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Blank v. State (5/19/00) ap-1673
Blank v. State (5/19/00) ap-1673
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
LAURA A. BLANK, )
) Court of Appeals No. A-6541
Appellant, ) Trial Court No. 3PA-S94-2829 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1673 May 19, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Christine S. Schleuss, Suddock &
Schleuss, Anchorage, for Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, dissenting.
Laura A. Blank struck a pedestrian, Pennye McDowell,
while driving home from a friend's house. Blank did not stop at
the scene of the accident. McDowell died from her injuries.
The Alaska State Troopers investigated the accident and
ultimately arrived at Blank's residence. During an interview with
Blank in his patrol car, Trooper Bill D. Tyler performed a portable
breath test on Blank that yielded a result of .082. The grand jury
indicted Blank for manslaughter [Fn. 1] and felony leaving the
scene of an injury accident. [Fn. 2] Blank moved to suppress her
interview with Trooper Tyler, claiming that it was custodial
interrogation without Miranda [Fn. 3] warnings. Blank also claimed
that the portable breath test was an unauthorized search. Finally,
Blank moved to suppress the evidence obtained from the service of
two search warrants. Blank claimed that the warrants were based on
illegally obtained evidence and on material misstatements of fact
by the trooper who applied for the warrants. Superior Court Judge
Beverly W. Cutler denied Blank's motions. Because we agree
with Blank that the portable breath test was an unauthorized
search, we reverse.
Facts and proceedings
On September 26, 1994, Pennye McDowell and Diane Forster
were walking on a residential street in a subdivision near Palmer.
The paved roadway, edged with a narrow gravel strip, was straight
and level. Forster walked on the gravel strip; McDowell on the
edge of the road bed. Blank drove up from behind the two and
struck McDowell. McDowell's body landed several feet away in a
ditch. The impact broke the windshield, the right side view
mirror, and the right side passenger's window of Blank's car.
Blank did not stop; Forster testified that she "heard the car
squealing around the corner" away from the scene.
Blank's husband, Greg Blank, appeared at the scene while
troopers were investigating. Mr. Blank told Trooper Tyler that his
wife may have been involved in the accident. Tyler and two other
officers followed Mr. Blank back to the Blank residence. At the
residence, Tyler introduced himself to Laura Blank and told her
that he "needed to talk to her about the accident." Tyler
suggested that his patrol car was a better place for the interview
and Blank went with Tyler to the patrol car.
During the interview, Blank told Tyler that she had two
beers at a friend's house before driving home. Tyler administered
a portable breath test that registered a blood-alcohol content of
.082%. Blank agreed to go to the hospital to have a blood test,
but changed her mind at the hospital. Tyler did not arrest Blank.
On September 29, 1994, Trooper Dale G. Gibson, relying on
information from Tyler, obtained a search warrant to inspect
Blank's car which had been impounded. On October 14, 1994, Tyler
obtained a second search warrant for an additional inspection of
the car. Blank's indictment for manslaughter and leaving the scene
of an injury accident followed.
Judge Cutler denied Blank's pretrial motions to suppress
the portable breath test result, the statement to Trooper Tyler and
the evidence obtained from the execution of the search warrants.
Following a mistrial, Blank was convicted on both counts at her
second trial. Judge Cutler imposed a 6-year sentence with 1 year
suspended for manslaughter and a suspended 2«-year consecutive term
for leaving the scene of the accident. Blank now appeals her
conviction.
Discussion
Was Tyler's interview custodial interrogation?
When Tyler arrived at Blank's residence, he introduced
himself to Blank and told her that he "needed to talk to her about
the accident." Tyler asked Blank: "Why don't you come and sit in
my car[?]" Blank accompanied Tyler out to his patrol car, which
was parked outside the residence, and sat in the front seat.
Tyler recorded the interview with Blank. At the start,
Tyler stated that the interview was being conducted in the patrol
car "only for convenience sake" and expressed concern about "the
kids getting involved." Tyler advised Blank that "you're not under
arrest or anything like that" and that "you're free to leave any
time you want to." Blank answered Tyler's questions during the
approximately hour-long interview. Towards the end, Tyler asked,
"were you[] coerced, promised anything, . . . forced to make a
statement or anything?" Blank answered "no" and offered another
detailed recital of events. Tyler returned to his question:
TYLER: Were you forced to make a statement?
