Brookshire v. State

Full title: BENJAMIN BROOKSHIRE, Appellant, v. STATE OF ALASKA, Appellee

Court: Court of Appeals of Alaska

Date published: Aug 15, 2007

Court of Appeals No. A-9193 (Alaska Ct. App. Aug. 15, 2007)

Opinion

Court of Appeals No. A-9193.

August 15, 2007.

Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge., Trial Court No. 3KN-04-42 CR.

Appearances: Daniel L. Aaronson, Kenai, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

In State v. Crocker,¹ "we held that a magistrate should not issue a warrant to search someone's home for evidence of marijuana possession unless the search warrant application establishes probable cause to believe that the marijuana possession falls outside the scope of protected personal use recognized by the Alaska Supreme Court in Ravin v. State, 537 P.2d 494 (Alaska 1975). . . ."² In Garhart v. State,³ we held that Crocker does not apply retroactively to search warrants issued before we decided Crocker.⁴

1 97 P.3d 93 (Alaska App. 2004).

2 Garhart v. State, 147 P.3d 746, 747 (Alaska App. 2006) (citing Crocker, 97 P.3d at 97-98).

3 147 P.3d 746 (Alaska App. 2006).

4 Id. at 747.

Benjamin Brookshire was convicted of three counts of misconduct involving a controlled substance in the fourth degree.⁵ Brookshire appeals his conviction, arguing that Superior Court Judge Harold M. Brown erred in denying his motion to suppress. In his motion to suppress, Brookshire argued that the warrant the police used to search his residence was defective under Crocker, because the police did not establish probable cause that the marijuana he possessed fell outside the possession allowed by Ravin. Judge Brown denied the motion to suppress on the ground that Crocker did not apply retroactively.

5 AS 11.71.040(a).

Brookshire appeals this decision. While Brookshire's appeal was pending, we decided Garhart, holding that Crocker does not apply retroactively to search warrants issued before Crocker.⁶ Since it is uncontested that the magistrate issued the search warrant in Brookshire's case before Crocker, Judge Brown did not err in concluding that Crocker did not require suppression of the evidence. We accordingly affirm Brookshire's convictions.

6 Garhart, 147 P.3d at 747.

AFFIRMED.