Legislature(2005 - 2006)BUTROVICH 205

03/15/2006 08:30 AM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 206 DETENTION OF MATERIAL WITNESSES TELECONFERENCED
Moved CSSB 206(JUD) Out of Committee
+ SB 306 UNEMPLOYMENT INSURANCE FUND & TAXES TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 222 PROTECTION OF PERSONAL INFORMATION
Moved CSSB 222(JUD) Out of Committee
             SB 206-DETENTION OF MATERIAL WITNESSES                                                                         
                                                                                                                              
8:57:24 AM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 206 to be up for consideration.                                                                
                                                                                                                                
SENATOR GENE THERRIAULT  moved version I as  the working document                                                               
before the committee.                                                                                                           
                                                                                                                                
CHAIR SEEKINS objected for explanation.                                                                                         
                                                                                                                                
SENATOR CON BUNDE, Bill Sponsor,  informed the committee that the                                                               
chief of  police in his district  is frustrated by the  fact that                                                               
officers  are   not  able  to  temporarily   detain  crime  scene                                                               
witnesses, particularly  in "gang violence" situations.  He noted                                                               
the importance of  upholding the rights of  ordinary citizens and                                                               
so the bill is crafted with that in mind.                                                                                       
                                                                                                                                
SENATOR THERRIAULT  referred to  page 2,  lines 26-30,  and asked                                                               
Senator  Bunde   the  reason  for  obtaining   fingerprints  from                                                               
detainees.                                                                                                                      
                                                                                                                                
SENATOR BUNDE  replied that would  only occur  in the event  of a                                                               
murder  or attempted  murder.  It  would be  for  the purpose  of                                                               
diffusing future combat in the situation of gang retaliation.                                                                   
                                                                                                                                
DEAN  GUANELI, Chief  Assistant Attorney  General, Department  of                                                               
Law (DOL),  added that false  identification cards  are prevalent                                                               
among  gang  members  and  so  fingerprinting  proves  useful  in                                                               
serious cases.                                                                                                                  
                                                                                                                                
9:03:48 AM                                                                                                                    
SENATOR THERRIAULT countered many other  people could be swept up                                                               
in  a police  detainment scenario  and innocent  people could  be                                                               
subject  to  having  their fingerprints  entered  into  a  police                                                               
database by force.                                                                                                              
                                                                                                                                
MR. GUANELI responded  the police would have the  right to obtain                                                               
the fingerprints  but it would  not be  mandatory and would  be a                                                               
judgment call.                                                                                                                  
                                                                                                                                
9:06:06 AM                                                                                                                    
SENATOR  BUNDE noted  police make  judgment calls  every day.  He                                                               
spoke in  support of the  provision and  said it was  not special                                                               
interest  legislation  for Anchorage  only.  Gang  violence is  a                                                               
growing trend, he said.                                                                                                         
                                                                                                                                
MR. GUANELI  noted the statute  cited on  Page 2, line  28 should                                                               
have referenced AS 11.61.190 instead of AS 11.61.195.                                                                           
                                                                                                                                
SENATOR THERRIAULT  referred to  Page 2, line  26 "the  person is                                                               
detained  in connection  with the  investigation"  and asked  Mr.                                                               
Guaneli to explain what that means.                                                                                             
                                                                                                                                
MR.  GUANELI explained  that  the same  section  (Article 3  Sec.                                                               
12.50.201) draws  out the  standards that  a police  officer must                                                               
meet  in order  to detain  a person.  The detainee  might not  be                                                               
involved in the  crime or even be a suspect  but the police might                                                               
believe that person  has information about the crime  and so they                                                               
would be  able to lawfully  detain a person that  they reasonably                                                               
believe to have information.                                                                                                    
                                                                                                                                
SENATOR HOLLIS  FRENCH asked Mr.  Guaneli to read for  the record                                                               
the  definition of  misconduct involving  a weapon  in the  first                                                               
degree.                                                                                                                         
                                                                                                                                
