I.General Consideration

A.In General

Pluralistic nature of society. —

The United States of America, and Alaska in particular, reflect a pluralistic society, grounded upon such basic values as the preservation of maximum individual choice, protection of minority sentiments, and appreciation for divergent lifestyles. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Duty to enforce federal constitutional law. —

The Alaska supreme court is obliged to enforce national minimal constitutional standards required by the U.S. supreme court’s interpretations of the 14th amendment. State v. Browder, 486 P.2d 925 (Alaska 1971).

It would be an abdication of the Alaska supreme court’s constitutional responsibilities to look only to the U.S. supreme court for guidance. State v. Browder, 486 P.2d 925 (Alaska 1971).

Development of additional constitutional rights. —

The Alaska supreme court is free, and it is under a duty, to develop additional constitutional rights and privileges under the Alaska Constitution if it finds such fundamental rights and privileges to be within the intention and spirit of Alaska’s local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of Alaska’s constitutional heritage. The Alaska supreme court need not stand by idly and passively waiting for constitutional direction from the highest court of the land. Instead, it should be moving concurrently to develop and expound the principles embedded in Alaska constitutional law. State v. Browder, 486 P.2d 925 (Alaska 1971).

The supreme court is under a duty to develop additional constitutional rights and privileges under the Alaska Constitution if it finds such fundamental rights and privileges to be within the intention and spirit of the Alaska local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Effect of decisions of U.S. Supreme court. —

The Alaska supreme court is not bound in expounding the Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution. State v. Browder, 486 P.2d 925 (Alaska 1971).

While some of the terms of this section parallel the language of various federal constitutional provisions, the supreme court has repeatedly held that this court is not obliged to interpret the state constitution in the same manner as the supreme court of the United States has construed parallel provisions of the federal constitution. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Purpose of equal protection clause. —

The equal protection clause was designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that is often characterized in the most praiseworthy legislation. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Inherent and natural rights of all persons. —

This section affirms that all persons in the State of Alaska are granted certain inherent and natural rights. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Borough was not a “person” and therefore could not assert due process or equal protection claims against its creator, the state. The purpose of the Alaska due process and equal protection clauses is to protect people from abuses of government, not to protect political subdivisions of the state from the actions of other units of state government. Kenai Peninsula Borough v. State, Dep't of Cmty. & Reg'l Affairs, 751 P.2d 14 (Alaska 1988).

Boroughs are not entitled to equal protection under the Alaska Constitution. Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997).

Principle that all men are equal before the law. —

This constitutional guarantee of equal treatment, like the equal protection clause of the federal constitution, is the embodiment of the fundamental principle that all men are equal before the law. Leege v. Martin, 379 P.2d 447 (Alaska 1963); Nichols v. State, 425 P.2d 247 (Alaska 1967).

The guarantee of equal treatment under the law contained in the federal and state constitutions is the embodiment of the fundamental principle that all men are equal before the law. It is a prohibition against laws which, in their application, make unjust distinctions between persons. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Provision of benefits by state. —

State’s decision to provide benefits to people who choose to exercise a constitutional right does not invariably require it to provide equal benefits to those who decline to exercise the right. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

Broader protection than federal counterpart. —

Alaska’s equal protection and due process clauses confer broader protection than do their federal counterparts. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Analysis of equal protection claims under the federal constitution is, if anything, more forgiving than the approach that the Supreme Court of Alaska uses under the Equal Rights Clause of the Alaska Constitution; thus, where an ordinance, which exempted from taxation the first $10,000 of residential property used as the owner’s permanent place of residence, did not violate the state Equal Rights Clause, the federal Equal Protection Clause was also not violated. Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Analytic distinction between arguments under Alaska Const., art. VII, § 1 and equal protection arguments. See Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Alaska’s constitution has no privileges and immunities clause. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Standards applicable to privileges and immunities clause. —

Same standards applied to privileges and immunities clause as to equal protection clause. See Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

A discrimination between residents and nonresidents based solely on the object of assisting the one class over the other economically cannot be upheld under either the privileges and immunities or equal protection clauses. While the former applies to “citizens” and the latter to “persons,” both are aimed at preventing invidious discrimination. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

The supreme court is held to a standard of vigilance in the matter of the protection of an individual’s constitutional liberties. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Protection of personal liberty cannot be left to depend upon the will of the majority for those are antithetical concepts. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Freedom from disparate taxation is not a federally protected fundamental right for the purpose of equal protection analysis under the 14th amendment; therefore, the supreme court analyzed the tax law under the Alaska general standard of equal protection. Williams v. Zobel, 619 P.2d 422 (Alaska 1980).

Payment of taxes is “corresponding obligation”. —

One of the “corresponding obligations” of all persons to the people and the state is that of paying taxes should the legislature impose them. Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

Retroactive changes in Medicaid eligibility rules. —

The legislature’s retroactive change to Medicaid eligibility rules was valid and the application of the rules did not violate an applicant’s constitutional right to equal protection. Pfeifer v. State, 260 P.3d 1072 (Alaska 2011).

Provisions governing sale of alcoholic beverages. —

The differing penalty provisions of AS 04.16.200 , governing the sale of alcoholic beverages by unlicensed persons, do not violate equal protection, because the legislature can rationally decide to punish more severely the unauthorized sale of alcoholic beverages in communities that have affirmatively expressed their desire to prohibit the sale of alcohol through a local option election. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Mere errors of judgment of officials do not amount to unconstitutional discrimination, and the good faith of such officers will be presumed. Douglas v. Glacier State Tel. Co., 615 P.2d 580 (Alaska 1980).

Prerequisites for valid claims. —

For claims under Alaska Const., art. I, §§ 1 and 3 to be valid, there must be a showing of a link between the organization’s allegedly discriminatory conduct and the governmental involvement which is sufficiently strong to indicate that the state is, in effect, a joint participant in the challenged activity. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

“State action” is a necessary predicate to application of Alaska Const., art. I, §§ 1 and 3. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

Insufficient evidence to satisfy state action requirement. —

Evidence was insufficient to establish the requisite nexus between the conduct of the state and the Jaycees’ membership policies which exclude women as full members, and therefore the state action requirement was not satisfied. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

Standards of supreme court review. —

See State v. Ostrosky, 667 P.2d 1184 (Alaska 1983); Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264 (Alaska 1984).

Alaska Department of Revenue’s decision to grant a permit to a nonprofit organization’s operation of a free bicycle loan program that was supported by gaming proceeds survived rational basis scrutiny; rational basis was the appropriate level of scrutiny. Roberts v. State, 162 P.3d 1214 (Alaska 2007), cert. denied, 552 U.S. 1101, 128 S. Ct. 924, 169 L. Ed. 2d 732 (U.S. 2008).

Certain corporations considered “persons”. —

Corporations which have been granted permission to do business within a state are considered to be “persons” afforded protection under the equal protection clause. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

The term “liberty” is an illusive concept, incapable of definitive, comprehensive explication. Yet at the core of this concept is the notion of total personal immunity from governmental control: The right “to be let alone.” Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Court to enjoin offending administrative activity. —

When a court finds that an administrative agency is enforcing its regulations in a way which violates equal protection, it should enjoin the offending activity. Herrick's Aero-Auto-Aqua Repair Serv. v. State, DOT & Pub. Facilities, 754 P.2d 1111 (Alaska 1988).

Construction with AS 23.10.110 . —

Even where the legislature applied prospectively an amendment to AS 23.10.110 allowing a good faith defense to the award of liquidated damages, the distinction created between employers who failed to pay overtime before and after the effective date was not discriminatory, was based on a rational decision by the legislature, and was not a violation of equal protection rights. Henash v. Ipalook, 985 P.2d 442 (Alaska), cert. denied, 528 U.S. 964, 120 S. Ct. 399, 145 L. Ed. 2d 311 (U.S. 1999).

B.Equal Protection Tests

Laws making unjust distinctions. —

This section is a prohibition against laws which, in their application, make unjust distinctions between persons. Leege v. Martin, 379 P.2d 447 (Alaska 1963); In re Brewer, 430 P.2d 150 (Alaska 1967).

The guarantee of equality of treatment prohibits legislation which denies to one group of persons the enjoyment of certain rights which are afforded to another group, when, considering the purpose of the legislation, there is no reasonable basis for not treating both groups the same. Leege v. Martin, 379 P.2d 447 (Alaska 1963).

The requirements of equal protection amount to a prohibition of laws which, in their application, make unjust distinctions between persons. If a rational basis for a classification is reasonably apparent, there is no denial of equal protection. It is elementary that the power to define crimes and fix punishments rests in the legislature. In the performance of that function, that body is to use the discretion lodged in it, and not be confined by narrow or unduly restrictive limits. The supreme court cannot say that a legislative judgment was unreasonable if it bears a rational connection to a legitimate public purpose. So long as a legislative classification is not based upon an arbitrary or unjustifiable distinction and does not invidiously discriminate between two groups, there is no denial of equal protection. Alex v. State, 484 P.2d 677 (Alaska 1971).

Meaning of equal protection. —

The demands of equal protection do not require that there be perfect equality and uniformity. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Equal protection, even under Alaska’s stricter standard, does not demand perfection in classification. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

Equal protection does not mean that the entire field of governmental action be covered by one legislative enactment. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Equal protection means only that a rational basis for a classification reasonably may be conceived. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Because equal protection does not require the state to treat all individuals the same as it treats itself, the Alaska Victims’ Rights Act of 1991 is not vulnerable to a constitutional attack under Alaska’s equal protection clause. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

As to traditional rational basis test and its application. —

See Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

Growing dissatisfaction with equal protection tests. —

There is growing dissatisfaction with the two-tiered “rational basis” and “compelling state interest” tests, the use of each depending on whether or not the right sought to be regulated was fundamental in a constitutional sense or involved a suspect classification. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); State v. Erickson, 574 P.2d 1 (Alaska 1978).

Rational basis test as articulated in State v. Wylie. —

Under the rational basis test, as articulated in State v. Wylie , 516 P.2d 142 (Alaska 1973), in order for a classification to survive judicial scrutiny, the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977); State v. Erickson, 574 P.2d 1 (Alaska 1978); Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979); Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Application of rational basis test. —

The more flexible and more demanding rational basis test will be applied in future cases if the compelling state interest test is found inappropriate. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); State v. Erickson, 574 P.2d 1 (Alaska 1978); Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Under Alaska’s constitutional equal protection provisions, the supreme court has adopted a stricter “rational basis” equal protection test for those statutes not affecting fundamental rights. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Single test may be used in applying Alaska Constitution. —

In cases involving federal constitutional questions, where fundamental rights and suspect categories are at issue, the supreme court is bound by the “compelling state interest” standard unless that test is altered by the United States supreme court. In applying the Alaska Constitution, however, there is no reason why it cannot use a single test. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The supreme court applies a single test which is nevertheless flexible and dependent upon the importance of the rights involved. Based on the nature of the right, a greater or lesser burden is placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

In order for a classification to be valid under Alaska’s equal protection test, it must be reasonable, not arbitrary, and must bear a fair and substantial relation to a legitimate governmental objective, and depending on the importance of the individual’s interest involved, a greater or lesser burden will be placed on the state to show this fair and substantial relationship. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Cases applying compelling interest standard. —

See Breese v. Smith, 501 P.2d 159 (Alaska 1972); Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

The availability of less restrictive alternatives does not automatically invalidate a statute when fundamental rights are not involved. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Private versus commercial wharves on public land. —

Department of Natural Resources did not deny equal protection by compelling commercial landowners who constructed wharves to enter into lease agreements while imposing no similar requirement upon private landowners. Riparian landowners using state land to construct wharves for private use are not similarly situated to those using state land to construct wharves for commercial use, and the legislature expressed an intention that the DNR maximize the return on the leasing of state land. State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Inquiry in equal protection claims. —

The inquiry in claims that equal protection has been denied is whether there has been a deliberate and intentional plan to discriminate based on some unjustifiable or arbitrary classification. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979).

The supreme court must assess equal protection claims under the Alaska Constitution by considering the purpose of the statute, the legitimacy of that purpose, the means used to accomplish the legislative objective, and then determine whether the means chosen substantially further the goals of the enactment. It must also balance the state interest in the chosen means against the nature of the constitutional right which is at issue. Plas v. State, 598 P.2d 966 (Alaska 1979).

Regarding equal protection challenges under the state constitution, the supreme court must initially look to the purpose of the statute, viewing the legislation as a whole, and the circumstances surrounding it. It must be determined that this purpose is legitimate, that it falls within the police power of the state. Examining the means used to accomplish the legislative objectives and the reasons advanced therefore, the court must then determine whether the means chosen substantially further the goals of the enactment. Finally, the state interest in the chosen means must be balanced against the nature of the constitutional right involved. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

The State v. Erickson , 574 P.2d 1 (Alaska 1978), approach to state equal protection analysis is essentially one of balancing. On the one hand, the court must assess (1) the legitimacy of the state purpose purportedly furthered by the provision, and (2) the extent to which the relationship between the end (the asserted purpose) and the means (the classification chosen) is fair and substantial. On the other hand, the court is to determine the nature and the extent of the infringement of individual rights allegedly caused by the classification. Then the balance is struck. Williams v. Zobel, 619 P.2d 448 (Alaska 1980), rev'd, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Earlier version of AS 44.41.035(b) , which only required DNA samples from those convicted of felonies against a person, while at the same time not requiring DNA samples from people convicted of other equally serious felonies, did not violate equal protection requirements. Nason v. State, 102 P.3d 962 (Alaska Ct. App. 2004).

Minimum scrutiny review. —

Rape victim’s claim that the cap on noneconomic damages set forth in AS 09.17.010 violated her rights under this section was subject to minimum scrutiny review where restriction did not limit or block the victim’s right to access the courts and noneconomic damages did not provide for basic needs. C.J. v. Dep't of Corr., 151 P.3d 373 (Alaska 2006).

Allocation of law enforcement services. —

State of Alaska does not violate the equal protection rights of residents of “off-road” Native communities through its allocation of law enforcement services. While off-road communities receive fewer certified police officers, they are not situated similarly to the on-road communities; trooper allocation statutes and regulations are facially race-neutral and there is no intent to discriminate. Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005).

Applied in

Hanrahan v. City of Anchorage, 377 P.2d 381 (Alaska 1962); King v. Alaska State Hous. Auth., 512 P.2d 887 (Alaska 1973); Keith v. State, 612 P.2d 977 (Alaska 1980); Hemphill v. State, 673 P.2d 888 (Alaska Ct. App. 1983); Vienna v. Scott Wetzel Servs., 740 P.2d 447 (Alaska 1987); Area G Home & Landowners Org. v. Anchorage, 927 P.2d 728 (Alaska 1996).

Quoted in

Hoffman v. State, 404 P.2d 644 (Alaska 1965); Reeves v. State, 411 P.2d 212 (Alaska 1966); Roderick v. Sullivan, 528 P.2d 450 (Alaska 1974); Loomis Elec. Protection v. Schaefer, 549 P.2d 1341 (Alaska 1976); Sheley v. Alaska Bar Ass'n, 620 P.2d 640 (Alaska 1980); Pharr v. Fairbanks N. Star Borough, 638 P.2d 666 (Alaska 1981); Fermoyle v. State, 638 P.2d 1320 (Alaska Ct. App. 1982); Public Safety Employees Ass'n v. State, 658 P.2d 769 (Alaska 1983); Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256 (Alaska 1988); Luedtke v. Nabors Alaska Drilling, 768 P.2d 1123 (Alaska 1989); Kenai Peninsula Borough v. Cook Inlet Region, 807 P.2d 487 (Alaska 1991); Kenai Peninsula Borough v. Tyonek Native Corp., 807 P.2d 502 (Alaska 1991); Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992); Lawson v. Helmer, 77 P.3d 724 (Alaska 2003); Myers v. Alaska Psychiatric Inst., 138 P.3d 238 (Alaska 2006); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019); State v. Arctic Vill. Council, 495 P.3d 313 (Alaska 2021).

Cited in

Sedlock v. Sedlock, 1 Alaska L.J. No. 1, p. 11 (Jan. 1963); Thompson v. State, 496 P.2d 651 (Alaska 1972); Gray v. State, 525 P.2d 524 (Alaska 1974); Silides v. Thomas, 559 P.2d 80 (Alaska 1977); Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Hutcherson v. State, Dep't of Labor, 612 P.2d 1017 (Alaska 1980); Northern Adjusters, Inc. v. Dep't of Revenue, 627 P.2d 205 (Alaska 1981); Ketchikan Gateway Borough v. Breed, 639 P.2d 995 (Alaska 1981); D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Noll v. Alaska Bar Ass'n, 649 P.2d 241 (Alaska 1982); Kentopp v. Anchorage, 652 P.2d 453 (Alaska 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Koteles v. State, 660 P.2d 1199 (Alaska Ct. App. 1983); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); J.E.C. v. State, 681 P.2d 1358 (Alaska Ct. App. 1984); Adams v. Pipeliners Union 798, 699 P.2d 343 (Alaska 1985); Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986); McCutcheon v. State, 746 P.2d 461 (Alaska 1987); Gilbert v. Dept. of Fish & Game, Bd. of Fisheries, 803 P.2d 391 (Alaska 1990); Alaska Commercial Fisheries Entry Comm'n v. Russo, 833 P.2d 7 (Alaska 1992); Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997); Brady v. State, 965 P.2d 1 (Alaska 1998); Kellis v. Crites, 20 P.3d 1112 (Alaska 2001); Evans v. State, 56 P.3d 1046 (Alaska 2002); Pease v. State, 54 P.3d 316 (Alaska Ct. App. 2002); State v. Metcalfe, 110 P.3d 976 (Alaska 2005); Miller v. Safeway, Inc., 170 P.3d 655 (Alaska 2007); Squires v. Alaska Bd. of Architects, 205 P.3d 326 (Alaska 2009); Manning v. Dep't of Fish & Game, 355 P.3d 530 (Alaska 2015).

II.Application

A.In General

AS 09.10.055 , six-year statute of repose on suits against design professionals, violates equal protection clause of the Alaska Constitution because the statute bears no substantial relationship between exempting design professionals from liability, and shifting liability for defective design and construction to owners and material suppliers, and the goal of encouraging construction. Turner Constr. Co. v. Scales, 752 P.2d 467 (Alaska 1988).

AS 09.60.060 , which requires an out-of-state plaintiff to post a bond for anticipated costs and attorney fees as a condition of maintaining suit in an Alaska court violates equal protection of law under the Alaska constitution because it unreasonably restricts nonresident access to Alaska courts. Patrick v. Lynden Transp., 765 P.2d 1375 (Alaska 1988).

Licenses. —

It is not a violation of equal protection to deny license renewals to those convicted of violating state, but not federal, hunting and guiding statutes, since those who are convicted of violating state laws have committed a different crime from those convicted of parallel federal offenses. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

The municipality of Anchorage’s exclusion of the Alaska Gay Coalition from the 1976-77 “Anchorage Blue Book,” a government publication, denied that organization its constitutional rights to freedom of speech and association and equal protection of the law. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Anchorage Blue Book,” a municipality publication intended to provide a vehicle for the dissemination of information regarding public and private services and organizations in the Anchorage area, was a public forum to which the Gay Coalition had a right of equal access. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Blue Book” was designed for and dedicated to expressive and associational use and therefore, once it was opened for such use, the government could not deny appellant access to it based solely on the content of its beliefs. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forum doctrine stated. —

Once there exists a government-controlled forum for the dissemination of information and expression of ideas, the government cannot deny equal access to that forum based on content alone. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forums are not designated such because they are designed to provide a vehicle for partisan expression; rather, they are so called because they are appropriate arenas for people to exercise their constitutional rights of expression and association. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Regulation, not censorship, allowed. —

While the government may reasonably regulate expressive activity, it may not censor such activity. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Validity of distinguishing residential from recreational users. —

Disparate treatment of residential and recreational users in the context of granting preference rights under AS 38.05.035 does not violate equal protection guarantees. Reichmann v. State, Dep't of Nat. Res., 917 P.2d 1197 (Alaska 1996).

Provision of the 1972 amendment to former AS 42.10.130(d) limiting the grant of expanded intrastate routes to carriers according to residency violated the equal protection clauses of the United States and Alaska constitutions. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

Benefiting economic interests of residents over nonresidents is not a purpose which may constitutionally vindicate discriminating legislation, and, accordingly, the granting of extended routes based on residency is not rationally justified. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

Distinction between negligent and willful violators. —

AS 46.03.760 and 46.03.790 do not constitute an unreasonable classification whereby negligent violators of the provisions of the Alaska Environmental Conservation Act (AS 46.03) may be punished by a $25,000 fine (now $500 — $100,000 for initial violation and up to $10,000 for each day the violation continues) while willful violators may receive a $1000 fine (now $10,000 for each separate violation) only. Stock v. State, 526 P.2d 3 (Alaska 1974).

Construing former AS 47.40.040 to preclude retroactive cost settling. —

Construing former AS 47.40.040 , which provided the method of determining the “full cost” of services purchased by the Department of Health and Social Services for persons for whom the state had assumed responsibility, to preclude retroactive cost settling did not deny a party providing such services due process or equal protection of the laws. Alaska Children's Servs. v. Williamson, 606 P.2d 786 (Alaska 1980).

Compensation for personal property taken or damaged by public use. —

Reading this section and § 18 of this article in pari materia, and the generally recognized principle that the constitution and legislative enactments in implementation thereof are to be liberally construed, the supreme court found no clear legislative intent to have been manifested that personal property taken or damaged by public use should not be justly compensated. Stroh v. Alaska State Hous. Auth., 459 P.2d 480 (Alaska 1968).

Compensation requirements for natural disaster. —

Before there could be a finding of a denial of equal protection, it would have to appear that the difference in application of the Alaska Mortgage Adjustment Program between those homeowners covered by it and those excluded from its coverage was the result of a deliberate and intentional plan to discriminate against the latter, or was based upon some unjustifiable or arbitrary classification. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Appeal from land use decision. —

Definition of an aggrieved person in Homer, Alaska, City Code as one who is adversely affected by a land-use decision does not conflict with AS 29.40.050 or AS 29.40.060 . Moreover, the city clerk’s rejection, pursuant to these ordinances, of a notice of appeal submitted by an objector who did not meet the definition of an aggrieved person did not violate the objector’s due process and equal protection rights. Griswold v. City of Homer, 252 P.3d 1020 (Alaska 2011).

Home rule city may prohibit dual position-holding. —

A home rule city may prohibit dual position-holding consistent with equal protection and the right of franchise when the prohibition is narrowly drawn to serve compelling governmental interests. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Home rule charter section which prohibited a person who holds or has held an elective city office from being eligible for appointment to an office or for employment for which a salary is paid by the city until one year has elapsed following the term for which he was elected or appointed, unless an exception is made with the approval of four or more members of the city council, did not violate the Alaska equal protection clause by singling out city employees for a deprivation of fundamental political rights by requiring them to resign their employment prior to assuming a seat on the city council, since the charter section served compelling governmental interests and the means-end relationship between the charter section and those interests was correspondingly close. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Municipal immunity. —

AS 09.65.070(d)(1) , which confers immunity to municipalities for liability arising from safety inspections of private property, does not violate the equal protection clause of the Alaska constitution. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Favored treatment given estates of deceased workers leaving dependents upheld. —

An action for wrongful death, filed pursuant to AS 09.55.580 , is barred by AS 23.30.055 ; the fact that the estates of deceased workers leaving dependents are entitled to favored treatment over the estates of workers leaving no dependents reflects a legislative determination that the former require greater compensation, is entirely reasonable, and does not deprive the estate of a worker leaving no dependents of equal protection of the law. Taylor v. Southeast-Harrison W. Corp., 694 P.2d 1160 (Alaska 1985).

Rape victim’s equal protection rights not violated by cap on noneconomic damages. —

Cap on noneconomic damages set forth in AS 09.17.010 did not violate a rape victim’s equal protection rights where the legislature had apparently concluded that large noneconomic damages awards were susceptible to overestimates of the dollar value of a victim’s noneconomic loss, and the legislature could have reasonably concluded that any alternative method of lowering insurance costs would have been less fair than a cap on noneconomic damages. C.J. v. Dep't of Corr., 151 P.3d 373 (Alaska 2006).

Application to abortion initiative. —

Alaska Const. art. I, § 1 does not obligate the State of Alaska to prohibit all abortions because (1) the U.S. Supreme Court has held ‘person,’ as used in the Fourteenth Amendment, does not include the unborn, so, even if a state had a constitutional duty to protect all persons’ natural right to life, that duty does not extend to the unborn; (2) the Alaska Constitution cannot guarantee the unborn limitless protections that would broadly ban abortions, in violation of the U.S. Supreme Court’s decision in Roe v. Wade. Desjarlais v. State, 300 P.3d 900 (Alaska 2013).

Local land sale lottery ordinance was unconstitutional insofar as it required participants to have been residents of the borough for one year preceding their applications and to the extent that it granted a five percent reduction in the sale price of a parcel for each year of residency in the borough, up to a maximum reduction of 50 percent. Gilman v. Martin, 662 P.2d 120 (Alaska 1983).

Provision of an ordinance regulating physical culture studios and massage parlors to prohibit intentional display or touching of genitals was not a violation of equal protection; although employees of bars and nightclubs are permitted to expose their genitals, there is a reasonable relation between the objective of controlling prostitution and prohibiting exposure or touching of genitals. The distinction between massage parlors and physical culture studios on the one hand, and other businesses where employees are allowed to expose their genitals, has a fair and substantial relationship to the purpose of the ordinance. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Provision of an ordinance regulating physical culture studios and massage parlors which required closure from 2 a.m. to 6 a.m. did not violate appellants’ right to equal protection on the ground that other businesses in the proximity were allowed to remain open all night since the massage parlors were generally found in more residential areas and presented distinct problems through flashing neon signs, increased noise and traffic, and there was testimony that substantial prostitution activities occurred during the period of 2 a.m. to 6 a.m. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Operation of Alaska Public Utilities Commission. —

The Alaska Public Utilities Commission’s failure to adopt cost allocation regulations did not violate the Trans-Alaska pipeline owners’ right to due process under the United States or Alaska Constitutions. Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711 P.2d 1170 (Alaska 1986).

Classification of medical malpractice defendants. —

As the classification between negligent doctors and other tort defendants in AS 09.55.548(b) , allowing reduction of medical expenses paid by prevailing malpractice plaintiff’s insurer from the jury’s medical expenses award, bears a fair and substantial relation to attainment of the legitimate government objective of lowering the cost of such actions, it does not violate equal protection rights. Reid v. Williams, 964 P.2d 453 (Alaska 1998).

Medicaid assistance. —

The Department of Health and Social Services’ regulation which selectively denied Medicaid assistance to poor women who medically required abortions violated Alaska’s constitutional guarantee of equal protection. Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001).

Health care facility certification requirements. —

AS 18.07.111 does not violate equal protection under Alaska Const. art. I, § 1 because it does not treat similarly situated entities differently; it does not distinguish between radiologists and other specialists in defining health care facilities that are required to obtain a certificate of need. Bridges v. Banner Health, 201 P.3d 484 (Alaska 2008), modified, — P.3d — (Alaska 2009) (memorandum decision).

Child custody. —

There was no evidence of a deliberate plan to discriminate against the mother on some unjustifiable basis or arbitrary classification and there was no basis to reverse any of the trial court’s rulings on equal protection grounds regarding the support, allocation of the federal tax exemption for a child, and visitation as between the parents. Skinner v. Hagberg, 183 P.3d 486 (Alaska 2008).

Alaska Statutes 44.21.410 did not violate the father's equal protection rights because the differences between parents facing opposing parties represented by counsel provided by a public agency and those represented by private counsel justified their differential treatment. Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Denial of death benefits to unmarried cohabitant. —

Unmarried cohabitant who was not eligible for death benefits after the work-related death of her long-term partner was not deprived of her constitutional rights; because the act’s spousal death benefit provision bore a close and substantial relationship to furthering a legitimate state interest, it did not violate her constitutional right to equal protection. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

B.Attorneys

Rule governing awards of attorney’s fees. —

Civil R. 82, under which awards of attorney’s fees to defendants were made, did not violate the due process and equal protection clauses of the state and federal constitutions, insofar as it allowed attorney’s fees to be awarded against plaintiffs who litigated good-faith claims, since such argument completely ignored the financial burden that such plaintiffs imposed upon those who were forced to defend against such actions in equal good-faith. Stepanov v. Gavrilovich, 594 P.2d 30 (Alaska 1979).

A court may impose minimum standards of dress for the attorneys who appear before it. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

While a court cannot adopt a dress code for attorneys who appear before it which is unduly rigid or which attempts to dictate matters of taste and esthetic preference, the requirement of merely wearing a coat and tie is a reasonable one. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

Disciplining of attorney by supreme court. —

The exercise by the supreme court of the power to discipline an attorney does not contravene any of the provisions of either the federal or state constitution. In re Mackay, 416 P.2d 823 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S. Ct. 1907, 16 L. Ed. 2d 1016 (U.S. 1966).

Alaska Bar Association bylaw classifying members who may apply for inactive membership did not violate this section. In re Moody, 524 P.2d 1261 (Alaska 1974).

New standards for admission to bar need not be retrospective. —

When the legislature adopts new standards for admission to the bar, it is not obliged by the requirements of equal protection of the laws to make its legislation retrospective so as to encompass situations which existed prior to the time the legislation becomes effective. To make the legislation prospective in operation only satisfies constitutional requirements of equal protection so long as the law in operating prospectively does not invidiously discriminate between different classes of persons. In re Brewer, 430 P.2d 150 (Alaska 1967).

Regrading procedures on bar examination. —

Regrading of the California essay portion of the Alaska Bar Exam by Alaska graders, where California graders gave an overall score of 65 — 70 percent, constitutes a reasonable procedure even though no similar regrading procedure exists for Alaska essays; the procedure is consistent with the Board of Governors of the Alaska Bar Association’s broad grant of authority to examine and grade applicants for admission to the Alaska Bar, and satisfies the requirements of equal protection. In re Butterfield, 581 P.2d 1109 (Alaska 1978).

Graduation from ABA-approved law school. —

Alaska Bar Rule 2, § 1(b) does not deny equal protection of the laws, since the setting of minimum standards for the practice of law is the overall purpose of the rule, and the requirement of graduation from an American Bar Association-approved law school does bear a fair and substantial relation to that purpose. In re Urie, 617 P.2d 505 (Alaska 1980).

The irrebuttable presumption doctrine is of questionable vitality in determining whether Alaska Bar Rule 2, § 1(b), which requires that a bar applicant be a graduate of an American Bar Association-accredited law school, violates this section, and any matters to which the doctrine can be applied can be analyzed just as readily by using the flexible equal protection analysis which the supreme court employed in Isakson v. Rickey , 550 P.2d 359 (Alaska 1976), and State v. Erickson , 574 P.2d 1 (Alaska 1978), since any legislative classification creates a conclusive presumption of some sort with respect to excluded classes. In re Urie, 617 P.2d 505 (Alaska 1980).

C.Criminal Matters

Provisions restricting possession of concealable firearms by former felons. —

The affirmative defenses set out in AS 11.61.200(b) to the charge of misconduct involving weapons in the first degree are not violative of equal protection, as that section is a reasonable and rational attempt to protect the public from former felons possessing concealable firearms. McCracken v. State, 743 P.2d 382 (Alaska Ct. App. 1987).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), discussing in depth the history of the insanity defense in Alaska.

Constitutionality of bringing charge under more specific section. —

There was no equal protection or due process violation in charging defendant with delivery on the basis of evidence of an attempt to deliver since the more specific statute on delivery of cocaine controls over the general attempt statute and therefore only one punishment applied. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Failure to timely raise an equal protection argument in a criminal case constitutes a waiver of that argument and the court of appeals will not consider it. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

When the elements of one crime overlap with the elements of another crime, or when the elements of one offense encompass the elements of a lesser included offense, some discretion inevitably accrues to the prosecutor, who may tailor the charge to fit the offense, and so long as the elements necessary to prove either of two offenses are not identical, courts have upheld the statutes and allowed the prosecutor charging flexibility. Bell v. State, 598 P.2d 908 (Alaska 1979).

The mere fact that a particular defendant could have been charged with either a felony or misdemeanor does not violate equal protection, so long as the elements necessary to prove the felony and the misdemeanor are different. Holton v. State, 602 P.2d 1228 (Alaska 1979).

The misdemeanor and felony provisions contained in the former joyriding statute, AS 28.35.010(a) [see now AS 11.46.484 ], did not punish the same criminal conduct, since a felony violation under former AS 28.35.010(a) required the state to prove something more than a misdemeanor violation: the prosecution had to show that the offender had been at least twice convicted of misdemeanor joyriding. Therefore, the fact that the prosecutor had the discretion to proceed against a third-time offender as either a felon or a misdemeanant did not amount to a violation of equal protection, as the prosecutor’s discretion could be exercised only in accordance with the legislative mandate requiring the state to prove that the offender was deserving of more severe punishment because of his multiple offenses. Bell v. State, 598 P.2d 908 (Alaska 1979).

Although a former statute made contributing to the delinquency of a child both a misdemeanor and a felony, there was no denial of equal protection where the elements of proof for a misdemeanor conviction were not the same as the elements of proof for a felony conviction. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Statute prohibiting soliciting or procuring for purpose of prostitution was violative of this section and § 3 of this article, insofar as it limited its operation to selling only a female body. Plas v. State, 598 P.2d 966 (Alaska 1979).

Domestic assault accused precluded from return to family residence. —

AS 12.30.027(b) is unconstitutional in that it deprives an important liberty interest of a husband, accused of assaulting his wife and still awaiting trial after more than two years, by prohibiting his return to the family residence. Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Use of a prior criminal conviction to impeach a defendant’s credibility does not deny him equal protection of the law, does not violate the privilege against self-incrimination, and does not deprive him of a fair and impartial jury. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Prior convictions for presumptive sentencing purposes. —

Interpretation of AS 12.55.145(a)(3) to require that, when an offender is simultaneously convicted of multiple felonies arising out of separate criminal episodes and thereafter commits a new felony, each prior felony must count as a prior conviction for presumptive sentencing purposes does not violate equal protection under the Alaska Constitution. Anderson v. State, 904 P.2d 433 (Alaska Ct. App. 1995).

Cross-examination as to work as prostitute and use of drugs. —

Defendants were not denied due process or equal protection where, in prosecution for possession of heroin, the judge allowed cross-examination of the defendants on whether one of the defendants worked as a prostitute and whether she used drugs and on the other defendant’s alleged illegal earnings, since a napkin containing heroin and police officers’ testimony about the events surrounding the arrests were the basis of defendants’ convictions. Moreau v. State, 588 P.2d 275 (Alaska 1978).

An order requiring an attorney to represent a criminal defendant did not deny him equal protection of the law. Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), overruled, De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Level of representation. —

The equal protection clause does not entitle an indigent defendant to a level of representation commensurate with that provided by the public defender agency and exceeding the constitutional level of competency. Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983).

Protection afforded insanity acquittee. —

Equal protection has been interpreted to require that an insanity acquittee receive essentially the same protection afforded to a person who is civilly committed by reason of insanity, except where there are good reasons for different treatment. State v. Alto, 589 P.2d 402 (Alaska 1979).

Equal protection does not require the same standard of proof and the same burden of proof in cases where there has been an acquittal by reason of insanity as in cases where there has been a civil commitment. State v. Alto, 589 P.2d 402 (Alaska 1979).

Rights of indigent on motion to vacate or set aside sentence. —

Where there is a hearing on an indigent prisoner’s first application to vacate or set aside sentence, such prisoner has the right to have counsel appointed by the court to represent him at such hearing. Nichols v. State, 425 P.2d 247 (Alaska 1967).

The imposition of financial barriers restricting the completeness of a hearing of a motion to vacate sentence of a criminal defendant has no place in the heritage of equal justice under law. Nichols v. State, 425 P.2d 247 (Alaska 1967).

Punishment for crime need not be strictly proportioned to the offense. Green v. State, 390 P.2d 433 (Alaska 1964).

The penalty provision of former AS 11.15.030 did not deprive a defendant of the equal protection of the law, for under that statute all persons convicted of second-degree murder were subject to the same minimum penalty. Green v. State, 390 P.2d 433 (Alaska 1964).

Constitutionality of bail statute. —

AS 12.30.040 does not deny substantive due process or equal protection rights by providing that if a person has been convicted of an unclassified or class A felony, the person may not be released on bail either before sentencing or pending appeal since there is a legitimate basis for the legislative classification. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Although a careful limitation on bail to dangerous convicted persons was rationally related to the legislative purposes contained in AS 12.30.040 of continued appearance and community protection, the selective means instituted by the legislature was not connected with such goals and therefore AS 12.30.040(b) , to the extent that prior to the 1982 amendment it distinguished between violent and dangerous offenders similarly situated, violated this section as well as the equal protection clause of the 14th amendment of the United States Constitution.Griffith v. State, 641 P.2d 228 (Alaska Ct. App. 1982).

Sex offenders. —

The defendant’s equal protection claim failed where he failed to identify any group similarly situated to convicted sex offenders, or argue that convicted sex offenders were treated differently from any such group. Patterson v. State, 985 P.2d 1007 (Alaska Ct. App. 1999), overruled in part, Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Use of hearsay in cases involving crimes against children. —

A statutory classification which permits hearsay from child declarants to be presented to grand juries in sexual abuse cases, but implicitly rejects the use of hearsay in other cases involving crimes against children, does not violate equal protection. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Former AS 11.30.090 did not deny equal protection of the law under either the federal or state constitution. Alex v. State, 484 P.2d 677 (Alaska 1971).

Under former AS 11.30.090, it was a felony for a felon to escape, while it was a misdemeanor for a misdemeanant to escape. This did not amount to an unconstitutionally arbitrary discrimination which bears no reasonable relation to the circumstances of the escape itself. Alex v. State, 484 P.2d 677 (Alaska 1971).

Under former AS 11.30.090, the crime of escape was divided into two classes on the basis of the felony or misdemeanor classification of the crime for which a person was initially incarcerated. All those within each class were subject to identical treatment. Under each class the punishment to be received was not arbitrarily or mandatorily fixed. Rather, the sentencing judge was given a range of discretion to be used in dealing with each offender. Alex v. State, 484 P.2d 677 (Alaska 1971).

It was true that under former AS 11.30.090 the character and nature of an escape were not necessarily the basis upon which the crime is defined and the punishment fixed. However, the nature and method of an escape might well be considered by the judge when he exercised his discretion under the sentencing provisions. Moreover, there was no constitutional necessity for the designation of the crime and the extent of the punishment to be based solely or even in part on the nature of the escape. Alex v. State, 484 P.2d 677 (Alaska 1971).

Former AS 11.71.060 did not deny equal protection of the law. —

Former AS 11.71.060(a)(3) , which established 19 years as the age of majority for the purpose of regulating the possession of marijuana, did not violate the Alaska Constitution’s equal protection guarantee. Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).

Equal protection as applied to state and federal prisoners. —

Where prisoners alleged that their confinement in institutions operated by the Federal Bureau of Prisons (FBOP) was unconstitutional because FBOP conditions were unequal to conditions in institutions operated by the State of Alaska, resolution of their equal protection claims against the State and the FBOP by entering into a settlement agreement did not prevent the transfer of an Alaska prisoner to a non-FBOP facility in Arizona. Cleary v. Smith, 146 P.3d 997 (Alaska 2006), cert. denied, 549 U.S. 1346, 127 S. Ct. 2042, 167 L. Ed. 2d 777 (U.S. 2007).

Greater penalty for escape for felon. —

AS 11.56.310(a)(1)(B) does not violate equal protection even though it provides a greater punishment for a predetention escape from custody by one charged with a felony than one charged with a misdemeanor, since the legislature could reasonably conclude that in such situations a greater potential sentence is needed for deterrence. Maynard v. State, 652 P.2d 489 (Alaska Ct. App. 1982).

Where two felony statutes overlap and provide disparate penalties, conviction of greater felony does not violate the Alaska or federal constitutions. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), reserving decision on the question of a felony statute and misdemeanor statute prescribing exactly the same conduct under the same circumstances.

Conviction of manslaughter rather than criminally negligent homicide. —

Equal protection was not violated by convicting defendant of manslaughter rather than for criminally negligent homicide since there is significant difference in mental state involved. Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985).

AS 12.55.110 would be repugnant to the equal protection clause of both the federal and Alaska constitutions if it were construed as embodying an intended dichotomy between indigent probationers and those who could afford counsel. Alex v. State, 484 P.2d 677 (Alaska 1971).

Hearing on jury communication to judge. —

Where the bailiff failed to deliver a jury deadlock note to the trial judge the judge was precluded from conducting proceedings on the record in defendant’s presence in violation of defendant’s right to due process. Wamser v. State, 652 P.2d 98 (Alaska 1982).

Because defendant did not give up the right to be represented by counsel, defendant's limited co-counsel status—to cross-examine witnesses and to deliver additional closing argument—did not affect defendant's constitutional right to have defendant's attorney present at a hearing when substantive matters about the jury's deadlock were discussed. Defense counsel's decision to be out of contact for less than an hour, with the trial court's tacit approval, was not an invitation to the court to hold proceedings without the attorney. Cunningham v. State, 408 P.3d 1238 (Alaska Ct. App. 2017).

Former AS 33.15.190 was unconstitutional. —

Former AS 33.15.190, which made a parolee subject to the disabilities imposed on prisoners by former AS 11.05.070 , denied parolees the “equal protection of the laws,” in violation of the Alaska and United States constitutions. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Former AS 11.05.070 and former AS 33.15.190 combined to deny a parolee the right to initiate civil suit; such denial of access to the civil courts was a violation of due process and equal protection provisions of the Alaska and United States constitutions. State v. McCracken, 520 P.2d 787 (Alaska 1973).

The state interest in denying parolees the right of access to the civil courts possessed by other persons satisfies neither the “compelling state interest” test applied when a “fundamental right” is at stake, nor the traditional, more lenient “rational basis” test otherwise applicable. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Although the state has a legitimate interest in restricting some activities of parolees, prohibiting a parolee from initiating civil actions has no logical connection with such an interest. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Requiring appeal to court of appeals. —

Requiring that an attorney sanctioned in criminal proceedings first present an appeal to the court of appeals, rather than the supreme court, does not deny him equal protection of the law. Weidner v. State, 764 P.2d 717 (Alaska Ct. App. 1988), cert. denied, 493 U.S. 1019, 110 S. Ct. 717, 107 L. Ed. 2d 737 (U.S. 1990).

Different fees between indigent prisoners and non-prisoners. —

The provisions of AS 09.19.010 , governing filing fees that prisoners must pay to commence litigation against the state, do not violate equal protection, since the legislature had a rational basis for drawing a distinction between indigent prisoners and indigent non-prisoners. George v. State, 944 P.2d 1181 (Alaska Ct. App. 1997).

Statute restricting drug possession in prison. —

The prison contraband statute, AS 11.56.375 , does not violate the equal protection clauses of the United States and Alaska Constitutions, in view of the fact that an inmate’s right to privacy is substantially limited and does not extend to protect the right to possess marijuana in a correctional institution. Cleland v. State, 759 P.2d 553 (Alaska Ct. App. 1988).

Denying mentally ill defendant releases on parole. —

The provision in AS 12.47.050 which denies a defendant the opportunity for furloughs or releases on parole so long as he is mentally ill and a danger to the public does not violate his right to equal protection of the laws. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Charge to grand jury. —

Defendant’s equal protection and due process rights were not violated by a charge given to the grand jury, where the jury was left with the understanding that it should not return an indictment unless it was satisfied that the evidence presented, if unexplained or uncontradicted, established a probability of defendant’s guilt and would therefore warrant, i.e., justify, holding him for trial. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

Juror bias. —

Appellant's equal protection argument based on the new Peña-Rodriguez rule had already been implicitly rejected in his prior appeal where the type of juror bias he claimed he suffered in his criminal trial was not the same as the racially motivated juror bias that resulted in the Peña-Rodriguez exception. Thus, appellant was not entitled under the Alaska equal protection clause to set aside the 2001 dismissal of his postconviction relief application. Larson v. State, — P.3d — (Alaska Ct. App. July 31, 2019), cert. denied, — U.S. —, 141 S. Ct. 120, 207 L. Ed. 2d 1057 (U.S. 2020).

Mandatory parolees denied in-person board appearance. —

Mandatory parolees are not denied equal protection of the laws because they are not permitted to appear before the parole board prior to their release while discretionary parolees are granted the right of an in-person appearance; the purpose of the parole hearing under AS 33.16.130 is to allow the discretionary parolee an opportunity to persuade the board that the parolee should be released on parole, whereas the mandatory parolee must be released on parole at the end of the sentence less time deducted for good conduct. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Statute regarding amenability of juvenile to treatment. —

Where a minor is prosecuted as an adult for one of the felonies listed in AS 47.12.030(a) but is ultimately found guilty of a lesser offense, the provision imposing on the minor the burden of proving that he or she is amenable to treatment as a juvenile does not violate equal protection. State v. Ladd, 951 P.2d 1220 (Alaska Ct. App. 1998).

Mandatory use of seatbelt. —

Alaska’s seatbelt law, AS 28.05.095(a) , does not infringe upon the rights of personal liberty, autonomy, and privacy guaranteed by this provision and Alaska Const. art. I, §§ 22 and 14, as the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

D.Drugs and Alcohol

Legislative controls to public health. —

The legislature need not apply equal controls to equal threats to the public health. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Assuming some degree of control of marijuana use is permissible, it does not follow that the political obstacles to placing controls on alcohol and tobacco should render the legislature unable to regulate other substances equally or less harmful. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Cocaine is not unconstitutionally classified as a narcotic drug by Alaska statute. Johnson v. State, 577 P.2d 230 (Alaska 1978).

The classification of cocaine with narcotics is not violative of equal protection or due process. State v. Erickson, 574 P.2d 1 (Alaska 1978).

There is ample, respectable scientific evidence of harm or potential harm from the use of cocaine to sustain the legislature’s inclusion of cocaine in its classification of narcotics under the provisions of former AS 17.10 [see now AS 11.71 and AS 17.30], rather than AS 17.12. Thus, the legislative goal is legitimate, and the classification at issue is substantially related to that goal. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The legislature specifically intended to regulate the use and possession of cocaine, regardless of its particular pharmacological status, and the purpose of former AS 17.10 is to regulate drugs that have a potential for harm to health and welfare. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The inclusion of cocaine with opiates bears a fair and substantial relationship to what the supreme court has determined to be the legislative purpose. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Former classification of marijuana. —

The drugs with which marijuana was grouped in former AS 17.12.150(3) were not so different from marijuana that yet another classification had to be set up for marijuana alone. Ravin v. State, 537 P.2d 494 (Alaska 1975).

That marijuana was the least harmful of the drugs covered by former AS 17.12.150(3), alone, was not sufficient to make the classification of marijuana with the other drugs covered by former AS 17.12.150(3) irrational. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Negligence standard for liquor sellers. —

The Dram Shop Act’s requirement (AS 04.21.020 ) that tort claimants prove criminal negligence against liquor sellers, rather than just mere negligence, does not violate the equal protection clause. Gonzales v. Safeway Stores, 882 P.2d 389 (Alaska 1994).

Local option laws. —

Provisions of the local option law do not violate equal protection merely because they give individual communities the discretion to determine the level of alcohol availability that will be permitted within their boundaries, or because the penalties for violating the provisions are based upon quantity and type of alcoholic beverage. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

Given the state’s compelling interest in curbing alcohol abuse, the provisions of the local option law are reasonable and sufficiently related to the legislative goal of protecting the public health and welfare so that they do not violate this section; equal protection does not require perfect equality and uniformity in the application of a regulatory scheme. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

The legislature may constitutionally treat local option communities under former AS 04.11.496 differently from other communities because the difference in treatment results from an election that all communities are equally free to make, and this section does not violate equal protection. Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992).

Differing probation standards for offenders of different ages held proper. —

Although this provision requires that similarly situated individuals be treated equally, AS 04.16.050(a) and (e) do not violate equal protection by requiring younger offenders to stay on probation longer than older offenders; the state’s interest in preventing underage drinking is sufficiently strong, the importance of the minor defendants’ interest was relatively low, and the challenged probation provision has a substantial relationship to the social policy of preventing underage drinking. State v. Morgan, 111 P.3d 360 (Alaska Ct. App. 2005).

Revocation of driver’s licenses. —

The claim that a reading of former AS 28.15.210 [see now AS 28.15.181 ], which authorized mandatory revocation of driver’s licenses and afforded different treatment to second and subsequent drunk driving offenders compared to all other offenders, violated the equal protection clause was frivolous. State v. Guarderas, 589 P.2d 870 (Alaska 1979).

Former AS 25.27.246 , providing for suspension of delinquent child support obligors’ driver’s licenses, would be unconstitutional as applied, in violation of Alaska’s equal protection clause, if used to revoke the license of an individual incapable of paying the demanded support; the Child Support Enforcement Division (now the Child Support Services Agency) may not require, in payment-schedule negotiations, payments beyond the “best efforts” of the obligor. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Denial of license renewal. —

Where a plaintiff failed to offer any evidence of discriminatory intent or evidence to show that she was treated differently from other license holders who had violated the 30-day operating requirement, her mere conclusory accusations of a violation of equal protection were insufficient. Rollins v. Department of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202 (Alaska 1999).

Refusal to take breathalyzer test. —

Punishing a refusal to take a breathalyzer test bears a fair and substantial relation to the legitimate governmental objective of gathering evidence of possible drunken driving and does not deny equal protection. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

A statute or ordinance penalizing refusal to submit to a breathalyzer test does not violate Alaska Const., art. I. Burnett v. Municipality of Anchorage, 678 P.2d 1364 (Alaska Ct. App.), cert. denied, 469 U.S. 859, 105 S. Ct. 190, 83 L. Ed. 2d 123 (U.S. 1984); McCracken v. State, 685 P.2d 1275 (Alaska Ct. App. 1984).

Dismissal of police officer for destroying possible incriminating evidence. —

Dismissal of police officer for erasing a portion of a videotape containing material that could have been construed as evidence that he used excessive force against a person arrested for operating a motor vehicle while intoxicated did not violate equal protection; although other officers have not been dismissed for allegedly similar conduct, while it may be true that other officers have destroyed evidence they incorrectly believed no longer had any evidentiary value, the police officer in this case did not erase the tape merely because he believed it had no evidentiary value, but instead because he believed that it did have some evidentiary value against him. Kott v. City of Fairbanks, 661 P.2d 177 (Alaska 1983).

E.Durational Residency Requirements

Durational residence requirements are subject to strict scrutiny under the equal protection clauses of the federal and state constitutions because they penalize those who have exercised their fundamental right of interstate migration. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Infringement on right of interstate travel. —

All durational residency requirements inherently infringe upon the fundamental constitutional right of interstate travel. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Compelling state interest test. —

All such requirements are prima facie invalid and will be countenanced only when they serve a compelling state interest. State v. Adams, 522 P.2d 1125 (Alaska 1974), but see Williams v. Zobel, 619 P.2d 422 (Alaska 1980).

All durational residency requirements are to be measured by the compelling state interest test. State v. Adams, 522 P.2d 1125 (Alaska 1974), but see Williams v. Zobel, 619 P.2d 422 (Alaska 1980).

There need not be an actual deterrence to migration between the states to actuate the compelling interest test. State v. Wylie, 516 P.2d 142 (Alaska 1973); State v. Adams, 522 P.2d 1125 (Alaska 1974).

The compelling interest standard is not satisfied by urgent fiscal need. State v. Wylie, 516 P.2d 142 (Alaska 1973).

United States supreme court decisions dealing with durational residency requirements. —

See State v. Adams, 522 P.2d 1125 (Alaska 1974).

Requirement of year’s residence before nonresident could seek divorce. —

Former AS 09.55.140, which required one year’s residence before a nonresident could seek a divorce, violated the equal protection clauses of the Alaska and United States Constitutions. State v. Adams, 522 P.2d 1125 (Alaska 1974).

When scrutinized under the compelling state interest test, former AS 09.55.140 could not be sustained upon the basis of the state’s interest in protecting the basic family unit or in assuring the validity of its divorce decrees. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Even if the underlying purpose of former AS 09.55.140 had been to further the important state interests of preserving the marital relationship and of guaranteeing the welfare of the affected children, the durational residency requirement was not tailored with sufficient precision to accomplish these goals without unnecessarily infringing upon fundamental constitutional rights. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Domicile is adequate minimum contact. —

The United States supreme court has held that domicile on the part of a divorce-complainant is an adequate minimum contact to satisfy the due process clause and entitle a divorce decree to full faith and credit under the United States Constitution. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Subjective test for domicile preferred. —

A subjective test for domicile, i.e., examination of the proponent’s actual state of mind, thus appears to be a reasonable, less restrictive alternative to the objective test, such as a durational residency requirement, which does not infringe upon or penalize the fundamental constitutional right of interstate travel. State v. Adams, 522 P.2d 1125 (Alaska 1974).

There is no concrete evidence that a subjective test would produce any less respect for the state’s divorce decrees or would encourage fraudulent allegations of domicile. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Discussion of decisions relating to durational residency requirements in foreign divorce statutes. —

See State v. Adams, 522 P.2d 1125 (Alaska 1974).

Durational residence preference for state employment. —

The durational residence hiring preference of one year embodied in Alaska Personnel Rules 1, 309.0 and 401.1 is inconsistent with the equal protection of the laws afforded by this section and by the 14th amendment to the United States Constitution.State v. Wylie, 516 P.2d 142 (Alaska 1973).

Alaska’s personnel rules which grant hiring preferences to persons who have satisfied the durational residency requirement penalized interstate travel. State v. Wylie, 516 P.2d 142 (Alaska 1973).

The durational residence requirements for state employment are not tailored with sufficient precision to satisfy the compelling state interest test. State v. Wylie, 516 P.2d 142 (Alaska 1973).

An employment preference is not necessary for reducing unemployment and upgrading state’s human resources. —

See State v. Wylie, 516 P.2d 142 (Alaska 1973).

Or for preventing personnel turnover. —

See State v. Wylie, 516 P.2d 142 (Alaska 1973).

Limiting cost-of-living allowance payments to resident retirees does not violate the Equal Protection Clause of the Alaska Constitution; the small payments were fairly and substantially related to their purpose, and they did not substantially infringe on the right of retirees to live elsewhere. Pub. Emples. Ret. Sys. v. Gallant, 153 P.3d 346 (Alaska 2007).

Cost-of-living allowance residency requirement for public pension systems. —

Alaska public employee retirement and teachers’ retirement systems’ cost-of-living allowance (COLA) residency requirement did not violate the Equal Protection Clause of the Alaska Constitution because COLA had a fair and substantial relationship to its purpose, which was to encourage retirees to continue to live in the state, and it was only a small part of the retirees’ retirement income. Pub. Emples. Ret. Sys. v. Gallant, 153 P.3d 346 (Alaska 2007).

Former AS 38.40.090(1)(A) held unconstitutional. —

Former AS 38.40.090(1)(A), imposing a one-year durational residency requirement under the “Alaska Hire” law, AS 38.40, which required that all oil and gas leases, easements or right-of-way permits for oil or gas pipelines, unitization agreements or any renegotiation of any of these to which the state is a party, contain a requirement that qualified Alaska residents be hired in preference to nonresidents, was invalid as violating the equal protection clauses of the state and federal constitutions. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Statutory scheme established by former AS 43.23.010 was unconstitutional. —

Statutory scheme under former AS 43.23.010 , by which state distributed income derived from its natural resources to adult citizens of the state in varying amounts, based on length of each citizen’s residence, violated equal protection rights of newer state citizens. Zobel v. Williams, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Former AS 43.23.010 did not impose any threshold warning period on those seeking permanent fund dividend benefits; persons with less than a full year of residency were entitled to share in the distribution. Nor did the statute purport to establish a test of the bona fides of state residence. Instead, it created fixed, permanent distinctions between ever-increasing number of perpetual classes of concededly bona fide residents, based on how long they have been in the state. Zobel v. Williams, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Longevity Bonus Program held unconstitutional. —

The Longevity Bonus Program — which provides for cash payments to residents who are over 65, lived in Alaska when it was a territory, and lived in Alaska for 25 continuous years — creates an exclusive class that is to receive special benefits due to the length of the class member’s residence in Alaska. It is thus unconstitutional under this section. Schafer v. Vest, 680 P.2d 1169 (Alaska 1984).

Alaska Const., art. II, § 2, setting residency requirements, is not invalid under the equal protection clause of this section. Gilbert v. State, 526 P.2d 1131 (Alaska 1974), superseded by statute as stated in Alaska Conservation Found. v. Pebble P'ship, 350 P.3d 273 (2015)..

One-year residency requirement for jury service is constitutional. Smiloff v. State, 579 P.2d 28 (Alaska 1978); Webb v. State, 580 P.2d 295 (Alaska 1978).

Where defendant challenged, as a violation of equal protection, a jury array which excluded less-than-one-year residents, the defendant must show that he was harmed by the violation in order to assert the claim on their behalf. Because there was no showing of prejudice stemming from the exclusion, defendant had not shown a colorable equal protection claim. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

The practice of a judicial district to select as jurors only those persons who have been residents of Alaska for one year or more did not deprive defendant of his statutory and constitutional right to an impartial jury and was not in violation of his rights to equal protection of the laws, which rights are guaranteed by the 14th amendment to the federal constitution and this section. Webb v. State, 580 P.2d 295 (Alaska 1978).

One year durational residency requirement for candidacy for city office was constitutional in view of the compelling interests of affording greater voter knowledge of candidates and greater candidate knowledge of the needs of the constituency. Castner v. City of Homer, 598 P.2d 953 (Alaska 1979).

Residency requirement to participate in permanent fund dividend distribution. —

A military family who did not reside in Alaska for five years, and failed to rebut the presumption that they did not intend to return and remain in Alaska was not denied equal protection under the “allowable absence” provisions in AS 43.23.008 (9)-(10). Harrod v. State, 255 P.3d 991 (Alaska 2011).

A service member who had lived outside Alaska for more than ten years, and who was denied his permanent fund dividend based on a former provision of AS 43.23.008 , was collaterally estopped from raising the same equal rights claim in a proceeding related to the 2013 PFD when that claim had been decided in the litigation for the 2010 PFD. Ross v. State Dep't of Revenue, — P.3d — (Alaska Jan. 29, 2014) (memorandum decision).

Statutory presumption of nonresidence for Permanent Fund Dividend (PFD) purposes created by a husband's absence from Alaska for over five years did not violate Alaska or federal equal protection because (1) minimal scrutiny applied to this mere economic interest, and (2) the statute was substantially related to achieving a legitimate governmental objective. Jones v. State, 441 P.3d 966 (Alaska 2019).

Three-year residency requirement unconstitutional. —

A three-year residency requirement for local city council officer was unconstitutional under the equal protection clause. Peloza v. Freas, 871 P.2d 687 (Alaska 1994).

F.Employment

Distinctions between vocational and academic training. —

The distinctions drawn in the unemployment compensation law between vocational training and academic training are reasonable, not arbitrary, and are fairly and substantially related to their purposes. Thus, the distinctions do not violate the state’s equal protection or substantive due process guarantees. Sonneman v. Knight, 790 P.2d 702 (Alaska 1990).

Distinction between licensed and unlicensed practitioners. —

While a common-law psychotherapist-patient privilege obtains in Alaska, but this privilege is limited to communications made to a psychiatrist or licensed psychologist and to communications made in the course of intensive, deep psychotherapy, of the type which requires confidentiality for its success, a distinction between licensed and unlicensed practitioners is not a violation of the “equal protection” clauses of the state and federal constitutions. Allred v. State, 554 P.2d 411 (Alaska 1976).

An interest in employment is not a fundamental right entitled to “compelling interest” scrutiny. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Hiring preference for Native Americans. —

Borough charter provision creating borough employment preferences for Native Americans violated the guarantee of equal protection under Alaska Const. art. I, § 1, because although it sought to protect an important interest for equal protection purposes, the right to seek and obtain employment in one’s profession, the interest was not legitimate under either the Alaska Constitution or an exception to the Civil Rights Act of 1964, and the charter provision, which covered not only hiring but all promotions and raises, was not narrowly tailored. Malabed v. N. Slope Borough, 70 P.3d 416 (Alaska 2003).

Hiring preference to residents of economically distressed zones. —

Section 36.10.160, which provides a hiring preference to residents of economically distressed zones for certain employment on public works projects, is unconstitutional under the equal protection clause. State by Departments of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624 (Alaska 1989).

Construction workers who did not reside in an economically distressed zone had citizen-taxpayer standing to challenge a statutory hiring preference for eligible individuals residing within a zone of underemployment. State by Departments of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624 (Alaska 1989).

Discriminatory benefits programs held violative of equal protection to same-sex couples. —

Benefits program was held to facially discriminate against same-sex domestic partners by covering married public employees but not domestic partners because, unlike opposite-sex domestic partners, same-sex domestic partners were barred from marriage under Alaska Const. art. I, § 25, and thus were absolutely precluded from eligibility; the policy was not substantially related to legitimate government interests in cost control, administrative efficiency, and promotion of marriage; it therefore violated equal protection under this section. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Workers’ Compensation computation unconstitutional. —

The gross weekly wage determination method of AS 23.30.220(a) creates large differences in compensation between similarly situated injured workers, bears no relationship to the goal of accurately calculating an injured employee’s lost wages for purposes of determining his or her compensation, is unfair to workers whose past history does not accurately reflect their future earning capacity, and is unnecessary to achieve quickness, efficiency, or predictability. The formula expressed is not substantially related to the purposes of the Workers’ Compensation Act, and cannot survive scrutiny on even the lowest end of the sliding scale; therefore, the formula is an unconstitutional infringement on the equal protection clause of the Alaska Constitution. Gilmore v. Alaska Workers' Comp. Bd., 882 P.2d 922 (Alaska 1994), amended, 882 P.2d 922 (Alaska 1994), limited, Dougan v. Aurora Elec., Inc., 50 P.3d 789 (Alaska 2002).

Limitation on employer’s total liability under Workers’ Compensation Act. —

With regard to the Workers’ Compensation Act, there is a fair and substantial relationship between the legislative objective of providing guaranteed, expeditious compensation to the injured employee and the limitation in AS 23.30.055 on the employer’s total liability regardless of its percentage of fault, even though that limitation has the effect of denying the third-party tort-feasors the right to pro rata contribution from the employer. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

Subsection (p)(7) of AS 23.30.041 [now AS 23.30.041 (r)(7)] does not violate the equal protection clause and due process clause of the Alaska Constitution. Meek v. Unocal Corp., 914 P.2d 1276 (Alaska 1996).

Due process right to worker’s compensation held not infringed. —

Oil rig worker, who was employed by a contractor, brought a third-party suit against an oil company for work-related injuries; the worker’s equal protection rights were not violated by the 2004 amendments to AS 23.30.045 and 23.30.055 because the worker’s interests were economic; therefore, a minimum scrutiny level of review was applied, and the state had legitimate objectives in enacting the amendments. Schiel v. Union Oil Co., 219 P.3d 1025 (Alaska 2009), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

There was no state action where a plaintiff pilot sued an association of pilots for the right to pursue livelihood, so plaintiff’s constitutional claim was invalid. Spence v. Southeastern Alaska Pilots' Ass'n, 789 F. Supp. 1014 (D. Alaska 1992).

Requiring labor agreement. —

A borough’s action in requiring bidders on a construction project to enter into a project labor agreement with local labor unions did not violate the equal protection rights of nonunion workers. Laborers Local # 942 v. Lampkin, 956 P.2d 422 (Alaska 1998).

Distinction between union and non-union university employees. —

Arbitrator’s finding that a university had violated a collective bargaining agreement nondiscrimination clause was gross error because the distinction between union and non-union university employees regarding pay increases was not protected by law. Univ. of Alaska v. Alaska Cmty. Colleges' Fedn. of Teachers, Local 2404, 64 P.3d 823 (Alaska 2003).

G.Fish and Game

Superexclusive use regulations upheld. —

A regulation governing superexclusive use has the same effect on local fishermen who wish to fish outside one of the superexclusive use districts as it does on outsiders with a similar desire. Similarly, nonresidents are free to choose to fish in a superexclusive use district. Thus, the regulation did not violate this provision. State v. Herbert, 803 P.2d 863 (Alaska 1990).

Regulation of entry into commercial fisheries. —

The point scheme under regulations promulgated by the commission to regulate entry into the commercial fisheries based on a “hardship” standard of economic dependence is reasonable and not arbitrary, as it provides for consideration of all the factors which the legislature thought relevant to economic dependence, and bears a fair and substantial relation to the object of the act. Younker v. Alaska Commercial Fisheries Entry Comm'n, 598 P.2d 917 (Alaska 1979).

Commercial Fisheries Entry Commission’s administrative regulations. —

Within the scheme of the point system used for issuing limited entry permits, the Commercial Fisheries Entry Commission’s administrative regulation specifying the number of points awarded for availability of alternative occupations based solely on the total population and the proportion of rural population in the census district or county of an applicant’s domicile, 20 AAC 05.630(b)(4), violates equal protection rights guaranteed by Alaska Const., art. I, § 1. Deubelbeiss v. Commercial Fisheries Entry Comm'n, 689 P.2d 487 (Alaska 1984).

Distinction as to eligibility for entry permits upheld. —

The requirement in AS 16.43.260(a) that only persons who had harvested fishery resources commercially while participating in the fisheries as holders of gear licenses are eligible to apply for entry permits authorizing the operation of fishing gear within a specified area does not violate this section since it bears a fair and substantial relationship to the purpose of preventing unjust discrimination in the allocation of entry permits. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

Action, subsequent to Isakson v. Rickey , 550 P.2d 359 (Alaska 1976), of the Commercial Fisheries Entry Commission in promulgating 20 AAC 05.510(f) setting up a new application period for entry permits under AS 16.43.260(b) but restricting applications in this period to only those who had fished with gear licenses for the first time during 1973 or 1974 did not deny equal protection of the law to those applicants who had fished with gear licenses for the first time between 1960 and 1972 by requiring them to have filed under the original application period and not allowing them to file under the new application period. Vik v. Commercial Fisheries Entry Comm'n, 636 P.2d 597 (Alaska 1981).

Provision of AS 16.43.260(a) held unconstitutional. —

AS 16.43.260(a) , limiting applications for entry permits to those holding gear licenses prior to January 1, 1973, violated the equal protection rights guaranteed by the state and federal constitutions of commercial fishermen who became holders of gear licenses after January 1, 1973. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Holding a gear license before January 1, 1973, does not bear a fair and substantial relation to the purpose of the legislation, which is the segregation of hardship and nonhardship cases. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Because persons are automatically excluded from the class eligible to apply for permits, in spite of active participation and economic dependence upon the fishery, the January 1, 1973, classification is under-inclusive with respect to persons allowed to apply for permits. Because persons who have long since retired and have no economic dependence upon the fishery as of the cutoff date are allowed to apply for entry permits, the classification is overbroad with respect to those allowed to apply. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Limited Entry Act. —

The entry restrictions of the Limited Entry Act, AS 16.43, do not violate this section. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).

The requirement that applicants for entry permits be past gear licensees bears a fair and substantial relationship to the purpose of preventing unjust discrimination in allocating entry permits. Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486 (Alaska 1984).

A classification based on whether individuals were gear license holders was constitutional and did not violate equal protection. Nash v. Commercial Fisheries Entry Comm'n, 679 P.2d 477 (Alaska 1984).

Neither due process nor equal protection requires an exception to the filing deadline in AS 16.43.260(b) for applicants who can demonstrate that they failed to timely file because of insanity. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Requirements for entering gill net fishery. —

Commercial fisheries entry commercial regulation requiring that setnetters applying for permits to enter the gill net fishery be 90 percent dependent upon income from fishing in 1972 to receive full income dependence points was not arbitrary and unreasonable, and did not deny equal protection. Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200 (Alaska 1990).

The classification which imposes different tax rates on “floating” and “shore-based” fish processors does not constitute a violation of the federal and state guarantees of equal protection. However, on petition for rehearing, the court found one of the appellant processors to be entitled to a tax refund for the period that it was, in fact, “shore-based”. State v. Reefer King Co., 559 P.2d 56 (Alaska 1976), modified on rehearing, 562 P.2d 702 (Alaska 1977).

It was not arbitrary for the legislature to conclude that “shore-based” fish processors, with at least a year’s commitment to one location, were to be preferred over floating processors, which distributed economic benefits over several locations. State v. Reefer King Co., 559 P.2d 56 (Alaska 1976), modified on rehearing, 562 P.2d 702 (Alaska 1977).

No showing that state selectively enforced former AS 43.75.060 , pertaining to fisheries business licenses, against certain floating processors. —

See State v. Reefer King Co., 559 P.2d 56 (Alaska 1976), modified on rehearing, 562 P.2d 702 (Alaska 1977).

Restrictions on nonresident fishermen. —

Chapter 62, SLA 1961, placing certain restrictions on nonresident fishermen, violated the provisions of this section. Brown v. Anderson, 202 F. Supp. 96 (D. Alaska 1962).

Fishing permit regulations do not violate equal protection. —

Requiring the permit-holder of a commercial fishing license to be personally present during fishing operations does not substantially impair the permit-holder’s right to engage in commercial fishing or his right of access to the fishery. Although the regulation does impair the permit-holder’s ability to take another job and let someone else use the permit to fish, the permit-holder has only a minimal interest (if any) in being able to rent or loan his or her permit to others outside the parameters of existing law. Baker v. State, 878 P.2d 642 (Alaska Ct. App. 1994).

A hunting guide license is a sufficient property interest to qualify for the protection of due process. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Distinction between air and land transportation of bear. —

There is valid basis for placing a restriction on hunting bear and transporting the bear with aircraft, and not also placing the same restriction on hunters on foot or with land vehicles, i.e., to protect the state’s game resources from becoming depleted or even extinct. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Guiding without valid license. —

Punishing guiding without a valid license as a felony under former law did not violate defendant’s right to equal protection since he was subject to the same penalties as any other person committing the same misconduct. Maeckle v. State, 792 P.2d 686 (Alaska Ct. App. 1990).

Former statute which made guiding without a license a minor felony was a reasonable, direct, and effective means of furthering the state’s strong and legitimate interest in enacting firm measures to discourage unlicensed guiding, given the importance of the state’s wildlife resources and the difficulties inherent in the enforcement of guiding statutes in remote locations, so that punishing violations of the former law as a felony did not violate defendant’s right to equal protection. Maeckle v. State, 792 P.2d 686 (Alaska Ct. App. 1990).

Regulations by the board of game. —

The regulations by the board of game that designated the Noatak and Nenana areas as controlled use areas were constitutional, were within the authority of the board, and were neither arbitrary nor unreasonable. Interior Alaska Airboat Ass'n v. Bd. of Game, 18 P.3d 686 (Alaska 2001).

H.Juries

Exclusion of members of class from jury. —

An individual’s right to equal protection of the law will be violated when that individual is subjected to trial by a jury from which members of a class to which he belongs have been systematically excluded. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Plaintiffs’ right to equal protection of the law was not denied where there was no showing that they were members of any class excluded from their jury panel, or that they could have in any way been prejudiced by the exclusion of any class from the panel. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

As long as the area from which the grand jury is chosen does not underrepresent a cognizable group when compared to the state as a whole, the court will find no equal protection violation. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984).

Jury selection procedure must operate free of discrimination. —

Both the Constitution of the United States and the Alaska Constitution mandate that jury selection procedures operate free of discrimination. Avery v. State, 514 P.2d 637 (Alaska 1973).

An accused in a criminal proceeding is entitled to a jury “drawn from a fair cross section of the community.” Avery v. State, 514 P.2d 637 (Alaska 1973).

Full hearing on charge jury is improperly constituted. —

In a criminal case, it is error to refuse to grant a full hearing on a charge that the jury has been improperly constituted. Avery v. State, 514 P.2d 637 (Alaska 1973).

Effect of prima facie showing of racial discrimination. —

Where there has been made out a prima facie case of the intentional exclusion of blacks from the jury, a denial of equal protection under the 14th amendment to the United States Constitution and this section would be shown without the necessity of applying the broad “fair cross section” due process standards. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Underrepresentation of Alaska natives. —

The fact that defendant was indicted by a grand jury convened in Fairbanks, which has a substantially smaller population of Alaska natives than Barrow, where the offense occurred, did not establish violation of his equal protection rights since his grand jury did not substantially underrepresent Alaska natives when compared to that group’s representation in the state as a whole. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984).

Jury trial regarding tax assessments. —

There is no constitutional right to a trial by jury to determine proper tax assessments. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Amendment to AS 09.20.050 . —

A determination of the method for selecting juries is a matter within the legislative prerogative, and the 1969 amendment to AS 09.20.050 was a lawful exercise of legislative authority. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Use of striking system and consolidated voir dire. —

Where the presiding judge was faced with an unusually large number of cases to be tried within a single week, his utilization of a striking system instead of a peremptory challenge system only and consolidated voir dire for 15 OMVI cases and no other cases did not violate the equal protection clauses of either the federal or state constitution. Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981).

I.Juveniles

Rights of juveniles. —

Regardless of benevolent-sounding labels, incarceration, when applied to children, is a taking of liberty under the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Children are possessed of fundamental rights under the Alaska Constitution. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Children’s constitutional rights will not be denied in deference to governmental benevolence or popular social theories. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Society uses incarceration for rehabilitative purposes with adult criminals as well as juvenile delinquents, yet none suggest that benevolent purposes justify deprivation of rights applicable to adult prosecutions. RLR v. State, 487 P.2d 27 (Alaska 1971).

The due process clause of the 14th amendment applies when a child is charged with misconduct for which he may be incarcerated in an institution, regardless of the labels of the adjudication and institution, so the child is entitled to notice of charges, counsel, confrontation and cross-examination, and the privilege against self-incrimination. RLR v. State, 487 P.2d 27 (Alaska 1971).

AS 47.12.030(a) , placing the burden on defendant to prove his amenability to juvenile treatment, does not violate the equal protection and due process clauses of the Alaska Constitution. Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998).

Combination of the automatic waiver statute and the adult sentencing statute was consistent with evolving standards of decency and this scheme bore a fair and substantial relationship to the legitimate purposes of punishment; the sentencing judge gave the minor defendant’s rehabilitative prospects careful scrutiny and appropriate weight and the resulting sentence for first-degree murder was not clearly mistaken. Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011).

Alaska Statutes 47.12.030(b), requiring a juvenile's adult prosecution for a misdemeanor traffic offense, did not violate equal protection because (1) the juvenile had a limited interest in juvenile prosecution, (2) driving was a heavily regulated dangerous adult activity, (3) the legislature had a legitimate interest in assuring minors who drove were held to an adult standard of care and could rationally conclude minors posed a particularly significant threat to minors' own and the public's safety, and (4) there was no particular anomaly in treating juvenile felony traffic offenders as juveniles. Watson v. State, 400 P.3d 121 (Alaska Ct. App. 2017), aff'd, 487 P.3d 568 (Alaska 2021).

“Parental rights” protected by constitution. —

See L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

The right of parents to the care, custody and control of their children is an important and substantial right, protected by, although not specifically enumerated in, both the United States and Alaska constitutions. In re S. D., 549 P.2d 1190 (Alaska 1976).

Parents’ rights balanced against those of children. —

The parents’ constitutional right to the care and custody of their children must be balanced against the rights of their children to an adequate home and education. In re S. D., 549 P.2d 1190 (Alaska 1976).

State may interfere with conduct of children in need of supervision. —

Conduct of children alleged to be in need of supervision [see now children alleged to be in need of aid], such as running away from home and foster home placement, may constitutionally be interfered with by the State. L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

Interests to be protected by legislation regarding children in need of aid. —

See L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

Means chosen by the state to protect children are closely and substantially related to an appropriate government interest. L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

Foster parents. —

Since payment to a foster parent is triggered by the child’s presence, and not by the individual’s foster parent status, the parent cannot know with certainty how much he will receive in a given year, and his interest in a foster care license is at most merely economic, entitled to minimal protection under the state equal protection analysis. Wilkerson v. Department of Health & Soc. Servs., Div. of Family & Youth Servs., 993 P.2d 1018 (Alaska 1999).

License suspension. —

Administrative suspension of the driver’s license of a motorcyclist who failed to maintain insurance did not violate equal protection because the different sanctions established by AS 28.22.021 and 28.22.041 , requiring license suspension for some but not all uninsured motorists, reasonably further the state interest in preventing uninsured driving. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Difference in treatment of felony and non-felony traffic offenses. —

Statute requiring a minor who was accused of a non-felony traffic offense to be charged, prosecuted, and sentenced in the district court in the same manner as an adult, but not applying that provision when the minor was accused of committing a felony violation, did not violate the equal protection provision because classifying minor offenders according to whether they were charged with a felony or misdemeanor violation was closely related to the State's competing interests of deterrence and rehabilitation as it promoted the State's interest in a uniform system of penalties to deter bad driving and protect the public, but the legislature could have concluded that the legal consequences of a felony conviction were too severe for a minor. Watson v. State, 487 P.3d 568 (Alaska 2021).

J.Schools

State aid to local educational districts. —

Individual plaintiffs failed to establish their claim that the educational interests of their children were adversely affected, or their equal protection rights violated, by the local school contribution provisions of AS 14.11.025(a) and (d) and the provisions of AS 14.11.100(a) concerning state aid for costs of school construction debt, notwithstanding the statutes’ disparate treatment of school boroughs and regional educational attendance areas (REAAs) for state aid purposes. Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997).

Parents have a privacy and liberty interest in their children’s health care under Alaska Const. art. I, §§ 1 and 22. The state has a compelling interest in preventing school children from spreading tuberculosis, but the state’s interest could be met with the use of less intrusive testing. Huffman v. State, 204 P.3d 339 (Alaska 2009).

Students have right to individual hairstyles. —

Under this section of the Alaska Constitution’s affirmative grant to all persons of the natural right to “liberty,” students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

In the absence of any compelling justification, a school hair length regulation impermissibly infringes upon a student’s constitutional right under Alaska’s constitution which guarantees him the liberty of personal choice as to appearance. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

But such right is not absolute. —

While the right of students to fashion their own appearances by wearing their hair in accordance with their own individual preference in public schools is a fundamental constitutional right implicit in the concept of liberty as guaranteed by the Constitution of Alaska, such right is not absolute. There may be instances in which the state acting through a school administration would be justified in regulating the hair length of its citizenry. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

State must have compelling interest in school hair regulations. —

If a student’s choice of hairstyle is regarded as an interest entitled to special protection under the due process clause, the state must have a compelling subordinating interest in regulations. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

And must bear a substantial burden of justification. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Production of “hard facts” required to justify school regulations. —

There is a trend in long hair cases towards requiring the production of “hard facts” in order to justify school regulations. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Contrary to the beliefs of many people, the courts are not so much saying that the schools cannot act to achieve traditional aims — to prevent disruption, for example — but they are saying that they will no longer take an administrator’s unsupported word that absent a given rule, regulation, or procedure, disruption will take place. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Zoning ordinance which excluded all nonpublic schools from a residential area was constitutionally permissible, and city was not compelled to allow plaintiff to operate a parochial school in its church building located in the area. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982).

K.Taxes

Standing of taxpayers. —

Citizens who have paid validly assessed taxes have standing to sue government entities for relief in the nature of mandamus and force uniform collection of the tax from citizens who have not been assessed at all or assessed at lower rates. Douglas v. Glacier State Tel. Co., 615 P.2d 580 (Alaska 1980).

See note under catchline “Hiring preference to residents of economically distressed zones,” under analysis heading II.F. above. State by Departments of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624 (Alaska 1989).

Collection of permanent fund dividends. —

AS 43.23.005(d) , which prohibits certain felons from collecting permanent fund dividends, does not violate the equal protection clause of the United States Constitution and/or the Alaska Constitution. State v. Anthony, 810 P.2d 155 (Alaska 1991).

Changes in the qualifying date for a permanent fund dividend (pfd) do not violate the constitutional rights of new residents. Plaintiffs, as new residents, had only an inchoate expectancy of a pfd, which is not afforded constitutional protection. Underwood v. State, 881 P.2d 322 (Alaska 1994), cert. denied, 514 U.S. 1064, 115 S. Ct. 1694, 131 L. Ed. 2d 558 (U.S. 1995).

Collection of borough sales tax on long-distance phone calls. —

Where taxpayers alleged that a borough violated their equal protection rights by failing to collect a borough sales tax on long-distance phone calls charged to phones within the borough from certain customers of a telephone company, in order to avoid summary judgment on the issue of whether such a violation has occurred, taxpayers must produce evidence tending to show a dispute exists over whether unequal enforcement of the tax has taken place, and whether the selective enforcement was part of an arbitrary or intentional plan to discriminate. Douglas v. Glacier State Tel. Co., 615 P.2d 580 (Alaska 1980).

Tax treatment of hospital equipment is rational. —

The different tax treatment of equipment which is either owned or leased by a hospital is rational and bears a fair and substantial relation to the object of AS 29.53.020(a)(3) [see now AS 29.45.030(a)(3) ], which exempts from municipal property tax property used exclusively for nonprofit religious, charitable, cemetery, hospital or educational purposes; therefore, taxation of leased property does not violate the equal protection clauses of the Alaska and United States constitutions. Sisters of Providence in Wash., Inc. v. Municipality of Anchorage, 672 P.2d 446 (Alaska 1983).

Tax discrimination against foreign corporations. —

Former AS 21.09.210(b) violated the equal protection clauses of both the Alaska and the federal constitutions because it imposed a higher tax on foreign insurance companies than on domestic insurance companies, a discrimination which lacked any legitimate state purpose. Principal Mut. Life Ins. Co. v. State, Div. of Ins., 780 P.2d 1023 (Alaska 1989).

Retaliatory tax. —

Applying Alaska’s retaliatory tax to an out-of-state health insurer under AS 21.09.270 did not violate this provision because such application was consonant with the permissible purpose of retaliatory tax statutes, and it fairly and substantially furthered that purpose. Premera Blue Cross v. State, 171 P.3d 1110 (Alaska 2007).

Tax exemption for property used as permanent residence. —

Actual classification that was created by an ordinance, which exempted from taxation the first $10,000 of residential property used as the owner’s permanent place of residence, was between owners of owner-occupied primary residences in the borough and owners of second homes or other types of real property in the borough; because the classification pertained to economic interests and did not involve suspect or quasi-suspect classifications, the “legitimate reason” test applied. Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Legitimate reason supported disparate treatment by an ordinance, which exempted from taxation the first $10,000 of residential property used as the owner’s permanent place of residence; where the exemption was evidently designed to protect and promote home ownership, which was beneficial to the community, the ordinance did not violate the Equal Rights Clause. Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Condominiums. —

Assessment of real property taxes upon owner’s condominium unit and for the limited common element attached to his unit did not violate owner’s right to equal protection under the law pursuant to Alaska Const., art. I, § 1 because despite the fact that owner’s property was being treated like a single family home, such treatment was justified because owner was not similarly situated to other condominium unit owners. Black v. Municipality of Anchorage, 187 P.3d 1096 (Alaska 2008).

Borough guide and lodge tax did not violate the equal protection clauses of the United States and Alaska Constitutions. Katmailand, Inc. v. Lake & Peninsula Borough, 904 P.2d 397 (Alaska 1995).

Denial of tax exemption held proper. —

Fairbanks, Alaska, North Star Borough Code 03.08.020 did not violate this provision or AS 29.45.250 . The borough’s denial of a partial tax exemption based on the homeowner’s failure to pay the prior year’s taxes in a timely manner was a legitimate public purpose in motivating the prompt payment of taxes. Lot 04B & 5C, Block 83 Townsite v. Fairbanks N. Star Borough, 208 P.3d 188 (Alaska 2009).

Judgment in favor of city for accrued sales taxes affirmed despite argument that ordinance’s exemption scheme violated equal protection. —

See Euwer v. City of Palmer, 572 P.2d 436 (Alaska 1977).

L.Voting

Limiting the voting privilege to citizens of the United States does not conflict with the equal protection clause of the Alaska Constitution, contained in this section. Park v. State, 528 P.2d 785 (Alaska 1974).

It must be assumed that the drafters of the Alaska Constitution considered that the qualifications for voting stated in Alaska Const., art. V, § 1, did not create a classification prohibited by the Declaration of Rights in this section, as the provisions were adopted concurrently. Park v. State, 528 P.2d 785 (Alaska 1974).

Alien permanently residing in Alaska may be precluded from voting in state elections. —

Park v. State, 528 P.2d 785 (Alaska 1974).

Elimination of a portion of the military personnel from the population base in the 1974 revised reapportionment plan did not constitute an unconstitutional employment classification violative of due process and equal protection. Groh v. Egan, 526 P.2d 863 (Alaska 1974).

It is not offensive to notions of equal protection to exclude from the population base even military personnel who have lived in Alaska for substantial periods of time, so long as those people have exercised their option to remain residents and domiciliaries of other states. Groh v. Egan, 526 P.2d 863 (Alaska 1974).

Reapportionment. —

The 1984 creation of Senate District E tended toward disproportionality of representation and therefore impermissibly discriminated against Anchorage voters under Alaska’s equal protection clause, even though it was not violative of the federal equal protection clause; however, since the effect of the discrimination was de minimus, the state was not required to redraw the district. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

The 1984 realignment of Southeast Alaska to comply with Carpenter v. Hammond , 667 P.2d 1204 (Alaska 1983) effectuates consistent and rational state policies and, therefore, does not violate the equal protection clauses of either the federal or Alaska Constitution. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

Where there is no fundamental right at stake, the equal protection clause of the Alaska Constitution imposes a stricter standard than its federal counterpart; hence, while the applicable federal equal protection standard in reapportionment cases has not been clearly established, the court will continue to use Alaska’s stricter equal protection standard when assessing the constitutionality of a reapportionment plan. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

In cases challenging reapportionment, the presentation of evidence that indicates, when considered with the totality of the circumstances, that the state acted intentionally to discriminate against the voters of a geographic area will serve to compel the state to demonstrate that its acts aimed to effectuate proportional representation, that is, the state will have the burden of proving that any intentional discrimination against voters of a particular area will lead to more proportional representation. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

A neutral factors test should be employed to assess the legitimacy of the state’s purpose in designing a district. Under such a test a court looks both to the process followed by the state in formulating its decision as well as to the substance of the state’s decision in order to ascertain whether the state intentionally discriminated against a particular geographic area. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

Although Alaska courts will not consider any effect of disproportionality de minimus in determining whether the state’s purpose in designing reapportioned districts is illegitimate, the degree of disproportionality will be considered in determining the appropriate relief to be granted. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

Rigid standards for reapportionment applied in Egan v. Hammond , 502 P.2d 856 (1972), have been ameliorated. —

Groh v. Egan, 526 P.2d 863 (Alaska 1974).

Denial of the right to vote, standing by itself, is not a sufficient condition for judicial relief. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Right to vote not denied residents of temporarily-existing borough. —

Where the Eagle River-Chugiak Borough was officially incorporated on September 12, 1974, but the act authorizing the residents of that area to vote on the question of whether or not to form a second class borough was held unconstitutional in Abrams v. State , 534 P.2d 91 (Alaska 1975) on April 15, 1975, and the Eagle River-Chugiak area was automatically reincorporated into the Greater Anchorage Area Borough, the Eagle River-Chugiak area residents were not unconstitutionally denied the right to vote in a February 11, 1975 election held in the Greater Anchorage Area Borough in which the creation of a charter commission was approved, and its members elected. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Insofar as the right to vote in the charter commission election can be viewed as having been denied residents of the then existing Eagle River-Chugiak Borough, such denial was based solely upon consideration of geographical location within this newly created political subdivision. To view this geographical classification as suspect would be irrational. At the time the classification was made, rather than being “suspect,” it was compelled because the Eagle River-Chugiak Borough was not part of the Greater Anchorage Area Borough. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Campaign disclosure. —

When there is no showing that an individual must remain anonymous with respect to advertising as to ballot propositions because of the possibility of being subject to reprisals, economic or otherwise, the state campaign disclosure laws, AS 15.13.010 — 15.13.130 , are not unconstitutional as applied to a contributor hoping to influence the outcome of a ballot issue because the objective of an informed electorate is sufficiently compelling to overcome an interest in anonymous political expression. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Ten percent polling requirement for defining “political party”. —

For case holding unconstitutional the definition of “political party” which limited political party status to those organizations able to poll 10 percent of the electorate, see Vogler v. Miller, 660 P.2d 1192 (Alaska 1983), construing AS 15.60.010(20).

Collateral references. —

16A Am. Jur. 2d, Constitutional Law, §§ 400-414.

16A C.J.S., Constitutional Law, §§ 629 to 644, 681 to 689; 16C C.J.S., Constitutional Law, §§ 1504 to 1521.

Validity of public school funding systems. 110 ALR5th 293.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women. 118 ALR5th 463.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship. 123 ALR5th 411.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Public employment cases. 168 ALR Fed. 1.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases. 172 ALR Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases. 178 ALR Fed. 25.

I.General Consideration

Fundamental nature of right. —

Freedom of speech and the correlative freedom of association are fundamental rights which lie at the foundation of our system of government. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Protection under state constitution. —

The Alaska Constitution protects free speech in a more explicit and direct manner than the federal constitution. Messerli v. State, 626 P.2d 81 (Alaska 1980).

The free speech clause of this section was meant to be at least as protective of expression as the 1st amendment to the United States Constitution.Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982).

Right is not absolute. —

In expressing the rights to free speech and privacy, the framers of the state constitution appear to have recognized a right of universal freedom and a right to be left alone which is rooted in the natural inclination of human beings. But these rights, in a free society such as this, have never been recognized as absolute and without limitations. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Right to free association related to ballot design. —

Superior court did not abuse its discretion by denying candidate's requested preliminary injunction because it could have imperiled the public interest in an orderly and timely election; she did not show a clear probability of success on her claim that her rights to free association were violated. Ballot design applied uniformly across candidates and she did not explain how that design, by omitting her nonpartisan voter registration status, prevented voters from associating with her or compelled them to associate with the Democratic Party. State v. Galvin, 491 P.3d 325 (Alaska 2021).

