Opinion
Court of Appeals No. A-9731.
November 14, 2007.
Petition for Review from the District Court, Third Judicial District, Anchorage, Jack W. Smith, Judge, Trial Court No. 3AN-05-11374 CR.
Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Petitioner. Henry E. Graper, III, Gorton, Logue Graper, Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Antone A. Simas, III is currently charged with child neglect under Anchorage Municipal Code (AMC) § 08.10.040(B)(1). This section of the code makes it a crime to allow a person under the age of sixteen years to "live in an unsanitary environment." Child neglect is the equivalent of a Class A misdemeanor.
AMC § 08.10.040(B)(1), (C).
Compare AMC § 08.10.040(D) (the maximum period of imprisonment for "child neglect" is 1 year), with AS 12.55.135(a) (the maximum term of imprisonment for a class A misdemeanor is 1 year).
Before trial, District Court Judge Jack W. Smith suppressed photographs the police had taken of the interior of the Simas residence. The Municipality of Anchorage petitioned for review of Judge Smith's decision. We granted the petition and we now reverse the district court's decision.
Facts and proceedings
On November 4, 2005, Anchorage police officers went to Simas's residence to look for his son, thirteen-year-old Justin Simas, and two other teenagers. All three juveniles were truant from Gruening Middle School. One of the teenagers, Liam O'Driscoll, had been reported as a runaway. While the police were looking for Justin, one of his neighbors complained to them that Justin had recently shot a BB gun at him.
The police found Justin a couple of blocks from his residence. The police told him that his neighbor complained that he shot a BB gun at him. They also asked where O'Driscoll might be found. Justin denied shooting a BB gun at his neighbor. He also denied knowing O'Driscoll's whereabouts, but he agreed to let the police look for O'Driscoll inside the Simas residence.
With Justin's consent, Anchorage Police Officers John Goetz and Amy Lyons entered the Simas residence and looked for O'Driscoll. They did not find O'Driscoll inside, but they did see garbage strewn throughout the house and the kitchen full of dirty dishes and empty food containers. In addition, the officers found a pellet rifle in a closet in Antone Simas's bedroom, and they found several liquor bottles (some still containing alcohol) and a homemade marijuana bong in Justin's bedroom. To record the living conditions inside the residence, Officer Goetz retrieved a camera from his vehicle and took several photographs. He also seized the homemade bong.
The police did not seize the pellet gun, nor did they pursue the allegations that Justin had shot at his neighbor. But, based on the conditions inside the Simas residence, the M unicipality charged Justin's father, Antone Simas, with one count of child neglect.
Simas moved to suppress the evidence and to dismiss the case on the ground that the police had conducted "a non-consensual, warrantless search" of his residence. Simas argued that his son had not voluntarily consented to the search.
To resolve this issue, Judge Smith held an evidentiary hearing, where he heard the facts set out above. Officers Goetz and Lyons testified for the Municipality; Justin testified for the defense. Afterwards, Judge Smith issued a series of three written orders.
Judge Smith found that Justin had validly consented to a search of the premises for O'Driscoll. He also found that the officers' observations during the search were "legally admissible as evidence to support the charges in this case." But he suppressed the photographs the police had taken of the conditions inside the residence. In doing so, he reasoned that the nature of the police search "changed at the point the officer shifted from the search for the runaway to investigation . . . for possible child neglect." He found that there was no consent given to allow a search for evidence of child neglect, and that when the police "left the residence to obtain a camera to photograph the condition of the residence they exceeded the previously provided consent."
The Municipality sought reconsideration of the suppression decision, arguing that suppressing the photos was inconsistent with the "plain view" doctrine. Judge Smith issued his second order, reaffirming that the police had lawfully observed the conditions. But he elaborated that when the police left the residence, retrieved a camera, and returned to photograph the conditions, they had exceeded the bounds of the "plain view" doctrine.
Judge Smith allowed the Municipality to submit another memo addressing his decision. The M unicipality did so, again arguing that the photos were admissible under the "plain view" doctrine. The Municipality pointed out that under the "plain view" doctrine, police are generally allowed to seize evidence of a crime even if that evidence is unrelated to the initial reason they entered the property. The Municipality argued that there is no logical distinction that would allow the police to seize evidence under the "plain view" doctrine but not allow them to photograph that same evidence.
In his third order, Judge Smith responded that "when a purpose is included in the request for consent to search, then the consent should be construed as authorizing only that intensity of police activity necessary to accomplish the stated purpose for the consensual search." He found that the police had expanded the consent given them — that is, the right to search the residence for the runaway teenager. He ruled that "[p]hotographing the residence . . . had no relation to the purpose of the consensual search." He then added that he had based the suppression decision, in part, on his finding that the police had made a "subjective determination" that the conditions inside the residence were evidence of child neglect.
The Municipality petitioned this court for review, and we granted the petition. Why we reverse Judge Smith's decision to suppress the photographs
Although Judge Smith phrased the reason for his decision in various ways, the essence of his ruling is that, because the police retrieved a camera and re-entered the residence to photograph evidence of child neglect, they exceeded the scope of Justin's consent to search the residence. We disagree.
The scope of a consent to search is generally defined by its expressed object. Likewise, the intensity of such a search is limited to places where the expressed object of the search may reasonably be found. Here, the object of the search was a person. As long as the police searched in places where a person could hide, they did not exceed the proper scope or intensity of the consent. The record in this case shows that the police searched only those places where it was likely that a person could hide. While doing so, the police saw evidence of possible child neglect in plain view.