9:11:20 AM                                                                                                                    
MR. GUANELI did so.                                                                                                             
                                                                                                                                
Sec.  11.61.190.    Misconduct  involving weapons  in  the  first                                                               
degree.                                                                                                                         
     (a) A person commits the crime of misconduct involving                                                                     
weapons in the first degree if the person                                                                                       
     (1) uses or attempts to use a firearm during the commission                                                                
of an offense under AS 11.71.010 - 11.71.040; or                                                                                
     (2) discharges a firearm from a propelled vehicle while the                                                                
vehicle  is being  operated and  under circumstances  manifesting                                                               
substantial  and  unjustifiable  risk  of physical  injury  to  a                                                               
person or damage to property.                                                                                                   
     (b) Misconduct involving weapons in the first degree is a                                                                  
class A felony.                                                                                                                 
                                                                                                                                
SENATOR FRENCH referred to Page 2,  line 9, and asked whether the                                                               
police would  be allowed to  detain people who  may be in  a mall                                                               
parking  lot  and  not  have  witnessed  anything.  He  expressed                                                               
concern with the broad language of "in the vicinity."                                                                           
                                                                                                                                
MR. GUANELI explained subsection  (a)(1)(B) would allow police to                                                               
talk  to  people  who  they   reasonably  believe  have  material                                                               
information. The critical  part of the bill  is subsection (a)(2)                                                               
where it  would require that  the police must believe  the person                                                               
would have information on the crime.                                                                                            
                                                                                                                                
9:16:23 AM                                                                                                                    
SENATOR FRENCH asked Mr. Guaneli  the level of force police would                                                               
be authorized to employ in  order to gain cooperation of citizens                                                               
who may not want to be photographed or fingerprinted.                                                                           
                                                                                                                                
MR.  GUANELI  said  police  currently have  the  ability  to  use                                                               
reasonable force  to enable  the effect  of whatever  action they                                                               
seek.  It would  depend on  the  circumstances and  in this  case                                                               
police would be  dealing with a citizen who  may have information                                                               
and so  that level  would involve  the "laying  on of  hands" and                                                               
"restricting movements."                                                                                                        
                                                                                                                                
9:18:24 AM                                                                                                                    
CHAIR SEEKINS  said he also had  concern over the words,  "in the                                                               
vicinity,"  but  noted  that  the   committee  has  discussed  it                                                               
extensively.  He said  the intent  is there  must be  a level  of                                                               
reasonable immediacy.                                                                                                           
                                                                                                                                
MR. GUANELI agreed. In response  to Senator French's concern over                                                               
force, the  provision on line 16  comes directly from a  Court of                                                               
Appeals case  in Alaska where  police pulled over a  vehicle they                                                               
believe  contained   a  crime  victim.   The  Court   of  Appeals                                                               
authorized police to detain even a crime victim, he said.                                                                       
                                                                                                                                
9:21:22 AM                                                                                                                    
CHAIR  SEEKINS posed  a hypothetical  scenario  where the  police                                                               
believed an eyewitness  to a crime posed a threat  to the officer                                                               
and asked  whether they  would be allowed  to detain  the witness                                                               
more securely.                                                                                                                  
                                                                                                                                
MR. GUANELI  reported there  was a  large body  of case  law that                                                               
allows police to take reasonable actions to protect themselves.                                                                 
                                                                                                                                
CHAIR SEEKINS asked whether police  would have legal authority to                                                               
detain suspected gang  members with more force than  SB 206 would                                                               
allow.                                                                                                                          
                                                                                                                                
MR. GUANELI  replied SB  206 does not  directly address  level of                                                               
force. The intent  is that reasonable force  be applied dependent                                                               
on circumstances on a case-by-case basis.                                                                                       
                                                                                                                                
CHAIR  SEEKINS   asked  Mr.  Guaneli  to   describe  an  "exigent                                                               
circumstance."                                                                                                                  
                                                                                                                                
