the police to fulfill their duties to the public. 

                 We therefore agree with both parties to some extent.   Gibson is correct that 

"true   necessity"   is   a   part   of   the   first   prong   inquiry   whether   objectively   reasonable 

grounds support a belief an emergency exists.  But as discussed below in the context of 

this case,  the State is also correct that the concept of "true necessity" does not in every 

case require those objectively reasonable grounds to be based on probabilities rather than 

possibilities.    Application of the emergency aid exception to the warrant requirement 

cannot be evaluated with across-the-board, rigid, and formalistic standards; it is a flexible 

doctrine that, as the court of appeals noted in Gallmeyer, must be evaluated on a case-by- 

case   basis,   balancing   the   competing   interests   in   light   of   the   actual   facts,   perceived 

dangers, and circumstances encountered by police. 

         112     544 P.2d at 848 (Boochever, J., concurring). 

         113     Id. at 844 (majority opinion). 

         114     Id. 

                                                    -31-                                                 6635 

----------------------- Page 32-----------------------

        D.	     We       Reverse      The     Court     Of    Appeals'       Application       Of    The 
                Mitchell/Gallmeyer Standard In This Case 

                We     next   consider   whether     the  court   of   appeals  correctly   applied   the 

Mitchell/Gallmeyer standard to the facts of this case when it concluded the police did not 

have an objectively reasonable belief of an emergency when they searched Gibson's 

trailer, reversed the trial court's denial of Gibson's suppression motion, and vacated 

Gibson's convictions.       We conclude it did not and therefore reverse its decision. 

                 1.	     Police duties 

                The     emergency      aid  doctrine   is  predicated    on   the  notion   that  during 

emergencies   police   have   duties   to   take   action   that   might   otherwise   violate   legally 
protected rights.115    We note Professor LaFave's approval of a court's artful articulation 

of the relevant question in the warrantless search context as whether the police would 
have been "derelict in their duty" by not taking action.116             Because this case involves 

domestic violence, we consider the relevant police duties in that context. 

                In Alaska there are circumstances where "[a] police officer is under a duty 
to protect the lives and property of the public."117         The Alaska Legislature has passed a 

law specifically outlining the duties of a police officer responding to a crime involving 
domestic violence.118       Alaska Statute 18.65.515, entitled "Duties of peace officer in a 

        115	    Id. 

        116     LAFAVE, note 97, above,  6.6(a), at 453 (quoting State v. Hetzko, 283 So. 

2d 49, 52 (Fla. Dist. App. 1973)). 

        117     Deal v. State, 626 P.2d 1073, 1080 (Alaska 1980) (finding police officer 

justified in entering unsecured vehicle for limited purpose of securing it); see also Lee 
v. State, 490 P.2d 1206, 1209-10 (Alaska 1971) (establishing police officer duty to go 
to aid of citizens). 

        118     AS 18.65.515.       This case does not present, and we do not consider, the 

                                                                                         (continued...) 

                                                  -32-	                                            6635
 

----------------------- Page 33-----------------------

crime involving domestic violence,"119 provides in relevant part: 

                          (a)  A   peace   officer   investigating   a   crime   involving 
                 domestic violence shall protect the victim and any member of 
                 the victim's family and prevent further violence by 

                                  (1) transporting an adult victim and any 
                         member of the victim's family from the place of 
                         the    offense     .  .  .  to  a  location    within    the 
                         community         .  .  .  that  is  a  shelter  [or  other 
                         location] requested by the victim; 

                                  (2) assisting the victim in removing from 
                         the residence essential items belonging to the 
                         victim . . .; 

                                  (3) assisting the victim and any member 
                         of    the  victim's    family    in  obtaining     medical 
                         treatment       necessitated     .  .  .  by   contacting 
                          emergency medical services or by transporting 
                         the victim to a local medical facility . . . .[120] 

                 The text of .515(a), .515(a)(1), and .515(a)(3) each refers to not only the 

victim   of   domestic   violence   but   also   "any   member   of   the   victim's   family."         This 

language was deliberate.         The bill leading to the addition of AS 18.65.515 as currently 

in force was passed with conscious reference to the Model Code on Domestic and Family 
Violence;121  the analogous Model Code provision to .515(a), however, speaks only to 

         118     (...continued) 

question of whether this statute establishes a duty of care for a civil action. 

