Appendix — Wallace v. Alaska

Supreme Court, U.S.

FILED

99 567 SEP 271999

No.

OF riuc Ur tre

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1998

JOHN BENJAMIN WALLACE, JR.

Petitioner

STATE OF ALASKA

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE ALASKA SUPREME COURT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

WEIDNER & ASSOCIATES, INC.

Attorneys for Petitioner

py: CLebbis (2S badBan. 1/1/95

Phillip Paul Weidner

Attorney of Record

330 "L" Street, Suite 200

Anchorage, Alaska 99501

(907) 276-1200

TABLE OF CONTENTS

Document Docket Page

No. No.

Alaska Supreme Court Order of 6/29/99 N/A 1

Alaska Supreme Court Order of 5/5/99 N/A 3

Alaska Supreme Court Order of 5/4/99 N/A 5

Alaska Court of Appeals Opinion on 2/2/8/97 N/A 7

Constitutional Provisions, Statutes and

Regulations Involved in The Case N/A 39

il

In the Supreme Court of the State of Alaska

John Benjamin Wallace, Jr. |) Supreme Court No. S-

) 08084

Petitioner, )

V. )

) Order

State of Alaska, ) Petition for Hearing

)

Respondent. ) Date of Order: 6/29/99

)

Trial Court Case # 3AN-93-07066CR

Court of Appeals # A-5964

Before: Matthews, Chief Justice, Eastaugh, Fabe,

and Carpeneti, Justices, and Compton,

Senior Justice, Pro Tem* [Bryner, Justice

not participating].

It is Ordered:

The Petition for Rehearing is Denied.

Entered by direction of the court.

Clerk of the Appellate Courts

/s/

Marilyn May

MATTHEWS, Chief Justice, with whom COMPTON,

Senior Justice, Pro Tem, joins, dissenting. They would grant

the petition.

cc: Supreme Court Justices

Court of Appeals Judges

Judge Rowland

Trial Court Appeals Clerk - Anchorage

Distnbution:

Phillip Paul Weidner William H Hawley Jr.

Weidner & Associates APC OSPA

330 L Street #200 310 K Street #308

Anchorage AK 99501 Anchorage AK 99501

*Sitting by assignment made under article IV, section 11 of

the Alaska Constitution and Administrative Rule 23(a).

to

In the Supreme Court of the State of Alaska

John Benjamin Wallace, Jr. =) Supreme Court No. S-

) 08084

Petitioner, )

V. ) Corrected

) Order

State of Alaska, ) Petition for Hearing

)

Respondent. ) Date of Order: 5/5/99

)

Trial Court Case # 3AN-93-07066CR

Court of Appeals # A-5964

Before: Matthews, Chief Justice, Eastaugh, Fabe,

and Carpeneti Justices, and Compton, Senior Justice, pro

tem* [Bryner, Justice not participating].

It is Ordered:

The Petition for Hearing, filed on 4/16/97, and

granted on 8/6/97, is Dismissed as improvidently granted.

Entered by direction of the court.

Clerk of the Appellate Courts

Webiiaiin

ili iti tls AG ascot

/s/

Marilyn May

MATTHEWS, Chief Justice, with whom COMPTON,

Senior Justice, pro tem, joins, dissenting. Alaska Statute

26.05.070 limits the purposes for which the National Guard

may be used. These limitations exclude the use of the

National Guard for routine law enforcement. Because it

appears to me that the limitations of this statute probably

were exceeded in this case, and that the decision of the court

of appeals is erroneous in this respect, I do not agree that the

petition in this case should be dismissed.

cc: Supreme Court Justices

Court of Appeals Judges

Judge Rowland

Trial Court Appeals Clerk - Anchorage

Distribution:

Phillip Paul Weidner William H Hawley Jr.

Weidner & Associates APC OSPA

330 L Street #200 310 K Street #308

Anchorage AK 99501 Anchorage AK 99501

*Sitting by assignment made under article IV, section 16 of

the Alaska Constitution.

In the Supreme Court of the State of Alaska

John Benjamin Wallace, Jr. |) Supreme Court No. S-

) 08084

Petitioner, )

v. )

) Order

State of Alaska, ) Petition for Hearing

)

Respondent. ) Date of Order: 5/4/99

)

Trial Court Case # 3AN-93-07066CR

Court of Appeals # A-5964

Before: Matthews, Chief Justice, Eastaugh, Fabe,

and Bryner, Justices, and Compton, Senior Justice, pro tem*

{Carpeneti, Justice, not participating].

It is Ordered:

The Petition for Hearing, filed on 4/16/97, and

granted on 8/6/97, is Dismissed as improvidently granted.

Entered by direction of the court.

Clerk of the Appellate Courts

POE MS wr ettns O amet

<ssceee*

/s/

Marilyn May

MATTHEWS, Chief Justice, with whom COMPTON,

Senior Justice, pro tem, joins, dissenting. Alaska Statute

26.05.070 limits the purposes for which the National Guard

may be used. These limitations exclude the use of the

National Guard for routine law enforcement. Because it

appears to me that the limitations of this statute probably

were exceeded in this case, and that the decision of the court

of appeals is erroneous in this respect, I do not agree that the

petition in this case should be dismissed.

cc: Supreme Court Justices

Court of Appeals Judges

Judge Rowland

Trial Court Appeals Clerk - Anchorage

Distnbution:

Phillip Paul Weidner William H Hawley Jr.

Weidner & Associates APC OSPA

330 L Street #200 310 K Street #308

Anchorage AK 99501 Anchorage AK 99501

*Sitting by assignment made under article IV, section 16 of

the Alaska Constitution.

Notice: This opinion is subject to formal

correction before publication in the Pacific

Reporter. Readers are requested to bring

typographical or other formal errors to the

attention of the Clerk of the Appellate

Courts, 303 K Street, Anchorage, Alaska

99501, in order that corrections may be

made prior to permanent publication.

