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           IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MARGARET A. KELLEY,
                                                      Court of Appeals No. A-10882
                           Appellant,                Trial Court No. 3PA-09-1654 CR

                    v.                                        OPINION

STATE OF ALASKA,

                           Appellee.                   No. 2449 — April 10, 2015


            Appeal from the Superior Court, Third Judicial District, Palmer,
            Gregory Heath, Judge.

            Appearances: Marjorie Mock, under contract with the Public
            Defender Agency, and Quinlan Steiner, Public Defender,
            Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant
            Attorney General, Office of Special Prosecutions and Appeals,
            Anchorage, and Michael C. Geraghty, Attorney General, Juneau,
            for the Appellee.

            Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
            Senior Court of Appeals Judge. *

            Judge ALLARD, writing for the Court.
            Chief Judge MANNHEIMER, concurring.
            Senior Judge COATS, dissenting.




   *
       Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
              Shortly after midnight, acting on an anonymous tip, two Alaska state
troopers drove up Margaret A. Kelley’s driveway to her residence in Willow, Alaska,
rolled down the windows of their idling patrol car, and sniffed the air. After detecting
the odor of marijuana, the troopers obtained a warrant to search Kelley’s home. During
that search they discovered and seized evidence of a commercial marijuana grow.
              For the reasons explained here, we conclude that the troopers had no legal
right to approach Kelley’s home at that time of night, in the manner that they did, to
gather evidence of a marijuana grow. Kelley is therefore entitled to suppression of the
evidence obtained as a result of this illegal search.


       Facts and proceedings
              Margaret Kelley’s home is located at mile 85.5 of the Parks Highway. The
residence is rural, set back a considerable distance from the highway, and there are no
neighbors close by.
              On June 30, 2009, at 12:30 a.m., Sergeant Robert Langendorfer and
Investigator Kyle Young drove onto Kelley’s property to investigate an anonymous tip
that she was growing marijuana to sell.1 The troopers drove up the driveway and parked
their patrol car directly in front of Kelley’s house, leaving the engine idling for several
minutes. The troopers made no effort to contact the occupants of the residence. Instead,
they rolled down the windows of their patrol car and sniffed the air. According to the
later search warrant application, they were able to detect the odor of growing or recently
harvested marijuana.
              Further investigation revealed that Kelley owned the property but that her
electrical usage was “unremarkable” — that is, not indicative of a commercial grow


   1
       The record provides no details about the nature of the tip or when it was received.

                                           –2–                                       2449

operation. Nevertheless, the troopers obtained a warrant to search the property. When
they executed the warrant, they discovered numerous marijuana plants and other
evidence of a commercial grow operation. Based on this evidence, the State charged
Kelley with four counts of fourth-degree misconduct involving a controlled substance.2
              Kelley moved to suppress the evidence obtained during the search of her
home, arguing that the officers unlawfully intruded onto her property when they drove
up her driveway after midnight to sniff for narcotics. The trial court denied the motion,
ruling that the driveway to Kelley’s house was impliedly open to public use because it
provided public ingress to and egress from her property, and that the troopers therefore
had a right to be there, even after midnight. The court reasoned that “[a] way of ingress
or egress does not cease to exist after a certain time of night.”
              Kelley was then convicted in a bench trial on stipulated facts, and she
appealed her conviction to this Court. While her appeal was pending, the United States
Supreme Court issued its decision in Florida v. Jardines.3 Because Jardines spoke to
the propriety of this type of police approach to residential premises, we directed the
parties to submit supplemental briefing addressing the case.
              We have received that briefing, and we now resolve Kelley’s appeal.




   2
       AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F) & (G); AS 11.71.040(a)(5).
   3
       133 S. Ct. 1409 (2013).

                                           –3–                                     2449

       Why we conclude that the troopers’ conduct was unlawful and that the
       evidence obtained during the search of Kelley’s home must be suppressed
             Under the Fourth Amendment to the United States Constitution and Article
1, Section 14 of the Alaska Constitution, a warrantless search of a home is illegal in the
absence of exigent circumstances. This protection against unreasonable searches also
extends to the curtilage of the home — those areas immediately surrounding the home
in which the resident retains a reasonable expectation of privacy.4
             However, law enforcement officers may enter an area within the curtilage
of a home that is “expressly or impliedly opened to the public use.”5 More specifically,
“if police utilize normal means of access to and egress from the house for some
legitimate purpose, such as to make inquiries of the occupant, ... it is not a Fourth
Amendment search for the police to see or hear or smell from that vantage point what is
happening inside the dwelling.”6 Thus, in Pistro v. State, our supreme court held that a
police officer could lawfully drive up a driveway and observe stolen property in plain
view through the window of the homeowner’s garage.7
             Until now, we have not had occasion to address whether this “public
access” exception to the warrant requirement applies to a middle-of-the-night entry into
the curtilage of a home.




