State v. Crocker

Accordingly, address these we decline

points further.

Conclusion Board’s written

Because the Parole deci- required by specificity

sion lacks the

33.16.130(c), we direct Parole Board to adequately

issue a revised decision which

explains denying ap- its reasons for Frank’s

plication parole. After the Board issues decision, may re-open

its revised Frank his

petition post-conviction relief. jurisdiction

We do not over retain

case. Alaska, Petitioner,

STATE of

Leo Richardson CROCKER

Jr., Respondent.

No. A-8462. Appeals

Court of Alaska.

Aug. offense, ing paroled, considering applicant be or not be ness of the the amount of recommendations; the basis for these applicant appli- time served and the (18) perceived applicant's willingness background; cant's ability by any supple- standard abide (21) information hoard considers re- parole; mental conditions of crime; regarding liable the facts of the (19) relationship applicant's between the (22) perception appli- board's crime, sentence, length background, community cant’s if released risk to the similarly-situated handling prisoners hoard's parole; and past; (23) any other factors hoard deter- (20) applicant's whether the release at this considering prison- mines to be relevant in compatible society time is the welfare application. er's depreciate and whether it would the serious- General, Juneau, Renkes, for the Attorney Petitioner. Homer, Haas, Spigelmyer, Haas &

Andrew Respondent. COATS, Judge, Chief Before: STEWART, Judges. MANNHEIMER and OPINION MANNHEIMER, Judge. charged

Leo Richardson Crocker Jr. was mis- fourth-degree controlled substance a search after the executed conduct home and found his marijuana- marijuana, plants, harvested superior la- growing equipment. The court concluded that the search warrant ter not have issued. Crocker’s home should superior suppressed therefore The court charges of this evidence and dismissed the appeals the against Crocker. The State now superior court’s decision. appeal clarify main in this is to

Our task prove in the State must order to obtain what person’s and search a enter marijuana possession. home for evidence issue not all arises because State,1 Ravin v. illegal. Supreme held that the Court (Article I, provision of our state constitution 22) protects pos- Section adult’s in their a limited amount of sess recently, And home for use. Ravin) State,2 (based on held Alaska’s statutes must be con- strued allow adults marijuana in less four ounces the home for use.3 opinion, explained For the in this reasons we hold officer should a warrant to search home for issue marijuana possession unless the proba- State’s warrant person’s posses- Rosenstein, scope M. Attor- sion of exceeds Kenneth Assistant General, constitutionally protected ney Special Prosecutions that is Office And, under Gregg D. Appeals, Anchorage, because the State’s 542-43, (Alaska 1975). 3.Noy, rehearing, 1. 537 P.2d 494 83 P.3d at at 546-48. rehearing, App.2003), 2. 83 P.3d 538 (Alaska App.2003). ease fails to rant Crocker’s unless the State estab- test, superior type meet this we conclude that lishes cause to believe that the properly suppressed court the evidence at issue in the case against Crocker. posses- other than the (For instance, under Ravin. application

A warrant must estab- search might properly a court issue a war- search probable that lish cause to believe the rant if State probable the establishes cause being sought to property is connected the to that the possessed believe is a commission crime. of purposes, commercial or that the amount of 12.35.020, judicial officer is Under more.) marijuana is four ounces or empowered authorizing to issue a warrant premises to enter a search for the the disputes State this conclu specified property government’s the Court, sion. In its brief to this the State probable cause rant to argues actually that Ravin does not forbid believe: legislature the from criminalizing posses the (the property