THE COURT OF APPEALS OF THE STATE OF

ALASKA

JOHN BENJAMIN WALLACE, ) Court of Appeals No.

28, 1997]

JR.., ) A-5964

)

Appellant, ) Tnal Court No.

) 3AN-S93-7066CR

VS. )

) OPINION

STATE OF ALASKA, )

)

Appellee, ) [No. 1514 -— February

)

)

Appeal from the Superior Court, Third

Judicial District, Anchorage, Mark C.

Rowland, Judge.

ride a Sal

Appearances: Phillip Paul Weidner and

Nicole D. Stucki, Weidner & Associates,

Inc., Anchorage, for Appellant. W.H.

Hawley, Prosecutions and Appeals,

Anchorage, and Bruce M.. Botelho,

Attorney General, Juneau, for Appellee.

Before: Bryner, Chief Judge, Coats and

Mannheimer, Judges.

COATS, Judge.

On June 16, 1993, Detective Ronald Robinson of the

Anchorage Police Department (APD) received an

anonymous telephone call informing him that there was a

marijuana growing operation located at 14201 Specking

Road, “possibly in the upstairs and basement areas.” The

caller told Robinson “you can smell the marijuana outside of

the building and you can hear fans running inside the

building.” Robinson said the caller had a “female voice” and

spoke in a lucid manner. Robinson did not know the basis of

the call for information.

Robinson then telephoned a Chugach Electric

Association (CEA) employee and requested information

concerning the electric usage at 14201 Specking Road.

Robinson did not obtain a search warrant or a subpoena for

this information. Robinson was informed that the dwelling

at this address was a duplex and that John Benjamin

Wallace, Jr. was being billed for power consumption at both

apartments. Robinson was told that the average monthly

consumption was 3092 kilowatt-hours (kwh) for one

apartment and 2557 kwh for the other. Robinson stated he

knew from prior investigations that the average CEA

customer uses 700 kwh of power per month.

On June 17, 1993, Robinson drove to 14201

Specking Road, accompanied by APD Detective Patrick

O’Brian. O’Brian stayed in the car while Robinson walked

up the driveway of the residence. Robinson said that as he

approached the residence he smelled the “fresh pungent odor

of growing marijuana.” He also heard fans running inside

the residence. Robinson then passed through a gate, went up

to the porch and rang the door bell. A man came to the door

whom Robinson recognized from a drivers license photo as

John Benjamin Wallace, Jr. Robinson asked Wallace if a

ABE ala AN Tae BREE re te alot

Ss ae

fictitious person lived there and Wallace said he did not.

Robinson asked if the residence was a duplex and Wallace

responded it was not. Robinson stated in his affidavit for a

search warrant that the smell of marijuana was stronger at

the open door than in the driveway. When Robinson

returned to the police car, O’Brian said he could smell

marijuana on Robinson’s clothing.

On June 18, 1993, Robinson submitted an affidavit

and applied for a search warrant based on the information

above. The magistrate issued a search warrant for the

residence located at 14201 Specking Road.

On the evening of June 18, 1993, Robinson,

Accompanied by four other APD officers and two members

of the Alaska National Guard, went to the Specking

residence to serve the warrant. No one was home and the

officers forced entry through the back door. A marijuana

growing operation was discovered in the basement. The

members of the National Guard assisted in the search of the

10

— SPS

basement and in dismantling the growing operation.

Robinson found photographs of what appeared to be a

different marijuana grow set up in a similar manner to the

Specking Road grow just discovered. Paperwork was found

upstairs, including a lease of a warehouse at 6100 Cordova

Street to “John Walsh . . . doing business as John Walsh &

Associates,” a power bill for the location, and a hand

diagram of the warehouse indicating a “Lab ‘A’” and “Lab

Bo”

Robinson and four other APD officers went to the

warehouse at 6100 Cordova Street. While standing in the

dirt road leading to the parking lot of the warehouse, all five

officers said they could smell the “fresh pungent odor of

growing marijuana” and could hear what sounded like

powerful fans inside the building. Based upon this

information, on June 19, 1993, Robinson obtained a search

warrant for the warehouse. Robinson, accompanied by four

other APD officers and nine members of the National Guard,

il

Set ase — ti

iris die PR A tt NE NES aretha

went to 6100 Cordova Street to serve the second search

warrant. The police forced entry after there was no response

to their knocking. The police found John B. Wallace, Jr. and

Don Beaujean harvesting marijuana from a marijuana

growing operation. Members of the National Guard stood

around the perimeter of the warehouse when the police

entered. The Guardsmen entered the warehouse after it was

secured, dismantled the growing operation, and transported

the marijuana and equipment to storage.

On September 15, 1993, an information was filed

charging Wallace with six counts of fourth-degree

misconduct involving a controlled substance. Wallace filed

several pretrial motions, including a motion to suppress the

evidence seized at his residence and at the warehouse. On

January 6, 1995, Judge Mark C. Rowland denied these

motions.

On January 9, 1995, Wallace entered nolo contendere

pleas on two of the counts; the other four counts were

12

dismissed. Wallace preserved the issues he has raised in this

appeal under Cooksey v. State, 524 P.2d 1251 (Alaska

1974).

On appeal, Wallace first contends that the Anchorage

Police Department’s use of the National Guard soldiers to

execute the search warrants violated the Posse Comitatus Act

and that the appropriate remedy is exclusion of the evidence

discovered in the searches.

18 U.S.C. § 1385 (1988) (amended 1994), known

as the Posse Comitatus Act, states:

Whoever, except in cases and under

circumstances expressly authorized by the

constitution of Act Congress, willfully uses

any part of the Army or the Air Force as a

possecomitatus or otherwise to execute the

laws shall be fined not more than $10,000 or

imprisoned not more than two years, or

both.