         119     Id. 

         120     Id. 

         121     Minutes, Sen. Judiciary Comm. Hearing on H.B. 314, 19th Leg. 2d Sess. 

(Apr.     15,   1996)     (statement     of   Sean    Parnell,    Representative,      Alaska     House      of 
Representatives)        ("At   the   request   of   many    interested    individuals     and   groups,    the 
                                                                                             (continued...) 

                                                    -33-                                                6635
 

----------------------- Page 34-----------------------

protecting the victim of domestic violence, without mentioning family members or other 
residents.122  Similarly, the Model Code analog of .515(a)(3) requires providing only "the 

victim    and   any   child"   access   to  medical    treatment;    AS   18.65.515     broadens    this 

requirement to apply to any member of the victim's family.               While chapter 18.65 does 

not define "family," the same title borrows the Model Code's extremely broad definition 

of   "family    or  household     member,"     defining    "family"    and   "household     members" 
interchangeably.123     In light of our legislature's special focus on family members, it is 

relevant that in nearly half of domestic violence incidents in Anchorage between 1999 
and 2002, children under the age of 18 were present.124 

                In this context we must also reiterate our recent statements about domestic 

violence.    In  State   v.   Miller,   we   noted   "the   danger   that   a   report   of verbal  domestic 
dispute portends."125     We also noted a September 2005 study ranked Alaska first in the 

nation for the rate of intimate partner violence resulting in homicide, and that nationally 

92% of female victims were murdered by someone they knew and 62% were killed by 

        121     (...continued) 

proposed committee substitute presents a more comprehensive approach to domestic 
violence in Alaska.      The committee substitute is based, in part, on the Model Code on 
Domestic   and   Family   Violence   and   is   focused   on     victim   protection   and   domestic 
violence prevention."). 

        122     MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE   204(1) (1994). 

        123     Compare       AS     18.66.990     (defining     "household      member"      broadly, 

encompassing virtually all arrangements of cohabiting adults and children), with MODEL 
CODE     ON  DOMESTIC      AND   FAMILY    VIOLENCE         102(2)   (1994)   (defining   "family   or 
household members" broadly, including virtually all cohabiting adults and minors). 

        124     Manny Rivera et al., Assaults in Domestic Violence Incidents Reported to 

Alaska State Troopers, 25 ALASKA JUSTICE FORUM, Fall 2008, at 7-12. 

        125     207 P.3d 541, 545 (Alaska 2009) (emphasis added). 

                                                 -34-                                            6635
 

----------------------- Page 35-----------------------

husbands, ex-husbands, or boyfriends.126          The court of appeals itself noted in Gallmeyer 

that police intervention in domestic violence incidents is "often particularly hazardous" 

and courts should be "flexible in assessing the reasonableness of the particular manner 
chosen to deal with the emergency."127 

                The emergency aid exception to the warrant requirement must be viewed 

against that backdrop in this case.          We do   not mean to suggest the legislature could 

eviscerate   Alaska's   constitutional   right   of   privacy   merely   by   statutorily   delineating 

police duties in specific situations.  But in the domestic violence context we can say it 

is undisputable that the threat of injury or death affecting multiple people, including 

children and other family members, is a serious consideration for responding officers. 

                2.	     The officers' initial search was justified by the emergency aid 
                        exception to the warrant requirement. 

                Whether      an  officer   has  objectively    reasonable    grounds    to  believe   an 
emergency exists is a question of law,128 but the resolution of this question depends 

heavily on the specific facts of a given case.129        The superior court did a commendable 

job establishing a record for review in the present case, conducting evidentiary hearings 

        126     Id. (citing VIOLENCE POLICY CENTER, WHEN MEN MURDER WOMEN : AN 

ANALYSIS OF 2003 HOMICIDE DATA , at 3, 5 (2005)). 

