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NOTICE
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
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Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DONALD BRAND, | ) |
| ) Court of Appeals No. A-9844 | |
| Appellant, | ) Trial Court No. 3KN-04-1926 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2211 April 3, 2009 | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, Charles T. Huguelet and John E.
Suddock, Judges.
Appearances: Marjorie Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Nancy
R. Simel, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
Alaska State Trooper Elizabeth Haddad secured Donald
Brand and Gretchen Smith outside of their home after a violent
confrontation. Kenai Police Sergeant Gus Sandahl then discovered
a marijuana-growing operation as he walked through the house to
determine whether there was anyone else inside. But the police
may not enter a home for a protective sweep unless they have a
reasonable belief that there is an individual inside the
residence who could put them in danger. We therefore conclude
that the superior court should have suppressed the fruits of this
illegal search.
I. BACKGROUND
On August 2, 2004, Trooper Elizabeth Haddad was
dispatched to the Brand residence to support a welfare check for
a possibly suicidal woman. When Haddad arrived at the home,
paramedics were already treating Gretchen Smith with oxygen in
the back of an ambulance. After speaking with Haddad, Smith
became agitated and ran into the home.
Haddad attempted to pursue Smith into the house, but
was then confronted by Donald Brand at the front door. Brand
told Haddad to leave his property. During this encounter, Smith
twice emerged from the house: at one point she threatened Haddad
with a large bulldog, and at another she brandished a knife.
Haddad felt that Brand was causing a distraction and told him to
put his hands behind his back so that she could handcuff him.
When Brand refused, Haddad drew her taser. Haddad fired,
unfortunately striking Brand in the groin. After this occurred,
she handcuffed him and the paramedics took him to their ambulance
for treatment.
Meanwhile, Kenai Police Sergeant Gus Sandahl and
Officer Mitch Langseth were informed by dispatch that a trooper
was requesting emergency assistance. Sandahl and Langseth
proceeded to the Brand residence with their patrol vehicles
lights and sirens activated. While en route, the officers
received information that Trooper Haddad had used her taser on an
individual at the scene.
When the Kenai officers arrived at the scene, Donald
Brand and his brother, James Brand, were outside of the home
while Smith was still inside. Donald Brand was secured in the
ambulance and James Brand was wandering around, but not bothering
anyone. Sandahl thought that Smith might have barricaded herself
in the home, so he went to his patrol car to retrieve his patrol
rifle. However, by the time Sandahl returned with his rifle,
Haddad was already securing Smith outside of the home.
Haddad then informed Sandahl that she smelled
marijuana, and Langseth suggested that Sandahl perform a
protective sweep. The officers had James Brand secure his dog
(which was inside the house) and then Sandahl walked through the
residence. When Sandahl reached the upstairs portion of the
house, he discovered a marijuana-growing operation of more than
forty plants.
Trooper Mark Pearson arrived after Sandahl completed
the protective sweep. After learning of the marijuana discovery,
Pearson confronted Brand about the marijuana and asked for his
consent to search the house. Brand initially refused to consent,
but ultimately assented when Trooper Pearson told Brand that he
would obtain a warrant. Officers then seized the plants and
equipment.
Brand was later indicted on three counts of fourth-
degree misconduct involving a controlled substance.1 Brand filed
a pretrial motion to suppress the States evidence arguing that
the protective sweep was illegal and that the subsequent consent
to search was tainted. Superior Court Judge Charles T. Huguelet
denied the motion, ruling that the protective sweep was proper
and that the consent was voluntary.
After proceeding to trial, Brand was convicted of two
counts of fourth-degree misconduct involving a controlled
substance.2 These two counts merged for the purposes of his
sentencing, and on November 22, 2006, Superior Court Judge John
E. Suddock sentenced Brand to 4 years imprisonment on this merged
count.
II. DISCUSSION
In his denial of Brands motion to suppress, Judge
Huguelet ruled that Sergeant Sandahl reasonably believed there
may be other individuals in the residence [who] posed a threat to
police and paramedics. On appeal, Brand again argues that the
protective sweep was unjustified because there was no basis for
Sandahl to believe that there was anyone in the house. We
review the trial courts factual findings for clear error, but we
independently decide whether those facts constitute an illegal
warrantless search.3
A. The Protective Sweep of Brands Residence Was Not
Justified.
