Legislature(2005 - 2006)BUTROVICH 205

08/02/2006 08:30 AM JUDICIARY


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08:36:26 AM Start
08:36:57 AM SB3005
10:14:05 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB3005 DETENTION/IDENTIFICATION; CONTEMPT TELECONFERENCED
Moved CSSB 3005(JUD) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         August 2, 2006                                                                                         
                           8:36 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Gene Therriault                                                                                                         
Senator Hollis French                                                                                                           
Senator Gretchen Guess                                                                                                          
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
SENATE BILL NO. 3005                                                                                                            
"An Act relating to contempt of court and to temporary detention                                                                
and identification of persons."                                                                                                 
     MOVED CSSB 3005(JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB3005                                                                                                                  
SHORT TITLE: DETENTION/IDENTIFICATION; CONTEMPT                                                                                 
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
07/27/06       (S)       READ THE FIRST TIME - REFERRALS                                                                        
07/27/06       (S)       JUD                                                                                                    
08/02/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
SENATOR CON BUNDE                                                                                                               
Alaska State Capitol                                                                                                            
Juneau AK  99801-1182                                                                                                           
POSITION STATEMENT: Sponsor SB 3005                                                                                           
                                                                                                                                
LAUREN RICE (via teleconference)                                                                                                
Staff to Senator Bunde                                                                                                          
Anchorage AK                                                                                                                    
POSITION STATEMENT: Supported SB 3005                                                                                         
                                                                                                                                
DEAN GUANELI, former Chief Assistant Attorney General                                                                           
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau AK  99811-0300                                                                                                           
POSITION STATEMENT: Supported SB 3005                                                                                         
                                                                                                                                
CHIEF WALTER MONEGAN (via teleconference)                                                                                       
Anchorage Police Department                                                                                                     
Anchorage AK                                                                                                                    
POSITION STATEMENT: Supported SB 3005                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  CHARLIE  HUGGINS  called  the  Senate  Judiciary  Standing                                                               
Committee meeting to order at 8:36:26  AM. Present at the call to                                                             
order  were Senators  Hollis  French,  Gene Therriault,  Gretchen                                                               
Guess and Chair Charlie Huggins.                                                                                                
                                                                                                                                
           SB 3005-DETENTION/IDENTIFICATION; CONTEMPT                                                                       
                                                                                                                              
CHAIR CHARLIE HUGGINS asked Senator Bunde to introduce SB 3005.                                                                 
                                                                                                                                
8:36:57 AM                                                                                                                    
SENATOR CON BUNDE,  sponsor, presented a statement.  He said that                                                               
he and Mr. Guaneli  have made a few changes to  the bill since it                                                               
was last  before the  committee. He then  related an  incident of                                                               
gang-related violence  that took place in  South Anchorage August                                                               
1st and  noted that, although  these problems occur  primarily in                                                               
Anchorage right now,  they will spread to the rest  of the state.                                                               
The genesis of the bill was  an incident that occurred at Diamond                                                               
Center  in 2005,  when  some of  the  potential witnesses  simply                                                               
refused to  speak to  police. He  was amazed  that Alaska  had no                                                               
material  witness  bill,  so  that police  could  at  least  have                                                               
required these people to identify themselves.                                                                                   
                                                                                                                                
He stressed  that this bill  does not require people  to testify,                                                               
just to  identify themselves to  police so they can  be contacted                                                               
if necessary.  He reminded  the committee of  a story  related by                                                               
Chief Monegan  about the Charles  Meech killing in  Russian Jack,                                                               
when they stopped a driver  in the neighborhood whom they thought                                                               
might be involved. He was not,  but he did identify himself. When                                                               
police hit a dead-end in  the case, they re-interviewed witnesses                                                               
and found  that this  person had a  crucial piece  of information                                                               
that allowed them  to solve the case. If they  had been unable to                                                               
identify this man, the case would not have been solved.                                                                         
                                                                                                                                
CHAIR HUGGINS  said it works  both ways. This is  essentially the                                                               
same bill  that went to  the House  Judiciary, where they  made a                                                               
couple  of minor  changes to  the language  on pages  1 and  2 to                                                               
raise the penalty for certain kinds of contempt of court.                                                                       
                                                                                                                                
SENATOR FRENCH asked  Chair Huggins which version of  the bill he                                                               
was working from.                                                                                                               
                                                                                                                                
CHAIR HUGGINS asked for a motion to adopt the CS.                                                                               
                                                                                                                                
SENATOR FRENCH  moved to adopt the  proposed committee substitute                                                               
to  SB  3005  Version  G, labeled  24-GS3097\G,  as  the  working                                                               
document. There being no objection, the motion carried.                                                                         
                                                                                                                                
SENATOR BUNDE  noted that on  page 2,  line 17, they  changed the                                                               
words "may have"  to "has" and made  some grammatical corrections                                                               
[in SB  2005] on  page 2,  line 19;  additionally, the  intent is                                                               
covered in lines 24 and 25.                                                                                                     
                                                                                                                                
He  commented that  the bill  is worthy  of attention  because it                                                               
balances the need to protect  individual freedom with the ability                                                               
to prosecute  crime and to  provide defendants with  witnesses on                                                               
their  behalf.  A  material  witness is  crucial  to  either  the                                                               
defense  or  the  prosecution. Senate  Bill  3005  also  protects                                                               
material witnesses from unreasonable  confinement, while it helps                                                               
to ensure their availability for crucial testimony.                                                                             
                                                                                                                                
8:42:25 AM                                                                                                                    
SENATOR  BUNDE  explained that  it  allows  a police  officer  to                                                               
temporarily detain a person if he  has reason to suspect that the                                                               
person may  have witnessed a crime,  or was in the  vicinity of a                                                               
crime  such   as  a  homicide   or  manslaughter  and   may  have                                                               
information  of material  aid in  the investigation,  and if  the                                                               
temporary detention  is reasonably necessary to  obtain or verify                                                               
the identification  of the  person, to obtain  an account  of the                                                               
crime, or to protect the crime victim from imminent harm.                                                                       
                                                                                                                                
