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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

MARGARET A. KELLEY, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-10882 

Trial Court No. 3PA-09-1654 CR 

O P I N I O N

 No. 2449 — April 10, 2015 

Appeal from the Superior Court, Third Judicial District, Palmer, 

Gregory Heath, Judge. 

Appearances: Marjorie Mock, under contract with the Public 

Defender Agency, and Quinlan Steiner, Public Defender, 

Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant 

Attorney General, Office of Special Prosecutions and Appeals, 

Anchorage, and Michael C. Geraghty, Attorney General, Juneau, 

for the Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, 

Senior Court of Appeals Judge. * 

Judge ALLARD, writing for the Court. 

Chief Judge MANNHEIMER, concurring. 

Senior Judge COATS, dissenting. 

* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska 

Constitution and Administrative Rule 23(a). 
 

 

 

 

 

 

 

Shortly after midnight, acting on an anonymous tip, two Alaska state 

troopers drove up Margaret A. Kelley’s driveway to her residence in Willow, Alaska, 

rolled down the windows of their idling patrol car, and sniffed the air. After detecting 

the odor of marijuana, the troopers obtained a warrant to search Kelley’s home. During 

that search they discovered and seized evidence of a commercial marijuana grow. 

For the reasons explained here, we conclude that the troopers had no legal 

right to approach Kelley’s home at that time of night, in the manner that they did, to 

gather evidence of a marijuana grow. Kelley is therefore entitled to suppression of the 

evidence obtained as a result of this illegal search. 

Facts and proceedings 

Margaret Kelley’s home is located at mile 85.5 of the Parks Highway. The 

residence is rural, set back a considerable distance from the highway, and there are no 

neighbors close by. 

On June 30, 2009, at 12:30 a.m., Sergeant Robert Langendorfer and 

Investigator Kyle Young drove onto Kelley’s property to investigate an anonymous tip 

that she was growing marijuana to sell.1

 The troopers drove up the driveway and parked 

their patrol car directly in front of Kelley’s house, leaving the engine idling for several 

minutes. The troopers made no effort to contact the occupants of the residence. Instead, 

they rolled down the windows of their patrol car and sniffed the air. According to the 

later search warrant application, they were able to detect the odor of growing or recently 

harvested marijuana. 

Further investigation revealed that Kelley owned the property but that her 

electrical usage was “unremarkable” — that is, not indicative of a commercial grow 

The record provides no details about the nature of the tip or when it was received. 

– 2 – 2449
 

1 
 

 

 

 

operation. Nevertheless, the troopers obtained a warrant to search the property. When 

they executed the warrant, they discovered numerous marijuana plants and other 

evidence of a commercial grow operation. Based on this evidence, the State charged 

Kelley with four counts of fourth-degree misconduct involving a controlled substance.2 

Kelley moved to suppress the evidence obtained during the search of her 

home, arguing that the officers unlawfully intruded onto her property when they drove 

up her driveway after midnight to sniff for narcotics. The trial court denied the motion, 

ruling that the driveway to Kelley’s house was impliedly open to public use because it 

provided public ingress to and egress from her property, and that the troopers therefore 

had a right to be there, even after midnight. The court reasoned that “[a] way of ingress 

or egress does not cease to exist after a certain time of night.” 

Kelley was then convicted in a bench trial on stipulated facts, and she 

appealed her conviction to this Court. While her appeal was pending, the United States 

Supreme Court issued its decision in Florida v. Jardines.

3 Because Jardines spoke to 

the propriety of this type of police approach to residential premises, we directed the 

parties to submit supplemental briefing addressing the case. 

We have received that briefing, and we now resolve Kelley’s appeal. 

2 AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F) & (G); AS 11.71.040(a)(5). 

3 133 S. Ct. 1409 (2013). 

