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Smith v. State (12/3/99) ap-1657

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     The text of this opinion can be corrected before the
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              303 K Street, Anchorage, Alaska  99501
                       Fax:  (907) 264-0878
        E-mail:  corrections@appellate.courts.state.ak.us
     
          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DOUGLAS LEON SMITH,           )
                              )          Court of Appeals No. A-4054
                 Appellant,   )       Trial Court No. 3AN-S90-1097CR
                              )
                  v.          )               O P I N I O N
                              )
STATE OF ALASKA,              )                   
                              )
                 Appellee.    )        [No. 1657 - December 3, 1999]
                              )


          Appeal from the Superior Court, Third Judicial
District,  Anchorage, Eric T. Sanders and Karl Johnstone, Judges.

          Appearances:  Walter Share, Seattle, WA, and
David Loutrel, Anchorage, for Appellant.  Nancy R. Simel, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee. 

          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          COATS,  Chief Judge.

          This case presents the issue of whether the trial court
properly applied the inevitable discovery exception to the
exclusionary rule adopted by the Alaska Supreme Court in Smith v.
State. [Fn. 1]  We affirm the trial court's decision.
          Douglas Leon Smith was convicted, following a jury trial,
of misconduct involving a controlled substance in the third degree,
a class B felony. [Fn. 2]  Smith now appeals, arguing that evidence
obtained from his home should be suppressed because Superior Court
Judge Eric T. Sanders incorrectly applied Alaska's inevitable
discovery exception.
          1.  Drug Transaction and Arrest:  In February of 1990,
Wilbur Hooks, an investigator with the Anchorage Police Department,
arranged to sell a kilogram of cocaine to Edwardo Aragon in the
parking lot of the Carrs store on the corner of Muldoon Road and
Northern Lights Blvd. (During the transaction, Hooks wore a wire so
that his conversations could be monitored by Officer Linda O'Brien,
the case officer.)  After meeting in the parking lot, Aragon asked
Hooks to accompany him to the house of his "money man" to complete
the transaction.  Hooks refused to leave the parking lot so Aragon
called his "money man" to arrange to have him join them.  Aragon
told Hooks that his "money man" was white and would be driving a
brown pickup truck.  The "money man," appellant Smith, arrived
approximately ten minutes later in a brown pickup truck.  When Smith
arrived in the parking lot, Officer O'Brien called the Anchorage
Police Department to obtain a registration check on the pickup
truck.  From this check, O'Brien learned that the vehicle was
registered to a Douglas Leon Smith who lived at 7929 East Third
Avenue.  Hooks received $26,000 from Smith, thus completing the
transaction.  Following a high-speed chase, police arrested Smith. 
In Smith's vehicle, police found utility bills that also showed that
Smith lived at 7929 East Third Avenue.  However, the address that
the police obtained from Smith's driver's license differed from the
address found on Smith's vehicle registration and utility bills. 
          2.  O'Brien's Interview of Smith:  Officer O'Brien met
Smith in an interrogation room at the police station and questioned
him to obtain basic booking information.  She began by asking his
name, height, weight, social security number, and driver's license
number.  In doing so, she followed a standardized booking form. 
Smith requested a phone call.  O'Brien told Smith that he could make
a phone call once he arrived at the jail.  She then asked Smith for
his address.  He asked if he was required to answer.  O'Brien
replied that she would ask the Magistrate to require Smith to
provide his address as a condition of bail.  Smith then gave his
address.  O'Brien completed the booking form, then read Smith his
Miranda rights. [Fn. 3] 
          3.  Search Warrant:  O'Brien obtained a search warrant for
