Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Osborne v. State

Court of Appeals of Alaska

March 2, 2018

JARRETT J. OSBORNE, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Bethany Harbison, Judge. Trial Court No. 4FA-13-375 CR

          Elizabeth W. Fleming, Attorney at Law, Kodiak, under contract with the Office of Public Advocacy, for the Appellant.

          Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. [*]

          OPINION

          ALLARD Judge

         Jarrett J. Osborne was searched by police officers after he came to the door of a Fairbanks house owned by William Young. At the time Osborne arrived at the house, the police were executing a search warrant at the residence for evidence of methamphetamine sales. One of the provisions of this search warrant authorized the police to search "any person" who might arrive on the premises while the warrant was being executed.

         Based in part on the search of Osborne's person, Osborne was charged with various drug and weapon offenses. Osborne later moved to suppress the evidence found on his person, asserting that the search warrant application for Young's residence failed to establish probable cause for the search-all-persons provision. In response, the State argued that the same probable cause showing that supported granting the police the authority to search Young's residence for evidence of drugs and drug sales also supported granting the police the authority to search any and all persons who might approach the residence during the execution of that search. The State also argued, in the alternative, that the police had sufficient independent reasons to detain, arrest, and search Osborne, even without the search-all-persons warrant provision, based on the suspicious circumstances of Osborne's middle-of-the-night arrival at Young's residence and the totality of the information about Young's drug dealing known to the police at the time.

         The superior court agreed with the State that the search warrant application established probable cause for the "search any person" warrant provision. The court therefore upheld the search of Osborne's person on that basis, without reaching the State's alternative argument. Osborne was later convicted following a jury trial.

         On appeal, Osborne argues that the superior court erred when it concluded that the search warrant application established probable cause to search any and all persons who might arrive on the premises during the execution of the search warrant.

         To resolve Osborne's appeal, we must revisit an issue of law that we discussed, but did not have to fully resolve, in Davis v. State.[1] Specifically, we must decide what kind of proof the police must offer in a search warrant application to justify a warrant provision that allows the police to search any person who might arrive on the premises during the execution of the warrant.

         For the reasons explained in this opinion, we conclude that such a broad grant of search authority is justified only if the search warrant application affirmatively establishes good reason to believe that any and all persons arriving at the premises during the execution of the warrant will probably be participants in the criminal activity being investigated and will probably be carrying evidence of that criminal activity on their person.[2]

         Because the search warrant application in the present case failed to meet this standard, we conclude that the superior court erred in upholding the search of Osborne's person under the "search any person" warrant provision. We therefore remand this case to the superior court so that the court can consider the State's alternative argument for upholding the lawfulness of that search.

         Background facts and prior proceedings

         Around midnight on February 9, 2013, officers from the Fairbanks drug enforcement unit executed a warrant to enter the residence of William Young and arrest him for drug-related crimes.

         During their protective sweep of the residence, the police observed numerous flat screen televisions, which were linked to surveillance cameras. The police also observed that the outside of the residence was equipped with motion detecting flood lights, and that all entryways to the residence were protected by barred security doors.

         The police ultimately found Young hiding in a bedroom of his house. Young was searched incident to his arrest, and a large amount of cash was found in his pockets. In close proximity to Young, the police found a glass pipe containing drug residue; the residue field-tested positive for methamphetamine. The police also found Ziploc baggies in the bedroom closet.

         Based on the discovery of these items, the police applied for a second warrant to search the premises (the house and the surrounding curtilage) for evidence of drug possession and drug sales.

         Attached to the search warrant application were two boilerplate lists of items that the police wanted to search. The first attachment - "Attachment A Methamphetamine" - included nine different categories of things to be searched, most of which involved physical items such as money, business records, personal documents, etc., that might be found in the house. The second attachment - "Attachment B Electronic Devices, Digital Media" - included a list of the various electronic items that the police wanted to examine forensically.

         Buried in Attachment A's boilerplate list of items to be searched was the following provision:

Persons on the Premises to Be Searched: Any person on the premises at the time of service of the search warrant, for purposes of checking for the possession, sale or distribution of controlled substances and further for the purpose of identification.

         The search warrant application did not include any direct reference to this provision. Nor did the search warrant application explain why this additional grant of search authority was being requested in this case, or why it might be justified.

         The search warrant for the premises was granted around 3:00 a.m., and the police were authorized to conduct the search "immediately" (rather than waiting until 7:00 a.m.[3]). Once the warrant was issued, the team of law enforcement officers, who were already at Young's residence, served the warrant and began to search the residence.

         A short time after the warrant had been served and the search had begun, Osborne knocked at the front door of Young's residence. A plainclothes officer answered the door, and Osborne asked if "Bill" was home. Osborne was detained, brought inside the residence and questioned, and ultimately searched. The search of Osborne's person revealed $8, 390 in cash, 3.5 grams of methamphetamine, and a cell phone with text messages between Osborne and Young. Based on this evidence, the police obtained a search warrant to search Osborne's house. As a result of that search, the police seized drugs, money, and weapons. Osborne was later indicted for various criminal offenses, including misconduct involving a controlled substance, misconduct involving weapons, and conspiracy.[4]

         Prior to trial, Osborne's attorney filed a motion to suppress the evidence found on Osborne's person and in his house, asserting that the initial search of Osborne's person was unlawful and that the later search of Osborne's house was fruits of that initial unlawful search. The defense attorney argued, in particular, that the search of Osborne's person could not be justified under the "search any person" provision of the warrant because the search warrant application failed to establish that there was probable cause to grant the police such a broad grant of search authority.