Function of free speech. —

A function of free speech under the American system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Robust debate encouraged. —

Debate on public issues should be uninhibited, robust, and wide-open. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

This nation is most likely to flourish by selecting direction from a multitude of voices engaged in vigorous debate rather than from authoritative selection by government officials. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Independent candidates allowed to run in party's primary elections. —

Political party had an associational right to choose its general election nominees and that right could include allowing independents to run in its primary elections. Because the Alaska Constitution's free association guarantee protects the party's choice to open its primary elections to independent voter candidates, and because in this specific context the State had no countervailing need to enforce the party affiliation rule, the superior court properly ruled in favor of the party in its suit for declaratory and injunctive relief preventing enforcement of the party affiliation rule. State v. Alaska Democratic Party, 426 P.3d 901 (Alaska 2018).

Sufficient injury. —

Denial of the right to fair treatment and the “liberty of expression in appropriate places” is injury enough. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

It is the suppression of speech in itself which is the evil to be avoided for such suppression necessarily impairs the right to speak freely. Any further showing of adverse consequences flowing therefrom is unnecessary. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Regulation, not censorship, allowed. —

While the government may reasonably regulate expressive activity, it may not censor such activity. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Precision of regulation must be the touchstone. —

Because of the “chilling effect” that overbroad laws have on the exercise of constitutional rights, broad prophylactic rules are suspect and precision of regulation must be the touchstone. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

First amendment freedoms are delicate and vulnerable, as well as supremely precious in American society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because first amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Closing-hours restriction in municipal ordinance. —

Closing-hours restriction in a municipal ordinance could not be enforced against adult cabarets in light of the Free Speech Clause of the Alaska Constitution because the closing-hours restriction, as applied to adult cabarets, was not sufficiently narrowly tailored to achieve its ends. Club Sinrock, LLC v. Municipality of Anchorage, 445 P.3d 1031 (Alaska 2019).

And exercise of discretion must be governed by standards. —

Where there are no standards governing the exercise of discretion granted by a disorderly conduct ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for harsh and discriminatory enforcement by prosecuting officials against particular groups deemed to merit their displeasure. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Due process requires a prompt adjudication of 1st amendment rights. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Courts must be ever vigilant to protect the rights of those expounding unpopular views or distributing material thought to be offensive by certain segments of the community. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Freedom of expression is the constitutional norm. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Speech which is vehicle of crime. —

Speech is not constitutionally protected when it is the very vehicle of the crime itself. Webb v. State, 580 P.2d 295 (Alaska 1978).

Speech inciting violence. —

Speech which has a direct tendency to cause immediate acts of violence is not protected. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Public inconvenience, annoyance, or unrest is an insufficient evil to justify punishing speech. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

The 1st and 14th amendments do not permit a state to make criminal the exercise of the right of assembly simply because its exercise may be “annoying” to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is “annoying” because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Mere public intolerance or animosity cannot be the basis for abridgement of constitutional freedoms. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Restraint not mitigated by availability of a alternative means. —

The availability of alternative means of communication does not mitigate the harm resulting from government restraint of speech. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forum doctrine stated. —

Once there exists a government-controlled forum for the dissemination of information and expression of ideas, the government cannot deny equal access to that forum based on content alone. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forums are not designated such because they are designed to provide a vehicle for partisan expression; rather, they are so called because they are appropriate arenas for people to exercise their constitutional rights of expression and association. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Distributing pro-life literature to patrons of medical clinic. —

This section did not apply in the case of an individual who was arrested in the parking lot of a medical clinic while distributing pro-life literature to patrons of the clinic because the clinic’s operation was not “public” in nature. Fardig v. Municipality of Anchorage, 785 P.2d 911 (Alaska Ct. App. 1990).

Exclusion of group from government publication. —

The municipality of Anchorage’s exclusion of the Alaska Gay Coalition from the 1976-77 “Anchorage Blue Book,” a government publication, denied that organization its constitutional rights to freedom of speech and association and equal protection of the law. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Blue Book” was designed for and dedicated to expressive and associational use and therefore, once it was opened for such use, the government could not deny appellant access to it based solely on the content of its beliefs. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Anchorage Blue Book,” a municipality publication intended to provide a vehicle for the dissemination of information regarding public and private services and organizations in the Anchorage area was a public forum to which the Gay Coalition had a right of equal access. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Names on election ballots. —

Primary election statutes, AS 15.25.010 , 15.25.014 , and 15.25.060 , which required each political party to have a separate ballot on which only candidates of that political party appeared, violated the political parties’ associational rights under the First and Fourteenth Amendments, and violated Alaska Const. art. I, § 5 because they substantially burdened the political parties’ rights to determine who could participate in its primary. The state’s justification for imposing the burden was insufficient because most of the state’s interests were too abstract to support that burden; and the remainder of the state’s interests were not closely related to the prohibition on combined ballots. State v. Green Party of Alaska, 118 P.3d 1054 (Alaska 2005).

Ballot access requirements. —

Where there was no evidence that the ballot access requirement in AS 15.25.160 , which was the equivalent of requiring a petition with signatures equal in number to 1 percent of votes cast in last election, caused confusion among voters or any other problem, the increase to a 3 percent minimum, in order to make all ballot access requirements uniform, violated the right of free speech by effectively eliminating a new political party’s access to the ballot. Vogler v. Miller, 651 P.2d 1 (Alaska 1982).

The statutory requirement that a group attain at least three percent of the votes polled in the last gubernatorial election, or register the equivalent number of voters, to be recognized as a political party was constitutional because: (1) The voters were not totally deprived of the opportunity to place candidates on the ballot; (2) the state’s interest in requiring a significant modicum of support was compelling because it helped avoid confusion, deception, and frustration of the democratic process at the general election; and (3) the requirement was sufficiently narrowly tailored to the state’s interests to justify burdening the voters’ rights. Green Party of Alaska v. State, 147 P.3d 728 (Alaska 2006).

Compensation for petition circulators. —

Certification by the Lieutenant Governor of Alaska of the signatures on petitions for an initiative to appear on a ballot was appropriate because the Alaska statute which set a $1 a signature limit on circulator compensation, was unconstitutional as the statute significantly burdened core political speech and was not narrowly tailored to achieve the State of Alaska's interests. Res. Dev. Council for Alaska, Inc. v. Vote Yes for Alaska's Fair Share, 494 P.3d 541 (Alaska 2021).

Ten percent polling requirement for defining “political party”. —

For case holding unconstitutional the definition of “political party” which limited political party status to those organizations able to poll 10 percent of the electorate, see Vogler v. Miller, 660 P.2d 1192 (Alaska 1983), construing AS 15.60.010(20).

Campaign disclosure. —

When there is no showing that an individual must remain anonymous with respect to advertising as to ballot propositions because of the possibility of being subject to reprisals, economic or otherwise, the state campaign disclosure laws, AS 15.13.010 — 15.13.130 , are not unconstitutional as applied to a contributor hoping to influence the outcome of a ballot issue because the objective of an informed electorate is sufficiently compelling to overcome an interest in anonymous political expression. Messerli v. State, 626 P.2d 81 (Alaska 1980).

An individual’s right of expression in the circumstances of an expenditure in advocating the election or defeat of a particular candidate consists of giving the candidate funds to convey the candidate’s message to the public. But in ballot proposition contests, the message is often the contributor’s own. The contributor exercises the right of free speech directly on his own behalf, addresses whatever he sees as the merits of an issue, expresses his own opinion, and makes his own recommendations to the public. This is the essence of political speech. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Election campaign finance laws. —

The State has a compelling interest that justifies applying AS 15.13.135 , restricting independent expenditures for or against candidates, to business corporations and labor unions. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

AS 15.13.135 as written embraces “non-group” entities whose speech may not be permissibly restricted by an expenditure prohibition, and the section must be read narrowly to prevent it from applying to such “non-group” entities; thus, entities must be exempted from this section’s ban if: (1) they cannot participate in business activities, (2) they have no shareholders who have a claim on corporate earnings, and (3) they are independent from the influence of business corporations. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Alaska has a substantial governmental interest in campaign finance reform that justifies some restriction on First Amendment freedoms, including the ban on contributions by a corporation, company, partnership, firm, association, organization, business trust, surety, or labor union. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The restrictions on contributions and expenditures by corporations and labor unions, considered together, are not so extreme as to constitute bans on issue advocacy. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Attempting to limit outside influences in Alaska politics is a sufficiently compelling state interest to justify the restrictions on contributions by nonresidents set forth in AS 15.13.072(a) , (e), and (f). State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The ban on out-of-district lobbyist contributions in AS 15.13.074(g) is narrowly tailored to further the State’s compelling interest, and the restraint does not foreclose lobbyists from engaging in political speech. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The $500 limitation on individual contributions for electoral campaigns in Alaska set forth in AS 15.13.070(b) is justified by evidence that contribution limits do not place a substantial burden on the ability of candidates to run competitive local or state election campaigns. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Limits on individuals’ contributions to groups and political parties are reasonable; preventing individuals from channeling their contributions through a group or a party, and thus avoiding the limit on individuals’ contributions to candidates, is a valid purpose. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The pre-election contribution limits of former AS 15.13.074(c)(1) , (2), and (3) are invalid, and the eighteen-month contingent pre-election time limits in Laws 1996, ch. 48 § 12 are effective. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The post-election contribution limits of former AS 15.13.074(c)(4) comprise a narrowly-tailored impact on associational rights to further compelling state interests, and are upheld. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The prohibition against making contributions to legislative candidates, including both challengers and incumbents, during a regular legislative session, set forth in former AS 15.13.074(c)(2) , is not narrowly tailored to the State’s compelling interest of preventing corruption or its appearance, and is therefore invalid. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The State’s interest in preventing avoidance of valid contribution limits by use of carry-forwards is both compelling and served by the restriction set forth in AS 15.13.116 , which is narrowly tailored to accomplish this interest, and justifies its burden on speech. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Because the State has a compelling interest in enforcing contribution limits, and because candidates still retain the right to make contributions from personal funds, the ban on inter-candidate contributions in AS 15.13.112(b)(7) is constitutional. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Rights of government officials. —

Plaintiff’s tort claim against the governor based on the free speech clause of the Alaska Constitution lacked merit because a government official has a constitutionally protected right to speak, or write, in response to critical speech. Thoma v. Hickel, 947 P.2d 816 (Alaska 1997).

English-language only. —

First sentence of AS 44.12.320 is unconstitutional because it infringes on the speech rights of private citizens, elected government officials, and government employees; the initiative, a content-based restriction on language, was not narrowly tailored to serve compelling state interests. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007).

Restricting debate on parliamentary motions. —

Ruling that there could be no debate of the motions to open nominations for the position of speaker, to close nominations, and to name a certain representative as speaker of the house did not deny the right to free speech. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

There are various types of motions which are considered not debatable as a matter of parliamentary law, and imposition of rules restricting debate on such motions does not violate constitutional guarantees of free speech. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Regulation of use of state seal. —

Since a statute forbidding the use of the official state seal “for any advertising or commercial purpose” does not impact any non-commercial use of the seal, and since the state has a legitimate governmental interest in regulating the commercial use of that seal, there was no constitutional bar to the prosecution of the defendant for marketing commemorative coins bearing the seal. State v. Robart, 988 P.2d 1114 (Alaska Ct. App. 1999).

Limited restrictions allowed. —

It is only in the most limited circumstances that speech may be punished. Anniskette v. State, 489 P.2d 1012 (Alaska 1971); Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Presumably a state can limit speech or assembly in specific places under limited circumstances. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Barring an inmate's receipt of a computer programming book did not violate a state or federal right because (1) the action was rationally connected to the Department of Corrections' legitimate interest in protecting computer systems, (2) the inmate's right to receive publications was not denied per se, and (3) the inmate was allowed to obtain training on the subject. Antenor v. State, 462 P.3d 1 (Alaska 2020).

Turner approach is appropriate for evaluating free speech claims by prisoners who challenge restrictions on incoming publications, requiring (1) a valid, rational connection between a prison regulation and a legitimate governmental interest put forward to justify the regulation, (2) courts' consideration of the existence of alternative means of exercising the right that remain open to prison inmates, (3) assessment of the impact accommodation of the asserted constitutional right has on guards and other inmates, and (4) the absence of ready alternatives, which is evidence of the reasonableness of a prison regulation, while the existence of such alternatives can indicate the regulation is an exaggerated response to prison concerns. Antenor v. State, 462 P.3d 1 (Alaska 2020).

The state may limit speech in a courtroom while the court is in session. See Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Criminality cannot hinge on ideological vicissitudes of listener. —

Under an objective standard it is not permissible to make criminality hinge upon the ideological vicissitudes of the listener. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

Effect of eliminating speech which is unacceptable to squeamish citizenry. —

Public life in this democracy would be robbed of its vitality and citizens soon lose their self-confident independence of thought if any ordinance were enforced to eliminate any mode of speech not acceptable to the most squeamish of citizens. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Speech must produce clear and present danger of serious substantive evil. —

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

What finally emerges from the “clear and present danger” cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

The “fighting words” doctrine covers those face-to-face utterances which ordinarily provoke, in the average, reasonable listener, an immediate violent response. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

The category of “fighting words” is recognized as another exception to the freedom of speech guaranteed by the constitution. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

A person may be punished for uttering “fighting words” which are likely to provoke a violent reaction when addressed to an ordinary citizen or for intentionally provoking a crowd to hostile reaction under circumstances where a clear and present danger of immediate violence exists. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Coarse words must often be a necessary concomitant to achieving those values which open debate and free speech are designed to serve. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

It is often true that one man’s vulgarity is another’s lyric. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

Telephone call criticizing public officer. —

There was neither legislative language nor constitutional power to read former AS 11.45.030 as including within its ambit a single telephone call critizing a public officer for the performance of his official duties. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

That an officer was personally offended by the telephone call did not render the defendant’s conduct a crime. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

Statements by attorney. —

Imposition of discipline for professional misconduct consisting of statements in letters to two federal officials did not violate an attorney’s right of free speech since obedience to ethical precepts may require absention from what in other circumstances might be constitutionally protected speech. In re Vollintine, 673 P.2d 755 (Alaska 1983).

Gag orders. —

In a child custody hearing, a gag order which goes beyond assuring confidentiality of the file and anonymity of the parties must be justified by compelling circumstances and drawn as narrowly as possible to protect against particular evils. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Jury tampering statute. —

The jury tampering statute, AS 11.56.590 , is not unconstitutionally overbroad, in violation of First Amendment rights, and is not void for vagueness. Turney v. State, 936 P.2d 533 (Alaska 1997).

Motion pictures are protected under freedom of expression guaranteed by the 1st amendment. Hanby v. State, 479 P.2d 486 (Alaska 1970).

The category of obscenity, which is unprotected, is very narrowly defined. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Erotic speech may be punished as obscenity if the tests promulgated by the U.S. supreme court are met. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Online enticement statute, AS 11.41.452 , was not unconstitutionally overbroad and did not violate defendant’s right to free speech because the evidence established that defendant believed that he was soliciting two minors to engage in sexual activities; such conduct did not fall within the boundaries of protected speech. Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013).

Nude dancing is protected under this section of the state constitution. Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982).

City ordinance which prohibited waiters, waitresses and entertainers in establishments serving alcohol from exposing their genitals, buttocks, and, in the case of females, their breasts, was an unconstitutional infringement on free speech. Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982).

Prohibiting display of motorcycle club “colors” in tavern. —

This section did not apply to the proprietor of a tavern, which had posted a sign prohibiting the wearing of motorcycle club “colors”, as well as pimping, prostitution, intoxication, cameras and entry by minors. Johnson v. Tait, 774 P.2d 185 (Alaska 1989).

The mere threat of prosecution can become a stifling prior restraint on free expression. Hanby v. State, 479 P.2d 486 (Alaska 1970).

An affidavit stating merely conclusory opinions of a police officer may not serve as the sole basis for the issuance of a search warrant authorizing the seizure of allegedly obscene films. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Search warrant procedure held insufficient. —

A procedure under which the magistrate who issued the search warrant neither saw the movies himself nor made additional factual investigations of their obscenity was not sufficient to satisfy the constitutional requirements demanding necessary sensitivity to freedom of expression. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Civil disobedience defense in criminal case. —

The district court did not err in rejecting defendant’s defense that violations of commercial fishing laws were acts of civil disobedience where the laws under which he was charged were content neutral as to any expressive element of a violation; they further an important or substantial state interest that is unrelated to the suppression of free expression; any incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest; and they leave open alternative channels for communication of the protest message. Scudero v. State, 917 P.2d 683 (Alaska Ct. App. 1996).

Quoted in

State v. Haley, 687 P.2d 305 (Alaska 1984); Lawson v. Helmer, 77 P.3d 724 (Alaska 2003).

Cited in

Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Sisemore v. U.S. News & World Report, 662 F. Supp. 1529 (D. Alaska 1987); Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987); Burrell v. Disciplinary Bd. of The Alaska Bar Ass'n, 777 P.2d 1140 (Alaska 1989); Beard v. Baum, 796 P.2d 1344 (Alaska 1990); O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); Holding v. Municipality of Anchorage, 63 P.3d 248 (Alaska 2003); State v. Metcalfe, 110 P.3d 976 (Alaska 2005); In re Dist. Court Judge, 392 P.3d 480 (Alaska 2017).

II.Vague and Overbroad

A statute will not be struck down as overbroad when a limiting construction could end the statute’s chilling effect on protected expression. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Discussion of overbreadth doctrine. —

See Holton v. State, 602 P.2d 1228 (Alaska 1979).

Overbreadth and void-for-vagueness doctrines distinguished. —

Although the overbreadth and void-for-vagueness doctrines are related and, at least in the 1st amendment area, not wholly separable, they are functionally and doctrinally distinct. The overbreadth doctrine has evolved to give adequate breathing room to specific 1st amendment freedoms. A vague statute violates the due process clause both because it fails to give adequate notice to the ordinary citizen of what is prohibited and because its indefinite contours confer unbridled discretion on government officials and thereby raise the possibility of uneven and discriminatory enforcement. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Standing to attack for overbreadth. —

A unique feature of an overbreadth challenge is that a person has standing to make such an attack even though it might be constitutionally permissible to regulate that person’s conduct under a more narrowly drawn and specific statute. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Alaska Campaign Disclosure Act (AS 15.13.010 et seq.) is not unconstitutionally vague or overbroad, nor does it violate the constitutional right of the people to privacy. VECO Int'l v. Alaska Pub. Offices Comm'n, 753 P.2d 703 (Alaska 1988).

Former delinquency statute. —

Former statute which criminalized acts “which cause or tend to cause, encourage or contribute to delinquency” was not overbroad, since only speech which advocated imminent lawless action and which was likely to produce such action was proscribed. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Disorderly conduct statute upheld. —

The disorderly conduct statute (AS 11.61.110 ) gives reasonable notice of the conduct it prohibits, and the phrase “unreasonably loud noise” is not unconstitutionally vague. The statute provides that “noise” does not include speech that is constitutionally protected and is therefore not overbroad. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Breach of the peace is an offense so generalized as to be not susceptible of exact definition. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Indefinite statutory language. —

“Threatening,” “tumultuous behavior,” “unreasonable noise,” “offensively coarse,” and “abusive language” are indefinite words. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

The word “annoying” in an ordinance is unconstitutionally vague and the words “inconvenience” and “alarm” are no less so. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

The phrase “opprobrious words or abusive language” in a “breach of the peace” ordinance are both overbroad and impermissibly vague. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Depending on the arresting officer’s temperment, everything from the most provocative insult to the mildest obscenity might be termed “abusive language.” Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

“Tumultuous behavior”. —

The phrase “tumultuous behavior” might encompass conduct ranging from actual violence to speaking in a loud and excited manner. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Criminal defamation statutes held unconstitutional. —

In holding former AS 11.15.310 — 11.15.330 to be unconstitutionally vague the supreme court did not decide whether all conceivable criminal libel statutes are necessarily vague. If the type of defamation sought to be prohibited receives a narrowly drawn statutory definition, especially one designed to reach words tending to cause a breach of the peace, then such a statute might well be proper. Gottschalk v. State, 575 P.2d 289 (Alaska 1978).

Even if the former criminal defamation statutes were sufficiently precise to escape the defect of vagueness, they would still have been overbroad. That is because truth was not an absolute defense under former AS 11.15.320, but a conditional one; the accused had to show not only that what he said was true, but that his intentions were good when he said it. Gottschalk v. State, 575 P.2d 289 (Alaska 1978).

Former AS 11.15.134(a) did not implicate constitutional rights of adults. —

Since former AS 11.15.134(a), which made it a crime to commit a lewd or lascivious act upon or with the body of a child under 16 years of age, intending to arouse the sexual desires of either the actor or the child, prohibited only lewd and lascivious physical contact with children, that section did not implicate the constitutional right of adults to possess and exhibit literature or the right of adults to privacy in their homes at least insofar as that right protects parents dressing in front of children, those who tell dirty jokes, and adults who are passionately affectionate with other adults in the presence of children. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Former disorderly conduct statute could not be applied to behavior which is constitutionally exempt from criminal prohibition. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

The supreme court has recognized the strong likelihood that former AS 11.45.030, which made disorderly conduct and disturbance of the peace a misdemeanor, as it existed prior to the 1973 amendment, was overbroad in that constitutionally protected speech and conduct might have fallen within its prohibitions. Poole v. State, 524 P.2d 286 (Alaska 1974).

When ordinance is void-for-vagueness. —

An ordinance is void-for-vagueness where it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and where it encourages arbitrary and erratic arrests and convictions. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Those generally implicated by the imprecise terms of a disorderly conduct ordinance — poor people, nonconformists, dissenters, idlers — may be required to comport themselves according to the lifestyle deemed appropriate by the police and the courts. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Ordinances held unconstitutional. —

Those portions of a disorderly conduct ordinance which could be applied to protected speech — “threatening,” “tumultuous behavior,” “unreasonable noise,” “offensively coarse utterance, gesture, or display” and “addressing abusive language to any person present” — are unconstitutionally overbroad. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

An ordinance making it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . .” is not only overbroad but also unconstitutionally vague. Since conduct that annoys some people does not annoy others, men of common intelligence must necessarily guess at the ordinance’s meaning. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

An ordinance prohibiting “threatening and violent or tumultuous behavior,” “unreasonable noise,” “abusive lanugage” and “offensively coarse utterances, gestures or displays” when motivated by an intent to cause “public inconvenience, annoyance or alarm,” thereby making it a crime for one, with intent to cause public embarrassment, uneasiness, annoyance, discomfort, or fear, to engage in conduct that is noisy, disorderly, causing or evidencing mental or emotional excitement, or, with like intent, to use language that is vulgar, indelicate, distasteful, insulting or reproachful is unconstitutional. Neither the federal nor Alaska constitutions will permit such a broad and arbitrary interference with freedom of speech. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Collateral references. —

16A Am.Jur.2d, Constitutional Law, §§ 465-553; 50 Am.Jur.2d, Libel and Slander, § 30.

16B C.J.S., Constitutional Law, §§ 789 to 835; 53 C.J.S., Libel and Slander, §§ 20, 21.

Modern concept of obscenity. 5 ALR3d 1158.

Participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly or similar offense. 32 ALR3d 551.

Validity of blasphemy statutes or ordinances. 41 ALR3d 519.

Right of accused to have press or other media representatives excluded from criminal trial. 49 ALR3d 1007.

Picketing court or judge as contempt. 58 ALR3d 1297.

Consumer picketing to protest products, prices or services. 62 ALR3d 227.

Validity, construction, and effect of statutes or ordinances prohibiting the sale of obscene materials to minors. 93 ALR3d 297.

Actionability of false newspaper report that plaintiff has been arrested. 93 ALR3d 625.

Libel by newspaper headlines. 95 ALR3d 660.

Privilege of newsgatherer against disclosure of confidential sources or information. 99 ALR3d 37.

Gesture as punishable obscenity. 99 ALR3d 762.

Propriety of conditioning probation on defendant’s not associating with particular person. 99 ALR3d 967.

Rights of attorneys leaving firm with respect to firm clients. 1 ALR4th 1164.

Validity and construction of statutes or ordinances prohibiting or restricting distribution of commercial advertising to private residences — modern cases. 12 ALR4th 851.

Validity, propriety, and effect of allowing or prohibiting media’s broadcasting, recording, or photographing court proceedings. 14 ALR4th 121.

Insulting words addressed directly to police officer as breach of peace or disorderly conduct. 14 ALR4th 1252.

Liability of commercial printer for defamatory statement contained in matter printed for another. 16 ALR4th 1372.

Liability for personal injury or death allegedly resulting from television or radio broadcast. 20 ALR4th 327.

Libel and slander: reports of pleadings as within privilege for reports of judicial proceedings. 20 ALR4th 576.

Validity, construction, and effect of statutes, ordinances, or regulations prohibiting or regulating advertising of intoxicating liquors. 20 ALR4th 600.

Libel and slander: attorney’s statements, to parties other than alleged defamed party or its agents, in course of extrajudicial investigation or preparation relating to pending or anticipated civil litigation as privileged. 23 ALR4th 932.

Defamation: loss of employer’s qualified privilege to publish employee’s work record or qualification. 24 ALR4th 144.

Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited. 25 ALR4th 395.

State constitutional protection of allegedly defamatory statements regarding private individual. 33 ALR4th 212.

Libel and slander: privileged nature of statements or utterances by members of governing body of public institution of higher learning in course of official proceedings. 33 ALR4th 632.

Validity and construction of terroristic threat statutes. 45 ALR4th 949.

Validity and construction of state court’s order precluding publicity or comment about pending civil case by counsel, parties, or witnesses. 56 ALR4th 1214.

False light invasion of privacy — Cognizability and elements. 57 ALR4th 22.

False light invasion of privacy — Defenses and remedies. 57 ALR4th 244.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — post-New York Times cases. 57 ALR4th 404.

Libel or slander: Defamation by statement made in jest. 57 ALR4th 520.

Intrusion by news-gathering entity as invasion of right of privacy. 69 ALR4th 1059.

Standing of media representatives or organizations to seek review of, or to intervene to oppose, order closing criminal proceedings to public. 74 ALR4th 476.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional right. 76 ALR4th 536.

Validity of ordinances restricting location of “adult entertainment” or sex-oriented businesses. 10 ALR5th 538.

Propriety of exclusion of press or other media representatives from civil trial. 39 ALR5th 103.

Propriety of publishing identity of sexual assault victim. 40 ALR5th 787.

Validity, construction and application of statutes or ordinances regulating sexual performance by child. 42 ALR5th 291.

First Amendment protection afforded to commercial and home video games. 106 ALR5th 337.

First amendment challenges to display of religious symbols on public property. 107 ALR5th 1.

First Amendment protection afforded to comic books, comic strips, and cartoons. 118 ALR5th 213.

Construction and Application of Libel-Proof Doctrine. 54 ALR6th 165.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Construction and application of Supreme Court’s holding in Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) that government may not prohibit independent and indirect expenditures on political speech, 65 ALR6th 503.

Constitutionality of restricting public speech in street, sidewalk, park, or other public forum — characteristics of forum, 70 ALR6th 513.

Constitutional challenges to compelled speech — general principles, 72 ALR6th 513.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 ALR6th 89.

Right of press, in criminal proceeding, to have access to exhibits, transcripts, testimony, and communications not admitted in evidence or made part of public record. 39 ALR Fed. 871.

Validity, under First Amendment and 42 USC 1983, of public college or university’s refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus. 50 ALR Fed. 516.

Access of public to broadcast facilities under first amendment. 66 ALR Fed. 628.

Action under 42 USC 1985(1) for conspiracy to defame or otherwise harm the reputation of federal official. 69 ALR Fed. 913.

What oral statement of student is sufficiently disruptive so as to fall beyond protection of first amendment. 76 ALR Fed. 599.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolution theory in public schools. 102 ALR Fed. 537.

Constitutionality of teaching or otherwise promoting secular humanism in public schools. 103 ALR Fed. 538.

First amendment protection for law enforcement employees subject to discharge, transfer, or discipline because of speech. 109 ALR Fed. 9.

Application of First Amendment in school context — Supreme Court cases. 57 ALR Fed. 2d 1.

I.General Consideration

Section prohibits deprivation without due process. —

Both this section and the 14th amendment of the United States Constitution prohibit the state from depriving any person of “life, liberty, or property, without due process of law.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Borough was not a “person” and therefore could not assert due process or equal protection claims against its creator, the state. The purpose of the Alaska due process and equal protection clauses is to protect people from abuses of government, not to protect political subdivisions of the state from the actions of other units of state government. Kenai Peninsula Borough v. State, Dep't of Cmty. & Reg'l Affairs, 751 P.2d 14 (Alaska 1988).

Standing. —

Legislators did not have standing to bring suit against a legislative committee and an investigator in an attempt to halt an allegedly politically motivated investigation into the governor’s dismissal of the public safety commissioner. They were not directly affected by the investigation and had suffered no injury to their own interests. Keller v. French, 205 P.3d 299 (Alaska 2009).

While appellant may have had opportunities to present evidence that showed he met the standing criteria with respect to a planning commission's approval of a conditional use permit, appellant had no reason to seek to present such evidence because he had no notice that standing was at issue. Because appellant did not have notice that his standing was at issue, his due process rights were violated. Griswold v. Homer Bd. of Adjustment, 426 P.3d 1044 (Alaska 2018).

Identification of the specific dictates of due process generally involves consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the government’s interest including the fiscal and administrative burdens that additional or substitute procedural requirements would entail. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Alaska Housing Finance Corporation foreclosure. —

Alaska Housing Finance Corporation's (AHFC) foreclosure process violated a mortgagor's due process rights under the Alaska Constitution because the process gave the mortgagor no pre-deprivation chance to be heard, as (1) an AS 34.20.070(b) default notice gave no such opportunity, (2) abilities to cure and talk to a customer service representative did not suffice, (3) a trustee's duties were no chance to be heard, (4) a Fair Debt Collection Practices Act notice gave no chance to state objections to a decision-maker able to rectify errors, (5) the mortgagor's post-deprivation ability to sue was inadequate, and (6) prejudice was presumed from a complete hearing denial. Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Due process right to protect juvenile offender status. —

Superior court erred in granting the State's waiver petition because defendant juvenile had a due process right to present evidence at the waiver hearing to protect his juvenile offender status and avoid being waived to adult court; minors alleged to have violated Alaska's criminal laws, including those for whom the State is seeking to waive juvenile jurisdiction, have a liberty interest in juvenile status. C.D. v. State, 458 P.3d 81 (Alaska 2020).

For the due process clause to apply, there must be state action and the deprivation of an individual interest of sufficient importance to warrant constitutional protection. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); State, Dep't of Nat. Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806 (Alaska 1978).

Termination of parental rights.—

Mother's contention that the appearance of judicial partiality violated her due process rights was rejected because, although the trial court may have exhibited partiality related to whether substance abuse continued to substantially impair the mother's ability to parent, that only impacted one of the grounds for termination of the mother's parental rights. The mother's ability to be heard and adequately represent her interests with respect to the domestic violence and mental illness findings was not prejudiced, and the child's best interests would not be served by delaying permanency and prolonging the judicial proceedings given that the mother had yet to remedy the conduct or conditions that made him a child in need of aid. Sarah A. v. State Dep't of Health & Soc. Servs., Office of Children Servs., 427 P.3d 771 (Alaska 2018).

Determining entitlement is preliminary to determining extent of protection. —

Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

The nature of protection due depends on the extent to which an individual will be “condemned to suffer grievous loss.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Individual’s interest to be balanced against state’s. —

The finding of a deprivation of a property right does not conclude a due process analysis; the assessment of what process is due requires a balancing of the individual’s interest against the state’s justification for its enactment. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Whenever a party demonstrates a prima facie denial of due process of law, the reviewing court must balance the interest of the state in the act or procedure challenged against the right denied the individual. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

What procedural due process may require under any particular set of circumstances depends on the nature of the governmental function involved and the private interest affected by the governmental action. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

Transportation to civil actions. —

Superior court did not abuse its discretion by denying a prisoner's request for transport to attend in person the prisoner's parental rights termination trial because the court considered all relevant factors that the parties presented to the court, because it was not obvious that considering additional factors in the case law would have changed the court's statutory analysis, and because the prisoner's due process rights were not violated. Alex H. v. Dep't of Health & Soc. Servs., Office of Children's Servs., 389 P.3d 35 (Alaska 2017).

Relationship to legitimate government purpose. —

Under the Alaska Constitution, substantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose. State v. Rice, 626 P.2d 104 (Alaska 1981).

Due process is flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977); In re C.L.T., 597 P.2d 518 (Alaska 1979); Flores v. Flores, 598 P.2d 893 (Alaska 1979).

The term “due process of law” is not susceptible of precise definition or reduction to a mathematical formula. But in the course of judicial decisions it has come to express a basic concept of justice under law. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

The term “due process of law” is not susceptible of precise definition or reduction to a mathematical formula. But in the course of judicial decisions it has come to express a basic concept of justice under law, such as “our traditional conception of fair play and substantial justice,” the “protection of the individual from arbitrary action,” “fundamental principles of liberty and justice,” whether there has been a “denial of fundamental fairness, shocking to the universal sense of justice,” “that whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct,” and a “respect for those personal immunities which are so rooted in the traditions and consciences of the nation as to be ranked as fundamental, or are implicit in the concept of ordered liberty.” Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Courts have not attempted to define with precision the words “due process of law.” Probably this is so because that term asserts a fundamental principle of justice, rather than a specific rule of law, and thus is not susceptible of more than a general statement. Territory v. Craig Enters., 355 P.2d 397 (Alaska 1960).

But it has come to express a basic concept of justice under the law in the course of judicial decisions. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Certain level of procedural fairness must be accorded. —

When principles of due process attach, there is a certain level of procedural fairness that must be accorded to an affected party. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Due process requirements. —

While it is manifest that no one has a vested right in any particular mode of procedure such that legislative change is prohibited, due process does require that a substantial and efficient remedy remains available or that one be provided when a preexisting defense is statutorily limited. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

Regulatory Commission of Alaska’s refusal to recuse a staff economist did not deny pipeline owners a fair and impartial hearing in violation of due process, based on the economist’s prejudgment of the issues in an unpublished master’s thesis. There was no evidence suggesting that the commissioners were improperly influenced by the economist’s opinions or that any commissioner prejudged the case. Amerada Hess Pipeline Corp. v. Regulatory Comm'n of Alaska, 176 P.3d 667 (Alaska 2008).

Federal law does not pre-empt rigor of due process requirements. —

Federal law does not preclude the Alaska Constitution from providing more rigorous protections for the due process rights of Alaskans. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Vested property rights are protected against state action by the provision of the 14th amendment of the federal constitution and by this section. Bidwell v. Scheele, 355 P.2d 584 (Alaska 1960); Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, 580 P.2d 687 (Alaska 1978), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Because the plaintiff had a vested property right in her junkyard in that it was a lawful use within the original zoning district, and it only became a nonconforming use when the district was rezoned rural residential, her right in operating her junkyard could not be denied her without due process of law. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Due process applies to both privileges and rights. —

The United States supreme court has repeatedly refused to recognize a distinction between privileges and rights in determining the applicability of due process. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Broader protection than federal counterpart. —

Alaska’s equal protection and due process clauses confer broader protection than do their federal counterparts. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Formalistic categorization as “criminal” or “civil” avoided. —

The supreme court has consistently avoided any formalistic categorization of proceedings as “criminal” and “civil” when determining if strict due process safeguards are required. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Municipalities as well as other occupants are entitled to due process in the adjudication of claims to tide and submerged lands. Homer v. State, Dep't of Nat. Res., 566 P.2d 1314 (Alaska 1977).

Alaska is not limited by federal case law or constitution. —

The Supreme Court is not limited by the decisions of the United States supreme court or by the federal constitution when interpreting the provisions of the state constitution, since the latter may have broader safeguards than the minimum federal standards. Shagloak v. State, 597 P.2d 142 (Alaska 1979).

Review to assure that trier of fact was impartial. —

The scope of review to assure due process must include a review to assure that the trier of fact was an impartial tribunal. In re Robson, 575 P.2d 771 (Alaska 1978).

An impartial tribunal is basic to a guarantee of due process. In re Robson, 575 P.2d 771 (Alaska 1978); Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

Judicial review of agency actions. —

Even though a legislative enactment providing for agency action may not provide for judicial review, the courts may proceed to review such action where it is alleged that such action constitutes a denial of due process. Johns v. Commercial Fisheries Entry Comm'n, 699 P.2d 334 (Alaska 1985).

The scope of review of an administrative decision to assure compliance with due process under Alaska law is more limited than the broad form of review required under the Alaska Administrative Procedure Act ( AS 44.62). The safeguard which due process assures is not that a court may examine each factual finding to see that it is correct, or even that it is supported by substantial evidence. Rather, the supreme court will review to assure that the trier of fact was an impartial tribunal, that no findings were made except on due notice and opportunity to be heard, that the procedure at the hearing was consistent with a fair trial, and that the hearing was conducted in such a way that there is an opportunity for a court to ascertain whether the applicable rules of law and procedure were observed. The review of factual determinations becomes a review to find whether the administrative decision has passed beyond the lowest limit of the permitted zone of reasonableness to become capricious, arbitrary or confiscatory. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

The supreme court would not be able to carry out its duty to protect the citizens of this state in the exercise of their rights if it was unable to review the actions of administrative agencies simply because the legislature chose to exempt their decisions from judicial review. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

If an administrative action is questioned as violating, for example, the due process clause, the supreme court will not hesitate to review the propriety of the action to the extent that constitutional standards may require. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

It is the constitutionally vested duty of the supreme court to assure that administrative action complies with the laws of Alaska. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

Adjudicative proceedings to be impartial. —

Adjudicative proceedings must have the appearance, as well as the fact, of impartiality. Coffey v. State, 585 P.2d 514 (Alaska 1978), stating that standards for disqualification of judge under AS 22.20.020(a)(6) are subject to appellate review.

Right to an automatic appeal, as a matter of due process, is not required by the federal or Alaska constitution. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Waiver of rights. —

By consenting to certain procedures or by failing to object to others, a party may waive those rights which are arguably encompassed within due process guarantees. In re C.L.T., 597 P.2d 518 (Alaska 1979).

In a proceeding to terminate parental rights, the failure of the parent’s counsel to object to the judge’s use of taped testimony waived any alleged due process defects in the procedure. In re C.L.T., 597 P.2d 518 (Alaska 1979).

Involuntary commitment. —

Superior court properly rejected simply releasing defendant, and that left only the jail as the immediately available least restrictive alternative for his protection while he was detained awaiting transport; the social worker explicitly testified that she did not believe that defendant had any social supports. In re Necessity for the Hospitalization of Vern H., 486 P.3d 1123 (Alaska 2021).

Fact that defendant was held in jail rather than a hospital did not alter the due process analysis because the detention location was relevant only to whether it was the least restrictive available alternative. In re Necessity for the Hospitalization of Vern H., 486 P.3d 1123 (Alaska 2021).

Underlying claim barred by collateral estoppel. —

The director and president of a bank seized pursuant to AS 06.05.470 could not argue on appeal that the state’s failure to provide a post-seizure hearing violated his due process rights because his underlying substantive claim, that the bank’s business was not being conducted in an unsound manner and the state’s seizure was therefore unauthorized, was barred by the doctrine of collateral estoppel as the issue had already been litigated in a related action, adverse to plaintiff, between the plaintiffs and the FDIC. Hoffman v. State, Dep't of Commerce & Econ. Dev., 834 P.2d 1218 (Alaska 1992).

Applied in

Morris v. State, 630 P.2d 13 (Alaska 1981); Jeffcoat v. State, 639 P.2d 308 (Alaska Ct. App. 1982); State v. F/V Baranof, 677 P.2d 1245 (Alaska 1984); Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988).

Quoted in

State v. Browder, 486 P.2d 925 (Alaska 1971); Graham v. State, 633 P.2d 211 (Alaska 1981); Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981); Public Safety Employees Ass'n v. State, 658 P.2d 769 (Alaska 1983); Beam v. Adams, 749 P.2d 366 (Alaska 1988); Silvernail v. State, 777 P.2d 1169 (Alaska Ct. App. 1989); O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); Mitchell v. State, 818 P.2d 1163 (Alaska Ct. App. 1991); Odum v. University of Alaska, 845 P.2d 432 (Alaska 1993); Underwood v. State, 881 P.2d 322 (Alaska 1994); DeRemer v. State, 307 P.3d 975 (Alaska 2013); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019).

Cited in

Ravin v. State, 537 P.2d 494 (Alaska 1975); Ferdinand v. City of Fairbanks, 599 P.2d 122 (Alaska 1979); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); King v. Alaska State Hous. Auth., 633 P.2d 256 (Alaska 1981); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Koch v. State, 653 P.2d 664 (Alaska Ct. App. 1982); Jordan v. State, 681 P.2d 346 (Alaska Ct. App. 1984); J.E.C. v. State, 681 P.2d 1358 (Alaska Ct. App. 1984); Smith v. State, 717 P.2d 402 (Alaska Ct. App. 1986); Constantine v. State, 739 P.2d 188 (Alaska Ct. App. 1987); Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988); Thiel v. State, 762 P.2d 478 (Alaska Ct. App. 1988); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Schmidt v. Beeson Plumbing & Heating, 869 P.2d 1170 (Alaska 1994); Gilmore v. Alaska Workers' Comp. Bd., 882 P.2d 922 (Alaska 1994); Raphael v. State, 994 P.2d 1004 (Alaska 2000); Evans v. State, 56 P.3d 1046 (Alaska 2002); Pease v. State, 54 P.3d 316 (Alaska Ct. App. 2002); Scammon Bay Ass'n v. Ulak, 126 P.3d 138 (Alaska 2005); Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371 (Alaska 2007); Huffman v. State, 204 P.3d 339 (Alaska 2009); Vanvelzor v. Vanvelzor, 219 P.3d 184 (Alaska 2009); Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012); Brewer v. State, 341 P.3d 1107 (Alaska 2014); RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056 (Alaska 2015); Sanders v. State, 364 P.3d 412 (Alaska 2015).

II.Application

A.In General

Counting write-in votes. —

Manual count of write-in votes complied with AS 15.15.030 , and did not violate the nominee’s right to equal protection; the methodology used was applied to every precinct, and all ballots and candidates were given equal treatment. Miller v. Treadwell, 245 P.3d 867 (Alaska 2010).

Long-arm statute construed. —

See notes to AS 09.05.015 , Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980); Kennecorp Mortgage & Equities v. First Nat'l Bank, 685 P.2d 1232 (Alaska 1984).

The fundamental requisite of due process of law is the opportunity to be heard. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Family association. —

In a probation revocation case, an argument that restrictions on defendant's ability to see his children or to attend church with his family violated his right to religious freedom or family association resulted in a remand directing the sentencing judge to consider whether the restrictions represent the least-restrictive alternatives. While it might have been appropriate for the court to delegate aspects of implementation to the probation officer, the judge should have defined a structure in which the probation officer's discretion was exercised. Binder v. State, — P.3d — (Alaska Ct. App. Mar. 30, 2016) (memorandum decision).

Disqualification of judge for bias. —

The test for whether a new judge is needed is not only actual bias but such a likelihood of bias or an appearance of bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of the accused. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Waiver of right to change judge. —

The requirement in Civ. R. 42(c)(4) of a knowing waiver of the right to change a particular judge requires that waiver can be found only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial. Any other interpretation would be inconsistent with the apparent reason for this scienter requirement and with the due process right to a fair and impartial trial judge which Alaska’s peremptory challenge provisions are designed to liberally ensure. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Prospective jurors shall be selected by court officials. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Discussion of selection without systematic and intentional exclusion of any groups. —

See Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross section of the community. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Exclusion from jury in criminal cases. —

See note under catchline “Purposeful and systematic exclusion must be shown to invalidate jury,” analysis line II F “Criminal Proceedings.” Kimble v. State, 539 P.2d 73 (Alaska 1975).

Waiver of right to be absent from trial. —

Defendant’s constitutional right to be present at trial did not give him an absolute constitutional right to waive that right. Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013).

If it appeared that the jury selected for a person’s trial would not be “impartial” in the constitutional sense, because not truly representative of the community where the person was to be tried, then the person could make a valid argument that he was not accorded due process of law. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Amendment to AS 09.20.050 . —

A determination of the method for selecting juries is a matter within the legislative prerogative, and the 1969 amendment to AS 09.20.050 was a lawful exercise of legislative authority. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Discussion of applicability of “fair cross section” standard to civil jury selections. —

See Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

When contemnor entitled to jury trial. —

Ordinarily a contemnor is entitled to a jury trial only when incarceration is a possible sanction for his misbehavior. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Give warning before finding of contempt. —

Trial court’s failure to give an attorney warning before finding him in contempt was violative of his right to due process. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

A warning is desirable before punishing all but “flagrant” contempts, since: (1) It may prevent further disorder; (2) it assures the court that the subsequent conduct will be willfully contemptuous and deserving of punishment; and (3) it reduces the risk that attorneys will be deterred by fear of punishment from exercising zealous advocacy. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Summary punishment for contempt found improper. —

Where the trial court convicted and sentenced an attorney for contempt after it had granted a mistrial and the panel of prospective jurors had been dismissed, since the sentence was imposed after the proceeding, the rationale for summary punishment did not exist and notice and hearing on the charges should have been granted. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Imposition of probation conditions without prior notice. —

Alaska Department of Corrections did not propose six of the general conditions of probation that were imposed in the trial court’s written judgment after oral conditions had been announced; imposition of those conditions without prior notice to defendant and without giving defendant an opportunity to be heard violated defendant’s due process rights. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Appeal of class action. —

All a class member need do in order to appeal a class action decision of the Alaska State Commission for Human Rights is to demonstrate that his claim is typical, and that he would adequately represent the class on appeal. Adams v. Pipeliners Union 798, 699 P.2d 343 (Alaska 1985).

Suspension of doctor’s hospital privileges. —

A hospital may summarily suspend a doctor’s privileges if the suspension is in the best interests of patient care and the doctor is afforded a hearing within a reasonable time after the suspension. Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

A hospital erred in suspending a doctor’s privileges without a finding of gross negligence as required by its bylaws. Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

Offset of medical malpractice award. —

Reducing medical expenses paid by prevailing malpractice plaintiff’s insurer from the jury’s medical expenses award, under AS 09.55.548(b) , is a reasonable legislative response to a perceived malpractice insurance crisis, and does not violate substantive due process rights. Reid v. Williams, 964 P.2d 453 (Alaska 1998).

Combination of prosecutorial and adjudicative functions. —

Due process requires some separation between those persons prosecuting a complaint and those adjudicating it; the prosecutor, who has a “probable partiality,” should not be in a position to influence the decision makers. There may, however, be some combination of these functions within a particular agency. In re Walton, 676 P.2d 1078 (Alaska 1983).

When the functions of investigating, prosecuting, and judging have been combined in the same person, due process has been violated. Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

When an administrative official has participated in the past in any advocacy capacity against the party in question, fundamental fairness is normally held to require that the former advocate take no part in rendering the decision. The purpose of this due process requirement is to prevent a person with probable partiality from influencing the other decision-makers. In re Robson, 575 P.2d 771 (Alaska 1978).

The combination of investigative and judicial functions within an agency does not violate due process; a board may make preliminary factual inquiry on its own in order to determine if charges should be filed. In re Robson, 575 P.2d 771 (Alaska 1978).

Combination of judicial and investigative functions in the Commission on Judicial Qualifications under Commission Rule 5(a) did not violate a superior court judge’s due process rights under either the federal or Alaska constitutions. In re Hanson, 532 P.2d 303 (Alaska 1975).

Due process is not offended by the Commission on Judicial Qualifications having the option under Commission Rule 9 to hear the matter itself or to refer the charges to a master for a hearing. In re Hanson, 532 P.2d 303 (Alaska 1975).

Neither considerations of procedural due process nor the rules of procedure of the Commission on Judicial Qualifications provide for separate hearing on the question of the appropriateness of any given sanction. In re Hanson, 532 P.2d 303 (Alaska 1975).

The Alaska Transportation Commission’s use of a hearing officer alone, without the presence of the individual commissioners, violates neither the applicable state statutes nor constitutional due process. Alaska Transp. Comm'n v. Gandia, 602 P.2d 402 (Alaska 1979).

Handling of information by public utilities commission unconstitutional. —

Where both the city of Fairbanks and a corporation sought a certificate of public convenience and necessity to provide telephone service, and the commission ruled that information that the commission requested from the corporation was proprietary and should be kept confidential and did not allow any representative of Fairbanks to see it but a commission staff member saw the information and used it at the determination hearing, the commission’s handling of the information violated procedural due process. City of Fairbanks v. Alaska Pub. Utils. Comm'n, 611 P.2d 493 (Alaska 1980).

Due process not denied where assembly and adjustment board members the same. —

Where the borough assembly sat as a legislative body when it enacted both a grandfather rights ordinance and an ordinance that resulted in the rezoning of the plaintiff’s property, and where it properly sat as a board of adjustment when it revoked the plaintiff’s grandfather rights, the mere fact that the board of adjustment comprised the same members as the assembly did not amount to a denial of due process. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Summary judgment. —

Granting an insurer's summary judgment motion in an insured's action against the insurer did not violate the insured's right to a jury trial because (1) it was well-established that summary judgment did not violate this right, and (2) the insured declined to follow a trial court's advice to contest the motion by filing an affidavit. Patterson v. Infinity Ins. Co., — P.3d — (Alaska Apr. 13, 2016) (memorandum decision).

Bar rule requiring graduation from ABA-accredited law school. —

Given the strong state interest in assuring that those entering the practice of law have had suitable training in adequate institutions, and considering the precedent from other jurisdictions, the supreme court finds that the Alaska bar rule requirement that a bar applicant be a graduate of an American Bar Association-accredited law school, Alaska Bar Rule 2, § 1(b), is valid and does not violate the due process clause of either the Alaska Constitution or the United States Constitution. In re Urie, 617 P.2d 505 (Alaska 1980).

While there is some risk that a person could be deprived of the opportunity to practice law by reason of Alaska Bar Rule I-2, § 1(b), which requires that a bar applicant be a graduate of an American Bar Association-accredited law school, even though he is competent to practice law, such a risk is outweighed by the difficulty which would be presented by making a case-by-case determination of whether the education afforded by an unaccredited law school was comparable to that given by an accredited school. In re Urie, 617 P.2d 505 (Alaska 1980).

Regrading procedures on bar examination. —

Regrading of the California essay portion of the Alaska Bar Exam by Alaska graders, where California graders gave an overall score of 65 — 70 percent, constitutes a reasonable procedure even though no similar regrading procedure exists for Alaska essays; the procedure is consistent with the Board of Governors of the Alaska Bar Association’s broad grant of authority to examine and grade applicants for admission to the Alaska Bar, and satisfies the requirements of equal protection. In re Butterfield, 581 P.2d 1109 (Alaska 1978).

Disciplinary board of Alaska Bar Association. —

The Alaska Bar Rules do not allocate responsibility in disciplinary matters in such a way that there is an impermissible commingling of prosecutorial and adjudicatory functions, although proceedings conducted pursuant to these rules may be subject to attack where there is a commingling of such functions. In re Walton, 676 P.2d 1078 (Alaska 1983).

The disciplinary board is not improperly constituted because one of its members was employed by the department of law in the civil section of the attorney general’s office before the disciplinary proceedings were initiated, when the district attorney sought an indictment against the attorney for the same conduct (preparing false evidence). In re Walton, 676 P.2d 1078 (Alaska 1983).

Disbarment. —

As to disbarment, due process requires only that an attorney have reasonable notice of the charges against him and a reasonable opportunity to be heard in his defense. In re Mackay, 416 P.2d 823 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S. Ct. 1907, 16 L. Ed. 2d 1016 (U.S. 1966).

Bar disciplinary proceedings. —

The disciplinary board’s departure from the hearing committee’s findings and recommendations without calling for briefs or oral argument does not deny an attorney due process, where the attorney waives appeal to the board, as well as oral argument and submission of briefs. In re Walton, 676 P.2d 1078 (Alaska 1983).

Proof by clear and convincing evidence is not required in bar disciplinary proceedings as a matter of federal or state due process. In re Walton, 676 P.2d 1078 (Alaska 1983).

Attorney’s right to procedural due process in disbarment proceedings was not violated by consolidation of grievances. Consolidation of grievances against an attorney is a routine practice in Alaska, as they are often more expeditious than separate hearings. Moesh v. Anchorage Sand & Gravel, 877 P.2d 763 (Alaska 1994).

Disciplining of attorney by supreme court. —

The exercise by the supreme court of the power to discipline an attorney does not contravene any of the provisions of either the federal or state constitution. In re Mackay, 416 P.2d 823 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S. Ct. 1907, 16 L. Ed. 2d 1016 (U.S. 1966).

Taxes generally. —

Due process requires that a tax be related to opportunities, benefits, or protection conferred or afforded by the taxing authority and such a relationship exists if the tax is fairly apportioned to the related commerce. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979).

Income tax apportionment. —

Inclusion of nonproducing oil and gas leases in income tax apportionment formula did not violate the taxpayer’s due process rights since the inclusion was not shown to produce an income attribution out of all appropriate proportions. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Collection of property taxes. —

Under a general property taxation statute, notwithstanding the lack of specific apportionment machinery, a governmental unit may collect an apportioned share of property taxes on property which would otherwise escape taxation. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979).

Denial of right to pro-rata contribution from employer. —

Procedural due process is not offended by depriving the third-party defendant of a right to pro-rata contribution from the employer under AS 23.30.055 . State v. Wien Air Alaska, 619 P.2d 719 (Alaska 1980).

Allocation of half of punitive damages award to state. —

The statutory provision requiring that fifty percent of punitive damages award be deposited in the general fund of the state, AS 09.17.020(j) , does not violate substantive due process, nor does it result in an unconstitutional taking. Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 807 (Alaska 2005).

Imposition of punitive damages in a products liability case does not violate the state and federal constitutions. Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), modified, 615 P.2d 621 (Alaska 1980), overruled, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985).

Where, in a products liability case, the jury was instructed to consider whether the defendant knew its design was defective and had caused injuries or death; the jury was then told that if the defendant “acted with reckless indifference toward the safety of its customers, or that its acts were maliciously or wantonly done,” punitive damages could be awarded in addition to compensatory damages; and the trial judge cautioned the jury to exercise discretion and reason and not to be motivated by sympathy, bias, or prejudice with regard to the punitive damages question, these standards were sufficient to meet a void-for-vagueness challenge. Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), modified, 615 P.2d 621 (Alaska 1980), overruled, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985).

AS 46.03.760 and 46.03.790 do not violate the due process clause. Stock v. State, 526 P.2d 3 (Alaska 1974).

The penalty provisions of AS 46.03.760 and 46.03.790 do not constitute cruel and unusual punishment nor are they so completely arbitrary and shocking to the sense of justice that they must be stricken. Stock v. State, 526 P.2d 3 (Alaska 1974).

As to constitutionality of AS 46.03, see note under analysis line II D, “Vagueness,” — under catchline “Alaska Environmental Conservation Act (AS 46.03) is not void for vagueness,” etc.

The legislative statement of finality in former AS 43.26.040(e) is one which the supreme court will honor to the extent that it accords with constitutional guarantees. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

Construction of former AS 47.40.040 to preclude retroactive cost settling. —

Construing former AS 47.40.040 , which provides the method of determining the “full cost” of services purchased by the Department of Health and Social Services for persons for whom the state has assumed responsibility, to preclude retroactive cost settling did not deny a party providing such services due process or equal protection of the laws. Alaska Children's Servs. v. Williamson, 606 P.2d 786 (Alaska 1980).

Elimination of portion of military personnel from population base in the 1974 revised reapportionment plan did not constitute an unconstitutional employment classification violative of due process and equal protection. Groh v. Egan, 526 P.2d 863 (Alaska 1974).

Ballot access requirements. —

Where there was no evidence that the ballot access requirement in AS 15.25.160 , which was the equivalent of requiring a petition with signatures equal in number to 1 percent of votes cast in last election, caused confusion among voters or any other problem, the increase to a 3 percent minimum in order to make all ballot access requirements uniform violated the right of equal protection by effectively eliminating a new political party’s access to the ballot. Vogler v. Miller, 651 P.2d 1 (Alaska 1982).

Right to vote not denied residents of temporarily-existing borough. —

Where the Eagle River-Chugiak Borough was officially incorporated on September 12, 1974, but the act authorizing the residents of that area to vote on the question of whether or not to form a second class borough was held unconstitutional in Abrams v. State , 534 P.2d 91 (Alaska 1975) on April 15, 1975, and the Eagle River-Chugiak area was automatically reincorporated into the Greater Anchorage Area Borough, the Eagle River-Chugiak area residents were not unconstitutionally denied the right to vote in a February 11, 1975 election held in the Greater Anchorage Area Borough in which the creation of a charter commission was approved, and its members elected. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Absent any refusal of the right to vote in an election which was in fact, at the time, in a political entity separate and distinct from the Eagle River-Chugiak area, there was no denial of due process. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Ordinance creating a service area to operate a hospital in a portion of the borough was not an arbitrary act denying substantive due process. Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447 (Alaska 1974), overruled in part, Ronne v. Ronne, 568 P.2d 1021 (Alaska 1977).

Disenrollment of natives constitutional. —

Regulations of the Secretary of the Interior prescribing the procedure for disenrollment of natives enrolled under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq., do not violate the due process clause. Sealaska Corp. v. Roberts, 428 F. Supp. 1254 (D. Alaska 1977).

Highway regulation standards adopted by reference to federal safety code. —

Agencies of the state should make highway regulation standards adopted by reference to the United States Standards Institute Safety Code available to the public at regional offices in the same manner that former AS 29.45.010 required that municipal corporations file codes adopted by reference with the office of the clerk for the inspection and use of the public. Such a practice would ensure that the individual not be deprived of his due process right to know the status of laws and regulations affecting him. Kingery v. Chapple, 504 P.2d 831 (Alaska 1972).

Civil R. 82, under which awards of attorney’s fees to defendants were made, did not violate the due process and equal protection clauses of the state and federal constitutions, insofar as it allowed attorney’s fees to be awarded against plaintiffs who litigated good-faith claims, since such argument completely ignored the financial burden that such plaintiffs imposed upon those who were forced to defend against such actions in equal good-faith. Stepanov v. Gavrilovich, 594 P.2d 30 (Alaska 1979).

Motor vehicle offenses. —

For offenses relating to motor vehicles, see notes under analysis line II F, “Criminal Matters.”

Revocation of driver’s licenses. —

The claim that under former AS 28.15.210 [see now AS 28.15.181 ], which authorized mandatory revocation of driver’s licenses, the denial to second and subsequent drunk driving offenders of the opportunity to show that they were entitled to a limited license was a violation of the due process clause was frivolous. State v. Guarderas, 589 P.2d 870 (Alaska 1979).

AS 25.27.246(i) , concerning relief from suspension of delinquent child support obligors’ driver’s licenses, cannot be applied to prevent a litigant from seeking judicial relief based on inability to pay; with that limitation, AS 25.27.246(i) passes constitutional muster against the claim that it violates due process. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

No right to demand preliminary breath test. —

District court did not err by denying defendant's motion to suppress the DataMaster results based on the police officer's decision not to administer a preliminary breath test (PBT) at the scene of his arrest as Alaska's Due Process Clause did not require the police to offer a motorist any particular test. Leydon v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. June 16, 2021) (memorandum decision).

Breath test not conclusively presumed accurate. —

Since the same procedural safeguards apply in civil driver’s license revocation proceedings for driving while intoxicated as apply in criminal prosecutions for that offense, due process requires consideration of the margin of error inherent in the breath testing procedure used pursuant to AS 28.35.031(a) , the implied consent law. Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987).

Liability standard of alcohol seller. —

Since the intoxicated consumer of alcohol can reasonably be regarded as the actor most responsible for the personal injuries caused in an automobile accident, requiring particularly egregious conduct by the liquor seller as a prerequisite to finding the seller liable is at least minimally rational. Thus, plaintiff’s due process claim fails. Gonzales v. Safeway Stores, 882 P.2d 389 (Alaska 1994).

The Employment Security Act, in giving the state a lien against property of a third person used with his permission in prosecuting the business of an employer (AS 23.20.200 ), does not deprive such third person of his property without due process of law. Territory v. Craig Enters., 355 P.2d 397 (Alaska 1960).

The exclusive liability provision of the Workmen’s Compensation Act [AS 23.30] does not violate substantive due process since it has a reasonable relationship to a legitimate governmental purpose. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

In an action by an employee who sustained on-the-job injuries to which both his employer and third-party defendants negligently contributed, the third-party defendants were not deprived of any available defenses by the refusal of the superior court to allow them to present the employer’s negligence as a partial defense to liability. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

The workers’ compensation statute’s definition of “medical stability,” its burden of proof, and its presumption of medical stability are constitutional and do not violate substantive due process. Municipality of Anchorage v. Leigh, 823 P.2d 1241 (Alaska 1992).

Due process right to worker’s compensation held not infringed. —

Oil rig worker, who was employed by a contractor, brought a third-party suit against an oil company for work-related injuries; the worker’s due process rights were not infringed by the 2004 amendments to AS 23.30.045 and AS 23.30.055 because the worker still had access to the courts, and the worker still had a worker’s compensation claim. Schiel v. Union Oil Co., 219 P.3d 1025 (Alaska 2009), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

Distinctions between vocational and academic training. —

The distinctions drawn in the unemployment compensation law between vocational training and academic training are reasonable, not arbitrary, and are fairly and substantially related to their purposes. Thus, the distinctions do not violate the state’s equal protection or substantive due process guarantees. Sonneman v. Knight, 790 P.2d 702 (Alaska 1990).

Calculations of Medicaid reimbursement rate. —

Alaska Department of Health and Social Services (DHSS) violated a hospital’s due process rights under Alaska Const., art. I, § 7 when it used erroneous information to calculate a Medicaid reimbursement rate under 7 AAC 43.685 because application of the regulation was not reasonable since there was no compelling reason for using inaccurate data; however, a superior court should not have ordered DHSS to use a report to calculate the correct rate because that was not the only reasonable method of doing so. State v. Valley Hosp. Ass'n, Inc., 116 P.3d 580 (Alaska 2005).

Termination of public employees. —

Public employees who may be terminated only for just cause have a property interest in continued employment. City of North Pole v. Zabek, 934 P.2d 1292 (Alaska 1997).

The apparent absence of dispute over dispositive facts did not make a summary termination without a pre-termination hearing acceptable; a hearing was required to give the employee the opportunity to present facts which, if developed, might weigh against termination. City of North Pole v. Zabek, 934 P.2d 1292 (Alaska 1997).

Former paragraph (p)(7) of AS 23.30.041 [now AS 23.30.041 (r)(7)] does not violate the equal protection clause and due process clause of the Alaska constitution. Meek v. Unocal Corp., 914 P.2d 1276 (Alaska 1996).

No exception to filing deadline in AS 16.43.260(b) . —

Neither due process nor equal protection requires an exception to the filing deadline in AS 16.43.260(b) for applicants who can demonstrate that they failed to timely file because of insanity. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Notice to gear license holders of necessity to apply for limited entry permits was sufficient as to those who received yellow cards, were on the fisherman’s history file and received commission mailings, and where there was extensive media coverage; however, notice was constitutionally defective as violative of due process, under Isakson v. Rickey , 550 P.3d 359 (Alaska 1976), as to applicants who received the application itself, but whose names were dropped from the fisherman’s history file and did not receive subsequent commission mailings. Wickersham v. Commercial Fisheries Entry Comm'n, 680 P.2d 1135 (Alaska 1984).

The deadline requirement for permits under the Limited Entry Act did not violate the equal protection provision of the Alaska or federal constitutions. Wickersham v. Commercial Fisheries Entry Comm'n, 680 P.2d 1135 (Alaska 1984).

Requirements for entering gill net fishery. —

Setnetter who sought a limited entry permit for the southeast Alaska drift gill net fishery from the commercial fisheries entry commission had the right to have his application judged by the objective criteria of the commission’s point system, and that right implicated due process considerations under both the state and federal constitutions. Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200 (Alaska 1990).

Hearing provision in AS 16.43.260 held constitutional. —

The provisions in AS 16.43.260 of the Limited Entry Act which provide for a hearing at the classification stage for those persons who have received notice that they do not have sufficient points for the issuance of an entry permit sufficiently comports with the requirements of due process. Noden v. Commercial Fisheries Entry Comm'n, 680 P.2d 493 (Alaska 1984).

Perpetrators of crimes barred from recovering damages. —

Former AS 09.17.030 [now AS 09.65.210 ], which bars recovery of damages by persons injured while committing a crime, did not deprive an arrestee of due process, where he filed a personal injury action against state troopers for allegedly using excessive force in apprehending him. Sun v. State, 830 P.2d 772 (Alaska 1992).

Restrictions on nonresident fishermen. —

Chapter 62, SLA 1961, placing certain restrictions on nonresident fishermen, violated the provisions of this section. Brown v. Anderson, 202 F. Supp. 96 (D. Alaska 1962).

Failure to preserve evidence. —

In action against skippers of crab vessels for taking undersized crab, since the skippers had a reasonable opportunity to preserve the evidence, the state’s inability to produce the crab later did not violate the skippers’ discovery rights or their right to due process. Gudjonnson v. State, 667 P.2d 1254 (Alaska Ct. App. 1983).

For failure to preserve evidence in criminal proceedings, see same catchline under analysis line II F, “Criminal Matters.”

Proving civil negligence. —

Outside of strict liability exceptions, a separate showing of simple civil negligence is both necessary and sufficient under Alaska’s Constitution. The negligence standard is constitutionally permissible because it approximates what the due process guarantee aims at: an assurance that criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter. State v. Hazelwood, 946 P.2d 875 (Alaska 1997).

A simple or ordinary civil negligence standard is adequate to protect a criminal defendant’s interest. Thus, the court’s adoption of an ordinary civil negligence mens rea standard in its instructions to the jury did not constitute a denial of due process. State v. Hazelwood, 946 P.2d 875 (Alaska 1997).

Zoning ordinance which excluded all nonpublic schools from a residential area was constitutionally permissible, and city was not compelled to allow plaintiff to operate a parochial school in its church building located in the area. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982).

Spot zoning. —

Where the plaintiff’s brief did not allege facts that amounted to a prima facie case of spot zoning, but made only conclusory statements regarding the decision to rezone the area in which her junkyard was located, there was nothing to support her claim that the action was carried out in an unconstitutionally arbitrary way, and plaintiff failed to meet her heavy burden of proving that the refusal to exempt her property had no reasonable relationship to a legitimate governmental purpose. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Ordinance regulating massage parlors. —

The requirement in an ordinance that an applicant for a masseur/masseuse license or license to operate a physical culture studio or massage parlor have a record, for two years prior to the date “of employment,” free of the sexually related criminal convictions listed in the ordinance, was invalid as an unconstitutional deprivation of the due process rights of an applicant so situated. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

An ordinance which automatically disqualified those convicted of a prostitution-related offense within two years prior to the date of “application” for a masseur/masseuse license or license to operate a physical culture studio or massage parlor did not violate such applicants’ right to due process protection. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Recalculation of child support. —

Child Support Enforcement Division (now the Child Support Services Agency) failed to provide the constitutional safeguards required under this section in recalculation of child support obligation where it failed to provide obligor father adequate notice of proceedings and did not allow him to meaningfully participate in either informal conference or formal appeal. Bostic v. State, Dep't of Revenue, 968 P.2d 564 (Alaska 1998).

Termination of parental rights. —

Due process does not in all cases require the transport of an incarcerated parent to a trial to decide the termination of parental rights. The trial court must consider all relevant factors, including the disputed issues, whether a parent plans to testify, the relevance of a parent’s testimony to the disputed issues, the costs to the state — financial, administrative, and legal — and any threat to public safety, in deciding whether to grant a motion by a parent to be transported to a termination hearing. Richard B. v. State, 71 P.3d 811 (Alaska 2003).

Child custody proceeding. —

Mother’s due process rights were violated when the court indicated that interim custody issues would be decided at next hearing but then concluded that hearing with findings to support a final custody and visitation order; the court did not clarify that it was prepared to enter a final ruling until after the parties made their final arguments. Debra P. v. Laurence S., 309 P.3d 1258 (Alaska 2013).

B.Property Rights

Appeal from land use decision. —

Definition of an aggrieved person in Homer, Alaska, City Code §§ 21.68.020(c), 21.68.040(b) as one who is adversely affected by a land-use decision does not conflict with AS 29.40.050 , 29.40.060 . Moreover, the city clerk’s rejection, pursuant to these ordinances, of a notice of appeal submitted by an objector who did not meet the definition of an aggrieved person did not violate the objector’s due process and equal protection rights under Alaska Const. art. I, §§ 1, 7, and U.S. Const. amend. XIV, § 1, nor did the city clerk act arbitrarily in so doing. Griswold v. City of Homer, 252 P.3d 1020 (Alaska 2011).

Vested property rights are protected against state action by the provision of the 14th amendment of the federal constitution and by this section. Bidwell v. Scheele, 355 P.2d 584 (Alaska 1960); Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, 580 P.2d 687 (Alaska 1978), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Because the plaintiff had a vested property right in her junkyard in that it was a lawful use within the original zoning district, and it only became a nonconforming use when the district was rezoned rural residential, her right in operating her junkyard could not be denied her without due process of law. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Due process denied where no opportunity was afforded for compliance. —

The plaintiff did not receive all the process to which she was entitled where she was given no opportunity to proceed with her attempted compliance after rezoning and where no evidence was offered that she would not or could not comply with the relevant ordinance. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Decisions broadly interpreting “property” protected by due process. —

See Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Foreclosure notice. —

City’s failure to provide written foreclosure notice did not violate a property owner’s right to due process because the owner, as a lienholder and not a property owner, was not due foreclosure notice. Tagaban v. City of Pelican, 358 P.3d 571 (Alaska 2015).

An interest in a lawful business is a species of property entitled to the protection of due process. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Bidders on governmental contracts. —

Plaintiff transportation company’s due process rights were not violated in its action to void a contract awarded to another transportation company by a school district because its status as a disappointed bidder did not entitle it to the entire panoply of formal procedural safeguards that attached when a proceeding concerned a vested property interest, in that the applicable administrative code in effect at the time granted comprehensive discretion not to award the contract to any bidder and thus could not properly be read as having created a property interest. Further, the record as a whole supported an inference that the district did not intentionally delay release of its bid recommendation to plaintiff. Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d 1018 (Alaska 2005).

Driver’s license suspension. —

Motorcyclist was not entitled to criminal due process for suspension of his driver’s license for failure to carry insurance. While the license is a property interest, the failure to carry the required insurance is directly related to unfitness to drive, and suspension is a remedial action. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Due process properly followed in municipal tour operator’s license denial. —

Actions of borough in denying renewal of tour operator’s license due to multiple complaints regarding his actions and behavior as a tour operator was properly handled, and the tour operator was given sufficient opportunity to answer the findings which were the basis for the denial. Button v. Haines Borough, 208 P.3d 194 (Alaska 2009).

Liquor licensees entitled to notice before licenses suspended. —

Absent an emergency situation in which the public health, safety or welfare require summary action, the due process clause of the United States Constitution and this section require that adequate notice and a meaningful opportunity to be heard must be afforded to liquor licensees before their licenses can be suspended. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Because the Alcoholic Beverage Control Board employs discretion, the only way in which appellant can seek to invoke the discretion in its favor is through a hearing. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Masseur license. —

Due process protection may be invoked as to the issuance of masseur/masseuse license or operator license for a massage parlor. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

A hunting guide license is a sufficient property interest to qualify for the protection of due process. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

In the suspension of a hunting guide license the requirements of adequate notice and opportunity for a hearing are required. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

The state’s power over natural resources is such that it could entirely eliminate the role of hunting guides, and no problem of due process would arise. However, when the state decides to permit the harvesting of its fish and game, and in doing so permits the issuance of hunting guide licenses, then problems of due process do arise when the individual, rather than the group as a whole, is affected. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

An applicant for a limited fishery entry permit has a property interest, under AS 16.43.260 and the regulatory scheme implementing it, and is entitled to due process protection. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

“Taking” of attorney’s personal services impermissible. —

Imposing upon the attorney as a condition to practice a requirement which would demand the rendering of personal services without just compensation would in itself be an impermissible infringement of Alaska’s due process clause and, thus, may not serve as the basis for avoiding the provisions of the taking clause. De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Employee’s property interest in job. —

The protections of due process apply only when an individual has a life, liberty, or property interest to protect, and an employee has a property interest in his or her job only when he or she has a legitimate expectation of continued employment; employees who have tenure or who can be fired only for cause have property interests in their jobs. Chijide v. Maniilaq Ass'n, 972 P.2d 167 (Alaska 1999).

A person who is employed “at the pleasure” of his employer has no property interest in continued employment that is protected by due process. Breeden v. City of Nome, 628 P.2d 924 (Alaska 1981).

Persons who are employed other than “at will” have a sufficient property interest in continuing their employment, absent just cause for their removal, to require that they be given notice and an opportunity to be heard under the due process clause of the Alaska Constitution before their employment is terminated. Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983).

Employment contract. —

City manager’s contract with a city providing for 30 days’ notice of termination from either party created a “property” interest that was a legitimate expectation of continued employment protectible under the due process clauses of both the federal and Alaska constitutions. Breeden v. City of Nome, 628 P.2d 924 (Alaska 1981).

Police chief’s contract with city providing that he could be discharged without cause upon 30 days’ notice gave him a property interest only in the notice period, and, even though he was deprived of this property interest when he was terminated without notice, prejudice caused thereby was removed by the payment of compensation for the 30-day period. Ramsey v. City of Sand Point, 936 P.2d 126 (Alaska 1997).

Employee had a property interest in continued employment for the 60 and 90 days’ notice periods incorporated into her contract, and employer who complied with the notice requirements did not violate employee’s rights by ending her employment. Chijide v. Maniilaq Ass'n, 972 P.2d 167 (Alaska 1999).

Dismissal of nontenured teachers. —

Where a mid-year dismissal of nontenured teachers is at issue, clearly the teachers have been deprived of an interest in property, namely, their present teaching post. This is an interest protected by the 14th amendment to the United States Constitution and by the first article of the Alaska Constitution, and thus they are entitled to a hearing. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

The interest of nontenured teachers in not being dismissed without a hearing is manifest. Without an opportunity to be heard and to present their cases, they could be dismissed without good cause and with a serious charge of incompetency levied against them, a charge which is permanently on their records and a hindrance to reemployment. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

See note under catchline “Dismissal of nontenured teachers,” analysis line II C “Notice and Hearing,” Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Property distribution in divorce not violative of due process. —

Property distribution order was not void under Alaska R. Civ. P. 60(b) and did not violate the husband’s due process rights where the language in the prayer for relief was sufficient to put the husband on notice that the trial court would divide the marital estate; because the husband elected to default in the face of that notice, the trial court could properly exercise its jurisdiction and adjudicate the property rights of the parties, and the property division order was consistent with Alaska R. Civ. P. 54; further, Alaska R. Civ. P. 90.1 allowed parties to a divorce proceeding to file a list of disputed items five days before trial. Hicks v. Pleasants, 158 P.3d 817 (Alaska 2007).

Corporation applying for a mining lease has no property right of which it is deprived by the director of land’s denial of the application. State, Dep't of Nat. Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806 (Alaska 1978).

Failure to effectively dispute action of state. —

Alaska Department of Natural Resources (DNR) Commissioner did not violate the interest holders’ right to due process where the interest holders did not object to the Commissioner’s response or give notice of specific disputed material facts that warranted a hearing, nor did they seek to submit additional material to support their cursory appeals; they failed to submit additional information with a request for reconsideration. Law Offices of James B. Gottstein v. State, 223 P.3d 609 (Alaska 2010).

Seizure of vessel for suspected use in illegal activity. —

Due process does not require that any owner of a vessel seized by the state for suspected use in illegal activity has an absolute right to obtain release of the property upon the posting of an adequate bond. To permit this would frustrate one purpose of forfeitures, which is to prevent possible use of the property in further illicit acts. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

When the seized property is used by its owner in earning a livelihood, notice and an unconditioned opportunity to contest the state’s reasons for seizing the property must follow the seizure within days, if not hours, to satisfy due process guarantees even where the government interest in the seizure is urgent. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

When three owners of a fishing vessel were active partners in the enterprise of operating the vessel, it was not unduly oppressive to charge two of the owners with knowledge and control of that vessel’s illegal activity even though they were not on board with the third owner at the time of the alleged infractions. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

Remission of forfeited items to innocent third parties. —

Where property is forfeited under AS 16.05.195 , if an innocent nonnegligent third party can show the manner in which the property came into possession of the violator and that prior to parting with the property he did not know, nor have reasonable cause to believe, either that the property would be used to violate the law, or that the violator had a criminal record or a reputation for commercial crime, substantive due process under the Alaska Constitution requires that a procedure be available for remission of the forfeited item. State v. Rice, 626 P.2d 104 (Alaska 1981).

An innocent holder of an interest in a seized airplane who did all he could reasonably be expected to do was deprived of his constitutional rights to substantive due process through the failure of the statutory scheme relating to forfeitures to provide for remission of the interests of innocent nonnegligent third parties in the forfeited item. State v. Rice, 626 P.2d 104 (Alaska 1981).

Application of slayer statute did not violate due process. —

Application of the slayer statute, AS 13.12.803(k) , to a son convicted of negligent homicide of father did not violate son’s due process rights regarding alleged loss of partnership interest with father, where son had had a hearing in superior court and failed to present any evidence regarding the alleged partnership or joint venture interests he had with his father, evidence suggested he did not have any partnership interest in the father’s business, and, even if he had had a partnership interest, it was not clear that the slayer statute would cause him to forfeit his own share of the partnership. Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Damage to district court judge’s reputation as a result of the operation of the peremptory challenge statute was not deprivation of a sufficient property interest to afford due process protection. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Parolee denied access to judicial process. —

See note under catchline “AS 33.15.190 violates section,” analysis line II F “Criminal Matters,” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

A deprivation is not necessarily “de minimus” merely because the defendant’s loss can be measured in monetary terms and “remedied” by damages for wrongful attachment. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

See notes under analysis line II C, “Notice and Hearing,” Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Meaning of “de minimus”. —

“De minimus” might refer to attachment of real property already heavily encumbered, therefore not significantly diminishing the debtor’s use of that property pending litigation. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Prescriptive easements. —

Landowner’s due process rights were violated where landowner did not have notice that a right-of-way, pursuant to former 43 U.S.C.S. § 932, was at issue; however, the trial court properly found that a prescriptive easement existed over the landowner’s land, as even though the landowner only owned the agricultural interest in the land, the landowner could grant an easement, or alternatively could have a prescriptive easement granted against the landowner, that did not interfere with the landowner’s mandate to use the land for agricultural purposes, and the prescriptive easement did not violate AS 38.95.010 . Price v. Eastham, 75 P.3d 1051 (Alaska 2003).

Absolute requirement of filing fee violated due process. —

Where a property owner challenged a borough’s land-use ordinance, because the property owner’s access to the legal system was contingent on payment of the borough’s mandatory administrative filing fees, the borough’s absolute requirement for payment of such fees, without a process for waiver upon a showing of indigency, would have violated the property owner’s right to procedural due process if the property owner was in fact indigent. Varilek v. City of Houston, 104 P.3d 849 (Alaska 2004).

Agency records. —

Residents challenged plans of the Alaska Department of Environmental Conservation (DEC) for various shipping entities with respect to oil discharge. DEC violated the residents’ due process rights by dismissing the residents for failure to pay preparation costs for the agency’s record and for denying access to the record pending “completion”. Copeland v. Ballard, 210 P.3d 1197 (Alaska 2009).

C.Notice and Hearing

Deprivation of life, liberty or property by adjudication must be preceded by notice and opportunity for hearing appropriate to the nature of the case. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974); Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Due process of law requires that before valuable property rights can be taken directly or infringed upon by governmental action, there must be notice and an opportunity to be heard. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974); Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

The supreme court has emphasized the fact that providing a party notice and an opportunity for a hearing is constitutionally required before that party may be permanently deprived of valuable property rights. Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

The standards of due process under the Alaska and federal constitutions require that a deprivation of property be accompanied by notice and opportunity for hearing at a meaningful time to minimize possible injury. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

The core content of procedural due process places upon government the duty to give notice to individuals whose interests in life, liberty or property are adversely affected by government action. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

The crux of due process is opportunity to be heard and the right to adequately represent one’s interests. Adequate notice is the common vehicle by which these rights are guaranteed. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

The notice must be of such nature as reasonable to convey the required information. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Due process required that a class of recipients of services under a personal care attendant program under Medicaid be provided a meaningful opportunity to understand, review, and challenge reduction of services imposed by the department of health and human services; notices sent by the department violated due process in failing to provide the assessment data of each recipient’s social, medical, and nursing needs, as necessary for each recipient to perfect an administrative appeal. Baker v. State, 191 P.3d 1005 (Alaska 2008).

Notice given. —

Alaska Department of Natural Resources (DNR) did provide the gas producer with notice of its decision on the producer’s request, and the producer had the opportunity to present its arguments to DNR, and after the producer submitted its request, DNR rejected the request because it was retroactive; because the producer had both adequate notice and a fair opportunity to present its claims, its due process rights were not violated. Potter v. Potter, 55 P.3d 726 (Alaska 2002).

Subject matter of proceedings. —

Due process under the Alaska Constitution requires, at a minimum, that parties be notified of the subject of proceedings concerning them so that they will have a reasonable opportunity to be heard. Here this requirement was not met, so appellant’s due process rights were violated. Appellant had been given no notice that modification of decreed visitation was at issue — indeed, based on the court’s rulings, both parties reasonably expected that decreed visitation would not be at issue. Potter v. Potter, 55 P.3d 726 (Alaska 2002).

Notice must be given sufficiently in advance. —

Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity. RLR v. State, 487 P.2d 27 (Alaska 1971); Doe v. State, 487 P.2d 47 (Alaska 1971).

If the right to notice and hearing is to serve its full purpose, then it is clear that it must be granted at a time when the deprivation can still be prevented. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Cure for lack of proper advance notice. —

Even though the Alaska Department of Natural Resources violated an environmental group’s right to due process by hearing and granting an oil company’s motion to lift the automatic stay provided by 11 AAC 02.060 with only one day’s notice, the department later cured that violation by permitting the group to move for reconsideration and by granting the group time to review the administrative record. State v. Greenpeace, Inc., 96 P.3d 1056 (Alaska 2004).

Weight of property interests relevant to notice and hearing. —

The relative weight of property interests interfered with by prejudgment remedies is relevant to the form of notice and hearing. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Usually due process requires some form of notice and hearing. —

But except in the “extraordinary situations,” due process requires some form of notice and hearing to establish the probable validity of a creditor’s underlying claim before the debtor can be temporarily deprived of a property interest that “cannot be characterized as de minimus.” Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Requisite elements for “extraordinary circumstances”. —

As to extraordinary circumstances justifying a prehearing seizure, the requisite elements are: (1) The seizure must be directly necessary to secure an important governmental or general public interest; (2) There must be a special need for very prompt action; (3) The state must maintain strict control over such summary prehearing seizures by permitting only those governmental officials who are responsible for determining the necessity and justification for summary seizure to do so under narrowly drawn standards. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Notice defective where recipient was unprotected incompetent. —

Notice effected in a valid, statutorily authorized manner was constitutionally defective where the recipient was known to be an unprotected incompetent. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

The summons served upon indigent bush defendants in a small claims action was constitutionally defective because it did not adequately convey the information necessary to their defense against a creditor’s claim. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

A notice that failed to inform indigent bush defendant of the right to file a written pleading was not reasonably calculated to afford him an opportunity to be heard at a meaningful time and in a meaningful manner. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Defendant could not complain of lack of adequate notice. —

A defendant charged with having polluted the waters of the state by contaminating a creek with improperly treated sewage from a trailer court in a manner which made the creek a potential health and safety hazard in violation of AS 46.03.710 may not complain of lack of adequate notice as to what acts are prohibited. Stock v. State, 526 P.2d 3 (Alaska 1974).

Defendant could not complain of lack of adequate notice. —

Licensee’s due process rights were not violated due to the revocation of a chauffeur’s license after the receipt of a final citation because the licensee received notice prior to the revocation, the informal procedures in place provided adequate review, and receipt of the ruling 7 months after revocation was not an unduly long time. The availability of a post-deprivation hearing further supported the conclusion that there was no due process violation. Patrick v. Municipality of Anchorage, 305 P.3d 292 (Alaska 2013).

Delay attributable to defendant. —

Parolee who fought extradition from Tennessee to Alaska could not assert a violation of the 120-day period provided for in AS 33.16.220(f) ; the delay in the hearing was caused by the defendant’s efforts to block extradition and therefore the delay was attributable to him. Covington v. State, 938 P.2d 1085 (Alaska Ct. App. 1997).

Defendant was denied due process of law where inadequate notice was given of the boundaries of the park in which discharging of a firearm was prohibited. Wacek v. State, 530 P.2d 751 (Alaska 1975).

The burden placed upon the defendant to locate the boundaries of a park which has no signs marking its boundaries, which was shown on no published map, and the existence of which was mentioned in no fish and game regulation issued to hunters, was unreasonable, given the relative ease with which some corrective measure might be taken. Wacek v. State, 530 P.2d 751 (Alaska 1975).

Notice required prior to being held in contempt. —

Continental Ins. Cos. v. Bayless & Roberts, 548 P.2d 398 (Alaska 1976).

When inadequate statute sustained. —

A statute which fails to give adequate notice of every type of conduct which is prohibited may still be sustained (1) if the offense charged falls squarely within its prohibitions and (2) if a construction may be placed upon the statute so that its reach may be reasonably understood in the future. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

Due process does not require a full-scale hearing in every situation to which due process applies. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

There is no due process requirement that there be a hearing in the absence of substantial and material issues crucial to the determination of the right involved. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Because the determination to be made in suspending a license is simply whether to impose a temporary sanction and, if imposed, its extent rather than an adjudication of guilt or innocence, it is not necessary for the Alcoholic Beverage Control Board to make written findings or to file a written opinion explaining its action, so long as it reaches a decision after hearing the licensee’s presentation. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Where it was the failure to operate the licensed premises for at least 30 8-hours days during each of the two preceding years, rather than criminality, which was the basis for the denial of a license renewal, the licensee was not entitled to a judicial proceeding with a jury trial prior to the denial of the renewal, and thus adequate notice and an opportunity to be heard in a meaningful, impartial administrative hearing was sufficient to satisfy due process requirements. Rollins v. Department of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202 (Alaska 1999).

Workers’ compensation proceedings. —

Where an employee received advice from a hearing officer which adequately informed him of his obligation to request a hearing on his workers’ compensation claims within two years, employee’s procedural due process rights were not violated under AS 23.30.110(c) . Since claimant filed his request for a hearing more than two years after receiving that advice, any deficiencies in previous written notices had no effect on his claims. Bailey v. Texas Instruments, Inc., 111 P.3d 321 (Alaska 2005).

Because physician had an independent right to file a claim and employee could not adequately represent his interest, he had a cognizable property interest in filing an independent claim and his interest was entitled to due process protection; because AS 23.30.097(f) could foreclose the physician’s ability to sue employee for payment of unpaid medical bills, or at least make collection problematic even without the complication of the employee’s bankruptcy, due process required his joinder. Barrington v. Alaska Communs. Sys. Group, Inc., 198 P.3d 1122 (Alaska 2008), modified, — P.3d — (Alaska 2009).

Proceeding not to result in subsequent deprivation of rights. —

The outcome in one proceeding may not result in the subsequent deprivation of rights that were not litigated or subject to deprivation in the prior proceeding. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

For a hearing to meet the standard for due process it must have been fair, appropriate and adequate, and the participants must have had an opportunity to protect their rights and make a showing by evidence. Fenner v. Bassett, 412 P.2d 318 (Alaska 1966).

Failure to object waives right to notice. —

A master’s decision to determine the paternity of a child at a hearing to modify child support did not violate due process, where the alleged father did not object when the master announced at the beginning of the hearing that he would resolve the paternity issue, when he asked if anyone had a problem with his taking testimony on both issues, or when he directed his questions to the paternity issue. Also, the father’s failure to object timely at the hearing was not excused because he was not represented by counsel, as even a pro se litigant must make some attempt to assert his or her rights. Wright v. Black, 856 P.2d 477 (Alaska 1993), overruled, B.E.B. v. R.L.B., 979 P.2d 514 (Alaska 1999).

Academic dismissal. —

To satisfy the guarantee of procedural due process, notice of dissatisfaction and possible dismissal must precede an academic dismissal by a reasonable time so that a student has a reasonable opportunity to cure his or her deficient performance. Nickerson v. University of Alaska Anchorage, 975 P.2d 46 (Alaska 1999).

High school ROTC instructor’s unpaid suspension violated due process. The school board was obligated, though, to pay his salary only until he could have reasonably received a hearing had he not consented to a delay. Romulus v. Anchorage Sch. Dist., 910 P.2d 610 (Alaska 1996).

Chauffeur’s license revocation. —

Licensee’s due process rights were not violated when a hearing officer submitted a report relating to the revocation of a chauffeur’s license and it was accepted by a commission because there was no reason why the licensee should have had an additional opportunity to reargue the evidence presented at an administrative hearing in front of the commission; an issue relating to a lack of notice of the proposed decision was not addressed because the licensee failed to show prejudice. Patrick v. Municipality of Anchorage, 305 P.3d 292 (Alaska 2013).

