The Constitution of the State of Alaska (2025)

I.General Consideration

A.In General

Power to search recognized by law. —

English and American law has always recognized the power to search the person of the accused, when legally arrested, to discover and seize the fruits or evidences of the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Security from excessive force. —

Police officer’s tasering of an 11-year-old girl who was driving an ATV dangerously through city streets was a possible violation of the child’s right to be secure in her person. Russell ex rel. J.N. v. Virg-In, 258 P.3d 795 (Alaska 2011).

No excessive force found. —

Officer who shot fleeing person after an extended vehicle pursuit, and search of a wooded area on foot, did not use excessive force. The fleeing person, the subject of an involuntary commitment order, was armed and had fired shots earlier in the incident. Maness v. Daily, 307 P.3d 894 (Alaska 2013).

Right to privacy protected. —

The right to privacy is protected by this section and the 14th amendment to the federal constitution.Bargas v. State, 489 P.2d 130 (Alaska 1971).

Based on Alaska Const. art. I, §§ 14, 22, and the highly personal information that can be revealed by a garbage search, a person who sets out garbage for routine collection on or adjacent to a public street or a public area has some objectively reasonable expectation of privacy in that garbage. Beltz v. State, 221 P.3d 328 (Alaska 2009).

Exercise of that right is not a badge of guilt. The constitutional protection against unreasonable searches and seizures would be meaningless if the exercise of that right were allowed to become a badge of guilt. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Accused’s assertion of his constitutional right not to have his privacy invaded without just cause cannot be used against him to help establish guilt of the crime for which he was indicted. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Right gives way to need to investigate crime. —

Where there is probable cause to arrest for a particular crime of a type which can be evidenced by items concealed on the person, there is little danger of a pretext arrest. In such circumstances, the individual’s rights of privacy must give way to the public need to investigate the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Staleness. —

Defendant's claim that the information used to support a search warrant was too stale was rejected given the serial nature of the sexual assault charges. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Purpose of section. —

The primary purpose of the constitutional guarantees furnished by this section is the protection of “personal privacy and dignity against unwarranted intrusion by the state.” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The primary purpose of this constitutional provision, together with the explicit guarantee of the right to privacy in Alas. Const., art. I, § 22, is the protection of personal privacy and dignity against unwarranted intrusion by the state or other governmental officials. Schultz v. State, 593 P.2d 640 (Alaska 1979).

When section operative. —

This section is only operative when there has in fact been either a “search” or a “seizure.” McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

This section is the state counterpart of the 4th amendment. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Both the 4th amendment to the federal constitution and its counterpart found in this section furnish guarantees against unreasonable searches and seizures. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Section and 4th amendment compared. —

This section is identical to the 4th amendment except for the addition of the term “and other property” in the catalogue of protected zones. Keller v. State, 543 P.2d 1211 (Alaska 1975).

The privacy protections provided by this section substantively parallel those contained in the 4th amendment to the federal constitution.Weltin v. State, 574 P.2d 816 (Alaska 1978).

This section provides protection similar to that afforded by the 4th amendment. Ferguson v. State, 488 P.2d 1032 (Alaska 1971).

Section contains an even broader guarantee against unreasonable searches and seizures than the 4th amendment. Ellison v. State, 383 P.2d 716 (Alaska 1963); State v. Daniel, 589 P.2d 408 (Alaska 1979).

The Alaska constitutional guarantee against unreasonable searches and seizures is broader than 4th amendment guarantees. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

The supreme court may construe Alaska’s constitutional provisions as affording additional rights. State v. Glass, 583 P.2d 872 (Alaska 1978).

This section contains an even broader guarantee against unreasonable searches and seizures than does the 4th amendment to the Constitution of the United States since the 4th amendment does not contain the phrase “and other property.” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The supreme court may construe the Alaska Constitution to afford broader rights than similar federal provisions. Roman v. State, 570 P.2d 1235 (Alaska 1977).

The Alaska constitutional guarantee against unreasonable searches and seizures is broader in scope than 4th amendment guarantees under the United States Constitution, at least in part because of the more extensive right of privacy guaranteed Alaskan citizens by Alaska Const., art. I, § 22. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Alaska constitution requires greater restrictions on police authority than the restrictions imposed by the Fourth Amendment when motorists are asked to consent to a search of their person, their vehicle, or their belongings during a traffic stop. Brown v. State, 182 P.3d 624 (Alaska Ct. App. 2008).

Provisions for issuance of warrants are same. —

The 4th amendment and this section contain the same provision in regard to the issuance of warrants. Bell v. State, 482 P.2d 854 (Alaska 1971).

Section not to be interpreted more strictly than federal constitution. —

Alaska constitutional prohibition against unreasonable searches and seizures, as to narcotics cases, should not be interpereted more strictly than the federal constitution. Davis v. State, 525 P.2d 541 (Alaska 1974).

Consideration of United States supreme court holdings. —

In construing similar provisions of Alaska’s constitution, the supreme court gives careful consideration to the holdings of the United States supreme court, although it is not bound by them. State v. Glass, 583 P.2d 872 (Alaska 1978).

The Alaska supreme court is not bound by the U.S. supreme court’s interpretations of the 4th amendment in expounding the corresponding section of Alaska Const., art. I, § 14. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Criminal R. 37 implements section. —

Criminal R. 37, providing in part that a search warrant authorized by law shall issue only on affidavit sworn to before a judge or magistrate or any person authorized to take oaths under the law of the state, or sworn testimony taken on the record in court and establishing the grounds for issuing the warrant, implements this section and the 4th amendment to the United States Constitution.Milne v. State, 607 P.2d 360 (Alaska 1980).

The 4th amendment protects people, not places. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Governmental intrusions limited in scope. —

The right to be “secure . . . against unreasonable searches and seizures,” under this section requires that governmental intrusion into the personal privacy of Alaska citizens be limited in scope to that degree necessary under the particular circumstances. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Aerial surveillance using telephoto lens requires warrant. —

When an individual has taken reasonable steps to protect their house and curtilage from ground-level observation, he has a reasonable expectation that law enforcement will not use a telephoto lens or other visual enhancement technology to engage in aerial surveillance of the individual's residential property for the purpose of investigating criminal activity; in such circumstances, the aerial surveillance constitutes a search and requires a warrant unless there is an applicable exception. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Because defendant had taken reasonable measures to protect the privacy of his residential curtilage from ground-level observation, and because the officer used a telephoto lens during his aerial surveillance of defendant's property to obtain an enhanced view of the greenhouse located within his curtilage, the trooper's investigative overflight was a search that required a warrant; as there was no warrant and no exception to the warrant requirement, the superior court should have granted defendant's motion to suppress. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

When person “seized.” —

A person is seized when a reasonable person in his position would not feel free to leave. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

Whenever a reasonable person (one who is innocent of any crime) would believe that his attempt to break off discussion with the officer and leave the scene would result in actual restraint or other physical violence, he is restrained and has been seized as the term is used in the constitution. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Where the police officer asked defendant for identification in the course of general questioning about property and the officer had a right to be where he was and to ask questions about what was going on around him, the judge did not err in concluding that defendant was free to leave during the initial questioning, and defendant was not seized for 4th amendment purposes until the pat-down began. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

No fourth amendment seizure occurred at the point when defendant exited his vehicle and the police officer asked him if he had been drinking, since defendant stopped his vehicle of his own accord and he himself approached the officer following him who, though he had also stopped his car, had made no attempt to contact defendant. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

See also notes under catchline “Inquiry vs. investigative stop,” analysis line III H below.

Contacts between police and citizens as “seizures” of persons. —

A confrontation by a police officer will amount to a seizure only if the officer added to the inherent pressures to respond to questions by engaging in conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen. Waring v. State, 670 P.2d 357 (Alaska 1983).

The actions of a state trooper constitute a “seizure” when he instructs a suspect to sit in a patrol car. Upon such an assertion of authority, it is reasonable for the suspect to conclude that he is not free to disobey the trooper’s instructions and go about his business. Waring v. State, 670 P.2d 357 (Alaska 1983).

State instigation of “private” search. —

When the issue of state action arises the underlying question is whether, under the particular circumstances, the government so substantially instigated or insinuated itself into the private person’s action that the search can no longer be deemed “private.” Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Search for identification. —

Search of a person who has been subjected to a full custodial arrest for identification was permissible where the person was given an opportunity to identify himself and refused to do so. Stephens v. State, 698 P.2d 664 (Alaska Ct. App. 1985).

Protection extended to administrative searches. —

Construction of this section has been largely done in the context of searches and seizures by police officers seeking to obtain evidence to be used against an accused in a criminal prosecution. But the protection of this constitutional provision has also been extended in cases of administrative searches and seizures. Schultz v. State, 593 P.2d 640 (Alaska 1979).

A person’s privacy and security must be safeguarded against arbitrary invasions by governmental officials, such as fire inspectors. The rule is the same here as in the case of invasions by police officers and building and health inspectors, i.e., that, except in narrowly-defined classes of cases, the provisions of this section stand for the proposition that a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Permissible administrative searches. —

Where the searches are in furtherance of an administrative purpose and not to discover contraband unrelated to that purpose or evidence of unrelated crimes, it is permissible under this section. State v. Salit, 613 P.2d 245 (Alaska 1980).

See also notes under catchline “Searches by means of airport screening,” etc., under this analysis line, below.

Where the administrative action is merely a cover for illegal police activity, otherwise permissible administrative searches and seizures may be held invalid. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Entry of building in search of suspect. —

A police officer may not enter a dwelling in search of a suspect for whom he has an arrest warrant unless, at a minimum, he has probable cause to believe the suspect is within. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Home afforded special protection. —

The home has traditionally been afforded special protection under the 4th amendment of the United States Constitution and under the Alaska Constitution. State v. Spietz, 531 P.2d 521 (Alaska 1975).

A door of the home represents a firm constitutional barrier whether or not it is open. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Property exposed to public is not protected. —

What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th amendment protection. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Property which has been converted for commercial use and is open to the general public is entitled to less privacy protection under the federal 4th amendment than a purely private dwelling. Howard v. State, 583 P.2d 827 (Alaska 1978).

But property preserved as private is. —

What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Wherever an individual may harbor a reasonable “expectation of privacy,” he is entitled to be free from unreasonable governmental intrusion. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

There is a twofold requirement: First, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Nathanson v. State, 554 P.2d 456 (Alaska 1976); Anderson v. State, 555 P.2d 251 (Alaska 1976).

The test for determination of the applicability of 4th amendment protections requires “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The dual requirement for 4th amendment protection set forth by Justice Harlan in his concurrence in Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), first, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as reasonable, has been adopted for Alaska. State v. Glass, 583 P.2d 872 (Alaska 1978). See State v. Daniel, 589 P.2d 408 (Alaska 1979).

Content and incidence of the constitutional protection of privacy must be shaped by the context in which it is asserted. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

Items already seen under lawful circumstances. —

Where the items in question have been exposed to police view under unobjectionable circumstances, no reasonable expectation of privacy is breached by an officer’s taking a second look at matter with respect to which expectation of privacy already has been at least partially dissipated. Griffith v. State, 578 P.2d 578 (Alaska 1978); Reeves v. State, 599 P.2d 727 (Alaska 1979).

Warrantless monitoring of private conversations on the mere consent of a participant violates the right of privacy and constitutes an unreasonable search and seizure under this section and Alaska Const., art. I, § 22. Aldridge v. State, 584 P.2d 1105 (Alaska 1978).

Warrantless monitoring of a private conversation by a participant to that conversation violates this section and Alaska Const., art. I, § 22. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Warrantless nonconsensual recordings are violative of the constitutional rights of the person being recorded. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

One communicating private matters to another exhibits an actual (subjective) expectation of privacy whether or not the listener is equipped with electronic devices. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

The expectation that one’s conversations will not be secretly recorded or broadcast should be recognized as reasonable. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

In the absence of limited exceptions, a search warrant should be obtained from an impartial magistrate, based on probable cause to believe that criminal activity will be discovered, before electronic monitoring of conversations should be allowed. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

Glass decision applies prospectively. —

The decision in State v. Glass , 583 P.2d 872 (1978), holding that warrantless electronic monitoring of a conversation between a police informant and a defendant violated the defendant’s right of privacy and freedom from unreasonable searches and seizures under the Alaska Constitution, will apply prospectively to activity occurring on or after September 15, 1978, the date of the decision, except for the Glass case itself and State v. Thornton , 583 P.2d 886 (1978), and Aldridge v. State , 584 P.2d 1105 (1978), which were announced on the same day as Glass, and Coffey v. State , 585 P.2d 514 (1978), the announcement of which was in addition to participant monitoring. These cases are governed by the new ruling. Coffey v. State, 585 P.2d 514 (Alaska 1978); LeDuff v. State, 618 P.2d 557 (Alaska 1980).

The holding in State v. Glass , 583 P.2d 872 (Alaska 1978), requiring a search warrant before electronic monitoring of conversations be allowed, applies only prospectively to police activity occurring on or after September 15, 1978, with the exception of Glass and three other cases considered at the same time. Coffey v. State, 585 P.2d 514 (Alaska 1978); Aldridge v. State, 584 P.2d 1105 (Alaska 1978) and State v. Thornton, 583 P.2d 886 (Alaska 1978). Robinson v. State, 593 P.2d 621 (Alaska 1979).

See also Mossberg v. State, 624 P.2d 796 (Alaska 1981), in which the supreme court refused to adopt an exception to the retroactivity ruling made in State v. Glass, 583 P.2d 872 (Alaska 1978).

Glass warrant. —

A warrant consistent with the requirements in State v. Glass , 583 P.2d 872 (Alaska 1978) issued pursuant to an informant’s testimony that defendant confessed his involvement in a robbery and homicide was valid; the informant led police to the murder weapon. State v. Anderson, 73 P.3d 1242 (Alaska Ct. App. 2003).

Warrantless videotaping of private conversations. —

If a person engages in a conversation that is protected from electronic monitoring under State v. Glass , 583 P.2d 872 (Alaska 1979), and if the conversation occurs in a place where the person has a reasonable expectation of visual privacy, such as a private apartment, then the police must secure a warrant before surreptitiously videotaping the conversation, even if they turn the sound off. State v. Page, 911 P.2d 513 (Alaska Ct. App. 1996).

The Alaska constitutional guarantee appertains to commercial or business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The Alaska Constitution protects an individual’s reasonable and subjective expectation of privacy regarding commercial premises. However, both subjectively and in society’s judgment as to what is reasonable, distinctions may be made in the varying degree of privacy retained in different places and objects, and the supreme court is neither compelled to ignore the profound differences distinguishing one’s home from one’s business nor compelled to presume that people desire or expect the police to conduct themselves in identical fashion with respect to each. State v. Myers, 601 P.2d 239 (Alaska 1979).

Exhibition of subjective expectation of privacy. —

Owners of business premises exhibited an actual (subjective) expectation of privacy in their business establishment, and their expectation of privacy is one that society is prepared to recognize as reasonable. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless administrative inspections prohibited. —

In light of the expansive protections afforded to citizens of Alaska by virtue of this section and Alaska Const., art. I, § 22 against warrantless searches and seizures and invasions of privacy, the Alaska Constitution prohibits warrantless administrative inspections of private business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

See notes under catchline “Protection extended in cases of administrative searches,” under this analysis line, above.

Obtaining warrant for administrative search. —

The requisite showing necessary to obtain a warrant for an administrative search is one of attenuated probable cause and this standard is both reasonable and constitutionally permissible. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless inspection unconstitutional. —

A warrantless Occupational Safety and Health Act inspection, as authorized by AS 18.60.083(a) , constitutes an unconstitutional search in that it is violative of this section. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Since violations of Alaska’s Occupational Safety and Health Act can result in significant fines and imprisonment, the self-protection and private interests of the owner of business premises are deserving of, although not equivalent to, the significant constitutional solicitude and protection afforded Alaska’s citizens in criminal prosecutions, for broad statutory safeguards are inadequate substitutes for individualized judicial review of applications for search warrants. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Proscriptions apply only to governmental action. —

The proscriptions against unreasonable searches and seizures contained in the United States and Alaska constitutions apply only to governmental action. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Search for government’s benefit. —

Where a search is conducted solely for the government’s benefit, or when the state’s officer participates in the conduct, then the conduct cannot be regarded as a strictly private act. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Where a police officer was present at the time of the warrantless search, initiated it by requesting defendant’s wallet, and then participated in it by riffling through the wallet, although the wallet was actually taken from defendant by his friend, a private citizen, obviously the friend’s conduct was strictly for the government’s benefit, since he already had been given his warnings and certainly he did not need or want to determine defendant’s identification, and the search was not a “private search.” Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 Ohio Misc. 9, 36 Ohio Op. 2d 237 (U.S. 1966), limited, United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (U.S. 2004), limited, Vega v. Tekoh, — U.S. —, 142 S. Ct. 2095, 213 L. Ed. 2d 479 (U.S. 2022); Schraff v. State, 544 P.2d 834 (Alaska 1975).

Purpose of warrant requirement. —

See Keller v. State, 543 P.2d 1211 (Alaska 1975); Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The purpose of the warrant requirement is to prevent the police from hasty, ill-advised, or unreasonable activities. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Searches conducted outside the judicial process. —

Subject only to a few specifically established and well-delineated exceptions, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971); Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless searches are “per se unreasonable” unless they fit within a recognized exception to the warrant requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975); Gieffels v. State, 590 P.2d 55 (Alaska 1979); State v. Myers, 601 P.2d 239 (Alaska 1979).

A search conducted without a warrant is per se unreasonable unless the search fits within one of the few specifically established and well-delineated exceptions to the warrant requirement. Zehrung v. State, 569 P.2d 189 (Alaska 1977); Cruse v. State, 584 P.2d 1141 (Alaska 1978); Lupro v. State, 603 P.2d 468 (Alaska 1979).

A search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement. State v. Daniel, 589 P.2d 408 (Alaska 1979); Schultz v. State, 593 P.2d 640 (Alaska 1979); Reeves v. State, 599 P.2d 727 (Alaska 1979); Deal v. State, 626 P.2d 1073 (Alaska 1980).

A search conducted without a warrant will ordinarily be regarded as per se unreasonable unless it falls within one of the previously delineated exceptions to the warrant requirement, such as a search to which an individual voluntarily consents. Frink v. State, 597 P.2d 154 (Alaska 1979).

As to exceptions, see notes under analysis line III, “Exceptions.”.

Scope of search. —

As to whether a search is beyond the scope permitted by a search warrant, the supreme court is permitted to look to the circumstances surrounding the issuance of the warrant and will not limit its inquiry to the face of the warrant. Ellsworth v. State, 582 P.2d 636 (Alaska 1978); Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Although a search warrant was somewhat ambiguous in referring to “the premises known as the residence of Spencer Ellsworth,” after reviewing the circumstances surrounding the issuance of the search warrant, including the facts contained in the sworn affidavit of the police officer’s personal observations, the supreme court determined that the search of defendant Ellsworth’s barn was not beyond the scope contemplated by the search warrant. Ellsworth v. State, 582 P.2d 636 (Alaska 1978).

Meaning of “search.” —

The term “search” implies some exploratory investigation or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” Brown v. State, 372 P.2d 785 (Alaska 1962); McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” Weltz v. State, 431 P.2d 502 (Alaska 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); Daygee v. State, 514 P.2d 1159 (Alaska 1973); Schraff v. State, 544 P.2d 834 (Alaska 1975); Gray v. State, 596 P.2d 1154 (Alaska 1979).

The term “search” implies some exploratory invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. Anderson v. State, 555 P.2d 251 (Alaska 1976).

It is well settled that an officer’s observation of things in plain view made from a place where he has a right to be does not constitute a search in the constitutional sense. Conversely, when observations are made from an area to which the officer has not been expressly or impliedly invited, the intrusion is an unlawful search unless made pursuant to a warrant or one of the established exceptions to the warrant requirement. Chilton v. State, 611 P.2d 53 (Alaska 1980).

