Legislature(1999 - 2000)
02/28/2000 01:25 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 385 - ISSUANCE OF SEARCH WARRANTS CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 385, "An Act relating to search warrants." He advised listeners that there were no testifiers other than the sponsor's representative that day, but that the bill would be taken up again on Wednesday, March 1. Number 0428 JONATHAN LACK, Staff to Representative Andrew Halcro, Alaska State Legislature, came forward to explain the bill on behalf of the sponsor. He informed members that Representative Halcro had introduced HB 385 because of a decision by a Juneau magistrate in early January that dismissed a search warrant for a violation. Mr. Lack pointed out that AS 12.35.020, which grants authority for judges and judicial officers to issue search warrants, says search warrants can only be issued for crimes; although that section of the code does not distinguish between "crimes" and "violations," that distinction is made elsewhere in the code. The Juneau magistrate had grabbed onto that distinction and found that search warrants could not be issued for violations. To Mr. Lack's understanding, the state is appealing that decision. However, the statute leads to the ability to make that distinction. Therefore, HB 385 is offered to clarify legislative intent by providing that search warrants can be issued for violations. MR. LACK told members two people had planned to be online to testify: Duane Udland, Chief of Police for the Anchorage Police Department and President of the Alaska Association of Chiefs of Police, who had submitted a letter in support of this legislation; and Lieutenant Howard Starbard, Division of Fish and Wildlife Protection, Department of Public Safety (DPS). Mr. Lack stated his belief that those two individuals support HB 385 for two reasons. First, a couple of years ago the legislature reduced the penalty for alcohol consumption by a minor so that it is no longer a crime, thereby removing the possibility of jail time; in effect, because of the magistrate's ruling, search warrants can no longer be issued for minor consumption. MR. LACK said second, there are a number of violations of state law in the fisheries, wildlife and hunting categories; for instance, there are fairly severe financial penalties - up to $100,000 for the first offense - for intercepting salmon on the high seas, but no jail time is associated with that. In talking to him that morning, Mr. Lack said Lieutenant Starbard had indicated the need for an ability to seize or inspect a vessel that is doing high-seas fishing; he had also indicated that if this doesn't pass, there is a possibility that the DPS will have to investigate all violations as crimes, which will push up the penalties. The DPS would still be able to get search warrants for some of these things because the requirements of the violation and the crime are similar; however, now they will have to prosecute and investigate those as crimes, not violations, because they need the search warrant ability. Mr. Lack noted that Paulette Simpson, who also had been prepared to testify, had submitted written testimony to committee members. CHAIRMAN KOTT acknowledged receipt of Duane Udland's letter and Paulette Simpson's written testimony, both in support of the bill, which would become part of the permanent record. Number 0750 REPRESENTATIVE GREEN inquired whether going from a crime to an offense opens a Pandora's box. He pointed out that a myriad of things fall under the "offense" category, including speeding and parking violations, for which a search warrant would be an invasion of privacy if issued on that basis. MR. LACK replied, "Absolutely." He referred to AS 12.35.020 and said the search warrant only can be issued to seize property. For a speeding violation, as with many violations, no search warrant would ever be issued. Before a search warrant can be issued, both federal and Alaskan constitutional law require that probable cause must be established. A police officer, for example, must go before the court and state why he or she believes a search warrant needs to be issued; that includes why the officer believes a crime has been committed and that the property which he or she is looking to seize or search will be evidence of that crime. There are procedural safeguards. Police throughout Alaska have been obtaining search warrants to investigate and prosecute violations at least since statehood. This doesn't expand the law or the ability of the police. Rather, this one [magistrate's] decision has created a situation where law enforcement officers can no longer do what they were doing. Number 0901 REPRESENTATIVE MURKOWSKI, acknowledging that a newspaper shouldn't be a source of legal information, mentioned an article in the Juneau Empire that referenced the arguments presented before the Juneau magistrate. She said apparently the Department of Law had argued, in its petition, that the court has upheld the use of arrest warrants for traffic infractions. Like Representative Green, she is wondering whether this opens a Pandora's box. MR. LACK specified that the only applicable traffic offense, because there is a property situation, is where a driver does a hit-and-run, for example, then proceeds directly home and shuts the garage door; the police officer would still have to go before the magistrate or judge to get a search warrant to search the house and to seize that vehicle. Mr. Lack commented that the article talks about the state's petition, which he had read. The issue of traffic violations decided by the Alaska Supreme Court deals with arrest warrants, which are similar to search warrants, but the issue of search warrants hasn't been taken to