Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493 This site is possible because of the following site sponsors. Please support them with your business.

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.

Snowden v State (6/19/2015) ap-2456

Snowden v State (6/19/2015) ap-2456


         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 Courts:   

                                303 K Street, Anchorage, Alaska  99501

                                           Fax:  (907) 264-0878

                                   E-mail:  corrections @



                                                               Court of Appeals No. A-10971  

                                  Appellant,                  Trial Court No. 4FA-08-820 CR  


                                                                        O  P  I  N  I  O  N 


                                  Appellee.                       No. 2456 - June 19, 2015  

                 Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                 Fairbanks, Robert B. Downes, Judge.  

                 Appearances:        Colleen  A.  Libbey,  Libbey  Law  Offices,  


                 Anchorage, for the Appellant.  Timothy W. Terrell, Assistant  


                 Attorney   General,   Office   of   Special   Prosecutions   and  


                 Appeals,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                 General, Juneau, for the Appellee.  

                 Before:    Mannheimer,  Chief  Judge,  Allard,  Judge,  and  

                 Hanley, District Court Judge. *  


                 Judge MANNHEIMER.  

    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                   A little after 3:00 in the morning on March 14, 2008, the Fairbanks police  

received an "open-line" 911 call.  That is, someone called 911, but when the dispatcher  

answered the call, there was no response - just an open telephone line (although the  


dispatcher heard a sound like a cough).   

                   The  911  dispatcher  determined  that  the  call  originated  from  Mom's  

Kitchen,  a  local  restaurant,  and  police  officers  were  dispatched  to  this  restaurant  to  


investigate the call.  During this investigation, the officers entered the residence of Ivan  


J. Snowden, who lived in an apartment downstairs from the restaurant.  The police found  


no emergency, but they did find drugs in plain view.  Based on the discovery of these  


drugs,  Snowden  was  convicted  of  third-  and  fourth-degree  controlled  substance  


                   In this appeal, Snowden contends that the police entry into his apartment  


was unlawful, and that the superior court therefore should have suppressed the drugs.  

For the reasons explained in this opinion, we conclude that the entry into Snowden's  

apartment, and the ensuing search of the apartment, were justified under the emergency  


aid exception to the warrant requirement.  We therefore uphold the search, and we affirm  


Snowden's convictions.  

          Underlying facts  

                   At 3:16 in the morning on March 14, 2008, the Fairbanks 911 dispatch  

received a 911 call from Mom's Kitchen.  When the 911 dispatcher answered the call  

and asked what was the nature of the emergency, she heard no response - although the  


caller did not hang up the phone.  As the dispatcher listened to the open line, she heard  


what she believed was a cough.  

                   Several Fairbanks police officers went to Mom's Kitchen to investigate.  

                                                          - 2 -                                                     2456

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

                    Mom's Kitchen occupied the upper floor of a two-story building.  The  

bottom floor of the building was rented as an apartment - although the officers did not  


know this until later.   

                    The  building  had  a  front  entrance  that  went  into  the  restaurant.    The  

building also had a back entrance (an arctic entry) that led inside to a landing.  From this  


landing, stairs went up directly into the restaurant (with no intervening door), and stairs  


also went down into the apartment, but one had to go through an intervening door to get  


into the apartment.   

                    Around the time the officers arrived at Mom's Kitchen, a taxi cab pulled  

up to the rear of the building.  The taxi driver told the officers that he was there to pick  


up a man named "Jay" - but this person never showed up.    

                    The officers went to the front of the building to try the door, but it was  

locked.  The officers then proceeded to the back entrance, where they discovered that the  


door was standing open about three to four inches.  Speaking through the open door, the  


officers announced themselves, but there was no response.   

                    The  officers  then  entered  the  building  and  went  up  the  stairs  to  the  

restaurant portion.  There, they found a cordless phone sitting on a table in one of the  


restaurant booths.  This was the phone that had been used to make the 911 call, and its  


line was still open - but there was no one in the restaurant.  The police saw no sign of  


an emergency (or of any criminal activity).   

