                                             NOTICE

       The text of this opinion can be corrected before the opinion is published in the
       Pacific Reporter. Readers are encouraged to bring typographical or other formal
       errors to the attention of the Clerk of the Appellate Courts:
                             303 K Street, Anchorage, Alaska 99501
                                       Fax: (907) 264-0878
                                E-mail: corrections @ akcourts.us

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


GLENN OLSON,
                                                       Court of Appeals No. A-12141
                            Appellant,                 Trial Court No. 3DI-14-097 CI

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                 No. 2521 — September 23, 2016


              Appeal from the Superior Court, Third Judicial District,
              Dillingham, Patricia L. Douglass, Judge.

              Appearances: Glenn Olson, in propria persona, Wasilla, for the
              Appellant. Michael Sean McLaughlin, Assistant Attorney
              General, Office of Criminal Appeals, Anchorage, and Craig W.
              Richards, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.


              This appeal requires us to decide whether a criminal judgement is “void”
(as that term is used in habeas corpus jurisprudence) if, at the defendant’s trial, the



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
government relied on evidence obtained in violation of the Fourth Amendment. For the
reasons explained here, we conclude that such judgements are not void.


       Underlying facts of the case, and Olson’s direct appeal


              In 2010, Glenn Olson was convicted of second-degree sexual assault and
fourth-degree assault (upon different victims). Olson appealed these convictions to this
Court, and we affirmed his convictions in Olsen v. State, unpublished, 2013 WL 596524
(Alaska App. 2013).
              (Our prior decision uses the spelling “Olsen” because Olson himself used
that spelling of his name when he litigated the earlier appeal. Olson represented himself
in that appeal and, in all of his pleadings, he styled himself “Glenn:Olsen”. See Court
of Appeals File No. A-10782. Olson again represents himself in the current appeal, but
he now spells his name “Glenn Olson”.)
              As we described in our 2013 decision in Olsen, Olson was present at a
Dillingham residence along with two other men and a woman. Olson told the two men
to leave the house, and then he grabbed the woman by the hair and pulled her toward the
bedroom. When the two men tried to intercede on the woman’s behalf, Olson fought
them off. The two men then went to a neighbor’s house and summoned the police.
              When the police officers arrived, they found the two men outside, and they
heard yelling from inside the residence. The men told the officers that Olson had
threatened them with a knife. Based on this information, the officers entered the house.
In a bedroom, the officers found the woman face-down on a mattress, with her pants and
underwear pulled down, and with Olson on top of her. The woman was so drunk that,
even when the officers intervened to stop the assault, she could not coherently converse
with the officers.

                                          –2–                                       2521

              Based on these events, the State charged Olson with sexual assault in the
second degree (for sexually assaulting the woman while she was incapacitated), and with
assault in the fourth degree (for assaulting one of the men).
              Prior to trial, Olson filed a motion to suppress all of the evidence that the
police observed or discovered inside the house. Olson claimed that the police illegally
entered the residence because (1) they entered without permission and (2) there were no
exigent circumstances to justify the entry. Following an evidentiary hearing, the superior
court concluded that the officers’ entry was justified by exigent circumstances, in that
the officers had reasonable grounds to believe that an assault was occurring inside the
house.
              (See State v. Gibson, 267 P.3d 645, 659 (Alaska 2012), where our supreme
court explained the “emergency aid” doctrine — the doctrine that authorizes police
officers to enter a residence without a warrant when they “have reasonable grounds to
believe there is an emergency at hand and an immediate need for their assistance in the
protection of life or property”.)
              Following Olson’s conviction on the sexual assault and assault charges, he
filed an appeal in which he argued (among other things) that the superior court should
have granted his suppression motion. More specifically, Olson argued that the officers
who entered the residence had no grounds for believing that there was an ongoing
emergency, and that they had no other justification for entering the residence without a
warrant.
              In our decision in Olsen, we concluded that, under the facts found by the
superior court, the officers’ warrantless entry into the residence was justified under the




                                           –3–                                        2521

emergency aid doctrine. See Olsen at *3; see also this Court’s later order denying
Olson’s petition for rehearing. 1


       Olson’s petition for post-conviction relief, and his current petition for writ
       of habeas corpus


              In 2014 (i.e., after this Court affirmed Olson’s convictions on direct
appeal), Olson filed a petition for post-conviction relief — superior court file number
3DI-14-040 CI — in which he attacked his convictions on the ground that much of the
evidence against him was the fruit of an allegedly unlawful arrest. The superior court
dismissed this petition because it was barred by the provisions of AS 12.72.020(a).
              Olson then filed a petition for writ of habeas corpus (the present case),
again attacking his convictions on the ground that much of the evidence against him was
the fruit of an allegedly unlawful arrest. The superior court ruled that this habeas corpus
action was barred by law, and Olson now appeals the superior court’s dismissal of his
habeas corpus petition.
              In his brief to this Court, Olson acknowledges that he was barred from
raising his illegal arrest claim in a petition for post-conviction relief.              Under
AS 12.72.020(a), post-conviction relief litigation can not be based on a challenge to the




   1
        “[This Court] upheld the officers’ entry [into the residence] because we concluded
that, under the facts found by the superior court, the entry was justified under the emergency
aid exception to the warrant requirement.” Order [on] Petition for Rehearing dated April 1,
2013 (concurrence of Judge Mannheimer).


