Murdock v. State , 1983 Alas. App. LEXIS 321 ( 1983 )

BRYNER, Chief Judge,

concurring in part and dissenting in part.

I dissent from that portion of the majority’s opinion which upholds the warrantless seizure of guns by police officers from the bedroom of Kmet’s apartment.

I accept the conclusion of the trial court that the initial police entry of the bedroom in Kmet’s apartment was authorized under the protective search exception to the warrant requirement. The need to enter the bedroom to assure the safety of the officers could not, however, justify reentry of the bedroom to search for weapons. Alaska cases dealing with the protective search exception to the warrant requirement consistently hold that a valid protective search (a) must be based on a reasonable belief by officers that they are in danger and (b) must be narrowly restricted to the purpose of assuring their safety. Mattern v. State, 500 P.2d 228, 231 n. 7 (Alaska 1972); State v. Spietz, 531 P.2d 521, 525 (Alaska 1975); Taylor v. State, 642 P.2d 1378, 1381-82 (Alaska App.1982).

Once all persons were removed from the bedroom and it was ascertained that there was nobody else present in the apartment except for those individuals detained in the living room, there was no longer any reason to believe that a gun located in the bedroom posed any danger to investigating officers. Reentry and search of the bedroom for weapons cannot be deemed to have been narrowly restricted to the purpose of protecting the safety of investigating officers, especially in light of the fact that the officers initially entered Kmet’s apartment in response to an anonymous and unverified report of a stolen firearm. The seizure of the v/eapons was simply not necessary for the officer’s protection. Ellison v. State, 383 P.2d 716, 719 (Alaska 1963).

Nor does the plain view exception to the warrant requirement justify reentry of the bedroom and seizure of the weapons. During the initial entry, Officer Coffey observed only a portion of one gun barrel protruding from under the bed. Neither the anonymous tip received by the police nor any of the circumstances observed by Officer Coffey at Kmet’s apartment sufficed to establish probable cause that the gun barrel in the bedroom was from a stolen weapon. Furthermore, there is nothing whatsoever to support a finding that plain view could have justified a full search of the closet in the bedroom or, for that matter, of the entire area under the bed.

The incriminating nature of the guns seized from the bedroom was not immediately apparent when they were first observed, and, with the sole exception of the gun whose barrel was protruding from under the bed, it does not appear that any of the guns were discovered inadvertently. Under these circumstances, the plain view doctrine is inapplicable. Deal v. State, 626 P.2d 1073, 1078-79 (Alaska 1980); Klenke v. State, 581 P.2d 1119, 1121 (Alaska 1978); Anderson v. State, 555 P.2d 251, 258-62 (Alaska 1976).

The majority opinion, as I read it, attempts to combine protective search and plain view in order to justify seizure of the guns. I believe that in so doing the opinion loses sight of the inapplicability of either theory when considered individually. No effort is made by the majority to explain how reentry of the bedroom to seize the initially observed weapon was a necessary measure to assure the safety of investigating officers. Similarly, there is no explanation to justify the court’s conclusion that discovery of a number of guns established probable cause to believe that the guns were stolen.

I am particularly concerned with the application of the protective search exception to these circumstances. Unless the protective search doctrine continues to be applied only to those situations where a warrantless search is actually necessary to assure the personal safety of officers or others, the doctrine could become an exception that swallows the rule prohibiting warrantless searches. The warrant requirement applies with particular force to searches of homes. Especially in instances where police officers, acting on no more than an unconfirmed tip, solicit an invitation to enter the living room of a home, I believe that use of the protective search doctrine to justify repeated entry of private areas in the home, which are known to be unoccupied, for the purpose of seizing weapons constitutes a substantial and impermissible encroachment on the warrant requirement.

Since I believe that the record currently before the court is not sufficiently clear to allow accurate determination of relevant evidence ultimately obtained as a result of seizure of the guns from the bedroom, and since I further believe that a finding of harmless error cannot meaningfully be made without such a determination, I would remand this case for hearings concerning the extent of the evidence derived from the improper seizure of the guns.

I concur in the balance of the court’s opinion.