He  said that  if a  person is  detained in  an investigation  of                                                               
murder, or  attempted murder, or misconduct  involving weapons in                                                               
the first degree  and refuses to provide  identification (ID), or                                                               
if the  officer has a  reasonable suspicion that the  ID provided                                                               
is false,  the person can  be photographed, served a  subpoena to                                                               
appear before a  grand jury, or fingerprinted. The  bill makes it                                                               
a  Class B  misdemeanor to  refuse the  taking of  photographs or                                                               
fingerprints;  but it  outlines procedures  for destroying  those                                                               
photographs  or  fingerprints  so  they are  not  retained  in  a                                                               
permanent database.  It also increases  the penalty  for contempt                                                               
of court, for  failure to honor a subpoena, or  refusal to answer                                                               
as  a witness  or appear  before a  grand jury  in connection  to                                                               
felony crimes.                                                                                                                  
                                                                                                                                
8:44:28 AM                                                                                                                    
CHAIR  HUGGINS identified  the senators  present  and called  for                                                               
questions. He said they have  a memo from Pamela Finley, Counsel,                                                               
Legislative  Affairs Agency,  and asked  if Senator  Bunde had  a                                                               
copy.                                                                                                                           
                                                                                                                                
8:45:12 AM                                                                                                                    
SENATOR BUNDE  said that  he did  have a copy  and would  ask Mr.                                                               
Guaneli  to   address  it;   but  he   felt  her   concerns  were                                                               
unwarranted.                                                                                                                    
                                                                                                                                
8:45:42 AM                                                                                                                    
SENATOR GUESS noted that on page  2, line 15, property crimes are                                                               
included   in   the  temporary   detention,   but   not  in   the                                                               
fingerprinting  issue and  asked Senator  Bunde why  that section                                                               
was expanded to include property crimes.                                                                                        
                                                                                                                                
SENATOR BUNDE  replied that Lauren  Rice was  on the line  and he                                                               
would ask her to respond.                                                                                                       
                                                                                                                                
8:46:35 AM                                                                                                                    
LAUREN RICE,  staff to  Senator Bunde,  said property  crimes are                                                               
important enough  to detain  witnesses, but  not enough  to allow                                                               
fingerprints.                                                                                                                   
                                                                                                                                
8:47:12 AM                                                                                                                    
SENATOR  GUESS asked  Lauren to  remind her  whether, on  page 2,                                                               
lines 26 through  28, the intent is to allow  photographs even if                                                               
the person provides government-issued ID.                                                                                       
                                                                                                                                
MS. RICE  replied yes, that it  is already taking place,  as most                                                               
police officers  carry cameras and  take informal  photographs at                                                               
the  scene  of  a  crime.  This just  clarifies  their  right  to                                                               
photograph witnesses.                                                                                                           
                                                                                                                                
8:47:46 AM                                                                                                                    
SENATOR GUESS  asked Lauren to confirm  that on page 2,  line 25,                                                               
where it says,  "to accomplish the purposes  of this subsection",                                                               
the subsection referred to is (a)(3).                                                                                           
                                                                                                                                
MS. RICE replied yes, that is lines 11 through 21.                                                                              
                                                                                                                                
SENATOR  BUNDE  added that  this  [lines  26  through 28]  is  an                                                               
attempt to  ensure that over-zealous  enforcement doesn't  end up                                                               
with people "cooling their heels" in a police car for hours.                                                                    
                                                                                                                                
SENATOR  FRENCH  wondered  about  the exclusion  of  felony  drug                                                               
crimes.  He noted  that drugs  are  frequently at  the center  of                                                               
difficulties in Anchorage, and asked  whether Senator Bunde would                                                               
consider expanding the scope of the bill to include them.                                                                       
                                                                                                                                
8:49:19 AM                                                                                                                    
SENATOR BUNDE  replied he tried to  focus on the upper  end in an                                                               
attempt  to maintain  the balance  between protecting  individual                                                               
rights and prosecuting crime. He  recognized that many people are                                                               
concerned about the  police having too much power  and don't want                                                               
to be  involved, so  he would  prefer to  move forward  with this                                                               
tool  and, if  it needs  to  be expanded  in the  future, he  may                                                               
consider that.                                                                                                                  
                                                                                                                                
8:50:08 AM                                                                                                                    
CHAIR HUGGINS said  he has been sensitized by  senior citizens in                                                               
the Matsu  Valley, whose concern  is that the perpetrator  of the                                                               
crime  will see  them speaking  to police  and will  take revenge                                                               
upon them.                                                                                                                      
                                                                                                                                
SENATOR BUNDE  agreed that  is a valid  concern, but  pointed out                                                               
that police  already have the  right to  talk to them,  this just                                                               
requires that  they identify themselves. In  addition, the police                                                               
mentioned that,  if a person  involved in gang activity  spoke to                                                               
them voluntarily,  that person could suffer  serious retribution.                                                               
This law  might help because everyone  would know that he  had no                                                               
choice in  speaking to police, and  the same might hold  true for                                                               
senior citizens.                                                                                                                
                                                                                                                                
8:52:54 AM                                                                                                                    
CHAIR HUGGINS  said that  his constituents  [in District  H] have                                                               
asked why  this rule should apply  to them, since the  problem is                                                               
in Anchorage.                                                                                                                   
                                                                                                                                
SENATOR BUNDE  responded that  it has to  be statewide,  and that                                                               
there  is  a significant  level  of  crime  in areas  other  than                                                               
Anchorage. He speculated that someone  who has been victimized is                                                               
likely to appreciate the ability  of the bill to aid prosecution.                                                               
A person  accused of a  crime might appreciate the  added ability                                                               
to gather  information to clear  him of suspicion. Every  law has                                                               
the potential to infringe on the  rights of some citizens, but in                                                               
this case the net benefit outweighs any negative side effects.                                                                  
                                                                                                                                