MR. GUANELI  explained an  exigent circumstance  is a  level that                                                               
may not rise to an emergency  but there is some reason to believe                                                               
action must  be taken  immediately. One example  might be  in the                                                               
collection  of evidence.  A witness  may have  evidence on  their                                                               
person  and not  even know  it and  police recognize  that action                                                               
must be taken in order to secure that evidence.                                                                                 
                                                                                                                                
9:25:53 AM                                                                                                                    
CHAIR  SEEKINS   removed  his   objection.  Hearing   no  further                                                               
objections, Version I was adopted.                                                                                              
                                                                                                                                
SENATOR  CHARLIE HUGGINS  moved  Amendment 1.  Page  2, line  28;                                                               
delete  AS   11.61.195  and  insert  AS   11.61.190.  Hearing  no                                                               
objections, Amendment 1 was adopted.                                                                                            
                                                                                                                                
MR.  WALT  MONEGAN,  Anchorage  Chief  of  Police,  testified  in                                                               
support  of SB  206. He  spoke of  a homicide  case in  Anchorage                                                               
outside a VFW  hall four years ago. Police later  found out there                                                               
were  potentially  50  witnesses  to the  shooting  and  yet  the                                                               
homicide remains  unsolved. He expressed frustration  that police                                                               
often are not privy to what the community knows about a crime.                                                                  
                                                                                                                                
9:31:38 AM                                                                                                                    
SENATOR FRENCH  asked Chief  Monegan the level  of force  that he                                                               
would authorize for his officers to detain witnesses.                                                                           
                                                                                                                                
CHIEF   MONEGAN  explained   that  the   beginning  of   a  crime                                                               
investigation is  often chaotic  and officers do  not necessarily                                                               
know the bad  guys from the good. They  separate individuals into                                                               
individual cars,  sometimes handcuffed,  until things  get sorted                                                               
out. Officers  are good  at explaining  to the  public afterwards                                                               
the reason for  using force to gain control of  a crowd. Normally                                                               
everything happens fairly  quietly but sometimes there  are a few                                                               
people who try to resist being  detained and when that happens it                                                               
activates the  "prey drive," he  stated. Police generally  try to                                                               
find out  why someone is  resisting and that would  include using                                                               
reasonable force.                                                                                                               
                                                                                                                                
9:35:53 AM                                                                                                                    
SENATOR  HUGGINS   stated  concern  for  consistency   of  policy                                                               
throughout the Alaska Chiefs of Police.                                                                                         
                                                                                                                                
CHIEF  MONEGAN responded  matters  are generally  handled in  the                                                               
same manner.  Officers must be respectful  and professional while                                                               
trying to revoke rapport in  the community. Officers who take the                                                               
bullying tact generally fail at the investigation scene.                                                                        
                                                                                                                                
CHAIR SEEKINS  closed public testimony  and asked  for discussion                                                               
among  committee  members.  He  said   SB  206  appears  to  give                                                               
additional  powers of  detainment  in  serious circumstances.  He                                                               
said he is  satisfied that the bill  was ready to move  on to the                                                               
next committee of referral.                                                                                                     
                                                                                                                                
SENATOR HUGGINS said  he would be more supportive of  the bill if                                                               
he lived in Anchorage. He suggested  putting a sunset on the bill                                                               
for future review.                                                                                                              
                                                                                                                                
9:39:53 AM                                                                                                                    
SENATOR BUNDE noted that legislation  could be changed during any                                                               
legislative session and so he did not see a need for a sunset.                                                                  
                                                                                                                                
SENATOR FRENCH  expressed concern that  the bill would make  it a                                                               
crime  for  a  person,  who  may be  unaware  that  a  crime  has                                                               
occurred, to hurry  away from the scene without  consenting to be                                                               
photographed. He  expressed support  for the  fingerprint portion                                                               
of the bill.                                                                                                                    
                                                                                                                                
SENATOR BUNDE  opined people are  photographed a great  deal more                                                               
than they realize.                                                                                                              
                                                                                                                                
