State v. Koen
State v. Koen
Opinion of the Court
OPINION
The Alaska State Troopers received a report that David Koen Sr. had child pornography on his computer. Possession of child pornography is a criminal offense under AS 11.61.127(a). Based on this report, a state trooper applied for (and obtained) a warrant to search “[the] 1st residence on [the] left of Greentimbers Drive [in] Homer, Alaska”. However, the search warrant application did not explain how the house at this location was connected to the reported crime, or why the troopers believed that this house contained evidence of Koen’s possession of child pornography. Superior Court Judge Harold M. Brown ruled that this omission was a fatal flaw in the warrant application, and that the evidence obtained under the warrant must be suppressed.
A warrant application must explain why there is reason to believe that the evidence being sought will be found at the specified premises to be searched. The warrant application in this case does not contain the required explanation. The warrant application does not identify the house on Greentim-bers Drive as Koen’s residence, nor does the application indicate in any other way why the troopers believed that this house contained the evidence they were seeking. In addition, even if one could infer that the troopers believed that Koen lived at the Greentimbers Drive address, the warrant application fails to explain the basis for this belief.
We therefore affirm the decision of the superior court.
The content of the search warrant application
The affidavit submitted by Trooper Ryan Browning stated that Sara McLeod came to the Homer state trooper post to report that David Koen Sr. had child pornography in his possession. McLeod told Trooper Browning that she had been at Koen’s residence and had used Koen’s computer to check her email. While using Koen’s computer, McLeod discovered that the computer contained digital photographs depicting adolescent children engaged in sexual acts.
Sara McLeod also told Trooper Browning that her husband, Michael McLeod, was a friend of Koen’s. According to Sara, Koen told Michael that he had been viewing and storing child pornography on his computer.
Michael McLeod also told Trooper Browning about an earlier episode in which his wife Sara was checking her e-mail on Koen’s computer — although it is difficult to tell, from Browning’s affidavit, whether Michael was referring to the same incident that Sara had described. According to Michael, Sara told him that she was using Koen’s computer to check her e-mail “a few weeks ago” and that, while using the computer, she opened a minimized folder and saw pornographic photographs of children. However, in contrast to Sara’s description of “adolescent” children engaged in sex acts, Michael stated that Sara told him that the children depicted in the photographs were approximately one year old.
Finally, Michael McLeod told Trooper Browning that Koen had confided to him that he was sexually abusing his own adolescent daughter, and that he had videotaped an act of sexual abuse when she was eight years old.
The search warrant
Based on the warrant application we have just described, Magistrate David Landry issued a warrant authorizing the troopers to search “the premises known as [the] 1st residence on [the] left of Greentimbers Drive [in] Homer, Alaska”.
(According to the zip code look-up feature on the United States Postal Service’s web site, and according to the MapQuest web site, there is no “Greentimbers Drive” in Homer, Alaska. There is, however, a street named “Green Timbers Road”.
The flaw in the warrant
As can be seen, the warrant application makes no mention of the first residence on the left of Greentimbers Drive in Homer, Alaska. Trooper Browning’s affidavit contains sufficient information to support a search for, and a search of, the computers at David Koen’s residence, but the affidavit gives no information as to where that residence might be located.
Of course, one can readily infer that Trooper Browning did not pick this building at random. Potentially, Sara McLeod might have identified this location as Koen’s residence when she spoke to Browning at the trooper post. Alternatively, Michael McLeod might have identified this location as Koen’s residence when he spoke to Browning on the telephone later in the afternoon. A third possibility is that, following his conversations with the two McLeods, Trooper Browning consulted a telephone directory or other city directory to ascertain the location of Koen’s residence.
But there are other possibilities as well. The McLeods might have told Browning that Koen, fearing a police investigation, had moved his computer out of his residence to another location — to a business office, or to the house of a friend or relative — and that this new hiding place was located on Green-timbers Drive. Or the McLeods might have told Browning that they had stolen Koen’s computer to prevent him from destroying the pornographic images, and that Koen’s computer was now located at their residence on Greentimbers Drive.
The point is that the warrant application contains no explanation of how Trooper Browning — or Magistrate Landry — concluded that the first house on the left of Green-timbers Drive was the proper place to search for evidence of Koen’s crime.
The State points out that courts are to construe search warrant affidavits “in a common-sense and realistic fashion”,
We agree with the State that these are reasonable inferences. But this does not mean that the affidavit is legally sufficient to support the warrant. Magistrate Landry might well have inferred that Browning had some good reason to believe that the house on Greentimbers Drive was Koen’s residence, but the Constitution required Browning to explain this reason — so that Magistrate Landry could independently evaluate it.
Even though Trooper Browning may have had a valid and adequate reason to believe that the house on Greentimbers Drive was Koen’s residence (and that, therefore, the child pornography images would be found there), the law requires that the factual basis for his belief be set forth in the warrant application itself. As the United States Supreme Court stated in Whiteley v. Warden, Wyoming State Penitentiary, “[An] insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the [officer] when he sought the warrant but not disclosed to the issuing magistrate.”