8:54:46 AM                                                                                                                    
CHAIR HUGGINS  commented that this  bill has already  been before                                                               
the  committee and  the House  and asked  if Senator  Bunde would                                                               
remind the committee of anything  that he feels is pertinent from                                                               
previous discussions.                                                                                                           
                                                                                                                                
SENATOR BUNDE responded,  as he mentioned to  Senator French, the                                                               
balance  between  protecting   citizens  rights,  while  allowing                                                               
police  the authority  to  do  their jobs,  is  the  core of  his                                                               
concern in this legislation, and  he thinks it achieves that. The                                                               
House passed it so they seem to agree.                                                                                          
                                                                                                                                
8:55:55 AM                                                                                                                    
CHAIR HUGGINS welcomed Dean Guaneli.                                                                                            
                                                                                                                                
DEAN GUANELI,  former Chief Assistant Attorney  General, Criminal                                                               
Division,  Department  of Law,  said  that  one change  from  the                                                               
original  bill  is  an immediate  effective  date.  Given  recent                                                               
events in Anchorage, that seems very appropriate.                                                                               
                                                                                                                                
He  said that  the  basic  standard in  Section  2  of the  bill,                                                               
subsection  (a), page  2, lines  11  through 21,  comes from  the                                                               
American Law Institute,  which is a group of  legal scholars that                                                               
proposes  model codes  in  a variety  of  areas. Alaska's  entire                                                               
criminal code  comes from its  model penal code.  This particular                                                               
provision is from their model  code of pre-arraignment procedure.                                                               
The provision is  supported by Professor Wayne R.  LaFave, who is                                                               
frequently cited by  the Alaska Court of Appeals  and the Supreme                                                               
Court  on a  number of  criminal law  issues. Our  Alaska Supreme                                                               
Court also  cited it  with approval  in a  Kodiak case  two years                                                               
ago.  What  this means is that peace officers  in Alaska have the                                                               
authority to  stop witnesses of  serious crimes. What  is unclear                                                               
under  the  formulation  in the  model  code  of  pre-arraignment                                                               
procedure from  the American Law  Institute, is what  crimes they                                                               
can stop  witnesses for and exactly  what they can do.  This bill                                                               
sets the parameters.                                                                                                            
                                                                                                                                
MR. GUANELI  referred to Senator French's  question about whether                                                               
this  bill could  be expanded  to  witnesses of  drug crimes  and                                                               
stated that  the American  Law Institute  does not  recommend it.                                                               
Because  ALI  does not  recommend  it,  and given  the  practical                                                               
matter  that drug  crimes might  be used  by police  to stop  any                                                               
number  of people  in  a given  area,  he felt  that  it was  not                                                               
appropriate to expand it to drug crimes.                                                                                        
                                                                                                                                
9:00:34 AM                                                                                                                    
He pointed out  that, on Page 2,  line 16, one of  the changes in                                                               
the CS is  an expansion to misconduct involving  weapons under AS                                                               
11.61.190 or 195(a)(3), which are  the drive-by shooting statutes                                                               
in  Alaska. Particularly  given the  incident of  August 1st,  it                                                               
seems appropriate that  when police have a  drive-by shooting, it                                                               
gives  them  grounds to  stop  witnesses  who may  have  observed                                                               
something. Many  drive-by shootings  also involve  crimes against                                                               
persons; for  example, to shoot  with reckless disregard  so that                                                               
someone is put in fear of  serious injury is assault in the third                                                               
degree. There may be circumstances  when that does not apply, but                                                               
it is appropriate to include it here,  as it is the type of crime                                                               
that involves a high degree of danger to the public.                                                                            
                                                                                                                                
9:01:43 AM                                                                                                                    
MR.  GUANELI said  that  the language  on page  2,  line 14  that                                                               
reads,  "person witnessed  or was  at or  near the  scene of  the                                                               
commission  of a  crime" is  changed from  the previous  version,                                                               
which read,  "was in the  vicinity of  the crime. This  change in                                                               
language is what  Professor LaFave recommends and  should be more                                                               
acceptable to members of the House.                                                                                             
                                                                                                                                
He continued  to subsection  B, page 2,  line 22,  which provides                                                               
guidance  regarding what  the  police  can do  when  they stop  a                                                               
person. The  idea that  the police  have specific  limitations on                                                               
what they  can do is  very important in  light of the  short memo                                                               
from  legal  services that  Chair  Huggins  mentioned. That  memo                                                               
refers to  a couple of  US Supreme  Court cases: Hiibel  v. Sixth                                                             
Judicial District Court  of Nevada, a Nevada case  from 2004 that                                                             
says a state  can make it a crime to  refuse to identify yourself                                                               
if police have  a suspicion that you may have  committed a crime;                                                               
and  Brown  v. Texas,  a  Texas  case  from  1979 that  says  the                                                             
reasonableness of stopping citizens  depends on a balance between                                                               
the  public  interest  and  an  individual's  right  to  personal                                                               
security  without  arbitrary  interference. In  the  Texas  case,                                                               
police   stopped  someone   just  because   he  sort   of  looked                                                               
suspicious. The  US Supreme Court said  that you have to  look at                                                               
the gravity of  the public concern, the degree  to which stopping                                                               
the person advances the public  interest, and the severity of the                                                               
interference with the public's right to do as they please.                                                                      
                                                                                                                                
9:05:14 AM                                                                                                                    
MR. GUANELI said  that, if an individual at or  near the scene of                                                               
a crime  does not provide valid  ID, this bill allows  the police                                                               
to  take  his  fingerprints.  As a  practical  matter,  Anchorage                                                               
police  say  that it  would  take  just  a  few minutes  to  take                                                               
thumbprints at  the scene, so  the intrusion into  people's lives                                                               
would be minimal.  He believes that this bill meets  the test set                                                               
out by the court in the case of Brown vs. Texas.                                                                                
                                                                                                                                