that the or embez- stolen sion of Rather ar zled, or gues), Ravin established an affirmative de personal fense —the defense of use—that can property was used as a means by people be raised who charged crime, committing a marijuana possession. Based on this inter property is the means intended Ravin, pretation argues the State that all crime, committing property possession continues to be possession person inis the who either and, thus, crime in officer Alaska — in intends to commit the crime the lawfully can issue a search for evi possession of whom it someone else to marijuana possession long dence of so as the delivered purpose conceal- probable State establishes cause to ing preventing it otherwise its discov- premises to be contains searched ery, or (or any marijuana property other tend property evidence of constitutes ing possession marijuana). show particular crime or show that a tends to rejected We addressed ar- person this same certain has committed gument opinion Noy: in on in rehearing crime. Ravin did not create an affirmative de- case, every government must establish raise, fense that defendants on a property cause to believe that the basis, case-by-case prose- when were sought connected one possessing marijuana cuted (or ways commission commis- intended home for use.... [T]he sion) aof crime. Supreme repeatedly Court has consis- possession all Not is a tently characterized the Ravin Thus, government crime. seeks announcing a constitutional limitation authorizing a warrant search of government’s authority legis- to enact parapher- home or related prohibiting possession of lation mari- nalia, government’s juana of one’s home. tion must establish to be- cause Accordingly, reject sug- the State’s marijuana possessed lieve in that gestion that Ravin left Alaska’s home outside the falls intact statutes but created an affirmative protected under Ravin. litigated defense be in each individual Not is a case. Noy, Alaska. crime in Under Ravin and (opinion rehearing), 83 P.3d at 547- may possess any adult home, less than four if then- ounces argues is for use. it further if search applications would seem court should not issue a warrant must establish allegation marijuana posses- based on an out, correctly points ques- falls As the State case sion at issue Ravin, cause, ultimate tion is one the search warrant presumption proof. “a be tantamount this would reasonable, negate every is for ex- marijuana possessed a home need not that all explanation facts.5 “presump- culpatory But this observed purely personal use”. application can not non-criminality is built into the But the search warrant tion” of solely rely Alaska Con- on the fact that someone is and seizure clause appli- statutory governing possession marijuana. law The warrant stitution provide cation must an affirmative reason of search warrants. issuance illegal conclude lawfully Before a warrant can marijuana otherwise constitutes evidence issue, proba government must establish crime. being that the evidence dissent, Judge that In his Coats asserts a This same sought is connected to crime. holding departure precedent. a is all con governs warrants for rule decisions, that, points prior out He several substances, just marijuana. trolled accepted premise Court sub- Every day, people obtain controlled marijuana could establish smell prescrip- a legally through doctor’s stances probable cause for a search of a home. instance, prescription pain- For several tion. those cases were decided the context codeine, which is a Schedule killers contain any possession law that state forbade and all Our state consti- IA controlled substance.4 (and marijuana parties not attack government in- protects people from tution Ravin). Thus, that law under in those govern- into their homes unless the trusion instances, marijuana smell of affirmatively a valid reason ment establishes emanating persuasive from a house was evi- though the even for the intrusion. breaking dence someone was the law. per- police may have firm information that longer That is no the case. currently in their possesses son codeine Judge argu- Coats also seconds the State’s home, officer should not issue that, police require present if ment we police to enter that authorizes magistrate with some reason to believe person’s home and search the marijuana possession that a homeowner’s cupboards and for evidence of drawers illegal, creating is the unwarranted also possession police unless the codeine possession marijua- “presumption” that all present magistrate with some affirmative legal. misunderstanding na is This is a was ob- reason believe codeine our decision. (having illegally obtained tained lawfully) illegally. it is distributed holding presump- not rest Our does on a tion, other, way one about whether marijuana applies The same rule possession marijua- instance of possession. supreme court’s deci Under the Rather, holding legal. na in the home is Noy, sion in recent decision and our principle rests on the that no constitutional marijuana illegal. not all search warrant can issue until the Rather, right possess a have a Alaskans present magistrate good reason to marijuana amount use limited for (and believe the law has been broken no accordingly in their homes. hold that We illegality that evidence found can be search warrant can issue evidence searched). premises on the to be marijuana possession unless the affir matively possesses an un- person cause to be Evidence that a quantity marijuana at specified that the in their home lieve not, alone, standing issue in that than the does case is establish under person breaking type of cause to that the believe 11.71.140(b)(1)(G). McCoy 5. See 1971); Grier, 632 n. 3 1990). (Alaska App. law. some additional indi- without believe that (for instance, sug- illegality