Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Hotrum v. State (3/10/2006) ap-2038

Hotrum v. State (3/10/2006) ap-2038

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9020
Appellant, ) Trial Court No. 3PA-03-2081 CR
v. ) O P I N I O N
Appellee. ) No. 2038 - March 10, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances: Verne E. Rupright, Wasilla,  for
          the  Appellant.  Kenneth J. Diemer, Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          Darrin  Hotrum was convicted of misconduct involving  a
controlled substance in the fourth degree, a class C felony,  for
possessing  more  than  twenty-five  marijuana  plants.1   Hotrum
entered  a  no  contest  plea  pursuant  to  Cooksey  v.  State,2
preserving  two  issues for appeal.  In his first  issue,  Hotrum
claims  that  the police found the marijuana plants following  an
unlawful  warrantless  entry and search  of  his  residence.   We
          uphold Superior Court Judge Eric Smiths ruling that the police
entry  and  search of Hotrums residence was justified  under  the
emergency aid exception to the general warrant requirement.
          In  his  second issue, Hotrum points out that, although
he  possessed more than twenty-five marijuana plants, which under
the  Alaska Statutes constitutes a felony, he actually  possessed
little  more than two ounces of dried marijuana.  He argues  that
the  Alaska  Statutes  are  in direct conflict  with  the  Alaska
Supreme  Courts  decision in Ravin v.  State.3    In  Ravin,  the
Alaska  Supreme  Court  held that the privacy  provision  of  the
Alaska  Constitution, article I,  22, protects the  right  of  an
adult  to  possess a small amount of marijuana in  his  home  for
personal  use.4   Hotrum  contends that, because  the  plants  he
possessed  totaled  only a little over two ounces  of  marijuana,
prosecution of his case contravenes Ravin.   We conclude that the
legislature has the power to set reasonable limits on the  amount
of  marijuana that people may possess for personal use  in  their
homes.   We  therefore  conclude  that  criminalization  of   the
possession of twenty-five or more marijuana plants, regardless of
the  weight  of  the marijuana in its processed  form,  does  not
conflict with Ravin.

          Factual and procedural background
          On  October  3,  2003,  Alaska State  Trooper  dispatch
received  a  911  call  reporting that there  were  gunshots  and
yelling  coming from a red house off Piccadilly Road in  Houston,
Alaska.  At  approximately 10:19 p.m., a dispatcher relayed  this
information  to Alaska State Troopers Howard Anthony Peterson and
Odean Farnhan Hall III.   Troopers Hall and Peterson responded to
the call.
          The  troopers  parked  their patrol  vehicle  down  the
street  from where they believed the house was located.   As  the
troopers began their approach to the house they contacted  a  man
approximately two houses down from the suspected residence.   The
man told the troopers that gun shots and yelling were coming from
the  red  house two houses down on the right.   From the  roadway
the troopers could hear very loud music coming from the house.
          The  troopers went down the roadway and approached  the
house.  They saw vehicles in the yard and light emanating from an
arctic entryway.  The door was standing wide open and there was a
key  in the deadbolt with the lock turned.  Trooper Peterson  and
Trooper  Hall made repeated attempts to announce their  presence,
yelling  state  troopers.  Is anybody there?  The  troopers  made
attempts  to  yell  over  the music and  to  announce  themselves
between  songs.  There were lights on in the house.  The troopers
had  requested  backup that arrived as they were trying  to  make
contact through the open entryway.
          Trooper  Hall testified that, based on the  information
he  had  available  to him at that point,  he  was  not  sure  if
something  had  happened inside or outside the  home  or  whether
someone  needed  his  assistance,  but  that  he  believed   that
something  was going on in the house. He added that when  walking
up  to  the  house he did not know whether there was  an  ongoing
emergency.   But given the fact that there had been a  report  of
          shots fired and yelling, and the presence of a door standing wide
open in the middle of the night, he felt that something was going
on that required him to ensure that nobody was being harmed.
          At  this  point Troopers Hall and Peterson, along  with
Alaska  State  Troopers  Paul Anthony Wezgryn  and  Mike  Ingram,
entered the house with their weapons drawn.  Upon entry into  the
arctic entryway, Trooper Peterson observed a doorway covered with
a  blanket  directly in front of him.  Behind the blanket  was  a
closed door.  To the left of Trooper Peterson was an open hallway
that  led  to  the living room with a loft and a kitchen  in  the
back.   Trooper Peterson instructed Trooper Ingram to  check  the
doorway  with  the blanket covering it while he, Trooper  Wezgryn
and  Trooper  Hall went left, into the living room area.   Behind
the blanket and closed door Trooper Ingram discovered forty-three
live marijuana plants.
          In the living room, Troopers Peterson and Hall found  a
bed  with two feet protruding from under a sheet.  With the music
blaring, Trooper Hall announced their presence and there  was  no
reaction.   Trooper  Peterson testified that  at  that  point  he
believed they were dealing with a homicide.  The troopers noticed
a  semi-automatic handgun and some bullets lying  near  the  bed.
With their weapons trained on the bed, the troopers shut off  the
stereo  and  removed the sheet from the body it was covering  and
again  announced their presence.  The troopers then  cleared  the
rest  of  the room, checking the spaces that their line of  sight
did  not  cover.  The individual, who turned out to be  sleeping,
was Darrin Hotrum, who was fully clothed and lying face up.  Upon
waking,   Hotrum  immediately asked the troopers  why  they  were
there  and told them that they were not allowed in his home,  and
that it was a private home.