We applied this constitutional principle in State v. White, 707 P.2d 271 (Alaska App. 1985). The defendant in White was suspected of burglarizing a residence, stealing money from inside the house, and sexually assaulting one of the occupants.
We acknowledged that the police had good reason for naming that apartment as the place to be searched. The record showed that, earlier, the police had interviewed White, and he had told them his address.
We held that the warrant application could not be supplemented by statements that the officer made off-record.
In some respects, the facts of White might be considered more favorable to the State than the facts of Koen’s case. In White, the police officer at least explained to the magistrate why they wished to search the identified premises (albeit in an off-record conversation). In Koen’s case, on the other hand, the magistrate was left to speculate that the house on Greentimbers Drive must be Koen’s residence, and then to speculate as to the trooper’s basis for identifying this house as Koen’s residence.
In United States v. Hove,
Similarly, in Braxton v. State,
A detective had obtained the Seminole Avenue address by cheeking the defendant’s arrest record for his home address.
The Maryland Court of Special Appeals held that this was a fatal flaw in the search warrant application:
In construing the affidavit here, the issuing judge first had to infer that the targeted premises was [the defendant’s] residence, based on the street address on the face of the affidavit, coupled with the general assertion that criminals typically store fruits and instrumentalities of crime in their residences. Yet the affidavit contained absolutely no clue as to why the police believed [that the defendant] lived at the particular location identified in the affidavit and warrant application; [and] the affidavit failed to provide a factual basis for the claim that the targeted premises was the suspect’s residence....
[W]e hold that the mere identification in the affidavit of [the defendant’s] address, without even a single predicate fact showing the basis for the belief that [the defendant] resided at that address, did not establish probable cause to search that location. This is so even if there was otherwise every reason to believe that [the defendant] committed the armed robbery and harbored the fruits and instrumentalities wherever he may have lived.
Braxton, 720 A.2d at 42.
Four years later, in Oesby v. State,
In State v. Vamado,
The search warrant application in Vamado set forth probable cause to believe that the defendant had committed rape and robbery, and the warrant application named 2220 De-lery Street as the premises to be searched. The police had obtained that address from the defendant at the time of his arrest, but the warrant application failed to explain this.
The Louisiana court acknowledged that, given the particular offenses alleged in the search warrant application, it would be reasonable to infer that evidence of these crimes would be found at the defendant’s residence, and thus “[t]he police ... had probable cause in this case to search the defendant’s residence”.
In People v. Gall,
See also United States v. Procopio,
Based on these cases — our own decision in White, plus the decisions from other jurisdictions that we have just discussed — we conclude that the search warrant application in Koen’s case was defective. The warrant application did not identify the house on Green-timbers Drive as Koen’s residence, nor did it otherwise explain any connection between the Greentimbers Drive premises and the evidence being sought. Moreover, even if one could infer that the trooper who applied for the warrant believed that the house on Greentimbers Drive was Koen’s residence, the warrant application does not explain the basis for the trooper’s belief. Because of this, the warrant application was not sufficient to support a warrant for a search of the house located on Greentimbers Drive.
As we mentioned in passing above, the United States Supreme Court has ruled that when police officers act in good-faith and reasonable reliance on a seemingly valid search warrant, the evidence obtained under
Conchision
The judgement of the superior court is AFFIRMED.
. See http://zip4.usps. com/z.ip4/welcome.jsp and http://www.mapquest. com/maps/main.adp (both last visited on May 4, 2005).
. State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973), quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965).
. Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984).
. 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306 (1971).
. White, 707 P.2d at 273.
. Id. at 274.
. Id. at 111.
. Id.
. Id.
. 848 F.2d 137 (9th Cir. 1988).
. Hove, 848 F.2d at 138.
. Id, at 139.
. Id. at 139-140.
. Id.
. 123 Md.App. 599, 720 A.2d 27 (Md.App. 1998).
. Braxton, 720 A.2d at 33.
. Id.
. Id. at 31.
. Id. at 33.
. 142 Md.App. 144, 788 A.2d 662 (2002).
. Oesby, 788 A.2d at 665-67.
. 675 So.2d 268 (La. 1996).
. Varnado, 675 So.2d at 269.
. Id. at 270.
. Id.
. 30 P.3d 145 (Colo. 2001).
. Gall, 30 P.3d at 151.
. Id.
. 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
. 88 F.3d 21 (1st Cir. 1996).
. Procopio, 88 F.3d at 28.
. See State v. White, 707 P.2d at 276-77.
Dissenting Opinion
dissenting.
The facts of this case are simple. Sarah McLeod and Michael McLeod were friends of the defendant David Koen. They both had been in David Koen’s house and observed that he had child pornography on his computer. Koen had told Michael McLeod that he had been viewing and storing child pornography on his personal computer and that he had been sexually molesting his 13-year-old daughter. He had recorded a video of the molestation when his daughter was 8 year's old.
Trooper Ryan Browning put this information in an affidavit in support of the search warrant. In the affidavit, Trooper Browning-stated that he had reason to believe that evidence of child pornography was located on personal computers and video tapes at the first residence on the left of Greentimbers Drive at Homer, Alaska.