BLANK: No.
TYLER: Okay, you're doing this on your own free will?
BLANK: You bet. You bet.
Blank agreed to accompany Tyler to the hospital for a blood test.
After hearing evidence on Blank's motion to
suppress the statements she made during the interview with Tyler,
Judge Cutler found that a reasonable person would not have thought
she was in custody, and found that Blank subjectively understood
she was not in custody during the interview. As support for
finding that a reasonable person would not have thought they were
in custody, Judge Cutler noted that police "routinely" interview
drivers in a patrol car after an accident. Judge Cutler found that
the length of the interview and the small number of officers
present at the Blank residence were not indicative of a custodial
interview. As for the interview's location in the patrol car,
Judge Cutler saw the patrol car as an alternative private location.
The judge found important the fact that, although Tyler suggested
the patrol car as a location for the interview, it was Mr. Blank
who brought the police back to the residence.
In Hunter v. State, [Fn. 4] the Supreme Court adopted an
objective test for deciding if a person was in custody, so that
Miranda warnings were required. Miranda warnings must precede
police interrogation conducted under circumstances in which a
"reasonable person would feel he was not free to leave and break
off the questioning." [Fn. 5] The Supreme Court further indicated
that:
At least three groups of facts would be
relevant to this determination. The first are those facts
intrinsic to the interrogation: when and where it occurred, how
long it lasted, how many police were present, what the officers and
the defendant said and did, the presence of actual physical
restraint on the defendant or things equivalent to actual restraint
such as drawn weapons or a guard stationed at the door, and whether
the defendant was being questioned as a suspect or as a witness.
Facts pertaining to events before the interrogation are also
relevant, especially how the defendant got to the place of
questioning whether he came completely on his own, in response
to a police request, or escorted by police officers. Finally, what
happened after the interrogation whether the defendant left
freely, was detained or arrested may assist the court in
determining whether the defendant, as a reasonable person, would
have felt free to break off the questioning. [Fn. 6]
Blank has not attacked Judge Cutler's findings regarding these
factors. However, Blank claims that Judge Cutler erred by
concluding from her findings that Blank was not in custody.
Our review of the record convinces us that Judge Cutler
did not err in determining that a reasonable person in Blank's
position "would have felt free to break off the questioning." [Fn.
7] The interview was conducted in Tyler's patrol car outside of
Blank's residence. Although there were two other troopers at
Blank's property, they were not in Tyler's patrol car during the
interview. Tyler told Blank that she was free to go and was not
under arrest, nor was Blank arrested that day. For purposes of
Miranda we agree with Judge Cutler's decision that Blank was not in
custody during the interview with Tyler.
Was Blank's statement voluntary?
Blank also moved to suppress her statement to Tyler,
arguing that it was involuntary. Judge Cutler denied that motion
as well. We review the superior court's determination that Blank's
statement was voluntary by examining the totality of the
circumstances surrounding the statement. [Fn. 8] We accept the
superior court's findings of historical fact unless they are
clearly erroneous; but we review the record and make an independent
determination of Blank's mental state and its legal significance.
[Fn. 9] Factors that we consider in deciding if the State has met
its burden of showing that a defendant's statement is voluntary
include the defendant's age, mental status, and prior criminal
experience; the length, intensity, and frequency of the
questioning; the presence of physical deprivation or mistreatment;
and the existence of threat or inducement. [Fn. 10]
The record shows the following. When Tyler questioned
Blank, she was thirty. She was married and had three children.
She was upset about the accident. She had no known prior criminal
history or experience. Tyler questioned Blank in one interview
that was less than one hour long. There is nothing in the record
that shows any deprivation or mistreatment. Nor is there any
indication of a threat or an improper inducement. Blank argues
that her will was overborne because the trooper did not inform her
that McDowell was killed. But Tyler did not provide any false
information or create any false impressions. He merely withheld
information. After reviewing the totality of the circumstances in
the record before this court, we conclude, as did the superior
court, that the State sustained its burden of proving that Blank's
will was not overborne and that her statement was voluntary.
