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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lum v. Koles (9/21/2018) sp-7302

Lum v. Koles (9/21/2018) sp-7302

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



DANIEL LUM and POLLY LUM, for                            )  

themselves and for their minor                           )    Supreme Court No. S-16057  

children, JOSEPH AVEOGANNA,                              )  

ELIZABETH HAWLEY, AIYANNA                                )    Superior Court No. 2BA-07-00083 CI  

LUM, and JAMIE LUM,                                      )  

                                                         )    O P I N I O N  

                           Appellants,                   )  

                                                         )    No. 7302 - September 21, 2018  

         v.                                              )  

                                                         )  

GWENDOLYN KOLES F/K/A GRIMES,)  

JOSE GUTIERREZ, and NORTH                                )  

SLOPE BOROUGH,                                           )  

                                                         )  

                           Appellees.                    )  

                                                         )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,
  

                  Second Judicial District, Barrow, Michael I. Jeffery, Judge.
  



                  Appearances:         Colleen  A.  Libbey,  Libbey  Law  Offices,  

                                                                               

                  Anchorage, for Appellants Daniel and Polly Lum.  Lester K.  

                                                                 

                  Syren, Syren Law Offices, Anchorage, for Appellant Minor  

                  Children.  Brent R. Cole, Law Office of Brent R. Cole, P.C.,  

                  Anchorage,   for   Appellees   Gwendolyn   Koles   and   Jose  

                                                                                    

                  Gutierrez.       Peter  C.  Gamache,  Law  Office  of  Peter  C.  

                                   

                  Gamache, Anchorage, for Appellee North Slope Borough.  


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

                   Before:  Stowers, Chief Justice, Winfree, Bolger, and Carney,           

                   Justices, and Eastaugh, Senior Justice.*  

                                                                               [Maassen, Justice,  

                   not participating.]  



                    CARNEY, Justice.
  

                   BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
  



I.        INTRODUCTION  



                    The Lum family sued two police officers and the North Slope Borough for  

                                                                                                             



trespass and invasion of privacy after an allegedly unlawful entry into the Lums' home.  

                                                                                        



The superior court dismissed both claims on summary judgment, reasoning that the  



officers were protected by qualified immunity under state law because the Lums had not  



produced sufficient evidence that the officers acted in bad faith.  We reverse the superior  

                                                                                                              



court's decision because there are genuine issues of material fact as to whether they acted  

                                             



in bad faith.  



II.       FACTS AND PROCEEDINGS  



          A.       Daniel Lum's Relationship With The Officers  



                   In 2007 Daniel and Polly Lum and their children lived in Barrow.  Officer  

                                           



Gwendolyn Grimes and Sergeant Jose Gutierrez were officers with the North Slope  



                                          1  

Borough Police Department.   



                   Daniel first met Grimes in her official capacity on August 22, 2007 after he  



                                                                                                       

reported that someone had stolen his methadone medication.  Grimes responded to the  



                                                                                                                    

call and met Daniel and Polly at their apartment.  Grimes later said she "felt bad for  



                                                                                                     

[Daniel] that he was a junkie, methadone user."  She knew that Daniel worked by driving  



                                                  

tourists  around  in  his  van,  and  had  referred  people  to  his  business.    Grimes  was  



          *         Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  



          1         Grimes has since married and changed her legal name to Gwendolyn Koles.  



                                                             -2-                                                       7302
  


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

                                           

concerned that he might be driving under the influence of drugs, so she made a mental  



note to "keep an eye on him" while he was driving around town.  



                                                                                           

                       Daniel and Grimes met again in early September 2007 when they spoke  



                                                                       

about an incident purportedly involving a white man trying to abduct Native children.  



At that time Grimes was in her police vehicle and Daniel was on foot.  Grimes later  



recalled that because the subject matter made Daniel visibly angry, she asked him "if  



                                                                                                                              

everything was okay."  Daniel remembered that she had asked what his problem was.  



Grimes recalled that Daniel then "just jumped down my throat and just started yelling  



and screaming at me," and said, "I'm not gonna talk to a meth dealer."  In contrast Daniel  



                                                                                                          

said he told Grimes, "[M]y problem is your family is dealing meth in our village, that's  



my problem."  



                       Grimes later said that she interpreted Daniel's response as an accusation  

that she was a meth dealer.2  She said she did not pay much mind to Daniel's accusation,  



calling it "just . . . one of [his] ranting and ravings."  She said that she quickly terminated  



                                                                                                         

the encounter. Daniel recalled her departure as less friendly: Grimes telling him, "[Y]ou  



                                                               

go with that Daniel, I'll see you on the street.  And that wasn't a see you later, buddy,  



that was I'll see you on the street. . . . I took it as a threat."  



                                                  

                       The following day Daniel was involved in a police chase ending at Point  



                                                                                                               

Barrow.  When he reached the point and got out of his vehicle, he saw a police officer  



                           

some distance away fire a gun in his direction.  Daniel thought it was Grimes.   He  



remained on the point until his negotiated surrender with the police.  



            2          Grimes explained that in the course of her work she got "a lot of crap from                                   



people on the street" regarding rumors of her dealing methamphetamine.  She attributed   

the  rumors  to  perceptions  that  the  police,  including  her  police   chief  father,  were  

protecting her cousin, whom she admitted was a methamphetamine dealer.  



                                                                        -3-                                                                 7302
  


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

                                                                                                           

                    Soon afterward Daniel began making accusations of police corruption.  He  



                                                                                                         

spoke to the City of Barrow mayor about the incident at Point Barrow and attempted to  



                                                                                            

speak to the North Slope Borough mayor.  Grimes knew that there were accusations of  



police corruption but said that she did not know they were coming from Daniel.  



                    Her  colleague  Gutierrez  knew  of  Daniel  and  his  tour  business  van.  



                                                                                                            

Gutierrez said that he knew "in general" that Daniel had been accusing police officers  



                                                                                        

of being "dirty cops," but that he had no "direct knowledge" and knew only "scuttlebutt."  



          B.        The Events Of September 18, 2007  



                                                                                         

                    About 8:00 p.m. on September 18 a dispatcher at the North Slope Borough  



                                                          

Police Department received a 911 call from a woman who identified herself and stated  



                                                                                                                

that she was a friend of Polly Lum.  She said that she wanted "some officers to go to [the  



                             

Lums' apartment] for a welfare check on some children."  She said she had heard the  



              

children "crying, and [a] newborn infant crying and two adults fighting and screaming."  



She had heard this when Polly called her on the phone for help.  She also said that Daniel  



had told her that Polly had "bruises and a cut on her head."  



                    The dispatcher reported to all units:  "Female asking PD to do welfare  



check on couple as they were having a domestic dispute.  Kids are crying, and she is  



concerned regarding kids' welfare at [the Lums' address]."  



                                                                                                      

                    Grimes was on shift with Gutierrez and another officer. They were together  



                                                                                                                    

on the scene of another call when they received the dispatcher's message and said they  



would respond to the call.  



                    The officers' information was limited to what the dispatcher told them.  



