BOLGER, Judge.
After observing evidence of a domestic violence assault, the police entered a trailer where the suspect, Forrest J. Ahvakana, was staying, found him hiding in a bedroom closet, and arrested him. Ahvakana argues that this entry and search were illegal. He also argues that the police unlawfully seized bloody clothing they found inside the trailer.
We conclude that the entry and search of the trailer were justified under the circumstances of this case. The police officers confronted an emergency situation involving domestic violence, and they had a legitimate need to locate the individuals involved in that violence. Once the police were lawfully inside the trailer, they were entitled to seize evidence that they observed in plain view.
Ahvakana additionally argues that the superior court abused its discretion by refusing to sever the charge that he committed a misdemeanor assault against his girlfriend from felony charges stemming from his attack on a different victim earlier that day. Ahvakana's argument on appeal is different from the argument he raised in support of his motion below, so he must show plain error. We find no plain error in the superior court's decision to deny the motion to sever the charges. Accordingly, we affirm Ahvakana's convictions.
On December 8, 2008, shortly after 9:00 a.m., North Slope Police Sergeant Jose Gutierrez III, Officer Vance Enderle, and police trainee Stephen Smith responded to a report that Billy Kaleak had been assaulted in Barrow. The officers found Kaleak at his mother's house, covered in blood "from head to toe, [with] blood running down from his face, down the front of him." Kaleak had "large lacerations to his head" and a "large pool of blood ... from behind his head on the floor." Kaleak told the police that Forrest Ahvakana had hit him with an empty bottle of Jack Daniels, and that the assault had occurred next door, where Kaleak lived.
The police followed a blood trail leading to Kaleak's residence. There was a large amount of blood throughout the house. Officer Enderle testified, "The house was a total wreck, the tables overturned, broken glass all over the place."
While the officers were taking photographs and collecting evidence of this assault, they received a report that a woman, Dolly Patterson, had heard "what sounded like a female being beaten up out on Cakeatter Road." The officers responded to Cakeatter Road and contacted Patterson, who said that, while she was outside smoking a cigarette, she heard a woman screaming and crying, and a man yelling. Patterson could not identify exactly where the sounds came from, but she pointed the officers in the direction of a nearby home, where the officers spoke with Johnnie Ningeok. Ningeok told the officers that Ahvakana and his girlfriend, Ella Black, were staying with Ahvakana's sister at the trailer next door.
At this point, the officers believed Ahvakana was the suspect in two assaults. The officers approached the trailer with guns drawn and Enderle knocked on the door, but no one answered. Enderle and Smith tried to break the door in, but were unsuccessful. Ella Black eventually came to the door, naked and wrapped in a blanket. Through the window, Sergeant Gutierrez could see that Black had cuts on her face and blood on her hair, face, and neck. When Black opened the door, he observed that she was crying and shaking. Black told the officers that Ahvakana was not there, but they did not believe her. The police entered the residence. Officer Enderle searched the back bedroom and found Ahvakana hiding in a closet.
Ahvakana was charged with attempted first-degree murder,
Warrantless entries of a residence are unreasonable under the Fourth Amendment unless the State proves by a preponderance of the evidence that the police conduct fell within a recognized exception to the warrant requirement.
This three-prong test was adopted from a New York Court of Appeals case, People v. Mitchell.
In Gibson II, the police responded to a 911 call placed by a woman who reported that a man was threatening to stab her in the head.
Gibson appeared in the doorway of the trailer and the officers ordered him outside.
The supreme court ruled that the entry and search of the trailer were justified by an ongoing emergency.
The court then declared the following rule:
In this case, viewing the facts in the light most favorable to the superior court's ruling,
When Black finally came to the door, Sergeant Gutierrez observed through the window that she had cuts and blood on her face and that she was naked except for a blanket. When she opened the door, Gutierrez saw that she was shaking and crying. Black denied that Ahvakana was in the house, but Gutierrez believed, based on his observation and his past experience with victims of domestic violence, that she might be lying. He testified that, given these circumstances, he was concerned about Black's continued safety, the officers' safety, and the safety of anyone else who might still be in the trailer.
Officer Enderle likewise testified:
In Gibson II, the supreme court held that the first prong of the Gallmeyer test — the prong requiring the police to 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 — is satisfied if the police have good reason to believe there might be someone injured on the premises.
In this case, the police had reason to believe Ahvakana was still inside the trailer, that Black might be in serious danger, and that there might be other victims. The police had been told that Ahvakana shared the trailer with both Black and his sister, and the police confirmed the address with dispatch. A neighbor had just reported a man yelling and a woman crying and screaming in the vicinity. Ahvakana had been implicated in a serious assault earlier that morning. And Ahvakana's girlfriend, Black, responded to the door of the trailer with fresh blood on her face, wearing only a blanket. Given these facts, we have no difficulty concluding that the first prong of the Gallmeyer test was satisfied in this case.
Ahvakana also argues that the State failed to prove the second prong of the Gallmeyer test, which requires that the search not be primarily motivated by the intent to arrest a person or seize evidence. But Sergeant Gutierrez testified that he "[d]idn't know if [Black] was by herself or there [were] other ... family members [inside the trailer]." He said he was concerned for Black's safety and for the safety of the responding officers. Officer Enderle likewise testified that the police "wanted to clear the house and make sure there wasn't anybody else injured." The superior court could reasonably conclude that when the police entered the trailer, their primary aim was not to initiate or further a criminal prosecution, but to ensure the safety of Black and any other victims who might be inside the residence.
The third prong of the Gallmeyer test requires the police to have "some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched."
Ahvakana also raises a number of Fourth Amendment challenges to the entry and search that he did not advance in the superior court. We conclude that these claims were not preserved, and also that they have no merit.
Ahvakana also challenges the police seizure of bloody clothing inside the trailer. Judge Erlich found that Black consented to the seizure of the clothing. We conclude that we need not decide that issue, because the police were authorized to seize evidence of a crime that they observed in plain view.
Under Alaska law, a search must satisfy three requirements to fall within the plain view doctrine: (1) the initial intrusion that afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been immediately apparent.
We acknowledge that the United States Supreme Court has held that, under the Fourth Amendment, the warrantless seizure of evidence in plain view is allowed even if the discovery of the evidence was not inadvertent.
In superior court, Ahvakana moved under Criminal Rule 14 for severance of the fourth-degree assault charge from the attempted murder and other charges.
On appeal, Ahvakana argues that the superior court should have granted his motion to sever the charges for a different reason that he did not advance in superior court: because the evidence of his fourth-degree assault on Black prejudiced his alibi defense to the felony charges involving Kaleak. Because Ahvakana did not raise this claim below, he must show plain error.
At Ahvakana's trial, Black testified that Ahvakana was not at Kaleak's residence when the attack on Kaleak occurred. Ahvakana argues that the evidence that Black lied to protect him from conviction on the charge that he committed a misdemeanor assault against her later that day undermined the credibility of Black's testimony that he had an alibi to the felony charges. He argues that he was therefore unfairly prejudiced by joinder.
If evidence of joined charges would be cross-admissible if the charges were tried separately, "the defendant is hard-pressed to show actual prejudice from the failure to sever, since the evidence would have been admitted even if the judge had granted separate trials."
Ahvakana has not shown how this evidence prejudiced his trial on the felony charges, apart from its legitimate tendency to undermine the credibility of his defense. Furthermore, joinder of the charges was appropriate because the offenses were related, took place close in time, and involved overlapping evidence.
We AFFIRM Ahvakana's convictions.