The evidence before the trial court was wholly insufficient to establish by a preponderance of the evidence that at the time the observations by the police officers from a path were made, the path was open to the public or was otherwise a place where the officers had a right to be. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Search must be reasonable. —

A search would be unlawful and the evidence seized in the search inadmissible if the search was unreasonable under the 4th amendment to the federal constitution and this section. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The guiding criterion in resolving search and seizure issues is one of reasonableness in the constitutional sense. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

No exact formula for determining reasonableness. —

There seems to be no exact formula for the determination of reasonableness in connection with a search and seizure and so each case must be decided on its own facts and circumstances. Ellison v. State, 383 P.2d 716 (Alaska 1963); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

A search which is reasonable at its inception may violate the 4th amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Lapse of time. —

Lapse of time between legal entry and commencement of investigation in the usual case has not been held to be so unreasonable as to affect the legality of the presence of the investigating officers on the premises. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

The fact that approximately ten hours intervened between the original legal entry on the premises by the chief of police, and the commencement of a full-scale police investigation, converted what would otherwise have been a legal police investigation into a violation of defendant’s constitutional right of privacy. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

The intensity of the search depends on the nature of the crime charged. Lemon v. State, 514 P.2d 1151 (Alaska 1973); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

A seizure contemplates a forcible dispossession of the owner and it is not a voluntary surrender. Brown v. State, 372 P.2d 785 (Alaska 1962); Weltz v. State, 431 P.2d 502 (Alaska 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Prohibited search and seizure. —

See Fresneda v. State, 458 P.2d 134 (Alaska 1969).

Reseizure of evidence. —

There is no search or seizure when evidence, once properly seized, is subsequently seized after identification and arrest of persons believed to be committing the crime. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

There is no second seizure or search when the government reacquires possession of contraband once validly seized where contraband is placed in transit from one person to another, is initially discovered through lawful means, such as a search by a private person, law enforcement officials come into lawful possession of the contraband, authorities in possession forward the parcel to authorities at the intended destination under controlled circumstances so the receiving authorities have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents, and the parcel is under security or under reasonably continuous surveillance by authorities once it arrives at its destination. The reasonably continuous surveillance must continue after the consignee claims the container, as any substantial break in the chain of custody will vitiate the lawfulness of the search. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

The “reassertion of control” doctrine announced in United States v. DeBerry , 487 F.2d 448 (2d Cir. 1973), is subject to the following limitations: (1) contraband must be placed in transit from one person to another; (2) the contraband must be initially discovered through lawful means, such as a search by a private person; (3) law enforcement officials must come into lawful possession of the contraband; (4) authorities in possession must forward the parcel to authorities at the intended destination under controlled circumstances, and thus, the receiving authorities must have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents; (5) the parcel must be under security or under reasonably continuous surveillance by authorities once it arrives at its destination, and the reasonably continuous surveillance must continue after the consignee claims the container; and (6) any substantial break in the chain of custody will vitiate the lawfulness of the search. Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where a Los Angeles airline employee discovered drugs being shipped as air freight and notified police, who seized the boxes that were in plain view and shipped the boxes to Anchorage police after notifying them of the shipment and providing a description of the boxes, and Anchorage police received the boxes and loaded them into defendant’s car, watched as he drove home, and arrested him for possession of drugs with intent to sell, the boxes were validly seized. The subsequent seizure and opening of the boxes by Anchorage authorities did not constituted a second, distinct search subject to the 4th amendment’s warrant requirement. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Competency of investigators. —

The duty police officer who responds to an emergency call and discovers a homicide is not necessarily a competent officer to conduct the type of investigation necessary to protect the interests of society. This is particuarly the case with respect to a small frontier village. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

In a populous area the officer discovering a homicide could remain at the scene until trained investigators arrived to conduct an investigation. In that situation the presence of the officer making the legal entry would continue until summoned investigators arrived. Only minutes or possibly no more than an hour or two would ordinarily elapse between the legal entry and the commencement of the police investigation of the homicide. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

Knock and announce requirement. —

The supreme court found it unnecessary to squarely decide whether the Alaska Constitution contains its own requirement that a police officer announce his authority and purpose prior to entering premises to execute a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Even if the Alaska Constitution does contain its own knock and announce requirement before a police officer can enter premises to execute search warrant, the substantial compliance doctrine should apply, as it does under AS 12.25.100 and 12.35.040 , which operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Forced entry. —

Forced entry into appellant’s residence by police who had a search warrant and had announced their identity and purpose was reasonable and therefore did not violate this section. Davis v. State, 525 P.2d 541 (Alaska 1974).

Suppression of evidence illegally seized is always predicated on this section, and Alaska Const., art. I, § 22 is merely used as a justification for giving this section a liberal interpretation. Wortham v. State, 641 P.2d 223 (Alaska Ct. App. 1982).

Federal exclusionary rule. —

Before statehood it was the established law in Alaska that evidence obtained by searches and seizures in violation of the federal constitution was inadmissible in the courts of the territory. That legal principle is generally referred to as the federal exclusionary rule, and is to be distinguished from the common-law rule that the admissibility of evidence is not affected by the illegality of the means through which a party has been enabled to obtain evidence. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Operates as constitutional mandate upon state courts. —

The U.S. supreme court, in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961), has in effect declared that the federal exclusionary rule, which it previously regarded as a rule of evidence, now operates as a constitutional mandate upon the state courts. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Through the 4th and 14th amendments. —

The interrelationship of the 4th amendment and the due process clause of the 14th amendment, guaranteeing to individuals the right of privacy free from unreasonable state intrusion, renders evidence obtained by unreasonable search and seizure inadmissible in a state criminal prosecution based thereon. Ellison v. State, 383 P.2d 716 (Alaska 1963).

The purpose of the exclusionary rule is two-fold: to deter police from using unconstitutional methods of law enforcement, and to preserve the integrity of the judicial system by not permitting the courts to be a party to the lawless invasion of a citizen’s constitutional rights. Waring v. State, 670 P.2d 357 (Alaska 1983).

Effect of exclusionary rule. —

Assuming the unconstitutionality of a search, the exclusionary rule would prohibit the use of both primary and derivative evidence gained from that search. However, derivative evidence is not sacred and inaccessible. If it is gained from an independent source or has become so attenuated as to dissipate the taint, it may be admissible. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The exclusionary rule extends only to those facts which were actually discovered through a direct process initiated by the unlawful act. Where the disputed evidence stems from an independent and lawful source, even though it could have emerged from the prior unlawful search as well, the evidence is admissible. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Trial court did not err in denying defendant's motion to suppress because the exclusionary rule did not apply to evidence obtained as a result of a mental health counselor's disclosure to authorities of defendant's use of child pornography since the police did not engage the counselor as their agent; the counselor could have violated professional or ethical rules against disclosure of confidential patient information, but any lapse was not an outgrowth of state action. Ravn v. State, — P.3d — (Alaska Ct. App. Feb. 28, 2018) (memorandum decision).

Exclusionary rule is inapplicable to driver’s license revocations as it would hamper legitimate efforts to keep drunk drivers off roads while adding minimal deterrence to unlawful police action; consideration of evidence obtained in violation of Alaska Const. art. I, § 22 did not undermine the procedural fairness of revocation hearings. Nevers v. State, 123 P.3d 958 (Alaska 2005).

Test for suppression of evidence. —

The test for finding whether derivative evidence must be suppressed along with the primary evidence yielded by the illegal search is whether, granting establishment of the primary illegality, the evidence to which instant objection is made had been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Extending the deterrence rationale for the exclusionary rule and arguing that any illegality in the police conduct nullifies the entire investigatory process so that no warrant can issue would exceed the sound limits of the exclusionary rule and deterrence principle by excluding relevant and trustworthy evidence. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Application of rule. —

The exclusionary rule which requires the suppression of illegally obtained evidence is usually not appropriately raised for the first time on appeal. Moreau v. State, 588 P.2d 275 (Alaska 1978).

The exclusionary rule is not the type of doctrine designed to protect against conviction of the innocent; rather, it is a prophylactic device to curb improper police conduct and to protect the integrity of the judicial process. Thus, justice does not generally require that it be applied on appeal where it is not urged at trial or where new grounds for its invocation are presented on appeal. Moreau v. State, 588 P.2d 275 (Alaska 1978); Deal v. State, 626 P.2d 1073 (Alaska 1980).

Burden of persuasion. —

Although the state has the ultimate burden of persuasion on the issue of whether the subsequently obtained evidence was untainted by a prior illegal search, the defendant has the initial burden of demonstrating by specific evidence that the evidence about which he complains grew out of the illegal search. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Use of illegally obtained evidence in parole revocation proceedings is not ordinarily barred by either the Alaska Constitution or its criminal rules. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Illegally seized evidence may be considered in fashioning a sentence where the illegally seized evidence is reliable, where the police conduct involved in obtaining the evidence does not shock the conscience of the court, and where it is clear that the evidence was not obtained for purposes of influencing the sentencing judge. Elson v. State, 633 P.2d 292 (Alaska Ct. App. 1981), aff'd, 659 P.2d 1195 (Alaska 1983).

Admission of evidence held harmless error. —

Although it was not reasonable for police officers to conclude from the surrounding circumstances and the information at hand that the evidence would be destroyed or removed before a search warrant could be obtained, and such evidence was erroneously admitted, the supreme court concluded beyond a reasonable doubt that the error did not contribute to the verdict, and thus was harmless, since the police officer’s evidence merely corroborated the victim’s testimony, which in all material respects was further corroborated by the testimony of disinterested witnesses. Finch v. State, 592 P.2d 1196 (Alaska 1979).

The inevitable discovery doctrine permits the state to introduce evidence that is clearly the result of an illegal search or seizure, upon a showing that the government undoubtedly would have discovered the tainted evidence by lawful means. Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

A confession cannot normally be considered the type of evidence that inevitably will be “discovered” by legal, predictable police procedures so as to fall within the scope of the inevitable discovery doctrine. Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

As to waiver of objection to introduction of evidence on ground of illegal search and seizure, see Johnson v. State, 486 P.2d 379 (Alaska 1971).

Standing to assert violation of rights. —

A defendant has standing to assert the violation of a codefendant’s 4th amendment rights if he or she can show: (1) that a police officer obtained the evidence as a result of gross or shocking misconduct; or (2) that the officer deliberately violated a codefendant’s rights. Waring v. State, 670 P.2d 357 (Alaska 1983).

Warrant tainted by the illegal search. —

Evidence obtained as a result of a search warrant should have been suppressed where the warrant was based almost entirely on evidence obtained by troopers’ midnight entry onto defendant’s property. The troopers were not in a place where they had a legal right to be when they conducted the sniff, the State failed to advance any reason why the troopers could not have gathered their evidence during the day or why the court should have believed that defendant impliedly consented to a late-night visit, and thus, the search warrant they obtained was tainted by the illegal search. Kelley v. State, 347 P.3d 1012 (Alaska Ct. App. 2015).

B.Specific Application

Department store security guard’s search of customer’s purse was a reasonable exercise of the merchant’s common-law right to retrieve stolen merchandise. Jones v. State, 771 P.2d 462 (Alaska Ct. App. 1989).

Temporary detention of package on less than probable cause for purposes of address and telephone number verification and a canine sniff, where the package was not in the immediate possession of its owner, was upheld. Gibson v. State, 708 P.2d 708 (Alaska Ct. App. 1985).

Canine searches. —

Alaska’s stringent protection of its citizens’ privacy interests can be assured if the reasonable suspicion standard is applied to canine searches of areas of public access exterior to commercial buildings. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Police officers had reasonable suspicion to conduct a canine sniff of defendant’s warehouse, where the officers received a tip from a citizen informant that the warehouse owners did not behave as legitimate business people and renovations to the building were consistent with ones which would be needed to grow marijuana in the warehouse. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Exposure of luggage to drug detection dogs. —

Although exposure of luggage to a drug detection dog is a search under the Alaska Constitution, it is a minimally intrusive type of search, akin to an investigative stop and frisk under Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which may be used when police have a reasonable suspicion that drugs may be present in the container and that the drugs are being illegally imported to the state or are being illegally possessed for distribution. Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985).

Exposure of package to drug detection dogs. —

Defendant’s conviction for possessing cocaine with the intent to deliver was affirmed because the trial court properly denied defendant’s motion to suppress evidence obtained when narcotics enforcement officers subjected a package that he shipped through a private delivery service to inspection by a drug detection dog. The officers had received extensive specialized training in drug interdiction and in recognizing drug packages, and applied that training when they decided to have the package checked by the dog. Cooley v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2009) (memorandum decision).

Locked luggage. —

The expectation of privacy inherent in locked luggage is incomparably higher than a paper bag. Clark v. State, 574 P.2d 1261 (Alaska 1978).

As to search of closed containers in a vehicle, see Daygee v. State, 514 P.2d 1159 (Alaska 1973); Clark v. State, 574 P.2d 1261 (Alaska 1978); State v. Daniel, 589 P.2d 408 (Alaska 1979).

Box in possession of defendant. —

The seizure and subsequent search without a valid warrant of a box in the possesion of defendant at the time of his arrest was invalid. Metcalfe v. State, 593 P.2d 638 (Alaska 1979).

Items carried on person. —

That an individual has an actual expectation of privacy in items carried on the person is obviously true, and the expectation of privacy is one which Alaskan society would recognize as reasonable. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

See notes under catchline “Containers on person of arrestee” under analysis line III, below.

Napkin taken from defendant’s mouth. —

Surrender of a napkin from defendant’s mouth at gunpoint did not constitute an unreasonable search and seizure where the officers did not attempt to forcibly open defendant’s mouth. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Public restroom. —

When one is in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one’s behavior is subject to the observation of others who are in the public area. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Police officer, who entered a public restroom and noticed that two men were engaging in some sort of transaction in a lavatory stall, was justified in concluding that he was probably observing an illegal drug transaction and in telling the men to come out of the stall. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Guest in motel. —

A guest in a motel has a constitutional protected right to privacy in his motel room and motel personnel cannot consent to a search of the guest’s room. But after the rental period has terminated, a guest’s reasonable expectations of privacy are greatly diminished with respect to the right of motel management to enter. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Police presence during a private search by the chief of hotel security did not amount to governmental participation. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Apartment building tenant. —

No privacy interest of an apartment building tenant was violated by police contact with his building manager, even if that contact was the result of a trespassory entrance into the apartment building. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Apartment building tenant had no reasonable expectation that the building manager would not divulge information to the police concerning tenants residing in the building. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Search of tenant's computer. —

Even if the search warrant application established probable cause to search defendant's separate apartment, the troopers' search of defendant's laptop violated this section because the troopers offered no explanation of why evidence of the suspect's alleged forgery and falsification of business records would have been on defendant's laptop computer, which was portable and outside the suspect's immediate control, and there was no allegation that defendant was actively participating in the suspect's criminal scheme. Pohland v. State, 436 P.3d 1093 (Alaska Ct. App. 2019).

No expectation of privacy in commercial king crab fishing. —

See Wamser v. State, 600 P.2d 1359 (Alaska 1979).

Fishermen could not harbor an “actual (subjective) expectation of privacy” in conducting their crabbing operation in the waters of the state, at least not one that “society is prepared to recognize as reasonable.” Thus, crab fishermen had no protectable federal or state constitutional interest in the pots, bait, and crabs seized by officers of the Fish and Game Department when conducting a search to check the extent of compliance with a regulation. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

The commercial fishing for king crab does not share the same attributes of privacy as does the nature of the business conducted in a telephone booth, business office, store, or hotel room. King crab fishing involves public exposure. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

Mail service account. —

Where employees of a private mail service provided information about who opened an account with the service, when the account was opened, and what directions the mail service received for forwarding the mail, this information did not constitute information about which the defendant, who opened the account, could have a reasonable expectation of privacy. D'Antorio v. State, 837 P.2d 727 (Alaska Ct. App. 1992).

Utility records are maintained by the utility and do not constitute information in which society is prepared to recognize a reasonable expectation of privacy. Samson v. State, 919 P.2d 171 (Alaska Ct. App. 1996).

Expectation of privacy as to trash. —

A review of several recent garbage can search cases reveals a basic core of factors to be considered in determining whether a reasonable expectation of privacy exists. These factors are: 1. Where the trash is located, 2. whether the dwelling is multiple or single unit, 3. who removed the trash, and 4. where the search of the trash takes place. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Factors readily form a continuum. At one end of the continuum is trash located close to a single-family dwelling, on the same property as the dwelling, and searched by police officers at that location. The supreme court observes, without so deciding, that this would be a strong case for holding the expectation of privacy to be reasonable. At the other end of the continuum is trash located off the premises of a multiple-unit dwelling, and searched by a person authorized to remove it. In such a case the supreme court would be unable to hold that the expectation of privacy was reasonable. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Legality of search of trash receptacle. —

The legality of the search turns not on the nature of the refuse but on whether the receptacle lies within the zone of protection afforded by the 4th amendment. Thus, property which is abandoned but which rests in a receptacle temporarily maintained inside a dwelling could not be searched or seized by the police unless a warrant had issued. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Defendant harbored no actual or objectively reasonable expectation of privacy in an outside multiple-dwelling trash receptacle from which municipal collections were made. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Activities of depositing garbage in a dumpster and withdrawing from the area were clearly exposed to plain view. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

See notes under analysis line III B, “Abandoned Property.”, below.

No jailhouse expectation of privacy. —

State did not violate defendant’s rights when it recorded his telephone conversations from jail to his wife without a warrant. Defendant did not have a reasonable expectation of privacy in his phone calls from jail; signs were posted above the prisoner telephones, warning inmates that their telephone calls could be monitored and recorded. State v. Avery, 211 P.3d 1154 (Alaska Ct. App. 2009).

Exterior of vehicle in police possession. —

There was no reasonable expectation of privacy in the exterior of a vehicle which was lawfully in the possession of the police. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Security checks of business premises. —

Law enforcement personnel may enter commercial premises without a warrant only when, pursuant to a routine after-hours security check undertaken to protect the interests of the property owner, it is discovered that the security of the premises is in jeopardy, and only when there is no reason to believe that the owner would not consent to such an entry. State v. Myers, 601 P.2d 239 (Alaska 1979).

Regarding security checks of business premises, locked premises must be taken as indicating that no warrantless entry is authorized, any search conducted incident to a legitimate entry must be brief and must be limited and necessary to the purpose of ensuring that no intruders are present on the premises, and someone responsible for the premises must be informed, as soon as is practicable, of the protective measures taken. State v. Myers, 601 P.2d 239 (Alaska 1979).

Fire officials. —

Fire officials need no warrant to remain in a building for a resonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional. Schultz v. State, 593 P.2d 640 (Alaska 1979).

The exigency justifying the entry of a house by the fire officials, and seizure of evidence indicating arson does not end when the fire is contained or under control, or even when the last burning ember is thought to be extinguished, since fire officials are charged not only with extinguishing fires but with finding their causes. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Where a fire inspector’s entry into a house took place within 25 to 40 minutes after the firefighters had arrived at the scene, when the fire was under control but not entirely extinguished, and it was the inspector’s specific duty to attempt to discover the cause of the fire, her entry into the building at that time, and her remaining in the building for one to one and one-half hours, were well within a “reasonable time” to investigate the cause of the fire without the necessity of first securing a warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

See notes under catchline “Protection extended in cases of administrative searches,” under this analysis line I A, above.

Search by a private citizen not acting in conjunction with or at the direction of the police does not violate the constitutional prohibitions against unreasonable search and seizure. J. M. A. v. State, 542 P.2d 170 (Alaska 1975); State v. Stump, 547 P.2d 305 (Alaska 1976); Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The zealous citizen does not subject his activities to the requirements of the 4th amendment and this section. Snyder v. State, 585 P.2d 229 (Alaska 1978).

A purpose to enforce the law should not ipso facto convert a private citizen into a state agent for purposes of the 4th amendment. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Expectation of privacy from video surveillance in workplace. —

Based upon the open and public nature of the place where defendant worked, and the fiduciary nature of the work she was doing as manager of a theater box office, she did not have a reasonable expectation of privacy from video surveillance in the box office. Cowles v. State, 961 P.2d 438 (Alaska Ct. App. 1998), aff'd, 23 P.3d 1168 (Alaska 2001).

