warrant requirement in Alaska

1982The emergency aid doctrine has been uniformly recognized as an exception to the warrant requirement. 5 Perhaps the most commonly cited statement of the doctrine is found in United States v. Barone, 330 F.2d 543, 545 (2nd Cir. 1964), cert. denied 377 U.S. 1004 , 84 S.Ct. 1940 , 12 L.Ed.2d 1053 (1964), where the court said: The right of the 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. 6 *842 The emergency aid doctrine has been given exp

1979The propped-open theatre door may be of some significance in judging the owner's and occupants' subjective expectation of privacy. [8] Nevertheless, even under a general reasonableness analysis, any intrusion by police must be reasonable in light of other less-intrusive alternatives. [9] WARRANT-THEORY ANALYSIS As we have stated in the past, the "polar star" in the field of search and seizure is that a warrantless search is "per se unreasonable" unless it falls within one of the defined exceptions to the warrant requirement. [10] In Schraff v. State, 544 P.2d 834 , *248 840-41 (Alaska 1975), w

2021But we agree with other courts that have held that, given the coercive circumstances of a traffic stop and the fact that the driver is otherwise required to provide a driver’s license and other documents, a reasonable passenger would not feel free to refuse an officer’s request for identification during a routine traffic stop.55 When the State relies on the consent exception to the warrant requirement, the State has the burden to prove both that the defendant actually consented and that this consent was voluntary — i.e., unequivocal, specific, and intelligently given, and uncontaminated by dur

1992As the Alaska Supreme Court made clear in Erickson v. State, 507 P.2d 508, 512 (Alaska 1973), even "abundant probable cause" does not negate the warrant requirement.

1978The court indicated that the warrant requirement of the fourth amendment had no fixed locational limitations: "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." 389 U.S. at 359 , 88 S.Ct. at 515 , 19 L.Ed.2d at 586 .

1978The court indicated that the warrant requirement of the fourth amendment had no fixed locational limitations: "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." 389 U.S. at 359 , 88 S.Ct. at 515 , 19 L.Ed.2d at 586 .

1991Specifically, the warrant requirement operates “to check the ‘well-intentioned but mistakenly over-zealous executive officers’ who are a part of any system of law enforcement.” Coolidge v. New Hampshire, 403 U.S. 443, 481 , 91 S.Ct. 2022, 2046 , 29 L.Ed.2d 564 (1971) (quoting Gouled v. United States, 255 U.S. 298, 304 , 41 S.Ct. 261, 263 , 65 L.Ed. 647 (1921)).

1991Specifically, the warrant requirement operates “to check the ‘well-intentioned but mistakenly over-zealous executive officers’ who are a part of any system of law enforcement.” Coolidge v. New Hampshire, 403 U.S. 443, 481 , 91 S.Ct. 2022, 2046 , 29 L.Ed.2d 564 (1971) (quoting Gouled v. United States, 255 U.S. 298, 304 , 41 S.Ct. 261, 263 , 65 L.Ed. 647 (1921)).

1980In the case at bar, this court must decide whether the purse is within the scope of the narrowly drawn exception to the warrant requirement set forth in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), for a search of the arrestee's person and the area within the arrestee's immediate control.

1980In the case at bar, this court must decide whether the purse is within the scope of the narrowly drawn exception to the warrant requirement set forth in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), for a search of the arrestee's person and the area within the arrestee's immediate control.

1980Thus, there is less danger that this exception to the warrant requirement will become unrestrained. 491 P.2d at 133-4 (footnotes omitted).

1980Thus, there is less danger that this exception to the warrant requirement will become unrestrained. 491 P.2d at 133-4 (footnotes omitted).

1993As in all situations involving exceptions to the warrant requirement, the standard is not one of certainty but of probable cause: “[T]he 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.” Id. at 844 (quoting Patrick v. Delaware, 227 A.2d 486, 489 (Del.1967)).

1985Warrantless searches and seizures are per se unreasonable unless they fall within a “few specifically established and well-delineated exceptions” to the warrant requirement of the United States and Alaska constitutions. 2 See, e.g., Lupro v. State, 603 P.2d 468, 476 (Alaska 1979); Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App.1982).

1990“To show such reasonable cause to search, the state should ‘demonstrate a factual basis for a reasonable belief that additional suspects [beyond those under police control] were present and posed a threat to the safety’ of the officers,” Id. (quoting State v. Spietz, 531 P.2d 521, 525 (Alaska 1975)). 3 The state must prove by a preponderance of the evidence that the exception to the warrant requirement existed.

1990Spietz, 531 P.2d at 525 ; Mattern v. State, 500 P.2d 228 , 231 n. 7 (Alaska 1972).