   4
      See Ingram v. State, 703 P.2d 415, 427 n.10 (Alaska App. 1985) (citing Oliver v.
United States, 466 U.S. 170, 180 (1984)).
   5
       Pistro v. State, 590 P.2d 884, 886 (Alaska 1979).
   6
      Wallace v. State, 933 P.2d 1157, 1164 (Alaska App. 1997) (quoting 1 Wayne R.
LaFave, Search and Seizure § 2.3(c), at 482-83 (3d ed. 1996)) (internal quotation marks
omitted).
   7
       Pistro, 590 P.2d at 885-88.

                                          –4–                                       2449

               In Jardines, the United States Supreme Court recognized that a police
officer has an implicit license to approach a home without a warrant and knock on the
front door because this is “no more than any private citizen might do.”8 But the Supreme
Court also recognized that the scope of this implicit license is limited not only to the
normal paths of ingress and egress, but also by the manner of the visit. As the Court
explained, “[t]o find a visitor knocking on the door is routine (even if sometimes
unwelcome); to spot that same visitor exploring the front path with a metal detector, or
marching his bloodhound into the garden before saying hello and asking permission,
would inspire most of us to — well, call the police.”9
               Thus, in the majority opinion in Jardines, the Supreme Court concluded
that the police did not have an implicit license to walk uninvited onto the front porch of
a home with a drug-sniffing dog, and the Court therefore upheld the Florida Supreme
Court’s decision suppressing the evidence obtained as a result of that search.10
               The case before us involves a trooper sniff,11 not a dog sniff, and the
troopers stayed in their car rather than stepping up onto the porch. But, in another
respect, the search in this case was more intrusive than the search in Jardines, because
it took place after midnight.




   8
        Jardines, 133 S.Ct. at 1416 (quoting Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)).
   9
        Id.
   10
        Id. at 1416-18; see also id. at 1418-20 (Kagan, J., joined by Ginsburg and Sotomayor,
JJ., concurring).
   11
       See Wallace, 933 P.2d at 1165 (noting that there is no reasonable expectation of
privacy from a trooper with “inquisitive nostrils” provided that the trooper is lawfully where
he is entitled to be) (quoting 1 Wayne R. LaFave, Search and Seizure, § 2.2(a) at 403 (3d
ed.1996)).

                                            –5–                                         2449

               Although a late-night search was not before the Court in Jardines, both the
majority and the dissent in Jardines were in agreement that there were clear temporal
limits on the implied license for public access to a private residence. As Justice Alito
noted in the dissent, a visitor may not “come to the front door in the middle of the night
without an express invitation”; indeed, such a late-night intrusion “could be cause for
great alarm.”12 The majority referred approvingly to the dissent’s “no-night-visits rule,”
noting that “the typical person would find it ‘a cause for great alarm’ (the kind of
reaction the dissent quite rightly relies upon to justify its no-night-visits rule...) to find
a stranger snooping about his front porch with or without a dog.”13
               Before and after Jardines, courts in other jurisdictions have similarly
condemned late-night police incursions onto private property, holding that they are
generally outside the scope of the implied license for public access.14

   12
        Id. at 1422 (Alito, J., joined by Roberts, C.J., and Kennedy and Breyer, JJ., dissenting)
(citing State v. Cada, 923 P.2d 469, 478 (Idaho App. 1996) (“Furtive intrusion late at night
or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if
observed by a resident of the premises, it could be a cause for great alarm”)).
   13
        Id. at 1416 n.3 (emphasis in original).
   14
       See, e.g., United States v. Lundin, ___ F. Supp. 2d ___, 2014 WL 2918102, at *6
(N.D. Cal. 2014) (“[T]he implied license to visit is generally understood to extend during
daylight hours.”); State v. Cada, 923 P.2d 469, 478 (Idaho App. 1996) (police officers’
nighttime intrusion “exceeded the scope of any implied invitation to ordinary visitors and was
not conduct to be expected of a reasonably respectful citizen”); People v. Burns, ___ N.E.3d
___, 2015 WL 404355, at *8 (Ill. App. Jan. 30, 2015) (condemning warrantless use of drug-
detection dog to sniff apartment front door at 3:20 a.m.); Commonwealth v. Ousley, 393
S.W.3d 15, 31 (Ky. 2013) (midnight intrusion by police on homeowner’s driveway
unconstitutional because “[a]bsent an emergency, such as the need to use a phone to dial 911,
no reasonable person would expect the public at his door at [that] time[]”); State v. Ross, 4
P.3d 130, 136 (Wash. 2000) (suppressing evidence where police used driveway to enter
property at 12:10 a.m. to search for evidence of marijuana grow, with no intention of
                                                                                (continued...)