When vision-enhancing technology deemed a search. —

Commercial availability should not be the determinative factor when analyzing whether a particular form of technology transforms state action into a search; rather, an officer's use of vision-enhancing technology should be deemed a search if the technology allows the officer to make observations that are significantly more detailed than what an unaided human eye would be able to see at the same distance. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Search by governmental officials for private purpose. —

The 4th amendment does not apply to searches engaged in by governmental officials when such officials act for a private purpose or outside the scope of duties related to law enforcement. Such a limitation involves a question of the capacity in which the state agent acts during the course of the search. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The controlling principle does not depend so much upon which department of state government employs the officer, but instead upon the nature of the duties performed and the part the officer may have played in the course of events leading to appellant’s arrest and the seizure which followed. Bell v. State, 519 P.2d 804 (Alaska 1974); J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Foster parents are not agents of the state for purposes of the constitutional proscription against unreasonable searches and seizures. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Where the operator of a foster home is in the extremely difficult position of endeavoring to fulfill the role of parent, and, at the same time, perform the task of supervising the activities of a minor found to be a delinquent, under the circumstances of such a relationship, a search of the foster child’s room can hardly be regarded as the type of unreasonable activity constitutionally prohibited. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The duties of foster parents do not encompass responsibilities of a law enforcement officer similar to those of an airport security officer discussed in Bell v. State , 519 P.2d 804 (1974). Foster parents are not charged with the enforcement of penal statutes or regulations, nor are they entrusted with ensuring the physical security of the public. They are no more responsible for the detection of criminal activity or the apprehension of those participating in such activity than would be any other private citizen. They merely supervise on behalf of the state those children committed to their care. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

School officials. —

School officials, while they are public employees subject to constitutional constraints, are not “law enforcement officers” whose conduct is governed by state and federal constitutional limitations on searches and seizures. D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982).

Application of search and seizure prohibitions to air freight shipments. —

See Bell v. State, 519 P.2d 804 (Alaska 1974).

An airport security officer who investigated a suspicious shipment was an agent of the state against whom the prohibitions of the 4th amendment apply, despite the fact that he was an employee of the Department of Public Works, and not the Department of Public Safety. Bell v. State, 519 P.2d 804 (Alaska 1974).

Search by airlines employee. —

Where a cargo handler for an airline had cause to inspect a package which had been accidently dropped to detect improper declaration of contents, to ensure that the airline facilities were not being used in the commission of a crime, to insulate the airline from criminal liability for transporting contraband and to ascertain possible damage, his search did not violate defendant’s rights. Bell v. State, 519 P.2d 804 (Alaska 1974).

There is no dispute that an airline inspection undertaken at the initiative of airline employees, for independent airline purposes, and without government participation, is a private search and is not subject to the requirements of the 4th amendment. Bell v. State, 519 P.2d 804 (Alaska 1974).

Initial search of a package by an airlines employee in the course of his duties did not violate defendant’s constitutional rights. State v. Stump, 547 P.2d 305 (Alaska 1976).

Searches by airline employees, acting for an independent and legitimate airline purpose and not in conjunction with or at the direction of the police, do not violate constitutional prohibitions against unreasonable search and seizure. Snyder v. State, 585 P.2d 229 (Alaska 1978); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979); Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Prior contact of a general nature between the state police and airline employees does not cause private airline employees to become agents of the police. Snyder v. State, 585 P.2d 229 (Alaska 1978); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

It is generally recognized that airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where upon defendant’s briefcase being passed through airport X-ray machine, airport employee could not discern any of its contents on the screen, she was justified in searching the briefcase and in opening a purse containing narcotics found inside the briefcase to make sure that it contained no weapons. Spezialy v. State, 661 P.2d 1095 (Alaska Ct. App. 1983).

Where, after he discovered cocaine powder in a package supposedly containing T-shirts, an airlines employee called the police and when the investigator arrived, removed a T-shirt from the box and showed the investigator the plastic bag containing the powder, and where the investigator then took the bag and tested the powder, this inspection was permissible and the subsequent seizure of the powder justifiable, because there is no indication the inspection was done at the direction of the police, nor was there an attempt by the officer to open the original package since the investigator was handed a T-shirt from a box opened by the airlines employee, and the powder contained in plastic bags was pointed out to him. No police search had occurred up until this time. There was no “prying into hidden places for that which is concealed” by the officer, and thus the contraband was in plain view. State v. Stump, 547 P.2d 305 (Alaska 1976).

Although the police had advised the airline employees as to the latter’s right to search, and the airline employee in question had previously discovered drugs and cooperated with law enforcement officials, but the police had not requested a specific search of defendant’s package or participated in the initial discovery of the contraband, the employee’s conduct in opening the package, received under circumstances reasonably arousing suspicion, did not constitute governmental activity. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Where there was no evidence that an airline employee’s search was aimed at discovering weapons, explosives or other destructive substances, it was not made pursuant to the Air Transportation Security Act, Pub. Law 93-366, Title II, 88 Stat. 415 (1974), authorizing air carriers to condition transportation on a consent to search for such purpose; and the search was not governmental activity. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Although there was nothing about the packages themselves that aroused suspicion, nor was the physical appearance of the consignor out of the ordinary, where the airline employee thought the consignor might have been under the influence of something due to the consignor’s repetitive speech, exaggerated gesticulation, scribbled handwriting, possibly dilated eyes, and general nervousness, the airline employee had reasonable and articulable suspicions that the articles might be something other than what was declared. Thus, the employee’s intrusion in opening the packages was justified by the presence of a legitimate airline purpose: Verification of the contents of the boxes. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Where the initial opening of the package was performed by an airline employee without instigation from a government official and for a legitimate airline purpose, once the suspicious contents of the package had been observed by that employee, it was permissible to reshow the contents to an Alyeska Pipeline Security employee, even assuming arguendo that the security employee was a governmental official or agent at the time the package was reopened. Such a reshowing did not constitute a search by the Alyeska Pipeline Security employee, where he did not know that the package had been previously opened, he did not suggest that the package be opened until he was advised that it could be legally opened by the airline personnel, and he remained a passive observer of the contents of the package. Stange v. State, 559 P.2d 650 (Alaska 1977).

Where an airline employee’s search, which discovered a baggie containing a white substance, was valid, it follows that a police officer’s seizure of the package, in light of his narcotics experience and the sender’s misrepresentations concerning the contents of the package, was valid under the “plain view” doctrine since the baggie containing white powder was not “an apparently innocuous object.” Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where a government agency threatened airlines with administrative fines if they failed to implement screening profiles and hand-searches of selected passengers’ carry-on luggage, effectively coercing them to do the government’s bidding, the ensuing searches constituted state action. Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Independent airline purposes for airline inspections. —

See Bell v. State, 519 P.2d 804 (Alaska 1974); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Airport screening. —

Searches by means of airport screening come under the administrative search exception of the warrant requirement. State v. Salit, 613 P.2d 245 (Alaska 1980).

Since the purpose of searches under the Air Transportation Security Act of 1974, Pub. L. No. 93-366, Title II, §§ 201-202, 88 Stat. 415, is to prevent weapons from being brought upon planes for hijacking purposes and to discourage such conduct, the search must be as limited as possible to accomplish that purpose. Therefore, where a passenger’s garment bag had been subjected to an X-ray search, the contents were observable by this means, and no evidence of weapons or explosives was discovered, nothing justified a more intensive search than in the case of the bags of the other passengers. State v. Salit, 613 P.2d 245 (Alaska 1980).

While possession of narcotics paraphernalia discovered in handbag may be of evidentiary value, it is not illegal, per se, and cannot constitute probable cause for arrest. State v. Salit, 613 P.2d 245 (Alaska 1980).

Search of wallet. —

Riffling through a person’s wallet for contents which are unobservable from outside the wallet fits the definition of a search. Schraff v. State, 544 P.2d 834 (Alaska 1975); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Where defendant was arrested for armed robbery and after arrival at the police station, booked and taken to an interview room, where 20 minutes to one-half hour later she was asked to empty her pockets and her wallet was searched, such search was valid since evidence of an armed robbery clearly can exist on the person of the arrestee, whether it takes the form of cash (including marked money) or indications of premeditation (for example, floor plan sketches). Middleton v. State, 577 P.2d 1050 (Alaska 1978).

An examination of the tires of a vehicle is not a search. See Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

A trooper’s conduct did not constitute a search where facts showed that defendant himself retrieved the weapon and presented it to the trooper and there was no evidence of duress or coercion on the part of the troopers. McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Warrantless inspection of suitcase. —

Warrantless police inspections of the contents of suitcase did not constitute impermissible searches or seizures where in one instance the opening of the suitcase by the chief of hotel security was at most a repetition of initial private searches and in the other instance the suitcase was already open and the contraband was in plain view. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Transporting incapacitated person. —

An officer transporting a person incapacitated by drink has a valid reason to make a limited search for possible weapons which might be used to injure him. Peter v. State, 531 P.2d 1263 (Alaska 1975).

Where under the Uniform Alcoholism and Intoxication Treatment Act (AS 47.37), defendant should have been taken to a treatment facility or an emergency medical service, and where at that point the police would normally release him from custody and thus would not have direct access to items in the possession of the intoxicated person, any items that were revealed or came into the possession of the police officer solely as a result of a more detailed search performed when defendant was placed in jail were the subject of an illegal search and seizure and should be suppressed. Peter v. State, 531 P.2d 1263 (Alaska 1975).

AS 47.37.170 does not violate section. —

While a statute countenancing an unreasonable search would be in violation of the 4th amendment to the United States Constitution and this section, the provisions of AS 47.37.170 , relating to treatment and services for intoxicated persons and persons incapacitated by alcohol, constitute no such violation. Peter v. State, 531 P.2d 1263 (Alaska 1975).

Breath test. —

A search of a person incident to an arrest is a recognized exception to the search warrant requirement. A breath test constitutes a search. State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990).

Implied consent statute is unconstitutional. —

Having considered the three factors from the Supreme Court’s analysis in Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), the court concluded that AS 28.35.031(g) , relating to implied consent by drivers for chemical or breath tests, permits unreasonable intrusions contrary to the Fourth Amendment of the U.S. Constitution and to Alaska Const., art. I, § 14. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Implied consent statute — exigent crcumstances. —

The implied consent provisions of AS 28.35.031(g) satisfied minimal constitutional requirements for warrantless searches when exigent circumstances existed. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Probationers and parolees are treated similarly for purposes of search and seizure questions. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Scope of search for probation violator in parents’ home. —

Where officers had a warrant for defendants’ son’s arrest, because they knew that the son resided with defendants at their home and because they had probable cause to believe that the son was currently within that residence, the officers acted lawfully when they entered the residence to arrest the son for violating his probation; the officers needed no separate warrant to enter defendants’ personal bedroom to search for their son. Anderson v. State, 145 P.3d 617 (Alaska Ct. App. 2006).

Parole arrest warrants. —

The conditions placed on a parolee make him subject to arrest for a wide variety of causes which do not apply to others. Davenport v. State, 568 P.2d 939 (Alaska 1977).

To impose the same requirements on the arrest of a parolee as are otherwise mandated for an arrest including an affidavit or sworn complaint would have constituted meaningless additional time and effort on the part of parole officers. Nevertheless, except in cases where exigencies required an immediate arrest, the parole officer should have secured a warrant from the parole board or a member of it based on the requirement in former AS 33.15.200. Davenport v. State, 568 P.2d 939 (Alaska 1977).

For a discussion of cases decided in state and federal courts addressing the subject of parole arrest warrants, see Davenport v. State, 568 P.2d 939 (Alaska 1977).

Right to search as condition of release on parole. —

Depending on the nature of the crime involved, a condition of release granting authorities the right to search premises and persons at reasonable times could stand muster under both the Alaska and federal constitutions. Released offenders subject to searches and seizures conducted pursuant to such conditions would be protected from undue harassment by the limitations of due process. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Although the supreme court does not believe that a released offender has voluntarily consented to all conditions of parole and it likewise rejects the custody rationale under which a released offender was regarded as constitutionally entitled to no more rights than he would have enjoyed if incarcerated, it recognizes that conditioning release on some forms of search by correctional authority is both consistent with the goal of rehabilitation and necessary for the proper functioning of the parole system. To this extent, parolees have a diminished expectation of privacy. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Warrantless searches of parolees or probationers and their residences should not be countenanced unless there is a direct relationship of the searches to the nature of the crime for which the parolee was convicted. Roman v. State, 570 P.2d 1235 (Alaska 1977); Sprague v. State, 590 P.2d 410 (Alaska 1979).

The goals of rehabilitation of the individual and protection of the public do not require that a parolee be subject to searches in a manner different from other persons. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Where defendant was convicted of possession of heroin, the right to request specimens for urinalysis and to search him and his quarters at reasonable times and in a reasonable manner to assure that he would not continue to possess illegal drugs was necessary to the proper functioning of the parole system; and where the right to perform such searches was limited to parole officers and peace officers acting under their direction, the parole authorities were not clearly mistaken in authorizing the search and in conducting it. Further, where defendant’s inability to furnish a specimen for urinalysis prevented use of that means of ascertaining whether he was using drugs, in view of his imminent departure, it was reasonable to search his person at that time. Roman v. State, 570 P.2d 1235 (Alaska 1977).

It was improper for the superior court to condition the probation of a defendant convicted for burglary on the requirement that he submit to a warrantless search, upon the request of a probation officer, for the presence of narcotics or dangerous drugs, since defendant was not accused of any drug offenses, nor was it shown that he was addicted to drugs or that his involvement in the burglary was precipitated by a need for money to purchase illegal drugs. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Parolee otherwise has same protections as ordinary person. —

Except in circumstances where reasonably conducted searches and seizures are required by the legitimate demands of correctional authorities and are set forth as conditions of parole by the Parole Board, the Alaska Constitution entitles a released offender to the same protections as an ordinary person. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Parole Board authorizes searches. —

Conditions of parole authorizing searches should be specified by the Parole Board and not left to the discretion of individual parole officers. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Parolee should have the right to be heard before conditions authorizing searches are imposed. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Roman v. State, 570 P.2d 1235 (Alaska 1977), not given limited retroactive effect. —

See Gonzales v. State, 586 P.2d 178 (Alaska 1978).

Search of attache case. —

Warrantless search of defendant’s attache case by his parole officer, acting within the scope of his authority, was not constitutionally infirm. Gonzales v. State, 586 P.2d 178 (Alaska 1978).

Surrender of gun. —

Where, although defendant voluntarily surrendered his gun to the trooper for the purpose of immediate inspection, he did not thereby intend to give up custody of the weapon for other purposes, a seizure occurred when the trooper took the gun; however, once the gun was presented to the troopers for viewing they were entitled to seize it as evidence in plain view. McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Department of Revenue’s summons which was reasonably specific, asked only for material relevant to a legitimate tax inquiry, and was enforceable only by court order did not violate taxpayer’s right against unreasonable searches and seizures. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Importation of whiskey by mail. —

Once the whiskey had been lawfully exposed to the plain view of postal authorities, by a proper warrantless search of a fourth class package, nothing of constitutional significance prevented those authorities from surrendering the whiskey, as contraband, and without a warrant, to law enforcement officers charged with investigating violations of state law. Bergman v. State, 874 P.2d 958 (Alaska Ct. App. 1994).

No probable cause was shown. —

Where defendant controlled a small wooden box and refused every official request to give it up or look into it, and where he claimed he did not have a weapon when, in fact, the officer saw one in his pocket, these facts did not provide any “nexus” between the box and contraband, and the police did not have probable cause to believe that contraband would be found in the box. Dayton v. State, — P.2d — (Alaska Ct. App. Apr. 19, 2000) (memorandum decision).

Applied in

Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983); Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983); McCracken v. State, 685 P.2d 1275 (Alaska Ct. App. 1984); State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Quoted in

Hunnicutt v. State, 527 P.2d 1292 (Alaska 1974); City & Borough of Juneau v. Quinto, 684 P.2d 127 (Alaska 1984); State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Cited in

Sidney v. State, 571 P.2d 261 (Alaska 1977); Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979); Nelson v. State, 628 P.2d 884 (Alaska 1981); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982); Elson v. State, 659 P.2d 1195 (Alaska 1983); Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); Cullom v. State, 673 P.2d 904 (Alaska Ct. App. 1983); Shamberg v. State, 762 P.2d 488 (Alaska Ct. App. 1988); McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000); Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004); Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005); State v. Heisey, 271 P.3d 1082 (Alaska 2012).

II.Issuance of Warrants

A.In General

Neutral and detached magistrate. —

The amount of time spent in reviewing the affidavit for a search warrant is not by itself controlling of the magistrate’s neutral and detached manner. Since the purpose of requiring that warrants be issued by a neutral and detached magistrate is to assure that the inference of probable cause is drawn by a person who is not in a position to be influenced by personal or professional motives, what is required of that person is severance and disengagement from activities of law enforcement. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

There is a presumption that a judicial officer acts in a neutral and detached manner when he issues a warrant, and a magistrate does not lose his neutral and detached character merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warrants by him. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Where an officer had a short period of time in which to secure a warrant, in light of the exigencies of the situation, it was not improper for a magistrate to meet the officer at a parking lot near the airport where the subject matter of the search was to be picked up by the suspect. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Court must have facts. —

The court must have all the pertinent facts before it in order to determine whether there is sufficient, properly obtained evidence providing probable cause for a warrant to issue. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The question of whether an affidavit contains sufficient facts to establish probable cause for the issuance of a search warrant is a question of constitutional stature; it is imperative that a magistrate be presented with adequate supporting facts, rather than mere affirmations of suspicion or belief. Milne v. State, 607 P.2d 360 (Alaska 1980).

Implied mandate of truthfulness. —

The state and federal constitutional requirement that warrants issue only upon a showing of probable cause, in the opinion of the supreme court, contains the implied mandate that the factual representations in the affidavit be truthful. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Courts must investigate truthfulness. —

Since search warrants issue ex parte, the courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, challenges to the search warrant and affidavit may be properly entertained during the suppression hearing. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Duty of candor. —

Police and prosecutors owe a duty of candor to the court, particularly in light of the ex parte nature of proceedings for the issuance of a warrant, and must not withhold information which may taint the source of the probable cause they put forth. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The constitutional protection against warrantless invasions of privacy is endangered by the concealment of relevant facts from the district court issuing the warrant. Warrants issue ex parte and the issuing court must rely upon the trustworthiness of the affidavit before it. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

A false affidavit in support of a search warrant can, in appropriate circumstances, nullify the warrant. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Before the supreme court can hold that concealment of relevant facts will invalidate a warrant, it must find that the information will materially influence the district court judge to issue a warrant he would have otherwise denied. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Misstatement must be material. —

In order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Misstatement in search warrant was not sufficiently material to invalidate warrant. Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Misstatement in search warrant was not plain error. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Observations of third party. An affidavit may rely on the observations of a third party, so long as a substantial basis for crediting the hearsay is presented. State v. Davenport, 510 P.2d 78 (Alaska 1973); Keller v. State, 543 P.2d 1211 (Alaska 1975).

A search warrant may be issued on the basis of reasonably reliable hearsay statements from a police informant. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Use of informant’s tip. The test for crediting an informant’s tip which is used to establish probable cause for a search warrant is that the information be reliable and the informant trustworthy. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Informer’s identity need not be disclosed. —

There is no constitutional basis for requiring the disclosure of an informant’s identity. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Detail required where personal knowledge of informant not alleged. —

Absent an affirmative allegation of personal knowledge of the informant in the affidavit, the facts supplied must be so detailed as to support an inference of personal knowledge. Harrelson v. State, 516 P.2d 390 (Alaska 1973); Keller v. State, 543 P.2d 1211 (Alaska 1975).

An affidavit is not deficient merely because it did not explicitly set forth the means by which the informant obtained his information. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

In order to prevent groundless searches based on wholly unreliable information from being inflicted on citizens of the state, the circumstances that would justify a magistrate in crediting an informant’s statements shall be set out with specificity in the affidavit. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Customarily, this requirement has been met by means of an allegation that the informant had given accurate information in the past. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Generally, the detail must be sufficient so that a magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Under both federal law and Alaska law, where an affidavit relies upon the assertions of confidential informants to establish probable cause, the affiant must set forth facts which enable the magistrate to judge for himself the probable credibility of the informant. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Corroboration of informant’s tip. —

As an alternative to a demonstration that the informant was personally trustworthy, the United States supreme court has indicated that an affidavit which alleged facts tending to corroborate the reliability of the information (as opposed to the informer himself) would be constitutionally sound also. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

A showing of probable credibility of a confidential informant is adequate where the affidavit alleges “that the informant had given accurate information in the past.” Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The credibility of an informant’s tip could be confirmed by independent corroboration of incriminating facts by the police. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Probable cause may rest on reasonably trustworthy information from an informant. However, some of the details of the information given by the informant must be verified before an arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Police are not required to verify an incriminating fact before corroboration can be used to demonstrate the reliability of an informant. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Minimum amount of detail determined on case-by-case basis. —

The minimum amount of specificity or detail necessary to support an inference that the source of the informant’s tip is trustworthy can only be determined on a case-by-case basis. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Independent verification unnecessary. —

Where informer was found to be credible, her information was based on personal knowledge, and her testimony was given under oath, the search warrant need not be declared invalid for lack of factual corroboration. Hodsdon v. State, 698 P.2d 1224 (Alaska Ct. App. 1985); Schmid v. State, 615 P.2d 565 (Alaska 1980).