– 3 – 2449
 
 

 

 

 

 

 

 

 

Why we conclude that the troopers’ conduct was unlawful and that the 

evidence obtained during the search of Kelley’s home must be suppressed 

Under the Fourth Amendment to the United States Constitution and Article 

1, Section 14 of the Alaska Constitution, a warrantless search of a home is illegal in the 

absence of exigent circumstances. This protection against unreasonable searches also 

extends to the curtilage of the home — those areas immediately surrounding the home 

in which the resident retains a reasonable expectation of privacy.4 

However, law enforcement officers may enter an area within the curtilage 

of a home that is “expressly or impliedly opened to the public use.” 5 More specifically, 

“if police utilize normal means of access to and egress from the house for some 

legitimate purpose, such as to make inquiries of the occupant, ... it is not a Fourth 

Amendment search for the police to see or hear or smell from that vantage point what is 

happening inside the dwelling.” 6 Thus, in Pistro v. State, our supreme court held that a 

police officer could lawfully drive up a driveway and observe stolen property in plain 

view through the window of the homeowner’s garage.7 

Until now, we have not had occasion to address whether this “public 

access” exception to the warrant requirement applies to a middle-of-the-night entry into 

the curtilage of a home. 

4 See Ingram v. State, 703 P.2d 415, 427 n.10 (Alaska App. 1985) (citing Oliver v. 

United States, 466 U.S. 170, 180 (1984)). 

5 Pistro v. State, 590 P.2d 884, 886 (Alaska 1979). 

6 Wallace v. State, 933 P.2d 1157, 1164 (Alaska App. 1997) (quoting 1 Wayne R. 

LaFave, Search and Seizure § 2.3(c), at 482-83 (3d ed. 1996)) (internal quotation marks 

omitted). 

7 Pistro, 590 P.2d at 885-88. 

– 4 – 2449
 
 

 

 

 

 

 

In Jardines, the United States Supreme Court recognized that a police 

officer has an implicit license to approach a home without a warrant and knock on the 

front door because this is “no more than any private citizen might do.”8

 But the Supreme 

Court also recognized that the scope of this implicit license is limited not only to the 

normal paths of ingress and egress, but also by the manner of the visit. As the Court 

explained, “[t]o find a visitor knocking on the door is routine (even if sometimes 

unwelcome); to spot that same visitor exploring the front path with a metal detector, or 

marching his bloodhound into the garden before saying hello and asking permission, 

would inspire most of us to — well, call the police.”9 

Thus, in the majority opinion in Jardines, the Supreme Court concluded 

that the police did not have an implicit license to walk uninvited onto the front porch of 

a home with a drug-sniffing dog, and the Court therefore upheld the Florida Supreme 

Court’s decision suppressing the evidence obtained as a result of that search.10 

The case before us involves a trooper sniff,11 not a dog sniff, and the 

troopers stayed in their car rather than stepping up onto the porch. But, in another 

respect, the search in this case was more intrusive than the search in Jardines, because 

it took place after midnight. 

8 Jardines, 133 S.Ct. at 1416 (quoting Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)). 

9 Id. 

10 Id. at 1416-18; see also id. at 1418-20 (Kagan, J., joined by Ginsburg and Sotomayor, 

JJ., concurring). 

11 See Wallace, 933 P.2d at 1165 (noting that there is no reasonable expectation of 

privacy from a trooper with “inquisitive nostrils” provided that the trooper is lawfully where 

he is entitled to be) (quoting 1 Wayne R. LaFave, Search and Seizure, § 2.2(a) at 403 (3d 

ed.1996)). 

– 5 – 2449
 
 

 

 

 

 

 

 

Although a late-night search was not before the Court in Jardines, both the 

majority and the dissent in Jardines were in agreement that there were clear temporal 

limits on the implied license for public access to a private residence. As Justice Alito 

noted in the dissent, a visitor may not “come to the front door in the middle of the night 

without an express invitation”; indeed, such a late-night intrusion “could be cause for 

great alarm.”12 The majority referred approvingly to the dissent’s “no-night-visits rule,” 

noting that “the typical person would find it ‘a cause for great alarm’ (the kind of 

reaction the dissent quite rightly relies upon to justify its no-night-visits rule...) to find 

a stranger snooping about his front porch with or without a dog.”13 

Before and after Jardines, courts in other jurisdictions have similarly 

condemned late-night police incursions onto private property, holding that they are 

generally outside the scope of the implied license for public access.14 

12 Id. at 1422 (Alito, J., joined by Roberts, C.J., and Kennedy and Breyer, JJ., dissenting) 

(citing State v. Cada, 923 P.2d 469, 478 (Idaho App. 1996) (“Furtive intrusion late at night 

or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if 

observed by a resident of the premises, it could be a cause for great alarm”). 