cation of being grown inside the ques- residence. The sold, gesting that the tion, however, is whether there was equals or ex- cause' to that this was be- ounces), statutory ceiling ceeds the of four ing grown purposes for commercial provision of our state and seizure the amount of inside the house (Article 14) I, prohibits constitution Section exceeded the amount under the the issuance of a warrant. Ravin and decisions. by Under advocated the law the State' and strength The State asserts that the of the (that is, Judge his dissent Coats (including smell fact the officers marijuaná possession of amount of could standing detect odor while adequate grounds one’s home constituted house) tends to show warrant), the issuance of marijuana inside the house must have ex- right citizens would have constitutional protected by ceeded the amount possess their use Noy. But the homes, con- but would exercise this peril strength of mari- tains no assertion that —because juana subject thorough-going would them to gave smell the officers indication of the searches of homes. this were If marijuana amount of be growing law, protection Alaska Constitution’s house. of of in one’s home —the Moreover, simply we can not assume that Ravin cornerstone of the decision—would be proportionality there is direct between the eviscerated. strength of the odor and the amount of mari- We therefore reiterate that no juana giving rise to that odor. We addressed marijuana pos- rant can evidence of issue for a similar issue in Ballard v. affirmatively session unless the State estab- (Alaska App.1998), where we concluded type lishes cause to believe that (an nystagmus involuntary “jerking” of a of at issue that ease eyeball they attempt to follow the posses- than of path moving object) ais reliable indica- protected under Ravin. consumption, tor of alcohol but that there is application The State’s degree no direct correlation between Crocker’s case to establish failed person’s nystagmus amount of their that his mar- consumption alcohol or intoxication. Id. at ijuana marijuana the realm fell 933, 939-940, 942. protected that is under application may may be a There not correlation begins pages Crocker’s case seven strength between the odor of “boilerplate” paragraphs contain —dozens and the amount be- ing general descriptions of how ing grown. normally grown processed. The warrant present tion in the case makes no assertion page then contains one factual correlation, concerning potential such a specific to assertions Crocker’s case. we will not assume such a correlation in the assertions, According case-specific to these absence evidence. troopers tip the state from an received Moreover, exists, even if such a correlation unidentified mari- “confidential source” that merely the officer this case asserted that juana cultivation was in the conducted odor, “strong”. nothing was There was Anchor Point residence of Steik. Debra unexplained whether an this indicate odor of tip, Based on two officers visited the strength degree provided investigative “to reasonable Steik residence conduct an concluding amount of “a basis for mari- strong contact”. The two officers smelled marijuana” juana pro- the amount odor of stood house exceeded at ample Noy. Steik’s front door. there was tected under average electricity usage for homes argues- typical .the also The State of various sizes. electricity usage at the resi Steik amount of provided dence asserted that the although And the officer house inside the the amount electricity “higher at was usage Steik’s home size, average” officer exceeded the than for house its Noy. say higher average much did not how under Ravin “average” usage amount was. When “confi- receiving tip After usage has for a electricity been identified was dential source” house, type or size of this means residence, police— Steik grown at the half) many (conceivably, up to of those means —conducted employing unspecified electricity usage will have houses utility usage at the residence. “check” of average. higher than even we credit that, preceding over the They discovered assertion that the Steik resi- the officer’s months, average electricity us- thirteen electricity using more than aver- dence 56.6 hours age at home was kilowatt Steik’s size, age for a house its this unelaborated applied day. The officer who per significantly bolster the as- assertion did “[bjased that, asserted was the search warrant sertion that Steik’s house site less experience, [electricity] cultivation. Much training and [his] average” electricity usage “higher than es- consumption [Steik’s] [was] residence cause to believe that tablish average home higher than for a of [its] size.”. marijuana being cultivated boilerplate paragraphs One of the the amount under house exceeded an asser- contains Noy. that, according to the Homer Electric tion reasons, For we conclude that even Association, “prospective customers should though estab- monthly [electricity] con- expect average an marijua- lished 22 sumption approximately [kilowatt- being na cultivation was conducted inside the gas heating, and per day with natural hours] residence, the warrant failed to day per with electric 27 to 31 [kilowatt-hours] establish cause to believe that this However, heat.” cultivation was commercial (other Steik’s house tion does not describe purposes address). magis- its identifying than The- pro- the amount cultivated exceeded way knowing trate no whether had Steik’s Noy. Accordingly, tected under average house size or was or was of smaller not the search warrant should been have average. larger magistrate than issued, superior correctly sup- court way knowing had no whether one would pressed the obtained under au- reasonably expect electricity usage thority Steik’s of that warrant. below, within, range average