The critical inquiry which must be answered is whether or

not the Alaska National Guard constitutes “ any part of the

Army or the Air Force.” 10 U.S.C. § 3062 (c) (1) (1994)

States:

13

CoS eae aia Mr oe Te

The Army consists of-

the Regular Army, the Army National Guard

of the United States, the Army National

Guard while in the service of the United

States, and the Army Reserve[.]

(Emphasis added. ) Likewise, 10 U.S.C. § 8062 (d) (1)

(1994) states:

The Air Force consists of-

The Regular Air Force, the Air National

Guard of the United States, the Air National

Guard while in the service of the United

States, and the Air Force Reserve[.]

(Emphasis added.) As stated above, when the Guardsman

participated in the search of Wallace’s home and the

Cordova Street warehouse, they were acting as members of

the Alaska National Guard and were not in the service of the

United States ( also known as being “federalized’’).

Therefore, the Guardsman were not “part of the Army of the

Air Force.” Under the plain language of the statute, the

14

participation of the National Guard soldiers in serving the

search warrant did not violate the Posse Comitatus Act.

Both the Third Circuit and a federal district court in

Oregon have concluded that use of Nationa] Guard soldiers

to enforce state criminal drug laws does not violate the Posse

Comitatus Act. In United States v. Bensish, 5 F.3d 20, 25-26

(3d Cir. 1993), the Pennsylvania State Police used a squad

from the Pennsylvania Army National Guard to assist them

in the surveillance and investigation of a marijuana growing

operation. The court concluded that the Posse Comitatus Act

was not violated, because the Guard unit was not in federal

service. In United States v. Kylla, 809 F.Supp. 787 (D.Or.

1992), overruled on other grounds, 37 F.3d 526 (9 Cir.

1994), a member of the Oregon National Guard operated a

thermal imaging device in investigating a drug operation.

The court Ruled that the Posse Comitatus Act was not

violated, noting that: “(t]he Supreme Court has recognized

' Members of the Alaska National Guard can be members of

15

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the dual nature of a National Guard and the fact that National

Guardsmen only lose their status as a member of the state

National Guard when they are ‘drafted into federal service

by the President.’” Id. At 793 (citing Perpich v. Department

of Defense, 496 U.S. 334, 344 (1990)) »

either the Army National Guard or the Air National Guard.

* Wallace focuses on the “military purpose” exception to the

Posse Comitatus Act and argues that the use of the National

Guard in the instant case does not fit within the exception.

This argument is irrelevant. It is true that military personnel

can search suspects and seize evidence, notwithstanding the

language of the Posse Comitatus Act, if an independent

military personnel can the Posse Comitatus Act, if an

independent military purpose justifies the military

involvement. uses on the “military purpose” exception to the

Posse Comitatus Act and argues that the use of the National

Guard in the instant case does not fit within the exception.

This argument is irrelevant. It is true that military personnel

can search suspects and seize evidence, notwithstanding the

language of the Posse Comitatus Act, if an independent

military personnel can the Posse Comitatus Act, if an

independent military purpose justifies the military

involvement. See Harker v. State, 663 P.2d 932 (Alaska

1983). Wallace correctly asserts that no independent

16

Both the plain language of the Posse Comitatus Act

and case law interpreting the Act support the conclusion that

the state’s use of National Guard soldiers to execute the

search warrants did not violate the Posse Comitatus Act. We

accordingly conclude that Judge Rowland did not err in

finding that the state did not violate the Posse Comitatus Act

in this case.

Wallace next contends that state statutes did not

authorize the use of National Guard soldiers to execute the

search warrants. However, the Alaska Constitution provides

that "[t]he governor is commander-in-chief of the armed

forces of the State. He may call out these forces to execute

the laws, suppress of prevent insurrection or lawless

violence, or repel invasion.” Alaska Const., art. 3, § 19.

Therefore, under the constitutional language, the governor is

purpose justified the use of the National Guard to search

Wallace’s house and the warehouse. Nevertheless, no

violation of the Posse Comitatus Act occurred because the

Guardsmen were not federalized when they acted.

17

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4

authorized to use National Guard soldiers to execute the

laws. The statutes regulating the National Guard are set out

in Chapter 5 of Title 26 of the Alaska Statutes. The parties

have not cited any provision in that chapter that would

prohibit the use of National Guard soldiers in this case.

Wallace argues that “[t]here is no federal law

authorizing the National Guard’s activities in the instant

case.”

Wallace cites 10 U.S.C. § 375 (1994), which

prohibits the “direct participation by a member of the Army,

Navy, Air Force, or Marine Corps in a search, seizure, arrest,

or other similar activity unless participation in such activity

by such member is otherwise authorized by law.” However,

as we have previously discussed, the members of the Army

National Guard who participated in the two searches were

not members of the “Army, Navy, Air Force, or Marine

Corps” because they were under the command of the Alaska

National Guard and were not “in the service of the United

18

States.” Furthermore, 32 U.S.C. § 109 (1994) states that

“(njothing in this title limits the nght of a state . . . to use

its National Guard . . . within its borders in time of

peace.” Also, 32 U.S.C. § 112 (d) (1994) states:

Nothing in this section shall be construed as

a limitation on the authority of a unit of the

National Guard of a State, when such unit is

not in Federal service, to perform law

enforcement functions authorized to be

performed by the National Guard by the

laws of the State concerned.

Because federal law does not prohibit the use of the Alaska

National Guard, and because the Guard was under the

control of the State of Alaska’s chain of command, the only

restraint on the use of the Guard would be state law. As we

have previously pointed out, state law does not appear to

limit the governor's power to use the National Guard “to

execute the laws.”