                                             –6–                                          2449

               In State v. Ross, for example, the Washington Supreme Court held that law
enforcement agents conducted an illegal search when they approached a homeowner’s
garage shortly after midnight “for the express, and sole, purpose of searching for
evidence of a marijuana grow operation in order to obtain a search warrant.”15 In finding
the entry unlawful, the Washington Supreme Court emphasized that “[t]he deputies
entered the property at 12:10 a.m., an hour when no reasonably respectful citizen would
be welcome absent actual invitation or an emergency.”16
               Similarly, in Commonwealth v. Ousley, the Kentucky Supreme Court held
that a middle-of-the-night police intrusion onto the curtilage of a home to search a
garbage can violated the Fourth Amendment.17 Noting that “the time of the day of the
invasion matters,” the court held that “just as the police may invade the curtilage without
a warrant only to the extent that the public may do so, they may also invade the curtilage
only when the public may do so.”18
               Here, the record shows (and the State does not dispute), that the troopers
entered the constitutionally protected curtilage of Kelley’s home when they drove down




   14
       (...continued)
contacting defendant); State v. Johnson, 879 P.2d 984, 991-93 (Wash. App. 1994) (noting
that danger of “violent confrontation”considerably heightened during 1:00 a.m. intrusion).
   15
        Ross, 4 P.3d at 136.
   16
        Id.
   17
        Ousley, 393 S.W.3d at 31.
   18
       Id.; see also id. at 30 (“Girl Scouts, pollsters, mail carriers, door-to-door salesmen just
do not knock on one’s door at midnight; and if they do, they are more likely to be met by an
enraged (and possibly armed) resident than one with a welcoming smile.”).

                                              –7–                                          2449

her private driveway and parked their car directly in front of Kelley’s home.19 The
record also shows (and again, the State does not dispute), that the purpose of this
midnight visit was to gather evidence related to the anonymous tip that Kelley was
growing marijuana to sell.
               There is no allegation that the troopers had prearranged business with
Kelley, that they were expecting or intending to have direct contact with her, or that any
exigency existed that otherwise justified their conduct. Nor is there any evidence that
Kelley impliedly consented to the arrival of visitors after midnight — by, for instance,
operating a night-time business from her home or hosting a large, late-night social
gathering.20 Indeed, the State has articulated no reason to justify the troopers’ decision
to conduct this investigation after midnight instead of during the day, when the
investigation would have accorded with the conduct of a respectful citizen and well-
settled law.
               In urging us to uphold the search, the State emphasizes that, in Alaska in
midsummer, it is still light out at 12:30 a.m. But the law’s aversion to nighttime searches
is not based on the time of sunset, which varies by season, but on the widely recognized
right of the individual to privacy and repose in the home at night.21 We note that in
deference to this right, Alaska law requires a search warrant to be executed between the



   19
       See Jardines, 133 S.Ct. at 1415 (defining curtilage as area “immediately surrounding
and associated with the home”).
   20
       The dissent notes that some part of Kelley’s driveway was shared with a business.
This assertion appears only in the search warrant affidavit, and was never mentioned or relied
on by the State in response to Kelley’s motion to suppress. As we noted earlier, the State did
not dispute Kelley’s characterization of her home as “rural in character” and “not close to any
adjacent neighbors.”
   21
       See State v. Witwer, 642 P.2d 828, 833 (Alaska App. 1982) (noting that a nighttime
search is a “greater violation of privacy” than a daytime search).

