*1 AND REMANDED REVERSED for fur- proceedings opin-

ther consistent with this

ion.

BURKE, Justice, concurring. legislature’s

Were it not for the recent 11.81.370,I

enactment of would have AS

grave our interpretation reservations about However, persuaded 12.25.080. I am AS join opinion my colleagues legislature’s

because believe that the en- strong

actment of 11.81.370is evidence AS

of what previously it intended when it en- Sands,

acted 2A AS 12.25.080. See C. Suth- Statutory (4th

erland Construction 49.11 § 1973).

ed. CHILTON, Appellant,

Eric Alaska, Appellee.

STATE of

No. 4148.

Supreme Court of Alaska.

9,May *2 and

Mt. between Avenue Roberts Gastineau Street, they voices South Franklin heard the apparently coming from the rear of Apartments. This build- Gross north, ing right, of the is located where point at the it connects stairway building Franklin The with Street. South only building on the street and is the faces Knowing that stairway. that of the side frequented indi- by this was sometimes area the officers de- smoking marijuana, viduals investigate They voices. cided to the public stairway through a moved off of the proceeded down gap handrailing in and the a to where the rear of path beaten building path the could be observed. building, from thirty about feet the located lot, boundary well the the within building. runs to It does parallel the provide any part the access Rothschild, Share, Rather, clump Frank Asst. in a of bushes. Walter it deadends Defenders, Shortell, point Brian De- on the the vantage Public Public From their fender, through for an Anchorage, appellant. officers observed Eric Chilton window, engaged in what open, undraped Weeks, Larry Atty., M. R. Dist. Avrum appeared separating to be the and “snort- Gross, Gen., Juneau, for Atty. appellee. ing” led to of cocaine. These observations the of Chilton and the seizure of arrest J., RABINOWITZ, Before C. and CON- white, cigarette containing pow- package NOR, BOOCHEVER, BURKE and MAT- cocaine. dery substance later identified as THEWS, JJ. pos- for subsequently Chilton was indicted drug in of AS session of a narcotic violation OPINION 17.10.010.1 BURKE, Justice. 12, 1976, Chilton moved to On October appeal upon In re- this are called the suppress ground on the that cocaine view the trial court’s denial Eric Chil- cigarette package search of the warrantless certain suppress ton’s motion to evidence on rights. The his trial violated constitutional grounds that such evidence stating that court denied motion We product illegal of an search. conclude view justified under the seizure refusing court err in that trial did stipulation by the doctrine. Pursuant to a challenged suppress evidence. parties, abeyance case held in was then 1, 1976, approximately this decision in State August pending On at m., Erickson, (Alaska 1978).2 a. Fol- 12:55 officers Kalwara and Bartlett P.2d 1 Erickson, in re- police department lowing of the Juneau were en- our decision Chilton cocaine, suppress gaged patrol in a normal foot the down- newed his motion to the officers’ ini- contending descended Bul- this town Juneau area. As time tial constituted ger Way, stairway running a wooden down observations from constitutionality provides: Erickson we 1. AS “It is unlawful for In 17.10.010 manufacture, any person possess, un- as a with- the classification cocaine narcotic control, sell, administer, prescribe, purview der his pense, in 17.10.010. dis- AS barter, give, supply or distribute manner, compound any drug except narcotic chapter.” in this authorized (1974); illegal Zehrung an search. The trial court denied the L.Ed.2d n.14 concluding State, 189, 192 motion the officers had (Alaska 1977), 569 P.2d mod and, probable cause to enter ified, (Alaska 1978); Schraff v. alternative, any- 834, 838 (Alaska 1975). Any having one a desire use it. Chilton sub- factual determinations made the trial sequently plea entered a of nolo contendere ruling on suppress court in the motion to *3 upon which was expressly conditioned upheld will be unless clearly erroneous. preservation of his right appeal the trial State, 178, Gonzales v. 586 P.2d 180 n.9 rulings court’s on seizure the search and (Alaska 1978).5 issues.3 This appeal followed. case, In the instant officers’ observa- question We turn to the first tions of their were a direct result warrant- validity of the initial observa officers’ private property. less onto Neverthe- tions. It is well settled that an officer’s less, constitution- trial court view things observation of made observations, ality concluding of the that place right from a where he has a to be probable the officers “had cause to investi- does not constitute a search constitu gate the activities called to their attention State, Daygee tional sense. v. 514 P.2d area, coming by voices from the known to 1159, (Alaska 1973); 1162 Klockenbrink v. law, violating frequented by persons be State, 958, (Alaska 1970). 