Citizen informers. —

See Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Probable cause may rest on reasonably trustworthy information from an informant. If the informant is a cooperative citizen rather than informant from criminal milieu, his or her reliability need not be established before the arrest. However, some of the details of the information given by the informant must be verified before the arrest. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Citizen informant established. —

Despite defendant’s confession to other crimes and the grant of immunity for them, defendant remained a citizen informant to evaluate his credibility and probable cause, where defendant had recounted a shooting, admitted that he had been in the car and had personally witnessed the shooting, and before defendant went to the police voluntarily told another person about having witnessed the shooting. Defendant was a citizen informant who went to the police, not to seek personal advantage, but because he thought it was the right thing to do. Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Sufficient corroboration. —

Information from the informant was sufficiently corroborated by the police officer’s own observations to establish probable cause for arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Police’s personal observations. —

Where the sworn testimony of a police officer based upon the police officer’s personal observations and without reliance upon hearsay testimony gave probable cause to believe that contraband would be found on certain premises, the search warrant was properly issued for a search of the premises. State v. Beckley, 527 P.2d 33 (Alaska 1974).

Police officer’s knowledge of a suspect’s reputation was a “practicable consideration of everyday life” upon which a magistrate may properly rely. Kristich v. State, 550 P.2d 796 (Alaska 1976).

Sufficient probable cause established. —

Where the hearsay relied upon by an affiant in his affidavit for a search warrant was based on the information of an identified informant, and that information was acquired by the informant’s own observation, and furthermore, since the independent discovery at the time of defendant’s arrest of a handgun possessing a serial number matching the serial number of a stolen handgun tended to corroborate the informant’s story, there was a substantial basis for crediting the hearsay. Therefore the affidavit established sufficient probable cause for the issuance of a search warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

An affidavit supporting the issuance of a search warrant was sufficient where there was a substantial basis for crediting the observations of the informant, which were related in the affidavit. Jackson v. State, 509 P.2d 278 (Alaska 1973).

Issuance of warrant upheld. —

Judge was correct in sustaining the issuance of the electronic warrant by the magistrate, who not only heard the informant testify in person but had the opportunity to observe her demeanor. Hodsdon v. State, 698 P.2d 1224 (Alaska Ct. App. 1985).

Trial court properly denied defendant's motion to quash search warrants because probable cause to search a residence was linked to the IP address, not to a particular person, and the search warrant affidavit explicitly stated that the seizure of evidence from the residence would assist in the identification of the individuals involved; the affidavit thoroughly explained a detective's investigation. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Warrant issued in bush community. —

The showing necessary for issuance of a proper search warrant should not be relaxed where the warrant is issued in a bush community. Milne v. State, 607 P.2d 360 (Alaska 1980).

Anticipatory search warrants. —

An anticipatory search warrant is one which is based upon an affidavit showing probable cause that at some future time — but not presently — certain evidence will be at the location set forth in the warrant. Such warrants are constitutionally permissible and not invalid for lack of present probable cause, and they are not precluded by the statutory authority of AS 12.35.020 (3), which requires only reasonable belief of possession of the item for issuance of the warrant, without specifying that possession must be contemporaneous with the issuance, as distinct from the execution, of the warrant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

For an anticipatory warrant to be valid, there must be probable cause to believe that the items to be seized will be at the place to be searched at the time the warrant is executed, or in other words, that the warrant will not be prematurely executed. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In anticipatory warrant situations, the magistrate should insert a direction in the search warrant making execution contingent on the happening of an event which evidences probable cause that the item to be seized is in the place to be searched, rather than directing that the warrant be executed immediately or forthwith. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Just as anticipatory warrants based on probable cause are constitutionally permissible as long as the evidence creates a substantial probability that the seizable property will be on the premises when searched, such a warrant may be issued where positivity as required by Cr. R. 37(a)(3)(iv) is the standard. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Search warrant for defendant’s residence complied with traditional requirements for anticipatory warrants, as well as with the specific requirements adopted by the Alaska supreme court. State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983).

Distinction between valid anticipatory warrant and premature warrant. —

See State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983).

Nighttime searches. —

A nighttime search is a more extreme intrusion than one conducted in the daytime and under Cr. R. 37(a)(3)(iv), providing that warrants be served between 7:00 a.m. and 10:00 p.m. unless the affiant is positive the property is at the place to be searched; the householder is entitled to the assurance that the judge issuing the warrant has decided that the facts presented in the affidavit justify a nighttime search. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In approaching questions of whether a warrant should be issued for a search after 10:00 p.m., the decision of the judicial officer who has issued the warrant is to be given great deference and the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The language in Cr. R. 37(a)(3)(iv) that a search warrant shall not be served after 10:00 p.m. unless “an affiant is positive that the property is on the person or in the place to be searched” must be construed to equate “positive” with being reasonably certain. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The requirement of positivity expressed in Cr. R. 37(a)(3)(iv) is met where the affidavit is explicit and detailed, the ultimate source of the information was said to be one of the persons to whom the warrant was directed and the informant who conveyed it was said to be reliable, and further, the circumstances concerning the shipment of the package which was the subject of the warrant were detailed and suspicious, and corroborated the information conveyed by the informant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

An explicit statement of positivity is not required by Cr. R. 37(a)(3)(iv), which requires that an affiant be positive that the items sought will be in the place specified when a warrant is to be served after 10:00 p.m. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Constitutional requirement of oath held met. —

See Milne v. State, 607 P.2d 360 (Alaska 1980).

Affidavit insufficient. —

Affidavit in support of search warrant did not provide sufficient information to enable a magistrate to independently determine probable cause under either current or former federal law where there was nothing in the affidavit establishing the informant’s credibility or giving the magistrate an independent basis for evaluating the informant’s truthfulness, and there was nothing in the affidavit indicating that an independent investigation was conducted to corroborate the accuracy of the informant’s contention that defendant was a cocaine dealer. Jones v. State, 681 P.2d 364 (Alaska Ct. App. 1984), aff'd, 706 P.2d 317 (Alaska 1985).

It is imperative under the Alaska Constitution that a magistrate be presented with adequate supporting facts so that he can independently test a confidential informant’s basis of knowledge and veracity; where an affidavit did not properly establish the informant’s veracity, the warrant was improperly issued and the fruits of the search had to be suppressed. State v. Jones, 706 P.2d 317 (Alaska 1985).

B.Probable Cause

Search for subject of arrest warrant. —

The 4th amendment of the United States Constitution and this provision require probable cause to justify entering a residence to search for the subject of the arrest warrant. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

Probable cause alone does not justify a warrantless search and seizure of evidence, since absent exigent circumstances a search warrant must first be obtained from an impartial judicial officer. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Warrantless search of package in plain view. —

Under the Fourth Amendment to the United States Constitution police may not open a package without a warrant under the plain view theory based merely on probable cause. The police are required to have more than probable cause to inspect the contents of the package; the officer can search the package only when the information which the officer has rises to a state of certitude, rather than mere prediction. To the extent that Reeves v. State , 599 P.2d 727 (1979) authorizes the police to search a closed container without a warrant based on probable cause it is not consistent with federal law. Newhall v. State, 843 P.2d 1254 (Alaska Ct. App. 1992).

“Probable cause” is a concept which is not capable of precise definition, since it must cover a wide range of factual settings. Keller v. State, 543 P.2d 1211 (Alaska 1975).

It is not certainty but rather probable cause which is required to justify a plain view seizure. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Probability, not proof, is the standard for probable cause. Kristich v. State, 550 P.2d 796 (Alaska 1976).

When probable cause exists. —

Probable cause exists if the facts and circumstances known to the officer would warrant a prudent man in believing that an offense had been or was being committed. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Probable cause is made out when reliable information is set forth in sufficient detail to warrant a reasonably prudent man in believing that a criminal offense has been or was being committed. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

For probable cause to exist, the facts and circumstances within the officers’ knowledge must be sufficient in themselves to warrant a man of reasonable caution in believing that a crime has been or is being committed. Chilton v. State, 611 P.2d 53 (Alaska 1980).

More than good faith on the part of the officer is required for probable cause. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Probable cause exists where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Keller v. State, 543 P.2d 1211 (Alaska 1975); Cruse v. State, 584 P.2d 1141 (Alaska 1978); Pistro v. State, 590 P.2d 884 (Alaska 1979).

A police officer is usually authorized to arrest without a warrant if he has probable cause to believe a felony has been committed and probable cause to believe that the person to be arrested is the one who committed it. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

The standard for determining whether probable cause existed is whether, before making an arrest, a police officer is aware of facts and circumstances which are sufficient in themselves to warrant a prudent person in believing that an offense has been or is being committed. Skuse v. State, 714 P.2d 368 (Alaska Ct. App. 1986).

Probable cause cannot be established solely on the basis of a good faith belief on the part of the officer that there is probable cause to arrest. In order to establish probable cause, there must exist facts and circumstances known to the officer which would warrant a prudent person in believing that an offense has been or is being committed. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

A police officer with a reasonable suspicion that imminent public danger exists or that serious harm that has recently occurred was caused by a particular person may stop that person. Ebona v. State, 577 P.2d 698 (Alaska 1978).

The presence of the pistol and articles of clothing that looked like new merchandise, together with the circumstances of the car having been at the burglarized building shortly after midnight and having been driven away without headlights on, would be enough to warrant a prudent man in believing that a felony had been committed. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While defendant’s presence with other suspect at the airport, standing alone, would not have justified defendant’s arrest no matter how strong the evidence against the other suspect, it does not follow that the evidence against the other suspect was irrelevant to a finding of probable cause to arrest defendant. Knowledge that two men had participated in the killing of the victim, that defendant generally matched the description of one of those men and that the other suspect was probably the other, and that defendant and the other suspect were in each other’s company at the Fairbanks airport approximately eight hours after the killing, planning to leave the state, established probable cause to arrest defendant as a matter of law. State v. Burdine, 698 P.2d 1216 (Alaska Ct. App. 1985).

There was a sufficient nexus between defendant’s residence and the drug transactions in question to justify the magistrate in issuing a warrant authorizing a search of that residence. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Where the sole basis for the officers’ departure from the public way was that they heard voices apparently coming from the rear of certain apartments, an area where they had previously accosted individuals smoking marijuana, and there was nothing in the record to suggest that the officers had reason to believe, either from the voices or otherwise, that such illegal activity was occurring on that particular occasion, this information alone did not rise to the level of probable cause. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Facts and circumstances established probable cause to make the arrests. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Although the various factors, if taken individually, were as readily consistent with innocence as guilt, the factors did not occur individually or in isolation from each other and the aggregate weight was fully sufficient to meet the established standard of probable cause. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Court might properly issue a search warrant if the state establishes probable cause to believe that the marijuana is possessed for commercial purposes, or that the amount of marijuana is in excess of the permitted quantity. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Trial court properly denied defendant's suppression motion based on the breadth of a search warrant because his rights under the Fourth Amendment and Alaska Constitution were preserved; there was probable cause to search computers and digital storage devices at a residence because aside from images and videos of child pornography, the only other evidence the police seized from defendant's devices were items the warrants separately authorized the police to search for and seize. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019) (memorandum decision).

The state bears the burden of proving probable cause by a preponderance of the evidence. Reeves v. State, 599 P.2d 727 (Alaska 1979) (memorandum decision).

When probable cause does not exist. —

Evidence that a person possesses an unspecified quantity of marijuana in their home does not, standing alone, establish probable cause to believe that the person is breaking the law; the search and seizure provision of Alaska Const. art. I, § 14 prohibits the issuance of a search warrant. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Search of defendant's laptop computer violated the Fourth Amendment, and therefore the evidence against her obtained as a result of that search should have been suppressed, because the search warrant did not show that the officers had probable cause to believe that documents pertaining to the business and finances of defendant's landlord would be found on defendant's laptop, which was located in defendant's apartment. The search warrant also failed to limit or restrict the officers' search of defendant's laptop so as to reasonably ensure that they confined their search to those files and folders that were likely to contain evidence concerning the landlord. Pohland v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2018), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2019), superseded, modified, 436 P.3d 1093 (Alaska Ct. App. 2019).

Probable cause not established in warrant application. —

Defendant was entitled to suppress evidence of marijuana plants seized from his home pursuant to a search warrant, because the state’s warrant application failed to establish probable cause to believe that defendant’s possession of marijuana was illegal. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Evidence of informant’s veracity is factor for determining probable cause. —

Evidence presented against the defendants was obtained by an illegal search and seizure which violated their rights under the fourth amendment of the United States Constitution and this section where the informant was from the criminal milieu and there were insufficient indicators of his veracity to support a finding of probable cause for issuance of a warrant. Where no information is presented to a magistrate from which he can make a detached and independent determination of probable cause, a warrant cannot be deemed valid. Clark v. State, 704 P.2d 799 (Alaska Ct. App. 1985).

Information presented to a district court failed to establish probable cause for the issuance of a warrant authorizing the search of appellant’s resident where the main incriminating information was supplied by two informants of unproven credibility. Wilson v. State, 82 P.3d 783 (Alaska Ct. App. 2003).

Police stop based on REDDI call upheld. —

Driver’s license was properly revoked where the officer had reasonable suspicion to stop a driver based upon a Report Every Drunk Driver Immediately report; although the truck described did not match the driver’s truck exactly, the trooper was reasonable in believing that the truck was the one identified by the REDDI caller. Saltz v. Dep't of Admin., Div. of Motor Vehicles, 126 P.3d 133 (Alaska 2005).

Probable cause to search particular place. —

In the absence of any eye witnesses who saw the items sought in the place to be searched, a nexus can be established based on other factors, including (1) the type of crime involved; (2) the nature of the items sought; (3) the extent of the suspect’s opportunity to conceal the items; and, (4) normal inferences as to where a criminal would likely hide the items sought. State v. Conway, 711 P.2d 555 (Alaska Ct. App. 1985).

Probable cause to stop vehicle. —

Traffic stop of a driver of an ATV which was observed by an officer to have crossed the road without stopping was proper. Accordingly, there was no basis to suppress evidence of driver intoxication found during the stop which gave rise to a charge of, and conviction for, DUI. Conway v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Independent judicial scrutiny protects against searches not justified by a prior determination of probable cause. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Decision of issuing judge given deference. —

As to whether probable cause existed for the issuance of the search warrant, the decision of the issuing judge is to be given great deference, and the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Ellsworth v. State, 582 P.2d 636 (Alaska 1978).

In determining whether supportive evidence of a crime exists sufficient to justify the issuance of search warrants, the question to be asked is whether the issuing judge was provided sufficient evidence to make an independent finding of probable cause for the issuance of the warrants. It has been suggested that in making this determination on appeal “great deference” be given the findings of the issuing judge, that he not be “confined by niggardly limitations,” and that “probability” rather than proof be the standard for probable cause. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Probable cause to search based on person’s voluntary presence at site. —

Where the magistrate found probable cause to believe that the residence named in the application for a warrant was being used as a ‘crack house’, the probable cause for the search of two defendants who arrived at the house during the execution of the warrant depended on their voluntary presence at the site of an ongoing criminal enterprise. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

Staleness of supporting information. —

Defendant's claim that the information used to support a search warrant was too stale was rejected given the serial nature of the sexual assault charges. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Interior of containers. —

Probable cause gained after the examination of the interior of a container cannot be used in retrospect to justify that seizure and examination. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Evidence of additional crimes. —

The literal language of the United States and Alaska Constitutions requires only that the warrant establish probable cause to search and describe the place to be searched and the thing to be seized; therefore, where the warrant established probable cause to search defendant’s residence and vehicle for the assault rifle, ammunition, and other evidence of his probation violation, the fact that the magistrate and the police may have believed that these items were also evidence of defendant’s game violation under AS 16.30.010 was not controlling. Lewis v. State, 9 P.3d 1028 (Alaska Ct. App. 2000).

C.Particularity of Description

“Particular description” requirement. —

The “particular description” requirement protects against the evil of the general warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The requirement that warrants particularly describe the things to be seized was designed to prevent general exploratory searches of a person’s belongings. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The object of the clause of the 4th amendment requiring particularity in regard to the article to be seized under a search warrant is to prevent overbroad generalized searches and seizures. Bell v. State, 482 P.2d 854 (Alaska 1971).

The requirement that warrants particularly describe the items which are to be seized renders general searches under them impossible and prevents the seizure, with several specific exceptions, of one thing under a warrant describing another. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Characterization of property as having been stolen at given time or from given place will not normally suffice to satisfy the requirement of particularity, since such characterization does not enhance an officer’s ability to distinguish between property unlawfully held that is subject to seizure and property of the same general class that is lawfully held and not subject to seizure. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Law enforcement officers and judges should exercise great care in drafting and ratifying a search warrant's description of the things to be searched, particularly searches of digital computing and storage devices, where the likelihood of the seizure of innocent articles by mistake is the most substantial. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Requirement not rigidly construed. —

The requirement of particularity must not be rigidly construed to require unreasonable or unnecessary detail in the description of property to be seized. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Where the nature of the property or the facts involved in a specific case preclude detailed description, unrealistic standards cannot properly be applied; the amount of particularity that is required must be determined with practicality and common sense. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Warrants authorizing the police to search any and all persons present at the time of the serving of the warrant are not per se unconstitutional; such a warrant is supportable if the warrant application provides probable cause to believe that all persons present upon execution of the warrant would have drugs or drug paraphernalia on their persons. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

An arctic entry-way (an enclosed vestibule or small porch attached to the residence with its own door) was part of the premises of the dwelling for purposes of searching persons ‘present on the premises’ at the time of the execution of a search warrant. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

General search not countenanced. —

The supreme court will not countenance the use of an otherwise valid warrant for the purpose of conducting a generalized search for incriminating evidence, nor will it look with favor upon any search undertaken with the undeclared intention of seizing property which has not been described in the warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973); Klenke v. State, 581 P.2d 1119 (Alaska 1978).

Generic reference to jewelry. —

Warrant authorizing seizure of “jewelry stolen from 100 E. Fireweed Lane # B on February 6, 1980” was unduly broad and failed to comport with the constitutional requirement of particularity. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Generic reference to jewelry in the warrant did not constitute a description that was reasonably specific where an itemized list detailing the property stolen in the burglary had been prepared and was available when the warrant was applied for and issued, and there were no circumstances excusing the need for a particular description. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Incorporation of extrinsic documents by reference. —

Extrinsic documents may not be incorporated informally into the body of a warrant by implication. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Although the text of a supporting affidavit or an itemized inventory of property may properly be incorporated by reference in a warrant, incorporation of an extrinsic document must be formally reflected in the warrant; the warrant must, on its face, refer to the extrinsic document that it purports to incorporate, and the intent to incorporate the document must be stated. In addition, a copy of the document incorporated normally must be attached to the warrant, or, at the very least, the warrant must direct that the extrinsic document accompany it at the time of execution. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Sufficient description. —

The requirement that places to be searched be particularly described is ordinarily said to be met if the description is such that the officer with the search warrant can, with reasonable effort, ascertain and identify the place intended. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Technical accuracy in describing the place to be searched is not required, and if there is no reasonable probability that the wrong premises will be searched, the description is sufficient. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Warrant which anticipated a search of whatever place the package in question was taken to and limited the search to a search for that package was not a general warrant and was not invalid. State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983).

Where warrant authorized a search of whatever person picked up the package in question or the premises of whatever place the package was taken to, the police followed the package to a residence but could not tell whether the package entered the residence or remained in the car, and subsequently the police legitimately stopped the car and the package legitimately came into police hands, under these circumstances the police could open the package. State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983).

Authorization to search for knives was not unconstitutionally broad where the victims described two different knives to the investigators, and even if the warrant was overly broad, most of the items seized from the house were not admitted and were of marginal relevance. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Warrant for participant monitoring. —

There is no requirement that warrants issued for participant monitoring of conversations contain particularized descriptions of location in which monitoring will occur. Jones v. State, 646 P.2d 243 (Alaska Ct. App. 1982).