                                            –4–                                          2521

evidence that was admitted at the defendant’s trial, 2 nor can it be based on a claim that
was raised on direct appeal. 3
              But Olson argues that, precisely because he is barred from pursuing his
illegal arrest claim in post-conviction relief litigation, he is authorized to pursue this
claim in a petition for writ of habeas corpus.
              Olson acknowledges that, under Alaska Civil Rule 86(m), petitions for
post-conviction relief have largely superseded writs of habeas corpus as the method for
collaterally attacking a criminal conviction. 4 He also acknowledges that in Hertz v.
State, 8 P.3d 1144 (Alaska App. 2000), this Court held that a criminal defendant is
generally not entitled to pursue habeas corpus litigation in instances where a petition for
post-conviction relief would be barred.
              But Olson relies on a passage from Hertz where this Court stated that if a
defendant claims that the judgement against them is void, then the defendant might be
entitled to pursue a petition for writ of habeas corpus even though an action for post-
conviction relief would be barred:

                     It is of the historical essence of habeas corpus that it
              lies to test proceedings so fundamentally lawless that
              imprisonment pursuant to them is not merely erroneous but
              void. Hence, the familiar principle that res judicata is
              inapplicable in habeas corpus proceedings ... is really but an
              instance of the larger principle that void judgments may be



   2
       AS 12.72.020(a)(1).
   3
       AS 12.72.020(a)(2).
   4
       See Grinols v. State, 10 P.3d 600, 609-610 (Alaska App. 2000), where this Court
upheld the constitutionality of Civil Rule 86(m) against the contention that it constituted an
unlawful limitation or suspension of the writ of habeas corpus.

                                            –5–                                          2521

               collaterally impeached. [Quoting McCracken v. Corey, 612
               P.2d 990, 992 (Alaska 1980).]

                      We agree with that general premise — that a person
               held under a void judgment can seek redress in habeas
               corpus. ... Arguably, if a post-conviction relief applicant
               raised a claim that the underlying criminal judgment was
               void, a procedural bar under AS 12.72.020(a) might be
               unconstitutional.

Hertz, 8 P.3d at 1148.
               Olson contends that he falls under this exception. He argues that he was
unlawfully arrested, that much of the evidence against him should have been suppressed
as the fruit of this unlawful arrest, and that therefore the resulting judgement entered
against him is void. And because the judgement is purportedly void, Olson claims that
he is entitled to attack that judgement via a petition for writ of habeas corpus, even
though he would be barred from petitioning for post-conviction relief based on this same
claim of illegal arrest.


       Why we reject Olson’s claim that his judgement is “void”


               Olson’s argument ultimately rests on the premise that a criminal conviction
is “void” if the prosecution’s case was based on evidence obtained in violation of the
Fourth Amendment. This premise is mistaken. Although there is no Alaska appellate
case on point, the courts of other states have consistently held that the government’s use
of evidence obtained through an unlawful search or seizure does not make the resulting
judgement “void” for purposes of habeas corpus law.
               See Munnerlyn v. State, unpublished, 2014 WL 260986, *2 (Ark. 2014);
Smith v. State, unpublished, 1983 WL 1015, *1 (Ark. 1983); People v. Cahan, 287 P.2d

                                           –6–                                       2521

6, 7 (Cal. App. 1955); Hamm v. Jones, 353 S.W.2d 544, 545 (Ky. App. 1962); State v.
Dunn, 74 S.E. 1014 (N.C. 1912); Lowe v. Fortner, unpublished, 2012 WL 1080274, *3
(Tenn. Crim. App. 2012); Archer v. State, 851 S.W.2d 157, 160 n. 2 (Tenn. 1993).
              This principle — that the introduction of evidence obtained in violation of
the Fourth Amendment does not make a resulting judgement “void” — is mirrored in the
Alaska Supreme Court’s decision in Moreau v. State, 588 P.2d 275 (Alaska 1978).
              In Moreau, the supreme court held that claims of unlawful search or seizure
normally can not be raised for the first time on appeal (i.e., can not be raised if the claim
was not presented to the trial court). 588 P.2d at 280. As the supreme court explained,

                     The exclusionary rule is not the type of doctrine
              designed to protect against conviction of the innocent.
              Rather, it is a prophylactic device to curb improper police
              conduct and to protect the integrity of the judicial process.
              Thus, justice does not generally require that [the exclusionary
              rule] be applied on appeal where [the claim of unlawful
              search or seizure was] not urged at trial[,] or where new
              grounds for its invocation are presented on appeal.

Ibid.
              As this Court explained in Selig v. State, the rationale of Moreau is that,
even if evidence is obtained in violation of the constitutional limitations on searches and
seizures, the evidence remains reliable. Thus, Fourth Amendment errors do not affect
the fundamental fairness of the fact-finding process. Selig, 286 P.3d 767, 770 (Alaska
App. 2012).
              Because Moreau holds that violations of the Fourth Amendment do not
diminish the fundamental fairness of the trial, and that violations of the Fourth
Amendment normally can not be raised for the first time on appeal, we would violate the
underlying rationale of Moreau if we were to hold that these same Fourth Amendment

                                            –7–                                         2521

violations rendered a criminal judgement “void” (with the result that it could be
collaterally attacked without limitation).
              As we explained earlier in this opinion, this Court has already held that the
officers’ warrantless entry into the residence was lawful under the emergency aid
doctrine. But even if that were not the case — i.e., even if the officers entered the
residence unlawfully, and even if Olson’s ensuing arrest was unlawful, and even if
evidence stemming from that unlawful arrest was introduced at Olson’s trial — the
judgement entered against Olson would not be “void” for purposes of habeas corpus law.
Olson is therefore not entitled to litigate his unlawful arrest claim in a petition for writ
of habeas corpus.
              The superior court’s order dismissing Olson’s petition for writ of habeas
corpus is AFFIRMED.




                                             –8–                                       2521