9:07:22 AM                                                                                                                    
MR. GUANELI  continued to  say that the  original version  of the                                                               
bill said, if  a person does not  provide valid government-issued                                                               
ID, the police  could serve a grand jury subpoena  on him. If the                                                               
crime  is very  serious  (murder, attempted  murder, or  drive-by                                                               
shooting) the police  could take fingerprints even  if the person                                                               
did  provide  ID.  In  thinking  about  keeping  interference  in                                                               
people's  lives to  a minimum,  it seemed  appropriate to  change                                                               
that  and to  allow the  police to  take fingerprints  only if  a                                                               
person does  not provide  ID or  if they  have reason  to suspect                                                               
that the ID provided is not valid.  On page 3, lines 21 and 24 it                                                               
says that  the photographs and  fingerprints that are  taken must                                                               
be  destroyed "unless  the person  is suspected  of committing  a                                                               
crime  within  the  scope of  the  investigation".  The  previous                                                               
version said, "unless  the person is suspected  of committing the                                                               
crime  under  investigation",  but   expanding  that  to  include                                                               
anything that falls within the  broad scope of that investigation                                                               
seems  appropriate. If  the  specific  crime under  investigation                                                               
that night  was a murder,  and the  individual was involved  in a                                                               
drug enterprise but not in  the murder, it seems inappropriate to                                                               
force  the police  to  destroy identification  if  is within  the                                                               
scope of that investigation.                                                                                                    
                                                                                                                                
9:09:36 AM                                                                                                                    
He summarized  by saying that the  bill was developed by  a well-                                                               
respected national group of legal  scholars, is supported by case                                                               
law in Alaska, and is a  narrowly drawn provision that is greatly                                                               
needed.                                                                                                                         
                                                                                                                                
SENATOR THERRIAULT asked  whether the current power  of police to                                                               
take pictures is only of the crime scene.                                                                                       
                                                                                                                                
MR.  GUANELI  replied that  the  police  have authority  to  take                                                               
pictures generally  of the crime scene  and of people at  or near                                                               
the crime scene. All of that  has evidentiary value and there are                                                               
a lot  of reasons to allow  police to take pictures  at or around                                                               
crime scenes.                                                                                                                   
                                                                                                                                
SENATOR THERRIAULT  said that, under  current law, if there  is a                                                               
crowd  and a  person chooses  to  turn his  back or  go into  his                                                               
house, the police  cannot compel him to uncover his  face or stay                                                               
to  have his  picture taken;  so there  is a  material difference                                                               
between  what is  happening now  and what  will be  allowed under                                                               
this bill.                                                                                                                      
                                                                                                                                
MR. GUANELI confirmed his statement.                                                                                            
                                                                                                                                
SENATOR FRENCH said  that he heard that the bill  would allow the                                                               
police to conduct house-to-house  searches for witnesses. He said                                                               
that he checked  his criminal procedures book and  looked up case                                                               
law to verify  that, at this time, the police  must have a search                                                               
warrant to go  into a house to arrest someone  who is believed to                                                               
have committed  a crime;  an arrest warrant  isn't enough  to get                                                               
them into a house. He asked whether this bill changes that.                                                                     
                                                                                                                                
MR. GUANELI replied  no, this bill, being a  statutory act, could                                                               
not  overturn any  settled  case law  precedent  that requires  a                                                               
search  warrant.  There are  certainly  limitations  on what  the                                                               
police can  do under this bill  and it doesn't circumvent  any of                                                               
those Supreme Court requirements.                                                                                               
                                                                                                                                
9:13:10 AM                                                                                                                    
SENATOR  FRENCH said  that that  last time  the committee  met on                                                               
this,  they discussed  the Hiibel  case at  some length,  and the                                                               
Brown case is cited in Hiibel, but  he had not read it until this                                                               
morning, after being  alerted to it by Pam Finley's  memo. In the                                                               
Brown case,  the question was  whether the appellant  was validly                                                               
convicted  for refusing  to comply  with  the policeman's  demand                                                               
that he identify himself. The Supreme Court said no.                                                                            
                                                                                                                                
He pointed out that the  Fourth Amendment applies to all seizures                                                               
of a person, including brief  detention, and the Fourth Amendment                                                               
requires that  the seizure be  reasonable. What the  case cleaves                                                               
on, and it is  important that we be aware that  we are crossing a                                                               
divide, is  that there  has to be  some suspicion  of wrongdoing.                                                               
That is  the element that  creates some concern in  the community                                                               
about  the powers  granted by  this bill.  The case  says in  the                                                               
absence of any  basis of suspecting the  appellant of misconduct,                                                               
the  balance  between the  public  interest  and the  appellant's                                                               
right to personal security and  privacy tilts in favor of freedom                                                               
from police interference.  So we have to be very  careful in this                                                               
bill, about  what authority  we grant to  the police  over people                                                               
whom we do not suspect of wrongdoing.                                                                                           
                                                                                                                                
9:16:12 AM                                                                                                                    
MR. GUANELI  responded to Senator  French comments. He  said that                                                               
the 1979 Texas case in the  US Supreme Court involved a situation                                                               
where  the  police  just  stopped   people  because  they  looked                                                               
suspicious  and  without any  particular  reason.  They tried  to                                                               
justify  that  under existing  US  Supreme  Court case  law  that                                                               
talked about  reasonable suspicion that  a person was  engaged in                                                               
criminal  activity. The  Supreme  Court said  that  there was  no                                                               
justification. What  the court didn't consider,  because the case                                                               
law  at  the  time  only talked  about  reasonable  suspicion  of                                                               
criminal  activity, is  other circumstances  that might  give the                                                               
police grounds  for stopping someone.  What the court did  do was                                                               
to set out its test... gravity  of the public concern, the degree                                                               
to which  it furthers  the public interest,  and the  severity of                                                               
the interference. Since that time  other federal appellate courts                                                               
including the 9th circuit court,  have allowed stopping witnesses                                                               
in   "exigent   circumstances",   that   is   serious   emergency                                                               
situations. That case law was cited  by our supreme court when it                                                               
generally approved  of this American Law  Institute procedure, so                                                               
it  is  true  to say  that  the  US  Supreme  Court in  1979  was                                                               
concerned  with  the specific  case  it  had  before it  and  the                                                               
justification that was  given for that stop, but the  test it set                                                               
out applies  very well to this  bill and the kinds  of situations                                                               
in  which   other  courts,   including  Alaska's,   have  allowed                                                               
witnesses to be stopped.                                                                                                        
                                                                                                                                
