Legislature(2003 - 2004)
03/12/2003 01:04 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 114 - ISSUANCE OF SEARCH WARRANTS Number 0099 CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 114, "An Act relating to the issuance of a search warrant." Number 0122 DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), explained that HB 114 was requested by the Alaska Supreme Court in order to clear up a technical problem with the way in which police officers are allowed to petition the court for the issuance of a search warrant. Right now, a police officer who needs a search warrant has a couple of options. He or she can either submit an affidavit to the court that explains the reasons for the warrant, or he/she can appear in person. And that system works just fine as long as the police officer and the judge are in the same community. It doesn't work so well when they're not in the same community. The current statute allows officers to fax in affidavits in support of search warrants and [to provide] telephonic testimony in support of search warrants, but only under very narrow circumstances: neither can be done unless the item to be searched is in danger of being lost or destroyed. MR. WOOLIVER relayed that this current standard is one that is simply unmet in lots of circumstances. A common situation involves bootleg liquor in villages. In Togiak, for example, village police seized a container they had reason to believe contained bootleg alcohol. However, since they had seized it - they had it in their possession - it was no longer in danger of being lost or destroyed; therefore, the officers could neither fax in their application nor testify telephonically in support of a search warrant. The current practice in such situations, he relayed, is for the officer in the field to phone in to an Alaska State Trooper (AST) office in a larger community - for example, Dillingham - and relay the circumstances of the situation to a trooper there, whereupon that trooper either fills out an affidavit and submits it to a court or testifies in person before the court. MR. WOOLIVER said that another situation which occurs frequently involves the road system. He offered the following as an example. In a situation involving a drug case in Talkeetna, a couple of Alaska State Troopers will be called to a residence at night, and when they arrive, they detect the distinct odor of a "marijuana grow," perhaps in a shed by the house. Since the troopers are there on location, the evidence in the shed is no longer in danger of being lost or destroyed. The common practice in such situations has been for one Trooper to stay at the site - in Talkeetna, in this example - while the other trooper drives all the way into Anchorage - because [in this example] that's where a magistrate is available at night - testifies before the court, gets a search warrant, and drives all the way back to Talkeetna to serve it. In the meantime, the other officer, and, if necessary, perhaps other officers as well, must stay on site all this time to ensure that nothing happens to the evidence. Mr. Wooliver characterized this delay as a pointless waste of time for both the officer driving into Anchorage and for the officer waiting at the site "for four hours." Number 0362 MR. WOOLIVER explained that HB 114 does two things. One, it would allow faxed affidavits unconditionally. He relayed that according to one judge, a fax is just another way to get the mail, and whether the affidavit that's sitting on the judge's desk arrived because someone delivered it in person through the court clerk or because the court clerk picked it up off the fax machine is simply irrelevant for the judge's purposes. He opined that this feature would "help solve the Togiak situation"; the officers in Togiak could directly fax the court, rather than having to go through the AST office in Dillingham. The other change proposed by HB 114 would expand the circumstances under which a court could accept telephonic testimony. This change would affect cases in which the delay that would otherwise occur, if they weren't to do that, would interfere with an ongoing investigation. The purpose of that change, he remarked, is to alleviate the need for the troopers in the Talkeetna example to drive all the way into Anchorage. MR. WOOLIVER characterized the changes created by HB 114 as, "Two fairly small, common-sense fixes to what is admittedly not a huge problem, but it seems like a needless inefficiency in the system." He relayed that in talking with the AST and the Department of Law (DOL), there is one change that has been suggested for HB 114: on page 1, line 11, after "in", delete "a significant". He suggested that the term, "a significant" is unnecessary, and that it might possibly add more confusion. In closing, he pointed out that HB 114 does not, in any way, change the standard that must be met before a judge can issue a search warrant. All HB 114 does is allow a more efficient way to get the question before the judge so that he/she can rule on the merits of the application, he opined. REPRESENTATIVE GRUENBERG asked what the term "or other appropriate means" refers to. MR. WOOLIVER replied that that term is part of existing language and has been in place since 1982. Number 0556 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, which reads [original punctuation provided]: Page 1, line 11: Following first "in" Delete "a significant" CHAIR McGUIRE asked whether there were any objections. There being no objection, Amendment 1 was adopted. REPRESENTATIVE COGHILL asked whether there are protocols in place to ensure that only authorized personnel provide telephonic testimony. MR. WOOLIVER said that there are procedures in place, adding, "You have to be sworn in by the court, and it is on the record." He pointed out that this method is already allowed under current statute, though only in narrow circumstances. The committee took an at-ease from 1:15 p.m. to 1:17 p.m. REPRESENTATIVE GARA said he had thought that in order to get a search warrant, a law enforcement officer had to either present himself/herself personally