                                            –8–                                          2449

hours of 7:00 a.m. and 10:00 p.m., regardless of the season, unless there is good cause
to execute the search at some other hour.22
                 In his dissent, Senior Judge Coats observes that a number of courts have
upheld late-night police approaches to residences for the purpose of conducting a “knock
and talk” with the occupants. But the legal principles that govern a “knock and talk” do
not apply here, because the State never asserted, and the record does not show, that the
troopers approached Kelley’s residence to engage in a knock and talk. As the Kentucky
Supreme Court noted in Ousley, “[w]here the officer seeks only to search and does not
interact with the resident, he has no ‘legitimate’ purpose as understood in the knock-and­
talk cases.”23
                 We further note that the knock-and-talk cases cited by the dissent recognize
that the lateness of the hour is an important factor to be considered in assessing the
overall coerciveness and lawfulness of a knock and talk.24 Here, we reach our conclusion
that the troopers’ conduct violated the Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Alaska Constitution based on all of the
circumstances of this case — including the time of night, the troopers’ conduct, the
State’s failure to advance any reason why the troopers could not gather their evidence
during the day, or to believe that Kelley impliedly consented to such a late-night visit.
                 The dissent also suggests that our decision will hamper legitimate night­
time police investigations. We disagree. Nothing in our decision bars the police from




   22
        Alaska R. Crim. P. 37(a)(3)(C). 

   23
        Commonwealth v. Ousley, 393 S.W.3d 15, 30 (Ky. 2013).

   24
       See Fern L. Kletter, Construction and Application of Rule Permitting Knock and Talk

Visits Under Fourth Amendment and State Constitutions, 15 A.L.R. 6th 515, § 2 (2006).

                                             –9–                                       2449

approaching a residence late at night when they have good reason to do so.25 Likewise,
nothing in our decision — or in Jardines — bars the police from using the normal means
of ingress or egress to approach a residence, even in the absence of an invitation or
exigent circumstances, provided that the manner and time in which they do so is
consistent with the conduct of an ordinary, respectful citizen.26
              The search warrant in this case was based almost entirely on the evidence
obtained by the troopers’ midnight entry onto Kelley’s property. Because the troopers
were not in a place where they had a legal right to be when they conducted the sniff, the
search warrant they obtained is tainted by the illegal search, and the evidence obtained
as a result of the warrant must be suppressed.27


        Conclusion
              We REVERSE the judgment of the superior court.




   25
       See, e.g., United States v. McDowell, 713 F.3d 571, 572-74 (10th Cir. 2013)
(affirming denial of suppression motion based on evidence obtained from nighttime driveway
sniff where police were on the property because they were attempting to locate suspect in
assault investigation).
   26
        Accord Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013) (“Complying with the terms
of [the implied license for public access] does not require fine-grained legal knowledge; it
is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.”).
   27
        See Chandler v. State, 830 P.2d 789, 796 (Alaska App. 1992).

                                          – 10 –                                      2449

Judge MANNHEIMER, concurring.


              I agree with the analysis set forth in the majority opinion, and I write
separately only to point out another pertinent aspect of Justice Scalia’s majority opinion
in Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).
              As Judge Allard explains, both the majority and the dissent in Jardines
agree that, for Fourth Amendment purposes, a nighttime entry onto residential property
is different from a daytime entry — because the test is whether the entry is within the
“implicit license” granted to visitors by the homeowner, and because homeowners have
differing expectations regarding daytime and nighttime visitors.
              But Justice Scalia’s opinion in Jardines contains an analysis that is
potentially of greater significance to this case, and to future cases: he asserts that “[t]he
scope of a [homeowner’s implied] license ... is limited not only to a particular [physical]
area, but also to a specific purpose.” Id., 133 S.Ct. at 1416 (emphasis added).
              In his opinion, Justice Scalia appears to ratify the approach that (1) police
officers, like other citizens, are entitled to take advantage of a homeowner’s implied
permission to have visitors enter their property, but (2) the scope of that implied
permission depends, in part, on the visitor’s purpose, and (3) homeowners typically do
not consent to have visitors enter their property to investigate crimes that the homeowner
might have committed. 1
              Justice Scalia’s approach potentially raises significant Fourth Amendment
questions. However, I conclude that we should not pursue this matter further in Kelley’s
case. The parties’ briefs do not raise this point, and the facts of Kelley’s case do not
require us to resolve the additional questions raised by Justice Scalia’s opinion.



   1
       See Jardines, 133 S.Ct. at 1416-17 & n. 4.

                                           – 11 –                                      2449

COATS, Senior Judge, dissenting.