9:18:36 AM                                                                                                                    
CHAIR HUGGINS  said he  was watching a  news program  showing eye                                                               
scans being  used in Felluja,  Iraq for identification.  He asked                                                               
Mr.  Guaneli whether  we have  that technology  available to  law                                                               
enforcement here in Alaska.                                                                                                     
                                                                                                                                
MR. GUANELI replied that he did not know.                                                                                       
                                                                                                                                
CHAIR HUGGINS asked  what would happen with  regard to photograph                                                               
or fingerprints,  if a trooper  stopped a person and  didn't have                                                               
his  fingerprint box  with him;  would the  person walk  away, or                                                               
have to wait for the trooper to go get his equipment.                                                                           
                                                                                                                                
9:19:39 AM                                                                                                                    
MR.  GUANELI replied  that it  might turn  on circumstances.  The                                                               
trooper cannot  force the  person to  go with  him or  remove him                                                               
from  the  vicinity, and  this  bill  says specifically  "without                                                               
unreasonable delay", so that person  would walk away unless there                                                               
were very specific circumstances.                                                                                               
                                                                                                                                
CHAIR HUGGINS restated  that a law enforcement  officer could not                                                               
force a  potential witness to  get into  the cruiser and  go with                                                               
him for any reason.                                                                                                             
                                                                                                                                
MR. GUANELI  agreed that he  could not, unless the  person agreed                                                               
to go.                                                                                                                          
                                                                                                                                
SENATOR  FRENCH asked  whether, if  the police  station is  right                                                               
across the  street, and it's  a blustery, snowy day,  the officer                                                               
could require the person to go to the station with him.                                                                         
                                                                                                                                
MR. GUANELI  said that under  those circumstances, it  would seem                                                               
to  be  a  reasonable  requirement;   but  police  will  have  to                                                               
adjudicate those issues on a case-by-case basis.                                                                                
                                                                                                                                
9:21:55 AM                                                                                                                    
SENATOR FRENCH asked  Mr. Guaneli to remind him  of the procedure                                                               
for photographs  and fingerprints for different  types of crimes.                                                               
He said, if police go to  a felony property crime scene, they can                                                               
take   photographs  of   the   witnesses,   but  cannot   require                                                               
fingerprints.                                                                                                                   
                                                                                                                                
MR. GUANELI agreed.                                                                                                             
                                                                                                                                
SENATOR FRENCH continued,  if police go to the scene  of a murder                                                               
or attempted murder like the  touch-football example in Anchorage                                                               
recently,  when there  were  three guns  brandished  and lots  of                                                               
gunfire, they can take photographs and fingerprints.                                                                            
                                                                                                                                
MR.  GUANELI  corrected that  they  can  take fingerprints  if  a                                                               
person does not provide valid government-issued ID.                                                                             
                                                                                                                                
SENATOR FRENCH reiterated that they  could take fingerprints only                                                               
if the person has no government issued ID.                                                                                      
                                                                                                                                
MR. GUANELI replied that is correct                                                                                             
                                                                                                                                
SENATOR  FRENCH  said that  if  a  person  doesn't have  ID,  for                                                               
example,  a 15  yr  old  who pedaled  his  bicycle  to the  touch                                                               
football game and doesn't have  a government ID, the police would                                                               
go straight to fingerprints.                                                                                                    
                                                                                                                                
MR.  GUANELI replied  yes, that  the requirement  for government-                                                               
issued   ID   applies  regardless   of   age.   The  purpose   is                                                               
identification.                                                                                                                 
                                                                                                                                
9:23:35 AM                                                                                                                    
SENATOR FRENCH said  that he is very sympathetic  to requiring ID                                                               
in cases  of murder,  attempted murder, or  misconduct 1,  but he                                                               
has a  problem with it in  a case of felony  property crime. It's                                                               
easy to  see a scenario  in which  detention is authorized  for a                                                               
fairly  minor  crime... like  shoplifting,  or  running over  the                                                               
neighbor's mailbox.  He questioned when  to grant the  police the                                                               
authority to detain  someone and, moreover, to  charge the person                                                               
with  a crime  if he/she  doesn't cooperate.  Criminals can't  be                                                               
penalized for failing  to testify, so he doesn't  feel good about                                                               
giving police  the power to charge  someone with a crime  for not                                                               
cooperating in the investigation of a $501 property crime.                                                                      
                                                                                                                                
9:24:59 AM                                                                                                                    
MR.  GUANELI said  that the  American Law  Institute formulation,                                                               
cited with  approval by the  Alaska Supreme Court, talks  about a                                                               
misdemeanor  or felony  involving  violence against  a person  or                                                               
appropriation   of  property;   so  that   would  apply   to  any                                                               
misdemeanor property  offense. This  bill limits it  to felonies,                                                               
and it  is hard to imagine  that the police would  apply this law                                                               
in  the  investigation  of  a  $501  shoplifting  case,  or  that                                                               
witnesses  to that  shoplifting  incident  would not  voluntarily                                                               
supply information to the police.                                                                                               
                                                                                                                                
He said that, included within  felony property crimes is shooting                                                               
or  attacking   the  Alaska  Pipeline,  burglary,   breaking  and                                                               
entering, and those might involve  witnesses whom the police want                                                               
to identify, and who might not  want to cooperate. We could parse                                                               
this up into  a number of specific subsections, but  that may add                                                               
a level of confusion that is not appropriate.                                                                                   
                                                                                                                                