1990Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967); Deal v. State, 626 P.2d 1073, 1078 (Alaska 1980).

1990Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967); Deal v. State, 626 P.2d 1073, 1078 (Alaska 1980).

2001Plaintiffs rely on Woods & Rohde, Inc. v. State, Dept. of Labor, 565 P.2d 138 (Alaska 1977), in which the court struck down warrantless OSHA searches as violative of the warrant requirement of Article I, Section 14.

2001See Appendix A at 15. [57] See id. [58] Cf. State v. Myers, 601 P.2d 239, 241 (Alaska 1979) (stating that "a warrantless search will be considered per se unreasonable unless it falls within a previously recognized exception to the warrant requirement"). [59] See Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 , 151-52 & n. 69 (Alaska 1977) (relaxing probable cause requirement for administrative searches of commercial premises under state workplace safety statutes and recognizing that warrant requirements would also be relaxed in context of heavily regulated activity, but declining t

2022The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution prohibit unreasonable searches and seizures, including searches and seizures inside a home.2 “Under the Alaska Constitution, ‘a search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement.’”3 The State bears the burden 2 See, e.g., Kelley v. State, 347 P.3d 1012, 1013 (Alaska App. 2015). 3 State v. Gibson, 267 P.3d 645, 650-51 (Alaska 2012) (quoting Schultz v. State, 593 P.2d 640, 642 (Alaska 1979)). –4–

1979We have repeatedly confirmed out commitment to the principle that a warrantless search will be considered per se unreasonable unless it falls within a previously recognized exception to the warrant requirement, see, e.g., Schultz v. State, 593 P.2d 640, 642 (Alaska 1979), and, despite the state's contentions to the contrary, we are not persuaded that a security check of business premises falls within any of the previously enumerated categories. [4] However, *242 the search in question is of a kind that has rarely been challenged in the courts, and when challenged, has been found constitutional

2022For a search to fall within the probation search exception to the warrant requirement, the search must be directed by a probation officer.6 When a search is permitted solely at the authorization of a specific 4 Jarnig v. State, 309 P.3d 1270, 1274 (Alaska App. 2013). 5 Chandler v. State, 487 P.3d 616, 625 (Alaska App. 2021) (quoting Milton v. State, 879 P.2d 1031, 1034 (Alaska App. 1994)). 6 See, e.g., Chandler, 487 P.3d at 625 ; Milton, 879 P.2d at 1034 . –5– 2726 entity (often a judge, but here, a probation officer), we may only consider — when evaluating the validity of the authorization —

2022For a search to fall within the probation search exception to the warrant requirement, the search must be directed by a probation officer.6 When a search is permitted solely at the authorization of a specific 4 Jarnig v. State, 309 P.3d 1270, 1274 (Alaska App. 2013). 5 Chandler v. State, 487 P.3d 616, 625 (Alaska App. 2021) (quoting Milton v. State, 879 P.2d 1031, 1034 (Alaska App. 1994)). 6 See, e.g., Chandler, 487 P.3d at 625 ; Milton, 879 P.2d at 1034 . –5– 2726 entity (often a judge, but here, a probation officer), we may only consider — when evaluating the validity of the authorization —

1996See, e.g., Milton v. State, 879 P.2d 1031, 1034 (Alaska App.1994) (“[A] warrantless entry by police into a person’s house is per se unreasonable and violative of the state and federal constitutions unless it falls within one of the limited exceptions to the warrant requirement.” (citing Harrison v. State, 860 P.2d 1280, 1283 (Alaska App.1993))).

1995“A warrantless ... [search] is per se unreasonable and violative of the state and federal constitutions unless it falls within one of the limited exceptions to the warrant requirement.” Harrison v. State, 860 P.2d 1280, 1283 (Alaska App.1993) (citations omitted); see also Woods & Rohde, Inc. v. State Dep’t of Labor, 565 P.2d 138, 149 (Alaska 1977).

1982Stevens v. State, 443 P.2d 600, 602 (Alaska 1968). 7 A concise summary of the elements necessary to justify a warrantless entry under the emergency aid doctrine was recently set forth in People v. Mitchell, 39 N.Y.2d 173 , 383 N.Y.S.2d 246 , 347 N.E.2d 607, 609 (N.Y.1976), cert. denied 426 U.S. 953 , 96 S.Ct. 3178 , 49 L.Ed.2d 1191 (1976); there, the New York Court of Appeals identified three separate requirements: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The

1979See Schraff v. State, 544 P.2d 834, 841 (Alaska 1975); Stevens v. State, 443 P.2d 600, 602 (Alaska 1968).