                                                                                         

They did not know the details of the 911 call.  They did not therefore know the caller's  



                                                  

identity or about Polly's reported injuries.  Gutierrez later agreed that a dispatcher would  



                                                                              

normally  inform  the  officers  if  she  had  reason  to  believe  the  call  involved  alcohol,  



weapons, or physical injury.  



                                                              -4-                                                        7302
  


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

                    Gutierrez arrived on the scene first, followed shortly by Grimes.  Grimes  



realized after arriving that the apartment was the Lums' because Daniel's van was parked  



outside.  Both Grimes and Gutierrez turned on their audio recorders and walked toward  



the apartment.  They did not speak to one another as they approached.  



                    Gutierrez later testified he had heard "shouting" or "yelling" inside the  



home as he approached.  Grimes testified she did not remember hearing anything as she  



                                                                                                   

approached the house but heard yelling inside the house once she was in front of the  



                                                                                                            

door.  Their audio recordings do not offer definitive support for this claim. Footsteps can  



be heard on Gutierrez's recording as he approaches the apartment building, as well as  



what  might  be  voices  in  the  background;  distortion  makes  it  difficult  to  draw  any  



                                                                                                           

conclusions.  Grimes's recording is no clearer.  The officers concede that any argument  



                                                                                      

they might have heard is "not audible on the recordings."  The Lums concede that they  



                                              

were  arguing,  but  claim  that  by  the  time  the  police  arrived  they  had  moved  their  



argument into the bathroom and had resumed speaking in normal voices.  



                                                                                    

                    Gutierrez knocked on the exterior door of the apartment building and a  



                                                                                     

young girl, approximately six to eight years old, opened it.  A barking dog stood with her  



in the hallway.  The girl told the officers to come in.  Gutierrez asked her where her  



parents were, and she responded "over there" pointing toward the interior door to the  



                                          

apartment.  Gutierrez asked the child to "get him," meaning to "get a hold of the dog."  



                                            

The  voices  of  a  young  girl  and  a  young  boy  can  then  be  heard  on  the  recording  



                                                                                                           

attempting to introduce the officers to their dog, Mabel.  The children's voices do not  



                                         

reveal any obvious signs of stress.  The superior court's order noted that the children on  



the audio recording "did not sound stressed at the time."  



                                                                                              

                    Gutierrez opened the interior door and entered the apartment immediately  



after the children "got hold of the dog."  Grimes followed.  After entering, Grimes took  



                                                             -5-                                                       7302
  


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

out her pepper spray.   She later stated she did this because she was concerned the dog  



might bite the officers.  



                   Neither officer announced their identity as police officers or their purpose.  



Gutierrez said this was because it was not required when police respond to a domestic  



                                                                                                    

dispute that they can hear in progress:  "You kick the door in . . . if you deem it's an  



                    

emergency."  He explained that they did not send the children to fetch their parents,  



because  "[t]hat  would  be  putting  the  child  at  risk."    Grimes  said  that  they  did  not  



announce their presence because the argument that they heard outside the apartment  



created an "exigent circumstance" requiring their entry and investigation.  



                                                      

                   The officers entered the apartment and briefly looked into adjoining rooms  



                                                       

before spotting Daniel, Polly, and an infant in the bathroom.  Daniel did not know the  



                                   

police were there until he saw them from the bathroom.  He told them to leave and  



                                                    

accused Grimes of shooting at him, presumably referring to the earlier incident at Point  



            3  

Barrow.   The officers ordered him to come out of the bathroom.  Daniel tried to slam the  



door  shut,  but  Gutierrez  used  his  shoulder  to  keep  it  open.    Gutierrez  and  Daniel  

                                                                                 



struggled over the door until it was open enough for Grimes to see Daniel; she then  

                                                                         



sprayed him with the pepper spray.  Polly and their infant were hit with some of the  



spray.  



                   Daniel  started  to  feel  like  he  was  choking  and  unable  to  breathe.    He  



repeatedly called out for an ambulance and said he was having a heart attack.   The  



officers wrestled him out of the bathroom and put him in handcuffs.  They then called  

an ambulance and one arrived about ten minutes later.4  



          3        Daniel later learned it had been another officer.  



          4        Lum v. Koles , 314 P.3d 546, 551 (Alaska 2013).  



                                                            -6-                                                        7302  


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

                    C.        Proceedings  



                    In  December  2007  the  Lums  filed  suit  against  the  officers,  alleging  

                                                                            



excessive force and unlawful entry under the Alaska Constitution and AS 12.25.100,  



                                                            5  

                                                                                                               

Alaska's "knock and announce" statute.                        They also sued the North Slope Borough for  



                                                      6  

negligent  training  and  supervision.     In  2010  the  superior  court  granted  summary  



                                      

judgment dismissing the Lums' excessive force claims on qualified immunity grounds  



and dismissing their unlawful entry claims because "neither could support a claim for  



                7  

                                                    

damages."   The court dismissed the Lums' claims against the Borough because the  



                                                                             8 

                                                                                The Lums had raised trespass and  

direct claims against the officers had been dismissed. 



                                                                           

invasion of privacy claims for the first time in their opposition to summary judgment; the  



                                                                                  

trial court had not considered those claims in granting summary judgment on the other  

claims.9  



                                     

                    The Lums appealed, and in Lum v. Koles we affirmed the superior court's  



                                                                                           10  

                                                                                               But we remanded the  

judgment on the excessive force and unlawful entry claims. 



          5         Id. ; AS 12.25.100 ("A peace officer may break into a building or vessel in     



which the person to be arrested is or is believed to be, if the officer is refused admittance  

after the officer has announced the authority and purpose of the entry.").  



          6         Lum , 314 P.3d at 551.  



          7         Id. at 552.  



          8         Id.  



          9         Id. at 557.  



          10        Id.   at   556, 557-59.  We affirmed the superior court's grant of summary  



judgment on the excessive force and unlawful entry claims because the use of force  

following an unlawful entry is not per se excessive force, and because the Lums sued  

                                            

under a provision of the Alaska Constitution which provides no cause of action to sue  

for damages for unlawful entry.  Id. at 555-57.  



                                                              -7-                                                        7302
  


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

trespass and invasion of privacy claims to the superior court for further proceedings.11  



                        In June 2014 the officers moved for summary judgment on those claims,                                       



arguing that qualified immunity protected them as it had against the excessive force  



                     

claims and that the claims failed as a matter of law.  The Lums argued that the officers'  



                                                            

entry into their home was illegal and made in bad faith, that the officers therefore were  



                            

not entitled to qualified immunity, and that summary judgment was not appropriate.  



They argued that the officers had fabricated their claim about hearing an argument before  



entering           the      apartment,             and       that       Daniel's           allegations            that       Grimes           was        a  



                                                

methamphetamine dealer, as well as Gutierrez's knowledge of Daniel's charges against  



                                                                                       

the police department, supported an inference of malice.  The officers countered that the  



                                                                                                                           

evidence showed that they entered the Lums' home to investigate a report of domestic  



violence and that the information known to the 911 dispatcher should be imputed to  



them, which would support the legality of their entry.  



