Legislature(2005 - 2006)BUTROVICH 205
03/08/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB206 | |
| HB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 206 | TELECONFERENCED | |
| += | SB 222 | TELECONFERENCED | |
| += | HB 92 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 206-DETENTION OF MATERIAL WITNESSES
8:35:09 AM
CHAIR RALPH SEEKINS announced SB 206 to be up for consideration.
SENATOR CHARLIE HUGGINS moved to adopt version G as the working
document before the committee. Hearing no objections, the motion
carried.
SENATOR CON BUNDE explained that the impetus of the bill was
derived from instances such as gang violence where witnesses,
including victims, refused to talk to the police during the
investigation. The bill would promote the rights of law-abiding
citizens and the need to control crime.
8:38:12 AM
It would allow for temporary detention and identification of
people who police have reason to believe have committed or are
about to commit a crime, or have witnessed a crime. The person
who is temporarily detained shall permit one or more photographs
to be taken, shall verify their identity, and shall submit to
fingerprinting. People would still retain their Miranda Rights
and not have to answer any questions, he stated.
8:40:49 AM
LAUREN RICE, Staff to Senator Bunde, advised committee members
that staff worked with the Department of Law (DOL) to create the
committee substitute (CS). She highlighted the phrase "is about
to commit a crime" and recognized that might make lawmakers
nervous but said there is case law established that supports and
defines that phrase.
8:42:15 AM
SENATOR GRETCHEN GUESS asked whether a person who is being
temporarily detained has Miranda Rights.
SENATOR HOLLIS FRENCH explained Miranda Rights pertains to
custodial interrogation.
SENATOR BUNDE said he might have been overbroad when saying that
Miranda Rights would be intact. He suggested everyone knows they
are not required to answer questions without legal advice.
SENATOR FRENCH said the CS seemed much different from the
original version and asked Senator Bunde to explain the
evolution of the bill.
SENATOR BUNDE said the original bill was awkward and
ineffective. Version G is designed to help law enforcement
during investigations, yet it would keep in mind citizen's
rights.
8:46:42 AM
CHAIR SEEKINS said he could see how the bill could be easily
abused. He posed a hypothetical situation of a group at a
hunting camp where a state trooper suspects poaching and asks to
take photographs and fingerprints. He said some people would
have a real problem with that.
SENATOR BUNDE countered that the bill is tailored toward
commission of a felony crime toward a person or property so that
situation would not apply.
CHAIR SEEKINS said he did not agree that most people know when
their legal rights kick in. He also expressed concern about
people in the vicinity of a crime getting corralled into a crime
scene and detained at length.
8:51:02 AM
SENATOR BUNDE countered a person could look at the Second
Amendment in the same way. "We have to put up with a few idiots
in order that the rest of us have rights," he said.
DEAN GUANELI, Chief Assistant Attorney General, Department of
Law (DOL), explained the process of how the CS came about. He
said the original version brought about questions as to how far
the police should be able to go to collect witnesses. Anchorage
Chief of Police Walt Monegan testified that the bill was a bit
broader than necessary and that all they wanted was the ability
to talk to people about crimes that had been committed. Mr.
Guaneli assisted in revising the bill.
8:53:57 AM
MR. GUANELI referenced what he termed a "landmark decision" by
the United States Supreme Court in the case Terry versus Ohio.
The law gives police authority to temporarily detain a person
who they have reasonable suspicion to believe has committed a
crime. Police are trained and they know when they are allowed to
make a "Terry Stop" where they stop someone in order to ask
questions. Over the years the courts have placed restrictions on
what police are allowed to do in a Terry Stop yet recently they
have loosened up some of those restrictions. For example, Nevada
has recently made it a crime for a person, during a Terry Stop,
to refuse to give their name to the police.
8:57:11 AM
In Alaska it was once the law that the police could make a Terry
Stop for a person they believed posed a significant danger to
the public. More recently the Alaska Court of Appeals has
loosened up on that and specified that the detention must be
brief. The detention must also be at the vicinity where the
person is detained.
8:59:13 AM
SENATOR BUNDE excused himself to another committee.
SENATOR FRENCH clarified for the committee that the Terry Stop
evolved due to the need for police to pat down suspects to
ensure that they did not possess a weapon.
MR. GUANELI agreed but said it also allowed for the police to
obtain names.
SENATOR FRENCH noted it was easy for police to confuse suspects
with innocent bystanders. He cautioned Mr. Guaneli to be aware
not to expand the concepts embedded in current law.
9:02:01 AM
MR. GUANELI said he was trying to keep the two groups distinct.
He continued by advising the committee of the American Law
Institute, a group that adopts model laws and their "model penal
code" was adopted in Alaska in 1980 as the criminal code. They
are a well-respected legal think tank and they have another
model law of pre-arraignment procedure, which governs arrests
and stops. One of the provisions in that model law permits
police to stop witnesses of a crime. That model law has been
cited by the criminal courts in Alaska with approval. "That is
what this bill adopts," he said.
