Opinion
Court of Appeals No. A-12248 No. 6722
10-31-2018
TODD M. BERGERON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Rex Lamont Butler, Rex Lamont Butler & Associates, P.C., Anchorage, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law. Trial Court No. 3PA-11-3487 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory L. Heath, Judge. Appearances: Rex Lamont Butler, Rex Lamont Butler & Associates, P.C., Anchorage, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
After receiving a tip that two fugitives might be found at a house occupied by Todd M. Bergeron in Wasilla, two Alaska State Troopers — Trooper Kevin Vik and Trooper John Gresham — drove to Bergeron's residence to investigate. Although the troopers had arrest warrants for the fugitives, these arrest warrants did not authorize the troopers to demand entry into a third party's house to search for the fugitives — and the troopers did not have a separate warrant to enter and search Bergeron's residence for the fugitives.
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed. 2d 38 (1981).
After the troopers arrived at Bergeron's house, they asked him to open the door to them, but Bergeron refused. The troopers then demanded that Bergeron open the door. Bergeron initially responded by retreating further into his house, out of sight of the troopers, but he eventually returned and complied with the troopers' demand to open the door.
When Bergeron opened his door, the troopers smelled "fresh" or growing marijuana. After questioning the occupants of the house, the troopers applied for and obtained a warrant to search the house for evidence of marijuana cultivation. During the ensuing search of the house, the troopers found approximately 40 marijuana plants, a box of individually packaged 4-ounce marijuana bags, and small amounts of hashish. Bergeron was charged with third- and fourth-degree misconduct involving a controlled substance.
Former AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), and (a)(5) (pre-2016 version), and former AS 11.71.030(a)(1) (pre-2016 version) respectively.
Bergeron moved to suppress the evidence found in his house, but the superior court upheld the search of the house. Following a court trial, Bergeron was convicted of controlled substance misconduct. He now appeals, arguing that the trial court erred in denying his motion to suppress the evidence.
As we explain in this opinion, we conclude that the troopers violated Bergeron's right to refuse a warrantless entry into his home when the troopers demanded that Bergeron open his door to them. We accordingly reverse Bergeron's convictions.
Why we conclude that the evidence against Bergeron must be suppressed
On appeal, the State argues that the troopers were entitled to demand that Bergeron open his door and speak with them as part of their "routine" investigation into the whereabouts of the two fugitives that they were seeking to arrest. The State reasons that, because the troopers were present at Bergeron's house for a legitimate purpose when Bergeron opened the front door, the troopers did not violate Bergeron's rights when they smelled marijuana within the house.
But the State fails to take into account the constitutional limitations that apply when police knock on a citizen's door. When the police knock on the door of a private home to speak with the occupant — an interaction known colloquially as a "knock and talk" — the occupant may decline to open the door. As the United States Supreme Court held in Kentucky v. King, when police officers knock on a door,
See Kelley v. State, 347 P.3d 1012, 1016 (Alaska App. 2015).
the occupant has no obligation to open the door or to speak. ... And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.Thus, even though the police can knock on a citizen's door and request an audience, they are not entitled to demand an audience. "At the [Fourth] Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" In the instant case, when Bergeron turned away from his closed door and walked toward the back of his house, he was exercising his right to be left alone in his own home.
Kentucky v. King, 563 U.S. 452, 469-70 (2011).
Florida v. Jardines, 569 U.S. 1, 6; 133 S.Ct. 1409, 1414; 185 L.Ed. 2d 495 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511; 81 S.Ct. 679, 5 L.Ed. 2d 734 (1961)).
The fact that the troopers were attempting to execute an arrest warrant directed at third parties did not diminish Bergeron's right to refuse them an audience. In Steagald v. United States, the Supreme Court held that the police need a separate search warrant before they can enter the house of a third party to execute an arrest warrant. Trooper Vik had no search warrant for Bergeron's house when he commanded Bergeron to open his door.
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed. 2d 38 (1981).
Trooper Vik did not cross the threshold of Bergeron's house. But as demonstrated by the Ninth Circuit's en banc decision in United States v. Winsor, when a police officer illegally commands an occupant of a house to open their door, the officer engages in an illegal search when he perceives evidence across the threshold. In Winsor, the police entered a hotel looking for a suspect, knocked on a hotel room door, and illegally ordered the suspect to open the door to his room. When the suspect complied, the police — who were still standing in the hallway — were able to see contraband inside the hotel room. The Ninth Circuit held that, when the police unlawfully compelled the occupant to open his door and expose the contents of the room to the officers' view, the police conducted an illegal warrantless search:
United States v. Winsor, 846 F.2d 1569, 1572-74 (9th Cir. 1988) (en banc).
We agree with Winsor that ... "the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a
physical intrusion into any given enclosure." To draw a distinction based upon whether there had been a physical entry into the premises would enable police officers to evade the reach of the Fourth Amendment simply by forcing a door open and visually examining the interior without crossing the threshold. That the officers gained visual access to the interior of a dwelling without physically entering it is irrelevant to the question whether a search was effected.
Winsor at 1572; see also United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008) abrogated on other grounds by Kentucky v. King, 563 U.S. 452 (2011); United States v. Poe, 462 F.3d 997 (8th Cir. 2006); United States v. Conner, 127 F.3d 663 (8th Cir. 1997); Bailey v. Newland, 263 F.3d 1022 (9th Cir. 2001).
We agree with the Ninth Circuit's reasoning in Winsor. Here, the troopers unlawfully ordered Bergeron to open his door. As a consequence, the troopers gained access to the smell of marijuana within Bergeron's house — a smell that they could not perceive while standing outside the closed door. We see no principled reason to distinguish between (1) an illegal police command that leads a person to perform an action that makes a physical object visible to the police, and (2) an illegal police command that leads a person to perform an action that makes an odor perceptible to the police by smell.
Cf. Horton v. California, 496 U.S. 128, 136; 110 S.Ct. 2301, 2308; 110 L.Ed.2d 112 (1990) (holding that the plain view exception to the warrant requirement applies only if the police did not violate the Fourth Amendment when they obtained their vantage point where the evidence could be plainly viewed); State v. Kosman, 892 P.2d 207, 210 (Ariz. App. 1995) (applying Horton in a plain smell context); Ferrer v. State, 113 So.3d 860 (Fla. App. 2012) (holding that because the police had only been granted permission to come inside an outer gate, their smell of marijuana at the rear of the dwelling was an illegal search). --------
Because all of the evidence in this case derived from the fact that the troopers illegally commanded Bergeron to open his front door, the superior court should have granted Bergeron's suppression motion.
Conclusion
We REVERSE the judgment of the superior court.