Dismissal of nontenured teachers. —

AS 14.20.180 , providing procedure and hearing upon notice of dismissal or nonretention of a teacher, does not mention any procedure to ensure fairness in the dismissal of a nontenured teacher, other than notification of the cause for dismissal. However, a hearing is the procedure most likely to lead to a fair determination. The stigma which attaches to a discharge for incompetence is sufficiently injurious to call for this type of safeguard. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Even though a hearing is not accorded to nontenured teachers by statute, the constitutional requirements of due process overcome any statutory rule. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

A full judicial hearing is not necessary, but a hearing that allows the administrative authority to examine both sides of the controversy will protect the interests and rights of all who are involved. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

The supreme court realizes that a full judicial hearing could be time consuming and, therefore, possibly detrimental to the interests of a school district, which might be required to delay the dismissal of a perhaps unsuitable or incompetent teacher. But the rudiments of an adversary hearing can be preserved without casting an undue burden on the school district. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

In a hearing prior to dismissal for cause of nontenured teachers, the teachers must be given the opportunity to present their own defense by testimony and other evidence. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Where the nature and consequences of the charge are serious, as the charge of incompetency against a teacher, the right to present witnesses on one’s behalf is manifest: A hearing in which only one side presents evidence is inherently unfair. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Courts more inclined to consider causes of discharge. —

Although courts in the past have frequently held that public employees have no absolute right to a hearing on discharge, because government employment is a privilege and not a property right, courts recently have become more inclined to consider the causes of discharge and the methods and procedures by which it is effected, especially where the discharge affects reputation and the opportunity for employment thereafter. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Evidentiary standard for workplace harassment termination. —

City board properly applied the preponderance of the evidence standard when it determined that the police officer had engaged in conduct amounting to hostile work environment sexual harassment while employed by the city and that termination was appropriate because that standard satisfied due process. Jurgens v. City of N. Pole, 153 P.3d 321 (Alaska 2007).

“For cause” dismissal of state employee. —

University of Alaska violated a “for cause” employee’s due process rights under the U.S. Constitution and the Alaska Constitution when it terminated her employment before the date her contract expired, without offering her notice and an opportunity to contest the decision. Although the University had a nonretention policy, it was not allowed to use that policy to achieve a performance-based dismissal of someone who was a “for cause” employee. Grimmett v. Univ. of Alaska, 303 P.3d 482 (Alaska 2013).

A regulation providing for criminal sanctions on the use of unlisted drugs based upon their similarity of composition to listed drugs failed to provide notice of the conduct prohibited and violated a defendant’s constitutional right to due process upon his conviction for use of the unlisted drug. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

Inadequate notice of right to challenge investigative demand. —

An investigative demand issued to appellants failed to adequately apprise them of their right to challenge the demand or to inform them of a procedure for effecting such a challenge when the only notice of such rights contained in the demand was an excerpt from AS 45.50.592(g) . Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

There was no denial of due process, despite inadequacy of notice in an investigative demand of rights to challenge the demand, when appellants actually availed themselves of their rights to challenge and there was no prejudice to them. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Since, as the state supreme court has interpreted the Restraint of Trade Act, a petition to modify or set aside the investigative demand automatically tolls the penalty provisions of AS 45.50.592(g) , appellants who filed that petition did not exercise the right of judicial review only at the risk of incurring severe penalties. Appellants were accorded a statutory right to challenge the validity of the state’s investigative demand and this is all that due process requires. That appellants must initiate such proceedings does not dictate otherwise. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Subject-matter of meeting of legislature. —

House speaker was not entitled to advance subject-matter notice that a vote to replace him would occur at a meeting; the only process due under the constitution is that the meeting be legal in the constitutional sense and that a majority of the membership concur in action taken. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Child custody hearings. —

A father’s right to a hearing on child custody was not satisfied by a hearing in a domestic violence proceeding at which an award of temporary custody was made, since the hearing was held without notice that permanent custody was at issue and it did not satisfy the hearing requirements for permanent custody modification. Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998).

Scheduling of a custody hearing with eight days’ notice did not violate due process because the parties had been negotiating custody modification for over a year by the time of the hearing; the mother was able to present sufficient evidence allowing the trial court to make a determination and the record did not reflect minimal preparation. Rebecca L. v. Martin C., — P.3d — (Alaska Mar. 13, 2013) (memorandum decision).

Because the father's requested modification, seeking full legal and physical custody, and the trial court's order, giving the father primary custody, were both material and substantial alternations to the existing custody arrangements, due process required the trial court to hold a hearing before entering the custody modification so that the mother could have offered witnesses and other evidence and challenged the custody investigator's findings. Laura B. v. Wade B., 424 P.3d 315 (Alaska 2018).

In this custody modification case, the mother was not denied due process, as case law put her on notice that extended family could play a role in the best interests analysis, she had adequate notice that grandparent involvement could be considered, and she was given the opportunity to respond. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Failure to consider father’s response cured. —

Even if a father met the applicable deadline under Alaska R. Civ. P. 6(c) for filing a response to temporary custody and child support orders drafted by the mother’s attorney, the father’s due process rights were not violated when the trial court failed to consider his response; the trial court cured any error that resulted from signing the temporary orders before considering the father’s arguments. Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Notice to husband of divorce modification hearing. —

Given a superior court’s awareness of a husband’s frustrated attempt to attend a hearing on modification of divorce decree, the relative ease with which the husband’s presence could have been secured, and the importance of the questions at issue in the modification hearing, proceeding with the hearing in the husband’s absence was a violation of his right to due process under the Alaska Constitution, even though his attorney was there to represent him. Ryfeul v. Ryfeul, 650 P.2d 369 (Alaska 1982).

Modification of custody. —

A custodial parent had sufficient notice that a hearing would involve modification of custody, not simply the establishment of a visitation schedule, where it was shown that he was aware of his former wife’s intention to seek equal time with the children. Siekawitch v. Siekawitch, 956 P.2d 447 (Alaska 1998).

Superior court’s failure to hold an evidentiary hearing on the best interests of the children and an appropriate visitation schedule before ruling on an opposed motion to modify custody constitutes reversible error. Naquin v. Naquin, 974 P.2d 383 (Alaska 1999).

Father’s due process rights were violated by lack of notice that his custody rights were at issue at show-cause hearing which preceded entry of modification order; it was error to modify custody permanently on the basis of a show-cause hearing initiated to address one parent’s alleged attempt to frustrate the other parent’s visitation rights. Vinzant v. Elam, 977 P.2d 84 (Alaska 1999).

Shared custody award not volative of due process. —

In a dissolution of marriage proceeding, because a mother had notice of the proposed custody arrangement and because she had an opportunity to be heard on the matter, the superior court’s order awarding shared custody of her child to the father when the child reached his fifth birthday did not violate the mother’s due process rights. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Modification of child support. —

Trial court did not violate the father’s procedural due process rights by retroactively modifying his child support obligation to the date he was served with notice of the Child Support Enforcement Division’s (CSED) petition for modification as provided in Alaska R. Civ. P. 90.3(h)(2) because there was adequate evidence that the father actually received the CSED’s notice, where the record showed, among other things, that the CSED mailed the notice to the father’s last known address, in compliance with Alaska R. Civ. P. 5. Crumpler v. State ex rel. Armstrong, 117 P.3d 730 (Alaska 2005).

Premarital child support arrearage. —

Where husband lacked notice and an opportunity to be heard on the issue of premarital child support arrearage when the wife first raised the issue during final argument, the superior court’s order for premarital child support had to be remanded because it violated the husband’s due process rights. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

Trial court sua sponte adopting new theory of case. —

Defendant’s right to a fair trial was jeopardized where the trial court sua sponte adopted a new theory of the case since the trial court had failed to give the parties notice that it would invoke the new theory along with an opportunity to adjust their cases accordingly. State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

Where organization sued its former finance officer, alleging that he had misappropriated funds by writing unauthorized checks to himself, and finance officer failed to appear for trial, the trial court did not err in holding an ex parte hearing on damages because it properly assumed the finance officer had forfeited the right to defend himself when he failed to appear for trial. Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996 (Alaska 2005).

Trial court considering new matters after remand. —

Where a case was remanded to determine whether children should be adjudicated children in need of aid (CINA) due to the father’s inability to provide for them, once it complied with that direction, the trial court did not violate the father’s due process rights by its additional consideration of other grounds for CINA status; the father had adequate notice since the alternative grounds had been alleged in the original termination petition and he had an opportunity to present evidence at the original trial. A.M. v. State, 945 P.2d 296 (Alaska 1997).

Notice of possibility of conviction for similar offense. —

Where defendant was charged with attempted sexual assault in the first degree, he was thereby assumed to have notice that he might be convicted of second-degree sexual assault because of the similarities in the elements of the two offenses, and his conviction for the latter offense did not violate due process. Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982).

Failure to allow a preliminary hearing does not violate a defendant’s rights to due process and equal protection. Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982).

In employment discrimination actions before Alaska State Commisson for Human Rights, complainant is entitled to the investigative record, but not to more detailed findings, prior to internal review on application for reconsideration after dismissal of the complaint. Borkowski v. Snowden, 665 P.2d 22 (Alaska 1983).

Prerequisites for suit against employer. —

An employee need not show that his union breached its duty to represent him fairly in the grievance procedures provided under a collective bargaining agreement before the employee may directly sue his employer in court for wrongful discharge. Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983).

Right to counsel in proceedings to terminate parental rights. —

The due process clause of the Alaska Constitution guarantees indigent parents a right to the effective assistance of counsel in proceedings brought to terminate their parental rights. V.F. v. State, 666 P.2d 42 (Alaska 1983).

Right to conflict-free counsel. —

Defense counsel's alleged conflict of interest did not entitle defendant to reversal because (1) defendant's bar complaint did not constitute a conflict of interest, (2) counsel believed counsel could represent defendant despite counsel's prior concerns about this ability due to the complaint, and (3) defendant wanted counsel's representation. Henry v. State, — P.3d — (Alaska Ct. App. June 3, 2020).

Transformation of child custody proceeding. —

Where superior court transformed proceeding which initially was contemplated to be one that would determine the question of child’s interim custody for the impending school year into one that decided the question of permanent custody, proceeding did not afford basic fairness to parent of child. Cushing v. Painter, 666 P.2d 1044 (Alaska 1983).

Notice of schools subject to closure. —

A five-day notice of which schools in a school district were subject to closure militated against appropriate preparation and posed serious obstacles to the presentation of persuasive, properly researched, and supported opposition to any closure plan. It also lessened the likelihood of a fair hearing before the school board and of the school board reaching a reasoned administrative decision. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

The importance of the educational and property interests involved in the closure of neighborhood schools in a school district required adequate notice of the school board meeting at which the decision was made to close a specific school and five-day notice of the meeting was insufficient. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Judicial foreclosure action. —

The trial court did not deprive defendant of his due process rights by not holding an evidentiary hearing on the establishment of an upset price in a judicial foreclosure action. Hayes v. Alaska USA Fed. Credit Union, 767 P.2d 1158 (Alaska 1989).

Closing of insolvent estate. —

The notice of a hearing of the closing of an insolvent estate which only called for objections to the final accounting or to the closing of the estate did not give creditor adequate notice that a trial of his fraudulent conveyance claim was contemplated. Zok v. Estate of Collins, 84 P.3d 1005 (Alaska 2004).

Environmental “permit administration fees.” —

Trial court properly upheld the denial of a company’s appeal of “permit administration fees” issued by the Alaska Department of Environmental Conservation in connection with the company’s administrative appeals of air quality control permits where the Department’s interpretation of AS 46.14.240(c) did not violate the company’s due process rights to notice and a hearing. Alyeska Pipeline Serv. Co. v. Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006).

“Yellow card” used by the Commercial Fisheries Entry Commission (CFEC) to notify gear license holders of necessity of applying for limited entry permits under AS 16.43.260 when considered in conjunction with the other methods used by the CFEC and with the widespread coverage which the limited entry program got from the news media was sufficient to satisfy due process notice requirements. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Seizure of vessel for suspected use in illegal activity. —

See notes under same catchline under analysis line II B.

Rescission of contract zoning. —

City violated appellees’ right to due process of law when it met and rescinded appellees’ contract zoning without providing them notice of the meetings and actions proposed to be taken, even though appellees received a notice of default on the contract and appellees were afforded a subsequent reconsideration hearing before the city council. City of Homer v. Campbell, 719 P.2d 683 (Alaska 1986).

Denial of surgical privileges by hospital. —

Basic principles of due process of law require that when a hospital denies a doctor an application for surgical privileges, it notifies the applicant of the specific criteria which were determinative in the denial and how the applicant failed to meet the hospital’s expectations with regard to the criteria. Kiester v. Humana Hosp. Alaska, 843 P.2d 1219 (Alaska 1992).

Forcible entry and detainer action. —

The superior court was required to provide adequate hearing procedures and due process in a forcible entry and detainer action brought by a village corporation established under the Alaska Native Claims Settlement Act against the holder of a grazing lease on lands owned by the corporation. Leisnoi, Inc. v. Stratman, 960 P.2d 14 (Alaska 1998).

Terminating state grazing leases without affording the lessee notice and hearing would undermine both the policy evinced by Alaska Const., art. VIII and the explicit due process guarantee provided by this section. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

While the adjudicatory provisions of the Alaska Administrative Procedure Act (AS 44.62) are not applicable to the termination of grazing leases by the state division of lands, it is incumbent upon the state to afford notice and a hearing to ensure due process before a state grazing lease may be terminated for noncompliance. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Procedure required by due process prior to termination of grazing lease. See McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Division of lands did not afford minimum due process protection before termination of grazing lease. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Holder of state mining claims deemed abandoned under AS 38.05.265 for failure to record annual labor statement was not denied due process rights by commissioner of natural resources’ refusal to allow a hearing before terminating its property rights in its claims. AU Int'l, Inc. v. Department of Natural Resources, 971 P.2d 1034 (Alaska 1999).

Summary property attachment authorized by Civ. R. 89 violates this section and the due process clause of the 14th amendment of the United States Constitution.Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Civil Rule 89 does not afford the debtor a meaningful opportunity for a hearing before his property is seized by process issued by the state upon ex parte application of another person. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Under Civ. R. 89, the plaintiff is not required to prove or allege any special circumstances requiring the immediate attachment of the defendant’s property. And the defendant is neither given notice nor an opportunity to present any defense he might have to the plaintiff’s underlying claim before the property is attached. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Civil Rule 89 is not confined to de minimus deprivations. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

There is no special state or creditor interest that would justify summary attachment where a debtor is a resident of the forum and the creditor could have easily obtained personal jurisdiction over him. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

It is undisputed that Alaska’s attachment rule of procedure, Civ. R. 89, contemplates the taking of property. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

The freezing of a debtor’s checking account pending litigation presents one example of a significant interference with property interests authorized by Civ. R. 89. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

The availability of a procedure under AS 09.40.110 by which a debtor may secure the release of his property by posting his own bond does not cure the defect of a summary deprivation. The defendant would be deprived of security necessary to post bond. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Consent to judgment does not moot constitutional challenge to Civ. R. 89. —

An attachment upon a debtor’s property under Civ. R. 89 gives the creditor great leverage: It pressures the debtor to do whatever is necessary to recover his property. Since this pressure often causes debtors to abandon legal rights, a challenge to the constitutionality of Civ. R. 89 may evade review. Therefore a debtor’s consent to judgment does not moot his constitutional challenge under this section. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Opportunity to brief and argue a motion for reconsideration of a memorandum decision modifying a divorce decree sufficed to satisfy constitutional due process. Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

Suspension of hunting guide license. —

See note under catchline “A hunting guide license is a sufficient property interest,” etc., analysis line II B “Property Rights,”. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Euthanization of dog. —

In a case where a city ordered a dog owner to euthanize or banish from within city limits the owner’s dog after the dog bit the owner’s coworker without provocation, the city’s dog bite ordinance did not violate the owner’s due process rights; owner received notice, opportunity to be heard, and a de novo trial in superior court. Haggblom v. City of Dillingham, 191 P.3d 991 (Alaska 2008).

Terminated National Guard member. —

A member of the Alaska National Guard who was involuntarily terminated from employment had a property interest in full severance pay and a protected liberty interest in his reputation entitling him to a pretermination administrative hearing. State, Dep't of Military & Veterans Affairs v. Bowen, 953 P.2d 888 (Alaska 1998).

Driver license revocations. —

Considering the importance of the driving privilege, the greater potential for effective communication in an in-person context, the need for effective communication where the credibility of a party is at issue, and the limited nature of the prejudice that the state would suffer by providing in-person hearings in cases of driver license revocations, such hearings should be provided where requested by the party. Whitesides v. Dep't of Pub. Safety, DMV, 20 P.3d 1130 (Alaska), cert. denied, 534 U.S. 888, 122 S. Ct. 200, 151 L. Ed. 2d 142 (U.S. 2001).

Claim against insolvent insurer. —

Trial court properly conducted a three-day evidentiary hearing of the denial of the claim of a creditor of an insolvent life insurer and denied the claim based on the evidence presented at the hearing; the trial court’s reference to substantial evidence at the end of the hearing did not prove that the trial court had applied the wrong standard of review as the transcript established that no deference was given to the receiver’s decision. The trial court did not deprive the creditor of its procedural due process rights. In re Life Ins. Co., 76 P.3d 366 (Alaska 2003).

D.Vagueness

When vague statute violates due process. —

A vague statute violates the due process clause if its indefinite contours confer unbridled discretion on government officials and thereby raises the possibility of uneven and discriminatory enforcement. Brown v. Municipality of Anchorage, 584 P.2d 35 (Alaska 1978).

Even though a statute is vague, a conviction will not be overturned if: (a) There can be no question as to its applicability to the particular offense involved, and (b) a construction may be placed upon the statute so that in the future the type of offenses coming within its purview may reasonably be understood. Holton v. State, 602 P.2d 1228 (Alaska 1979).

The term “crime against nature” is declared void for vagueness. Harris v. State, 457 P.2d 638 (Alaska 1969).

The statutory term “sodomy” is not void for vagueness. Harris v. State, 457 P.2d 638 (Alaska 1969).

Statutory scheme regarding worthless checks not unconstitutionally vague. —

See Mohn v. State, 584 P.2d 40 (Alaska 1978).

In order to prove violation of AS 11.41.410(a)(1) , the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim’s lack of consent. Construed in this way, the statute does not punish harmless conduct and is neither vague or overbroad. Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983).

AS 11.73.099 , as interpreted, was not unconstitutionally vague. —

See Morrow v. State, 704 P.2d 226 (Alaska Ct. App. 1985).

Former AS 11.15.134(a) not unconstitutionally vague. —

The phrase “lewd or lascivious act” in former AS 11.15.134(a), which made it a crime to commit a lewd or lascivious act upon or with the body of a child under 16 years of age, intending to arouse the sexual desires of either the actor or the child, was not unconstitutionally vague when viewed in context of the entire statute. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Former AS 11.45.030 unconstitutional. —

Former AS 11.45.030, which made disorderly conduct and disturbance of the peace a misdemeanor, as it existed prior to its 1973 amendment, in its entirety, was void for vagueness. Poole v. State, 524 P.2d 286 (Alaska 1974).

Former AS 11.45.030 as it existed prior to its 1973 amendment was void for vagueness because the conduct and speech sought to be prohibited were determined by the impermissibly vague standards of “annoyance” and “disturbance” to another. Poole v. State, 524 P.2d 286 (Alaska 1974).

Contributing to delinquency of minor not vague. —

Former statute prohibiting conduct which “causes or tends to cause, encourage or contribute to the delinquency” of a minor gave sufficient notice and limited the discretion of enforcement authorities when the statute was interpreted to prohibit only advocacy that was directed to inciting or producing imminent lawless action and was likely to incite or produce such action. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Driving while intoxicated. —

Statute providing that a person commits the crime of driving while intoxicated if he operates or drives a motor vehicle while he is under the combined influence of intoxicating liquor and another substance was unconstitutionally vague since the designation of “the combined influence of intoxicating liquor and another substance” offered no notice of what specific substances a driver should avoid. Williford v. State, 674 P.2d 1329 (Alaska 1983).

Implied consent. —

Anchorage Municipal Code § 9.28.021, the municipality’s Implied Consent Ordinance, which was virtually identical to the state Implied Consent Statute, was not unconstitutionally vague. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Alaska Environmental Conservation Act (AS 46.03) is not void for vagueness under the Alaska and United States constitutions. Stock v. State, 526 P.2d 3 (Alaska 1974).

When the somewhat shadowy boundaries of the area of prohibited conduct were contrasted with the over-all purpose of the Alaska Environmental Conservation Act (AS 46.03) and the absence of any evidence of discriminatory application, the supreme court could not say that the presumption of constitutionality of the statute was overcome. Stock v. State, 526 P.2d 3 (Alaska 1974).

Criminal conduct. —

The term “without lawful excuse” in AS 11.51.120(a) is not impermissibly vague; the section, as construed, affords adequate notice of the conduct it prohibits, so that reasonable people need not guess at its meaning. Taylor v. State, 710 P.2d 1019 (Alaska Ct. App. 1985).

Criminal intent. —

Although the crime of robbery is not defined in AS 11.41.500 as requiring an intent to permanently deprive another of property, the provisions of that section clearly require proof of criminal intent and therefore do not violate this section. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Sexual assault statute. —

In order to prove violation of AS 11.41.410(a)(1) , the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim’s lack of consent. Construed in this way, the statute does not punish harmless conduct and is neither vague or overbroad. Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983).

Ordinance prohibiting loitering for purpose of solicitation of prostitution. —

A fair reading of a municipal ordinance prohibiting loitering for the purpose of solicitation of prostitution disclosed that the ordinance on its face gave enforcement officials excessive discretion, inviting by its inexactitude arbitrary enforcement and uneven application, since it set out separate and disjunctive circumstances which might be considered in determining whether a person who was loitering manifested the purpose of solicitation of prostitution and one of these circumstances was that the person “is a known prostitute or panderer,” thereby subjecting to arrest anyone known to the police to have committed a prostitution-related offense within the last five years who may have been only window shopping, strolling, or waiting for a bus. Therefore, the ordinance was void for vagueness. Brown v. Municipality of Anchorage, 584 P.2d 35 (Alaska 1978).

Municipal ordinance prohibiting prostitution and related activities held not unconstitutionally vague or overbroad. See Summers v. Anchorage, 589 P.2d 863 (Alaska 1979).

Game regulation. —

A game regulation which provided that “[n]o person may possess or transport any game or parts of game illegally taken” was overbroad, and a limiting construction implying that the accused must have known or reasonably should have known that the game was illegally taken, was necessary to render the regulation constitutional. State v. Rice, 626 P.2d 104 (Alaska 1981).

When the element of mens rea was implied in a game regulation which provided: “No person may possess or transport any game or parts of game illegally taken,” the regulation was not void for vagueness. State v. Rice, 626 P.2d 104 (Alaska 1981).

If enforced according to its literal terms, as imposing liability on any person who possesses or transports illegally taken game without regard to whether such person knew or should have known of the illegality, a regulation which provided: “No person may possess or transport any game or parts of game illegally taken” would bear no reasonable relationship to the legitimate regulatory purpose underlying it. Therefore, an interpretation of the regulation as requiring an element of mens rea is required by substantive due process principles. State v. Rice, 626 P.2d 104 (Alaska 1981).

Fishing regulation prohibiting the snagging of fish, which clearly defines the term “snag,” and requires that intent to snag be proven is not unconstitutionally vague, since the definition provides constitutionally sufficient notice to potential violators, and the intent requirement minimizes the possibility of arbitrary enforcement. Woodards v. State, 604 P.2d 250 (Alaska 1979).

The closure of a shellfish district by emergency order was not in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, in violation of the due process rights of a fishing vessel’s owners. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

Offshore mining lease. —

Regulations employed by division of lands in determining whether to grant offshore mining lease were not void for vagueness. State, Dep't of Nat. Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806 (Alaska 1978).

Regulation requiring employers to furnish safe place of employment, promulgated by Department of Labor, held not void for vagueness. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Drag racing on highway. —

Administrative regulation prohibiting drag racing on highways held not void for vagueness. See Jernigan v. State, 583 P.2d 224 (Alaska 1978).

Disciplinary rules of Alaska Bar Association. —

Although former Disciplinary Rules 1-102(A)(5), 7-102(A)(1), and 7-105(A) of the Code of Professional Responsibility of the Alaska Bar Association, which prohibited engaging in conduct that was prejudicial to the administration of justice, taking action on behalf of a client when the lawyer knows or when it is obvious such action would serve merely to harass or maliciously injure another, and threatening to present criminal charges solely to obtain an advantage in a civil matter, were capable of broad interpretation, the meaning of these rules was sufficiently clear to satisfy the requirements of due process. In re Vollintine, 673 P.2d 755 (Alaska 1983).

Denial of surgical privileges by hospital. —

Basic principles of due process of law require that criteria established for granting or denying a doctor surgical privileges not be vague and ambiguous, and that as established, they be applied objectively. Kiester v. Humana Hosp. Alaska, 843 P.2d 1219 (Alaska 1992).

E.Juveniles

Statute governing delinquent minors and children in need of aid. —

The statutory scheme of AS 47.10.010 et seq., governing delinquent minors and children in need of aid, is not so vague as to deprive parents of their procedural due process rights. R.C. v. State, Dep't of Health & Soc. Servs., 760 P.2d 501 (Alaska 1988).

States must afford juveniles due process of law in delinquency proceedings that might result in the child’s incarceration, and accordingly juveniles must be afforded the right to be represented by counsel, must be given proper and timely notice, must be given the right of confrontation and cross-examination of witnesses, and afforded the privilege against self-incrimination. Doe v. State, 487 P.2d 47 (Alaska 1971).

Due process must be afforded to juveniles in delinquency proceedings. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The due process clause of the 14th amendment applies when a child is charged with misconduct for which he may be incarcerated in an institution, regardless of the labels of the adjudication and institution, so the child is entitled to notice of charges, counsel, confrontation and cross-examination, and the privilege against self-incrimination. RLR v. State, 487 P.2d 27 (Alaska 1971).

Due process requires that children have the right to a public trial by jury where they are charged with acts which would be a crime if committed by an adult. Doe v. State, 487 P.2d 47 (Alaska 1971).

Society uses incarceration for rehabilitative purposes with adult criminals as well as juvenile delinquents, yet none suggest that benevolent purposes justify deprivation of rights applicable to adult prosecutions. RLR v. State, 487 P.2d 27 (Alaska 1971).

Regardless of benevolent-sounding labels, incarceration, when applied to children, is a taking of liberty under the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Defendant’s Sixth Amendment right to a jury was not infringed when the trial court was allowed to consider defendant’s prior adjudication as a delinquent as an aggravating factor at sentencing under AS 12.55.155 ; as a juvenile in Alaska, defendant had a right to a jury trial, and defendant, as a juvenile, had a right to proof beyond a reasonable doubt. Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005).

Parens patriae principle. —

The parens patriae principle is the core of the established view that juvenile proceedings are different from criminal trials. Accordingly, a parens patriae rationale has been used to justify restrictions on due process safeguards — although protections have been increasingly extended in recent years. Rust v. State, 582 P.2d 134 (Alaska 1978).

In the cases finding rights to treatment for juveniles and mental patients, reliance upon a parens patriae rationale for commitment is crucial. Both sets of cases view treatment as the quid pro quo which must be present in order to justify confinement under limited due process safeguards. Rust v. State, 582 P.2d 134 (Alaska 1978).

Because AS 09.10.140(c) foreclosed a son’s personal injury action due to the fact that his parents failed to timely file suit, as the injury occurred one month before the son’s eighth birthday and the parents did not sue the dog owners until nearly five years later, it violated his procedural due process right of access to the courts; given the important interest involved, the state’s interests were not sufficient to warrant the deprivation of the minor’s rights. Sands v. Green, 156 P.3d 1130 (Alaska 2007).

Foreclosure of personal injury suit filed by parent or guardian. —

When AS 09.10.140(c) forecloses a minor’s personal injury claim because his or her parents or guardians have failed to timely file suit, it violates that minor’s procedural due process right of access to the courts. Sands v. Green, 156 P.3d 1130 (Alaska 2007).

Delinquency must be proved beyond a reasonable doubt under the due process clause of the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Due process standards must be observed at a detention inquiry since it may result in the deprivation of the child’s liberty. Due process requires at the very least that detention orders be based on competent, sworn testimony, that the child have the right to be represented by counsel at the detention inquiry, and that the detention order state with particularity the facts supporting it. Doe v. State, 487 P.2d 47 (Alaska 1971).

Due process needed if juvenile could be deprived of liberty. —

While the U.S. supreme court has not held that children must be afforded due process rights in the pre-adjudication stages of the juvenile process, the Alaska supreme court believes that due process safeguards are necessary not only at the adjudicative hearing, but at any stage which may result in deprivation of the child’s liberty. Doe v. State, 487 P.2d 47 (Alaska 1971).

The waiver hearing is a critically important stage in criminal proceedings against a child. P.H. v. State, 504 P.2d 837 (Alaska 1972).

At stake at a child’s waiver hearing is the statutory promise of special rehabilitative treatment in lieu of the harsher sanction of criminal conviction. Because the consequences of waiver are great, the hearing must measure up to the essentials of due process and fair treatment. P.H. v. State, 504 P.2d 837 (Alaska 1972).

The constitutional prerequisites for a valid waiver of juvenile court treatment are reflected in Rule of Children’s Procedure 3, which guarantees the child a hearing before the children’s court judge after adequate notice thereof, counsel at the hearing who has had access to records and reports relevant to issues before the court, and a statement of reasons accompanying the waiver order. P.H. v. State, 504 P.2d 837 (Alaska 1972).

To waive children’s court jurisdiction without a hearing or opportunity for adversary presentation would be a denial of fair process, and to waive such jurisdiction without substantial evidence having been presented that the child is unamenable to juvenile rehabilitation programs is no less so. P.H. v. State, 504 P.2d 837 (Alaska 1972).

The probable cause determination of a court at a waiver hearing concerning juveniles could not be based upon hearsay testimony. P.H. v. State, 504 P.2d 837 (Alaska 1972).

A juvenile’s right to counsel in a delinquency proceeding has been clearly established in this jurisdiction. A.A. v. State, 538 P.2d 1004 (Alaska 1975).

Since the disposition hearing is one of the most critical phases of such a proceeding, the conduct of the hearing in the absence of a minor’s counsel is therefore erroneous. A.A. v. State, 538 P.2d 1004 (Alaska 1975).

Pre-adjudication review of defendant’s juvenile record by the family court judge did not deny defendant his constitutional right to due process of law where the record was reviewed for the purpose of determining the proper interim detention of the child and did not influence the judge in adjudicating defendant a delinquent. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The trial court can consider danger to the community as a factor in assessing the amount of bail or fixing the items of a conditional release. Such a consideration necessitates a review of prior convictions. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Voluntariness of juvenile’s confession. —

See S.B. v. State, 614 P.2d 786 (Alaska 1980).

Hearing required for revocation of probation. —

The requirement in Children’s (now Delinquency) Rule 12(a) of a disposition hearing applies to a court-ordered revocation of a juvenile delinquent’s administratively granted probation. L.C. v. State, 625 P.2d 839 (Alaska 1981).

The hearing in connection with a juvenile delinquent’s probation revocation must be broader than merely determining probable cause that probation conditions are violated. L.C. v. State, 625 P.2d 839 (Alaska 1981).

Burden of proving amenability to juvenile treatment. —

Section 47.12.030(a), placing the burden on defendant to prove his amenability to juvenile treatment, does not violate the equal protection and due process clauses of the Alaska Constitution. Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998).

F.Criminal Matters

1.In General

Constitutionality of criminal nonsupport statute. —

The criminal nonsupport statute does not require a defendant to prove the absence of a lawful excuse or to incriminate himself. Taylor v. State, 710 P.2d 1019 (Alaska Ct. App. 1985).

Provisions governing sale of alcoholic beverages. —

AS 04.16.200(b) (governing the sale of alcoholic beverages by unlicensed persons), when read in conjunction with AS 04.11.010 (requiring a license or permit for such sales), defines an offense, affords adequate notice of the proscribed conduct and the prescribed penalty, and satisfies due process requirements. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Constitutionality of undisclosed electronic recording provision in Victims’ Rights Act. —

Undisclosed recording is as valuable for defense representatives as it is for the police and the objections that it violates the right to privacy and the right to be treated with dignity, respect, and fairness are of little weight when compared to its benefits; it would be paradoxical to uphold a law that bars defense representatives from pursuing the practice, while leaving the police and virtually everyone else in the state free to electronically record their conversations without disclosure. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

Implying criminal intent into statutes. —

Although the supreme court could conceive of cases where it might decline to imply criminal intent into statutes silent in this respect, hereafter it will resolve such questions on a case by case basis. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Such intent read into AS 28.35.060 . —

With regard to AS 28.35.060 , which sets forth the duty of the operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle which is driven or attended by a person to give information and to render assistance, although on its face that section fails to require criminal intent for conviction, this does not violate due process of law under the 14th amendment of the United States Constitution and this section of the Alaska constitution, since the requisite intent may be read into the statute by implication. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Former AS 11.20.260 held unconstitutional. —

Former AS 11.20.260, providing that one who finds lost property and appropriates it to his own use without either advertising his discovery in a paper of general circulation or notifying the police officer nearest the place of the finding is guilty of larceny, failed to set forth the requirements of the common-law crime of larceny by appropriation of lost property. Instead, a new, distinct offense had been created, and the statute was constitutionally defective and invalid because of its omission of the requirement of criminal intent. State v. Campbell, 536 P.2d 105 (Alaska 1975), overruled, Kimoktoak v. State, 584 P.2d 25 (Alaska 1978), to the extent that the decision holds that criminal intent can be found by implication only in statutes which codified common-law crimes.

Felon in possession charge based on reversed conviction. —

The due process clause of the Alaska Constitution does not prohibit the state from convicting defendant of a felon in possession of a concealable weapon charge when his underlying felony conviction was reversed on constitutional grounds. Clark v. State, 739 P.2d 777 (Alaska Ct. App. 1987).

Conviction of accessory when principal is undercover agent constitutional. —

Conviction of a professional hunting guide for hunting violations as an accessory when the principal was an undercover agent for the government did not violate the due process clauses of the United States and Alaska constitutions; any government overreaching is adequately covered by the defense of entrapment. Vaden v. State, 742 P.2d 784 (Alaska Ct. App. 1987), aff'd in part, modified, 768 P.2d 1102 (Alaska 1989).

Registration of sex offenders. —

Because the Registration Act, ch. 41, SLA 1994, which requires “sex offenders” to register with police authorities, is likely penal in nature because of the provision for public dissemination of information, plaintiffs, who pled no contest to sex offenses pursuant to plea bargains that did not include any duty to register, are likely to prevail on claims for violation of the plea agreements and due process. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Constitutionality of advice and written consent requirements. —

Advice and written consent provisions in the Alaska Victims’ Rights Act interfere with investigations by criminal defendants because adhering to them necessarily carries a message that it is undesirable to cooperate with defense representatives. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

When due process is violated in criminal trials. —

The concept of due process of law in the trial of a criminal defendant apart from trials conducted in violation of express constitutional mandates is violated only where the barriers and safeguards are so relaxed or forgotten that the proceeding is more a spectacle or trial by ordeal than a disciplined contest. Lee v. State, 511 P.2d 1076 (Alaska 1973).

Defendant could have the trial court consider if he was entitled to post-conviction DNA testing, and if his claim is barred by AS 12.72.020(b)(2) , regarding new evidence, the trial court has to consider if the Alaska Constitution’s due process clause allows defendant to pursue his claim nonetheless. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Although Alaska R. Crim. P. 25(b) permitted the substitution of a judge in a bench trial, due process required a new trial in a sexual assault case because new impeachment evidence was very important in assessing the credibility of a victim and the State’s allegations. The victim had previously accused someone else of raping her under similar circumstances. Morgan v. State, 139 P.3d 1272 (Alaska Ct. App. 2006).

Criminal action for pollution without proceedings constitutional. —

Defendant’s constitutional rights were not violated by commencement of criminal action against him for pollution without completing administrative proceedings. Stock v. State, 526 P.2d 3 (Alaska 1974).

Prosecutorial vindictiveness. —

State’s actions in informing defendant that it would seek reindictment of a previously dismissed manslaughter charge if defendant delayed trial on failure to render aid charges by attacking the indictments on the latter charges was prosecutorial vindictiveness which violated due process. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Vindictive prosecution violates a defendant’s constitutional rights to due process. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

The supreme court will not apply a presumption that assumes that vindictive prosecution has taken place when charges are increased prior to or at the time of the original indictment. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

Prosecution did not vindictively increase defendant’s charges in retaliation for the refusal to waive defendant’s constitutional right to grand jury indictment, where the prosecution only asked if defendant would waive grand jury indictment; prosecution made no mention whatsoever of any adverse consequences should defendant decline to do so; and the increased charge was supported by the evidence available to the prosecution. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

Assertion of prosecutorial vindictiveness because defendant was indicted on felony charges after asserting his right to a jury trial on misdemeanor offenses did not raise presumption. Norbert v. State, 718 P.2d 160 (Alaska Ct. App. 1986).

Establishment of prosecutorial vindictiveness. —

The existence of prosecutorial vindictiveness must be established by an objective standard, on the basis of the totality of the circumstances in each case. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

No prosecutorial vindictiveness established where state reinstated charge after defendant withdrew guilty pleas on other charges. —

Morgan v. State, 673 P.2d 897 (Alaska Ct. App. 1983).

Prosecutorial rebuttal. —

It is insufficient for the prosecution to rebut a charge of prosecutorial vindictiveness by establishing a lack of actual malice; instead, a prima facie showing of vindictiveness must be rebutted by negating the possibility of vindictiveness. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Prosecutorial mistake, negligence or misunderstanding will not suffice to rebut a prima facie showing of prosecutorial vindictiveness. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Function under Interstate Agreement on Detainers. —

A defendant was not denied due process of law under the Fourteenth Amendment to the United States Constitution and this section of the Alaska Constitution because the state did not supplement its extradition proceedings with a specific request for return of the defendant under the Interstate Agreement on Detainers, for the primary function of the Interstate Agreement on Detainers is to give the defendant a means, if he wishes to exercise it, of compelling the state to return him for retrial. Conway v. State, 707 P.2d 930 (Alaska Ct. App. 1985).

Independent expert examination of prosecution’s evidence before trial. —

Due process of law does not require that the defendant be permitted independent expert examination of evidence in the possession of the prosecution before such evidence is introduced at the trial. Lee v. State, 511 P.2d 1076 (Alaska 1973).

Presence of uniformed officers in court. —

Anthony v. State , 521 P.2d 486 (Alaska 1974) precludes the appearance before members of the jury of uniformed officers or guards who are physically restraining a defendant or exercising actual custody and control over his person. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Mere presence of uniformed officers in a neutral area of the courtroom, without any overt manifestation of actual physical restraint or custody, is not sufficient to deprive the defendant of the right to a fair trial. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Restriction of defenses. —

Restriction of the defense of lack of profit to misdemeanor prosecutions under AS 04.16.200(a) does not constitute a violation of due process; the section treats all persons charged with felonies alike and, therefore, fairly. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), discussing in depth the history of the insanity defense in Alaska.

Determining “recklessness”. —

Due process is not violated by the provision in AS 11.81.900(a)(3) that intoxication is not to be considered in determining recklessness with regard to circumstances surrounding one’s conduct. Neitzel v. State, 655 P.2d 325 (Alaska Ct. App. 1982).

Prosecutorial promise of immunity. —

As a matter of both federal and state due process, a prosecutor’s promise of immunity made in return for a surrender of the privilege against self-incrimination is binding on the prosecution. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

If a prosecutorial promise of immunity is made, whether or not it is statutorily authorized, it cannot be breached without allowing the promisee an opportunity to reconsider and revoke his part of the bargain. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

If a grand jury seeks, under AS 12.40.070 , to compel a prosecutor to override a prior immunity grant, any resulting indictment is to be dismissed with prejudice. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s grant will serve to bind the state to whatever promise is made, i.e., to use and derivative use and/or transactional immunity, even in other judicial districts. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s promise of use and derivative use immunity will also bind the federal government, under the ruling in Murphy v. Waterfront Comm’n of N.Y. Harbor , 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). However, a state grant of transactional immunity will require independent endorsement from federal authorities before it will absolutely preclude a federal prosecution. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Constitutionality of bail statute. —

AS 12.30.040 does not deny substantive due process or equal protection rights by providing that if a person has been convicted of an unclassified or class A felony, the person may not be released on bail either before sentencing or pending appeal since there is a legitimate basis for the legislative classification. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Presence of defendant at post-verdict conference. —

A post-verdict conference is a stage of the trial requiring the presence of the defendant. Meyer v. State, 627 P.2d 636 (Alaska 1981).

Where, as a matter of law, a post-conviction conference could not have resulted, on the facts, in impeachment of the verdict and the defendant’s presence therefore would not have impacted the trial court’s decisional process, the defendant’s exclusion, while error, was harmless beyond a reasonable doubt. Meyer v. State, 627 P.2d 636 (Alaska 1981).

Denial of motion for new trial upheld. —

The trial court was within its discretion denying defendant’s motion for a new trial based on newly discovered evidence where new testimony would not produce an acquittal at a new trial, in part because of the witness’ observable lack of credibility while testifying. Stiegele v. State, 714 P.2d 356 (Alaska Ct. App. 1986).

Burden of proof at post-acquittal commitment hearing. —

It is not a violation of the due process clause to place the burden of proving insanity on a defendant during prosecution of the case-in-chief. A fortiori, due process does not preclude allocation of the burden of proof to the defendant at the post-acquittal commitment hearing. State v. Alto, 589 P.2d 402 (Alaska 1979).

2.Competency to Stand Trial

Competency to stand trial. —

Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Conviction of a person who is incompetent to stand trial violates due process of law. Schade v. State, 512 P.2d 907 (Alaska 1973).

One of the primary reasons for requiring that a defendant be competent before standing trial is to safeguard the accuracy of the guilt-finding process. Schade v. State, 512 P.2d 907 (Alaska 1973).

Level of competency required. See Schade v. State, 512 P.2d 907 (Alaska 1973).

Standard of judging competency. —

See Schade v. State, 512 P.2d 907 (Alaska 1973).

3.Confessions

Use of deception to elicit incriminating statements. —

The deceptive use by state troopers of defendant’s girlfriend to elicit incriminating statements from the defendant in a telephone conversation did not deprive the defendant of his right to due process. Deceptive tactics are not per se impermissible under Alaska law and will violate due process only when they are coercive or tend to produce an untruthful confession. Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992).

Due process in an interrogation context. —

The following factors, combined with all of the surrounding circumstances, should be considered in determining the existence of a due process violation in an interrogation context: The duration and conditions of detention, the attitudes of the police manifested toward the accused, and the “diverse pressures which sap or sustain his powers of resistance and self-control.” Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Admission into evidence of defendant’s unrecorded confession. —

Trial court’s error in admitting defendant’s unrecorded confession into evidence at his trial for robbery could not be deemed harmless error, where the other evidence against him was strong but not overwhelming. Billingsley v. State, 807 P.2d 1102 (Alaska Ct. App. 1991).

Statements of 15-year-old defendant charged with rape and murder that were made in third and fourth interviews were sufficiently insulated from Miranda violations occurring in the first and second interviews because defendant did not reveal his involvement in the homicide until the third interview. Kalmakoff v. State, 199 P.3d 1188 (Alaska Ct. App. 2009), rev'd, 257 P.3d 108 (Alaska 2011).

A statement of involvement in criminal activity is not admissible unless it is voluntary. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Judicial determination of the voluntariness of confessions. —

The court first determines what happened — whether a confession was made and what the basic circumstances surrounding it were. Next the court must decide by means of inference what the effect of the factual circumstances upon the mental state of the accused actually was. And, finally, from its decision as to the accused’s state of mind the court must draw its ultimate conclusion as to the voluntariness, in a legal sense, of his confession. Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981).

Resolution of factual issues. —

Express resolution by the trial court of disputed factual issues in cases involving voluntariness of confessions is not required by due process, under either the United States or Alaska Constitutions; rather, it is more directly and practically based upon the fact that such findings are necessary to secure the right to appeal provided for under statute ( AS 22.05.010(a) , (b) and AS 22.07.020(d) ) and rule (Cr. R. 32.1(a) and R. App. P. 202). Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981).

Statement of findings required. —

In determining the voluntariness of confessions in future cases, trial courts must at a minimum expressly state their findings as to disputed facts essential to resolution of the issue. Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981).

Standard for determining voluntariness of confession. —

Although the United States Supreme Court adopted the preponderance-of-the-evidence standard for determining the voluntariness of a confession and the Alaska Supreme Court has consistently held that the prosecution has the burden of showing that a confession was voluntary by a preponderance of the evidence, the Alaska supreme court has never determined what standard is appropriate. Troyer v. State, 614 P.2d 313 (Alaska 1980).

Trial judge determines voluntariness. —

The applicable rule in Alaska for determining the voluntariness of a confession is the so-called orthodox rule under which the trial judge solely and finally makes such determination. Stobaugh v. State, 614 P.2d 767 (Alaska 1980).

The supreme court rejects a per se rule which would condemn any incriminating statement obtained by means of a promissory inducement as involuntary. Stobaugh v. State, 614 P.2d 767 (Alaska 1980).

Role of supreme court in determining voluntariness of confession. —

In determining whether a confession is voluntary or is the “product of a mind overborne by coercion,” the supreme court has previously stated that it will consider the “totality of circumstances surrounding the confession” and conduct an independent review of the record. Sprague v. State, 590 P.2d 410 (Alaska 1979). See also Stobaugh v. State, 614 P.2d 767 (Alaska 1980).

Relevant criteria in determining whether a confession is voluntary are the age, mentality and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Burden of proving voluntariness. —

The prosecution has the burden of showing that there is sufficient evidence to support a determination, by a preponderance of the evidence, that the admission or confession was voluntary. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Promise of leniency affecting voluntariness. —

Defendant’s own account of the state trooper’s promise of leniency did not justify a finding that his confession was involuntary. Young v. State, 743 P.2d 941 (Alaska Ct. App. 1987).

Confessions based on voluntarily-induced intoxication. —

The majority of courts which have considered due process challenges to confessions based on the voluntarily-induced intoxicated state of the defendant have allowed admission of the confession, unless it is shown that he was intoxicated to a degree of mania or to the point that he could not understand the meaning of his statements. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Concurrent civil and criminal matters. —

Superior court did not expressly conduct a balancing of the parties’ interests before denying the resident’s motion to stay; because the resident in a defamation case was defending himself in a related criminal case, the trial court had to balance both parties’ interests to determine whether the requested stay of civil proceedings was appropriate. Armstrong v. Tanaka, 228 P.3d 79 (Alaska 2010).

4.Confrontation

Identification at scene of crime. —

Identification by rape victim at scene of crime did not violate defendant’s due process rights. Walker v. State, 652 P.2d 88 (Alaska 1982).

A confrontation between an accused and witnesses might be so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is thereby denied due process of law. McCracken v. State, 521 P.2d 499 (Alaska 1974).

When identification procedure is unfair. —

A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. Buchanan v. State, 561 P.2d 1197 (Alaska 1977).

Test as to whether lineup prejudicial. —

The test applied to the resolution of the issue as to whether a lineup was prejudicial and suggestive is whether the lineup procedures were “so unnecessarily suggestive and conducive as to deny due process.” Blue v. State, 558 P.2d 636 (Alaska 1977).

The determination as to whether a lineup was prejudicial and suggestive must be made based on the “totality of the circumstances.” Blue v. State, 558 P.2d 636 (Alaska 1977).

Violation of due process guarantee in confrontation depends on the totality of the circumstances surrounding it. McCracken v. State, 521 P.2d 499 (Alaska 1974).

In examining pretrial photographic identification procedures, the supreme court has consistently considered the totality of the circumstances. The “totality” approach includes examining both the suggestiveness of the identification procedure and its underlying reliability. Viveros v. State, 606 P.2d 790 (Alaska 1980).

Evidence of suggestive pretrial identification procedures has not been subject to strict exclusionary rules either in the United States Supreme Court or in the Alaska Supreme Court. Suggestiveness alone does not require exclusion. The test is whether, under the totality of the circumstances, the identification is reliable. Howe v. State, 611 P.2d 16 (Alaska 1980).

Court must inquire into each case on ad hoc basis. —

When the photographic or other identification procedure is alleged to be prejudicial the court must inquire into each case on an ad hoc basis to determine if the totality of the circumstances made the procedure prejudicial. Buchanan v. State, 561 P.2d 1197 (Alaska 1977).

Inquiry to judge legitimacy of in-court identifications. —

See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Lineup held not so suggestive as to violate due process. —

See Blue v. State, 558 P.2d 636 (Alaska 1977); Benefield v. State, 559 P.2d 91 (Alaska 1977).

Photographic lineup does not violate due process. —

Although defendant was in custody at the time of the lineup, his right to due process was not violated when a black and white photographic lineup was used instead of a corporeal lineup. Williams v. State, 652 P.2d 478 (Alaska Ct. App. 1982).

A photographic lineup was not so suggestive as to create “a very substantial likelihood of irreparable misidentification” where as many as three of the six photographs used in the lineup matched the victim’s description of a light-skinned black with short hair. Buchanan v. State, 561 P.2d 1197 (Alaska 1977).

A photographic lineup was not so suggestive as to create a very substantial likelihood of irreparable misidentification where the description given the police by the witnesses to the robbery matched at least three of the persons depicted in the photographic lineup and the prosecution witnesses had ample opportunity to observe the robber during the time he was on the premises of the store. Gould v. State, 579 P.2d 535 (Alaska 1978).

Although police used a show-up, rather than an ordinary lineup, to obtain the identification of the perpetrator of a crime does not in and of itself amount to a denial of due process. If, under the totality of the circumstances, there is no substantial likelihood of misidentification, due process is satisfied. Vessell v. State, 624 P.2d 275 (Alaska 1981).

“Show-up” identification of defendant did not violate his due process rights where a violent crime had been committed some thirty minutes before, and the suspect remained at large; by bringing the victim to the scene of the traffic stop, the police could either positively identify defendant as the man they were looking for, or eliminate him as a suspect and resume their search of the city for a similar brown sedan. Anderson v. State, 123 P.3d 1110 (Alaska Ct. App. 2005).

No waiver of alleged unconstitutional post-indictment identification. —

Failure of defendant’s counsel to raise issue of alleged unconstitutional post-indictment identification at trial did not waive the issue. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Accidental pretrial confrontations. —

An accidental pretrial confrontation may be the subject of cross-examination, but on the whole the question is one going to the weight rather than the admissibility of the evidence. Kimble v. State, 539 P.2d 73 (Alaska 1975).

When a pretrial confrontation is purely accidental and is not prearranged by the state, the supreme court will not ordinarily inquire into whether a denial of due process is the result. Kimble v. State, 539 P.2d 73 (Alaska 1975); Cox v. State, 575 P.2d 297 (Alaska 1978).

Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. Cox v. State, 575 P.2d 297 (Alaska 1978).

Evidence of showup without more does not violate due process. Cox v. State, 575 P.2d 297 (Alaska 1978).

The test as to the legitimacy of in-court identifications based, in part, on improper prior identifications, is whether the in-court identification had a source independent from the tainted confrontation. Cox v. State, 575 P.2d 297 (Alaska 1978).

The supreme court declined to adopt a “per se” test for the exclusion of evidence relating to pretrial identifications which would suppress unnecessarily suggestive pretrial identifications regardless of reliability. Viveros v. State, 606 P.2d 790 (Alaska 1980).

There was no basis for suppressing evidence of show-up confrontation where the identification was reliable, and where it fell within a widely recognized exception to the ordinary requirement for a lineup in that the police arranged a show-up immediately in the wake of a crime to promptly eliminate or arrest suspects. Howe v. State, 611 P.2d 16 (Alaska 1980).

Where a witness was told by a school principal that the individual involved in an assault on a 14-year-old girl had been apprehended and the witness was requested to go to the school office to identify him; where the witness testified that on the way to the office he expected to see the person who had assaulted the girl; and where as the witness was being interviewed by a police officer about the incident, defendant was brought out of the office, in handcuffs and escorted to a police vehicle, assuming that the confrontation in the hallway between defendant and the witness was impermissively suggestive, nevertheless, the witness’ identification was reliable and his in-court identification had a source independent from the tainted confrontation. Cox v. State, 575 P.2d 297 (Alaska 1978).

Electronic recording of custodial interrogation. —

An unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process under the Alaska Constitution, and any statement thus obtained is generally inadmissible. Stephan v. State, 711 P.2d 1156 (Alaska 1985), limited, Swanson v. City & Borough of Juneau, 784 P.2d 678 (Alaska Ct. App. 1989), limited, Hendricks v. State, 1999 Alas. App. LEXIS 86 (Alaska Ct. App. Sept. 1, 1999).

Basis of right to be present at trial. —

In Alaska, the right to be present is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him, as well as in the United States Constitution, the confrontation clause of the 6th amendment or the 14th amendment’s due process clause. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

In Alaska, the right to be present at every stage of the trial is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Common-law origins of right to be present at trial. See State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Such right implemented by Cr. R. 38. —

The constitutional right of a defendant to be present in the courtroom at every stage of the trial has been implemented as a procedural requirement by Cr. R. 38. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

The constitutional right to be present at every stage of trial has been implemented by the provisions of Cr. R. 38(a) which provides that the “defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule.” Dixon v. State, 605 P.2d 882 (Alaska 1980).

Scope of right to be present. —

Under both the United States Constitution and the Alaska Constitution the right of the defendant to be present at every stage of the trial has been recognized. Included within the scope of this right is the period of jury deliberations; thus, the defendant has the right to be present whenever any communication between the court and the jury occurs during those deliberations. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Defendant’s convictions for murder in the first degree and tampering with physical evidence were appropriate because, although defendant’s right to be present at all stages of his trial was violated, errors were harmless; also, defendant did not argue any specific prejudice arising from superior court’s decision to release juror who was ill, and even if juror had not been excused, there was no certainty that juror would have deliberated on the case. Collins v. State, 182 P.3d 1159 (Alaska Ct. App. 2008).

Trial court may exclude a criminal defendant for disruptive behavior, and although the court had to allow an excluded criminal defendant an opportunity to reclaim his right to be present if he demonstrated willingness to behave appropriately, it was not obliged to uncritically accept every promise to behave; the trial court did not abuse its discretion either by removing defendant from the courtroom or by refusing his later request to reenter where nothing in defendant’s words or in his recent or past conduct demonstrated that it was an abuse of discretion to decline to return him to the courtroom one more time. Douglas v. State, 214 P.3d 312 (Alaska 2009).

Verdict form presented without notice to defendant. —

While defendant’s federal and state constitutional right to be present throughout the trial was violated, and Alaska Crim. R. 38(a) was violated, because the court staff erred in providing the jury with a verdict form without authorization from the court and notice to defendant, the error was harmless beyond a reasonable doubt. Crouse v. Municipality of Anchorage, 79 P.3d 660 (Alaska Ct. App. 2003).

Waiver of presence by attorney held ineffective. —

In light of the constitutional mandate of defendant’s personal waiver, waiver by defendant’s attorney of defendant’s presence during the playback of testimony to the jury was ineffective, and since the defendant did not effectively waive his presence, it was constitutional error for the judge to communicate with the jury or permit the playback of testimony in defendant’s absence. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

5.Driving While Intoxicated

Constitutionality of statute not impugned. —

AS 28.35.030 is not void for vagueness because of the fact that most people reached their peak alcohol level within one hour after they stopped drinking; consequently, the fact that the police had four, instead of two or three, hours in which to obtain a sample would not make it appreciably more difficult for the typical motorist to evaluate whether they had consumed too much alcohol to legally drive. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

AS 28.35.030 was not unconstitutionally overbroad for allowing a defendant to be convicted of driving while under the influence even if his alcohol level at the time of driving was below the statutory limit, because driving with a blood alcohol level below the statutory limit is not necessarily lawful conduct. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

DWI chemical tests. —

Defendant’s motion to suppress two California DWI convictions was improperly granted because the right to an independent chemical test, although not available in California but recognized in Alaska, was not a due process right equivalent to the right to counsel or the right to a jury trial. State v. Simpson, 73 P.3d 596 (Alaska Ct. App. 2003).

Felony DWI statute. —

Because the Constitution provides that a person cannot be validly convicted of a crime unless personally present at trial and sentencing, or unless he knowingly and voluntarily waives that right, it is all but impossible for a person who has prior convictions for driving while intoxicated (DWI) or refusing a breath test to commit DWI without either recklessly or negligently disregarding those prior convictions, and therefore the state’s felony DWI statute passes constitutional muster even though the government need not prove a culpable mental state with regard to prior convictions. Hoople v. State, 985 P.2d 1004 (Alaska Ct. App. 1999).

Refusal to take breathalyzer test. —

AS 28.35.032(f) , making refusal to take a chemical test of breath authorized by AS 28.35.031 a class A misdemeanor, does not violate substantive due process or the prohibition against cruel and unusual punishment since it is reasonably related to a legitimate government purpose and the penalty does not subject a defendant to punishment out of proportion to the conduct in which he is engaged. Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983).

A person arrested for driving while intoxicated is entitled by the Alaska Constitution to an independent chemical test even if that person refuses to take the statutorily prescribed breath test. Snyder v. State, 930 P.2d 1274 (Alaska 1996).

Jury was instructed that it could not convict defendant for refusal to submit to a chemical test unless he knew or should have known that he had a legal duty to submit to a breath test; defendant’s due process rights were not violated because the jury must have found that defendant had enough notice of his legal duty to submit to a breath test to be convicted of refusal, even though the officer did not explain to him that he could not satisfy that legal duty by offering to submit to a blood test. Mattox v. State, 191 P.3d 148 (Alaska Ct. App. 2008).

Misinformation from police about consequences for refusal. —

It would be fundamentally unfair to allow the State to assert one penalty, on which an arrestee’s decision to refuse a chemical test relies, and then later convict the arrestee of a charge that carries a greater penalty. Therefore, a due process issue was raised when defendant was convicted of a felony after being erroneously advised, through an out-of-date form, as to the criteria for determining if the refusal constituted a felony rather than a misdemeanor. Olson v. State, 260 P.3d 1056 (Alaska 2011).

Knowing consumption of alcohol sufficient to establish mens rea. —

AS 28.35.030 does not unconstitutionally allow a person to be convicted without any proof of mens rea with respect to the circumstance of driving while impaired or with a blood alcohol level above the legal limit, because proof that defendant was legally intoxicated and that he knowingly consumed alcohol and drove was sufficient to establish that defendant was negligent with respect to the circumstance that he was too impaired to legally drive. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

No duty to advise of right to refuse breathalyzer examination. —

There is no due process requirement that a person arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor be advised of the right to refuse to submit to a breathalyzer examination. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983), cert. denied, 469 U.S. 1017, 105 S. Ct. 430, 83 L. Ed. 2d 357 (1984), and Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

Blood alcohol test not more intrusive. —

For due process and search and seizure analysis, a blood test is not viewed as materially more intrusive than a breath test. The search and seizure provisions of the federal and state constitutions are not offended by a statute that allows the police to take a blood sample from an arrested motorist where the motorist has injured or killed another person without requiring the police to seek a breath sample first. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Right to independent testing of intoximeter result. —

Motorist was denied due process and his breath test results should have been suppressed, where his minimal ability to speak and understand English prevented him from understanding the arresting officer’s explanation of his right to obtain independent testing of the intoximeter result. Ahtuangaruak v. State, 820 P.2d 310 (Alaska Ct. App. 1991).

Waiver of right to independent chemical test. —

Defendant validly waived the right to an independent chemical test of defendant's breath test, because, even though unbeknownst to defendant and the police officer who administered the test, the breath test device had produced an error code related to one of its quality assurance mechanisms, defendant had a basic understanding of the right to an independent chemical test before declining the test. Botson v. Municipality of Anchorage, 367 P.3d 17 (Alaska 2016).

Notice requirement for second-degree unlawful contact. —

Reversal of defendant's conviction for second-degree unlawful contact was appropriate because, before the State of Alaska could lawfully impose a criminal penalty on defendant for telephoning defendant's spouse following defendant's arrest for domestic assault, the State was required (at a minimum) to prove that defendant was told that it was unlawful to contact the victim. Moran v. State, 380 P.3d 92 (Alaska Ct. App. 2016).

Right to verify intoximeter test results. —

Due process under the Alaska Constitution requires that a person arrested for driving while intoxicated be given a reasonable opportunity to verify the police administered intoximeter test result. Gundersen v. Municipality of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988), aff'd, 792 P.2d 673 (Alaska 1990).

City police department did not act arbitrarily or unreasonably in substituting the offer of a blood test for its previous policy of retaining breath samples in cases involving suspected intoxicated drivers. Swanson v. City & Borough of Juneau, 784 P.2d 678 (Alaska Ct. App. 1989).

AS 28.35.030 does not violate due process by creating impermissible presumptions that a motorist was at least as intoxicated at the time of driving as at the time of a chemical test administered within four hours of driving, because defendant could attack the accuracy of the chemical test or show that alcohol was consumed after driving. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

DWI margin of error. —

Failure to apply the inherent margin of error of a particular testing device in favor of the person subject to a DWI license revocation violates due process of law as guaranteed by the Alaska Constitution. Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993).

Booking of DWI suspects on audiotape. —

City police department’s policy of recording the booking of DWI suspects on audiotape rather than videotape was neither arbitrary nor unreasonable, and did not violate defendant’s right to due process. Swanson v. City & Borough of Juneau, 784 P.2d 678 (Alaska Ct. App. 1989).

Denial of right to analyze components of breathalyzer machine. —

Where defendant was charged with operating a motor vehicle while intoxicated, denial of the right to make an analysis of some of the components of the breathalyzer machine, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Failure to present to grand jury defendant’s breathalyzer reading. —

In a prosecution for rape, the failure of the prosecutor to present to the grand jury defendant’s .31 breathalyzer reading did not violate due process since, first, defendant drank an unknown quantity of whiskey between the commission of the rape and the administration of the breathalyzer test and thus the .31 reading was not probative of defendant’s state of intoxication at the time the rape occurred; and, second, the .31 result could not have been presented to the grand jury in isolation without creating a misimpression in defendant’s favor. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Preservation of breath sample. —

Municipality’s failure to preserve breath sample at time of arrest for later independent analysis violated defendant’s due process rights to confront and cross-examine evidence against him. Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska Ct. App. 1982); Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982).

The state’s failure to preserve a videotape of field sobriety tests taken one hour after arrest violates the due process rights of an accused at an administrative license revocation hearing where the accused is entitled to challenge whether the arresting officer had reasonable grounds at the time of arrest to believe that the suspect was driving while intoxicated. Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989).

Admissibility of blood test results. —

Where blood sample was taken by and was in possession of hospital where defendant sought treatment following car accident, and where on the facts of the case, both defendant and state had opportunity to preserve the sample, trial court did not err in ruling that the blood test results were admissible even though the state had not sought preservation of the blood sample. Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983).

6.Drugs

Classification of marijuana as a dangerous drug is not so arbitrary that it denies to persons possessing the drug due process of law. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Although there is insufficient justification for the state to intrude into the citizen’s right to privacy by its prohibition of the possession of marijuana in the home by an adult for personal consumption, the need for control of drivers under the influence of marijuana, and the existing doubts as to the safety of marijuana, demonstrate a sufficient justification for the prohibition found in former AS 17.12.010 (see now AS 11.71.030 ) as an exercise of the state’s police power for the public welfare. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Application of the marijuana law does not result in invidious discrimination against young persons. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Cocaine is not unconstitutionally classified as a narcotic drug by Alaska statute. Johnson v. State, 577 P.2d 230 (Alaska 1978).

The classification of cocaine with narcotics is not violative of equal protection or due process. State v. Erickson, 574 P.2d 1 (Alaska 1978).

When viewed from the overall legislative purpose of preventing the use of a drug harmful to the health and welfare of society, the classification of cocaine as a narcotic drug is not so irrational or arbitrary as to violate due process. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Cocaine offenses are not included in the prohibitions of AS 17.12 so that questions of prosecutorial discretion to charge cocaine offenses under either AS 17.10 or 17.12 need not be addressed. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Since cocaine is specifically designated in former AS 17.10 [now see AS 11.71 and AS 17.30], the legislature, in the absence of naming it in former AS 17.12, did not intend it to come under the terms of the latter statute. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Cocaine is specifically regulated by name in former AS 17.10 [now see AS 11.71 and AS 17.30], and an indictment for its possession or sale under former AS 17.12 would be impermissible unless cocaine were designated by name under the regulations authorized by that statute. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Police activity to ascertain involvement in drug activity. —

This section did not prohibit police activity involving an investigation in which defendant was contacted to ascertain if he was involved in ongoing drug activity. Abdullah v. State, 816 P.2d 1386 (Alaska Ct. App. 1991).

Bringing charge under more specific statute upheld. —

There was no equal protection or due process violation in charging defendant with delivery on the basis of evidence of an attempt to deliver since the more specific statute on delivery of cocaine controls over the general attempt statute and therefore only one punishment applied. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

7.Evidence

Evidence to which due process requirement applies. —

The due process requirement applies to all evidence which might have led the jury to entertain a reasonable doubt about defendant’s guilt and this test is to be applied generously to the accused where there is “substantial room for doubt” as to what effect disclosure might have had. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Because defendant’s proposed hearsay testimony failed to meet the criteria for admission under the residual hearsay exception, Alaska R. Evid. 804(b)(5), the evidence was inadmissible regardless of defendant’s due process right to present a defense that someone else could have committed the crime; defendant’s right did not make the hearsay rules irrelevant. Cleveland v. State, 91 P.3d 965 (Alaska Ct. App. 2004).

Due process requirements in consideration of post-conviction DNA evidentiary claims. —

Due process clause of the Alaska Constitution may require some avenue of relief where a constitutional violation could have resulted in the conviction of one who is innocent. Even though defendant’s claim of innocence is apparently barred by AS 12.72.020(b)(2) , it can be argued that the due process clause requires disregard of the wording of the statute and allows defendant to pursue his claim, as long as there is some chance that he could prove himself innocent by clear and convincing evidence. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Defendant who seeks post-conviction DNA testing must, at a minimum, meet the three-part test endorsed by the state courts; that is, the defendant must show that the conviction rested primarily on eyewitness identification evidence, that there was a demonstrable doubt concerning the defendant’s identification as the perpetrator, and that scientific testing would likely be conclusive on the issue. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

For discussion of due process considerations which would require disregarding of statutory limitations, where defendant has satisfied requirements for post-conviction DNA testing, but his claim is barred by AS 12.72.020 , see Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Evidence of defendant’s character for violence. —

The provision of Rule 404(a)(1), Rules of Evidence, allowing evidence of defendant’s character for violence to rebut his claim that the victim was the initial aggressor does not violate due process. Allen v. State, 945 P.2d 1233 (Alaska Ct. App. 1997).

Exclusion in favor of admissible, less prejudicial evidence. —

In a sexual assault case, the court properly excluded evidence of an alleged phone call where the victim purported to have sex with another man because defendant was allowed to question the victim about phone calls generally, providing defendant the opportunity to explore the dynamics of their relationship; the purposes that defendant asserted for introducing the specifics of the phone calls, including a demonstration of the “game playing” and “back and forth” nature of the relationship, were served by other admissible and less prejudicial evidence. Douglas v. State, 151 P.3d 495 (Alaska Ct. App. 2006).

Destruction of polaroid photographs did not violate defendant’s due process rights, where preservation and introduction of the photographs, which were of the scene of abandonment of stolen property, would not have led the jury to entertain a reasonable doubt about defendant’s guilt. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Failure to record field interrogation. —

Due process principles did not require an officer to interrupt an arrest and search in order to activate his recorder and capture a field interrogation, even though there was a disagreement about what happened. Defendant’s statement therefore should have been admitted. State v. Amend, 250 P.3d 541 (Alaska Ct. App. 2011).

Duty of prosecution to disclose exculpatory material. —

See Nicholson v. State, 570 P.2d 1058 (Alaska 1977).

The prosecutor did not violate his duty to present exculpatory evidence to the grand jury, where there was no separate exculpatory evidence, and the prosecutor was not shown to have known that the questioned evidence presented to the grand jury was false. Keith v. State, 612 P.2d 977 (Alaska 1980).

Failure of prosecutor to present to grand jury witness’s description of the occupant of a car he had observed on the morning of the murder did not violate the duty imposed by Cr. R. 6(q) to disclose exculpatory evidence to the grand jury and, therefore, would not have violated any constitutionally imposed duty of disclosure. Frink v. State, 597 P.2d 154 (Alaska 1979).

Defendant is entitled to have access to all relevant evidence in the possession of the state in order that he be afforded his right to a fair trial. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Denial of access to impeachment evidence. —

Denial of defendant’s request for in camera review of the juvenile file of a prosecution witness for purposes of defendant’s impeachment of the witness at sentencing did not violate his due process rights. Cockerham v. State, 933 P.2d 537 (Alaska 1997).

Probative value held outweighed by considerations of prejudice. —

In defendant’s trial for second-degree murder for killing a child who was in defendant’s care, defendant was not improperly denied the opportunity to present evidence that the child’s mother had a short temper when the small probative value of the evidence was outweighed by considerations of prejudice under Alaska R. Evid. 403. Defendant’s right to due process was not infringed when the trial judge properly applied R. 403 to exclude the evidence. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Duty of prosecution to disclose relevant information to the defense. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

The due process clauses of the federal and state constitutions require that a prosecutor disclose information reasonably bearing on the credibility and bias of witnesses. Carman v. State, 604 P.2d 1076 (Alaska 1979).

If the prosecutor in a criminal case has not violated the duty imposed in Cr. R. 6 to present exculpatory evidence, then the prosecutor has not violated any constitutionally-imposed duty of disclosure. Preston v. State, 615 P.2d 594 (Alaska 1980).

Failure to disclose statements of potential witnesses. —

Where, although there was no pretrial request of record, during the trial an objection was raised by the defense counsel that he had not been supplied with a copy of the statements made to the prosecutor by potential witnesses and during the discussion of the failure to disclose the statement of the witness then testifying, defense counsel made a specific request for the statements or summaries of the statements of “potential witnesses,” and this information was not disclosed, a new trial was required by due process since “the suppressed evidence might have affected the outcome of the trial.” Nicholson v. State, 570 P.2d 1058 (Alaska 1977).

Or existence of reward. —

The state did not fulfill its responsibility to disclose information reasonably bearing on the credibility and bias of witnesses where, in a prosecution for armed robbery and first-degree murder, it did not disclose to defense counsel the existence of a reward, the fact that a witness had been told early on that he was a potential recipient of it, the fact that the witness had requested money when he first approached the police, and the fact that the witness was paid money after he gave the initial statement. Carman v. State, 604 P.2d 1076 (Alaska 1979).

Hypnotically adduced evidence. —

Defendants are deprived of their constitutional right of confrontation under the Alaska Constitution when hypnotically adduced evidence is introduced. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Witnesses who have been previously hypnotized are permitted to testify only to facts which they related prior to hypnosis. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Evidence of similar crime properly excluded. —

Trial court did not violate defendant’s due process right to present a defense to a charge of murder by preventing defendant from offering evidence that another purportedly similar shooting took place in the same neighborhood one month earlier. There were significant differences between the two incidents, particularly in that the earlier shooting was apparently a drug-related robbery. Rogers v. State, 280 P.3d 582 (Alaska Ct. App. 2012).

Failure to preserve evidence. —

Failure to preserve evidence violates one’s constitutional right to due process only if the evidence might have led the jury to entertain a reasonable doubt about the defendant’s guilt. Hatfield v. State, 663 P.2d 987 (Alaska Ct. App. 1983).

Defendant’s right to due process was not violated by the failure to preserve certain physical evidence where he never made a request for disclosure and the unpreserved evidence did not create a reasonable doubt as to defendant’s guilt that did not otherwise exist. Maloney v. State, 667 P.2d 1258 (Alaska Ct. App. 1983).

Physical items from which fingerprints taken not available. —

State’s failure to preserve and make available to defendant physical items from which fingerprints were taken did not violate the state’s affirmative duty to disclose potentially favorable evidence to the defense. Wyrick v. State, 590 P.2d 46 (Alaska 1979).

Destruction of evidence. —

In a prosecution for burglary not in a dwelling, destruction of a piece of cardboard that allegedly was marked with a bootprint did not amount to a violation of due process of law where there was uncontradicted testimony that the bootprint had dried and was no longer visible, and there was other evidence of greater convincing force connecting defendants to the commission of the crime. Linden v. State, 598 P.2d 960 (Alaska 1979).

Although one of the first police officers to arrive at the scene of the shooting took possession of defendant’s shotgun and handled the weapon before it was sent for analysis to a fingerprint expert, and upon examination of the gun, the fingerprint expert found only the officer’s prints, near the end of the barrel, there was no failure of due process by the state’s alleged destruction of exculpatory evidence. Adkinson v. State, 611 P.2d 528 (Alaska), cert. denied, 449 U.S. 876, 101 S. Ct. 219, 66 L. Ed. 2d 97 (U.S. 1980).

Where codefendant’s taped confession was destroyed after transcription, and was not used at trial except that the prosecution was permitted to establish that the statement had been made and the codefendant would sign it as accurate based on his observations and intent on the night the crime was committed, defendant was not deprived of his right to be confronted with witnesses against him, nor was he deprived of evidence that might have led the jury to entertain a reasonable doubt about his guilt. Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980).

Cross-examination. —

The due process clause requires no more than the opportunity for effective cross-examination. In re C.L.T., 597 P.2d 518 (Alaska 1979).

Defendants were not denied due process or equal protection where, in prosecution for possession of heroin, the judge allowed cross-examination of the defendants on whether one of the defendants worked as a prostitute and whether she used drugs and on the other defendant’s alleged illegal earnings, since a napkin containing heroin and police officers’ testimony about the events surrounding the arrests were the basis of defendants’ convictions. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Impeachment of a defendant by a prior conviction does not deny the defendant due process of law. Richardson v. State, 579 P.2d 1372 (Alaska 1978).

The use of a prior criminal conviction to impeach a defendant’s credibility does not deny him due process of law under either the Alaska Constitution or the United States Constitution. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Exclusion of co-defendant’s statement against penal interest did not violate defendant’s constitutional right to due process of law since co-defendant’s statement was not clearly corroborated. Garroutte v. State, 683 P.2d 262 (Alaska Ct. App. 1984).

Improper prosecutorial comments. —

Defendant’s interest in receiving a fair trial was not impaired by improper prosecutorial comments concerning the credibility of a codefendant. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

It was harmless error for prosecution to cross-examine defense expert on the absence of autopsy slides because defendant had remedies for the error at trial. While the prosecution was improperly allowed to imply that autopsy slides existed, defendant could have presented evidence of standard procedures when tissue samples are created as part of an autopsy. It was reasonable for the defense expert to conclude that, because he had not received any slides, none existed. Garner v. State, — P.3d — (Alaska Ct. App. Mar. 30, 2011) (memorandum decision).

Variance between indictment and jury instructions. —

Although the indictment used the language of shooting with the intent to kill “and” wound and instructions to the jury followed the statutory language of shooting with intent to kill “or” wound, defendant received adequate notice of the charge against him, there was no ambiguity as to the incident involved, and he was in a position to claim double jeopardy if again charged with the offense of shooting with intent to kill or wound arising out of this incident; due process was not violated, since, even assuming that six jurors believed defendant to have the intent of wounding and six the intent of killing, in either event, he would be guilty of the charge, and those finding the intent to kill would have necessarily found an intent to wound, as one cannot kill by shooting without wounding. Christie v. State, 580 P.2d 310 (Alaska 1978).

8.Instructions

All witnesses presumed to speak truth. —

The use of a jury instruction which states that witnesses are presumed to speak the truth is condemned, since it interferes with the province of the jury to determine credibility of witnesses, it seems to conflict with the presumption of innocence, and the instruction serves to raise doubt in the juror’s mind as to his role and adds a confusing factor to jury deliberations. Galauska v. State, 532 P.2d 1017 (Alaska 1975).

Cautionary instructions. —

The trial court does not abuse its discretion in giving a cautionary instruction when an immunized witness provides exculpatory testimony. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983).

It was unnecessary to resolve whether the trial court misinstructed on the requirement of jury unanimity as it related to a felony murder charge because the jury unanimously agreed that defendant was guilty of murder under other subsections of the second-degree murder statute. Lawson v. State, 264 P.3d 590 (Alaska Ct. App. 2011).

Erroneous instruction to jury on unanimity. —

Given that defendant’s right to have jurors all agree that defendant committed a single offense was protected by the Alaska Constitution’s due process clause, the court of appeals erroneously placed the burden of showing prejudice of a constitutional error on defendant rather than the State. Khan v. State, 278 P.3d 893 (Alaska 2012).

Given the defense that two different drivers had driven the car at different times, the trial court should have given a factual unanimity instruction, but the omission was harmless error because the jury found defendant guilty of driving in violation of his instructional permit under AS 28.15.051(a), and the jury unanimously found that defendant drove the car on the roadway and into the ditch. Cathey v. State, — P.3d — (Alaska Ct. App. July 19, 2017) (memorandum decision).

Charge to grand jury. —

Defendant’s equal protection and due process rights were not violated by a charge given to the grand jury, where the jury was left with the understanding that it should not return an indictment unless it was satisfied that the evidence presented, if unexplained or uncontradicted, established a probability of defendant’s guilt and would therefore warrant, i.e., justify, holding him for trial. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

9.Juries

Right to jury trial. —

The 14th amendment due process clause guarantees the right to jury trial in serious criminal prosecutions in the states. RLR v. State, 487 P.2d 27 (Alaska 1971).

Failure to provide accused with an impartial jury constitutes a denial of his constitutional right to due process of law. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Denial of use of juror affidavits to impeach verdict. —

Where an inmate attacked his guilty verdict in a petition for post-conviction relief, claiming that jurors formed and announced opinions and discussed the merits of the case before jury deliberations, relied on personal knowledge in the deliberations, and viewed the inmate’s decision not to testify and his wife’s absence as evidence of his guilt, the denial of his petition on the ground that under Alaska Evid. R. 606(b) the juror affidavits could not be relied on to support the petition did not violate the inmate’s due process rights. Larson v. State, 79 P.3d 650 (Alaska Ct. App. 2003).

Racial and cultural mix of grand jury. —

A grand jury is asked to determine only that a crime has been committed and that there is probable cause to believe that a particular person committed that crime. So long as no group of citizens has been systematically excluded from the grand jury selection process, a conviction on an indictment which is otherwise sufficient will be upheld. Peterson v. State, 562 P.2d 1350 (Alaska 1977).

Defendant’s conviction was upheld although the grand jury which returned the indictment did not contain the same racial and cultural mix as that of the situs of the alleged crime. Peterson v. State, 562 P.2d 1350 (Alaska 1977).

Grand jury proceedings cannot be turned into a mini-trial. The grand jury is an accusatorial body operating without a judicial officer to pass on the admissibility of evidence, and as such is charged with a determination of the probability of guilt. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Right to indictment by grand jury free of prosecutor instigated prejudice. —

Although no provision of the United States or Alaska constitutions specifically guarantees the right of an accused to be indicted by a grand jury free of prosecutor instigated prejudice, a strong historical basis exists for holding that the grand jury should operate to control abuses by the government and protect the interests of the accused. Coleman v. State, 553 P.2d 40 (Alaska 1976).

To overturn an indictment because of grand jury prejudice, a defendant should make a factual showing of prejudice. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983); Chief v. State, 718 P.2d 475 (Alaska Ct. App. 1986).

Actions of prosecuting attorney did not improperly influence grand jury. —

Coleman v. State, 553 P.2d 40 (Alaska 1976); Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982) (comments and elicitation of testimony that defendant had asserted his right to remain silent and to appointment of counsel).

Right to unbiased grand jury. —

Because the grand jury voted unanimously to indict a defendant, and because the defendant had, at most, established bias on the part of only one member of the panel, no deprivation of the defendant’s right to a fair and unbiased grand jury had been established. Patterson v. State, 747 P.2d 535 (Alaska Ct. App. 1987).

Hearsay before grand jury in cases of sexual assault on children. —

Permitting hearsay before a grand jury in cases of sexual assault on children does not deprive a defendant of due process or of the constitutional right to a grand jury review of the prosecution’s evidence before the return of an indictment. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Response to jury without notifying defendant or counsel. —

In a prosecution for rape the trial court erred in responding to a written communication from the jury during its deliberations requesting a playback of certain testimony without notifying defendant or either counsel of the communications and without allowing the parties to be present and to be heard on the matter. The testimony requested was that of the defendant and the prosecutrix and the judge’s response was to inform the jury that he could not allow them to hear “all of the testimony of a witness to be replayed” and to suggest that the jury narrow its request. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Replacement of juror by alternate in defendant’s absence. —

Defendant’s rights were not violated by the replacement of a juror by an alternate in the absence of defendant and his counsel, where the court had discretion to excuse the juror in light of the information it had received and defendant did not argue that the substitution of the alternate, whose qualifications had been approved, in any way affected the impartiality of the jury which tried him. Huff v. State, 598 P.2d 928 (Alaska 1979).

Purposeful and systematic exclusion must be shown to invalidate jury. —

Purposeful and systematic exclusion of an identifiable portion of the community must be shown to invalidate a jury in a criminal case. Kimble v. State, 539 P.2d 73 (Alaska 1975).

It must be shown that the jury selection method purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that the particular jury in question does not include a representative from all segments of the local population. Kimble v. State, 539 P.2d 73 (Alaska 1975).

Single offense. —

During closing arguments at defendant’s trial, the prosecutor erred by telling the jury that it could find defendant guilty of either of two distinct driving or operating incidents — driving to a friend’s house or starting a parked truck in front of the friend’s house — because defendant had the right to have jurors all agree that the defendant committed a single offense. Moreno v. State, 341 P.3d 1134 (Alaska 2015).

Failure to give unanimity instruction. —

In a prosecution of defendant for sexually abusing his girlfriend's three daughters, the trial court's error in failing to give a factual unanimity instruction was harmless beyond a reasonable doubt. Despite the absence of a factual unanimity instruction, it was likely that the jury actually reached unanimous agreement as to the specific act charged in each of the representative counts. Bedwell v. State, — P.3d — (Alaska Ct. App. May 16, 2018) (memorandum decision).

21- or 22-hour jury deliberation. —

In view of the total lack of evidence that jury fatigue or coercion was a factor in the verdict, the trial court’s exercise of discretion in allowing the jury to deliberate throughout a 21- or 22-hour-period was upheld. Kimble v. State, 539 P.2d 73 (Alaska 1975).

Jury communication to trial judge. —

Where the bailiff failed to deliver a jury deadlock note to the trial judge the judge was precluded from conducting proceedings on the record in defendant’s presence in violation of defendant’s right to be present at every stage of the trial. Wamser v. State, 652 P.2d 98 (Alaska 1982).

Because defendant did not give up the right to be represented by counsel, defendant’s limited co-counsel status—to cross-examine witnesses and to deliver additional closing argument—did not affect defendant’s constitutional right to have defendant’s attorney present at a hearing when substantive matters about the jury’s deadlock were discussed. Defense counsel’s decision to be out of contact for less than an hour, with the trial court’s tacit approval, was not an invitation to the court to hold proceedings without the attorney. Cunningham v. State, 408 P.3d 1238 (Alaska Ct. App. 2017).

10.Parole

Determination of parole eligibility. —

Where former AS 33.15.230(a)(1), which in 1973 provided that the term a prisoner had to serve before becoming eligible for parole could “not be more than one-third of the maximum sentence imposed by the court” and which in 1974 was amended to provide that any term thus designated “shall be at least one-third of the maximum sentence imposed by the court,” use of the amended version to determine parole eligibility for a crime committed in 1973 was sufficiently akin to the enforcement of an ex post facto law to amount to a denial of defendant’s right to due process of law under this section. Elstad v. State, 599 P.2d 137 (Alaska 1979).

Revocation of parole requires due process. —

Even though the revocation of parole is not a part of the criminal prosecution, the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Wortham v. State, 519 P.2d 797 (Alaska 1974).

Under both the United States and Alaska constitutions, a parolee may not be deprived of his limited liberty without due process of law. Paul v. State, 560 P.2d 754 (Alaska 1977).

Right to impartial fact finder in parole revocation proceedings. —

Due process includes the right to an impartial fact finder in parole revocation proceedings. Newell v. State, 620 P.2d 680 (Alaska 1980).

When a person sitting in on deliberations in a parole revocation hearing was the person who initially recommended revocation and whose reports and testimony form the bulk of the evidence supporting revocation, such a person was part of the prosecution, and their presence violated the parolee’s due process rights to an impartial fact finder. Newell v. State, 620 P.2d 680 (Alaska 1980).

Standard applied in parole revocation hearing. —

It was not error for a parole board to apply the preponderance of the evidence standard in a parole revocation hearing. Avery v. State, 616 P.2d 872 (Alaska 1980).

As well as revocation of probation. —

Like a parolee, a probationer may not be deprived of his limited liberty without due process of law. Paul v. State, 560 P.2d 754 (Alaska 1977).

There is no difference between parole and probation revocations as regards due process requirements. Avery v. State, 616 P.2d 872 (Alaska 1980).

There is no difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Paul v. State, 560 P.2d 754 (Alaska 1977).

A parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision. Wortham v. State, 519 P.2d 797 (Alaska 1974).

The preliminary hearing is necessary because due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Wortham v. State, 519 P.2d 797 (Alaska 1974).

What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior. Wortham v. State, 519 P.2d 797 (Alaska 1974); Paul v. State, 560 P.2d 754 (Alaska 1977).

Hearing required at place of arrest. —

Due process requires a hearing for an alleged parole violator at the place of his arrest. Wortham v. State, 519 P.2d 797 (Alaska 1974).

Which may be outside the state. —

Wortham v. State, 519 P.2d 797 (Alaska 1974).

Revocation of parole prior to criminal trial on same charges. —

Where a parolee is faced with revocation of parole prior to a criminal trial on the same charges, in the interests of fairness, the parolee should not be forced to choose between remaining mute at the revocation proceeding, thereby surrendering his right to present a defense, or testifying at the revocation hearing and incurring the possibility of incriminating himself. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and a criminal trial based upon the same conduct, upon timely objection any evidence or testimony presented by the parolee at a revocation hearing is inadmissible by the state in subsequent criminal proceedings. This exclusionary rule applies equally to the fruits of the parolee’s prior revocation hearing, in order to remove completely any illegitimate incentive to schedule revocation hearings in advance of trial. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and criminal trial based on the same conduct, the parolee must be advised prior to revocation proceedings that any evidence or testimony offered by him at the revocation proceedings may not be admitted against him at a subsequent trial on the underlying offense. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Notice of alleged violation of probation. —

Failure to notify a probationer, prior to the revocation hearing, of an allegation that he has violated a condition of probation is a denial of procedural due process. Martin v. State, 517 P.2d 1399 (Alaska 1974).

There was no error in conducting the probation revocation hearing some six months after the violation of the conditions of probation. Paul v. State, 560 P.2d 754 (Alaska 1977).

No credit against suspended sentence for probation. —

Defendant was not entitled to have the period he served on probation credited against his original suspended sentence. Paul v. State, 560 P.2d 754 (Alaska 1977).

Upon a violation occurring within the specified period of probation, the court is empowered to order execution of the sentence up to but not beyond the maximum period originally specified. Paul v. State, 560 P.2d 754 (Alaska 1977).

The former Parole Administration Act violated section. —

Former AS 33.15.190, which made parolees subject to the disabilities imposed on prisoners by AS 11.05.070 [now AS 33.30.310] insofar as it suspended, in conjunction with AS 11.05.070 , the access of parolees to civil courts, violated the due process clauses of the Alaska and United States constitutions. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

AS 11.05.070 [now AS 33.30.310] and former AS 33.15.190 (see now AS 33.16) combined to deny a parolee the right to initiate civil suit; such denial of access to the civil courts was a violation of due process and equal protection provisions of the Alaska and United States constitutions. State v. McCracken, 520 P.2d 787 (Alaska 1973).

A parolee denied access to the judicial process by reason of his custodial status is thereby condemned to suffer a grievous loss of property rights protected by the due process provisions of this section and of the 14th amendment of the United States Constitution.Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

While tolling of the statute of limitations during disability prevents the baldest of takings; nevertheless, the disability robs the parolee of the opportunity to be heard “at a meaningful time and in a meaningful manner.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Parole conditions, 120-day notice reasonable. —

One hundred twenty days’ advance notice of proposed parole conditions is reasonable, and where defendant received 120 days’ advance notice there was no due process violation concerning the length of the notice. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions, proper response period. —

Where inmate filed his opposition within four days of receiving notice of the proposed conditions, did not ask for additional time to submit more material, and did not identify any manner in which he was prejudiced by the ten-day period, his claim that his due process rights were violated by an unduly short response period was correctly rejected. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions, enumeration of reasons unnecessary. —

Although a statement of reasons for each proposed condition and a statement of the evidence to be relied upon may help an inmate formulate a written response in some cases, it is not generally necessary to satisfy due process requirements. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions, inmate’s submission of written response. —

22 AAC 20.270(b) of the Administrative Code permits an inmate to submit written material, including the statements of others, in an attempt to correct errors in the inmate’s records, respond to concerns implicit in the notice of proposed conditions and otherwise support the inmate’s position. These procedures afford the inmate an opportunity to be heard and to represent the inmate’s interests and that is all that due process requires. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions properly imposed. —

The procedures employed to impose special parole conditions on inmate satisfied due process requirements where: 1) inmate was given notice of the proposed conditions; 2) he had an opportunity to make his objections known and to correct any mistaken facts on which they were based; and 3) the board member who imposed the conditions explained the reasons for rejecting inmate’s objections. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

11.Pre-trial

Pre-accusation delay. —

Both the Alaska and federal constitutional guarantees of due process of law serve to protect a defendant against the hazards of pre-accusation delay. Marks v. State, 496 P.2d 66 (Alaska 1972).