SENATOR  FRENCH agreed  that it  is difficult  to draw  lines. He                                                               
pointed out that  certainly shooting at the Alaska  Pipeline is a                                                               
serious crime, but  selling drugs to children is  a serious crime                                                               
as well,  and this  bill excludes  that entire  classification of                                                               
offenses. He  noted that  lethal threats to  human life  are what                                                               
his constituents are  concerned about and, short  of that, normal                                                               
police investigative procedures seem to work well.                                                                              
                                                                                                                                
He suggested that on page 3,  line 29, the words "photographs or"                                                               
be deleted so that it reads  "(e) A person who refuses or resists                                                               
the taking of  fingerprints under this section commits  a class B                                                               
misdemeanor".                                                                                                                   
                                                                                                                                
9:29:16 AM                                                                                                                    
MR. GUANELI pointed  out to Senator French that page  2, line 15,                                                               
is what he has been speaking to.                                                                                                
                                                                                                                                
9:29:58 AM                                                                                                                    
SENATOR FRENCH responded that the  difficulty is that would still                                                               
leave all crimes against  persons, including misdemeanor assault.                                                               
On  page 2,  line 15,  it  would be  "the commission  of a  crime                                                               
against  a  person"  and  that  is  misdemeanor  assault,  felony                                                               
assault and  so forth.  He proposed  a conceptual  amendment that                                                               
would leave  police with the  ability to  prosecute uncooperative                                                               
witnesses  to shootings,  murders, attempted  murders, misconduct                                                               
in  the first  degree  (drive-by shootings,  reckless gunfire  in                                                               
populated  areas)  and  leave  out  felony  property  crimes  and                                                               
misdemeanor assault.                                                                                                            
                                                                                                                                
9:30:43 AM                                                                                                                    
SENATOR  GUESS  objected  because  she  did  not  understand  the                                                               
purpose of number  2 [Section 2, (b)(2)]. She said  that when she                                                               
read the  section regarding photographs, everything  seemed to be                                                               
clear  except  number two.  It  says  that  a peace  officer  may                                                               
temporarily  detain   a  person  "only  as   long  as  reasonably                                                               
necessary to accomplish  the purposes" and if they  don't have ID                                                               
it is  very specific  about what  the officer  is allowed  to do.                                                               
Then  there is  a  very  general statement  that,  if you  detain                                                               
someone,  you can  take  photographs; but  it  doesn't state  any                                                               
specific purpose.  She asked  if someone  could walk  her through                                                               
that  section and  explain why  it  is there  and the  way it  is                                                               
constructed.                                                                                                                    
                                                                                                                                
9:31:58 AM                                                                                                                    
SENATOR BUNDE  said he has  ridden with  the police and  they use                                                               
photographs regularly to help in investigations.                                                                                
                                                                                                                                
SENATOR GUESS asked  whether the purpose of the  photograph is to                                                               
verify the  identity of the person,  or obtain an account  of the                                                               
crime as stated in Section 2, (3).                                                                                              
                                                                                                                                
SENATOR BUNDE replied yes, that it is to obtain identification.                                                                 
                                                                                                                                
SENATOR GUESS said that  it is not clear as it  is written. It is                                                               
clear that the  police may take photographs, but it  is not clear                                                               
why.                                                                                                                            
                                                                                                                                
SENATOR BUNDE  clarified that the  police are authorized  to take                                                               
photographs  of  a person  only  if  he  has not  provided  valid                                                               
government-issued  ID. He  said that  Mr. Guaneli  mentioned that                                                               
there  should be  an additional  reference where  it says  "under                                                               
this  section"; perhaps  a  label on  the  subsection would  help                                                               
clarify it.                                                                                                                     
                                                                                                                                
SENATOR  GUESS asked  Mr.  Guaneli whether  she  is reading  this                                                               
incorrectly, or whether  number 2 [Section 2, (b)(2)]  on page 2,                                                               
lines 26 through  28 should really be under number  3 [Section 2,                                                               
(b)(3)]. If  police are  only authorized  to take  photographs of                                                               
individuals if  they don't provide a  valid government-issued ID,                                                               
that is not how  the bill reads now, and it  doesn't speak at all                                                               
to taking pictures at the crime scene.                                                                                          
                                                                                                                                
9:35:12 AM                                                                                                                    
MR. GUANELI responded  the reason the bill  allows photographs to                                                               
be  taken  even if  ID  is  shown, is  that  there  may be  other                                                               
evidentiary  reasons to  photograph a  person at  a crime  scene,                                                               
such  as documenting  what the  person looked  like at  the time,                                                               
whether  clothes  were torn  or  dirty,  whether the  person  was                                                               
intoxicated etc. He  said it didn't seem  appropriate to restrict                                                               
police  from doing  that if  the person  shows an  ID. Subsection                                                               
(b), although  it allows  the police to  do certain  things, also                                                               
restricts the things that they are allowed to do.                                                                               
                                                                                                                                
SENATOR  BUNDE  interjected an  example  of  a domestic  violence                                                               
assault incident  in which the  victim did not want  a photograph                                                               
taken, but it  was needed to show the extent  of the injuries. He                                                               
felt that  the police  should be allowed  to take  photographs in                                                               
cases like  this, even  though the witness  is reluctant  and the                                                               
police know the victim's identity.                                                                                              
                                                                                                                                
SENATOR GUESS conjectured  that the purpose of number 2  is to be                                                               
able to  take photographs to  support (a)(3), that is,  to verify                                                               
the identity of  a person, or to obtain an  account of the crime,                                                               
and  that Senator  Bunde and  Mr. Guaneli  were referring  to the                                                               
second one, to obtain an account of the crime.                                                                                  
                                                                                                                                
MR.  GUANELI responded,  if she  was interpreting  (a)(3) as  not                                                               
only  what the  witness tells  police about  the crime,  but also                                                               
what   is   visually   conveyed,   yes.  He   would   want   that                                                               
interpretation to  be very  clear in  the record  before grafting                                                               
(a)(3) onto subsection (b)(2). He  said that the original thought                                                               
when drafting  (a)(3) was to find  out what the witness  can tell                                                               
police  about  the crime.  Gathering  other  evidence may  be  an                                                               
appropriate thing  to include there,  and if it is  not included,                                                               
it needs to  be very clear that is what  the committee intends it                                                               
to mean.                                                                                                                        
                                                                                                                                