                    The officers then proceeded down the stairs to search the lower floor of the  


building.  Finding that the door to the lower floor was locked, the officers knocked on  

the door and announced themselves.  They were greeted with silence.   

                    At this point, the officers still did not know that the lower floor of the  


building was an apartment.  But when they contacted one of the owners of the building  


(Lee Brown), Brown informed them that he was renting the lower floor to a man named  


                                                             - 3 -                                                       2456

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

"Ivan Peterson".  Brown came to the building and brought keys so that the officers could  

enter and inspect the lower floor.   

                   When Brown arrived on the scene, he met the officers in the restaurant  


portion of the building.  Brown told the officers that there was a photograph of Ivan  


Peterson on the restaurant wall.  When Brown pointed out this photograph, one of the  

officers recognized "Peterson" as a man named Ivan Snowden - a man who was known  

to the police because of his involvement with drugs.   

                   When the officers asked Brown if Snowden's apartment was self-contained,  

Brown told them that it was not:  Snowden had access to the restaurant because there was  


no bathroom in his apartment, so he used the one upstairs in the restaurant.   

                    The officers returned to the door that led downstairs into the apartment.  

They knocked loudly on the door, and they announced themselves as police officers.  In  


response to their announcement, the officers heard movement inside the apartment; they  


then heard someone "fiddling" with the door, and Snowden opened the door.   

                    The officers had Snowden step out of the door, and they frisked him for  

weapons. Following this frisk, the officers asked Snowden what was going on inside his  


apartment.  Snowden replied that he was just watching a movie with two of his friends.  


The officers then placed Snowden in handcuffs, and one of them took Snowden upstairs  


to the restaurant.   

                   After restraining Snowden, the police entered Snowden's apartment to see  


if anyone inside needed assistance. Inside the apartment, the officers smelled both burnt  


and fresh marijuana.  They also found a man and a woman, both of whom appeared to  


be intoxicated, sitting in the apartment.   

                    In response to the officers' questions, the man and the woman declared that  


they had not called 911.  In addition, neither of the two was named "Jay" (the person that  


the taxi driver was waiting for).   

                                                            - 4 -                                                      2456

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

                    The man and the woman told the officers that there was no one else in the  


apartment.  Nevertheless, the officers looked through the apartment.  They found no  

other  people  -  although  they  did  see  some  marijuana  in  plain  view.    During  their  

examination of the apartment, the officers discovered that the apartment contained an  

office area, which was locked.  Because the officers were concerned that there might be  


a person inside this office area, they unlocked the office (with a key that they had seized  


from Snowden during the frisk).  The office was empty, and it contained no evidence of  


either an emergency or criminal activity.   

                    After inspecting the office, the officers looked behind a bar area in the  

apartment.  At this point, one of the officers smelled the odor of cocaine and noticed a  


white, powdery substance on one of the counters.  When the officer took a swab of the  


substance and tested it with a drug kit, the substance tested positive for cocaine.   

                    Based on this drug evidence, the police obtained a search warrant.  The  


ensuing search of the apartment (under the authority of the warrant) yielded 20.8 grams  


of  cocaine,  7.6  grams  of  methamphetamine,  130.4  grams  of  marijuana  (about  4-  


ounces), and two tablets of MDMA.   

          The legality of the officers' warrantless entry into Snowden's apartment  

                    Under  both  the  Alaska  constitution  and  the  federal  constitution,  police  

officers  can  enter  a  dwelling  without  a  warrant  if  their  entry  is  for  the  purpose  of  

investigating or responding to what they reasonably believe is an ongoing emergency.  


State v. Gibson, 267 P.3d 645, 658-59 (Alaska 2012); Gallmeyer v. State, 640 P.2d 837,  


841-42 (Alaska App. 1982); Brigham City v. Stuart , 547 U.S. 398, 403; 126 S.Ct. 1943,  


1947; 164 L.Ed.2d 650 (2006).  