to a judicial officer "or do it by telephone." "I didn't realize that you could get a search warrant with just a paper affidavit," he added. He offered his observation that HB 114 doesn't appear to be "changing that rule any." MR. WOOLIVER confirmed that currently, a law enforcement officer can get a search warrant with an affidavit without having to present in-person testimony before the court. REPRESENTATIVE GARA opined that the more checks there are to ensure that a search warrant is valid, the better. He also opined that the current system which requires an Anchorage police officer to come before the court to ask for a search warrant is a good one. He said that he did not want to make it easier for police officers in urban areas to avoid "the testimony part." The way HB 114 is currently written, he noted, a telephonic application is acceptable if it can be shown that testifying in person will cause delay." But since testifying in person will always cause delay, he remarked, the only thing further that needs to be done is for the officer to prove that it might also interfere with an ongoing investigation, which could conceivably be claimed if the officer is forced to wait in court for a half hour. Number 0783 REPRESENTATIVE GARA made a motion to adopt Amendment 2, on page 1, line 14, after "might", to insert "materially". He explained that this change would force the officer seeking a search warrant to show that the delay "might materially interfere with an ongoing investigation". Merely because an officer has to sit in court for a half hour is not sufficient, he opined. REPRESENTATIVE SAMUELS objected. MR. WOOLIVER remarked that Amendment 2 might create the same potential problems that the term "a significant" posed. He offered that judges tend to prefer in-person testimony whenever possible, and suggested that they will use their discretion to ensure that officers in urban areas do not abuse the new provisions of HB 114. REPRESENTATIVE SAMUELS agreed with Mr. Wooliver. Additionally, he suggested that "materially" would be open to each individual judge's interpretation. REPRESENTATIVE GARA said that his concern is that they are relaxing the standards that apply when the government is being given the authority to obtain a search warrant to go into somebody's home. He relayed that he did not want the court to be able to interpret HB 114 as a "green light" to start doing "facsimile search-warrant requests," which, he opined, could be the way the bill will be interpreted, since neither "a significant" nor "materially" is included in the language. He elaborated: I think it's a good thing to require somebody to stare somebody in the eye and prove that they're not flinching when they ask for something. It works very well throughout the criminal [justice] system. So, ... I would request that the term "materially" be put in there. I would certainly state on the record that the Talkeetna situation - the out-of-town situation that the [ACS] mentioned - would constitute a material interference. And to the extent the [ACS] were comforted with ... the sponsor of the amendment's intention, that we do intend to allow the Talkeetna folks and folks from out of town who are trying to get search warrants in a more expeditious way, that we agree with that, and that even with the term "materially" in the bill, we agree that that's an appropriate way to get a search warrant. But I'm not thrilled about going any further than that. Number 1084 REPRESENTATIVE COGHILL said that although he tended to agree with the discussion, he didn't know that "putting it in the language of this bill will be important." He asked, if a court were to see an increase in faxed requests within an urban area, whether that would create enough of a red flag within a district that the court could then start requiring in-person requests instead. He said that he wants assurance that the ability to fax in search warrant requests will not be abused. MR. WOOLIVER said that under HB 114, faxed requests would always be allowed, in the same way that written affidavits are always allowed without the need for personal testimony; it makes no difference to the court whether an affidavit is dropped off or faxed in. He explained that oftentimes, there is no personal testimony on an affidavit, even under current law, and to the extent that the court wants personal testimony, HB 114 would allow that to occur via the telephone in more cases, though still not in all cases. REPRESENTATIVE ANDERSON remarked that he agrees with Mr. Wooliver's comments regarding the possible effects of Amendment 2, and with Representative Samuels's comments regarding interpretation. Number 1230 MATTHEW C. LEVEQUE, Lieutenant, Field Operations Coordinator, Division of Alaska State Troopers, Department of Public Safety (DPS), on the issue of Amendment 2, said: At this point, a Trooper can simply present a search warrant affidavit and never see the judge, and [there are] a number of cases I can remember where I never got to see the judge. So the eyeball-to-eyeball scrutiny doesn't happen ..., in many cases, even when a trooper or a police officer is collocated - as our courthouse in Palmer, for example, and the Trooper post are - virtually within a couple of blocks of one another. So I don't believe ... that the eyeball-to- eyeball issue is significant from the Troopers' perspective. It does seem that Representative Gruenberg's amendment that passed with respect to deleting the words "a significant" is somewhat put aside by adding back in "materially". And I don't believe that any law enforcement agency is interested in trying to abuse a judge's discretion, in particular because we're just going to find that if there are issues with the search warrant, that they'll come up at evidentiary hearings later. And as a matter of fact, we would prefer to find judges who will closely scrutinize our search warrant applications to find flaws so that we don't run down directions that ... are inappropriate. Number 1353 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration, said: As previously testified, this bill would loosen