Wallace v. State, A-5964
| Decision Date | 28 February 1997 |
| Docket Number | No. A-5964,A-5964 |
| Citation | 933 P.2d 1157 |
| Parties | John Benjamin WALLACE, Jr., Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Phillip Paul Weidner and Nicole D. Stucki, Weidner & Associates, Inc., Anchorage, for Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
On June 16, 1993, Detective Ronald Robinson of the Anchorage Police Department (APD) received an anonymous telephone call informing him that there was a marijuana growing operation located at 14201 Specking Road, "possibly in the upstairs and basement areas." The caller told Robinson "you can smell the marijuana outside of the building and you can hear fans running inside the building." Robinson said the caller had a "female voice" and spoke in a lucid manner. Robinson did not know the basis of the caller's information.
Robinson then telephoned a Chugach Electric Association (CEA) employee and requested information concerning the electric usage at 14201 Specking Road. Robinson did not obtain a search warrant or a subpoena for this information. Robinson was informed that the dwelling at this address was a duplex and that John Benjamin Wallace, Jr. was being billed for power consumption at both apartments. Robinson was told that the average monthly consumption was 3092 kilowatt-hours (kwh) for one apartment and 2557 kwh for the other. Robinson stated he knew from prior investigations that the average CEA customer uses 700 kwh of power per month.
On June 17, 1993, Robinson drove to 14201 Specking Road, accompanied by APD Detective Patrick O'Brien. O'Brien stayed in the car while Robinson walked up the driveway of the residence. Robinson said that as he approached the residence he smelled the "fresh pungent odor of growing marijuana." He also heard fans running inside the residence. Robinson then passed through a gate, went up to the porch and rang the door bell. A man came to the door whom Robinson recognized from a driver's license photo as John Benjamin Wallace, Jr. Robinson asked Wallace if a fictitious person lived there and Wallace said he did not. Robinson asked if the residence was a duplex and Wallace responded it was not. Robinson stated in his affidavit for a search warrant that the smell of marijuana was stronger at the open door than in the driveway. When Robinson returned to the police car, O'Brien said he could smell marijuana on Robinson's clothing.
On June 18, 1993, Robinson submitted an affidavit and applied for a search warrant based on the information above. The magistrate issued a search warrant for the residence located at 14201 Specking Road.
On the evening of June 18, 1993, Robinson, accompanied by four other APD officers and two members of the Alaska National Guard, went to the Specking residence to serve the warrant. No one was home and the officers forced entry through the back door. A marijuana growing operation was discovered in the basement. The members of the National Guard assisted in the search of the basement and in dismantling the growing operation. Robinson found photographs of what appeared to be a different marijuana grow set up in a similar manner to the Specking Road grow just discovered. Paperwork was found upstairs, including a lease of a warehouse at 6100 Cordova Street to "John Walsh ... doing business as John Walsh & Associates," a power bill for the location, and a hand diagram of the warehouse indicating a "Lab 'A' " and a "Lab 'B.' "
Robinson and four other APD officers then went to the warehouse at 6100 Cordova Street. While standing in the dirt road leading to the parking lot of the warehouse, all five officers said they could smell the "fresh pungent odor of growing marijuana" and could hear what sounded like powerful fans inside the building. Based upon this information, on June 19, 1993, Robinson obtained a search warrant for the warehouse. Robinson, accompanied by four other APD officers and nine members of the National Guard, went to 6100 Cordova Street to serve the second search warrant. The police forced entry after there was no response to their knocking. The police found John B. Wallace, Jr. and Don Beaujean harvesting marijuana from a marijuana growing operation. Members of the National Guard stood around the perimeter of the warehouse when the police entered. The Guardsmen entered the warehouse after it was secured, dismantled the growing operation, and transported the marijuana and equipment to storage.
