Martel v. State

• Citation: 511 P.2d 1055
• Decision Date: 09 July 1973
• Docket Number: No. 1712,1712
• Parties: Raymond Gilmore MARTEL, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 1055

511 P.2d 1055

Raymond Gilmore MARTEL, Appellant, v. STATE of Alaska, Appellee.

No. 1712.

Supreme Court of Alaska.

July 9, 1973.

Stephen C. Cowper, Fairbanks, for appellant.

John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., and Robert B. Downes, Asst. Dist. Atty., Fairbanks, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

PER CURIAM.

Appellant Martel was hospitalized as a result of a shooting incident at Ester, Alaska where he and the complaining witness exchanged gunfire. A search of appellant's home and unattached garage pursuant to a search warrant for the revolver he used revealed an air compressor which subsequently led to Martel's conviction for concealing stolen property and which is the subject of the present appeal.

Martel challenges the sufficiency of the affidavit to obtain the search warrant. In addition, he challenges the admissibility of a statement taken at the hospital six days after the shooting on the grounds it was the result of two previous statements which the trial court ruled inadmissible because of appellant's physical condition at the time they were given.

We have examined the affidavit for a search warrant and find it legally sufficient. ¹ We have also reviewed the circumstances leading up to the taking of the statement by the state police trooper, six days after Martel's hospitalization. We conclude that the statement was both voluntary ² and untained by the exclusions of previous statements made on the day of the shooting incident and some three days later. ³

Appellant additionally urges the court to adopt the standards that the trial court must find the statement was voluntary beyond a reasonable doubt ⁴ before it was admissible. Since appellant did not raise such an issue in the trial court, we decline to consider it for the first time on appeal.

The judgment and conviction of the trial court is affirmed.

EITZGERALD, Justice (dissenting).

I do not agree that the affidavit on which the initial search warrant in this case was issued was sufficient to establish probable cause that appellant had concealed firearms, including a shotgun and a revolver, in an unattached garage 30 feet from appellant's dwelling house.

The search warrant affidavit was made by Corporal Turner of the Alaska State Police. It stated that the officer had reason to believe that on the premises, described as a 'wooden frame residence occupied by . . . Martel' and 'an unattached garage located approximately 30 feet west of the main structure' with a 'keep out' sign on the door, two or more weapons, one a revolver and the other a shotgun, would be found. The weapons were said to have been used by Martel on October 25, 1971 in the commission of several felonies: assault with a dangerous weapon, felon in possession of a firearm, and malicious destruction of property.

The affidavit recited that one R. E. Reichmann had stated that on October 25th, he discovered his car had been damaged by a shotgun while it was parked in front of the residence of one Daniel Knutsen. Reichmann was said to have further stated that he recently had a serious argument with Martel over money, and that on the evening of October 25th had observed Martel pointing a gun at Knutsen while in front of Martel's residence. The affidavit included a further statement from Daniel Knutsen that Martel had pointed and fired a revolver at Knutsen while the latter was inside Reichmann's car. Finally, the affidavit stated that investigation by the police revealed that the damage of Reichmann's vehicle was probably caused by several shotgun blasts, that a bullet hole was found in the seat of the vehicle, and that a spent projectible was recovered therefrom.

The fourth amendment to the United States Constitution protects against unreasonable searches, not only of 'houses ' or dwelling places, but also of outbuildings or other structures located within the curtilage of a dwelling house. Care v. United States. ¹ And while a single search warrant may authorize a search of more than one building, the warrant must specifically describe ² each place to be searched and must adequately establish probable cause ³ for the search of each structure. United States v. Hinton. ⁴

Here the affidavit offered no direct evidence to indicate that the firearms would found in either Martel's residence or the garage. Thus, it must be examined in order to determine what inferences may be reasonable drawn from the known facts and circumstances to establish probable cause that the weapons might be found in the unattached garage. In my view it seems reasonable to assume that a person will tend to keep a revolver close at hand in one's residence, since firearms are relatively expensive articles. Further, Martel was observed to standing in front of his residence with a gun. One reasonable inference to be drawn from the foregoing assumption and fact is that Martel probably entered his house, carrying the weapon into the dwelling with him. Thus, there was probable cause to believe that the weapon or weapons might have been found in Martel's residence.

The affidavit, however, gives rise to no reasonable inference that the weapons were hidden or concealed in the unattached garage. There is simply nothing in the affdavit which in any way connects the weapons with the garage. Yet the majority concludes that because Martel was observed to be standing in front of his residence with a gun, a search may be made of the unattached garage In my opinion the majority's conclusion is too broad. For under the court's analysis, three can be no logical reason to restrict the search from any other outbuilding or area of Martel's premises; any property in which Martel's possesses a proprietary interest may be searched. I decline to join in the court's broad holding.

For the reasons discussed I conclude that Corporal Turner's affidavit failed to establish adequate probable cause for the search of the garage. That being so, the initial search of Martel's garage was unconstitutional. Since the second search resulted from the observation of the air cimpressor made during the first search, the second search was also invalid and the evidence obtained therefrom was inadmissible as 'fruits of the poisonous tree.' ⁵ Without the compressor, there is insufficient evidence to support the conviction for the crime of concealing stolen property. Hence, I would reverse the conviction.

1 Davenport v. State, 510 P.2d 78 (Alaska 1973); Davis v. State, 499 P.2d 1025 (Alaska 1972). We disagree with the dissenting opinion's conclusion that there was no probable cause to support that part of the search warrant authorizing the search of the unattached garage. The affidavit was based in part upon the statement of Robert E. Reichmann that he observed Martel point a gun at Daniel Knutsen in front of Martel's residence. The affidavit was also based upon the statement of Daniel Knutsen that 'Martel did point a revolver at Knutsen while inside Reichmann's car and fire it. . . .' The affidavit noted that a subsequent investigation by the police revealed a...