*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).
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
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),
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.