         In response, the State argued that the search warrant affidavit established probable cause to believe that illegal drugs were being sold out of the residence and that, by logical inference, there was probable cause to believe that any and all persons who came onto the premises while the police were executing the warrant would also be involved in drug sales or purchases. The State also argued, in the alternative, that the police had independent grounds to detain, arrest, and search Osborne, even if the "search any person" warrant provision was not valid.

         Following an evidentiary hearing, the superior court denied Osborne's motion to suppress. Citing this Court's prior decision in Davis, the superior court ruled that the search warrant application established probable cause to search any and all persons who might arrive on the premises during the execution of the search. The court also ruled that the search of Osborne's person fell within the "search any person" warrant provision because Osborne arrived on the premises (i.e., at the front door of the residence) while the search of the premises was still ongoing. The court did not address the State's alternative arguments for upholding the search.

         Osborne was later convicted, following a jury trial, of misconduct involving a controlled substance, misconduct involving weapons, and conspiracy. This appeal followed.

The foundation that the law requires before a judicial officer can grant the police the authority to search any and all persons arriving on a premises during the execution of a search warrant

         This Court first addressed the validity of a search-all-persons warrant provision more than twenty years ago in Betts v. State.[5] However, unlike the provision in the current case, the provision in Betts did not extend to "any person" who might arrive on the premises during the execution of the search. Instead, the provision in Betts was limited to individuals who were already present in the residence at the time the search warrant was served.[6]

         The search warrant in Betts was issued based, in part, on a report from an eyewitness who had been in the residence approximately an hour before the warrant was obtained.[7] The eyewitness reported that she saw cocaine and marijuana in plain view, and that various individuals were "sitting around snorting powder off a dish."[8] The eyewitness also reported that one of the individuals tried to sell her drugs.[9] In addition, the search warrant application asserted that the owners of the residence were known drug dealers, that the residence had "lots of traffic coming and going, " and that another vehicle had just approached the residence when the original call was made to the police.[10]

         The superior court ruled that the information in the search warrant application established "that the illegal activity at the residence was ongoing and overt, " and that the police "were likely to find all persons in the residence participating in the sale and use of cocaine and marijuana."[11] The court also noted that granting the police the authority to search the individuals they found inside the residence would assist or facilitate the search of the residence itself, since it would prevent those individuals from trying to frustrate the search by hiding drugs on their persons.[12] We agreed with the superior court's analysis, and we appended the relevant portions of the superior court's ruling to our decision on appeal.

         A year after we issued Betts, we issued our decision in Davis v. State., [13]Davis dealt with a warrant that authorized a search of a "crack house" - i. e., a residence which (as we described in Davis) was "a commercial establishment devoted to the distribution of crack cocaine."[14] The search warrant in Davis, like the search warrant in the present case, authorized the police to search "any person on the premises at the time of service of the search warrant."[15] In Davis, we construed this language broadly, interpreting it to include not just the persons present when the warrant was served, but also any and all persons who might arrive on the premises during the ensuing execution of the warrant.

         (In Osborne's case, the superior court adopted a similarly broad interpretation of the "search any person" provision of the warrant. Osborne does not argue that the court should have construed the provision more narrowly, or that we should revisit this aspect of our decision in Davis.)

         But in Davis, the defendants did not argue that the search warrant application failed to establish probable cause for the "search all persons" provision of the warrant. Instead, the defendants asserted that "search all persons" provisions were per se unconstitutional-that such provisions constituted "general warrants, " and that they were therefore barred by the Fourth Amendment.[16] We rejected this argument in Davis, [17]and our decision of this point simply mirrors recognized Fourth Amendment law. As Professor LaFave notes in his treatise on the law of search and seizure, a warrant that authorizes the police to search all persons found within a specifically described place does not lack specificity "in the sense that the executing officer will be unable readily to determine to whom the warrant applies."[18]

         The real question, Professor LaFave explains, is whether the search warrant application establishes probable cause for a search of this breadth - "whether the information supplied [to] the magistrate supports the conclusion that it is probable [that] anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence thereof on his person."[19] If the evidence in the search warrant application supports such a conclusion, "then a search-all-persons-present provision is unobjectionable."[20]

         Although the defendants in Davis did not directly argue that the search warrant application failed to support the "search all persons" provision of the warrant, we did note in Davis that there is a distinction between (1) the probable cause needed to support a search of all persons present when the police arrive to serve a warrant, as opposed to (2) the probable cause needed to support a search of any and all persons who might later arrive on the premises while the police are conducting the search.

         We did not address this distinction further, because we found the distinction to be inconsequential under the facts of Davis:

For some purposes, one might need to distinguish between the act of "serving" a search warrant (an act that occurs at a particular instant) and the act of "executing" the warrant (that is, the ensuing search of the premises, which might take hours). However, we do not believe that this distinction is useful for construing ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.