the residence at 7929 East Third Avenue.  During the warrant
hearing, O'Brien told the magistrate that she knew Smith's address
because he had given it to her and because it was listed on his
driver's license.  The police searched Smith's residence on East
Third Avenue and discovered records of drug sales, guns, marijuana,
cocaine, drug paraphernalia, and $100,000 in cash.          4. 
Trial and Initial Motion to Suppress:  At trial, the state sought
to have  these materials admitted into evidence.  Smith moved to
suppress on the grounds that Officer O'Brien had denied him his
statutory right to make a phone call and violated his constitutional
rights when she questioned him, obtaining his address.  He argued
that the search warrant and all the evidence which police discovered
in serving the search warrant should be suppressed as a result of
these violations.  At the suppression hearing, O'Brien testified
that she relied on other sources of information to obtain Smith's
address.  She explained that she initially learned that Smith lived
at 7929 East Third Avenue by running a check on his vehicle
registration.  She also testified that this was corroborated by
Aragon's general description of where Smith lived.  Superior Court
Judge Karl Johnstone found that Officer O'Brien had violated Smith's
right, under AS 12.25.150, to make a phone call. [Fn. 4]  However,
the judge denied Smith's motion to suppress because he found that
Officer O'Brien had obtained Smith's address from his vehicle
registration before she questioned him.  The court found that
O'Brien had questioned Smith to obtain booking information rather
than to gain information to be used in a search warrant.  He
concluded that the fact that O'Brien had violated Smith's rights by
denying him his right to make a telephone call did not cause Smith
to tell O'Brien his address when she questioned him.  Smith was
convicted and appealed, arguing, among other things, that Judge
Johnstone erred in not granting his motion to suppress because when
Officer O'Brien questioned him, his rights under AS 12.25.150 and
the state and federal constitutions had been violated. 
          5.  Independent Source Litigation:  On appeal, we
concluded that Judge Johnstone did not err in finding that Smith's
rights, under AS 12.25.150 and Zsupnik, had been violated.  We
concluded that the court erred in not suppressing Smith's statement
to Officer O'Brien revealing his address as a fruit of this
violation.  But since it appeared that the warrant itself might not
have been a fruit of the violation because the police arguably were
aware of Smith's address before they illegally obtained it, we
remanded the case for application of the independent source
exception to the exclusionary rule. [Fn. 5]  On remand, Judge
Johnstone heard evidence regarding the applicability of the
independent source doctrine and found that O'Brien had obtained
Smith's address from checking his registration before she questioned
him and concluded that the police were aware of Smith's address and
would have obtained a warrant to search Smith's residence even
without Smith's statement to Officer O'Brien. [Fn. 6]  We affirmed
Judge Johnstone's decision to deny Smith's motion to suppress.
          6.  Inevitable Discovery:  Smith next filed a petition for
hearing in the Alaska Supreme Court in which he argued that we
erroneously upheld the trial court's application of the independent
source doctrine and also argued that his rights under the state and
federal constitutions had been violated.  In Smith v. State,  [Fn.
7] the supreme court held that the independent source doctrine did
not apply to the facts of Smith's case.  The court pointed out that
although O'Brien had already obtained Smith's address from his
registration before she questioned him, she had not written that
address down.  She had actually used Smith's statement to obtain the
warrant, not the registration:
               The independent source exception requires
that the police know of and act on lawfully obtained independent
evidence at the time they take the challenged action   here the
application for a warrant.  The fact that the police could have
easily obtained lawful evidence is insufficient by itself to meet
this requirement. [Fn. 8]


