State v. Myers

601 P.2d 239, 1979 Alas. LEXIS 572

• Court: Alaska Supreme Court
• Decided: October 12, 1979
• Docket: 3931, 3932
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

In this petition for review, the state seeks reversal of a superior court order granting the respondents’ motion to suppress evidence. The evidence was discovered by the police as a result of a late-night warrantless entry onto commercial premises for the sole purpose of securing the premises against burglary. We hold that the entry and subsequent limited search were police actions for which no warrant is required, and finding them otherwise reasonable within the meaning of the Constitution, we reverse.

At 2:30 a.m. on July 18, 1977, Juneau Police Officers Kalwara and Coyle were making routine security checks of commercial establishments in downtown Juneau. Their customary procedure was to systematically ensure that the entrances and exits to such premises were locked. Doors were very frequently found open, sometimes four to five on a given night. An open door would prompt a brief check to make sure no intruders were present, and the premises would be locked. Subsequently, the owner or manager of the establishment would be told of the discovery by police headquarters.

On the night in question, in accordance with their usual patrol route, the officers entered an alley onto which opened the exit doors of seven or eight businesses. A narrow corridor running perpendicular from the alley also contained several doors that the officers usually tested. This passageway was strewn with debris and was not visible from the street. Occasionally people had been found drinking there.

As they proceeded with their security check, the officers observed a light coming from the normally dark corridor. Walking back into the passageway, the officers discovered that the fire exit door of the Twentieth Century Theatre was propped open about twelve inches. They entered the building, walked several steps down a hallway to a door leading to the backstage area, heard voices coming from that area, and looked in.¹ They observed the respondents sitting on the floor, with cocaine paraphernalia scattered about. The respondents, one of whom was the manager of the theatre, were arrested and the evidence seized.

I

The question presented is whether the warrantless entry² violated article I, section 14 of the Alaska Constitution and the fourth amendment of the Federal Constitution, which provide that:

The right of the people to be secure in their persons, houses [and other property],³ 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.

We have repeatedly confirmed out commitment to the principle that a warrantless search will be considered per se unreasonable unless it falls within a previously recognized exception to the warrant requirement, see, e. g., Schultz v. State, 593 P.2d 640, 642 (Alaska 1979), and, despite the state’s contentions to the contrary, we are not persuaded that a security check of business premises falls within any of the previously enumerated categories.⁴ However, the search in question is of a kind that has rarely been challenged in the courts, and when challenged, has been found constitutional.⁵ We are confronted, therefore, with a unique set of facts which require that we look, albeit with great caution, beyond the four corners of previously recognized exceptions to the principles that gave rise to them.⁶ We have determined, for the reasons set forth below, that while subject to the fourth amendment’s command that a search be reasonable, a routine business security check may, under certain circumstances, be conducted in the absence of a warrant.

There is no doubt, as previous cases and the particular language of the Alaska Constitution make clear,⁷ that the Constitution protects an individual’s reasonable and subjective expectation of privacy regarding commercial premises. See, e. g., Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Schultz v. State, 593 P.2d 640 (Alaska 1979). Expectations of privacy are not all of the same intensity, however. Both subjectively and in society’s judgment as to what is reasonable, distinctions may be made in the varying degrees of privacy retained in different places and objects.⁸ See Rakas v. Illinois, 439 U.S. 128, 152-53, 99 S.Ct. 421, 435-36, 58 L.Ed.2d 387, 407-8 (1978); United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538, 549 (1977); United States v. Reyes, 595 F.2d 275, 279 (5th Cir. 1979); United States v. Fluker, 543 F.2d 709, 716 (9th Cir. 1976).⁹ When a police intrusion takes place in a context in which only a “diminished expectation of privacy” exists, such a search must be “reasonable” within the meaning of the Constitution, but may not necessarily be subject to the warrant requirement. See, e. g., United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538, 549 (1977); South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004 (1976); United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116, 1130 (1976).¹⁰ Accordingly, the fourth amendment neither compels us to ignore the profound differences distinguishing one’s home from one’s business, nor compels us to presume that people desire or expect the police to conduct themselves in identical fashion with respect to each.¹¹

The search challenged here occurred at 2:30 a.xn., an hour at which the privacy of one’s conduct in one’s home deserves and receives the fullest protection afforded by the Constitution. See, e. g., Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514, 1519 (1958); United States v. Searp, 586 F.2d 1117, 1124 (6th Cir. 1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). See also State v. Shelton, 554 P.2d 404, 406 (Alaska 1976). With respect to a business, however, when the doors close, the owner has gone home, and night falls, the owner’s interest is normally not the protection of private conduct; at such a time, when the property is most vulnerable to burglary, the security of the premises ordinarily becomes the paramount interest. It is only reasonable to assume that the vast majority of proprietors, particularly in urban areas where burglary is not uncommon,¹² subjectively expect and encourage the police to be vigilant in protecting business premises, and are aware that, when a normally deserted and locked building is discovered by the police to be unsecured, such vigilance may require trespasses that would not be tolerated in one’s home.¹³