that court yet. In State v. Clayton, the Alaska Supreme Court established the concept of a quasi-criminal act, something punishable by only a fine and not jail time. He said that would be traffic violations. Number 1034 REPRESENTATIVE CROFT asked whether there is no crime so small that the state shouldn't authorize the search of a home to find evidence of that crime. He asked if there is any theoretical limit to this. MR. LACK answered that theoretically there is not, but the question becomes whether there is property involved and whether there will be physical evidence of that crime. Under this bill, a police officer could conceivably obtain a search warrant to search a house for a packet of chewing gum that had been shoplifted. However, Mr. Lack had spoken with a municipal prosecutor that morning, who said the fine is $300 and it would cost $1,000 to get a search warrant; therefore, they probably won't do it for a pack of gum or even for minor traffic violations. MR. LACK said the focus is minor consumption - a serious problem in Alaska, especially in rural communities where alcohol use is rampant among youngsters - and fishing and hunting violations. He emphasized the need to be able to enforce the laws of the state. The bottom-line question isn't whether the laws themselves are good but whether Alaska's police, state troopers and other law enforcement officials are able to enforce the laws that exist. Number 1135 REPRESENTATIVE CROFT asked under what section of AS 12.35.020 the search warrant is authorized. MR. LACK answered that subsections (1) through (4) all talk about searching for a specific piece of property that either was used in the crime or is evidence of the crime. REPRESENTATIVE CROFT stated his understanding that "property" is not a house but beer, for example. The search warrant, then, describes the places to be searched. MR. LACK affirmed that. He pointed out that committee members had been given copies of Criminal Rules 4 and 37 of the Alaska Rules of Court. Criminal Rule 37 provides when a search warrant can be issued; the specifics of what must be in the warrant are on page 370, the second page of the handout. Number 1224 REPRESENTATIVE ROKEBERG expressed concern about deleting the word "crime." He asked whether this is a "greater included definition." MR. LACK explained that "offense" has been defined in AS 11.81.900, and it includes a crime and a violation. Therefore, "crime" has been replaced with "offense" in the bill, so it is all-inclusive. Number 1262 REPRESENTATIVE GREEN asked whether it would be better, if concerned as a society about minor consuming and fish and game violations, to modify it so search warrants are allowed for those, rather than opening a Pandora's box. MR. LACK noted that the legislature, either two or four years ago, had decided to take away the possibility of jail for minor consumption; he believes the intent was to reduce the stigma associated with minor consumption and to give people an ability to move forward without one mistake ruining their ability to get into college or to get jobs. For example, a person who has done jail time may not be able to become an Alaska State Trooper or a foster parent. REPRESENTATIVE GREEN indicated he recalled that legislation. However, he is concerned that it may be better, under subsection (2), to have it say "a crime and the offenses of," listing the offenses included. That way, one could get a search warrant for minor consumption or for fish and game violations, even though those aren't crimes subject to jail time. MR. LACK indicated he would make two points. First, prior to the Juneau magistrate's decision it wasn't a question of the ability to get a search warrant for all violations. Alaskan prosecutors and police officers had that ability until the end of January, and in many cases, they may still be doing it because the decision only affects the one case. Mr. Lack indicated HB 385 is an attempt to prevent it from affecting all cases. Second, from his personal experience with legislation and drafting, every year somebody will have a new violation to add to the list; the statute itself will become unworkable. Mr. Lack cited an example of legislation with more than 30 exceptions listed. He restated that the statute, both now and with HB 385, deals with seizing specific property, and most violations aren't covered anyway because there is no property involved. He believes that distinction is sufficient. Number 1442 REPRESENTATIVE MURKOWSKI asked whether perhaps this legislation is a bit premature because the courts could decide to not uphold the magistrate's ruling. MR. LACK agreed HB 385 is possibly premature in a judicial sense. However, because it was a magistrate's decision, it is currently being appealed to the superior court. State resources will be used to plead this case, and the young gentleman involved will have to plead his case as well. Then it can be appealed to the Court of Appeals, and then to the Alaska Supreme Court. For perhaps four to six years, law enforcement personnel will be out on the streets without knowing what the law is, a situation the legislature shouldn't allow. In that sense, it isn't premature. Number 1538 REPRESENTATIVE MURKOWSKI asked what Anchorage is doing now. For example, are they issuing search warrants for underage drinking parties? MR. LACK replied that he can't say about Anchorage, but he has spoken to a prosecutor from another jurisdiction, where they are just "upping" what they are looking for, making it not only minor consuming, for example, but also contributing to the delinquency of a minor or trespass issues. If HB 385 isn't passed, the response will be "upping" the penalties for juveniles. Number 1593 REPRESENTATIVE JAMES referred