Wallace next contends that the state did not show that

the governor actually authorized the use of the National

Guard soldiers to execute the search warrants in this case.

19

tesla ead thcten indi ean, tthe

ee ns

He contends that Judge Rowland improperly limited his

ability to argue this issue by examining documents in camera

and not turning them over to the defense.

In Braham v. State, 571 P .2d 631, 643 (Alaska

1977), cert. denied, 436 U.S. 910 (1978), the Supreme Court

of Alaska stated the following concerning the duty of the

prosecution to disclose confidential material to the defense:

Non-disclosure was proper only if (1) the

prosecution showed that discovery of the

evidence would be inconsistent with

protection of persons or enforcement of the

laws and (2) the trial judge concluded that

the material was not relevant to the defense.

If the district attorney failed to show that

disclosure would harm enforcement or

protection efforts, the materials must be

disclosed. The question of relevance would

then be decided in an adversary context;

both counsel would have the opportunity to

make their respective arguments.

Disclosure is also required if the judge’s in

camera inspection showed that the material

was relevant to the defense-whether or not

the prosecutor had demonstrated that

discovery would be inconsistent with

enforcement or protection efforts. In the

20

latter circumstance, the state must decide

between continuing to prosecute, while

incurring the problems posed by disclosure,

and terminating the prosecution in order to

maintain the material’s secrecy.

(Footnotes omitted.)

In the instant case Wallace requested disclosure of

the Alaska National Guard Counterdrug plan. We have

reviewed the materials which Judge Rowland reviewed in

camera. We conclude that Judge Rowland did not err in

refusing to require the prosecution to disclose to the defense

the Alaska National Guard Counterdrug Plan. Judge

Rowland could properly find that “discovery of the evidence

would be inconsistent with protection of persons or

enforcement of the laws” and “that the material was not

relevant to the defense.” The plan itself provides no insight

into whether or not the governor of Alaska had authorized

use of the National Guard for law enforcement purposes.

We believe that the record in this case sufficiently

establishes that the use of National Guard soldiers to aid the

police in executing the search warrant was properly

21

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’ authorized. A letter in the record from the statewide

narcotics unit chief written on behalf of the attorney general,

‘ certified thai the unit chief had reviewed the National Guard

Counterdrug Plan for the fiscal year ending September 30,

1993, and concluded that “all operations and activities for

the federal funding under the plan are consistent with and not

prohibited by state law.” We do not believe that the state

was required to show that the governor had specifically

authorized the use of the National Guard in each individual

case. We rely on State v. Wheelor, 903 P.2d 399 (Or. App.

1995). In that case the court stated:

Defendants also argue that the execution of

the warrant was unconstitutional, because

the Guard participated in it without direct,

formal, written authorization from the

Governor. The state argues that the use of

the Guard was properly authorized. The

trial court found that, although the Governor

had not authorized the use of the Guard in

this particular case, she had ordered the

Guard to cooperate with the Yamhill County

Interagency Narcotics Team. The trial court

further found that, in this case, the Guard

participated under the direct supervision of

22

ee ee ee

the state police. Defendant does not

challenge those findings. The question,

therefore, is whether the governor’s more

general authorization suffices.

d. At 405. Relying on the Oregon statutes, the court

conciuded that there was “no express requirement for the

issuance of a formal, written order for each action the Guard

is directed to take.” Id. Similarly, was we have previously

pointed out, the Alaska Constitution gives the governor

broad authority to use the National Guard “to execute the

laws.” Alaska Const., art. 3, § 19. There is no requirement

in the statutes regulating the National Guard (AS 26.05)

which would require the governor to issue a formal written

order for every individual action of the Guard.

Courts are entitled to rely on the presumption of

regularity which attaches to the acts of public officials. The

supreme court set out this presumption in Wright v. State,

501 P.2d 1360, 1372 (Alaska 1972), where the court quoted

from Gallego v. United States, 276 F.2d 914, 917 (9" Cir.

1960):

23

Where no evidence indicating otherwise is

produced, the presumption of regularity

supports the official acts of public officers,

and courts presume that they have properly

discharged their official duties.

This court and the supreme court have adhered to this

principle in subsequent cases. See Tallman v. Dept. of

Public Works, 506 P.2d 679, 681 (Alaska 1973) (where the

losing party in a civil trial challenged the array of the jury

panel, the supreme court stated, “[u]nless a challenging party

makes some showing of a miscarriage of the official duty,

we shall presume that duty has been regularly performed”’)

(footnote omitted); Finkelstein v. Stout, 774 P.2d 786, 790

(Alaska 1989) (presumption of regularity was rebutted

concerning the casting of absentee ballots); Jerrel v. State,

851 P.2d 1365, 1372 (Alaska App. 1993), cert. denied, 510

U.S. 1100 (1994) (“The presumption of regularity attaches to

this situation, requiring this court to presume, in the absence

of a contrary showing, that the trial court acted in accordance

with its ruling[.]”); Houston-Hult v. State, 843 P.2d 1262, ~

24

1266-67 (Alaska App. 1992) (finding state established chain

of evidence sufficiently, relying on presumption of

regularity).

Employing the presumption of regularity, we

conclude that Judge Rowland did not err in concluding that

the use of the National Guard troops in this case was

pursuant to lawful orders. We further conclude that Judge

Rowland did not err in denying Wallace’s motion to suppress

on the ground that the use of these troops had not been

properly authorized under state law.

Wallace next contends that there was in sufficient

evidence to support the issuance of the warrants to search

Wallace’s house and warehouse. However, the information

which the police presented to the magistrate in support of the

warrant to search Wallace’s house is very similar to the

information which we recently found was sufficient in

McClelland v. State, P.2d___, Op. No. 1503 (Alaska

App., Dec. 6, 1996). In McClelland, we followed “the vast

majority of cases [which] support the conclusion that either

the smell of growing marijuana or the odor of burning

marijuana will support the issuance of a search warrant.” Id.