                                                            - 5 -                                                       2456

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


                    In State v. Gibson, our supreme court laid out a three-part test to govern the  


question of whether, under the Alaska constitution, a warrantless entry into a residence  

is justified under this emergency aid exception to the warrant requirement:  



                    [T]he Alaska Constitution requires that warrantless searches  


                    under the emergency aid doctrine satisfy [the] three ... prongs  

                    specified in Gallmeyer:  (1) the police must have reasonable   

                    grounds  to  believe  there  is  an  emergency  at  hand  and  an  


                    immediate need for their assistance in the protection of life or  


                    property; (2) the search must not be primarily motivated by  


                    the intent to arrest a person or to seize evidence; and (3) there  


                    must  be  some  reasonable  basis,  approximating  probable  


                    cause, to associate the emergency with the area or place to be  


Gibson, 267 P.3d at 659.  


                    In the present case, the superior court expressly applied the Gibson test to  

the  facts  of  Snowden's  case  and  concluded  that  the  police  could   validly  conduct  a  

warrantless entry of the building, and later of Snowden's apartment, to investigate the  

"open-line" 911 call.  More specifically, the superior court concluded that the police  

could reasonably suspect that the telephone line was left open because "the person who  


had made the call was interrupted [while] making the call", or because the caller "[put]  


the phone down and ran", or because the caller "was immediately grabbed or seized, and  

the phone ... wasn't hung up."   

                    On appeal, Snowden argues that an open-line 911 call is not sufficient,  

standing alone, to justify a warrantless entry into a dwelling.  Snowden further argues  

that there was nothing else about the facts of his case to affirmatively corroborate the  

existence  of  an  emergency  (i.e.,  an  "immediate  need  for  [police]  assistance  in  the  

protection of life or property").  Gibson, 267 P.3d at 659.  

                                                             - 6 -                                                         2456

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

                    We agree with Snowden's first assertion:  An open-line 911 call is not  

sufficient,  standing  alone,  to  justify  a  warrantless  entry  into  a  dwelling.                                      We  


acknowledge that an open-line call to an emergency operator is obviously a suspicious  


circumstance.  But whenever the State seeks to justify a warrantless entry under the  

emergency aid exception to the warrant requirement, the proposed justification for the  


entry must be assessed in light of the totality of the circumstances.  As our supreme court  

stated in Gibson:  


                    Application of the emergency aid exception to the warrant  

                    requirement cannot be evaluated with across-the-board, rigid,  

                    and formalistic standards; it is a flexible doctrine that ... must  


                    be    evaluated        on    a    case-by-case          basis,   balancing          the  


                    competing  interests  in  light  of  the  actual  facts,  perceived  

                    dangers, and circumstances encountered by police.  

267 P.3d at 661.  

                    But we disagree with Snowden's assertion that there was nothing else to  


affirmatively corroborate the police officers' suspicions of an emergency.  

                    Here, the 911 call was made in the middle of the night - shortly after 3:00  


in the morning.  When the police arrived at Mom's Kitchen in response to the call, they  


found the back door to the building standing ajar.  In addition, the police knew that a taxi  


had been summoned to that address, but the customer never appeared.   

                    Before  the  police  entered  the  building  through  the  back  door,  they  

announced themselves, but they received no response.  Inside the restaurant (i.e., on the  


upper floor), the officers located the cordless phone that had been used to make the 911  


call.  This phone still had an open line, but there was no one in the restaurant.   

                    At this point, the police turned their focus to the lower floor of the building  


- which, they learned, was rented by Snowden.  When the officers knocked on the door  


and  announced  who  they  were,  Snowden  opened  the  door  and  told  the  police  that  


                                                             - 7 -                                                       2456

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

nothing was wrong; he told the officers that he was just watching a movie with two of  


his friends.   

                    As both a factual and legal matter, this was a turning point in Snowden's  

case.  As a factual matter, the police officers had to make a decision:  they could either  


accept Snowden's statement, and simply write off the 911 call as unexplained, or they  

could enter Snowden's apartment to investigate further.  