the circumstances under which a judge or magistrate could grant a search based on telephonic testimony, and also fully allow all faxed affidavits sent in application of a search warrant, without any special findings whatsoever. A police officer in Anchorage could fax an affidavit, and do no more than that, and let the application lie on the faxed affidavit - no other showing required. Under current law, the norm is that you require a police officer or a Trooper seeking a search warrant to deliver an original sworn affidavit or mail it, or appear personally to testify in application for a search warrant. This is because under our constitution, we require that a search warrant not issue but on probable cause and that it's supported by oaths or affirmation. This is based on our constitution - Alaska and federal constitutions; in ours it's Article I, Section 14. An exception was carved out in the current statute that is sought to be amended by this bill, to allow faxed affidavits and telephonic testimony. So, under current law, you can submit a faxed affidavit and telephonic testimony instead of personal testimony or an original affidavit, but only when the delay in appearing personally or presenting an original affidavit will result in the loss or destruction of the evidence that is sought to be searched or destroyed. Now this bill seeks to eliminate any restriction whatsoever on the use of faxed affidavits in seeking a search warrant. This will likely result in faxes becoming the norm, not the exception, even in urban communities, not just in the targeted rural situations identified, where the officer seeking the warrant and the magistrate are in different communities. Number 1452 MS. WILSON continued: In our [Alaska Rules of Criminal Procedure] governing grand jury proceedings ... -- and the reason I bring them up is because they are similar to search warrant proceedings in that they are one-sided; there's no right for the defendant or the owner of the property to be searched to participate in the proceedings or to present his or her arguments or evidence .... In a grand jury situation, telephonic testimony is allowed only when the witness that is speaking - to testify - telephonically would be required to travel more than 50 miles to the location where the grand jury is sitting, or they live in a place from which people customarily travel by air to the place where the grand jury is sitting. Limiting the acceptance of both faxed affidavits and telephonic testimony in support of a search warrant to a similar situation as presented in a grand jury context - with the added requirements that the delay in obtaining a search would otherwise result if the officer had to appear personally or send an original affidavit, and that that delay would result in the loss or destruction of property or interference with an ongoing investigation - would certainly keep a tighter rein on the process for obtaining a search warrant than suggested in this bill. Now, why is the Public Defender Agency concerned? And why should there be concern, on your part, with the process for obtaining a search warrant? [It's] because it's very difficult to suppress evidence seized pursuant to a search warrant. They are given preference of validity, and a great deference is given to a magistrate's determination of probable cause for the issuance of a search warrant. A search warrant will not be overturned unless there is an abuse of the magistrate's discretion, and the evidence is always viewed in a light most favorable to upholding the search warrant. So there's definitely a deference given to a search warrant. Number 1569 MS. WILSON went on to say: Now, the [PDA] has a concern with the scope of this bill because it seems to be broader than the problem that was identified specific to Bush areas, and it may not be that serious of a problem, and the scope of this bill may be larger than that needed. ... There is also a concern that if it were so serious, we certainly probably would have heard and had proposed legislation from [the Department of Public Safety (DPS)] representing the Troopers and the police officers involved, [rather than from just the ACS]. Would there be more challenges under this proposed bill if it were to pass? Possibly, yes, but the challenges would certainly be difficult. Under this exact same statute, to suppress evidence seized or searched under a search warrant issued under these special circumstances proposed, which would be a fax or one telephonically, the statute requires there has to be a finding of bad faith. And that's under [subsection] (f) of this statute, ... [AS 12.35.015, which] provides that absent a finding of bad faith, evidence obtained under a search warrant issued under this section is not subject to a motion to suppress on the ground that the circumstances did not support its issuance under (a) of this section. And (a) is the [subsection] that's being proposed to be amended. But there certainly may be situations where, in a fax, let's say, where let's say one or more pages of a faxed affidavit that wasn't paginated are not received by the courts, but yet the search warrant is issued based upon the pages received. It may not have been, had all the pages been received. But if there was no finding of bad faith, does the search warrant stand? ... An original affidavit has that seal of the notary that is very obvious and visible. A faxed [affidavit] would not have that authenticity. So there may be challenges to the authenticity of the faxed affidavit on the question of who prepared it, [and] whether ... the original matches the one that was sent. There also may be ... challenges to the circumstances that supported the testimony ... - the special procedures of the telephonic testimony. For example, would the personal testimony have really resulted in a delay in obtaining or executing a search warrant? And would the delay really have interfered with an ongoing investigation? And from the description of wanting to modify it by the word ["materially"], it certainly raises questions to having most applications for search warrants, even in