Ahkivgak v. State

730 P.2d 168, 1986 Alas. App. LEXIS 287
CourtCourt of Appeals of Alaska
DecidedDecember 19, 1986
DocketA-1269, A-1303
StatusPublished
Cited by7 cases

This text of 730 P.2d 168 (Ahkivgak v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ahkivgak v. State, 730 P.2d 168, 1986 Alas. App. LEXIS 287 (Ala. Ct. App. 1986).

Opinion

OPINION

COATS, Judge.

Aaron Ahkivgak pled no contest to second-degree burglary. AS 11.46.310. Lloyd Ahkivgak pled no contest to first-degree theft and second-degree burglary. AS 11.-46.120 and AS 11.46.310. Both preserved their right to appeal the trial court’s denial of their suppression motion. See Oveson v. Anchorage, 574 P.2d 801, 803 (Alaska 1978); Cooksey v. State, 524 P.2d 1251, 1256 (Alaska 1974). Both assert, on appeal, that an illegal search produced the evidence against them. Lloyd Ahkivgak also challenges the amount of restitution he was ordered to pay, and the trial court’s amendment of the restitution order.

North Slope Borough Public Safety Officers Harold Snowball and Robert Savenko received information that Lloyd and Aaron Ahkivgak might have burglarized a store in Barrow and that evidence of the burglary might be in their home. When the officers went to the Ahkivgak residence, Mary Ah-kivgak, Lloyd’s and Aaron’s mother, complied with the officers’ request to enter and speak with Aaron. She told the officers that Aaron was asleep upstairs. Once upstairs, Savenko and Snowball split up to search for Aaron. Snowball found Aaron in a bedroom on one side of the stairs. Aaron was sitting in bed and Snowball asked him to “go down to public safety and talk with [him and Savenko].”

Savenko continued down the hall, passing an open doorway to the room in which Snowball and Aaron were speaking. Sa-venko testified that when he passed the door to Aaron’s room, he did not know Snowball had found Aaron and that he did not see or hear Snowball and Aaron talking. Snowball testified that he did not see or hear Savenko pass the doorway. Aaron saw Savenko walk past the door, and testified that Savenko did not look into the room.

Savenko entered a room at the end of the hall. He saw a wall consisting of studs only partially covered by sheetrock. Behind or between these studs, Savenko noticed stereo boxes marked with the same brand name as items stolen from the trading post. The officers seized the stereo boxes.

Snowball questioned Aaron about the seized boxes. Aaron and his brother, B.A., as well as W.A., who B.A. implicated, made statements after being questioned concerning the seized boxes. Lloyd was arrested, based on these statements. The seized evidence and the statements provided the basis for the charges against Lloyd and Aaron.

Aaron and Lloyd moved to suppress the evidence seized and to bar admission of the various statements, alleging Savenko’s search was illegal. The trial court denied these motions. Aaron and Lloyd pled no contest to the charges against them, preserving their right to appeal the evidentia-ry issues.

Superior Court Judge Michael I. Jeffery ordered Lloyd Ahkivgak to pay $10,000 restitution. The trial court subsequently set a sentence modification hearing on its own motion. At that hearing, Judge Jeffery ordered that the full value of Lloyd’s permanent fund dividend checks be applied to restitution while Lloyd was incarcerated or on probation.

I. VALIDITY OF THE SEARCH

The Ahkivgaks challenge the trial court’s denial of their motion to suppress. The Fourth Amendment to the United States Constitution and Article I, section 14 *171 of the Alaska Constitution bar unreasonable searches and seizures. A warrantless search is per se unreasonable unless it falls within an exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Deal v. State, 626 P.2d 1073, 1078 (Alaska 1980).

An exception to the warrant requirement is the plain view doctrine. Under this doctrine, a police officer may seize evidence which the officer observes in plain view, from a place at which the officer has a right to be. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971); Deal, 626 P.2d at 1078. To satisfy the plain view doctrine, the state must prove: 1) the initial intrusion was lawful; 2) the discovery of the evidence was inadvertent; and 3) the evidence’s incriminating nature was immediately apparent. Deal, 626 P.2d at 1079; Reeves v. State, 599 P.2d 727, 738 (Alaska 1979). The state must prove by a preponderance of the evidence that the exception to the warrant requirement existed. Chilton v. State, 611 P.2d 53, 55 (Alaska 1980); Schraff v. State, 544 P.2d 834, 838 (Alaska 1975).

On appeal of a denial of a motion to suppress, the reviewing court views the evidence in the light most favorable to the prevailing party. Deal, 626 P.2d at 1079; Castillo v. State, 614 P.2d 756, 765 (Alaska 1980). The trial court’s factual findings are only reversed if they are clearly erroneous. Chilton, 611 P.2d at 55; Hubert v. State, 638 P.2d 677, 683 (Alaska App.1981). Reversal is proper where there is no substantial evidence supporting the trial court’s findings. Deal, 626 P.2d at 1079.

The trial court found Snowball and Savenko had valid consent to look for Aaron upstairs. Judge Jeffery also found that Snowball discovered Aaron awake and did not have to raise his voice, that Snowball and Aaron spoke in normal tones, and that Savenko walked past Aaron’s open doorway without either officer seeing or hearing the other. Judge Jeffery accepted Snowball’s testimony that the Ahkivgak children shared the upstairs of the house without specifically assigned rooms. The trial court found Savenko was not aware Snowball had found Aaron when Savenko passed Aaron’s room and discovered the stereo boxes. Finally, the court also found that the boxes’ labels were those of a brand stolen in the burglary. The issue here was the officers’ credibility, and the trial court resolved that issue against the Ahkivgaks. We cannot say there was no substantial evidence supporting the trial court’s findings. Thus, the findings are not clearly erroneous.

II. RESTITUTION

Judge Jeffery ordered Lloyd to pay $10,-000 restitution. Lloyd asserts that the court did not adequately investigate his ability to pay before setting the amount. While Lloyd raises other issues concerning the restitution ordered, we need not reach those issues because we agree that the trial court’s inquiry into Lloyd’s ability to pay was inadequate. We remand for further fact finding on this issue.

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Bluebook (online)
730 P.2d 168, 1986 Alas. App. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ahkivgak-v-state-alaskactapp-1986.