13 Id. at 1416 n.3 (emphasis in original). 

14 See, e.g., United States v. Lundin, ___ F. Supp. 2d ___, 2014 WL 2918102, at *6 

(N.D. Cal. 2014) (“[T]he implied license to visit is generally understood to extend during 

daylight hours.”); State v. Cada, 923 P.2d 469, 478 (Idaho App. 1996) (police officers’ 

nighttime intrusion “exceeded the scope of any implied invitation to ordinary visitors and was 

not conduct to be expected of a reasonably respectful citizen”); People v. Burns, ___ N.E.3d 

___, 2015 WL 404355, at *8 (Ill. App. Jan. 30, 2015) (condemning warrantless use of drugdetection dog to sniff apartment front door at 3:20 a.m.); Commonwealth v. Ousley, 393 

S.W.3d 15, 31 (Ky. 2013) (midnight intrusion by police on homeowner’s driveway 

unconstitutional because “[a]bsent an emergency, such as the need to use a phone to dial 911, 

no reasonable person would expect the public at his door at [that] time[]”); State v. Ross, 4 

P.3d 130, 136 (Wash. 2000) (suppressing evidence where police used driveway to enter 

property at 12:10 a.m. to search for evidence of marijuana grow, with no intention of 

(continued...) 

– 6 – 2449
 
 

 

 

 

 

 

 

In State v. Ross, for example, the Washington Supreme Court held that law 

enforcement agents conducted an illegal search when they approached a homeowner’s 

garage shortly after midnight “for the express, and sole, purpose of searching for 

evidence of a marijuana grow operation in order to obtain a search warrant.”15 In finding 

the entry unlawful, the Washington Supreme Court emphasized that “[t]he deputies 

entered the property at 12:10 a.m., an hour when no reasonably respectful citizen would 

be welcome absent actual invitation or an emergency.”16 

Similarly, in Commonwealth v. Ousley, the Kentucky Supreme Court held 

that a middle-of-the-night police intrusion onto the curtilage of a home to search a 

garbage can violated the Fourth Amendment. 17 Noting that “the time of the day of the 

invasion matters,” the court held that “just as the police may invade the curtilage without 

a warrant only to the extent that the public may do so, they may also invade the curtilage 

only when the public may do so.”18 

Here, the record shows (and the State does not dispute), that the troopers 

entered the constitutionally protected curtilage of Kelley’s home when they drove down 

14 (...continued) 

contacting defendant); State v. Johnson, 879 P.2d 984, 991-93 (Wash. App. 1994) (noting 

that danger of “violent confrontation”considerably heightened during 1:00 a.m. intrusion). 

15 Ross, 4 P.3d at 136. 

16 Id. 

17 Ousley, 393 S.W.3d at 31. 

18 Id.; see also id. at 30 (“Girl Scouts, pollsters, mail carriers, door-to-door salesmen just 

do not knock on one’s door at midnight; and if they do, they are more likely to be met by an 

enraged (and possibly armed) resident than one with a welcoming smile.”). 

– 7 – 2449
 
 

 

 

 

 

 

 

 

 

 

her private driveway and parked their car directly in front of Kelley’s home.19 The 

record also shows (and again, the State does not dispute), that the purpose of this 

midnight visit was to gather evidence related to the anonymous tip that Kelley was 

growing marijuana to sell. 