        127	    Gallmeyer, 640 P.2d at 845 n.13. 

        128     See, e.g., United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995) 

("Our de novo  review of the record convinces us that the agents did not reasonably 
believe that they were confronted with an emergency . . . ."); cf. Beltz, 221 P.3d at 332 
(noting   in   context   of   warrantless   police   searches   of   garbage   outside   home   whether 
subjective expectation of privacy is objectively reasonable is question of law). 

        129     See,    e.g.,  State  v.  Wood,    149   P.3d   1265,   1267-68     (Or.   App.   2006) 

("Whether   an   officer's   perceptions   of   an   emergency   are   objectively   reasonable   is   a 
question of law and will depend on the facts of each case." (citing State v. Christenson, 
45 P.3d 511, 513 (Or. App. 2002))). 

                                                  -35-	                                           6635
 

----------------------- Page 36-----------------------

over five days and making detailed findings of fact, none of which are challenged by 

either party.  We review these factual findings "in the light most favorable to upholding 

the trial court's ruling" to deny the motion to suppress, but "independently determine 
whether [its] factual findings support its legal conclusions."130 

                We   take   the   following   factual   findings   from   the   superior   court's   order 

denying the suppression motions.          The officers were dispatched to Gibson's residence 

for   "a   domestic   disturbance     involving    a  knife."  On     arrival   they  heard  a  woman 

"screaming distressfully from the inside of the trailer."  A woman stumbled out "naked 

except for a tank top [and] appeared hurried and visibly injured."  She was crying "Help 

me, help me!"      The officers "did not know how many people were involved," "had a 

person coming out of the trailer," and were aware of the "mention of the knife" in the 

dispatch, so they requested assistance. 

                A man "came to the doorway. The officers drew their weapons and ordered 

him to come out of the trailer.       He complied and was placed in custody."             The woman 

went back into the trailer to put on pants.  The officers ordered her away from the trailer 

and tried to question her.       They "observed swelling" in one eye and "a cut on the back 

of her head," she "was hysterical and uncooperative," when she "became argumentative" 

the officers were concerned "she would start a fight" with them or Gibson. 

                Although the woman denied anyone else was in the trailer, she continued 

to be uncooperative and "the officers still could not be certain about how many people 

were involved."  The officers did not rely on the claim that no one else was in the trailer. 

Both officers testified the motivation for the search was "to make sure" there were no 

injured people inside in need of their aid, and the superior court found the officers' 

testimony credible:      "There was absolutely no evidence on the record that something 

        130     Miller, 207 P.3d at 543. 

                                                  -36-                                              6635 

----------------------- Page 37-----------------------

outside the trailer led them to suspect that there could be a meth lab inside."  Finally, the 

superior court determined the officers' search of the trailer fell "well within the time and 

scope limits" of an allowable search under the emergency aid doctrine.                        The superior 

court   concluded   the      officers'   initial   search   was   justified   under   the   emergency   aid 

doctrine, but expressly stated it did not find "a general warrantless search exception for 

all domestic violence cases" and "the findings are specific to the facts of this case." 

                 The court of appeals reversed, concluding the facts found by the superior 

court "would not 'have led a prudent and reasonable officer to perceive an immediate 

need   to   take   action   in   order   to   prevent   death   or   to   protect   against   serious   injury   to 
persons or property.' "131      The court of appeals interpreted the factual findings as follows: 

by the time the officers entered the trailer they knew Bevin was the victim who made the 

911 call; Gibson - the apparent assailant - was in custody; and, because there was "no 

sign that there was anyone inside," the officers "had no reason to believe that there was 
anyone   else   in   the   trailer."132  In   holding   the   officers'   belief   in   the   existence   of   an 

emergency at the time of the search was not objectively reasonable, the court of appeals 

explained the test for an emergency "implies that a mere possibility that an emergency 

exists will ordinarily not be sufficient" and that "[t]he State justifies the police entry into 
Gibson's home based on speculation."133               The court expressed concern that if it "were 

to authorize the police to enter someone's home based on these facts, the police would 

routinely be able to search a residence in most cases where there was a report of a serious 

