Search warrants could apply to any sort of violation of the law, including underage drinking, under a bill filed by state Rep. Andrew Halcro.
The Anchorage Republican is responding to a Juneau magistrate's recent decision to throw out evidence of underage drinking gained by a search warrant, said legislative aide Jonathon Lack.
In that case, Magistrate John Sivertsen Jr. said state law allows search warrants to be used only when police are looking for evidence of crimes, which the law defines as offenses punishable by imprisonment.
Underage drinking, like traffic infractions, is classified in state statutes as a noncriminal offense. Violations like that are punishable only by fines. The Legislature downgraded underage drinking from a misdemeanor crime in 1995.
Halcro's bill says search warrants may apply to any sort of offense.
``Leave it to a Republican not to respect the sanctity of the home,'' said Juneau defense attorney David Mallet, who handled the case Sivertsen ruled on.
Lack said he hasn't heard of similar search warrants being thrown out by judges.
``The dilemma is if Sivertsen's decision stands, will that lead to other judges and magistrates similarly denying search warrants based on the distinction between an offense and a crime?'' Lack said. ``The representative doesn't think the distinction is accurate.''
Sivertsen's ruling could have broader applications, the state Department of Law said in an appeal. Many commercial fishing and game offenses are violations, and search warrants often are used to investigate those crimes, the state said.
In the Juneau case, police responded about 3 a.m. on Halloween to reports of a noisy drinking party at a house at Fifth and Gold streets.
An officer saw youths drinking in and around the house. The resident in charge, a 21-year-old man, wouldn't let police enter. But District Court Judge Peter Froehlich granted a search warrant.
Mallet, attorney for Matt Euteneier, a 20-year-old man cited for underage drinking, asked Sivertsen to suppress the evidence. Mallet argued the state search warrant law specifies it applies to crimes, which would exclude violations such as underage drinking.
Sivertsen agreed in a January decision, and later denied the Juneau district attorney office's request to reconsider his decision.
If it becomes law, Halcro's bill would not cover cases already thrown out. But the state Department of Law hasn't given up on the Euteneier case. It has petitioned the state Court of Appeals for a hearing. The court hasn't responded yet.
``It's our belief that search warrants can be used for a variety of things, whether it's technically, quote, a crime or, quote, a violation,'' said Dean Guaneli, chief assistant attorney general in the Criminal Division.
The state Supreme Court has said violations are minor criminal offenses in substance and are enforced and adjudicated using criminal procedures, the Department of Law argued in its petition. The court has upheld the use of arrest warrants for traffic infractions, for example.
But Mallet, in an interview, said the state is wrongly interpreting the current law. ``I think it is a legislative loophole that the new bill is trying to cover up.''
If Sivertsen's decision stands, it will be hard, if not impossible, for the police to control alcohol use by minors, the state argued in its petition.
Judges have encouraged police to get search warrants for drinking parties, Guaneli said. Then a magistrate said they can't get a warrant, he said. ``Are they supposed to let kids drink into oblivion?''
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