Legislature(1999 - 2000)
03/01/2000 01:40 PM House JUD
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* 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 item of business would be HOUSE BILL NO. 385, "An Act relating to search warrants." [At the previous hearing, the sponsor's representative had explained the bill and answered questions.] Chairman Kott called an at- ease at 3:10 p.m., then called the meeting back to order at 3:16 p.m. Number 0432 DAVID HUDSON, Lieutenant, Division of Alaska State Troopers, Department of Public Safety (DPS), came forward. He informed members that the DPS supports HB 385 primarily because the change from "crime" to "offense" allows the opportunity to seek search warrants from the court for various violations. Some primary issues that the DPS is looking at are in Title 16, regarding certain commercial fishing penalties. In addition, some regulatory crimes are violations; this will allow search warrants for those, whether they involve the Department of Labor and Workforce Development, the Department of Environment Conservation (DEC) or other entities. Number 0477 REPRESENTATIVE CROFT requested an explanation of the situations regarding fishing violations that compel a search warrant. LIEUTENANT HUDSON explained that the commercial fishing violations have a very high standard of dollar amounts. The state may seize thousands of dollars' worth of fish or crab. The DPS already gets search warrants for those, as it has in the past and will continue to do. The bill, however, guarantees that continuity. REPRESENTATIVE CROFT asked, "You're afraid, if you didn't do it with a search warrant, that it'd be thrown out?" LIEUTENANT HUDSON agreed that is a potential issue. He pointed out, however, that the nice thing about a search warrant, in terms of law enforcement, is the ability to have oversight by a magistrate or a judge. Police officers try to do their best under the circumstances at the scene, but stepping back and allowing overview by an uninterested third party allows them to make sure they are doing the right thing. It also gives them credibility in court later, in case it is needed. Number 0539 REPRESENTATIVE MURKOWSKI referred to testimony at the previous hearing indicating law enforcement personnel seeking a search warrant for underage drinking, for example, may indicate they are looking for other things that would elevate it from "violation" status. She asked whether the DPS has to do that regarding fishing, for instance. LIEUTENANT HUDSON acknowledged that he had never actually applied for a search warrant under the fish and wildlife procedure statutes. However, to his understanding, those been successfully obtained in the past; they involve a potential jail term and fines that range from a maximum of $3,000 on a first offense to $9,000 on a third offense. Without clarification under HB 385, this issue might be raised in the future, he added, although it never has been raised in the past. Number 0590 REPRESENTATIVE GREEN mentioned concern, expressed by himself and others at the previous hearing, that going to "offense" rather than "crime" may open up other areas where search warrants could be issued, far beyond what is desired. Noting that the sponsor's representative had been asked to provide the committee a list of offenses, he asked Lieutenant Hudson whether he sees any possibility of DPS "going in" on the myriad of offenses that might fall within the purview of some sort of warrant. LIEUTENANT HUDSON replied that he doesn't see that as an issue because, first, there isn't a tremendous change that will occur here. When reviewing this, he indicated, the DPS had tried to determine what offenses might be affected, but he cannot provide an exhaustive list and isn't sure anyone could. He suggested these will be rare. The idea behind this, and what benefits the DPS, is the opportunity if they need it. He believes Alaskans are still protected, maybe even more so because of the third- party oversight and determination of whether there is enough probable cause to move forward. Returning to the inability to provide a list, he noted that there are regulations that other agencies might use, need or try to get information on; furthermore, those often change, and it would require legislative time to try to add to, or delete from, the list. Number 0688 REPRESENTATIVE GREEN asked what would happen if a warrant were obtained, for example, after a young person below smoking age were seen going into a house with a carton of cigarettes, and then the law enforcement officer saw, in the house, "grow lights" and marijuana plants. He asked whether this opens such a door that sight is lost of the real reason for search warrants. LIEUTENANT HUDSON characterized that as a "fishing expedition," where one method is utilized while expecting to possibly find something else. He would be remiss to say that there have never been abuses of the system, he said. However, he believes that common sense would dictate that it wouldn't be taken that far. Furthermore, with the opportunity to look at an offense, he indicated his belief that the overall good for the community would override the remote chance of that happening. Number 0795 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came forward to express support for HB 385. She advised members that one concern after listening to testimony at the previous hearing was the possibility of listing violations for which one could request a search warrant. She believes that would be impractical for a number of reasons. Also expressing concern with the characterization that this may be opening a Pandora's box, she explained: We have been applying for search warrants to neutral judges for a long time for violations, and that's why we do it, so we can have a neutral third party review it, make sure it's reasonable. And this decision by the magistrate in Juneau we think was mistaken, and we are appealing it - actually, we're petitioning the Court of Appeals, and we think we have a pretty good chance of prevailing at that point. But in the meantime, it would be nice to have this clarification in legislation. So we are in support of the bill. CHAIRMAN KOTT asked whether anyone else wished to testify; there was no response. Noting the arrival of Representative Halcro, he invited him to make closing remarks. Number 0857 REPRESENTATIVE ANDREW HALCRO, Alaska State Legislature, sponsor of HB 385, said he would offer anecdotal observations. He told members that unless law enforcement and the Department of Law are given the ability to go after these types of offenses or crimes, society will pay a heavy price. He emphasized that the bill doesn't give additional power to anybody but simply clarifies the law; there was no question about it until the magistrate threw out the "underage drinking." He suggested this legislation is needed in the interest of fulfilling promises to constituents about being tough on crime. The fear is that without the bill, other magistrates may interpret the law in the same way, and the state won't have the needed system of enforcement. REPRESENTATIVE CROFT asked whether there is any crime so petty that police shouldn't be allowed to search a home because of it, and for which a search warrant would be denied if it had been proven that the offense was occurring. Number 1064 REPRESENTATIVE HALCRO said he believes that is a call for the judge. There has never been a problem in the past, and this clarification was never necessary until a couple of months ago. He doesn't believe it opens up any opportunities for abuse that don't already exist. Far more would be lost by not clarifying the intent of the statute. REPRESENTATIVE MURKOWSKI alluded to page 1, line 4. She pointed out that it says a search warrant "may" be issued if the judicial officer reasonably believes the following .... It doesn't appear that there is an obligation. It is discretionary to a judge, who hopefully will use reasonable discretion in issuing these. CHAIRMAN KOTT remarked that he isn't sure how it is done now and whether that discretion currently exists for issuing a search warrant under the probable cause standard. He asked whether there was further testimony, then closed public testimony on HB 385. He also asked whether there was further committee discussion; none was offered. Number 1186 REPRESENTATIVE CROFT made a motion to move HB 385 from the committee with individual recommendations and the attached zero fiscal note. There being no objection, HB 385 was moved from the House Judiciary Standing Committee.
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