9:39:12 AM                                                                                                                    
SENATOR FRENCH  said the  committee seems to  be segueing  into a                                                               
separate category  of ideas and  that seems to be  tampering with                                                               
evidence. Blood spatter on a pair  of blue jeans is evidence. The                                                               
police have  the right to  take a picture  of that, or  even take                                                               
the blue jeans.  Torn clothing, grass stains, all of  that can be                                                               
evidence of a crime. This  bill is about identifying human beings                                                               
at a crime scene for a  later court proceeding, when police would                                                               
ask them questions about what happened.                                                                                         
                                                                                                                                
SENATOR  BUNDE clarified  that it  is not  necessarily for  court                                                               
proceedings but to further the investigation.                                                                                   
                                                                                                                                
MR.  GUANELI  said although  the  police  may  be able  to  seize                                                               
evidence that is  in plain view, there may be  things like facial                                                               
bruises  that police  cannot seize  without taking  a photograph.                                                               
One of the powers of the  police that is recognized by the Alaska                                                               
Court of Appeals,  is to temporarily detain a  victim of domestic                                                               
violence. He related  a particular case that  illustrates the use                                                               
of this power.                                                                                                                  
                                                                                                                                
SENATOR  FRENCH said  that goes  back to  what Senator  Guess was                                                               
asking about, the  different purposes listed on  lines 19 through                                                               
21 of  page 2, where  "the temporary  detention of the  person is                                                               
reasonably necessary  to... protect a crime  victim from imminent                                                               
harm, or for other exigent  circumstances". That is exactly right                                                               
and the  police can do that,  but this bill expands  the power of                                                               
the  police   with  respect  to   obtaining  or   verifying  "the                                                               
identification of  the person," or  "to obtain an account  of the                                                               
crime," as listed on line  20. Those are the problematic features                                                               
and what  the bill  is really  designed to  do, because  there is                                                               
already case  law for  the authority  to stop  a crime  victim to                                                               
protect   him  from   imminent   harm,  or   for  other   exigent                                                               
circumstances.                                                                                                                  
                                                                                                                                
He said  that the focus should  remain on figuring out  where and                                                               
under  what  circumstances we  should  expand  the power  of  the                                                               
police to verify  the identity of a person and  obtain an account                                                               
of the  crime and,  moreover, charge  a person  with a  crime for                                                               
failure to  cooperate. He  stressed that it  is a  coercive power                                                               
the  committee is  granting through  this bill  and, while  he is                                                               
willing to grant  it for murder, attempted  murder, or misconduct                                                               
1, he is reluctant to grant it for lesser crimes.                                                                               
                                                                                                                                
9:43:37 AM at ease                                                                                                            
                                                                                                                                
9:55:41 AM call to order                                                                                                      
                                                                                                                                
SENATOR  FRENCH said  that he  remains concerned  that this  bill                                                               
expands police  powers toward individuals  who are  not suspected                                                               
of any wrongdoing and wants to be cautious.                                                                                     
                                                                                                                                
9:56:22 AM                                                                                                                    
SENATOR  FRENCH made  a motion  to  amend, but  withdrew it  when                                                               
Senator Guess  reminded him  that there was  already a  motion on                                                               
the floor.                                                                                                                      
                                                                                                                                
SENATOR FRENCH  made a new motion  to amend the bill  as follows:                                                               
On page 2,  lines 14 and 15, change "the  person witnessed or was                                                               
at or  near the scene  of the commission of  a crime" to  add the                                                               
word "felony" before crime and  strike out "felony property crime                                                               
under AS 11.46",  leaving line 16 alone. The  language would then                                                               
read:                                                                                                                           
                                                                                                                                
   the person witnessed  or was  at or  near the  scene of  the                                                                 
   commission of  a  felony crime  against  a person  under  AS                                                                 
   11.41, or misconduct  involving weapons  under AS  11.61.190                                                                 
   or 11.61.195(a)(3);                                                                                                          
                                                                                                                                
CHAIR HUGGINS  asked Mr.  Guaneli what  would be  precluded under                                                               
the law if the committee inserts the word "felony" in line 15.                                                                  
                                                                                                                                
MR. GUANELI  said that,  with respect to  felony crimes  under AS                                                               
11.41,  crimes  against  persons, that  would  primarily  exclude                                                               
misdemeanor  assaults including  the  vast  majority of  domestic                                                               
violence  cases.  Specifically,  it  legislatively  overrules  an                                                               
Alaska  Court  of Appeals  opinion  that  says, when  the  police                                                               
believe that  there has been  a victim of a  misdemeanor domestic                                                               
assault, they  can stop  the victim.  Another consequence  of the                                                               
amendment is that  serious property crimes that  place persons at                                                               
risk, such  as arson, or  shooting at the Alaska  Pipeline, would                                                               
not be  covered under this  bill. Admittedly, this  leaves felony                                                               
crimes  against  persons  and the  drive-by  shooting  incidents,                                                               
which  is  what   Chief  Monegan  is  primarily   focused  on  in                                                               
Anchorage, but keeping in mind  that the Alaska Supreme Court has                                                               
ruled  in line  with this  bill, there  is a  question of  policy                                                               
direction reflected in the amendment.                                                                                           
                                                                                                                                
10:01:15 AM                                                                                                                   
WALTER  C. MONEGAN  III, Anchorage  Police  Chief, testified  via                                                               
teleconference. He  spoke of a  recent incident when a  person in                                                               
Fairbanks ran  a front-end loader  through the front of  the jail                                                               
in an  attempt to break  a prisoner out. In  a case like  that he                                                               
would agree with Mr. Guaneli.                                                                                                   
                                                                                                                                
