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Brand v. State

Court of Appeals of Alaska

April 3, 2009

Donald BRAND, Appellant,
v.
STATE of Alaska, Appellee.

Page 384

Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

BOLGER, Judge.

Alaska State Trooper Elizabeth Haddad secured Donald Brand and Gretchen Smith outside of their home after a violent confrontation. Kenai Police Sergeant Gus Sandahl then discovered a marijuana-growing operation as he walked through the house to determine whether there was anyone else inside. But the police may not enter a home for a protective sweep unless they have a reasonable belief that there is an individual inside the residence who could put them in danger. We therefore conclude that the superior court should have suppressed the fruits of this illegal search.

I. BACKGROUND

On August 2, 2004, Trooper Elizabeth Haddad was dispatched to the Brand residence to support a welfare check for a possibly suicidal woman. When Haddad arrived at the home, paramedics were already treating Gretchen Smith with oxygen in the back of an ambulance. After speaking with Haddad, Smith became agitated and ran into the home.

Haddad attempted to pursue Smith into the house, but was then confronted by Donald Brand at the front door. Brand told Haddad to leave his property. During this encounter, Smith twice emerged from the house: at one point she threatened Haddad with a large bulldog, and at another she brandished a knife. Haddad felt that Brand was causing a distraction and told him to put his hands behind his back so that she could handcuff him. When Brand refused, Haddad drew her taser. Haddad fired, unfortunately striking Brand in the groin. After this occurred, she handcuffed him and the paramedics took him to their ambulance for treatment.

Meanwhile, Kenai Police Sergeant Gus Sandahl and Officer Mitch Langseth were informed by dispatch that a trooper was requesting emergency assistance. Sandahl and Langseth proceeded to the Brand residence with their patrol vehicle's lights and sirens activated. While en route, the officers received

Page 385

information that Trooper Haddad had used her taser on an individual at the scene.

When the Kenai officers arrived at the scene, Donald Brand and his brother, James Brand, were outside of the home while Smith was still inside. Donald Brand was secured in the ambulance and James Brand was wandering around, but not bothering anyone. Sandahl thought that Smith might have barricaded herself in the home, so he went to his patrol car to retrieve his patrol rifle. However, by the time Sandahl returned with his rifle, Haddad was already securing Smith outside of the home.

Haddad then informed Sandahl that she smelled marijuana, and Langseth suggested that Sandahl perform a protective sweep. The officers had James Brand secure his dog (which was inside the house) and then Sandahl walked through the residence. When Sandahl reached the upstairs portion of the house, he discovered a marijuana-growing operation of more than forty plants.

Trooper Mark Pearson arrived after Sandahl completed the protective sweep. After learning of the marijuana discovery, Pearson confronted Brand about the marijuana and asked for his consent to search the house. Brand initially refused to consent, but ultimately assented when Trooper Pearson told Brand that he would obtain a warrant. Officers then seized the plants and equipment.

Brand was later indicted on three counts of fourth-degree misconduct involving a controlled substance.[1] Brand filed a pretrial motion to suppress the State's evidence-arguing that the protective sweep was illegal and that the subsequent consent to search was tainted. Superior Court Judge Charles T. Huguelet denied the motion, ruling that the protective sweep was proper and that the consent was voluntary.

After proceeding to trial, Brand was convicted of two counts of fourth-degree misconduct involving a controlled substance.[2] These two counts merged for the purposes of his sentencing, and on November 22, 2006, Superior Court Judge John E. ...


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