Defendant was not entitled to suppress a recorded phone conversation between defendant and an alleged sexual assault victim when the police obtained a warrant to record a phone conversation between the victim and defendant, but the warrant inadvertently stated that the conversation would take place between the victim and a real and different person than defendant because there was no reasonable probability the wrong conversation was to be recorded. Cleveland v. State, 469 P.3d 1215 (Alaska Ct. App. 2020).

A general warrant may not be rehabilitated by reference to subsequent police conduct. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Caution and self-restraint on the part of officers executing a search warrant that is unreasonably vague in its description of property to be seized cannot rehabilitate the warrant’s failure to describe property with the necessary amount of particularity. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

The burden of proof on questions pertaining to the sufficiency of a warrant description is on the challenger. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Federal courts have carved out numerous exceptions to the general rule requiring particularity. Bell v. State, 482 P.2d 854 (Alaska 1971).

Evidence not described in warrant. —

An officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant. Bell v. State, 482 P.2d 854 (Alaska 1971); State v. Davenport, 510 P.2d 78 (Alaska 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

There is no logical or constitutional reason, given a lawful entry pursuant to a search warrant by an officer who is conducting a good faith search, why the officer conducting the search should be prohibited from seizing evidence not described in the search warrant where the searching officer has a reasonable basis for drawing a connection between the observed evidentiary objects and the crime which formed the basis of the search warrant. Bell v. State, 482 P.2d 854 (Alaska 1971).

The supreme court has upheld the seizure of an item that had not been described in the search warrant, but which the executing officer had probable cause to believe was related to another crime being conducted in his presence. Thus, the items seized need not necessarily be connected to the crime which served as a basis for the search warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

But search must be conducted in good faith. —

Essential to the validity of the seizure of items which were not described in the search warrant is that the search which leads to the discovery of the unlisted material be conducted in good faith. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The supreme court cannot agree that simply because the police had reason to believe that they might find certain items not described in the search warrant in the course of their search, the search was therefore tainted with bad faith where the underlying basis for the intrusion into defendant’s home was legitimate, and the search was conducted in a lawful manner. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Officers must have probable cause to believe that the article not named in the warrant, but found during the search, will aid in a particular conviction for an offense. Probable cause under these circumstances exists only when the information the officers possess immediately following discovery is sufficient to warrant in a reasonable man of reasonable caution the belief that an offense has been or is being committed. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Probable cause to believe property stolen. —

The requirement that the incriminating nature of property be immediately apparent, so as to allow its seizure under the plain view exception to the warrant requirement, means only that the officer must have probable cause to believe the property is stolen, so as to be subject to seizure. Where the circumstances gave rise to a reasonable inference that the officers had stumbled upon stolen goods, the officers had probable cause to believe that the property was stolen. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Nexus between items to be seized and place to be searched. —

Searches have been upheld even though the nexus between the items to be seized and the place to be searched was based not on direct observation, as in the usual search and seizure case, but on other factors, including the type of crime, the nature of the items enumerated in the search warrant, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide the property sought. Metler v. State, 581 P.2d 669 (Alaska 1978).

It is not enough that the evidence seized was in plain view. There must, of course, be a nexus, automatically provided in the case of fruits, instrumentalities or contraband, between the item to be seized and criminal behavior. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Defendant's rights under the Fourth Amendment and Alaska Constitution were preserved because although the search warrants did not prescribe an explicit search protocol, the detectives employed a search tool that was designed specifically to identify child pornography; the search warrant was not specific to defendant but was based on probable cause to believe that someone was downloading child pornography at the residence associated with the IP address. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Trial court properly denied defendant's suppression motion based on the breadth of a search warrant because there was no indication detectives seized items other than defendant's computers and digital storage devices; even if the detectives lacked probable cause to seize items like calendars, ledgers, and date books, that would not invalidate the entire warrant but rather, it would result solely in suppression of those items. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Evidence which is in open view is not the product of a search, and the seizure of such evidence after a lawful entry violates no constitutional right of privacy. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Avery v. State, 514 P.2d 637 (Alaska 1973).

An officer may seize evidence which is legitimately in his plain sight. It is not necessary that the contraband be positively identified before it is seized. Daygee v. State, 514 P.2d 1159 (Alaska 1973); Bell v. State, 519 P.2d 804 (Alaska 1974).

It is no search to observe that which is in the plain view of an officer who is rightfully in a position to have that view. That an officer’s view is aided by a flashlight is irrelevant. The flashlight beam merely illuminated that which would have been visible in the light of day. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Clear and convincing evidence of the nature and presence of contraband within a package is sufficient to sustain a “plain view” seizure. Bell v. State, 519 P.2d 804 (Alaska 1974).

Under the “plain view” doctrine, certain evidence may be seized without the procuring of a warrant. Police officers need not turn their backs on evidence, instrumentalities, or fruits of a crime which are inadvertently discovered. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Opening clear glass vial containing white powder (cocaine) and testing the substance contained therein was justified under the “plain view” doctrine. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Plain view of evidence of a crime merely furnishes probable cause to believe that a crime has been committed. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Doctrine stated. —

One of the recognized exceptions to the warrant requirement is the plain view doctrine, which allows the warrantless seizure of evidence observed in plain view by a police officer from a place where he or she has a legal right to be. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Application of plain view doctrine. —

In its purest application the plain view doctrine does not deal with a search in a constitutional sense but simply sanctions the admission of evidence consisting solely of testimony as to the observations of an officer legally in the position from which the observations were made. However, the more difficult cases deal with the permissibility of official action in seizing physical evidence observed in “plain view.” Reeves v. State, 599 P.2d 727 (Alaska 1979).

Requirements for valid “plain view” seizure. —

Three basic requirements for a valid “plain view” seizure of evidence are: (1) The initial intrusion which afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been immediately apparent. Reeves v. State, 599 P.2d 727 (Alaska 1979).

The rationale of the plain view exception to the warrant requirement is that a plain view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The plain view doctrine serves certain defensible purposes. State v. Davenport, 510 P.2d 78 (Alaska 1973).

But nexus must exist. —

It is not enough that the objects seized in the course of a search simply be in “plain view.” There must be some nexus — automatically provided in the case of fruits, instrumentalities and contraband — between the item seized and criminal behavior. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When “plain view” exception applies. —

The “plain view” exception applies where an officer lawfully executing a search warrant, or otherwise engaged in a lawful intrusion, inadvertently comes across evidence whose incriminating nature is immediately apparent. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The “plain view” doctrine is a court-created exception to the warrant requirement. Its basis is in logic. Anderson v. State, 555 P.2d 251 (Alaska 1976).

The words “plain view” are construed in their most literal sense. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Prerequisites for valid plain view seizure. —

State v. Spietz, 531 P.2d 521 (Alaska 1975).

The extension of the original justification for an intrusion is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Anderson v. State, 555 P.2d 251 (Alaska 1976).

The requirement that the incriminating nature of property be “immediately apparent,” so as to allow its seizure under the “plain view” exception to the warrant requirement means only that the officer must have probable cause to believe the property is stolen, so as to be subject to seizure. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The supreme court rejected the argument that the necessity of assembling the property and tracing serial numbers, as was done to determine whether particular items of property had, in fact, been reported stolen, belied the assertion that the incriminating nature of the property was “immediately apparent,” so as to be within “plain view” and subject to seizure. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

Passage of time between initial observations and entry has not been considered a significant factor. Davenport v. State, 568 P.2d 939 (Alaska 1977).

The incriminating nature of the item to be seized must be immediately apparent. Deal v. State, 626 P.2d 1073 (Alaska 1980).

What state must prove. —

When asserting the plain view exception, the state must prove not only that the evidence seized was in fact in plain view but also that the initial intrusion which afforded the view was lawful, that the discovery of the evidence was inadvertent, and that the incriminating nature of the evidence was immediately apparent. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Inadvertence requirement. —

While inadvertence is a precondition to a valid seizure of evidence under the plain view exception to the requirement that no search or seizure can be made without a warrant, the kind of plain view to which the inadvertence requirement applies only takes place after there has been an initial search or intrusion. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

The inadvertence requirement of the plain view doctrine has never been thought to apply where the observation precedes the intrusion. It does not prevent police officers who are lawfully positioned in a public area from intentionally looking for suspects or incriminating evidence freely visible within the confines of a constitutionally protected area. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Where a motel manager, after checkout time, tried to contact defendant by phoning his room and by knocking at his door; there was no response; and the manager then opened the door to his room in order to determine whether he had vacated, her authority to do so, at the time she would normally have done so, in accordance with her customary procedure, was not altered by the presence of the police, and, assuming the police were in a location which did not violate defendant’s rights before the door was opened, the manager’s opening of the door for a legitimate private purpose did not constitute an illegal search merely because the police were present. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Slides stored on shelf. —

Seizure of defendant’s slides stored on a shelf in his home, could not be sustained as within the “plain view” doctrine. The incriminating nature of the slides was not immediately apparent to the officers executing the search warrant, which authorized a search of defendant’s home for marijuana and related paraphernalia. Their action, in lifting the slides to the light to examine their contents, constituted a search of constitutional dimensions. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Officers entered home on visit. —

Where the initial entry into the mobile home of a probationer was justifiable as a visit, under the law prior to the decision in Roman v. State , 570 P.2d 1235 (Alaska 1977), once the officers were inside, their discovery of cocaine in plain view furnished the requisite probable cause to seize the contraband and to search other areas of the trailer, thus leading to the discovery and seizure of license plates from a stolen car, and such evidence consequently discovered was properly admitted. Soroka v. State, 598 P.2d 69 (Alaska 1979).

Entry into residence not justified. —

Plain view alone will not justify an entry into a private residence because plain view is not in itself an exception to the warrant requirement. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Plain view alone did not justify warrantless entry through doorway into defendant’s house. —

State v. Spietz, 531 P.2d 521 (Alaska 1975).

Observation from driveway. —

Where the driveway involved was a normal means of ingress and egress impliedly open to public use by one desiring to speak to occupants of the garage, or to park off the street while visiting occupants of the house, there was no invasion of rights to privacy when the police officer moved up the driveway, and the officer could constitutionally observe what was in plain view in the garage. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Search of visitor’s purse. —

Where in an investigation for armed robbery the police searched an apartment pursuant to a warrant and in the course of such search, opened a visitor’s purse, the police were justified in their action since they did not know whether the purse belonged to a permanent resident of the apartment or a visitor, no one spoke out claiming ownership and that it should be exempted from the warrant, and the police had no duty to solicit such a claim. Carman v. State, 602 P.2d 1255 (Alaska 1979); Waters v. State, 924 P.2d 437 (Alaska Ct. App. 1996).

Items in car’s interior. —

Items in plain view within a car’s interior can be seized without a warrant if the initial stopping of the vehicle was justified. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

III.Exceptions

A.In General

Search without warrant and apart from arrest. —

Police officers are occasionally faced with sudden and unexpected situations in which they may reasonably conduct a search without a search warrant and apart from a contemporaneous arrest, as in the case of a moving vehicle. Ellison v. State, 383 P.2d 716 (Alaska 1963).

To invoke the emergency aid doctrine, it is enough that the police have good reason to believe there might be, as opposed to knowledge that there is, someone injured in the premises. State v. Gibson, 267 P.3d 645 (Alaska 2012).

Need for official action must be compelling. —

The narrowly-defined classes of cases which justify invasion of privacy without a warrant are those instances where there is a “compelling need for official action and no time to secure a warrant.” Schultz v. State, 593 P.2d 640 (Alaska 1979).

In a case where a university police officer was erroneously informed by dispatch when sunset had occurred, when the officer attempted to stop defendant for operating his vehicle in violation of 13 AAC 04.010, which requires drivers to have their headlights illuminated 30 minutes after sunset, if the officer believed that the sun had set more than 30 minutes before he attempted to stop defendant, that belief was unreasonable; therefore, the officer’s actions in directing defendant to stop constituted an illegal seizure, and the exclusionary rule barred evidence of defendant’s violations. State v. Campbell, 198 P.3d 1170 (Alaska Ct. App. 2008).

Exceptions to warrant requirement. —

The following categories of exceptions to the warrant requirement can be identified: (1) A search of abandoned property; (2) a search in hot pursuit of a fleeing felon; (3) a search, with probable cause, to avoid destruction of a known seizable item; (4) a search of a movable vehicle; (5) an “inventory” search; (6) a search pursuant to voluntary consent; (7) a search in the rendition of “emergency aid”; (8) a “stop and frisk” search; (9) a search incident to an arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Under this constitutional guarantee, a search warrant must be issued before a person may be searched. There are exceptions to the rule, but they are limited to cases where the exigencies of a situation make it imperative that one’s right to privacy be invaded without first obtaining a search warrant. The exception most often made is where a warrantless search is made incident to a lawful arrest. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Warrantless search of premises where warrant was being obtained independently. —

Motion to suppress marijuana plants seized from defendant’s home was properly denied. Even if officers’ initial entry into the residence and their initial search of the residence were unlawful, the entry and search occurred while an investigator was in the process of applying for a warrant to search the residence; the authority granted by the warrant was an “independent source.” Starkey v. State, 272 P.3d 347 (Alaska Ct. App. 2012).

Scope of search conducted pursuant to exception. —

Inherent in the concept of “narrowly defined exceptions” to the warrant requirement is the requirement that a search conducted pursuant to such an exception must be no broader or more intrusive than necessary to fairly effect the governmental purpose which serves as its justification. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Each exception to the warrant requirement must be defined in terms of the reasonable and justifiable governmental purpose which it furthers. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Burden of proving conduct falls within exception. —

The state must establish by a preponderance of the evidence that search and seizure conduct falls within an exception to the warrant requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975).

The burden of proof is on the state to prove by a preponderance of the evidence that the exigencies of the situation make conduct of the search without a warrant imperative. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

The burden is upon police to demonstrate the compelling reasons which justified the search. Ellison v. State, 383 P.2d 716 (Alaska 1963).

When the state asserts any exception to the warrant requirement, the state has the burden of proof. Frink v. State, 597 P.2d 154 (Alaska 1979).

Once the constitutionality of the observation has been challenged through a motion to suppress, the burden is on the state to prove by a preponderance of the evidence that the officer was in a place where he had a right to be or was acting pursuant to an exception to the warrant requirement. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Validation of warrantless intrusion. —

Circumstances relevant to the determination of whether a warrantless intrusion can be validated under the search warrant requirement to prevent the imminent destruction of evidence include: The degree of urgency involved; the amount of time necessary to secure a warrant; the possibility of danger to police officers guarding the site while a warrant is sought; information indicating that the possessors of the evidence are aware the police are on their trail; and the ready destructibility of the evidence. Finch v. State, 592 P.2d 1196 (Alaska 1979).

Before a warrantless intrusion into a room can be validated under the exception to the warrant requirement to prevent the imminent destruction of evidence, there must be probable cause to believe that evidence is present, and the officers must reasonably conclude, from the surrounding circumstances and the information at hand, that the evidence will be destroyed or removed before a search warrant can be obtained. Finch v. State, 592 P.2d 1196 (Alaska 1979).

Roadblocks can properly be established when a serious crime has been committed for purposes of investigation or apprehension of a suspect where exigent circumstances exist and where the roadblock is reasonable in light of the particular circumstances of the case. Lacy v. State, 608 P.2d 19 (Alaska 1980).

Warrantless entries into a house are deemed per se unreasonable and may be tolerated only if they fall within one of the well-established and specifically defined exceptions to the warrant requirement. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Fishing vessel hold. —

Where a fishing vessel was tied to a fish processing vessel and in the process of being unloaded, the hold of the fishing vessel, which was in plain view of an inspector who was on the fishing vessel with consent, was not protected from search. Dye v. State, 650 P.2d 418 (Alaska Ct. App. 1982), hearing denied, 666 P.2d 48 (Alaska 1983).

Fish and game search with consent. —

The notice requirement of AS 16.05.180 , authorizing warrantless searches when investigating violations of fish and game laws, did not apply to a situation where peace officers searched property after having obtained the property owner’s consent. Mackelwich v. State, 950 P.2d 152 (Alaska Ct. App. 1997).

Driving while intoxicated. —

AS 12.25.033 , which permits a police officer to arrest a defendant for violation of AS 28.35.030 on probable cause but without a warrant, does not violate this section and the corresponding provisions of the federal constitution because these constitutional provisions are not offended by warrantless searches or arrests based on exigent circumstances and the legislature has determined that exigent circumstances exist where there is probable cause to believe a suspect is driving while intoxicated. Proctor v. State, 643 P.2d 5 (Alaska Ct. App. 1982).

Field sobriety tests are not searches. —

While breath tests are generally considered searches for constitutional purposes, typical field sobriety tests, including the horizontal gaze nystagmus test, are not; therefore, police do not need probable cause sufficient for an arrest before requesting typical field sobriety tests. Galimba v. Municipality of Anchorage, 19 P.3d 609 (Alaska Ct. App. 2001).

Use of exclusionary rule as sanction. —

The invocation of the exclusionary rule as sanction against the resort by police to excessive force in making an arrest was held inappropriate. State v. Sundberg, 611 P.2d 44 (Alaska 1980).

Activities open to public observation. —

Where a box office manager was stealing cash from ticket sales and university police, without obtaining a warrant, installed a hidden video camera which recorded her in the act of theft, the videotape was not obtained in violation of the manager’s constitutional rights, because activities that are open to public observation are not generally protected. Cowles v. State, 23 P.3d 1168 (Alaska 2001), cert. denied, 534 U.S. 1131, 122 S. Ct. 1072, 151 L. Ed. 2d 974 (U.S. 2002).

Because the trooper was standing in a public vantage point (the deck or walkway directly adjacent to the apartment that was open to the public) when he looked through the apartment window, his observation of the methamphetamine supplies inside the apartment was obtained lawfully, and he did not violate Alaska Const. art. I, § 14’s guarantee against unreasonable searches. Martin v. State, 297 P.3d 896 (Alaska Ct. App. 2013), cert. denied, 574 U.S. 909, 135 S. Ct. 280, 190 L. Ed. 2d 206 (U.S. 2014).

Employee drug testing. —

Municipality’s policy subjecting police employees and firefighters to suspicionless substance abuse testing was, for the most part, constitutional, but random testing provision was unreasonable and thus unconstitutional. Anchorage Police Dep't Emples. Ass'n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001).

Standard for investigatory stop. —

Demonstrating reasonable suspicion for an investigative stop requires significantly less than the probable cause needed to enter a home; while the supreme court approved the use of the collective knowledge doctrine that approval allows an officer to rely upon information imputed from a dispatcher to meet the reasonable suspicion requirement for an investigative stop of a vehicle. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Initial encounter between a state trooper and defendant outside an airport did not constitute an investigative stop because the trooper approached defendant in a public place, and the trooper did not display any weapons during the encounter or block defendant from leaving the conversation; the mere recitation of the trooper's suspicion did not convert the stop into a seizure, especially since he told defendant several times that she did not have to speak with him. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

B.Abandoned Property

The protection of the 4th amendment does not extend to abandoned property. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Abandoned property is not subject to the warrant requirements of the search and seizure provisions. Lupro v. State, 603 P.2d 468 (Alaska 1979).

One relinquishes the right of privacy to property by abandoning it. As a result, the protections of the 4th amendment do not extend to abandoned property. State v. Salit, 613 P.2d 245 (Alaska 1980).

Intentional concealment is not an act of abandonment. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Any items of garbage placed in a receptacle outside the dwelling are abandoned. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Trash placed in plain view for routine pickup. —

There was no reasonable expectation of privacy in trash placed in plain view at the end of a driveway for routine pickup, where it could be easily scavenged or accidentally removed. State v. Beltz, 160 P.3d 154 (Alaska Ct. App. 2007), aff'd, 221 P.3d 328 (Alaska 2009).

Seizure of a vehicle found lying upside down at the bottom of a steep embankment was valid under the abandoned property exception to the warrant requirement. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Abandoned garment bag. —

Airline passenger’s denial of ownership of a garment bag at a time when the other passengers had departed the area justified the police officer in treating the bag as abandoned. State v. Salit, 613 P.2d 245 (Alaska 1980).

Evidence in abandonded bag was fruit of poisonous tree. —

Finding that search of a black bag was lawful was improper because evidence found in the black bag was fruit of earlier illegal pat-down search, and thus should have been suppressed; state’s contention that even if defendant had not been subjected to the illegal search he inevitably would have disclaimed ownership of the bag, and thus trooper inevitably would have been authorized to retrieve and search the bag as abandoned property, was rejected. Erickson v. State, 181 P.3d 1117 (Alaska Ct. App. 2008).