              The facts in this case are undisputed. The Alaska State Troopers received
a tip that Margaret Kelley was growing and selling marijuana at her residence at mile
85.5 of the Parks Highway. At approximately 12:30 a.m. on June 30, 2009, two
members of the Mat-Su drug unit, Investigator Young and Sergeant Langendorfer, pulled
into the driveway of Kelley’s residence.
              While still in their vehicle, both troopers smelled the odor of “fresh
marijuana.” The troopers were directly in front of, and downwind from, Kelley’s
residence. Moreover, there were no other nearby residences upwind of the Kelley
residence. There was no indication that Kelley’s residence was occupied, and the
troopers left without attempting to contact anyone.
              Based primarily on this information, the police obtained and served a search
warrant on Kelley’s residence. They found a number of marijuana plants as well as
marijuana growing equipment. Based on this evidence, the grand jury indicted Kelley
on four counts of misconduct involving a controlled substance in the fourth degree.
              Kelley filed a motion to suppress in which she argued that the troopers
conducted an illegal search under Article I, Section 14 of the Alaska Constitution and
violated her right to privacy under Article I, Section 22 of the Alaska Constitution.
              Superior Court Judge Gregory Heath denied the motion to suppress and
Kelley was then convicted in a bench trial based on stipulated facts.
              The majority of this Court reverses Kelley’s conviction, concluding that the
police acted illegally by entering her property at 12:30 a.m. to investigate the tip that she
was growing marijuana.
              Alaska law provides that law enforcement officers may enter onto private
property to conduct an investigation without a warrant if they restrict their movements

                                           – 12 –                                      2449

to places where an ordinary visitor would be expected to go.1 There are no Alaska cases
that restrict the time of day or night the police may use a residence’s normal means of
ingress and egress to investigate a crime.
              In this case, Judge Heath found that the troopers entered Kelley’s property
by means of her driveway, which was the normal way to approach her residence. The
troopers did not get out of their vehicle, and they stayed for only a few minutes. Judge
Heath assumed that, at 12:30 at night, the officers had the patrol car’s headlights on, and
that the car’s engine made some noise as it approached. The judge concluded that this
was not the type of “furtive” nighttime investigation that courts in some other
jurisdictions have condemned.2
              As we recognized in Michel v. State,3 a police investigation is “as legitimate
a societal purpose as any other undertaking that would normally take a person to
another’s front door.”4 In his treatise on search and seizure, Professor LaFave points out
that the courts that have directly addressed the issue “have not been inclined to view
nocturnal entries upon the curtilage as improper.”5




   1
      Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979); Michel v. State, 961 P.2d 436,
438 (Alaska App. 1998).
   2
       Citing State v. Johnson, 879 P.2d 984 (Wash. App. 1994), and State v. Cada, 923
P.2d 469 (Idaho App. 1996).
   3
       961 P.2d 436.
   4
       Id. at 437-38 (quoting State v. Rigoulot, 846 P.2d 918, 923 (Idaho App. 1992)).
   5
        1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3
(c) (5th ed.) (Westlaw, database updated October 2014) (citations omitted).

                                          – 13 –                                      2449

               In finding that the troopers’ conduct in this case was illegal, the majority
of this Court relies primarily on Florida v. Jardines,6 a United States Supreme Court
case.    In Jardines, the Supreme Court ruled that when the police step onto a
homeowner’s porch with a drug-sniffing dog to investigate the contents of the home they
conduct a “search” within the meaning of the Fourth Amendment.7 Although Jardines
did not involve a late-night search, the dissent, written on behalf of four members of the
Court, stated that there are limitations on when a visitor may approach the front door of
a residence “in the middle of the night without an express invitation.”8 However, the
case the dissent relied on for that proposition, State v. Cada,9 held only that the late hour
at which a police intrusion takes place is one factor for courts to consider in determining
whether the entry was lawful.10
               The facts of Cada are far removed from Kelley’s case. In Cada, the police
entered Cada’s property at 1:00 a.m. on June 10, 1993, to set up a thermal imaging
device directed at the garage.11 The officers, at least one of them dressed in camouflage,
entered the property again on June 21, 1993, at approximately 4:00 a.m., and hid a
motion-activated low-light infrared video camera and two infrared sensors in the bushes
across the driveway from the garage.12



   6
        133 S. Ct. 1409 (2013).

   7
        Id. at 1417-18. 

   8
        Id. at 1422 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer, JJ.)

   9
        923 P.2d 469 (Idaho App. 1996).