                    The  related  legal  issue  -  the  issue  that  this  Court  must  resolve  -  is  


whether, after Snowden told the officers that he was simply watching a movie with  


friends,  the  officers  still  had  reasonable  grounds  to  believe  that  an  emergency  was  


occurring, as well as "some reasonable basis, approximating probable cause, to associate  

[that] emergency" with Snowden's apartment.  Gibson at 659.  

                    We have found a few other court decisions dealing with similar facts:  a  

warrantless police entry prompted by a suspicious 911 call (either an open-line call like  

the one in this case, or a call where the caller immediately hung up and did not answer  


the 911 operator's return call), where the occupant of the home told the police that there  


was no emergency.   

                    For instance, in the New Jersey case of State v. Frankel, 847 A.2d 561  


(N.J. 2004), a police dispatcher received an open-line 911 call from a telephone number  


listed in the defendant's name.  Because the dispatcher could not make contact with the  


911 caller, an officer was dispatched to the defendant's residence.  Id. at 574.  

                    When an officer arrived at the front door, he found that someone had hung  


a sheet inside the house, obstructing his view of the interior.  In response to the officer's  


knocking, the defendant poked his head out from behind this sheet and told the officer  


that he lived alone, and that he did not make the 911 call.  Ibid.  Fearing that there was  


an incapacitated victim inside the house, the officer asked the defendant to explain the  


                                                             - 8 -                                                         2456

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

911 call.  According to the officer, when the defendant responded to this question, he  


was unusually nervous and agitated, and he stumbled over his words.  Ibid .  

                     The New Jersey court noted that a 911 call "is tantamount to a distress  


call[,] even when there is no verbal communication over the telephone to describe the  

nature of the emergency."  Ibid.  Thus, "[a] responding police officer is not required to  

accept blindly the explanation ... offered by the resident answering the door, but must  


base his decision on the totality of the circumstances."  Ibid.  The court held that, given  


the circumstances in this case, the officer "did not have to give uncritical acceptance to  


defendant's belated explanation that his computer modem may have caused a false 911  


transmission", and that the officer could justifiably enter the house to investigate.  Id. at  



                     Similarly, in People v. Greene , 682 N.E.2d 354 (Ill. App. 1997), a police  


dispatcher received a "hang-up" call to 911.  When the dispatcher made a return call to  


that number, the dispatcher was connected to an answering machine.  The dispatcher  


thereupon sent officers to the residence where the call originated.  Id. at 355-56.   

                     The officers knocked on the screen door to the defendant's porch, and they  


received no response.  They then opened the porch door and proceeded to the front door.  


Ibid .  Looking through a window in the front door, the officers saw the defendant seated  


on a couch in the living room.  When they knocked on the door and announced their  


presence, the defendant walked to the door, locked the dead bolt lock, and then returned  


to the couch, at which time he appeared to hide something under a cushion.  Ibid.  


                     The officers persisted in their knocking until the defendant returned to the  


door and opened it.  The officers told the defendant that they had received a 911 call  


from his house - to which the defendant replied that he had not called 911, and that he  


was alone in the house.  The police nevertheless entered the house to investigate, and  

they found drugs.  Ibid.  


                                                               - 9 -                                                          2456

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

                    The Illinois court upheld this warrantless entry:  


                              We conclude that these peculiarities made it reasonable  

                    for the police to believe that someone within the house was  

                    attempting  to  call  911  for  help  but  was  prevented  from  


                    completing the call. Accordingly, the officers' entrance was  


                    justified by the exigent circumstances presented to them.  If  


                    we  were  to  adopt  the  rule  urged  by  defendant,  the  police  


                    would never be authorized to enter and offer assistance in  

                    such a situation.  

Greene, 682 N.E.2d at 358-59.  

                    In State v. Pearson-Anderson, 41 P.3d 275 (Idaho App. 2001), the court  


upheld  a  warrantless  entry  into  a  dwelling  in  a  case  where  the  police  received  a  

suspicious 911 call from the defendant's house:  the initial 911 call was a hang-up call,  


and  when  the  911  operator  called  back,  someone  picked  up  the  phone  but  then  

immediately hung up.  Id. at 275-76.  

