Legislature(2005 - 2006)BUTROVICH 205
08/02/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB3005 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB3005 | TELECONFERENCED | |
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.
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