On September 15, 1993, an information was filed charging Wallace with six counts of fourth-degree misconduct involving a controlled substance. Wallace filed several pretrial motions, including a motion to suppress the evidence seized at his residence and at the warehouse. On January 6, 1995, Judge Mark C. Rowland denied these motions.
On January 9, 1995, Wallace entered nolo contendere pleas on two of the counts; the other four counts were dismissed. Wallace preserved the issues he has raised in this appeal under Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
On appeal, Wallace first contends that the Anchorage Police Department's use of the National Guard soldiers to execute the search warrants violated the Posse Comitatus Act and that the appropriate remedy is exclusion of the evidence discovered in the searches.
18 U.S.C. § 1385 (1988) (amended 1994), known as the Posse Comitatus Act, states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.
The critical inquiry which must be answered is whether or not the Alaska National Guard constitutes "any part of the Army or the Air Force." 10 U.S.C. § 3062(c)(1) (1994) states:
The Army consists of-- the Regular Army, the Army National Guard of the United States, the Army National Guard while in the service of the United States, and the Army Reserve[.]
(Emphasis added.) Likewise, 10 U.S.C. § 8062(d)(1) (1994) states:
The Air Force consists of--
the Regular Air Force, the Air National Guard of the United States, the Air National Guard while in the service of the United States, and the Air Force Reserve [.]
(Emphasis added.) 1 As stated above, when the Guardsmen participated in the search of Wallace's home and the Cordova Street warehouse, they were acting as members of the Alaska National Guard and were not in the service of the United States (also known as being "federalized"). Therefore, the Guardsmen were not "part of the Army or the Air Force." Under the plain language of the statute, the participation of the National Guard soldiers in serving the search warrant did not violate the Posse Comitatus Act.
Both the Third Circuit and a federal district court in Oregon have concluded that use of National Guard soldiers to enforce state criminal drug laws does not violate the Posse Comitatus Act. In United States v. Benish, 5 F.3d 20, 25-26 (3d Cir.1993), the Pennsylvania State Police used a squad from the Pennsylvania Army National Guard to assist them in the surveillance and investigation of a marijuana growing operation. The court concluded that the Posse Comitatus Act was not violated because the Guard unit was not in federal service. In United States v. Kyllo, 809 F.Supp. 787 (D.Or.1992), overruled on other grounds, 37 F.3d 526 (9th Cir.1994), a member of the Oregon National Guard operated a thermal imaging device in investigating a drug operation. The court ruled that the Posse Comitatus Act was not violated, noting that: "[t]he Supreme Court has recognized the dual nature of a National Guard and the fact that National Guardsmen only lose their status as a member of a state National Guard when they are 'drafted into federal service by the President.' " Id. at 793 (citing Perpich v. Department of Defense, 496 U.S. 334, 344, 110 S.Ct. 2418, 2424, 110 L.Ed.2d 312 (1990)). 2
Both the plain language of the Posse Comitatus Act and case law interpreting the Act support the conclusion that the state's use of National Guard soldiers to execute the search warrants did not violate the Posse Comitatus Act. We accordingly conclude that Judge Rowland did not err in finding that the state did not violate the Posse Comitatus Act in this case.
Wallace next contends that state statutes did not authorize the use of National Guard soldiers to execute the search warrants. However, the Alaska Constitution provides that Alaska Const., art. 3, § 19. Therefore, under the constitutional language, the governor is authorized to use National Guard soldiers to execute the laws. The statutes regulating the National Guard are set out in Chapter 5 of Title 26 of the Alaska Statutes. The parties have not cited any provision in that chapter that would prohibit the use of National Guard soldiers in this case.
Wallace argues that "[t]here is no federal law authorizing the National Guard's activities in the instant case." Wallace cites 10 U.S.C. § 375 (1994), which prohibits the "direct participation by a member of the Army Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law." However, as we have previously discussed, the members of the Alaska National Guard who participated in the two searches were not members of the "Army, Navy, Air Force, or Marine Corps" because they were under the command of the Alaska National Guard and were not "in the service of the...
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