The court, however, accepted the inevitable discovery exception to
the exclusionary rule  as a matter of state law, held that the
exception might apply in this case, and remanded the case for
consideration of this question. [Fn. 9]
          The Alaska Supreme Court described the test for the
applicability of the inevitable discovery exception in the following
manner:  "if the prosecution can show, by clear and convincing
evidence, that illegally obtained evidence would have been
discovered through predictable investigative processes, such
evidence need not be suppressed as long as the police have not
knowingly or intentionally violated the rights of the accused in
obtaining that evidence." [Fn. 10]
          The inevitable discovery exception, like the independent
source exception, helps to balance the effects of the exclusionary
rule. The supreme court noted that the "'core rationale' for the
exclusionary rule is 'to deter police from violations of
constitutional and statutory protections.'" [Fn. 11]  The
exclusionary rule prevents the prosecution from being in a better
position than it would have been had a violation not occurred. 
Correspondingly, the independent source and inevitable discovery
exceptions are "not meant to put the prosecution in a position worse
than if no police misconduct occurred." [Fn. 12]
          The Alaska Supreme Court recognized several potential
problems associated with the application of the inevitable discovery
exception.  First, the supreme court noted that the exception
creates the opportunity for conjectural or hypothetical arguments
regarding the inevitability of police discovery of a piece of
evidence.  To combat this problem, the supreme court, following
Justice Brennan's suggestion in Nix v. Williams, [Fn. 13] decided
to require the police to show by clear and convincing evidence that
the evidence would have been discovered by legal means. [Fn. 14] 
This heightened evidentiary standard is designed to diminish the
risk of admitting illegally obtained evidence. [Fn. 15]  Second, the
supreme court recognized the need "to safeguard against the use of
the inevitable discovery exception in cases where discovery by legal
means was possible, but not truly inevitable." [Fn. 16]  Under this
newly-adopted test for inevitable discovery, the prosecution "'must
establish, first, that certain proper and predictable investigatory
procedures would have been utilized in the case at bar, and second,
that those procedures would have inevitably resulted in the
discovery of the evidence in question.'" [Fn. 17]  Finally, the
supreme court noted that the existence of the inevitable discovery
exception may create an incentive for police illegality. [Fn. 18] 
Accordingly, the court adopted a good faith requirement that
prevents application of the exception when police have intentionally
or knowingly violated a suspect's rights. [Fn. 19]
          Following the supreme court's decision, the case was
remanded to Superior Court Judge Eric Sanders (Judge Johnstone
having retired).  Following an evidentiary hearing, Judge Sanders
concluded that the state established that the inevitable discovery
exception to the exclusionary rule applied and declined to suppress
the evidence which derived from Smith's statement to the police. 
In his findings, Judge Sanders found that the circumstances
surrounding Smith's arrest, the large sums of money, and the large
quantities of drugs, led investigators to believe that they were
dealing with a major supplier of drugs.  He found that Hooks and
O'Brien, as experienced investigators, would conduct a thorough
investigation that would include a search of the defendant's house. 
Judge Sanders concluded that "[i]t would be a routine step to try
to locate Smith's home and search it. . . .  Therefore, the police
were following a predictable investigatory procedure when they
decided to seek a search warrant soon after Smith was arrested." 
In addition, Judge Sanders noted that other pieces of evidence  
Smith's vehicle registration, receipts and bills found in Smith's
vehicle, corroborating comments regarding Smith's address made by
Aragon   made discovery of Smith's address inevitable regardless
of his statements to Officer O'Brien or the conflicting information
on his driver's license. 
          We are to uphold Judge Sanders' findings of fact unless
we find they are clearly erroneous. [Fn. 20]  We conclude that his
findings are supported by the record and are not clearly erroneous. 

          Smith argues that federal courts only apply the inevitable
discovery doctrine to situations where the government can prove that
a  totally independent investigation had been previously initiated
which would have led to the inevitable discovery of the information
in question.  But we have previously dealt with the inevitable
discovery doctrine in applying federal law in Hazelwood v. State.
[Fn. 21]  In that case, we relied on decisions from the Ninth
Circuit for applying the inevitable discovery rule.  We quoted the
test from the Ninth Circuit as follows:
          [T]his Circuit does not require that the
evidence be obtained from a previously initiated, independent
investigation.  The government can meet its burden by establishing
that, by following routine procedures, the police would inevitably
have uncovered the evidence. [Fn. 22] 