The alleged defect in the warrant is that the warrant does not indicate why Trooper Browning believed that the evidence would be at the Greentimbers Drive address. The United States Supreme Court and the Alaska Supreme Court have both stated that affidavits submitted in support of the search warrant should be read as a whole and tested and interpreted “in a common sense and realistic fashion.”
Applying these standards, it is apparent that the Greentimbers Drive address is Koen’s residence where the McLeods saw the child pornography. The McLeods reported that they saw the evidence of the child pornography at Koen’s residence. In the affidavit, Trooper Browning swears that he believes that evidence of child pornography is on personal computers and video tapes at the Greentimbers Drive address. Looking at the warrant in a common sense manner, it is apparent that the trooper is asking to search Koen’s residence where the McLeods reported seeing the child pornography.
The short time Trooper Browning used to obtain the warrant reinforces the inference that the evidence of the child pornography was present at Koen’s residence at Greentim-bers Drive, rather than some other place. Trooper Browning obtained the information about the child pornography on Koen’s computer and obtained the warrant and served it within a few hours on the same day. Sarah McLeod contacted Trooper Browning at 4:47 p.m. on February 27, 2004. The trooper interviewed Michael McLeod at 5:43 p.m. that same day. The magistrate issued the warrant at 6:30 p.m. Trooper Browning served the warrant at Koen’s residence at 7:30 p.m.
The next question is how did Trooper Browning obtain the Greentimbers Drive address. It is obvious that the McLeods were intimately familiar with this residence. They were friends of Koen and had recently been in the residence where they saw the child pornography. It is logical to conclude that Trooper Browning was not going to search the wrong place. He could obtain from the
In reaching a different conclusion, the majority relies on our former case, State v. White.
There was evidence, off the record, that one of the police officers had told the magistrate that 21-D Kennedy Camp was White’s address. (There is no indication that the police told the magistrate why they suspected that White lived at that address.) We affirmed the trial judge’s decision invalidating the warrant on several grounds. We upheld the trial judge’s conclusion that the police had made misstatements and omissions on the warrants which were material and intentional. We found that the trial judge’s inference of police misconduct and bad faith made it unnecessary to decide whether to uphold the warrant under the good faith exception set out in United States v. Leon.
The warrant in White was so flawed that it is difficult to compare it to the present case. But White can be cited for the proposition that all of the information necessary to show probable cause to issue a search warrant must be contained within the information officially presented to the magistrate. And, if the process of obtaining the warrant is as flawed as it was in White, we will not apply the Leon good faith test.
But Koen’s case is very different. As I have tried to illustrate, I do not believe that it is necessary to go beyond the actual information which was presented to the magistrate to understand that Trooper Browning was asking to search Koen’s residence where the McLeods had seen the child pornography on the computer. And it was obvious from the face of the affidavit, that he knew the address of Koen’s residence where the evidence was located.
The majority relies on several cases which are distinguishable from Koen’s case.
Koen’s case would be similar to these cases if the police set out probable cause to believe that Koen committed a crime, such as robbery. And the police had asked to search
The McLeods knew that Koen possessed child pornography at Koen’s residence because they were in the residence when they saw the evidence. It appears clear to me that the police knew the location of the residence because the McLeods communicated this information to them. They were simply going to search the residence where the McLeods had seen the evidence. Koen’s ease is simply not like the eases relied on by the majority, where the police have probable cause to believe that the defendant committed a crime and then state a particular place that they want to search without making any connection between the defendant and the place to be searched. And even in those eases, where the defects in the warrant appear to be much more egregious, the courts have not suppressed the evidence, but allowed the police to establish that they acted in good faith under United States v. Leon.
I conclude that it was reasonable for the magistrate to determine that the affidavit in support of the search warrant set out probable cause to believe that evidence of child pornography would be found at the Green-timbers Drive residence. I accordingly dissent from the majority decision suppressing the evidence which was seized from Koen’s residence.
. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); State v. Malkin, 722 P.2d 943, 947 n. 10 (Alaska 1986); State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973); Rosa v. State, 633 P.2d 1027, 1030 (Alaska App. 1981).
. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983).
. Ventresca, 380 U.S. at 109, 85 S.Ct. at 747.
. 707 P.2d 271 (Alaska App. 1985).
. Id. at 273.
. Id. at 277.
. 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
. White, 707 P.2d at 277-78.
. United States v. Procopio, 88 F.3d 21 (1st Cir. 1996); United States v. Hove, 848 F.2d 137 (9th Cir. 1988); People v. Gall, 30 P.3d 145 (Colo. 2001); Oesby v. State, 142 Md.App. 144, 788 A.2d 662 (2002); Braxton v. State, 123 Md.App. 599, 720 A.2d 27 (1998); State v. Varnado, 675 So.2d 268 (La. 1996).
. United States v. Hove, 848 F.2d 137 (9th Cir. 1988).
. 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Reference
- Full Case Name
- STATE of Alaska, Petitioner, v. David KOEN Sr., Respondent
- Cited By
- 2 cases
- Status
- Published