State v. Gibson
State v. Gibson
Opinion of the Court
OPINION
I. INTRODUCTION
In this appeal we consider the long-standing emergency aid exception to the general requirement that a search warrant be obtained prior to police entry into a residence. Today we establish that the Alaska Constitution's standards for justifying the doctrine's application go beyond those required by the
II. FACTS AND PROCEEDINGS
A. The Incident
In July 2002 Lisa Bevin and Robert Gibson lived together in Gibson's trailer. Bevin became angry when she awoke to Gibson preparing to cook methamphetamine; Gibson reacted by threatening to "stab [her] in the head." Bevin then called 911. The 911 operator logged the call as: "Female stated male was threatening to stab her in the head," and noted she could hear a disturbance in the background. Anchorage Police Officers Justin Doll and Francis Stanfield were dispatched to the scene, arriving in separate patrol cars.
When the officers arrived they heard a distressed "female voice crying, upset, screaming, yelling" from inside the trailer. As the officers approached the trailer, Bevin tumbled out the door wearing only a tank top and crying "help me." Bevin had visible swelling in one eye and a bleeding cut on the back of her head. The officers drew their weapons and called for backup. Against the officers' urgings, Bevin returned inside for more clothing.
As Bevin started back into the trailer, Gibson became visible through the doorway. The officers ordered Gibson out of the trailer, handcuffed him, and put him in a patrol car. Bevin emerged from the trailer fully clothed, but was agitated, argumentative, and uncooperative when questioned by the officers. Worried "she might start to fight" with them or Gibson, the officers put Bevin in a patrol car. The officers then informed the backup officer that he no longer needed to respond at the emergency level "because of the increased danger involved" in such a response.
The officers were not certain at that time who had called 911, whether anyone else lived in the trailer, or who the assailant had been. After Bevin and Gibson were detained, Officer Stanfield did not "hear any evidence of any kind that another party, a third person was in [the] trailer." Officer Doll similarly did not see or hear anyone inside the trailer, and "saw nothing else that would indicate that there was another person inside." Bevin, when asked, told the officers nobody else was in the trailer. Neither officer took Bevin's statement "at face value"; in Officer Stanfield's experience people "[rlegu-larly" lie "in domestic violence situations," and in Officer Doll's experience "people [had] lied to [him] in the past."
When Officer Gerard Asselin arrived approximately 25 minutes after Gibson and Be-vin were secured, Officers Stanfield and Doll entered the trailer. Officer Doll testified that because the dispatch indicated "a disturbance possibly involving a knife," the officers wanted "to make sure that nobody [was] ... lying wounded inside the trailer." Officer Doll further confirmed that entering the premises in domestic violence situations "that may have involved a weapon," where "the risk is a little higher," is "standard operating procedure" even when an officer has "no reason to believe somebody is inside" because, as he noted, police "have a duty to provide aid to anybody inside." While they were "clearing" the trailer, the officers noticed evidence suggesting methamphetamine manufacturing.
After exiting the trailer Officer Doll told Officer Asselin that there "could be a meth lab" inside. As Officer Asselin was more familiar than Officers Stanfield and Doll with methamphetamine labs, and because he
Based on Officer Asselin's conclusion, Detective Bruce Bryant and another detective from the Anchorage Police Department's Metro Drug Unit were dispatched to the scene. Following a brief walk-through of the trailer, Detective Bryant applied for and obtained a search warrant. The police executed the warrant that night, seizing methamphetamine production evidence from the trailer.
B. The Superior Court
In September 2002 the State of Alaska indicted Gibson on four counts related to the manufacture of methamphetamine. Bevin was indicted on the same four counts. In May 2003 the State added one count of fourth-degree assault against Gibson for "recklessly caus[ing] physical injury" to Be-vin. The State later dropped one of the methamphetamine-related counts against Gibson and amended another.
Bevin moved to suppress the evidence seized as a result of the warrantless searches of the trailer. Gibson filed his own motion to suppress the evidence and dismiss the indictment against him. The superior court held an evidentiary hearing on the suppression motions over five days in 2008. Officers Stanfield, Doll, and Asselin testified, along with Detective Bryant and others. The court held oral argument on the motions in February 2004, ultimately denying them with a written order making factual findings. The court concluded Officers Stanfield and Doll's "warrantless entry was justified by the emer-geney aid doctrine." The court confined its findings and conclusions "to the facts of this case" recognizing that there is not "a general warrantless search exeeption for all domestic violence cases."
Analyzing the emergency aid doctrine under the three-prong test the Alaska Court of Appeals adopted in Gallmeyer,
Following a two-week trial a jury found Gibson guilty on the three methamphetamine-related counts and of disorderly conduct, a lesser included offense of the assault charge.
C. The Court Of Appeals
Gibson appealed, arguing the superior court erred in denying his suppression motion.
The court further explained:
In order to enter a home based upon the emergency aid exception, we believe that the State must show “true necessity—that is, an imminent and substantial threat to life, health, or property.” In addition, although Gallmeyer emphasizes that a showing of necessity does not “require absolute proof that injury would necessarily have occurred,” this test implies that a mere possibility that an emergency exists will ordinarily not be sufficient.[6 ]
Finding “[t]he State justifie[d] the police entry into Gibson’s home based on speculation,” the court expressed concern that if it “were to authorize the police to enter someone’s home based on these facts, the police would routinely be able to search a residence in most cases where there was a report of a serious domestic dispute.”