Anchorage, submitted telephonically, because, arguably, any inconvenience in going to the courthouse could arguably result in interfering with an ongoing investigation. So that language, also, is pretty broad. Number 1703 MS. WILSON concluded: So while the [PDA] recognizes that it may be difficult and challenging, sometimes, for an officer to obtain a search warrant in a remote location when the community is away from the magistrate, this proposed legislation ... seems too broad for the narrow problem identified, and may not be necessary, especially in light of the overarching constitutional rights and protections that are involved in protecting people from unreasonable searches and seizures. I thank you very much for allowing me to testify .... REPRESENTATIVE GARA withdrew Amendment 2. He offered that it does not do what he intended it to do. In addition, he said that he no longer supports the bill because it doesn't do what it's intended to do. He elaborated: I think the bill could be much better drafted, where the perceived problem relates to out-of-town police officers and the inconvenience or sometimes impossibility of getting into town in time. And I'm sympathetic to that, and I think we could deal with that problem, but I don't think this bill does it. This bill is written too broadly. So my amendment doesn't solve the problem, but I don't think the bill solves the problem. CHAIR McGUIRE asked Mr. Wooliver to comment on the language used with regard to grand juries as mentioned by Ms. Wilson. She said she likes that language, and opined that perhaps it might be a better solution to the problem. MR. WOOLIVER remarked that he has not looked "at the grand jury language" and thus does not know what such an amendment might necessarily look like. He reiterated that since affidavits can currently be mailed in, from the court's perspective it makes no difference whether an affidavit has been mailed in or faxed in. The constitutional standard for issuing a search warrant doesn't change; probable cause must still be shown. He said that he is not aware that lost fax pages are a problem, and indicated that he does not see the possibility of not having the final page with the signature and the notary as being a significant problem. CHAIR McGUIRE asked: "Is the bill designed to get at the problem that you stated? Or is it really designed to open up the law to allow for faxes within an urban area?" She opined that this should be decided, adding that it is either one way or the other. Number 1874 MR. WOOLIVER said that HB 114 would do both. It would allow any faxed affidavit, just as any affidavit can be mailed. He suggested that when technology improves, [the ACS] will be back before the legislature petitioning for the allowance of electronic transmissions. He noted that the provision in HB 114 regarding telephonic testimony is a minor change to the current statute, which is more narrowly tailored to accept other circumstances. CHAIR McGUIRE, on the issue of faxed affidavits, remarked that the concern of many revolves around the fact that an affidavit involves minimal steps. The question being raised, she observed, is, as a policy, does the legislature want to eliminate that extra step of testifying in person, which some believe is one more check to ensure that people are not abusing the system. Chair McGuire said that she agrees with Ms. Wilson with regard to the difficulty of suppressing evidence obtained by a search warrant. Chair McGuire said that her original understanding of the bill was that it would address a problem encountered in rural areas; she did not understand that it would open up, to urban areas, a method of faxing in affidavits. She opined that faxing in affidavits will become the norm, not the exception: "Why would you take the time to go down to the courthouse with the original affidavit when you don't have to?" REPRESENTATIVE SAMUELS said that to him, there would be no difference between faxing in an affidavit and mailing it. REPRESENTATIVE GRUENBERG said that although he generally supports HB 114, he does see some problems with it. He recommended that the bill be worked on a bit and changed so that there is one provision dealing with affidavits and another provision dealing with oral testimony. With regard to affidavits, he relayed that he has had a lot of experience in his civil practice dealing with faxed documents, "and it's quite an issue." There can be problems with faxed documents, he said, adding that "you can have a lengthy affidavit of 25 pages or [more] ... and [with] somebody just leafing through it very quickly for the purpose of ... an emergency search warrant, which often have to be done quickly, they could miss a page." REPRESENTATIVE GRUENBERG also relayed that he has litigated the issue of the validity of a signature. Sometimes the signature is light, or is written in blue or red ink, and it doesn't come through very well. So on this point, with regard to a provision dealing with affidavits, he said that he would like the bill redrafted to require the judge to make some findings on the acceptance of the faxed affidavit in place of the original, and to require that the original affidavit be filed as well. In this way, it can later be verified by the attorneys or during a review in court that the faxed affidavit is in fact a true and complete copy of the original and that the signature is genuine. He remarked that he has had a trial regarding whether a signature was forged. REPRESENTATIVE GRUENBERG, on the issue of oral testimony, explained that the time constraints regarding a grand jury are much different; in a grand jury, jurists are determining whether there is probable cause to indict a person. On the other hand, with a search warrant, there can be a real emergency. "So I see the time exigencies being somewhat different," he concluded. Number 2197 CHAIR McGUIRE announced that for the purpose of creating acceptable substitute language, HB 114 would be [held over and] assigned to a subcommittee consisting of Representative Coghill, Samuels, and Gruenberg.
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