          Subsequent proceedings
          The  troopers  arrested Hotrum at his  residence.   The
State  charged  him  with several offenses  arising  out  of  his
possession of marijuana.
          Hotrum filed a combined motion to suppress the evidence
and  to  dismiss  the indictment.  In his motion, Hotrum  claimed
that  the  troopers  warrantless entry of his  home  was  illegal
because it failed to fall within any of the recognized exceptions
to  the warrant requirement. Hotrum filed an additional motion to
dismiss  on  the  ground  that  the warrantless  seizure  of  his
marijuana plants had resulted in the recovery of only 2.02 ounces
of  consumable marijuana.  He argued that his possession of  this
amount of marijuana was within the protection of Ravin.
          Judge Smith conducted an evidentiary hearing. Following
the  hearing, he denied Hotrums motion to suppress.   Judge Smith
found  that  the  troopers  actions  were  reasonable  under  the
emergency  aid  doctrine.  Judge Smith reasoned  that  there  was
probable  cause  to  believe that the emergency  was  located  at
Hotrums  residence based on the report from trooper dispatch  and
the  gentleman  on the road, and the loud music  and  open  door.
Additionally,  Judge Smith concluded that the search  was  not  a
pretext to conduct a warrantless search.  Judge Smith also denied
Hotrums claim that his conduct was protected under Ravin.
          Hotrum  later  entered a no contest plea  to  a  single
count  of  misconduct  involving a controlled  substance  in  the
fourth  degree  for possession of twenty-five or  more  marijuana
plants.  This appeal followed.

          Why  we uphold Judge Smiths finding that  the
          police search of Hotrums residence was lawful
          under the emergency aid doctrine

          The   emergency   aid  doctrine  is  a  well-recognized
exception  to the general rule that the police need a warrant  to
conduct  a  search.5    The  emergency aid  doctrine  allows  the
warrantless  entry of a dwelling when an officer  has  reasonable
grounds to believe that there is an immediate need to take action
to  prevent death or to protect persons or property from  serious

          For   the  emergency  aid  doctrine   to   be
          applicable  in a given case, three conditions
          must be met:

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

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

          (3)   There  must  be some  reasonable  basis
          approximating probable cause to associate the
          emergency  with the area or the place  to  be

          In   his  findings,  Judge  Smith  concluded  that  the
troopers had reasonable grounds to believe, and did believe, that
when  they  approached Hotrums residence  there was an  emergency
that required them to enter the residence and investigate.  Judge
Smiths  findings  are  supported by the record  and  support  his
decision to deny Hotrums motion to suppress.
          Why   we   reject  Hotrums  claim  that   his
          possession of marijuana was protected by  the
          supreme courts decision in Ravin v. State