At 5.

In the instant case, in his affidavit in support of the

search warrant, Detective Robinson set out his extensive

background in drug enforcement, including participation “in

serving [thirty-two] search warrants involving indoor

marijuana grow operations.” He stated that “[b]ased on this

experience I have come to be able to distinguish the fresh,

pungent odor of growing or freshly harvested or processed

marijuana.” He then stated that he smelled the “fresh

pungent odor of growing marijuana’ as he approached

Wallace's residence and the smell of marijuana was stronger

at the open door of the residence. According to Detective

Robinson, when he returned to the car after talking with

Wallace, his partner, Detective Pat O’Brien, “who had not

gotten out of the vehicle said he could smell marijuana o n

26

[Robinson’s] clothing.” From this testimony, the magistrate

could properly determine that both officers were familiar

with the odor of growing marijuana, could identify that

odor, and smelled the odor coming from Wallace’s

residence. See McClelland at 6. Additionally, in his

affidavit Robinson also supported his conclusion that

Wallace had a marijuana growing operation at this house

with evidence of Wallace’s high electrical usage and the

information from the anonymous telephone call. Although

the anonymous tip and Wallace’s electrical consumption are

insufficient by themselves to establish probable cause, this

information does corroborate the most significant

information supporting the search warrant - the fact that the

officers smelled growing marijuana at Wallace’s residence.

We conclude that the information which detective Robinson

presented to the magistrate was sufficient for the magistrate

to issue the search warrant. See McClelland, at 6-7.

27

Wallace next raises several arguments concerning the

search of the warehouse. He first contends that the seizure

of the documents and photographs at Wallace’s house, which

led the police to the warehouse, was not authorized by the

warrant. Judge Rowland found that “the documents seized

were within the ambit of the mandate contained in the

warrant and related to legitimate purposes of the warrant in

the Specking Street address.” Judge Rowland’s ruling is not

clearly erroneous. The warrant authorized an extensive

search for drugs and drug-related materials, and it appears

that the photographs and docusents which led the police to

the warehouse were authorized by the warrant.

Wallace next contends that the search warrant for the

warehouse was invalid because Robinson made

misrepresentations in his affidavit in support of the search

warrant. Robinson stated in his affidavit that paperwork

found at Wallace’s house “indicated” that Wallace leased

and naid the electricity bills for the Cordova Street

28

warehouse. In fact, Wallace elicited from Robinson that

none of the paperwork regarding the Cordova Street

warehouse actually had Wallace’s name on it. Robinson

apparently concluded that Wallace was associated with the

warehouse because the paperwork was found in the name of

“J.B. Walsh” or “John Walsh,” and Wallace’s name is John

B. Wallace, Jr. Robinson’s affidavit could have led the

magistrate to believe that Wallace’s name was actually on

the lease for the warehouse and its utility bills.

The Alaska Supreme Court in State v. Malkin, 722

P.2d 943 (Alaska 1986), held that misstatements in affidavits

must be excised and the remainder of the affidavit tested for

probable cause if (1) the defendant specifically points out the

statements in the affidavit that are false, and (2) the state

does not show by a preponderance of the evidence that the

statements were not made intentionally or with reckless

disregard for the truth. Id. At 946.

per ee a Te

Robinson testified how he reached his conclusion that

Wallace leased the warehouse and paid the utility bills. This

testimony was sufficient for Judge Rowland to conclude that

Robinson did not make intentional or reckless misstatements

in order to obtain the search warrant. Also, Judge Rowland

found that the search warrants were supported by sufficient

evidence. Even if the information connecting Waliace with

the warehouse was more specifically explained, the

magistrate would have likely issued the warrant anyway.

This is because the warrant was based almost entirely on the

other information which the police found at the Specking

Road house which led them to the warehouse, and upon the

fact that the first officers smelled growing marijuana at the

warehouse. Therefore, Judge Rowland did not err in failing

to suppress the second search warrant based upon the

statements Detective Robinson presented to the magistrate.

Wallace contends that the state presented insufficient

evidence to the magistrate to support the issuance of the

30

second search warrant. However, as we indicated in our

previous discussion, the materials which the police seized at

Wallace’s Specking Road house, coupled with their

investigation of the warehouse (particularly the odor of

marijuana emanating from the warehouse), supported the

issuance of the search warrant.

Wallace next reasons that since the search warrants in

question empowered “any peace officer” to serve the

warrants, the search warrants did not authorize the police to

allow the National Guard soldiers to assist them in serving

the search warrant because the soldiers were not peace

officers. When confronted with this argument, Judge

Rowland pointed out that a police officer can call upon any

citizen for assistance. Judge Rowland’s observation is

supported by AS 12.35.040, which provides that an officer

executing a warrant has the power and authority “to call any

other person to the officer’s aid.” We accordingly conclude

that Judge Rowland did not err in rejecting this argument.

31

Cb Cate th APA Di i

BN at a Pa irae seg ell ak

Wallace asserts that Detective Robinson violated his

rights to privacy and freedom from unreasonable searches

and seizures when he went through a gate in Wallace's

fence, walked up the driveway to the front porch, and rang

the doorbell. Wallace argues that this constituted a

warrantless search of the curtilage surrounding his home and

leading to the discovery of the odor of marijuana when

Wallace opened his door. On this issue, Professor Wayne R.

LaFave cites Lorenzana v. Superior Court, 511 P.2d 33 (Cal.

