NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska
Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court
of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum
decision may not be cited as binding precedent for any proposition of law.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CARMEN WEST, )
) Court of Appeals No. A-8488
Appellan t, ) Trial Court No. 4FA-02-1953 CR
)
v. ) MEMORANDUM OPINION
)
STATE OF ALASKA, ) AND JUDGMENT
)
Appellee. ) [No. 4912 - August 18, 2004]
)
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant Public Defende r,
Fairbanks, and Barbara K . Brink, Pub lic Defender, Anchorage,
for Appellant. John A. Scukanec, Assistant A ttorney Gene ral,
Office of Special Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, A ttorney G eneral, Juneau, for Ap pellee.
Before: Coats, Ch ief Judge, and Mannheimer and Stew art,
Judges.
COATS, Chief Judge.
A state trooper, investigating an anonymous tip that Carmen West was growing marijuana in her home, contacted
West at her residence. When West opened
the door of her home, the trooper smelled the odor of growing marijuana and heard voices in the residence. The
trooper entered and secured the residence to prevent the destruction
1
722 P.2d 943 (Alaska 1986).
– 2 – 4912
of evidence and, in the process, observed the growing marijuana. The
trooper applied for a search warrant without informing the magistrate that he had entered the residence
and observed the marijuana. The magistrate issued the warrant and the troopers searched the residence. As a
result, West was charged with possession of marijuana and three counts of contributing to the delinquency of a minor. West
moved to suppress. Superior Court Judge Mary E. Greene found that the trooper could properly enter West’s home to prevent
the destruction of evidence and that, even if the trooper’s entry was arguably unlawful, the warrant was untainted by
the entry because the warrant was obtained completely independently of any illegal conduct. She also found that the trooper
was at most negligent in failing to inform the magistrate of his earlier entry and observations and therefore the omission
did not provide any basis to invalidate the warrant under the rule announced in
State v. Malkin.1 West appeals this decision. We affirm.
Factual and procedural background
On April 8, 2002, the Statewide Drug Enforcement Unit in Fairbanks
received an anonymous tip that Carmen West was operating a marijuana grow in the
basement of her home, and that she was using plug-in deodorizers to mask the smell of
growing marijuana. Later, Alaska State Trooper Lawrence Erickson drove by West’s
home. He observed heavy condensation on several of the main floor windows.
On May 2, 2002, Trooper Erickson, accompanied by Drug Enforcement
Agency Special Agent Cary Freeman, went to West’s home to investigate. Trooper
Erickson recorded the contact. Trooper Erickson smelled the strong odor of growing
marijuana when West opened her front door in response to his knock.
– 3 – 4912
When West answered the door, she was holding her two-year-old child in
her arms. Trooper Erickson identified himself and informed West that he w as there in
response to a report that she was growing marijuana. He then told West that he could
smell the odor of growing marijuana coming from the open doorway. West claimed that
the odor must be the result of the fact that she had just cleaned the house with Lysol, and
that her mother-in-law may have been smoking marijuana in the house earlier in the day.
Trooper Erickson told West that he could tell that the strong odor was from growing
marijuana, not smoked marijuana, and asked if she would allow them to come in to
dismantle the grow. West refused and stepped out onto the porch, shutting the door behind
her.
Trooper Erickson then informed West that he was going to apply for a search
warrant and asked if anyone else was in the house. West told Trooper Erickson that only
she and her child were at home. Trooper Erickson told West he could hear voices coming
from within the house. West responded that no one was inside and that he must be hearing
her child’s “Barney” videotape playing inside.
Trooper Erickson told West that he did not trust her and that he needed to
investigate the voices he heard in order to secure the residence until he could acquire the
warrant. West repeatedly stated that there was no one in the house and that the voices
were from the “Barney” video. Trooper Erickson informed West that if she did not open
the door for him, he would kick it in.
West agreed to let the officers into her house by way of the garage. Trooper
Erickson then walked throughout the house calling out “state troopers”. Trooper Erickson
then saw the marijuana grow in the basement, and, having confirmed that no one else was
in the house, left West outside w ith another trooper while he went to apply for a search
warrant.
2
AS 11.71.040(a)(3)(F).
3
AS 11.51.130(a).
– 4 – 4912
Later that day, Trooper Erickson obtained a warrant to search West’s home
for a marijuana grow. Trooper Erickson did not state in his affidavit, nor verbally inform
the issuing magistrate (Superior Court Judge Richard D. Savell), that he had searched
West’s house prior to applying for the warrant. The affidavit provided in pertinent part:
Your affiant informed Carmen West that, due to the strong
odor emitting from her house, he had probable cause to believe
that she was growing marijuana in her residence and he was
going to secure her house and apply for a search warrant.
Your affiant departed the residence leaving [Special Agent
Freeman and another agent] at the residence with Carmen
West.
The trooper testified that it was his understanding that he could not put anything that he
observed while securing a residence into a search warrant affidavit. He indicated that he
had followed this procedure in the past. He stated that he had no intent to mislead Judge
Savell.
A grand jury indicted West with one count of fourth-degree misconduct
involving a controlled substance
2 for
possession of one pound or more of marijuana. The
State charged West by information with three counts of contributing to the delinquency
of a minor
3 for allowing her children
to be present where marijuana was being grown.
West moved to suppress the evidence obtained during the police search of her house.
Judge Greene conducted an evidentiary hearing at which Trooper Erickson testified to
the circumstances of the search. He also testified about why he had not told Judge Savell
that he had entered West’s residence before obtaining the warrant.
