BERT NELSON v. STATE OF ALASKA (2010)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Bert Nelson was indicted on four counts of misconduct involving a controlled substance in the fourth degree ¹ after police discovered marijuana growing in his garage and a cabin on his property.   Nelson moved to suppress the evidence against him.   Superior Court Judge Harold M. Brown denied Nelson's motion to suppress.   Nelson entered a no contest plea and reserved his right to appeal Judge Brown's denial of his suppression motion.

In Nelson v. State,² we resolved some of the issues that Nelson raised, but remanded the case for the superior court to resolve questions concerning whether the police acted unlawfully in obtaining some of the information which they used to support the search warrant which authorized them to search Nelson's property.   The facts surrounding the search are set forth in our prior decision.

Superior Court Judge Carl Bauman conducted the proceedings following the remand.   Following an evidentiary hearing and after reviewing the transcripts and exhibits from Judge Brown's earlier evidentiary hearing, Judge Bauman issued a decision in which he set out his findings.

In his findings, the first question which Judge Bauman addressed was whether, when Trooper Erickson entered onto Nelson's property to conduct his investigation, he “exceeded the range of movement that a homeowner might reasonably expect from any social or business visitor using normal means of access to make contact with the occupants of the residents.” ³  After making extensive factual findings, Judge Bauman ultimately concluded that the State had not met its burden to show that Trooper Erickson was in a permissible location when he observed electric ballasts and a vent hole in a cabin window, “heard the electric humming indicative of electric ballasts and fans in the Garage,” and when he saw the “electric meter boxes on the Garage and Cabin․”  Judge Bauman then excluded all of the evidence of Trooper Erickson's illegally obtained observations.   But he concluded that even when this evidence was excluded, the remaining evidence was sufficient to support the search warrant.

Judge Bauman's findings are supported by the record.   But there is one aspect of his findings about which we are uncertain.   In remanding the case, we directed the superior court to “exclude from the warrant any information which it determines was illegally obtained and any information which was derived from this illegally obtained evidence.” ⁴  In his findings, Judge Bauman stated that in examining whether there was sufficient evidence to support the warrant, he had removed from the warrant any illegally obtained information.   But his statement is ambiguous.   We are unable to tell whether Judge Bauman excluded only Trooper Erickson's observations or whether he was excluding not only Trooper Erickson's observations but also any evidence which derived from those illegal observations.   In other words, it was necessary for Judge Bauman to determine whether any of the other evidence acquired by Trooper Erickson was derived from the illegal search of Nelson's property and “whether the derivative evidence [was] ‘tainted’ by the prior Fourth Amendment violation.” ⁵

As we are unable to determine whether Judge Bauman applied the proper standard in excluding evidence which was derived from the illegally obtained evidence, we REMAND this case to the superior court for further findings.   The superior court shall forward the findings to this court within ninety days.   We retain jurisdiction of this appeal pending completion of the proceeding on remand.

FOOTNOTES

FN1. AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), & (a)(5)..  FN1. AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), & (a)(5).

FN2. Memorandum Opinion and Judgment No. 5498 (Alaska App., July 15, 2009), 2009 WL 2092450..  FN2. Memorandum Opinion and Judgment No. 5498 (Alaska App., July 15, 2009), 2009 WL 2092450.

FN3. Nelson, at 9, 2009 WL 2092450 at *4;  Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979)..  FN3. Nelson, at 9, 2009 WL 2092450 at *4;  Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979).

FN4. Nelson, 2009 WL 2092450 at *16;  Wong Sun v. U.S., 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963);  6 Wayne R. La Fave, Search and Seizure § 11.4, at 256 (4th ed.2004)..  FN4. Nelson, 2009 WL 2092450 at *16;  Wong Sun v. U.S., 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963);  6 Wayne R. La Fave, Search and Seizure § 11.4, at 256 (4th ed.2004).

FN5. Id..  FN5. Id.

COATS, Chief Judge.