          The statement by the Ninth Circuit of the test for
determining whether evidence qualifies under the inevitable
discovery rule is consistent with the language which the Supreme
Court of Alaska used in setting out its statement of the rule.  We
see no conflict between the test set out by the Alaska Supreme Court
and the test set out by the Ninth Circuit.  Although other circuits
may have different formulations of the inevitable discovery test,
it seems reasonable for us to follow the formulation which the
federal court uses in the Ninth Circuit, the circuit which includes
the State of Alaska.  
          From the facts of Smith's case, it seems clear that the
Alaska Supreme Court did not intend to adopt an inevitable discovery
rule which would require an independent investigation.  It was clear
that the police did not obtain Smith's address from an independent
investigation.  The state's claim was that the inevitable discovery
rule applied because the police had already obtained Smith's address
before they questioned him.  If the supreme court concluded that the
state's theory had no merit, it seems unlikely that it would have
remanded the case to allow the state the opportunity to develop that
theory.  We conclude that the state was not required to prove that
the information about where Smith resided needed to be obtained from
a previously initiated independent investigation.  The state was
required to show "by clear and convincing evidence, that illegally
obtained evidence would have been discovered through predictable
investigative processes." [Fn. 23]  This is the test which Judge
Sanders applied, and as we have previously stated, his findings are
supported by the record and are not clearly erroneous.
          Smith argues that Judge Sanders erred in finding that
Officer O'Brien did not knowingly or intentionally violate his
rights.  In rejecting this claim, Judge Sanders found that at the
time  O'Brien questioned Smith, "the police already possessed much
information which revealed Smith's home address and the
investigators undoubtedly would have been able to obtain a search
warrant for that location."  He found that when O'Brien questioned
Smith, she was merely questioning him to obtain basic background
information such as "his name, height, social security number,
driver's license number, home and work address, phone number,
whether he was ill and whether he was under the influence of drugs
or alcohol."  He found that O'Brien "did not seek Smith's address
for reasons related to the warrant application."  He noted that
Judge Johnstone had reached similar conclusions in earlier findings,
that O'Brien "was requesting 'simple background information which
is routine' when someone is arrested for a felony." 
          Smith contends that even if we accept these findings, that
the record shows that O'Brien knowingly and intentionally violated
Smith's rights.  He points out that O'Brien certainly intended not
to allow Smith to make a telephone call and not to give him Miranda
warnings until after she had obtained background information from
him.  But the Smith opinion makes clear that, when the supreme court
referred to a knowing or intentional violation of rights, the court
was referring to the officer's awareness that his actions would
violate the defendant's rights.  The doctrine of inevitable
discovery is available so long as the police did not act in bad
faith.
          In its Smith opinion, the Alaska Supreme Court accepted
Professor Lafave's rationale for a good faith requirement. [Fn. 24] 
Lafave describes the reasoning behind the good faith requirement in
the following manner:  
          Because one purpose of the exclusionary rule is
to deter [statutory or constitutional violations], there is much to
be said for the proposition that the "inevitable discovery" rule
should be applied only when it is clear that "the police officers
have not acted in bad faith to accelerate the discovery" of the
evidence in question. [Fn. 25]  

