MARGARET A. KELLEY, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge. Trial Court No. 3PA-09-1654 CR.
Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Court of Appeals Judge.[*] Judge ALLARD, writing for the Court. Chief Judge MANNHEIMER, concurring. Senior Judge COATS, dissenting.
Shortly after midnight, acting on an anonymous tip, two Alaska state troopers drove up Margaret A. Kelley's driveway to her residence in Willow, Alaska, rolled down the windows of their idling patrol car, and sniffed the air. After detecting the odor of marijuana, the troopers obtained a warrant to search Kelley's home. During that search they discovered and seized evidence of a commercial marijuana grow.
For the reasons explained here, we conclude that the troopers had no legal right to approach Kelley's home at that time of night, in the manner that they did, to gather evidence of a marijuana grow. Kelley is therefore entitled to suppression of the evidence obtained as a result of this illegal search.
Facts and proceedings
Margaret Kelley's home is located at mile 85.5 of the Parks Highway. The residence is rural, set back a considerable distance from the highway, and there are no neighbors close by.
On June 30, 2009, at 12:30 a.m., Sergeant Robert Langendorfer and Investigator Kyle Young drove onto Kelley's property to investigate an anonymous tip that she was growing marijuana to sell. The troopers drove up the driveway and parked their patrol car directly in front of Kelley's house, leaving the engine idling for several minutes. The troopers made no effort to contact the occupants of the residence. Instead, they rolled down the windows of their patrol car and sniffed the air. According to the later search warrant application, they were able to detect the odor of growing or recently harvested marijuana.
Further investigation revealed that Kelley owned the property but that her electrical usage was " unremarkable" -- that is, not indicative of a commercial grow operation. Nevertheless, the troopers obtained a warrant to search the property. When they executed the warrant, they discovered numerous marijuana plants and other evidence of a commercial grow operation. Based on this evidence, the State charged Kelley with four counts of fourth-degree misconduct involving a controlled substance.
Kelley moved to suppress the evidence obtained during the search of her home, arguing that the officers unlawfully intruded onto her property when they drove up her driveway after midnight to sniff for narcotics. The trial court denied the motion, ruling that the driveway to Kelley's house was impliedly open to public use because it provided public ingress to and egress from her property, and that the troopers therefore had a right to be there, even after midnight. The court reasoned that " [a] way of ingress or egress does not cease to exist after a certain time of night."
Kelley was then convicted in a bench trial on stipulated facts, and she appealed her conviction to this Court. While her appeal was pending, the United States Supreme Court issued its decision in Florida v. Jardines. Because Jardines spoke to the propriety of this type of police approach to residential premises, we directed the parties to submit supplemental briefing addressing the case.
We have received that briefing, and we now resolve Kelley's appeal.
Why we conclude that the troopers' conduct was unlawful and that the evidence obtained during the search of Kelley's home must be suppressed
Under the Fourth Amendment to the United States Constitution and Article 1, Section 14 of the Alaska Constitution, a warrantless search of a home is illegal in the absence of exigent circumstances. This protection
against unreasonable searches also extends to the curtilage of the home -- those areas immediately surrounding the home in which the resident retains a reasonable expectation of privacy.
However, law enforcement officers may enter an area within the curtilage of a home that is " expressly or impliedly opened to the public use."  More specifically, " 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."  Thus, in Pistro v. State, our supreme court held that a police officer could lawfully drive up a driveway and observe stolen property in plain view through the window of the homeowner's garage.
Until now, we have not had occasion to address whether this " public access" exception to the warrant requirement applies to a middle-of-the-night entry into the curtilage of a home.
In Jardines, the United States Supreme Court recognized that a police officer has an implicit license to approach a home without a warrant and knock on the front door because this is " no more than any private citizen might do."  But the Supreme Court also recognized that the scope of this implicit license is limited not only to the normal paths of ingress and egress, but also by the manner of the visit. As the Court explained, " [t]o find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to -- well, call the police." 
Thus, in the majority opinion in Jardines, the Supreme Court concluded that the police did not have an implicit license to walk uninvited onto the front porch of a home with a drug-sniffing dog, and the Court therefore upheld the Florida Supreme Court's decision suppressing the evidence obtained as a result of that search.
The case before us involves a trooper sniff, not a dog sniff, and the troopers stayed in their car rather than stepping up onto the porch. But, in another respect, the search in this case was more intrusive than the ...