Were the search warrants issued on material misstatements
of fact?
The troopers seized Blank's car and took it to an impound
yard in Palmer. On September 29, 1994, Trooper Dale G. Gibson
applied for a warrant to search Blank's car based on his
investigation and reports from Trooper Tyler. In support of the
application, Gibson testified before Magistrate David L. Zwink.
Magistrate Zwink found probable cause to issue the warrant. On
October 14, 1994, Trooper Tyler applied for a second warrant to
conduct an additional inspection of the car. District Court Judge
Peter G. Ashman issued that warrant.
Blank moved to suppress the evidence obtained when the
troopers served the warrants. Blank claimed that Trooper Gibson
made material misstatements when applying for the first warrant.
Blank also claimed that Gibson should have told the court that
Blank reported consuming two beers and did not show signs of
intoxication other than the odor of alcohol and "mood swings."
Blank argues that the omission of this information was a material
misstatement. Blank also faults Trooper Gibson for stating that
there was no known reason for Blank to leave the scene of the
accident and no reason for failing to avoid hitting McDowell.
Blank argues these were material misstatements of fact.
Because Blank told Trooper Tyler that she was not aware
that she might have struck anyone until she saw the blood on her
car, she argues that Gibson's statement that she had no reason to
leave the scene was a material misstatement. Also, because Blank
told Trooper Tyler that she thought she had driven around the
pedestrians with enough room, Blank argues that Trooper Gibson's
statement that she had no reason for failing to avoid McDowell was
a material misstatement.
The parties agree that Blank's claims are governed by
State v. Malkin. [Fn. 11] In Malkin, our supreme court adopted the
rule established by the U.S. Supreme Court in Franks v. Delaware:
[Fn. 12] that intentional or reckless misstatements or omissions
must be excised from an application for a search warrant. [Fn. 13]
Once the offending items are excised, the remainder of the
application for a search warrant is scrutinized for probable cause
and the warrant will be upheld if probable cause exists. [Fn. 14]
However, if the misstatements or omissions were deliberately made
and calculated to mislead the magistrate, the warrant is
invalidated and the evidence suppressed. [Fn. 15] A misstatement
or omission is material if essential to the probable cause
determination. [Fn. 16]
Judge Cutler heard Trooper Gibson's testimony on this
claim at an evidentiary hearing. She found that Gibson had not
deliberately omitted information when he testified in support of
the warrant. Gibson learned of Blank's statements from Tyler's
reports. From our review of the record, Judge Cutler's findings
are not clearly erroneous. Furthermore, the record establishes
that there was probable cause to issue a search warrant and nothing
Blank points to is a material omission that would defeat the
issuance of a warrant.
Judge Cutler also found that Trooper Gibson had not been
deliberate or reckless when Gibson said that Blank had no reason
for leaving the scene of the accident or for failing to avoid
hitting McDowell. Furthermore, Judge Cutler concluded that those
statements were not material to the issuance of the search warrant.
Judge Cutler found that none of Gibson's purported misstatements or
omissions were reckless or intentional. The record supports Judge
Cutler's findings. We conclude that the superior court did not err
in failing to suppress the evidence from the first search warrant.
Blank advances similar arguments in support of her
challenge to the second search warrant for the car. The car had
been in the continuous custody of the troopers since the
investigation began. Because of that continuous custody, it is
questionable if a warrant was required to subject the car to
additional testing. In State v. McDonald, [Fn. 17] we quoted
LaFave, Search and Seizure, for the settled principle that:
[a]n object lawfully seized as evidence may be
kept in custody pending trial, and during that period "it is
plainly within the realm of police investigation to subject [such
an object] to scientific testing and examination" when such is done
"for the purpose of determining its evidentiary value." That is,
if the initial seizure was upon probable cause that the item would
be of evidentiary value, it may be tested and examined for the
purpose [of] maximizing its value in this respect. [Fn. 18]
Even so, Judge Cutler considered Blank's motion and analyzed the
evidence offered in support of the second warrant. Judge Cutler
noted that the second warrant was "basically based on the first
warrant" and denied Blank's motion for the same reasons that she
denied the motion as to the first warrant. Even though the second
warrant was probably not necessary, Judge Cutler's ruling on the
second warrant can be affirmed for the same reasons that we
affirmed her decision on the first warrant the record supports
her findings that none of the purported misstatements or omissions
were reckless or intentional.
