Legislature(2005 - 2006)CAPITOL 120
04/26/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB316 | |
| SB206 | |
| HB322 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 206 | TELECONFERENCED | |
| *+ | HB 316 | TELECONFERENCED | |
| = | HB 502 | ||
| + | HB 322 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 206 - DETENTION /I.D. OF PERSONS;CONTEMPT OF CT 1:58:24 PM CHAIR McGUIRE announced that the next order of business would be CS FOR SENATE BILL NO. 206(FIN), "An Act relating to contempt of court and to temporary detention and identification of persons." 1:59:44 PM SENATOR CON BUNDE, Alaska State Legislature, sponsor, relayed that the genesis of SB 206 was a recent gang-related shooting in Dimond Center at which the police were unsuccessful in detaining some of the participants because Alaska as yet doesn't have a "material witness" statute. Specifically, SB 206 is an attempt to provide the police with the tools to protect citizens without interfering with their rights; SB 206 balances the need to protect individual freedoms with the ability to prosecute crimes, and will provide defendants with witnesses on their behalf. He remarked that whether it is for the defense or for the prosecution, material witnesses are crucial to trials; unfortunately, material witnesses often refuse to cooperate with law enforcement officials, significantly impeding their ability to bring indictments or prosecute crimes. SENATOR BUNDE relayed that Senate Bill 206 protects material witnesses from unreasonable arrest or confinement while ensuring the availability of crucial testimony, and does this via the addition of a provision to AS 12.50 that would allow the police to temporarily detain a person under circumstances that give the officer reasonable suspicion of three things: one, the person witnessed a crime or was in the vicinity of a crime such as homicide or manslaughter; two, the person may have information of material aid to the investigation of that crime; and three, the temporary detention is of reasonable necessity to obtain or verify the identification of the person, to obtain an account of the crime, to protect a crime victim from imminent harm, or for other exigent circumstances. SENATOR BUNDE relayed that Walt Monegan, Anchorage Chief of Police, had suggested that for those who's lifestyle takes them to the border between legal and illegal activities, SB 206 could provide an excuse for cooperating with the police without being put in danger. Also, in a volatile situation, SB 206 could provide a police officer with the means to keep such a situation from escalating into the "immediate retribution" cycle sometimes associated with gang activities. Under SB 206, a police officer who has detained a person under the aforementioned circumstances could photograph the person, serve him/her with a subpoena, and take his/her fingerprints if the crime being investigated is murder, attempted murder, or misconduct involving weapons in the first degree. SENATOR BUNDE explained that under SB 206, a person receiving the aforementioned subpoena would be allowed to request of the district attorney that the subpoena be withdrawn if the person can provide valid, government-issued, photographic identification (ID) prior to any grand jury proceedings. The bill also makes it a class B misdemeanor to refuse or resist the taking of a photograph or fingerprints, contains provisions outlining how such photographs or fingerprints may be [used] and when they shall be destroyed, and increases the penalty to contempt of court for failing to honor a subpoena, refusing to answer as a witness in connection with a felony crime, or refusing to appear before a grand jury. SENATOR BUNDE, in conclusion, offered his belief that SB 206 has achieved a balance that will provide law enforcement with a bit more leeway to investigate some of the violent crimes that are becoming far too prevalent, while also protecting the rights of citizens. 2:06:19 PM REPRESENTATIVE GARA said he understands the concerns raised by the aforementioned shooting - "you see witnesses there, they run away, you never find them again" - but there are parts of the bill that he thinks are unnecessary for the purpose of obtaining the addresses of such witnesses. For example, he said he doesn't like the provision allowing the police to detain someone just because they had reasonable [suspicion] that the person was in the vicinity, because that language seems to be too broad. SENATOR BUNDE acknowledged that eyewitnesses are sometimes the most unreliable of witnesses because of the fact that people are very selective in what they perceive. Therefore, a police officer must use his/her judgment with regard to the likelihood that a person might have heard or seen something but not recall it or its significance until questioned. REPRESENTATIVE GARA observed that when used together, the terms "reasonable suspicion", "in the vicinity", and "may have information" mean everybody that's in the vicinity, particularly given that the term "may have" is not setting a very high standard. Furthermore, the bill appears to allow the detention of citizens without making any distinction between those that are innocent and those that are guilty. He suggested that the goal of the bill to address gang-related violence would still be achieved if the bill were to instead use the standard of probable cause. SENATOR BUNDE said that if a witness provides law enforcement with a "photo ID," detention won't be necessary. However, if a witness won't provide a photo ID, a police officer can retain the witness long enough to either fingerprint or photograph him/her. REPRESENTATIVE GARA suggested substituting the words, "reasonable suspicion", with the words, "probable cause", [on page 2, line 5]. He then asked whether the subpoena referenced in SB 206 would be used to force a witness to come in [to the police station] and get photographed or fingerprinted. SENATOR BUNDE said no. 2:12:04 PM REPRESENTATIVE GRUENBERG indicated that he would prefer that the language being added via proposed AS 09.50.020(a) not be limited to just felony crimes; that the term "temporarily detain" - on page 2 [line 4] - be