          In  Ravin,  the  Alaska Supreme  Court  held  that  the
privacy  provision of the Alaska Constitution,  article  I,   22,
protected  the right of an adult to possess a limited  amount  of
marijuana  in  his home for purely personal non-commercial  use.8
The court stated that its decision did not protect possession  of
marijuana  in  the  home in amounts which were indicative  of  an
intent to sell the drug.9
          In   1982,  the  legislature  adopted  statutes   which
modified   the  states  marijuana  possession  laws.10      These
statutes prohibited a person from possessing four ounces or  more
          of marijuana but did not criminalize possession of less than four
ounces.11   The  commentary to the legislation  stated  that  the
legislators intent was to define the amount of marijuana an adult
could possess in the home without violating the law.12
          In Walker v. State,13 we had before us a case where the
defendant was convicted of possession of more than one-half pound
of  marijuana.14   We upheld that conviction,  holding  that  the
legislature could reasonably regulate the personal possession  of
marijuana  in the home over certain amounts.  We held  that  this
regulation did not conflict with Ravin even if the defendant  had
no intent to sell the drug.15
           In  Pease  v.  State,16 we discussed  the  legislative
history  behind the statute  that criminalized the possession  of
twenty-five or more marijuana plants.17  That statute was enacted
after  police  officers  asked the  legislature  to  address  the
problem police faced after they raided a marijuana grow and found
only  growing,  unharvested plants.18   Specifically,  under  the
statutory  definition of marijuana, the police could  not  simply
cut  the plants down and weigh them.19   To establish the  weight
of  marijuana seized under the statute,  the police  had  to  cut
down  the  plants, dry them, and then cut the leaves,  buds,  and
flowers from the stalks.20 The legislatures solution was to enact
AS   11.71.040(a)(3)(G),  the  statute  under  which  Hotrum  was
prosecuted,  which  prohibits possession of twenty-five  or  more
marijuana  plants.21  The House Judiciary Committee  adopted  the
suggestion  of  an  assistant attorney general  that  twenty-five
average marijuana plants would, after processing, weigh over  one
pound.22   The assistant attorney general specifically  addressed
the  question of whether it would be fair to prosecute  a  person
for  possession  of  twenty-five  small  marijuana  plants.   She
suggested that the small plants had the potential of growing into
much  larger plants, and therefore the fact that the small plants
did not weigh much and did not produce very much usable marijuana
was  immaterial.23   It appears that the legislature adopted this
          In  Noy  v. State,24 we confronted a statute  that  was
enacted  when the voters of Alaska approved a ballot  proposition
that amended the Alaska statutes to criminalize possession of any
amount  of  marijuana.25  We  concluded  that  this  statute  was
unconstitutional  because it prohibited the possession  of  small
amounts of marijuana by adults in their homes for personal use.26
Therefore, it contravened the constitutional right of privacy  as
interpreted by the Alaska Supreme Court in Ravin.27 After finding
the   statute  unconstitutional,  we  left  standing  the  former
statutes  that  the  initiative had superseded.28          Hotrum
concedes  that  the  troopers  found forty-three  live  marijuana
plants   in  his  home.   Under  AS  11.71.040(a)(3)(G),  Hotrums
possession  of more than twenty-five live marijuana  plants  made
his  offense a class C felony.  But Hotrum points out  that  when
the  troopers  processed these plants by drying  them,  stripping
them,  and  weighing  the leaves and buds, the  total  amount  of
marijuana  he  possessed  weighed only  slightly  more  than  two
ounces.   Hotrum argues that, but for AS 11.71.040(a)(3)(G),  his
possession of this amount of marijuana would not be a crime.  And
had  he  been convicted of possession of four ounces or  more  of
          marijuana under the other statutes, his offense would have been a
class  B  misdemeanor.29  Hotrum argues that prosecuting him  for
possessing  approximately two ounces of marijuana is inconsistent
with  Ravin  and  Noy because it constitutes  a  prosecution  for
possession  of  a  small  amount of marijuana  in  his  home  for
personal use.
          In  Ravin, the Alaska Supreme Court did not set out any
specific  amount  of  marijuana  that  an  adult  could  lawfully
possess.    In   Walker,  we  recognized  that  the   legislature
nevertheless has the power to set reasonable limits on the amount
of  marijuana that people can possess for personal use  in  their
homes.30  As  we  have previously discussed, the legislature  has
passed  statutes  intended to provide a clear line  so  that  the
citizens of the state will know what conduct is prohibited.31  We
have  generally found the legislatures efforts to  be  consistent
with Ravin.32
          In  particular, in Pease, we discussed the  legislative
history  of the statute that  made a felony offense of possession
of twenty-five or more marijuana plants.  The legislative history
showed  the legislature considered the possibility that a  person
might possess twenty-five or more marijuana plants but that these
plants  might  constitute  a  small  amount  of  marijuana.   The
legislature concluded that the small marijuana plants could  grow
to  become  a  substantial amount of marijuana.  The  legislature
decided that the defendant should not benefit from the fact  that
he  was  prosecuted before the plants could grow to that level.33
We  conclude  that  this is a judgment that the  legislature  was
entitled  to  make.   In  drafting  AS  11.71.040(a)(3)(G),   the
legislature adopted a clear and objective line which  appears  to
be consistent with the Alaska Supreme Courts Ravin decision.
          The judgment of the superior court is AFFIRMED.
     1 AS 11.71.040(a)(3)(G), (d).

