Gallmeyer v. State, 5081

• Decision Date: 18 February 1982
• Docket Number: No. 5081,5081
• Citation: 640 P.2d 837
• Parties: David GALLMEYER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 837

640 P.2d 837

David GALLMEYER, Appellant, v. STATE of Alaska, Appellee.

No. 5081.

Court of Appeals of Alaska.

Feb. 18, 1982.

James L. Bruce, Asst. Public Defender, Ketchikan, and Brian C. Shortell, Public Defender, Anchorage, for appellant.

Michael A. Thompson, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Ketchikan, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

David Harlow Gallmeyer appeals from his conviction of being a felon in possession of a concealable firearm. Prior to conviction, Gallmeyer filed a timely motion to suppress certain evidence, including the gun that he was accused of possessing; he argued that this evidence was obtained by an unlawful search and seizure. The motion was denied by the superior court after an evidentiary hearing, and Gallmeyer subsequently entered a plea of nolo contendere to the charge, reserving his right to appeal the suppression issue. ¹ The only question raised in this appeal is, thus, the validity of the superior court's ruling on Gallmeyer's motion to suppress.

Since the events leading to Gallmeyer's arrest are crucial to his argument on appeal, it will be appropriate to review the facts established at the suppression hearing below. In so doing, we must accept factual findings specifically made by the superior court, unless clearly erroneous; in the absence of findings as to disputed factual issues, we must view the evidence in the light most favorable to the prevailing party-here the state. Stumbaugh v. State, 599 P.2d 166, 172 (Alaska 1979). The evidence in the record, thus construed, is as follows:

On April 12, 1978, David Gallmeyer had a fight with his wife, Linda, at their home in Wrangell, Alaska. The fight apparently began as a dispute over the parentage of the Gallmeyer's fifteen-month-old daughter. David was intoxicated at the time. The fight started out as a verbal dispute, but soon became physical; David hit his wife in the face, either with his fist or with a bottle of liquor, which he threw at her. David ultimately pushed Linda out the front door of their house. Before doing so, he pointed a handgun at his wife and threatened her with it.

After being ejected, Linda Gallmeyer went across the street to a neighbor's house to call the police. She reached Officer Gardner, of the Wrangell Police Department, informed him of the situation, and stated that she wanted police assistance to "confiscate" her fifteen-month-old daughter, who remained in the house with David. Officer Gardner, accompanied by another Wrangell policeman, Officer Wagner, responded to Linda's call, but was delayed when heavy equipment on the highway blocked the most direct route to the Gallmeyer residence and forced the two officers to take a lengthy detour. When the police did not respond to her initial call as quickly as she thought they should have, Linda called again. She spoke once more with Gardner, who was in his patrol car headed toward the Gallmeyer residence; Linda demanded to know what was taking Gardner so long, and she was adamant that she needed police assistance immediately.

After her second call to Gardner, Linda spoke with her husband through the door of their house, from across the street. She told David that she had called the police and that if he would put the baby on the porch, she would not ask the police to enter the house when they arrived. In response to this statement, David put the baby on the front porch of the house. Linda, however, made no attempt to pick the baby up herself. When the police arrived, the infant was still in the immediate vicinity of the porch, although she had apparently managed to toddle down the steps. Upon arrival of the patrol car, Linda immediately contacted Officers Gardner and Wagner across the street from her house. She was excited and obviously upset; Gardner recalled that her emotional condition verged on hysteria. Both officers noticed dried blood around Linda's mouth. Linda told the officers that her husband was in the house, intoxicated, that there had been a fight, and that her husband had struck her and pushed her forcibly out of her house. Linda also said that there were numerous guns in the house, and, upon further questioning by Gardner, she disclosed that her husband had threatened her with a handgun before the police arrived. ² During this conversation, Linda urged the officers to get her baby daughter, who was still near the porch steps, directly in front of the Gallmeyer residence.