Finally, Blank argues that the evidence obtained from the
search warrants should be suppressed because the portable breath
test was an illegal search. However, if illegally obtained
evidence is included in an application for a search warrant, we do
not invalidate the warrant if the warrant could have been issued on
the basis of the untainted evidence in the application. [Fn. 19]
Both search warrant applications in this case included
evidence that Blank struck and killed McDowell while driving her
car and did not stop at the scene of the accident. Her car
suffered extensive and noticeable damage. The road was straight
and level with no visual obstructions. McDowell and her companion
were walking along the side of the road when McDowell was struck
during daylight hours. Even without the result of the portable
breath test, this evidence provided probable cause to believe that
Blank committed felony leaving the scene of an injury accident,
manslaughter, or criminally negligent homicide. Thus, the portable
breath test result was not material to the issuance of the
warrants.
Was the portable breath test an authorized search?
In a criminal investigation, a breath test for alcohol is
a search. [Fn. 20] In Leslie v. State, [Fn. 21] we held that a
police officer could administer a preliminary breath test under AS
28.35.031(b) only if the officer had probable cause to believe that
the driver's ability to operate a motor vehicle was impaired by
alcohol. [Fn. 22]
Here, Trooper Tyler had evidence that Blank left the
scene of an injury accident that caused substantial and visible
damage to her car. Tyler also knew that McDowell had died from her
injuries. But, although there was probable cause to believe that
Blank committed a crime, the State does not contend that the police
had any individualized suspicion that Blank's "ability to operate
a motor vehicle [was] impaired by the ingestion of alcoholic
beverages[.]" [Fn. 23] Moreover, the record would not support that
conclusion. The record shows that Trooper Tyler noticed the odor
associated with alcohol consumption, and that Blank stated that she
consumed two beers at her friend's house. But the State has not
identified any other evidence that Blank was impaired by alcohol.
Rather than relying on AS 28.35.031(b) as authority for
the portable breath test, the State relies on AS 28.35.031(g) which
provides as follows:
A person who operates or drives a motor
vehicle in this state shall be considered to have given consent to
a chemical test or tests of the person's breath and blood for the
purpose of determining the alcoholic content of the person's breath
and blood and shall be considered to have given consent to a
chemical test or tests of the person's blood and urine for the
purpose of determining the presence of controlled substances in the
person's blood and urine if the person is involved in a motor
vehicle accident that causes death or serious physical injury to
another person. The test or tests may be adminis- tered at the
direction of a law enforcement officer who has reasonable grounds
to believe that the person was operating or driving a motor vehicle
in this state that was involved in an accident causing death or
serious physical injury to another person.
On its face, subsection (g) by stating that "[t]he test or tests
may be administered at the direction of a law enforcement
officer[,]" gives a police officer the discretion to test any
driver or operator of a motor vehicle involved in an accident where
someone else receives serious physical injuries or is killed.
Apparently, the statute allows the officer to administer the
test(s) without any individualized suspicion that the driver was
impaired, whether by alcohol or drugs, or even any evidence that
the driver or operator caused the accident.
In a series of cases, the Supreme Court has decided that
a limited group of searches without individualized suspicion that
are authorized by statute or regulation, are reasonable searches
under the Fourth Amendment and are based on "special needs, beyond
the normal need for law enforcement[.]" [Fn. 24] The State argues
that Blank's breath test can be justified under this "special
needs" exception.
In Skinner v. Railway Labor Executives' Ass'n, [Fn. 25]
the Supreme Court approved government-mandated blood and breath
tests by railroad companies for those employees who were involved
in serious accidents or had violated certain safety rules. [Fn. 26]
The Court ruled that these searches were reasonable under the
Fourth Amendment even though there was no suspicion of
individualized wrongdoing. As the Court stated in Skinner:
In limited circumstances, where the privacy
interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would be
placed in jeopardy by a requirement of individualized suspicion, a
search may be reasonable despite the absence of such suspicion.