                                                                                                  

                        The superior court granted the officers' motion for summary judgment,  



                                                                                                                              

concluding that the officers were protected by qualified immunity.   It reasoned that  



                                                                                                                         

Gutierrez's general awareness of Daniel's police corruption claims was too speculative  



a  basis  for  a  reasonable  inference  of  malice.    The  court  acknowledged  that  Grimes  



                                                                                                        

presented a "closer issue," given her prior contacts with Daniel, and that viewing the  



                                                                                                                             

evidence in the light most favorable to the Lums a jury might find that Grimes was  



"annoyed" with Daniel "because she assumed he was a significant person in spreading  



                                                                               

the rumor about her alleged meth dealing."  Nonetheless the court determined that this  



                                                                                         

evidence was insufficient because Grimes "faced . . . a report of a domestic dispute with  



                                                                                                                                 

kids crying, and her superior officer had already entered the inner part of the duplex."  



The court determined that there was insufficient evidence to support an inference of  



            11          Id. at 556-57.  



                                                                           -8-                                                                         7302  


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

malice against either officer, regardless of whether the 911 dispatcher's knowledge was  

                                                               

imputed to them.  The Lums appeal.12  



III.      STANDARD OF REVIEW  



                    "We review [a] grant of summary judgment de novo, reading the record in  

                                                                      



the light most favorable to the non-moving party and making all reasonable inferences  

                      



                    13  

in  its  favor."          A  grant  of  summary  judgment  will  be  affirmed  "when  there  are  no  

          



genuine issues of material fact and the moving party is entitled to judgment as a matter  

                                                                      



             14  

of law."         "[T]he evidentiary threshold necessary to preclude the entry of summary  

judgment is low," 15 but the evidence supporting a claim must not be "based entirely on  

                                                       



 'unsupported  assumptions  and  speculation'  and  must  not  be  'too  incredible  to  be  

believed by reasonable minds.' "16  



                    Whether official immunity applies is a question of law that we review de  

                                                                              

novo.17  But the existence of bad faith or malice on the part of police officers is generally  

                                                            



a question of fact, and a disputed issue of malice will survive summary judgment where  

                            



          12        The superior court dismissed the Lums' claims against the Borough as well,  



as those claims were dependent on their claims against the officers.  



          13        Lum , 314 P.3d at 552 (alteration in original) (quoting                        Russell ex rel. J.N.  



v.  Virg-In, 258 P.3d 795, 801 (Alaska 2011)).  



          14        Id. (quoting Russell , 258 P.3d at 801-02).  



          15        Crawford v. Kemp, 139 P.3d 1249, 1253 (Alaska 2006) (quoting Hammond  



v. State, Dep't of Transp. & Pub. Facilities, 107 P.3d 871, 881 (Alaska 2005)).  



          16  

                                                                 

                    Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014)  

(first quoting Peterson v. State, Dep't of Nat. Res., 236 P.3d 355, 367 (Alaska 2010); and  

then quoting  Wilson v. Pollet, 416 P.2d 381, 384 (Alaska 1966)).  



          17        See  Russell,  258  P.3d  at  802;  cf. Maness  v.  Daily ,  307  P.3d  894,  900  



(Alaska 2013) (determining whether state official immunity applies is a question of law  

                                                                                                    

this court reviews de novo).  



                                                              -9-                                                       7302
  


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

                                                                                                        

the  record  contains  "at  least  some  objective  evidence  establishing  facts  capable  of  

supporting an inference of malice."18  



IV.	      DISCUSSION  



                                                                                                         

          A.	       The  Lums  Have  Produced  Sufficient  Evidence  Of  Bad  Faith  To  

                    Survive Summary Judgment On The Issue Of Qualified Immunity.  



                    Alaska Statute 09.65.070(d)(2) grants municipal employees immunity from  



suits for damages based on the "exercise or performance or the failure to exercise or  



                                                    19  

                                                                                       

perform a discretionary function."                      "Official immunity in Alaska is qualified . . . it  



                                                                                         

applies only 'when discretionary acts within the scope of the official's authority are done  



                                                                          20  

                                                                              The issue here is whether there is  

in good faith and are not malicious or corrupt.' " 



                                                                                 

evidence that the officers acted corruptly, maliciously, or in bad faith when they entered  



                                                     

the Lums' home, and whether any such evidence is sufficient for the Lums' claims to  



survive summary judgment.  



                    We have analyzed similar questions before in the context of state officials.  



                                                                                     

In Crawford v. Kemp we reversed a superior court's grant of summary judgment in favor  



of  a  state  trooper,  because  there  was  a  genuine  issue  of  material  fact  whether  the  



                                                      

defendant trooper had acted in bad faith; if he had acted in bad faith, those acts would  



                                                                       21  

not be shielded by qualified state law immunity.    Crawford had sued the trooper after  



          18	       Prentzel v. State, Dep't of Pub. Safety , 169 P.3d 573, 585 (Alaska 2007).  



          19        See  AS  01.10.060(a)(4)   (defining  "municipality"   to  include   "a  home  



rule . . . or general law borough");               Malabed v. North Slope Borough                    , 70 P.3d 416, 419  

(Alaska 2003) (describing the North Slope Borough as a "home rule municipalit[y]").  



          20  

                                                                                      

                    Lane v. City & Borough of Juneau , ___ P.3d ___, Op. No. 7328, 2018 WL  

                                          

1977730 at *5 (Alaska Apr. 27, 2018) (quoting Aspen Exporation Corp. v. Sheffiled , 739  

P.2d 150, 158 (Alaska 1987)).  



          21        139 P.3d 1249, 1258-59 (Alaska 2006).  



                                                             -10-	                                                       7302
  


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

the trooper arrested him for disorderly conduct in a courthouse clerk's office.22                                      The  



                                                                                

trooper  had  approached  Crawford  while  searching  for  another  individual  in  the  

building.23  Crawford grew annoyed and complained loudly about the trooper's questions  



                   24  

and conduct.           The trooper warned Crawford "his speech was disorderly" and that he  



                                                                                                      25 

                                                                                                          Several court  

"would be arrested if he spoke again"; Crawford spoke and was arrested. 



employees testified that Crawford was "loud and disruptive," but Crawford testified  



otherwise and produced an affidavit from a friendly witness stating that both Crawford  



                                                             26  

                                                                                         

and the trooper had spoken in normal tones.                      Considering the conflicting testimony, we  



held  that  there  was  a  genuine  issue  of  material  fact  whether  the  trooper  reasonably  



                                                                                

believed he had probable cause for a disorderly conduct arrest and whether his "decision  



                                                                                                  

to arrest Crawford was made because he was annoyed with Crawford rather than because  



                                                                                   27  

                                                                                       We therefore reversed the  

he had a good faith belief that the law had been violated." 



superior court's judgment that the trooper enjoyed qualified immunity as a matter of  

law.28  



                                                         

                   Conversely, we upheld a qualified immunity determination in Prentzel v.  