defined, as should the term, "temporary detention" on page 2, line 14; and that the term, "in the vicinity" on page 2, line 9, should instead say, "in the immediate vicinity". SENATOR BUNDE offered his belief that [a definition of the term] "temporary" is part of case law. REPRESENTATIVE GRUENBERG suggested that a definition of that term should be inserted into statute. He then characterized the term, "or for other exigent circumstances" on page 2, line 16, as "a real barn door." CHAIR McGUIRE concurred. REPRESENTATIVE GRUENBERG also suggested that proposed AS 12.50.201(b)(3)(A) lists too few crimes for which a person could be required to provide fingerprints, and so perhaps that provision should be broadened, though the question of which other crimes it should include must also be considered. He then referred to language on page 3, lines 4-5, and suggested that the phrase, "or may move the court to quash the subpoena" be added after the phrase, "may request the district attorney to withdraw the subpoena". 2:18:17 PM WALT MONEGAN, Chief, Anchorage Police Department (APD), Municipality of Anchorage (MOA), with regard to the phrase, "in the vicinity", explained that if someone is determined to flee the scene of a crime, he/she can easily get a pretty good distance away from the "immediate" vicinity in just three to four minutes, and so the APD would like to be able to stop someone who was seen in the area or is seen to be running away from the area or is seen driving away from the area. He acknowledged, however, that if a crime occurs on the "East side of town," the police shouldn't be looking to detain someone on the "West side of town," because that wouldn't be reasonable. MR. MONEGAN, with regard to the suggestion that "reasonable suspicion" be replaced with "probable cause", pointed out that probable cause is the level of proof needed to make an arrest, whereas reasonable suspicion is the level of proof required for a stop. He then referred to page 3, line 11, which says that the photographs or fingerprints "must be destroyed upon the earlier of the following occurrences:", and said that he would like that language changed to instead say, "unless the investigation indicates the person is a suspect in the case, the [photographs] and fingerprints must be destroyed upon the earlier of the following occurrences:". Such a change would ensure that law enforcement isn't destroying evidence pertaining to a guilty witness. MR. MONEGAN, referring to language in proposed AS 12.50.201(b), remarked on the fact that the police can't, and shouldn't be able to, compel someone to give a statement, and that the biggest hurdle that the APD faces is that the information that's "locked up in some of the individuals" that the APD has made contact with may be the only information with which to get a case before the grand jury. He said that the APD appreciates the legislature's efforts on this issue, adding that without the bill, communities as a whole are paying too high a price. REPRESENTATIVE GARA asked Mr. Monegan how long he anticipates the proposed detention period being. MR. MONEGAN said just a few minutes because most police officers carry a digital camera and kits that allow for the taking of fingerprints at the scene. REPRESENTATIVE GARA said he does not want "temporarily detained" to mean taking someone to the police station, and asked whether Mr. Monegan would be amenable to a change stipulating that the temporary detention would be limited to the location where the person was found. MR. MONEGAN [seemed to suggest adding] the words, "in the immediate vicinity". He explained that what happens as a matter of course, even for cooperative witnesses, is that they are separated [from each other] by a little bit of distance, but such could still be done at the immediate scene. SENATOR BUNDE noted that the language on page 2, line 20, already stipulates that the photographs may be taken as long as it can be done without unreasonably delaying or removing the person from the vicinity, thus implying that taking the person's photograph would indeed take place at the police car. 2:25:46 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), pointed out that the language on page 2, line 30, stipulates the same thing for the taking of fingerprints. In response to a question, she offered her understanding that most states have statutory provisions that allow for the detention of material witnesses, and that SB 206 is a very mild version of such provisions. MR. MONEGAN, in response to questions, explained that should the need arise, a police officer could simply call for another unit to come and bring any necessary photography or fingerprinting equipment to the site, though he acknowledged that such might not be possible in some of the more rural areas of the state. And although it would be hoped that in such areas, law enforcement officers would have all the equipment necessary to photograph or fingerprint a witness [that did not provide a photo ID], it might be good idea, he indicated, to stipulate in the bill that if a person has to be taken back to the [police station] to get photographed or fingerprinted, that the necessity for doing so must be articulated by the officer. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on SB 206. SENATOR BUNDE opined instead that law enforcement officers will simply have to have the necessary equipment with them if they are not to unreasonably delay a person. 