     2 524 P.2d 1251 (Alaska 1974).

3 537 P.2d 494 (Alaska 1975).

     4 Id. at 504.

5   Williams  v.  State,  823  P.2d  1,  3  (Alaska  App.   1991)
(citing  Mincey v. Arizona, 437 U.S. 385, 392, 98  S.  Ct.  2408,
2413,  57 L. Ed. 2d 290 (1978);  Schraff v. State, 544 P.2d  834,
840-41  (Alaska  1975); Gallmeyer v. State,  640  P.2d  837,  841
(Alaska App. 1982)).

     6 Williams, 823 P.2d at 3 (citing Gallmeyer, 640 P.2d at 841-

     7 Williams, 823 P.2d at 3 (citing Gallmeyer, 640 P.2d at 841-
43  and Johnson v. State, 662 P.2d 981, 985-86 (Alaska App. 1983)
(listing  eleven factors relevant in determining if the emergency
aid doctrine applies)).

     8 537 P.2d at 504.

     9 Id. at 511.

     10   Walker v. State, 991 P.2d 799, 802 (Alaska App. 1999).

11   Former AS 11.71.060(a)(4).

     12    Commentary and Section Analysis for the 1982  Revision
of   Alaskas  Controlled  Substance  Laws,  Conference  Committee
Substitute for Senate Bill No. 190 at 19.

     13   991 P.2d 799.

     14   Id. at 803.

     15   Id.

     16   27 P.3d 788 (Alaska App. 2001).

     17   See AS 11.71.040(a)(3)(G).

     18   Pease, 27 P.3d at 789.

     19    See  AS 11.71.900(14) (marijuana means only the seeds,
and  leaves,  buds,  and flowers of the plant  (genus)  Cannabis,
whether  growing  or not; it does not include the  resin  or  oil
extracted from any part of the plants, [and] it does not  include
the  stalks  of  the plant[.]); AS 11.71.080 ([f]or  purposes  of
calculating the aggregate weight of a live marijuana  plant,  the
aggregate  weight  shall  be the weight  of  the  marijuana  when
reduced to its commonly used form.).

     20   Pease, 27 P.3d at 789.

     21   Id. at 790.

     22   Id.

     23   Id.

     24   83 P.3d 530 (Alaska App. 2003).

     25   Id. at 542.

     26   Id.

     27   Id.

     28   Id. at 543.

     29   AS 11.71.060(a)(1), (b).

     30   991 P.2d at 802.

     31   Id. at 803.

     32   Id.; Noy, 83 P.3d at 543.

     33   Pease, 27 P.3d at 790.

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights