Meyers v. Municipality of Anchorage (9/25/92) ap-1249
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
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Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN MEYERS, )
) Court of Appeals No. A-4131
Appellant, ) Trial Court No. 3AN-90-1561
Cr
)
v. )
) O P
I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1249 - September 25,
1992]
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, John D. Mason and
William H. Fuld, Judges, and Brian Johnson,
Magistrate.
Appearances: S. Joseph Montague, Gorton &
Oberly, Anchorage, for Appellant. Tracy
Gellert, Assistant Municipal Prosecutor, and
Richard L. McVeigh, Municipal Attorney, An
chorage, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
John Meyers was convicted, following a jury trial in
the Anchorage district court, of driving while intoxicated under
Anchorage Municipal Code 9.28.020(A). He appeals the district
court's denial of his motion to suppress evidence of his blood
alcohol level. We affirm.
On the evening of March 9, 1990, Anchorage Police
Officer Dan R. Seely responded to a three-vehicle accident at the
corner of 15th Avenue and Gambell Street. According to
witnesses, Meyers had driven his car through a red light, causing
the accident. A passenger in Meyers's vehicle told Officer Seely
that Meyers had been drinking.
Meyers was injured in the accident, and he was taken to
Humana Hospital for treatment. After completing his
investigation at the scene of the accident, Seely went to the
hospital. At the hospital, both paramedics and the physician who
first saw Meyers told Seely that Meyers was visibly intoxicated.
When Seely interviewed Meyers, his observations corroborated
those of the medical personnel: Seely found Meyers to have
bloodshot eyes, slurred speech, and a strong odor of alcoholic
beverages. Meyers in fact admitted to Seely that he had consumed
four drinks before he began driving.
Seely obtained Meyers's consent to police inspection of
his hospital treatment records. These records included the
results of a blood test that had been conducted by hospital
personnel for medical purposes. The test showed that Meyers's
blood alcohol level was .212 percent.
After Meyers was charged with driving while
intoxicated, he moved to suppress the blood test results,
claiming that he had been too disoriented to give a meaningful
consent to the police inspection of his hospital records.
District Court Judge William H. Fuld agreed that Meyers's consent
had been invalid and he therefore suppressed the test results.
However, Judge Fuld further ruled that, because the blood test
had been conducted for medical reasons (not at the behest of the
police), the test results remained available to the police by
search warrant - if the police could obtain the warrant through
an application that made no reference to the illegally obtained
test results.
Pursuant to Judge Fuld's decision, the Municipality of
Anchorage applied to Magistrate Brian Johnson for a search
warrant to obtain the blood test results from the hospital file.
The search warrant application was based on Officer Seely's
investigation of the case up to the time he obtained Meyers's
consent to inspect the hospital records. Magistrate Johnson
issued the warrant.
Meyers then filed a second motion to suppress the blood
test results. Meyers conceded that the search warrant
application established probable cause for the search, but he
argued that the police applied for the warrant only because they
already knew the test results. Judge Fuld rejected Meyers's
argument. Based upon the testimony of Officer Seely and of
Assistant Municipal Attorney James Wolf, Judge Fuld concluded
that the authorities' knowledge of the blood test results had not
altered or augmented their motivation to seek a search warrant
for Meyers's hospital records. Judge Fuld found that, under the
facts of Meyers's case, the officer investigating the accident
had every reason to believe that the blood test results would be
over .10 percent, even before the officer obtained Meyers's
consent to view the test results. Judge Fuld also found that,
under the Municipality's standard operating procedure in DWI
cases, the police normally would apply for a search warrant to
obtain the driver's hospital blood test results without seeking
the driver's consent.
On appeal, Meyers cites decisions from other states in
which courts, facing similar fact situations (an initial invalid
search or seizure followed by a subsequent valid one), have
suppressed evidence despite the fact that the police's
subsequent, legal efforts to obtain the same evidence were not
tainted by the initial illegality. These courts have reasoned
that the policy of deterring police misconduct calls for
application of the exclusionary rule even when the initial
illegality cannot be shown to taint the police's subsequent
acquisition of the evidence.
However, Alaska law on this issue is defined by Cruse
v. State, 584 P.2d 1141 (Alaska 1978). In Cruse, the police had
conducted an arguably illegal search of the trunk of the defen
dant's vehicle. Recognizing that there might be a problem with
this initial search, the authorities obtained a search warrant
authorizing them to conduct the same search. The search warrant
application did not contain any information obtained as a result
of the original search of the trunk. 584 P.2d at 1143.
The Alaska Supreme Court decided that it did not need
to resolve the legality of the initial search. Rather, the court
held that the evidence ultimately seized from the trunk was not
tainted by any initial illegality, since the police had seized
the evidence pursuant to a subsequently issued search warrant
that did not rest in any way on the results of the first search.
Id. at 1145.
Meyers contends that the Cruse test needs to be supple
mented. He argues that it is not sufficient for the government
to show that a warrant could be obtained without reference to the
illegally seized evidence. Rather, Meyers asserts, even if the
search warrant application makes no mention of the illegally
obtained evidence, the initial illegality nevertheless taints the
subsequent warrant if the illegally obtained evidence increased
the police's motivation to seek that warrant.
We agree with Meyers that this is the test. However,
the Cruse decision incorporates this very rule. After stating
that "the controverted evidence here was obtained through
information wholly independent of the initial trunk search", the
court then clarified what it meant by "wholly independent":
The evidence presented to the district court
in support of the search warrant was procured
without resort to any clue or knowledge
gained from the trunk search. The inves
tigation leading to the lawful search was not
intensified or significantly focused by
reason of any tainted information. Moreover,
there was no exploitation of the alleged
misconduct to discover new evidence ... .
Cruse, 584 P.2d at 1145 (emphasis added).
Thus, the Alaska Supreme Court's decision in Cruse
already incorporates Meyer's "tainted motivation" theory. Judge
Fuld found that the authorities' motivation to seek the search
warrant for Meyers's hospital records would have existed, undimin
ished, if the police had never seen the blood test results. This
finding of fact is not clearly erroneous. Wilburn v. State, 816
P.2d 907, 911 (Alaska App. 1991).1
Our conclusion disposes of Meyers's argument that
Alaska Evidence Rule 412 prohibits use of the blood test results.
Rule 412 states that illegally obtained evidence shall not be
used for any purpose if the defendant in a criminal prosecution
makes a proper objection. However, the blood test results seized
pursuant to the search warrant were legally obtained.
The judgement of the district court is AFFIRMED.
_______________________________
1 Cruse requires the police, when seeking a search warrant,
to inform the court that an illegal or arguably illegal search
has already occurred. 584 P.2d at 1146. (But see Justice
Matthews's concurring opinion, 584 P.2d at 1147.) In the present
case, the police did not tell Magistrate Johnson that they had
already obtained the blood test results illegally. However, when
the police withheld this information from Magistrate Johnson,
they were following the directive given them by Judge Fuld. All
the relevant facts are contained in the court record. There was
no attempt to mislead the judiciary.