Officer Wagner, in plain clothes, then crossed the street and approached the Gallmeyer residence, while Gardner, in uniform, "covered" him with a rifle from across the street. Wagner did not pick up the baby; instead, he walked past her and went up the steps to the porch of the home. At the time, both Wagner and Gardner were concerned about the possibility of being seen and shot at from one of the front windows of the Gallmeyer residence. Wagner specifically testified at the suppression hearing that he did not immediately attempt to pick up the Gallmeyer baby and walk back to her mother because he feared for the safety of the child and for his own safety. Aware of the altercation that had just occurred between David and Linda Gallmeyer, Wagner's paramount concern was that David Gallmeyer was intoxicated and that there were guns readily available to him in the house. Accordingly, Wagner decided to go to the Gallmeyer residence for the purpose of talking to David Gallmeyer and calming him down.

As Wagner came near the Gallmeyers' porch, he saw someone moving in the house, by the window located in the kitchen area, overlooking the front yard. Wagner walked up the porch steps, calling several times: "Dave" or "David" and "Can I talk with you?" Wagner stopped on the porch when he reached the outer doorway to the home, separated from the inner door by a small patio. About the time that Wagner stopped in front of the outer doorway, David Gallmeyer came toward the inside door, the top half of which was made of glass, allowing Wagner to see David. Wagner then asked David if he could come in to talk, and David made an unintelligible, mumbled response, gave an apparent gesture of acknowledgment with his head, and fumbled with the door latch. Taking David's actions as acquiescence, Wagner entered through the outer door and proceeded to open the inner door himself. As Wagner entered the house, David turned away and began walking towards the kitchen; he appeared to be intoxicated. Wagner immediately noticed a gun tucked in the waistband of David's trousers, in the small of his back. He then reached out and removed the gun from David's waist. Thereafter, David grabbed for another gun from atop the refrigerator, and a scuffle ensued during which a gun went off. No one was injured. David was quickly subdued and arrested for possession of firearm while intoxicated.

It is undisputed that, before placing David Gallmeyer under arrest, Wagner had no knowledge of his prior felony record; nor did Wagner think that he had probable cause to enter the Gallmeyer home to place David under arrest. It was only when subsequent investigation showed that Gallmeyer had a prior felony conviction that he was indicted for being a felon in possession of a firearm, in violation of former AS 11.55.030.

In denying Gallmeyer's motion to suppress, superior court Judge Thomas Schulz specifically found that Wagner's entry into the Gallmeyer residence was not consensual. ³ However, Judge Schulz reasoned that Wagner's entry was not undertaken for the purpose of arresting Gallmeyer or conducting a search. The judge found that the entry was solely investigative in nature and was meant to assure the safety of the officer and the Gallmeyers' baby. Judge Schulz ultimately denied the motion to suppress, concluding that "the police officer's conduct was reasonable under the circumstances."

On appeal, the state refrains from arguing that the police conduct in this case should be evaluated on the basis of whether it was reasonable under the circumstances. ⁴ Instead, the state contends that Officer Wagner's entry to the Gallmeyer residence was justified under the emergency aid exception to the warrant requirement. The state argues that, although the superior court did not base its decision on this ground, it made sufficient findings to enable this court to rely on the emergency aid doctrine. Gallmeyer counters by arguing that the facts in the record fail to establish the existence of an emergency that could reasonably have justified a warrantless entry of his residence. We have concluded that the state's position is well taken.

The starting point for our analysis must, of course, be the basic rule that warrantless entries are deemed per se unreasonable and may be tolerated only if they fall within one of the well-established and specifically defined exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, 585 (1967); Erickson v. State, 507 P.2d 508, 514 (Alaska 1973). The burden below was on the state to prove by a preponderance of the evidence that Officer Wagner's conduct fell within a recognized exception. Schraff v. State, 544 P.2d 834, 838 (Alaska 1975).

The emergency aid doctrine has been uniformly recognized as an exception to the warrant requirement. ⁵ Perhaps the most commonly cited statement of the doctrine is found in United States v. Barone, 330 F.2d 543, 545 (2nd Cir. 1964), cert. denied 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964), where the court said:

The right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers, and derives from the common law. ⁶

The emergency aid doctrine has been given express recognition by the Alaska Supreme Court, Schraff v. State, 544 P.2d at 840-41,...