         131     Gibson, 205 P.3d at 353 (quoting Gallmeyer, 640 P.2d at 842). 

         132     Id. at 356. 

         133     Id. 

                                                    -37-                                                  6635 

----------------------- Page 38-----------------------

domestic dispute."134 

                 The State argues the court of appeals "failed to consider the evidence in the 

light   most   favorable"   to   upholding   the   trial   court's   findings   when   it   concluded   the 

officers' belief an emergency existed was unreasonable.   The State asserts the "court of 

appeals mistakenly viewed the fast-moving events in isolation and failed to consider the 

entire scenario."      The State contends the officers' belief was reasonable because of the 

"pandemonium" at the scene when the officers arrived and because the officers "did not 

know for sure who had placed the 911 call and had not seen or recovered the knife that 

had been used to threaten" the 911 caller. 

                 Gibson argues the officers' belief was not objectively reasonable because: 

(1) the officers should have known the altercation involved only two parties given the 

dispatch call and their own observations when arriving; (2) "[a]ny 'pandemonium' that 

existed when the police first arrived had now dissipated or, at a minimum, moved out of 

the trailer"; (3) Bevin was obviously the victim "given her injuries and hysteria"; and 

(4) there was no indication anyone was in the trailer. 

                 We agree with the State that the court of appeals did not view the superior 

court's   factual   findings   in   the   light   most   favorable   to   upholding   the   denial   of   the 

suppression motion.        We also believe the court of appeals took a far narrower view of 

an   "emergency"   than   its   own   post-Gallmeyer  cases   have   taken.           The   fundamental 

question   raised   by   the   difference   in   the   superior   court's   and   the   court   of   appeals' 

decisions is this:  is it enough that the police have good reason to believe there might be, 

as opposed to there is, someone injured in the premises?                 On the facts of this case, we 

answer yes.     We therefore reverse the court of appeals' decision. 

        134      Id.  To be clear, this case involved not merely "a serious domestic dispute," 

but serious domestic violence - the initial 911 call included a statement about a threat 
with a knife and the officers observed Bevin had suffered several head wounds. 

                                                   -38-                                                 6635 

----------------------- Page 39-----------------------

               The superior court found the officers could not be certain whether Bevin 

and Gibson were the only persons involved in the domestic violence occurring in the 

trailer. The court of appeals implicitly found this finding clearly erroneous instead of 

considering it an accurate portrayal of the situation, concluding the officers reasonably 

should have known they had all the actors accounted for when Gibson and Bevin were 
secured.135  Yet the superior court's finding has support in the record: the dispatch to the 

officers noted "a disturbance in the background" of the 911 call, and distinct voices of 

both the female caller and an unidentified male.        The superior court found the officers 

reasonably declined to rely on Bevin's claim that no one else was in the trailer.  Silence 

from the trailer for the 25 minutes the officers waited for the backup officer to arrive was 

as equally consistent with someone lying injured in the trailer as it was with no one being 

in the trailer.  Taking the facts in the light most favorable to upholding the denial of the 

suppression motion, we conclude the officers were presented with a domestic violence 

emergency   shrouded   in   ambiguity   concerning   the   number   of   people   involved   and 

possibly involving serious harm to other unknown individuals. We conclude the officers 

had a reasonable belief someone might be lying injured in the trailer, notwithstanding 

that:  (1) after the officers secured Gibson and Bevin, they radioed to inform the backup 

officer, for the public's and his own safety, that he no longer needed to respond at an 

emergency level; and (2) the officers waited 25 minutes for the backup officer to arrive 

before they conducted their search for injured persons in the trailer. 

               Earlier court of appeals cases considering the emergency aid doctrine are 
instructive.136  For example, the court of appeals has found an officer's genuinely held 

        135    Id. 

        136    See note 100, above. 

                                               -39-                                            6635 

----------------------- Page 40-----------------------

belief in an emergency objectively reasonable even if no known victim existed137 or the 

potential victim was believed already dead.138        The court of appeals has upheld belief of 

a potential victim as reasonable when the evidence supporting that belief was second- 
hand139   or   third-hand   information,140  an   anonymous   telephone   call,141   or   ambiguous 

personal observation.142  Additionally, while the delay between when police received and 

        137    Hotrum, 130 P.3d at 967-68 (entry upheld where police responded to a call 

reporting yelling and gunshots inside home, though police neither heard anyone inside 
nor received any response to announcement of presence);  Mark, 2002 WL 341979, at 
*1 (entry upheld where police forcibly entered hotel room after finding body of woman 
who had fallen from room to her death); Larson, 2000 WL 19199, at *1 (entry upheld 
where police entered home following a report of shooting to ascertain if any further 
victims were inside); Krukoff, 702 P.2d at 665-66 (discovery of double homicide with 
killer still at large presented emergency situation justifying search of home for known 
household weapons, though no expectation of finding additional victims in home). 

        138     Williams, 823 P.2d at 2-3 (emergency exception applied where defendant's 

confession to killing victim prompted search); Spein, 1984 WL 908539, at *1 (upholding 
entry   under   emergency   exception   after   victim's   brother   witnessed   a   drunken   fight 
between victim and her husband, heard husband threaten to kill victim, and later heard 
two gunshots from inside victim's home; public safety officer gained entry after 24 hours 
of attempts, during which victim was neither seen nor heard from). 

        139    See,    e.g.,  Spein,  1984   WL    908539,    at  *1  (witness   reported    hearing 

defendant threatened to kill victim, followed by two gunshots from inside home). 

        140     Williams, 823 P.2d at 2 (killer confessed to his foster mother, who called 

police). 

        141    Johnson, 1998 WL 19470, at *1 (police received anonymous telephone tip 

about burglary on their non-emergency line). 

        142    Hotrum, 130 P.3d at 967 (when investigating call reporting yelling and 

gunshots inside home, police observed open doorway in middle of night and neither 
heard anyone inside nor received any response to announced presence); Johnson, 1998 
WL 19470, at *1 (when investigating reported burglary, officers observed destroyed 
                                                                                     (continued...) 

                                                -40-                                          6635
 

----------------------- Page 41-----------------------

responded to information reporting an emergency may be a factor in determining the 

objective reasonableness of belief in an emergency, delays in police response have not 
been dispositive.143     This is true whether the delays are caused by external events144 or 

police inaction.145    These delays have extended from brief attempts to procure peaceable, 

rather than forcible, entry into an emergency scene146 to multiple-hour delays.147   The 

        142      (...continued) 

patio furniture and burning planter box and heard fight inside); Harrison, 860 P.2d at 
1282 (when officer approached resident's house to serve misdemeanor arrest warrant, 
officer saw man face down at table, apparently seriously ill or dead); Williams, 823 P.2d 
at   2   (as   officer   approached   apartment,   he   saw   clothing   on   ground   outside   bedroom 
window and several apparent blood stains on steps leading to apartment). 

        143      See   Williams,   823   P.2d   at   3  ("The   passage   of   time,   however,   though 

relevant to the possible existence of an emergency, is not determinative." (citing State 
v.  Beaumier,   480   A.2d   1367,   1373   (R.I.   1984))); see   also  Montgomery,   1986   WL 
1160968,   at *1-2 (entry upheld after seven hours of negotiations); Spein, 1984 WL 
908539, at *6 (entry upheld more than 24 hours after shots were heard). 

        144      See, e.g., Williams, 823 P.2d at 2-3 (more than six-hour delay in finding 

victim's apartment). 

        145     Montgomery, 1986 WL 1160968, at *1 (entry upheld despite seven-hour 

delay    when    police   negotiated     with   apparently    suicidal   resident);  Spein,   1984     WL 
908539, at *6 (upheld despite more than 24-hour delay attempting to peacefully enter 
residence). 

        146     Harrison,   860   P.2d   at   1282   (before   entering   home   to   assist   apparently 

ill/dead individual, officer knocked on front door, tapped on window, knocked on door 
again, tapped on window again, opened front door and yelled in, and continuing calling 
to apparent victim   while approaching);  Williams, 823 P.2d at 2-3 (police stopped to 
knock and identify themselves, sought apartment manager for a key, and again knocked 
and identified before entering, despite evidence of apparent altercation and blood stains). 

        147      Williams,   823   P.2d   at   2-3   (upheld   despite   more   than   six-hour   delay   in 

finding victim's apartment);Montgomery, 1986 WL 1160968, at *1 (seven-hour delay); 
                                                                                           (continued...) 

                                                   -41-                                              6635
 

----------------------- Page 42-----------------------

court of appeals also has afforded police wide latitude in their response or non-response 

to a perceived emergency: emergencies were found to exist when the police immediately 
called    for  backup,148    when     the  police   deliberately     chose   not   to  act  out   of  safety 

concerns,149 and when the police simply failed to request medical assistance or backup.150 

                 Professor   LaFave   notes   two   relevant   examples   of   situations   in   which 

emergency circumstances have traditionally justified warrantless entry:  (1) after police 

learn of a shooting at a specific location from which one injured victim has been taken 

to the hospital, "the possibility that 'others may have been injured and may have been 

abandoned on the premises' provides a sufficient basis for an immediate entry 'to render 
aid   to   anyone   in   distress'   ";151  and   (2)   after   police   learn   of   a   recently   burglarized 

property, a warrantless entry is justified "to seek possible victims of violence."152  This 

is consistent with the court of appeals' post-Gallmeyer consideration of the emergency 

aid doctrine until Gibson's appeal. But under the court of appeals' current view, neither 

example raised by Professor LaFave would support the emergency aid doctrine in Alaska 

because the police entries would be based on speculation. 

        147      (...continued) 

Spein, 1984 WL 908539, at *6 (24-hour delay). 

        148      Johnson, 1998 WL 19470, at *1 (police waited until backup arrived before 

forcing entry into apartment). 

        149      Montgomery, 1986 WL 1160968, at *1 (police did not enter immediately, 

instead engaged in negotiations with apparently suicidal resident for seven hours). 

        150      Harrison,   860   P.2d   at   1282   (officer   did   not   call   for   ambulance,   police 

backup, or other medical back up despite apparently seriously ill or dead individual). 

        151      LAFAVE, note 97, above,  6.6(a), at 457 (quoting People v. Hill, 528 P.2d 

1, 19-20 (Cal. 1974)). 

        152      Id. at 461. 

                                                    -42-                                              6635
 

----------------------- Page 43-----------------------

                 The court of appeals' current view also has been rejected in Washington, 

which applies the same emergency aid doctrine standard and shares the same heightened 
constitutional concerns about warrantless entry into a residence.153  In State v. Johnson, 

the police responded to a domestic violence report by a non-participant in the domestic 

dispute and a male came out of the residence, was handcuffed, and placed in a police car; 

an officer went to the door, a bloodied female answered, she was told to stay put, and the 

officer entered the residence "to protect [her] and other potential victims . . . and to 
ensure an orderly investigation."154          The court rejected the argument that police entry 

should be allowed only with a "strong" belief that "a specific person" is in "actual need" 
of assistance.155    The court explained this limitation "would frustrate the purpose of the 

emergency exception" for two reasons.156  First, the court noted the emergency exception 

serves   the   "important   purpose"   of   "allow[ing]   police   to   carry   out   their   community 
caretaking function to protect citizens and property."157  Second, such a limitation "would 

largely    defeat    the  purpose     of  the   doctrine"    as  officers    often   "lack   the   specific 

information" necessary to meet this standard, such as the particular person in need or the 

exact number of potential victims; instead, while "[t]he officers may not know the exact 
nature of the need . . . they know that something is amiss."158 

        153     See State v. Johnson, 16 P.3d 680 (Wash. App. 2001).
 

        154     Id. at 682.
 

        155     Id. at 684-85.
 

        156     Id. at 685. 
 

        157     Id.
 

        158     Id.
 

                                                   -43-                                              6635
 

----------------------- Page 44-----------------------

                We believe the Washington courts, Professor LaFave, and the court of 

appeals'      earlier  considerations      of   the Mitchell/Gallmeyer         standards     reflect  the 

appropriate application of the emergency aid doctrine in this case.                 It is important to 

contrast the facts of this case with the hypothetical fact pattern the court of appeals 

presumably was concerned about when reversing the trial court's suppression ruling: 

this is not a case of an anonymous third-person report of a verbal domestic dispute 

uncorroborated by any auditory or visual evidence upon the officers' arrival.  That fact 

pattern is not before us and we express no view on the application of the emergency aid 
doctrine to that fact pattern.159 