A protective sweep is a quick and limited search of
premises, incident to an arrest and conducted to protect the
safety of police officers or others.4 Such a sweep lasts no
longer than is necessary to dispel the reasonable suspicion of
danger and in any event no longer than it takes to complete the
arrest and depart the premises.5 For such a search to be
permissible, there must be articulable facts which, taken
together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area
to be swept harbors an individual posing a danger to those on the
arrest scene.6
Under Alaska law, [t]o satisfy the protective search
doctrine, the state must prove that: (a) the officers must have
reasonable cause to believe that their safety is in danger before
engaging in such a search, and (b) the search must be narrowly
limited to areas where they could find dangerous persons.7 To
establish such reasonable cause, the State must demonstrate a
factual basis for a reasonable belief that additional suspects
[beyond those under police control] were present and posed a
threat to the safety of the officers.8
The Superior Courts Decision
Based on the evidence presented at the hearing, Judge
Huguelet concluded that Sandahl believed that there could be
other individuals in the residence who posed a threat to the
police and paramedics:
Sergeant Sandahl arrived at the Brand
residence to back up Trooper Haddad after the
situation at the Brand house had become
dangerous. Donald Brand was belligerent
enough [that] Trooper Haddad felt it
necessary to shoot him with a taser. Ms.
Smith had threatened Trooper Haddad with a
knife and a bulldog. Donald Brand seemed to
be aggressively supporting Ms. Smith.
Trooper Haddad could smell marijuana from the
porch.
From these findings, the judge concluded that the threatening
nature of the situation caused Sandahl to be concerned that there
might be others in the Brand residence:
The environment [Sandahl] arrived to find at
the Brand residence was threatening.
Sergeant Sandahl saw the need to arm himself
with an assault rifle. Donald Brands and
Gretchen Smiths reactions to Trooper Haddad
reasonably caused Sergeant Sandahl to be
concerned [that] more people might be in the
house who posed a danger to police and
paramedics. The scope of the search was
narrow. The sweep was not a pretext for a
search for drugs.
Accordingly, Judge Huguelet ruled that Sandahl had reasonable
cause to believe that there were other individuals in the home
who may have posed a threat to the officers safety. However, we
conclude that there was insufficient testimony at the evidentiary
hearing to suggest that Sandahl had reason to believe that there
were others inside the home.
The Officers Testimony
Haddad and Sandahl both testified that they did not
have any reason to believe that there was anyone in the home.
Sergeant Sandahl the officer who performed the sweep testified
that both Smith and Brand were secured outside the residence
prior to his entry to conduct the sweep. Sandahl further
testified that he did not remember anyone telling him that there
were any additional persons inside, that he was unable to see
anyone else inside, and that he did not know if there was anyone
else in the residence. When asked if he had specific information
that there was anyone else inside of the house, Sandahl testified
that he did not have information that there was anyone else in
the house, but qualified that statement with the explanation that
[a]t any point, there could be . . . anyone anywhere. When asked
if he knew of any threats to the officers, Sandahl testified that
something had happened that caused Trooper Haddad to taze one of
the individuals. Sandahl could not recall whether he was aware
if anyone had been threatened by Smiths dog.
Trooper Haddads testimony on this point is consistent
with Sandahls. Haddad testified that she did not know if anyone
else was inside of the house. She testified that she did not
tell Sergeant Sandahl to perform a protective sweep and did not
know why he did so. Haddad agreed that before Sandahl conducted
the protective sweep, Brand was secured in the ambulance. Smith
was also secured, and James Brand was wandering around outside.
Haddad also testified that she did not know if anyone else was
inside of the house.
Thus, neither Haddad nor Sandahl had any actual belief
that there was someone within the home who posed any threat.
More importantly, Sandahl specifically testified that he did not
have any information supporting a belief that there was anyone
else in the home. Judge Huguelets conclusion that Sandahl
believed there were others in the house is simply not supported
by the record.
The Other Circumstances
The State argues that the protective sweep was
justified by the nature of the events at the Brand residence. In
support of this claim, the State points to the facts that Trooper
Haddad was facing a situation involving a potentially violent
suicidal individual who had threatened her with both an attack by
a large, aggressive dog and a knife, and that Brand was
aggressive and threatening, and . . . appeared to be
intentionally diverting the troopers attention from the subject
who was reportedly suicidal and violent.
As Professor LaFave notes, there are indeed situations
where the arresting officers are not possessed of concrete
information tending to show that other persons are presently in
the premises entered, [but the] dominant consideration is the
seriousness of the criminal conduct for which the arrest was
made, considering all the known circumstances.9 For example,
when police are making arrests in particularly dangerous areas or
are arresting violent criminals,10 are responding to reports of
gunfire,11 have come under fire,12 or are arresting inherently
dangerous individuals involved in the drug trade,13 protective
sweeps may be justified despite uncertainty of whether a
residence contains any other individuals.