State, Department of Public Safety, where the plaintiff's allegations of police malice  



          22       Id. at 1251-52.  



          23       Id. at 1251.  



          24       Id. at 1251-52.  



          25       Id. at 1252.  



          26       Id.  



          27       Id. at 1258-59.  



          28       Id. at 1259.  



                                                           -11-                                                      7302
  


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

                                                                                 29  

consisted only of his own "subjective impressions."                                  State troopers had mistakenly  



arrested Prentzel for violating conditions of release on bail - conditions to which he was       



                            30  

no longer   subject.             Prentzel sued alleging the troopers had demonstrated bad faith  



because they "enjoy[ed] arresting [him]" and one trooper had "used a gleeful tone of  

                                                                                                 



                                                                          31  

voice when deciding to transport [him] to jail."                              We held that Prentzel's subjective  



beliefs found "no objective support from the facts in the record" and that he had failed  



to raise a genuine issue of material fact about the officer's alleged malice sufficient to  

                                                                                                                   

survive summary judgment.32  



                    We reached a similar conclusion in Maness v. Daily , where the plaintiff  



argued that there was a genuine issue of material fact whether the officers had pursued  

                                   

                         33   The defendant officers had gone to Maness's home to execute a civil  

him in bad faith.  

                              



commitment order, but he armed himself and led the officers on an hours-long car chase  

                               



                                                                               34  

and manhunt before he was shot and apprehended.                                    He sued the officers for various  



torts, alleging that he had overcome their qualified immunity through proof of malice:  



for instance, the officers had claimed that he fired shots while fleeing in his RV, but their  

                                                                                                                  



vehicles did not have any signs of gunshot damage, and other officers had not reported  

                                                                                



          29         169 P.3d 573, 585 (Alaska 2007).
  



          30        Id. at 578.
  



          31
       Id. at 585.  



          32        Id. at 585-86.  



          33        307 P.3d 894, 904-05 (Alaska 2013).  



          34        Id. at 897-98.  



                                                               -12-                                                         7302
  


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

                   35  

shots fired.           We held that "these facts [did] not support an inference of malice even if     



viewed in the light most favorable to Maness," because of the abundance of evidence that     



"everything the troopers did . . . was aimed at effectuating" the lawful civil commitment           

order.36  



                       The superior court here usefully framed the issue of officer malice:  whether  



the  Lums  produced  sufficient  evidence  that  the  officers  entered  their  home  with  "a  

                  



malicious desire to disturb [Daniel] beyond what was necessary as they responded to a  

                                                                                             



report of the existence of a domestic dispute that caused children to be crying."  We hold  

                                                                                                                                     



that the Lums have produced sufficient evidence of malice to overcome the low threshold  

                                                                                                  



to survive summary judgment.  



                       We note first that, reading the record in the light most favorable to the  



                                                                                                       

Lums, as we must, there was little evidence on the scene that would have signaled to the  



                                                                                                             

officers that their entry was necessary to effect a lawful purpose.  It is undisputed that the  



                                                                                                                                

dispatch message requested a "welfare check" on a couple that was having a "domestic  



                                                                   

dispute," with kids crying at the scene.  Although the officers have consistently claimed  



                               

that they entered the home after hearing a loud argument inside, no such argument is  



audible in their recordings of the incident.  Furthermore, the officers knocked on the  



                                                             

exterior door and waited for it to be opened before they entered.  And after knocking on  



the exterior door, the officers were greeted by children who showed no obvious signs of  



                                                                                                                                

distress and whose primary concern appeared to be introducing the officers to their dog.  



                                                               

                       The Lums claim that at the time of the officers' arrival they were speaking  



                                                                                                            

at normal volumes.  The Lums have presented evidence that the circumstances apparent  



to the officers when they arrived at the Lums' building and entered the Lum apartment  



           35         Id. at 904-05.  



           36         Id. at 905.  



                                                                      -13-                                                                     7302  


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

did not indicate that there was any emergency requiring their assistance, other than the  

                                              



message from dispatch reporting a "domestic dispute."  The Lums' testimony, the audio  

                                                                                         



recordings, and the officers' testimony reveal a genuine issue of material fact whether  



                                                               

the officers heard "shouting" or "yelling" from inside the apartment.  Unlike in Maness  



and Prentzel , we cannot say that there is "ample record evidence" that everything the  



                                                                                                              37  

officers  did  was  aimed  at  effectuating  a  lawful  emergency  response.                                        Because  



"summary judgment is appropriate only when no reasonable person could discern a  



                                                                                                                 

genuine factual dispute on a material issue" it was not appropriate here in light of the  

evidence presented.38  



                                                                       

                    As in Crawford, where there was a genuine issue of material fact whether  



the officer arrested Crawford because he believed he had probable cause to arrest or  



because he was annoyed by Crawford, so here there is a genuine  issue whether the  



                                                                                       

officers were motivated by an apparent emergency or by their prior experiences with  



           39  

Daniel.          Both  Gutierrez  and  Grimes  knew  Daniel,  and  both  officers  identified  the  



                           

apartment as his, either from past experience or from his distinctive van parked outside.  



                           

Daniel had made public accusations of police corruption.  Both officers were generally  



                                                                         

aware of the accusations and Gutierrez testified he knew the accusations were coming  



                                                      

from Daniel.  Daniel had personally confronted Grimes with accusations that her family  



                                                                            

was selling methamphetamine. Daniel's account of the confrontation with Grimes ended  



with the officer threatening him that she would "see [him] on the street."  The officers  



                                                  

entered Daniel's home less than three weeks later.  It remains a question whether the  



officers entered the Lums' apartment without hearing or witnessing anything on the  



          37        See id. at 905 (quoting Prentzel ,169 P.3d at 585).  



          38        Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014).   



          39        Crawford v. Kemp, 139 P.3d 1249, 1258-59 (Alaska 2006).  



                                                             -14-                                                        7302
  


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

                            

scene  indicating  an  emergency  and  whether  their  entry  was  for  reasons  other  "than  

because [they] had a good faith belief" that their assistance was required inside.40  



                     We reiterate that "the evidentiary threshold necessary to preclude an entry  



                                                41  

                                                                          

of summary judgment is low."                        Collectively, the evidence presented could support an  



                                                                                                             

inference that the officers' entry was motivated by "a malicious desire to disturb [Daniel]  



                                                                              

beyond what was necessary as they responded to a report of the existence of a domestic  



                                                                                                                

dispute."  The existence of bad faith therefore remains a genuine issue of material fact,  



and we cannot affirm the superior court's grant of summary judgment on this point.  



                                                                                                

           B.	       The Officers Are Not Entitled To Judgment As A Matter Of Law On  

                     The Lums' Trespass And Invasion Of Privacy Claims.  



                     The  officers  urge  us  to  affirm  the  superior  court's  grant  of  summary  



                                                                

judgment.  They argue that the invasion of privacy claim is barred because they entered  



                                                                                   

the Lums' home only in "the orderly performance of [their] duties," and that the trespass  



                                                                                 42  

                                                                                                            

claim is barred because their entry was "privileged."                                We take these arguments to mean  



that the officers cannot be held liable under either tort theory because their entry was  



           40	       See id.  



           41        Hammond v. State, Dep't of Transp. & Pub. Facilities                                 , 107 P.3d 871, 881   



(Alaska 2005) (quoting John's Heating Serv. v. Lamb , 46 P.3d 1024, 1032 (Alaska  

2002)).  