There is no allegation that the troopers had prearranged business with 

Kelley, that they were expecting or intending to have direct contact with her, or that any 

exigency existed that otherwise justified their conduct. Nor is there any evidence that 

Kelley impliedly consented to the arrival of visitors after midnight — by, for instance, 

operating a night-time business from her home or hosting a large, late-night social 

gathering.20 Indeed, the State has articulated no reason to justify the troopers’ decision 

to conduct this investigation after midnight instead of during the day, when the 

investigation would have accorded with the conduct of a respectful citizen and wellsettled law. 

In urging us to uphold the search, the State emphasizes that, in Alaska in 

midsummer, it is still light out at 12:30 a.m. But the law’s aversion to nighttime searches 

is not based on the time of sunset, which varies by season, but on the widely recognized 

right of the individual to privacy and repose in the home at night.21 We note that in 

deference to this right, Alaska law requires a search warrant to be executed between the 

19 See Jardines, 133 S.Ct. at 1415 (defining curtilage as area “immediately surrounding 

and associated with the home”). 

20 The dissent notes that some part of Kelley’s driveway was shared with a business. 

This assertion appears only in the search warrant affidavit, and was never mentioned or relied 

on by the State in response to Kelley’s motion to suppress. As we noted earlier, the State did 

not dispute Kelley’s characterization of her home as “rural in character” and “not close to any 

adjacent neighbors.” 

21 See State v. Witwer, 642 P.2d 828, 833 (Alaska App. 1982) (noting that a nighttime 

search is a “greater violation of privacy” than a daytime search). 

– 8 – 2449
 
 

 

 

 

 

 

 

hours of 7:00 a.m. and 10:00 p.m., regardless of the season, unless there is good cause 

to execute the search at some other hour.22 

In his dissent, Senior Judge Coats observes that a number of courts have 

upheld late-night police approaches to residences for the purpose of conducting a “knock 

and talk” with the occupants. But the legal principles that govern a “knock and talk” do 

not apply here, because the State never asserted, and the record does not show, that the 

troopers approached Kelley’s residence to engage in a knock and talk. As the Kentucky 

Supreme Court noted in Ousley, “[w]here the officer seeks only to search and does not 

interact with the resident, he has no ‘legitimate’ purpose as understood in the knock-andtalk cases.”23 

We further note that the knock-and-talk cases cited by the dissent recognize 

that the lateness of the hour is an important factor to be considered in assessing the 

overall coerciveness and lawfulness of a knock and talk.24 Here, we reach our conclusion 

that the troopers’ conduct violated the Fourth Amendment to the United States 

Constitution and Article I, Section 14 of the Alaska Constitution based on all of the 

circumstances of this case — including the time of night, the troopers’ conduct, the 

State’s failure to advance any reason why the troopers could not gather their evidence 

during the day, or to believe that Kelley impliedly consented to such a late-night visit. 

The dissent also suggests that our decision will hamper legitimate nighttime police investigations. We disagree. Nothing in our decision bars the police from 

22 Alaska R. Crim. P. 37(a)(3)(C). 


23 Commonwealth v. Ousley, 393 S.W.3d 15, 30 (Ky. 2013).
 

24 See Fern L. Kletter, Construction and Application of Rule Permitting Knock and Talk
 

Visits Under Fourth Amendment and State Constitutions, 15 A.L.R. 6th 515, § 2 (2006). 

– 9 – 2449
 
 

 

 

 

 

 

approaching a residence late at night when they have good reason to do so.25 Likewise, 

nothing in our decision — or in Jardines — bars the police from using the normal means 

of ingress or egress to approach a residence, even in the absence of an invitation or 

exigent circumstances, provided that the manner and time in which they do so is 

consistent with the conduct of an ordinary, respectful citizen.26 

The search warrant in this case was based almost entirely on the evidence 

obtained by the troopers’ midnight entry onto Kelley’s property. Because the troopers 

were not in a place where they had a legal right to be when they conducted the sniff, the 

search warrant they obtained is tainted by the illegal search, and the evidence obtained 

as a result of the warrant must be suppressed.27 

Conclusion 

We REVERSE the judgment of the superior court. 