1973) for the principle that “[a] sidewalk, pathway, common

entrance or similar passageway offers an implied permission

to the public to enter which necessarily negates any

reasonable expectancy of privacy in regard to observations

made there.” 1 Wayne R. LaFave, Search and Seizure, § 2.3

(c) at 482-83 (3d ed. 1996). LaFave continues by citing

other cases:

[C]Jourts have held “that police with

legitimate business may enter the areas of

the curtilage which are impliedly open to

use by the public,” and that in so doing they

32

“are free to keep their eyes open and use

their other senses.” This means, therefore,

that if police utilize “normal means of

access to and egress from the house” for

some legitimate purpose, such as to make

inquiries of the occupant ...it is not a Fourth

Amendment search for the police to see or

hear or smell from that vantage point what is

happening inside the dwelling.

Id. At 483-84 (footnotes omitted).

The Alaska Supreme Court has adopted this

rationale. In Pistro v. State, 590 P .2d 884 (Alaska 1979), an

Alaska State Trooper, with information that stolen truck

parts may be in defendant Pistro’s garage, drove in to his

driveway. As he walked up to the side door of the garage to

talk to two men he saw inside, he observed through the

garage window an engine hanging on a block and tackle.

Pistro was ultimately convicted of larceny and concealing

stolen property. On appeal, Pistro argued that the trooper, by

moving up the driveway, was trespassing and searching

without a warrant. The court stated:

33

Sindee,

prweaeee

Police officers walking through an unfenced

driveway to inquire at premises have been

held not to invade any reasonable

expectation of privacy. The driveway was a

normal means of ingress and egress

impliedly open to public use by one desiring

to speak to occupants of the garage, or to

park off the street while visiting occupants

of the house. This is not a case of an officer

leaving such a means of public access to spy

from an area not impliedly open to the

public. There was no invasion of rights to

privacy, and [the trooper] could

constitutionally observe what was in plain

view in the garage.

Pistro, 590 P.2d at 887 (footnote omitted).

According to Judge Rowland’s findings, Detective

Robinson, like the trooper in Pistro, approached Wallace’s

residence via the drive way, a normal means of ingress and

egress. Accordingly, Judge Rowland did not err in rejecting

Wallace’s argument.

Wallace contends that Detective Robinson acted

illegally and without a proper purpose, by approaching his

residence and asking Wallace if a fictitious person lived

34

there. However, courts have routinely allowed police to

employ non-coercive trickery in the course of investigations,

and in serving search warrants. See State v. Weller, 884

P.2d 610, 612 (Wash. App. 1994) (detective knocked on

defendant’s door and pretended to be looking for table saw;

court held the officer may lawfully enter porch and smell

marijuana without violating the resident's right to privacy);

United States v. Leung, 929 F. 2d 1204, 1208 (7" Cir.) cert.

denied, 502 U.S. 906 (1991) (police investigating heroin sale

properly used ruse which caused defendant to open door to

hotel room); Lockwood v. State, 591 P.2d 969, 972 (Alaska

1979) (officers serving search warrant used ruse which

caused defendant to open door; entry upheld because officers

substantially complied with knock and announce

requirements).

Detective Robinson was not required to be

completely candid with Wallace by informing him that he

was investigating whether Wallace was harboring a

35

jee Aha Talat iain ay antl

heat teat Se

Kb ae die Bases

hdl OA bar aOR 3 A Ft

marijuana growing operation. Under the law, the police have

leeway to conceal the purpose of their investigation to avoid

alerting suspects to the fact that they are being investigated.

Requiring Detective Robinson to be more candid with

Wallace might very well have alerted Wallace to the fact that

he was being investigated, and resulted in the destruction of

evidence. There is simply no such legal requirement.

Wallace next cites McGahan v. State, 807 P.2d 506,

509-11 (Alaska App. 1991), in which this court held that

reasonable suspicion was required before the government

could conduct a search with a trained dog to detect drugs.

Wallace contends that we should impose a similar

requirement on police officers, and require a police officer to

have reasonable suspicion before he can approach a

residence to detect drugs using his sense of smell. In

discussing this issue, Professor LaFave states:

[T]here is no “reasonable expectation of

privacy” from lawfully positioned agents

“with inquisitive nostrils.” This means, for

example, that no search in a Fourth

36

Amendment sense has occurred when a law

enforcement officer, lawfully present at a

certain place, detects odors emanating from

private premises, from a vehicle, or from

some personal effects nearby.

1 LaFave, supra, at 403 (footnotes omitted). We agree with

Professor LaFave s analysis and conclude that Judge

Rowland did not err in denying Wallace’s motion to suppress

on this ground.

Wallace asserts that his rights of privacy and freedom

from unreasonable search and seizure were violated by the

police when they obtained his electrical usage records

without a warrant. Wallace acknowledged that at the time he

submitted his brief, Alaska courts had not yet ruled on this

issue. Subsequently, this court addressed this issue in

Samson v. State, 919 P.2d 171 (Alaska App. 1996). This

court ruled that “utility records are maintained by the utility

and do not constitute information in which society is

prepared to recognize a reasonable expectation of privacy.”

Id. At 173. We adhere to our decision in Samson, and

37

conclude that Wallace had no reasonable expectation of

privacy in his utility records.

The conviction is AFFIRMED.

38

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGULATIONS

INVOLVED IN THE CASE

Constitutional Provisions:

First Amendment, United States Constitution. Freedom

of religion, of speech, and of the press. Congress shall

make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the government for a

redress of grievances.

Third Amendment, United States Constitution.

Quartering of soldiers. No soldier shall, in time of peace

be quartered in any house, without the consent of the owner,

nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment. Searches and seizures. The right of

the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon probable

Cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things

to be seized.