West argued that Trooper Erickson’s initial entry into her home before he
obtained a warrant was unlawful. She also argued that because Trooper Erickson had
4
See Malkin, 722 P.2d at 946.
5
584 P.2d 1141 (Alaska 1978).
6
Id. at 1143.
– 5 – 4912
not informed Judge Savell that he had previously entered the house, the warrant was
tainted by what West characterized as an intentional omission for purposes of the
Malkin
rule.
4
Following the evidentiary hearing, Judge Greene concluded that, although
it was a “close question,” Trooper Erickson’s initial warrantless entry was valid as a matter
of federal law based on his need to prevent the destruction of evidence while acquiring
a search warrant. But she also concluded that, even if Trooper Erickson’s initial entry
was unlawful, the warrant had an independent source because the trooper had probable
cause before he entered the house and his entry did not affect the decision to obtain the
warrant. Finally, Judge Greene found that Trooper Erickson’s failure to inform Judge
Savell that he had previously entered the residence was at most a negligent omission and
therefore did not provide any basis to invalidate the warrant under
Malkin. West appeals
this decision.
Application of the independent source doctrine
This case is controlled by
Cruse v. State.5 In Cruse, the troopers arrested
Cruse, along with some other suspects, for robbery.
6 After the police had placed the
suspects on the ground and away from the car, a state trooper, following standard trooper
policy, opened the trunk of the car to inventory the contents. An Anchorage police
sergeant arrived at the scene, observed the trooper opening the trunk, and observed
evidence, including a brown bag and a long-barrel revolver in the trunk. The sergeant
advised the trooper that the Anchorage Police Department would take charge of the case.
7
Id.
8
Id. at 1144.
9
Id. at 1145.
10
Id. at 1144-46.
11
Id. at 1145-46.
12
Id. at 1146 n.13.
13
Id.
– 6 – 4912
He closed the trunk and obtained a warrant. The sergeant, following the advice of an
assistant district attorney, concluded that there was sufficient probable cause to obtain
a warrant without mentioning the prior search of the trunk. The sergeant therefore did
not mention that the trooper had opened the trunk and that he had observed the contents
of the trunk when he applied for the warrant. A magistrate issued the warrant and the
police searched the car under the authority of the warrant.
7
Cruse moved to suppress the evidence.
8 The supreme court concluded that,
even if the original search of the trunk by the police was illegal, the later search under
the authority of the warrant was not tainted by the earlier search.
9
The supreme court
pointed out that the warrant was supported by probable cause and that all of the
information which the police presented to obtain the warrant was unconnected to the
earlier search.
10 Furthermore,
the earlier search had not influenced the police decision
to obtain the warrant or influence the scope of the search, which the police conducted
pursuant to the warrant.
11
The supreme court pointed out that its use of the independent source doctrine
did not offend judicial integrity by involving the courts in “the use of the fruits of illegal
conduct.”
12 The court pointed
out that the inventory search which the trooper conducted
would have been permissible under the federal constitution.
13 The supreme court therefore
14
See generally, ABA Standards Relating to Prosecution Functions §§ 2.8(a) and 3.1(b)
(Approved Draft 1971);
Roberts v. State,
458 P.2d 340, 345 (Alaska 1969).
15
Cruse, 584 P.2d at 1146.
– 7 – 4912
appears to have indicated that, while there might be limits to the application of the
independent source doctrine, the independent source doctrine would certainly apply in
cases in which the purported illegality was not egregious.
In the present case, Judge Greene found that Trooper Erickson’s first entry
into West’s house was supported by the existence of probable cause and by exigent
circumstances to prevent the destruction of evidence. But Judge Greene concluded that
even if Trooper Erickson’s initial entry had been unlawful, the police obtained the warrant
completely independently from the purported illegality. The police decision to seek the
warrant, and the probable cause for the warrant, were independent of anything Trooper
Erickson learned in entering and securing West’s residence. Judge Greene’s findings are
supported by the record and are consistent with how the supreme court applied the
independent source doctrine in
Cruse.
Trooper Erickson’s failure to disclose his earlier entry
In dealing with the issue of Erickson’s failure to disclose his earlier entry,
we return to
Cruse.
In Cruse, the supreme court disapproved
of the State’s strategy of
failing to inform the magistrate about the earlier search:
We believe 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. Police and prosecutors owe a duty of candor to the
court,
14 particularly in light
of the ex parte nature of these
proceedings, and must not withhold information which may
taint the source of the probable cause they put forth.
[15]
16
Id.
– 8 – 4912
Although the court stated that the appropriate procedure was to inform the
magistrate of all relevant facts surrounding the search, the court went on to state that before
concealment of this information would invalidate a warrant, it would have to find “that
the information would have materially influenced the district court judge to issue a warrant
he would have otherwise denied.”
16 Judge Greene clearly concluded that Judge Savell’s
decision to issue the warrant was not influenced by Trooper Erickson’s omission. She
further found that Trooper Erickson’s failure to include this information in the warrant
was, at the most, negligent; it was not done with intent to mislead the magistrate. This
finding is supported by the record and is not clearly erroneous.
Conclusion
We conclude that Judge Greene did not err in determining that, even if
Trooper Erickson’s earlier entry into West’s home was illegal, the warrant which the police
obtained was completely independent of the illegality. We also conclude that Judge Greene
did not err in finding that Trooper Erickson’s failure to disclose his earlier entry into West’s
home in his affidavit was at most negligent. We therefore uphold her decision denying
West’s motion to suppress.
AFFIRMED.