                    When police officers arrived at the residence, they observed the defendant  


and her live-in boyfriend struggling with one another on the floor across the threshold  


of the back door.  Id. at 276.  The defendant told the police that she was fighting with her  


boyfriend because he "had given a key to the home to another woman", and this woman  

had entered the house and damaged some of the defendant's belongings.  Ibid.  The  


defendant told the police that this other woman had been there "earlier", but she had left.  




                    One of the officers decided to enter the home to see if any third persons  


were present in the home and in need of assistance.  Id. at 277.  The officer found no one  


in distress, but he did discover a meth lab.  Ibid .  

                    The Idaho court upheld the warrantless entry into the home.  The court  


reasoned that the initial hang-up 911 call, followed by someone hanging up the phone  

                                                             - 10 -                                                        2456

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

when the dispatcher called back, "suggested that someone in the home ... was in need of  


help" and that this person "had been prevented by another person from communicating  


with the operator."  Id. at 278.  The court rejected the defendant's contention that the  

officers  were  barred  from  entering  the  home  after  someone  at  the  scene  offered  a  

seemingly plausible explanation for the hang-up call and assured the officers that no one  


was in distress.  Id. at 276, 278.  

                     See also State v. Lynd, 771 P.2d 770 (Wash. App. 1989), where the court  


upheld a warrantless entry into a dwelling in a case where a police dispatcher received  


a hang-up 911 call, the line was busy when the dispatcher called back, and the defendant  


admitted to the police that he and his wife had been fighting, but the defendant claimed  


that his wife was no longer at home.  

                    As we said earlier in this opinion, the law does not allow police officers to  


enter a home without a warrant simply because the police have received a suspicious 911  


call.    There  will  be  times  when  the  explanation  offered  by  the  people  in  the  home,  


coupled with the officers' observations at the scene, will dispel any reasonable ground  


for believing that there is an ongoing emergency.  But the police are not required to set  


aside their reasonable concerns that people are in danger simply because someone at the  


home claims that there is no emergency.  

                    In Snowden's case, someone called 911 from Mom's Kitchen at 3:00 in the  


morning.  After this person made the 911 call, they left the line open, they left the phone  


on the table of the empty restaurant, and then they seemingly disappeared.  A taxi cab  

was waiting outside the building  for  a  customer who never showed up.  The police  


searched the upper floor of the building, and they found no one.  The only place left to  


look was the lower floor - Snowden's apartment.   

                    It is true that Snowden disclaimed any knowledge of the 911 call, and he  


told the police that he had simply been socializing and watching a movie.  But given the  

                                                             - 11 -                                                          2456

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

other  suspicious  circumstances,  the  police  were  not  required  to  uncritically  accept  

Snowden's statement.  

                  In the end, the question here is whether the totality of the circumstances,  

including Snowden's statement, left the police with reasonable grounds to believe that  


there  was  an  emergency  at  hand  (i.e.,  an  immediate  need  for  their  assistance  in  the  

protection of life or property), and a reasonable basis, "approximating probable cause",  

to associate this emergency with Snowden's apartment.   

                  We conclude that the answer to this question is "yes", and we therefore  

conclude that the officers' warrantless entry into Snowden's residence was justified  

under the emergency aid exception to the warrant requirement.  

         The scope of the officers' search of the apartment  

                  In his brief to this Court, Snowden presents the alternative argument that  

even if the officers' entry into his apartment was justified, the officers' search of the  


apartment was at least partially unlawful - under the theory that the scope of this search  


exceeded the kind of search that would be justified by the apparent emergency.  

                  Although Snowden mentioned this argument in passing when he argued his  

suppression motions in the superior court, he obtained no ruling from the superior court  

on this issue.  Snowden therefore failed to preserve this claim for appeal.  And under the  


supreme court's decision in Moreau v. State , 588 P.2d 275, 280 (Alaska 1978), Snowden  


can not raise this claim for the first time on appeal.  We therefore do not reach the merits  


of this claim.  


                  The judgement of the superior court is AFFIRMED.  

                                                       - 12 -                                                   2456

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