A claim of pre-accusation delay must sound in terms of deprivation of due process of law. Coffey v. State, 585 P.2d 514 (Alaska 1978); Alexander v. State, 611 P.2d 469 (Alaska 1980).

A claim of pre-accusation delay must sound in terms of deprivation of due process of law under the 14th amendment to the United States Constitution and this section. The United States Constitution’s 6th amendment does not afford speedy trial protection until the commencement of formal proceedings. Similarly, the Alaska constitutional right to speedy trial, embodied in art. I, § 11, does not attach prior to formal accusation. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Two factors have been considered relevant in deciding whether substantial delay in accusation constitutes a denial of federal due process: The reasonableness of the delay and the probable prejudice accruing from the delay. In order to assess a claim of due process deprivation, the governmental interest in postponing accusation must be weighed against the defendant’s interest in early notice of the charges against him. In sum, both the absence of a valid reason for pre-accusation delay and the fact of prejudice must be established in order to support a due process claim. Marks v. State, 496 P.2d 66 (Alaska 1972); Dixon v. State, 605 P.2d 882 (Alaska 1980).

While the supreme court has recognized that there may be reason to dismiss criminal charges because of prejudice suffered by a defendant because of pre-indictment delay, such a decision must be based on a consideration of several factors. The reason for delay, the prejudice to defendant, and the governmental interest in postponing accusation must be evaluated to assess a claim of violation of due process with respect to events occurring prior to indictment. P.H. v. State, 504 P.2d 837 (Alaska 1972).

In order to show pre-accusation delay warranting a dismissal, a defendant must show (1) the absence of valid reasons for such delay and (2) the fact that the defendant was prejudiced by the delay. Yarbor v. State, 546 P.2d 564 (Alaska 1976); Coffey v. State, 585 P.2d 514 (Alaska 1978); Prenesti v. State, 594 P.2d 63 (Alaska 1979); Alexander v. State, 611 P.2d 469 (Alaska 1980); Burke v. State, 624 P.2d 1240 (Alaska 1980).

Some delay between offense and formal charge is clearly justified in cases involving drug undercover agents. McKay v. State, 489 P.2d 145 (Alaska 1971).

A preindictment delay by the prosecution to gather potentially exculpatory evidence is clearly not an unreasonable delay. Burke v. State, 624 P.2d 1240 (Alaska 1980).

Defendant’s generalized claim of possibly lost witnesses and failed memories failed to meet the actual prejudice requirement and thus did not support a finding that his right to due process was violated by a pre-accusation delay. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

The defendant bears the burden of showing that the delay was unreasonable and that he was prejudiced thereby. Coffey v. State, 585 P.2d 514 (Alaska 1978); Dixon v. State, 605 P.2d 882 (Alaska 1980).

The burden of proving prejudice flowing from the pre-accusation delay lies with the defendant. Prenesti v. State, 594 P.2d 63 (Alaska 1979).

That the ultimate burden of proof is on the defendant does not mean that the state is relieved of the burden of coming forward with reasons for the delay, matters normally within the exclusive knowledge of the state. Rather, the defendant must show that the reasons so advanced do not justify the delay. Coffey v. State, 585 P.2d 514 (Alaska 1978); Dixon v. State, 605 P.2d 882 (Alaska 1980); Burke v. State, 624 P.2d 1240 (Alaska 1980).

The burden of proof is on the defendant to show the absence of a valid reason for the delay and the fact of prejudice, though the state has the burden, once the issue is raised, to come forward with reasons for the delay. When reasons are advanced, the defendant must show that they do not justify the delay. Alexander v. State, 611 P.2d 469 (Alaska 1980).

Even if there is no reason advanced for the delay, the defendant must still show actual and substantial prejudice in order to prevail. Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988).

In a dog-bite case, defendant’s equal protection rights were not violated despite assertions that she had been treated differently than other owners of biting dogs; she offered no evidence to support an inference that the treatment was motivated by her racial heritage. Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289 (Alaska Ct. App. 2004).

Five-month delay. —

In a prosecution for rape, a delay of nearly five months between the occurrence of the event in dispute and the return of the indictment did not prejudice the accused’s defense so as to effectively deny him due process of law. Dixon v. State, 605 P.2d 882 (Alaska 1980).

A five-month pre-indictment delay in a statutory rape prosecution is reasonable in light of the investigation undertaken by the police and an understandable reluctance to rush this type of case before the grand jury by the district attorney, and given the minimal possible prejudice which could have resulted from the delay. Burke v. State, 624 P.2d 1240 (Alaska 1980).

A seven-month interval from the alleged drug sale until arrest was an unreasonable delay denying accused due process. McKay v. State, 489 P.2d 145 (Alaska 1971).

Eight-month delay. —

Dismissal of the criminal proceedings under former AS 17.12.010 (see now AS 11.71) was constitutionally mandated where eight months had elapsed between the occurrence of the alleged sale and the filing of the indictment. Marks v. State, 496 P.2d 66 (Alaska 1972).

Although an eight-month delay in filing formal charges against defendant was unreasonable, defendant was not sufficiently prejudiced by the delay to warrant dismissal of the charges. Prenesti v. State, 594 P.2d 63 (Alaska 1979).

Three-year delay between the conduct and the indictment did not violate due process where, although the bench warrant for his arrest was never entered into the national computer systems, defendant was incarcerated during the period in various states under a name different from the one on the warrant, and therefore the police would not necessarily have known where he was. Lipscomb v. State, 700 P.2d 1298 (Alaska Ct. App. 1985).

Ten-year delay between alleged offenses and defendant’s indictment was reasonable, and dismissal of charges against defendant was error, where defendant fled the state after being interviewed and was not found until he returned to the state 10 years later, and the child victim had been institutionalized for a significant period of time after the alleged sexual abuse. State v. Gonzales, 156 P.3d 407 (Alaska 2007).

Delay of arrest. —

Action by undercover officer in delaying arrest of defendant for assignation for the purpose of prostitution until after sexual contact between them had been initiated, while questionable, did not violate defendant’s due process right to fundamental fairness. Municipality of Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct. App. 1982).

Defendant’s absence from a pretrial conference held during a criminal trial did not rise to the level of plain error. Dolchok v. State, 639 P.2d 277 (Alaska 1982).

Absence from hearing. —

Defendant’s absence from hearing was not reversible error because nothing of significance happened at the omnibus hearing, even though defendant would have been alerted to the fact that a particular judge would be trying the case, and that his counsel was contemplating stipulating to a trial date more than 120 days from the date of his arrest. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

Ex parte hearing where witness claims privilege. —

Notwithstanding a criminal defendant’s right to be present “at every stage of the trial” under Criminal Rule 38(a), and the defendant’s right to due process, a trial judge has the authority to hear ex parte a witness’s explanation of his basis for asserting a privilege not to testify. Taylor v. State, 977 P.2d 123 (Alaska Ct. App. 1999).

Requirements for valid guilty plea. —

An incantation of specific constitutional rights is not required in order for a plea of guilty to be valid under the due process clause. What matters is whether from the totality of circumstances surrounding the plea it can be determined that the plea was voluntarily and intelligently made. Morgan v. State, 582 P.2d 1017 (Alaska 1978).

The trial court must inform a defendant of the essential elements of the offense with which he is charged before accepting a guilty plea. Else v. State, 555 P.2d 1210 (Alaska 1976).

And court inquiry must be more exacting when defendant pro se. —

A trial court should make a more exacting inquiry to assure a defendant’s understanding of the charge when he seeks to enter a guilty plea pro se than is required when he is represented by counsel. Routine questions on the subject of understanding are insufficient, and a single response by a pro se defendant that he “understands” a charge is inadequate assurance or basis for believing that he does. Else v. State, 555 P.2d 1210 (Alaska 1976).

What “essential elements” include. —

For the purpose of instructing a nonrepresented defendant, “essential elements” include those requirements not contained in the wording of the statute but created by judicial construction. Else v. State, 555 P.2d 1210 (Alaska 1976).

Nonrepresented defendant’s guilty plea to the charge of assault with a dangerous weapon was invalid because he was not informed by the court or the prosecutor of an essential element of the offense, specifically that his weapon must be loaded, which requirement is not contained in the statute defining assault with a dangerous weapon but has been added by judicial interpretation. Therefore, his plea was involuntary since he did not receive real notice of the true nature of the charge against him, and his judgment of conviction was entered without due process of law. Else v. State, 555 P.2d 1210 (Alaska 1976).

12.Prisoners

An inmate is a “person” for purposes of the 14th amendment. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

The distinction between prisoners in institutions and free citizens on the labor market is not suspect. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Prisoners’ rights subject to certain restrictions. —

That prisoners retain rights under the due process clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Action against corrections officers. —

Inmate could not bring a Bivens-type tort claim for excessive force in a “take-down” and for failure to supervise officers because he had the alternative remedy of a federal claim under 42 U.S.C.S. § 1983 and the Fourth and Fifth Amendments. The fact that the State would be immune in the § 1983 claim did not preclude it being an alternative remedy. State v. Heisey, 271 P.3d 1082 (Alaska 2012).

Decisions of prison authorities relating to classification of prisoners are completely administrative matters regarding which the inmate has no due process rights beyond the expectation of fair and impartial allocation of the resources of the prison system to its charges. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Inmates not entitled to minimum wage. —

Neither the rehabilitation directive of the Alaska Constitution nor its due process clause requires the holding that inmates are entitled to a minimum wage. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Rights accorded inmate in disciplinary proceedings. —

See McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Alaskan prisoners are entitled, under the Alaska Constitution, to all due process rights enunciated in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (U.S. 1974). McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Wolff v. McDonnell , 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), which enumerated certain due process requirements when major prison disciplinary proceedings are instituted against a state prisoner, did not delineate the full reach of due process rights which must be accorded prison inmates under the Constitution of Alaska. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

In Wolff v. McDonnell , 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the United States supreme court held that when major prison disciplinary proceedings are instituted against a state prisoner, due process requires giving the inmate at least 24-hour advance written notice of the alleged violation; supplying the inmate with a written statement by the factfinders as to the evidence relied on and the reasons for the disciplinary action; allowing the inmate facing disciplinary action to call witnesses and to present documentary evidence in his behalf when to do so will not be unduly hazardous to institutional safety or correctional goals; and allowing an illiterate inmate, or an inmate facing a complex issue, to have assistance in marshalling and presenting evidence and in comprehending the issues of the case. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Alaska’s constitution requires greater due process protections than the United States Constitution in the following respects: A prisoner has the right to counsel in conjunction with major disciplinary proceedings when felony prosecution may result; the right to call witnesses and produce documentary evidence in his favor (subject to the limitations discussed previously); the right to confront and cross-examine witnesses; and the right to have the entire hearing recorded for purposes of administrative appeal and potential further appeal to the superior court. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

The Alaska Constitution affords an inmate of Alaska’s penal system no greater protection than the United States Constitution in the following respects: a disciplinary proceeding is not a criminal proceeding, thus the inmate has no automatic right of appeal to the courts of Alaska; the standard of proof, in disciplinary hearings, of violation of prison rules is not “beyond a reasonable doubt”; and, while the inmate is entitled to a fair and impartial hearing, it is not constitutionally impermissible for the hearing to be conducted by employees of the prison system. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Prisoners who are subjected to minor disciplinary action by prison authorities are entitled to no more due process than a right to be heard by fair and impartial officials of the prison system whose disposition of the matter, coupled with the reasons for the decision, is made part of a complete record. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

There are limitations on the right of Alaska prisoners to call witnesses and to produce documentary evidence in their favor, and the right to confront and cross-examine witnesses. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Because single hearing officers were not presumed under Alaska case law to be biased in prison disciplinary proceedings, and because defendant offered no specific allegations of bias or an explanation of why a high-moderate infraction of possession of tobacco in violation of AS 33.30.015 and 22 AAC 05.400(c)(7) required adjudication by a committee instead of a single hearing officer, he did not show a violation of his Alaska constitutional right to an impartial factfinder under Alaska Const. art. I, § 7 as was required for a reversal under AS 33.30.295 . Brandon v. Dep't of Corrections, 73 P.3d 1230 (Alaska 2003).

A prisoner has the right to challenge the disciplinary procedures of the department of corrections by means of an appeal to the superior court. The payment of filing fees is required to limit frivolous appeals, however, a prisoner cannot be denied access to the superior court due to inability to pay the filing fee. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Prisoner raised a liberty interest in challenging punitive segregation, and he raised a due process issue in challenging the related disciplinary proceedings. He had a fundamental right to court access to challenge a department of corrections proceeding affecting his liberty interest. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

The superior court had no authority to require a prisoner to access his forced savings account to pay a filing fee; department of corrections policy prohibits using those funds to calculate or pay filing fees. Further, directing prisoners to apply for permanent fund dividends to pay fees is not appropriate; many prisoners have no right to a permanent fund dividend. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

AS 09.19.010 expressly provides the court the ability to grant an extension of time for paying the filing fee, and it is logical to conclude that this also encompasses the discretion to allow installment payments, but extensions and installment payments provide no relief for prisoners with no reasonably foreseeable income to make payment, and delay while installments are paid does not provide constitutionally adequate court access to prisoners without funds or income. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Right to court access. —

A prisoner alleged he was unconstitutionally deprived of judicial review of prison disciplinary decisions because AS 09.19.010 requires the prisoner to pay a minimimun filing fee calculated on the average balance or deposits in his inmate account over the past six months. The amount calculated for this prisoner required him to pay a fee far higher than his actual assets, and higher than he was likely to have within a reasonable time. As a matter of procedural due process, the prisoner was effectively denied his right to access to the courts by the terms of the statute. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Right violated during prison disciplinary proceeding. —

Inmate’s due process right to confront and cross-examine adverse witnesses was violated during a disciplinary proceeding; the inmate had the right to confront the staff member who had the conversation with the inmate that formed the basis of the incident report’s charge and who should have written the report, as well as the staff member who wrote up the account of the incident. James v. State, 260 P.3d 1046 (Alaska 2011), overruled in part, Walker v. State, 421 P.3d 74 (Alaska 2018).

Disciplinary proceedings which threaten major deprivations of a prisoner’s limited liberty and those which do not distinguished. —

See McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

The administrative appeals provided by the division of corrections regulations are not constitutionally defective. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

The test of a prisoner’s right to receive treatment for health problems outlined in Bowring v. Godwin , 551 F.2d 44 (4th Cir. 1977), is an appropriate one and its criteria have been adopted in determining questions as to the right of a prisoner to receive psychological or psychiatric care under the provisions of former AS 33.30.020 and 33.30.050 , which had provided that the commissioner is to establish and maintain prison facilities and provide medical services. Rust v. State, 582 P.2d 134 (Alaska 1978).

Pursuant to the provisions of former AS 33.30.020 and 33.30.050 , which had provided that the commission is to establish and administer prison facilities and provide medical services a prisoner in the custody of the division of corrections has the right to receive psychological or psychiatric treatment if a physician or other health care provider, exercising ordinary skill and care at the time of observation, concludes with reasonable medical certainty that the prisoner’s symptoms evidence a serious disease or injury, that such disease or injury is curable or may be substantially alleviated and that the potential for harm to the prisoner by reason of delay or denial of care could be substantial. Rust v. State, 582 P.2d 134 (Alaska 1978).

Incarceration of a person found guilty but mentally ill does not violate the due process or cruel and unusual punishment clauses of the Alaska Constitution. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Conditions of confinement complaint. —

Superior court erred in dismissing the prisoner’s administrative appeal from a final grievance decision by the Department of Corrections (DOC) without notice or opportunity for either the prisoner or DOC to be heard, which infringed on the prisoner’s right to due process. Bolden v. Dep't of Corr., — P.3d — (Alaska July 14, 2010) (memorandum decision).

Inmate’s rights violated. —

Failure of penitentiary disciplinary committee to allow prisoner to call official who supervised confiscatory search as a defense witness violated his due process rights under the Alaska Constitution. Brandon v. Dep't of Corr., 865 P.2d 87 (Alaska 1993).

Second petition for post-conviction relief. —

Under the due process clause of the Alaska Constitution, defendants must be allowed to pursue a second petition for post-conviction relief if they allege that they received ineffective assistance of counsel when they litigated their first petition. Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003).

13.Sentencing

Punishment for crime need not be strictly proportioned to the offense. Green v. State, 390 P.2d 433 (Alaska 1964); Stock v. State, 526 P.2d 3 (Alaska 1974).

Alcoholic beverage penalties. —

Statutory distinction in AS 04.16.200 between a misdemeanant and a felon based solely on the type and quantity of alcoholic beverages imported does not violate due process; the greater the volume of alcoholic beverages imported, the greater the potential for abuse, whether importation is for sale or personal use. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

Punishments violative of due process. —

Only those punishments which are cruel and unusual in the sense that they are inhuman and barbarous or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice, may be stricken as violating the due process clauses of the state and federal constitutions, and art. I, § 12, of the Alaska Constitution.Green v. State, 390 P.2d 433 (Alaska 1964); Stock v. State, 526 P.2d 3 (Alaska 1974).

Imposition of sentence by judge, not jury, upheld. —

When defendant was sentenced to a 99-year minimum mandatory sentence, the imposition of the sentence by a judge, not a jury, did not violate either the jury trial clause or the due process clause because this argument had already been rejected by the supreme court, and the appellate court had no authority to re-examine or second-guess the supreme court’s resolution of this point. Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007).

Enhanced sentences. —

Before a prior conviction for an ostensibly non-criminal infraction, such as a “civil forfeiture,” can properly be relied on as the sole basis for imposition of an enhanced mandatory minimum jail term, fundamental fairness under Alaska Const., art. I, § 7 requires the sentencing court to determine that the defendant was afforded the right to counsel in the prior case; an uncounseled conviction is simply too unreliable to be depended on for purposes of imposing a sentence of incarceration, whether that sentence is imposed directly or collaterally. Pananen v. State, 711 P.2d 528 (Alaska Ct. App. 1985).

Prior out-of-state convictions properly considered in sentencing. —

Montana court’s reliance on defendant’s failure to appear at his trials despite having been personally served with his trial notices and informed that he would be tried in absentia and without a jury if he did not appear for the trials, established a waiver of his right to be present at trial and satisfied Alaska’s concepts of due process; the convictions obtained in absentia could be used as prior convictions affecting disposition of defendant’s Alaska felony DWI charge. State v. Simpson, 95 P.3d 539 (Alaska Ct. App. 2004).

A minimum sentence of fifteen years for second degree murder was not in itself cruel or unusual or a denial of due process, and did not become such when matched against the one-year minimum sentence formerly implicit in that part of the former first degree murder statute which, prior to the 1964 amendment, prescribed an alternative penalty of imprisonment at hard labor for any term of years. Green v. State, 390 P.2d 433 (Alaska 1964).

Twenty-year minimum sentence for first-degree murder does not constitute cruel and unusual punishment in violation of § 12, art. I, of the state constitution, and U.S. Const., Amend. 8, nor does it deprive defendant of substantive due process and the equal protection of the laws in violation of U.S. Const., Amend. 14 and of the comparable provisions in the Alaska Constitution. Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

Penalizing the offense of guiding without a license as a felony under former law, with a maximum term of up to three years, did not amount to arbitrary and shockingly disproportionate punishment, although the former law provided for a minimum term of one year to serve since the one-year minimum sentence was not mandatory. Maeckle v. State, 792 P.2d 686 (Alaska Ct. App. 1990).

A more severe sentence may not be imposed after retrial for any reason. Shagloak v. State, 597 P.2d 142 (Alaska 1979).

Imposition of a more severe sentence after defendant’s trial following his change of plea from guilty to not guilty was a denial of due process of law under the Alaska Constitution. Shagloak v. State, 597 P.2d 142 (Alaska 1979).

Sentence based on conduct for which defendant acquitted. —

Double jeopardy and due process are not implicated when a person who has been acquitted of certain conduct is sentenced on the basis that the conduct occurred. The reason for this rests on the differing burdens of proof. In order to convict a defendant of an offense, the state must prove guilt beyond a reasonable doubt. In contrast, a trial court imposing sentence may rely on any information that is verified in the record. Brakes v. State, 796 P.2d 1368 (Alaska Ct. App. 1990).

Constitutionality of former AS 12.55.125(k)(2). —

Former AS 12.55.125(k)(2) [repealed 2005], interpreted to mean that, when a judge was sentencing a first felony offender for a class B or a class C felony, the defendant’s time to serve (i.e., the unsuspended portion of the defendant’s term of imprisonment) could equal, but could not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime, did not violate the due process rights of first felony offenders. Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

Sentence held constitutional. —

Where a trial court originally enhanced defendant’s sentence based on an aggravating factor which was held on appeal not to apply; on remand the trial court referred the case to the three-judge panel which then imposed a sentence which was less than defendant’s original sentence; and the three-judge panel’s sentence was based upon basically the same factors which the trial court had used to enhance defendant’s original sentence, then, although the sentence was greater than the presumptive term applicable to his offense, defendant’s sentence did not violate the prohibition against double jeopardy, did not violate his due process rights, and was not a product of prosecutorial or judicial vindictiveness. Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986).

Sentencing change constitutional where defendant notified. —

A defendant’s due process rights are not violated by a judge who initially imposes a concurrent sentence in the presence of the defendant and subsequently, realizing that he intended to impose a consecutive sentence, does so but not in the defendant’s presence, where the judge’s remarks before and during the pronouncement of sentence make it clear that he intends to impose a consecutive sentence, and the defendant is given notice of a change in his sentence. Merry v. State, 752 P.2d 472 (Alaska Ct. App. 1988).

Later-enacted statute’s applicability to set-aside convictions. —

A defendant who has satisfied his suspended imposition of sentence conditions and whose conviction was set aside by a final order entered before the Alaska Sex Offender Registration Act, AS 12.63.010 et seq., became specifically applicable to convictions that have been set aside has an enforceable procedural right in the set-aside order’s meaning and terms which the State may not alter or ignore without heeding the requirements of procedural fairness. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

G.Right to Counsel

1.Civil Proceedings

Right to be heard by counsel. —

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

There is a constitutional right to counsel in civil cases arising from the due process clause. Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144 (Alaska 1989).

Right to counsel in certain civil proceedings. —

The right to counsel in defense of criminal charges which may result in deprivation of liberty is well established, and the principles justifying appointment of counsel in criminal cases also apply to certain civil or quasi-civil proceedings. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Because of the possibility of a loss of liberty, due process of law requires the appointment of counsel in a civil contempt proceeding for non-support. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Right to counsel in proceedings to terminate parental rights. —

The due process clause of the Alaska Constitution guarantees indigent parents a right to the effective assistance of counsel in proceedings brought to terminate their parental rights. V.F. v. State, 666 P.2d 42 (Alaska 1983).

Due process requires that an indigent natural parent be appointed an attorney to assist him in demonstrating why his consent to the adoption of his child should not be rendered unnecessary. In re K.L.J., 813 P.2d 276 (Alaska 1991).

The court erred in not appointing an attorney to represent a disabled, indigent father when his ex-wife’s husband petitioned the court to waive the natural father’s consent and terminate his parental rights so that the ex-wife’s husband could adopt the daughter of the divorced couple because the Alaska Constitution mandates that the superior court appoint an attorney when an indigent parent’s right to consent to an adoption of his or her child may be waived under AS 25.23.050(a) . In re K.L.J., 813 P.2d 276 (Alaska 1991).

Appointment of counsel in paternity suits. —

In light of the fact that paternity suits, in effect, are brought by the state, the significance of the parent-child relationship involved and the peculiar problems presented in such a proceeding, due process requires the appointment of counsel for an indigent defendant. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

In a paternity case, the issues may take on an even greater complexity than those involved in a custody termination proceeding. This consideration underscores the need for counsel. The court may be required to assess testimony pertaining to sexual conduct which is labeled as a crime by an Alaska statute. Decisions pertaining to blood tests and the proper examination of witnesses on complex scientific issues may also be necessary. In addition to the obligation of support, rights of inheritance may be affected. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

An indirect outcome of a paternity suit could be a criminal charge. At a trial on such a charge, evidence introduced and admissions made without assistance of counsel in the paternity suit could play a significant role. Also, the support decree is enforceable by contempt proceedings which likewise could result in incarceration. In such contempt proceedings, the establishment of paternity and the amount of support payments would be res judicata. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

The analogy of a paternity suit to other cases in which the supreme court has held that a right to counsel exists is further strengthened by the fact that the proceeding is being prosecuted by an attorney general rather than private counsel. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Right to counsel where defendant is indigent. —

In order to meet due process and equal protection considerations, a defendant must be afforded the right to counsel appointed by the court in those instances where the defendant is indigent. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974).

Indigent in a contempt for nonsupport proceeding has a right to a court-appointed attorney. Although a nonsupport contempt proceeding is not normally considered to be “criminal action,” the possibility of incarceration is the same. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974).

Right to counsel for indigent in private child custody proceeding. —

The due process clause of the state constitution guarantees the right of an indigent party to court-appointed counsel in a private child custody proceeding in which her spouse is represented by Alaska Legal Services Corporation. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Due process did not mandate court-appointed counsel for the father, an indigent parent, in a custody matter, where the opposing parent was represented by private counsel, as the private interests of the parents did not rise to an unconstitutional level since the assistance available to all self-represented parents was available to the father, who capably represented himself and impeached the mother's credibility. Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Discussion of state action which brings into play the due process clause in contempt proceedings for nonsupport. —

See Otton v. Zaborac, 525 P.2d 537 (Alaska 1974).

Presence of counsel during deliberations of Disciplinary Board. —

To assure both the fact and appearance of impartiality in the decisional function of the Disciplinary Board of the Alaska Bar Association, counsel associated with either the prosecution or defense should not be present during deliberations. In re Robson, 575 P.2d 771 (Alaska 1978).

The degree of counsel-client communication required by due process may not be the same in criminal proceedings and in proceedings to terminate parental rights. In re C.L.T., 597 P.2d 518 (Alaska 1979).

Right of counsel to attend examination of client. —

Plaintiff’s counsel in a civil case should have the right to attend a physical, or psychiatric, examination of his client. Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144 (Alaska 1989).

No right to court-appointed counsel. —

Where divorcing parents had considerable marital assets, and the husband could afford to pay for an attorney in custody proceedings without encumbering the family home, there was no right to a court-appointed counsel. Jordan v. Jordan, 983 P.2d 1258 (Alaska 1999).

2.Criminal Proceedings

A post-indictment lineup is a “critical stage” of the prosecution at which the accused was entitled to the aid of counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Requirement of counsel at pretrial photographic displays not required. —

See Kimble v. State, 539 P.2d 73 (Alaska 1975).

Presence of counsel at show-up. —

The presence of counsel at a show-up is not mandated if the circumstances call for an immediate identification as part of a prompt and purposeful investigation. Vessell v. State, 624 P.2d 275 (Alaska 1981).

Interceptions of attorney-client communications have long been held violative of due process of law and of the right to the effective assistance of counsel. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Sentencing is critical stage of proceedings against defendant. A criminal defendant, therefore, has the constitutional right to effective assistance of counsel, and the concomitant right to a reasonable period of time in which to prepare. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Counsel’s responsibilities at sentencing hearing. —

While the responsibilities of counsel at sentencing are not easily defined, counsel should at least be prepared to present to the court all the factors and circumstances necessary for a reasonably meaningful hearing. Obviously, counsel should have an opportunity to become familiar with all the reports serving as a foundation for the sentence in advance of the sentencing hearing. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

The denial of post-conviction right to counsel would be fundamentally unfair and violative of the due process clause of this section. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Right to counsel in post-conviction proceeding. —

Because an indigent defendant has a right to effective counsel under both Alaska Const. art. I, § 7 and AS 18.85.100(c) in a first application for post-conviction relief, that defendant must be given the opportunity to challenge the effectiveness of counsel in a second petition for post-conviction relief. Grinols v. State, 74 P.3d 889 (Alaska 2003).

H.Liberty Interests

Findings required for involuntary administration of psychotrophic drugs. —

Trial court’s order approving administration of psychotropic drugs to the patient pursuant to AS 47.30.839 was vacated because the patient’s right to choose or reject medication was a fundamental right, and thus the liberty and privacy guarantees in this section and Alaska Const. art. I, § 22 required the courts, not physicians, to protect and enforce those guarantees: In future non-emergency cases, a court may not permit a treatment facility to administer psychotropic drugs unless the court makes findings that comply with all applicable statutory requirements and, in addition, expressly finds by clear and convincing evidence that the proposed treatment is in the patient’s best interests and that no less intrusive alternative is available. Myers v. Alaska Psychiatric Inst., 138 P.3d 238 (Alaska 2006).

Termination of employment. —

In terminating a police chief’s employment upon accusations of his use of excessive force, the city did not infringe upon a liberty interest because it did not impugn his honesty, integrity or morality. Ramsey v. City of Sand Point, 936 P.2d 126 (Alaska 1997).

Sex offender registration. —

Applying the Alaska Sex Offender Registration Act, AS 12.63.010 et seq., to a person whose conviction was set aside under AS 12.55.085 before the Act became specifically applicable to convictions that were set aside unconstitutionally interferes with the individual’s liberty interests. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

While the Alaska Sexual Offender Registration Act, AS 12.63.010 — 12.63.100 , violated the Due Process Clause, its defect could be cured by creation of a procedure for offenders to establish their non-dangerousness by filing a civil action in a superior court. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

While the Alaska Sexual Offender Registration Act, AS 12.63.010 — 12.63.100 , violated the Due Process Clause, its defect could be cured by creation of a procedure for offenders to establish their non-dangerousness by filing a civil action in a superior court. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Requirement of registration as sex offender violates liberty interest. —

Defendant’s liberty interests were violated when he was required to register under AS 12.63.010 et seq. after a trial court found that he had satisfied the requirements of his suspended imposition of sentence in accordance with AS 12.55.085 , was entitled to a set-aside, and then set aside his conviction. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Prisoner’s rights. —

Temporary interruption of a prisoner’s contact visitation does not interfere with a protectable liberty interest. Larson v. Cooper, 90 P.3d 125 (Alaska 2004).

Collateral references. —

16A Am.Jur.2d, Constitutional Law, § 942 et seq.

16C C.J.S., Constitutional Law, § 1434 et seq.

Attorneys: procedural due process requirements in proceedings involving applications for admission to bar. 2 ALR3d 1266.

Comment note. — Prospective or retroactive operation of overruling decision. 10 ALR3d 1371.

Validity, as a matter of due process, of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transaction within the state. 20 ALR3d 1201.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Validity, construction, and application of enactment, implementation, or repeal of formal educational requirement for admission to the bar. 44 ALR4th 910.

Podiatry or chiropody statutes: validity, construction, and application. 45 ALR4th 888.

Validity and construction of terroristic threat statutes. 45 ALR4th 949.

Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees. 51 ALR4th 702.

College’s power to revoke degree. 57 ALR4th 1243.

Tax on hotel-motel room occupancy. 58 ALR4th 274.

AIDS infection as affecting right to attend public school. 60 ALR4th 15.

Homicide: cremation of victim’s body as violation of accused’s rights. 70 ALR4th 1091.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty. 74 ALR4th 1099.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 ALR5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 ALR5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 ALR5th 611.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 ALR5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 ALR5th 327.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 ALR5th 1.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process — weapons. 53 ALR5th 81

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process -- personal items other than weapons. 55 ALR6th 391.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases. 172 ALR Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases. 178 ALR Fed. 25.

Forcible administration of antipsychotic medication to pretrial detainees — Federal cases. 188 ALR Fed. 285.

I.General Consideration

Applied in

Galauska v. State, 527 P.2d 459 (Alaska 1974); Boyles v. State, 647 P.2d 1113 (Alaska Ct. App. 1982); Walker v. State, 674 P.2d 825 (Alaska Ct. App. 1983).

Quoted in

State v. Keep, 409 P.2d 321 (Alaska 1965); Roberts v. State, 458 P.2d 340 (Alaska 1969); DeSacia v. State, 469 P.2d 369 (Alaska 1970); Shagloak v. State, 597 P.2d 142 (Alaska 1979); Thibedeau v. State, 617 P.2d 759 (Alaska 1980).

Cited in

State v. Gibson, 543 P.2d 406 (Alaska 1975); Mutschler v. State, 560 P.2d 377 (Alaska 1977); Lock v. State, 609 P.2d 539 (Alaska 1980); Koch v. State, 653 P.2d 664 (Alaska Ct. App. 1982); Kott v. State, 678 P.2d 386 (Alaska 1984); Hilburn v. State, 765 P.2d 1382 (Alaska Ct. App. 1988); Hazelwood v. State, 836 P.2d 943 (Alaska Ct. App. 1992); State v. Hazelwood, 866 P.2d 827 (Alaska 1993); State v. Waterman, 196 P.3d 1115 (Alaska Ct. App. 2008).

II.Jeopardy

A.In General

Protection afforded. —

The double jeopardy clause protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and, it protects against multiple punishments for the same offense. Calder v. State, 619 P.2d 1026 (Alaska 1980).

One of the great purposes of the double jeopardy clause is to prevent popular pressures from operating to the detriment of the accused after he has once been sentenced. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

The double jeopardy clause is aimed at protecting individuals from oppression and harassment by successive prosecutions. Muller v. State, 478 P.2d 822 (Alaska 1971).

Statutory implementation. —

AS 22.05.010 furnishes the essential implementation for constitutional protection against double jeopardy. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Double jeopardy is an evolving concept as due process is. Whitton v. State, 479 P.2d 302 (Alaska 1970).

What in fact today is “jeopardy,” as it relates to a criminal offense, according to the existing common understanding of the term, may not have been even contemplated at the time the federal constitutional provision was adopted, or for that matter, the Alaska constitutional provision. Whitton v. State, 479 P.2d 302 (Alaska 1970).

The present dictionary meaning of “jeopardy,” as it pertains to a person, is the loss or injury or hazard or peril or danger to which one may become exposed. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Double jeopardy. —

When the State relies on the infliction of serious physical injury to elevate second-degree robbery to first-degree robbery under AS 11.41.500(a)(3) , Alaska's Double Jeopardy Clause does not permit a separate conviction for assault based on the same injury. Smith v. State, 426 P.3d 1162 (Alaska Ct. App. 2018).

Collateral estoppel is embodied in principles of double jeopardy. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Evidence not barred by doctrine of collateral estoppel. —

See Piesik v. State, 572 P.2d 94 (Alaska 1977).

When defendant in jeopardy. —

A defendant is considered to have been placed in jeopardy as soon as he has gone to trial and the jury is sworn. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Where the jury had already been sworn and the trial had commenced, the defendants were placed in jeopardy. Muller v. State, 478 P.2d 822 (Alaska 1971).

Jeopardy attaches when a defendant is placed on trial before a court of competent jurisdiction and a jury sworn. Koehler v. State, 519 P.2d 442 (Alaska 1974).

Defendant’s constitutional right to be free from double jeopardy was violated upon being subjected to the same charges of first-degree murder again at a second trial, where the judge at defendant’s first trial had abused his discretion in refusing to resolve a juror’s questions which evidenced some possibility of reaching a partial verdict, or to repoll the jury as requested by defendant, and declaring a mistrial after concluding that there was no probability that a unanimous verdict could be reached. Whiteaker v. State, 808 P.2d 270 (Alaska Ct. App. 1991).

The defendant in a criminal jury trial is placed in jeopardy as soon as the jury is sworn. Torres v. State, 519 P.2d 788 (Alaska 1974).

Jeopardy attaches when the jury was sworn at the first trial. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Conviction of an offense places a person in jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970).

When a person is convicted of a crime, he has been exposed to the danger of loss of his freedom by way of imprisonment. Whitton v. State, 479 P.2d 302 (Alaska 1970).

If a jury is discharged with defendant’s consent, defendant may be tried again. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Court of appeals erred in holding that the violation of defendant's privilege against self-incrimination, guaranteed by the state and federal constitutions, was not a structural error requiring reversal because compelling defendant to take the stand implicated personal interests more fundamental than the ordinary risk of a wrongful conviction where, although a few isolated comments by defendant indicated that he wanted to take the stand, the entirety of his equivocal responses placed the notion that he wanted to testify in doubt and the trial court erred when it directed the judicial services officer to escort defendant to the stand and summoned the jury to hear defendant's testimony despite his equivocal answers. Alvarez-Perdomo v. State, 454 P.3d 998 (Alaska 2019).

If a jury is discharged without defendant’s consent, he cannot be tried again. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Erroneous dismissal does not preclude retrial. —

The double jeopardy clause does not preclude retrial after an order of dismissal if the order was erroneous. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

Reversal on error of law does not preclude retrial. —

One who secures a reversal of a conviction on a mere error of law is not subjected to double jeopardy when he is retried. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Waiver. —

When a defendant creates the situation whereby he is removed from jeopardy, he thereby waives his right to plead former jeopardy at another trial of the case. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

A defendant may waive his constitutional right of double jeopardy by consenting to the discharge of a jury. However, the defendant’s consent will not operate in all instances as a waiver of his constitutional right even if there is a manifest necessity to prematurely terminate trial court proceedings. Torres v. State, 519 P.2d 788 (Alaska 1974).

A claim based upon double jeopardy in reliance on the state constitution can be waived, but is not forfeited, by a guilty plea, even a guilty plea that is part of a negotiated settlement. Lemon v. State, 654 P.2d 277 (Alaska Ct. App. 1982).

A defendant waives any double jeopardy claim he might otherwise have by moving for a mistrial or by appealing his conviction. Loveless v. State, 634 P.2d 941 (Alaska Ct. App. 1981).

Juvenile waiver hearing. —

Fundamental fairness requires adopting an exclusionary rule when a minor bears the burden of rebutting the statutory presumption not being amenable to treatment in the juvenile justice system: the minor's testimonial evidence at the waiver hearing cannot be used as substantive evidence over the minor's objection at any subsequent juvenile adjudication or adult criminal proceedings. C.D. v. State, 458 P.3d 81 (Alaska 2020).

Exclusionary rule is necessary, as a matter of fundamental fairness, to balance a minor's right to present a defense at a waiver proceeding against the minor's privilege against self-incrimination; by requiring a minor to choose between presenting relevant, testimonial, amenability-to-treatment evidence or preserving the privilege against self-incrimination, AS 47.12.100(c)(2) forces a minor into an unfair dilemma. C.D. v. State, 458 P.3d 81 (Alaska 2020).

For cases in which AS 47.12.100(c)(2) applies, it is necessary to exercise an exclusionary rule preventing the State, over the juvenile's objection, from using a minor's juvenile waiver hearing testimony, and the fruits of that testimony, at a subsequent criminal trial or adjudicatory proceeding in juvenile court; juveniles in such hearings must be advised in advance that testimony may not be admitted against them at a subsequent trial on the underlying offense. C.D. v. State, 458 P.3d 81 (Alaska 2020).

Retrial after mistrial on principal offense. —

The double jeopardy clauses of the United States and Alaska constitutions did not preclude retrial of a defendant for a principal offense when the jury, deadlocked on the principal offense, was permitted to convict on a lesser-included offense. Hughes v. State, 668 P.2d 842 (Alaska Ct. App. 1983), overruled, Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994).

A jury’s inability to agree on a greater offense constitutes “manifest necessity” permitting discharge of the jury despite a potential ability to agree on one or more lesser-included offenses. Staael v. State, 697 P.2d 1050 (Alaska Ct. App. 1985).

Where mistrial motion not withdrawn, retrial constitutional. —

Defense counsel’s “Just for the record, we’re not conceding manifest necessity” did not constitute an unequivocal withdrawal of a motion for mistrial; therefore, a retrial did not violate the double jeopardy clause. Peel v. State, 751 P.2d 1366 (Alaska Ct. App. 1988).

Innocence of one codefendant does not preclude prosecution of other. —

A judgment in a criminal case favorable to one defendant should not bar prosecution of a codefendant in a subsequent proceeding. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

Appeal from acquittal. —

Both the state and federal constitutional prohibitions against placing a defendant twice in jeopardy insulate him from an appeal from a judgment of acquittal however erroneous the trial judge’s view of the facts or the law. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

If the jury reaches a verdict of acquittal, or the judge grants a judgment of acquittal, double jeopardy bars a new trial, even if it appears that the acquittal was based on an erroneous interpretation of the law. Noy v. State, 83 P.3d 545 (Alaska Ct. App. 2003).

Right of state to appeal in criminal proceedings. —

With limited exceptions, the state cannot appeal an adverse final judgment in a criminal proceeding; but where review is not barred by considerations of double jeopardy, the state can seek discretionary review of an adverse final order by means of a petition for review. State v. Stocker, 741 P.2d 1215 (Alaska Ct. App. 1987).

Accused’s reference to improper evidence was insufficient in itself to deprive the accused of his constitutional right not to be subject to double jeopardy. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Dismissal of later indictment required. —

This section required a trial court to dismiss an indictment for tampering with evidence against a defendant who had been acquitted of first-degree murder in connection with the same incident. State v. Williams, 704 P.2d 219 (Alaska Ct. App. 1985), aff'd, 730 P.2d 806 (Alaska 1987).

Multiple punishments for one or “the same” offense violate the state constitutional inhibition against double jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970); Brookins v. State, 600 P.2d 12 (Alaska 1979).

This section prevents one from receiving multiple prison sentences for the same offense. McCracken v. State, 521 P.2d 499 (Alaska 1974); Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

The test for determining whether separate statutory crimes constitute the “same offense” for purposes of prohibiting double punishment is whether differences in intent or conduct between the statutory offenses are substantial in relation to the basic social interests protected or vindicated by the statutes. Calder v. State, 619 P.2d 1026 (Alaska 1980).

If one conviction makes a person liable for two sentences instead of one, then the loss or peril to which he has been exposed — double punishment — has placed him in jeopardy twice for the same offense. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Where two sentences are imposed for the same offense, even though they are for the same period of time and are to run concurrently, the constitutional prohibition against double jeopardy has been violated. Whitton v. State, 479 P.2d 302 (Alaska 1970).

If there are no differences in intent or conduct, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970); Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

If differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. Whitton v. State, 479 P.2d 302 (Alaska 1970); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Ordinarily the one sentence to be imposed will be based upon or geared to the most grave of the offenses involved, with degrees of gravity being indicated by the different punishments prescribed by the legislature. Whitton v. State, 479 P.2d 302 (Alaska 1970); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Where defendant presented two checks for payment and was guilty of obtaining money by false pretenses and forgery, even though the separate counts for each check represented two distinct acts (the forgery of the endorsement and the presentation of the check for payment), the conduct as to each check constituted one transaction with a single intent to defraud; therefore, duplicate sentencing was illegal. Black v. State, 569 P.2d 804 (Alaska 1977).

The differences between the conduct and intent required for kidnapping and murder are substantial when viewed in relation to the overlapping but nonetheless distinct social interests they protect. Therefore, the imposition of concurrent sentences would not place defendant twice in jeopardy for the same offense. Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

The possibility that defendant’s assault with a dangerous weapon victimized one or two people did not change the fact that one shot was fired between those two persons and that defendant was charged and convicted of only one assault. The principle of double jeopardy would have barred a subsequent prosecution, and would have barred multiple punishments for this one offense. Larson v. State, 569 P.2d 783 (Alaska 1977).

When multiple sentences are imposed, the trial judge must affirmatively state reasons for his decision to do so. Jacinth v. State, 593 P.2d 263 (Alaska 1979).

In the event the trial judge decides that multiple sentences may be imposed without contravening the double jeopardy provision, the reasons for his determination must affirmatively appear in the record. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Trial on greater offense after conviction of lesser offense. —

Alaska constitutional law does not preclude trial on a greater offense after conviction of a lesser offense where the two offenses are charged together and an intervening plea to the lesser offense or mistrial on the greater offense precludes the state from having a jury pass on the greater offense. Alley v. State, 704 P.2d 233 (Alaska Ct. App. 1985).

Whether the prosecutor charges the accused in a multiple-count indictment or a single-count indictment for an offense involving lesser-included offenses, the defendant’s double jeopardy rights are the same. Whiteaker v. State, 808 P.2d 270 (Alaska Ct. App. 1991).

Where defendant knew at arraignment he was charged in separate documents with misdemeanor and felony DWI arising from the same conduct, double jeopardy did not bar prosecution of felony charge if defendant pleaded guilty to misdemeanor charge. Ridlington v. State, 93 P.3d 471 (Alaska Ct. App. 2004).

Conviction of offense and lesser included offense. —

Multiple punishment for a greater offense and a lesser-included offense violates Alaska constitutional law. See Alley v. State, 704 P.2d 233 (Alaska Ct. App. 1985).

In defendant’s trial for first-degree robbery and third degree assault, defendants should not have received separate convictions and sentences because the assault conviction merged with the robbery conviction. Moore v. State, 218 P.3d 303 (Alaska Ct. App. 2009).

Raising double jeopardy issue on appeal. —

Double jeopardy issues may be raised for the first time on appeal without prejudice. Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988); Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988).

Once a sentence has been meaningfully imposed, it may not, at a later time, be increased. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

Where a defendant was convicted of three separate offenses, and the court imposed a single 15-year term without specifying the offenses to which it applied, the sentence amounted to an unlawful general sentence, so that the court’s subsequent finding of applicable aggravating factors and its resentencing of the defendant to a greater composite term than had originally been imposed violated the defendant’s right against double jeopardy. Love v. State, 799 P.2d 1343 (Alaska Ct. App. 1990).

Once a legal sentence is imposed which is within the discretion of the trial judge, the defendant’s sentence may not thereafter be increased. State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983).

The modification of a sentence from two consecutive four-year terms of imprisonment to two concurrent terms of eight years each is illegal. The reason is that the modification or resentencing was in effect an increase of the sentence, and this is barred by the principle of double jeopardy. Huff v. State, 568 P.2d 1014 (Alaska 1977).

An upward modification of a sentence meaningfully imposed would subject criminal defendants to the anxiety and insecurity against which the constitutional prohibition of double jeopardy stands as a safeguard. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

A sentence is meaningfully imposed when it is legally imposed and not subject to change under the Alaska Criminal Rules. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

The double jeopardy clause prohibits the court from increasing a sentence once it has been meaningfully imposed. A sentence is “meaningfully imposed” when it is legally imposed and not subject to modification under the rules of criminal procedure. Dunham v. City of Juneau, 790 P.2d 239 (Alaska Ct. App. 1990).

An original sentence which fell short of the mandatory minimum sentence for a second DWI offender, and was consequently illegal, was subject to correction under Criminal Rule 35(a) and was therefore not a “meaningfully imposed” sentence for double jeopardy purposes. Dunham v. City of Juneau, 790 P.2d 239 (Alaska Ct. App. 1990).

Sentence based on conduct for which defendant acquitted. —

Double jeopardy and due process are not implicated when a person who has been acquitted of certain conduct is sentenced on the basis that the conduct occurred. The reason for this rests on the differing burdens of proof. In order to convict a defendant of an offense, the state must prove guilt beyond a reasonable doubt. In contrast, a trial court imposing sentence may rely on any information that is verified in the record. Brakes v. State, 796 P.2d 1368 (Alaska Ct. App. 1990).

Restitution imposed at resentencing. —

Where restitution was not imposed as a condition of defendant’s probation at original sentencing, Alaska law does not authorize the judge to go back and add this condition to probation at subsequent resentencing following vacation of original sentence. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Permissible modification of sentence. —

Judge’s oversight in not imposing suspended time in conjunction with two-year probation was an obvious error and modification of the sentence, moments after imposition, to include suspended time, did not violate constitutional prohibition of double jeopardy. Dentler v. State, 661 P.2d 1098 (Alaska Ct. App. 1983).

Where a magistrate made “an objectively ascertainable mistake” in imposing a sentence in a proceeding for revocation of probation, the sentence was subject to correction under Cr. R. 36 without violence to the double jeopardy prohibition. DeMario v. State, 933 P.2d 558 (Alaska Ct. App. 1997).

Increasing sentence on remand. —

The double jeopardy clause precludes the sentencing court from increasing the original sentence on remand. Hester v. State, 797 P.2d 690 (Alaska Ct. App. 1990).

Imposition of two additional years of probation upon resentencing following a successful sentence appeal constituted an illegal sentence in violation of the guarantee against double jeopardy. Hester v. State, 797 P.2d 690 (Alaska Ct. App. 1990).

Failure to reduce a sentence did not violate double jeopardy. Bell v. State, 668 P.2d 829 (Alaska Ct. App. 1983).

Vacating illegal sentence. —

The double jeopardy clauses of the United States and Alaska constitutions did not prevent court from vacating a sentence, ordering resentencing, and allowing the sentencing judge or a three-judge panel to impose a greater sentence than the illegal sentence which was imposed. State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983).

Construction of Cr. R. 36. —

Where the effect of an amendment is to increase the severity of a sentence, Cr. R. 36, which is available for the correction of “clerical mistakes” or “errors in the record arising from oversight or omission,” must be interpreted to be applicable only to sentencing errors which obviously conflict with the intention of the court and, so construed, the rule is in consonance with the double jeopardy clause of the Alaska and United States constitutions. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

If Cr. R. 36 is not to clash with the prohibition against double jeopardy, only an objectively ascertainable mistake — a mistake which can be determined by contemporaneous record evidence — will justify increasing a sentence. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

An increased sentence after a second trial does not violate double jeopardy. United States v. Lincoln, 581 F.2d 200 (9th Cir. Alaska 1978).

Rehabilitative confinement as incarceration. —

Amended sentence authorizing DWI defendant’s placement in a residential treatment facility violated defendant’s double jeopardy rights, as custodial confinement in a residential alcohol treatment program is the functional equivalent of jail time and therefore constituted a sentence of imprisonment. Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

B.Mistrial

Standard of “manifest necessity” adopted. —

In federal courts the test for determining what situations would justify the premature termination of an initial trial without barring retrial under the double jeopardy prohibition has been articulated in terms of “manifest necessity.” The supreme court of Alaska adopts and applies the federal standard. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Unforseen circumstances do not bar second trial. —

Jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where unforeseeable circumstances arise during the first trial making its completion impossible. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Failure of trial to end in final judgment. —

The fact that an accused has been placed on trial before a competent tribunal does not, standing alone, invariably bar his reprosecution if the trial did not result in a verdict. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The double-jeopardy provision of the 5th amendment does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. A defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. In capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. The security which the public has for the faithful, sound and conscientious exercise of this discretion rests upon the responsibility of the judges under their oaths of office. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The fact that an individual is once placed in jeopardy does not mean that, if a mistrial is declared, he cannot later be brought to trial anew. Muller v. State, 478 P.2d 822 (Alaska 1971).

Discussion of circumstances permitting retrial of accused even though the first trial jury had been discharged without reaching a verdict and without the defendant’s consent. Lewis v. State, 452 P.2d 892 (Alaska 1969).

If the court discharges the jury without a verdict being reached, the defendant cannot be retried unless he consented to the discharge or “manifest necessity” required it. Koehler v. State, 519 P.2d 442 (Alaska 1974).

The premature termination of a trial will bar retrial under the double jeopardy prohibition unless the termination was justified by manifest necessity. MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 101 (U.S. 1975).

After the jury is sworn, double jeopardy bars a retrial unless the first trial was prematurely terminated due to “manifest necessity.” Piesik v. State, 572 P.2d 94 (Alaska 1977).

Manifest necessity to declare mistrial not found. —

Where there was no manifest necessity for declaring a mistrial because any misunderstanding the jury had from defendant’s opening statement could have been cured with an instruction, and because the mistrial was declared over defendant’s objection, double jeopardy barred retrial. Tritt v. State, 173 P.3d 1017 (Alaska Ct. App. 2008).

Courts have recognized the involuntary absence of defendant and his counsel when the trial court discharges the jury as a factor in holding that the mistrial was not pursuant to a “manifest necessity.” Koehler v. State, 519 P.2d 442 (Alaska 1974).

Manifest necessity for mistrial. —

The general rule is that where a mistrial is declared by reason of a manifest necessity, double jeopardy will not bar a retrial. Muller v. State, 478 P.2d 822 (Alaska 1971); White v. State, 523 P.2d 428 (Alaska 1974).

If a mistrial is declared in the absence of a manifest necessity, then a retrial will be barred by double jeopardy. Muller v. State, 478 P.2d 822 (Alaska 1971).

Where a defendant insists that a mistrial is necessary, and where the trial court agrees, the manifest necessity for a mistrial may be considered to have been adequately established. Muller v. State, 478 P.2d 822 (Alaska 1971); White v. State, 523 P.2d 428 (Alaska 1974).

A “manifest necessity” must exist for all mistrials, including hung juries, before reprosecution is permissible under the double jeopardy clause. Koehler v. State, 519 P.2d 442 (Alaska 1974).

By requesting a mistrial, the defendant consents to the dismissal of the jury, and can therefore usually be retried. Muller v. State, 478 P.2d 822 (Alaska 1971).

The prosecutor’s concurrence in the defendants’ motion for mistrial did not negate the effect of their request for mistrial, and the trial court was bound to make a specific inquiry into the issue of manifest necessity. Muller v. State, 478 P.2d 822 (Alaska 1971).

Where the mistrial was entered on defendant’s motion and neither party disputed the propriety of the court’s granting a mistrial, manifest necessity was sufficiently established. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Mistrial declared at request of defendant. —

The requisite manifest necessity which prevents a declaration of mistrial from barring reprosecution will generally be found where the mistrial is declared at the request of the defendant. MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 101 (U.S. 1975).

When defense counsel did not effectively attempt to withdraw his request for a mistrial, and the trial court judge, in declaring a mistrial, was responding to defense counsel’s request, since the mistrial was thus declared at the request of the defendant, reprosecution of the defendant is not barred by the constitutional prohibitions against being placed twice in jeopardy. MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 101 (U.S. 1975).

Generally, when a trial is terminated at the defendant’s motion or with the defendant’s request, retrial is not prohibited by double jeopardy. Piesik v. State, 572 P.2d 94 (Alaska 1977).

The possibility that a criminal defendant might claim error on appeal does not equate to manifest necessity; if a mistrial could be declared against the wishes of the accused every time potential error occurred, the constitutional protection against double jeopardy would become virtually meaningless. Cross v. State, 813 P.2d 691 (Alaska Ct. App. 1991).

Where a potential conflict of interest arose from the fact that another assistant public defender (apparently not defendant’s counsel) had previously represented a key defense witness in connection with an unrelated matter, and it was not obvious that the potential conflict was an actual one, and it was not apparent that the conflict could not have been resolved by precluding the agency from representing the former client as a witness in defendant’s case, the court failed to adequately explore the existence of the conflict, or remedies short of a mistrial so that the mistrial violated defendant’s constitutional right against double jeopardy. Cross v. State, 813 P.2d 691 (Alaska Ct. App. 1991).

Defendant’s interest in particular jury subordinated to public interest. —

As a general rule, when a trial is terminated due to manifest necessity, the defendant’s interest in having a particular jury determine his fate is subordinated to the public interest in securing fair trials designed to end in fair judgments. This principle has been recognized in instances where the jury is unable to reach a verdict, or where jurors become disqualified or ill prior to reaching a verdict. Torres v. State, 519 P.2d 788 (Alaska 1974).

Right of defendant to have his trial completed before the jury originally empaneled must at times be subordinate to a greater public interest. Muller v. State, 478 P.2d 822 (Alaska 1971).

Manifest necessity test in cases of potentially hung juries. —

In cases of potentially hung juries, the “manifest necessity” test under former Cr. R. 27 (g)(2) ordinarily becomes whether there is “no probability” that a unanimous verdict will be reached. This discretionary standard is generally recognized by most courts. Koehler v. State, 519 P.2d 442 (Alaska 1974).

Discharge of the jury is not permitted merely because jurors report they have not been able to agree. Koehler v. State, 519 P.2d 442 (Alaska 1974).

American Bar Association approach to discharge of hung juries. —

See Koehler v. State, 519 P.2d 442 (Alaska 1974).

Misconduct of accused or his counsel. —

There are instances of serious misconduct on the part of an accused, or his counsel, which make permissible both the granting of a mistrial and reprosecution. Such an occasion is where the accused or his counsel attempted to tamper with the jury. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The constitutional prohibition against double jeopardy should not be construed so as to permit intentional misconduct on the part of an accused or his counsel to become the basis of a bar to reprosecution. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Research does not disclose any case in which the granting of a mistrial for misconduct of defense counsel has been upheld, although conceivably such action would be proper in case of misconduct going to the very vitals of the trial itself, for example, if the defendant or his counsel attempted to tamper with the jury. Minor misconduct of defense counsel, such as overstepping the limit set by the court for the examination of a witness, does not under the authorities warrant a mistrial thereby depriving the defendant of his right to secure a verdict from the jury that had been sworn to try him. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Among the “necessities” which may deprive the accused of a right to rely on former jeopardy is that the mistrial was caused by the accused in consequence of his own wrong or request, or by his consent. But it is further noted that the occasion for it must be very cogent, or, as some courts have said, there must be an absolute necessity. Moreover, it must be determined in each case whether or not the circumstances necessitated a discharge of the jury. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Mistrial precipitated by prosecutor. —

Oppression will be most acute where a prosecutor deliberately precipitates a mistrial in a case which is going badly in order to allow himself, at a later time, either to present a better case or simply to harass the defendant with another prosecution. Muller v. State, 478 P.2d 822 (Alaska 1971).

In cases where it is clear that the prosecutor, motivated by a desire to avoid an acquittal in a case which is going badly, engages in purposeful misconduct which forces the court to declare a mistrial, the policy of protecting an accused individual from harassment by consecutive prosecution may demand that a retrial be barred, even though the mistrial was manifestly necessary. Muller v. State, 478 P.2d 822 (Alaska 1971).

In order for prosecutorial misconduct to justify a mistrial, thereby precluding further prosecution, the conduct must be designed to avoid an acquittal when the prosecution’s case is going badly. Torres v. State, 519 P.2d 788 (Alaska 1974); Piesik v. State, 572 P.2d 94 (Alaska 1977).

Where zeal leads to the introduction of evidence which may stampede the jury to an unproven inference and an unfair verdict, the remedy is a mistrial. Double jeopardy will not prevent a second trial unless the conduct of the state’s attorney is “motivated by a desire to avoid an acquittal in a case which is going badly.” White v. State, 523 P.2d 428 (Alaska 1974).

Where prosecutorial misconduct is the basis of the defendant’s motion for mistrial, such misconduct can result in precluding further prosecution. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Where the prosecutor’s remarks which led to the declaration of a mistrial were negligently made, and fell short of evidencing the requisite element of intentional misconduct, retrial was not barred. Muller v. State, 478 P.2d 822 (Alaska 1971).

Where a defendant seeks a mistrial because of prosecutorial misconduct, retrial may be barred. Loveless v. State, 634 P.2d 941 (Alaska Ct. App. 1981).

Prosecutor’s comments on defendant’s invocation of his right to silence amounted to plain error because the prosecutor directly elicited evidence of defendant’s silence on cross-examination, and then he expressly commented on that silence during his closing argument; the case hinged on the conflicting testimony of defendant and the complainant. Adams v. State, 261 P.3d 758 (Alaska 2011).

C.Probation

No violation in including in judgment all probation conditions not mentioned in remarks. —

At the sentencing hearing, the prosecutor, defense attorney, and judge were all operating with the understanding that, in the absence of an objection, the judge would impose all of the recommended conditions of probation; thus, the judge did not violate the double jeopardy clause when he included all of the recommended probation conditions in his written judgment, even though he did not explicitly mention all of those conditions during his sentencing remarks. Love v. State, 436 P.3d 1058 (Alaska Ct. App. 2018).

Double jeopardy prohibits making flawed probation condition more onerous. —

Where the sentencing court failed to specify, pursuant to AS 12.55.100(c) , the maximum length of time that defendant was to spend in residential treatment for her alcohol problem as a condition of her probation, the court’s subsequent order setting the maximum length of residential treatment at 90 days constituted an increase in the defendant’s sentence in violation of the constitutional guarantee against double jeopardy. An illegal sentence should not be increased unless absolutely necessary to correct the illegality. In this case the illegality should have been corrected by striking the flawed portion of the probation order, i.e., the requirement of residential treatment. Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993).

A court may modify probation to the defendant’s detriment without violating the double jeopardy clause when the applicable statutes authorize the modification, as they do when the court finds that the defendant has violated probation; but, once sentence is meaningfully imposed, a sentencing court does not have the power to alter probation to the defendant’s detriment simply because the court comes to believe that a longer probationary term or more onerous conditions of probation would be better. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Post-sentencing imposition of a special condition of probation, which required defendant to submit to medical testing of his blood or urine for the presence of controlled substances, violated his double jeopardy rights. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

At defendant’s sentencing hearing, the trial court found good reason to require defendant to submit to searches for drugs and alcohol specified in a special condition of probation, but to the extent that a general condition of probation purported to authorize searches beyond the scope of the special condition, the post-sentencing imposition of the general condition constituted an improper after-the-fact alteration of defendant’s sentence to his detriment in violation of the double jeopardy clause. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Imposition of a suspended sentence upon revocation of probation involves no increase in the term to be served over the potential sentence originally imposed. Paul v. State, 560 P.2d 754 (Alaska 1977).

Where, after hearing on a petition to revoke probation, the trial court ordered defendant to serve the two years which were previously suspended and recommended that he not be eligible for parole, there was no violation of defendant’s right against double jeopardy. Charles v. State, 606 P.2d 390 (Alaska 1980).

Sentence for violation of “probation” after imprisonment served. —

In the event that a defendant served his term of imprisonment, if and when he later violated the terms of his “probation,” to thereafter impose a further sentence of imprisonment for the same offense would clearly violate the double jeopardy provisions of both the state and federal constitutions. Franzen v. State, 573 P.2d 55 (Alaska 1978).

Probation revocation generally. —

The double jeopardy clause is not violated when a sentencing court revokes a defendant’s probation and imposes a previously-suspended prison term; in such circumstances, the defendant’s sentence has not been increased because, from the beginning, it was understood that the defendant’s imprisonment would remain suspended only if the defendant abided by the conditions of probation. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Probation violation. —

In a case that had been remanded for resentencing in which (1) the judge may have been authorized to impose an increased term of probation after the hearing on defendant’s probation violation, (2) there was nothing in the record suggesting that he ever intended to do so, and (3) the judge explicitly stated that he did not intend to increase defendant’s sentence, the increased term of defendant’s probation violated his right against double jeopardy under the Alaska Constitution. Ward v. State, — P.3d — (Alaska Ct. App. July 29, 2009) (memorandum decision).

A probation revocation order which increased the minimum period that a defendant was to spend in jail violated his double jeopardy rights as well as the command of AS 33.05.070(b) in that the court upon revocation of probation may only order the defendant to serve the sentence originally imposed, or a lesser sentence, but not a greater one. Nelson v. State, 617 P.2d 502 (Alaska 1981).

Revocation of parole based on acquitted charges. —

Neither double jeopardy nor collateral estoppel prohibits revocation of parole based on charges for which the parolee has been acquitted. Double jeopardy does not apply because revocation proceedings are considered to be part of a criminal prosecution and collateral estoppel does not apply because adjudication of charges on the beyond-a-reasonable-doubt standard does not constitute an adjudication on the preponderance of the evidence standard. Avery v. State, 616 P.2d 872 (Alaska 1980).

Imprisonment for intervening offense after probation revoked. —

Upon revocation of probation, imposition of a term of imprisonment consecutive to another term for an intervening offense does not impermissibly enlarge or enhance the scope of the sentence which was originally suspended. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

D.Separate Acts

Separate acts committed by defendant. —

The state can prosecute for separate charges if it can show that the defendant committed separate acts. Seaman v. State, 825 P.2d 907 (Alaska Ct. App. 1992).

One statute, multiple victims. —

Alaska’s constitutional prohibition against double jeopardy does not bar multiple sentences for multiple victims where one statute has been violated several times. State v. Dunlop, 721 P.2d 604 (Alaska 1986).

A defendant can receive multiple sentences for injuring or killing more than one person while driving under the influence of alcohol. State v. Dunlop, 721 P.2d 604 (Alaska 1986).

Under indecent photography charges, the nature of the offense is invasion of bodily privacy; eight people suffered invasion of privacy, although defendant shot only one videotape, meaning defendant committed eight separate offenses, and he was properly convicted and sentenced for each of those offenses. Knutsen v. State, 101 P.3d 1065 (Alaska Ct. App. 2004).

An intent to harm multiple victims will lift the veil of protection which the double jeopardy doctrine might otherwise afford to a defendant. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Separate sentences may be imposed where there is evidence to support the conclusion that the offender intended to harm more than one person. Calantas v. State, 599 P.2d 147 (Alaska 1979).

Where defendant was adjudged guilty of two counts of assault with intent to kill and there was evidence supporting the jury’s conclusion that defendant intended to kill both of his victims, it was proper for the court to impose separate sentences. Calantas v. State, 599 P.2d 147 (Alaska 1979).

Consecutive sentences for robbing multiple victims. —

The double jeopardy clause does not foreclose the imposition of consecutive sentences for robbing multiple victims in the same transaction. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Contention that consecutive sentences constitute double jeopardy has no support in case law. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Imposition of consecutive sentences for separate offenses does not violate the constitutional prohibition against double jeopardy. Davis v. State, 577 P.2d 690 (Alaska 1978).

Consecutive sentences for separate offenses do not violate the constitutional prohibition against double jeopardy. Davis v. State, 566 P.2d 640 (Alaska 1977).

Where defendant was convicted on five counts of selling heroin and one count of possessing heroin and sentenced to 10 years on each count, with one sentence to run consecutively to the other five concurrent sentences for a total of 20 years imprisonment, defendant was to be ineligible for parole until he had served five years, and all the sentences were made consecutive to two sentences he had not yet finished serving, the imposition of consecutive sentences did not violate this section or Alaska Const., art. I, § 12, and the minimum of five years before parole did not violate former AS 33.15.230(a) concerning the administration of parole (see now AS 33.16). Davis v. State, 566 P.2d 640 (Alaska 1977).

Separate statutory violations as constituting same offense. —

The protection of the double jeopardy clause is total and complete when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

The problem of determining whether two separate statutory violations constitute the same offense cannot be solved by the easy application of a pat mechanical formula, but the problem has to be met so that society’s very basic interest in deterring criminal behavior can be vindicated, and at the same time so that the individual’s constitutional right not to be placed in jeopardy more than once for the same offense can be protected. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Whether separate statutory offenses constitute the same offense for double jeopardy purposes should be determined by focusing upon the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes. Whitton v. State, 479 P.2d 302 (Alaska 1970); Jacinth v. State, 593 P.2d 263 (Alaska 1979).

In determining whether several statutory violations constitute the same offense for double jeopardy purposes, the supreme court will no longer follow the same-evidence test. Whitton v. State, 479 P.2d 302 (Alaska 1970).

The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. This standard is more flexible than the “same evidence” or “same transaction” tests. Whitton v. State, 479 P.2d 302 (Alaska 1970); McCracken v. State, 521 P.2d 499 (Alaska 1974); Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

In Whitton v. State , 479 P.2d 302 (Alaska 1970), the supreme court abandoned the “same-evidence” test for double jeopardy and instead directed the trial court to look to the difference in intent and conduct among the separate acts. The trial court would judge any such differences it found in light of the basic interests of society to be vindicated and protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

In regard to the subject of multiple sentences and the constitutional prohibition against double jeopardy, Whitton v. State , 479 P.2d 302 (Alaska 1970), adopted a rule which requires the trial judge to focus upon “the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or prosecuted by the statutes.” If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. Ordinarily the one sentence to be imposed will be based upon or geared to the most grave of the offenses involved, with degrees of gravity being indicated by the different punishments prescribed by the legislature. Robinson v. State, 484 P.2d 686 (Alaska 1971).

In determining what constituted the same offense for double jeopardy purposes, the supreme court has abandoned the “same-evidence” test in favor of an approach focusing upon the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes. If there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. McCracken v. State, 521 P.2d 499 (Alaska 1974); Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

The basic interests sought to be vindicated or protected by the statutes include the nature of personal, property or other rights sought to be protected by the statutes. Jacinth v. State, 593 P.2d 263 (Alaska 1979).

To determine when two or more statutory violations amount to the same offense for double jeopardy purposes the trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interest of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected and the broad objectives of criminal law, such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes. Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987) (applying principles to charges of fellatio, sodomy, rape, and attempted rape of young males under former statutes).

E.Specific Application

Administrative action against defendant’s driver’s license, based on his refusal to submit to a breath test, did not preclude prosecution under a city ordinance for the crime of refusing to submit to the breath test. Aaron v. City of Ketchikan, 927 P.2d 335 (Alaska Ct. App. 1996).

Regulatory actions. —

As suspension of the appraiser’s license was regulatory, and not penal in nature, there was no violation of the prohibition against double jeopardy. Wendte v. State, 70 P.3d 1089 (Alaska 2003).

Variance between indictment and jury instructions. —

Although the indictment used the language of shooting with the intent to kill “and” wound and instructions to the jury followed the statutory language of shooting with intent to kill “or” wound, defendant received adequate notice of the charge against him, there was no ambiguity as to the incident involved, and he was in a position to claim double jeopardy if again charged with the offense of shooting with intent to kill or wound arising out of the incident. Christie v. State, 580 P.2d 310 (Alaska 1978).

Ambiguity as to whether sexual abuse counts were separate incidents. —

Separate sexual abuse counts alleging genital contact and digital penetration of the victim merged, where the record was ambiguous as to whether the counts arose at the same time and as a single incident, or whether two separate incidents occurred; therefore, defendant could be sentenced on only one of the two charges. Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988).

Two sexual acts performed in single sexual assault. —

Where defendant was convicted on separate sexual abuse counts alleging fellatio and masturbation, his conviction on the masturbation count was vacated in view of evidence showing that defendant could have performed the acts of fellatio and masturbation together as part of one continuous assault. Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988).

One statute, multiple victims. —

Double jeopardy did not prohibit defendant’s convictions for eight counts of assault in the third degree arising from a single act of arson. Hathaway v. State, 925 P.2d 1343 (Alaska Ct. App. 1996).

Merger of counts. —

Defendant’s convictions for sexual abuse of a minor in the second degree for digital penetration, sexual abuse of a minor in the third degree for touching the victim’s breasts, and sexual abuse of a minor in the second degree for cunnilingus merged, and he should have been sentenced only on a single count of sexual abuse of a minor in the second degree. Newsome v. State, 782 P.2d 689 (Alaska Ct. App. 1989).

Defendant’s convictions for sexually assaulting a twelve year old boy and sexually abusing the boy merged, where a single act of sexual penetration with a child could not properly support separate sentences and convictions for both offenses. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Because the description of the conduct underlying the attempted first-degree sexual assault substantially mirrored the description of the conduct underlying the second-degree sexual assault charge, and because the record was ambiguous as to whether defendant was convicted of separate counts based on the same underlying conduct, defendant’s convictions had to be merged. Natekin v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2011) (memorandum decision).

Double jeopardy principles did not require merger of defendant’s convictions for first-degree sexual assault and first-degree assault because the two offenses protect different societal interests: the right to be free from sexual penetration that is committed without consent and the right to be free from the unlawful infliction of serious physical injury. Artemie v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2011) (memorandum decision).

Trial court properly refused to merge defendant's sexual assault convictions where sufficient evidence supported both anal and vaginal penetration. Peter v. State, — P.3d — (Alaska Ct. App. Apr. 5, 2017) (memorandum decision).

Appellate court rejected defendant's argument that counts XXI and XII merged. There was no reasonable possibility that the jury convicted defendant twice for identical conduct. Bedwell v. State, — P.3d — (Alaska Ct. App. May 16, 2018) (memorandum decision).

Conviction of lesser included offense of felony, and misdemeanor. —

A defendant was not placed in double jeopardy by his conviction of the lesser included offense of reckless driving on a felony charge of assault with a dangerous weapon even though a misdemeanor charge of reckless driving had already been adjudicated against him because although the charges arose out of the same general incidents, they were based on different conduct during that incident. Calder v. State, 619 P.2d 1026 (Alaska 1980).

The statute prohibiting grand larceny was primarily aimed at the protection of property rights. Former AS 11.20.525 (a) was primarily aimed at protecting individuals from bodily injury or death. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Constitution allows separate convictions and punishments for felony murder and underlying felony. —

The Alaska Constitution allows separate convictions and punishments for felony murder and the underlying felony, even though, under Alaska’s cognate approach, the underlying felony may be a lesser included offense of felony murder. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

Separate convictions and punishments for homicide and underlying felony. —

Clearly Alaska law calls for separate convictions and punishments when the victim of the homicide is someone other than the victim of the underlying felony, as when a bystander or a police officer is killed during a robbery; but even when the defendant’s crimes involve only one victim, the Alaska legislature intended to authorize separate convictions and punishments for the underlying felony and the resulting homicide. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

From the legislative commentary to AS 11.41.115 , two things are apparent: first, even in the situation described in the statute (a burglary committed for the purpose of killing someone), when the felony-murder rule does not apply, the legislature still envisioned the defendant might be separately convicted of murder (first-degree murder) or manslaughter and the underlying burglary; second, because the legislature enacted a special provision to merge the two potential offenses in this specific situation, the legislature must have intended that defendants in other felony-murder situations would be subject to conviction and punishment for both the homicide and the underlying felony. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

The single larceny rule is implicit in the spirit of Alaska’s constitutional protection against double jeopardy and is therefore adopted in Alaska. Nelson v. State, 628 P.2d 884 (Alaska 1981).

The applicability of the single larceny rule is limited to situations in which the prosecution has not proved separate intents to steal and sufficiently different acts of conduct to constitute separate offenses. Nelson v. State, 628 P.2d 884 (Alaska 1981).

Separate punishments for larceny. —

Where a janitor returned to the building where he was employed after his regular working hours and took items from two different offices at the same time, the door between the offices being unlocked, the acts involved the intent to steal from separate owners and the conduct of stealing separate items from each of the owners. Thus, there was a sufficient difference in intent and conduct so that separate punishments would not impose double jeopardy. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

Later discovered evidence. —

Defendant’s prior conviction for leaving the scene of an accident and his acquittal for failure to exercise care to avoid colliding with another vehicle did not bar his prosecution for operating a motor vehicle under the influence of intoxicating liquor because of double jeopardy since the state could not have discovered the evidence necessary to convict defendant of operating a motor vehicle under the influence of intoxicating liquor prior to his trial for leaving the scene and failing to avoid the accident in the exercise of due diligence. Miller v. State, 652 P.2d 494 (Alaska Ct. App. 1982).

Sentencing should be delayed until after indictment under former AS 12.55.050 filed. —

A trial court may only impose an enhanced penalty under former AS 12.55.050 [see now AS 12.55.125 ] where the sentence for the latest offense has not already been imposed. Therefore, sentencing should be delayed until the information or indictment under the habitual criminal statute has been filed. State v. Carlson, 560 P.2d 26 (Alaska 1977).

Sentence held constitutional. —

Where the trial court originally enhanced defendant’s sentence based on an aggravating factor which was held on appeal not to apply; on remand the trial court referred the case to the three-judge panel which then imposed a sentence which was less than defendant’s original sentence; and the three-judge panel’s sentence was based upon basically the same factors which the trial court had used to enhance defendant’s original sentence, although the sentence was greater than the presumptive term applicable to his offense, defendant’s sentence did not violate the prohibition against double jeopardy, did not violate his due process rights, and was not a product of prosecutorial or judicial vindictiveness. Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986).

Defendant's indictment did not contain multiplicitous counts that required merger at sentencing given how the sexual abuse was characterized at trial and in the jury instructions. Brown v. State, — P.3d — (Alaska Ct. App. July 5, 2017) (memorandum decision).

A good time forfeiture proceeding, which does not increase the term of the original sentence, is an administrative proceeding at which jeopardy does not attach. Alex v. State, 484 P.2d 677 (Alaska 1971).

Accused was not subject to double jeopardy by the combination of the administrative forfeiture of 168 days of good time and a subsequent criminal prosecution for escape. Alex v. State, 484 P.2d 677 (Alaska 1971).

Enhancement of original sentence. —

Recommendation of local council on alcoholism that defendant who was convicted of driving while intoxicated serve 30 days in a residential alcohol treatment center constituted an illegal sentence, because the recommendation resulted from an improper delegation of the court’s sentencing authority and, in effect, amounted to an enhancement of defendant’s original sentence in contravention of the double jeopardy clause. Hester v. State, 777 P.2d 217 (Alaska Ct. App. 1989).

F.Specific Crimes

Furnishing alcohol and contributing to delinquency of minor. —

Trial court violated defendant’s double jeopardy rights by sentencing him for both contributing to the delinquency of a minor and for furnishing alcohol to a minor for the single act of furnishing alcohol to the minor, where defendant engaged in only a single criminal act which violated two separate statutes and which should have merged. Newsome v. State, 782 P.2d 689 (Alaska Ct. App. 1989).

Infraction is not offense for double jeopardy purposes. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Negligent driving was an infraction, not an offense for double jeopardy purposes, and pleading no contest to negligent driving did not preclude a subsequent prosecution for the offense of second-degree assault. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Restitution as a condition of probation not enforceable. —

A trial judge who imposed restitution as a special condition of probation under AS 12.55.100 and not as an independent portion of the defendant’s sentence under AS 12.55.045 , could not terminate the defendant’s probation and order her to serve the unserved time remaining on her original sentence while at the same time enforcing the restitution order without violating the constitutional protection against double jeopardy. If the judge wished to order the defendant to pay restitution independent of her conditions of probation, this had to be done at the time she originally imposed sentence. Kelly v. State, 842 P.2d 612 (Alaska Ct. App. 1992).

Attempted robbery and misdemeanor manslaughter. —

Conviction of both attempted robbery and misdemeanor manslaughter violates double jeopardy. Hughes v. State, 668 P.2d 842 (Alaska Ct. App. 1983), overruled, Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994).

The crimes of robbery, and of the use of firearms during the commission of a robbery, constituted the “same offense” for purposes of double jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970).

The crimes of robbery and use of a firearm during the commission of robbery constituted the same offense for purposes of double jeopardy, and under such circumstances only one sentence was constitutionally permissible. Robinson v. State, 484 P.2d 686 (Alaska 1971).

In Whitton v. State , 479 P.2d 302 (Alaska 1970), the supreme court alluded to the fact that since the robbery was perpetrated by the use of a firearm the crime of robbery with a firearm was also committed. From this it was concluded that since the more serious offense already proscribes and punishes the activity of the less serious offense, the differences between the two offenses must be deemed insubstantial or insignificant in relation to the social interests involved. The result is that the two separate statutory crimes constitute the “same offenses” for purposes of double jeopardy. A single sentence was all that could properly be imposed under the double jeopardy provision of the Alaska Constitution. Robinson v. State, 484 P.2d 686 (Alaska 1971).

Second degree felony murder and first degree robbery. —

The double jeopardy clause of the Alaska Constitution does not separate convictions for second-degree (felony) murder and the predicate offense of first-degree robbery. Todd v. State, 917 P.2d 674 (Alaska), cert. denied, 519 U.S. 966, 117 S. Ct. 391, 136 L. Ed. 2d 306 (U.S. 1996).

Premeditated murder and felony murder are two separate theories constituting first-degree murder under former AS 11.15.010 . Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

Premeditated murder and felony murder require proof of different elements, and it is possible to be convicted of felony murder even though there is not enough evidence of premeditation to go to the jury on premeditated murder. Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

Where defendant was indicted on two counts, one for premeditated murder and one for felony murder, involving the same conduct, and the trial court granted a motion for judgment of acquittal on the premeditated murder count, defendant was not twice placed in jeopardy for the same offense when the court submitted the felony murder count to the jury. Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

Shooting with intent to kill and use of firearm. —

Shooting with intent to kill was a more serious crime than use of a firearm during an assault because of the specific intent element present in the former. But the intent and conduct involved in the former clearly encompassed the intent and conduct involved in the latter. The differences between the two crimes were insubstantial when judged in light of any social interest involved. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Misconduct involving weapons. —

Where defendant was charged on two counts of misconduct involving weapons alleging possession of the same weapon on different occasions, the state had the burden of proving beyond a reasonable doubt that the possession was not continuous; thus, where the state’s claim that possession was interrupted was at odds with its own theory of prosecution, and the jury was not instructed on the need to find defendant’s possession was interrupted at some point between the first and second offenses, double jeopardy barred judgment against defendant on more than one count. Simmons v. State, 899 P.2d 931 (Alaska Ct. App. 1995).

It was no error not to merge assault and weapons misconduct convictions because the first-degree assault statute concerned armed violence against individual victims resulting in serious harm, while the weapons misconduct statute concerned injury to one or more persons or property damage. Her v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

Firing at cabin and pickup. —

Separate punishment upon conviction of two counts of misconduct involving weapons in the second degree, and two counts of criminal mischief in the third degree, where the evidence established that defendant had fired a rifle at a cabin and a pickup truck did not violate the double jeopardy provisions of this section since there were sufficient and significant differences between the intent in the two firings. Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Second degree arson and manslaughter. —

Since the former second degree arson statute, AS 11.20.020, protected a property interest while the former manslaughter statute, AS 11.15.040, protected the paramount personal interest of protection of human life, they should have been considered separate offenses under the test of Whitton v. State, 479 P.2d 302 (Alaska 1970). Jacinth v. State, 593 P.2d 263 (Alaska 1979).

Merger of counts. —

Count charging that defendant made several specific false statements concerning his involvement in a car bombing merged with a general count which appeared to include specific statements which defendant was charged with in the other count, and therefore only one conviction could have stood. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Attempted murder, possession of explosives, and arson statutes differ markedly in the conduct which they prohibit and in the specific societal interests which they seek to preserve, and multiple sentences for the three offenses do not violate double jeopardy. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Arson and assault. —

Where defendant committed arson and in doing so placed other persons in danger of serious physical injury, double jeopardy did not preclude convictions for both arson in the first degree and assault in the third degree. Hathaway v. State, 925 P.2d 1343 (Alaska Ct. App. 1996).

Failure to stop, assist, and contact authorities. —

Separate convictions for failure to stop, failure to assist, and failure to contact the authorities do not violate double jeopardy. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Sexual assault and kidnapping are sufficiently distinct to warrant separate sentences without violation of double jeopardy, even when the assault and kidnapping are part of a single continuous transaction. Wilson v. State, 670 P.2d 1149 (Alaska Ct. App. 1983).

Convictions for kidnapping and sexual assault do not merge. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Rape, assault with a dangerous weapon, and kidnapping were separate crimes with separate elements. Lacy v. State, 608 P.2d 19 (Alaska 1980).

Rape and assault with intent to rape. —

Conviction and sentence on both charges of rape and assault with intent to commit rape violate the double jeopardy provision of the 5th amendment to the United States Constitution and this section. Tuckfield v. State, 621 P.2d 1350 (Alaska 1981); Tookak v. State, 648 P.2d 1018 (Alaska Ct. App. 1982).

Sexual assault of a minor. —

In an action for sexual abuse of a minor, penetration of separate orifices was not required to support separate sentences because this section demonstrated an intent to treat both changes in the manner of penetration and the penetrated orifice as separately punishable acts and thus, multiple convictions and sentences for distinct methods of penetration were not required to merge. State v. Thompson, 435 P.3d 947 (Alaska 2019).

Shooting and later cutting victim. —

Where the defendant shot the victim in the leg after having ordered him out of a car in which they were riding with another man and where the defendant then ordered the victim back in the car where, a short time later, defendant produced a knife and cut the victim’s throat and neck with it, these two incidents were separate offenses for purposes of this section. Nielsen v. State, 627 P.2d 1077 (Alaska 1981).

Promoting prostitution and managing prostitution enterprise. —

Punishment for inducing or causing a person under the age of 16 to engage in prostitution (former AS 11.66.110(a)(2) ) and for managing, supervising, controlling or owning a prostitution enterprise (AS 11.66.120(a)(1) ) did not violate double jeopardy since the offenses proscribed by the two statutes involve different intents and different conducts and differing societal interests are furthered. Bell v. State, 668 P.2d 829 (Alaska Ct. App. 1983).

DUI offenses. —

Forfeiture of a vehicle under a municipal ordinance declaring that any vehicle operated by an intoxicated driver, or any vehicle operated by a driver who refused to submit to a blood test, was subject to forfeiture as a “public nuisance,” was not “punishment” for purposes of double jeopardy. Davis v. Municipality of Anchorage, 945 P.2d 307 (Alaska Ct. App. 1997).

Refusal to take field sobriety tests. —

The government is not barred from introducing evidence of a motorist’s refusal to perform non-testimonial field sobriety tests. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

DUI and sobriety test refusal are separate offenses. —

To convict defendant of DWI, state had to prove that defendant was actually driving while intoxicated, but state did not have to prove that defendant was driving while intoxicated to convict him of breath test refusal, only that he was legally under arrest for DWI; therefore, DWI and refusing a breath or blood test were separate offenses permitting separate convictions and separate sentences. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

Drug offenses. —

Defendant’s double jeopardy rights were not infringed by the entry of separate convictions and sentences on charges of possession of cocaine with intent to deliver and knowingly maintaining a dwelling used for keeping or distributing cocaine, since the offenses differ markedly in the conduct that they prohibit and in the specific social interests that they seek to preserve. Davis v. State, 766 P.2d 41 (Alaska Ct. App. 1988), overruled in part, Rofkar v. State, 273 P.3d 1140 (Alaska 2012), overruled in part, Rofkar v. State, 305 P.3d 356 (Alaska Ct. App. 2013).

When defendant was convicted of violating AS 11.71.040(a)(3)(A), AS 11.71.050(a)(3)(A), and AS 11.56.375(a)(3) , the conviction of the drug possession offenses and the conviction of the contraband promotion offense did not violate double jeopardy prohibitions because these were separate crimes involving separate societal interests; moreover, one offense was not a lesser-included offense of another. Lampkin v. State, 141 P.3d 362 (Alaska Ct. App. 2006).

Where defendant was convicted for both possessing marijuana plants and maintaining a dwelling for keeping a controlled substance under AS 11.71.040 , the appeals court erred by failing to consider the merits of defendant’s double jeopardy claim because it was raised in his appellate brief. Rofkar v. State, 273 P.3d 1140 (Alaska 2012), overruled in part, Johnson v. State, 328 P.3d 77 (Alaska 2014).

Forgery offenses. —

Trial judge erred in concluding that misdemeanor forgery and obtaining a controlled substance by forgery are separate offenses which in an appropriate case permit separate sentences; the two offenses violate the same societal interest, namely the regulation of the availability of harmful drugs. Alley v. State, 704 P.2d 233 (Alaska Ct. App. 1985).

Assault with intent to rob and attempted robbery constituted the “same offense” for the purpose of sentencing. Brookins v. State, 600 P.2d 12 (Alaska 1979).

Consecutive sentences for burglary and malicious destruction of property were not permissible. Hensel v. State, 604 P.2d 222 (Alaska 1979) (decided under former AS 11.20.100 and 11.20.520).

Impermissible increase not found. —

Even though the judge who sentenced defendant for a robbery conviction intended that the robbery sentence be concurrent with whatever sentence defendant might receive upon revocation of probation for damaging an aircraft, imposing on revocation of probation a sentence for damaging an aircraft consecutively to the sentence for bank robbery did not impermissibly increase the robbery sentence. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

Burglary not in dwelling and larceny in building. —

Conviction for both the offense of burglary not in a dwelling house and the offense of larceny in a building or vessel did not violate the double jeopardy provisions of the United States and Alaska constitutions. Mead v. State, 489 P.2d 738 (Alaska 1971).

Conviction for grand larceny and removal of aircraft parts did not constitute double jeopardy. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Third degree theft and issuing a bad check. —

Defendant’s convictions for third degree theft and issuing a bad check merged because (1) the State had to prove defendant knew defendant’s account would lack sufficient funds when defendant’s check was presented for payment, so the two statutes protected the same societal value, and (2) the crimes were based on one act. Cohen v. State, — P.3d — (Alaska Ct. App. Nov. 4, 2015) (memorandum decision).

Offering and agreeing to receive bribe. —

A judge does not err in imposing consecutive fines for the separate offenses of offering a bribe and agreeing to receive a bribe. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983).

License revocation and prosecution for violations. —

Administrative license revocation is a “remedial” sanction, not a “punitive” sanction, for purpose of double jeopardy; therefore, the administrative revocation of defendants’ licenses was no impediment to their later prosecution for driving while intoxicated, refusing the breath test, or both. State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), limited, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Administrative revocation of a minor’s license to drive under AS 28.15.183 is not “punishment” for double jeopardy purposes; thus, a minor whose license was revoked under that section could still be prosecuted for the offense of minor consuming, AS 04.16.050 . Rexford v. State, 941 P.2d 906 (Alaska Ct. App. 1997), overruled, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Even if revocation of a minor’s driver’s license under AS 28.15.183 is unconstitutional, the minor is not immunized from prosecution for illegal use of alcoholic beverages under AS 04.16.050 ; the aggrieved minor’s remedy is to attack the license revocation. State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Alaska’s habitual criminal statute, former AS 12.55.050 , raised double jeopardy problems under the Alaska Constitution. State v. Carlson, 560 P.2d 26 (Alaska 1977).

Former AS 12.55.060 provided that when the trial court sentences a defendant under former AS 12.55.050 , it had to vacate the sentence originally imposed. This violated the rule articulated in Speidel v. State , 460 P.2d 77 (Alaska 1969), where the supreme court held that once a sentence has been meaningfully imposed it may not be later increased without offending the double jeopardy provision of the Alaska Constitution. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

Prosecution for perjury. —

A prosecutorial grant of immunity will not protect a witness from a prosecution for perjury if the witness testifies falsely. DeMan v. State, 677 P.2d 903 (Alaska Ct. App. 1984).

The constitutional protection against double jeopardy encompasses the collateral estoppel doctrine; however, where there were different episodes of perjury, a second indictment following the post-trial dismissal of the original indictment was not precluded. DeMan v. State, 677 P.2d 903 (Alaska Ct. App. 1984).

Defendant’s trial and conviction for perjury, after such perjury had been considered by the judge who had sentenced him following his earlier conviction for sexual abuse of a minor, did not violate the double jeopardy provision of this section, where the judge properly considered defendant’s perjury only as it related to his prospects for rehabilitation. Shannon v. State, 771 P.2d 459 (Alaska Ct. App. 1989).

Sentencing for first-degree robbery under former AS 12.55.125(c)(2) upheld. —

Although the use of a firearm in a robbery results both in the defendant’s having committed a more serious offense and the defendant’s facing a more serious sentence, the defendant has still only been punished once for that crime; sentencing a defendant for robbery in the first degree under the provisions of former AS 12.55.125(c)(2) does not violate the double jeopardy provisions of this section. Richardson v. State, 706 P.2d 1188 (Alaska Ct. App. 1985).

Aider and abettors. —

Nothing in the double jeopardy clause of the federal or state constitution forecloses putting a defendant to trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

Concurrent sentencing for DUI and breath test refusal. —

District court violated the double jeopardy clause when, at defendant’s resentencing, it increased defendant’s composite sentence for driving under the influence (DUI) and breath test refusal under Anchorage, Alaska, Mun. Code 9.28.020A, 9.28.022.C, as it was discovered that defendant had an additional prior DUI conviction, because concurrent sentences were an option under municipal law; the district court could have imposed the mandated 60-day minimum sentences for DUI and breath test refusal without increasing defendant’s composite time to serve by making the 60-day sentences concurrent. Lampley v. Municipality of Anchorage, 159 P.3d 515 (Alaska Ct. App. 2007).

III.Self-Incrimination

A.In General

Right secured by 5th amendment and this section. —

The right not to be compelled in any criminal case to be a witness against oneself is secured by the 5th amendment of the United States Constitution and this section. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Similarity to 5th amendment to federal constitution. —

The provision of the 5th amendment to the federal constitution that no person “shall be compelled in any criminal case to be a witness against himself” is virtually identical with the language of the prohibition found in the section. Biele v. State, 371 P.2d 811 (Alaska 1962).

The drafters of the Alaska Constitution intended this section to guarantee protections commensurate with those then available under the fifth amendment to the United States Constitution.State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

The supreme court has interpreted this section more broadly than the United States supreme court has construed the 5th amendment. Scott v. State, 519 P.2d 774 (Alaska 1974).

The rights of one subject to custodial interrogation to be warned of his privilege to remain silent, of the fact that any statement made by him may be used against him, and of his right to the presence of counsel, have fundamental value and should be respected by law enforcement officers. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

Defendant has constitutional right to be silent. —

It is the constitutional right of the defendant, who is presumed to be innocent, to stand silent while the state attempts to meet its burden of proof, that is, to prove the defendant’s guilt beyond a reasonable doubt. Scott v. State, 519 P.2d 774 (Alaska 1974).

Police officer’s testimony that defendant refused to speak to the police about a jacket had little impact on defendant’s trial and was harmless beyond a reasonable doubt under the factors that a reviewing court considered when determining whether a court’s failure to address a prosecutor’s comments on a defendant’s silence was harmless error. Moreno v. State, 341 P.3d 1134 (Alaska 2015).

Warning to potential defendant appearing before grand jury. —

In order to protect the right of privacy and the right of a person to not be compelled to incriminate himself, the prosecution is required to give a target warning to a potential defendant who appears before a grand jury. Pinkerton v. State, 784 P.2d 671 (Alaska Ct. App. 1989).

Standing to assert violation of rights. —

A defendant has standing to assert the violation of a codefendant’s 5th amendment rights if he or she can show: (1) That a police officer obtained the evidence as a result of gross or shocking misconduct; or (2) That the officer deliberately violated a codefendant’s rights. Giel v. State, 681 P.2d 1364 (Alaska Ct. App. 1984), applying the standard in Waring v. State, 670 P.2d 357 (Alaska 1983).

Coerced statements are condemned because of the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

Statements which are the product of coercion may be unreliable and untrustworthy, and thus should be excluded as evidence against one coerced into making them. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

If inculpatory statements were involuntary because of the use of a kind of coercion which would repel civilized and decent men, the use of such statements to convict the person making the statement would violate due process. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

Police representations of harsher treatment did not constitute threatening statements. —

Where defendant admitted to police that he removed a handgun from the scene of a homicide, his privilege against self-incrimination was not violated. Police threats of harsher treatment did not constitute threatening statements under this provision; defendant’s will was not overborne by the detectives’ statements because he made his confession first. State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006).

Privilege pertains only to person from whom statement is obtained. —

The privilege against self-incrimination pertains solely to the person who makes a statement under impermissible conditions where the statement is to be used to convict him, and not some other person. The right is personal in nature — it pertains only to the person from whom a statement is obtained. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The privilege against self-incrimination does not require the exclusion of evidence against one not making any statement in order to protect the rights of the person from whom a statement was obtained in violation of the Miranda rule. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The privilege against self-incrimination is a personal one; although the accused is protected from compulsion to incriminate himself, the constitutional provisions do not proscribe incriminating statements elicited from another. In re Cornelius, 520 P.2d 76, 521 P.2d 497 (Alaska 1974), aff ’d, In re Cornelius, 521 P.2d 497 (Alaska 1974).

Whether the use of coerced statements from another to convict one who did not make the statements would violate due process may involve considerations different from those involved in the privilege against self-incrimination. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The privilege is to be silent; it is not a privilege to commit crime. Webb v. State, 580 P.2d 295 (Alaska 1978).

Privilege extends to answers furnishing link in evidence leading to conviction. The privilege extends not only to answers that would in themselves support a conviction but also to those which might furnish “a link in the chain of evidence” leading to a conviction. McConkey v. State, 504 P.2d 823 (Alaska 1972); Scott v. State, 519 P.2d 774 (Alaska 1974); Evans v. State, 550 P.2d 830 (Alaska 1976).

The privilege against self-incrimination applies where the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

It is enough to justify invocation of the privilege against self-incrimination (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case. McConkey v. State, 504 P.2d 823 (Alaska 1972).

The privilege against self-incrimination extends only to testimonial evidence. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Defendant’s right to silence was not violated by a criminal sentence requiring him to write an essay on the ills of prostitution upon his conviction of the offense. Parrott v. Municipality of Anchorage, 69 P.3d 1 (Alaska Ct. App. 2003).

There is no constitutional bar to the government introducing evidence of a motorist’s refusal to perform non-testimonial sobriety tests, since such refusal is conduct from which one may draw an incriminatory inference. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Hearing on entrapment defense. —

Trial court erred in denying defendant’s request for a hearing on the defense of entrapment on the ground that defendant had not submitted evidence supporting the elements of entrapment because defendant had given notice of the intent to rely on the defense, as required by Alaska R. Crim. P. 16(c)(5); an affidavit from defendant would have required defendant to testify regarding aspects of the controlled substance transaction in violation of defendant’s right against self-incrimination. Marshall v. State, 238 P.3d 590 (Alaska 2010).

The claim of privilege must be allowed. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Unless it is perfectly clear that the witness is mistaken. McConkey v. State, 504 P.2d 823 (Alaska 1972).

And that the answers cannot possibly have such tendency to incriminate. McConkey v. State, 504 P.2d 823 (Alaska 1972).

But the apprehension of self-incrimination must be shown to be real. McConkey v. State, 504 P.2d 823 (Alaska 1972).

The witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself. The court must evaluate the hazard, the witness somehow showing enough to indicate a basis for fear of incrimination while withholding facts which would prove it. McConkey v. State, 504 P.2d 823 (Alaska 1972).

A witness may not refuse to testify where there is no real or substantial hazard of incrimination; the witness is not excused from answering merely because he declares that in so doing he would incriminate himself. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

Potential hazard explained. —

The privilege is applicable only where incarceration or other sanctions that are criminal in nature are a potential hazard. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

The privilege against self-incrimination is concerned with the danger to a witness forced to give testimony leading to the inflicting of penalties affixed to the criminal acts, and a witness may not refuse to testify upon a claim of 5th amendment privilege where there is no real or substantial hazard of incrimination. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

The possible consequences of proceedings brought under former paragraphs (3) or (6) of AS 47.10.010(a) as it existed prior to its 1977 amendment and former paragraphs (3) or (7) of AS 47.10.290 did not give rise to a right against self-incrimination, since none of these provisions subjected a violator to incarceration or other sanctions criminal in nature. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

Since certain forms of sexual conduct or the exposure of one’s person or private parts were made criminal by former AS 11.40.080 (providing for crimes against morality and decency, see now AS 11.51 and AS 11.61) and § 6.401 of the Fairbanks General Code (of municipal ordinances), a person would have a constitutional right not to testify regarding any matter that might tend to show that she has violated one of those provisions. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

Unfounded fear. —

The privilege is improperly invoked where any fear of self-incrimination is unfounded. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Where the peril asserted by one claiming the privilege against self-incrimination was incrimination under former AS 11.10.070, soliciting another to commit a crime, yet no responsive answer could have directly established any element of that offense, nor yielded information useful to the state in a prosecution for violation of former AS 11.10.070, the claimed hazard was fanciful. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Claiming privilege after earlier speaking. —

The fear that the claim of privilege may be spurious is not academic. Because of bribe, threat, or purpose to aid another, a witness who speaks once may later assert the privilege in order to cloak nothing but a refusal to speak the truth. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Showing necessary to sustain the privilege. —

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous or might result in injurious disclosure. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Understanding of rights. —

Trial judge found that the police officer read defendant his rights and that defendant responded that he understood those rights, and defendant volunteered information that the officer had not requested; the judge concluded from the circumstances of the interview that defendant was cooperative, and the record supported the trial judge’s conclusion that a knowing and intelligent waiver of Miranda rights could be inferred from defendant’s actions and words. Olson v. State, 262 P.3d 227 (Alaska Ct. App. 2011).

Incriminating statements not product of custodial interrogation. —

Incriminating statements made by an already incarcerated defendant in a telephone conversation with his girlfriend and monitored by police officers were not elicited in violation of the defendant’s right against self-incrimination, given that the statements were not the product of coercion resulting from the interaction of custody and official interrogation. Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992).

Judge cannot be skeptical. —

In determining whether a witness really apprehends danger in answering a question, a judge cannot permit himself to be skeptical; rather he must be acutely aware that in the deviousness of crime and its detection, incrimination may be approached and achieved by obscure and unlikely lines of inquiry. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Burden of proving voluntariness of confession is on state. —

The burden of proving that a confession is voluntary is one which the state must assume when the admissibility of a confession is questioned on the grounds that it was coerced; only by producing all the material witnesses connected with the controverted confession can the state discharge this burden. The filing of affidavits in lieu of producing witnesses simply will not suffice. Adams v. State, 704 P.2d 794 (Alaska Ct. App. 1985).

Confession following defendant’s attempt to terminate interrogation. —

Where defendant unambiguously invoked his right to remain silent, and the police interrogator failed to scrupulously honor the request, his subsequent confession was properly suppressed. Nothing in the circumstances surrounding defendant’s declaration — “well, I’m done talkin’ then” — in his apparent motives (fear of retaliation) for making the declaration, or in the declaration itself gave the investigator any reasonable basis to think that defendant was not making “a final decision” or that he was trying to do anything other than what he expressly declared that he wanted to do, to cut off the questioning entirely. Munson v. State, 123 P.3d 1042 (Alaska 2005).

Preliminary hearing. —

Where accused invoked fifth amendment and refused to testify in response to some questions in a preliminary hearing, the court was to consider responses to other questions but weigh fact that accused could not have been cross-examined fully. Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983).

Extensive pretrial prosecutorial discovery prohibited. —

The privilege against compelled self-incrimination under the Alaska Constitution prohibits extensive pretrial prosecutorial discovery in criminal proceedings. Scott v. State, 519 P.2d 774 (Alaska 1974).

Criminal Rule 16(c), as amended in 1996, requiring defendants to provide the state with pretrial discovery of names, addresses, phone numbers, and statements of potential defense witnesses, violated this section. State v. Summerville, 926 P.2d 465 (Alaska Ct. App. 1996), aff'd, 948 P.2d 469 (Alaska 1997).

Because the reciprocal discovery provisions enacted in Criminal Rule 16 in 1996 were nonseverable, and at least one of the provisions violated this section, the entire rule was invalid and the preexisting version of the rule remained in effect. State v. Summerville, 948 P.2d 469 (Alaska 1997).

The stage of the proceedings is irrelevant to the analysis of this constitutional privilege. Scott v. State, 519 P.2d 774 (Alaska 1974).

The fundamental right not to incriminate one’s self should apply at every stage of criminal inquiry or proceedings regardless of judge-made exclusionary or evidentiary rules. Scott v. State, 519 P.2d 774 (Alaska 1974).

Criminal and civil discovery compared. —

See Scott v. State, 519 P.2d 774 (Alaska 1974).

Historical development of criminal discovery in the context of federal privilege against self-incrimination. See Scott v. State, 519 P.2d 774 (Alaska 1974).

Written or recorded statements are “testimonial” or “communicative” in nature. Scott v. State, 519 P.2d 774 (Alaska 1974).

Three-fold test whether disclosure of defenses may undermine privilege. —

The principles the supreme court follows in deciding whether or not compelled disclosure of defenses may undermine the privilege against self-incrimination involve a three-fold test: Is the evidence testimonial; is it incriminating; and is it compelled? Scott v. State, 519 P.2d 774 (Alaska 1974).

Order for list of defense witnesses’ names impermissible. —

A court’s discovery order is in a large part constitutionally impermissible where it directs a defendant to produce “the names and addresses of all prospective defense witnesses, other than the defendant himself,” including “the names of alibi witnesses upon whom he intends to rely.” Scott v. State, 519 P.2d 774 (Alaska 1974).

Since the production of a list of names and addresses of witnesses is testimonial in nature, incriminating, and compelled by a court’s discovery order, that portion of the order violates petitioner’s privilege against self-incrimination under this section. Scott v. State, 519 P.2d 774 (Alaska 1974).

As is order for production of witnesses’ written statements. —

Where a discovery order commands the production or inspection and copying of any written or recorded statements in defendant’s possession of prospective defense or government witnesses, the witness statements are being “compelled” in a constitutional sense and therefore that portion of the order is unconstitutional under this section. Scott v. State, 519 P.2d 774 (Alaska 1974).

And order for production of alibi information. —

The portion of a superior court’s order which commands the production of alibi information concerning the place or places the accused claims to have been offends defendant’s privilege against self-incrimination. Scott v. State, 519 P.2d 774 (Alaska 1974).

Information going to alibi is “communicative” or “testimonial”; the information is verbal rather than physical, direct rather than indirect, and immediately cognizable. Scott v. State, 519 P.2d 774 (Alaska 1974).

Alibi information commanded by a discovery order is “compelled” in a constitutional sense from defendant. Scott v. State, 519 P.2d 774 (Alaska 1974).

Order for advance notice of alibi defense is permissible. —

The advance notice of an alibi defense is in the nature of any pretrial plea, much like a plea of “not guilty.” There is nothing incriminating about this inquiry. Accordingly, the portion of the superior court’s discovery order which calls upon petitioner to furnish respondent with advance notice of an alibi defense does not violate this section. Scott v. State, 519 P.2d 774 (Alaska 1974).

“Meritorious defense” notice requirement. —

“Meritorious defense” requirement to set aside a default judgment under Cr. R. 8(i) appears not to infringe the privilege against self-incrimination under this provision, at least to the extent that the “meritorious defense” rule merely requires defendant to give advance notice of his general theory of defense to his speeding charge. Case v. Municipality of Anchorage, 128 P.3d 193 (Alaska Ct. App. 2006).

Prosecutors can compel testimony by granting immunity. —

Prosecutors had the inherent authority, even in the absence of enabling legislation, to grant immunity and to use that grant to compel testimony which would otherwise have been protected by the privilege against self-incrimination. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A promise of immunity by a state prosecutor and court may be used to compel testimony from a witness in a criminal proceeding, despite the witness’s claim of the privilege against self-incrimination. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Witness who was granted immunity under AS 12.50.101 could not refuse to testify; a witness cannot assert the privilege against self-incrimination based on the possibility that the State will disbelieve his testimony and prosecute the witness for committing perjury during the immunized testimony. Dan v. Dan, 288 P.3d 480 (Alaska 2012).

Promise of immunity is binding. —

As a matter of both federal and state due process, a prosecutor’s promise of immunity made in return for a surrender of the privilege against self-incrimination is binding on the prosecution. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s grant will serve to bind the state to whatever promise is made, i.e., to use and derivative use and/or transactional immunity, even in other judicial districts. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s promise of use and derivative use immunity will also bind the federal government, under the ruling in Murphy v. Waterfront Comm’n of N.Y. Harbor , 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). However, a state grant of transactional immunity will require independent endorsement from federal authorities before it will absolutely preclude a federal prosecution.

If a prosecutorial promise of immunity is made, whether or not it is statutorily authorized, it cannot be breached without allowing the promisee an opportunity to reconsider and revoke his part of the bargain. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

If a grand jury seeks, under AS 12.40.070 , to compel a prosecutor to override a prior immunity grant, any resulting indictment is to be dismissed with prejudice. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

The drafters of this section intended the privilege against self-incrimination to be supplanted only by a grant of transactional immunity. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

Witness immunity statute unconstitutional. —

Alaska’s witness immunity statute (AS 12.50.101 ) violates the Alaska Constitution’s privilege against self-incrimination. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

Witness privilege versus right to cross-examination. —

Conflict between witness’ privilege against self-incrimination and accused’s right of effective cross-examination. See Lemon v. State, 514 P.2d 1151 (Alaska 1973); Thomas v. State, 522 P.2d 528 (Alaska 1974).

Hearsay testimony of an alleged accomplice’s statements, when the declarant was not available for effective cross-examination due to the privilege against self-incrimination, was held not admissible. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Trial judge to accommodate these rights to extent possible. —

The privilege against self-incrimination is in constant conflict with an accused’s right to present an effective defense. A trial judge should endeavor to accommodate those rights to the fullest extent possible and, in certain cases, should explore the basic validity of a witness’ claim to the privilege out of the presence of the jury. Evans v. State, 550 P.2d 830 (Alaska 1976).

Extent to which defense counsel can accomplish his objectives without infringing on the witness’ privilege. See Thomas v. State, 522 P.2d 528 (Alaska 1974).

Inference of guilt may not be drawn from failure to speak or to explain when a person has been arrested. Davis v. State, 501 P.2d 1026 (Alaska 1972); Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

The supreme court disapproves of any comment absent waiver by the prosecution on an accused’s silence resulting from the exercise of his constitutional rights. Davis v. State, 501 P.2d 1026 (Alaska 1972); Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

Implicit in the right not to be compelled in any criminal case to be a witness against oneself is the notion that when an accused person chooses to exercise his right to silence, such silence may not be commented upon. Coleman v. State, 553 P.2d 40 (Alaska 1976).

An accused’s privilege against self-incrimination is violated where comment is made at trial concerning his failure to testify on his own behalf. Armstrong v. State, 502 P.2d 440 (Alaska 1972).

Due process is violated when the prosecution calls attention to the silence of the accused at the time of arrest. Stork v. State, 559 P.2d 99 (Alaska 1977).

Evidence of defendant’s pre-arrest silence. —

Questions or comments by the State of Alaska about a defendant’s pre-arrest silence are generally inadmissible under Alaska R. Evid. 403 and questions or comments by the State on a defendant’s post-arrest silence are prohibited by Alas. Const. art. I, § 9. Moreno v. State, 341 P.3d 1134 (Alaska 2015).

Prosecutor’s indirect comment on failure to testify held harmless error. —

Prosecutor’s error in commenting during closing argument, that two people knew what had happened on the night in question, and only one of them, the victim, had testified, was harmless beyond a reasonable doubt because the harm from the prosecutor’s comment, which was brief, isolated, and oblique, was cured by the jury instructions on defendant’s right not to testify before and after the comment. Goldsbury v. State, 342 P.3d 834 (Alaska 2015).

Bound by counsel’s waiver of rights. —

But a client is bound by his attorney’s decisions made during the course of trial to waive his constitutional rights for strategic or tactical reasons. Davis v. State, 501 P.2d 1026 (Alaska 1972).

Defendant waived any constitutional objection to prosecution’s remarks on her failure to speak at the time of arrest, where the issue of her comment at the time of her arrest was raised by her own counsel. Davis v. State, 501 P.2d 1026 (Alaska 1972).

Test as to comment on failure of defendant to testify. —

It is concededly improper and reversible error to comment on the failure of a defendant to testify in his own behalf, and the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. McCracken v. State, 431 P.2d 513 (Alaska 1967); Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Prosecutor did not comment on accused’s failure to testify. —

Where challenged statements of a prosecutor in his closing remarks were neither calculated to be, nor of necessity interpreted by the jury as, a comment on appellant’s failure to testify, the circumstance that appellant had not taken the stand could not prohibit the state from commenting on evidence which appellant might have cast doubt on had he testified. Armstrong v. State, 502 P.2d 440 (Alaska 1972).

Neither the prosecutor’s argument concerning the credibility of defendant’s out-of-court statement nor his ensuing mention of defendant’s right to refrain from testifying amounted to an impermissible comment on defendant’s constitutional right to silence. Hill v. State, 902 P.2d 343 (Alaska Ct. App. 1995).

Comment on failure to testify is “plain error”. —

Since a comment on the choice of the accused not to testify could result in an infringement on the accused’s rights, the potential error affects substantial rights, satisfying the requirements for “plain error” so as to permit review of the issue on appeal. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Inquiry whether statements made permissible. —

The district attorney did not commit reversible error in grand jury proceedings by inquiring of the police officer who had arrested defendant whether defendant had made any statement after arrest. Coleman v. State, 553 P.2d 40 (Alaska 1976).

A prosecutor’s comment, in the rebuttal portion of his closing argument, that the jury should infer guilt from the fact that defendant remained silent between the time of his arrest and the time he was advised of his Miranda rights, a span of about eight minutes, was cognizable under the “plain error” rule embodied in Cr. R. 47(b) and was not harmless beyond a reasonable doubt. Dorman v. State, 622 P.2d 448 (Alaska 1981).

Prosecutor’s statement (“I can’t prove what you were thinking unless you come out and tell me yourself”) was not an impermissible comment on defendant’s failure to testify because the prosecutor was responding directly to the defense attorney’s argument that the State had the burden of proving defendant’s “specific intent in his head.” Jaime v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Balancing test prerequisite to questioning as to silence. —

Where a trial court permitted questions concerning defendant’s silence without first determining whether the probative value of the challenged line of inquiry was outweighed by its potential for prejudicial impact, the court’s failure to balance probative value against prejudicial impact amounted to plain error, requiring reversal of defendant’s conviction of murder and kidnapping. Silvernail v. State, 777 P.2d 1169 (Alaska Ct. App. 1989).

Admission of evidence of flight. —

Admission of evidence concerning defendant’s flight from the crime did not violate his right against self-incrimination. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

Pointing out inconsistencies in defendant’s exculpatory statement. —

Where defendant purported to have given a rather complete statement of what had occurred, omissions and inconsistencies in his exculpatory statement could properly have been pointed out at trial. Sidney v. State, 571 P.2d 261 (Alaska 1977).

Use of prior criminal conviction to impeach defendant’s credibility does not deny him equal protection of the law, does not violate the privilege against self-incrimination, and does not deprive him of a fair and impartial jury. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Instructions to jury to cure improper prosecutorial commentary on witness’s refusal to testify. See Graham v. State, 656 P.2d 1192 (Alaska Ct. App. 1982).

Where trial court knew in advance of a witness’s intended refusal to answer questions, holding the attempted questioning out of the jury’s presence was not error. Williams v. State, 600 P.2d 1092 (Alaska 1979).

Use in presentence report of information concerning defendant’s post-conviction conduct did not violate his privilege against self-incrimination, since he was not compelled to be a witness against himself. Morgan v. State, 598 P.2d 952 (Alaska 1979).

Waiver of privilege. —

The subnormal intelligence of an accused is certainly relevant in determining whether there has been a knowing, voluntary and intelligent waiver of the privilege against self-incrimination. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Excluding subsequent confessions when first one is involuntary. —

Where successive confessions are obtained as part of a continuous process, courts have usually excluded all when the first confession is deemed to have been given involuntarily. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Effect of Cr. R. 6(r) in grand jury proceedings. —

Criminal R. 6(r), relating to the presentation of hearsay evidence to the grand jury, would not seem to prohibit the admission of evidence of defendant’s silence after arrest on the sole ground that such evidence would not be admissible at trial. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Test for error. —

Where the constitutional rights to remain silent and to the assistance of counsel are involved, any error must be harmless beyond a reasonable doubt. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

B.Specific Application

Where attorney left incriminating documents in custody of partner. —

In a disciplinary proceeding against an attorney, where the attorney left incriminating documents in the custody of his partner, who voluntarily turned them over to the Bar Association, there can be no application of the privilege. In re Cornelius, 520 P.2d 76, 521 P.2d 497 (Alaska 1974), aff ’d, In re Cornelius, 521 P.2d 497 (Alaska 1974).

Applicability to Alaska R. Evid. 412. —

To the extent that Alaska R. Evid. 412 allows the government to impeach a testifying defendant with statements obtained as a result of an intentional or an egregious Miranda violation, the rule is unconstitutional; Rule 412 is constitutional to the extent that it authorizes the government to impeach a testifying defendant with statements obtained as a result of Miranda violations that are neither intentional nor egregious. State v. Batts, 195 P.3d 144 (Alaska Ct. App. 2008).

Refusal to take breathalyzer test. —

A refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the state or federal privilege against self-incrimination. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Production of driver’s license. —

The privilege against self-incrimination does not extend to the requirement that motorists produce a driver’s license, despite speeding defendant’s assertion that requiring him to present his license when he was stopped violated his privilege against compulsory self-incrimination because it identified him for the purpose of prosecution. Collier v. Municipality of Anchorage, 138 P.3d 719 (Alaska Ct. App. 2006).

Appellant’s admission that he was driving vehicle in question at time of accident was not inadmissible under the fifth amendment to the United States Constitution and Alaska Const., art. I, § 9 as being compelled by AS 28.35.080 , since this section does not require any incriminating information, but merely requires a person who is involved in an accident covered by the statute to give notice of the accident to the appropriate police department. Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983).

Claiming privilege on income tax return. —

If truthful answers to particular questions on an income tax return would tend to incriminate the individual, then the privilege against self-incrimination can be validly claimed as to those questions in a prosecution for failure to file. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Admissibility of pre-Miranda warning statements. —

Trial court did not err in denying defendant’s motion to suppress his statements because he did not make any significantly incriminating statements prior to being given Miranda warnings and police officer’s subsequent full advisement of Miranda warnings was sufficient. Stock v. State, 191 P.3d 153 (Alaska Ct. App. 2008).

Failure to file return to avoid disclosure of incriminating material. —

The privilege against self-incrimination may be validly claimed in a prosecution for failure to file a tax return in order to avoid answering particular questions on a tax return if the answers to those questions would tend to incriminate an individual. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

A person may claim his privilege against self-incrimination by specific answers to selected individual questions on tax return. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Privilege does not mean right to refuse to file. —

The privilege against self-incrimination does not extend to a right to refuse to file any income tax return at all. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981); Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

What constitutes refusal to file tax return. —

A blanket refusal to disclose any financial information on a tax return based on the privilege against self-incrimination is equivalent to filing no return at all. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981); Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

Partnership records held in representative capacity. —

An individual cannot rely upon the privilege of Alaska Const., art. I, § 9 to avoid producing partnership records which are in his possession in a representative capacity. Pratt v. Kirkpatrick, 718 P.2d 962 (Alaska 1986).

Private security guard not acting as an agent of police need not give Miranda warnings prior to interrogating a suspect he has placed under a citizen’s arrest. Metigoruk v. Municipality of Anchorage, 655 P.2d 1317 (Alaska Ct. App. 1982).

Deceit by officers. —

Statement of confession detailing sexual acts committed by a defendant arrested for two counts of first-degree sexual assault, AS 11.41.410(a)(1) , and two counts of second-degree sexual abuse of a minor, AS 11.41.436 , was taken involuntarily. During a custodial interrogation, police promised the defendant that the statement would be “off the record”; court erred in admitting the statement at trial. Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003).

Not all improper police conduct triggers the per se rule or the presumption that a statement is involuntary. An officer’s deceit is merely one factor to consider in the totality of the circumstances. Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003).

Grant of federal immunity did not bar state prosecution. —

Where defendant had been granted use and derivative use immunity in a federal drug conspiracy prosecution arising from a homicide, state prosecution for homicide was not barred by the state constitutional guarantee against compulsory self-incrimination. State v. Schwin, 938 P.2d 1101 (Alaska Ct. App. 1997).

Deliberate eavesdropping on attorney-client communications violates section. —

Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Prosecution’s comments and elicitation of testimony before the grand jury indicating that, following his arrest, defendant expressly asserted his constitutional rights to remain silent and to appointment of counsel, were impermissible but did not appreciably affect the grand jury’s proceedings, and therefore the error was harmless. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Earlier testimony of attorney in disciplinary proceeding introduced at trial. —

In a disciplinary proceeding against an attorney, the introduction of excerpts of the attorney’s testimony before the investigating committee at the trial committee is lacking in the necessary element of compulsion, since the attorney had voluntarily testified before the investigating committee. In re Cornelius, 520 P.2d 76, (Alaska 1974), aff ’d, In re Cornelius, 521 P.2d 497 (Alaska 1974).

Psychiatric testimony. —

Under some circumstances a psychiatrist’s testimony at trial as to statements made by a defendant during a psychiatric interview may violate that defendant’s privilege against self-incrimination. Schade v. State, 512 P.2d 907 (Alaska 1973).

Where a defendant has injected no psychiatric issue into the case, an order compelling him to submit to examination, which would include discussion of the alleged criminal event, would violate his 5th amendment privilege against self-incrimination. Schade v. State, 512 P.2d 907 (Alaska 1973).

Constitutionality of psychiatrist’s testimony where defendant’s insanity defense, raised as an issue by himself, was the key issue in the case. See Schade v. State, 512 P.2d 907 (Alaska 1973).

Where on direct and re-direct examination in a murder prosecution, the testimony of a psychologist who examined defendant shortly after he was arrested was carefully limited to a description of defendant’s conduct at the time of the interview and to the psychologist’s conclusions regarding his mental status at that time, the conclusions being based on the psychologist’s observations and on defendant’s responses to verbally administered questions which were designed to test his mental faculties and which were unrelated to the crime, the evidence elicited from the defendant was of the nature of “real” or nontestimonial evidence to which the right against self-incrimination does not attach. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Compelling a juvenile to submit to a psychiatric evaluation for the purpose of determining his amenability to treatment as a child was reversible error, where admission of the psychiatric evidence against him at a waiver of juvenile jurisdiction hearing helped to pave the way for the state to prosecute him for murder as an adult, thereby exposing him to potential punishment far more severe than could otherwise have been visited upon him. R.H. v. State, 777 P.2d 204 (Alaska Ct. App. 1989).

Competency hearing. —

Requiring defendant who had been charged with two counts of second degree assault to testify at his competency hearing would violate his right not to take the stand against his will. A competency hearing is a part of a “criminal proceeding” under this provision. Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012).

Psychotherapist-patient privilege in child protection cases. —

Discussion of self-incrimination problems which would arise if the court of appeals were to hold that a patient loses the psychotherapist/patient privilege in a subsequent criminal proceeding by cooperating in court-ordered psychotherapy in a child protection proceeding. See State v. R.H., 683 P.2d 269 (Alaska Ct. App. 1984).

Statements made during sex offender therapy while defendant was incarcerated at a youth facility were admissible at his sentencing since counselors were not required to give him Miranda warnings before the therapy sessions, and the statements were not obtained in violation of defendant’s privilege against self-incrimination. Beaver v. State, 933 P.2d 1178 (Alaska Ct. App. 1997).

Statements following defendant’s attempt to terminate interrogation. —

Although there were several problematic aspects of police officer’s renewed interview with defendant in a holding cell after defendant had exercised his right to refuse to answer questions, defendant’s statements were admissible because officer scrupulously honored defendant’s right to cut off questioning since: (1) When the officer came to defendant’s holding cell, he asked defendant for permission to enter, and defendant consented; (2) Even though officer did not repeat the full set of Miranda warnings, defendant was reminded of his right to remain silent; (3) Officer questioned defendant in the same manner as earlier interview, allowing defendant to decide whether he would answer each of officer’s inquiries; and (4) Defendant agreed to that manner of questioning. Stock v. State, 191 P.3d 153 (Alaska Ct. App. 2008).

Permitting testimony relating to prior acquittal. —

Testimony pertaining to sodomy, for which defendant had been acquitted, was permissible, since the evidence was relevant to a lewd and lascivious conduct charge, and in the context of the case, its prejudicial impact was outweighed by its probative value. Piesik v. State, 572 P.2d 94 (Alaska 1977).

State employee's self-incrimination privilege not violated. —

By terminating a corrections employee for refusing to answer questions from investigators, the State of Alaska did not violate his privilege against self-incrimination, under either the U.S. Constitution or Alaska Const. art. I, § 9, where the State had notified him that his answers could not be used against him criminally, and the employee not only confirmed at the time that he understood this notification, but also in the subsequent court proceedings introduced no evidence to the contrary. Wilson v. State, 478 P.3d 1217 (Alaska 2021).

Silence used to rebut evidence or show inconsistencies. —

Cross-examination as to defendant’s refusal to give information to police during the investigation of his murder charge, when he testified at trial to those matters, was a permissible attempt to rebut defendant’s testimony as to his cooperativeness and to point out prior inconsistent statements, and did not constitute a prosecutorial comment on his right to remain silent. Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982), rev'd, 682 P.2d 1119 (Alaska 1984).

Defendant’s silence after arrest upon being asked by friend why he had not reported shooting to police was inconsistent with his pre-arrest statement to another friend that he had called police; thus, defendant’s silence was relevant to establish making of a prior false exculpatory statement and to show inconsistencies in defendant’s statements following the shooting. Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982).

Reference in state trooper’s testimony to defendant’s decision to remain silent, which was neither directly elicited by the prosecutor’s questioning nor mentioned in prosecutor’s final argument, did not constitute plain error requiring reversal of defendant’s conviction. Van Hatten v. State, 666 P.2d 1047 (Alaska Ct. App. 1983).

Parolee’s right to present defense at revocation hearing. —

Where a parolee is faced with revocation of parole prior to a criminal trial on the same charges, in the interests of fairness, the parolee should not be forced to choose between remaining mute at the revocation proceeding, thereby surrendering his right to present a defense, or testifying at the revocation hearing and incurring the possibility of incriminating himself. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and a criminal trial based upon the same conduct, upon timely objection, any evidence or testimony presented by the parolee at his revocation hearing is inadmissible by the state in subsequent criminal proceedings. This exclusionary rule applies equally to the fruits of the parolee’s prior revocation hearing, in order to remove completely any illegitimate incentive to schedule revocation hearings in advance of trial. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and criminal trial based on the same conduct, the parolee must be advised prior to revocation proceedings that any evidence or testimony offered by him at the revocation proceedings may not be admitted against him at a subsequent trial on the underlying offense. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Court erred in failing to advise a father of his privilege against self-incrimination pursuant to former Children’s Rule 12(e)(3) (see now Delinquency Rules 14). In re P.N., 533 P.2d 13 (Alaska 1975).

Assertion of self-incrimination privilege in civil processing.

Driver, who pleaded guilty to second-degree murder, could assert the privilege against self-incrimination in a civil proceeding because the decision on his pending sentence appeal could require a new sentencing proceeding where his compelled testimony in the civil proceeding could be used to his disadvantage; if the driver's appeal from his sentence was successful, there was a significant possibility that compelled testimony could be considered by a resentencing court. Graham v. Durr, 433 P.3d 1098 (Alaska 2018).

Defendants appealing only sentences may invoke privilege against self-incrimination.

Defendants appealing only their sentences, like defendants appealing their convictions, may invoke the privilege against self-incrimination until their convictions become final; therefore, a driver, who pleaded guilty to second-degree murder, could continue to exercise his privilege against self-incrimination during the pendency of his direct appeal. Graham v. Durr, 433 P.3d 1098 (Alaska 2018).

Ripeness.

Question whether a driver could invoke his privilege against self-incrimination during post-conviction proceedings was not ripe, and the supreme court declined to address it, because the driver had not yet attempted to assert the privilege against self-incrimination during post-conviction proceedings. Graham v. Durr, 433 P.3d 1098 (Alaska 2018).

Constitutionality of criminal nonsupport statute. —

The criminal nonsupport statute does not require a defendant to prove the absence of a lawful excuse or to incriminate himself. Taylor v. State, 710 P.2d 1019 (Alaska Ct. App. 1985).

Collateral references. —

21 Am.Jur.2d Criminal Law, § 269 et seq.; 21 Am.Jur.2d, Criminal Law, §§ 570 to 585; 81 Am.Jur.2d, Witnesses, §§ 62 et seq., 158 et seq.

22 C.J.S., Criminal Law, §§ 265 to 338; 22A C.J.S., Criminal Law, §§ 902 to 913; 98 C.J.S., Witnesses, §§ 596 to 605.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense. 4 ALR3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 ALR3d 905.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question. 9 ALR3d 990.

Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide. 11 ALR3d 834.

Propriety of increased punishment on new trial for same offense. 12 ALR3d 978.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 ALR3d 1261.

Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona. 25 ALR3d 1076.

Single or separate larceny predicated upon stealing property from different owners at the same time. 37 ALR3d 1407.

Validity of statute, ordinance or regulation requiring fingerprinting of those engaging in specified occupations. 41 ALR3d 732.

When does jeopardy attach in a nonjury trial. 49 ALR3d 1039.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery committed of another person at the same time. 51 ALR3d 693.

Censorship and evidentiary use of unconvicted prisoner’s mail. 52 ALR3d 548.

Acquittal in criminal proceeding as precluding revocation of probation on same charge. 76 ALR3d 564.

Acquittal in criminal proceeding as precluding revocation of parole on same charge. 76 ALR3d 578.

Instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant’s privilege against self-incrimination. 88 ALR3d 1178.

Admissibility in evidence of confession made by accused in anticipation of, during or following polygraph examination. 89 ALR3d 230.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial. 98 ALR3d 997.

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation. 99 ALR3d 781.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. 3 ALR4th 374.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness. 4 A.L.R.4th 617.

Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination. 4 ALR4th 1221.

Mental subnormality of accused as affecting voluntariness or admissibility of confession. 8 ALR4th 16.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements. 9 ALR4th 595.

Admissibility of evidence concerning words spoken while declarant was asleep or unconscious. 14 ALR4th 802.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 ALR4th 970.

What constitutes “manifest necessity” for state prosecutor’s dismissal of action, allowing subsequent trial despite jeopardy’s having attached. 14 ALR4th 1014.

Right of partners to assert personal privilege against self-incrimination with respect to production of partnership books or records. 17 ALR4th 1039.

Propriety and prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused. 19 ALR4th 368.

Impeachment of defense witness in criminal case by showing witness’ prior silence or failure or refusal to testify. 20 ALR4th 245.

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent. 23 ALR4th 563.

Right of prosecution to discovery of case-related notes, statements, and reports — state cases. 23 ALR4th 799.

Propriety of increased sentence following revocation of probation. 23 ALR4th 883.

Propriety of requiring suspect or accused to alter, or to refrain from altering, physical or bodily appearance. 24 ALR4th 592.

Power of state court, during same term, to increase severity of lawful sentence — modern status. 26 ALR4th 905.

Admissibility in criminal case of evidence that accused refused to take test of intoxication. 26 ALR4th 1112.

Extent and determination of attorney’s right or privilege against self-incrimination in disbarment or other disciplinary proceedings — post-Spevack cases. 30 ALR4th 243.

Failure to object to improper questions or comments as to defendant’s pretrial silence or failure to testify as constituting waiver of right to complain of error — modern cases. 32 ALR4th 774.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Voluntariness of confession as affected by police statements that suspect’s relatives will benefit by the confession. 51 ALR4th 495.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 ALR4th 631.

What constitutes assertion of rights to counsel following Miranda warnings — state cases. 83 ALR4th 443.

Admissibility, in prosecution in another state’s jurisdiction, of confession or admission made pursuant to plea bargain with state authorities. 90 ALR4th 1133.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges. 2 ALR5th 262.

Seizure or detention for purpose of committing rape, robbery or similar offense as constituting separate crime of kidnapping. 39 ALR5th 283.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police. 96 ALR5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — modern view. 97 ALR5th 201.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — self-intoxication. 9 ALR6th 1

Propriety of Using Otherwise Inadmissible Statement, Taken in Violation of Miranda Rule, to Impeach Criminal Defendant's Credibility — State Cases. 42 ALR6th 237

Right of witness in federal court to claim privilege against self-incrimination after giving sworn evidence on same matter in other proceedings. 42 ALR Fed. 793.

Propriety of court’s failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination. 55 ALR Fed. 742.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force. 66 ALR Fed. 119.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as “testimony” resulting in waiver of defendant’s privilege against self-incrimination. 81 ALR Fed. 892.

Availability of sole shareholder’s Fifth Amendment privilege against self-incrimination to resist production of corporation’s books and records — modern status. 87 ALR Fed. 177.

Double jeopardy considerations in federal criminal cases — Supreme Court cases. 162 ALR Fed. 415.

I.General Consideration

The 6th amendment and this section contain similar provisions guaranteeing a defendant the right to have compulsory process for obtaining witnesses in his favor. McCracken v. State, 521 P.2d 499 (Alaska 1974).

This section contains provisions almost identical with those of the 6th amendment to the federal constitution.Brown v. State, 372 P.2d 785 (Alaska 1962).

In guaranteeing to an accused the right to a speedy trial, the Alaska constitutional convention adopted essentially the identical language of the 6th amendment to the federal constitution.Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Crim. R. 17 as implementation of accused’s constitutional right to have compulsory process. See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Alaska not bound by U.S. Supreme court’s interpretation. —

Disapproval is voiced of the language in Knudsen v. City of Anchorage , 358 P.2d 375 (Alaska 1960) which would indicate that Alaska is bound by the U.S. supreme court’s interpretation of the 6th amendment of the United States Constitution.Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Knudsen v. City of Anchorage , 358 P.2d 375 (Alaska 1960) is overruled insofar as it indicates that the supreme court cannot give this section any broader application than the 6th amendment has been given by the United States supreme court. Roberts v. State, 458 P.2d 340 (Alaska 1969).

The supreme court is not limited by decisions of the United States supreme court or by the United States Constitution when it expounds the state constitution; the Alaska Constitution may have broader safeguards than the minimum federal standards. Roberts v. State, 458 P.2d 340 (Alaska 1969); Blue v. State, 558 P.2d 636 (Alaska 1977).

The rights enumerated in this section need not terminate at the same point in the course of a criminal case since these rights serve separate and largely unrelated purposes. State v. Wassillie, 606 P.2d 1279 (Alaska 1980).

“Criminal prosecution” is defined as including any offense a direct penalty for which may be incarceration in a jail or penal institution; also included in the definition of that term are offenses which may result in the loss of a valuable license and offenses where a heavy enough fine is imposed so as to indicate criminality, because such a fine could be taken as a gauge of the ethical and social judgments of the community. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The category of “criminal prosecutions” is defined as including any offense a direct penalty for which may be incarceration in a jail or penal institution. It also includes offenses which may result in the loss of a valuable license, such as a driver’s license or a license to pursue a common calling, occupation, or business. It must also include offenses which, even if incarceration is not a possible punishment, still connote criminal conduct in the traditional sense of the term. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

The category of “criminal prosecutions” does not cover revocation of licenses pursuant to administrative proceedings where lawful criteria other than criminality are a proper concern in protecting public welfare and safety, as the basis of revocation or suspension in such instances is not that one has committed a criminal offense, but that the individual is not fit to be licensed, apart from considerations of only guilt or innocence of crime. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

The supreme court’s definition of a criminal prosecution does not cover revocation of licenses pursuant to administrative proceedings where lawful criteria other than criminality are a proper concern in protecting public welfare and safety, as the basis of revocation or suspension in such instances is not that one has committed a criminal offense, but that the individual is not fit to be licensed, apart from considerations of only guilt or innocence of crime. Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

The category of “criminal prosecutions” includes any offense a direct penalty for which may be incarceration in a jail or penal institution. State v. Browder, 486 P.2d 925 (Alaska 1971); RLR v. State, 487 P.2d 27 (Alaska 1971).

The supreme court’s definition of a criminal prosecution has been extended to provide a jury trial in such traditionally noncriminal areas as juvenile proceedings and contempt. Its decisions have centered upon the distinction between offenses carrying sanctions which are punitive and those having a primarily remedial effect. Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

An in rem forfeiture proceeding is not a “criminal prosecution” within the meaning of this section. Resek v. State, 706 P.2d 288 (Alaska 1985).

A heavy enough fine might indicate criminality because it can be taken as a gauge of the ethical and social judgments of the community. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Criminal contempt proceeding is a criminal prosecution. —

Under AS 09.50.020 the contemnor may be incarcerated in a jail or penal institution for six months. Thus, it is clear that a criminal contempt proceeding is criminal prosecution within this section. State v. Browder, 486 P.2d 925 (Alaska 1971).

The parens patriae principle is the core of the established view that juvenile proceedings are different from criminal trials. Accordingly, a parens patriae rationale has been used to justify restrictions on due process safeguards — although protections have been increasingly extended in recent years. Where juveniles are confined without the due process rights afforded adults, they have a right to treatment. Rust v. State, 582 P.2d 134 (Alaska 1978).

Contempt in juvenile proceedings. —

AS 04.16.050 expressly provides that the terms of a defendant’s probation can include custodial in-patient treatment and community work service. Since a defendant has no right to refuse the probation, the defendant must comply with these conditions, and the court can enforce compliance through its contempt power. State v. Auliye, 57 P.3d 711 (Alaska Ct. App. 2002).

Cultural and language barriers as hinderance of an accused’s ability to understand his rights. See Gregory v. State, 550 P.2d 374 (Alaska 1976).

Defendant is entitled to have access to all relevant evidence in the possession of the state in order that he be afforded his right to a fair trial. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Proceedings to determine fitness to be licensed distinguished from criminal prosecutions which could result in penal loss of professional license. See Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

Rights at hearing to determine whether defendant is guilty but mentally ill. —

At commitment hearing under former AS 12.45.090 (see now AS 12.47, especially AS 12.47.060 ) after defendant has been acquitted on the ground of mental disease or defect, there may be a six person jury; the defendant is entitled to reasonable notice, to present evidence, to confront and cross-examine witness and to appeal; and defendant has the right to be present, and to counsel. State v. Alto, 589 P.2d 402 (Alaska 1979).

Attempt to locate witness must be shown. —

Where there is no showing of an attempt to locate a witness, prejudice to an interest protected by speedy trial should hardly be presumed. To adopt such an approach would allow any disappointed defendant to base an appeal on supposedly unavailable witnesses whom the defendant did not even attempt to call at trial. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

“Waiver” is an intentional relinquishment or abandonment of a known right or privilege. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Acquiescence in the loss of fundamental rights will not be presumed. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Every presumption should be indulged against waiver. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

An attorney’s waiver of his client’s constitutional rights will be binding on the client, subject to established limitations, when waiver occurs during the trial and results from decisions made during the trial. Conversely, an attorney’s waiver of his client’s constitutional rights without his client’s consent will not be binding on the client if the waiver occurs before or after the trial or is the result of a decision made during the pretrial period. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Waiver of right of accused to be present at every stage of trial. See Brown v. State, 372 P.2d 785 (Alaska 1962).

Glasgow v. State , 469 P.2d 682 (1970). has retroactive effect. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Application of waiver rule. —

The supreme court treats preliminary hearings, suppression hearings and other such trial-type proceedings as if they were the trial itself for purposes of the waiver rule, in keeping with its pragmatic approach. Thus, tactical decisions to waive constitutional rights made during the course of such proceedings will be binding on the client. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Purpose of preliminary hearing. —

The main purpose of a preliminary hearing is to protect the accused from unwarranted incarceration while awaiting action by the grand jury, by determining whether there is a basis for holding him until the grand jury has reviewed the facts. Maze v. State, 425 P.2d 235 (Alaska 1967).

While it is true that a preliminary hearing usually affords the accused an opportunity to learn in advance of trial something of the nature of the evidence upon which the government will rely, its principal function is not that of providing pretrial discovery. Maze v. State, 425 P.2d 235 (Alaska 1967).

Grand jury may act on accused’s case before preliminary hearing. —

The fact that a grand jury acts on an accused’s case before a scheduled preliminary hearing does not amount to illegal prejudice. Maze v. State, 425 P.2d 235 (Alaska 1967).

After a grand jury has acted on the accused’s case and returned an indictment, no reason exists for conducting a preliminary hearing to determine whether probable cause exists for detaining the accused. Maze v. State, 425 P.2d 235 (Alaska 1967).

Admissibility of evidence. —

Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. A defendant is entitled to a fair trial but not a perfect one. It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Sidney v. State, 468 P.2d 960 (Alaska 1970).

It was harmless error for prosecution to cross-examine defense expert on the absence of autopsy slides because defendant had remedies for the error at trial. While the prosecution was improperly allowed to imply that autopsy slides existed, defendant could have presented evidence of standard procedures when tissue samples are created as part of an autopsy. It was reasonable for the defense expert to conclude that, because he had not received any slides, none existed. Garner v. State, — P.3d — (Alaska Ct. App. Mar. 30, 2011) (memorandum decision).

Admission of one codefendant’s inculpatory extrajudicial statements did not require reversal of other codefendant’s conviction. Sidney v. State, 468 P.2d 960 (Alaska 1970).

Constitutionality of former AS 11.40.150. —

Although former AS 11.40.150 failed to define the word “immoral,” it was not rendered so vague as to be unconstitutional under this section nor under the 6th amendment to the federal constitution.Anderson v. State, 384 P.2d 669 (Alaska 1963), overruled, State v. Guest, 583 P.2d 836 (Alaska 1978).

And of AS 09.20.070 . —

AS 09.20.070 is not violative of this section. West v. State, 409 P.2d 847 (Alaska 1966).

Administrative delay. —

Where a driver was arrested for drunk driving, and the criminal charges were dropped because the arresting officer was deployed to Iraq and would not be available to testify at trial for more than a year, but where the administrative proceedings for the suspension/revocation of the driver’s operating license were not dismissed, the driver’s due process rights were not violated where her license was suspended almost three years after her arrest because administrative delay alone, without prejudice, did not violate due process, and any prejudice to the driver was slight because she was issued a permit that allowed her to drive throughout the delay. Alvarez v. State, — P.3d — (Alaska Aug. 13, 2010), op. withdrawn, sub. op., 249 P.3d 286 (Alaska 2011).

Speedy trial limits under Alaska Const. art. I, § 11 and U.S. Const. amend. VI did not attach to license suspension proceedings under AS 28.15.165 because the driver was issued a temporary license prior to the revocation proceeding. Alvarez v. State, 249 P.3d 286 (Alaska 2011).

Applied in

Clark v. State, 388 P.2d 816 (Alaska 1964); Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983); Drumbarger v. State, 716 P.2d 6 (Alaska Ct. App. 1986); State v. Stocker, 741 P.2d 1215 (Alaska Ct. App. 1987); Mitchell v. State, 818 P.2d 688 (Alaska Ct. App. 1991).

Quoted in

Alaska Pub. Defender Agency, Juneau Office v. Superior Court of First Judicial Dist., 584 P.2d 1106 (Alaska 1978); Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988); Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144 (Alaska 1989); Barry H. v. State, 404 P.3d 1231 (Alaska 2017).

Stated in

Martinez v. State, 423 P.2d 700 (Alaska 1967); Chase v. State, 678 P.2d 1347 (Alaska Ct. App. 1984).

Cited in

Scott v. State, 519 P.2d 774 (Alaska 1974); State v. Sears, 553 P.2d 907 (Alaska 1976); Adams v. State, 598 P.2d 503 (Alaska 1979); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Loveless v. State, 634 P.2d 941 (Alaska Ct. App. 1981); Walker v. State, 662 P.2d 948 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); Miessner v. Municipality of Anchorage, 673 P.2d 285 (Alaska Ct. App. 1983); Nylund v. State, 716 P.2d 387 (Alaska Ct. App. 1986); R.H. v. State, 777 P.2d 204 (Alaska Ct. App. 1989); Newcomb v. State, 800 P.2d 935 (Alaska Ct. App. 1990); In re A.S.W., 834 P.2d 801 (Alaska 1992); Alexander v. State, 838 P.2d 269 (Alaska Ct. App. 1992); State v. Titus, 933 P.2d 1165 (Alaska Ct. App. 1997); Raphael v. State, 994 P.2d 1004 (Alaska 2000); Hertz v. State, 8 P.3d 1144 (Alaska Ct. App. 2000); Pease v. State, 54 P.3d 316 (Alaska Ct. App. 2002); Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013); McDaniels v. State, 451 P.3d 403 (Alaska Ct. App. 2019); Hedrick v. State, 474 P.3d 4 (Alaska Ct. App. 2020).

II.Jury Trial

A.In General

This section guarantees the right to trial by jury to one in a criminal prosecution. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The Alaska Constitution guarantees the right to jury trial in any criminal prosecution in which an accused can be incarcerated in a jail or penal institution. State v. Browder, 486 P.2d 925 (Alaska 1971).

In any criminal prosecution the accused, upon demand, is entitled to a jury trial. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The right to trial before an impartial jury is explicitly secured by this section to individuals accused of crimes. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Alaska’s constitutional provision relating to the right to jury trial is interpreted to mean that in any criminal prosecution an accused, upon demand, is entitled to a jury trial. State v. Browder, 486 P.2d 925 (Alaska 1971).

Sixth amendment to the United States Constitution provides similar protection to that provided by this section. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Sixth amendment made applicable to states. —

Under Klopfer v. North Carolina , 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1, (1967), the U.S. supreme court, through the due process clause of the 14th amendment, made applicable to the states the 6th amendment right to speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The right to jury trial contained in the 6th amendment is directly applicable to state prosecutions. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The 14th amendment due process clause guarantees the right to jury trial in serious criminal prosecutions in the states. RLR v. State, 487 P.2d 27 (Alaska 1971).

Trial by jury is one of the oldest discernible and distinguishing institutions of the Anglo-American system of jurisprudence. State v. Browder, 486 P.2d 925 (Alaska 1971).

The jury is an essential institution in a democracy. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The right to jury trial holds a central position in the framework of American justice. State v. Browder, 486 P.2d 925 (Alaska 1971).

And it serves multifaceted purposes. The jury is, of course, primarily charged with the task of finding the truth of the facts asserted. Yet beyond its utility as a finder of fact, the jury fulfills other equally vital political and psychological purposes. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Right to jury is fundamental. —

As a protection or barrier against the exercise of arbitrary power, the people of this state, in adopting the Alaska Constitution, guaranteed to petitioners the right to be tried by “an impartial jury of twelve.” This is a fundamental right, recognized as such throughout the nation by the constitutions of all states and the federal government. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Scope of right to jury trial. —

While the Alaska supreme court must enforce the minimum constitutional standards imposed upon it by the U.S. supreme court’s interpretation of the 14th amendment, it is free, and it is under a duty, to develop additional constitutional rights and privileges under the Alaska Constitution if it finds such fundamental rights and privileges to be within the intention and spirit of local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of Alaska’s constitutional heritage. The Alaska supreme court need not stand by idly and impassively, waiting for constitutional direction from the highest court of the land. Instead, it should be moving concurrently to develop and expound the principles embedded in Alaska constitutional law. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Trial judge properly restricted defense expert testimony in a criminal case because judge found that defense attorney willfully violated Alaska R. Crim. P. 16(c)(4) by failing to disclose the substance of an expert’s testimony; that ruling did not violate Alaska Const., art. I, § 11. Harris v. State, 195 P.3d 161 (Alaska Ct. App. 2008).

The right to jury trial shall be made available to everyone on equal terms as the plain constitutional language commands. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

In any criminal prosecution. —

In any criminal prosecution, whether under state law or for violation of a city ordinance, the accused upon demand is entitled to a jury trial and to the extent that Knudsen v. City of Anchorage , 358 P.2d 375 (Alaska 1960), etc., is inconsistent with this opinion, it is overruled. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Misdemeanor prosecutions. —

The right to trial by jury is a fundamental one under this section even in misdemeanor prosecutions. O'Donnell v. Municipality of Anchorage, 642 P.2d 835 (Alaska Ct. App. 1982).

Where the reasons for the right to jury trial apply, the right inheres. RLR v. State, 487 P.2d 27 (Alaska 1971).

Size of jury. —

Trial court did not violate defendant's constitutional right to a twelve-person jury, under Alaska Const. art. I, § 11, because defendant knowingly and voluntarily chose in writing to proceed to trial with an undersized jury. Moreover, the trial court did not abuse its discretion when it decided to release the twelfth juror in light of the unexpected length of the trial and the twelfth juror being scheduled to leave on a vacation. Mati v. State, — P.3d — (Alaska Ct. App. Aug. 7, 2019) (memorandum decision).

Exclusions from requirement of jury trial. —

Excluded from the requirement of jury trial are such relatively innocuous offenses as wrongful parking of motor vehicles, minor traffic violations, and violations which relate to the regulation of property, sanitation, building codes, fire codes, and other legal measures which can be considered regulatory rather than criminal in their thrust, so long as incarceration is not one of the possible modes of punishment. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Where a matter is being prosecuted under Civil Rule 95(a) (costs and attorney’s fees) and Civil Rule 95(b) (which now provides a maximum fine of $50,000 for rule infractions), there is no right to a jury trial. Weidner v. Superior Court, 715 P.2d 264 (Alaska Ct. App. 1986).

Strict liability commercial fishing violations under AS 16.05.722 are not criminal violations under this section and therefore no jury trial is required. State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738 (Alaska 1998).

Suspension of obligor’s driver’s license under AS 25.27.246 , pending compliance with child support order or payment plan, is not punitive and criminal in nature; the Alaska Constitution does not, therefore, entitle the obligor to a jury trial. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Court did not deprive defendant, who was charged with speeding, of the right to a jury trial under U.S. Const. amend. VI or Alaska Const. art. I, § 11 because speeding was not an offense that carried a potential penalty of imprisonment, loss of driver’s license, or a fine so large as to connote criminality. Samples v. Municipality of Anchorage, 163 P.3d 967 (Alaska Ct. App. 2007).

Supreme court classifies offenses. —

The supreme court has independent power to determine which offenses are petty or serious so as to require jury trial. State v. Browder, 486 P.2d 925 (Alaska 1971).

Contemporary social values rather than historical categorizations should determine whether a prosecution is criminal for purposes of the right to jury trial. State v. Browder, 486 P.2d 925 (Alaska 1971); RLR v. State, 487 P.2d 27 (Alaska 1971).

The right to jury trial is coextensive with the right to counsel. RLR v. State, 487 P.2d 27 (Alaska 1971).

Imposition of sentence by judge, not jury, upheld. —

When a defendant was sentenced to a 99-year minimum mandatory sentence, the imposition of the sentence by a judge, not a jury, did not violate either the jury trial clause or the due process clause. Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007).

Right to jury trial for criminal contempt. —

This section guarantees the accused the right to jury trial for a direct criminal contempt. State v. Browder, 486 P.2d 925 (Alaska 1971).

Analysis of the premises upon which the power to summarily imprison for criminal contempt indicates that no exception to the right to jury trial should be made for petty contempts where imprisonment is a potential sanction. State v. Browder, 486 P.2d 925 (Alaska 1971).

Certain contempts punishable by imprisonment. —

Under the provisions of AS 09.50.010 and AS 09.50.020 , only the following contempts are punishable by imprisonment: (1) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority or to interrupt the course of trial or other judicial proceeding; and (2) a breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the course of a trial or other judicial proceedings. Therefore, these must be tried by jury. State v. Browder, 486 P.2d 925 (Alaska 1971).

Delinquency proceedings. —

Children are constitutionally entitled to jury trial in the adjudicative stage of a delinquency proceeding. However, due to the uniqueness of some facets of the procedures governing children’s court proceedings and the potential damage which may accrue to the child by a public trial, the child should first consult with his counsel and his parents or guardian when appropriate, and then affirmatively assert the right to a trial by jury before it is finally granted. RLR v. State, 487 P.2d 27 (Alaska 1971).

Whenever a child in a delinquency proceeding is charged with acts which would be a crime subject to incarceration if committed by an adult, this section guarantees him the right to jury trial. To the extent In re White, 445 P.2d 813 (Alaska 1968), is inconsistent with this opinion, it is overruled. RLR v. State, 487 P.2d 27 (Alaska 1971); Rust v. State, 582 P.2d 134 (Alaska 1978).

The purposes of the right to jury trial, such as protection against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge, apply as much in children’s cases as in adults’ cases. RLR v. State, 487 P.2d 27 (Alaska 1971).

Right to jury trial on application of certain statutory aggravators to enhance sentence. —

In considering defendant’s right to a jury trial regarding imposition of enhanced sentence based on aggravating factors set forth in AS 12.55.155(c)(7) and (c)(20), so long as the fact of the prior felony conviction was not disputed, it was purely a question of law whether a defendant’s prior felony was a more serious class of offense than the defendant’s current felony, and a sentencing judge could lawfully make this determination, so the defendant had no right to a jury trial on the application of aggravator (c)(7); the question whether defendant had a right to jury trial with respect to aggravator (c)(20) (offender on felony probation) was not decided where it was undisputed that the defendant was on felony probation when he committed his current felony, and, even if entitled to a jury trial on the application issue, any error was harmless beyond a reasonable doubt. Snelling v. State, 123 P.3d 1096 (Alaska Ct. App. 2005).

Delinquency adjudication. —

Where delinquency adjudication was sought in superior court for a juvenile who was charged with a Class A misdemeanor, the proceedings constituted a criminal prosecution in a court of record, thus entitling the juvenile to a twelve-person jury. P.S. v. State, 655 P.2d 1319 (Alaska Ct. App. 1982).

If child waives jury trial, state may not require it, but jury trial shall be provided only on demand. RLR v. State, 487 P.2d 27 (Alaska 1971).

Child-in-need-of-aid proceedings. —

As a child-in-need-of-aid (CINA) proceeding is not a criminal proceeding or analogous to one, Alaska Const., art. I, § 11 did not entitle a mother to a jury trial at the adjudication stage of the CINA proceedings. Alyssa B. v. Dep't of Health & Social Servs., 123 P.3d 646 (Alaska 2005).

Prosecution of minors for under-age drinking or possession of alcohol. Because minors charged with under-age drinking or possession of alcohol are subject to revocation of their driver’s license upon conviction, if charged with such offense they are entitled to a jury trial and to court-appointed counsel if they are indigent. State v. District Court, 927 P.2d 1295 (Alaska Ct. App. 1996).

Custodial confinement in a residential alcohol treatment program is the functional equivalent of jail time and therefore constitutes a sentence of imprisonment. Thus, a person who faces custodial in-patient alcohol treatment as a penalty for an offense is entitled to a jury trial and to court-appointed counsel. Likewise, a person facing the possibility of community work service is entitled to these same procedural rights. State v. Auliye, 57 P.3d 711 (Alaska Ct. App. 2002).

The Alaska Constitution guarantees defendants the right to trial by jury and (if indigent) the right to court-appointed counsel if they are charged with an offense (such as an underage alcohol offense) that carries a potential penalty of: (1) imprisonment; (2) the loss of valuable license (e.g., a driver’s license); or (3) a fine so large as to connote criminality; juvenile offenders facing similar consequences also have the right to trial by jury. State v. Auliye, 57 P.3d 711 (Alaska Ct. App. 2002).

Advising defendants in group arraignment of jury trial rights. —

In a group arraignment, each defendant with a right to a jury trial must be individually apprised of that right. The arraigning judge may not leave the defendants to figure out what rights they have, but if all the defendants in a group face penalties entitling them to jury trials, the arraigning judge may then properly tell the group as a whole of their jury trial rights; the advice, however, must be unconditional. Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

Right to jury trial wrongfully denied. —

Where judge ordered an attorney to show cause why he could not represent a criminal defendant and the show-cause order did not limit the potential punishment to which the attorney was exposed, the attorney was wrongfully denied a trial by jury when he was found in contempt and ordered to pay a $500 fine, since the potential punishment, not the sentence or fine actually imposed, determines whether a person is entitled to a trial by jury. Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), overruled, De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Personal waiver of a constitutionally guaranteed jury is required under the United States and Alaska Constitutions during the pretrial period. Walker v. State, 578 P.2d 1388 (Alaska 1978).

Waiver of the right to trial by a jury of 12 persons requires that the court personally address the defendant, and that failure to do so is error per se. Walker v. State, 578 P.2d 1388 (Alaska 1978).

Where an attorney’s waiver of the right to trial by a jury of 12 persons occurred during the pretrial period, it was not binding on the client. Walker v. State, 578 P.2d 1388 (Alaska 1978).

Where in midtrial defendant’s attorney waived defendant’s right to a six-person jury due to one juror’s illness, but where at no time did defendant personally waive this right, defendant’s subsequent conviction by a five-person jury was in violation of this section. Land v. Municipality of Anchorage, 640 P.2d 164 (Alaska Ct. App. 1982).

Trial by jury is a fundamental right accorded criminal defendants, and, as such, it requires a knowing and intelligent waiver for relinquishment. Waiver cannot be presumed. Walker v. State, 578 P.2d 1388 (Alaska 1978).

The duty of a trial court to address a defendant personally on waiver of a jury of 12 extends to a duty to inquire whether the waiver is voluntary and knowing. Failure to do so is error per se. Walker v. State, 578 P.2d 1388 (Alaska 1978).

The requirements as to personal waiver of jury trial rights in Walker v. State , 578 P.2d 1388 (Alaska 1978) must be read to apply to misdemeanor prosecutions. O'Donnell v. Municipality of Anchorage, 642 P.2d 835 (Alaska Ct. App. 1982).

Where defendant explicitly waived his right to a jury trial on the condition that he be allowed to appeal the trial court’s denial of his motion to dismiss and the court’s refusal to permit his mistake of law defense, he made a strategic decision to take his chances with the judge and could not seek a jury trial after waiving his right. Ostrosky v. Alaska, 913 F.2d 590 (9th Cir. Alaska 1990).

Delinquency adjudication as aggravating factor in sentencing. —

Defendant’s Sixth Amendment right to a jury was not infringed when the trial court was allowed to consider defendant’s prior adjudication as a delinquent as an aggravating factor at sentencing under AS 12.55.155 ; as a juvenile in Alaska, defendant had a right to a jury trial, and defendant, as a juvenile, had a right to proof beyond a reasonable doubt. Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005).

“Courts not of record”. —

As used in this section, the phrase “courts not of record” means courts of limited jurisdiction, such as the district court, which have been created by the legislature pursuant to constitutional authority and which the legislature has not seen fit to designate specifically as “courts of record.” Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

No conflict between this section and AS 22.15.150 . —

There is no conflict between this section, which provides for a jury of 12 in criminal cases but states that the legislature may provide for a jury of not more than 12 nor less than six in courts not of record, and AS 22.15.150 , which provides for a jury of six in a district court, since the district court is a court not of record. Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

Constitutionality of one-year residency requirement for jury service. —

See Webb v. State, 580 P.2d 295 (Alaska 1978).

No right to jury trial in certain administrative proceedings. —

The Alaska Constitution does not entitle a person to a jury trial in administrative proceedings affecting a professional license where his fitness to practice that profession is the primary concern. Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

Broad interpretation of Cr. R. 24(c)(11), which allows challenges to potential jurors on the ground that “the person is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or been accused by him in criminal prosecution” did not deprive defendant of his constitutional right to a jury that is representative of the community. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Jury instruction on unanimity. —

It was unnecessary to resolve whether the instruction on the requirement of jury unanimity as it related to a felony murder charge was correct because the jury unanimously agreed that defendant was guilty of murder under other subsections of the second-degree murder statute. Lawson v. State, 264 P.3d 590 (Alaska Ct. App. 2011).

Because defendant’s right to have jurors all agree that defendant committed a single offense was protected by the Alaska Constitution’s due process clause under Alaska Const. art. 1, § 7, the court of appeals erroneously placed the burden of showing prejudice of a constitutional error on defendant rather than the State. Khan v. State, 278 P.3d 893 (Alaska 2012).

Effect of refusal to instruct. —

A defendant’s right to a jury trial is not infringed by the trial court’s refusal to instruct on lesser-included offenses or affirmative defenses without support in the evidence. Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982).

Presence of uniformed guards in courtroom. —

Anthony v. State , 521 P.2d 486 (Alaska 1974) precludes the appearance before members of the jury of uniformed officers or guards who are physically restraining a defendant or exercising actual custody and control over his person. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Mere presence of uniformed officers in a neutral area of the courtroom, without any overt manifestation of actual physical restraint or custody, is not sufficient to deprive the defendant of the right to a fair trial. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982), narrowing the interpretation of Anthony v. State, 521 P.2d 486 (Alaska 1974).

Defendant was mentally capable of waiving right to jury trial. —

See Walunga v. State, 630 P.2d 527 (Alaska 1980).

Right to jury trial not abridged by AS 12.55.145 . —

Defendants’ right to trial by jury was not abridged by the presumptive sentencing provisions in AS 12.55.145 , which allowed the judge to determine whether defendant had formerly been convicted of one or more felonies. Huitt v. State, 678 P.2d 415 (Alaska Ct. App. 1984).

B.Speedy

Under both the United States and Alaska Constitutions, a defendant is entitled to a speedy trial. Paul v. State, 560 P.2d 754 (Alaska 1977).

Sentencing delays are governed by both the federal and Alaska constitutional guarantees of a speedy trial. Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, 578 U.S. 437, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

State and federal constitutional requirements mandate that there be no unreasonable delay in bringing an accused to trial. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

The right to a speedy trial is one of the most basic rights preserved by the constitution. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

“Speedy trial”. —

Most important, a speedy public trial involves a “trial” — a judicial examination of issues present in a criminal case in order to arrive at a just result. Justice to both the accused and the public is the primary objective. “Speed” is important insofar as it aids in the achievement of such justice. Hence, a speedy public trial is a relative concept in that the circumstances of each case determine whether it has been afforded an accused. Spight v. State, 450 P.2d 157 (Alaska 1969); Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The supreme court is not bound by federal law when interpreting the speedy trial provisions of the Alaska Constitution, so long as it observes minimum federal standards. Yarbor v. State, 546 P.2d 564 (Alaska 1976).

Interests protected by speedy trial right. —

See Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, 578 U.S. 437, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

The purposes to be served by the guarantee of a speedy trial are to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself. These oppressive forces become less important when the delay is at the instance of the defendant. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The purposes to be served by the guarantee of a speedy trial are to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself. Paul v. State, 560 P.2d 754 (Alaska 1977).

The right to a speedy trial protects against prejudice from (1) incarceration prior to trial, and (2) impaired ability to defend. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

The speedy trial guarantee fulfills three main purposes: (1) It prevents harming a defendant through a weakening of his case as evidence and witnesses’ memories fade with the passage of time; (2) it prevents prolonged pretrial incarceration; and (3) it limits the infliction of anxiety upon the accused because of long-standing charges. Nickerson v. State, 492 P.2d 118 (Alaska 1971); Tarnef v. State, 512 P.2d 923 (Alaska 1973).

The right to a speedy trial fulfills several purposes. One is to prevent harming the defendant by a weakening of his case as evidence and memory of witnesses grow stale with the passage of time. Another is to prevent prolonged pretrial incarceration and the infliction of anxiety upon the accused because of long-pending charges. Lastly, it is recognized that harm is inflicted upon an accused who is serving a sentence in another jurisdiction if he is not promptly allowed to be tried in the jurisdiction where charges are still pending. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The speedy trial guarantee has been seen as fulfilling at least three purposes: (1) To prevent harming the defendant by a weakening of his case as evidence and memories of witnesses grow stale with the passage of time; (2) to prevent prolonged pretrial incarceration; and (3) to limit the infliction of anxiety upon the accused because of long-standing charges. In postulating speedy trial standards, it is necessary to be cognizant of each of these purposes. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The right to a speedy trial serves several purposes, only one of which is concerned with the accuracy of verdicts in criminal trials. The existence of these other purposes, however, in no way diminishes the importance of speedy trial as a guarantee of basic procedural fairness to the accused. Protracted delay in bringing a criminal case to trial may substantially impinge upon the reliability of the fact-finding process. The purpose of the supreme court holding on the issue of speedy trial in Glasgow v. State , 469 P.2d 682 (Alaska 1970) is thus significantly, though not exclusively, related to the integrity of the fact-finding process. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Protection of purposes. —

The purposes of the speedy trial rule are adequately protected by the dismissal of tardy trials without engrafting additional sanctions pertaining to revocation proceedings. Paul v. State, 560 P.2d 754 (Alaska 1977).

Criminal Rule 45. —

Both the constitutional right to a speedy trial and Cr. R. 45 pertain to trials. Paul v. State, 560 P.2d 754 (Alaska 1977).

Criminal Rule 45 will generally provide a speedier trial than is constitutionally required. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984).

Speedy trial rule construed under Cr. R. 45. —

See State v. Nitz, 684 P.2d 134 (Alaska Ct. App. 1984).

Right must be promptly asserted. —

Speedy trial is a personal right of the defendant, and thus, the right is deemed waived if not promptly asserted. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

The defendant must move for dismissal on speedy trial grounds prior to trial or pleading guilty, or forfeit the right. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

Defendant’s right to a speedy trial, as provided for in Cr. R. 45, was not abrogated where the indictment in question did not arise from the same conduct for which the defendant was originally arrested, but rather from admissions to criminal conduct later disclosed. The statutory 120-day period did not, therefore, begin to run until defendant received the later indictment. Kizzire v. State, 715 P.2d 272 (Alaska Ct. App. 1986).

Outer limits of Alaska’s constitutional right to speedy trial are not defined by Cr. R. 45. Snyder v. State, 524 P.2d 661 (Alaska 1974).

Where juvenile jurisdiction is waived, Cr. R. 45 begins to run on the day the waiver order is signed. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984), wherein the court refused to modify R.D.S.M. v. Intake Officer, 565 P.2d 855 (Alaska 1977) where a juvenile is waived to adult court .

Criminal Rule 45 is only a “basic datum” and a considerably longer period could elapse before trial without resultant unfairness or injustice to the accused. Snyder v. State, 524 P.2d 661 (Alaska 1974).

Criminal Rule 45 is designed to satisfy the imprecise limits of the constitutional right to a speedy trial with much room to spare. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

Periods of delay excluded by Cr. R. 45. —

In calculating delay attributable to the state, the new speedy trial rule, Cr. R. 45, excludes periods of delay resulting from other proceedings concerning the defendant, such as motions to suppress evidence, from trials on other charges, from interlocutory appeals and from any continuance consented to by defendant’s attorney. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

The supreme court will not read a reasonable time exception into Cr. R. 45. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

It is conceivable that the objective requirements of Cr. R. 45 might be met while constitutional standards are violated. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

Even where the objective standards of the speedy trial rule, Cr. R. 45, have been met, the delay between arrest and trial might still have prejudiced the defendant to the extent that his constitutional speedy trial rights were violated. Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983).

Right attaches when defendant formally accused. —

The right to a speedy trial does not attach before the defendant becomes formally accused, that is, the subject of a filed complaint or an arrest. Yarbor v. State, 546 P.2d 564 (Alaska 1976).

The Alaska Constitution does not provide a right to a speedy trial that would attach when the state has acquired sufficient evidence to charge an individual with a crime. Yarbor v. State, 546 P.2d 564 (Alaska 1976).

The Alaska constitutional right to speedy trial, embodied in this section, does not attach prior to formal accusation. Coffey v. State, 585 P.2d 514 (Alaska 1978).

A claim of preaccusation delay must sound in terms of deprivation of due process of law under the 14th amendment to the United States Constitution and Alaska Const., art. I, § 7. The United States Constitution’s sixth amendment does not afford speedy trial protection until the commencement of formal proceedings. Similarly, the Alaska constitutional right to speedy trial, embodied in this section, does not attach prior to formal accusation. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Attachment at institution of some form of charge. —

The right to a speedy trial attaches at least from the institution of some form of charge. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Defendant became “formally accused,” and his constitutional right to a speedy trial attached, when the district attorney’s office clearly manifested its decision to prosecute him by formally and publicly filing an information charging him with sexually abusing his stepdaughter. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

Filing of information. —

When defendant claimed a five-year delay between filing an information and arrest or indictment violated the right to speedy trial, the speedy trial clock began to run from the filing of the information because this began litigation against defendant, at which time defendant was placed under a cloud of suspicion. State v. Wright, 404 P.3d 166 (Alaska 2017).

Defendant becomes formally accused for speedy trial purposes under the Alaska Constitution not just upon indictment or arrest but also when the State files an information charging the defendant with a crime because (1) the filing of an information marks the beginning of litigation against a defendant, (2) filing an information clearly manifests a prosecutor's decision to prosecute, and (3) the filing of an information is sufficient to toll the statute of limitations on a criminal charge. State v. Wright, 404 P.3d 166 (Alaska 2017).

Extensive delays threaten the basis of the trial itself. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

And the integrity of the verdict. —

See Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Without a speedy trial, neither the supreme court nor the state is able to establish with the certainty required by Alaska law that the verdict is just. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The period of incarceration should not affect the fact-finding process at the trial level. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Any delay which distorts facts is undesirable. —

Since a basic purpose of the speedy trial guarantee is to insure that the verdict returned represents the justice of the factual situation, any delay which results in a distortion of the facts presented is undesirable. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. Spight v. State, 450 P.2d 157 (Alaska 1969).

Since speedy trial is a relative concept, the supreme court, in determining whether a speedy trial had been denied, must balance the needs of the accused and the requirements of the judicial process in light of the purposes served by the speedy trial guarantees. In establishing this balance, it is proper to consider at least three factors: The particular source of delay, the reasons for the delay, and whether the delay prejudiced interests protected by speedy trial. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

In speedy trial cases the supreme court must balance the needs of the accused and the requirements of the judicial process with the purposes served by the speedy trial guarantee. Taggard v. State, 500 P.2d 238 (Alaska 1972).

While the supreme court has recognized that there may be reason to dismiss criminal charges because of preindictment delay, such a decision must be based on a consideration of several factors. The reason for delay, the prejudice to defendant, and the governmental interest in postponing accusation must be evaluated to assess a claim of violation of due process with respect to events occurring prior to indictment. P.H. v. State, 504 P.2d 837 (Alaska 1972).

Speedy trial is a relative concept in that the circumstances of each case determine whether it had been afforded an accused. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Whether a speedy trial violation has occurred depends on the facts of each case and general constitutional principles. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Each case alleging an unconstitutional deprivation of speedy trial must be considered in terms of its own particular facts and circumstances. Tarnef v. State, 492 P.2d 109 (Alaska 1971); Taggard v. State, 500 P.2d 238 (Alaska 1972).

Trial should be reasonably contemporaneous with wrongful act. —

The deterrence and rehabilitation purposes of the criminal law are frustrated if the trial is not reasonably contemporaneous with the wrongful act. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

A positive duty rests upon the courts and prosecutors to see that criminal defendants are afforded a speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

It is the state, acting through its officials, which has the primary obligation of affording to the accused an early trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

It is the prosecution which initiates a case and which has the power of going forward with it. In the exercise of this power, it is the duty of the public prosecutor to observe the constitution. To condition that duty on a defendant’s having demanded constitutional compliance is an unacceptable misallocation of the burden of insuring a speedy trial. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The burden is upon the state to give a speedy trial or be denied the power to prosecute. Rutherford v. State, 486 P.2d 946 (Alaska 1971); Peterkin v. State, 543 P.2d 418 (Alaska 1975).

To expect a criminal defendant to insist on his own trial is inconsistent with human nature. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Essential ingredient is orderly expedition. —

Because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. The essential ingredient is orderly expedition and not mere speed. Glasgow v. State, 469 P.2d 682 (Alaska 1970); Rutherford v. State, 486 P.2d 946 (Alaska 1971); Nickerson v. State, 492 P.2d 118 (Alaska 1971).

While an adult defendant in a criminal case must be brought to trial within a reasonable time, due process requires that he may not be brought to trial too soon. He must be given a reasonable time to consult with his counsel and to prepare his defense. Doe v. State, 487 P.2d 47 (Alaska 1971).

Factors considered in determining whether speedy trial violation occurred. —

In determining whether a speedy trial violation has occurred, the court would consider three factors — the source of the delay, the reasons for the delay, and whether the delay prejudiced interests protected by the speedy trial guarantee. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Prejudice will be presumed for delays of over 14 months between charge and trial. This is not to say, of course, that prejudice to the accused will be presumed in cases where the trial is delayed for a substantially shorter time. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Prejudice may be presumed where the delay between the charge and trial exceeds 14 months. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

The supreme court has attached a presumption of prejudice for delays in excess of 14 months. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Defendant made a colorable showing of a violation of his right to a speedy trial, because the unexcused delay of approximately twenty months could have been deemed to be presumptively prejudicial. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

But not for delays substantially less than 14 months. —

Where the interval between charge and trial is substantially less than 14 months, in these circumstances the supreme court will not presume prejudice from the length of the delay. The supreme court will require the defendant to demonstrate prejudice in order to prevail. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

A delay for a period substantially less than 14 months will not give rise to a presumption of prejudice. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Where a delay in bringing an accused to trial is substantially less than 14 months, the presumption of prejudice does not arise, and the accused is required to demonstrate actual prejudice in order to prevail in his assertion of denial of a speedy trial. Whitton v. State, 506 P.2d 674 (Alaska 1973).

Prejudice to interests protected by speedy trial will not be presumed where the challenged delay is substantially less than 14 months. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Although some prejudice results from an eight-month incarceration of any defendant, the question to be resolved is whether that prejudice reaches constitutional dimensions requiring reversal. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Where the delay between indictment and trial was about seven months and two weeks, and the total period of incarceration was slightly in excess of eight months, prejudice was not presumed; instead, actual prejudice was required to be shown. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Where something less than six months of a 10-month delay between indictment and trial was attributable to the state, defendant was required to show actual prejudice in order to prevail. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Nor for delays requested by defendant. —

The period of delay necessary for the presumption of prejudice to attach shall include only a delay not attributable to the defendant. Any delays requested or agreed to directly or implicitly by the defendant shall be deducted from that period. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

In determining speedy trial claims, the supreme court would exclude those periods of time that were attributable to the defendant in its calculation of pre-trial delay. Taggard v. State, 500 P.2d 238 (Alaska 1972); Whitton v. State, 506 P.2d 674 (Alaska 1973).

Pre-trial delays after defendant dismissed his attorney and continued the case in order to secure other counsel were attributable to the defendant, not to the court, where the defendant was not relying on any representation made by the judge in connection with securing counsel. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Minor’s right to a speedy trial was not violated where the original petition alleging he had aided and abetted in the theft of a motorcycle was dismissed without prejudice because the minor wished to, and did, leave Alaska with his mother, but was refiled when the minor returned to the state several months later, since the delay that occurred between the filing of the original petition and the reinstatement of that petition was a direct result of the minor’s request that he be allowed to leave the state with his mother. R. D. S. M. v. Intake Officer, 565 P.2d 855 (Alaska 1977).

In a dog bite case, where defendant caused more than 12 of the 18 months of the trial delay, and only six months of delay could be attributed to the government, defendant’s speedy trial rights were not violated. Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289 (Alaska Ct. App. 2004).

But defendant must show prejudice in order to prevail. —

Where a pre-trial delay of 10 and one-half months was attributable to defendant, the supreme court did not presume prejudice from the length of the delay, but required that the defendant demonstrate prejudice in order to prevail. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Actual prejudice need not be shown. —

To the extent that Spight v. State , 450 P.2d 157 (Alaska 1969) may be interpreted as requiring a showing of actual prejudice before a violation of the 6th amendment right to a speedy trial is found, this notion may now be laid to rest. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The extent to which a showing of prejudice will be required in cases where a trial is delayed will depend on the facts of each case. Generally, the longer the period of delay, the more willing the court should be to find a denial of the right to speedy trial without a showing of actual prejudice to the accused. Nickerson v. State, 492 P.2d 118 (Alaska 1971); Tarnef v. State, 492 P.2d 109 (Alaska 1971).

The longer the period of delay, the more willing the court should be to find a denial of the right to speedy trial without a showing of actual prejudice to the accused. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

But anxiety, standing alone, does not necessitate dismissal. —

It would be an exceptional case where a defendant’s anxiety over his pending criminal charge, standing alone, would constitutionally necessitate dismissal of a criminal prosecution. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Defendant held not prejudiced by delay. —

Where there was no indication that witnesses necessary for defendant’s defense were unavailable at trial or that the passage of time dimmed their memories, the supreme court found that the defendant had failed to substantiate his assertion of prejudice, or that he was hindered in the preparation of his trial by the length of time between arrest on the indictment and trial. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Duration of permissible delay. —

In most jurisdictions which set a statutory time limit, the permissible delay ranges between 75 days and six months. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

In Alaska, contrary to many states, there are no statutory provisions which implement speedy trial guarantees by setting a definite period within which trial must be held. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The right to speedy trial should be fixed in terms of days or months running from a specified event, excluding certain periods of necessary delay or delays at the instance of the defendant, which should also be identified precisely. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The President’s Crime Commission has recommended that no more than four months elapse between arrest and trial in felony cases. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The time between the acts charged (July 8 and 16, 1969) and the indictment (Sept. 25, 1969) was not unreasonable and did not constitute a denial of due process. McKay v. State, 489 P.2d 145 (Alaska 1971).

Eight-month sentencing delay did not violate defendant’s right to speedy sentencing, notwithstanding his argument that the delay placed a heavy strain on him and created considerable anxiety in his life. Stocker v. State, 766 P.2d 48 (Alaska Ct. App. 1988).

Fourteen months’ delay is excessive. —

See Glasgow v. State, 469 P.2d 682 (Alaska 1970); Rutherford v. State, 486 P.2d 946 (Alaska 1971); State v. Mardock, 490 P.2d 1223 (Alaska 1971).

A delay of 14 months in bringing an accused to trial, even though the prosecution was not responsible for the delay, deprives an accused of his right to a speedy trial under the Alaska Constitution. Whitton v. State, 506 P.2d 674 (Alaska 1973).

Although defendant was responsible for nine months and nine days of the total delay of 29 months and five days, since the delay not attributable to defendant exceeded the 14-month period ruled constitutionally impermissible, defendant was denied his right to a speedy trial under Alaska’s constitution. Whitton v. State, 506 P.2d 674 (Alaska 1973).

Thirty-one month sentencing delay held not speedy trial violation. —

See Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, 578 U.S. 437, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

Thirty-nine month delay in resentencing after defendant’s original sentence had been vacated did not violate his right to a speedy sentencing, notwithstanding his argument that he was prejudiced by the delay because he was under tremendous emotional pressure while awaiting his sentencing. Holmes v. State, 765 P.2d 112 (Alaska Ct. App. 1988).

Pre-indictment delay of 20 months held reasonable. —

See Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Constitutional right to speedy trial not violated. —

See Vail v. State, 599 P.2d 1371 (Alaska 1979); Conway v. State, 707 P.2d 930 (Alaska Ct. App. 1985).

When defendant claimed a five-year delay between filing an information and arrest or indictment violated the right to speedy trial, defendant's speedy trial right was not violated because defendant was primarily responsible for the presumptively prejudicial delay, greatly outweighing the State's negligence in failing to obtain an extraditable warrant, as it was not clear error to find (1) defendant departed the state upon realizing defendant was under investigation, (2) the delay did not prejudice defendant in preparing a defense, and (3) any dispute as to whether to fault defendant for failing to assert the speedy trial right was moot, as it was, at best, neutral. State v. Wright, 404 P.3d 166 (Alaska 2017).

No right to presumption of prejudice. —

Where only eight months of the 30-month delay were not “caused” by defendant, defendant was not entitled to the presumption of prejudice. Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983).

Sentencing delay held not speedy trial violation. —

See Travelstead v. State, 689 P.2d 494 (Alaska Ct. App. 1984).

The absence of a demand by the defendant, while not dispositive, should be given weight in evaluating his speedy trial claim. Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, 578 U.S. 437, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

Right applies to delinquency proceedings. —

A minor who is the subject of delinquency proceedings, which could result in his incarceration, is entitled to many of the same rights protecting an adult charged with a criminal offense. Those rights include the right to a speedy trial. R. D. S. M. v. Intake Officer, 565 P.2d 855 (Alaska 1977).