           42        The Lums respond that the superior court did not rule on these arguments  



and the officers have waived them.  It is true that the superior court did not make any  

rulings beyond granting the officers qualified immunity.  But that does not mean the  

argument is waived.  "We are not bound by the reasoning articulated by the superior  

                                                                              

court and can affirm a grant of summary judgment on alternative grounds, including  

                                   

grounds not advanced by the superior court or the parties."  Hoffman Constr. Co. of  

                                                                                                                               

Alaska v. U.S. Fabrication  & Erection, Inc. , 32 P.3d 346, 351 (Alaska 2001).   The  

                                                  

officers raised this argument in their motion for summary judgment before the superior  

                                                                            

court, and the Lums responded to the argument in their opposition.  Both parties have  

briefed the issue on appeal.  The argument is not waived and we will consider it.  



                                                                 -15-	                                                          7302
  


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

           43  

                                                       

 lawful.         But  we  cannot  uphold  judgment  for  the  officers  on  this  basis  because  



                                                                                             

 determining the legality of their entry requires resolution of genuine issues of material  



 fact.  



                                                                                        

                     We  note  first  that  the  officers  entered  the  Lums'  apartment  without  a  



                                            

warrant.    Both  the  United  States  and  Alaska  Constitutions  prohibit  "unreasonable  



                                      44  

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



                                                                                            

 Constitution 'searches and seizures inside a home without a warrant are presumptively  

                         45  But "[u]nder the Alaska Constitution 'a search without a warrant is  

unreasonable.' "                                                                                      



per se  unreasonable unless it clearly falls within one of the narrowly defined exceptions  

                                                               



                                             46  

to the warrant requirement.' "                   This is because "[i]n Alaska we have . . . recognized the  

                                                            



 distinctive nature of the home as a place where the individual's privacy receives special  

                                                                                                

protection"47 and "[o]ur . . . state has traditionally been the home of people who prize  

                                          



their individuality and who have chosen to settle or to continue living here in order to  

         



           43        See     87   C.J.S.   Trespass      54   (2018)   ("Valid   authority   from   the  



 government  .  .  .  is  a  defense  in  trespass  for  authorized  acts  by  authorized  persons  

provided the scope of authority has not been exceeded."); 75 A 

                                                                                              M .  JUR .  2D  Trespass  78  

 (2018) ("Law enforcement officers who enter premises without authority are subject to  

 common  law  trespass  actions,  and  trespass  will  lie  for  an  unconstitutional  entry.");  

                                                                             

 Greywolf  v.  Carroll,  151  P.3d  1234,  1245  (Alaska  2007)  (holding  "the  orderly  

                                                               

performance of the police officers' duties" could not give rise to an invasion of privacy  

                         

 claim);  City of Nome v. Ailak, 570 P.2d 162, 167 (Alaska 1977) (holding that police  

 officers' "reasonable belief as to the existence of an emergency" justified unauthorized  

                                                                            

home entry and protected officers from liability for trespass).  



          44         Alaska Const. art. I,  14; U.S. CONST . amend. IV.  



          45         State v. Gibson, 267 P.3d 645, 650-51 (Alaska 2012) (quoting  Groh v.  



Ramirez , 540 U.S. 551, 559 (2004)).  



          46         Gibson, 267 P.3d at 650-51 (emphasis added).  



           47       Ravin v. State , 537 P.2d 494, 503 (Alaska 1975).  



                                                               -16-                                                        7302
  


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

                                                           

achieve a measure of control over their own lifestyles which is now virtually unattainable  



                                             48  

in  many  of  our  sister  states."                 We  have  "consistently  recognized  that  the  home  is  



constitutionally protected from unreasonable searches and seizures, reasoning that the  



home  itself  retains  a  protected  status  under  the  Fourth  Amendment  and  Alaska's  

[C]onstitution distinct from that of the occupant's person."49  



                    As  a  result  of  the  home's  protected  status,  a  warrant  is  required  under  

Alaska law for entry; an officer must demonstrate probable cause to obtain a warrant.50  



                                                                                                           

Probable  cause  requires  more  than  reasonable  suspicion;  it  exists  when  "reliable  



                                                                                    

information is set forth in sufficient detail to warrant a reasonably prudent [person] in  



                                                                                            51  

                                                                                                      

believing  that  a  crime  has  been  or  was  being  committed."                                 A  limited  number  of  



                                                                                                                      52 

                                                                                                                         one of  

narrowly defined exceptions to the warrant requirement have been recognized; 

them is the emergency aid exception.53  



          48        Id. at 504.  



          49        Id. at 503 (citing State v. Spietz, 531 P.2d 521 (Alaska 1975);                             Ferguson v.  



State, 488 P.2d 1032, 1035 (Alaska 1971)).                          See Alaska Const. art. I,  14, 22 ("The  

right of the people to privacy is recognized and shall not be infringed . . . .");                                    Gibson,  

267 P.3d at 659 (explaining   "the Alaska Constitution . . . affords greater protection  

against warrantless search and seizures in the emergency aid context than the United   

States Constitution").  



          50        Carter v. State, 910 P.2d 619, 623 (Alaska 1996).  



          51  

                                                                               

                    Id. (alteration in original) (quoting Van Buren v. State, 823 P.2d 1258, 1261  

(Alaska App. 1992)).  



          52        Other exceptions that allow the warrantless entry into a home include when  



                                                                                                  

officers are in hot pursuit of a suspect, to prevent the imminent destruction of known  

                                             

evidence, and when effective consent to enter is given.  Erickson v. State , 507 P.2d 508,  

515 (Alaska 1973).  



          53        Gibson, 267 P.3d at 658-60.  



                                                              -17-                                                         7302
  


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

                   The officers here rely on the emergency aid exception, which allows a  

                                                                                                       



warrantless entry when three elements exist:  



                                                 

                   (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  

                                                                                               [54] 

                   the emergency with the area or place to be searched.  



We note this exception explicitly incorporates a threshold requirement approximating  



probable cause.  



                   In analyzing the first element, "the criterion is the reasonableness of the  



                                                                                                                           55  

                                                                                                                

belief as to the existence of an emergency, not the existence of an emergency in fact." 



Reading the record in the light most favorable to the Lums, we conclude that there is a  

                                                                                        



genuine issue of material fact whether the officers had reasonable grounds to believe that  

                                                                        



an emergency was at hand in the Lums' apartment.  As we explained in the previous  

                                 



section, a reasonable person could conclude that there was no evidence of an emergency  

                                                                       



taking place in the Lums' residence beyond the 911 dispatcher's report of a domestic  

                        



dispute.  



                   The officers and the dissent, citing State v. Miller, argue that threats of  



domestic  violence  are  no  minor  matter.    We  agree.    We  remain  mindful  "of  the  



continuing problem of domestic violence, and the state's responsibility in protecting  



          54       Id. at 659 (emphasis added) (citing Gallmeyer v. State                        , 640 P.2d 837, 842   



(Alaska App. 1982)).  



          55       Id. at 658 (alteration omitted) (quoting Stevens v. State, 443 P.2d 600, 605  

                         

(Alaska 1968) (Rabinowitz, J. concurring)).  