1993Ray relies on language from Reeves v. State, 599 P.2d 727, 735 (Alaska 1979), where the supreme court, speaking generally of the recognized exceptions to the warrant requirement, stated that “a search conducted pursuant to such an exception must be no broader or more intrusive than necessary to fairly effect the government purpose which serves as its justification.” This language from Reeves , while it is addressed to warrantless searches, applies equally to searches authorized by warrant: no governmental intrusion on the privacy of citizens should be broader or more intrusive than necessary t

1992Reeves, 599 P.2d at 743 . [2] In Texas v. Brown , three Justices of the Supreme Court addressed the question of when the police could search a container under the plain view exception to the warrant requirement. 460 U.S. at 747-51 , 103 S.Ct. at 1546-48 .

1979This court had not previously decided, or even discussed, whether a warrant requirement applied to participant monitoring, but most federal and state decisions, including the plurality decision by the United States Supreme Court in United States v. White, 401 U.S. 745 , 91 S.Ct. 1122 , 28 L.Ed.2d 453 , rehearing denied, 402 U.S. 990 , 91 S.Ct. 1643 , 29 L.Ed.2d 156 (1971), had not imposed such a requirement. [2] Defendants point to law review articles discussing the increasing independence of state courts, and past decisions of this court interpreting our state constitutional guarantees, speci

1979This court had not previously decided, or even discussed, whether a warrant requirement applied to participant monitoring, but most federal and state decisions, including the plurality decision by the United States Supreme Court in United States v. White, 401 U.S. 745 , 91 S.Ct. 1122 , 28 L.Ed.2d 453 , rehearing denied, 402 U.S. 990 , 91 S.Ct. 1643 , 29 L.Ed.2d 156 (1971), had not imposed such a requirement. [2] Defendants point to law review articles discussing the increasing independence of state courts, and past decisions of this court interpreting our state constitutional guarantees, speci

1984As stated in Keller v. State, 543 P.2d 1211, 1219 (Alaska 1975): The purpose of the warrant requirement is to prevent the police from hasty, ill-advised, or unreasonable actions in “the often competitive enterprise of ferreting out crime.” The law allows the police to infringe upon a person’s fundamental right to be free from search and seizure only when such infringement is reasonable. [Footnote omitted; emphasis added.] This reasonableness standard implies to us, as it did to the California court in Theodor , that the state should be required to act in a reasonable, i.e., non-negligent, mann

1983The following language is from Keller v. State, 543 P.2d 1211, 1219 (Alaska 1975): The purpose of the warrant requirement is to prevent the police from hasty, ill-advised, or unreasonable actions in “the often competitive enterprise of ferreting out crime.” The law allows the police to infringe upon a person’s fundamental right to be free from search and seizure only when such infringement is reasonable.

1981Appellants contend that this search does not fall under any exceptions to the warrant requirement; the state contends that it was permissible as a weapons search under Terry v. Ohio, 392 U.S. 1, 27 , 88 S.Ct. 1868, 1883 , 20 L.Ed.2d 889, 909 (1968).

1981Appellants contend that this search does not fall under any exceptions to the warrant requirement; the state contends that it was permissible as a weapons search under Terry v. Ohio, 392 U.S. 1, 27 , 88 S.Ct. 1868, 1883 , 20 L.Ed.2d 889, 909 (1968).

2021But we agree with other courts that have held that, given the coercive circumstances of a traffic stop and the fact that the driver is otherwise required to provide a driver’s license and other documents, a reasonable passenger would not feel free to refuse an officer’s request for identification during a routine traffic stop.55 When the State relies on the consent exception to the warrant requirement, the State has the burden to prove both that the defendant actually consented and that this consent was voluntary — i.e., unequivocal, specific, and intelligently given, and uncontaminated by dur

2021In particular, Gosuk argues that the 20 Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979); Schaffer v. State, 988 P.2d 610, 613 (Alaska App. 1999) (citing Erickson v. State, 507 P.2d 508, 515 (Alaska 1973)). 21 See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (holding that a State’s burden to prove voluntary consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”); United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982) (emphasizing that “acquiescence cannot . . . substitute for free consent” and acknowledging the potential “implicit threats

2021But we agree with other courts that have held that, given the coercive circumstances of a traffic stop and the fact that the driver is otherwise required to provide a driver’s license and other documents, a reasonable passenger would not feel free to refuse an officer’s request for identification during a routine traffic stop.55 When the State relies on the consent exception to the warrant requirement, the State has the burden to prove both that the defendant actually consented and that this consent was voluntary — i.e., unequivocal, specific, and intelligently given, and uncontaminated by dur