Reservation of right to appeal speedy trial issue in plea of nolo contendere. —

In a case where defendant’s counsel stated at the time of the entry of the plea of nolo contendere that it was subject to a reservation of his right to appeal the speedy trial issue, though the prosecutor opposed acceptance of the conditional plea, and the trial judge indicated that he believed defendant’s right to appeal would be preserved, but declined to rule on the matter, since the defendant was not told by the court that the conditional nature of his plea was a nullity and would preserve no appellate rights, the supreme court is constrained to respect the condition. To do otherwise would likely render mean the plea was not intelligently made and was invalid. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

A plea of nolo contendere is a waiver of all non-jurisdictional defects. Violation of one’s right to a speedy trial is non-jurisdictional. However, the supreme court has allowed appeals following pleas of nolo contendere or guilty which are expressly conditioned on the right to appeal from rulings which do not involve jurisdictional issues. This has been done where the prosecutor and the trial court have consented to the conditional nature of the plea, and where they do not consent, but the court failed to advise the defendant that his conditional plea did not preserve his right to appeal. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

Application for reduction of bail will usually provide adequate protection for a defendant’s interest against prolonged pretrial incarceration. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Severe remedy of dismissal of indictment with prejudice may be necessary in cases where pretrial incarceration is so lengthy that, even without impaired defense ability, fundamental unfairness would occur by further subjection of the accused to the prosecutorial power of the state. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Reversal and dismissal with prejudice is the proper remedy for the denial of speedy trial. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Incarceration during period of delay. —

Whether or not the accused is incarcerated during the period of alleged delay is not dispositive of the issue of denial of a speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While accused may not be incarcerated during the period between arrest and trial and may not be able to prove actual harm to his ability to defend himself, this does not mean that he suffered no injury because of the delay. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Suspension of prosecution. —

An accused is not relieved of the limitations placed upon his liberty by his prosecution merely because its suspension permits him to go whithersoever he will. The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the anxiety and concern accompanying public accusation, the criminal procedure denies the accused the right to a speedy trial which is guaranteed to him by the 6th amendment of the Constitution of the United States.Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Waiver. —

The theory behind Goss v. State , 390 P.2d 220 (Alaska), cert. denied, 379 U.S. 859, S. Ct. 118, 13 L. Ed. 2d 62 (1964), was that the right to speedy trial is a personal right of the accused which may be waived through mere inaction. In light of the supreme court’s present interpretation of the speedy trial provision of the Alaska Constitution and the authorities it has discussed on the issue of waiver of fundamental constitutional rights, it is clear that Goss v. State is no longer tenable either in its holding or its underlying theory. To the extent that it bears upon the right to speedy trial, Goss is overruled. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The waiver doctrine, based on the failure to make a demand, is of particularly dubious authenticity under present constitutional law. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The requirement of a demand, the showing of prejudicial harm to the defendant’s case, and the implication of a waiver from the defendant’s failure to make a demand arguably are no longer determinative of the claim to a speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While the presence of a demand or a showing of prejudice to one’s case can only help the claim, their absence alone will not necessarily frustrate the right to a speedy trial, including the right to a dismissal of the charges with prejudice when there has been a clear denial of this constitutional right. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The doctrine that failure of an accused to demand a speedy trial constitutes a waiver is rejected. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

A waiver of the right to a speedy trial is not to be inferred from mere silence unless that silence is for some tactical purpose. Glasgow v. State, 469 P.2d 682 (Alaska 1970); Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The courts indulge every reasonable presumption against waiver of constitutional rights. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

No acquiescence can be presumed in the loss of fundamental rights. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Waiver of speedy trial right for specifically defined period, as opposed to a waiver using open-ended language. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).

Continuance. —

Unless the resulting delay is purposeful, oppressive, or prejudicial to the defendant, the granting of a continuance is not a violation of the defendant’s constitutional right to a speedy trial. Spight v. State, 450 P.2d 157 (Alaska 1969); Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Probation may be revoked where charges dismissed for lack of prosecution. —

Probation may be revoked even though the basis for the revocation arises out of charges that have been dismissed for lack of prosecution under speedy trial standards. Paul v. State, 560 P.2d 754 (Alaska 1977).

Probation revocation hearing some six months after the violation of the conditions of probation was not in error. Paul v. State, 560 P.2d 754 (Alaska 1977).

C.Public

Public trial is an institutional safeguard. —

Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and “public trial” is an institutional safeguard for attaining it. Thus, the right of “public trial” is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered. RLR v. State, 487 P.2d 27 (Alaska 1971).

A public trial safeguards against attempts to employ the courts as instruments of persecution, restrains abuse of judicial power, brings the proceedings to the attention of key witnesses not known to the parties, and teaches the spectators about their government and gives them confidence in their judicial remedies. RLR v. State, 487 P.2d 27 (Alaska 1971).

The guarantee of public trials fosters and preserves at least three important societal values; two of these primarily protect a defendant’s right to a fair trial, while the third involves society’s broader interest in preserving social cohesion and the public peace by allowing citizens to assure themselves that justice is being done. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 1994).

Exclusion of the general public while testimony was given by three child victims at defendant’s trial for sexual abuse was a “total” closure in the sense that it was closed to all spectators, and reversal of defendant’s conviction was warranted, even in the absence of a specific claim of prejudice flowing from the closure. Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).

Secret trials prohibited. —

The due process clause of the 14th amendment prohibits secret trials in criminal proceedings. RLR v. State, 487 P.2d 27 (Alaska 1971).

Closed courtroom during child victims’ testimony. —

Trial court did not violate child sex abuse defendant’s right to a public trial when she had court personnel post a “closed hearing” sign on the courtroom door, so that no additional people would enter the courtroom while the three young child victims were on the stand. Anderson v. State, 289 P.3d 1 (Alaska Ct. App. 2012), reaff'd, 337 P.3d 534 (Alaska Ct. App. 2014).

Prison trials subject to strictest scrutiny. —

The Alaska Constitution does not categorically prohibit holding a criminal trial in a prison; however, any decision to hold a trial in a prison must be subjected to the strictest scrutiny, and must be supported by compelling reasons. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 1994).

Prison trial was unconstitutional. —

Defendant’s due process rights were violated by judge’s unjustified decision to move defendant’s trial to the prison. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 1994).

Rule requiring exclusion of public not adopted. —

The supreme court declined to adopt a rule under the state constitution that would require exclusion of the public from particular judicial proceedings. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Right to public trial is right of accused only. Geise v. United States, 265 F.2d 659 (9th Cir. Alaska 1959).

Children are guaranteed the right to a public trial by the Alaska Constitution. RLR v. State, 487 P.2d 27 (Alaska 1971).

Due process requires that children have the right to a public trial by jury where they are charged with acts which would be a crime if committed by an adult. Doe v. State, 487 P.2d 47 (Alaska 1971).

The fundamental constitutional right of public trial by jury must be afforded children in delinquency adjudication proceedings, in spite of the possible interference with the benevolent motives of the children’s court system which have, in the past, justified denial of those rights. Doe v. State, 487 P.2d 47 (Alaska 1971).

The reasons for the constitutional guarantees of public trial apply as much to juvenile delinquency proceedings as to adult criminal proceedings. RLR v. State, 487 P.2d 27 (Alaska 1971).

Unintentional brief exclusion of a newspaper reporter from part of the reading back to the jury of a section of testimony previously given, when at least one other spectator was present, did not deny the right to public trial. RLR v. State, 487 P.2d 27 (Alaska 1971).

Public trial before judge other than one reviled by contemnor. —

A defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor. State v. Browder, 486 P.2d 925 (Alaska 1971).

Unauthorized instructions constituting denial of right to “public trial.” —

See Noffke v. State, 422 P.2d 102 (Alaska 1967).

D.Impartial

Purpose of impartial jury. —

As a protection or barrier against the exercise of arbitrary power, the people of this state, in adopting the Alaska Constitution, guaranteed the right to be tried by an impartial jury of 12. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common-sense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Composition of jury. —

The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Jury must be “impartial”. —

A jury under the Alaska Constitution must be an “impartial” one. This is an expression of the notion of what a proper jury is — a body truly representative of the community. Such a notion is in keeping with the basic, traditional concept of a democratic society and representative government. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970); Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Failure to provide accused with an impartial jury constitutes a denial of his constitutional right to due process of law. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The extension to the states of the 6th amendment right to jury trial necessarily comprehends the guarantee that juries shall be impartial. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Representation of a fair cross section of the community on the jury list is an essential prerequisite to an impartial jury under the Alaska Constitution. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The constitutional standard in jury selection will be met if prospective jurors are drawn from a fair cross section of the community. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970); Alvarado v. State, 486 P.2d 891 (Alaska 1971).

An individual should not be forced, against his will, to stand trial before a jury which has been selected in such a manner as to exclude a significant element of the population of the community in which the crime was allegedly committed. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

It is well established that the right to an impartial jury trial guaranteed in criminal proceedings by the 6th amendment to the United States Constitution and this section embraces the concept of trial by a jury constituting a fair “cross section of the community.” Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

The key question addressed in constitutional challenges to jury selection is whether the prospective jurors were drawn from a fair cross section of the community. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Trial court abused its discretion when it refused to delay jury selection until after a storm abated because this violated the right to an impartial jury; the inclement weather prevented a particular contingent of the jury pool from attending court. Because the same inclement weather prevented the State’s primary witnesses from attending court, there would have been little additional delay if the trial court had delayed jury selection. Napoka v. State, — P.3d — (Alaska Ct. App. Aug. 7, 2013) (memorandum decision).

The contours of fair cross section of community are elusive and, indeed, they may not be susceptible of precise definition. Alvarado v. State, 486 P.2d 891 (Alaska 1971); Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Failure to seek continuance. —

Because defendant did not ask for a continuance so that additional village jurors could supplement the venire, the judge did not err in denying his mistrial motion; defense counsel never contended in the trial court that the jury list was unrepresentative of the community. Thiele v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018) (memorandum decision).

All differences among individuals need not be recognized. —

All differences among individuals, or every conceivable group in the community, need not be recognized for the purpose of representation on juries. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Social and cultural differences insufficient. —

Proof of social and cultural differences between location of defendant’s proposed change of venue and the rest of the state would not in and of itself be sufficient to require a change of venue. Dana v. State, 623 P.2d 348 (Alaska Ct. App. 1981), overruled in part, Booth v. State, 251 P.3d 369 (Alaska Ct. App. 2011).

Common-law vicinage. —

Vicinage in the historical sense is no longer a formal requirement. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The Alaska Constitution contains no formal provision for a jury of the vicinage. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The source of prospective jurors need not in all instances include residents of the place in which the crime was allegedly committed, for it is conceivable that the source of prospective jurors may exclude the scene of the alleged offense, yet still reasonably represent a cross section of the community which includes the scene of the offense. Thus, several decisions imply that selection of prospective jurors from a restricted area within a judicial district, even if the scene of the crime is omitted from that area, will be acceptable if there is no indication that the population of the restricted area differs significantly from the population of entire district. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The traditional starting point for determining the community from which jurors are to be selected is the scene of the alleged offense. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Determination of the method for selecting juries is a matter within the legislative prerogative, and the 1969 amendment to AS 09.20.050 was a lawful exercise of legislative authority. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

AS 09.20.050 designates Alaska’s four judicial districts as outer community boundaries for the purpose of selecting prospective jurors. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

It is manifest that the legislature, under AS 09.20.050 , intended Alaska judicial districts to comprise communities from which juries could be selected. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Judicial districts are not necessarily the only acceptable communities for the purpose of jury selection. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The practice of selecting jurors from more limited areas within Alaska judicial districts has been upheld. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

It is the community in which the crime was committed that the jury must represent. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The area surrounding location of the crime may be excluded from the source of selection when it appears that an unbiased jury could not be drawn therefrom. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Selecting jurors for cases arising within urban centers. —

For cases arising from crimes allegedly committed within the various urban centers of Alaska, the maintenance of geographical limits currently in force will be acceptable, provided, of course, that selection within the given areas is not itself discriminatorily conducted. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

And for cases arising outside urban and nonnative centers. —

As for cases arising outside the urban and predominately nonnative centers of Alaska, two acceptable and feasible alternatives may be employed in selecting jurors. First, jurors may be selected from among residents of the entire judicial district in which the crime is alleged to have occurred. A second alternative, one which is perhaps at the same time more desirable and more workable than the first, would be selection of jurors from the senate election district in which the crime is alleged to have occurred. Either of these alternatives would be calculated to produce jury panels satisfying the constitutional requirement of impartiality. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Relocation of trial due to defendant’s exercise of peremptory challenge. —

The fact that defendant’s trial jury was not representative of a fair cross section of the community in which the crime allegedly occurred was not error where as a result of defendant’s exercise of a peremptory challenge of the superior court judge who was originally assigned to try his case, the trial had been relocated to a judicial area which did not include the village that defendant lived in and in which the crime allegedly occurred. Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Selection within 50-mile radius would cause unreasonable transportation expenses. —

Departure from the provisions of Cr. R. 24.1 (rescinded), providing that a petit jury be selected from within a 50-mile radius of the urban center designated as the site of the criminal trial, because such selection would cause unreasonable transportation expenses did not deny defendant a jury representative of a fair cross section of the community, where jurors were drawn from a 30-mile radius instead, even assuming that the excluded occupants of native villages were a distinctive or “cognizable” group, the supreme court could not assume that the automatic exemption reflected a systematic exclusion. Therefore, defendant failed to show that representation of this cognizable group in his venire was not fair and reasonable under the Alaska and United States Constitutions. Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Fair cross section standard not necessarily compelled in civil trials. —

Neither the supreme court nor the United States supreme court has clearly held that the “fair cross section” standard is constitutionally compelled in civil trials. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

No right to favoritism toward accused. —

There is no constitutional right to a jury composed of a cognizable group that would tend to be “partial” or biased or prejudiced against the state and in favor of the accused in a criminal case. Webb v. State, 580 P.2d 295 (Alaska 1978).

Jurors from defendant’s religious community. —

Defendant did not meet his burden of proving that his right to a jury drawn from a fair cross-section of the community was violated because the jury selection procedure excluded all residents of his community and a fortiori all of the members of what he contended was a cognizable group, i.e. caucasian members of the Russian Orthodox church who resided in the community where Russian Orthodox parishes existed in both defendant’s community and the area from which the jury was selected and were served by the same priest, and defendant had failed to prove that whatever common attitudes, ideas, or experience which members of the Russian Orthodox church have would not be adequately represented by the members of the church in the area from which the jury was selected. Kelly v. State, 652 P.2d 112 (Alaska Ct. App. 1982).

Unconstitutionally defective jury. —

Under the strict criminal trial standards of impartiality, for a constitutional defect to exist in a jury, the method of choosing must be one that purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that a particular jury does not include a representative from all segments of the local population. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Although the contours of a fair cross section of the community are elusive and may not be susceptible to precise definition, any method of jury selection which is in reality a subterfuge to systematically and intentionally exclude some cognizable group or class of citizens in the community is clearly invalid. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Any method of jury selection which is in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Before the supreme court will find constitutional error in the jury selection process, the accused must establish: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Jury selection procedures held inadequate. —

See Erick v. State, 642 P.2d 821 (Alaska Ct. App. 1982).

Proof of systematic and intentional discrimination. —

While the courts have recognized that the only practical way a litigant may prove systematic and intentional discrimination is by showing a consistent lack of proportional representation through proof of objective results of the jury selection process, these cases all involved proof of objective results over a long period of time and with reference to a large number of juries. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

The mere fact that there were no blacks on either jury in a particular case would not establish a prima facie case of unconstitutional discrimination. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

The exclusion of all daily wage earners is inconsistent with the notion of a jury representing a cross section of the community. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Systematic exclusion of women effectively negates the possibility of a jury representing a fair cross section of the community. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Exclusion of certain military personnel. —

Exclusion from jury service of military personnel claiming a domicile outside Alaska did not constitute plain error since defendant failed to show that such military personnel represented a cognizable group of persons constituting a particular economic, social, religious, racial, geographical or political group in the community and no common thread or basic similarity in attitudes or ideas or experiences had been shown as giving rise to a bias against defendant as a defendant-member of the excluded class. Walker v. State, 652 P.2d 88 (Alaska 1982).

Voting list method of selection. —

There is nothing to indicate that under the voting list method of selection, a fair cross section of the community is not represented, nor that there is a systematic and intentional exclusion of a particular, cognizable group of persons. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Residency requirements for jurors. —

The practice of a judicial district to select as jurors only those persons who have been residents of Alaska for one year or more did not deprive defendant of his statutory and constitutional right of an impartial jury and was not in violation of his rights to equal protection of the laws, which rights are guaranteed by the 14th amendment to the federal constitution and Alaska Const., art. I, § 1. Webb v. State, 580 P.2d 295 (Alaska 1978).

Sentence greater than presumptive. —

When trial court imposed a sentence greater than the presumptive, defendant’s right to an impartial jury was violated; however, even though an aggravator should have been submitted to the jury, the error was held to have been harmless. Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006).

Motion to correct sentence was properly denied because any Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, right to jury trial error was rendered harmless by the trial court’s finding of an aggravator under AS 12.55.155(c)(20) , based on defendant’s stipulation because the underlying facts were not in dispute, that he was on felony parole at time of his felony driving under the influence offense under AS 28.35.030(n) , so an agreed-upon five-year sentence could be lawfully imposed under AS 12.55.125(e)(2) and 12.55.145(a)(1)(B) . Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007).

Acceptability of potential juror. —

To better protect a defendant’s right as guaranteed by the state constitution, the supreme court adopted standard 8-3.5(b) of the American Bar Association Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, which provides: Both the degree of exposure and the prospective juror’s testimony as to state of mind are relevant to the determination of acceptability. A prospective juror testifying to an inability to overcome preconceptions shall be subject to challenge for cause no matter how slight the exposure. If the prospective juror remembers information that will be developed in the course of the trial, or that may be inadmissible but does not create a substantial risk of impairing judgment, that person’s acceptability shall turn on the credibility of testimony as to impartiality. If the information of an opinion is admitted, the prospective juror shall be subject to challenge for cause unless the examination shows unequivocally the capacity to be impartial. A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror’s testimony as to state of mind. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Use of prior criminal conviction to impeach defendant’s credibility does not deny him equal protection of the laws, does not violate the privilege against self-incrimination, and does not deprive him of a fair and impartial jury. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Failure to grant challenges while impaneling jury. —

Where a number of jurors were familiar with the witnesses in the case, and several jurors were exposed to prejudicial pretrial information, the trial court’s failure to grant challenges while impaneling the jury raised a substantial doubt whether defendant was tried by an impartial jury, necessitating reversal of his conviction. Nelson v. State, 781 P.2d 994 (Alaska Ct. App. 1989).

Where none whom defendant unsuccessfully challenged for cause actually served on the jury, the impartial jury guarantee was fully protected. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Juror impartiality. —

Trial judge properly assessed the credibility of prospective jurors in a murder and sexual assault trial that received extensive pre-trial publicity; appellate court found no substantial reason to doubt the impartiality of the chosen jurors, and trial court did not abuse its discretion in refusing to change venue on this basis. Harmon v. State, 193 P.3d 1184 (Alaska Ct. App. 2008).

When change of venue or continuance granted. —

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. A showing of actual prejudice shall not be required. Mallott v. State, 608 P.2d 737 (Alaska 1980).

It was not an abuse of discretion for the trial judge to decide to stop jury selection in a small community due to the difficulty experienced in seating jurors because of local knowledge among the jurors, and widespread disqualifying relationships between the prospective jurors and the participants in the alleged crime. Ward v. State, 997 P.2d 528 (Alaska Ct. App. 2000).

Burden on party requesting change. —

When the trial court complies with the provisions of this section and Cr. R. 18.1(a) (rescinded), a party requesting a change of venue based on Alvarado v. State , 486 P.2d 891 (Alaska 1971), will have the affirmative burden of establishing that systematic exclusion from the jury of a distinct group or class of persons will occur unless venue is changed. Dana v. State, 623 P.2d 348 (Alaska Ct. App. 1981), overruled in part, Booth v. State, 251 P.3d 369 (Alaska Ct. App. 2011).

The burden is upon the state to show that it was not reasonable to obtain a jury of 12 from an area once that area had been selected as the site of the trial. Erick v. State, 642 P.2d 821 (Alaska Ct. App. 1982).

The burden is on the defendant to show that a “distinctive” or “cognizable” group has been systematically excluded in the jury selection process. Erick v. State, 642 P.2d 821 (Alaska Ct. App. 1982).

In order to be entitled to an evidentiary hearing on a claim that a systematic exclusion from the jury of a distinct group or class of persons will occur unless venue is changed, the moving party should at a minimum be prepared to make a clear and nonconclusory showing, by affidavit or other reliable offer of proof, that the party is capable of producing evidence which, if true, would require venue to be changed. Dana v. State, 623 P.2d 348 (Alaska Ct. App. 1981), overruled in part, Booth v. State, 251 P.3d 369 (Alaska Ct. App. 2011).

Reversible error. —

In the absence of “inherently prejudicial pre-trial publicity” so inflammatory that a subsequent trial in that locale would be, or would appear to be, but a hollow formality, the supreme court will not find reversible error merely because the trial judge chose to proceed with voir dire to determine the impact of the publicity. Mallott v. State, 608 P.2d 737 (Alaska 1980).

III.Information

Accused must be informed of charges. —

Nothing is more fundamental to Alaska’s system of justice than the requirement that the accused be informed of the charges against him. Alto v. State, 565 P.2d 492 (Alaska 1977).

IV.Bail

Legislative history of this section. —

See Martin v. State, 517 P.2d 1389 (Alaska 1974).

Society’s interest in pretrial freedom for persons accused of crimes is strong. Doe v. State, 487 P.2d 47 (Alaska 1971).

The presumption of innocence, central to a state’s system of criminal justice, dictates in favor of pretrial release. Doe v. State, 487 P.2d 47 (Alaska 1971).

Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Doe v. State, 487 P.2d 47 (Alaska 1971).

Central consideration with respect to pretrial release. —

In adult criminal prosecutions, the central consideration with respect to pretrial release is whether the defendant will appear for trial. This is true for setting the amount of bail and for ruling on applications to be released on one’s own recognizance. Doe v. State, 487 P.2d 47 (Alaska 1971).

The purpose of bail in the administration of criminal justice is to insure the defendant’s appearance at trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Excessive bail may not be imposed under either the United States or Alaska constitutions. Doe v. State, 487 P.2d 47 (Alaska 1971).

“Excessive bail.” —

Excessive bail has been held to be that which goes beyond the amount reasonably necessary to assure the defendant’s presence at trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Security for bond. —

The right to release is heavily favored and the requirement of security for the bond may, in a proper case, be dispensed with. For there may be other deterrents to jumping bail: Long residence in a locality, the ties of friends and family, the efficiency of modern police. All these in a given case may offer a deterrent at least equal to that of the threat of forfeiture. Doe v. State, 487 P.2d 47 (Alaska 1971).

All persons accused of a criminal offense are entitled to be released on bail. Doe v. State, 487 P.2d 47 (Alaska 1971).

No release for capital offenses where the proof is evident or the presumption great. See Doe v. State, 487 P.2d 47 (Alaska 1971).

The Alaska Constitution without doubt guarantees to every accused person the right to be released on bail, except for capital offenses where the proof is evident or the presumption great. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Since there are no capital offenses in Alaska at this time, every criminal offense carries the right to bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Implied limitation on right to bail would contravene section. —

An implied limitation on the right to bail would necessarily contravene both the plain language of this constitutional provision and its intended purpose as stated at the constitutional convention. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Order denying bail to one accused of a crime, but not yet convicted, is in violation of this section and the provisions of the Alaska Bail Reform Act. Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Release on indigent’s own recognizance. —

An indigent defendant does not have an absolute right to be released on his own recognizance prior to trial. Reeves v. State, 411 P.2d 212 (Alaska 1966); Gilbert v. State, 540 P.2d 485 (Alaska 1975).

While an adult criminal defendant has a constitutional right to be released on bail (except in certain capital cases), he does not have an absolute right to be released on his own recognizance, without bail, if he is financially unable to post the bond. Doe v. State, 487 P.2d 47 (Alaska 1971).

A child has the right to remain free pending adjudication that the child is delinquent, dependent, or in need of supervision, where the facts supporting the petition involve an act which, if committed by an adult, would be a crime, and where the court has been given reasonable assurance that the child will appear at future court proceedings. If the facts produced at the inquiry show that the child cannot return or remain at home, every effort must be made to place the child in a situation where his freedom will not be curtailed. Only if there is clearly no alternative available may the child be committed to a detention facility and deprived of his freedom. Doe v. State, 487 P.2d 47 (Alaska 1971).

Considerations in determining amount of bail. —

Although trial judge may not deny bail to an accused prior to conviction, he can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Evidence in bail proceedings to the effect that an accused is a danger to the community has been decreed relevant by the legislature for the purpose of determining either the amount of bail or conditions of release. Carman v. State, 564 P.2d 361 (Alaska 1977).

On remand, trial court was ordered to reconsider bail for defendant as it could not be discerned from the record why the trial court believed that bail in amounts totaling $ 1,300,000 was the least restrictive bail necessary in light of the otherwise structured and restrictive supervision plan in place; it also did not appear that the trial court meaningfully integrated the consideration of defendant's ability to pay. Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018).

Bail amount constituted abuse of discretion. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

Alaska Const., art. I, § 12 to be considered. —

The excessive bail provision in § 12 of this article insures the fixing of a reasonable bail and is to be considered in conjunction with the right to bail provision of this section. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Opportunity to raise bail before booking. —

When one is arrested and brought to a jail for a minor offense for which bail has already been set in a bail schedule, he should be given a reasonable opportunity to post bail before being booked and searched. This rule should normally be followed unless exigencies demand a different course of action. Zehrung v. State, 573 P.2d 858 (Alaska 1978).

The ability of an arrestee to obtain a prompt release by posting bail for a petty offense should not depend on the fortuitous circumstance of one having sufficient money on his person to post the bail at the time he arrives at the jail. Many people do not carry much cash on their person. Those persons should be permitted access to a telephone in order to get in touch with a relative, an employer, a friend, or an attorney, who could come to the stationhouse within a reasonable time and put up the necessary bail. Whether circumstances justify a variance will depend on the particular facts involved. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Where a jail had been provided with a bail schedule for petty offenses, the purpose of which was to afford an arrestee the opportunity to avoid incarceration by posting the established bail without need to appear before a magistrate, if one is arrested for a petty offense and has sufficient funds on his person to post the established bail when brought to the jail facility, he should be released immediately. There is no reason to subject such an arrestee to booking procedures with the resultant inventory search of his person since he is not to be incarcerated. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

No right to post-conviction bail. —

The bail clause in the Alaska Constitution does not afford a right to post-conviction bail. State v. Wassillie, 606 P.2d 1279 (Alaska 1980).

Criminal defendants are not guaranteed the right to post-conviction bail by either the Eighth Amendment to the Unites States Constitution or Article I, Section 12 of the Alaska Constitution.Hosier v. State, 976 P.2d 869 (Alaska Ct. App. 1999).

No right of bail to probation revocation proceedings under this section. Martin v. State, 517 P.2d 1389 (Alaska 1974).

This section guarantees the accused in a criminal prosecution the right to bail. However, a probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Bail should be withheld pending revocation proceedings only in unusual cases. Martin v. State, 517 P.2d 1389 (Alaska 1974).

The denial of bail may constitute a needless disruption of the probation process negating the program’s objectives of rehabilitation and eventual integration into society. Martin v. State, 517 P.2d 1389 (Alaska 1974).

1967 amendments to AS 12.30.020 providing for release of a person charged with an offense before trial do not permit the detention of persons without bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

The 1967 amendments to AS 12.30.020(a) and 12.30.020(b)(6) added another factor, “danger to the community,” to be considered in determining whether an accused person is entitled to be released on personal recognizance or on an unsecured appearance bond and in determining whether additional conditions should be imposed on a defendant, respectively. Neither provision may be read as empowering a judicial officer to deny bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Denial of bail prior to conviction is unconstitutional. —

Former AS 12.30.011(d)(2) (amended 2018) is unconstitutional as it presumes that a defendant cannot be released on bail, and Alaska Const. art. I, § 11, contains a specific guarantee of pre-conviction bail. Hamburg v. State, 434 P.3d 1165 (Alaska Ct. App. 2018).

Court may not conduct in camera bail hearings. —

Neither Alaska’s Bail Reform Act, AS 12.30, nor the Rules of Criminal Procedure authorize the trial courts of Alaska to conduct in camera bail hearings. Carman v. State, 564 P.2d 361 (Alaska 1977).

Acceptance of ex parte in camera evidence in conjunction with bail hearings is antithetical to well established concepts of a fair adversarial hearing. Carman v. State, 564 P.2d 361 (Alaska 1977).

Rather, accused is entitled to confront all witnesses. —

Alaska’s Bail Reform Act, AS 12.30, contemplates a hearing at which bail matters are to be determined. At such hearings, the accused is entitled to confront all witnesses who have given testimony regarding the amount of bail, or the terms and conditions of bail, as well as to refute such testimony and to present rebuttal evidence. Carman v. State, 564 P.2d 361 (Alaska 1977).

The setting of bail at a Cr. R. 5 proceeding is not an adversary confrontation wherein potential substantial prejudice to the defendant’s basic right to a fair trial inheres, but rather is limited to the issue of interim confinement. Moreover, bail may be reviewed by appointed counsel as soon as 24 hours after the initial determination. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Independent assessment of conditions of release required. —

At a first bail review hearing, a judicial officer is required to assess a defendant's conditions of release anew; at a defendant's first bail review hearing, a court is required to conduct an independent assessment of the defendant's conditions of release, and the court may not simply defer to the bail conditions imposed at a defendant's first court appearance. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

V.Confrontation

Right generally. —

The constitution forbids denying the accused face-to-face confrontation with an accuser in a criminal trial absent specific evidence and an express finding that the probable effect of the defendant’s presence on the witness would significantly impair the substance of the witness’s testimony. A mere finding of some general, or de minimis, effect will not suffice. Likewise, generalized, subjective impressions or assumptions will not substitute for case-specific evidence. Blume v. State, 797 P.2d 664 (Alaska Ct. App. 1990).

The right of confrontation is a fundamental right essential to a fair trial in a criminal prosecution. Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969).

And existed at common law. —

The right of a defendant to be present at all stages of the proceedings existed at common law. Lee v. State, 509 P.2d 1088 (Alaska 1973).

It has been implemented by Cr. R. 38. —

The right of confrontation conferred by this section and the 6th amendment to the United States Constitution has been implemented by Alaska Cr. R. 38, which is essentially similar to Fed. R. Crim. P. 43. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Right limited to criminal trials. —

The constitutional right of an accused to confront and cross-examine the witness against him is expressly limited to criminal trials. Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989).

Right to confrontation. —

Trial court did not err in admitting the statements a wife made to a police officer because the Confrontation Clause of the Alaska constitution does not bar the admission of such statements. Luch v. State, 413 P.3d 1224 (Alaska Ct. App. 2018).

Enforcement of right. —

The confrontation guarantee of the 6th amendment is enforceable against the states under the 14th amendment according to the same standards employed in the federal system. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Sixth amendment applicable to states. —

Since 1965, the 6th amendment has been fully applicable to the states under the due process clause of the 14th amendment to the United States Constitution.Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Supreme court not bound by United States Supreme Court’s interpretation of section. See Lemon v. State, 514 P.2d 1151 (Alaska 1973).

A criminal defendant has the right to confront the witnesses against him. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

This section guarantees an accused the right of confrontation in all criminal matters, which entails the right of cross-examination. Evans v. State, 550 P.2d 830 (Alaska 1976).

Purpose of confrontation. —

The main and essential purpose of the provision that the accused has the right to be confronted with the witnesses against him is to secure for the accused the right of cross-examination. McBride v. State, 368 P.2d 925 (Alaska 1962), cert. denied, 374 U.S. 811, 83 S. Ct. 1702, 10 L. Ed. 2d 1035 (U.S. 1963).

The right of confrontation is meant to protect the defendant’s interest in being able to test, by cross-examination, the testimony of those appearing against him. Lanier v. State, 486 P.2d 981 (Alaska 1971); Keith v. State, 612 P.2d 977 (Alaska 1980).

The primary interest served by this section is to afford a defendant the right of cross-examination. Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969).

The right to confrontation generally serves to give a defendant charged with crime an opportunity to cross-examine the witnesses against him and to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of the prior statement. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Confession of accomplice implicating criminal defendant is not a firmly rooted exception to the hearsay rule. Thus, “particularized guarantees of trustworthiness” must be shown before the requirements of the confrontation clause can be met. In determining whether “particularized guarantees of trustworthiness” exist, the totality of the circumstances must be considered; however, the relevant circumstances include only those that surround the making of the statement and render the declarant particularly worthy of belief. Linton v. State, 880 P.2d 123 (Alaska Ct. App. 1994), reaff'd, 901 P.2d 439 (Alaska Ct. App. 1995).

Effect of out-of-court testimony. —

Except pursuant to one of the constitutionally acceptable exceptions to the hearsay rule, the use of out-of-court testimony “would reduce the right of cross-examination guaranteed by the confrontation clause to a nullity.” Blue v. State, 558 P.2d 636 (Alaska 1977).

In a murder-arson trial, defendant’s confrontation rights were not violated by the trial court’s admission of hearsay statements of his wife and a third party implicating both defendant and his wife in the crimes. The third-party witness was available at trial for cross-examination; whereas, the recorded statements of the wife possessed guarantees of trustworthiness that satisfied defendant’s confrontation rights. Porterfield v. State, 68 P.3d 1286 (Alaska Ct. App. 2003).

Applicability of rights. —

Although the rights to confrontation and cross-examination traditionally arise in response to witness testimony, they also apply to other evidence. Catlett v. State, 585 P.2d 553 (Alaska 1978).

The right of confrontation applies not only to witness testimony, but also to other evidence which the prosecution seeks to introduce against the accused. Keith v. State, 612 P.2d 977 (Alaska 1980).

Where photographs taken of the location where stolen property was found were not introduced into evidence nor were they utilized at trial nor did the police who took the pictures prepare their testimony from these photographs, the foundation for the confrontation and cross-examination rights, i.e., the utilization or introduction of evidence or the taking of testimony based on that evidence, was not present. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Where the state did not seek to introduce any evidence of the victim’s character; it was the defense which raised the victim’s possible insanity and potential for violence in the form of the affirmative defenses of justifiable or excusable homicide, defendant’s attempt to introduce a journal kept by the victim did not serve to “confront” any evidence the prosecution was offering. Keith v. State, 612 P.2d 977 (Alaska 1980).

Right applies to children’s proceedings where incarceration is possible. —

The right of confrontation applies to children’s proceedings in which the child is charged with misconduct for which he may be incarcerated. P.H. v. State, 504 P.2d 837 (Alaska 1972).

A minor is entitled to various constitutional procedural protections, including the confrontation right. In re J. H. B., 578 P.2d 146 (Alaska 1978).

Rearranging the seating of a minor for purposes of testifying. —

A defendant’s constitutional right to confront the witnesses against him was not violated where, in his trial for assault on his wife, his son testified from a smaller chair arranged perpendicular to where the defendant was sitting, and the trial judge’s finding that the child’s position relative to his father was “not really different from where their positions would be if he were in the regular witness chair” was not clearly erroneous. Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992).

The right of confrontation protects two vital interests of defendant. First, it guarantees him the opportunity to cross-examine the witnesses against him so as to test their sincerity, memory, ability to perceive and relate, and the factual basis of their statements. Second, it enables the defendant to demonstrate to the jury the witness’ demeanor when confronted by the defendant so that the inherent veracity of the witness is displayed in the crucible of the courtrooms. Lemon v. State, 514 P.2d 1151 (Alaska 1973); Blue v. State, 558 P.2d 636 (Alaska 1977); Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Contemporaneous cross-examination not required. —

The interests protected by the right of confrontation are not so absolute that they require that each witness’ statements be subject to contemporaneous cross-examination. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Right to effective cross-examination is generally essential. —

While the demeanor interest of the right of confrontation is not a crucial element, the right to effective cross-examination is essential unless the testimony falls within certain established exceptions to the hearsay rule. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Right to cross-examine declarant is not indispensable element of the confrontation clause, in certain narrow instances, where testimony is admitted via an established exception to the hearsay rule. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Certain narrowly-defined exceptions to the hearsay rule may satisfy the confrontation clause even in the absence of cross-examination, in the light of the factual circumstances of the case. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

In general, out-of-court statements which are admitted for nonhearsay purposes or long-established exceptions to the hearsay rule do not violate the accused’s right to confront the prosecution’s witnesses. Betts v. State, 799 P.2d 325 (Alaska Ct. App. 1990), cert. denied, Hinchey v. Arizona, 499 U.S. 963, 111 S. Ct. 1589, 113 L. Ed. 2d 653 (U.S. 1991).

Admission of excited utterance. —

The trial court did not violate the defendant’s right to confront the witnesses against him by allowing testimony as to an excited utterance made by a witness who was willing to testify but not called by the defendant. Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992).

Prior statement by a witness may be admissible as substantive evidence where the declarant is testifying at the present hearing and admits having made a prior statement, or where he is testifying favorably to the defendant and denies the prior statement. In either case, the defendant has the right effectively to examine the declarant regarding the circumstances surrounding the statement, and the jury has the opportunity to judge the declarant’s demeanor. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Prior testimony given at a hearing where the defendant had the effective right to cross-examine the declarant is admissible at a subsequent trial where the declarant is actually unavailable or is testifying but effective cross-examination is impaired by the declarant’s lack of recollection as to the statement. In these instances, the interest in displaying the declarant’s demeanor to the jury may not be fully protected since the cross-examination does not occur before the jury. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

The confrontation clauses of the state and federal constitutions have been interpreted to permit the prosecution to use prior testimony of witnesses who cannot be located only if the state has exercised due diligence in trying to find them. Green v. State, 579 P.2d 14 (Alaska 1978).

Hearsay statements of child victim. —

In a criminal prosecution for sexual abuse of a minor, the court was permitted to hear evidence of the child-victim’s hearsay statements of the abuse without violating defendant’s right of confrontation. Vaska v. State, 74 P.3d 225 (Alaska Ct. App. 2003).

Hearsay testimony held not admissible. —

Hearsay testimony of an alleged accomplice’s statements when the declarant was not available for effective cross-examination due to the privilege against self-incrimination was held not admissible. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Where, at trial, two officers testified on behalf of the state to statements made by an individual to defendants to the effect that a third person had told that individual that the defendants had robbed a club, which statements defendants denied, and where neither the individual who made the statement nor the third person testified at trial or were available for cross-examination, introduction of the statements was classic hearsay, violated defendants’ rights to confrontation, and was not “harmless beyond a reasonable doubt.” Blue v. State, 558 P.2d 636 (Alaska 1977).

In a prosecution for sexual assault, where the deceased victim’s statements to the police were not so obviously trustworthy that little would have been gained by subjecting them to inquiry through cross-examination, admission of the statements violated the confrontation clauses of the United States and Alaska Constitutions. Ryan v. State, 899 P.2d 1371 (Alaska Ct. App. 1995).

Admission of hearsay was harmless error. —

Admission at trial of an individual’s statements that he had been told that defendant and codefendant had committed the robbery was erroneous, but the error was “harmless beyond a reasonable doubt.” Benefield v. State, 559 P.2d 91 (Alaska 1977).

Confrontation clause and evidentiary hearsay rule not equated. —

While it is apparent that the 6th amendment confrontation clause and the evidentiary hearsay rule stem from the same roots, both the Alaska supreme court and the United States supreme court have declined to equate the two. P.H. v. State, 504 P.2d 837 (Alaska 1972).

The United States supreme court has explicitly rejected the contention that the confrontation clause and the rules of hearsay evidence are identical. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

A violation of the hearsay rule is not per se a violation of the confrontation clause. The converse is also true, and satisfying the hearsay rule does not automatically indicate that the confrontation clause is satisfied. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

A defendant’s confrontation right is not automatically violated wherever hearsay evidence is admitted. Rather, the court must balance the nature of the evidence, the relationship to other evidence, the opportunity to examine the statement, and its importance to the central issue. In re J. H. B., 578 P.2d 146 (Alaska 1978).

Evidence admissible under joint undertaking exception to the hearsay rule does not automatically satisfy the requirement of the confrontation clause. To satisfy the right to confrontation, a statement must have sufficient indicia of reliability. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Statements admissible under an exception to the hearsay rule must bear an indicia of reliability such that the unavailability of the declarant for cross-examination does not deprive the jury of a satisfactory basis for evaluating the truth of the extra-judicial declarations. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Factors indicative of reliability are that: (1) The declaration contained no assertion of a past fact, (2) the declarant had personal knowledge of the identity and role of participants in the crime; (3) the possibility that the declarant was relying upon faulty recollection was remote; and (4) the circumstances under which the statements were made did not provide reason to believe that the declarant had misrepresented the defendant’s involvement in the crime. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Balancing test. —

In determining that testimony does or does not violate the confrontation clause, a balancing process has been approved which reviews the nature of the evidence, the relationship of other evidence, the opportunity to examine the statement, and the importance to the central issue of the trial. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Use of witness’s grand jury testimony violated defendant’s right to confront his accusers because, since the witness was not called to testify at the trial, defendant never had the opportunity to challenge this testimony by cross-examination, or to place before the jury the demeanor of the witness. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

No “interlocking confessions” doctrine. —

The supreme court declined to adopt a per se “interlocking confessions” doctrine as an exception under the Alaska Constitution to the rule that in a joint trial the introduction of inculpatory admissions by a codefendant who did not take the stand violated the 6th amendment rights of the defendant, who was thus unable to cross-examine. Quick v. State, 599 P.2d 712 (Alaska 1979).

The supreme court was unable to conclude that the right to confrontation, as it is preserved in this section, is never infringed when a codefendant’s factually similar confession is admitted in a joint trial. Quick v. State, 599 P.2d 712 (Alaska 1979).

Confessions or other inculpatory statements of a codefendant which are used at trial violate a defendant’s right of confrontation, if the codefendant is never subject to cross-examination. Benefield v. State, 559 P.2d 91 (Alaska 1977).

Nonculpatory statements did not violate defendant’s right. —

Codefendant’s statements denying involvement in a robbery and to the effect that codefendant owned no firearms did not violate defendant’s right of confrontation. Benefield v. State, 559 P.2d 91 (Alaska 1977).

Error in admitting codefendant’s statements was harmless “beyond a reasonable doubt” where the contested statements by codefendant were identical to defendant’s own admissions. Benefield v. State, 559 P.2d 91 (Alaska 1977).

Destruction of tape of codefendant’s confession. —

Where codefendant’s taped confession was destroyed after transcription, and was not used at trial except that the prosecution was permitted to establish that the statement had been made and the codefendant would sign it as accurate based on his observations and intent on the night the crime was committed, defendant was not deprived of his right to be confronted with witnesses against him, nor was he deprived of evidence that might have led the jury to entertain a reasonable doubt about his guilt. Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980).

Admission of co-conspirator statements did not violate defendant’s confrontation rights under either the United States or Alaska constitutions, where the statements satisfied the standards of reliability adopted in Hawley v. State, 614 P.2d 1349 (Alaska 1980). Stumpf v. State, 749 P.2d 880 (Alaska Ct. App. 1988), cert. denied, 490 U.S. 1070, 109 S. Ct. 2075, 104 L. Ed. 2d 639 (U.S. 1989).

Admission of a co-conspirator’s out-of-court statements did not violate defendant’s rights under the confrontation clause, where the statements did not implicate defendant in an alleged homicide and there was no basis for concluding that the statements misrepresented defendant’s involvement in the homicide. Arnold v. State, 751 P.2d 494 (Alaska Ct. App. 1988).

Conflict between witness’s privilege against self-incrimination and accused’s right of effective cross-examination. See Lemon v. State, 514 P.2d 1151 (Alaska 1973); Thomas v. State, 522 P.2d 528 (Alaska 1974).

Defendant not denied effective assistance of counsel. —

Appellant's post-conviction application failed to state a prima facie case of ineffective assistance of counsel. Appellant did not plead any facts showing that her attorney's tactical assessment in advising appellant not to testify was unreasonable or otherwise unsound. Cleveland v. State, — P.3d — (Alaska Ct. App. Jan. 3, 2018) (memorandum decision).

Right to confront controls over privilege based on public policy. —

When conflict is found between the constitutional right of confrontation and the exercise of a privilege based on public policy, the constitutional right must control. Salazar v. State, 559 P.2d 66 (Alaska 1976).

When defendant’s right to confront effectively witnesses against him by exploring their possible bias or prejudice is balanced against a rule based solely on policy grounds, such as marital privilege, defendant’s constitutional rights must prevail. Salazar v. State, 559 P.2d 66 (Alaska 1976).

Thus, wife could be questioned as to husband’s statement. —

Trial court erred in granting a protective order which prohibited defendant, who was charged with first-degree murder, from questioning his wife concerning her husband’s statement to her that he had committed the murder. Salazar v. State, 559 P.2d 66 (Alaska 1976).

The witness has no right to seek the court’s protection from questions which would reveal any bias or prejudice. Salazar v. State, 559 P.2d 66 (Alaska 1976).

One traditional method of impeachment is to demonstrate that a witness harbors bias or prejudice toward one of the parties or a personal interest in the outcome of the trial which can be expected to color his testimony and undermine its reliability. Evans v. State, 550 P.2d 830 (Alaska 1976).

It is essential to a defendant’s right to a fair trial that he be allowed every opportunity to show bias on the part of a witness testifying against him. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

If defendant’s counsel was unduly limited in his right of cross-examination to show bias on a witness’ part by the failure of the state to produce certain documentary material, then there must be a reversal and a new trial. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Defendant’s conviction of six counts of sexual abuse of a minor was reversed where the trial court limited defendant’s ability to advance his theory of bias on the part of a juvenile witness who had entered into a conduct agreement with the state to delay delinquency proceedings resulting from charges that the witness had abused a minor; without evidence of the pending conduct agreement, the jury could have no basis for concluding that the witness had any reason to accommodate the state by fabricating his claim of abuse against the defendant. Wood v. State, 837 P.2d 743 (Alaska Ct. App. 1992).

Denial of access to impeachment evidence. —

Denial of defendant’s request for in camera review of the juvenile file of a prosecution witness for purposes of defendant’s impeachment of the witness at sentencing did not violate his right of confrontation. Cockerham v. State, 933 P.2d 537 (Alaska 1997).

But cross-examination as to bias is not unqualified. —

Although cross-examination to show bias in a particular case should be given greater latitude than a general, broadside attack on the credibility of a witness, even the right to cross-examine as to bias is not absolute and unqualified. Evans v. State, 550 P.2d 830 (Alaska 1976).

It does not entail right to harass, annoy, etc. —

The right to cross-examine as to bias does not entail the right to harass, annoy or humiliate a witness on cross-examination, nor to engage in repetitive questioning, nor to inquire into matters which would expose the witness to danger of physical harm. Misconduct which is so old that it has little probative bearing on a witness’ present impartiality is probably excludable. Evans v. State, 550 P.2d 830 (Alaska 1976).

Standard used when right to confront principal accuser denied. —

When a criminal defendant is denied his constitutional right to confront and cross-examine his principal accuser, the Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) standard controls the effect of that error. That standard requires reversal unless the appellate court can declare a belief that the error was “harmless beyond a reasonable doubt.” Evans v. State, 550 P.2d 830 (Alaska 1976).

Trial court unduly restricted the scope of cross-examination of the state’s chief witness, an undercover state operative, in violation of defendant’s right of confrontation guaranteed by the United States and Alaska constitutions, by a protective order and superior court rulings prohibiting defendant from inquiring into the matters concerning the operative’s past convictions, his narcotics addiction, the circumstances under which he went to work for the police, and his modus operandi as an operative. Evans v. State, 550 P.2d 830 (Alaska 1976).

Right to establish witness’s bias. —

Defendant in prosecution for sale of marijuana not denied right to establish bias on part of state trooper. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Destruction of evidence. —

In a prosecution for burglary in a dwelling, where a state trooper destroyed a piece of cardboard that allegedly was marked with a bootprint after he had determined that the bootprint had dried and was no longer visible, such destruction did not deny to defendants the right of confrontation or cross-examination, since the missing piece of evidence did not establish any presumption against them. Linden v. State, 598 P.2d 960 (Alaska 1979).

Where trial court knew in advance of witness’s intended refusal to answer questions, holding the attempted questioning out of the jury’s presence was not error. Williams v. State, 600 P.2d 1092 (Alaska 1979).

Cross-examination improperly restricted. —

In a prosecution for operation of a motor vehicle while intoxicated, the court improperly restricted defendant’s cross-examination of the person who administered the breathalyzer test when it sustained the state’s objection to defendant’s line of inquiry, where defendant was seeking through his attempted questioning to raise doubts in the jury’s mind regarding the reliability of the test. Keel v. State, 609 P.2d 555 (Alaska 1980).

Cross-examination of prosecution witness on probation. —

The United States supreme court in Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), held that the constitutional right of confrontation required that defense counsel be allowed to investigate the potential bias of a crucial prosecution witness, even where that potential bias arose out of a juvenile adjudication and its resultant probationary status. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

The United States supreme court concluded that Alaska’s interest in protecting the anonymity of the juvenile offender was outweighed by the more critical need to afford a criminal defendant reasonable inquiry into the motives of prosecution witnesses. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

The constitutional requirement of disclosure in Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), is created not by the juvenile adjudication itself but by the probationary status of the juvenile at the time of Davis’ trial, with its potential for motivating false testimony. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

In Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), the United States supreme court held that an accused’s right of confrontation was violated when a trial court of this state refused to allow exploration of a witness’ juvenile adjudication and probationary status, where that status had significant potential for influencing the witness’ testimony. Thomas v. State, 522 P.2d 528 (Alaska 1974).

Steps can be taken to avoid prejudice to witness. —

Where there is a true need to explore facts which are within the ambit of the witness’ privilege against self-incrimination, it may be necessary to accord the defendant the right to require answers to potentially incriminating questions. In such a case steps can be taken to avoid any prejudice to the witness. Thomas v. State, 522 P.2d 528 (Alaska 1974).

Extent to which defense counsel can accomplish objectives without infringing on witness’ privilege. See Thomas v. State, 522 P.2d 528 (Alaska 1974).

Where the witness was not on juvenile probation, it cannot be seriously argued that the fact of previous juvenile convictions, standing alone, provided any inference of potential bias. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

State’s interest in secrecy of juvenile adjudications need not always fall before confrontation right. See Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

The decision in Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), must not be read so broadly as to totally abrogate the traditional right of trial courts to exercise discretionary control over the type and manner of evidentiary presentation. Thomas v. State, 522 P.2d 528 (Alaska 1974).

Attempted impeachment of general credibility by proof of prior convictions. —

Juvenile adjudications which are stale by Alaska’s standards, and directed solely at general credibility rather than bias, are generally not sufficiently probative to create a genuine conflict with the defendant’s right of confrontation. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

As a general rule, trial courts could properly refuse evidence of stale convictions or juvenile adjudications where these were offered for the purpose of discrediting a witness generally, rather than to show some specific potential for bias or prejudice toward the defendant. Thomas v. State, 522 P.2d 528 (Alaska 1974).

No constitutionally based duty to produce all possible witnesses at trial. See Thomas v. State, 522 P.2d 528 (Alaska 1974).

A defendant has a right to be present when any type of communication occurs between the court and the jury during its deliberations. Cox v. State, 575 P.2d 297 (Alaska 1978).

Where mistaken identity and alibi were the main defenses of a defendant charged with assault with intent to rape, the superior court’s ex parte communication to the jury made in response to their request for playback of testimony of alibi witnesses constituted reversible error. Cox v. State, 575 P.2d 297 (Alaska 1978).

Under both the United States Constitution and the Alaska Constitution, the right of a defendant to be present at every stage of the trial has been recognized. Included within the scope of this right is the period of jury deliberations; thus, the defendant has the right to be present whenever any communication between the court and the jury occurs during those deliberations. Dixon v. State, 605 P.2d 882 (Alaska 1980).

It is constitutional error for the judge to communicate with the jury or permit the playback of testimony to the jury in the defendant’s absence. Cox v. State, 575 P.2d 297 (Alaska 1978).

In the absence of an express waiver by a defendant in a criminal case, it is constitutional error for a judge to permit the playback of testimony in the defendant’s absence. Richardson v. State, 579 P.2d 1372 (Alaska 1978).

Trial court erred in responding to a written communication from the jury during its deliberations requesting a playback of certain testimony without notifying defendant or either counsel and without allowing the parties to be present and to be heard on the matter, where the testimony requested was that of the defendant and the prosecutrix and the judge’s response was to inform the jury that he could not allow them to hear “all of the testimony of a witness to be replayed” and to suggest that the jury narrow its request. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Where jury communicated to judge that they felt threatened by presence in courtroom of defendant’s boyfriend and that at least one juror desired a police escort to her car after the rendering of the verdict against defendant, failure of the judge to inform defendant or her counsel of the communication was reversible error. Newman v. State, 655 P.2d 1302 (Alaska Ct. App. 1982); Jones v. State, 719 P.2d 265 (Alaska Ct. App. 1986).

While defendant’s federal and state constitutional right to be present throughout the trial was violated, and Alaska Crim. R. 38(a) was violated, because the court staff erred in providing the jury with a verdict form without authorization from the court and notice to defendant, the error was harmless beyond a reasonable doubt. Crouse v. Municipality of Anchorage, 79 P.3d 660 (Alaska Ct. App. 2003).

Right to be present at every stage of trial. —

The constitutional and statutory rights of the accused to be present and represented by counsel at every stage of the trial — including the return of the verdict — are fundamental. Koehler v. State, 519 P.2d 442 (Alaska 1974).

In Alaska, the right to be present at every stage of the trial is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Defendant’s presence was required at the proceedings when the trial court discharged the jury because of their inability to agree on a verdict. The events constituted a “stage of the trial.” Koehler v. State, 519 P.2d 442 (Alaska 1974).

Absence due to disruptive behavior of defendant. —

Trial court may exclude a criminal defendant for disruptive behavior, and although the court had to allow an excluded criminal defendant an opportunity to reclaim his right to be present if he demonstrated willingness to behave appropriately, it was not obliged to uncritically accept every promise to behave; the trial court did not abuse its discretion either by removing defendant from the courtroom or by refusing his later request to reenter where nothing in defendant’s words or in his recent or past conduct demonstrated that it was an abuse of discretion to decline to return him to the courtroom one more time. Douglas v. State, 214 P.3d 312 (Alaska 2009).

Basis of right to be present. —

In Alaska, the right to be present at trial is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him, as well as in the United States Constitution, the confrontation clause of the 6th amendment or the 14th amendment’s due process clause. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Common-law origins of right to be present at trial. —

See State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Such right has been implemented by Cr. R. 38. —

The constitutional right of a defendant to be present in the courtroom at every stage of the trial has been implemented as a procedural requirement by Cr. R. 38. State v. Hannagan, 559 P.2d 1059 (Alaska 1977); Osborne v. State, 623 P.2d 784 (Alaska 1981).

The constitutional right to be present at every stage of trial has been implemented by the provisions of Cr. R. 38(a), which provides that the “defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule.” Dixon v. State, 605 P.2d 882 (Alaska 1980).

A voluntary absence constitutes waiver of right to be present. Lee v. State, 509 P.2d 1088 (Alaska 1973).

While there is authority that the right to be present cannot be so waived in capital cases, the general view is that if a defendant “absconds” or “willfully makes himself unavailable” after the trial has begun, he cannot defeat the proceedings, and an implied waiver is established, at least in noncapital cases. Lee v. State, 509 P.2d 1088 (Alaska 1973).

A defendant cannot frustrate a trial in progress by absconding. Lee v. State, 509 P.2d 1088 (Alaska 1973).

But there must be clear evidence that absence is voluntary. —

Courts have been most reluctant to find that a defendant’s absence is “voluntary” in the absence of clear evidence on the record that he knew of the proceedings and exercised a decision to stay away. Lee v. State, 509 P.2d 1088 (Alaska 1973).

If a defendant at liberty remains away during his trial, the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to the present, and he must have no sound reason for remaining away. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Where it was doubtful if defendant even knew that the reading of the verdict was taking place and his appearance at the courthouse just as they were ending showed a lack of any intent to frustrate them or to “abscond,” there was no basis for a finding that his absence was “voluntary” so as to constitute a waiver of his right to be present under Cr. R. 38. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Court must decide if involuntary absence is reversible error. —

A court is required to decide whether the involuntary absence of the defendant at the discharge stage of trial constitutes reversible or prejudicial error. Koehler v. State, 519 P.2d 442 (Alaska 1974).

Right to be present is personal. —

There is persuasive authority that the defendant’s right to be present is a personal one which cannot be waived by counsel at least in the absence of the defendant’s presence at the time of the waiver or an express authorization by the defendant. Lee v. State, 509 P.2d 1088 (Alaska 1973). See also, Osborne v. State, 623 P.2d 784 (Alaska 1981).

Defendant’s attendance not required. —

Failing to require defendant’s attendance at a morning deposition of a district attorney for purposes of a contempt charge brought against defendant’s attorney was not error, although the hearing on the contempt charge was later combined with a hearing on the marital privilege issue presented by defendant’s case. Osborne v. State, 623 P.2d 784 (Alaska 1981).

Defendant’s absence from a pretrial conference held during a criminal trial did not rise to the level of plain error. Dolchok v. State, 639 P.2d 277 (Alaska 1982).

Ex parte hearing where witness claims privilege. —

Notwithstanding a criminal defendant’s right to be resent “at every stage of the trial” under Criminal Rule 38(a), and the defendant’s right to due process, a trial judge has the authority to hear ex parte a witness’s explanation of his basis for asserting a privilege not to testify. Taylor v. State, 977 P.2d 123 (Alaska Ct. App. 1999).

When attorney may waive client’s right in noncapital cases. —

It seems clear that while an attorney may waive his client’s right to be present in a noncapital case, the waiver is effective only if either: (1) The defendant has given counsel express authority in a knowing and intelligent manner, (2) the defendant is present at the time of the waiver, has clearly been informed of his rights, and remains silent, or (3) the defendant subsequently acquiesces in the proceedings in a knowing and intelligent manner. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Failure of counsel to object to reading verdict in defendant’s absence. —

Any argument that the failure of defendant’s counsel to object to the verdict being received in his absence precludes review of that issue on appeal is necessarily included in the larger issue of whether the attorney had the power to expressly waive defendant’s right to be present. Otherwise, an attorney could accomplish by silence what he had no authority to do by words. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Waiver by counsel held clearly erroneous. —

To allow a substitute counsel to waive a defendant’s right to be present at the return of the verdict was clearly erroneous, where there was no evidence of express authorization or acquiescence by defendant, no evidence of “voluntary absence,” no evidence of a great detriment to the administration of justice, and no reasonable basis for a “trial strategy” argument. Lee v. State, 509 P.2d 1088 (Alaska 1973).

In light of the constitutional mandate of defendant’s personal waiver, waiver by defendant’s attorney of defendant’s presence during the playback of testimony to the jury was ineffective, and since the defendant did not effectively waive his presence, it was constitutional error for the judge to communicate with the jury or permit the playback of testimony in defendant’s absence. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Violation of right to be present is reversible error. —

Where defendant was deprived of his right to be present at the return of the verdict, a substantial right was violated, and the violation constituted reversible error. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Waiver of right of accused to be present at every stage of trial. —

See Brown v. State, 372 P.2d 785 (Alaska 1962).

Waiver. —

See Lanier v. State, 486 P.2d 981 (Alaska 1971).

Waiver of right by minor to attend waiver hearing under AS 47.10. —

Although a minor had a constitutional right to attend her waiver hearing, held pursuant to AS 47.10, she waived that right when she voluntarily failed to appear at the hearing by refusing to waive extradition from another state. N.P.A. v. State, 604 P.2d 599 (Alaska 1979).

The use of electronically recorded testimony of a witness from a former trial in which the jury failed to reach a verdict did not deprive the accused of his right to be confronted with the witness who testified against him since the accused had exercised his privilege by cross-examining the witness at the first trial. McBride v. State, 368 P.2d 925 (Alaska 1962), cert. denied, 374 U.S. 811, 83 S. Ct. 1702, 10 L. Ed. 2d 1035 (U.S. 1963).

Lack of court’s authority to conduct in camera bail hearings. —

See note under analysis line III, Bail.

Right to analyze components of breathalyzer machine. —

Where defendant was charged with operating a motor vehicle while intoxicated, denial of the right to make an analysis of some of the components of the breathalyzer machine, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Failure to allow introduction of records when direct testimony available. —

Defendant’s right to confrontation and cross-examination was not violated by the superior court’s failure to allow the introduction of hospital records reflecting statements of the victim of an assault with a dangerous weapon made subsequent to a recent suicide attempt, since the victim could have been questioned thoroughly about the statements in the hospital record. White v. State, 577 P.2d 1056 (Alaska 1978).

Superior court’s in camera examination of victim’s journal kept before, during, and after the events in question did not deprive defendant, convicted of kidnapping, assault with intent to rape, and forcible rape, of “effective confrontation” or of access to evidence which was potentially helpful to his defense. Morrell v. State, 575 P.2d 1200 (Alaska 1978).

Excusal of juror in defendants’ absence. —

See Coney v. State, 699 P.2d 899 (Alaska Ct. App. 1985).

Sentencing change constitutional where defendant notified. —

A defendant’s due process rights are not violated by a judge who initially imposes a concurrent sentence in the presence of the defendant and, subsequently realizing that he intended to impose a consecutive sentence, does so but not in the defendant’s presence, where the judge’s remarks before and during the pronouncement of sentence make it clear that he intends to impose a consecutive sentence, and the defendant is given notice of a change in his sentence. Merry v. State, 752 P.2d 472 (Alaska Ct. App. 1988).

Admission of breathalyzer packet does not violate right to confrontation. —

The admission of the breathalyzer packet as a foundation for the introduction of breathalyzer evidence in a drunk driving case is the introduction of a public record of factual findings recorded in the regular course of official business, made independently and well in advance of any particular prosecution, and does not violate the defendant’s right to confrontation. State v. Huggins, 659 P.2d 613 (Alaska Ct. App. 1982).

Admissibility of blood test results. —

Where blood sample was taken by and was in possession of hospital where defendant sought treatment following car accident, and where on the facts of the case, both defendant and state had opportunity to preserve the sample, trial court did not err in ruling that the blood test results were admissible even though the state had not sought preservation of the blood sample. Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983).

Introduction of victim’s grand jury testimony. —

Where victim claimed to be unable to recall incidents surrounding crime, introduction of victim’s grand jury testimony was proper and did not deprive defendant of his constitutional right of confrontation. Van Hatten v. State, 666 P.2d 1047 (Alaska Ct. App. 1983).

Hypnotically adduced evidence. —

Defendants are deprived of their constitutional right of confrontation under the Alaska Constitution when hypnotically adduced evidence is introduced. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Witnesses who have been previously hypnotized are permitted to testify only to facts which they related prior to hypnosis. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Requirements of AS 12.45.046 must be met by clear and convincing evidence. —

The preponderance of the evidence standard cannot provide sufficient protection against violation of a defendant’s right to confrontation, and no dilution of the right of confrontation should be permitted without an express finding that the requirements of the statute relating to the testimony of children in criminal cases, AS 12.45.046 , including the requirements of Maryland v. Craig , 497 U.S. 856 (1990), that are implicit therein, have been met by clear and convincing evidence. Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).

Exclusion of evidence concerning sexual assault victim’s foster care status as a ward of the state may have unduly infringed on defendant’s confrontation rights, where the victim may have had a special fear of adverse consequences because she was under foster care, and her wardship status strongly suggested that she had a motive to fabricate. Sledge v. State, 763 P.2d 1364 (Alaska Ct. App. 1988).

No exclusion of defendants during their child’s testimony. —

Exclusion of defendants from the courtroom while their five-year-old daughter testified at their trial for assault was reversible error, where the evidence did not establish that the effect of their presence in the courtroom was likely to substantially inhibit the child in effectively communicating her version of the events to the jury. Blume v. State, 797 P.2d 664 (Alaska Ct. App. 1990).

Introduction of seven-year-old girl’s grand jury testimony and a videotape of her police interview did not deprive defendant of his constitutional right to confrontation at his trial for sexual abuse of a minor. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

Similar crime committed on another victim. —

Exclusion of evidence of victim’s involvement in a sexual assault on another child deprived defendant of his right of confrontation at his trial for sexual abuse of a minor, where his defense was based on the premise that the victim fabricated her accusation in retaliation for defendant’s attempt to oust her from her foster home for sexual misconduct. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Right to be confronted with witnesses denied. —

In a trial for perjury, a defendant was denied the constitutional right to be confronted with witnesses against him where a policeman’s prior recorded testimony was admitted at trial without a showing that the policeman was unavailable. Bentley v. State, 706 P.2d 1193 (Alaska Ct. App. 1985).

Rape shield statute. —

When properly applied, the rape shield statute will not encroach on the confrontation clause, because there is no right to confront and cross-examine on irrelevant issues. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

VI.Compulsory Process

Right implemented by Cr. R. 16. —

Alaska Cr. R. 16, which pertains to the scope of discovery, essentially implements the right to compulsory process. Keith v. State, 612 P.2d 977 (Alaska 1980).

What compulsory process relates to. —

Compulsory process relates to obtaining both witnesses and documentary evidence in the accused’s favor and is intended to ensure a fair trial even when the accused is indigent, but it is normally a right associated with pretrial discovery. Keith v. State, 612 P.2d 977 (Alaska 1980).

Compulsory process applies to documentary evidence. —

While the constitutional provisions speak of compulsory process for “obtaining witnesses” in a defendant’s favor, this clause has been construed as applying as well to documentary evidence. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

The error of a court in denying discovery of documents relevant to the defense would be in violation of defendant’s federal and state constitutional right to be allowed “compulsory process” to obtain such evidence. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Disclosure when not harmful to law enforcement or protection efforts. —

If the district attorney fails to show that disclosure will harm enforcement or protection efforts, the material must be disclosed. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Disclosure is required if the judge’s in camera inspection shows that the material is relevant to the defense — whether or not the prosecutor has demonstrated that discovery will be inconsistent with enforcement or protection efforts. In the latter circumstance, the state must decide between continuing to prosecute, while incurring the problems posed by disclosure, and terminating the prosecution in order to maintain the material’s secrecy. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Denial of discovery of the psychiatric report on a witness did not deny defendant her constitutional right of compulsory process since it would have been an unwarranted infringement of the witness’s privacy, and therefore inconsistent with the protection of persons, to grant access to the witness’s private medical records when the material was not relevant. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

Destruction of tape of codefendant’s confession. —

See note under this catchline under anaylsis line V, “Confrontation.”

Disqualifying witness from testifying. —

Although disqualifying defendant’s stepfather from testifying because he had violated a witness exclusion order was error, since there was no indication that the trial court considered alternative sanctions or balanced the prejudice to the defendant from excluding the testimony against prejudice to the state from allowing it, the error was harmless because the testimony was of limited relevance. Babcock v. State, 685 P.2d 721 (Alaska Ct. App. 1984).

Instruction on absence of witness. —

Absence of a state witness did not entitle defendant to a “missing witness” instruction. Even among the jurisdictions that allow comment on missing witnesses, many allow this type of comment only if the witness in question is “reasonably assumed to be favorably disposed to the party who fails to call the witness” — here, the State. McKinley v. State, — P.3d — (Alaska Ct. App. Feb. 2, 2011) (memorandum decision).

VII.Assistance of Counsel

A.In General

This section guarantees the assistance of counsel to an accused in a criminal prosecution for his defense. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Without it, though defendant be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The accused shall have the right to be represented by counsel in any criminal prosecution. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Both this section and 6th amendment guarantee right to counsel. —

Both the 6th amendment to the United States Constitution and this section guarantee a criminal defendant the right to counsel. McCracken v. State, 518 P.2d 85 (Alaska 1974).

This section and the 6th and 14th amendments to the United States Constitution guarantee an accused the right to assistance of counsel in criminal prosecutions against him. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

But they apply only to criminal prosecutions. —

The right to counsel guaranteed by this section is limited to criminal prosecutions. V.F. v. State, 666 P.2d 42 (Alaska 1983). For right to counsel in civil proceedings, see notes to Alaska Const., art. I, § 7 II A. — Ed. note.

The 6th amendment to the United States Constitution and this section of the Alaska Constitution by their terms apply only to criminal prosecutions, and protect only those accused of crime with respect to the preparation of a defense. McCracken v. State, 518 P.2d 85 (Alaska 1974).

Unlike the privilege against self-incrimination, the right to counsel provided by the 6th amendment attaches only after formal charges have been filed. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Defendant’s right to counsel was not implicated where no adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, had been initiated against him. Eben v. State, 599 P.2d 700 (Alaska 1979).

The term “criminal prosecution,” as it relates to the right to have the assistance of counsel, includes any offense a direct penalty for which may be incarceration in a jail or penal institution, which may result in the loss of a valuable license, or which may result in a heavy enough fine to indicate criminality. Such right to the assistance of counsel means that counsel must be appointed at public expense to a misdemeanor defendant who is indigent and too poor to have his own lawyer. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Sixth amendment applicable to state trials. —

The 14th amendment to the United States Constitution mandated application of the assistance of counsel clause of the 6th amendment to state trials. Risher v. State, 523 P.2d 421 (Alaska 1974).

State right to counsel is more expansive. —

The right to counsel under the Alaska Constitution is more expansive than the corresponding right under the sixth amendment to the United States Constitution.Resek v. State, 706 P.2d 288 (Alaska 1985).

When state right construed more broadly. —

Although the supreme court is not limited to the scope of the 6th amendment when construing the right to counsel provided by the state constitution, when it has provided a broader right in the past it has done so only to protect the accused during proceedings that are investigatory in nature and which are conducted in an adversary context. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Assistance of counsel is a valuable right. —

To be assisted by counsel in a criminal action is not merely desirable, it is a valuable right. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Denial of right invalidates trial. —

The right to have the assistance of counsel is so fundamental and absolute that its denial invalidates the trial at which it occurred and requires a verdict of guilty therein to be set aside, regardless of whether prejudice was shown to have resulted from the denial. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

The absolute deprivation of counsel will be regarded as a constitutional violation per se, and no inquiries will be permitted as to whether the defendant would otherwise have been found guilty. Risher v. State, 523 P.2d 421 (Alaska 1974).

Denial of defendant’s request for continuance of trial so that he could have more time to obtain attorney to represent him effectively denied constitutional right to assistance of counsel. Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

Right to counsel is case specific. —

The use by police officers of an already incarcerated defendant’s girlfriend to elicit incriminating statements regarding his sexual abuse did not violate the defendant’s right to counsel where the defendant had retained counsel in a matter unrelated to the sexual abuse that the police were investigating. The right to counsel is case specific and the fact that it has attached in a particular case does not entitle the accused to demand representation in connection with factually and legally unrelated matters in which the state has made no accusation and taken no adversary action. Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992).

Police were not required to contact defendant’s counsel when they were negotiating his surrender in connection with a crime for which he had not been charged or arrested. West v. State, 923 P.2d 110 (Alaska Ct. App. 1996).

Effect of rules on right to counsel. —

Alaska R. Crim. P. 5 and Alaska R. Crim. P. 5.1 were adopted to implement the constitutional right to counsel, not to supersede it; therefore, an argument that the rights contained therein could have been abrogated by an order of the Alaska Supreme Court or by legislation failed. Gladden v. State, 153 P.3d 1028 (Alaska Ct. App. 2007).

Right to counsel in prosecution for misdemeanor. —

An accused has the right to the assistance of counsel for his defense if he is prosecuted for a misdemeanor, as well as for a felony, when the penalty upon conviction of the misdemeanor may result in incarceration in a jail or penal institution, the loss of a valuable license or a fine so heavy as to indicate criminality. Gregory v. State, 550 P.2d 374 (Alaska 1976); O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978); Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

When convicted for violating AS 28.35.030 , the law prohibiting operation of a motor vehicle while intoxicated, a person may receive a fine of not more than $1,000 or a term of imprisonment for not more than one year, or both. Therefore, such case is one in which the right to counsel is guaranteed an accused by the Alaska Constitution. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Although an offense may be a minor infraction, the right to counsel still attaches. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

The right to counsel extends to children charged with delinquency. RLR v. State, 487 P.2d 27 (Alaska 1971).

A juvenile must be afforded the right to be represented by counsel at the delinquency proceeding, and a denial of that right violates due process. Doe v. State, 487 P.2d 47 (Alaska 1971).

Appointment for indigent. —

The 6th and 14th amendments require that counsel be appointed for indigents in felony trials in state courts. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Indigents are entitled to appointed counsel at public expense in any misdemeanor prosecution where there is a possibility of incarceration, loss of a valuable license, or imposition of a heavy fine upon conviction. Hood v. Smedley, 498 P.2d 120 (Alaska 1972).

Trial court erred when it denied defendant’s request for appointed counsel because the record did not show that defendant intelligently, knowingly, and voluntarily waived his right to counsel; moreover, it was highly questionable whether defendant had the ability to pay the likely cost of private representation. Stenseth v. State, — P.3d — (Alaska Ct. App. Nov. 18, 2009) (memorandum decision).

Expert need not be appointed to assist indigent. —

There is nothing fundamentally unfair about not appointing an expert to assist an indigent defendant in his defense where it appears that the disadvantage of not having the advice of such an expert is not so great as to deprive a defendant of a fair trial. Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (U.S. 1970).

Indigents detained for serious crime eligible for public defender. —

Since an indigent defendant is entitled to representation by counsel when prosecuted for an offense the direct penalty for which may be incarceration, loss of a valuable license, or a fine heavy enough to indicate criminality, it follows that any such offense is a serious matter and a “serious crime” within the meaning of the Public Defender Act (AS 18.85.010 et seq.). Therefore, a defendant charged with any such misdemeanor who cannot afford to hire his own lawyer is eligible for representation by the public defender. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Advising nonindigent defendant of right to counsel. —

Criminal Rule 39(a) must be interpreted consistently with Cr. R. 39(b)(3) in order to avoid constitutional problems; i.e., the advice given to a nonindigent defendant concerning the right to counsel must also include at least a brief explanation of the “benefits of counsel.” Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

No right to select particular attorney. —

The right to court-appointed counsel does not carry with it the right to select a particular attorney. Stevens v. State, 514 P.2d 3 (Alaska 1973).

A criminal defendant’s choice of counsel must be honored. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Once counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Entry of guilty plea after defendant denied right to chosen counsel. —

Where a defendant has been denied the right to be represented by his chosen counsel, the subsequent entry of a plea of guilty or nolo contendere does not shield a conviction from challenge on appeal, since the voluntariness and reliability of such a plea is inherently suspect, just as it is when a plea is entered without counsel, or with the ineffective assistance of counsel. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Appointment of unwanted counsel after dismissal of first counsel assigned. —

By dismissing the attorney assigned to represent defendant for unexcusable lack of preparation, and then by appointing unwanted counsel to represent defendant over defendant’s express protest, the trial court deprived the defendant of his fundamental right under the 6th amendment to the United States Constitution and this section to counsel of his choice. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Right to counsel of choice at sentencing not denied where court refused to grant five-week continuance. See Burleson v. State, 543 P.2d 1195 (Alaska 1975).

Defendant not deprived of right to be represented at trial by counsel of choice. See Green v. State, 544 P.2d 1018 (Alaska 1976).

When court must assign counsel. —

While only a brief inquiry into a defendant’s comprehension of the right to self-representation will be necessary in many cases, in extreme circumstances the person may be unable to make an intelligent choice because of his mental condition, age, education, experience, the complexity of the case, or other factors. When such a situation arises, it is the duty of the court, whether requested or not, to assign counsel for the accused as a necessary requisite of due process of law under the federal and state constitutions. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Inexperienced counsel appointed minutes before hearing. —

Defendant did not have ineffective assistance of counsel at the preliminary hearing though his attorney was inexperienced in criminal law and was given the case 10 to 15 minutes before the hearing. Green v. State, 579 P.2d 14 (Alaska 1978).

Deliberate electronic surveillance of attorney-client conversations constitutes a serious infringement of the constitutional right to the effective assistance of counsel as well as a denial of due process. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

The devastating impact of exposure of confidential information to the prosecution impinges on the right to effective assistance of counsel in defending against criminal charges. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Exercise of peremptory challenge rights. —

Ordinarily counsel, rather than the defendant, should exercise the defendant’s peremptory challenge rights. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

When a defendant who is represented by counsel fails to interpose a peremptory challenge to the trial judge prior to the selection of the jury, he forfeits the right. No inquiry need be made into the defendant’s understanding of his rights, or the extent to which he and counsel has discussed them. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

Use of breathalyzer test results. —

In a prosecution for manslaughter, where the defendant objected, on grounds of right to counsel and unreasonable search and seizure, to the use of breathalyzer test results, and where the defendant’s defense was self-defense, the court held that even if there was constitutional error it was harmless error since (1) proof of intoxication is irrelevant to the defense of self-defense, (2) the evidence was not used to impeach the defendant, and (3) there was other ample, uncontested, evidence of intoxication. Nygren v. State, 616 P.2d 20 (Alaska 1980).

Denial of services of paraffin test expert at state expense did not deprive defendant of effective assistance of counsel where the record indicated that the issue of the paraffin test administered to defendant was of extremely limited relevance. McCracken v. State, 521 P.2d 499 (Alaska 1974).

It would be a difficult and delicate task for a reviewing court to attempt to assess the effectiveness of individual tactical decisions made by trial counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Cost of providing counsel. —

Based upon AS 22.15.270 , most of the major political subdivisions of the state have entered into contractual arrangements with the Alaska court system whereby the political subdivision has agreed to pay the salaries of the district judges, and all other costs of running the courts which are attributable to prosecutions initiated by the political subdivision. Since the cost of providing counsel seems indistinguishable from the cost of providing these judicial services, it should be treated in the same way. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Comment on evidence by counsel. —

The basic rule is that an accused, by virtue of his constitutional right to be heard by counsel, is entitled to have counsel comment upon evidence submitted at trial. It is only when evidence is irrelevant or not at issue in the case that comment may be forbidden. Lewis v. State, 469 P.2d 689 (Alaska 1970).

Client bound by attorney’s waiver. —

Unless “exceptional circumstances” are present, or the attorney’s actions constitute incompetence which reduce the trial to a “farce or a sham,” the client is bound by his attorney’s waiver. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Assistance of counsel in defense of criminal contempt charge. —

Accused is entitled to a jury trial on the question of whether he committed a criminal contempt, and under this section accused is entitled to have the assistance of counsel in defense of this charge. State v. Browder, 486 P.2d 925 (Alaska 1971).

Whispered conversation between defendant and his counsel during a recess in the trial which was partially overheard by the judicial services officer who was custodian of defendant was a confidential one for purposes of applying the lawyer-client privilege. Blackmon v. State, 653 P.2d 669 (Alaska Ct. App. 1982). See Alaska Rule of Evidence 503(b).

Use of informant to elicit information. —

The use of an informant to make contact with the defendant for purposes of eliciting incriminating statements, prior to the initiation of adversary proceedings, did not amount to a violation of the right to counsel under the Alaska Constitution. Thiel v. State, 762 P.2d 478 (Alaska Ct. App. 1988).

Test for error. —

Where the constitutional rights to remain silent and to the assistance of counsel are involved, any error must be harmless beyond a reasonable doubt. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

Criminal Rule 39(b) construed in light of this section. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

Forfeiture aspects of Criminal Rule 25(d)(5) only apply to a represented client; where the defendant is not represented, he must have reasonable access to counsel before the commencement of trial if the failure to file a timely peremptory challenge is to work a forfeiture. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

B.Effectiveness

No counsel versus ineffective counsel. —

There is a distinction between cases in which no counsel is furnished at all and those in which it is contended that representation was ineffective. Risher v. State, 523 P.2d 421 (Alaska 1974).

Judges are not in a position to evaluate instantly the tactics of trial counsel. Risher v. State, 523 P.2d 421 (Alaska 1974).

An automatic reversal due to error committed by attorneys would lead to no prospective prophylaxis as judges normally would have no way of knowing in advance that counsel will prove to be incompetent. Risher v. State, 523 P.2d 421 (Alaska 1974).

Presumption of competence held not rebutted. —

Without any evidence of specific incompetent actions or any corroborating adverse inferences to be drawn from defense counsel’s invocation of the privilege against self-incrimination, the presumption that counsel acted with competence stands. Nelson v. State, 273 P.3d 608 (Alaska 2012).

Whether counsel is incompetent usually can be ascertained only after trial. Risher v. State, 523 P.2d 421 (Alaska 1974).

Conduct of trial judge leads to ineffective assistance. —

Where there is ineffective assistance of counsel due to the deliberate conduct of the trial judge, as in the appointment of counsel where there is a known conflict of interest, the deterrence rationale remains applicable, and reversal will be automatic. Risher v. State, 523 P.2d 421 (Alaska 1974).

Appointment of private counsel. —

Defendant who failed to substantiate a legal conflict between her interests and other interests advocated by the Public Defender Agency or the Office of Public Advocacy, was not entitled to private counsel, either to represent her interests generally or to counsel her on potential conflicts. Jerrel v. State, 851 P.2d 1365 (Alaska Ct. App. 1993), cert. denied, 510 U.S. 1100, 114 S. Ct. 942, 127 L. Ed. 2d 232 (U.S. 1994), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Defendant’s counsel appointed to represent co-conspirator. —

Where a trial judge compromised the effectiveness of defendant’s counsel by appointing him, over the defendant’s personal objection, to represent an alleged co-conspirator at the same trial, it was not necessary for the defendant to show prejudice; the appointment constituted reversible error per se. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Dangers of joint representation to defendant’s right to counsel. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978); State v. Celikoski, 866 P.2d 139 (Alaska Ct. App. 1994).

Duty of court to advise of such dangers. —

After a mandate is issued, the trial judge must personally advise the defendant of potential dangers inherent in dual representation. If the record fails to establish a “satisfactory” inquiry, the burden shifts to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist. Moreau v. State, 588 P.2d 275 (Alaska 1978).

No failure of counsel to explain elements of offense and possible sentence. —

Defendant failed to prove that his trial counsel’s alleged failure to explain the elements of the offense of felony murder, as well as his alleged failure to advise him that the sentence actually imposed on the first-degree murder charge could have been imposed, denied defendant the effective assistance of counsel. Morgan v. State, 582 P.2d 1017 (Alaska 1978).

Failure of counsel to move to dismiss deficient indictment. —

Trial attorney’s failure to move to dismiss the first-degree murder count on the ground that the indictment was fatally deficient since it did not contain factual allegations as to the burglary not in a dwelling sufficient to allege felony murder was not tantamount to ineffective assistance of counsel. Morgan v. State, 582 P.2d 1017 (Alaska 1978).

Assistance of counsel must be effective. —

The constitutional guarantee of assistance of counsel means that such assistance must be effective. Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (U.S. 1970); McCracken v. State, 521 P.2d 499 (Alaska 1974); Brown v. State, 601 P.2d 221 (Alaska 1979).

The mere fact that counsel represents an accused does not assure this constitutionally-guaranteed assistance. The assistance must be “effective” to be of any value. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

This guarantee includes assistance of counsel which is effective. Lewis v. State, 469 P.2d 689 (Alaska 1970).

A defendant is entitled not just to the assistance of counsel, but to the “effective” assistance of counsel. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The constitutional right to assistance of counsel will be considered to have been denied if incompetence of counsel renders ineffective the legal assistance to which a defendant in a criminal case is entitled. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense — a trial where the government is put to its burden of proving guilt beyond a reasonable doubt, in accordance with established principles of law and fundamental notions of fair play and substantial justice. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

“Effective assistance” describes a procedural requirement as distinguished from a standard of skill. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense — a trial where the government is put to its burden of proving guilt beyond a reasonable doubt in accordance with established principles of law and fundamental notions of fair play and substantial justice. Condon v. State, 498 P.2d 276 (Alaska 1972); McCracken v. State, 521 P.2d 499 (Alaska 1974).

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Not every error by counsel constitutes incompetent representation. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Effective assistance of counsel does not mean that trial counsel’s every mistake in judgment, error in trial strategy, or misconception of law would deprive an accused of a constitutional right. Determining whether the demands of due process were met requires a decision as to whether upon the whole course of the proceedings, and in all the attending circumstances, there was a denial of fundamental fairness; it is inevitably a question of judgment and degree. Condon v. State, 498 P.2d 276 (Alaska 1972).

Criticism of “mockery and farce” test. —

See Brown v. State, 601 P.2d 221 (Alaska 1979).

In past decisions the supreme court read “effective assistance” to describe a procedural requirement rather than a standard of skill. In so doing it adopted a standard that unless the conduct of counsel is “so incompetent as to deprive his client of a trial in any real sense — render the trial a mockery and a farce . . .” then it will not reverse the conviction. McCracken v. State, 521 P.2d 499 (Alaska 1974).

The “mockery and farce” test in determining what constitutes effective assistance of counsel has been criticized for placing an undue burden on the defendant and for being unduly vague and difficult to apply. McCracken v. State, 521 P.2d 499 (Alaska 1974); Risher v. State, 523 P.2d 421 (Alaska 1974).

Test in determining effective assistance of counsel. —

Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations. Risher v. State, 523 P.2d 421 (Alaska 1974); Winkler v. State, 580 P.2d 1167 (Alaska 1978); Morgan v. State, 582 P.2d 1017 (Alaska 1978); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Lawyers may display a wide spectrum of ability and still have their performance fall within the range of competence displayed by one of ordinary training and skill in the criminal law. It is only when the ability is below the nadir of that range that it may be held to constitute a deprivation of effective assistance of counsel. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

All that is required of counsel is that his decisions, when viewed in the framework of trial pressures, be within the range of reasonable actions which might have been taken by an attorney skilled in the criminal law, regardless of the outcome of such decisions. Risher v. State, 523 P.2d 421 (Alaska 1974); Winkler v. State, 580 P.2d 1167 (Alaska 1978); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981); Nielsen v. State, 623 P.2d 304 (Alaska 1981).

The following test has been suggested to determine whether an accused has been accorded effective assistance of counsel: Whether counsel exhibited the normal and customary degree of skill possessed by attorneys who are fairly skilled in the criminal law and who have a fair amount of experience at the criminal bar. McCracken v. State, 521 P.2d 499 (Alaska 1974).

The defendant is not entitled to error-free representation. Nor will the court second guess trial counsel on the basis of hindsight. All that is required is that counsel’s representation fall within the range of reasonable actions which might have been taken by an attorney reasonably skilled in the criminal law, regardless of the outcome. Brown v. State, 601 P.2d 221 (Alaska 1979).

It is not enough for defendant to show that defense counsel could have done certain things. The standard is whether, at the time counsel made his decision, the judgment fell below a minimum level of competence. Brown v. State, 601 P.2d 221 (Alaska 1979).

The Alaska test of prejudice is akin to the harmless error test applied to errors of constitutional magnitude. Wilson v. State, 711 P.2d 547 (Alaska Ct. App. 1985).

A competent counsel does not necessarily have to raise every possible motion on behalf of a client. Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981).

The conduct of counsel must have contributed to eventual conviction. Risher v. State, 523 P.2d 421 (Alaska 1974).

Because effective assistance embodies the concept of materially aiding in the defense, conduct or omissions which do not somehow contribute to a conviction by their failure to aid in the defense cannot constitute a constitutional deprivation of assistance of counsel. Risher v. State, 523 P.2d 421 (Alaska 1974).

To prevail on a claim of ineffective assistance of counsel, a defendant must show a reasonable doubt that counsel’s incompetence affected the outcome of the trial. Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987).

Thus, two-pronged test must be met before reversal. —

Before reversal will result, there must first be a finding that counsel’s conduct either generally throughout the trial or in one or more specific instances did not conform to the standard of competence which the supreme court has enunciated. Secondly, there must be a showing that the lack of competency contributed to the conviction. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981); Nielsen v. State, 623 P.2d 304 (Alaska 1981); Wilson v. State, 711 P.2d 547 (Alaska Ct. App. 1985).

If the first burden of the test for unconstitutional deprivation of counsel has been met, all that is required additionally is to create a reasonable doubt that the incompetence contributed to the outcome. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

In Risher v. State , 523 P.2d 421 (Alaska 1974), the supreme court abandoned the “mockery and farce” test. In its place it substituted a two-prong test of ineffective assistance: (1) Whether counsel’s performance, either generally or in some specific instance, fell below what would be expected of a lawyer with ordinary training and skill in the criminal law, and (2) whether this ineffective performance must in some way have contributed to the conviction. Green v. State, 579 P.2d 14 (Alaska 1978).

In the two-part test for determining the effectiveness of counsel, defendant must first show that his lawyer’s skill fell below that of a lawyer with ordinary training and skill in criminal law, and second, that this defective performance contributed in some way to his conviction. Larson v. State, 614 P.2d 776 (Alaska 1980).

Failure to warn defendant of certain direct consequences of plea. —

If counsel had failed to warn defendant of certain direct consequences of his plea, the supreme court would not only have concluded above that this plea was involuntary, but it would also conclude that defendant had not been provided with a genuine proceeding and therefore that he had been denied the effective assistance of counsel. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Affidavit sufficiency. —

Dismissal of inmate’s petition for postconviction relief was appropriate because he failed to show that his trial counsel was ineffective; inmate’s only assertion that he was prejudiced by his attorney’s failure to object to testimony was contained in a single sentence of the inmate’s postconviction affidavit. Burton v. State, 180 P.3d 964 (Alaska Ct. App. 2008).

Error on counsel’s part with regard to collateral consequences cannot be said to have infected the proceedings to such an extent as to have prevented their being either genuine or of a judicial character. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Failure of counsel to inform of the collateral possibility of deportation does not constitute denial of the right to the effective assistance of counsel. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Omission of instruction on lesser-included offense. —

The trial court did not err in concluding that the defendant’s trial counsel breached his duty of competent representation where counsel, having seen that fourth-degree assault was properly a lesser-included offense of the crime of attempted kidnapping for which defendant was convicted, and having affirmatively proposed an instruction including the lesser-included offense, thereafter acted incompetently in neglecting to object to the trial court’s omission of the proposed instruction. State v. Laraby, 842 P.2d 1275 (Alaska Ct. App. 1992).