C.Hot Pursuit

Search of purse found in station wagon. —

In determining whether the search of a purse found in a station wagon fell within the hot pursuit of a fleeing felon exception, the supreme court held that the pertinent facts were: The commission of a grave offense; a clear showing of probable cause that the vehicle in question was the getaway car; a reasonable belief that the suspects were armed; a likelihood that the suspects would have fled if not speedily apprehended; and a peaceable entry. Gray v. State, 596 P.2d 1154 (Alaska 1979).

Stop based on broadcast description. —

Where driver fled traffic stop on foot, and the officer had a description of the driver broadcast, shortly after which two plainclothes officers found a person meeting the description in a store, the plainclothes officers’ investigatory stop, and subsequent arrest of the driver, was proper under the Coleman v. State , 553 P.2d 40 (Alaska 1976) standard. Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009).

D.Movable Vehicles

Police officer’s stop of vehicle. —

Given the recent occurrence of a serious felony, first-degree robbery, and given the information the store clerk had furnished about the robber’s escape on foot and the direction the robber was headed, police officer’s stop of the defendant’s car and its occupants to ask questions was both justified and minimally intrusive. When a person jumped out of the car and appeared to match the description of the robber, the officer was justified in further investigation, and the discovery that the car was stolen and the driver had been reported as a missing person justified the officer’s continuing investigative efforts. Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992).

Where defendant was charged with possession of methamphetamine following a traffic stop, his motion to suppress was properly denied; the stop was not pretextual because defendant’s license plate was bent, and the plate number illegible. Way v. State, 100 P.3d 902 (Alaska Ct. App. 2004).

When defendant pulled away from the scene of a party, a trooper walked into the road to look at his license plate and waved at defendant; a reasonable person in defendant’s position would not have felt free to leave the scene, because doing so violates AS 28.35.182 . Therefore, a seizure occurred for purposes of Alaska Const. art. I, § 14. Majaev v. State, 223 P.3d 629 (Alaska 2010).

Warrantless search of movable vehicle. —

Movable vehicle search cases are based on a notion that warrantless seaches must be tolerated because vehicles and evidence contained in them might be removed before it is possible to obtain a search warrant. Thus, the movable vehicle exception may properly be considered to be a subcategory of the exception authorizing a search, with probable cause, to avoid destruction of a known seizable item. Clark v. State, 574 P.2d 1261 (Alaska 1978).

In order for a warrantless search of a vehicle to fit within the destructible evidence exception, the prosecution must establish two conditions: (1) There must be probable cause to believe that the vehicle contains evidence or contraband and (2) there must be exigent circumstances justifying conduct of the search without a warrant. Clark v. State, 574 P.2d 1261 (Alaska 1978).

The condition of existence of exigent circumstances is not automatically fulfilled merely because the object searched is an automobile. Clark v. State, 574 P.2d 1261 (Alaska 1978).

The presence of an exigent exception to the warrant requirement must be determined under the factual circumstances of the search rather than the abstract potential for mobility or destruction of the thing searched. Clark v. State, 574 P.2d 1261 (Alaska 1978).

Where a vehicle was parked in a public place, the search was for contraband, and the officers had grounds for believing that a known accomplice was at large who would be motivated to move the vehicle or take any evidence it contained, exigent circumstances sufficient to justify a warrantless search have been shown. Clark v. State, 574 P.2d 1261 (Alaska 1978).

Impoundment of vehicle. —

Because Anchorage Municipal Code, Anchorage, Alaska, Municipal Code § 09.28.026, authorizes the impoundment of vehicles without regard to whether the vehicle poses any public danger or inconvenience at the time it is seized, the ordinance cannot be justified under a community caretaker rationale. Even if the court tried to limit the scope of the ordinance to situations where impoundment of a vehicle was truly linked to a community caretaker function, the ordinance would still be fatally flawed because it lacks standardized, objectively ascertainable criteria for determining when to impound a vehicle. Taha v. State, 366 P.3d 544 (Alaska Ct. App. 2016).

The search must follow immediately after the suspects are removed from a vehicle and restrained and may not be delayed so to later search the vehicle at the police station. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

The police have the burden of proof in establishing they acted with dispatch in effecting the arrest and any search incident thereto. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Unattended, unsecured vehicle. —

Where an officer is aware that the operator of an unattended, unsecured vehicle will not be returning to the vehicle in the near future, his entry of that vehicle for the limited purpose of securing it is entirely justified. Indeed, where motivated by a good faith desire to protect the contents of the vehicle, such conduct is commendable. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Valid motor vehicle stop disposed of related privacy claim. —

Where defendant, who was stopped and charged with a felony DUI after he was seen trying to start his snowmachine on a sidewalk, argued that a reasonable person would not expect that the traffic code applied to a sidewalk covered by a snow berm, and therefore, he had a reasonable expectation of privacy not to be contacted by the police, the right to privacy guaranteed by Alaska Const. art. 1, § 22 did not create a right to seek the exclusion of evidence that was separate and independent from the right to be free from unreasonable searches and seizures under this section; consequently, the ruling that defendant’s stop was valid under this section disposed of his privacy claim as well. Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

Argument of defendant, arrested for felony DUI when a trooper saw him trying to start a snowmachine on a sidewalk, that the trooper did not have probable cause to stop because the sidewalk was under a snow berm, was without merit, where officer directly observing a violation of a traffic code had probable cause for the traffic stop, saw defendant trying to start the stalled snowmachine on the sidewalk, and the snow was not so high as to make the sidewalk unidentifiable; the sidewalk remained a sidewalk for the purposes of 13 AAC 40.010(a)(33) and 13 AAC 40.010(a)(48). Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

No basis for detention after traffic stop. —

The record did not support the state’s arguments that defendant could be temporarily detained at the scene of the traffic stop, either because he was a witness to a crime or because he posed a potential threat to officer safety and, as a matter of law, defendant’s act of running into the street, in apparent violation of state and municipal law, cannot form the justification for his arrest and the search of his person. Castle v. State, 999 P.2d 169 (Alaska Ct. App. 2000).

For discussion of federal case law relating to the validity of automobile searches without a warrant, see Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Scope of search of vehicle. —

The search of a car incident to a valid arrest would only go to visible areas within easy reach of the suspect and would not permit the opening of closed spaces or opening of closed containers. The car should then be immobilized and stored pending further judicial process of search or release to the proper party. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Mandatory use of seatbelt. —

Alaska’s seatbelt law, AS 28.05.095(a) , does not infringe the rights of personal liberty, autonomy, and privacy guaranteed by this provision and Alaska Const. art. I, §§ 1 and 22, as the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

Search of containers found in vehicle. —

The same factors which justify a warrantless automobile search — probable cause and exigent circumstances — justify an on the spot search of containers found in the course of such a search. Clark v. State, 574 P.2d 1261 (Alaska 1978).

It may be that not every container found in a lawfully searched automobile is subject to a search as a part of the automobile search, because a higher expectation of privacy may inhere in the container than is afforded the automobile. Clark v. State, 574 P.2d 1261 (Alaska 1978).

This section affords protection to any closed luggage, briefcases, containers, or packages within a vehicle which is subjected to an inventory search. State v. Daniel, 589 P.2d 408 (Alaska 1979), distinguishing Clark v. State, 574 P.2d 1261 (Alaska 1978), factually since in Clark the supreme court was concerned with an exigent circumstance, i.e., the destruction of evidence exception to the warrant requirement.

E.Inventory Searches

1.In General

Validity. —

The supreme court has not yet ruled on the validity of inventory searches under the Alaska Constitution. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Inventory searches by law enforcement personnel may fit within an exception to the warrant requirement. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

2.Pre-incarceration Inventory Searches

Exception to warrant requirement. —

A preincarceration inventory search is an exception to the warrant requirement, where it is conducted to further the governmental purposes of prohibiting the introduction of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail environment and of protecting the arrestee’s property and protecting against claims that loss or damage to that property occurred while the property was under the control of jail authorities, and is limited to the extent necessary to respect Alaska’s constitutional guarantee against unreasonable searches and seizures. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Preincarceration procedure is a “search.” —

A preincarceration inventory procedure is a “search” in the sense that the term is employed in this section of the Alaska Constitution. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Justifications for preincarceration inventory search. —

No clear statutory right to release on bail without even temporary incarceration exists in Alaska. Nevertheless, the justifications for a preincarceration inventory do not exist if the arrestee is not to be incarcerated, and no inventory search can be conducted in such cases. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Since defendant was entitled to be released on bail without appearing before a magistrate, there was no justification whatever for processing him through the preincarceration remand and booking procedures and, as an incident to this, searching his person and his personal belongings. Further, the search of defendant’s wallet without a warrant was not justifiable as a search incident to his arrest. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

A warrantless jailhouse inventory is without justification when an arrestee is not going to be incarcerated, and it is therefore constitutionally impermissible. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Scope of preincarceration inventory search. —

A preincarceration inventory search of an arrestee’s person should be no more intensive than reasonably necessary to prevent the entry of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail. Any item taken from the arrestee’s possession in this search may not be further searched or opened except pursuant to a search warrant or another recognized exception to the warrant requirement applicable in the circumstances. Reeves v. State, 599 P.2d 727 (Alaska 1979).

The inventory conducted shall consist of a cataloging of the arrestee’s property thus seized and may not, without a specific request from the arrestee, extend to a search and inventory of the contents of any object, closed or sealed container, luggage, briefcase, or package. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Reasonableness of search. —

Prison officials act reasonably when they search all of a convicted prisoner’s personal belongings at the time the prisoner reports to serve his or her sentence, even though some or all of the belongings may be placed in storage. State v. Landon, 936 P.2d 177 (Alaska Ct. App. 1997).

Improper search ruled harmless error. —

When a person is arrested on a minor charge for which bail has been set, the person has to be provided a reasonable opportunity to raise bail before being subjected to booking procedures and a pre-incarceration inventory search; although the search violated defendant’s rights, the evidence would have been discovered in any event because he would have been incarcerated and subject to a search after his failure to make bail. Anderson v. State, 91 P.3d 984 (Alaska Ct. App. 2004).

The opening of a wooden block removed from defendant’s jacket during the booking procedure exceeded the permissible scope of an preincarceration inventory search. Lyle v. State, 600 P.2d 1357 (Alaska 1979).

Search of opaque, tightly-wrapped balloon. —

Where during a preincarceration inventory search of a defendant arrested for a traffic offense, the correctional officer removed an opaque, tightly-wrapped balloon from defendant’s jacket, search of the balloon exceeded the constitutionally permissible scope of a preincarceration inventory search and was not supported by the probable cause required by the plain view exception to the warrant requirement. Reeves v. State, 599 P.2d 727 (Alaska 1979).

3.Inventory Searches of Automobiles

Inventory searches of automobiles appear to be clearly outside exigency rules. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Routine police inventorying of the contents of a vehicle is a search within the intendment of Alaska’s constitution. State v. Daniel, 589 P.2d 408 (Alaska 1979).

The fact that the inventory is undertaken in whole or in part for the benevolent purpose of protecting the property of the driver of the vehicle does not change the activity into something other than a search. What is determinative is that the conducting of an inventory is a governmental intrusion upon an individual’s privacy. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Search of closed containers. —

A warrantless inventory search of closed, locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable and thus an unconstitutional search under the Alaska Constitution. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Constitutional inventory procedures for vehicles. —

In conjunction with impounding a vehicle, the police, as a matter of routine inventory procedure, are entitled to catalog all articles which are not in closed or sealed containers, luggage, briefcases, and packages. Inventory procedures thus limited constitute only minimal intrusions upon an owner’s reasonable expectation of privacy and are thus constitutionally permissible in light of the rationales underlying police inventory searches of impounded vehicles and Alaska’s constitutional guarantee against unreasonable searches and seizures. State v. Daniel, 589 P.2d 408 (Alaska 1979).

As to any closed, sealed or locked containers, it is sufficient, for routine inventory purposes, that the officer merely list the item as a closed or locked footlocker, briefcase, package, or container and, if deemed necessary, remove the same for safekeeping. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Where a package of marijuana was found in an automobile on top of a bag containing other packages, it was perfectly proper to take those items to the police station for safekeeping. This would not be for “inventory” purposes but to prevent possible loss or destruction of evidence. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

F.Consent

Requirements for effective consent. —

To be effective, a consent to search must be voluntary and must be given by one who has authority to give it. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Superior court's finding that defendant provided verbal assent in response to a state trooper's question was not supported by the record because both the transcript and the audio recording reflected that defendant's verbal response was inaudible, and the trooper did not testify that defendant nodded her head; given the superior court's erroneous findings with regard to defendant's responses, a remand was required. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

Remand was necessary for the superior court to reconsider whether defendant validly consented to the search of her tote; because there was factual overlap between whether the persistent nature of the state trooper's accusatory questioning affected the nature of the stop or the voluntariness of defendant's consent, it was appropriate to allow the superior court in the first instance to reconsider whether the encounter between the trooper and defendant ever ripened into an investigative stop. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

Effect of consent to search or seizure. —

When an accused consents to a search or seizure conducted without a search warrant, the protection he would have enjoyed under the 4th amendment is lost to him. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Search authorized where valid consent tendered. —

Among the recognized exceptions to the rule that a search must rest upon a warrant are searches conducted pursuant to a valid consent. Nix v. State, 621 P.2d 1347 (Alaska 1981).

One exception to the warrant requirement is that police officers may conduct a search or seizure without a warrant where a person with the requisite authority, be it the defendant or a third party, tenders a valid and voluntary consent to the search or seizure. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

In an assault case, court properly denied defendant’s motion to suppress where the victim’s consent to search her cabin was valid; she did not simply acquiesce to the authority, she gave the officer directions on how to get there and how to avoid problems with her dogs. Nason v. State, 102 P.3d 966 (Alaska Ct. App. 2004).

Consent not required. —

Exigent circumstances authorized the police to obtain a nonconsensual, warrantless sample of defendant’s blood, AS 28.35.031(g) , such that defendant’s motion to suppress was properly denied. The blood draw did not violate defendant’s right to be free from unreasonable searches and seizures. Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Right to refuse consent. —

A defendant has a right under the 4th amendment to the federal constitution and this section of the state constitution to refuse to consent to a search of all or part of his car. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Consent to a search, in order to be voluntary, must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion, and is not lightly to be inferred. Frink v. State, 597 P.2d 154 (Alaska 1979); State v. Salit, 613 P.2d 245 (Alaska 1980).

There must be clear and convincing evidence that the consent was unequivocal, specific, and intelligently given. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Consent to a search, to be valid, must be shown to be unequivocal, specific and intelligently given, and not the product of duress or coercion. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Where a passenger’s express consent to the search of her belongings was nothing more than acquiescence to apparent lawful authority, it was not voluntary, uncoerced consent. Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Search of defendant’s person and purse were improper because she did not know the basis for the trooper’s assertion of authority over her, and Alaska Const., art. I, § 14 prohibited the trooper from asking defendant for permission to search her person and her vehicle for drugs; trooper conducting the traffic stop was prohibited from requesting defendant’s permission to conduct a search that was unrelated to the basis for the stop and not otherwise supported by a reasonable suspicion of criminality. Brown v. State, 182 P.3d 624 (Alaska Ct. App. 2008).

The totality of circumstances test for voluntariness of a consent search is the prevailing federal standard, and the Alaska Constitution does not require a different standard for noncustodial consent searches. Frink v. State, 597 P.2d 154 (Alaska 1979).

Question of fact. —

Determination of the requisite voluntariness of the disputed consent is a question of fact to be determined from all the circumstances. Gray v. State, 596 P.2d 1154 (Alaska 1979).

There are no magic words without which a valid consent cannot be found; rather, determination of the requisite voluntariness of the disputed consent is a question of fact to be determined from all the circumstances. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Burden of proving voluntariness of consent. —

In determining whether a consent to a search or seizure is voluntary, the state has the burden of proving that such consent was a product of the person’s free will and not the product of police coercion, either express or implied. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

The state has the burden of demonstrating the validity of a consent, and that consent is not to be inferred lightly. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Overstepping defined boundary. —

After knocking on the door of the residence of a hit-and-run suspect, the officers were told by defendant’s wife to come into the entryway and wait, but when the wife started down the stairs, the officers followed and found defendant. The officers’ entry into the basement could not be justified as a consensual search, because the wife’s limited consent constituted the boundary of the officers’ freedom within the house, and the fact that the wife failed to protest when the officers followed her into the basement did not constitute the affirmative act of consent required by the Fourth Amendment. Haskins v. Municipality of Anchorage, 22 P.3d 31 (Alaska Ct. App. 2001).

Consent not vitiated. —

Error in designating a tenant’s residence in a search consent form and the tenant’s uncommunicated belief that the error would render the consent form technically invalid provides no basis for vitiating the tenant’s consent to a search of his apartment. Ingram v. State, 703 P.2d 415 (Alaska Ct. App. 1985), aff'd, 719 P.2d 265 (Alaska 1986).

Awareness of right to refuse. —

The person giving consent need not be advised of the right to refuse to allow a search prior to executing a valid consent to search, although the subject’s awareness of the right to refuse is a factor in the determination of the voluntariness of the consent. Gray v. State, 596 P.2d 1154 (Alaska 1979).

The state, to show consent, does not have to prove specifically that defendant knew of his right to refuse to allow the search. Frink v. State, 597 P.2d 154 (Alaska 1979).

The mere fact that persons are on notice that they may be searched cannot, by itself, be the basis for implying consent. State v. Salit, 613 P.2d 245 (Alaska 1980).

Assuming that, on the basis of posted notices, an airline passenger gave implied consent to X-ray his bag, it could not be inferred that he gave implied consent to allow the opening and searching of his bag. Although the notice provided that carry-on luggage “is being inspected by X-ray,” it stated “Physical inspection may be requested,” and “Inspection may be refused,” and thus the notice indicated that before a physical inspection there would be a request and a right to refuse the request, which would result in the passenger not being permitted “to pass the inspection point.” Under these circumstances, the government had not borne its burden of proof that the passenger knowingly gave implied consent to open and search his bag. State v. Salit, 613 P.2d 245 (Alaska 1980).

Implied continuing consent. —

Lack of objection to subsequent, closely related entries and searches, after valid consent to an initial entry, can imply that the initial consent continued. Phillips v. State, 625 P.2d 816 (Alaska 1980).

While it might have been prudent for the police to have obtained a specific consent to each new intrusion, their failure to do so did not vitiate an implied continuing consent to a search. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Temporary custody, standing alone, does not invalidate a subsequent consent to a search. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

Policeman’s identity not revealed. —

One’s consent to entry by a policeman is not to be regarded as involuntary merely because the policeman’s identity is either not revealed or affirmatively misrepresented. Nix v. State, 621 P.2d 1347 (Alaska 1981).

The standard of fairness was not violated where no affirmative misrepresentation of the police officer’s identity was made; he was able to view the stolen property, openly displayed in the common area of the apartment, just as the other guests of those occupying the apartment had been able to; and the limits of the consent were not exceeded by venturing into private rooms or prying into closed containers. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Undercover search. —

The standard for evaluating the constitutionality of an undercover search is whether, under the facts of the particular case, the undercover operation leading to consent to the search falls below an acceptable standard for the fair and honorable administration of justice. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Intelligent consent to a search of a residence can still be found where an undercover agent has affirmatively misrepresented both his identity and purpose where: the officer’s actions do not amount to conduct that would morally or legally compel a suspect to grant the officer entry into his home; the officer’s intention is not to gain access; once inside the dwelling, the officer does not exceed the scope of the invitation; and before going to the residence, the officer receives enough information pointing to the owner as a prime suspect. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Consent following illegal search or arrest. —

When defendant’s consent to search was tainted by police officers’ initial illegal search, after which defendant was told that a methamphetamine laboratory had already been found, the subsequent search was also tainted, and the superior court should have granted defendant’s motion to suppress. Moore v. State, 119 P.3d 1018 (Alaska Ct. App. 2005).