fall above the Conclusion for all Electric of the Homer Association’s The AF- superior court is customers. FIRMED. Indeed, applied officer who COATS, C.J., dissents. the search warrant made his assertion about COATS, Judge, dissenting. “higher average” electricity usage Chief residence, rely Steik’s he did not on the reviewing magistrate proper- whether a given by estimate the Homer Electric Associ- warrant, ly issued court is Rather, ation. the officer on his relied findings great give magistrate’s defer- experience”. But “training and the officer This ence. court the evidence in the “view[s] explain training experience did not what light upholding most favorable he have received that allow him only would will if and invalidate the warrant concerning magistrate her are opinion to offer an informed abused discretion.”1 We State, 771, 1258, (Alas (Alaska App.1989)). 1. Van Buren v. P.2d 772 823 1261 (citing Chapman, App.1992) ka v. 783 P.2d

99 to issue uphold properly the decision search warrant could be is- marginal any State, cases.2. sued. notice to doubtful Without standard, apply I I suddenly ground. conclude that court has When reversed The information contained the warrant es- court now growing assumes that pos- operation Ravin and that the probability protected by a fair Crocker tablished I duty disprove unlawful amount State has the presump- sessed uphold the warrant. tion obtaining would therefore before a search warrant. I do any not majority’s see presump- basis decisions, prior In several this court has tion,5 therefore, I would follow our for- upheld pri- search warrants were based precedent.6 mer marily testimony police from officers that they strong odor of smelled the majority prior states that our cases marijuana coming source.3 questionable authority because were today, court In its decision overrules all decided “in the context a state law that prior require- cases and adds further any forbade possession marijuana.” and all ment for the State to obtain a warrant: the But Ravin the law in Alaska since prove must 1975. parties So in our cases the quantity grown not a small was the court had to Ravin. Fur- aware of be State.4, Ravin v. use, I thermore, the statute which state was based precedent. adhere to our would that “forbade initiative cases, many years, back going marijuana”

Our former was in effect at the accepted the conclusion where the time the warrant was issued this case. State, v. strong striking law, was a could establish that there odor down that growing marijuana, long magistrate there was decided after the issued the activity criminal cause that there was and search warrant in Crocker’s case.7 State, 1224, (Alas- State, innocence.”); 1071, McClelland 2. v. 928 1225 Dunn v. 653 P.2d 555, (Alaska App.1996); Conway, App.1982) (holding ka 711 State v. (AlaskaApp.1985). factors, though cause existed even “various individually, readily taken are as consistent with See, State, e.g., Lustig v. 36 P.3d guilt, point 732-33 innocence as ... main to be made App.2001); Wallace individually, is that the factors did occur 1997); McClelland, (Alaska App. other”); Atley, People in isolation from each State, 1226-27; 424, P.2d at v. P.2d 376, Landers 809 (Colo.1986) (holding 727 P.2d 377-78 424-25, (Alaska 1991). App. 426-27 the state established cause when the suspect's apartment appear to be lived (Alaska 1975). 4. 537 P.2d 494 apartment grow- contained mushroom ing operation though even the informant's obser- Gates, 213, 13, See 5. Illinois v. 462 U.S. 245 n. growing vations were as consistent lawful 13, 2317, 103 S.Ct. 76 2335 n. L.Ed.2d 527 they plants, mushroom as were with (1983) (stating frequent- behavior “innocent psychedelic containing psilocybin, a mushrooms ly provide showing proba- will the basis for substance). controlled cause”); Brown, 449, Van Sandt v. 944 P.2d (Alaska Stout, 1997) (quoting 452 Murdock v. 54 Penn, 6. See Planned Parenthood Southeastern 1437, (9th Cir.1995)) (stating F.3d 1441 833, 854, 2791, Casey, v. 505 U.S. 112 S.Ct. only "requires probability cause a fair 2808, (1992) (explaining 120 L.Ed.2d 674 activity, or substantial chance criminal not an obligation duty prec- courts have a edent); to follow occurred”); showing activity actual that such Coon, 386, (Alaska State v. 974 P.2d 394 State, 127, (Alaska McCoy 1971) v. 130 491 P.2d 1244, 1999) (quoting Fremgen, v. 914 P.2d (holding despite pos- cause existed (Alaska 1996)) (stating 1245 that courts should conduct); explanation sible innocent Badoino only reverse decisions State, 39, (Alaska App.1990) (quot- 785 P.2d 41 “clearly originally the rule convinced that State, 390, (Alaska ing Harrelson v. 396 516 longer erroneous or sound is no because 1973)) ("Probable to issue a cause search war- conditions, changed and that more harm than rant exists when information is 'reliable set forth good departure prece- would result from from reasonably pru- in sufficient detail to warrant dent”). [person] believing dent crime has been "); Grier, or was committed.’ State v. (Alaska ("proba- App.1990) App.2003) 7. n. 3 though ble cause is even was issued in while the warrant in this established the facts known the officer could also be reconciled case was issued believe, prohibiting certainly majority, legitimate laws I does duty to follow the this court’s it is sale in My con- supreme court’s decision cern, however, majority’s is that viability of

actually threatens precedent former

departing marijua- assumption that a

operating on the operation legal

na unless majority’s deci-

State shows otherwise. it difficult the State to enforce makes

Case Details

Case Name: State v. Crocker

Court Name: Court of Appeals of Alaska

Date Published: Aug 27, 2004

Citation: 97 P.3d 93

Docket Number: A-8462

Court Abbreviation: Alaska Ct. App.