25 See, e.g., United States v. McDowell, 713 F.3d 571, 572-74 (10th Cir. 2013) 

(affirming denial of suppression motion based on evidence obtained from nighttime driveway 

sniff where police were on the property because they were attempting to locate suspect in 

assault investigation). 

26 Accord Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013) (“Complying with the terms 

of [the implied license for public access] does not require fine-grained legal knowledge; it 

is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.”). 

27 See Chandler v. State, 830 P.2d 789, 796 (Alaska App. 1992). 

– 10 – 2449
 
 

 

 

 

Judge MANNHEIMER, concurring. 

I agree with the analysis set forth in the majority opinion, and I write 

separately only to point out another pertinent aspect of Justice Scalia’s majority opinion 

in Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). 

As Judge Allard explains, both the majority and the dissent in Jardines 

agree that, for Fourth Amendment purposes, a nighttime entry onto residential property 

is different from a daytime entry — because the test is whether the entry is within the 

“implicit license” granted to visitors by the homeowner, and because homeowners have 

differing expectations regarding daytime and nighttime visitors. 

But Justice Scalia’s opinion in Jardines contains an analysis that is 

potentially of greater significance to this case, and to future cases: he asserts that “[t]he 

scope of a [homeowner’s implied] license ... is limited not only to a particular [physical] 

area, but also to a specific purpose.” Id., 133 S.Ct. at 1416 (emphasis added). 

In his opinion, Justice Scalia appears to ratify the approach that (1) police 

officers, like other citizens, are entitled to take advantage of a homeowner’s implied 

permission to have visitors enter their property, but (2) the scope of that implied 

permission depends, in part, on the visitor’s purpose, and (3) homeowners typically do 

not consent to have visitors enter their property to investigate crimes that the homeowner 

might have committed. 1 

Justice Scalia’s approach potentially raises significant Fourth Amendment 

questions. However, I conclude that we should not pursue this matter further in Kelley’s 

case. The parties’ briefs do not raise this point, and the facts of Kelley’s case do not 

require us to resolve the additional questions raised by Justice Scalia’s opinion. 

1 See Jardines, 133 S.Ct. at 1416-17 & n. 4. 

– 11 – 2449
 
 

 

 

COATS, Senior Judge, dissenting. 

The facts in this case are undisputed. The Alaska State Troopers received 

a tip that Margaret Kelley was growing and selling marijuana at her residence at mile 

85.5 of the Parks Highway. At approximately 12:30 a.m. on June 30, 2009, two 

members of the Mat-Su drug unit, Investigator Young and Sergeant Langendorfer, pulled 

into the driveway of Kelley’s residence. 

While still in their vehicle, both troopers smelled the odor of “fresh 

marijuana.” The troopers were directly in front of, and downwind from, Kelley’s 

residence. Moreover, there were no other nearby residences upwind of the Kelley 

residence. There was no indication that Kelley’s residence was occupied, and the 

troopers left without attempting to contact anyone. 

Based primarily on this information, the police obtained and served a search 

warrant on Kelley’s residence. They found a number of marijuana plants as well as 

marijuana growing equipment. Based on this evidence, the grand jury indicted Kelley 

on four counts of misconduct involving a controlled substance in the fourth degree. 

Kelley filed a motion to suppress in which she argued that the troopers 

conducted an illegal search under Article I, Section 14 of the Alaska Constitution and 

violated her right to privacy under Article I, Section 22 of the Alaska Constitution. 

Superior Court Judge Gregory Heath denied the motion to suppress and 

Kelley was then convicted in a bench trial based on stipulated facts. 

The majority of this Court reverses Kelley’s conviction, concluding that the 

police acted illegally by entering her property at 12:30 a.m. to investigate the tip that she 

was growing marijuana. 