The supreme court also cited favorably to the opinion of the North
Dakota Supreme Court in State v. Phelps, in which that court stated
that it would permit application of the doctrine "only when police
have not acted in bad faith." [Fn. 26]  The Alaska Supreme Court
simply adopted this same test, but stated it in terms of an
intentional or knowing violation.  Judge Sanders interpreted Smith
in this manner, and concluded that the state had shown that O'Brien
did not act in bad faith.  This finding is supported by the record
and is not clearly erroneous.
          Smith contends that O'Brien violated his Fifth amendment
right to remain silent and his Sixth amendment right to counsel when
she questioned him, obtaining his address.  He argues that Judge
Sanders should have decided on remand if O'Brien had intentionally
or knowingly violated these constitutional rights.  Smith notes that
he raised these constitutional issues in the trial court in his
initial motion to suppress, before the court of appeals in his
appeal from the trial court's decision to deny suppression, and in
his petition and brief to the supreme court.  He argues that the
constitutional issues were not reached because each court found a
statutory violation and had no need to consider alternative
constitutional issues.
          In our former decision, although we suppressed Smith's
statements to Officer O'Brien, we affirmed Smith's conviction by
applying the independent source exception to the exclusionary rule.
[Fn. 27]  We implicitly rejected the claim that Smith would be
entitled to any greater relief if he showed constitutional
violations rather than a statutory violation.  Smith raised his
constitutional claims before the supreme court.  In its Smith
opinion, the supreme court recognized only a violation of Smith's
rights under AS 12.25.150. [Fn. 28]  It appears to us that the
supreme court either implicitly rejected Smith's constitutional
claims or concluded that even if Smith established a violation of
his constitutional rights the same inevitable discovery test would
apply.  As we have previously stated, it does not appear to us that
the federal test for inevitable discovery, as stated by the Ninth
Circuit, is more strict than the test applied by the Supreme Court
of Alaska.  Furthermore, the trial court's prior findings make it
clear that Officer O'Brien did not act in bad faith when she
questioned Smith.  We therefore conclude that, even if Smith
established that the state also violated his constitutional rights, 
the state has established that the information concerning his
address was the product of inevitable discovery and that there was
no basis for suppressing the results of the search of his residence.
          Smith argues that Judge Sanders erred in failing to allow
him to engage in further discovery about Officer O'Brien and her
background in conducting interviews of suspects.  We find no merit
to Smith's contention.  After Judge Sanders entered his findings on
remand, Smith requested further discovery.  Judge Sanders denied
this request, noting that Smith was aware that O'Brien's good faith
and knowledge were at issue on remand.  He pointed out that Smith
had specifically informed the court that he would not be seeking
further discovery.  He concluded that Smith had waived his
opportunity to engage in further discovery and that it was
inappropriate for Smith to ask for further discovery after the court
had entered its ruling.  We conclude that Judge Sanders did not
abuse his discretion in reaching this conclusion.
          The conviction is AFFIRMED.



                            FOOTNOTES


Footnote 1:

     948 P.2d 473 (Alaska 1997).


Footnote 2:

     AS 11.71.030(a)(1)(c).


Footnote 3:

     See Miranda v. Arizona, 384 U.S. 436 (1966).


Footnote 4:

     See Zsupnik v. State, 789 P.2d 357 (Alaska 1990) (evidence
obtained in violation of AS 12.25.150 must be excluded). 


Footnote 5:

     Smith v. State, Mem. Op. & J. No. 2641, at 6-8 (Alaska App.,
Mar. 10, 1993).


Footnote 6:

     Smith v. State, Mem. Op. & J. No. 2956 at 2 (Alaska App., July
27, 1994).


Footnote 7:

     948 P.2d 473, 478 (Alaska 1997).


Footnote 8:

     Id.


Footnote 9:

     Id. at 478-81.  


Footnote 10:

     Id. at 481.


Footnote 11:

     Id. at 478 (quoting Nix v. Williams, 467 U.S. 431, 442-43
(1984)). 


Footnote 12:

     Id. at 478.


Footnote 13:

     467 U.S. 431, 459-60 (1984).


Footnote 14:

     Smith, 948 P.2d at 480.


Footnote 15:

     Id.


Footnote 16:

     Id.


Footnote 17:

     Id. (quoting 5 Wayne R. Lafave, Search and Seizure, sec.
11.4(a)
at 248 (3d ed. 1996)).


Footnote 18:

     Smith, 948 P.2d at 481.


Footnote 19:

     Id.


Footnote 20:

     See Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991);
Ahkivgak v. State, 730 P.2d 168, 171 (Alaska App. 1986).


Footnote 21:

     912 P.2d 1266, 1269-77 (Alaska App. 1996).


Footnote 22:

     Id. at 1271 (quoting United States v. Ramirez-Sandoval, 872
F.2d 1392, 1399 (9th Cir. 1989) (citation omitted)).


Footnote 23:

     Smith, 948 P.2d at 481.


Footnote 24:

     Id.


Footnote 25:

     5 WAYNE R. LAFAVE, SEARCH AND SEIZURE sec. 11.4(a) at 245 (3d.
ed.
1996). 


Footnote 26:

     297 N.W.2d 769, 775 (N.D. 1980).


Footnote 27:

     Smith v. State, Mem. Op. & J. No. 2956 (Alaska App., July 27,
1994).


Footnote 28:

     Smith, 948 P.2d at 481 n.7.