We granted the State’s petition for hearing.
III. STANDARD OF REVIEW
We generally “review a denial of a motion to suppress in the light most favorable to upholding the trial court’s ruling.”
IV. DISCUSSION
A. The Emergency Aid Exception To The Warrant Requirement 1. Overview
Police typically must obtain a warrant to lawfully search a home.
One such exception-under both federal and Alaska law-is the emergency aid exception.
2. Alaska Supreme Court cases
a. Stevens v. State
Alaska's emergency aid doctrine originated with Stevens v. State, which relied on United States v. Barone for the general rule that "[the right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers, and derives from the common law,"
In Stevens
On appeal Stevens conceded the chiefs original entry was lawful.
The court built on that conclusion, explaining that after legally entering Stevens' home and learning of the homicide, the chief's duty to investigate included the right to inspect the premises;
Justice Rabinowitz concurred in the decision, agreeing with the court's recognition of the Barone emergency aid doctrine and its conclusion that the chief's initial entry into the home was lawful, but viewing the totality of the cireumstances as supporting a lawful search of Stevens' house incident to Stevens' arrest.
The preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties; it is an overriding justification for what otherwise may be an illegal entry. It follows that a search warrant is not required to legalize an entry by police for the purpose of bringing emergency aid to an injured person. Frequently, the report of a death proves inaccurate and a spark of life remains, sufficient to respond to emer-geney police aid. As a general rule ... an emergency may be said to exist, within the meaning of the 'exigeney' rule, whenever the police have credible information that an unnatural death has, or may have, occurred. And the criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact.32
b. Schraff v. State
In Schraff v. State,
Schraff appealed his conviction, challenging the investigator's search.
The court reviewed cases from other jurisdictions to evaluate the State's emergency aid claim. These included a Sixth Circuit case upholding a search of a seizing man's luggage,
The court nevertheless rejected the State's claim. The court first noted the narcotics investigator arrived at the seene to engage in a narcotics investigation, not to render emer-geney aid, and that multiple motives-including crime detection-prompted him to search Schraffs wallet.
Justice Boochever and Chief Justice Rabi-nowitz concurred, agreeing that the emer-geney aid doctrine was inapplicable based on the facts of the case, but contending that if the officers had "reasonably believed that it was necessary" to gather Schraff's identification for medical purposes, the search ought not be disqualified simply because of an accompanying motive to detect erime.
City of Nome v. Ailak
On appeal the City conceded its police had entered Ailak's residence without consent, but maintained police may assert as a defense to trespass that they are privileged to enter a citizen's home without permission or a warrant in emergency situations."
The court reiterated that police owe civilly actionable duties "to go to the aid of imperiled citizens.
d. State v. Myers
In State v. Myers,
The court reversed, holding the entry and limited search were police actions for which no warrant was required and were otherwise reasonable within the meaning of constitutional protections.
may enter commercial premises without a warrant only when, pursuant to a routine after-hours security check undertaken to protect the interests of the property owner, it is discovered that the security of the premises is in jeopardy, and only when there is no reason to believe that the owner would not consent to such an entry.... Any search conducted incident to a legitimate entry must be brief and must be*655 limited and necessary to the purpose of ensuring that no intruders are present on the premises.58
Justice Rabinowitz concurred, but on the basis that the search fell within the emergency aid exception to the warrant requirement.
(1) The police must have reasonable grounds to believe that there is an emer-geney at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.60 "
Chief Justice Boochever dissented, concluding the court's general reasonableness analysis was too generous in light of the availability of other less intrusive alternatives to the police entry.
3. Alaska Court of Appeals
In Gallmeyer v. State
After an investigation revealed Gallmeyer had a prior felony conviction, he was indicted for being a felon in possession of a firearm.
On appeal the State argued the emergency aid exception to the warrant requirement justified the police entering Gallmeyer's home.
The court of appeals first acknowledged that it must accept the superior court's factual findings unless clearly erroneous and must view the evidence in the light most favorable to upholding the superior court's decision.
Gallmeyer argued that because he was the house's only cccupant, no risk of death or harm to anyone justified police intrusion.
Only after concluding the officers had an objectively reasonable basis to believe an emergency existed did the court passingly mention the "true necessity" concept: "In reaching this conclusion, we are not unmindful that emergency aid ordinarily requires true necessity-that is, an imminent and substantial threat to life, health or property.
The court ultimately found the second and third prongs of the test satisfied,
situations such as the present one, where officers are called upon to intervene in episodes of domestic violence, are often particularly hazardous,. Thus, when officers responding to a call involving domestic violence encounter objective factors sufficient to indicate an imminent danger of death or serious injury ... it is particularly appropriate for courts to be flexible in assessing the reasonableness of the particular manner chosen to deal with the emer-geney.87 )
The court affirmed Gallmeyer's conviction.
4. United States Supreme Court
In 2006 the United States Supreme Court, which had been essentially silent on the emergency aid exception since 1978,
B. We Adopt The Mitchell/Gallmeyer Standard As The Alaska Constitutional Standard For The Emergency Aid Doctrine.
We first reiterate our statement in Stevens that "[the right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers, and derives from the common law."
The preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties; it is an overriding justification for what otherwise may be an illegal entry. It follows that a search warrant is not required to legalize an entry by police for the purpose of bringing emergency aid to an injured person."94
We also agree with Justice Rabinow-itz that "an emergency may be said to exist . whenever the police have credible information that an unnatural death has, or may have, occurred" and that "the criterion is the reasonableness of the belief ... as to the existence of an emergency, not the existence of an emergency in fact."
We believe Professor LaFave has aptly described the nature of the question about a reasonable belief of an emergency:
Thus, the question is whether there were "reasonable grounds to believe that some kind of an emergency existed," that is, whether there is "evidence which would lead a prudent and reasonable official to see a need to act." The officer must "be able to point to specific and articulable facts which, taken with rational inferences from those facts, reasonably warrant that intrusion." But ... this probable cause requirement[ ] must be applied by reference to the cireumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences. As one court usefully put it, the question is whether "the officers would have been derelict in their duty had they acted otherwise." This means, of course, that it "is of no moment" that it turns out there was in fact no emergency.[97 ]
Over 40 years ago two members of our court urged the adoption of the Mitchell standard for applying the emergency aid doctrine.
We therefore consider whether in this context the Alaska Constitution requires more than the Fourth Amendment and, if so, whether Gallmeyer's adoption of the Mitchell standard is appropriate for Alaska. Neither Gibson nor the State actually argues against the Mitchell standard but, as we discuss below, the State argues Gallmeyer's application of the standard is inconsistent with the principles outlined in Stevens and Schroff and should be overruled.
We conclude the Alaska Constitution article I, sections 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution
to give section 14's protection against unreasonable searches and seizures "a liberal interpretation."
C. The Mitchell/Gallmeyer "True Necessity" Standard Is Flexibly Applied.
We now consider the State's argument that the court of appeals misapplied the
The term "true necessity," in the context of the emergency aid exception, originated in People v. Smith, a 1972 case in which the California Supreme Court held a police officer's entry into an apartment was unconstitutional under both the United States and California Constitutions.
We reiterate that invocation of the emergency aid doctrine requires only that the police have objectively reasonable grounds to believe an emergency at hand creates an immediate need for their assistance for the protection of life or property. We also reiterate that this standard does not require the existence of an emergency in fact: "[TJhe criterion is the [objective] reasonableness of the belief ... as to the existence of an emergency, not the existence of an emergency in fact."
As noted above, the "true necessity" language first appeared in Justice Boochever's Schroff concurrence; in that case the police encountered an individual sufficiently incapacitated to justify concern for his physical safety.
We therefore agree with both parties to some extent. Gibson is correct that "true necessity" is a part of the first prong inquiry whether objectively reasonable grounds support a belief an emergency exists. But as discussed below in the context of this case, the State is also correct that the concept of "true necessity" does not in every case require those objectively reasonable grounds to be based on probabilities rather than possibilities Application of the emer-geney aid exception to the warrant requirement cannot be evaluated with across-the-board, rigid, and formalistic standards; it is a flexible doctrine that, as the court of appeals noted in Galimeyer, must be evaluated on a case-by-case basis, balancing the competing interests in light of the actual facts, perceived dangers, and cirenmstances encountered by police.
D. We Reverse The Court Of Appeals' Application Of The Mitchell/Gall-meyer Standard In This Case
We next consider whether the court of appeals correctly applied the Mitchell/Gall-meyer standard to the facts of this case when it concluded the police did not have an objectively reasonable belief of an emergency when they searched Gibson's trailer, reversed the trial court's denial of Gibson's suppression motion, and vacated Gibson's convictions. We conclude it did not and therefore reverse its decision.
1. Police duties
The emergency aid doctrine is predicated on the notion that during emergencies police have duties to take action that might otherwise violate legally protected rights.
In Alaska there are cireumstances where "[al police officer is under a duty to protect the lives and property of the public."
(a) A peace officer investigating a crime involving domestic violence shall protect the victim and any member of the victim's family and prevent further violence by
(1) transporting an adult victim and any member of the victim's family from the place of the offense ... to a location within the community ... that is a shelter [or other location] requested by the victim;
(2) assisting the victim in removing from the residence essential items belonging to the victim ...;
(3) assisting the victim and any member of the victim's family in obtaining medical treatment necessitated ... by contacting emergency medical services*662 or by transporting the victim to a local medical facility . ...120
The text of .515(a), .515(a)(1), and .515(a)(3) each refers to not only the victim of domestic violence but also "any member of the victim's family." This language was deliberate. The bill leading to the addition of AS 18.65.515 as currently in force was passed with conscious reference to the Model Code on Domestic and Family Violence;
In this context we must also reiterate our recent statements about domestic violence. In State v. Miller, we noted "the danger that a report of verbal domestic dispute portends."
The emergency aid exception to the warrant requirement must be viewed against that backdrop in this case. We do not mean to suggest the legislature could eviscerate Alaska's constitutional right of privacy merely by statutorily delineating police duties in specific situations. But in the domestic violence context we can say it is undisputable that the threat of injury or death affecting multiple people, including children and other family members, is a serious consideration for responding officers.
2. The officers' initial search was justified by the emergency aid exception to the warrant requirement.
Whether an officer has objectively reasonable grounds to believe an emergency exists is a question of law,
We take the following factual findings from the superior court's order denying the suppression motions. The officers were dispatched to Gibson's residence for "a domestic disturbance involving a knife." On arrival they heard a woman "sereaming distressfully from the inside of the trailer." A woman stumbled out "naked except for a tank top [and] appeared hurried and visibly injured." She was crying "Help me, help me!" The officers "did not know how many people were involved," "had a person coming out of the trailer," and were aware of the "mention of the knife" in the dispatch, so they requested assistance.
A man "came to the doorway. The officers drew their weapons and ordered him to come out of the trailer. He complied and was placed in custody." The woman went back into the trailer to put on pants. The officers ordered her away from the trailer and tried to question her. They "observed swelling" in one eye and "a cut on the back of her head," she "was hysterical and uncooperative," when she "became argumentative" the officers were concerned "she would start a fight" with them or Gibson.
Although the woman denied anyone else was in the trailer, she continued to be uncooperative and "the officers still could not be certain about how many people were involved." The officers did not rely on the claim that no one else was in the trailer. Both officers testified the motivation for the search was "to make sure" there were no injured people inside in need of their aid, and the superior court found the officers' testimony credible: "There was absolutely no evidence on the record that something outside the trailer led them to suspect that there could be a meth lab inside." Finally, the superior court determined the officers' search of the trailer fell "well within the time and seope limits" of an allowable search under the emergency aid doctrine. The superi- or court concluded the officers' initial search was justified under the emergency aid doe trine, but expressly stated it did not find "a general warrantless search exception for all domestic violence cases" and "the findings are specific to the facts of this case."
The court of appeals reversed, concluding the facts found by the superior court "would not 'have led a prudent and reasonable officer to perceive an immediate need to take action in order to prevent death or to protect against serious injury to persons or property.'"
The State argues the court of appeals "failed to consider the evidence in the light most favorable" to upholding the trial court's findings when it concluded the officers' belief an emergency existed was unreasonable. The State asserts the "court of appeals mistakenly viewed the fast-moving events in isolation and failed to consider the entire scenario." The State contends the officers' belief was reasonable because of the "pandemonium" at the scene when the officers arrived and because the officers "did not know for sure who had placed the 911 call and had not seen or recovered the knife that had been used to threaten" the 911 caller.
Gibson argues the officers' belief was not objectively reasonable because: (1) the officers should have known the altercation involved only two parties given the dispatch call and their own observations when arriving; (2) "[alny 'pandemonium' that existed when the police first arrived had now dissipated or, at a minimum, moved out of the trailer"; (8) Bevin was obviously the victim "given her injuries and hysteria"; and (4) there was no indication anyone was in the trailer.
We agree with the State that the court of appeals did not view the superior court's factual findings in the light most favorable to upholding the denial of the suppression motion. We also believe the court of appeals took a far narrower view of an "emergency" than its own post-Gallmeyer cases have taken. The fundamental question raised by the difference in the superior court's and the court of appeals' decisions is this: is it enough that the police have good reason to believe there might be, as opposed to there is, someone injured in the premises? On the facts of this case, we answer yes. We therefore reverse the court of appeals' decision.
The superior court found the officers could not be certain whether Bevin and Gibson were the only persons involved in the domestic violence occurring in the trailer. The court of appeals implicitly found this finding clearly erroneous instead of considering it an accurate portrayal of the situation, concluding the officers reasonably should have known they had all the actors accounted for when Gibson and Bevin were secured."
Earlier court of appeals cases considering the emergency aid doctrine are instructive.
Professor LaFave notes two relevant examples of situations in which emergency cir-eumstances have traditionally justified war-rantless entry: (1) after police learn of a shooting at a specific location from which one injured victim has been taken to the hospital, "the possibility that 'others may have been injured and may have been abandoned on the premises' provides a sufficient basis for an immediate entry 'to render aid to anyone in distress'
The court of appeals' current view also has been rejected in Washington, which applies the same emergency aid doctrine standard and shares the same heightened constitutional concerns about warrantless entry into a residence.
We believe the Washington courts, Professor LaFave, and the court of appeals' earlier considerations of the Mitchell/Galimeyer standards reflect the appropriate application of the emergency aid doctrine in this case. It is important to contrast the facts of this case with the hypothetical fact pattern the court of appeals presumably was concerned about when reversing the trial court's suppression ruling: this is not a case of an anonymous third-person report of a verbal domestic dispute uncorroborated by any auditory or visual evidence upon the officers' arrival. That fact pattern is not before us and we express no view on the application of the emergency aid doctrine to that fact pattern.
v. CONCLUSION
We REVERSE the court of appeals' decision that the emergency aid doctrine is inapplicable because the officers did not have an objectively reasonable belief of an emergency justifying the initial warrantless entry into Gibson's residence. Because the court of appeals stopped its consideration of Gibson's appeal at this first prong of the emergency aid doctrine, we remand to the court of appeals for consideration of the remainder of Gibson's issues on appeal in light of our decision.
. 640 P.2d 837, 842 (Alaska App. 1982) (adopting standards requiring "reasonable grounds to believe ... an emergency [is] at hand," that search not be "primarily motivated by intent to arrest and seize evidence," and "some reasonable basis ... to associate the emergency with the area or place to be searched" (quoting People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609 (1976).
. See note 1, above.
. Gibson v. State, 205 P.3d 352, 353 (Alaska App. 2009).
. Id. at 353 (quoting Gallmeyer, 640 P.2d at 842).
. Id. at 356 (quoting Gallmeyer, 640 P.2d at 843-44).
. Id.
. Id.
. State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001) (citing Castillo v. State, 614 P.2d 756, 765-66 (Alaska 1980)).
. State v. Miller, 207 P.3d 541, 543 (Alaska 2009) (quoting Joubert, 20 P.3d at 1118).
. Id. (quoting Joubert, 20 P.3d at 1118).
. State v. Blank, 90 P.3d 156, 159 n. 19 (Alaska 2004) (citing State v. Page, 911 P.2d 513, 515-16 (Alaska App. 1996)).
. Id. (citing Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Lupro v. State, 603 P.2d 468, 476 (Alaska 1979)).
. The relevant provisions of the Alaska Constitution are article I, sections 14 and 22. Section 14 provides:
The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. 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.
Section 22 provides in relevant part: "The right of the people to privacy is recognized and shall not be infringed."
. Schultz v. State, 593 P.2d 640, 642 (Alaska 1979) (quoting Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 149 (Alaska 1977)).
. The Fourth Amendment provides:
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.
The Fourth Amendment's protection against unreasonable searches and seizures was applied to the states via the Fourteenth Amendment in
. Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (quoting Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).
. Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (per curiam); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).
. Brigham City, 547 U.S. at 403, 126 S.Ct. 1943 (citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 LEd.2d 290 (1978)); Stevens v. State, 443 P.2d 600, 602 (Alaska 1968).
. 443 P.2d at 602 (quoting United States v. Barone, 330 F.2d 543, 545 (2d Cir. 1964)).
. The following summary of the underlying Stevens facts is based on 443 P.2d at 601-03.
. Id. at 602.
. Id. (quoting Barone, 330 F.2d at 545).
. Id. (quoting Patrick v. State, 227 A.2d 486, 489 (Del. 1967)).
. Id.
. Id.
. Id.
. Id. at 602-03. Using the emergency aid doctrine as a foundational predicate to the court's actual holding likely moved the court's approval of that doctrine beyond dictum notwithstanding Stevens' concession that the chief's initial entry was lawful. See VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (concluding discussion in previous case "was necessary for our holding" and therefore not dictum); Gonzales v. Krueger, 799 P.2d 1318, 1322 (Alaska 1990) (Moore, J., concurring) (stating language in previous decision was not dictum because it was necessary to reach the conclusion).
. Stevens, 443 P.2d at 604-06 (Rabinowitz, J., concurring).
. Id. at 605 (quoting Patrick, 227 A.2d at 489).
. Id. (quoting Patrick, 227 A.2d at 489).
. Id. (quoting Patrick, 227 A.2d at 489).
. 544 P.2d 834 (Alaska 1975). The following summary of the underlying Schraff facts is based on 544 P.2d at 836-38.
. Id. at 841.
. Id. at 841-42 (quoting Barone, 330 F.2d at 545) (citing Stevens, 443 P.2d at 602) (stating Stevens court "upheld the search because the officers' belief in the existence of an emergency was reasonable").
. Id. at 842 n. 10 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir. 1963)).
. Id. at 842 (citing United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973)).
. Id. at 842-43 (citing Vauss v. United States, 370 F.2d 250 (D.C.Cir. 1966)).
. Id. at 843 (citing People v. Gonzales, 182 Cal. App.2d 276, 5 Cal.Rptr. 920 (1960)).
. Id. (citing People v. Smith, 47 Ill.2d 161, 265 N.E.2d 139 (1970).
. Id. (citing State v. Jordan, 79 Wash.2d 480, 487 P.2d 617 (1971)).
. Id. at 844.
. 1d.
. Id.
. Id. at 848 (Boochever, J., concurring). The concurring opinion also noted "[the emergency doctrine is based on a showing of a true necessity-that is, an imminent and substantial threat to life, health or property." Id. at 848 n. 1.
. Id. at 848.
. Id.
. 570 P.2d 162 (Alaska 1977). The following summary of the underlying City of Nome facts is based on 570 P.2d at 165-67.
. Id. at 166.
. Id.
. Id. (quoting Stevens, 443 P.2d at 605).
. Id.
. Id. at 167 (quoting Stevens, 443 P.2d at 602).
. Id. The court expressly refrained from ruling whether the situation was sufficient to justify entry without a warrant for a criminal case. Id. at 167 n. 8.
. 601 P.2d 239 (Alaska 1979). The following summary of the underlying Myers facts is based on 601 P.2d at 240-41.
. Id. at 241.
. Id. at 244.
. Id. at 245 (Rabinowitz, J., concurring) (citing Schraff, 544 P.2d at 841; Stevens, 443 P.2d at 602).