[Fn. 27]
Because the railroad employees worked in a highly regulated
industry, the Court balanced the employees' diminished expectation
of privacy against the government's interest in ensuring the safety
of an industry where the employees, like those in the nuclear
industry, can cause "great human loss" when "a momentary lapse of
attention can have disastrous consequences." [Fn. 28]
When "special needs" are advanced as a justification for
a Fourth Amendment intrusion, the Court undertakes a context-
specific inquiry, examining the competing private and public
interests. [Fn. 29] In National Treasury Employees Union v. Von
Raab, [Fn. 30] the Court reviewed and approved a Customs Service
rule that mandated drug testing for any employee taking a position
that involved direct contact with drug intervention or required the
employee to carry a firearm. [Fn. 31] There, the Court decided
that the country's interest in avoiding the promotion of drug users
to positions where they might endanger the integrity of our
Nation's borders or the life of the citizenry outweighed the
limited privacy interests of employees who had a diminished
expectation of privacy because of the "special, and obvious,
physical and ethical demands of [their] positions." [Fn. 32] The
Court therefore held that the searches were reasonable under the
Fourth Amendment. [Fn. 33]
In Vernonia School Dist. 47J v. Acton, [Fn. 34] the Court
approved a random drug-testing program for students participating
in extracurricular sports programs. [Fn. 35] The school district
imposed that program in the face of problems at school caused by
wide spread drug use among the students where the "athletes were
the leaders of the drug culture." [Fn. 36] Balanced against this
concern (a concern that the Court described as "important indeed,
perhaps compelling" [Fn. 37]) were (1) the athletes' reduced
expectation of privacy in general because they were students and
schools regularly exercise their custodial responsibility for the
children with examinations for physical and medical problems; and
(2) the even lower expectation of privacy that a school athlete has
because of the athlete's less than private experiences in the
locker room. [Fn. 38] Also, the Court noted that the testing
program was relatively unobtrusive (and confidential). The Court
balanced three factors in its analysis: the nature of the privacy
interest which the search intrudes, [Fn. 39] the character of the
intrusion, [Fn. 40] and the nature and the immediacy of the
government's concern and the efficacy of the means for meeting it.
[Fn. 41] Balancing these three factors, the Acton Court declared
that the school district policy requiring athletes to consent to
random drug testing before participating in extracurricular
athletic programs was reasonable under the Fourth Amendment. [Fn.
42]
The governor's transmittal letter for the bill from which
AS 28.35.031(g) arose shows that the subsection was designed for
direct law enforcement. ("This proposed legislation gives police
and prosecutors the tools they need . . ." [Fn. 43]) This
subsection abandons any requirement of individualized suspicion
that a driver is impaired and permits the search, at the discretion
of a police officer, of any driver involved in an accident where
someone else suffers serious injury.
A suspicionless search program implemented for normal law
enforcement, the apparent purpose of AS 28.35.031(g), does not meet
the Supreme Court's "special needs" balancing test. In the cases
discussed above, the Supreme Court pointed out that the
suspicionless searches at issue served special societal needs other
than normal law enforcement. [Fn. 44] Subsection (g) addresses
normal law enforcement. Even if normal law enforcement was not the
apparent purpose of subsection (g), the statute would have to meet
the Supreme Court's balancing test. That test requires a
"context-specific inquiry, examining closely the competing private
and public interests advanced by the parties." [Fn. 45] And in
Skinner, the Court stated: "In limited circumstances, where the
privacy interests implicated by the search are minimal, and where
an important governmental interest furthered by the intrusion would
be placed in jeopardy by a requirement of individualized
suspicion, a search may be reasonable despite the absence of such
suspicion." [Fn. 46]
In the circumstances of this case, normal law enforcement
needs would not be jeopardized by requiring the government to have
individualized suspicion before subjecting a person to a breath
test. Although a driver involved in an accident where someone else
is seriously injured can reasonably expect that police would
investigate the accident, the expectation of an investigation does
not lessen a driver's expectation of privacy. Certainly, a
portable breath test is relatively unobtrusive, particularly when
compared to a seizure of blood. However, the need to supply the
police and prosecutors with an additional tool for law enforcement
that does not require individualized suspicion does not appear
great. Having considered the three factors from the Supreme
Court's analysis in Acton, we conclude that AS 28.35.031(g) permits
unreasonable intrusions contrary to the Fourth Amendment.
We also reach the same conclusion under article I,
section 14 of the Alaska Constitution. The Alaska Constitution
restricts the legislature's authority to permit searches without a
warrant. [Fn. 47] Article I, section 14 provides broader protection
than the Fourth Amendment, especially when it is construed together
with the right to privacy provision of article I, section 22. [Fn.
48]
We asked for additional briefing on whether the search of
Blank's breath would have been permitted under the Fourth Amendment
if the police had probable cause to believe that Blank committed a
crime. In its response, the State suggests that Fourth Amendment
concerns with the statute could be avoided if we construe AS
28.35.031(g) to require that the police have probable cause to
believe that the tested driver has committed a crime, here
vehicular homicide and hit and run. We recognize that a statute
can be construed in a manner that does not raise constitutional
concerns. [Fn. 49]
However, the State's proposed construction of the statute
overlooks Layland v. State. [Fn. 50] Layland was receiving
treatment at a hospital for his own injuries from a motor vehicle
accident where another individual was killed. The police asked
Layland for his consent to obtain a blood sample. Layland declined
that request. Although the police had probable cause to arrest
Layland for negligent homicide arising out of the accident, they
did not arrest him. Instead, the police seized a blood sample from
Layland without a warrant. Our supreme court held that the
warrantless seizure of Layland's blood was unconstitutional under
both the federal and the state constitutions. [Fn. 51]
In Schmerber v. California, [Fn. 52] the Supreme Court
held that a warrant was not required to seize blood from a driver
under arrest for driving while intoxicated. [Fn. 53] On first
blush, it appeared that the Supreme Court held that the search was
justified because it was incident to Schmerber's arrest. Besides
the seeming requirement of an arrest, the Supreme Court required
that the police have "clear indication" that the seizure of blood
would provide evidence, and required that the police reasonably
believe that there was an emergency because the evidence would be
lost if the search was delayed for the time needed to obtain a
warrant. [Fn. 54] In Layland, the Alaska Supreme Court followed
Schmerber and interpreted the Alaska search and seizure clause,
article I, section 14, to permit a warrantless seizure of blood
only if a suspect had been arrested and only if there were exigent
circumstances justifying the search. [Fn. 55]
But later cases cast doubt on our supreme court's
interpretation of Schmerber. It now appears that the Fourth
Amendment permits a warrantless search of a suspect who has not
been arrested if the police have (1) probable cause to believe that
the suspect committed a crime; (2) probable cause to believe that
a search of the suspect's person would produce evidence; and (3)
there are exigent circumstances requiring immediate action. In
Cupp v. Murphy, [Fn. 56] the Supreme Court approved the warrantless
seizure of scrapings from under a suspect's fingernails. The
suspect was not under arrest and was not arrested after the police
completed the search. The Court assumed that there was probable
cause that the suspect had committed a homicide by strangling the
victim with his hands and found that exigent circumstances
justified the immediate seizure of the fingernail scrapings because
the suspect had been alerted to the police interest in the evidence
and the evidence may have been destroyed if the police did not act.
[Fn. 57] Furthermore, in Winston v. Lee, [Fn. 58] the Supreme
Court discussed Schmerber and stated: "Because [Schmerber] fell
within the exigent-circumstances exception to the warrant
requirement, no warrant was necessary." [Fn. 59] No mention was
made in Winston that an arrest was required. And, in U.S. v.
Chapel, [Fn. 60] an en banc panel of the Ninth Circuit held that
the Fourth Amendment does not require the police to arrest a
motorist suspected of driving while intoxicated before the
motorist's blood could be seized without a warrant. As long as the
warrantless seizure meets the other requirements of Schmerber ((1)
the police must have probable cause to believe that the suspect was
driving while intoxicated; (2) the police must reasonably believe
there is an emergency in which the delay in obtaining a warrant
threatens the loss of evidence; (3) the procedure to obtain the
evidence must be reasonable), the seizure is authorized under the
Fourth Amendment. [Fn. 61]
This approach is endorsed by Professor LaFave in his
treatise on the Fourth Amendment: [Fn. 62] "[T]he better view is
. . . that a 'warrantless search is proper if the officer had
probable cause to believe that a crime had been committed and
probable cause to believe that evidence of the crime in question
will be found' and that 'an immediate, warrantless search is
necessary in order to . . . prevent the destruction or loss of
evidence.'" [Fn. 63]
Nonetheless, although the Fourth Amendment may not
require an arrest before the warrantless seizure of evidence from
a suspect in Blank's circumstances, our supreme court in Layland
ruled that article I, section 14 of the Alaska Constitution does
require that formality. [Fn. 64] The court reasoned as follows:
In our view, strict adherence to the
substantially contemporaneous arrest requirement ensures to persons
suspected of driving under the influence of alcohol protection from
arbitrary denials of their right of privacy. Adherence to the
substantially contemporaneous arrest prerequisite provides some
measure of assurance that probable cause is based upon
considerations independent of the blood-alcohol test results. [Fn.
65]
Professor LaFave maintains that our court's concern is "untenable,
as the need for a court to determine that probable cause existed
prior to the test is present under either rule." [Fn. 66] Even so,
the Layland court concluded that the warrantless seizure of
Layland's blood could not be justified under the exigent-
circumstances exception to the warrant requirement. [Fn. 67] We
are bound to follow the decisions of our supreme court. [Fn. 68]
Because Blank was not under arrest when she was searched, the
portable breath test result was obtained contrary to article I,
section 14 of the Alaska Constitution.
The State argues that because the portable breath test
was obtained in good faith compliance with the dictates of the
statute, suppression is not an appropriate remedy even if the
statute is unconstitutional because the police complied with the
direction of the statute. [Fn. 69] But this argument is
unconvincing. The statute did not mandate testing. Rather, it
gave the police discretion to test a driver who was involved in an
accident where someone else was seriously injured ("[t]he test or
tests may be administered at the direction of a law enforcement
officer . . ." [Fn. 70]).
The State argues that the failure to arrest Blank was
harmless beyond a reasonable doubt because the record establishes
that the police could have arrested Blank when the portable breath
test was administered. However, we have ruled that the evidence
was inadmissible under Layland. The State argued to the jury that
Blank's blood alcohol level as shown by the portable breath test
was relevant evidence to meet the burden of proof for both
manslaughter and failure to render assistance. The State claimed
that Blank's blood alcohol level showed that Blank was impaired and
that her impairment affected her ability to perceive the risk
caused by her conduct. As instructed, the jury could find that the
State met its burden of proof on the mental state for each crime
charged by showing that Blank failed to perceive the risk of her
conduct because of her impairment. The State additionally
presented expert testimony on the rate that alcohol was absorbed
and metabolized, allowing inferences to be drawn from the alcohol
level at the time of the portable breath test. The State also
presented expert testimony regarding the influence of alcohol on
cognitive and physical functions at various blood alcohol levels
and evidence of a consensus in the scientific community that a
person with a .08 level is too impaired to drive. Finally, the
State used the .082 breath test result to attack Blank's
credibility by presenting expert testimony that she could not have
consumed only two beers as she reported to Trooper Tyler and
obtained a .082 portable breath test result, but that she would
have to have had four times the amount of beer that she reported to
obtain that result. We cannot conclude that the use of the
portable breath test result was harmless. Therefore, Blank's
convictions must be reversed because Blank's breath test was
illegally obtained and admitted at her trial.
Conclusion
The judgment of the superior court is REVERSED.
MANNHEIMER, Judge, dissenting.
I agree with my colleagues that the breath test result
must be suppressed. The trooper who administered the test to Blank
had probable cause to believe that Blank had committed two crimes:
manslaughter and felony hit-and-run. The trooper also had probable
cause to believe that the alcohol in Blank's breath (or,
conversely, the absence of alcohol in her breath) would be evidence
relevant to these crimes. But in Layland v. State [Fn. 1], the
Alaska Supreme Court ruled that the existence of probable cause
does not authorize a search of a motorist's breath or blood unless
the motorist is arrested. As Judge Stewart explains in the
majority opinion, it appears that Layland is based on a
misinterpretation of the United States Supreme Court's decision in
Schmerber v. California. [Fn. 2] Even so, we are bound by Layland.