Such reasoning appears to be consistent with the
Alaska rule that the protective sweep exception to the warrant
requirement is applicable when the officers had reasonable cause
to believe that their safety was in danger because additional
suspects beyond those under police control were present and
posed a threat to the officers . . . .14 For example, officers
were justified in sweeping a residence in Maness v. State where
they responded to a shooting and found a victim lying in a pool
of blood.15 In that case, even though the officers did not have
concrete facts to indicate that there was someone other than the
arrestee within the building, the sweep was proper because of
earlier reports of a crazy man with a shotgun and because of an
earlier shooting incident.16
But the instant case does not present the sort of
serious situation addressed in the examples above. Rather than
investigating a serious crime, the officers were originally
called to the scene to conduct a welfare check on a possibly
suicidal individual. Although Smith did threaten Haddad with a
knife and a dog, her threats were not tied into a broader pattern
of violence that would still present a threat to officer safety
after she was secured. Notwithstanding Smiths threats to
Trooper Haddad or Brands aggressiveness, such behavior would not
lead a reasonable police officer to believe that other armed
confederates were present within the house.
The Presence of the Dog
The State also argues that the presence of a vicious
dog is a factor that may be considered in evaluating the
potential danger and whether a protective sweep is necessary.
Here, the States argument is not that the officers were concerned
about some unidentified third party who could use the dog to
attack others, but rather that Smith could have escaped the
officers custody, opened the door to the residence, and released
the dog. In support of these arguments, the State relies on Teer
v. State17 and United States v. Bernard.18 However, both cases
are distinguishable from this one.
In Teer, officers were stationed around a residence to
arrest a serious violent felon on a warrant.19 After the suspect
was led out of the house and arrested on the porch, police
conducted a protective sweep of the residence.20 The appellate
court found that the sweep was proper because [t]he evidence
addressed at trial showed that there were five other adults in
the home . . . . [And p]olice officers also heard a dog barking,
which turned out to be a pit bull.21 Although the court does not
go into detail about the presence of the dog, it does not appear
that the mere presence of a dog independently justified the
protective sweep.
In Bernard, police conducted a raid on a location
after aerial surveillance revealed fields of marijuana.22 While
investigating fields in the area in the past, the officers
encountered many traps, including ankle and neck-high trip wires,
barbed wire stretched across paths at eye level, pit-falls, steel
traps, electric fences, and guard dogs.23 When the officers were
unable to locate persons whom they had spotted from the air, they
conducted a protective sweep of the defendants curtilage, where
the officers discovered drying marijuana in plain view.24 The
appellate court held that the protective sweep was justified
basing its conclusion upon the officers prior experience in
securing other marihuana fields; their encounter with the
neighbors Doberman Pinscher; the recently harvested marihuana;
the value and commercial nature of the crop; and [the] appellants
evasive response to [an officers] question inquiring about the
whereabouts of the missing person, which was inconsistent with
what the officers had seen from the air.25
In neither case did the courts find the presence of a
dog sufficient to independently warrant a protective sweep. The
presence of a vicious dog is one factor that could support an
inference that people within a home could be a threat, at least
when considered in tandem with facts supporting the belief that
other people are inside. The presence of a dog alone, however,
does not satisfy the requirement that police have a reasonable
belief that other individuals are present in the home who pose a
threat to officer safety.
The Officers Were Outside the Home Before They Started
the Protective Sweep.
A special consideration that applies to this case is
that the arrest of Brand and Smith occurred outside of their
residence. In many of the cases reviewing protective sweeps, the
sweep at issue took place after police officers already entered a
residence to effect an arrest.
In State v. Spietz, the Alaska Supreme Court noted
the special constitutional protection for the home: A door of
the home represents a firm constitutional barrier whether or not
it is open.26 In that case, the supreme court held that the
officers entry into a home to conduct a protective sweep was
unjustified even though the suspect was wanted for assault with a
dangerous weapon and had been observed with what was suspected to
be marijuana in plain view through his front door.27 Without a
factual basis for a reasonable belief that additional suspects
were present and posed a threat to the safety of the arresting
officers. . . . Plain view alone could not justify the
warrantless entry through the doorway into the constitutionally
protected area of the . . . house.28
In this case, both Donald and James Brand were outside
of their residence when Sandahl arrived. Smith was still inside
the residence when Sandahl first arrived, but by the time Sandahl
had retrieved his patrol rifle, Trooper Haddad was securing Smith
outside. Haddad testified that before Sandahl conducted the
protective sweep, Brand was tasered, put away in the ambulance,
and no longer a threat. Smith was secured and James Brand was
wandering around not bothering anyone.
The trial courts decision does not explain why the
officers believed they had to enter the residence in order to
safely withdraw from the scene. Although the judge found that
Smith had threatened the officers with a knife and dog, he did
not indicate that the officers believed that these facts
prevented their safe departure. There is no evidence in the
record suggesting that the officers could not have safely
withdrawn from the Brand home.
B. The Protective Sweep Tainted Brands
Consent.