Tactical decision not to request lesser-included offense instructions. —

Trial court concluded that defendant had not overcome the presumption that his counsel made a reasonable tactical decision by not requesting lesser-included offense instructions; Alaska R. Prof. Conduct 1.2(a) limits the client’s authority to make decisions over which he has ultimate authority, so counsel has the ultimate authority to make other decisions governing trial tactics, including whether to request lesser-included offense instructions. Simeon v. State, 90 P.3d 181 (Alaska Ct. App. 2004).

Tactical decision not to file cross-petition for discretionary review. —

After the client has obtained a reversal of conviction in court of appeals and the state has filed a petition for hearing in the Alaska supreme court, the decision to file a cross-petition for hearing on behalf of the defendant is a decision for the attorney. Smith v. State, 185 P.3d 767 (Alaska Ct. App. 2008).

Attorney’s litigation strategies. —

Dismissal of inmate’s petition for postconviction relief was appropriate where although 10 suggested alternative litigation strategies were indeed plausible ways of arguing inmate’s case, none of those alternative strategies stood out as significantly better than the litigation strategy that inmate’s trial attorney pursued. Burton v. State, 180 P.3d 964 (Alaska Ct. App. 2008).

Right to reasonable time to prepare for trial. —

It is unquestionable that the right to the assistance of counsel of necessity includes the concomitant right to have a reasonable time in which to prepare for trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Where the case was relatively simple, 13 days was quite sufficient a period for defendants’ counsel to prepare their defense in a larceny prosecution. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

The fact that counsel did not use the time available to his and appellant’s advantage affords no basis for finding abuse of discretion in the trial court’s denial of the continuance. If it were otherwise, a trial court would be obliged to continue every case at the defendant’s request where defendant’s counsel alleged that he was not prepared to go to trial, regardless of how much prior notice he may have had of the trial setting. This could lead to interminable delays in disposing of cases. The ends of justice would not be well served by such an arrangement. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

Unusual fee arrangement is not ineffective assistance of counsel. —

Where the state agreed to pay defendant’s appointed counsel $15,000 and the letter summarizing the agreement also stated, “in the event that [defendant] has funds available to compensate you additionally, you are certainly free to negotiate whatever price you can with [defendant],” the trial judge did not err in finding that counsel did not have a conflict of interest which would result in ineffective assistance of counsel. Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987).

Defendant cannot purposely frustrate attorney’s efforts. —

A constitutional right to effective assistance of counsel does not encompass the right of a defendant to purposely frustrate his attorney’s efforts on his behalf and then attempt to escape conviction on the basis of his own lack of cooperation by claiming his appointed counsel was ineffective. Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Appointed counsel same as privately employed counsel. —

There is no valid distinction between appointed counsel and privately employed counsel in determining the adequacy of representation of an accused. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Sanctions available where counsel is dilatory. —

See McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Counsel shared by co-defendants. —

In a prosecution for larceny, where co-defendants privately retained and shared counsel and the record showed that the counsel conducted a vigorous defense, and where counsel voiced no objection to the difficulty of arguing effectively for both clients until all the evidence had been taken and then could articulate no more than a feeling of “definite potential conflict” between his clients, effective assistance of counsel had not been denied. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

The requirement of a coat and tie for court appearances does not impair the ability of an attorney to represent his clients effectively. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

Failure of counsel to attack indictment. —

The court of appeals declined to hold that counsel’s failure to attack an indictment automatically renders his legal assistance incompetent or ineffective. Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981).

Failure to advise defendant of unenforceability of plea agreement in which defendant would plead guilty or no contest to a second count if convicted of a first count constituted ineffective representation. Smith v. State, 717 P.2d 402 (Alaska Ct. App. 1986).

Failure to challenge a juror for cause. —

Defendant had not stated a claim for ineffective assistance of counsel when counsel failed to challenge a juror for cause after the juror testified that he was a personal friend of the investigating officer, the investigating officer was staying at the juror’s home during the trial, and the juror had a family member that had been a victim of a sexual abuse crime, similar to the crime charged against defendant; there was no showing that the juror was actually biased. Bryant v. State, 115 P.3d 1249 (Alaska Ct. App. 2005).

Considering claim of ineffective assistance on appeal. —

Henceforth the court of appeals will not entertain claims of ineffective assistance of counsel on appeal unless the defendant has first moved for a new trial or sought post-conviction relief, supporting the claim with affidavits alleging facts which would establish a basis for relief. If defendant’s affidavits establish a prima facie case of ineffective assistance of counsel, the state must then be given an opportunity to file counteraffidavits; if material factual conflicts exist or the state requests an opportunity to cross-examine defendant’s witnesses then an evidentiary hearing should be held. To the extent that Alaska Cr. R. 33 places unreasonable time limitations on the presentation of this issue, the trial court should exercise its discretion pursuant to Cr. R. 53 to provide reasonable time. Barry v. State, 675 P.2d 1292 (Alaska Ct. App. 1984).

Where it did not appear that defendant moved for a new trial or sought post-conviction relief in the trial court, the court of appeals therefore declined to consider his claim of ineffective assistance of counsel at that time; however, since the appeal was filed prior to publication of the Barry decision ( Barry v. State , 675 P.2d 1292 (Alaska Ct. App. 1984)), the court of appeals assumed that appellate counsel did not have sufficient opportunity to learn of Barry and comply with its requirements and therefore remanded the case to the district court to permit the defendant to litigate his claim of ineffective assistance of counsel. Hernandez v. State, 691 P.2d 287 (Alaska Ct. App. 1984).

Claims of ineffective assistance of counsel were properly remanded where trial court did not set forth specific findings on the standard of competence of an attorney of ordinary training and skill, if defendant’s attorney fell below that range, and what evidence defendant presented to overcome the presumption of competence conferred upon counsel’s tactical decisions. Bryant v. State, 115 P.3d 1249 (Alaska Ct. App. 2005).

Excusing attorney from providing representation. —

An attorney’s statement that he or she is not competent to take a particular case should not automatically excuse the attorney from providing representation; rather a showing that an attorney is not competent must be made to the court, and if the court determines that the attorney is in fact competent and the attorney still refuses to take the case, he or she may be held in contempt if proper procedures are followed. Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), overruled, De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Ineffective assistance as matter of law. —

A defendant received ineffective assistance of counsel as a matter of law in making his decision to plead no contest to one count of manslaughter, AS 11.41.120(a)(1) , and three counts of assault in the second degree, former AS 11.41.210(a)(3) , where his attorney had minimal knowledge of the facts, did not review the police reports (other than the initial accident report obtained by his partner), the grand jury testimony or the medical and blood-alcohol reports, did not interview any witnesses, did not understand the applicable law, did not research any legal issues other than sentencing, and underestimated his client’s potential exposure to possible sentences on the manslaughter charge. Arnold v. State, 685 P.2d 1261 (Alaska Ct. App. 1984).

The decisions of counsel at trial did not support a finding that defendant was denied the effective assistance of counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

When defense counsel did not seek more definitive testing of DNA evidence from the crime scene, this was not ineffective assistance of counsel, but rather a tactical decision based on the concern that more definitive testing would more closely link defendant to the crime scene. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Defendant not denied effective assistance of counsel. —

See Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983); Hoeck v. Municipality of Anchorage, 698 P.2d 666 (Alaska Ct. App. 1985).

Because the facts in the application showed that defendant’s trial attorney made a tactical choice about not calling a forensic pathologist and because defendant had not alleged facts that established any prejudice, his ineffective assistance claim was meritless; defendant’s attorney was not required to provide him with an analysis of his potential for parole release when she recommended that he accept the charge bargain. Cole v. State, 72 P.3d 322 (Alaska Ct. App. 2003), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Defendant charged with sexual abuse was not ineffectively assisted by counsel based upon counsel’s stated strong opposition to sexual abuse of children; a lawyer’s representation of a client does not constitute an endorsement of the client’s social or moral views or activities, and lawyer’s strong views did not render his representation incompetent. Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007).

Where court of appeals reversed defendant’s conviction for kidnap and rape based on violation of his Miranda rights, and the state filed a petition for hearing in the Alaska supreme court on the Miranda issue, defendant’s appellate attorney did not provide ineffective assistance of counsel by failing to file a cross-petition for hearing seeking discretionary review of the suggestiveness of defendant’s photo lineup; because the victim had observed her assailant three times before the attack, any error in the photo lineup was harmless. Smith v. State, 185 P.3d 767 (Alaska Ct. App. 2008).

Reinstitution of sentence appeal. —

Failure by new appellate counsel, appointed when original was seriously ill and near death, to seek reinstatement of appeal after its dismissal for non-prosecution, justified reinstitution of the sentence appeal. Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007).

Failure of defendant’s counsel to raise issue of alleged unconstitutional post-indictment identification at trial did not waive the issue. McCracken v. State, 521 P.2d 499 (Alaska 1974).

C.Self Representation

Right to self-representation. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

An accused has a constitutional right of self-representation. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

Defendant did not possess the requisite minimum capability to conduct his own defense in a prosecution for assault, where his paranoid delusions affected his perception of the evidence and fettered any ability to appreciate the extent of his own disability. Adams v. State, 829 P.2d 1201 (Alaska Ct. App. 1992).

A defendant can be deprived of the right to represent himself only in the fairly rare circumstances in which the defendant is unable to present a rational and coherent defense. Adams v. State, 829 P.2d 1201 (Alaska Ct. App. 1992).

The right to self-representation is not absolute. —

In order to prevent a perversion of the judicial process, a trial judge should first ascertain whether a prisoner is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed pro se. Second, the trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Before an accused can choose to represent himself in a criminal proceeding, he must first knowingly and intelligently waive his right to counsel. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

When counsel waived. —

A nonindigent defendant who fails to retain an attorney within a reasonable time before trial may be found to have waived his right to counsel. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

Waiver of counsel must be made with knowledge of certain facts. —

Waiver of counsel must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances of mitigation thereof and all other facts essential to a broad understanding of the whole matter. Gregory v. State, 550 P.2d 374 (Alaska 1976).

To insure that all defendants enjoy the right to counsel, it must be clear from the record that the person has been informed of the role of a defense attorney and the advantages of being represented by one in a criminal proceeding. Only after this information is placed before the accused can it be said that he has the capacity, in a legal sense, to make a knowledgeable waiver of his right to counsel. Gregory v. State, 550 P.2d 374 (Alaska 1976); Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

Once it appears that an accused intends to waive the right to the assistance of counsel, the trial court must take the additional steps to determine that the accused fully understands the right he is relinquishing. The degree of inquiry necessary should be tailored to the particular characteristics of the accused, such as his lack of education or language disability, and to the complexities of the legal issues raised by the charge against him. In many cases, this duty will be minimal. For instance, traffic misdemeanor cases are usually readily understood by lay persons and the consequences of a finding of guilt are typically not severe. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978); Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980); Williams v. State, 616 P.2d 881 (Alaska 1980).

Regarding the right of self-representation and the need to avoid perverting the judicial process, a trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Criminal Rule 39(b)(3) provides that, at the trial stage, counsel should be appointed unless the defendant “demonstrates that he understands the benefits of counsel and knowingly waives the same.” O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

Where the record is devoid of an inquiry into the defendant’s comprehension of the benefits of counsel and, in short, fails to demonstrate a knowing and intelligent waiver by defendant of the right to assistance of counsel, defendant’s conviction must be set aside and a new trial ordered. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

In order for there to be a constitutional waiver of the right to counsel, the trial judge must satisfy himself that the defendant is capable of presenting his case in a rational and coherent manner and that the defendant understands the benefit he is giving up by foregoing legal counsel. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

Before accepting a defendant’s waiver of counsel and his election to proceed pro se, it was incumbent on the superior court to inquire into more than just his intelligence, background and general competency to present his case. The court was additionally obligated to advise the defendant of the right to counsel and the importance of having counsel, in order to ensure that the defendant understood “precisely what he was giving up by declining the assistance of counsel.” Beyond that, the court was required to make the defendant aware of the dangers and disadvantages of self-representation, so that the record would have established that he knew what he was doing and his choice was made with eyes open. Evans v. State, 822 P.2d 1370 (Alaska Ct. App. 1991).

An appointed lawyer’s conclusory assurance at the outset of the waiver hearing that he had discussed with the defendant what a lawyer could do for him and that the defendant understood was not an adequate substitute for a detailed, on-record explanation of the benefits of counsel. Nor did such an assurance replace the need for an affirmative inquiry by the court as to whether the defendant actually understood the benefits of counsel and was willing to relinquish those benefits. Evans v. State, 822 P.2d 1370 (Alaska Ct. App. 1991).

The record must reflect a clear waiver of the right to counsel. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

In order to find a waiver, the record must clearly disclose that the accused “intelligently, competently, understandingly, and freely waived” the benefits of legal representation. Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

Because the right of an accused to be represented by counsel is so fundamental, the trial court’s inquiry into whether the accused was apprised of the benefits of legal representation and whether he intelligently, competently, understandingly and freely waived such benefits should appear affirmatively on the record. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

Waiver of the right to counsel must appear affirmatively on the record, and will not be inferred. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

A waiver of the right to be represented by counsel in a criminal prosecution is not to be lightly inferred. Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

Court examination sufficient to constitute voluntary waiver of right to individual counsel. See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Second hearing as to waiver held unnecessary. —

Where a full pretrial hearing was held and the trial judge determined that defendant waived his right to counsel, a second hearing on the matter was unnecessary after mistrial to determine whether he waived his right on retrial. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

Defendant’s ignorance of law, standing alone, will not preclude self-representation. Where the defendant lacks the capacity, however, to make a coherent presentation, the trial court can require that the defendant be represented by counsel. Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988).

Findings required for self-representation. —

Trial court can only permit self-representation if it finds that the defendant, (1) having the competency to knowingly, intelligently, and voluntarily waive counsel, (2) does waive assistance of counsel, and (3) is at least minimally capable of presenting a coherent case to the jury. Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988).

No right to hybrid representation. —

Although a defendant has a constitutional right to counsel, and the right to self-representation is also constitutionally protected, the right to participate as co-counsel or have hybrid representation is not protected. Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

The right to participate as co-counsel or to have hybrid representation is not constitutionally protected. Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

The trial court is not required to allow a defendant who is represented by counsel to file his own motions. Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

Defendant was properly denied co-counsel status where the trial judge was convinced that the defendant was incapable of presenting his allegations in a rational and coherent manner, where the defendant’s various attorneys expressed an inability to understand the defendant’s requests, and where their respective opposition to presenting the defendant’s various claims established a lack of the coordination and cooperation necessary to the co-counsel relationship. Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988).

D.Stage Where Required

Police eliciting statements during drug investigation. —

Police officers who were conducting a drug investigation were not precluded from contacting defendant and eliciting statements without the presence of counsel, even though defendant had had counsel appointed to represent him on a charge of possession of cocaine that arose in another locality. Abdullah v. State, 816 P.2d 1386 (Alaska Ct. App. 1991).

Appointment of counsel at preliminary hearing. —

The U.S. Supreme Court has not interpreted the federal constitution as mandating the appointment of counsel at all preliminary hearings. It is only when the preliminary hearing is in the nature of a “critical stage” in regard to the particular jurisdiction’s criminal proceedings that a defendant has a constitutional right to court appointed counsel. A similar construction of Alaska’s constitution is adopted. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Preliminary hearing was not a critical stage in proceedings; hence, trial court did not err in failing to appoint counsel for accused. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Custodial interrogations. —

Given the Miranda protections, which are specifically tailored to the custodial interrogation context, there are compelling policy considerations against an extension of the right to counsel under either the 6th amendment or the corresponding section of the Alaska Constitution to all custodial interrogations. Eben v. State, 599 P.2d 700 (Alaska 1979).

Lack of counsel at a preliminary hearing did not unconstitutionally taint defendant’s subsequent grand jury indictment, trial and conviction for assault with a dangerous weapon. Gipson v. State, 575 P.2d 782 (Alaska 1978).

A proceeding under Cr. R. 5 before a judge on the day after a defendant’s arrest is not a “critical stage” requiring the assistance of counsel. No plea may be taken at that stage, and the probable cause determination made pursuant to subsection (e)(1) of the rule neither involves the examination of witnesses nor precludes the state from seeking a grand jury indictment should no probable cause be found. Furthermore, at the preliminary examination, which must follow within 10 days if the defendant is in custody, probable cause is determined de novo, and the defendant is assured the presence of counsel. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Right to counsel where defendant initiated contact with police. —

Even if the court of appeals were to adopt the rule in United States v. Thomas , 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S. Ct. 2758, 37 L. Ed. 2d 160 (Alaska Ct. App. 1973), which prevents the police from questioning a represented defendant unless they first notify his attorney and give the attorney an opportunity to be present, that rule would not apply to a situation where a defendant initiated the contact with the police and voluntarily made statements that were not the product of interrogation or “deliberation elicitation.” Balthazor v. State, 653 P.2d 662 (Alaska Ct. App. 1982).

Voluntary statement held admissible. —

Defendant’s voluntary admission that he removed a handgun from the scene of a homicide was admissible because no adversary proceedings had commenced when defendant made this statement to police at his home; defendant’s right to counsel had not attached. State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006).

Preindictment examinations. —

The rationale of requiring presence of counsel at investigatory proceedings conducted in an adversary context does not extend to preindictment physical or psychological examinations which are conducted where the welfare of the prisoner is a significant factor. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Psychiatric interview by state’s witness. —

The guarantee of effective assistance of counsel afforded by Alaska’s constitution required the presence of defendant’s attorney throughout a psychiatric interview which was conducted by the government’s expert witness. Houston v. State, 602 P.2d 784 (Alaska 1979).

A defendant is entitled to have his attorney present during a court-ordered examination by the state’s psychiatrist. Howe v. State, 611 P.2d 16 (Alaska 1980).

Identification at scene of crime. —

Where the police in rape case were notified immediately after the crime occurred and arrived on the scene shortly thereafter; the victim and suspects were on the scene and the victim’s memory was fresh; and the identification was made at approximately 4:00 a.m., when providing counsel would have been extremely difficult the identification of defendant by the victim was reliable, and defendant’s right to counsel was not violated. Walker v. State, 652 P.2d 88 (Alaska 1982).

Right to counsel at preindictment lineup. —

In balancing the need for prompt investigation against a suspect’s right to fair procedures, the supreme court held that a suspect who is in custody is entitled to have counsel present at a preindictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation. Blue v. State, 558 P.2d 636 (Alaska 1977); Benefield v. State, 559 P.2d 91 (Alaska 1977). See Howe v. State, 611 P.2d 16 (Alaska 1980).

Absent exigent circumstances, counsel should be provided even though the lineup is before formal charges or indictment. Blue v. State, 558 P.2d 636 (Alaska 1977).

The presence of counsel at a show-up is not mandated if the circumstances call for an immediate identification as part of a prompt and purposeful investigation. Vessell v. State, 624 P.2d 275 (Alaska 1981).

Defendant’s right to preindictment counsel held outweighed by exigencies involved. See Benefield v. State, 559 P.2d 91 (Alaska 1977).

Counsel not mandated for preindictment lineup held within three hours of robbery but required for preindictment lineup held several days after. Blue v. State, 558 P.2d 636 (Alaska 1977).

Breathalyzer exam is not “critical stage.” —

A breathalyzer exam of a person suspected of driving while intoxicated is not a “critical stage” at which the constitution requires counsel’s presence. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Defendant was not denied his constitutional and statutory right to counsel when the police refused his request for a second call to any attorney before deciding whether to take the breathalyzer test. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Indigency hearing held not critical stage. —

The hearing for determination of eligibility for appointed counsel is not a critical stage of the case, and a defendant is not entitled to appointed counsel for that hearing. Benson v. State, 273 P.3d 1144 (Alaska Ct. App. 2012).

Right to counsel at every stage of trial, including return of verdict. See Koehler v. State, 519 P.2d 442 (Alaska 1974).

A post-indictment lineup is a “critical stage” of the prosecution at which the accused was entitled to the aid of counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Since a confrontation compelled by the state between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial, conducting such a confrontation without notice to and in the absence of an accused’s counsel was a denial of the 6th amendment right to counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Fundamental guidelines for assessing the propriety of post-indictment identifications. See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Right to counsel in post-conviction proceeding. —

Indigent prisoners seeking post-conviction relief must be provided with counsel at the time their application is filed but such a petitioner has a right to reject counsel and represent himself so long as his waiver of counsel is knowing, intelligent, and voluntary and the trial court is satisfied that the petitioner can competently represent himself. Hampton v. Huston, 653 P.2d 1058 (Alaska Ct. App. 1982). See note to Alaska Const. art. I, § 7, analysis line II F, Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971), under catchline “The denial of post-conviction right to counsel.”.

Appointment of counsel for indigent persons seeking post-conviction relief is mandatory in all cases absent a knowing, intelligent, and voluntary waiver. Hampton v. Huston, 653 P.2d 1058 (Alaska Ct. App. 1982).

No right to counsel at video taping of field sobriety tests. —

A person suspected of operating a motor vehicle while under the influence of intoxicating liquor has no right to have counsel present during the video taping of field sobriety tests performed at the request of the arresting officer. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Handwriting samples obtained without assistance of counsel. —

Trial court erred in admitting into evidence certain handwriting samples obtained from accused in violation of his constitutional right to counsel. Roberts v. State, 458 P.2d 340 (Alaska 1969).

Right to counsel in in rem forfeiture proceedings. —

An indigent claimant does not have a constitutional right to the assistance of counsel at public expense in a separate civil in rem proceeding brought by the state pursuant to AS 17.30.112(a) . Resek v. State, 706 P.2d 288 (Alaska 1985).

Collateral references. —

21A Am.Jur.2d, Criminal Law, §§ 880 to 1179; 81 Am.Jur.2d, Witnesses, §§ 2 to 17, 800 et seq.

22A C.J.S., Criminal Law, § 581 et seq.; 98 C.J.S., Witnesses, § 445 et seq.

Scope and extent, and remedy or sanctions for infringements, of accused’s right to communicate with his attorney. 5 ALR3d 1360.

Right of defendant in criminal case to inspection of statement of prosecution’s witness for purpose of cross-examination or impeachment. 7 ALR3d 181.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question. 9 ALR3d 990.

Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide. 11 ALR3d 834.

Propriety of increased punishment on new trial for same offense. 12 ALR3d 978.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 ALR3d 1261.

Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona. 25 ALR3d 1076.

Propriety and prejudicial effect of counsel’s representing defendant in criminal case notwithstanding counsel’s representation or former representation of prosecution witness. 27 ALR3d 1431.

Single or separate larceny predicated upon stealing property from different owners at the same time. 37 ALR3d 1407.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 ALR4th 310.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Voluntariness of confession as affected by police statements that suspect’s relatives will benefit by the confession. 51 ALR4th 495.

Paternity proceedings: right to jury trial. 51 ALR4th 565.

Relief available for violation of right to counsel at sentencing in state criminal trial. 65 ALR4th 183.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of guilty plea—state cases. 65 ALR4th 719.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time. 70 ALR4th 632.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution — modern state cases. 74 ALR4th 223.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction. 74 ALR4th 277.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 ALR4th 631.

What constitutes assertion of right to counsel following Miranda warnings — state cases. 83 ALR4th 443.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist. 85 ALR4th 19.

When does delay in imposing sentence violate speedy trial provision. 86 ALR4th 340.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant. 86 ALR4th 698.

Adequacy of defense counsel’s representation of criminal client — issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case. 80 ALR5th 55.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality. 80 ALR5th 469.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 ALR5th 225.

Adequacy of defense counsel’s representation of criminal client—conduct at trial regarding issues of insanity. 95 ALR5th 125.

Denial of, or interference with, accused’s right to have attorney initially contact accused. 96 ALR5th 327.

Validity and efficacy of minor’s waiver of right to counsel — cases decided since application of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (U.S. 1967). 101 ALR5th 351.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings. 102 ALR5th 227.

Denial of accused’s request for initial contact with attorney — drunk driving cases. 109 ALR5th 611.

Validity and application of computerized jury selection practice or procedure. 110 ALR5th 329.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory statements. 124 ALR5th 1.

What constitutes “custodial interrogation” within rule of rights requiring that suspect be informed of his or her federal constitutional rights before custodial interrogation — at border or functional equivalent of border, 68 ALR6th 607.

Criminal defendant’s right to electronic recordation of interrogations and confessions, 69 ALR6th 579.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — pretrial motions — suppression motions where warrant was involved, 72 ALR6th 1.

Validity, construction, and application of state statutes and rules governing requests for postconviction DNA testing, 72 ALR6th 227.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying homicide and assault offenses, 72 ALR6th 437.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying sexual offenses, 74 ALR6th 69.

Construction and application by state courts of Supreme Court’s ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) that defense counsel has obligation to advise defendant that entering guilty plea could result in deportation, 74 ALR6th 373.

Necessity or propriety of court’s provision of cocounsel to criminal defendant who is already represented by counsel — state prosecutions, 83 ALR6th 465.

Necessity that Miranda warnings include express reference to right to have attorney present during interrogation. 77 ALR Fed. 123.

What constitutes assertion of right to counsel following Miranda warnings — federal cases. 80 ALR Fed. 622.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as “testimony” resulting in waiver of defendant’s privilege against self-incrimination. 81 ALR Fed. 892.

Constitutional right to counsel as ground for quashing or modifying federal grand jury subpoena directed to attorney. 83 ALR Fed. 504.

Availability of sole shareholder’s Fifth Amendment privilege against self-incrimination to resist production of corporation’s books and records — modern status. 87 ALR Fed. 177.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of waiver of jury trial. 103 ALR Fed. 867.

Right to jury trial on issue of damages in copyright infringement actions under 17 U.S.C.A. § 504. 163 ALR Fed. 467.

Right of enemy combatant to counsel. 184 ALR Fed. 527.

Comment note: Ineffective assistance of counsel in removal proceedings — legal bases of entitlement to representation and requisites to establish prima facie case of ineffectiveness, 58 ALR Fed. 2d 363.

Comment note: Ineffective assistance of counsel in removal proceedings — particular acts, 59 ALR Fed. 2d 151.

Comment note: Ineffective assistance of counsel in removal proceedings — particular omissions or failures, 60 ALR Fed. 2d 59.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

I.General Consideration

A.In General

Power to search recognized by law. —

English and American law has always recognized the power to search the person of the accused, when legally arrested, to discover and seize the fruits or evidences of the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Security from excessive force. —

Police officer’s tasering of an 11-year-old girl who was driving an ATV dangerously through city streets was a possible violation of the child’s right to be secure in her person. Russell ex rel. J.N. v. Virg-In, 258 P.3d 795 (Alaska 2011).

No excessive force found. —

Officer who shot fleeing person after an extended vehicle pursuit, and search of a wooded area on foot, did not use excessive force. The fleeing person, the subject of an involuntary commitment order, was armed and had fired shots earlier in the incident. Maness v. Daily, 307 P.3d 894 (Alaska 2013).

Right to privacy protected. —

The right to privacy is protected by this section and the 14th amendment to the federal constitution.Bargas v. State, 489 P.2d 130 (Alaska 1971).

Based on Alaska Const. art. I, §§ 14, 22, and the highly personal information that can be revealed by a garbage search, a person who sets out garbage for routine collection on or adjacent to a public street or a public area has some objectively reasonable expectation of privacy in that garbage. Beltz v. State, 221 P.3d 328 (Alaska 2009).

Exercise of that right is not a badge of guilt. The constitutional protection against unreasonable searches and seizures would be meaningless if the exercise of that right were allowed to become a badge of guilt. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Accused’s assertion of his constitutional right not to have his privacy invaded without just cause cannot be used against him to help establish guilt of the crime for which he was indicted. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Right gives way to need to investigate crime. —

Where there is probable cause to arrest for a particular crime of a type which can be evidenced by items concealed on the person, there is little danger of a pretext arrest. In such circumstances, the individual’s rights of privacy must give way to the public need to investigate the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Staleness. —

Defendant's claim that the information used to support a search warrant was too stale was rejected given the serial nature of the sexual assault charges. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Purpose of section. —

The primary purpose of the constitutional guarantees furnished by this section is the protection of “personal privacy and dignity against unwarranted intrusion by the state.” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The primary purpose of this constitutional provision, together with the explicit guarantee of the right to privacy in Alas. Const., art. I, § 22, is the protection of personal privacy and dignity against unwarranted intrusion by the state or other governmental officials. Schultz v. State, 593 P.2d 640 (Alaska 1979).

When section operative. —

This section is only operative when there has in fact been either a “search” or a “seizure.” McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

This section is the state counterpart of the 4th amendment. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Both the 4th amendment to the federal constitution and its counterpart found in this section furnish guarantees against unreasonable searches and seizures. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Section and 4th amendment compared. —

This section is identical to the 4th amendment except for the addition of the term “and other property” in the catalogue of protected zones. Keller v. State, 543 P.2d 1211 (Alaska 1975).

The privacy protections provided by this section substantively parallel those contained in the 4th amendment to the federal constitution.Weltin v. State, 574 P.2d 816 (Alaska 1978).

This section provides protection similar to that afforded by the 4th amendment. Ferguson v. State, 488 P.2d 1032 (Alaska 1971).

Section contains an even broader guarantee against unreasonable searches and seizures than the 4th amendment. Ellison v. State, 383 P.2d 716 (Alaska 1963); State v. Daniel, 589 P.2d 408 (Alaska 1979).

The Alaska constitutional guarantee against unreasonable searches and seizures is broader than 4th amendment guarantees. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

The supreme court may construe Alaska’s constitutional provisions as affording additional rights. State v. Glass, 583 P.2d 872 (Alaska 1978).

This section contains an even broader guarantee against unreasonable searches and seizures than does the 4th amendment to the Constitution of the United States since the 4th amendment does not contain the phrase “and other property.” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The supreme court may construe the Alaska Constitution to afford broader rights than similar federal provisions. Roman v. State, 570 P.2d 1235 (Alaska 1977).

The Alaska constitutional guarantee against unreasonable searches and seizures is broader in scope than 4th amendment guarantees under the United States Constitution, at least in part because of the more extensive right of privacy guaranteed Alaskan citizens by Alaska Const., art. I, § 22. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Alaska constitution requires greater restrictions on police authority than the restrictions imposed by the Fourth Amendment when motorists are asked to consent to a search of their person, their vehicle, or their belongings during a traffic stop. Brown v. State, 182 P.3d 624 (Alaska Ct. App. 2008).

Provisions for issuance of warrants are same. —

The 4th amendment and this section contain the same provision in regard to the issuance of warrants. Bell v. State, 482 P.2d 854 (Alaska 1971).

Section not to be interpreted more strictly than federal constitution. —

Alaska constitutional prohibition against unreasonable searches and seizures, as to narcotics cases, should not be interpereted more strictly than the federal constitution. Davis v. State, 525 P.2d 541 (Alaska 1974).

Consideration of United States supreme court holdings. —

In construing similar provisions of Alaska’s constitution, the supreme court gives careful consideration to the holdings of the United States supreme court, although it is not bound by them. State v. Glass, 583 P.2d 872 (Alaska 1978).

The Alaska supreme court is not bound by the U.S. supreme court’s interpretations of the 4th amendment in expounding the corresponding section of Alaska Const., art. I, § 14. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Criminal R. 37 implements section. —

Criminal R. 37, providing in part that a search warrant authorized by law shall issue only on affidavit sworn to before a judge or magistrate or any person authorized to take oaths under the law of the state, or sworn testimony taken on the record in court and establishing the grounds for issuing the warrant, implements this section and the 4th amendment to the United States Constitution.Milne v. State, 607 P.2d 360 (Alaska 1980).

The 4th amendment protects people, not places. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Governmental intrusions limited in scope. —

The right to be “secure . . . against unreasonable searches and seizures,” under this section requires that governmental intrusion into the personal privacy of Alaska citizens be limited in scope to that degree necessary under the particular circumstances. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Aerial surveillance using telephoto lens requires warrant. —

When an individual has taken reasonable steps to protect their house and curtilage from ground-level observation, he has a reasonable expectation that law enforcement will not use a telephoto lens or other visual enhancement technology to engage in aerial surveillance of the individual's residential property for the purpose of investigating criminal activity; in such circumstances, the aerial surveillance constitutes a search and requires a warrant unless there is an applicable exception. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Because defendant had taken reasonable measures to protect the privacy of his residential curtilage from ground-level observation, and because the officer used a telephoto lens during his aerial surveillance of defendant's property to obtain an enhanced view of the greenhouse located within his curtilage, the trooper's investigative overflight was a search that required a warrant; as there was no warrant and no exception to the warrant requirement, the superior court should have granted defendant's motion to suppress. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

When person “seized.” —

A person is seized when a reasonable person in his position would not feel free to leave. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

Whenever a reasonable person (one who is innocent of any crime) would believe that his attempt to break off discussion with the officer and leave the scene would result in actual restraint or other physical violence, he is restrained and has been seized as the term is used in the constitution. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Where the police officer asked defendant for identification in the course of general questioning about property and the officer had a right to be where he was and to ask questions about what was going on around him, the judge did not err in concluding that defendant was free to leave during the initial questioning, and defendant was not seized for 4th amendment purposes until the pat-down began. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

No fourth amendment seizure occurred at the point when defendant exited his vehicle and the police officer asked him if he had been drinking, since defendant stopped his vehicle of his own accord and he himself approached the officer following him who, though he had also stopped his car, had made no attempt to contact defendant. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

See also notes under catchline “Inquiry vs. investigative stop,” analysis line III H below.

Contacts between police and citizens as “seizures” of persons. —

A confrontation by a police officer will amount to a seizure only if the officer added to the inherent pressures to respond to questions by engaging in conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen. Waring v. State, 670 P.2d 357 (Alaska 1983).

The actions of a state trooper constitute a “seizure” when he instructs a suspect to sit in a patrol car. Upon such an assertion of authority, it is reasonable for the suspect to conclude that he is not free to disobey the trooper’s instructions and go about his business. Waring v. State, 670 P.2d 357 (Alaska 1983).

State instigation of “private” search. —

When the issue of state action arises the underlying question is whether, under the particular circumstances, the government so substantially instigated or insinuated itself into the private person’s action that the search can no longer be deemed “private.” Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Search for identification. —

Search of a person who has been subjected to a full custodial arrest for identification was permissible where the person was given an opportunity to identify himself and refused to do so. Stephens v. State, 698 P.2d 664 (Alaska Ct. App. 1985).

Protection extended to administrative searches. —

Construction of this section has been largely done in the context of searches and seizures by police officers seeking to obtain evidence to be used against an accused in a criminal prosecution. But the protection of this constitutional provision has also been extended in cases of administrative searches and seizures. Schultz v. State, 593 P.2d 640 (Alaska 1979).

A person’s privacy and security must be safeguarded against arbitrary invasions by governmental officials, such as fire inspectors. The rule is the same here as in the case of invasions by police officers and building and health inspectors, i.e., that, except in narrowly-defined classes of cases, the provisions of this section stand for the proposition that a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Permissible administrative searches. —

Where the searches are in furtherance of an administrative purpose and not to discover contraband unrelated to that purpose or evidence of unrelated crimes, it is permissible under this section. State v. Salit, 613 P.2d 245 (Alaska 1980).

See also notes under catchline “Searches by means of airport screening,” etc., under this analysis line, below.

Where the administrative action is merely a cover for illegal police activity, otherwise permissible administrative searches and seizures may be held invalid. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Entry of building in search of suspect. —

A police officer may not enter a dwelling in search of a suspect for whom he has an arrest warrant unless, at a minimum, he has probable cause to believe the suspect is within. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Home afforded special protection. —

The home has traditionally been afforded special protection under the 4th amendment of the United States Constitution and under the Alaska Constitution. State v. Spietz, 531 P.2d 521 (Alaska 1975).

A door of the home represents a firm constitutional barrier whether or not it is open. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Property exposed to public is not protected. —

What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th amendment protection. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Property which has been converted for commercial use and is open to the general public is entitled to less privacy protection under the federal 4th amendment than a purely private dwelling. Howard v. State, 583 P.2d 827 (Alaska 1978).

But property preserved as private is. —

What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Wherever an individual may harbor a reasonable “expectation of privacy,” he is entitled to be free from unreasonable governmental intrusion. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

There is a twofold requirement: First, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Nathanson v. State, 554 P.2d 456 (Alaska 1976); Anderson v. State, 555 P.2d 251 (Alaska 1976).

The test for determination of the applicability of 4th amendment protections requires “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The dual requirement for 4th amendment protection set forth by Justice Harlan in his concurrence in Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), first, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as reasonable, has been adopted for Alaska. State v. Glass, 583 P.2d 872 (Alaska 1978). See State v. Daniel, 589 P.2d 408 (Alaska 1979).

Content and incidence of the constitutional protection of privacy must be shaped by the context in which it is asserted. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

Items already seen under lawful circumstances. —

Where the items in question have been exposed to police view under unobjectionable circumstances, no reasonable expectation of privacy is breached by an officer’s taking a second look at matter with respect to which expectation of privacy already has been at least partially dissipated. Griffith v. State, 578 P.2d 578 (Alaska 1978); Reeves v. State, 599 P.2d 727 (Alaska 1979).

Warrantless monitoring of private conversations on the mere consent of a participant violates the right of privacy and constitutes an unreasonable search and seizure under this section and Alaska Const., art. I, § 22. Aldridge v. State, 584 P.2d 1105 (Alaska 1978).

Warrantless monitoring of a private conversation by a participant to that conversation violates this section and Alaska Const., art. I, § 22. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Warrantless nonconsensual recordings are violative of the constitutional rights of the person being recorded. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

One communicating private matters to another exhibits an actual (subjective) expectation of privacy whether or not the listener is equipped with electronic devices. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

The expectation that one’s conversations will not be secretly recorded or broadcast should be recognized as reasonable. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

In the absence of limited exceptions, a search warrant should be obtained from an impartial magistrate, based on probable cause to believe that criminal activity will be discovered, before electronic monitoring of conversations should be allowed. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

Glass decision applies prospectively. —

The decision in State v. Glass , 583 P.2d 872 (1978), holding that warrantless electronic monitoring of a conversation between a police informant and a defendant violated the defendant’s right of privacy and freedom from unreasonable searches and seizures under the Alaska Constitution, will apply prospectively to activity occurring on or after September 15, 1978, the date of the decision, except for the Glass case itself and State v. Thornton , 583 P.2d 886 (1978), and Aldridge v. State , 584 P.2d 1105 (1978), which were announced on the same day as Glass, and Coffey v. State , 585 P.2d 514 (1978), the announcement of which was in addition to participant monitoring. These cases are governed by the new ruling. Coffey v. State, 585 P.2d 514 (Alaska 1978); LeDuff v. State, 618 P.2d 557 (Alaska 1980).

The holding in State v. Glass , 583 P.2d 872 (Alaska 1978), requiring a search warrant before electronic monitoring of conversations be allowed, applies only prospectively to police activity occurring on or after September 15, 1978, with the exception of Glass and three other cases considered at the same time. Coffey v. State, 585 P.2d 514 (Alaska 1978); Aldridge v. State, 584 P.2d 1105 (Alaska 1978) and State v. Thornton, 583 P.2d 886 (Alaska 1978). Robinson v. State, 593 P.2d 621 (Alaska 1979).

See also Mossberg v. State, 624 P.2d 796 (Alaska 1981), in which the supreme court refused to adopt an exception to the retroactivity ruling made in State v. Glass, 583 P.2d 872 (Alaska 1978).

Glass warrant. —

A warrant consistent with the requirements in State v. Glass , 583 P.2d 872 (Alaska 1978) issued pursuant to an informant’s testimony that defendant confessed his involvement in a robbery and homicide was valid; the informant led police to the murder weapon. State v. Anderson, 73 P.3d 1242 (Alaska Ct. App. 2003).

Warrantless videotaping of private conversations. —

If a person engages in a conversation that is protected from electronic monitoring under State v. Glass , 583 P.2d 872 (Alaska 1979), and if the conversation occurs in a place where the person has a reasonable expectation of visual privacy, such as a private apartment, then the police must secure a warrant before surreptitiously videotaping the conversation, even if they turn the sound off. State v. Page, 911 P.2d 513 (Alaska Ct. App. 1996).

The Alaska constitutional guarantee appertains to commercial or business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The Alaska Constitution protects an individual’s reasonable and subjective expectation of privacy regarding commercial premises. However, both subjectively and in society’s judgment as to what is reasonable, distinctions may be made in the varying degree of privacy retained in different places and objects, and the supreme court is neither compelled to ignore the profound differences distinguishing one’s home from one’s business nor compelled to presume that people desire or expect the police to conduct themselves in identical fashion with respect to each. State v. Myers, 601 P.2d 239 (Alaska 1979).

Exhibition of subjective expectation of privacy. —

Owners of business premises exhibited an actual (subjective) expectation of privacy in their business establishment, and their expectation of privacy is one that society is prepared to recognize as reasonable. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless administrative inspections prohibited. —

In light of the expansive protections afforded to citizens of Alaska by virtue of this section and Alaska Const., art. I, § 22 against warrantless searches and seizures and invasions of privacy, the Alaska Constitution prohibits warrantless administrative inspections of private business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

See notes under catchline “Protection extended in cases of administrative searches,” under this analysis line, above.

Obtaining warrant for administrative search. —

The requisite showing necessary to obtain a warrant for an administrative search is one of attenuated probable cause and this standard is both reasonable and constitutionally permissible. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless inspection unconstitutional. —

A warrantless Occupational Safety and Health Act inspection, as authorized by AS 18.60.083(a) , constitutes an unconstitutional search in that it is violative of this section. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Since violations of Alaska’s Occupational Safety and Health Act can result in significant fines and imprisonment, the self-protection and private interests of the owner of business premises are deserving of, although not equivalent to, the significant constitutional solicitude and protection afforded Alaska’s citizens in criminal prosecutions, for broad statutory safeguards are inadequate substitutes for individualized judicial review of applications for search warrants. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Proscriptions apply only to governmental action. —

The proscriptions against unreasonable searches and seizures contained in the United States and Alaska constitutions apply only to governmental action. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Search for government’s benefit. —

Where a search is conducted solely for the government’s benefit, or when the state’s officer participates in the conduct, then the conduct cannot be regarded as a strictly private act. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Where a police officer was present at the time of the warrantless search, initiated it by requesting defendant’s wallet, and then participated in it by riffling through the wallet, although the wallet was actually taken from defendant by his friend, a private citizen, obviously the friend’s conduct was strictly for the government’s benefit, since he already had been given his warnings and certainly he did not need or want to determine defendant’s identification, and the search was not a “private search.” Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (U.S. 1966), limited, United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (U.S. 2004); Schraff v. State, 544 P.2d 834 (Alaska 1975).

Purpose of warrant requirement. —

See Keller v. State, 543 P.2d 1211 (Alaska 1975); Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The purpose of the warrant requirement is to prevent the police from hasty, ill-advised, or unreasonable activities. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Searches conducted outside the judicial process. —

Subject only to a few specifically established and well-delineated exceptions, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971); Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless searches are “per se unreasonable” unless they fit within a recognized exception to the warrant requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975); Gieffels v. State, 590 P.2d 55 (Alaska 1979); State v. Myers, 601 P.2d 239 (Alaska 1979).

A search conducted without a warrant is per se unreasonable unless the search fits within one of the few specifically established and well-delineated exceptions to the warrant requirement. Zehrung v. State, 569 P.2d 189 (Alaska 1977); Cruse v. State, 584 P.2d 1141 (Alaska 1978); Lupro v. State, 603 P.2d 468 (Alaska 1979).

A search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement. State v. Daniel, 589 P.2d 408 (Alaska 1979); Schultz v. State, 593 P.2d 640 (Alaska 1979); Reeves v. State, 599 P.2d 727 (Alaska 1979); Deal v. State, 626 P.2d 1073 (Alaska 1980).

A search conducted without a warrant will ordinarily be regarded as per se unreasonable unless it falls within one of the previously delineated exceptions to the warrant requirement, such as a search to which an individual voluntarily consents. Frink v. State, 597 P.2d 154 (Alaska 1979).

As to exceptions, see notes under analysis line III, “Exceptions.”.

Scope of search. —

As to whether a search is beyond the scope permitted by a search warrant, the supreme court is permitted to look to the circumstances surrounding the issuance of the warrant and will not limit its inquiry to the face of the warrant. Ellsworth v. State, 582 P.2d 636 (Alaska 1978); Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Although a search warrant was somewhat ambiguous in referring to “the premises known as the residence of Spencer Ellsworth,” after reviewing the circumstances surrounding the issuance of the search warrant, including the facts contained in the sworn affidavit of the police officer’s personal observations, the supreme court determined that the search of defendant Ellsworth’s barn was not beyond the scope contemplated by the search warrant. Ellsworth v. State, 582 P.2d 636 (Alaska 1978).

Meaning of “search.” —

The term “search” implies some exploratory investigation or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” Brown v. State, 372 P.2d 785 (Alaska 1962); McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” Weltz v. State, 431 P.2d 502 (Alaska 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); Daygee v. State, 514 P.2d 1159 (Alaska 1973); Schraff v. State, 544 P.2d 834 (Alaska 1975); Gray v. State, 596 P.2d 1154 (Alaska 1979).

The term “search” implies some exploratory invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. Anderson v. State, 555 P.2d 251 (Alaska 1976).

It is well settled that an officer’s observation of things in plain view made from a place where he has a right to be does not constitute a search in the constitutional sense. Conversely, when observations are made from an area to which the officer has not been expressly or impliedly invited, the intrusion is an unlawful search unless made pursuant to a warrant or one of the established exceptions to the warrant requirement. Chilton v. State, 611 P.2d 53 (Alaska 1980).

The evidence before the trial court was wholly insufficient to establish by a preponderance of the evidence that at the time the observations by the police officers from a path were made, the path was open to the public or was otherwise a place where the officers had a right to be. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Search must be reasonable. —

A search would be unlawful and the evidence seized in the search inadmissible if the search was unreasonable under the 4th amendment to the federal constitution and this section. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The guiding criterion in resolving search and seizure issues is one of reasonableness in the constitutional sense. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

No exact formula for determining reasonableness. —

There seems to be no exact formula for the determination of reasonableness in connection with a search and seizure and so each case must be decided on its own facts and circumstances. Ellison v. State, 383 P.2d 716 (Alaska 1963); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

A search which is reasonable at its inception may violate the 4th amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Lapse of time. —

Lapse of time between legal entry and commencement of investigation in the usual case has not been held to be so unreasonable as to affect the legality of the presence of the investigating officers on the premises. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

The fact that approximately ten hours intervened between the original legal entry on the premises by the chief of police, and the commencement of a full-scale police investigation, converted what would otherwise have been a legal police investigation into a violation of defendant’s constitutional right of privacy. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

The intensity of the search depends on the nature of the crime charged. Lemon v. State, 514 P.2d 1151 (Alaska 1973); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

A seizure contemplates a forcible dispossession of the owner and it is not a voluntary surrender. Brown v. State, 372 P.2d 785 (Alaska 1962); Weltz v. State, 431 P.2d 502 (Alaska 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Prohibited search and seizure. —

See Fresneda v. State, 458 P.2d 134 (Alaska 1969).

Reseizure of evidence. —

There is no search or seizure when evidence, once properly seized, is subsequently seized after identification and arrest of persons believed to be committing the crime. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

There is no second seizure or search when the government reacquires possession of contraband once validly seized where contraband is placed in transit from one person to another, is initially discovered through lawful means, such as a search by a private person, law enforcement officials come into lawful possession of the contraband, authorities in possession forward the parcel to authorities at the intended destination under controlled circumstances so the receiving authorities have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents, and the parcel is under security or under reasonably continuous surveillance by authorities once it arrives at its destination. The reasonably continuous surveillance must continue after the consignee claims the container, as any substantial break in the chain of custody will vitiate the lawfulness of the search. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

The “reassertion of control” doctrine announced in United States v. DeBerry , 487 F.2d 448 (2d Cir. 1973), is subject to the following limitations: (1) contraband must be placed in transit from one person to another; (2) the contraband must be initially discovered through lawful means, such as a search by a private person; (3) law enforcement officials must come into lawful possession of the contraband; (4) authorities in possession must forward the parcel to authorities at the intended destination under controlled circumstances, and thus, the receiving authorities must have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents; (5) the parcel must be under security or under reasonably continuous surveillance by authorities once it arrives at its destination, and the reasonably continuous surveillance must continue after the consignee claims the container; and (6) any substantial break in the chain of custody will vitiate the lawfulness of the search. Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where a Los Angeles airline employee discovered drugs being shipped as air freight and notified police, who seized the boxes that were in plain view and shipped the boxes to Anchorage police after notifying them of the shipment and providing a description of the boxes, and Anchorage police received the boxes and loaded them into defendant’s car, watched as he drove home, and arrested him for possession of drugs with intent to sell, the boxes were validly seized. The subsequent seizure and opening of the boxes by Anchorage authorities did not constituted a second, distinct search subject to the 4th amendment’s warrant requirement. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Competency of investigators. —

The duty police officer who responds to an emergency call and discovers a homicide is not necessarily a competent officer to conduct the type of investigation necessary to protect the interests of society. This is particuarly the case with respect to a small frontier village. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

In a populous area the officer discovering a homicide could remain at the scene until trained investigators arrived to conduct an investigation. In that situation the presence of the officer making the legal entry would continue until summoned investigators arrived. Only minutes or possibly no more than an hour or two would ordinarily elapse between the legal entry and the commencement of the police investigation of the homicide. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

Knock and announce requirement. —

The supreme court found it unnecessary to squarely decide whether the Alaska Constitution contains its own requirement that a police officer announce his authority and purpose prior to entering premises to execute a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Even if the Alaska Constitution does contain its own knock and announce requirement before a police officer can enter premises to execute search warrant, the substantial compliance doctrine should apply, as it does under AS 12.25.100 and 12.35.040 , which operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Forced entry. —

Forced entry into appellant’s residence by police who had a search warrant and had announced their identity and purpose was reasonable and therefore did not violate this section. Davis v. State, 525 P.2d 541 (Alaska 1974).

Suppression of evidence illegally seized is always predicated on this section, and Alaska Const., art. I, § 22 is merely used as a justification for giving this section a liberal interpretation. Wortham v. State, 641 P.2d 223 (Alaska Ct. App. 1982).

Federal exclusionary rule. —

Before statehood it was the established law in Alaska that evidence obtained by searches and seizures in violation of the federal constitution was inadmissible in the courts of the territory. That legal principle is generally referred to as the federal exclusionary rule, and is to be distinguished from the common-law rule that the admissibility of evidence is not affected by the illegality of the means through which a party has been enabled to obtain evidence. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Operates as constitutional mandate upon state courts. —

The U.S. supreme court, in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961), has in effect declared that the federal exclusionary rule, which it previously regarded as a rule of evidence, now operates as a constitutional mandate upon the state courts. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Through the 4th and 14th amendments. —

The interrelationship of the 4th amendment and the due process clause of the 14th amendment, guaranteeing to individuals the right of privacy free from unreasonable state intrusion, renders evidence obtained by unreasonable search and seizure inadmissible in a state criminal prosecution based thereon. Ellison v. State, 383 P.2d 716 (Alaska 1963).

The purpose of the exclusionary rule is two-fold: to deter police from using unconstitutional methods of law enforcement, and to preserve the integrity of the judicial system by not permitting the courts to be a party to the lawless invasion of a citizen’s constitutional rights. Waring v. State, 670 P.2d 357 (Alaska 1983).

Effect of exclusionary rule. —

Assuming the unconstitutionality of a search, the exclusionary rule would prohibit the use of both primary and derivative evidence gained from that search. However, derivative evidence is not sacred and inaccessible. If it is gained from an independent source or has become so attenuated as to dissipate the taint, it may be admissible. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The exclusionary rule extends only to those facts which were actually discovered through a direct process initiated by the unlawful act. Where the disputed evidence stems from an independent and lawful source, even though it could have emerged from the prior unlawful search as well, the evidence is admissible. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Trial court did not err in denying defendant's motion to suppress because the exclusionary rule did not apply to evidence obtained as a result of a mental health counselor's disclosure to authorities of defendant's use of child pornography since the police did not engage the counselor as their agent; the counselor could have violated professional or ethical rules against disclosure of confidential patient information, but any lapse was not an outgrowth of state action. Ravn v. State, — P.3d — (Alaska Ct. App. Feb. 28, 2018) (memorandum decision).

Exclusionary rule is inapplicable to driver’s license revocations as it would hamper legitimate efforts to keep drunk drivers off roads while adding minimal deterrence to unlawful police action; consideration of evidence obtained in violation of Alaska Const. art. I, § 22 did not undermine the procedural fairness of revocation hearings. Nevers v. State, 123 P.3d 958 (Alaska 2005).

Test for suppression of evidence. —

The test for finding whether derivative evidence must be suppressed along with the primary evidence yielded by the illegal search is whether, granting establishment of the primary illegality, the evidence to which instant objection is made had been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Extending the deterrence rationale for the exclusionary rule and arguing that any illegality in the police conduct nullifies the entire investigatory process so that no warrant can issue would exceed the sound limits of the exclusionary rule and deterrence principle by excluding relevant and trustworthy evidence. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Application of rule. —

The exclusionary rule which requires the suppression of illegally obtained evidence is usually not appropriately raised for the first time on appeal. Moreau v. State, 588 P.2d 275 (Alaska 1978).

The exclusionary rule is not the type of doctrine designed to protect against conviction of the innocent; rather, it is a prophylactic device to curb improper police conduct and to protect the integrity of the judicial process. Thus, justice does not generally require that it be applied on appeal where it is not urged at trial or where new grounds for its invocation are presented on appeal. Moreau v. State, 588 P.2d 275 (Alaska 1978); Deal v. State, 626 P.2d 1073 (Alaska 1980).

Burden of persuasion. —

Although the state has the ultimate burden of persuasion on the issue of whether the subsequently obtained evidence was untainted by a prior illegal search, the defendant has the initial burden of demonstrating by specific evidence that the evidence about which he complains grew out of the illegal search. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Use of illegally obtained evidence in parole revocation proceedings is not ordinarily barred by either the Alaska Constitution or its criminal rules. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Illegally seized evidence may be considered in fashioning a sentence where the illegally seized evidence is reliable, where the police conduct involved in obtaining the evidence does not shock the conscience of the court, and where it is clear that the evidence was not obtained for purposes of influencing the sentencing judge. Elson v. State, 633 P.2d 292 (Alaska Ct. App. 1981), aff'd, 659 P.2d 1195 (Alaska 1983).

Admission of evidence held harmless error. —

Although it was not reasonable for police officers to conclude from the surrounding circumstances and the information at hand that the evidence would be destroyed or removed before a search warrant could be obtained, and such evidence was erroneously admitted, the supreme court concluded beyond a reasonable doubt that the error did not contribute to the verdict, and thus was harmless, since the police officer’s evidence merely corroborated the victim’s testimony, which in all material respects was further corroborated by the testimony of disinterested witnesses. Finch v. State, 592 P.2d 1196 (Alaska 1979).

The inevitable discovery doctrine permits the state to introduce evidence that is clearly the result of an illegal search or seizure, upon a showing that the government undoubtedly would have discovered the tainted evidence by lawful means. Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

A confession cannot normally be considered the type of evidence that inevitably will be “discovered” by legal, predictable police procedures so as to fall within the scope of the inevitable discovery doctrine. Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

As to waiver of objection to introduction of evidence on ground of illegal search and seizure, see Johnson v. State, 486 P.2d 379 (Alaska 1971).

Standing to assert violation of rights. —

A defendant has standing to assert the violation of a codefendant’s 4th amendment rights if he or she can show: (1) that a police officer obtained the evidence as a result of gross or shocking misconduct; or (2) that the officer deliberately violated a codefendant’s rights. Waring v. State, 670 P.2d 357 (Alaska 1983).

Warrant tainted by the illegal search. —

Evidence obtained as a result of a search warrant should have been suppressed where the warrant was based almost entirely on evidence obtained by troopers’ midnight entry onto defendant’s property. The troopers were not in a place where they had a legal right to be when they conducted the sniff, the State failed to advance any reason why the troopers could not have gathered their evidence during the day or why the court should have believed that defendant impliedly consented to a late-night visit, and thus, the search warrant they obtained was tainted by the illegal search. Kelley v. State, 347 P.3d 1012 (Alaska Ct. App. 2015).

B.Specific Application

Department store security guard’s search of customer’s purse was a reasonable exercise of the merchant’s common-law right to retrieve stolen merchandise. Jones v. State, 771 P.2d 462 (Alaska Ct. App. 1989).

Temporary detention of package on less than probable cause for purposes of address and telephone number verification and a canine sniff, where the package was not in the immediate possession of its owner, was upheld. Gibson v. State, 708 P.2d 708 (Alaska Ct. App. 1985).

Canine searches. —

Alaska’s stringent protection of its citizens’ privacy interests can be assured if the reasonable suspicion standard is applied to canine searches of areas of public access exterior to commercial buildings. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Police officers had reasonable suspicion to conduct a canine sniff of defendant’s warehouse, where the officers received a tip from a citizen informant that the warehouse owners did not behave as legitimate business people and renovations to the building were consistent with ones which would be needed to grow marijuana in the warehouse. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Exposure of luggage to drug detection dogs. —

Although exposure of luggage to a drug detection dog is a search under the Alaska Constitution, it is a minimally intrusive type of search, akin to an investigative stop and frisk under Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which may be used when police have a reasonable suspicion that drugs may be present in the container and that the drugs are being illegally imported to the state or are being illegally possessed for distribution. Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985).

Exposure of package to drug detection dogs. —

Defendant’s conviction for possessing cocaine with the intent to deliver was affirmed because the trial court properly denied defendant’s motion to suppress evidence obtained when narcotics enforcement officers subjected a package that he shipped through a private delivery service to inspection by a drug detection dog. The officers had received extensive specialized training in drug interdiction and in recognizing drug packages, and applied that training when they decided to have the package checked by the dog. Cooley v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2009) (memorandum decision).

Locked luggage. —

The expectation of privacy inherent in locked luggage is incomparably higher than a paper bag. Clark v. State, 574 P.2d 1261 (Alaska 1978).

As to search of closed containers in a vehicle, see Daygee v. State, 514 P.2d 1159 (Alaska 1973); Clark v. State, 574 P.2d 1261 (Alaska 1978); State v. Daniel, 589 P.2d 408 (Alaska 1979).

Box in possession of defendant. —

The seizure and subsequent search without a valid warrant of a box in the possesion of defendant at the time of his arrest was invalid. Metcalfe v. State, 593 P.2d 638 (Alaska 1979).

Items carried on person. —

That an individual has an actual expectation of privacy in items carried on the person is obviously true, and the expectation of privacy is one which Alaskan society would recognize as reasonable. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

See notes under catchline “Containers on person of arrestee” under analysis line III, below.

Napkin taken from defendant’s mouth. —

Surrender of a napkin from defendant’s mouth at gunpoint did not constitute an unreasonable search and seizure where the officers did not attempt to forcibly open defendant’s mouth. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Public restroom. —

When one is in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one’s behavior is subject to the observation of others who are in the public area. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Police officer, who entered a public restroom and noticed that two men were engaging in some sort of transaction in a lavatory stall, was justified in concluding that he was probably observing an illegal drug transaction and in telling the men to come out of the stall. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Guest in motel. —

A guest in a motel has a constitutional protected right to privacy in his motel room and motel personnel cannot consent to a search of the guest’s room. But after the rental period has terminated, a guest’s reasonable expectations of privacy are greatly diminished with respect to the right of motel management to enter. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Police presence during a private search by the chief of hotel security did not amount to governmental participation. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Apartment building tenant. —

No privacy interest of an apartment building tenant was violated by police contact with his building manager, even if that contact was the result of a trespassory entrance into the apartment building. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Apartment building tenant had no reasonable expectation that the building manager would not divulge information to the police concerning tenants residing in the building. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Search of tenant's computer. —

Even if the search warrant application established probable cause to search defendant's separate apartment, the troopers' search of defendant's laptop violated this section because the troopers offered no explanation of why evidence of the suspect's alleged forgery and falsification of business records would have been on defendant's laptop computer, which was portable and outside the suspect's immediate control, and there was no allegation that defendant was actively participating in the suspect's criminal scheme. Pohland v. State, 436 P.3d 1093 (Alaska Ct. App. 2019).

No expectation of privacy in commercial king crab fishing. —

See Wamser v. State, 600 P.2d 1359 (Alaska 1979).

Fishermen could not harbor an “actual (subjective) expectation of privacy” in conducting their crabbing operation in the waters of the state, at least not one that “society is prepared to recognize as reasonable.” Thus, crab fishermen had no protectable federal or state constitutional interest in the pots, bait, and crabs seized by officers of the Fish and Game Department when conducting a search to check the extent of compliance with a regulation. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

The commercial fishing for king crab does not share the same attributes of privacy as does the nature of the business conducted in a telephone booth, business office, store, or hotel room. King crab fishing involves public exposure. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

Mail service account. —

Where employees of a private mail service provided information about who opened an account with the service, when the account was opened, and what directions the mail service received for forwarding the mail, this information did not constitute information about which the defendant, who opened the account, could have a reasonable expectation of privacy. D'Antorio v. State, 837 P.2d 727 (Alaska Ct. App. 1992).

Utility records are maintained by the utility and do not constitute information in which society is prepared to recognize a reasonable expectation of privacy. Samson v. State, 919 P.2d 171 (Alaska Ct. App. 1996).

Expectation of privacy as to trash. —

A review of several recent garbage can search cases reveals a basic core of factors to be considered in determining whether a reasonable expectation of privacy exists. These factors are: 1. Where the trash is located, 2. whether the dwelling is multiple or single unit, 3. who removed the trash, and 4. where the search of the trash takes place. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Factors readily form a continuum. At one end of the continuum is trash located close to a single-family dwelling, on the same property as the dwelling, and searched by police officers at that location. The supreme court observes, without so deciding, that this would be a strong case for holding the expectation of privacy to be reasonable. At the other end of the continuum is trash located off the premises of a multiple-unit dwelling, and searched by a person authorized to remove it. In such a case the supreme court would be unable to hold that the expectation of privacy was reasonable. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Legality of search of trash receptacle. —

The legality of the search turns not on the nature of the refuse but on whether the receptacle lies within the zone of protection afforded by the 4th amendment. Thus, property which is abandoned but which rests in a receptacle temporarily maintained inside a dwelling could not be searched or seized by the police unless a warrant had issued. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Defendant harbored no actual or objectively reasonable expectation of privacy in an outside multiple-dwelling trash receptacle from which municipal collections were made. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Activities of depositing garbage in a dumpster and withdrawing from the area were clearly exposed to plain view. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

See notes under analysis line III B, “Abandoned Property.”, below.

No jailhouse expectation of privacy. —

State did not violate defendant’s rights when it recorded his telephone conversations from jail to his wife without a warrant. Defendant did not have a reasonable expectation of privacy in his phone calls from jail; signs were posted above the prisoner telephones, warning inmates that their telephone calls could be monitored and recorded. State v. Avery, 211 P.3d 1154 (Alaska Ct. App. 2009).

Exterior of vehicle in police possession. —

There was no reasonable expectation of privacy in the exterior of a vehicle which was lawfully in the possession of the police. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Security checks of business premises. —

Law enforcement personnel may enter commercial premises without a warrant only when, pursuant to a routine after-hours security check undertaken to protect the interests of the property owner, it is discovered that the security of the premises is in jeopardy, and only when there is no reason to believe that the owner would not consent to such an entry. State v. Myers, 601 P.2d 239 (Alaska 1979).

Regarding security checks of business premises, locked premises must be taken as indicating that no warrantless entry is authorized, any search conducted incident to a legitimate entry must be brief and must be limited and necessary to the purpose of ensuring that no intruders are present on the premises, and someone responsible for the premises must be informed, as soon as is practicable, of the protective measures taken. State v. Myers, 601 P.2d 239 (Alaska 1979).

Fire officials. —

Fire officials need no warrant to remain in a building for a resonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional. Schultz v. State, 593 P.2d 640 (Alaska 1979).

The exigency justifying the entry of a house by the fire officials, and seizure of evidence indicating arson does not end when the fire is contained or under control, or even when the last burning ember is thought to be extinguished, since fire officials are charged not only with extinguishing fires but with finding their causes. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Where a fire inspector’s entry into a house took place within 25 to 40 minutes after the firefighters had arrived at the scene, when the fire was under control but not entirely extinguished, and it was the inspector’s specific duty to attempt to discover the cause of the fire, her entry into the building at that time, and her remaining in the building for one to one and one-half hours, were well within a “reasonable time” to investigate the cause of the fire without the necessity of first securing a warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

See notes under catchline “Protection extended in cases of administrative searches,” under this analysis line I A, above.

Search by a private citizen not acting in conjunction with or at the direction of the police does not violate the constitutional prohibitions against unreasonable search and seizure. J. M. A. v. State, 542 P.2d 170 (Alaska 1975); State v. Stump, 547 P.2d 305 (Alaska 1976); Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The zealous citizen does not subject his activities to the requirements of the 4th amendment and this section. Snyder v. State, 585 P.2d 229 (Alaska 1978).

A purpose to enforce the law should not ipso facto convert a private citizen into a state agent for purposes of the 4th amendment. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Expectation of privacy from video surveillance in workplace. —

Based upon the open and public nature of the place where defendant worked, and the fiduciary nature of the work she was doing as manager of a theater box office, she did not have a reasonable expectation of privacy from video surveillance in the box office. Cowles v. State, 961 P.2d 438 (Alaska Ct. App. 1998), aff'd, 23 P.3d 1168 (Alaska 2001).

When vision-enhancing technology deemed a search. —

Commercial availability should not be the determinative factor when analyzing whether a particular form of technology transforms state action into a search; rather, an officer's use of vision-enhancing technology should be deemed a search if the technology allows the officer to make observations that are significantly more detailed than what an unaided human eye would be able to see at the same distance. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Search by governmental officials for private purpose. —

The 4th amendment does not apply to searches engaged in by governmental officials when such officials act for a private purpose or outside the scope of duties related to law enforcement. Such a limitation involves a question of the capacity in which the state agent acts during the course of the search. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The controlling principle does not depend so much upon which department of state government employs the officer, but instead upon the nature of the duties performed and the part the officer may have played in the course of events leading to appellant’s arrest and the seizure which followed. Bell v. State, 519 P.2d 804 (Alaska 1974); J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Foster parents are not agents of the state for purposes of the constitutional proscription against unreasonable searches and seizures. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Where the operator of a foster home is in the extremely difficult position of endeavoring to fulfill the role of parent, and, at the same time, perform the task of supervising the activities of a minor found to be a delinquent, under the circumstances of such a relationship, a search of the foster child’s room can hardly be regarded as the type of unreasonable activity constitutionally prohibited. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The duties of foster parents do not encompass responsibilities of a law enforcement officer similar to those of an airport security officer discussed in Bell v. State , 519 P.2d 804 (1974). Foster parents are not charged with the enforcement of penal statutes or regulations, nor are they entrusted with ensuring the physical security of the public. They are no more responsible for the detection of criminal activity or the apprehension of those participating in such activity than would be any other private citizen. They merely supervise on behalf of the state those children committed to their care. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

School officials. —

School officials, while they are public employees subject to constitutional constraints, are not “law enforcement officers” whose conduct is governed by state and federal constitutional limitations on searches and seizures. D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982).

Application of search and seizure prohibitions to air freight shipments. —

See Bell v. State, 519 P.2d 804 (Alaska 1974).

An airport security officer who investigated a suspicious shipment was an agent of the state against whom the prohibitions of the 4th amendment apply, despite the fact that he was an employee of the Department of Public Works, and not the Department of Public Safety. Bell v. State, 519 P.2d 804 (Alaska 1974).

Search by airlines employee. —

Where a cargo handler for an airline had cause to inspect a package which had been accidently dropped to detect improper declaration of contents, to ensure that the airline facilities were not being used in the commission of a crime, to insulate the airline from criminal liability for transporting contraband and to ascertain possible damage, his search did not violate defendant’s rights. Bell v. State, 519 P.2d 804 (Alaska 1974).

There is no dispute that an airline inspection undertaken at the initiative of airline employees, for independent airline purposes, and without government participation, is a private search and is not subject to the requirements of the 4th amendment. Bell v. State, 519 P.2d 804 (Alaska 1974).

Initial search of a package by an airlines employee in the course of his duties did not violate defendant’s constitutional rights. State v. Stump, 547 P.2d 305 (Alaska 1976).

Searches by airline employees, acting for an independent and legitimate airline purpose and not in conjunction with or at the direction of the police, do not violate constitutional prohibitions against unreasonable search and seizure. Snyder v. State, 585 P.2d 229 (Alaska 1978); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979); Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Prior contact of a general nature between the state police and airline employees does not cause private airline employees to become agents of the police. Snyder v. State, 585 P.2d 229 (Alaska 1978); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

It is generally recognized that airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where upon defendant’s briefcase being passed through airport X-ray machine, airport employee could not discern any of its contents on the screen, she was justified in searching the briefcase and in opening a purse containing narcotics found inside the briefcase to make sure that it contained no weapons. Spezialy v. State, 661 P.2d 1095 (Alaska Ct. App. 1983).

Where, after he discovered cocaine powder in a package supposedly containing T-shirts, an airlines employee called the police and when the investigator arrived, removed a T-shirt from the box and showed the investigator the plastic bag containing the powder, and where the investigator then took the bag and tested the powder, this inspection was permissible and the subsequent seizure of the powder justifiable, because there is no indication the inspection was done at the direction of the police, nor was there an attempt by the officer to open the original package since the investigator was handed a T-shirt from a box opened by the airlines employee, and the powder contained in plastic bags was pointed out to him. No police search had occurred up until this time. There was no “prying into hidden places for that which is concealed” by the officer, and thus the contraband was in plain view. State v. Stump, 547 P.2d 305 (Alaska 1976).

Although the police had advised the airline employees as to the latter’s right to search, and the airline employee in question had previously discovered drugs and cooperated with law enforcement officials, but the police had not requested a specific search of defendant’s package or participated in the initial discovery of the contraband, the employee’s conduct in opening the package, received under circumstances reasonably arousing suspicion, did not constitute governmental activity. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Where there was no evidence that an airline employee’s search was aimed at discovering weapons, explosives or other destructive substances, it was not made pursuant to the Air Transportation Security Act, Pub. Law 93-366, Title II, 88 Stat. 415 (1974), authorizing air carriers to condition transportation on a consent to search for such purpose; and the search was not governmental activity. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Although there was nothing about the packages themselves that aroused suspicion, nor was the physical appearance of the consignor out of the ordinary, where the airline employee thought the consignor might have been under the influence of something due to the consignor’s repetitive speech, exaggerated gesticulation, scribbled handwriting, possibly dilated eyes, and general nervousness, the airline employee had reasonable and articulable suspicions that the articles might be something other than what was declared. Thus, the employee’s intrusion in opening the packages was justified by the presence of a legitimate airline purpose: Verification of the contents of the boxes. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Where the initial opening of the package was performed by an airline employee without instigation from a government official and for a legitimate airline purpose, once the suspicious contents of the package had been observed by that employee, it was permissible to reshow the contents to an Alyeska Pipeline Security employee, even assuming arguendo that the security employee was a governmental official or agent at the time the package was reopened. Such a reshowing did not constitute a search by the Alyeska Pipeline Security employee, where he did not know that the package had been previously opened, he did not suggest that the package be opened until he was advised that it could be legally opened by the airline personnel, and he remained a passive observer of the contents of the package. Stange v. State, 559 P.2d 650 (Alaska 1977).

Where an airline employee’s search, which discovered a baggie containing a white substance, was valid, it follows that a police officer’s seizure of the package, in light of his narcotics experience and the sender’s misrepresentations concerning the contents of the package, was valid under the “plain view” doctrine since the baggie containing white powder was not “an apparently innocuous object.” Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where a government agency threatened airlines with administrative fines if they failed to implement screening profiles and hand-searches of selected passengers’ carry-on luggage, effectively coercing them to do the government’s bidding, the ensuing searches constituted state action. Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Independent airline purposes for airline inspections. —

See Bell v. State, 519 P.2d 804 (Alaska 1974); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Airport screening. —

Searches by means of airport screening come under the administrative search exception of the warrant requirement. State v. Salit, 613 P.2d 245 (Alaska 1980).

Since the purpose of searches under the Air Transportation Security Act of 1974, Pub. L. No. 93-366, Title II, §§ 201-202, 88 Stat. 415, is to prevent weapons from being brought upon planes for hijacking purposes and to discourage such conduct, the search must be as limited as possible to accomplish that purpose. Therefore, where a passenger’s garment bag had been subjected to an X-ray search, the contents were observable by this means, and no evidence of weapons or explosives was discovered, nothing justified a more intensive search than in the case of the bags of the other passengers. State v. Salit, 613 P.2d 245 (Alaska 1980).

While possession of narcotics paraphernalia discovered in handbag may be of evidentiary value, it is not illegal, per se, and cannot constitute probable cause for arrest. State v. Salit, 613 P.2d 245 (Alaska 1980).

Search of wallet. —

Riffling through a person’s wallet for contents which are unobservable from outside the wallet fits the definition of a search. Schraff v. State, 544 P.2d 834 (Alaska 1975); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Where defendant was arrested for armed robbery and after arrival at the police station, booked and taken to an interview room, where 20 minutes to one-half hour later she was asked to empty her pockets and her wallet was searched, such search was valid since evidence of an armed robbery clearly can exist on the person of the arrestee, whether it takes the form of cash (including marked money) or indications of premeditation (for example, floor plan sketches). Middleton v. State, 577 P.2d 1050 (Alaska 1978).

An examination of the tires of a vehicle is not a search. See Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

A trooper’s conduct did not constitute a search where facts showed that defendant himself retrieved the weapon and presented it to the trooper and there was no evidence of duress or coercion on the part of the troopers. McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Warrantless inspection of suitcase. —

Warrantless police inspections of the contents of suitcase did not constitute impermissible searches or seizures where in one instance the opening of the suitcase by the chief of hotel security was at most a repetition of initial private searches and in the other instance the suitcase was already open and the contraband was in plain view. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Transporting incapacitated person. —

An officer transporting a person incapacitated by drink has a valid reason to make a limited search for possible weapons which might be used to injure him. Peter v. State, 531 P.2d 1263 (Alaska 1975).

Where under the Uniform Alcoholism and Intoxication Treatment Act (AS 47.37), defendant should have been taken to a treatment facility or an emergency medical service, and where at that point the police would normally release him from custody and thus would not have direct access to items in the possession of the intoxicated person, any items that were revealed or came into the possession of the police officer solely as a result of a more detailed search performed when defendant was placed in jail were the subject of an illegal search and seizure and should be suppressed. Peter v. State, 531 P.2d 1263 (Alaska 1975).

AS 47.37.170 does not violate section. —

While a statute countenancing an unreasonable search would be in violation of the 4th amendment to the United States Constitution and this section, the provisions of AS 47.37.170 , relating to treatment and services for intoxicated persons and persons incapacitated by alcohol, constitute no such violation. Peter v. State, 531 P.2d 1263 (Alaska 1975).

Breath test. —

A search of a person incident to an arrest is a recognized exception to the search warrant requirement. A breath test constitutes a search. State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990).

Implied consent statute is unconstitutional. —

Having considered the three factors from the Supreme Court’s analysis in Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), the court concluded that AS 28.35.031(g) , relating to implied consent by drivers for chemical or breath tests, permits unreasonable intrusions contrary to the Fourth Amendment of the U.S. Constitution and to Alaska Const., art. I, § 14. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Implied consent statute — exigent crcumstances. —

The implied consent provisions of AS 28.35.031(g) satisfied minimal constitutional requirements for warrantless searches when exigent circumstances existed. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Probationers and parolees are treated similarly for purposes of search and seizure questions. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Scope of search for probation violator in parents’ home. —

Where officers had a warrant for defendants’ son’s arrest, because they knew that the son resided with defendants at their home and because they had probable cause to believe that the son was currently within that residence, the officers acted lawfully when they entered the residence to arrest the son for violating his probation; the officers needed no separate warrant to enter defendants’ personal bedroom to search for their son. Anderson v. State, 145 P.3d 617 (Alaska Ct. App. 2006).

Parole arrest warrants. —

The conditions placed on a parolee make him subject to arrest for a wide variety of causes which do not apply to others. Davenport v. State, 568 P.2d 939 (Alaska 1977).

To impose the same requirements on the arrest of a parolee as are otherwise mandated for an arrest including an affidavit or sworn complaint would have constituted meaningless additional time and effort on the part of parole officers. Nevertheless, except in cases where exigencies required an immediate arrest, the parole officer should have secured a warrant from the parole board or a member of it based on the requirement in former AS 33.15.200. Davenport v. State, 568 P.2d 939 (Alaska 1977).

For a discussion of cases decided in state and federal courts addressing the subject of parole arrest warrants, see Davenport v. State, 568 P.2d 939 (Alaska 1977).

Right to search as condition of release on parole. —

Depending on the nature of the crime involved, a condition of release granting authorities the right to search premises and persons at reasonable times could stand muster under both the Alaska and federal constitutions. Released offenders subject to searches and seizures conducted pursuant to such conditions would be protected from undue harassment by the limitations of due process. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Although the supreme court does not believe that a released offender has voluntarily consented to all conditions of parole and it likewise rejects the custody rationale under which a released offender was regarded as constitutionally entitled to no more rights than he would have enjoyed if incarcerated, it recognizes that conditioning release on some forms of search by correctional authority is both consistent with the goal of rehabilitation and necessary for the proper functioning of the parole system. To this extent, parolees have a diminished expectation of privacy. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Warrantless searches of parolees or probationers and their residences should not be countenanced unless there is a direct relationship of the searches to the nature of the crime for which the parolee was convicted. Roman v. State, 570 P.2d 1235 (Alaska 1977); Sprague v. State, 590 P.2d 410 (Alaska 1979).

The goals of rehabilitation of the individual and protection of the public do not require that a parolee be subject to searches in a manner different from other persons. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Where defendant was convicted of possession of heroin, the right to request specimens for urinalysis and to search him and his quarters at reasonable times and in a reasonable manner to assure that he would not continue to possess illegal drugs was necessary to the proper functioning of the parole system; and where the right to perform such searches was limited to parole officers and peace officers acting under their direction, the parole authorities were not clearly mistaken in authorizing the search and in conducting it. Further, where defendant’s inability to furnish a specimen for urinalysis prevented use of that means of ascertaining whether he was using drugs, in view of his imminent departure, it was reasonable to search his person at that time. Roman v. State, 570 P.2d 1235 (Alaska 1977).

It was improper for the superior court to condition the probation of a defendant convicted for burglary on the requirement that he submit to a warrantless search, upon the request of a probation officer, for the presence of narcotics or dangerous drugs, since defendant was not accused of any drug offenses, nor was it shown that he was addicted to drugs or that his involvement in the burglary was precipitated by a need for money to purchase illegal drugs. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Parolee otherwise has same protections as ordinary person. —

Except in circumstances where reasonably conducted searches and seizures are required by the legitimate demands of correctional authorities and are set forth as conditions of parole by the Parole Board, the Alaska Constitution entitles a released offender to the same protections as an ordinary person. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Parole Board authorizes searches. —

Conditions of parole authorizing searches should be specified by the Parole Board and not left to the discretion of individual parole officers. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Parolee should have the right to be heard before conditions authorizing searches are imposed. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Roman v. State, 570 P.2d 1235 (Alaska 1977), not given limited retroactive effect. —

See Gonzales v. State, 586 P.2d 178 (Alaska 1978).

Search of attache case. —

Warrantless search of defendant’s attache case by his parole officer, acting within the scope of his authority, was not constitutionally infirm. Gonzales v. State, 586 P.2d 178 (Alaska 1978).

Surrender of gun. —

Where, although defendant voluntarily surrendered his gun to the trooper for the purpose of immediate inspection, he did not thereby intend to give up custody of the weapon for other purposes, a seizure occurred when the trooper took the gun; however, once the gun was presented to the troopers for viewing they were entitled to seize it as evidence in plain view. McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Department of Revenue’s summons which was reasonably specific, asked only for material relevant to a legitimate tax inquiry, and was enforceable only by court order did not violate taxpayer’s right against unreasonable searches and seizures. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Importation of whiskey by mail. —

Once the whiskey had been lawfully exposed to the plain view of postal authorities, by a proper warrantless search of a fourth class package, nothing of constitutional significance prevented those authorities from surrendering the whiskey, as contraband, and without a warrant, to law enforcement officers charged with investigating violations of state law. Bergman v. State, 874 P.2d 958 (Alaska Ct. App. 1994).

No probable cause was shown. —

Where defendant controlled a small wooden box and refused every official request to give it up or look into it, and where he claimed he did not have a weapon when, in fact, the officer saw one in his pocket, these facts did not provide any “nexus” between the box and contraband, and the police did not have probable cause to believe that contraband would be found in the box. Dayton v. State, — P.2d — (Alaska Ct. App. Apr. 19, 2000) (memorandum decision).

Applied in

Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983); Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983); McCracken v. State, 685 P.2d 1275 (Alaska Ct. App. 1984); State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Quoted in

Hunnicutt v. State, 527 P.2d 1292 (Alaska 1974); City & Borough of Juneau v. Quinto, 684 P.2d 127 (Alaska 1984); State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Cited in

Sidney v. State, 571 P.2d 261 (Alaska 1977); Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979); Nelson v. State, 628 P.2d 884 (Alaska 1981); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982); Elson v. State, 659 P.2d 1195 (Alaska 1983); Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); Cullom v. State, 673 P.2d 904 (Alaska Ct. App. 1983); Shamberg v. State, 762 P.2d 488 (Alaska Ct. App. 1988); McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000); Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004); Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005); State v. Heisey, 271 P.3d 1082 (Alaska 2012).

II.Issuance of Warrants

A.In General

Neutral and detached magistrate. —

The amount of time spent in reviewing the affidavit for a search warrant is not by itself controlling of the magistrate’s neutral and detached manner. Since the purpose of requiring that warrants be issued by a neutral and detached magistrate is to assure that the inference of probable cause is drawn by a person who is not in a position to be influenced by personal or professional motives, what is required of that person is severance and disengagement from activities of law enforcement. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

There is a presumption that a judicial officer acts in a neutral and detached manner when he issues a warrant, and a magistrate does not lose his neutral and detached character merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warrants by him. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Where an officer had a short period of time in which to secure a warrant, in light of the exigencies of the situation, it was not improper for a magistrate to meet the officer at a parking lot near the airport where the subject matter of the search was to be picked up by the suspect. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Court must have facts. —

The court must have all the pertinent facts before it in order to determine whether there is sufficient, properly obtained evidence providing probable cause for a warrant to issue. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The question of whether an affidavit contains sufficient facts to establish probable cause for the issuance of a search warrant is a question of constitutional stature; it is imperative that a magistrate be presented with adequate supporting facts, rather than mere affirmations of suspicion or belief. Milne v. State, 607 P.2d 360 (Alaska 1980).

Implied mandate of truthfulness. —

The state and federal constitutional requirement that warrants issue only upon a showing of probable cause, in the opinion of the supreme court, contains the implied mandate that the factual representations in the affidavit be truthful. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Courts must investigate truthfulness. —

Since search warrants issue ex parte, the courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, challenges to the search warrant and affidavit may be properly entertained during the suppression hearing. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Duty of candor. —

Police and prosecutors owe a duty of candor to the court, particularly in light of the ex parte nature of proceedings for the issuance of a warrant, and must not withhold information which may taint the source of the probable cause they put forth. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The constitutional protection against warrantless invasions of privacy is endangered by the concealment of relevant facts from the district court issuing the warrant. Warrants issue ex parte and the issuing court must rely upon the trustworthiness of the affidavit before it. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

A false affidavit in support of a search warrant can, in appropriate circumstances, nullify the warrant. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Before the supreme court can hold that concealment of relevant facts will invalidate a warrant, it must find that the information will materially influence the district court judge to issue a warrant he would have otherwise denied. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Misstatement must be material. —

In order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Misstatement in search warrant was not sufficiently material to invalidate warrant. Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Misstatement in search warrant was not plain error. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Observations of third party. An affidavit may rely on the observations of a third party, so long as a substantial basis for crediting the hearsay is presented. State v. Davenport, 510 P.2d 78 (Alaska 1973); Keller v. State, 543 P.2d 1211 (Alaska 1975).

A search warrant may be issued on the basis of reasonably reliable hearsay statements from a police informant. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Use of informant’s tip. The test for crediting an informant’s tip which is used to establish probable cause for a search warrant is that the information be reliable and the informant trustworthy. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Informer’s identity need not be disclosed. —

There is no constitutional basis for requiring the disclosure of an informant’s identity. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Detail required where personal knowledge of informant not alleged. —

Absent an affirmative allegation of personal knowledge of the informant in the affidavit, the facts supplied must be so detailed as to support an inference of personal knowledge. Harrelson v. State, 516 P.2d 390 (Alaska 1973); Keller v. State, 543 P.2d 1211 (Alaska 1975).

An affidavit is not deficient merely because it did not explicitly set forth the means by which the informant obtained his information. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

In order to prevent groundless searches based on wholly unreliable information from being inflicted on citizens of the state, the circumstances that would justify a magistrate in crediting an informant’s statements shall be set out with specificity in the affidavit. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Customarily, this requirement has been met by means of an allegation that the informant had given accurate information in the past. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Generally, the detail must be sufficient so that a magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Under both federal law and Alaska law, where an affidavit relies upon the assertions of confidential informants to establish probable cause, the affiant must set forth facts which enable the magistrate to judge for himself the probable credibility of the informant. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Corroboration of informant’s tip. —

As an alternative to a demonstration that the informant was personally trustworthy, the United States supreme court has indicated that an affidavit which alleged facts tending to corroborate the reliability of the information (as opposed to the informer himself) would be constitutionally sound also. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

A showing of probable credibility of a confidential informant is adequate where the affidavit alleges “that the informant had given accurate information in the past.” Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The credibility of an informant’s tip could be confirmed by independent corroboration of incriminating facts by the police. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Probable cause may rest on reasonably trustworthy information from an informant. However, some of the details of the information given by the informant must be verified before an arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Police are not required to verify an incriminating fact before corroboration can be used to demonstrate the reliability of an informant. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Minimum amount of detail determined on case-by-case basis. —

The minimum amount of specificity or detail necessary to support an inference that the source of the informant’s tip is trustworthy can only be determined on a case-by-case basis. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Independent verification unnecessary. —

Where informer was found to be credible, her information was based on personal knowledge, and her testimony was given under oath, the search warrant need not be declared invalid for lack of factual corroboration. Hodsdon v. State, 698 P.2d 1224 (Alaska Ct. App. 1985); Schmid v. State, 615 P.2d 565 (Alaska 1980).

Citizen informers. —

See Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Probable cause may rest on reasonably trustworthy information from an informant. If the informant is a cooperative citizen rather than informant from criminal milieu, his or her reliability need not be established before the arrest. However, some of the details of the information given by the informant must be verified before the arrest. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Citizen informant established. —

Despite defendant’s confession to other crimes and the grant of immunity for them, defendant remained a citizen informant to evaluate his credibility and probable cause, where defendant had recounted a shooting, admitted that he had been in the car and had personally witnessed the shooting, and before defendant went to the police voluntarily told another person about having witnessed the shooting. Defendant was a citizen informant who went to the police, not to seek personal advantage, but because he thought it was the right thing to do. Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Sufficient corroboration. —

Information from the informant was sufficiently corroborated by the police officer’s own observations to establish probable cause for arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Police’s personal observations. —

Where the sworn testimony of a police officer based upon the police officer’s personal observations and without reliance upon hearsay testimony gave probable cause to believe that contraband would be found on certain premises, the search warrant was properly issued for a search of the premises. State v. Beckley, 527 P.2d 33 (Alaska 1974).

Police officer’s knowledge of a suspect’s reputation was a “practicable consideration of everyday life” upon which a magistrate may properly rely. Kristich v. State, 550 P.2d 796 (Alaska 1976).

Sufficient probable cause established. —

Where the hearsay relied upon by an affiant in his affidavit for a search warrant was based on the information of an identified informant, and that information was acquired by the informant’s own observation, and furthermore, since the independent discovery at the time of defendant’s arrest of a handgun possessing a serial number matching the serial number of a stolen handgun tended to corroborate the informant’s story, there was a substantial basis for crediting the hearsay. Therefore the affidavit established sufficient probable cause for the issuance of a search warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

An affidavit supporting the issuance of a search warrant was sufficient where there was a substantial basis for crediting the observations of the informant, which were related in the affidavit. Jackson v. State, 509 P.2d 278 (Alaska 1973).

Issuance of warrant upheld. —

Judge was correct in sustaining the issuance of the electronic warrant by the magistrate, who not only heard the informant testify in person but had the opportunity to observe her demeanor. Hodsdon v. State, 698 P.2d 1224 (Alaska Ct. App. 1985).

Trial court properly denied defendant's motion to quash search warrants because probable cause to search a residence was linked to the IP address, not to a particular person, and the search warrant affidavit explicitly stated that the seizure of evidence from the residence would assist in the identification of the individuals involved; the affidavit thoroughly explained a detective's investigation. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Warrant issued in bush community. —

The showing necessary for issuance of a proper search warrant should not be relaxed where the warrant is issued in a bush community. Milne v. State, 607 P.2d 360 (Alaska 1980).