See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.1(c), at 32-33 (4th ed. 2004).
Id.
Alaska law recognizes that under the "plain view" doctrine, police are generally allowed to seize evidence without a warrant if an officer "observes evidence from a place where he or she is legally entitled to be." This is so because "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of [F]ourth [A]mendment protection."
Reeves v. State, 599 P.2d 727, 738 (Alaska 1979) (footnote omitted).
Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (citing Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967)).
Under this doctrine, police are allowed to make warrantless seizures of evidence of criminal activity in plain view even when that evidence is outside the scope of the expressed object of the initial intrusion. As the United States Supreme Court explained in Arizona v. Hicks, the "`plain view' doctrine can legitimate action beyond . . . [the] scope [of the primary search]." Indeed, reliance on the "plain view" doctrine often involves evidence that is unrelated to the justification for the initial entry. Consequently, the officers in this case could lawfully seize evidence of possible child neglect that was in plain view, even though they had not entered the residence with that purpose in mind.
See State v. Davenport, 510 P.2d 78, 86 (Alaska 1973); Lewis v. State, 9 P.3d 1028, 1036 (Alaska App. 2000). See also Ingram v. State, 703 P.2d 415, 423 n. 4 (Alaska App. 1985).
480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).
Id.
The next question is whether the officers' photographing of the evidence went beyond the permissible bounds of a Fourth Amendment seizure. In Hicks, police officers entered an apartment to investigate a shooting. While inside, one officer observed two sets of expensive stereo components that "seemed out of place in the squalid and otherwise ill-appointed four-room apartment." Suspecting that this equipment was stolen, the officer recorded the serial numbers on the equipment and reported them by phone to police headquarters. It turned out that many of these components had been taken during an armed robbery — and this evidence led to Hicks's indictment for the robbery.
Id.
The Supreme Court held that the mere recording of the serial numbers did not constitute a seizure under the Fourth Amendment:
To be sure, [the act of recording the numbers] was the first step in a process by which [Hicks] was eventually deprived of the stereo equipment. In and of itself, however, it did not meaningfully interfere with [Hicks's] possessory interest in either the serial numbers or the equipment, and therefore [it] did not amount to a seizure.
Id., 480 U.S. at 324, 107 S. Ct. at 1152 (citation omitted).
In United States v. Mancari, the court concluded that taking photographs of evidence in plain view did not meaningfully interfere with a person's possessory interests any more than the officer's recording of the serial numbers did in Hicks.
463 F.3d 590 (7th Cir. 2006).
Id. at 596.
The Alaska Supreme Court adopted the same approach to this issue in Schultz v. State. In Schultz, fire fighters were called to a Fairbanks residence to extinguish a fire. After the fire was brought under control, but before it had been extinguished, a fire inspector entered the home to investigate the cause of the fire. During her investigation, the fire inspector took about seventy photographs of what she observed inside the house.
593 P.2d 640 (Alaska 1979).
Id. at 641.
Id. at 641-42.
Id.
The supreme court held that, under the search and seizure clause of the Alaska Constitution (Article I, Section 14), the fire inspector's act of photographing the premises was lawful even though she had no warrant — because the inspector was lawfully inside the premises, and because "the [portions of the] premises she photographed . . . were in plain view."
See id. at 642.
Id. at 643 (citation omitted).
Based on the United States Supreme Court's decision in Hicks and our own supreme court's decision in Schultz, we conclude that the police in the present case needed no search warrant or additional consent to photograph the conditions that they lawfully observed inside the Simas residence.
The next question is whether the officers violated the Fourth Amendment when they re-entered the Simas residence to photograph the evidence after having left momentarily to retrieve the camera. In Michigan v. Tyler, the Supreme Court rejected the argument that the Fourth Amendment required a search warrant when fire officials re-entered the building over four hours after their initial lawful warrantless entry. The Court held that the re-entry was "no more than an actual continuation of the first [lawful entry]. . . ." Under the circumstances presented here, the re-entry was a reasonable continuation of the officers' initial lawful entry and search.
436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978).
Id., 436 U.S. at 511, 98 S. Ct. at 1951.
Id.
Lastly, in his third order, Judge Smith explained that he suppressed the photographs because he found that the police had made a "subjective determination" that the conditions inside the residence amounted to child neglect. In doing so, he analogized this case to searches involving searches and seizures in obscenity cases.
But this is a typical search and seizure case, not one involving First Amendment protections. And in typical search and seizure cases, courts review police decisions under the objective standard. Accordingly, the appropriate question here was whether the officers' decision to photograph evidence of child neglect in the residence was supported by the requisite probable cause — that is, were there "facts and circumstances within the officers' knowledge . . . sufficient in themselves to warrant a [person] of reasonable caution in believing that a crime has been or is being committed." Based on the record, the officers had probable cause to believe that Simas was committing the crime of child neglect.
See Mackelwich v. State, 950 P.2d 152, 158 (Alaska App. 1997) (propriety of a search or seizure is not judged by the subjective intentions of the officer, but rather by an objective legal analysis of the facts). See also Chilton v. State, 611 P.2d 53, 55 (Alaska 1980).
Chilton, 611 P.2d at 55 (citations omitted).
Conclusion
We REVERSE the decision of the district court.