. Id. (quoting People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609 (1976)). The Mitchell court considered the emergency aid doctrine under the Fourth Amendment to the United States Constitution and noted the difficult problems of evaluation and judgment by both the police and reviewing courts. Mitchell, 383 N.Y.S.2d 246, 347 N.E.2d at 609. The court articulated the necessary guidelines for the doctrine's application and further explained the underpinnings of each prong of its standard, summarized as follows: (1) police must have valid reasons for the belief of an emergency, grounded in empirical facts rather than subjective feelings; (2) protection of human life or property must be the primary motivator for the police; and (3) the limited privilege afforded by the emergency doctrine does not give police carte blanche to look for evidence of a crime-there must be a direct relationship between the search area and the emergency. Id. at 609-10.
. 601 P.2d at 245-47 (Boochever, C.J., dissenting).
. Id. at 247-48 (discussing Schraff's listing of exceptions to warrant requirement and concluding only emergency aid exception possible under facts of case).
. Id. at 251.
. 640 P.2d 837. The following summary of the underlying Galimeyer facts is based on 640 P.2d at 837-42.
. Id. at 841.
. Id.
. Id.
. Id. at 839.
. Id. at 841.
. Id. at 841-42 (citations omitted).
. Id. at 842 (quoting Mitchell, 383 N.Y.S.2d 246, 347 N.E.2d at 609); cf. Myers, 601 P.2d at 245 (Rabinowitz, J., concurring); id. at 249, 251 (Boochever, C.J., dissenting).
. Id. at 843.
. Id. at 842.
. Id. (citing 2 Wayne R. LaFave, Search & Seizure § 6.6(a), at 468 (1978)).
. Id. at 843.
. Id.
. Id.
. Id. (quoting Myers, 601 P.2d at 242 n. 4).
. Id. at 842.
. Id. at 844.
. Id. at 844-46.
. Id. at 844.
. Id. at 844-45.
. Id. at 845.
. Id. at 845 n. 13.
. Id. at 846.
. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ("We do not question the right of the police to respond to emergency situations."); Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (noting "the importance of 'prompt inspections, even without a warrant, ... in emergency situations' " (quoting Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (alteration in original)).
. Brigham City, 547 U.S. at 402, 126 S.Ct. 1943.
. Id. at 400.
. Id. at 404 ("An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' The officer's subjective motivation is irrelevant." (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (emphasis and alteration in original))).
. Stevens, 443 P.2d at 602 (quoting Barone, 330 F.2d at 545).
. Id. at 605 (Rabinowitz, J., concurring) (quoting Patrick, 227 A.2d at 489).
. Id. (quoting Patrick, 227 A.2d at 489).
. Schraff, 544 P.2d at 842 n. 10 (quoting Wayne, 318 F.2d at 212).
. 3 Wayne R. LaFave, Searon & Seizure § 6.6(a), at 452-53 (4th ed. 2004) (footnotes omitted).
. Myers, 601 P.2d at 245 (Rabinowitz, J. concurring); id. at 245-47 (Boochever, C.J., dissenting).
. Gallmeyer, 640 P.2d at 842-43.
. See Hotrum v. State, 130 P.3d 965 (Alaska App. 2006); Mark v. State, Mem. Op. & J. No. 7661, 2002 WL 341979 (Alaska App., Mar. 6, 2002); Larson v. State, Mem. Op. & J. No. 7032, 2000 WL 19199 (Alaska App., Jan. 12, 2000); Johnson v. State, Mem. Op. & J. No. 6407, 1998 WL 19470 (Alaska App., Jan. 21, 1998); Harrison v. State, 860 P.2d 1280 (Alaska App. 1993); Williams v. State, 823 P.2d 1 (Alaska App. 1991); Montgomery v. State, Mem. Op. & J. No. 1185, 1986 WL 1160968 (Alaska App., May 28, 1986); Krukoff v. State, 702 P.2d 664 (Alaska App. 1985); Spein v. State, Mem. Op. & J. No. 7259, 1984 WL 908539 (Alaska App., June 20, 1984); Zinn v. State, 656 P.2d 1206 (Alaska App. 1982). See also Hahn v. State, Mem. Op. & J. No. 6462, 1998 WL 119468 (Alaska App., Mar. 18, 1998) (concluding defendant's arguments contesting application of emergency aid doctrine were not preserved, but noting it would find no plain error in trial court's application of doctrine even if defendant were entitled to raise argument).
. See note 92, above, and accompanying text.
. See Brigham City, 547 U.S. at 407-08, 126 S.Ct. 1943 (Stevens, J., concurring) (noting state constitutions can offer more robust protection against warrantless searches than Fourth Amendment); see also Erwin Chemerinsky, Privacy and the Alaska Constitution: Failing to Fulfill the Promise, 20 Alaska L.Rev. 29, 30 (2003) ("Alaska constitutional law is clear that greater rights can be protected under the Alaska Constitution than are recognized under the United States Constitution."); Ronald L. Nelson, We/come to the "Last Frontier," Professor Gardner: Alaska's Independent Approach to State Constitutional Interpretation, 12 Alaska L.Rev. 1, 21 (1995) ("Alaska's discourse on the right to privacy reflects both the state's independence and its unique tradition of emphasizing individual liberties.").