9:05:30 AM
MR. GUANELI referenced page 2(a)(1-2) and continued the reason
he included law regarding suspects and witnesses is because when
police come upon a gang shooting, they come across many people,
some of whom are involved and some that are not. He said it was
important that both provisions be set out.
9:07:01 AM
The primary concept of the two provisions is that for a crime
against a person or a felony property crime where a person may
have information that would aide in the investigation of that
crime that the temporary detention is necessary to obtain or
verify identification of the person.
9:09:00 AM
CHAIR SEEKINS asked whether the Section 2 provisions were all
"ors."
MR. GUANELI said the section would be clearer if the provisions
were set out in subparagraphs but they are all separate
provisions.
CHAIR SEEKINS suggested that the bill needed to be drafted more
clearly. He asked Mr. Guaneli for an example of "exigent
circumstances."
MR. GUANELI deferred to Senator French.
9:11:02 AM
SENATOR FRENCH said he had the model code definition and it says
that the model code supports requiring exigent circumstances for
the stop of a witness. It takes the position that an officer may
detain a witness only when a serious crime occurred recently;
the officer reasonably believes that the witness's information
will materially assist in the investigation, and the detention
is necessary.
MR. GUANELI added subsection (d) tells the police what they can
do in connection with a detainee. The bill would allow police to
constitutionally verify the person's identification by viewing a
governmental identification or by obtaining fingerprints.
9:14:45 AM
CHAIR SEEKINS said he understood the bill to be drafted so that
it is not restricted or limited to crimes against a person or
felony crime. Section 2 paragraph (1) ends with an "or" and so
suggests that the law could be enacted for any crime.
MR. GUANELI agreed that the provision under (a)(1) does apply to
any crime. However the provision under (a)(2) would apply only
to crimes against persons or a serious crime against property.
9:17:57 AM
CHAIR SEEKINS said in effect, beyond the material witness side
of things, the bill is casting a much wider loop.
MR. GUANELI said he does not believe the bill would allow police
to detain any additional suspects of crimes that they are not
currently able to detain.
CHAIR SEEKINS countered that it does add to the threat. If a
person does not comply with the police they could charge that
person with interfering with an officer of the law, even if
there were no crime committed.
MR. GUANELI agreed.
9:19:33 AM
SENATOR FRENCH said the subject was troubling to consider but on
the other hand he agreed it was wrong for people to be able to
leave the scene of a crime when they have information. He
suggested that officers snap pictures of the area and
surrounding public in order to aid in the investigation.
9:22:57 AM
CHAIR SEEKINS opined federal officers sometimes use intimidation
to force people outside of their constitutional rights. He said
the committee would want to make sure they don't set people up
in escapable situations.
MR. GUANELI promised to keep working on the bill.
9:25:38 AM
CHAIR SEEKINS referred to subsection (a)(2) and suggested it
could be drafted more clearly.
MR. GUANELI agreed. He continued explaining the CS and said
subsection (c) tells police what they can do in respect to
witnesses of crimes. It would give an officer the chance to
identify the person for future investigatory needs. Ultimately
it is the obligation of every citizen to provide testimony in
court unless they have a legal privilege not to.
9:28:46 AM
MR. GUANELI continued subsection (c) expands on the notion of
the ability of the police to issue a subpoena even if the police
do not know who the person is.
9:29:22 AM
CHAIR SEEKINS asked whether there was a difference between
serving a subpoena and issuing a subpoena.
MR. GUANELI explained that serving a subpoena is where a
designated official actually hands it to the person. Issuing a
subpoena is something that the courts do.
CHAIR SEEKINS noted a police officer is not an employee of the
court. He questioned who would issue the subpoena when a police
officer serves it.
MR. GUANELI said subpoenas are issued by the court but are
generally available to any party to serve.
9:34:33 AM
SENATOR FRENCH said there are times when simply identifying
oneself could be incriminating. He said the issue was "an area
of minefields."
MR. GUANELI did not agree. He said requiring someone to speak
their name does not pose an infraction of rights.
9:38:16 AM
SENATOR FRENCH said that the US Supreme Court pointed out that
there could be a case where furnishing identity at the time of
the stop would give police a link in a chain of evidence needed
to convict the individual of a separate offense.
9:40:01 AM
MR. GUANELI summarized his discussion of the bill and said
Section 1 would be a change in statute in regards to contempt of
court. He said it has been in need of amendment for years. With
respect to violating a subpoena, the midlevel misdemeanor
offense is appropriate.
9:42:44 AM
CHAIR SEEKINS said he has a construction problem with how the
bill flowed and suggested that it needed re-drafting. He held SB
206 in committee.
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