Alaska law provides that law enforcement officers may enter onto private 

property to conduct an investigation without a warrant if they restrict their movements 

– 12 – 2449
 
 

 

 

 

 

 

 

 

 

 

to places where an ordinary visitor would be expected to go.1 There are no Alaska cases 

that restrict the time of day or night the police may use a residence’s normal means of 

ingress and egress to investigate a crime. 

In this case, Judge Heath found that the troopers entered Kelley’s property 

by means of her driveway, which was the normal way to approach her residence. The 

troopers did not get out of their vehicle, and they stayed for only a few minutes. Judge 

Heath assumed that, at 12:30 at night, the officers had the patrol car’s headlights on, and 

that the car’s engine made some noise as it approached. The judge concluded that this 

was not the type of “furtive” nighttime investigation that courts in some other 

jurisdictions have condemned.2 

3 As we recognized in Michel v. State, a police investigation is “as legitimate

a societal purpose as any other undertaking that would normally take a person to 

another’s front door.”4

 In his treatise on search and seizure, Professor LaFave points out 

that the courts that have directly addressed the issue “have not been inclined to view 

nocturnal entries upon the curtilage as improper.”5 

1 Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979); Michel v. State, 961 P.2d 436, 

438 (Alaska App. 1998). 

2 Citing State v. Johnson, 879 P.2d 984 (Wash. App. 1994), and State v. Cada, 923 

P.2d 469 (Idaho App. 1996). 

3 961 P.2d 436. 

4 Id. at 437-38 (quoting State v. Rigoulot, 846 P.2d 918, 923 (Idaho App. 1992)). 

5 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3 

(c) (5th ed.) (Westlaw, database updated October 2014) (citations omitted). 

– 13 – 2449
 
 

 

 

In finding that the troopers’ conduct in this case was illegal, the majority 

of this Court relies primarily on Florida v. Jardines,

6

 a United States Supreme Court 

case. In Jardines, the Supreme Court ruled that when the police step onto a 

homeowner’s porch with a drug-sniffing dog to investigate the contents of the home they 

conduct a “search” within the meaning of the Fourth Amendment.7 Although Jardines 

did not involve a late-night search, the dissent, written on behalf of four members of the 

Court, stated that there are limitations on when a visitor may approach the front door of 

a residence “in the middle of the night without an express invitation.”8 However, the 

9 case the dissent relied on for that proposition, State v. Cada, held only that the late hour

at which a police intrusion takes place is one factor for courts to consider in determining 

whether the entry was lawful.10 

The facts of Cada are far removed from Kelley’s case. In Cada, the police 

entered Cada’s property at 1:00 a.m. on June 10, 1993, to set up a thermal imaging 

device directed at the garage.11 The officers, at least one of them dressed in camouflage, 

entered the property again on June 21, 1993, at approximately 4:00 a.m., and hid a 

motion-activated low-light infrared video camera and two infrared sensors in the bushes 

across the driveway from the garage.12 

6 133 S. Ct. 1409 (2013).
 

7 Id. at 1417-18. 


8 Id. at 1422 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer, JJ.)
 

9 923 P.2d 469 (Idaho App. 1996).
 

10 Id. at 478.
 

11 Id. at 472. 


12 Id. 

– 14 – 2449
 
 

 

 

In Cada, the Idaho Court of Appeals held that this police entry was illegal 

under the Idaho Constitution.13 The court reasoned that 

furtive intrusion late at night or in the predawn hours is not 

conduct that is expected from ordinary visitors. Indeed, if 

observed by a resident of the premises, it could be a cause for 

great alarm. As compared to open daytime approaches, 

surreptitious searches under cover of darkness create a 

greater risk of armed response — with potentially tragic 

results — from fearful residents who may mistake the police 

officers for criminal intruders.14 

Similarly, in State v. Johnson,

15 the Washington Court of Appeals, applying 

the state constitution, found that a police entry onto the defendant’s property at 1:00 a.m. 

to investigate a possible marijuana growing operation was illegal. But again, the time 

of the entry was but one factor the court considered in finding the entry illegal. The 

police entered the Johnsons’ property via a state park, under cover of darkness. They 

opened a gate marked “Private Property” and “No Trespassing,” walked down the road, 

and took readings from a thermal imaging device aimed at the barn. 