. See, e.g., Beltz v. State, 221 P.3d 328, 334 (Alaska 2009) ("[Wle acknowledge that the explicit protection of privacy set out in article I, section 22 of the Alaska Constitution necessarily modifies [earlier precedent] and increases the likelihood that a person's expectation of privacy in garbage can be deemed objectively reasonable.").
. Municipality of Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993) (quoting Wortham v. State, 641 P.2d 223, 224-25 n. 2 (Alaska App. 1982), aff'd, 666 P.2d 1042 (Alaska 1983)); see also id. ("[The right to privacy granted by Article I, Section 22 does not create a separate, independent right to seek exclusion of evidence.").
. 640 P.2d at 842 (quoting Mitchell, 383 N.Y.S.2d 246, 347 N.E.2d at 609).
. 7 Cal.3d 282, 101 Cal.Rptr. 893, 496 P.2d 1261, 1263-64 (1972).
. Id. at 1263.
. Schraff, 544 P.2d at 848 n. 1 (Boochever, J., concurring) (citing Smith, 101 Cal.Rptr. 893, 496 P.2d at 1263).
. Myers, 601 P.2d at 242 n. 4 (citing Edward G. Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff. L.Rev 419, 434 (1973)). It appears the Gallmeyer court was actually quoting this parenthetical, not the law review article to which the opinion attributed the quote. Compare id. with Gallmeyer, 640 P.2d at 843.
. Stevens, 443 P.2d at 602 (quoting Patrick, 227 A.2d at 489); see also Gallmeyer, 640 P.2d at 844 ("But 'true necessity' has never been construed to require absolute proof that injury would necessarily have occurred.").
. Gallmeyer, 640 P.2d at 844.
. 544 P.2d at 848 (Boochever, J., concurring).
. Id. at 844 (majority opinion).
. Id.
. Id.
. LaFave, note 97, above, § 6.6(a), at 453 (quoting State v. Hetzko, 283 So.2d 49, 52 (Fla.Dist.App. 1973)).
. Deal v. State, 626 P.2d 1073, 1080 (Alaska 1980) (finding police officer justified in entering unsecured vehicle for limited purpose of securing it); see also Lee v. State, 490 P.2d 1206, 1209-10 (Alaska 1971) (establishing police officer duty to go to aid of citizens).
. AS 18.65.515. This case does not present, and we do not consider, the question of whether this statute establishes a duty of care for a civil action.
. 1d.
. Id.
. Minutes, Sen. Judiciary Comm. Hearing on H.B. 314, 19th Leg.2d Sess. (Apr. 15, 1996) (statement of Sean Parnell, Representative, Alaska House of Representatives) ("At the request of many interested individuals and groups, the proposed committee substitute presents a more comprehensive approach to domestic violence in Alaska. The committee substitute is based, in part, on the Model Code on Domestic and Family Violence and is focused on victim protection and domestic violence prevention.").
. Monet Cope on Domestic anp Famity Viorence § 204(1) (1994).
. Compare AS 18.66.990 (defining "household member" broadly, encompassing virtually all arrangements of cohabiting adults and children), with Monet Cope on Domestic and Family Viorence § 102(2) (1994) (defining "family or household members" broadly, including virtually all cohabiting adults and minors).
. Manny Rivera et al., Assaults in Domestic Violence Incidents Reported to Alaska State Troopers, 25 Alaska Justice Forum, Fall 2008, at 7-12.
. 207 P.3d 541, 545 (Alaska 2009) (emphasis added).
. Id. (citing Viorence Policy Center, When Men Murder Women: An Analysts or 2003 Homicide Data, at 3, 5 (2005).
. Gallmeyer, 640 P.2d at 845 n. 13.
. See, e.g., United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995) ("Our de novo review of the record convinces us that the agents did not reasonably believe that they were confronted with an emergency ...."); cf. Beltz, 221 P.3d at 332 (noting in context of warrantless police searches of garbage outside home whether subjective expectation of privacy is objectively reasonable is question of law).
. See, e.g., State v. Wood, 210 Or.App. 126, 149 P.3d 1265, 1267-68 (2006) ("Whether an officer's perceptions of an emergency are objectively reasonable is a question of law and will depend on the facts of each case." (citing State v. Christenson, 181 Or.App. 345, 45 P.3d 511, 513 (2002))).
. Miller, 207 P.3d at 543.
. Gibson, 205 P.3d at 353 (quoting Gallmeyer, 640 P.2d at 842).
. Id. at 356.
. Id.
. Id. To be clear, this case involved not merely "a serious domestic dispute," but serious domestic violence-the initial 911 call included a statement about a threat with a knife and the officers observed Bevin had suffered several head wounds.
. Id.
. See note 100, above.
. Hotrum, 130 P.3d at 967-68 (entry upheld where police responded to a call reporting yelling and gunshots inside home, though police neither heard anyone inside nor received any response to announcement of presence); Mark, 2002 WL 341979, at *1 (entry upheld where police forcibly entered hotel room after finding body of woman who had fallen from room to her death); Larson, 2000 WL 19199, at "1 (entry upheld where police entered home following a report of shooting to ascertain if any further victims were inside); Krukoff, 702 P.2d at 665-66 (discovery of double homicide with killer still at large presented emergency situation justifying search of home for known household weapons, though no expectation of finding additional victims in home).