The “diminished expectation of privacy” shared by most proprietors in the foregoing context obviously cannot justify an unqualified rule permitting warrantless entries onto commercial premises. See Michigan v. Tyler, 436 U.S. 499, 505-06, 98 S.Ct. 1942, 1947-48, 56 L.Ed.2d 486, 495-96 (1978). Individual proprietors who, for any number of legitimate reasons, may not desire even the most cursory searches of their business premises at any time, are entitled to have their right to such privacy protected. See Schultz v. State, 593 P.2d 640, 642 (Alaska 1979). Nor can we ignore the possibility that personal effects may be subjected to scrutiny by police officers authorized only to secure the premises, without a prior evaluation of that risk being made by a neutral magistrate. See Michigan v. Tyler, 436 U.S. at 505, 98 S.Ct. at 1948, 56 L.Ed.2d at 496.

However, the traditional means supplied by the Constitution to ensure that protected rights are not infringed by otherwise reasonable intrusions, namely, the requirement that a search warrant first be obtained, is unavailing in the present case. The Constitution provides that “[n]o warrants shall issue, but upon probable cause,” and it is conceded that security checks, including the one conducted here, are procedures to which the traditional concept of probable cause is inapposite, thus precluding the issuance of a constitutional warrant.¹⁴ Though a warrant procedure based on less than probable cause has been approved for certain kinds of administrative searches,¹⁵ the justifications for doing so in those cases are not present here. Whereas administrative searches are premeditated government actions involving ample time to procure a warrant, and often take place in foreseeable adversary circumstances in which a warrant is seen as a buffer of rationality,¹⁶ security checks are undertaken on behalf of property owners, are responsive to immediate needs, and are required so often as to render the warrant procedure impractical.

To impose a warrant requirement on such searches, therefore, would be to foresake the substantial expectations of protection against burglary held by a large segment of the community. Such a result is unnecessary to protect the privacy rights potentially jeopardized by a rule legitimizing security checks. As the Supreme Court has declared with respect to the deleterious effect a warrant procedure might have on the statutory goals of certain administrative searches, “[t]he reasonableness of a war-rantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 1825, 56 L.Ed.2d 305, 317 (1978). Correspondingly, we believe that a narrowly drawn exception to the warrant requirement can effectively legitimize and protect, respectively, the countervailing interests drawn in question by security checks of business premises.

Accordingly, we hold that law enforcement personnel 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. In the context with which we are immediately concerned, locked premises must be taken as indicating that no war-rantless entry is authorized. Any search conducted incident to a legitimate entry must be brief and must be limited and necessary to the purpose of ensuring that no intruders are present on the premises. In addition, someone responsible for the premises must be informed, as soon as is practicable, of the protective measures taken.

II

The intrusion challenged in the instant case meets the criteria delineated above. It is undisputed that officers Kal-wara and Coyle discovered the theatre’s exit door ajar pursuant to a routine after-hours security check, entered the theatre for the sole purpose of securing the premises, and confined their search, which was brief and consisted only of ensuring that no intruders were present, to the legitimate purpose of the entry. Given that the thea-tre was normally dark at 2:30 a. m., that the light observed by the officers was visible only from an interior alley and not from the main public thoroughfare, and that the rear exit door had been deliberately propped open in a passageway previously frequented at that late hour only by persons seeking to conceal their activities, it was reasonable for the officers to believe that the security of the premises was in jeopardy. Finally, the officers had no reason, nor has any been adduced since, to believe that the theatre owner would not consent to their entry. On a prior occasion officers Kalwara and Coyle had found the theatre’s same fire door open, had secured the premises, and had subsequently notified the owner of their action. While the record does not reveal the proprietor’s precise response on that occasion, it is at least apparent that, on the basis of that experience, the officers felt encouraged to protect the property as they had in the past. We conclude, therefore, that the challenged search falls within the exception to the warrant requirement delineated in part I of this opinion.

Based on similar considerations we also find the officers’ actions reasonable within the meaning of the Constitution. The respondents suggest that the officers’ failure to attempt to contact the theatre owner prior to entering the building rendered the entry unreasonable. We disagree. The existence of one reasonable course of action does not render all alternative courses unreasonable. Here, based in part on the prior contact between the officers and the owner, and because, speaking generally, we cannot say that the delay incident to contacting the owner would not facilitate the escape of an intruder or increase the physical risk to the police, we deem the course chosen a reasonable one.

The order suppressing evidence is REVERSED.

1 . It is not clear from the record whether the door to the backstage area was opened by the officers or was already open.

2 . The trial court found, and the respondents do not dispute, that the seizure of respondents and evidence would have been proper had the initial entry by the police been proper. The observation of respondents’ activities provided probable cause to arrest; once justifiably within the backstage area, the officers could then seize the evidence that was in plain view. See State v. Spietz, 531 P.2d 521, 523 (Alaska 1975).