                                                            -18-                                                      7302
  


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

against it."56  



                    In Miller we held that a reported "verbal domestic dispute" in a parking lot  

                                                                                                           

could justify a "minimally intrusive" investigative stop of the fighting couple's vehicle.57  

                                                                                     



An officer in Alaska may conduct an investigative stop "where the police officer has a  

       



reasonable suspicion that imminent public danger exists or serious harm to person or  



                                                 58  

property has recently occurred."                      Reasonable suspicion requires an officer to have  

"some minimal level of objective justification for making the stop."59   "The objective  

                                                                                                          



justification must be 'something more than an inchoate and unparticularized suspicion  

                                                           

or hunch.' "60  



                    But to rule as the officers and the dissent suggest would create an exception  

                                                          



to the warrant requirement whenever a dispatcher reports a domestic dispute at a given  

                                                                                                                      



residential address, even when officers arrive and find no evidence that a dispute, much  

                                                                                 



less a violent one, is taking place.  It would also seem to create an exception to Gibson's  

                                                       



requirement  of  "a  reasonable  basis  approximating  probable  cause"  to  believe  that  

                                                                                                              

emergency entry into the residence is necessary.61  



                    The  officers  argue  further  that  the  dispatcher  had  information  -  a  

                                         



description of Polly's alleged injuries - that would support a reasonable belief in the  



existence  of  an  emergency,  and  that  this  knowledge  should  be  imputed  to  them  in  

                                                                 



          56        State v. Miller, 207 P.3d 541, 546 (Alaska 2009).  



          57        Id . at 547, 549-51.  



          58         Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).  



          59        Miller , 207 P.3d at 544 (quoting McQuade v. State , 130 P.3d 973, 976-77  



(Alaska App. 2006)).  



          60        Id. (quoting McQuade , 130 P.3d at 977).  



          61        Gibson, 267 P.3d at 659.  



                                                             -19-                                                        7302
  


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

                                                                                          

evaluating the legality of their entry.  The dispatcher never transmitted this information  



to the responding officers, telling them only that there was a "domestic dispute" at the  



                                                                                                      

Lum address and relaying the caller's request for a welfare check.  And Gutierrez later  



acknowledged that the dispatcher would normally tell the officers if a call involved  



physical injury - which was not done here.  Officers Grimes and Gutierrez concede  



they never relied on the dispatcher's knowledge that the dispute potentially involved  

physical injury.  They therefore cannot claim the benefit of it.62  



                                                                                                             

                    The officers and the dissent point to cases where this court and others have  



                                                                                                       

imputed a dispatcher's knowledge to officers to justify traffic stops and defeat motions  



                                                                   63  

                                                                                           

to suppress evidence obtained from the stop.                           They ask us to allow her information to  



                                                            

be imputed to them, citing cases from several federal and state courts.  We find these  



                                    64  

decisions unpersuasive.                 They are based upon the collective knowledge doctrine, which  



          62        Nor does the information known to the 911 dispatcher affect the qualified   



immunity analysis of the previous section.  We have emphasized that, "[i]n analyzing  

qualified immunity questions we 'focus on the officers' perspectives and perceptions, as  

it is what reasonable officers in their position could have thought that is dispositive of  

this issue.' " Lum v. Koles , 314 P.3d 546, 553 (Alaska 2013) (quoting Olson v. City of  

                                                                 

Hooper Bay , 251 P.3d 1024, 1030 (Alaska 2011)).  



          63        See Miller, 207 P.3d at 548-49 (allowing dispatcher knowledge to support  

                                                                                   

an officer's traffic stop); see also United States v. Hensley, 469 U.S. 221, 232 (1985)  

(holding  that  police-issued  flyer  can  support  investigative  stop  based  on  reasonable  

suspicion); State v. Prater, 958 P.2d 1110, 1113 (Alaska App. 1998) (holding dispatcher  

                                                        

knowledge could provide reasonable suspicion for traffic stop).  



          64  

                           

                    We note that the cases on which the dissent relies themselves rest upon  

                                                          

information that has been transmitted from one officer to another.  See, e.g., Schoolcraft  

v. City of New York, 103 F. Supp. 3d 465, 502 (S.D.N.Y. 2015) ("The doctrine applies  

only  where  the  officers  are  in  communication,  sharing  information  relevant  to  the  

                                                  

determination of exigent circumstances."); James v. Chavez,  830 F. Supp. 2d 1208,  

 1261-2 (D.N.M. 2011) (recognizing that effective law enforcement requires that "police  

                                                              

                                                                                                               (continued...)  



                                                              -20-                                                         7302
  


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

                                                                                                              

allows police officers to act in reliance on another officer's knowledge to take action,  



                                                                                                65  

                                                                                                    This doctrine was  

even though the individual assisting officer lacks that knowledge.  

                                                                                                             66  There the  

recognized by the United States Supreme Court in United States v. Hensley.  



                                                                                                     

                                                                                                             

Court  approved  the  investigative  stop  of  a  vehicle  by  an  officer  who  relied  upon  



                                                                                                         67  

information from a wanted flyer issued by another police department.                                         Subsequent  



                                                                                                    

cases from federal and state courts have upheld similar stops, and a few federal circuits  



                         

and state courts have suggested that it could be extended to support probable cause to  



                      

enter a home, but neither the United States Supreme Court nor any federal circuit court  



                                                                                                                      

or  state  supreme court has extended  the doctrine to  permit warrantless entry  into  a  

home.68  



                                                                            

                   Demonstrating  reasonable  suspicion  for  an  investigative  stop  requires  



significantly less than the probable cause needed to enter a home; we are not persuaded  



to dilute the probable cause necessary for a home  entry by extending the collective  



knowledge  doctrine  to  this  context.    While  we  approved  the  use  of  the  collective  



knowledge doctrine in  State v. Miller, that approval allowed an officer to rely upon  



          64        (...continued)
  



officers can act on directions and information transmitted by one officer to another.").
 



          65        Hensley, 469 U.S. at 232.  



          66       Id.  



          67       Id.  "Assuming the police make a Terry stop i  n objective reliance on a flyer  



or bulletin, we hold that the evidence uncovered in the course o                             f the s   top  is admissible  

if  the  police who issued the f  lyer or bul           letin possessed a reasonable suspicion justifying  

a stop, and if the stop that in fact occurred was not significantly more intrusive than  

would have been permitted the issuing department."  Id. at 233.  



          68  

                                                                    

                   See United States v. Russell, 436 F.3d 1086, 1095 (9th Cir. 2006) (Thomas,  

                                                                                                         

J., Concurring); Schoolcraft v. City of New York, 103 F. Supp. 3d 465, 502 (S.D.N.Y.  

2015);  United States v. Christy, 810 F. Supp. 2d 1219, 1260-62 (D.N.M. 2011).  