The Washington court found that the closed gate marked with “No 

Trespassing” signs indicated that the Johnsons had a “subjective intent to close their 

property.”16 The court also concluded that the officers’ surreptitious entry onto the 

Johnsons’ property at 1:00 a.m. easily could have resulted in a violent confrontation.17 

13 Id. at 478. 

14 Id. 

15 879 P.2d 984 (Wash. App. 1994). 

16 Id. at 992. 

17 Id. at 993. 

– 15 – 2449
 
 

 

 

 

 

 

 

 

 

In State v. Ross,

18 the Washington Supreme Court likewise condemned a 

surreptitious police entry onto the defendant’s property, in a case the court described as 

“very similar” to Johnson.

19 

In each of these cases, the court considered the entire context of the police 

entry, not just the time of the entry. Moreover, in finding that the searches were illegal, 

the courts emphasized that the police had engaged in “furtive activity.” 

As Judge Heath found, there was no furtive activity in this case. The 

officers drove their patrol car up Kelley’s driveway, presumably with the headlights on, 

stayed only a few minutes, and did not get out of the car. 

I would affirm Judge Heath’s decision that this entry was lawful. The 

troopers’ investigation differed markedly from the facts of the out-of-state cases that 

found nighttime searches illegal. Those cases involved extreme facts, where the police, 

in an effort to avoid detection, snuck onto the defendant’s property under cover of 

darkness to obtain evidence. In Kelley’s case, the troopers simply drove up the driveway 

in a patrol car and remained there for several minutes, without getting out of the car. The 

driveway was the normal approach to the house, and the troopers did not open any gates 

or encounter any “No Trespassing” signs. 

This type of approach is unremarkable. Certainly newspapers are routinely 

delivered at night in this way, as might be advertisements, telephone books, or political 

material. An individual might drive up a driveway to check an address — or to look for 

the business that, according to the affidavit in support of the search warrant, shared some 

portion of Kelley’s driveway. I see no basis for excluding the police from making a 

similar approach. 

18 4 P.3d 130 (Wash. 2000). 

19 Id. at 136. 

– 16 – 2449
 
 

 

 

 

 

 

 

 

 

 

 

The majority relies on the fact that Alaska law requires search warrants to 

be executed between the hours of 7:00 a.m. and 10:00 p.m., unless the State shows good 

cause. But there is a big difference between driving up the driveway and approaching 

a house without getting out of the car, and entering a house under the force of a warrant 

and searching it. 

Police officers investigate crime around the clock,20 and there is no per se 

rule that prohibits late-night investigations. For instance, courts find that “knock and 

talk” investigations, where police approach a residence, knock on the door, and talk to 

witnesses or suspects, are generally reasonable, even if those contacts occur late at 

night.21 And courts routinely uphold much more intrusive late-night contacts than the 

situation presented in Kelley’s case. 

In my view, the opinion of the Court is not supported by any authority and 

runs the risk of creating uncertainty about the ability of the police to investigate crime 

other than during daytime hours. I therefore dissent. 

20 See, e.g., Martin v. State, 297 P.3d 896, 897-900 (Alaska App. 2013) (police 

approached a five-unit apartment complex after midnight as part of a drug investigation and 

saw, through a window, materials used for the manufacture of methamphetamine). 

21 See Fern L. Kletter, Construction and Application of Rule Permitting Knock and Talk 

Visits Under Fourth Amendment and State Constitutions, 15 ALR 6th 515 (2006) (stating, 

“Whether a knock and talk has transformed into a search or seizure is dependent upon the 

totality of the circumstances of each particular case... . [Where] police officers approached 

a residence at 2 in the morning but where lights were on inside indicating that people were 

awake and there was no other evidence indicating that visitors were not welcome to approach 

the front door of the residence[,]” no Fourth Amendment violation occurred). 

– 17 – 2449