SENATOR FRENCH  asked Chief Monegan  if he thinks that  running a                                                               
front-end loader  through the front  of the Anchorage  jail would                                                               
give  the police  a reasonable  suspicion that  there had  been a                                                               
felony  fear   assault  crime  committed   against  one   of  the                                                               
corrections officers or a prisoner.                                                                                             
                                                                                                                                
CHIEF  MONEGAN responded  he would  hope so.  He said  the police                                                               
have a tendency  to look at the worst-case scenario.  If there is                                                               
a shooting,  they assume a  felony and respond  accordingly until                                                               
they rule  it out, so  he recognized Senator French's  point that                                                               
police would have the authority  to obtain identification in that                                                               
situation even without  this bill. But because as  all they might                                                               
really have  is destruction  of public  property, which  does not                                                               
fall under  the statute,  he would worry  that the  evidence they                                                               
gathered by stopping witnesses might be suppressed.                                                                             
                                                                                                                                
CHAIR HUGGINS  asked Chief  Monegan if he  could speak  to felony                                                               
property crimes being excluded.                                                                                                 
                                                                                                                                
CHIEF MONEGAN responded  that the situation he  just related does                                                               
speak  to that,  but  burglary is  another  example. Burglary  is                                                               
unlawful entry  with the intent to  commit a crime. If  a suspect                                                               
gets inside with  criminal intent, but does not carry  it out and                                                               
has not displayed  a weapon, while the intent  was felonious, the                                                               
act is a misdemeanor.                                                                                                           
                                                                                                                                
10:05:21 AM                                                                                                                   
SENATOR  BUNDE asked  Chief Monegan  if it  is possible  that the                                                               
damage done  to property due to  a meth lab would  fall under the                                                               
category of  a felony property  crime, giving police  another way                                                               
to bust that drug enterprise.                                                                                                   
                                                                                                                                
CHIEF MONEGAN said that it could  be a handy tool, as there might                                                               
be reckless endangerment  issues associated with the  fumes, or a                                                               
possibility of  explosion that would endanger  other residents in                                                               
the area.                                                                                                                       
                                                                                                                                
SENATOR FRENCH asked Chief Monegan  how often, in the examples he                                                               
gave, do police run into uncooperative witnesses.                                                                               
                                                                                                                                
CHIEF MONEGAN  said that  is hard  to answer.  Sometimes everyone                                                               
wants to help, but it  only takes one uncooperative individual to                                                               
make  the job  difficult, and  there are  always some  people who                                                               
don't want to get involved.                                                                                                     
                                                                                                                                
SENATOR  BUNDE asked  Chief Monegan  if he  could comment  on the                                                               
issue that  Chair Huggins  brought up  about senior  citizens who                                                               
are afraid of retribution.                                                                                                      
                                                                                                                                
CHIEF MONEGAN said yes, he could see that happening.                                                                            
                                                                                                                                
10:08:18 AM                                                                                                                   
CHAIR HUGGINS called for questions.                                                                                             
                                                                                                                                
CHIEF MONEGAN  said he has a  working draft before him  and would                                                               
be happy to answer questions.                                                                                                   
                                                                                                                                
10:08:38 AM at ease                                                                                                           
                                                                                                                                
10:09:05 AM call to order                                                                                                     
                                                                                                                                
SENATOR  FRENCH  said  that  he  appreciated  the  comments  from                                                               
Senator Bunde,  Mr. Guaneli and  Chief Monegan. He  summarized by                                                               
saying that this  bill was brought to the committee  to deal with                                                               
the problem of uncooperative  witnesses in gang-related shootings                                                               
in Anchorage;  but it  is being  expanded quite  a bit  to gather                                                               
information  in  criminal  cases   and  the  committee  needs  to                                                               
remember that  at the  bottom of  this bill is  the power  of the                                                               
police  to charge  a  witness, someone  who  has done  absolutely                                                               
nothing wrong,  with a crime  for not cooperating. That  seems to                                                               
be a broad and troublesome  expansion of police power that should                                                               
be undertaken only in the most serious of circumstances.                                                                        
                                                                                                                                
CHAIR HUGGINS objected.                                                                                                         
                                                                                                                                
CHIEF  MONEGAN said  that his  working draft  shows no  amendment                                                               
altering law enforcement's ability  to take photographs and asked                                                               
if that is correct.                                                                                                             
                                                                                                                                
CHAIR HUGGINS replied no, not at this time.                                                                                     
                                                                                                                                
CHIEF  MONEGAN said  that's  good, because  the  first thing  the                                                               
police do when they arrive at a  scene is to take pictures of the                                                               
crowd to capture  evidence and to see if the  same people show up                                                               
at multiple scenes.                                                                                                             
                                                                                                                                
SENATOR THERRIAULT said that in  fair answer to the question "are                                                               
photographs allowed"  at property  crimes, police can  still take                                                               
crime scene  photos, but they  cannot detain individuals  to take                                                               
photographs, because  if the  person does  not fit  under Section                                                               
(a), Section (b) can't be triggered.                                                                                            
                                                                                                                                
10:12:45 AM                                                                                                                   
CHAIR HUGGINS asked the clerk to call the roll.                                                                                 
                                                                                                                                
The  clerk  called the  roll  for  the  motion to  adopt  Senator                                                               
French's amendment of lines 14 and 15.                                                                                          
                                                                                                                                
   The motion failed with 1 yea and 3 nays. Senator French voted                                                                
   yea and Senator Therriault, Senator Guess, and Chair Huggins                                                                 
   voted nay.                                                                                                                   
                                                                                                                                
SENATOR GUESS moved CSSB 3005(JUD) from committee with                                                                          
individual recommendations and attached fiscal note(s). There                                                                   
being no objection, the motion carried.                                                                                         
                                                                                                                                
There being nothing further to come before the committee, Chair                                                                 
Huggins adjourned the meeting at 10:14:05 AM.                                                                                 
                                                                                                                                

Document Name Date/Time Subjects