2021In particular, Gosuk argues that the 20 Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979); Schaffer v. State, 988 P.2d 610, 613 (Alaska App. 1999) (citing Erickson v. State, 507 P.2d 508, 515 (Alaska 1973)). 21 See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (holding that a State’s burden to prove voluntary consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”); United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982) (emphasizing that “acquiescence cannot . . . substitute for free consent” and acknowledging the potential “implicit threats

2021But we agree with other courts that have held that, given the coercive circumstances of a traffic stop and the fact that the driver is otherwise required to provide a driver’s license and other documents, a reasonable passenger would not feel free to refuse an officer’s request for identification during a routine traffic stop.55 When the State relies on the consent exception to the warrant requirement, the State has the burden to prove both that the defendant actually consented and that this consent was voluntary — i.e., unequivocal, specific, and intelligently given, and uncontaminated by dur

2021In particular, Gosuk argues that the 20 Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979); Schaffer v. State, 988 P.2d 610, 613 (Alaska App. 1999) (citing Erickson v. State, 507 P.2d 508, 515 (Alaska 1973)). 21 See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (holding that a State’s burden to prove voluntary consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”); United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982) (emphasizing that “acquiescence cannot . . . substitute for free consent” and acknowledging the potential “implicit threats

2021But when the police have probable cause and there is an exception to the warrant requirement that permits searching the item, the police can normally retain the property (without a warrant) for as long as is reasonably needed for their criminal investigation. 9 7 See Moore, 372 P.3d at 926–27; United States v. Mitchell, 565 F.3d 1347 , 1350–51 (11th Cir. 2009); People v. Link, 32 Cal.Rptr.2d 149, 153 (Cal. App. 1994); United States v. Dass, 849 F.2d 414 , 415–16 (9th Cir. 1988). 8 See Frink v. State, 597 P.2d 154, 167 (Alaska 1979); Sleziak v. State, 454 P.2d 252 , 257–58 (Alaska 1969). 9 Unit

2021We therefore re-affirm our earlier statement that, when a police seizure of property falls within an exception to the warrant requirement, the police do not need to obtain a warrant to authorize their continued retention of the property for the purpose of searching it. 21 20 Id. at 633–34. 21 See Sleziak v. State, 459 P.2d 252 , 257–58 (Alaska 1969); see also Frink v. State, 597 P.2d 154, 167 (Alaska 1979). – 15 – 2701 Thus, when we evaluate Chandler’s claim that the authorities unlawfully retained possession of his computer devices for four months before they secured a search warrant, the fir

2021But we agree with other courts that have held that, given the coercive circumstances of a traffic stop and the fact that the driver is otherwise required to provide a driver’s license and other documents, a reasonable passenger would not feel free to refuse an officer’s request for identification during a routine traffic stop.55 When the State relies on the consent exception to the warrant requirement, the State has the burden to prove both that the defendant actually consented and that this consent was voluntary — i.e., unequivocal, specific, and intelligently given, and uncontaminated by dur

2021But we agree with other courts that have held that, given the coercive circumstances of a traffic stop and the fact that the driver is otherwise required to provide a driver’s license and other documents, a reasonable passenger would not feel free to refuse an officer’s request for identification during a routine traffic stop.55 When the State relies on the consent exception to the warrant requirement, the State has the burden to prove both that the defendant actually consented and that this consent was voluntary — i.e., unequivocal, specific, and intelligently given, and uncontaminated by dur

2009See, e.g., People v. Ritchie, 130 Cal.App.3d 455 , 181 Cal.Rptr. 773, 774 (1982) (noting in dicta that. the dissipation of blood alcohol evidence over time is a "special factor" that "triggers ... warrantless intrusion into the body"); State v. Entrekin, 98 Hawai'i 221 , 47 P.3d 336, 348 (2002) (stating that exigent circumstances were "clearly present" because alcohol dissipates from bloodstream); State v. Woolery, 116 Idaho 368 , 775 P.2d 1210, 1212 (1989) (stating that dissipation of alcohol in blood creates an "inherent exigency which justifies [a] warrantless search"); DeVaney v. State, 25

2004Authorities in addition to those set out in footnote 44 of the opinion of the court indicating that alcohol creates a per se exigency include: State v. Cocio, 147 Ariz. 277 , 709 P.2d 1336, 1345 (1985) (evanescent nature of alcohol in defendant's ■ blood stream is exigent circumstance since alcohol in a suspect's blood is certain to disappear); People v. Ritchie, 130 Cal.App.3d 455, 458 , 181 Cal.Rptr. 773 (Cal.App.1982) (“In intoxication by alcohol, the special factor that the percentage of alcohol in the blood begins to diminish shortly after its consumption triggers the warrantless intrusio