472 P.2d 961 See presence in fact property and that their States, 234, also Harris v. United 390 U.S. constitutionally owned was not in- privately 236, 992, 993,19 1067, 88 L.Ed.2d 1069 S.Ct. firm.” After a review of the record in its California, 23,43, (1968); Ker v. 374 U.S. 83 agree with the entirety, we are unable to 1623, 726, 1635, S.Ct. 10 L.Ed.2d 744 trial court’s conclusions. Conversely, when observations are made exist, cause to probable For from an area to which the officer has not facts and circumstances within the officers’ invited, expressly been the in impliedly knowledge, must be sufficient themselves trusion is an unlawful search unless made to warrant a man of reasonable caution in pursuant to a or one of the warrant estab believing being that a crime has been or is exceptions require lished to the warrant State, 884, 590 P.2d committed. Pistro v. Court, Superior ment. Lorenzana v. 9 (Alaska 1979); State, 886 Cruse v. 584 P.2d 626, 585, 591, Cal.Rptr. Cal.3d 108 511 P.2d 1141, 1978). (Alaska good More than 1144 33, (1973).4 constitutionality 39 Once the required. part faith on the of the officer challenged observation has been State, 508, P.2d 517 Erickson v. 507 through suppress, a motion to the burden is 1973). for the In this case the sole basis prove by preponderance on the a State departure public way from the officers’ place the evidence that the officer was in a coming they apparently that heard voices right acting where he had a to be or was Apartments, of the an pursuant to an from the rear Gross exception the warrant Matlock, requirement. they previously area where accosted See United States v. had 164, n.14, 988, 996, smoking marijuana.6 415 177 94 39 individuals There is U.S. S.Ct. Fave, 1979); plea expressly (Cal.App. 3. A La Search and Sei- nolo contendere conditioned W. right 2.3(c) (1978). appeal on the limited an issue which zure § parties stipulated, with the trial approval, being dispositive of the State, Wright 5. See 501 P.2d also effectively preserves appeal. case the issue for State, (Alaska 1972); Merrill v. Municipality Anchorage, Oveson v. (Alaska 1969). 233-34 State, (Alaska 1978); Cooksey 803 n.4 (Alaska 1974). 524 P.2d 1251 devoid of 6. We note that the record is concerning of en- number evidence either the provides 4. Lorenzana a useful discussion of marijuana smoking with counters individuals police when a officer’s observations into span or the time that had occurred in this area home will be considered a search. See also place. had taken in which such encounters (Alaska 1979); Pistro v. 590 P.2d 884 Court, Superior Cal.Rptr. Phelan v. however, otherwise a where the officers or was suggest, in the record to nothing case, believe, being the ei- to be. This right had reason had a the officers otherwise, contrary that such finding ther to the from the voices trial court’s occurring partic- on that illegal activity was clearly erroneous9 does ular This information alone occasion. believe, dissenting colleagues, Our To cause. probable rise to the level position. We do misinterpret our simply private to venture onto police allow officers right no had to be not hold that officers they hear voices property merely because when first observed Chil- on the past an area where crimes coming from Rather, no such it is our belief ton. infringe unduly committed would have been from the evi- can be made determination upon protections.7 amendment fourth Just as evidence dence in the record. finding support the observa does not constitutionality it upon question turns so would not public, tions thus contrary. Simply area which support or not the was an whether *4 is, open public. was to The trial impliedly the record in our put, the evidence in the use finding path that the was “made support any to opinion, wholly insufficient of to do so” by happened whomever to want right be finding regarding the officers’ to entirely was on Kalwara’s based Officer path the at time the observations on the 23,1978 affidavit,8 pho undated March four were made. were attached tographs of the area which the meet its burden Since State failed to view to affidavit and the trial court’s the the uphold we are to con- proof, of unable ing during March or of the area sometime evi- stitutionality of the observations. The