39

Fifth Amendment. Rights of accused in criminal

proceedings; due process; eminent domain. No person

shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a grand jury,

except in cases arising in the land or naval forces, or in the

militia. when in actual service in time of war or public

danger; nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall he be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

Fourteenth Amendment. Citizenship rights not to be

abridged by states. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they

reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Article III, Section 19, Alaska Constitution. Military

Authority. The governor is commander-in-chief of the

armed forces of the State. He may call out these forces to

execute the laws, suppress or prevent insurrection or lawless

violence, or repel invasion. The governor, as provided by

law, shall appoint all general and flag officers of the armed

forces of the Sate, subject to confirmation by a majority of

the members of the legislature in joint session. He shall

appoint and commission al] other officers.

FEDERAL STATUTES:

10 U.S.C. § 375. Restriction on direct participation by

military personnel

The Secretary of Defense shall prescribe such

regulations as may be necessary to ensure that any activity

(including the provision of any equipment or facility or the

assignment or detail of any personnel) under this chapter

does not include or permit direct participation by a member

of the Army, Navy, Air Force, or Marine Corps in a search,

seizure, arrest, or other similar activity unless participation in

such activity by such member is otherwise authorized by

law.

18 U.S.C. § 1385. Use of Army and Air Force as posse

comitatus

41

Whoever, except in cases and under circumstances

expressly authorized by the Constitution or Act of Congress,

willfully uses any part of the Army or the Air Force as a

posse comitatus or otherwise to execute the laws shall be

fined under this title or imprisoned not more than two years,

or both.

28 U.S.C. § 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by wnit of certiorari

where the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any

State is drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of the United

States, or where any title, mght, privilege, or immunity is

specially set up or claimed under the Constitution or the

treaties or statutes of, or any commission held or authority

exercised under, the United States.

(b) For the purposes of this section, the term "highest

court of a State" includes the District of Columbia Court of

Appeals.

42

32 U.S.C. § 112. Drug interdiction and counter-drug

activities

(a) Funding assistance.--The Secretary of Defense

may provide funds to the Governor of a State who submits to

the Secretary a State drug interdiction and counter-drug

activities plan satisfying the requirements of subsection (c).

Such funds shall be used for the following:

(1) The pay, allowances, clothing, subsistence,

gratuities, travel, and related expenses, as authorized by State

law, of personnel of the National Guard of that State used,

while not in Federal service, for the purpose of drug

interdiction and counter-drug activities.

(2) The operation and maintenance of the equipment

and facilities of the National Guard of that State used for the

purpose of drug interdiction and counter-drug activities.

(3) The procurement of services and equipment, and

the leasing of equipment, for the National Guard of that State

used for the purpose of drug interdiction and counter-drug

activities. However, the use of such funds for the

procurement of equipment may not exceed $5,000 per

purchase order, unless approval for procurement of

equipment in excess of that amount is granted in advance by

the Secretary of Defense.

(b) Use of personnel performing full-time National

Guard duty.--(1) Under regulations prescribed by the

Secretary of Defense, personnel of the National Guard of a

43

State may, in accordance with the State drug interdiction and

counter-drug activities plan referred to in subsection (c), be

ordered to perform full-time National Guard duty under

section 502(f) of this title for the purpose of carrying out

drug interdiction and counter-drug activities.

(2)(A) A member of the National Guard serving on

full-time National Guard duty under orders authorized under

paragraph (1) shall participate in the training required under

section 502(a) of this title in addition to the duty performed

for the purpose authorized under that paragraph. The pay,

allowances, and other benefits of the member while

participating in the training shall be the same as those to

which the member is entitled while performing duty for the

purpose of carrying out drug interdiction and counter-drug

activities. The member is not entitled to additional pay,

allowances, or other benefits for participation in training

required under section 502(a)(1) of this ttle.

(B) Appropriations available for the

Department of Defense for drug interdiction and counter-

drug activities may be sed for paying costs associated with

a member's participation in training described in

subparagraph (A). The appropriation shall be reimbursed in

full, out of appropriations available for paying those costs,

for the amounts paid. Appropriations available for paying

those costs shall be available for making the reimbursements.

(C) To ensure that the use of units and personnel of

the National Guard of a State pursuant to a State drug

interdiction and counter-drug activities plan does not degrade

the training and readiness of such units and personnel, the

following requirements shall apply in determining the drug

interdiction and counter-drug activities that units and

personnel of the National Guard of a State may perform:

(1) The performance of the activities may not

adversely affect the quality of that training or otherwise

interfere with the ability of a member or unit of the National

Guard to perform the military functions of the member or

unit.

(ii) National Guard personnel will not degrade their

military skills as a result of performing the activities.

(111) The performance of the activities will not result

in a significant increase in the cost of training.

(iv) In the case of drug interdiction and counter-drug

activities performed by a unit organized to serve as a unit,

the activities will support valid unit training requirements.

(3) A unit or member of the National Guard of a State

may be used, pursuant to a State drug interdiction and

counter-drug activities plan approved by the Secretary of

Defense under this section, to provide services or other

assistance (other than air transportation) to an organization

eligible to receive services under section 508 of this title if--

(A) the State drug interdiction and counter-drug

activities plan specifically recognizes the organization as

being eligible to receive the services or assistance;

45

(B) in the case of services, the performance of the

services meets the requirements of paragraphs (1) and (2) of

subsection (a) of section 508 of this title; and

(C) the services or assistance is authorized under

subsection (b) or (c) of such section or in the State drug

interdiction and counter-drug activities plan.

(c) Plan requirements.--A State drug interdiction and

counter-drug activities plan shall--

(1) specify how personnel of the National Guard of

that State are to be used in drug interdiction and counter-

drug activities;

(2) certify that those operations are to be conducted at

a time when the personnel involved are not in Federal

service;

(3) certify that participation by National Guard

personnel in those operations is service in addition to

training required under section 502 of this title;

(4) certify that any engineer-type activities (as

defined by the Secretary of Defense) under the plan will be

performed only by units and members of the National Guard;

(5) include a certification by the Attorney General of

the State (or, in the case of a State with no position of

Attorney General, a civilian official of the State equivalent to

a State attorney general) that the use of the National Guard

of the State for the activities proposed under the plan is

authorized by, and is consistent with, State law; and

46

(6) certify that the Governor of the State or a civilian

law enforcement official of the State designated by the

Governor has determined that any activities included in the

plan that are carned out in conjunction with Federal law

enforcement agencies serve a State law enforcement purpose.