. Williams, 823 P.2d at 2-3 (emergency exception applied where defendant's confession to killing victim prompted search); Spein, 1984 WL 908539, at *1 (upholding entry under emergency exception after victim's brother witnessed a drunken fight between victim and her husband, heard husband threaten to kill victim, and later heard two gunshots from inside victim's home; public safety officer gained entry after 24 hours of attempts, during which victim was neither seen nor heard from).
. See, e.g., Spein, 1984 WL 908539, at *1 (witness reported hearing defendant threatened to kill victim, followed by two gunshots from inside home).
. Williams, 823 P.2d at 2 (killer confessed to his foster mother, who called police).
. Johnson, 1998 WL 19470, at *1 (police received anonymous telephone tip about burglary on their non-emergency line).
. Hotrum, 130 P.3d at 967 (when investigating call reporting yelling and gunshots inside home, police observed open doorway in middle of night and neither heard anyone inside nor received any response to announced presence); Johnson, 1998 WL 19470, at *1 (when investigating reported burglary, officers observed destroyed patio furniture and burning planter box and heard fight inside); Harrison, 860 P.2d at 1282 (when officer approached resident's house to serve misdemeanor arrest warrant, officer saw man face down at table, apparently seriously ill or dead); Williams, 823 P.2d at 2 (as officer approached apartment, he saw clothing on ground outside bedroom window and several apparent blood stains on steps leading to apartment).
. See Williams, 823 P.2d at 3 ("The passage of time, however, though relevant to the possible existence of an emergency, is not determinative." (citing State v. Beaumier, 480 A.2d 1367, 1373 (R.1. 1984))); see also Montgomery, 1986 WL 1160968, at *1-2 (entry upheld after seven hours of negotiations); Spein, 1984 WL 908539, at *6 (entry upheld more than 24 hours after shots were heard).
. See, e.g., Williams, 823 P.2d at 2-3 (more than six-hour delay in finding victim's apartment).
. Montgomery, 1986 WL 1160968, at "1 (entry upheld despite seven-hour delay when police negotiated with apparently suicidal resident); Spein, 1984 WL 908539, at *6 (upheld despite more than 24-hour delay attempting to peacefully enter residence).
. Harrison, 860 P.2d at 1282 (before entering home to assist apparently ill/dead individual, officer knocked on front door, tapped on window, knocked on door again, tapped on window again, opened front door and yelled in, and continuing calling to apparent victim while approaching); Williams, 823 P.2d at 2-3 (police stopped to knock and identify themselves, sought apartment manager for a key, and again knocked and identified before entering, despite evidence of apparent altercation and blood stains).
. Williams, 823 P.2d at 2-3 (upheld despite more than six-hour delay in finding victim's apartment); Montgomery, 1986 WL 1160968, at *1 (seven-hour delay); Spein, 1984 WL 908539, at *6 (24-hour delay).
. Johnson, 1998 WL 19470, at "1 (police waited until backup arrived before forcing entry into apartment).
. Montgomery, 1986 WL 1160968, at *1 (police did not enter immediately, instead engaged in negotiations with apparently suicidal resident for seven hours).
. Harrison, 860 P.2d at 1282 (officer did not call for ambulance, police backup, or other medical back up despite apparently seriously ill or dead individual).
. LaFave, note 97, above, § 6.6(a), at 457 (quoting People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, 19-20 (1974)).
. Id. at 461, 117 Cal.Rptr. 393, 528 P.2d 1.
. See State v. Johnson, 104 Wash.App. 409, 16 P.3d 680 (2001).
. Id. at 682.
. Id. at 685.
. Id.
. Id.
. Cf. State v. Menz, 75 Wash.App. 351, 880 P.2d 48, 49-50 (1994) (holding warrantless entry lawful under emergency aid doctrine when responding to an anonymous report of domestic violence despite not observing any signs of violence at scene, because "a reasonable person facing this combination of circumstances would
. In his appeal to the court of appeals, Gibson also challenged the second and third searches of the trailer, conducted by Officer Asselin and Detective Bryant, respectively, as part of his claim that the superior court should have granted his motion to suppress, dismissed the indictment, and reversed his conviction. These issues remain for the court of appeals to address on remand.
Dissenting Opinion
dissenting in part.
I agree with the court's articulation of the Gallmeyer test as the correct standard for the warrantless entry of a private residence under the emergency aid exception, but I agree with the court of appeals that the first prong of the test was not met here. In Alaska, it is necessary for police officers to base the suspicion that an emergency exists on objectively reasonable facts. Gallmeyer requires more than pure speculation that an emergency could be ongoing.
In my view, the court of appeals was disciplined in its application of Gallmeyer and correctly concluded that if a warrantless search could be upheld under the cireum-stances of this case, then a warrantless search could be permitted in virtually all domestic disturbance 911 calls. The Alaska Constitution requires more. Because the decision issued today allows the emergency aid exception to swallow the rule that warrant-less entries of private homes are not permitted in Alaska, I respectfully dissent.
. Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982) ("[Ilt is well settled that the existence of an emergency must be determined by an objective standard-whether the evidence would have led a prudent and reasonable officer to perceive an immediate need to take action in order to prevent death or to protect against serious injury to persons or property.").
Reference
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