After Sergeant Sandahl discovered the grow operation,
Trooper Mark Pearson arrived at the scene and asked Brand for his
consent to search the house. While Brand was handcuffed in the
back of the ambulance, Pearson had him sign a waiver consenting
to the search of the residence. Brand now argues that the
unlawful protective sweep tainted his consent and rendered the
search invalid.
When the police obtain the defendants consent after
conducting an illegal search or arrest, the unlawful police
action presumptively taints the defendants related consent to
search.29 To overcome this presumption, the government must
demonstrate a break in the causal connection between the prior
illegality and the defendants consent.30 That is to say,
[u]nless the government can show that the consent is sufficiently
insulated from the prior misconduct, the defendants consent is
considered to be tainted.31
In this case, Trooper Pearson obtained Brands consent
to search the residence after Sandahl had already conducted a
protective sweep. Accordingly, if the protective sweep was
illegal, then the State would have to show a break in the causal
connection sufficient to insulate the consent Pearson obtained
from the search that Sandahl conducted. However, the State has
not presented any argument that Brands consent was not tainted.
Trooper Pearson arrived at the scene after Brand had
been arrested and tasered, and after Sandahl had conducted the
protective sweep. Pearson was aware that the sweep had been
conducted and that the marijuana-growing operation had been
discovered. Brand was handcuffed in the back of the ambulance
when Pearson asked him about the marijuana plants in the
residence and threatened to obtain a search warrant if Brand did
not consent to a search. Under these circumstances, we conclude
that Brands consent was tainted by the prior illegal search of
his home.
III.CONCLUSION
We therefore REVERSE the superior courts judgment.
_______________________________
1 AS 11.71.040(a)(3)(G), AS 11.71.040(a)(3)(F), and AS
11.71.040(a)(5).
2 AS 11.71.040(a)(3)(G) and AS 11.71.040(a)(3)(F).
3 See Hilbish v. State, 891 P.2d 841, 848 (Alaska App.
1995).
4 Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093,
1094, 108 L. Ed. 2d 276 (1990).
5 Id. at 335-36, 110 S. Ct. at 1099.
6 Id. at 334, 110 S. Ct. at 1098.
7 Earley v. State, 789 P.2d 374, 376 (Alaska App. 1990)
(quoting Murdock v. State, 664 P.2d 589, 596 (Alaska App. 1983)).
8 Murdock, 664 P.2d at 596 (quoting State v. Spietz, 531
P.2d 521, 525 (Alaska 1975)).
9 3 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment, 6.4(c), at 377 (4th ed. 2004).
10 See United States v. Burrows, 48 F.3d 1011, 1017 (7th
Cir. 1995) (holding that because officers were making an arrest
in a particularly violent area, and because the arrestees were
suspected of committing a violent crime involving a firearm and
were allegedly planning to control the local drug trade, the
sweep was justified because the officers were especially
concerned for their safety).
11 See United States v. Carza, 843 F.2d 432, 435-36 (11th
Cir. 1988); United States v. Riccio, 726 F.2d 638, 643 (10th Cir.
1984).
12 See State v. McCurry, 587 S.W.2d 337, 340 (Mo. App.
1979).
13 See United States v. Castillo, 866 F.2d 1071, 1080-81
(9th Cir. 1988) (upholding sweep because officers testified that
they knew of cocaine dealers propensities to carry weapons and
resort to violence).
14 Maness v. State, 49 P.3d 1128, 1131 (Alaska App. 2002);
see also Spietz, 531 P.2d at 525; Earley, 789 P.2d at 376;
Murdock, 664 P.2d at 596.
15 Maness, 49 P.3d at 1131.
16 Id.
17 738 N.E.2d 283 (Ind. Ct. App. 2000).
18 757 F.2d 1439 (4th Cir. 1985).
19 Teer, 738 N.E.2d at 286.
20 Id.
21 Id. (citing Reed v. State, 582 N.E.2d 826, 828 (Ind.
Ct. App. 1991)).
22 Bernard, 757 F.2d at 1440-41.
23 Id. at 1441.
24 See id.
25 Id.
26 Spietz, 531 P.2d at 525.
27 See id.
28 Id.
29 Moore v. State, 119 P.3d 1018, 1020 (Alaska App. 2005)
(citing Norman v. State, 379 So. 2d 643, 646-47 (Fla. 1980);
Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416
(1975); Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct.
407, 416, 9 L. Ed. 2d 441 (1963)).
30 Id. (citing Florida v. Royer, 460 U.S. 491, 507-08, 103
S. Ct. 1319, 1329, 75 L. Ed. 2d 229 (1983); Wong Sun, 371 U.S. at
487-88, 83 S. Ct. at 417; United States v. Melendez-Garcia, 28
F.3d 1046, 1053 (10th Cir. 1994)).
31 Id. at 1020-21 (citing United States v. Taheri, 648
F.2d 598, 601 (9th Cir. 1981)).
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