                                                            -21-                                                       7302
  


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

                                                                                          

information imputed from a dispatcher to meet the reasonable suspicion requirement for  

an investigative stop of a vehicle.69  



                                              

                    The investigative stop of a vehicle differs fundamentally from an entry into  



                                                 

a home; the reasonable suspicion needed for an investigative stop is a substantially lower  



                                                                         70  

                                                                             In order to enter a home without a  

showing than the one required for probable cause. 



warrant  under  the  emergency  aid  exception,  the  officers  must  satisfy  all  of  the  



                                                                                                         

exception's requirements, and each requirement specifically refers to the responding  



                                       71  

                                                                                                    

officer's reasonable belief.               Thus, when they arrived at the Lums' home, Grimes and  



Gutierrez needed to observe circumstances that provided corroboration approaching  



probable cause that an ongoing emergency existed before they could enter the home  



                           72  

without a warrant.             The dispatcher's undisclosed knowledge of the details of the 911  



call did not provide any information about the situation at the home when the officers  



arrived; her information may not be imputed to them for the purpose of meeting the  



requirements  of  the  emergency  aid  exception.    Further,  allowing  the  dispatcher's  



                       

information to be imputed to justify the warrantless entry into a home appears to be at  



          69       Miller , 207 P.3d at 547-50.  



          70       See Navarette v. California, 134 S.Ct. 1683, 1687 (2014) ("Although a  



mere 'hunch' does not create reasonable suspicion, the level of suspicion [required for  

                                                                                              

reasonable suspicion] is . . . 'obviously less' than is necessary for probable cause." (first  

                                          

quoting Terry v. Ohio, 392 U.S. 1, 27 (1968) then quoting United States v. Sokolow, 490  

                                                                                                         

U.S.  1,7  (1989));  State  v.  Moran,  667  P.2d  734,  735-36  (Alaska  App.  1983)  

                                                                                 

(differentiating "quantum of information" an officer must have for reasonable suspicion  

as lower than that for probable cause).  



          71       State v. Gibson, 267 P.3d 645, 659, 667 (Alaska 2012).  



          72       Id. at 659, 662-67.  



                                                            -22-                                                       7302
  


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

odds with the strong privacy protections provided by the Alaska Constitution.                                       73  We  



decline the officers' invitation to impute the dispatcher's knowledge to them in this  



different arena on the facts of this case.  



                                                                                           

                   Whether the officers' entry into the Lums' home was legal depends on the  



                                                                                    

resolution of genuine issues of material fact.  The officers and the Borough are therefore  



                  

not entitled to summary judgment on the Lums' trespass and invasion of privacy claims.  



V.        CONCLUSION  



                                                                               

                   We REVERSE the superior court's grant of summary judgment in favor of  



                                                                       

the officers and the Borough and REMAND this case for further proceedings consistent  



with this opinion.  



          73       See Ravin, 537 P.2d at 503-04.  



                                                            -23-                                                         7302  


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

BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.  



                                      

                    The court's opinion complicates the police response to domestic violence  



situations by limiting a court's consideration of a victim's report conveyed to a police  



dispatcher.  Ignoring this information endangers some of the most vulnerable victims:  



those whose pleas are silenced by threats or violence.  The court offers no persuasive  



                

reason to restrict the use of this information when assessing whether the police have  



acted lawfully in responding to a domestic violence emergency.  



                                     

                    Polly Lum called her best friend for help because she was in a fight with  



                                                                                    

her husband, Daniel Lum.  During the call, Daniel told Polly's friend that Polly had  



suffered bruises and a cut on her head.  Polly's friend relayed this information to the  



police dispatcher and asked for police officers to go to the Lums' residence for a welfare  



check.  



                                               

                    Based on this call, the superior court concluded that Sergeant Gutierrez was  



justified  in  entering  the  Lums'  residence  to  render  emergency  aid  and  that  Officer  



                                    

Grimes was justified in following.  These conclusions are well supported by our prior  



case law.  



                    In State v. Gibson, we recognized that the police may enter a residence  



without a warrant when they have "reasonable grounds to believe there is an emergency  



                                                                             1  

at hand and an immediate need for their assistance."    These grounds are established  



                                                                                                          

when the police have good reason to believe there might be someone injured in the  



              2  

                 Here, the police collectively had good reason to believe that Polly had been  

premises.                                 



injured based on the call from Polly's friend.  Therefore, the officers were privileged to  

                                                                                        



          1         267 P.3d 645, 659 (Alaska 2012).  



          2        Id . at 664.   



                                                            -24-                                                         7302  


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

                                                                   

enter  the  premises  to  protect  Polly  from  further  injury.    This  privilege  protects  the  

officers from liability to the Lums for trespass3 or breach of privacy.4  



                     The  court  refuses  to  consider  Polly's  friend's  call  to  the  dispatcher  in  



                                                                        

deciding whether the officers' entry was legal and reasonable.  This refusal contravenes  



persuasive precedent from this jurisdiction and across the nation.  



                                                                           

                     In State v. Miller, we relied on the information included in an anonymous  



                                                                                                                                     5  

                                                                        

911 call to support an officer's decision to stop a couple suspected of domestic violence. 



                                                                                                    

This conclusion was consistent with the larger principle that the police are " 'entitled to  



act'  upon  the  strength  of  a  communication  through  official  channels  directing  or  



                                                                     6  

requesting that an arrest or search be made."   For example,  



                                                                                                          

                     when evidence is uncovered during a search incident to an  

                     arrest     in    reliance       merely        on    a    flyer     or    bulletin,       its  

                     admissibility turns on whether the officers who issued the  

                                                                                                      

                     flyer possessed probable cause to make the arrest.  It does not  



          3          See City of Nome v. Ailak, 570 P.2d 162, 167 (Alaska 1977) (holding that       



police officers could not be liable for trespass because they "had a reasonable belief as  

to the existence of an emergency which justified their unauthorized entry").  



          4  

                                                                                             

                     See Greywolf v. Carroll, 151 P.3d 1234, 1245 (Alaska 2007) (holding that  

                                                                                                       

"the invasion of privacy principle cannot shield a person from [an] investigation[] by the  

police unless the investigation is carried out in an offensive manner").  



          5  

                                      

                     207   P.3d   541,  547-49  (Alaska  2009);  see  id.  at  548  ("[R]elevant  

information known to a police dispatcher may be 'imputed' to a police officer who  

conducts an investigative stop and so may be considered for purposes of evaluating  

                                                                                                  

whether the stop was supported by a reasonable suspicion." (quoting State v. Prater, 958  

P.2d 1110, 1110 (Alaska App. 1998))).  



          6          2   WAYNE  R.   LAFAVE ,   SEARCH  &   SEIZURE :   A   TREATISE ON THE  FOURTH  



AMENDMENT  3.5(b), at 338 (5th ed. 2012) (quoting                                   Whiteley v. Warden, Wyo. State  

Penitentiary , 401 U.S. 560, 568 (1971));                     see also Mattern v. State, 500 P.2d 228, 232-33  

(Alaska  1972)  (relying  on  information  conveyed  to  a  police  dispatcher  to  justify  a  

warrantless arrest).  



                                                                -25-                                                          7302
  


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

                       turn on whether those relying on the flyer were themselves  

                                                                                                                     

                        aware of the specific facts which led their colleagues to seek  

                                                   [7] 

                       their assistance.  