back to Representative Green's suggestion. She indicated she doesn't see any problem with having a list including minor consuming and fish and game violations, plus others, because [lists] occur throughout the statutes. Oftentimes the legislature cannot write a "blank check" and must list exceptions. To her, this bill particularly begs for some exceptions. She requested a response. MR. LACK reiterated that law enforcement officers have had the ability to obtain search warrants for violations "forever" anyway, without any problem that he is aware of. Also, the statute itself talks about obtaining a search warrant to seize property; however, there is no property involved with most violations, so those are already excluded by the wording of the statute, and there is no need to list them. Furthermore, this weekend he came up with an eight-page list of violations in the statutes before his computer went down and he lost the list. Number 1692 REPRESENTATIVE GREEN expressed confusion as to why, if most violations don't apply, Mr. Lack objects to listing the two to which it does apply. MR. LACK explained that there are more than two. They would need to list perhaps 8 or 10 tobacco violations, minor consuming, and probably 15 statutes on fish and wildlife, for example. He acknowledged that it is the committee's decision to list them or not, but said HB 385, as written, would be simpler. REPRESENTATIVE GREEN asked how much of a problem it would be to let the committee know what would be included on that list now for search warrants. MR. LACK said he could put it together. He'd spent 14 hours on it over the weekend to get to eight pages, and he wasn't finished then. Alphabetically, he was at "F." REPRESENTATIVE GREEN said he believes that justifies the concern even more. MR. LACK reiterated that for most of those, because there is no property involved, this doesn't really apply. REPRESENTATIVE GREEN said it would be nice to know what does apply. Number 1764 REPRESENTATIVE JAMES expressed concern about someone getting a search warrant because of a tobacco infringement. Although Mr. Lack had said it has been working fine and the police haven't been over-reactive or creating problem, she said that doesn't comfort her much. If presumably the legislature adds intent language, she has a sneaky feeling it provides law enforcement more authority. She concluded that she has a real problem with coming into somebody's home if there isn't something serious going on there. MR. LACK expressed his understanding - with which he said Representative Halcro would agree - that the situation with tobacco is not so much minor possession of tobacco but wanting a search warrant if a store sells it out of the back room to minors, for example. Right now, the answer is "no" under the magistrate's decision. Mr. Lack noted that a number of people had telephoned with concerns that the bill allows warrantless searches, which it does not. However, no concern has been heard about whether there is an abuse of the search warrant process. Because one must establish probable cause, one must establish, before a magistrate or a judge, that there is evidence that a crime is either going on or is going to be committed, and that property used in that crime needs to be seized. This does not give carte blanche to search somebody's home. Also, if a search warrant has been issued without probable cause, anything discovered under that search warrant is thrown out anyway as "fruits of the poisonous tree." Protections are built into the constitution and the statute already. Number 1913 REPRESENTATIVE JAMES surmised that law enforcement must do a lot of searching, however, before finding that particular property. She expressed concern about privacy. MR. LACK said he understands Representative James' concern. Alaska, which has a specific privacy clause [in the constitution], guarantees a lot more protections than otherwise would be guaranteed. For instance, a Federal Bureau of Investigation (FBI) agent who wanted a search warrant would have to look for the specific item. And there are size requirements. For example, someone looking for a double-barrel shotgun cannot look in a briefcase because it doesn't fit there. The Alaska Supreme Court has outlined "closed-container rules" on searches. In Alaska, the privacy clause has already been used to protect Alaskans against even the broad use of search warrants that is granted under the federal constitution. Number 1978 REPRESENTATIVE CROFT compared the Fourth Amendment [to the U.S. constitution] and [Article I,] Section 14 of Alaska's constitution. The former read: Searches and seizures. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. Article I, Section 14 of Alaska's constitution read: SEARCHES AND SEIZURES. The right of the people to be secure in their persons, houses and other property, 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. REPRESENTATIVE CROFT commented that it seems to imply that even a search with a warrant that is unreasonable can be constitutionally prescribed. MR. LACK agreed. REPRESENTATIVE CROFT asked whether there are any reported cases of crossing a constitutional line by getting so "small" that it is unreasonable, constitutionally. MR. LACK explained that the concept of "reasonable" has been applied strictly to whether probable cause exists, not to the crime itself or the level of the crime. Alaska's constitution is even more specific, as interpreted by the supreme court, because it also has the privacy clause adopted in 1973. Number 2054 CHAIRMAN KOTT thanked Mr. Lack. Noting that others may want to testify at the next hearing, he announced that HB 385 would be held over until Wednesday, March 1.
| Document Name | Date/Time | Subjects |
|---|