Anticipatory search warrants. —

An anticipatory search warrant is one which is based upon an affidavit showing probable cause that at some future time — but not presently — certain evidence will be at the location set forth in the warrant. Such warrants are constitutionally permissible and not invalid for lack of present probable cause, and they are not precluded by the statutory authority of AS 12.35.020 (3), which requires only reasonable belief of possession of the item for issuance of the warrant, without specifying that possession must be contemporaneous with the issuance, as distinct from the execution, of the warrant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

For an anticipatory warrant to be valid, there must be probable cause to believe that the items to be seized will be at the place to be searched at the time the warrant is executed, or in other words, that the warrant will not be prematurely executed. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In anticipatory warrant situations, the magistrate should insert a direction in the search warrant making execution contingent on the happening of an event which evidences probable cause that the item to be seized is in the place to be searched, rather than directing that the warrant be executed immediately or forthwith. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Just as anticipatory warrants based on probable cause are constitutionally permissible as long as the evidence creates a substantial probability that the seizable property will be on the premises when searched, such a warrant may be issued where positivity as required by Cr. R. 37(a)(3)(iv) is the standard. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Search warrant for defendant’s residence complied with traditional requirements for anticipatory warrants, as well as with the specific requirements adopted by the Alaska supreme court. State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983).

Distinction between valid anticipatory warrant and premature warrant. —

See State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983).

Nighttime searches. —

A nighttime search is a more extreme intrusion than one conducted in the daytime and under Cr. R. 37(a)(3)(iv), providing that warrants be served between 7:00 a.m. and 10:00 p.m. unless the affiant is positive the property is at the place to be searched; the householder is entitled to the assurance that the judge issuing the warrant has decided that the facts presented in the affidavit justify a nighttime search. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In approaching questions of whether a warrant should be issued for a search after 10:00 p.m., the decision of the judicial officer who has issued the warrant is to be given great deference and the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The language in Cr. R. 37(a)(3)(iv) that a search warrant shall not be served after 10:00 p.m. unless “an affiant is positive that the property is on the person or in the place to be searched” must be construed to equate “positive” with being reasonably certain. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The requirement of positivity expressed in Cr. R. 37(a)(3)(iv) is met where the affidavit is explicit and detailed, the ultimate source of the information was said to be one of the persons to whom the warrant was directed and the informant who conveyed it was said to be reliable, and further, the circumstances concerning the shipment of the package which was the subject of the warrant were detailed and suspicious, and corroborated the information conveyed by the informant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

An explicit statement of positivity is not required by Cr. R. 37(a)(3)(iv), which requires that an affiant be positive that the items sought will be in the place specified when a warrant is to be served after 10:00 p.m. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Constitutional requirement of oath held met. —

See Milne v. State, 607 P.2d 360 (Alaska 1980).

Affidavit insufficient. —

Affidavit in support of search warrant did not provide sufficient information to enable a magistrate to independently determine probable cause under either current or former federal law where there was nothing in the affidavit establishing the informant’s credibility or giving the magistrate an independent basis for evaluating the informant’s truthfulness, and there was nothing in the affidavit indicating that an independent investigation was conducted to corroborate the accuracy of the informant’s contention that defendant was a cocaine dealer. Jones v. State, 681 P.2d 364 (Alaska Ct. App. 1984), aff'd, 706 P.2d 317 (Alaska 1985).

It is imperative under the Alaska Constitution that a magistrate be presented with adequate supporting facts so that he can independently test a confidential informant’s basis of knowledge and veracity; where an affidavit did not properly establish the informant’s veracity, the warrant was improperly issued and the fruits of the search had to be suppressed. State v. Jones, 706 P.2d 317 (Alaska 1985).

B.Probable Cause

Search for subject of arrest warrant. —

The 4th amendment of the United States Constitution and this provision require probable cause to justify entering a residence to search for the subject of the arrest warrant. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

Probable cause alone does not justify a warrantless search and seizure of evidence, since absent exigent circumstances a search warrant must first be obtained from an impartial judicial officer. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Warrantless search of package in plain view. —

Under the Fourth Amendment to the United States Constitution police may not open a package without a warrant under the plain view theory based merely on probable cause. The police are required to have more than probable cause to inspect the contents of the package; the officer can search the package only when the information which the officer has rises to a state of certitude, rather than mere prediction. To the extent that Reeves v. State , 599 P.2d 727 (1979) authorizes the police to search a closed container without a warrant based on probable cause it is not consistent with federal law. Newhall v. State, 843 P.2d 1254 (Alaska Ct. App. 1992).

“Probable cause” is a concept which is not capable of precise definition, since it must cover a wide range of factual settings. Keller v. State, 543 P.2d 1211 (Alaska 1975).

It is not certainty but rather probable cause which is required to justify a plain view seizure. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Probability, not proof, is the standard for probable cause. Kristich v. State, 550 P.2d 796 (Alaska 1976).

When probable cause exists. —

Probable cause exists if the facts and circumstances known to the officer would warrant a prudent man in believing that an offense had been or was being committed. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Probable cause is made out when reliable information is set forth in sufficient detail to warrant a reasonably prudent man in believing that a criminal offense has been or was being committed. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

For probable cause to exist, the facts and circumstances within the officers’ knowledge must be sufficient in themselves to warrant a man of reasonable caution in believing that a crime has been or is being committed. Chilton v. State, 611 P.2d 53 (Alaska 1980).

More than good faith on the part of the officer is required for probable cause. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Probable cause exists where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Keller v. State, 543 P.2d 1211 (Alaska 1975); Cruse v. State, 584 P.2d 1141 (Alaska 1978); Pistro v. State, 590 P.2d 884 (Alaska 1979).

A police officer is usually authorized to arrest without a warrant if he has probable cause to believe a felony has been committed and probable cause to believe that the person to be arrested is the one who committed it. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

The standard for determining whether probable cause existed is whether, before making an arrest, a police officer is aware of facts and circumstances which are sufficient in themselves to warrant a prudent person in believing that an offense has been or is being committed. Skuse v. State, 714 P.2d 368 (Alaska Ct. App. 1986).

Probable cause cannot be established solely on the basis of a good faith belief on the part of the officer that there is probable cause to arrest. In order to establish probable cause, there must exist facts and circumstances known to the officer which would warrant a prudent person in believing that an offense has been or is being committed. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

A police officer with a reasonable suspicion that imminent public danger exists or that serious harm that has recently occurred was caused by a particular person may stop that person. Ebona v. State, 577 P.2d 698 (Alaska 1978).

The presence of the pistol and articles of clothing that looked like new merchandise, together with the circumstances of the car having been at the burglarized building shortly after midnight and having been driven away without headlights on, would be enough to warrant a prudent man in believing that a felony had been committed. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While defendant’s presence with other suspect at the airport, standing alone, would not have justified defendant’s arrest no matter how strong the evidence against the other suspect, it does not follow that the evidence against the other suspect was irrelevant to a finding of probable cause to arrest defendant. Knowledge that two men had participated in the killing of the victim, that defendant generally matched the description of one of those men and that the other suspect was probably the other, and that defendant and the other suspect were in each other’s company at the Fairbanks airport approximately eight hours after the killing, planning to leave the state, established probable cause to arrest defendant as a matter of law. State v. Burdine, 698 P.2d 1216 (Alaska Ct. App. 1985).

There was a sufficient nexus between defendant’s residence and the drug transactions in question to justify the magistrate in issuing a warrant authorizing a search of that residence. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Where the sole basis for the officers’ departure from the public way was that they heard voices apparently coming from the rear of certain apartments, an area where they had previously accosted individuals smoking marijuana, and there was nothing in the record to suggest that the officers had reason to believe, either from the voices or otherwise, that such illegal activity was occurring on that particular occasion, this information alone did not rise to the level of probable cause. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Facts and circumstances established probable cause to make the arrests. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Although the various factors, if taken individually, were as readily consistent with innocence as guilt, the factors did not occur individually or in isolation from each other and the aggregate weight was fully sufficient to meet the established standard of probable cause. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Court might properly issue a search warrant if the state establishes probable cause to believe that the marijuana is possessed for commercial purposes, or that the amount of marijuana is in excess of the permitted quantity. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Trial court properly denied defendant's suppression motion based on the breadth of a search warrant because his rights under the Fourth Amendment and Alaska Constitution were preserved; there was probable cause to search computers and digital storage devices at a residence because aside from images and videos of child pornography, the only other evidence the police seized from defendant's devices were items the warrants separately authorized the police to search for and seize. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019) (memorandum decision).

The state bears the burden of proving probable cause by a preponderance of the evidence. Reeves v. State, 599 P.2d 727 (Alaska 1979) (memorandum decision).

When probable cause does not exist. —

Evidence that a person possesses an unspecified quantity of marijuana in their home does not, standing alone, establish probable cause to believe that the person is breaking the law; the search and seizure provision of Alaska Const. art. I, § 14 prohibits the issuance of a search warrant. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Search of defendant's laptop computer violated the Fourth Amendment, and therefore the evidence against her obtained as a result of that search should have been suppressed, because the search warrant did not show that the officers had probable cause to believe that documents pertaining to the business and finances of defendant's landlord would be found on defendant's laptop, which was located in defendant's apartment. The search warrant also failed to limit or restrict the officers' search of defendant's laptop so as to reasonably ensure that they confined their search to those files and folders that were likely to contain evidence concerning the landlord. Pohland v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2018), superseded, modified, 436 P.3d 1093 (Alaska Ct. App. 2019), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2019).

Probable cause not established in warrant application. —

Defendant was entitled to suppress evidence of marijuana plants seized from his home pursuant to a search warrant, because the state’s warrant application failed to establish probable cause to believe that defendant’s possession of marijuana was illegal. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Evidence of informant’s veracity is factor for determining probable cause. —

Evidence presented against the defendants was obtained by an illegal search and seizure which violated their rights under the fourth amendment of the United States Constitution and this section where the informant was from the criminal milieu and there were insufficient indicators of his veracity to support a finding of probable cause for issuance of a warrant. Where no information is presented to a magistrate from which he can make a detached and independent determination of probable cause, a warrant cannot be deemed valid. Clark v. State, 704 P.2d 799 (Alaska Ct. App. 1985).

Information presented to a district court failed to establish probable cause for the issuance of a warrant authorizing the search of appellant’s resident where the main incriminating information was supplied by two informants of unproven credibility. Wilson v. State, 82 P.3d 783 (Alaska Ct. App. 2003).

Police stop based on REDDI call upheld. —

Driver’s license was properly revoked where the officer had reasonable suspicion to stop a driver based upon a Report Every Drunk Driver Immediately report; although the truck described did not match the driver’s truck exactly, the trooper was reasonable in believing that the truck was the one identified by the REDDI caller. Saltz v. Dep't of Admin., Div. of Motor Vehicles, 126 P.3d 133 (Alaska 2005).

Probable cause to search particular place. —

In the absence of any eye witnesses who saw the items sought in the place to be searched, a nexus can be established based on other factors, including (1) the type of crime involved; (2) the nature of the items sought; (3) the extent of the suspect’s opportunity to conceal the items; and, (4) normal inferences as to where a criminal would likely hide the items sought. State v. Conway, 711 P.2d 555 (Alaska Ct. App. 1985).

Probable cause to stop vehicle. —

Traffic stop of a driver of an ATV which was observed by an officer to have crossed the road without stopping was proper. Accordingly, there was no basis to suppress evidence of driver intoxication found during the stop which gave rise to a charge of, and conviction for, DUI. Conway v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Independent judicial scrutiny protects against searches not justified by a prior determination of probable cause. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Decision of issuing judge given deference. —

As to whether probable cause existed for the issuance of the search warrant, the decision of the issuing judge is to be given great deference, and the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Ellsworth v. State, 582 P.2d 636 (Alaska 1978).

In determining whether supportive evidence of a crime exists sufficient to justify the issuance of search warrants, the question to be asked is whether the issuing judge was provided sufficient evidence to make an independent finding of probable cause for the issuance of the warrants. It has been suggested that in making this determination on appeal “great deference” be given the findings of the issuing judge, that he not be “confined by niggardly limitations,” and that “probability” rather than proof be the standard for probable cause. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Probable cause to search based on person’s voluntary presence at site. —

Where the magistrate found probable cause to believe that the residence named in the application for a warrant was being used as a ‘crack house’, the probable cause for the search of two defendants who arrived at the house during the execution of the warrant depended on their voluntary presence at the site of an ongoing criminal enterprise. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

Staleness of supporting information. —

Defendant's claim that the information used to support a search warrant was too stale was rejected given the serial nature of the sexual assault charges. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Interior of containers. —

Probable cause gained after the examination of the interior of a container cannot be used in retrospect to justify that seizure and examination. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Evidence of additional crimes. —

The literal language of the United States and Alaska Constitutions requires only that the warrant establish probable cause to search and describe the place to be searched and the thing to be seized; therefore, where the warrant established probable cause to search defendant’s residence and vehicle for the assault rifle, ammunition, and other evidence of his probation violation, the fact that the magistrate and the police may have believed that these items were also evidence of defendant’s game violation under AS 16.30.010 was not controlling. Lewis v. State, 9 P.3d 1028 (Alaska Ct. App. 2000).

C.Particularity of Description

“Particular description” requirement. —

The “particular description” requirement protects against the evil of the general warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The requirement that warrants particularly describe the things to be seized was designed to prevent general exploratory searches of a person’s belongings. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The object of the clause of the 4th amendment requiring particularity in regard to the article to be seized under a search warrant is to prevent overbroad generalized searches and seizures. Bell v. State, 482 P.2d 854 (Alaska 1971).

The requirement that warrants particularly describe the items which are to be seized renders general searches under them impossible and prevents the seizure, with several specific exceptions, of one thing under a warrant describing another. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Characterization of property as having been stolen at given time or from given place will not normally suffice to satisfy the requirement of particularity, since such characterization does not enhance an officer’s ability to distinguish between property unlawfully held that is subject to seizure and property of the same general class that is lawfully held and not subject to seizure. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Law enforcement officers and judges should exercise great care in drafting and ratifying a search warrant's description of the things to be searched, particularly searches of digital computing and storage devices, where the likelihood of the seizure of innocent articles by mistake is the most substantial. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Requirement not rigidly construed. —

The requirement of particularity must not be rigidly construed to require unreasonable or unnecessary detail in the description of property to be seized. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Where the nature of the property or the facts involved in a specific case preclude detailed description, unrealistic standards cannot properly be applied; the amount of particularity that is required must be determined with practicality and common sense. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Warrants authorizing the police to search any and all persons present at the time of the serving of the warrant are not per se unconstitutional; such a warrant is supportable if the warrant application provides probable cause to believe that all persons present upon execution of the warrant would have drugs or drug paraphernalia on their persons. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

An arctic entry-way (an enclosed vestibule or small porch attached to the residence with its own door) was part of the premises of the dwelling for purposes of searching persons ‘present on the premises’ at the time of the execution of a search warrant. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

General search not countenanced. —

The supreme court will not countenance the use of an otherwise valid warrant for the purpose of conducting a generalized search for incriminating evidence, nor will it look with favor upon any search undertaken with the undeclared intention of seizing property which has not been described in the warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973); Klenke v. State, 581 P.2d 1119 (Alaska 1978).

Generic reference to jewelry. —

Warrant authorizing seizure of “jewelry stolen from 100 E. Fireweed Lane # B on February 6, 1980” was unduly broad and failed to comport with the constitutional requirement of particularity. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Generic reference to jewelry in the warrant did not constitute a description that was reasonably specific where an itemized list detailing the property stolen in the burglary had been prepared and was available when the warrant was applied for and issued, and there were no circumstances excusing the need for a particular description. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Incorporation of extrinsic documents by reference. —

Extrinsic documents may not be incorporated informally into the body of a warrant by implication. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Although the text of a supporting affidavit or an itemized inventory of property may properly be incorporated by reference in a warrant, incorporation of an extrinsic document must be formally reflected in the warrant; the warrant must, on its face, refer to the extrinsic document that it purports to incorporate, and the intent to incorporate the document must be stated. In addition, a copy of the document incorporated normally must be attached to the warrant, or, at the very least, the warrant must direct that the extrinsic document accompany it at the time of execution. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Sufficient description. —

The requirement that places to be searched be particularly described is ordinarily said to be met if the description is such that the officer with the search warrant can, with reasonable effort, ascertain and identify the place intended. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Technical accuracy in describing the place to be searched is not required, and if there is no reasonable probability that the wrong premises will be searched, the description is sufficient. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Warrant which anticipated a search of whatever place the package in question was taken to and limited the search to a search for that package was not a general warrant and was not invalid. State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983).

Where warrant authorized a search of whatever person picked up the package in question or the premises of whatever place the package was taken to, the police followed the package to a residence but could not tell whether the package entered the residence or remained in the car, and subsequently the police legitimately stopped the car and the package legitimately came into police hands, under these circumstances the police could open the package. State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983).

Authorization to search for knives was not unconstitutionally broad where the victims described two different knives to the investigators, and even if the warrant was overly broad, most of the items seized from the house were not admitted and were of marginal relevance. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Warrant for participant monitoring. —

There is no requirement that warrants issued for participant monitoring of conversations contain particularized descriptions of location in which monitoring will occur. Jones v. State, 646 P.2d 243 (Alaska Ct. App. 1982).

Defendant was not entitled to suppress a recorded phone conversation between defendant and an alleged sexual assault victim when the police obtained a warrant to record a phone conversation between the victim and defendant, but the warrant inadvertently stated that the conversation would take place between the victim and a real and different person than defendant because there was no reasonable probability the wrong conversation was to be recorded. Cleveland v. State, 469 P.3d 1215 (Alaska Ct. App. 2020).

A general warrant may not be rehabilitated by reference to subsequent police conduct. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Caution and self-restraint on the part of officers executing a search warrant that is unreasonably vague in its description of property to be seized cannot rehabilitate the warrant’s failure to describe property with the necessary amount of particularity. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

The burden of proof on questions pertaining to the sufficiency of a warrant description is on the challenger. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Federal courts have carved out numerous exceptions to the general rule requiring particularity. Bell v. State, 482 P.2d 854 (Alaska 1971).

Evidence not described in warrant. —

An officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant. Bell v. State, 482 P.2d 854 (Alaska 1971); State v. Davenport, 510 P.2d 78 (Alaska 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

There is no logical or constitutional reason, given a lawful entry pursuant to a search warrant by an officer who is conducting a good faith search, why the officer conducting the search should be prohibited from seizing evidence not described in the search warrant where the searching officer has a reasonable basis for drawing a connection between the observed evidentiary objects and the crime which formed the basis of the search warrant. Bell v. State, 482 P.2d 854 (Alaska 1971).

The supreme court has upheld the seizure of an item that had not been described in the search warrant, but which the executing officer had probable cause to believe was related to another crime being conducted in his presence. Thus, the items seized need not necessarily be connected to the crime which served as a basis for the search warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

But search must be conducted in good faith. —

Essential to the validity of the seizure of items which were not described in the search warrant is that the search which leads to the discovery of the unlisted material be conducted in good faith. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The supreme court cannot agree that simply because the police had reason to believe that they might find certain items not described in the search warrant in the course of their search, the search was therefore tainted with bad faith where the underlying basis for the intrusion into defendant’s home was legitimate, and the search was conducted in a lawful manner. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Officers must have probable cause to believe that the article not named in the warrant, but found during the search, will aid in a particular conviction for an offense. Probable cause under these circumstances exists only when the information the officers possess immediately following discovery is sufficient to warrant in a reasonable man of reasonable caution the belief that an offense has been or is being committed. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Probable cause to believe property stolen. —

The requirement that the incriminating nature of property be immediately apparent, so as to allow its seizure under the plain view exception to the warrant requirement, means only that the officer must have probable cause to believe the property is stolen, so as to be subject to seizure. Where the circumstances gave rise to a reasonable inference that the officers had stumbled upon stolen goods, the officers had probable cause to believe that the property was stolen. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Nexus between items to be seized and place to be searched. —

Searches have been upheld even though the nexus between the items to be seized and the place to be searched was based not on direct observation, as in the usual search and seizure case, but on other factors, including the type of crime, the nature of the items enumerated in the search warrant, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide the property sought. Metler v. State, 581 P.2d 669 (Alaska 1978).

It is not enough that the evidence seized was in plain view. There must, of course, be a nexus, automatically provided in the case of fruits, instrumentalities or contraband, between the item to be seized and criminal behavior. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Defendant's rights under the Fourth Amendment and Alaska Constitution were preserved because although the search warrants did not prescribe an explicit search protocol, the detectives employed a search tool that was designed specifically to identify child pornography; the search warrant was not specific to defendant but was based on probable cause to believe that someone was downloading child pornography at the residence associated with the IP address. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Trial court properly denied defendant's suppression motion based on the breadth of a search warrant because there was no indication detectives seized items other than defendant's computers and digital storage devices; even if the detectives lacked probable cause to seize items like calendars, ledgers, and date books, that would not invalidate the entire warrant but rather, it would result solely in suppression of those items. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Evidence which is in open view is not the product of a search, and the seizure of such evidence after a lawful entry violates no constitutional right of privacy. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Avery v. State, 514 P.2d 637 (Alaska 1973).

An officer may seize evidence which is legitimately in his plain sight. It is not necessary that the contraband be positively identified before it is seized. Daygee v. State, 514 P.2d 1159 (Alaska 1973); Bell v. State, 519 P.2d 804 (Alaska 1974).

It is no search to observe that which is in the plain view of an officer who is rightfully in a position to have that view. That an officer’s view is aided by a flashlight is irrelevant. The flashlight beam merely illuminated that which would have been visible in the light of day. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Clear and convincing evidence of the nature and presence of contraband within a package is sufficient to sustain a “plain view” seizure. Bell v. State, 519 P.2d 804 (Alaska 1974).

Under the “plain view” doctrine, certain evidence may be seized without the procuring of a warrant. Police officers need not turn their backs on evidence, instrumentalities, or fruits of a crime which are inadvertently discovered. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Opening clear glass vial containing white powder (cocaine) and testing the substance contained therein was justified under the “plain view” doctrine. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Plain view of evidence of a crime merely furnishes probable cause to believe that a crime has been committed. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Doctrine stated. —

One of the recognized exceptions to the warrant requirement is the plain view doctrine, which allows the warrantless seizure of evidence observed in plain view by a police officer from a place where he or she has a legal right to be. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Application of plain view doctrine. —

In its purest application the plain view doctrine does not deal with a search in a constitutional sense but simply sanctions the admission of evidence consisting solely of testimony as to the observations of an officer legally in the position from which the observations were made. However, the more difficult cases deal with the permissibility of official action in seizing physical evidence observed in “plain view.” Reeves v. State, 599 P.2d 727 (Alaska 1979).

Requirements for valid “plain view” seizure. —

Three basic requirements for a valid “plain view” seizure of evidence are: (1) The initial intrusion which 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. Reeves v. State, 599 P.2d 727 (Alaska 1979).

The rationale of the plain view exception to the warrant requirement is that a plain view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The plain view doctrine serves certain defensible purposes. State v. Davenport, 510 P.2d 78 (Alaska 1973).

But nexus must exist. —

It is not enough that the objects seized in the course of a search simply be in “plain view.” There must be some nexus — automatically provided in the case of fruits, instrumentalities and contraband — between the item seized and criminal behavior. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When “plain view” exception applies. —

The “plain view” exception applies where an officer lawfully executing a search warrant, or otherwise engaged in a lawful intrusion, inadvertently comes across evidence whose incriminating nature is immediately apparent. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The “plain view” doctrine is a court-created exception to the warrant requirement. Its basis is in logic. Anderson v. State, 555 P.2d 251 (Alaska 1976).

The words “plain view” are construed in their most literal sense. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Prerequisites for valid plain view seizure. —

State v. Spietz, 531 P.2d 521 (Alaska 1975).

The extension of the original justification for an intrusion is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Anderson v. State, 555 P.2d 251 (Alaska 1976).

The requirement that the incriminating nature of property be “immediately apparent,” so as to allow its seizure under the “plain view” exception to the warrant requirement means only that the officer must have probable cause to believe the property is stolen, so as to be subject to seizure. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The supreme court rejected the argument that the necessity of assembling the property and tracing serial numbers, as was done to determine whether particular items of property had, in fact, been reported stolen, belied the assertion that the incriminating nature of the property was “immediately apparent,” so as to be within “plain view” and subject to seizure. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

Passage of time between initial observations and entry has not been considered a significant factor. Davenport v. State, 568 P.2d 939 (Alaska 1977).

The incriminating nature of the item to be seized must be immediately apparent. Deal v. State, 626 P.2d 1073 (Alaska 1980).

What state must prove. —

When asserting the plain view exception, the state must prove not only that the evidence seized was in fact in plain view but also that the initial intrusion which afforded the view was lawful, that the discovery of the evidence was inadvertent, and that the incriminating nature of the evidence was immediately apparent. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Inadvertence requirement. —

While inadvertence is a precondition to a valid seizure of evidence under the plain view exception to the requirement that no search or seizure can be made without a warrant, the kind of plain view to which the inadvertence requirement applies only takes place after there has been an initial search or intrusion. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

The inadvertence requirement of the plain view doctrine has never been thought to apply where the observation precedes the intrusion. It does not prevent police officers who are lawfully positioned in a public area from intentionally looking for suspects or incriminating evidence freely visible within the confines of a constitutionally protected area. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Where a motel manager, after checkout time, tried to contact defendant by phoning his room and by knocking at his door; there was no response; and the manager then opened the door to his room in order to determine whether he had vacated, her authority to do so, at the time she would normally have done so, in accordance with her customary procedure, was not altered by the presence of the police, and, assuming the police were in a location which did not violate defendant’s rights before the door was opened, the manager’s opening of the door for a legitimate private purpose did not constitute an illegal search merely because the police were present. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Slides stored on shelf. —

Seizure of defendant’s slides stored on a shelf in his home, could not be sustained as within the “plain view” doctrine. The incriminating nature of the slides was not immediately apparent to the officers executing the search warrant, which authorized a search of defendant’s home for marijuana and related paraphernalia. Their action, in lifting the slides to the light to examine their contents, constituted a search of constitutional dimensions. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Officers entered home on visit. —

Where the initial entry into the mobile home of a probationer was justifiable as a visit, under the law prior to the decision in Roman v. State , 570 P.2d 1235 (Alaska 1977), once the officers were inside, their discovery of cocaine in plain view furnished the requisite probable cause to seize the contraband and to search other areas of the trailer, thus leading to the discovery and seizure of license plates from a stolen car, and such evidence consequently discovered was properly admitted. Soroka v. State, 598 P.2d 69 (Alaska 1979).

Entry into residence not justified. —

Plain view alone will not justify an entry into a private residence because plain view is not in itself an exception to the warrant requirement. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Plain view alone did not justify warrantless entry through doorway into defendant’s house. —

State v. Spietz, 531 P.2d 521 (Alaska 1975).

Observation from driveway. —

Where the driveway involved was a normal means of ingress and egress impliedly open to public use by one desiring to speak to occupants of the garage, or to park off the street while visiting occupants of the house, there was no invasion of rights to privacy when the police officer moved up the driveway, and the officer could constitutionally observe what was in plain view in the garage. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Search of visitor’s purse. —

Where in an investigation for armed robbery the police searched an apartment pursuant to a warrant and in the course of such search, opened a visitor’s purse, the police were justified in their action since they did not know whether the purse belonged to a permanent resident of the apartment or a visitor, no one spoke out claiming ownership and that it should be exempted from the warrant, and the police had no duty to solicit such a claim. Carman v. State, 602 P.2d 1255 (Alaska 1979); Waters v. State, 924 P.2d 437 (Alaska Ct. App. 1996).

Items in car’s interior. —

Items in plain view within a car’s interior can be seized without a warrant if the initial stopping of the vehicle was justified. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

III.Exceptions

A.In General

Search without warrant and apart from arrest. —

Police officers are occasionally faced with sudden and unexpected situations in which they may reasonably conduct a search without a search warrant and apart from a contemporaneous arrest, as in the case of a moving vehicle. Ellison v. State, 383 P.2d 716 (Alaska 1963).

To invoke the emergency aid doctrine, it is enough that the police have good reason to believe there might be, as opposed to knowledge that there is, someone injured in the premises. State v. Gibson, 267 P.3d 645 (Alaska 2012).

Need for official action must be compelling. —

The narrowly-defined classes of cases which justify invasion of privacy without a warrant are those instances where there is a “compelling need for official action and no time to secure a warrant.” Schultz v. State, 593 P.2d 640 (Alaska 1979).

In a case where a university police officer was erroneously informed by dispatch when sunset had occurred, when the officer attempted to stop defendant for operating his vehicle in violation of 13 AAC 04.010, which requires drivers to have their headlights illuminated 30 minutes after sunset, if the officer believed that the sun had set more than 30 minutes before he attempted to stop defendant, that belief was unreasonable; therefore, the officer’s actions in directing defendant to stop constituted an illegal seizure, and the exclusionary rule barred evidence of defendant’s violations. State v. Campbell, 198 P.3d 1170 (Alaska Ct. App. 2008).

Exceptions to warrant requirement. —

The following categories of exceptions to the warrant requirement can be identified: (1) A search of abandoned property; (2) a search in hot pursuit of a fleeing felon; (3) a search, with probable cause, to avoid destruction of a known seizable item; (4) a search of a movable vehicle; (5) an “inventory” search; (6) a search pursuant to voluntary consent; (7) a search in the rendition of “emergency aid”; (8) a “stop and frisk” search; (9) a search incident to an arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Under this constitutional guarantee, a search warrant must be issued before a person may be searched. There are exceptions to the rule, but they are limited to cases where the exigencies of a situation make it imperative that one’s right to privacy be invaded without first obtaining a search warrant. The exception most often made is where a warrantless search is made incident to a lawful arrest. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Warrantless search of premises where warrant was being obtained independently. —

Motion to suppress marijuana plants seized from defendant’s home was properly denied. Even if officers’ initial entry into the residence and their initial search of the residence were unlawful, the entry and search occurred while an investigator was in the process of applying for a warrant to search the residence; the authority granted by the warrant was an “independent source.” Starkey v. State, 272 P.3d 347 (Alaska Ct. App. 2012).

Scope of search conducted pursuant to exception. —

Inherent in the concept of “narrowly defined exceptions” to the warrant requirement is the requirement that a search conducted pursuant to such an exception must be no broader or more intrusive than necessary to fairly effect the governmental purpose which serves as its justification. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Each exception to the warrant requirement must be defined in terms of the reasonable and justifiable governmental purpose which it furthers. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Burden of proving conduct falls within exception. —

The state must establish by a preponderance of the evidence that search and seizure conduct falls within an exception to the warrant requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975).

The burden of proof is on the state to prove by a preponderance of the evidence that the exigencies of the situation make conduct of the search without a warrant imperative. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

The burden is upon police to demonstrate the compelling reasons which justified the search. Ellison v. State, 383 P.2d 716 (Alaska 1963).

When the state asserts any exception to the warrant requirement, the state has the burden of proof. Frink v. State, 597 P.2d 154 (Alaska 1979).

Once the constitutionality of the observation has been challenged through a motion to suppress, the burden is on the state to prove by a preponderance of the evidence that the officer was in a place where he had a right to be or was acting pursuant to an exception to the warrant requirement. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Validation of warrantless intrusion. —

Circumstances relevant to the determination of whether a warrantless intrusion can be validated under the search warrant requirement to prevent the imminent destruction of evidence include: The degree of urgency involved; the amount of time necessary to secure a warrant; the possibility of danger to police officers guarding the site while a warrant is sought; information indicating that the possessors of the evidence are aware the police are on their trail; and the ready destructibility of the evidence. Finch v. State, 592 P.2d 1196 (Alaska 1979).

Before a warrantless intrusion into a room can be validated under the exception to the warrant requirement to prevent the imminent destruction of evidence, there must be probable cause to believe that evidence is present, and the officers must reasonably conclude, from the surrounding circumstances and the information at hand, that the evidence will be destroyed or removed before a search warrant can be obtained. Finch v. State, 592 P.2d 1196 (Alaska 1979).

Roadblocks can properly be established when a serious crime has been committed for purposes of investigation or apprehension of a suspect where exigent circumstances exist and where the roadblock is reasonable in light of the particular circumstances of the case. Lacy v. State, 608 P.2d 19 (Alaska 1980).

Warrantless entries into a house 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. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Fishing vessel hold. —

Where a fishing vessel was tied to a fish processing vessel and in the process of being unloaded, the hold of the fishing vessel, which was in plain view of an inspector who was on the fishing vessel with consent, was not protected from search. Dye v. State, 650 P.2d 418 (Alaska Ct. App. 1982), hearing denied, 666 P.2d 48 (Alaska 1983).

Fish and game search with consent. —

The notice requirement of AS 16.05.180 , authorizing warrantless searches when investigating violations of fish and game laws, did not apply to a situation where peace officers searched property after having obtained the property owner’s consent. Mackelwich v. State, 950 P.2d 152 (Alaska Ct. App. 1997).

Driving while intoxicated. —

AS 12.25.033 , which permits a police officer to arrest a defendant for violation of AS 28.35.030 on probable cause but without a warrant, does not violate this section and the corresponding provisions of the federal constitution because these constitutional provisions are not offended by warrantless searches or arrests based on exigent circumstances and the legislature has determined that exigent circumstances exist where there is probable cause to believe a suspect is driving while intoxicated. Proctor v. State, 643 P.2d 5 (Alaska Ct. App. 1982).

Field sobriety tests are not searches. —

While breath tests are generally considered searches for constitutional purposes, typical field sobriety tests, including the horizontal gaze nystagmus test, are not; therefore, police do not need probable cause sufficient for an arrest before requesting typical field sobriety tests. Galimba v. Municipality of Anchorage, 19 P.3d 609 (Alaska Ct. App. 2001).

Use of exclusionary rule as sanction. —

The invocation of the exclusionary rule as sanction against the resort by police to excessive force in making an arrest was held inappropriate. State v. Sundberg, 611 P.2d 44 (Alaska 1980).

Activities open to public observation. —

Where a box office manager was stealing cash from ticket sales and university police, without obtaining a warrant, installed a hidden video camera which recorded her in the act of theft, the videotape was not obtained in violation of the manager’s constitutional rights, because activities that are open to public observation are not generally protected. Cowles v. State, 23 P.3d 1168 (Alaska 2001), cert. denied, 534 U.S. 1131, 122 S. Ct. 1072, 151 L. Ed. 2d 974 (U.S. 2002).

Because the trooper was standing in a public vantage point (the deck or walkway directly adjacent to the apartment that was open to the public) when he looked through the apartment window, his observation of the methamphetamine supplies inside the apartment was obtained lawfully, and he did not violate Alaska Const. art. I, § 14’s guarantee against unreasonable searches. Martin v. State, 297 P.3d 896 (Alaska Ct. App. 2013), cert. denied, 574 U.S. 909, 135 S. Ct. 280, 190 L. Ed. 2d 206 (U.S. 2014).

Employee drug testing. —

Municipality’s policy subjecting police employees and firefighters to suspicionless substance abuse testing was, for the most part, constitutional, but random testing provision was unreasonable and thus unconstitutional. Anchorage Police Dep't Emples. Ass'n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001).

Standard for investigatory stop. —

Demonstrating reasonable suspicion for an investigative stop requires significantly less than the probable cause needed to enter a home; while the supreme court approved the use of the collective knowledge doctrine that approval allows an officer to rely upon information imputed from a dispatcher to meet the reasonable suspicion requirement for an investigative stop of a vehicle. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Initial encounter between a state trooper and defendant outside an airport did not constitute an investigative stop because the trooper approached defendant in a public place, and the trooper did not display any weapons during the encounter or block defendant from leaving the conversation; the mere recitation of the trooper's suspicion did not convert the stop into a seizure, especially since he told defendant several times that she did not have to speak with him. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

B.Abandoned Property

The protection of the 4th amendment does not extend to abandoned property. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Abandoned property is not subject to the warrant requirements of the search and seizure provisions. Lupro v. State, 603 P.2d 468 (Alaska 1979).

One relinquishes the right of privacy to property by abandoning it. As a result, the protections of the 4th amendment do not extend to abandoned property. State v. Salit, 613 P.2d 245 (Alaska 1980).

Intentional concealment is not an act of abandonment. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Any items of garbage placed in a receptacle outside the dwelling are abandoned. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Trash placed in plain view for routine pickup. —

There was no reasonable expectation of privacy in trash placed in plain view at the end of a driveway for routine pickup, where it could be easily scavenged or accidentally removed. State v. Beltz, 160 P.3d 154 (Alaska Ct. App. 2007), aff'd, 221 P.3d 328 (Alaska 2009).

Seizure of a vehicle found lying upside down at the bottom of a steep embankment was valid under the abandoned property exception to the warrant requirement. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Abandoned garment bag. —

Airline passenger’s denial of ownership of a garment bag at a time when the other passengers had departed the area justified the police officer in treating the bag as abandoned. State v. Salit, 613 P.2d 245 (Alaska 1980).

Evidence in abandonded bag was fruit of poisonous tree. —

Finding that search of a black bag was lawful was improper because evidence found in the black bag was fruit of earlier illegal pat-down search, and thus should have been suppressed; state’s contention that even if defendant had not been subjected to the illegal search he inevitably would have disclaimed ownership of the bag, and thus trooper inevitably would have been authorized to retrieve and search the bag as abandoned property, was rejected. Erickson v. State, 181 P.3d 1117 (Alaska Ct. App. 2008).

C.Hot Pursuit

Search of purse found in station wagon. —

In determining whether the search of a purse found in a station wagon fell within the hot pursuit of a fleeing felon exception, the supreme court held that the pertinent facts were: The commission of a grave offense; a clear showing of probable cause that the vehicle in question was the getaway car; a reasonable belief that the suspects were armed; a likelihood that the suspects would have fled if not speedily apprehended; and a peaceable entry. Gray v. State, 596 P.2d 1154 (Alaska 1979).

Stop based on broadcast description. —

Where driver fled traffic stop on foot, and the officer had a description of the driver broadcast, shortly after which two plainclothes officers found a person meeting the description in a store, the plainclothes officers’ investigatory stop, and subsequent arrest of the driver, was proper under the Coleman v. State , 553 P.2d 40 (Alaska 1976) standard. Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009).

D.Movable Vehicles

Police officer’s stop of vehicle. —

Given the recent occurrence of a serious felony, first-degree robbery, and given the information the store clerk had furnished about the robber’s escape on foot and the direction the robber was headed, police officer’s stop of the defendant’s car and its occupants to ask questions was both justified and minimally intrusive. When a person jumped out of the car and appeared to match the description of the robber, the officer was justified in further investigation, and the discovery that the car was stolen and the driver had been reported as a missing person justified the officer’s continuing investigative efforts. Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992).

Where defendant was charged with possession of methamphetamine following a traffic stop, his motion to suppress was properly denied; the stop was not pretextual because defendant’s license plate was bent, and the plate number illegible. Way v. State, 100 P.3d 902 (Alaska Ct. App. 2004).

When defendant pulled away from the scene of a party, a trooper walked into the road to look at his license plate and waved at defendant; a reasonable person in defendant’s position would not have felt free to leave the scene, because doing so violates AS 28.35.182 . Therefore, a seizure occurred for purposes of Alaska Const. art. I, § 14. Majaev v. State, 223 P.3d 629 (Alaska 2010).

Warrantless search of movable vehicle. —

Movable vehicle search cases are based on a notion that warrantless seaches must be tolerated because vehicles and evidence contained in them might be removed before it is possible to obtain a search warrant. Thus, the movable vehicle exception may properly be considered to be a subcategory of the exception authorizing a search, with probable cause, to avoid destruction of a known seizable item. Clark v. State, 574 P.2d 1261 (Alaska 1978).

In order for a warrantless search of a vehicle to fit within the destructible evidence exception, the prosecution must establish two conditions: (1) There must be probable cause to believe that the vehicle contains evidence or contraband and (2) there must be exigent circumstances justifying conduct of the search without a warrant. Clark v. State, 574 P.2d 1261 (Alaska 1978).

The condition of existence of exigent circumstances is not automatically fulfilled merely because the object searched is an automobile. Clark v. State, 574 P.2d 1261 (Alaska 1978).

The presence of an exigent exception to the warrant requirement must be determined under the factual circumstances of the search rather than the abstract potential for mobility or destruction of the thing searched. Clark v. State, 574 P.2d 1261 (Alaska 1978).

Where a vehicle was parked in a public place, the search was for contraband, and the officers had grounds for believing that a known accomplice was at large who would be motivated to move the vehicle or take any evidence it contained, exigent circumstances sufficient to justify a warrantless search have been shown. Clark v. State, 574 P.2d 1261 (Alaska 1978).

Impoundment of vehicle. —

Because Anchorage Municipal Code, Anchorage, Alaska, Municipal Code § 09.28.026, authorizes the impoundment of vehicles without regard to whether the vehicle poses any public danger or inconvenience at the time it is seized, the ordinance cannot be justified under a community caretaker rationale. Even if the court tried to limit the scope of the ordinance to situations where impoundment of a vehicle was truly linked to a community caretaker function, the ordinance would still be fatally flawed because it lacks standardized, objectively ascertainable criteria for determining when to impound a vehicle. Taha v. State, 366 P.3d 544 (Alaska Ct. App. 2016).

The search must follow immediately after the suspects are removed from a vehicle and restrained and may not be delayed so to later search the vehicle at the police station. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

The police have the burden of proof in establishing they acted with dispatch in effecting the arrest and any search incident thereto. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Unattended, unsecured vehicle. —

Where an officer is aware that the operator of an unattended, unsecured vehicle will not be returning to the vehicle in the near future, his entry of that vehicle for the limited purpose of securing it is entirely justified. Indeed, where motivated by a good faith desire to protect the contents of the vehicle, such conduct is commendable. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Valid motor vehicle stop disposed of related privacy claim. —

Where defendant, who was stopped and charged with a felony DUI after he was seen trying to start his snowmachine on a sidewalk, argued that a reasonable person would not expect that the traffic code applied to a sidewalk covered by a snow berm, and therefore, he had a reasonable expectation of privacy not to be contacted by the police, the right to privacy guaranteed by Alaska Const. art. 1, § 22 did not create a right to seek the exclusion of evidence that was separate and independent from the right to be free from unreasonable searches and seizures under this section; consequently, the ruling that defendant’s stop was valid under this section disposed of his privacy claim as well. Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

Argument of defendant, arrested for felony DUI when a trooper saw him trying to start a snowmachine on a sidewalk, that the trooper did not have probable cause to stop because the sidewalk was under a snow berm, was without merit, where officer directly observing a violation of a traffic code had probable cause for the traffic stop, saw defendant trying to start the stalled snowmachine on the sidewalk, and the snow was not so high as to make the sidewalk unidentifiable; the sidewalk remained a sidewalk for the purposes of 13 AAC 40.010(a)(33) and 13 AAC 40.010(a)(48). Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

No basis for detention after traffic stop. —

The record did not support the state’s arguments that defendant could be temporarily detained at the scene of the traffic stop, either because he was a witness to a crime or because he posed a potential threat to officer safety and, as a matter of law, defendant’s act of running into the street, in apparent violation of state and municipal law, cannot form the justification for his arrest and the search of his person. Castle v. State, 999 P.2d 169 (Alaska Ct. App. 2000).

For discussion of federal case law relating to the validity of automobile searches without a warrant, see Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Scope of search of vehicle. —

The search of a car incident to a valid arrest would only go to visible areas within easy reach of the suspect and would not permit the opening of closed spaces or opening of closed containers. The car should then be immobilized and stored pending further judicial process of search or release to the proper party. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Mandatory use of seatbelt. —

Alaska’s seatbelt law, AS 28.05.095(a) , does not infringe the rights of personal liberty, autonomy, and privacy guaranteed by this provision and Alaska Const. art. I, §§ 1 and 22, as the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

Search of containers found in vehicle. —

The same factors which justify a warrantless automobile search — probable cause and exigent circumstances — justify an on the spot search of containers found in the course of such a search. Clark v. State, 574 P.2d 1261 (Alaska 1978).

It may be that not every container found in a lawfully searched automobile is subject to a search as a part of the automobile search, because a higher expectation of privacy may inhere in the container than is afforded the automobile. Clark v. State, 574 P.2d 1261 (Alaska 1978).

This section affords protection to any closed luggage, briefcases, containers, or packages within a vehicle which is subjected to an inventory search. State v. Daniel, 589 P.2d 408 (Alaska 1979), distinguishing Clark v. State, 574 P.2d 1261 (Alaska 1978), factually since in Clark the supreme court was concerned with an exigent circumstance, i.e., the destruction of evidence exception to the warrant requirement.

E.Inventory Searches

1.In General

Validity. —

The supreme court has not yet ruled on the validity of inventory searches under the Alaska Constitution. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Inventory searches by law enforcement personnel may fit within an exception to the warrant requirement. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

2.Pre-incarceration Inventory Searches

Exception to warrant requirement. —

A preincarceration inventory search is an exception to the warrant requirement, where it is conducted to further the governmental purposes of prohibiting the introduction of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail environment and of protecting the arrestee’s property and protecting against claims that loss or damage to that property occurred while the property was under the control of jail authorities, and is limited to the extent necessary to respect Alaska’s constitutional guarantee against unreasonable searches and seizures. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Preincarceration procedure is a “search.” —

A preincarceration inventory procedure is a “search” in the sense that the term is employed in this section of the Alaska Constitution. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Justifications for preincarceration inventory search. —

No clear statutory right to release on bail without even temporary incarceration exists in Alaska. Nevertheless, the justifications for a preincarceration inventory do not exist if the arrestee is not to be incarcerated, and no inventory search can be conducted in such cases. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Since defendant was entitled to be released on bail without appearing before a magistrate, there was no justification whatever for processing him through the preincarceration remand and booking procedures and, as an incident to this, searching his person and his personal belongings. Further, the search of defendant’s wallet without a warrant was not justifiable as a search incident to his arrest. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

A warrantless jailhouse inventory is without justification when an arrestee is not going to be incarcerated, and it is therefore constitutionally impermissible. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Scope of preincarceration inventory search. —

A preincarceration inventory search of an arrestee’s person should be no more intensive than reasonably necessary to prevent the entry of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail. Any item taken from the arrestee’s possession in this search may not be further searched or opened except pursuant to a search warrant or another recognized exception to the warrant requirement applicable in the circumstances. Reeves v. State, 599 P.2d 727 (Alaska 1979).

The inventory conducted shall consist of a cataloging of the arrestee’s property thus seized and may not, without a specific request from the arrestee, extend to a search and inventory of the contents of any object, closed or sealed container, luggage, briefcase, or package. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Reasonableness of search. —

Prison officials act reasonably when they search all of a convicted prisoner’s personal belongings at the time the prisoner reports to serve his or her sentence, even though some or all of the belongings may be placed in storage. State v. Landon, 936 P.2d 177 (Alaska Ct. App. 1997).

Improper search ruled harmless error. —

When a person is arrested on a minor charge for which bail has been set, the person has to be provided a reasonable opportunity to raise bail before being subjected to booking procedures and a pre-incarceration inventory search; although the search violated defendant’s rights, the evidence would have been discovered in any event because he would have been incarcerated and subject to a search after his failure to make bail. Anderson v. State, 91 P.3d 984 (Alaska Ct. App. 2004).

The opening of a wooden block removed from defendant’s jacket during the booking procedure exceeded the permissible scope of an preincarceration inventory search. Lyle v. State, 600 P.2d 1357 (Alaska 1979).

Search of opaque, tightly-wrapped balloon. —

Where during a preincarceration inventory search of a defendant arrested for a traffic offense, the correctional officer removed an opaque, tightly-wrapped balloon from defendant’s jacket, search of the balloon exceeded the constitutionally permissible scope of a preincarceration inventory search and was not supported by the probable cause required by the plain view exception to the warrant requirement. Reeves v. State, 599 P.2d 727 (Alaska 1979).

3.Inventory Searches of Automobiles

Inventory searches of automobiles appear to be clearly outside exigency rules. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Routine police inventorying of the contents of a vehicle is a search within the intendment of Alaska’s constitution. State v. Daniel, 589 P.2d 408 (Alaska 1979).

The fact that the inventory is undertaken in whole or in part for the benevolent purpose of protecting the property of the driver of the vehicle does not change the activity into something other than a search. What is determinative is that the conducting of an inventory is a governmental intrusion upon an individual’s privacy. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Search of closed containers. —

A warrantless inventory search of closed, locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable and thus an unconstitutional search under the Alaska Constitution. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Constitutional inventory procedures for vehicles. —

In conjunction with impounding a vehicle, the police, as a matter of routine inventory procedure, are entitled to catalog all articles which are not in closed or sealed containers, luggage, briefcases, and packages. Inventory procedures thus limited constitute only minimal intrusions upon an owner’s reasonable expectation of privacy and are thus constitutionally permissible in light of the rationales underlying police inventory searches of impounded vehicles and Alaska’s constitutional guarantee against unreasonable searches and seizures. State v. Daniel, 589 P.2d 408 (Alaska 1979).

As to any closed, sealed or locked containers, it is sufficient, for routine inventory purposes, that the officer merely list the item as a closed or locked footlocker, briefcase, package, or container and, if deemed necessary, remove the same for safekeeping. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Where a package of marijuana was found in an automobile on top of a bag containing other packages, it was perfectly proper to take those items to the police station for safekeeping. This would not be for “inventory” purposes but to prevent possible loss or destruction of evidence. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

F.Consent

Requirements for effective consent. —

To be effective, a consent to search must be voluntary and must be given by one who has authority to give it. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Superior court's finding that defendant provided verbal assent in response to a state trooper's question was not supported by the record because both the transcript and the audio recording reflected that defendant's verbal response was inaudible, and the trooper did not testify that defendant nodded her head; given the superior court's erroneous findings with regard to defendant's responses, a remand was required. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

Remand was necessary for the superior court to reconsider whether defendant validly consented to the search of her tote; because there was factual overlap between whether the persistent nature of the state trooper's accusatory questioning affected the nature of the stop or the voluntariness of defendant's consent, it was appropriate to allow the superior court in the first instance to reconsider whether the encounter between the trooper and defendant ever ripened into an investigative stop. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

Effect of consent to search or seizure. —

When an accused consents to a search or seizure conducted without a search warrant, the protection he would have enjoyed under the 4th amendment is lost to him. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Search authorized where valid consent tendered. —

Among the recognized exceptions to the rule that a search must rest upon a warrant are searches conducted pursuant to a valid consent. Nix v. State, 621 P.2d 1347 (Alaska 1981).

One exception to the warrant requirement is that police officers may conduct a search or seizure without a warrant where a person with the requisite authority, be it the defendant or a third party, tenders a valid and voluntary consent to the search or seizure. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

In an assault case, court properly denied defendant’s motion to suppress where the victim’s consent to search her cabin was valid; she did not simply acquiesce to the authority, she gave the officer directions on how to get there and how to avoid problems with her dogs. Nason v. State, 102 P.3d 966 (Alaska Ct. App. 2004).

Consent not required. —

Exigent circumstances authorized the police to obtain a nonconsensual, warrantless sample of defendant’s blood, AS 28.35.031(g) , such that defendant’s motion to suppress was properly denied. The blood draw did not violate defendant’s right to be free from unreasonable searches and seizures. Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Right to refuse consent. —

A defendant has a right under the 4th amendment to the federal constitution and this section of the state constitution to refuse to consent to a search of all or part of his car. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Consent to a search, in order to be voluntary, must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion, and is not lightly to be inferred. Frink v. State, 597 P.2d 154 (Alaska 1979); State v. Salit, 613 P.2d 245 (Alaska 1980).

There must be clear and convincing evidence that the consent was unequivocal, specific, and intelligently given. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Consent to a search, to be valid, must be shown to be unequivocal, specific and intelligently given, and not the product of duress or coercion. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Where a passenger’s express consent to the search of her belongings was nothing more than acquiescence to apparent lawful authority, it was not voluntary, uncoerced consent. Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Search of defendant’s person and purse were improper because she did not know the basis for the trooper’s assertion of authority over her, and Alaska Const., art. I, § 14 prohibited the trooper from asking defendant for permission to search her person and her vehicle for drugs; trooper conducting the traffic stop was prohibited from requesting defendant’s permission to conduct a search that was unrelated to the basis for the stop and not otherwise supported by a reasonable suspicion of criminality. Brown v. State, 182 P.3d 624 (Alaska Ct. App. 2008).

The totality of circumstances test for voluntariness of a consent search is the prevailing federal standard, and the Alaska Constitution does not require a different standard for noncustodial consent searches. Frink v. State, 597 P.2d 154 (Alaska 1979).

Question of fact. —

Determination of the requisite voluntariness of the disputed consent is a question of fact to be determined from all the circumstances. Gray v. State, 596 P.2d 1154 (Alaska 1979).

There are no magic words without which a valid consent cannot be found; rather, determination of the requisite voluntariness of the disputed consent is a question of fact to be determined from all the circumstances. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Burden of proving voluntariness of consent. —

In determining whether a consent to a search or seizure is voluntary, the state has the burden of proving that such consent was a product of the person’s free will and not the product of police coercion, either express or implied. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

The state has the burden of demonstrating the validity of a consent, and that consent is not to be inferred lightly. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Overstepping defined boundary. —

After knocking on the door of the residence of a hit-and-run suspect, the officers were told by defendant’s wife to come into the entryway and wait, but when the wife started down the stairs, the officers followed and found defendant. The officers’ entry into the basement could not be justified as a consensual search, because the wife’s limited consent constituted the boundary of the officers’ freedom within the house, and the fact that the wife failed to protest when the officers followed her into the basement did not constitute the affirmative act of consent required by the Fourth Amendment. Haskins v. Municipality of Anchorage, 22 P.3d 31 (Alaska Ct. App. 2001).

Consent not vitiated. —

Error in designating a tenant’s residence in a search consent form and the tenant’s uncommunicated belief that the error would render the consent form technically invalid provides no basis for vitiating the tenant’s consent to a search of his apartment. Ingram v. State, 703 P.2d 415 (Alaska Ct. App. 1985), aff'd, 719 P.2d 265 (Alaska 1986).

Awareness of right to refuse. —

The person giving consent need not be advised of the right to refuse to allow a search prior to executing a valid consent to search, although the subject’s awareness of the right to refuse is a factor in the determination of the voluntariness of the consent. Gray v. State, 596 P.2d 1154 (Alaska 1979).

The state, to show consent, does not have to prove specifically that defendant knew of his right to refuse to allow the search. Frink v. State, 597 P.2d 154 (Alaska 1979).

The mere fact that persons are on notice that they may be searched cannot, by itself, be the basis for implying consent. State v. Salit, 613 P.2d 245 (Alaska 1980).

Assuming that, on the basis of posted notices, an airline passenger gave implied consent to X-ray his bag, it could not be inferred that he gave implied consent to allow the opening and searching of his bag. Although the notice provided that carry-on luggage “is being inspected by X-ray,” it stated “Physical inspection may be requested,” and “Inspection may be refused,” and thus the notice indicated that before a physical inspection there would be a request and a right to refuse the request, which would result in the passenger not being permitted “to pass the inspection point.” Under these circumstances, the government had not borne its burden of proof that the passenger knowingly gave implied consent to open and search his bag. State v. Salit, 613 P.2d 245 (Alaska 1980).

Implied continuing consent. —

Lack of objection to subsequent, closely related entries and searches, after valid consent to an initial entry, can imply that the initial consent continued. Phillips v. State, 625 P.2d 816 (Alaska 1980).

While it might have been prudent for the police to have obtained a specific consent to each new intrusion, their failure to do so did not vitiate an implied continuing consent to a search. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Temporary custody, standing alone, does not invalidate a subsequent consent to a search. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

Policeman’s identity not revealed. —

One’s consent to entry by a policeman is not to be regarded as involuntary merely because the policeman’s identity is either not revealed or affirmatively misrepresented. Nix v. State, 621 P.2d 1347 (Alaska 1981).

The standard of fairness was not violated where no affirmative misrepresentation of the police officer’s identity was made; he was able to view the stolen property, openly displayed in the common area of the apartment, just as the other guests of those occupying the apartment had been able to; and the limits of the consent were not exceeded by venturing into private rooms or prying into closed containers. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Undercover search. —

The standard for evaluating the constitutionality of an undercover search is whether, under the facts of the particular case, the undercover operation leading to consent to the search falls below an acceptable standard for the fair and honorable administration of justice. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Intelligent consent to a search of a residence can still be found where an undercover agent has affirmatively misrepresented both his identity and purpose where: the officer’s actions do not amount to conduct that would morally or legally compel a suspect to grant the officer entry into his home; the officer’s intention is not to gain access; once inside the dwelling, the officer does not exceed the scope of the invitation; and before going to the residence, the officer receives enough information pointing to the owner as a prime suspect. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Consent following illegal search or arrest. —

When defendant’s consent to search was tainted by police officers’ initial illegal search, after which defendant was told that a methamphetamine laboratory had already been found, the subsequent search was also tainted, and the superior court should have granted defendant’s motion to suppress. Moore v. State, 119 P.3d 1018 (Alaska Ct. App. 2005).

Apparent authority to consent alone is required. —

All that is required is apparent authority, in the sense that it reasonably appeared to the person who entered that the inviter had the right to invite him inside the premises. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Actual authority regardless of reasonable appearances is not required. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Basis for agent’s authority to permit search. —

See Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Consent to search held voluntary. —

When the accused is directly asked whether he objects to the search, there must be at least some suggestion that his objection is significant or that the search waits upon his consent. When this is combined with a warning of his right to be silent, and his right to counsel, which would seem in the circumstances to put him on notice that he can refuse to cooperate, it is fair to infer that his purported consent is in fact voluntary. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

If the defendant permits a warrantless search of his home or establishment in the mistaken belief that he has nothing there which will incriminate him, it has been held that the search has been voluntarily consented to. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

A defendant will be held to have consented voluntarily, unequivocally, and intelligently to a search if, under the circumstances, it is reasonable to conclude that he was put on notice that he could refuse to cooperate with law enforcement authorities. Pistro v. State, 590 P.2d 884 (Alaska 1979).

When a law enforcement officer knocks at the door, identifies himself, and asks to be allowed to search the premises, the acquiescence thus obtained is generally not considered to be voluntary consent. See Judd v. United States, 190 F.2d 649, 89 U.S. App. D.C. 64 (D.C. Cir. 1951); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Where one of two men in a garage was informed of his right to remain silent and to have the assistance of counsel prior to consenting to a search of the garage, his statement to the police officer agreeing to release the items in the garage to the officer constituted effective consent to the second entry into the garage and the seizure of evidence. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Validity of third-party consent. —

Where a third party consents to a search or seizure, the validity of that consent depends upon physical possession or ownership of the property. Christian v. State, 513 P.2d 664 (Alaska 1973).

One placed in a position of holding, for another, evidence which he reasonably believes is materially linked to a crime has the authority to disassociate himself from that evidence by voluntarily surrendering it to the police. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Employee’s expectation that, if he did not consent to a search, a warrant permitting search would be obtained did not invalidate his consent where employee knew the trooper could not search without his permission or a warrant, the trooper did not threaten the employee with a warrant, and there was clearly probable cause to obtain a warrant. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Where two state police officers saw one suspect enter defendant’s apartment and smelled marijuana outside its entrance only after contacting the apartment building manager, any illegality arising from the officers’ tag-along entry into the building was, by that time, vitiated by the manager’s knowing acquiescence to and acceptance of their presence. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Third party consent to search of vehicles. —

Where employee was left in charge of the trucking company yard, he was foreman of the repair shop and was authorized to purchase parts for vehicles being repaired; and while the owner had never specifically authorized him to admit troopers to the premises, the owner had never forbidden it and had indicated that had he been present, he probably would have authorized the search himself, the employee had actual authority to give the troopers access to the company yard and the junk vehicles stored there. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

The person in charge of trucking yard had authority to consent to search the interior of a vehicle stored in the yard where, although the vehicle was acquired for someone else and was intended by that other person to be used for parts, it was owned by and registered to the owner of the yard who had a joint right of access with the person for whom the car was bought. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Where automobile in trucking yard was obviously disabled and was stored with other junk vehicles in a part of the yard reserved for vehicles being cannibalized for parts, there was nothing that would put the police on notice that the vehicle was the exclusive property of another person as distinguished from the other wrecks surrounding it, even though the person in charge of the yard told the trooper while the search of the automobile was being conducted that it had been acquired by the owner of the yard for the other person to be restored for that person and was located in a make-shift tent, and the trooper could reasonably rely on the apparent authority of the person in charge and search the automobile’s trunk. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

One who has joint access may effectively consent to a search, and any evidence thus disclosed may be used against the other. In re Cornelius, 521 P.2d 497 (Alaska 1974).

A person with joint access to, or control of, a place is authorized to consent to entry. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Tenant’s consent to the search of his apartment authorized the police, without a warrant, to search the petitioner’s wallet, jacket and gun holster found on the living room floor. Ingram v. State, 719 P.2d 265 (Alaska 1986).

Double-booked hotel room. —

Chief of hotel security had apparent authority to consent to police entry of double-booked hotel room where his initial presence was consented to by one of the registered guests in the room and another party who intervened at the guest’s request, and the security officer’s initial entry and subsequent entries were proximate in time and effected without his ever having relinquished actual custody and control over the room. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Probation provision requiring probationer to “submit” to search of person, personal property, residence, or vehicle by probation officer is an authorization for warrantless searches, even when the probationer does not consent to the search. State v. James, 963 P.2d 1080 (Alaska Ct. App. 1998).

Testimony of refusal to consent. —

It was error to admit testimony of defendant’s refusal to consent to a search of the front of his car and error to comment on it during summation. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Effect of plea of nolo contendere. —

Where defendant entered a plea of nolo contendere to a charge of robbery, the issue of the voluntariness of a witness’ consent to search was not preserved for purposes of appeal. Gray v. State, 596 P.2d 1154 (Alaska 1979).

G.Emergencies

Exigency rule adopted. —

The supreme court has adopted the “exigency rule” exception to the necessity for a search warrant. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

In Alaska the supreme court has recognized the “emergency” exception to the warrant rule. Schraff v. State, 544 P.2d 834 (Alaska 1975).

The emergency aid doctrine has been uniformly recognized as an exception to the warrant requirement. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Right to enter in an emergency. —

The right of 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. The criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

Police officers have a right to enter buildings without a warrant in an emergency as an inherent part of their common-law duties. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Where police officers enter buildings without a warrant, it is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact, which is crucial in evaluating the actions of the police. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Reports of deaths are not always accurate and police officers should be encouraged to check out such reports as quickly as possible in case a spark of life remains. Where police officers had been told there was a body in an individual’s home, the officers had a reasonable belief as to the existence of an emergency which justified their unauthorized entry into the individual’s residence. Therefore, as a matter of law, the entry was privileged. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

The emergency aid doctrine is a well recognized exception to the warrant requirement. Under the doctrine, the warrantless entry of a dwelling is allowed when an officer has reasonable grounds to believe that there is an immediate need to take action to prevent death or to protect persons or property from serious injury. Harrison v. State, 860 P.2d 1280 (Alaska Ct. App. 1993).

Alaska Const. art. I, §§ 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution and the Alaska Constitution prior to the enactment of § 22. Alaskans’ heightened right to privacy is safeguarded by requiring the State to show (1) the police had reasonable grounds to believe an emergency was at hand and an immediate need for their assistance in the protection of life or property; (2) the search was not primarily motivated by the intent to arrest a person or to seize evidence; and (3) some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Gibson, 267 P.3d 645 (Alaska 2012).

Investigative stop of a vehicle differs fundamentally from an entry into a home; the reasonable suspicion needed for an investigative stop is a substantially lower showing than the one required for probable cause, and in order to enter a home without a warrant under the emergency aid exception, the officers must satisfy all of the exception's requirements, and each requirement specifically refers to the responding officer's reasonable belief. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Restriction in time and scope. —

Any warrantless search conducted under the emergency aid doctrine is restricted in time and scope to the nature and duration of the particular emergency. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Sufficiency of emergency. —

Existence of an emergency sufficient to justify a warrantless entry into a house must be determined by an objective standard; whether the evidence would have led a prudent and reasonable officer to perceive an immediate need to take action in order to prevent death or to protect against serious injury to persons or property. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Seizure to prevent destruction or removal. —

The constitutional provisions proscribing unreasonable searches and seizures did not prohibit the seizure of a note in order to prevent its destruction or removal. Weltz v. State, 431 P.2d 502 (Alaska 1967).

Exigent circumstances justified a warrantless entry of an apartment where the defendant who entered the apartment was suspected to be associated with a sizeable illegal drug sale, which had been unexpectedly interrupted by the presence of police; the defendant had tipped off others about the presence of police; the drugs and the money involved in the sale were capable of being readily concealed or destroyed; and the warrantless police intrusion was minimal, consisting of a peaceful entry through an unlocked doorway by officers who had announced their presence and identity. Ingram v. State, 703 P.2d 415 (Alaska Ct. App. 1985), aff'd, 719 P.2d 265 (Alaska 1986).

Investigation of automobile accident. —

Where a police officer was dispatched to investigate a possible automobile accident; the officer observed an automobile with its front bumper “hung up” on a guardrail; the car’s engine was not running but its headlights were on; the key was in the ignition switch in the “on” position; and a man was lying on the front seat of the car with his feet under the steering wheel and his head toward the passenger side and appeared to be asleep, it was entirely reasonable for the officer to open the car door to awaken the man and thereafter request that he get out of his vehicle. Even if such action amounted to a warrantless search and seizure, the minimal intrusion was justified under the emergency exception to the warrant requirement and, therefore, was not violative of either the 4th amendment to the Constitution of the United States or this section. Anchorage v. Cook, 598 P.2d 939 (Alaska 1979).

Entry not justified by emergency. —

Where witnesses reported that two men inside an apartment had fired two shots from the walkway outside the apartment building, police were not justified, under the “emergency” rule, in entering and making a warrantless search of the apartment where there were no reports of shots having been fired inside the apartment and no reports of anyone’s having been hit by gunfire. Zinn v. State, 656 P.2d 1206 (Alaska Ct. App. 1982).

Police officers were not entitled to judgment as a matter of law on homeowners' trespass and invasion of privacy claims because there was a genuine issue of material fact whether they had reasonable grounds to believe an emergency was at hand in the homeowners' apartment; the dispatcher's undisclosed knowledge of the details of a 911 call did not provide any information about the situation at the home, and her information could not be imputed to the officers under the emergency aid exception. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Fire officials. —

See note under this catchline under analysis line I, “General Consideration.”

H.Stop and Frisk

Purpose of stop and frisk doctrine. —

The stop and frisk doctrine, a limited exception to the rule that officers can detain a person only on probable cause, is designed to aid police officers in street encounters where suspicious circumstances exist not amounting to probable cause. McCoy v. State, 491 P.2d 127 (Alaska 1971).

No conflict with 4th amendment or state constitution. —

The supreme court’s rule permitting temporary detention for questioning in certain cases, i.e., cases where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, does not conflict with the 4th amendment or the state constitution. Coleman v. State, 553 P.2d 40 (Alaska 1976).

The Alaska rule, permitting a temporary stop when the officer had a reasonable suspicion that imminent public danger exists, or serious harm to persons or property had recently occurred, is not in conflict with either the 4th amendment or the constitution of the state of Alaska. Ebona v. State, 577 P.2d 698 (Alaska 1978).

Unconstitutional parole conditions did not justify search of parolee. —

In a drug case, a motion to suppress should have been granted; officers had no justification for conducting an investigatory stop on a parolee leaving a bar, based on parole conditions authorizing a breath test and a search at the request of any police officer, because those conditions were unconstitutional. Reichel v. State, 101 P.3d 197 (Alaska Ct. App. 2004).

The Alaska rule is more restrictive than the rule articulated by the supreme court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (U.S. 1968). Ebona v. State, 577 P.2d 698 (Alaska 1978).

“Reasonable belief ” standard for investigatory stops. —

Where nothing at the scene of the arrest indicated the existence of an imminent public danger, and there was no sign of recent serious injury to person or property, Coleman v. State , 553 P.2d 40 (Alaska 1976) stands as a bar to invocation of the “reasonable belief” standard for investigatory stops found in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (U.S. 1968). Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983).

Authority to stop and frisk. —

When the primary suspect in a recent felony is encountered by a police officer, it is not unreasonable for him to briefly detain that individual for questioning, and when the officer has reasonable cause to believe the individual may be armed, to execute an immediate patdown of his person for weapons. Free v. State, 614 P.2d 1374 (Alaska 1980).

A police officer with a reasonable suspicion that imminent public danger exists or serious harm that has recently occurred was caused by a particular person may stop that person. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

As Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), makes clear, once police have made a valid stop they may then make a protective frisk of a suspect to remove weapons. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Requirements. —

As a matter of Alaska constitutional law the state supreme court will apply the rule in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), only where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred. Ozenna v. State, 619 P.2d 477 (Alaska 1980); Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983).

Suspicion must exist in order to stop a person in the first place, and the officer must reasonably believe that the person is armed and dangerous before any frisk is permissible. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Temporary detention for questioning is permitted only when: (1) the police officer has an actual suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, and (2) this suspicion is reasonable. Waring v. State, 670 P.2d 357 (Alaska 1983).

A police officer may not continue an investigation by taking a suspect into the police car and questioning him there when there exists no articulable reason to suspect that anything is wrong. Waring v. State, 670 P.2d 357 (Alaska 1983).

Motion to suppress should have been granted where officers had no justification for conducting an investigatory stop on a parolee leaving a bar; the court declined to consider whether a stop was justified based on reasonable suspicion that a parole violation had occurred because there was no imminent danger shown. Reichel v. State, 101 P.3d 197 (Alaska Ct. App. 2004).

Items in defendant’s hand. —

Forcible opening of a suspect’s hand, or an order directing the suspect to open his hand, is equivalent to a pat-down search; thus, it requires the same justification as a pat-down of the detainee’s clothing. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

When Miranda warnings required. —

An investigatory stop does not necessarily trigger a right to Miranda warnings. However, if a motorist is detained under circumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination, Miranda warnings would be required. Blake v. State, 763 P.2d 511 (Alaska Ct. App. 1988).

Search for weapons. —

The scope of a protective search for weapons in a stop and frisk situation should be more limited than a search incident to an arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

If the police had enough facts to make a stop, the permissible zone for a search for weapons would be the same as that for a search incident to arrest. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Police officer was permitted to seize a plastic bag containing cocaine discovered on defendant’s person during a lawful pat-down search. McGuire v. State, 70 P.3d 1114 (Alaska Ct. App. 2003).

Officer can justifiably remove and examine an object from a pocket or hand during a frisk for weapons if the officer reasonably believes that the object could be used as a weapon; when a court evaluates whether a pat-down search for weapons was justified, the court may take into account the nature of the criminal activity that the officer reasonably suspects is occurring. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

Right to stop under suspicious circumstances. —

Police officers have the right to stop and question a person observed under suspicious circumstances, and if probable cause is then found to exist, the person may be arrested. Evidence taken from him as an incident to the arrest may be admitted at the trial. Maze v. State, 425 P.2d 235 (Alaska 1967).

And evidence in plain view may be seized. —

Where an investigatory stop was proper under the circumstances, evidence which was in plain view was legitimately seized and the trial court did not err in refusing to suppress it as evidence. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Inquiry vs. Investigative stop. —

An inquiry of someone at the scene is not necessarily a 4th amendment seizure. An investigatory stop and an arrest are 4th amendment seizures. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983); Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

The factor which distinguishes an on-the-scene investigation from an investigatory stop or arrest is that the person encountered “on the scene” is under no obligation to remain, may decline to listen to any questions, and may go on his way. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

An investigatory stop is differentiated from an arrest on the basis of (1) its purpose, (2) the magnitude of the intrusion, and (3) the quantum of information necessary to justify the intrusion, i.e., reasonable suspicion rather than probable cause. State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983).

Among the factors to be considered in determining whether a seizure is an investigatory detention or arrest are the requirement that the investigative detention be for a limited and specific inquiry; that the detention be of brief duration; and that it not require the person stopped to travel an appreciable distance. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Whether a seizure is an investigatory detention or an arrest turns on the duration and intrusiveness of the restraint. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Use of police records. —

The police record of one who is subjected to an investigative stop is a legitimate factor to be considered in determining whether there is sufficient suspicion to justify the stop. Ozenna v. State, 619 P.2d 477 (Alaska 1980).

Stop and search justified. —

An investigative stop and search was justified when the officer knew that a burglary in which one or more handguns and ammunition had been taken had been recently committed near where defendant was walking; defendant had a criminal record known to the officer; there were unusual protrusions in defendant’s coat; and defendant’s hand was positioned in a manner which suggested he was carrying a handgun. Ozenna v. State, 619 P.2d 477 (Alaska 1980).

Where police saw defendant’s companion crouching down and lighting a crack pipe in an alley, police properly conducted an investigatory stop of the two men; police were authorized to make defendant open his hand, revealing a small rock of crack cocaine and leading to defendant’s conviction for fourth-degree misconduct involving a controlled substance. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

Investigatory stop of car after anonymous caller had reported a drunk driver was warranted. Effenbeck v. State, 700 P.2d 811 (Alaska Ct. App. 1985).

There was a sufficient risk of imminent public danger to warrant an investigatory stop where defendant’s driving just prior to his encounter with the police officer demonstrated his willingness to drive in his current condition and at the time of the encounter, defendant retained possession of his car, and it remained immediately accessible for him to drive. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Where trooper observed defendant make an illegal turn, followed her for about one-half mile, and observed her swerve three separate times before stopping her, such actions were consistent with drunk driving, and the trooper was stopping defendant to determine whether she was driving while intoxicated. State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983).

Where police officer had a reasonable suspicion that defendant was involved in a burglary, a felony under Alaska law, a brief pat-down for weapons was permissible. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

When an informant provided specific, detailed information that defendant and two other men would be bringing drugs into Fairbanks from Anchorage in a rental car, and police officers corroborated the information, the officers had reasonable suspicion to stop the car in which defendant was riding. Williams v. State, 139 P.3d 1282 (Alaska Ct. App. 2006).

Detention exceeded limit for investigative detention. —

Where defendant was taken from a neighbor’s home in a police vehicle to the police station and, without being formally arrested, interrogated for nearly an hour, despite repeated and continuous denial of any involvement in the robbery, his detention exceeded the limits of an investigative detention. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Question of fact. —

Where a person is subjected to an investigatory stop and thereafter agrees to go to the police station to continue interrogation, it is, at the very least, a question of fact for the trial judge whether the suspect’s consent is free and voluntary or the product of duress or coercion, express or implied. State v. Burdine, 698 P.2d 1216 (Alaska Ct. App. 1985).

I.Incident to Arrest

Legal arrest removes personal privacy from realm of protection. —

While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Scope of exception. —

Under federal law, a police officer who has legally arrested a person may search that person incident to the arrest; Alaska law places more stringent requirements on the officer’s ability to search incident to arrest. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Under Alaska law, an officer may conduct a limited search for weapons incident to an arrest; beyond this, the officer may only search for evidence related to crimes for which the police have probable cause to arrest. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Warrantless search incident to arrest. —

A warrantless search incident to and contemporaneous with a lawful arrest is an exception to the rule that a search must rest upon a search warrant. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

A search would be unreasonable because made without a warrant unless the facts were such as to bring this case within an exception to the rule that a search must rest upon a search warrant. The exception is that which recognizes the validity of a search made without a warrant where the search is made incident to a lawful arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

There is wide agreement that a warrantless search incidental to an arrest is not unreasonable. Fresneda v. State, 458 P.2d 134 (Alaska 1969).

Where defendant was arrested for “minor on licensed premises” for being in a bar while under 21 years of age, the police were permitted to search him; defendant was not entitled to suppress evidence of a plastic bag which contained cocaine seized by police during the search. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Search of felony arrestee. —

To require the police to get a search warrant to search the person of every felony arrestee when it is to be expected that the magistrate will always find probable cause that evidence of the crime is on his person, will inundate the magistrates with warrant petitions which will be granted as a matter of course and run the risk that magistrates will not carefully examine the circumstances in more deserving cases. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Warning of rights not necessary. —

A specific warning of 4th amendment rights is not necessary to validate a warrantless search after the suspect has been arrested. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

An arrest or a traffic stop should not be used as a pretext for a search. Brown v. State, 580 P.2d 1174 (Alaska 1978); Clark v. State, 574 P.2d 1261 (Alaska 1978).

Search incidental to traffic violations and vagrancy. —

While in most felony cases the incidental search may well turn out to be reasonable, the nexus between the item to be seized and the criminal behavior involved is more difficult to establish in cases involving arrest for such offenses as traffic violations and vagrancy. Automatic application of the incidental search doctrine in such cases may well result in the sanctioning of unreasonable searches in individual cases, contrary to the requirement of the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Defining boundaries in “incident to arrest” exception. —

In defining the boundaries of incident to the arrest exception, the need for the exercise of common sense is apparent. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The boundaries of the area which can be searched incident to a lawful arrest are based upon two rationales: First, to protect the arresting officer and to deprive the prisoner of potential means of escape and, secondly, to avoid destruction of evidence by the arrested person. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Restrictions on warrantless incidental searches. —

Adequate protection for the arrestee’s legitimate interests in privacy will be provided by the following restrictions on warrantless incidental searches of the person: (1) The arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional. (2) The search must be roughly contemporaneous with the arrest, at least within the boundaries suggested by United States v. DeLeo , 422 F.2d 487 (1st Cir. 1970), and adopted here. (3) The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid. The search must be incident to the arrest, and not vice versa. (4) Finally, the arrest must be for a crime, evidence of which could be concealed on a person. McCoy v. State, 491 P.2d 127 (Alaska 1971); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Search incident to incarceration and search incident to arrest distinguished. —

See Reeves v. State, 599 P.2d 727 (Alaska 1979).

There is a permissive area of search without a search warrant beyond the person proper. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Police officers had no lawful right to make a search for some other purpose than uncovering evidence that would connect the defendant with a traffic violation. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. McCoy v. State, 491 P.2d 127 (Alaska 1971).

When a search goes far beyond defendant’s person and the area into which he could reach to obtain a weapon to harm the officer or escape or evidence which he might conceal or destroy, it is unreasonable. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Once warrantless searches beyond the area of the arrestee’s immediate control are allowed, the 4th amendment with its “reasonableness” requirement suggests no rational limits to circumscribe the search. Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for, and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. There is ample justification, therefore, for a search of the arrestee’s person and the area within his immediate control. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Once a person is lawfully arrested, the arresting officers have the right, without a search warrant, to search the arrestee’s person and the area within his immediate control for weapons and destructible evidence of the crime. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Where police officers validly arrested defendant on the basis of an outstanding traffic warrant; where in the face of a truculent defendant and a potentially hostile crowd of bystanders, the officers attempted to conduct a pat-down search of defendant for weapons before placing him in the patrol car, and where, during the course of his pat-down of defendant, an officer’s hand hit something hard in defendant’s left shirt pocket, it was reasonable for the officer to remove these hard items from the shirt pocket. Thus, the search of defendant’s shirt pocket was permissible under the warrantless search for weapons incident to a lawful arrest exception to the warrant requirement. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Since the search was incident to a valid arrest for the crime of forgery, and evidence of that crime might well have been concealed on accused’s person, the search of a packet containing cocaine was valid and the conviction based on such evidence was proper. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Warrantless search of a bag found in the pocket of robbery suspect’s jacket, which had been removed and concealed between the passenger seat and the console of the van in which the suspect was riding was a permissible search incident to defendant’s arrest. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Requesting passenger's identification to run warrants check. —

Officer is precluded from requesting a passenger's identification, as here, and then using that to run a warrants check when the officer's request is unrelated to the basis for the stop and the officer has no other case-specific justification for doing so; generalized concern for officer safety, without more, is insufficient to override the rights of passengers in relation to routine traffic stops. Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Determining reasonableness of scope of search. —

The reasonableness of the scope of a search incident to arrest must be viewed from the realistic perceptions of the police officer at the time the search is made, and not by a later analysis of all the possible options that might hypothetically have been considered. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Containers on person of arrestee. —

Upon the lawful, nonpretextual arrest of an individual for a crime, evidence of which could be concealed on the person, a search of the arrestee’s person, his clothing and articles which, akin to clothing, are immediately associated with the person of the arrestee may be searched at the time of the arrest, or within a reasonable period thereafter, and as long as the search is confined within these limits, it is permissible for officers to open and inspect the contents of any closed containers found, unless under the circumstances it could not reasonably be believed that the container would yield a weapon or evidence of the crime for which the arrest was made. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Closed containers which are not by their nature immediately associated with the person of the arrestee, but which are merely seized from the arrestee’s proximity at the time of his arrest, cannot be opened and inspected without a search warrant after they have been removed from the arrestee’s control and secured by the police. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

A container on the person of an arrestee at the time of the arrest may be seized, opened, and searched as an incident to the arrest, unless the container is too small to contain a weapon and the arrest is for a crime, such as reckless driving, for which no evidence could exist in the container. This is so even though it is not strictly necessary to open a closed container found on the person of one who is arrested in order to protect the arresting officer from the use of a hidden weapon or to prevent the destruction of evidence. These goals can ordinarily be accomplished simply by seizing the container and removing it from the reach of the arrestee. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

The language “immediately associated with the person of the arrestee” which pointedly excepts certain personal property from the requirement that an exigency must exist to justify a search means that containers found in clothing pockets may be searched, and it also suggests that containers such as purses which are often worn on the person and generally serve the same function as clothing pockets are also excepted from the strict exigency requirement. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

A search incident to an arrest, where no evidence of the crime charged could exist on the person, may extend to the person of the arrestee and any containers associated with the arrestee’s person which may contain a gun, a large knife, or a club. A search of smaller containers which could only contain atypical weapons such as a razor blade, a small knife, a safety pin, or a needle must be supported by specific and articulable facts which would lead a reasonable person to believe that such an atypical weapon was in the small container. Jackson v. State, 791 P.2d 1023 (Alaska Ct. App. 1990).

In the context of a search incident to arrest, a motion to suppress should have been granted under the Alaska Constitution because it was not shown that an ashtray where the drugs were located was the type of container immediately associated with defendant's person, even though the ashtray was capable of holding personal items. It was not defendant's burden to show that ashtrays in vehicles were not commonly used to store personal items. Pitka v. State, 378 P.3d 398 (Alaska Ct. App. 2016).

Search of defendant’s wallet pursuant to a custodial arrest was not justified, where a search of defendant’s person uncovered no weapons and the wallet was too small to conceal anything but an atypical weapon. Jackson v. State, 791 P.2d 1023 (Alaska Ct. App. 1990).

Search of glove box. —

Police are authorized to search an unlocked glove box incident to driver’s arrest if driver is arrested in the vehicle or immediately upon exiting the vehicle. Lyons v. State, 182 P.3d 649 (Alaska Ct. App. 2008).

Superior court properly denied defendant’s motion to suppress a handgun found in the glove box; police were authorized to search the glove box because they were entitled to search defendant’s vehicle incident to his arrest, and the vehicle’s glove box was immediately associated with defendant’s person. Lyons v. State, 182 P.3d 649 (Alaska Ct. App. 2008).

Lawfulness of arrest without warrant depends on probable cause. —

Where an arrest is made without a warrant, its lawfulness depends on whether it was based on probable cause. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

The existence of probable cause to make an arrest without a warrant justifies an officer in conducting an immediate search without a warrant. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Conditions to constitutionally valid arrest. —

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it; whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

In order for this exception to apply the police must have probable cause to make an arrest at the time the search and seizure takes place, but it is not necessary to formally place the suspect under arrest. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Articulating basis for arrest. —

Evidence should not have been excluded where the police had reasonable suspicion to stop defendant, to briefly detain him, and ultimately had sufficient information to arrest him for possession of cocaine, even though the police who arrested him did not correctly articulate the basis for the arrest. State v. Kendall, 794 P.2d 114 (Alaska Ct. App. 1990).

Unreasonable suspicion of crime. —

Where officer received a report that a green Ford pickup had left a gas station without paying for gas and over fifteen minutes later pulled over a green Ford pickup which did not have the same number of occupants nor the same license plate as that reported, it was unreasonable to suspect driver of gas theft. Hays v. State, 850 P.2d 651 (Alaska Ct. App. 1993).

The mere fact of arrest does not ipso facto justify an unlimited search of the person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The arrest may not be used as a mere pretext to search. Schraff v. State, 544 P.2d 834 (Alaska 1975).

And subsequently disclosed evidence does not justify arrest. —

An arrest may not be justified by what the subsequent search discloses. Schraff v. State, 544 P.2d 834 (Alaska 1975).

What a lawful arrest does justify is the search for fruits, instrumentalities, and evidence of the crime for which the arrest is made, and this is so only because the existence of probable cause for the arrest of a person normally justifies probable cause to believe that the suspect possesses such items. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is established that once a person is lawfully arrested, the arresting officers have the right, without a search warrant, to search the arrestee’s person and the area within his immediate control for weapons and destructible evidence of the crime. Avery v. State, 514 P.2d 637 (Alaska 1973).

Where there is probable cause to arrest a suspect, there is likewise probable cause to search his person for fruits, instrumentalities, and evidence of the crime for which the arrest is made. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Absent specific articulable facts justifying the intrusion in the privacy in items carried on the person, a warrantless search incident to an arrest, other than for weapons, is unreasonable and therefore violative of the Alaska Constitution if the charge on which the arrest is made is not one evidence of which could be concealed on the person. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

What constitutes arrest. —

An arrest does not take place under Alaska law until a person has been taken into custody in order that he may be held to answer for the commission of a crime. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Neither the accused nor his companions were taken into custody until after the pistol and clothing, which gave rise to probable cause to make an arrest, had been seen. When the officer stopped the car he was doing nothing more than conducting an investigation in response to circumstances that aroused his suspicions. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Considering the lateness of the hour, the fact that the car was seen coming from the side of the building rather than from the parking lot in front, and that it was being driven without its headlights on, the police officer had the right and the duty to make a prompt investigation, which required him as a matter of practical necessity to stop the car and question the occupants. This activity on the part of the police officer in the circumstances of this case was permissible and did not amount to an arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

A search is incident to arrest as long as it is made substantially contemporaneously with the arrest. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

A search incident to arrest may precede the arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Search was incident to a lawful arrest although it preceded the arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

But it must require a substantial contemporaneity of search and arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

A search which preceded an arrest is lawful where the search occurred after probable cause for the arrest had arisen, and the arrest followed almost immediately thereafter. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Search at place of detention. —

A search of an arrestee remains incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search is nonetheless “incident” to an arrest simply because the search is conducted at the stationhouse and not at the actual scene of the arrest. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

The procedure of searching a suspect at the stationhouse is normally permissible only where the suspect has in fact been validly arrested, and not where the suspect is detained under the “stop and frisk” situation. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Short delay between the time defendant was brought to the stationhouse and the seizure and search of his clothing held reasonable. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Clothing subject to search. —

For cases holding that a suspect’s clothing worn at the time of arrest may be subject to search or laboratory analysis for evidence of the crime for which the arrest was made, see Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Breathalyzer examination as lawful search. —

Offering defendant breathalyzer examination, where there was independent evidence establishing probable cause to charge him with driving while intoxicated, was a lawful search incident to an arrest, and prosecuting him for refusing the test did not violate his fourth amendment rights. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Use of breathalyzer test results. —

In a prosecution for manslaughter, where the defendant objected, on grounds of right to counsel and unreasonable search and seizure, to the use of breathalyzer test results, and where the defendant’s defense was self-defense, the court held that even if there was constitutional error it was harmless error since (1) proof of intoxication is irrelevant to the defense of self-defense, (2) the evidence was not used to impeach the defendant, and (3) there was other ample, uncontested, evidence of intoxication. Nygren v. State, 616 P.2d 20 (Alaska 1980).

Blood alcohol test not more intrusive. —

For due process and search and seizure analysis, a blood test is not viewed as materially more intrusive than a breath test. The search and seizure provisions of the federal and state constitutions are not offended by a statute that allows the police to take a blood sample from an arrested motorist where the motorist has injured or killed another person without requiring the police to seek a breath sample first. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Sobriety tests. —

Because police stopped defendant after receiving reports that defendant was driving erratically and after having witnessed such driving, and because defendant failed a field sobriety test, the police had probable cause to arrest defendant for driving while intoxicated in violation of AS 28.35.030 ; because both the investigatory stop and arrest were lawful under Alaska Const. art. I, § 14, the trial court did not err when it denied defendant’s motion to suppress. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

It was error to deny defendant's motion to suppress search results on grounds the search warrant application showed probable cause to search anyone who might arrive on the premises during the warrant's execution because (1) this was justified only if the application showed good reason to believe anyone arriving during the execution probably participated in criminal activity being investigated and probably carried evidence of that activity, and (2) the application did not flag the "search any person" provision, explain why the provision was requested, show the premises functioned solely to sell and consume drugs, thus giving reason to think anyone present was engaged in illegal activity, estimate how long the search would take, state if the search would occur when innocent visitors might be expected, or try to exclude such visitors. Osborne v. State, 421 P.3d 113 (Alaska Ct. App. 2018).

Search upheld. —

In defendant’s drug case, where a police officer had validly arrested defendant for driving without a valid license, and because the officer had probable cause to believe that defendant was guilty of possession of illicit drugs, the officer properly searched defendant’s person — and, in particular, her wallet — for evidence of possession of illicit drugs as part of the search incident to arrest. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a police officer properly searched defendant’s wallet because it was done with defendant’s consent. When the officer searched defendant’s wallet, defendant had already given the officer consent to search her person for illegal drugs. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a police officer, in conducting a lawful search incident to arrest, properly unfolded and read a piece of paper in defendant’s wallet because, when a person was arrested for drug possession, the papers on their person could contain notations identifying the source of the drugs or identifying the price that was paid for the drugs. Such information would be evidence relating to the crime for which the person was arrested. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a search of defendant was proper where she voluntarily consented, and she did not implicitly withdraw the consent when she stopped taking things out of her pockets and “hesitated” before acceding to the police officer’s request to continue. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

Where business owner complained about drug dealing and described the suspect, officer had probable cause to believe that defendant was selling drugs based on business owner’s information and because officer knew defendant, defendant’s criminal history, and that the area had a reputation for drug activity. Duncan v. State, 178 P.3d 467 (Alaska Ct. App. 2008).