Osborne v. State

421 P.3d 113
CourtCourt of Appeals of Alaska
DecidedMarch 2, 2018
Docket2589 A-11929
StatusPublished

This text of 421 P.3d 113 (Osborne 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
Osborne v. State, 421 P.3d 113 (Ala. Ct. App. 2018).

Opinions

Judge ALLARD, writing for the Court.

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

*116Because 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

*117Prior 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.

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Bluebook (online)
421 P.3d 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-state-alaskactapp-2018.