                What we do express is that where:            (1) the police respond to a domestic 

violence   call   and   find   serious   domestic   violence   has   occurred;   and   (2)   it   is   unclear 

whether the police have accounted for everyone, especially children, who may have 

caused   or   been   affected   by   the   serious   domestic   violence,   the   police   may    have   a 

reasonable belief that some unknown person(s) might be lying injured and enter the 

premises to search for possible victims.           Given the factual findings made by the trial 

court in this case, and given our directive that those facts be viewed in the light most 

favorable to upholding the trial court's suppression decision, we must reverse the court 

of appeals' decision that the police did not have a reasonable belief of an emergency 

justifying a warrantless entry into Gibson's trailer. 

        159      Cf.   State  v.  Menz,    880   P.2d   48,  49-50    (Wash.    App.   1994)    (holding 

warrantless      entry   lawful   under    emergency      aid   doctrine   when     responding     to  an 
anonymous report of domestic violence despite not observing any signs of violence at 
scene, because "a reasonable person facing this combination of circumstances would 
have thought that someone inside needed assistance"). 

                                                  -44-                                             6635
 

----------------------- Page 45-----------------------

V.      CONCLUSION 

               We   REVERSE   the   court   of   appeals'   decision   that   the   emergency   aid 

doctrine is inapplicable because the officers did not have an objectively reasonable belief 

of an emergency justifying the initial warrantless entry into Gibson's residence. Because 

the court of appeals stopped its consideration of Gibson's appeal at this first prong of the 

emergency   aid   doctrine, we remand to the court of appeals for consideration of the 
remainder of Gibson's issues on appeal in light of our decision.160 

        160    In his appeal to the court of appeals, Gibson also challenged the second and 

third   searches   of  the  trailer,  conducted   by  Officer   Asselin   and  Detective    Bryant, 
respectively, as part of his claim that the superior court should have granted his motion 
to suppress, dismissed the indictment, and reversed his conviction.  These issues remain 
for the court of appeals to address on remand. 

                                               -45-                                           6635
 

----------------------- Page 46-----------------------

CHRISTEN, Justice, dissenting in part. 

                 I agree with the court's articulation of the  Gallmeyer test as the correct 

standard   for   the   warrantless   entry   of   a   private   residence   under   the   emergency   aid 

exception, but I agree with the court of appeals that the first prong of the test was not met 

here.    In   Alaska,   it   is  necessary    for  police   officers   to  base   the  suspicion     that   an 

emergency exists on objectively reasonable facts.                Gallmeyer requires more than pure 
speculation that an emergency could be ongoing.1                  Despite its lengthy review of fact 

patterns   from   other   cases   that   justified   warrantless   searches   -   where   babies   were 

obviously at risk or where citizens had been injured or were clearly in peril - the bottom 

line in this case is that no objective facts provided grounds for the warrantless entry. 

None are cited by the court. 

                 In   my   view,   the   court   of   appeals   was   disciplined   in   its   application   of 

Gallmeyer and correctly concluded that if a warrantless search could be upheld under the 

circumstances of this case, then a warrantless search could be permitted in virtually all 

domestic disturbance 911 calls.           The Alaska Constitution requires more.               Because the 

decision   issued   today   allows   the   emergency   aid   exception   to   swallow   the   rule   that 

warrantless entries of private homes are not permitted in Alaska, I respectfully dissent. 

         1       Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982) ("[I]t is well 

settled that the existence of an emergency must be determined by an objective standard 
- whether the evidence would have led a prudent and reasonable officer to perceive an 
immediate need to take action in order to prevent death or to protect against serious 
injury to persons or property."). 

                                                    -46-                                                 6635 
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