CHAIR SEEKINS expressed support for the bill.                                                                                   
                                                                                                                                
9:44:56 AM                                                                                                                    
SENATOR FRENCH countered his constituents  support the part about                                                               
taking fingerprints  of people  connected with  the investigation                                                               
of  a murder  or attempted  murder and  they support  the officer                                                               
using a  certain amount of force  to do so. People  would support                                                               
making  it a  crime for  a person  who does  not comply  with the                                                               
officer in this type of situation  but to slow down a law-abiding                                                               
citizen  and force  them to  have their  photograph taken  seemed                                                               
overly done.                                                                                                                    
                                                                                                                                
SENATOR  FRENCH moved  Amendment 2.  Page 3,  line 8,  delete the                                                               
words "photographs or".                                                                                                         
                                                                                                                                
9:47:42 AM                                                                                                                    
CHAIR SEEKINS said there would  have to be a reasonable necessity                                                               
for the police  officer to detain a person  before the photograph                                                               
would be taken.                                                                                                                 
                                                                                                                                
MR. GUANELI agreed.  The reason the criminal provision  is in the                                                               
bill  is because  of reasonable  force.  The intent  is that  the                                                               
officer  would  facilitate  cooperation   of  the  individual  by                                                               
explaining  that it  would be  a quick  and easy  process and  by                                                               
advising them of the consequences if they resist.                                                                               
                                                                                                                                
CHAIR  SEEKINS  asked  Mr.  Guaneli to  explain  the  reason  the                                                               
officer would be taking the photograph.                                                                                         
                                                                                                                                
MR.  GUANELI said  the most  common  scenario would  be that  the                                                               
person was not able to show proper identification.                                                                              
                                                                                                                                
CHAIR SEEKINS noted that person  would already be under temporary                                                               
detention.                                                                                                                      
                                                                                                                                
MR. GUANELI said correct.                                                                                                       
                                                                                                                                
9:52:59 AM                                                                                                                    
SENATOR GUESS recognized that the  bill does not specify that the                                                               
photograph would be  taken in the event that a  person was unable                                                               
to show identification. She expressed  support for the amendment.                                                               
Law-abiding citizens  could be charged with  a misdemeanor simply                                                               
for rushing off to get their kids from daycare, she stated.                                                                     
                                                                                                                                
CHAIR  SEEKINS said  he  had a  harder time  with  the words  "or                                                               
resists" on line 8 than with the photograph taking.                                                                             
                                                                                                                                
SENATOR BUNDE  referred to  line 5  and said  the officer  has to                                                               
have "reasonable suspicion" that a person has witnessed a crime.                                                                
                                                                                                                                
MR. GUANELI said  the notion of reasonable suspicion  is found in                                                               
all the  case law. The  length of  detention would depend  on the                                                               
reason for detention.                                                                                                           
                                                                                                                                
9:56:00 AM                                                                                                                    
SENATOR FRENCH  said there  are no  Miranda warnings  for someone                                                               
under  temporary detention  and  so that  person  would not  know                                                               
their rights in the situation.  He said if the committee believes                                                               
that  a person  should  be set  free once  they  show the  proper                                                               
identification that should  be written into the bill.  He said it                                                               
is sure as  daylight that a lawful person will  be charged with a                                                               
crime because of the way the bill is currently written.                                                                         
                                                                                                                                
CHAIR SEEKINS referred to the proposed Amendment 2 and objected.                                                                
                                                                                                                                
Roll  call proved  Amendment  2 failed  with  Senators Guess  and                                                               
French  voting yea  and Senators  Huggins, Therriault,  and Chair                                                               
Seekins voting nay.                                                                                                             
                                                                                                                                
9:58:01 AM                                                                                                                    
SENATOR  HUGGINS   moved  CSSB   206(JUD)  from   committee  with                                                               
individual recommendations and attached  fiscal notes. Hearing no                                                               
objections, the motion carried.                                                                                                 

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