Apparent authority to consent alone is required. —

All that is required is apparent authority, in the sense that it reasonably appeared to the person who entered that the inviter had the right to invite him inside the premises. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Actual authority regardless of reasonable appearances is not required. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Basis for agent’s authority to permit search. —

See Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Consent to search held voluntary. —

When the accused is directly asked whether he objects to the search, there must be at least some suggestion that his objection is significant or that the search waits upon his consent. When this is combined with a warning of his right to be silent, and his right to counsel, which would seem in the circumstances to put him on notice that he can refuse to cooperate, it is fair to infer that his purported consent is in fact voluntary. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

If the defendant permits a warrantless search of his home or establishment in the mistaken belief that he has nothing there which will incriminate him, it has been held that the search has been voluntarily consented to. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

A defendant will be held to have consented voluntarily, unequivocally, and intelligently to a search if, under the circumstances, it is reasonable to conclude that he was put on notice that he could refuse to cooperate with law enforcement authorities. Pistro v. State, 590 P.2d 884 (Alaska 1979).

When a law enforcement officer knocks at the door, identifies himself, and asks to be allowed to search the premises, the acquiescence thus obtained is generally not considered to be voluntary consent. See Judd v. United States, 190 F.2d 649, 89 U.S. App. D.C. 64 (D.C. Cir. 1951); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Where one of two men in a garage was informed of his right to remain silent and to have the assistance of counsel prior to consenting to a search of the garage, his statement to the police officer agreeing to release the items in the garage to the officer constituted effective consent to the second entry into the garage and the seizure of evidence. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Validity of third-party consent. —

Where a third party consents to a search or seizure, the validity of that consent depends upon physical possession or ownership of the property. Christian v. State, 513 P.2d 664 (Alaska 1973).

One placed in a position of holding, for another, evidence which he reasonably believes is materially linked to a crime has the authority to disassociate himself from that evidence by voluntarily surrendering it to the police. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Employee’s expectation that, if he did not consent to a search, a warrant permitting search would be obtained did not invalidate his consent where employee knew the trooper could not search without his permission or a warrant, the trooper did not threaten the employee with a warrant, and there was clearly probable cause to obtain a warrant. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Where two state police officers saw one suspect enter defendant’s apartment and smelled marijuana outside its entrance only after contacting the apartment building manager, any illegality arising from the officers’ tag-along entry into the building was, by that time, vitiated by the manager’s knowing acquiescence to and acceptance of their presence. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Third party consent to search of vehicles. —

Where employee was left in charge of the trucking company yard, he was foreman of the repair shop and was authorized to purchase parts for vehicles being repaired; and while the owner had never specifically authorized him to admit troopers to the premises, the owner had never forbidden it and had indicated that had he been present, he probably would have authorized the search himself, the employee had actual authority to give the troopers access to the company yard and the junk vehicles stored there. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

The person in charge of trucking yard had authority to consent to search the interior of a vehicle stored in the yard where, although the vehicle was acquired for someone else and was intended by that other person to be used for parts, it was owned by and registered to the owner of the yard who had a joint right of access with the person for whom the car was bought. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Where automobile in trucking yard was obviously disabled and was stored with other junk vehicles in a part of the yard reserved for vehicles being cannibalized for parts, there was nothing that would put the police on notice that the vehicle was the exclusive property of another person as distinguished from the other wrecks surrounding it, even though the person in charge of the yard told the trooper while the search of the automobile was being conducted that it had been acquired by the owner of the yard for the other person to be restored for that person and was located in a make-shift tent, and the trooper could reasonably rely on the apparent authority of the person in charge and search the automobile’s trunk. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

One who has joint access may effectively consent to a search, and any evidence thus disclosed may be used against the other. In re Cornelius, 521 P.2d 497 (Alaska 1974).

A person with joint access to, or control of, a place is authorized to consent to entry. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Tenant’s consent to the search of his apartment authorized the police, without a warrant, to search the petitioner’s wallet, jacket and gun holster found on the living room floor. Ingram v. State, 719 P.2d 265 (Alaska 1986).

Double-booked hotel room. —

Chief of hotel security had apparent authority to consent to police entry of double-booked hotel room where his initial presence was consented to by one of the registered guests in the room and another party who intervened at the guest’s request, and the security officer’s initial entry and subsequent entries were proximate in time and effected without his ever having relinquished actual custody and control over the room. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Probation provision requiring probationer to “submit” to search of person, personal property, residence, or vehicle by probation officer is an authorization for warrantless searches, even when the probationer does not consent to the search. State v. James, 963 P.2d 1080 (Alaska Ct. App. 1998).

Testimony of refusal to consent. —

It was error to admit testimony of defendant’s refusal to consent to a search of the front of his car and error to comment on it during summation. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Effect of plea of nolo contendere. —

Where defendant entered a plea of nolo contendere to a charge of robbery, the issue of the voluntariness of a witness’ consent to search was not preserved for purposes of appeal. Gray v. State, 596 P.2d 1154 (Alaska 1979).

G.Emergencies

Exigency rule adopted. —

The supreme court has adopted the “exigency rule” exception to the necessity for a search warrant. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

In Alaska the supreme court has recognized the “emergency” exception to the warrant rule. Schraff v. State, 544 P.2d 834 (Alaska 1975).

The emergency aid doctrine has been uniformly recognized as an exception to the warrant requirement. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Right to enter in an emergency. —

The right of police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers, and derives from the common law. The criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

Police officers have a right to enter buildings without a warrant in an emergency as an inherent part of their common-law duties. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Where police officers enter buildings without a warrant, it is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact, which is crucial in evaluating the actions of the police. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Reports of deaths are not always accurate and police officers should be encouraged to check out such reports as quickly as possible in case a spark of life remains. Where police officers had been told there was a body in an individual’s home, the officers had a reasonable belief as to the existence of an emergency which justified their unauthorized entry into the individual’s residence. Therefore, as a matter of law, the entry was privileged. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

The emergency aid doctrine is a well recognized exception to the warrant requirement. Under the doctrine, the warrantless entry of a dwelling is allowed 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 injury. Harrison v. State, 860 P.2d 1280 (Alaska Ct. App. 1993).

Alaska Const. art. I, §§ 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution and the Alaska Constitution prior to the enactment of § 22. Alaskans’ heightened right to privacy is safeguarded by requiring the State to show (1) the police had reasonable grounds to believe an emergency was at hand and an immediate need for their assistance in the protection of life or property; (2) the search was not primarily motivated by the intent to arrest a person or to seize evidence; and (3) some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Gibson, 267 P.3d 645 (Alaska 2012).

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 showing than the one required for probable cause, and in order to enter a home without a warrant under the emergency aid exception, the officers must satisfy all of the exception's requirements, and each requirement specifically refers to the responding officer's reasonable belief. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Restriction in time and scope. —

Any warrantless search conducted under the emergency aid doctrine is restricted in time and scope to the nature and duration of the particular emergency. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Sufficiency of emergency. —

Existence of an emergency sufficient to justify a warrantless entry into a house must be determined by an objective standard; whether the evidence would have led a prudent and reasonable officer to perceive an immediate need to take action in order to prevent death or to protect against serious injury to persons or property. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Seizure to prevent destruction or removal. —

The constitutional provisions proscribing unreasonable searches and seizures did not prohibit the seizure of a note in order to prevent its destruction or removal. Weltz v. State, 431 P.2d 502 (Alaska 1967).

Exigent circumstances justified a warrantless entry of an apartment where the defendant who entered the apartment was suspected to be associated with a sizeable illegal drug sale, which had been unexpectedly interrupted by the presence of police; the defendant had tipped off others about the presence of police; the drugs and the money involved in the sale were capable of being readily concealed or destroyed; and the warrantless police intrusion was minimal, consisting of a peaceful entry through an unlocked doorway by officers who had announced their presence and identity. Ingram v. State, 703 P.2d 415 (Alaska Ct. App. 1985), aff'd, 719 P.2d 265 (Alaska 1986).

Investigation of automobile accident. —

Where a police officer was dispatched to investigate a possible automobile accident; the officer observed an automobile with its front bumper “hung up” on a guardrail; the car’s engine was not running but its headlights were on; the key was in the ignition switch in the “on” position; and a man was lying on the front seat of the car with his feet under the steering wheel and his head toward the passenger side and appeared to be asleep, it was entirely reasonable for the officer to open the car door to awaken the man and thereafter request that he get out of his vehicle. Even if such action amounted to a warrantless search and seizure, the minimal intrusion was justified under the emergency exception to the warrant requirement and, therefore, was not violative of either the 4th amendment to the Constitution of the United States or this section. Anchorage v. Cook, 598 P.2d 939 (Alaska 1979).

Entry not justified by emergency. —

Where witnesses reported that two men inside an apartment had fired two shots from the walkway outside the apartment building, police were not justified, under the “emergency” rule, in entering and making a warrantless search of the apartment where there were no reports of shots having been fired inside the apartment and no reports of anyone’s having been hit by gunfire. Zinn v. State, 656 P.2d 1206 (Alaska Ct. App. 1982).

Police officers were not entitled to judgment as a matter of law on homeowners' trespass and invasion of privacy claims because there was a genuine issue of material fact whether they had reasonable grounds to believe an emergency was at hand in the homeowners' apartment; the dispatcher's undisclosed knowledge of the details of a 911 call did not provide any information about the situation at the home, and her information could not be imputed to the officers under the emergency aid exception. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Fire officials. —

See note under this catchline under analysis line I, “General Consideration.”

H.Stop and Frisk

Purpose of stop and frisk doctrine. —

The stop and frisk doctrine, a limited exception to the rule that officers can detain a person only on probable cause, is designed to aid police officers in street encounters where suspicious circumstances exist not amounting to probable cause. McCoy v. State, 491 P.2d 127 (Alaska 1971).

No conflict with 4th amendment or state constitution. —

The supreme court’s rule permitting temporary detention for questioning in certain cases, i.e., cases where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, does not conflict with the 4th amendment or the state constitution. Coleman v. State, 553 P.2d 40 (Alaska 1976).

The Alaska rule, permitting a temporary stop when the officer had a reasonable suspicion that imminent public danger exists, or serious harm to persons or property had recently occurred, is not in conflict with either the 4th amendment or the constitution of the state of Alaska. Ebona v. State, 577 P.2d 698 (Alaska 1978).

Unconstitutional parole conditions did not justify search of parolee. —

In a drug case, a motion to suppress should have been granted; officers had no justification for conducting an investigatory stop on a parolee leaving a bar, based on parole conditions authorizing a breath test and a search at the request of any police officer, because those conditions were unconstitutional. Reichel v. State, 101 P.3d 197 (Alaska Ct. App. 2004).

The Alaska rule is more restrictive than the rule articulated by the supreme court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 Ohio Op. 2d 383 (U.S. 1968). Ebona v. State, 577 P.2d 698 (Alaska 1978).

“Reasonable belief ” standard for investigatory stops. —

Where nothing at the scene of the arrest indicated the existence of an imminent public danger, and there was no sign of recent serious injury to person or property, Coleman v. State , 553 P.2d 40 (Alaska 1976) stands as a bar to invocation of the “reasonable belief” standard for investigatory stops found in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 Ohio Op. 2d 383 (U.S. 1968). Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983).

Authority to stop and frisk. —

When the primary suspect in a recent felony is encountered by a police officer, it is not unreasonable for him to briefly detain that individual for questioning, and when the officer has reasonable cause to believe the individual may be armed, to execute an immediate patdown of his person for weapons. Free v. State, 614 P.2d 1374 (Alaska 1980).

A police officer with a reasonable suspicion that imminent public danger exists or serious harm that has recently occurred was caused by a particular person may stop that person. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

As Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), makes clear, once police have made a valid stop they may then make a protective frisk of a suspect to remove weapons. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Requirements. —

As a matter of Alaska constitutional law the state supreme court will apply the rule in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), only where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred. Ozenna v. State, 619 P.2d 477 (Alaska 1980); Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983).

Suspicion must exist in order to stop a person in the first place, and the officer must reasonably believe that the person is armed and dangerous before any frisk is permissible. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Temporary detention for questioning is permitted only when: (1) the police officer has an actual suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, and (2) this suspicion is reasonable. Waring v. State, 670 P.2d 357 (Alaska 1983).

A police officer may not continue an investigation by taking a suspect into the police car and questioning him there when there exists no articulable reason to suspect that anything is wrong. Waring v. State, 670 P.2d 357 (Alaska 1983).

Motion to suppress should have been granted where officers had no justification for conducting an investigatory stop on a parolee leaving a bar; the court declined to consider whether a stop was justified based on reasonable suspicion that a parole violation had occurred because there was no imminent danger shown. Reichel v. State, 101 P.3d 197 (Alaska Ct. App. 2004).

Items in defendant’s hand. —

Forcible opening of a suspect’s hand, or an order directing the suspect to open his hand, is equivalent to a pat-down search; thus, it requires the same justification as a pat-down of the detainee’s clothing. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

When Miranda warnings required. —

An investigatory stop does not necessarily trigger a right to Miranda warnings. However, if a motorist is detained under circumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination, Miranda warnings would be required. Blake v. State, 763 P.2d 511 (Alaska Ct. App. 1988).

Search for weapons. —

The scope of a protective search for weapons in a stop and frisk situation should be more limited than a search incident to an arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

If the police had enough facts to make a stop, the permissible zone for a search for weapons would be the same as that for a search incident to arrest. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Police officer was permitted to seize a plastic bag containing cocaine discovered on defendant’s person during a lawful pat-down search. McGuire v. State, 70 P.3d 1114 (Alaska Ct. App. 2003).

Officer can justifiably remove and examine an object from a pocket or hand during a frisk for weapons if the officer reasonably believes that the object could be used as a weapon; when a court evaluates whether a pat-down search for weapons was justified, the court may take into account the nature of the criminal activity that the officer reasonably suspects is occurring. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

Right to stop under suspicious circumstances. —

Police officers have the right to stop and question a person observed under suspicious circumstances, and if probable cause is then found to exist, the person may be arrested. Evidence taken from him as an incident to the arrest may be admitted at the trial. Maze v. State, 425 P.2d 235 (Alaska 1967).

And evidence in plain view may be seized. —

Where an investigatory stop was proper under the circumstances, evidence which was in plain view was legitimately seized and the trial court did not err in refusing to suppress it as evidence. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Inquiry vs. Investigative stop. —

An inquiry of someone at the scene is not necessarily a 4th amendment seizure. An investigatory stop and an arrest are 4th amendment seizures. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983); Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

The factor which distinguishes an on-the-scene investigation from an investigatory stop or arrest is that the person encountered “on the scene” is under no obligation to remain, may decline to listen to any questions, and may go on his way. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

An investigatory stop is differentiated from an arrest on the basis of (1) its purpose, (2) the magnitude of the intrusion, and (3) the quantum of information necessary to justify the intrusion, i.e., reasonable suspicion rather than probable cause. State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983).

Among the factors to be considered in determining whether a seizure is an investigatory detention or arrest are the requirement that the investigative detention be for a limited and specific inquiry; that the detention be of brief duration; and that it not require the person stopped to travel an appreciable distance. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Whether a seizure is an investigatory detention or an arrest turns on the duration and intrusiveness of the restraint. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Use of police records. —

The police record of one who is subjected to an investigative stop is a legitimate factor to be considered in determining whether there is sufficient suspicion to justify the stop. Ozenna v. State, 619 P.2d 477 (Alaska 1980).

Stop and search justified. —

An investigative stop and search was justified when the officer knew that a burglary in which one or more handguns and ammunition had been taken had been recently committed near where defendant was walking; defendant had a criminal record known to the officer; there were unusual protrusions in defendant’s coat; and defendant’s hand was positioned in a manner which suggested he was carrying a handgun. Ozenna v. State, 619 P.2d 477 (Alaska 1980).

Where police saw defendant’s companion crouching down and lighting a crack pipe in an alley, police properly conducted an investigatory stop of the two men; police were authorized to make defendant open his hand, revealing a small rock of crack cocaine and leading to defendant’s conviction for fourth-degree misconduct involving a controlled substance. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

Investigatory stop of car after anonymous caller had reported a drunk driver was warranted. Effenbeck v. State, 700 P.2d 811 (Alaska Ct. App. 1985).

There was a sufficient risk of imminent public danger to warrant an investigatory stop where defendant’s driving just prior to his encounter with the police officer demonstrated his willingness to drive in his current condition and at the time of the encounter, defendant retained possession of his car, and it remained immediately accessible for him to drive. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Where trooper observed defendant make an illegal turn, followed her for about one-half mile, and observed her swerve three separate times before stopping her, such actions were consistent with drunk driving, and the trooper was stopping defendant to determine whether she was driving while intoxicated. State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983).

Where police officer had a reasonable suspicion that defendant was involved in a burglary, a felony under Alaska law, a brief pat-down for weapons was permissible. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

When an informant provided specific, detailed information that defendant and two other men would be bringing drugs into Fairbanks from Anchorage in a rental car, and police officers corroborated the information, the officers had reasonable suspicion to stop the car in which defendant was riding. Williams v. State, 139 P.3d 1282 (Alaska Ct. App. 2006).

Detention exceeded limit for investigative detention. —

Where defendant was taken from a neighbor’s home in a police vehicle to the police station and, without being formally arrested, interrogated for nearly an hour, despite repeated and continuous denial of any involvement in the robbery, his detention exceeded the limits of an investigative detention. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Question of fact. —

Where a person is subjected to an investigatory stop and thereafter agrees to go to the police station to continue interrogation, it is, at the very least, a question of fact for the trial judge whether the suspect’s consent is free and voluntary or the product of duress or coercion, express or implied. State v. Burdine, 698 P.2d 1216 (Alaska Ct. App. 1985).

I.Incident to Arrest

Legal arrest removes personal privacy from realm of protection. —

While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Scope of exception. —

Under federal law, a police officer who has legally arrested a person may search that person incident to the arrest; Alaska law places more stringent requirements on the officer’s ability to search incident to arrest. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Under Alaska law, an officer may conduct a limited search for weapons incident to an arrest; beyond this, the officer may only search for evidence related to crimes for which the police have probable cause to arrest. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Warrantless search incident to arrest. —

A warrantless search incident to and contemporaneous with a lawful arrest is an exception to the rule that a search must rest upon a search warrant. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

A search would be unreasonable because made without a warrant unless the facts were such as to bring this case within an exception to the rule that a search must rest upon a search warrant. The exception is that which recognizes the validity of a search made without a warrant where the search is made incident to a lawful arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

There is wide agreement that a warrantless search incidental to an arrest is not unreasonable. Fresneda v. State, 458 P.2d 134 (Alaska 1969).

Where defendant was arrested for “minor on licensed premises” for being in a bar while under 21 years of age, the police were permitted to search him; defendant was not entitled to suppress evidence of a plastic bag which contained cocaine seized by police during the search. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Search of felony arrestee. —

To require the police to get a search warrant to search the person of every felony arrestee when it is to be expected that the magistrate will always find probable cause that evidence of the crime is on his person, will inundate the magistrates with warrant petitions which will be granted as a matter of course and run the risk that magistrates will not carefully examine the circumstances in more deserving cases. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Warning of rights not necessary. —

A specific warning of 4th amendment rights is not necessary to validate a warrantless search after the suspect has been arrested. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

An arrest or a traffic stop should not be used as a pretext for a search. Brown v. State, 580 P.2d 1174 (Alaska 1978); Clark v. State, 574 P.2d 1261 (Alaska 1978).

Search incidental to traffic violations and vagrancy. —

While in most felony cases the incidental search may well turn out to be reasonable, the nexus between the item to be seized and the criminal behavior involved is more difficult to establish in cases involving arrest for such offenses as traffic violations and vagrancy. Automatic application of the incidental search doctrine in such cases may well result in the sanctioning of unreasonable searches in individual cases, contrary to the requirement of the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Defining boundaries in “incident to arrest” exception. —

In defining the boundaries of incident to the arrest exception, the need for the exercise of common sense is apparent. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The boundaries of the area which can be searched incident to a lawful arrest are based upon two rationales: First, to protect the arresting officer and to deprive the prisoner of potential means of escape and, secondly, to avoid destruction of evidence by the arrested person. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Restrictions on warrantless incidental searches. —

Adequate protection for the arrestee’s legitimate interests in privacy will be provided by the following restrictions on warrantless incidental searches of the person: (1) The arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional. (2) The search must be roughly contemporaneous with the arrest, at least within the boundaries suggested by United States v. DeLeo , 422 F.2d 487 (1st Cir. 1970), and adopted here. (3) The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid. The search must be incident to the arrest, and not vice versa. (4) Finally, the arrest must be for a crime, evidence of which could be concealed on a person. McCoy v. State, 491 P.2d 127 (Alaska 1971); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Search incident to incarceration and search incident to arrest distinguished. —

See Reeves v. State, 599 P.2d 727 (Alaska 1979).