(d) Examination of plan.--(1) Before funds are

provided to the Governor of a State under this section and

before members of the National Guard of that State are

ordered to full-time National Guard duty as authorized in

subsection (b), the Secretary of Defense shall examine the

adequacy of the plan submitted by the Governor under

subsection (c). The plan as approved by the Secretary may

provide for the use of personnel and equipment of the

National Guard of that State to assist the Immigration and

Naturalization Service in the transportation of aliens who

have violated a Federal or State law prohibiting or regulating

the possession, use, or distribution of a controlled substance.

(2) Except as provided in paragraph (3), the Secretary

shall carry out paragraph (1) in consultation with the

Director of National Drug Control Policy.

(3) Paragraph (2) shall not apply if-- °

(A) the Governor of a State submits a plan under

subsection (c) that is substantially the same as a plan

submitted for that State for a previous fiscal year; and

(B) pursuant to the plan submitted for a previous

fiscal year, funds were provided to the State in accordance

with subsection (a) or personnel of the National Guard of the

47

Lar tat) Pd ay ent Rea ag

State were ordered to perform full-time National Guard duty

in accordance with subsection (b).

(e) Exclusion from end-strength computation.--

Members of the National Guard on active duty or full-time

National Guard duty for the purposes of administering (or

during fiscal year 1993 otherwise implementing) this section

shall not be counted toward the annual end strength

authorized for reserves on active duty in support of the

reserve components of the armed forces or toward the

strengths authorized in sections 12011 and 12012 of title 10.

(f) End strength limitation.--(1) Except as

provided in paragraph (2), at the end of a fiscal year there

may not be more than 4000 members of the National Guard--

(A) on full-time National Guard duty under section

502(f) of this title to perform drug interdiction or counter-

drug activities pursuant to an order to duty for a period of

more than 15U days; or

(B) on duty under State authonty to perform drug

interdiction or counter-drug activities pursuant to an order to

duty for a period of more than 180 days with State pay and

allowances being reimbursed with funds provided under

subsection (a)(1).

(2) The Secretary of Defense may increase the end

strength authorized under paragraph (1) by not more than 20

percent for any fiscal year if the Secretary determines that

such an increase is necessary in the national security interests

of the United States.

48

(g) Annual report.--The Secretary of Defense shall

submit to Congress an annual report regarding assistance

provided and activities carried out under this section during

the preceding fiscal year. The report shall include the

following:

(1) The number of members of the National Guard

excluded under subsection (e) from the computation of end

strengths.

(2) A description of the drug interdiction and

counter-drug activities conducted under State drug

interdiction and counter-drug activities plans referred to in

subsection (c) with funds provided under this section.

(3) An accounting of the amount of funds provided to

each State.

(4) A description of the effect on military training

and readiness of using units and personnel of the National

Guard to perform activities under the State drug interdiction

and counter-drug activities plans.

(h) Statutory construction.--Nothing in this section

shall be construed as a limitation on the authority of any unit

of the National Guard of a State, when such unit is not in

Federal service, to perform law enforcement functions

authorized to be performed by the National Guard by the

laws of the State concerned.

(i) Definitions.--For purposes of this section:

(1) The term “drug interdiction and counter-drug

activities", with respect to the National Guard of a State,

49

eee o

AP LR EE A SIE CES

Shela

oF Nee aR een

WA FSerR AS AE i y

means the use of National Guard personnel in drug

interdiction and counter-drug law enforcement activities,

including drug demand reduction activities, authorized by

the law of the State and requested by the Governor of the

State.

(2) The term "Governor of a State" means, in the case

of the District of Columbia, the Commanding General of the

National Guard of the District of Columbia.

(3) The term "State" means each of the

several States, the District of Columbia, the Commonwealth

of Puerto Rico, or a territory or possession of the United

States.

ALASKA STATUTES:

§ 26.05.060. Control of Alaska National Guard and

Alaska Naval Militia

The governor as ex officio commander of the militia

of the state has command of the Alaska National Guard and

the Alaska Naval Militia while they are not in active federal

service. The governor may adopt necessary regulations for

them not inconsistent with 48 U.S.C. 473 - 479. Except as

otherwise prescribed by those sections, the Alaska National

Guard and the Alaska Naval Militia and their members are

50

subject to all federal laws and regulations relating to the

National Guard and Naval Militia of the several states and

territories and of the United States.

§26.05.070. Governor may order organized militia into

active service

In the event of war, disaster, insurrection, rebellion,

tumult, catastrophe, invasion, or not; or if a mob or body of

men act together by force with intent to commit a felony or

to offer violence to persons or property, or by force and

violence to break and resist the laws of the state, or the

United States; or in the case of imminent danger of the

occurrence of any of these events; or whenever responsible

civil authorities fail to preserve law and order, or protect life

and property, or the governor believes that failure is

imminent, the governor may order the organized militia or

any part of it, into active state service to execute the laws and

to perform duties in connection with them that the governor

considers proper. Whenever any portion of the militia is

ordered into active service by the governor, it becomes an

additional police force, retaining its separate entity and

operating at all times as a military organization under

military command, with power to cooperate with but not to

supersede the existing civilian law enforcement officers

whenever possible, for the re-establishment of law and order

51

Peis.

and for the protection of life and property. The governor

may also order members of the organized militia to active

State service, with their consent, for the purpose of training

or for full-time duty with the office of the adjutant general.