2:29:36 PM REPRESENTATIVE GARA suggested substituting the words, "reasonable suspicion", with the words, "probable cause", [on page 2, line 5]; taking out proposed AS 12.50.201(a)(1)(B); and replacing "may have" on page 2, line 12, with "has". He said he doesn't like the language allowing a person to be detained simply for being in the vicinity, because that language is too broad and eliminates the need for probable cause that the person really is a witness. MR. MONEGAN referred to the 1982 case involving Charles Meach and his shooting to death four teenagers in Russian Jack Springs Park, and said that that case was solved because a witness mentioned seeing a brown van speeding away from the area. When that van was intercepted, it was determined that the driver had nothing to do with the shooting but the police took his personal information; later when the police were stymied with the case, they went back and spoke with the driver who then recounted that while walking through the park that night he'd spotted a bicycle laying in the brush, and he admitted that he been thinking about taking it but had instead fled the scene when he heard shots fired. With the information the driver provided about the bicycle, the police were subsequently able to trace it back to Charles Meach who confessed to killing the four teenagers. So even though the driver of the van was never at the place where the teenagers were being killed, and was stopped blocks away from where the shooting actually occurred, he was able to provide the police with the needed piece of information that allowed them to solve the case. MR. MONEGAN pointed out that because nothing like SB 206 was in place at that time, if the driver of the van had instead been stopped while walking, he could have refused to provide the police with his ID and then the police wouldn't have been able to contact him again. He again pointed out that the standard of reasonable suspicion is used to stop a person, whereas the standard of probable cause is used to arrest someone - the latter being much more severe than just stopping someone to ask whether he/she had heard or seen anything. REPRESENTATIVE GARA said he would still prefer the standard to be probable cause, and reiterated that he would also prefer to have page 2, line 12, say, "has information" instead of "may have information". MR. MONEGAN warned that if the person being stopped happened to be a "guilty witness," then the information obtained from him/her could be quashed because law enforcement wasn't able to meet the standard of probable cause in stopping the person to begin with. REPRESENTATIVE GARA again reiterated his preferences, adding that he is uncomfortable allowing the police to stop someone on a hunch. 2:36:44 PM REPRESENTATIVE GRUENBERG opined that law enforcement should be able to stop a person and ask for information with far less cause than that which is needed to arrest a person, and all that is being asked for via the use of the bill's current language is the ability to detain someone for questioning, otherwise evidence will be lost, the people will leave the scene, and memories will fade. He mentioned that he has participated in ride-alongs with the police and therefore knows that people, at least those from his part of town, can fade into the woodwork fast. REPRESENTATIVE GARA said the lower standard is a problem because it shouldn't be easy to stop and detain an innocent person. REPRESENTATIVE GRUENBERG disagreed, pointing out that such a person is not being accused of a crime or arrested - he/she is just being questioned as a witness - and therefore requiring law enforcement to meet the higher standard of probable cause is not justified. REPRESENTATIVE GARA offered his belief that if a person was at the scene of a crime, then law enforcement would have probable cause and therefore could detain that person for questioning. MR. MONEGAN remarked: Probable cause being the high standard that it is, if I came up and said, "Les, I think you saw something here," and you wanted to be obstinate about it, you would say, "Prove it." And I can't, because I wasn't there when the event happened; I arrived three or four minutes later as ... an emergency responder, and [so] when I get there ... you could say, "I just heard the shots - I came over like ... everybody else to see what was going on - I don't know anything." The fact that they're standing there doesn't necessarily mean ... anything, ... [and so] the reasonable standard helps us not have that argument. It just [allows an officer to say], "Look all I need is some information - your name, your phone number, and did you see anything," and they can say, "I'll give you my name and my number, but I didn't see anything," and that's fine. ... [The person can't just] turn around and say: "No; ... I know the law, it says probable cause, which means you have to prove that I was here." ... 2:41:08 PM MS. CARPENETI said that she would be very concerned about adopting a probable cause standard. The courts have upheld law enforcement's ability to, with reasonable suspicion, temporarily detain a person to ask for his/her identification so that law enforcement can follow up on issues later. "I think making [it] a probable cause standard would ... confuse people and make it more difficult for the police to investigate a crime," she added. REPRESENTATIVE GARA said: That's just not how probable cause works, though. You don't have to be right that the person was a witness. Probable cause means that you had probable cause to believe that the person's a witness, even if you were wrong. So if the witness says to you, "I wasn't here - prove it," that has nothing to do [with] whether you had probable cause to stop the person. The question is, did you as an officer have a strong belief that the person was there, even though you might be wrong later. So it's not a defense when the person says to you, "I wasn't here", to a probable cause standard. And I think there should be a higher standard when you're dealing with innocent people than when you're dealing with people who've done something wrong. SENATOR BUNDE indicated that if it were possible to know who is guilty and who is innocent at the outset, such a standard might be useful. He pointed out that the standard of reasonable suspicion is currently used, for example, when an officer sees a car changing lanes ineptly; the officer can stop the car to see whether the driver is drunk. He said he can envision a situation in which important witness testimony gets thrown out of court because in obtaining that testimony the standard of probable cause wasn't met. CHAIR McGUIRE relayed that SB 206 would be set aside to allow members time to consider possible amendments. SENATOR BUNDE said he would like to see Mr. Monegan's suggested change considered as well. [CSSB 206(FIN) was set aside.]
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