3 . The phrase appearing in brackets appears only in the Alaska Constitution.

4 . See Schraff v. State, 544 P.2d 834, 840-41 (Alaska 1975). To hold that “voluntary consent” or “emergency aid” existed here would significantly depart from the established meanings of those terms, see, e. g., Erickson v. State, 507 P.2d 508, 515 (Alaska 1973) (to be voluntary, consent “must be unequivocal, specific and intelligently given . . . .”); Mascolo, The Emergency Doctrine Exception to the Warrant Requirement under the Fourth Amendment, 22 Buff.L.R. 419 at 434 (1973) (“emergency aid” ordinarily requires “true necessity — that is, an imminent and substantial threat to life, health or property” (citations omitted)).

5 . We have found only three cases involving searches of commercial establishments on facts similar to those here. In People v. Parra, 30 Cal.App.3d 729, 106 Cal.Rptr. 531, cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973), the police found the door of a florist shop ajar at night. They entered “to attempt to secure the store for the owner of the business as best we could, contact him and find out if . everything was all right, if anything had been taken . . . .” Id. at 533. In attempting to ascertain the owner’s identity, heroin was discovered. The court held the search and seizure valid, finding the entry privileged, insofar as its sole purpose was the preservation of the owner’s property. Id. Accord, State v. Bell, 249 So.2d 748 (Fla.Dist. Ct.App. 1971) (emphasizing commercial nature of premises, and need for nighttime security checks); People v. McErlean, 38 Misc.2d 634, 235 N.Y.S.2d 657 (1962).

6 . See United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2483-84, 53 L.Ed.2d 538, 548-49 (1977); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968); United States v. Edwards, 498 F.2d 496, 498 (2nd Cir. 1974). See also Erickson v. State, 507 P.2d 508, 515 (Alaska 1973).

7 . See note 3 supra.

8 . Thus, we stated in Nathanson v. State, 554 P.2d 456, 458 (Alaska 1976), that “the content and incidence of this . . . [fourth amendment] protection must be shaped by the context in which it is asserted.”

9 . See also Clark v. State, 574 P.2d 1261, 1265 (Alaska 1978) (“the expectation of privacy inherent in locked luggage is incomparably higher than in the container involved here, a paper bag”); People v. Westmoreland, 58 Cal.App.3d 32, 129 Cal.Rptr. 554 (1976) (lesser expectation of privacy in backyard of residence).

10 . See also People v. Westmoreland, 58 Cal.App.3d 32, 129 Cal.Rptr. 554 (1976); People v. Little, 33 Cal.App.3d 552, 109 Cal.Rptr. 196 (1973). See generally Greenberg, The Balance of Interests Theory and the Fourth Amendment: A Selective Analysis of Supreme Court Action Since Camara and See, 61 Cal.L.Rev. 1011, 1012-14(1974); LaFave, “Street Encounters” and the Constitution, 67 Mich.L.Rev. 39, 55-59 (1968).

11 . For example, as we stated in Howard v. State, 583 P.2d 827, 836 n.23 (Alaska 1978): “Property which has been converted for commercial use ... is entitled to less privacy protection under the federal Fourth Amendment than a purely private dwelling.” See Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312, 316 (1966).

12 . Recent data compiled by the Alaska Criminal Justice Planning Agency show that the per capita incidence of non-residence burglaries in Juneau exceeds that of other population centers in Alaska. See 1978 Criminal Justice Plan, at 51.

13 . Under the circumstances, we do not believe the respondents here, an employee of the thea-tre and two friends, could reasonably entertain an expectation of privacy contrary to that of the owner of the theatre.

14 . See Marshall v. Barlow’s, Inc., 436 U.S. 307, 326-27, 98 S.Ct. 1816, 1826-28, 56 L.Ed.2d 305, 319-21 (1978) (Stevens, J., dissenting): T. Taylor, Two Studies in Constitutional Interpretation 41 — 47 (1969); Williamson, The Supreme Court, Warrantless Searches, and Exigent Circumstances, 31 Okla.L.Rev. 110, 112-115 (1978). See also South Dakota v. Opperman, 428 U.S. 364, 370 n.5, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000, 1006 n.5 (1976); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968); United States v. Edwards, 498 F.2d 496, 498 (2nd Cir. 1974).

15 . Warrants based on general information may be issued to authorize “administrative searches conducted to enforce local building, health, or fire codes . . . .” Michigan v. Tyler, 436 U.S. 499, 506 n.5, 98 S.Ct. 1942, 1948 n.5, 56 L.Ed.2d 486, 496 n.5 (1978). See, e. g., Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. , 56 L.Ed.2d 305, 316 (1978); Woods & Rohde, Inc. v. State, 565 P.2d 138, 151 (Alaska 1977).

16 . See Camara v. Municipal Court, 387 U.S. 523, 532-33, 87 S.Ct. 1727, 1732-33, 18 L.Ed.2d 930, 937 (1967); Woods & Rohde, 565 P.2d at 151.