April Significantly, all of this evi of 1978. as these observa- gained dence a result of path the as of goes to the condition of dence sup- been therefore tions should 1978, one and one- approximately March States, Wong Sun v. United 371 pressed. place. after the observations took years half 471, 441 407, 9 L.Ed.2d U.S. S.Ct. in to the nothing was the record There that rever- Inasmuch we have decided accurately reflects effect that this evidence grounds, it is required sal is on the above path the at the time the the condition of remaining unnecessary to reach Chilton’s Moreover, were made. observations arguments. absolutely per contains no evidence record REVERSED. created, path taining to how the who, anyone, if extent of its use BOOCHEVER, Justice, joined by MAT- com to use it. are therefore authorized We THEWS, Justice, dissenting. before pelled to conclude that the evidence majority’s holding that I dissent from the wholly trial court was insufficient on the path to be preponderance right of the evi the officers had no by establish because, in first Chilton at the time the observations where viewed dence that conduct in public this my opinion, to the officers’ path were made the Myers, and observed lett and walked over Chilton 7. State v. Cf. entry 1979), window: of in the where we a warrantless (5) grounds from the win- I estimate the distance a commercial establishment on the approximately path prop- to be dow thirty (30) beaten that due to the commercial nature of overlooking surrounding feet hillside and on a erty the en- and the circumstances Apartment; area is accumulated try property Gross with and other detritus on downtown diminished the owner of the had a bottles, trash, cans, old i. e. shoes beer expectation privacy. land in the vacant Juneau; area part: provided, pertinent in This affidavit stairway, (4) At I left the where upon by relied addition the evidence 9.In railing running gap there is a along in hand court, rear trial the dissent notes that pro- path the sidewalk and a beaten many ways abut commercial establishments ceeding parallel to Street. out South Franklin record, nothing in the the area. There is on however, path Bart- It was on that beaten that Officer support this statement. case did not invade Chilton’s reasonable ex- control over the area in back of the build pectation privacy. ing. generally Courts have ten held that building ants in multiple-unit have a low

The trial court found that “was expectation privacy er in those areas of by happened made use of whomever want so.” supported do This building surrounding grounds which by substantial evidence. The hillside be- See, g., e. United are open to common use. tween Franklin South Street and Gastineau 554, Pagan, States v. Cruz 537 F.2d 557-58 Avenue where the officers stood is overg- (1st 1976) (no expectation of privacy Cir. brush, rown with and in Officer Kalwara’s garage); Smith v. underground words, e., i. trash, “accumulated with beer denied, 793, cert. (Alaska), 414 U.S. cans, bottles, old shoes and other detritus” (1973) (no 38 L.Ed.2d 489 S.Ct. that one commonly finds on vacant urban expectation privacy dumpster belong land. Officer Kalwara had found persons Commonwealth ing apartment building); smoking marijuana in back of Chilton’s Thomas, 358 Mass. 267 N.E.2d 489 building prior occasions. (1971) (no expectation privacy There is no fence or other obstruction be- cellar apartment building). Although of an hind the Where meets the officers did not use an area might public landing, stairway at there is an way be connected in some with those hav absence of a railing easy access to the ing building, it business in the was still an path. “very is a well beaten” one. freely public. used The officers conflicting No presented. evidence was ever engage did not in offensive conduct such as *5 agree cannot the trial court was climbing escape2 peering onto fire clearly erroneous in pulled under a impliedly open public. window shade.3 Under the circumstances, agree I would with the trial In my opinion, given the nature of the presence court that the officers’ near Chil- use, public police and its known ton’s window did not invade a reasona could utilize the path just other expectation ble evi privacy,4 person might.1 For fourth pur- amendment poses, it is particularly significant dence observed the officers was in standing private the officers were prop- view.

erty when viewed Chilton. “The tech- trespass

nicalities the common law of are

not dispositive of Fourth Amendment Vilhotti,

claims.” United States In Pistro

F.Supp. (S.D.N.Y.1971). (Alaska 1979), 590 P.2d 884

held that police evidence viewed while offi-

cers were on the defendant’s driveway was

admissible because this would have been the

way public ordinarily prem- entered the

ises. There is no evidence that Chilton or

the owners of the building ever attempt degree

made an to exercise any Fave, Seizure, squared 1. See 1 W. La Search and 2.3 4.I do not see § how this case can be (1978). Myers, at 325 with State v. 601 P.2d 239 1979), majority where of this court held that police Court, Superior Cal.App.3d could make a warrantless into Cohen v. closing Cal.Rptr. (1970) (remanding an unlocked movie theatre after hours. to trial Certainly expectation priva- testimony concerning there is a lower court for additional ten- lot, cy unfenced, especially escape). ants’ use in an vacant urban of first given signs public obvious use such as brush, path, trash and than in the Court, beaten-down Superior 3. Lorenzana v. 9 Cal.3d interior of a Cal.Rptr. 585, 511 P.2d 33