                                 

The Alaska Court of Appeals has relied on the collective knowledge doctrine to analyze  



                                                                                                        8  

both  the  reasonable  suspicion  supporting  a  traffic  stop   and  the  probable  cause  



                                                        9  

                                                                                                    

 supporting a warrantless search.   Likewise, other courts considering the question have  



                                                                                                              

held that the collective knowledge of fellow officers should be considered to determine  



whether an entry is justified by exigent circumstances, such as a need for emergency  

aid.10  



            7           United States v. Hensley, 469 U.S. 221, 231 (1985).  



            8          State v. Prater, 958 P.2d 1110, 1113 (Alaska App. 1998) (stating that "an       



investigative stop made in objective reliance on a police dispatcher's bulletin is justified                            

if the dispatcher who broadcast the bulletin possessed reasonable suspicion of imminent   

public danger justifying the stop").  



            9  

                                                                                                       

                        Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992) (stating that "the  

collective  knowledge  of  the  officers  participating  in  the  case  may  be  considered  in  

determining probable cause"); see generally 22 C.J.S. Criminal Procedure and Rights  

of Accused  78 (2018); 79 C.J.S. Searches and Seizures  71 (2018).  



            10  

                                                                                                                    

                       See Schoolcraft v. City of New York, 103 F. Supp. 3d 465, 502 (S.D.N.Y.)  

("[T]he collective knowledge doctrine may be applied to exigent circumstance analysis,  

just as it applied to warrantless searches and seizures."), reconsideration granted in part,  

                                                                      

 133 F. Supp. 3d 563 (S.D.N.Y. 2015); James v. Chavez , 830 F. Supp. 2d 1208, 1260-62  

                                                                                                  

(D.N.M. 2011) ("[T]he collective-knowledge doctrine can be used to impute knowledge  

                                                                                                           

of exigent circumstances."), aff'd, 511 F. App'x 742 (10th Cir. 2013); United States v.  

                                                                     

 Christy, 810 F. Supp. 2d 1219, 1261-63 (D.N.M. 2011) (same), aff'd, 739 F.3d 534 (10th  

                                                                     

Cir.  2014);  Stricker  v.  Cambridge  Twp .,  No.  10-14424,  2011  WL  3319727,  at  *17  

(E.D. Mich. Aug. 1, 2011) (concluding that police officers "were entitled to rely on their  

                                                                                                                                   

collective knowledge" in deciding to enter residence to provide aid to overdose victim),  

                                                                           

aff'd sub nom. Stricker v. Twp. of Cambridge, 710 F.3d 350 (6th Cir. 2013); Mitchell v.  

                                                                                                                 

                                                                                                                               (continued...)  



                                                                        -26-                                                                  7302
  


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

                                                                                                             

                     The court's opinion downplays the importance of Polly's friend's report to  



                                                                           

the dispatcher, noting that the record, construed in the light most favorable to the Lums,  



                                                                     

indicates that the officers did not see or hear a domestic dispute when they arrived at the  



                                                                                                                              11  

                                                                                                                                  In  

Lums' residence.  But we have recognized the danger that such reasoning invites. 



Miller we cited statistics on domestic violence in Alaska and the nation:  



                     A study issued in September 2005 ranked Alaska first in the  

                     nation  for  the  rate  of  intimate  partner  violence  ending  in  

                                                              

                     homicide.  Nationally, for homicides in which the victim-to- 

                                    

                     offender relationship could be identified, ninety-two percent  

                                                         

                     of female victims were murdered by someone they knew, and  



           10        (...continued)  



State, 742 S.W.2d 895, 898-99 (Ark. 1988) ("Regardless of what [the police officer]  

                                                                                                        

personally knew, he is charged with the collective knowledge of the police department  

at the time [of the emergency aid search]."); Evans v. United States , 122 A.3d 876, 881- 

                                                                                                         

 82  (D.C.  2015)  (considering  whether  collective  knowledge  of  responding  officers  

                                                                                                      

justified an emergency aid search);  Oliver v. United States, 656 A.2d 1159, 1166-67 &  

                                                                                            

n.14 (D.C. 1995) (reasoning that information in police case file should be imputed to  

                                                                                                     

officers  in  assessing  whether  they  had  reasonable  grounds  to  believe  there  was  an  

emergency); People v. Nichols , 964 N.E.2d 1190, 1208 (Ill. App. 2012) (stating that "it  

                                                                                       

is the collective knowledge of the officers that is the criterion" when addressing whether  

                                                                       

exigent circumstances exist (emphasis in original)); State v. Lemieux, 726 N.W.2d 783,  

                                                                                                            

789 (Minn. 2007) ("When assessing the reasonableness of an emergency-aid search, the  

                                                              

officer who conducts the search is imputed with knowledge of all facts known by other  

                    

officers involved in the investigation . . . ."); see also United States v. Russell, 436 F.3d  

                                      

 1086, 1094-95 (9th Cir. 2006) (Thomas, J., concurring in part and dissenting in part)  

                                

("We analyze the 'reasonable grounds to believe that there is an emergency at hand,' on  

                                                                                                                        

an objective basis, taking into consideration the collective knowledge of the officers at  

                                                                      

the  time."  (quoting  United  States  v.  Cervantes,  219  F.3d  882,  888  (9th  Cir.  2000),  

overruled on other grounds by Brigham City v. Stuart, 547 U.S. 398 (2006))).  



           11  

                                                                   

                     See State v. Miller, 207 P.3d 541, 545 (Alaska 2009) (noting "the danger  

that a report of a verbal domestic dispute portends").  Polly's friend's call indicated that  

the dispute in this case had already escalated to violence.  



                                                                -27-                                                         7302
  


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

                    sixty-two percent were killed by husbands, ex-husbands, or  

                                     [12] 

                    boyfriends.  



Requiring  responding  police  officers  to  develop  independent  knowledge  about  an  



                                                                                                   

emergency may reward an attacker who can use violence or threats to silence his victim.  



And  disregarding  the  collective  knowledge  doctrine  may  thus  hamstring  the  police  



response to a serious emergency.  



                                                                                                                        

                    In my opinion, we should apply the collective knowledge doctrine to this  



                                                     

case:  we should consider the call from Polly's best friend to determine whether the  



                                                                                   

responding officers acted reasonably.  Considering this call, the superior court properly  



                                                                                                              

concluded that the emergency aid doctrine authorized the officers to enter the residence  



                                                              

to prevent further injury to Polly Lum.  I would affirm the superior court's decision to  



dismiss the Lums' claims for trespass and breach of privacy.  



          12        Id. (footnote omitted).  Alaska has continued to have the highest rate of  



homicides involving female victims and male perpetrators, according to a more recent  

edition of the report cited in Miller .  See VIOLENCE POLICY CTR .,  WHEN MEN MURDER  



                                                                      

W O M E N  :        AN       A N A L Y S I S       O F     2 0 1 5      H O M I C I D E       D A T A       4     ( 2 0 1 7 ) ,   

http://www.vpc.org/studies/wmmw2017.pdf.  In 2015 all of Alaska's female homicide  

                                                                                      

victims were killed by male perpetrators whom they knew; 60 percent were killed by an  

intimate partner or former intimate partner.  Id. at 11.  

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