   10
        Id. at 478.

   11
        Id. at 472. 

   12
        Id.

                                             – 14 –                                        2449

               In Cada, the Idaho Court of Appeals held that this police entry was illegal
under the Idaho Constitution.13 The court reasoned that
               furtive intrusion late at night or in the predawn hours is not
               conduct that is expected from ordinary visitors. Indeed, if
               observed by a resident of the premises, it could be a cause for
               great alarm. As compared to open daytime approaches,
               surreptitious searches under cover of darkness create a
               greater risk of armed response — with potentially tragic
               results — from fearful residents who may mistake the police
               officers for criminal intruders.14
               Similarly, in State v. Johnson,15 the Washington Court of Appeals, applying
the state constitution, found that a police entry onto the defendant’s property at 1:00 a.m.
to investigate a possible marijuana growing operation was illegal. But again, the time
of the entry was but one factor the court considered in finding the entry illegal. The
police entered the Johnsons’ property via a state park, under cover of darkness. They
opened a gate marked “Private Property” and “No Trespassing,” walked down the road,
and took readings from a thermal imaging device aimed at the barn.
               The Washington court found that the closed gate marked with “No
Trespassing” signs indicated that the Johnsons had a “subjective intent to close their
property.”16 The court also concluded that the officers’ surreptitious entry onto the
Johnsons’ property at 1:00 a.m. easily could have resulted in a violent confrontation.17




   13
        Id. at 478.
   14
        Id.
   15
        879 P.2d 984 (Wash. App. 1994).
   16
        Id. at 992.
   17
        Id. at 993.

                                           – 15 –                                     2449

               In State v. Ross,18 the Washington Supreme Court likewise condemned a
surreptitious police entry onto the defendant’s property, in a case the court described as
“very similar” to Johnson.19
               In each of these cases, the court considered the entire context of the police
entry, not just the time of the entry. Moreover, in finding that the searches were illegal,
the courts emphasized that the police had engaged in “furtive activity.”
               As Judge Heath found, there was no furtive activity in this case. The
officers drove their patrol car up Kelley’s driveway, presumably with the headlights on,
stayed only a few minutes, and did not get out of the car.
               I would affirm Judge Heath’s decision that this entry was lawful. The
troopers’ investigation differed markedly from the facts of the out-of-state cases that
found nighttime searches illegal. Those cases involved extreme facts, where the police,
in an effort to avoid detection, snuck onto the defendant’s property under cover of
darkness to obtain evidence. In Kelley’s case, the troopers simply drove up the driveway
in a patrol car and remained there for several minutes, without getting out of the car. The
driveway was the normal approach to the house, and the troopers did not open any gates
or encounter any “No Trespassing” signs.
               This type of approach is unremarkable. Certainly newspapers are routinely
delivered at night in this way, as might be advertisements, telephone books, or political
material. An individual might drive up a driveway to check an address — or to look for
the business that, according to the affidavit in support of the search warrant, shared some
portion of Kelley’s driveway. I see no basis for excluding the police from making a
similar approach.


   18
        4 P.3d 130 (Wash. 2000).
   19
        Id. at 136.

                                           – 16 –                                     2449

              The majority relies on the fact that Alaska law requires search warrants to
be executed between the hours of 7:00 a.m. and 10:00 p.m., unless the State shows good
cause. But there is a big difference between driving up the driveway and approaching
a house without getting out of the car, and entering a house under the force of a warrant
and searching it.
              Police officers investigate crime around the clock,20 and there is no per se
rule that prohibits late-night investigations. For instance, courts find that “knock and
talk” investigations, where police approach a residence, knock on the door, and talk to
witnesses or suspects, are generally reasonable, even if those contacts occur late at
night.21 And courts routinely uphold much more intrusive late-night contacts than the
situation presented in Kelley’s case.
              In my view, the opinion of the Court is not supported by any authority and
runs the risk of creating uncertainty about the ability of the police to investigate crime
other than during daytime hours. I therefore dissent.




   20
       See, e.g., Martin v. State, 297 P.3d 896, 897-900 (Alaska App. 2013) (police
approached a five-unit apartment complex after midnight as part of a drug investigation and
saw, through a window, materials used for the manufacture of methamphetamine).
   21
        See Fern L. Kletter, Construction and Application of Rule Permitting Knock and Talk
Visits Under Fourth Amendment and State Constitutions, 15 ALR 6th 515 (2006) (stating,
“Whether a knock and talk has transformed into a search or seizure is dependent upon the
totality of the circumstances of each particular case… . [Where] police officers approached
a residence at 2 in the morning but where lights were on inside indicating that people were
awake and there was no other evidence indicating that visitors were not welcome to approach
the front door of the residence[,]” no Fourth Amendment violation occurred).


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