There is a permissive area of search without a search warrant beyond the person proper. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Police officers had no lawful right to make a search for some other purpose than uncovering evidence that would connect the defendant with a traffic violation. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. McCoy v. State, 491 P.2d 127 (Alaska 1971).

When a search goes far beyond defendant’s person and the area into which he could reach to obtain a weapon to harm the officer or escape or evidence which he might conceal or destroy, it is unreasonable. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Once warrantless searches beyond the area of the arrestee’s immediate control are allowed, the 4th amendment with its “reasonableness” requirement suggests no rational limits to circumscribe the search. Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for, and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. There is ample justification, therefore, for a search of the arrestee’s person and the area within his immediate control. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Once a person is lawfully arrested, the arresting officers have the right, without a search warrant, to search the arrestee’s person and the area within his immediate control for weapons and destructible evidence of the crime. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Where police officers validly arrested defendant on the basis of an outstanding traffic warrant; where in the face of a truculent defendant and a potentially hostile crowd of bystanders, the officers attempted to conduct a pat-down search of defendant for weapons before placing him in the patrol car, and where, during the course of his pat-down of defendant, an officer’s hand hit something hard in defendant’s left shirt pocket, it was reasonable for the officer to remove these hard items from the shirt pocket. Thus, the search of defendant’s shirt pocket was permissible under the warrantless search for weapons incident to a lawful arrest exception to the warrant requirement. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Since the search was incident to a valid arrest for the crime of forgery, and evidence of that crime might well have been concealed on accused’s person, the search of a packet containing cocaine was valid and the conviction based on such evidence was proper. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Warrantless search of a bag found in the pocket of robbery suspect’s jacket, which had been removed and concealed between the passenger seat and the console of the van in which the suspect was riding was a permissible search incident to defendant’s arrest. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Requesting passenger's identification to run warrants check. —

Officer is precluded from requesting a passenger's identification, as here, and then using that to run a warrants check when the officer's request is unrelated to the basis for the stop and the officer has no other case-specific justification for doing so; generalized concern for officer safety, without more, is insufficient to override the rights of passengers in relation to routine traffic stops. Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Determining reasonableness of scope of search. —

The reasonableness of the scope of a search incident to arrest must be viewed from the realistic perceptions of the police officer at the time the search is made, and not by a later analysis of all the possible options that might hypothetically have been considered. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Containers on person of arrestee. —

Upon the lawful, nonpretextual arrest of an individual for a crime, evidence of which could be concealed on the person, a search of the arrestee’s person, his clothing and articles which, akin to clothing, are immediately associated with the person of the arrestee may be searched at the time of the arrest, or within a reasonable period thereafter, and as long as the search is confined within these limits, it is permissible for officers to open and inspect the contents of any closed containers found, unless under the circumstances it could not reasonably be believed that the container would yield a weapon or evidence of the crime for which the arrest was made. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Closed containers which are not by their nature immediately associated with the person of the arrestee, but which are merely seized from the arrestee’s proximity at the time of his arrest, cannot be opened and inspected without a search warrant after they have been removed from the arrestee’s control and secured by the police. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

A container on the person of an arrestee at the time of the arrest may be seized, opened, and searched as an incident to the arrest, unless the container is too small to contain a weapon and the arrest is for a crime, such as reckless driving, for which no evidence could exist in the container. This is so even though it is not strictly necessary to open a closed container found on the person of one who is arrested in order to protect the arresting officer from the use of a hidden weapon or to prevent the destruction of evidence. These goals can ordinarily be accomplished simply by seizing the container and removing it from the reach of the arrestee. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

The language “immediately associated with the person of the arrestee” which pointedly excepts certain personal property from the requirement that an exigency must exist to justify a search means that containers found in clothing pockets may be searched, and it also suggests that containers such as purses which are often worn on the person and generally serve the same function as clothing pockets are also excepted from the strict exigency requirement. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

A search incident to an arrest, where no evidence of the crime charged could exist on the person, may extend to the person of the arrestee and any containers associated with the arrestee’s person which may contain a gun, a large knife, or a club. A search of smaller containers which could only contain atypical weapons such as a razor blade, a small knife, a safety pin, or a needle must be supported by specific and articulable facts which would lead a reasonable person to believe that such an atypical weapon was in the small container. Jackson v. State, 791 P.2d 1023 (Alaska Ct. App. 1990).

In the context of a search incident to arrest, a motion to suppress should have been granted under the Alaska Constitution because it was not shown that an ashtray where the drugs were located was the type of container immediately associated with defendant's person, even though the ashtray was capable of holding personal items. It was not defendant's burden to show that ashtrays in vehicles were not commonly used to store personal items. Pitka v. State, 378 P.3d 398 (Alaska Ct. App. 2016).

Search of defendant’s wallet pursuant to a custodial arrest was not justified, where a search of defendant’s person uncovered no weapons and the wallet was too small to conceal anything but an atypical weapon. Jackson v. State, 791 P.2d 1023 (Alaska Ct. App. 1990).

Search of glove box. —

Police are authorized to search an unlocked glove box incident to driver’s arrest if driver is arrested in the vehicle or immediately upon exiting the vehicle. Lyons v. State, 182 P.3d 649 (Alaska Ct. App. 2008).

Superior court properly denied defendant’s motion to suppress a handgun found in the glove box; police were authorized to search the glove box because they were entitled to search defendant’s vehicle incident to his arrest, and the vehicle’s glove box was immediately associated with defendant’s person. Lyons v. State, 182 P.3d 649 (Alaska Ct. App. 2008).

Lawfulness of arrest without warrant depends on probable cause. —

Where an arrest is made without a warrant, its lawfulness depends on whether it was based on probable cause. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

The existence of probable cause to make an arrest without a warrant justifies an officer in conducting an immediate search without a warrant. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Conditions to constitutionally valid arrest. —

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it; whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

In order for this exception to apply the police must have probable cause to make an arrest at the time the search and seizure takes place, but it is not necessary to formally place the suspect under arrest. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Articulating basis for arrest. —

Evidence should not have been excluded where the police had reasonable suspicion to stop defendant, to briefly detain him, and ultimately had sufficient information to arrest him for possession of cocaine, even though the police who arrested him did not correctly articulate the basis for the arrest. State v. Kendall, 794 P.2d 114 (Alaska Ct. App. 1990).

Unreasonable suspicion of crime. —

Where officer received a report that a green Ford pickup had left a gas station without paying for gas and over fifteen minutes later pulled over a green Ford pickup which did not have the same number of occupants nor the same license plate as that reported, it was unreasonable to suspect driver of gas theft. Hays v. State, 850 P.2d 651 (Alaska Ct. App. 1993).

The mere fact of arrest does not ipso facto justify an unlimited search of the person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The arrest may not be used as a mere pretext to search. Schraff v. State, 544 P.2d 834 (Alaska 1975).

And subsequently disclosed evidence does not justify arrest. —

An arrest may not be justified by what the subsequent search discloses. Schraff v. State, 544 P.2d 834 (Alaska 1975).

What a lawful arrest does justify is the search for fruits, instrumentalities, and evidence of the crime for which the arrest is made, and this is so only because the existence of probable cause for the arrest of a person normally justifies probable cause to believe that the suspect possesses such items. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is established that once a person is lawfully arrested, the arresting officers have the right, without a search warrant, to search the arrestee’s person and the area within his immediate control for weapons and destructible evidence of the crime. Avery v. State, 514 P.2d 637 (Alaska 1973).

Where there is probable cause to arrest a suspect, there is likewise probable cause to search his person for fruits, instrumentalities, and evidence of the crime for which the arrest is made. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Absent specific articulable facts justifying the intrusion in the privacy in items carried on the person, a warrantless search incident to an arrest, other than for weapons, is unreasonable and therefore violative of the Alaska Constitution if the charge on which the arrest is made is not one evidence of which could be concealed on the person. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

What constitutes arrest. —

An arrest does not take place under Alaska law until a person has been taken into custody in order that he may be held to answer for the commission of a crime. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Neither the accused nor his companions were taken into custody until after the pistol and clothing, which gave rise to probable cause to make an arrest, had been seen. When the officer stopped the car he was doing nothing more than conducting an investigation in response to circumstances that aroused his suspicions. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Considering the lateness of the hour, the fact that the car was seen coming from the side of the building rather than from the parking lot in front, and that it was being driven without its headlights on, the police officer had the right and the duty to make a prompt investigation, which required him as a matter of practical necessity to stop the car and question the occupants. This activity on the part of the police officer in the circumstances of this case was permissible and did not amount to an arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

A search is incident to arrest as long as it is made substantially contemporaneously with the arrest. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

A search incident to arrest may precede the arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Search was incident to a lawful arrest although it preceded the arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

But it must require a substantial contemporaneity of search and arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

A search which preceded an arrest is lawful where the search occurred after probable cause for the arrest had arisen, and the arrest followed almost immediately thereafter. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Search at place of detention. —

A search of an arrestee remains incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search is nonetheless “incident” to an arrest simply because the search is conducted at the stationhouse and not at the actual scene of the arrest. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

The procedure of searching a suspect at the stationhouse is normally permissible only where the suspect has in fact been validly arrested, and not where the suspect is detained under the “stop and frisk” situation. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Short delay between the time defendant was brought to the stationhouse and the seizure and search of his clothing held reasonable. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Clothing subject to search. —

For cases holding that a suspect’s clothing worn at the time of arrest may be subject to search or laboratory analysis for evidence of the crime for which the arrest was made, see Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Breathalyzer examination as lawful search. —

Offering defendant breathalyzer examination, where there was independent evidence establishing probable cause to charge him with driving while intoxicated, was a lawful search incident to an arrest, and prosecuting him for refusing the test did not violate his fourth amendment rights. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Use of breathalyzer test results. —

In a prosecution for manslaughter, where the defendant objected, on grounds of right to counsel and unreasonable search and seizure, to the use of breathalyzer test results, and where the defendant’s defense was self-defense, the court held that even if there was constitutional error it was harmless error since (1) proof of intoxication is irrelevant to the defense of self-defense, (2) the evidence was not used to impeach the defendant, and (3) there was other ample, uncontested, evidence of intoxication. Nygren v. State, 616 P.2d 20 (Alaska 1980).

Blood alcohol test not more intrusive. —

For due process and search and seizure analysis, a blood test is not viewed as materially more intrusive than a breath test. The search and seizure provisions of the federal and state constitutions are not offended by a statute that allows the police to take a blood sample from an arrested motorist where the motorist has injured or killed another person without requiring the police to seek a breath sample first. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Sobriety tests. —

Because police stopped defendant after receiving reports that defendant was driving erratically and after having witnessed such driving, and because defendant failed a field sobriety test, the police had probable cause to arrest defendant for driving while intoxicated in violation of AS 28.35.030 ; because both the investigatory stop and arrest were lawful under Alaska Const. art. I, § 14, the trial court did not err when it denied defendant’s motion to suppress. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

It was error to deny defendant's motion to suppress search results on grounds the search warrant application showed probable cause to search anyone who might arrive on the premises during the warrant's execution because (1) this was justified only if the application showed good reason to believe anyone arriving during the execution probably participated in criminal activity being investigated and probably carried evidence of that activity, and (2) the application did not flag the "search any person" provision, explain why the provision was requested, show the premises functioned solely to sell and consume drugs, thus giving reason to think anyone present was engaged in illegal activity, estimate how long the search would take, state if the search would occur when innocent visitors might be expected, or try to exclude such visitors. Osborne v. State, 421 P.3d 113 (Alaska Ct. App. 2018).

Search upheld. —

In defendant’s drug case, where a police officer had validly arrested defendant for driving without a valid license, and because the officer had probable cause to believe that defendant was guilty of possession of illicit drugs, the officer properly searched defendant’s person — and, in particular, her wallet — for evidence of possession of illicit drugs as part of the search incident to arrest. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a police officer properly searched defendant’s wallet because it was done with defendant’s consent. When the officer searched defendant’s wallet, defendant had already given the officer consent to search her person for illegal drugs. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a police officer, in conducting a lawful search incident to arrest, properly unfolded and read a piece of paper in defendant’s wallet because, when a person was arrested for drug possession, the papers on their person could contain notations identifying the source of the drugs or identifying the price that was paid for the drugs. Such information would be evidence relating to the crime for which the person was arrested. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a search of defendant was proper where she voluntarily consented, and she did not implicitly withdraw the consent when she stopped taking things out of her pockets and “hesitated” before acceding to the police officer’s request to continue. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

Where business owner complained about drug dealing and described the suspect, officer had probable cause to believe that defendant was selling drugs based on business owner’s information and because officer knew defendant, defendant’s criminal history, and that the area had a reputation for drug activity. Duncan v. State, 178 P.3d 467 (Alaska Ct. App. 2008).

J.Protective Searches

Exception narrowly drawn. —

Although the Alaska supreme court has recognized the protective search exception to the requirement that law-enforcement officers should not conduct searches without a warrant, the exceptions to the warrant requirement should be narrowly drawn. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

The protective search exception to the warrant requirement must be strictly limited to situations where a search is necessary for the protection of the police. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Entry into a residence on the basis of a protective search is allowed only under compelling circumstances. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

Collateral references. —

68 Am.Jur.2d, Searches and Seizures, §§ 1 to 21.

79 C.J.S., Searches and Seizures, §§ 1 et seq..

Validity of consent to search given by one in custody of officers. 9 ALR3d 858.

Traffic violation: lawfulness of search of motor vehicle following arrest for traffic violation. 10 ALR3d 314.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple-occupancy structure. 11 ALR3d 1330.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search. 19 ALR3d 727.

Plea of guilty as waiver of claim of unlawful search and seizure. 20 ALR3d 724.

Admissibility, in criminal case, of evidence obtained by search by private individual. 36 ALR3d 553.

“Fruit of the poisonous tree” doctrine excluding evidence derived from information gained in illegal search. 43 ALR3d 385.

“Furtive” movement or gesture as justifying police search. 45 ALR3d 581.

Censorship and evidentiary use of unconvicted prisoner’s mail. 52 ALR3d 548.

Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner. 57 ALR3d 172.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by domestic employee or servant. 99 ALR3d 1232.

Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure. 10 ALR4th 376.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant’s objection or refusal to submit to test. 14 ALR4th 690.

Use, in attorney or physician disciplinary proceeding, of evidence obtained by wrongful police action. 20 ALR4th 546.

Permissible surveillance, under state communications interception statute, by person other than state or local law enforcement officer or one acting in concert with officer. 24 ALR4th 1208.

Disputation of truth of matters stated in affidavit in support of search warrant — modern cases. 24 ALR4th 1266.

Admissibility in criminal case of evidence that accused refused to take test of intoxication. 26 ALR4th 1112.

Employment of photographic equipment to record presence and nature of items as constituting unreasonable search. 27 ALR4th 532.

Search and seizure: suppression of evidence found in automobile during routine check of vehicle identification number (VIN). 27 ALR4th 549.

Validity of searches conducted as condition of entering public premises — state cases. 28 ALR4th 1250.

Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime. 29 ALR4th 771.

Admissibility, in criminal case, of evidence discovered by warrantless search in connection with fire investigation — post-Tyler cases. 31 ALR4th 194.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 ALR4th 378.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone. 38 ALR4th 1145.

Search and seizure: What constitutes abandonment of personal property within rule that search and seizure of abandoned property is not unreasonbale — modern cases. 40 ALR4th 381.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 ALR4th 60.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 ALR4th 366.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Validity of arrest made in reliance upon uncorrected or outdated warrant list or similar police records. 45 ALR4th 550.

Officer’s ruse to gain entry as affecting admissibility of plain-view evidence — modern cases. 47 ALR4th 425.

Search and seizure: necessity that police obtain warrant before taking possession of, examining, or testing evidence discovered in search by private person. 47 ALR4th 501.

Eavesdropping on extension telephone as invasion of privacy. 49 ALR4th 430.

Propriety of state or local government health officer’s warrantless search — post-Camara cases. 53 ALR4th 1168.

Seizure of books, documents, or other papers under search warrant not describing such items. 54 ALR4th 391.

Search and seizure: reasonable expectation of privacy in public restroom. 74 ALR4th 508.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 ALR4th 536.

Propriety of execution of search warrant at nighttime. 41 ALR5th 171.

Validity of search or seizure of computer, computer disk, or computer peripheral equipment. 84 ALR5th 1.

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 ALR5th 1.

Federal and state constitutions as protecting prison visitor against unreasonable searches and seizures. 85 ALR5th 261.

Constitutionality of secret video surveillance. 91 ALR5th 585.

Expectation of privacy in internet communications. 92 ALR5th 15.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 ALR5th 557.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid. 103 ALR5th 463.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building. 104 ALR5th 165.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure. 105 ALR5th 1.

Odor detectable by unaided person as furnishing probable cause for search warrant. 106 ALR5th 397.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale — state cases. 109 ALR5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale — state cases. 111 ALR5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance — state cases. 112 ALR5th 429.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — state cases. 113 ALR5th 517.

Validity of warrantless search of other than motor vehicle or occupant of vehicle based on odor of marijuana — state cases. 122 ALR5th 439.

Validity of warrantless search of motor vehicle driver based on odor of marijuana — State cases. 123 ALR5th 179.

Validity of search conducted pursuant to parole warrant. 123 ALR5th 221.

Search and seizure: reasonable expectation of privacy in side yards, 69 ALR6th 275.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — pretrial motions — suppression motions where warrant was involved, 72 ALR6th 1.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying homicide and assault offenses, 72 ALR6th 437.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying sexual offenses, 74 ALR6th 69.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure. 92 ALR6th 1

Fourth amendment as protecting prisoner against unreasonable searches or seizures. 32 ALR Fed. 601.

Construction and application of “national security” exception to fourth amendment search warrant requirement. 39 ALR Fed. 646.

Authority of United States officials to conduct inspection or search of American registered vessel located outside territorial waters of United States. 40 ALR Fed. 402.

Admissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative. 49 ALR Fed. 511.

Sufficiency of description of business records under fourth amendment requirement of particularity in federal warrant authorizing search and seizure. 53 ALR Fed. 679.

Validity, under federal constitution, of search conducted as condition of entering public building. 53 ALR Fed. 888.

Aerial observation or surveillance as violative of fourth amendment guaranty against unreasonable search and seizure. 56 ALR Fed. 772.

Defense of good faith in action for damages against law enforcement official under 42 USC 1983, providing for liability of person who, under color of law, subjects another to deprivation of rights. 61 ALR Fed. 7.

Propriety, under 287(a)(1) of Immigration and Nationality Act (8 USCS 1357(a)(1)), of warrantless interrogation of alien, or person believed to be alien, as to alien’s right to be or to remain in United States. 63 ALR Fed. 180.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force. 66 ALR Fed. 119.

Admissibility of evidence obtained by unconstitutional search in proceedings under Occupational Safety and Health Act (29 USCS 651 et seq.). 67 ALR Fed. 724.

When do facts shown as probable cause for wiretap authorization under 18 USC 2518(3) become “stale”. 68 ALR Fed. 953.

Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 69 ALR Fed. 522.

Use of electronic tracking device (beeper) to monitor location of object or substance other than vehicle or aircraft as constituting search violating Fourth Amendment. 70 ALR Fed. 747.

Fourth amendment as prohibiting strip searches of arrestees or pretrial detainees. 78 ALR Fed. 201.

Validity of warrantless search under extended border doctrine. 102 ALR Fed. 269.

Sufficiency of information provided by anonymous informant to provide probable cause for federal search warrant — cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (U.S. 1983). 178 ALR Fed. 487.

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (U.S. 1970), limited, Dunlop v. Hertzler Enterprises, Inc., 418 F. Supp. 627 (D.N.M. 1976), limited, United States v. Device, Labeled "Theramatic", 641 F.2d 1289 (9th Cir. Haw. 1981). 182 ALR Fed. 467.

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale. 187 ALR Fed. 415.

Validity of warrantless search of motor vehicle based on odor of marijuana — Federal cases. 188 ALR Fed. 487.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was indication that informant provided reliable information to police in past — Cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 1983 U.S. LEXIS 54 (U.S. 1983). 196 ALR Fed. 1.