But though I agree that the breath test result must be
suppressed, I disagree with my colleagues concerning the effect of
this error on Blank's convictions. Blank was convicted of two
crimes: manslaughter and felony hit-and-run (leaving the scene of
an injury accident). Suppression of the breath test evidence
requires reversal of Blank's manslaughter conviction, but it does
not require reversal of Blank's hit-and-run conviction.
In arguing that Blank was guilty of manslaughter, the
prosecutor relied heavily on the breath test result. He argued
that the test result showed that Blank had been drinking more than
the one beer she admitted. He also urged the jury to infer that
Blank's consumption of alcohol had affected her concentration and
attentiveness while driving that it had been a factor in causing
the accident.
But when the prosecutor argued that Blank was guilty of
hit-and-run, he paid almost no attention to Blank's consumption of
alcohol and her possible intoxication. The prosecutor did not
argue that Blank was too drunk to understand that she had hit
someone. [Fn. 3] Rather, the prosecutor argued that the
circumstances of the collision and the actions Blank took following
the collision clearly demonstrated that Blank was aware that she
had struck someone.
The prosecutor pointed out that Blank's vehicle struck
Pennye McDowell so hard that the impact cracked the windshield,
broke off the side-view mirror, and smashed out the front passenger
window. He reminded the jury that one of Blank's children
testified that, a few moments after the collision, Blank asked,
"Did I hit somebody?", and her daughter Tori replied that she
thought they had hit someone.
But despite her daughter's answer, Blank drove away from
the scene and she drove away fast. The prosecutor asked the jury
to remember the testimony given by a boy who was playing in a
neighboring yard. The boy testified that he heard the collision
and then, immediately afterward, he heard a woman (McDowell's
friend) crying "Help, help!", and then he heard the sound of tires
squealing. Blank accelerated away from the scene of the collision
and (in the prosecutor's words) "made a bee-line ... to her house".
She drove over ruts and boulders, wedging rocks in the
undercarriage of her car. When she arrived, she put her car in the
garage and closed the garage door so that the car could not be
seen.
In short, the jury's decision to convict Blank of felony
hit-and-run did not depend on a finding that Blank was intoxicated
(or even that she had been drinking). The prosecutor argued that,
intoxicated or not, Blank understood that she had struck someone.
Her vehicle had suffered obvious damage, and her own daughter told
her that she thought they had hit somebody. Despite this, Blank
did not stop to find out what had happened; instead, she drove away
at high speed without looking back.
Given this evidence, and given the way the prosecutor
argued the case, there is no reasonable possibility that the jury's
hit-and-run verdict was affected by the breath test evidence. [Fn.
4] I would therefore affirm Blank's hit-and-run conviction.
FOOTNOTES
Footnote 1:
AS 11.41.120(a).
Footnote 2:
AS 28.35.060(a).
Footnote 3:
See Miranda v. Arizona, 384 U.S. 436, 443-44 (1966).
Footnote 4:
590 P.2d 888 (Alaska 1979).
Footnote 5:
Id. at 895.
Footnote 6:
Id.
Footnote 7:
Id.
Footnote 8:
See State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987).
Footnote 9:
See Id. at 554; Troyer v. State, 614 P.2d 313, 318 (Alaska
1980).
Footnote 10:
See Sovalik v. State, 612 P.2d 1003, 1006 (Alaska 1980).
Footnote 11:
722 P.2d 943 (Alaska 1986).
Footnote 12:
438 U.S. 154 (1978).
Footnote 13:
See Malkin, 722 P.2d at 946 (citing Franks, 438 U.S. at 155-
56).
Footnote 14:
See id.
Footnote 15:
See id. at 946 n.6.
Footnote 16:
See Davenport v. State, 515 P.2d 377, 380 (Alaska 1973).
Footnote 17:
872 P.2d 627 (Alaska App. 1994).
Footnote 18:
Id. at 642 (quoting 3 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment, sec. 7.5(c) (3d ed. 1996)
(quoting
People v. Teale, 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564
(1969)) (other footnotes omitted) .
Footnote 19:
See Schmid v. State, 615 P.2d 565, 575 (Alaska 1980); United
States v. Reed, 15 F.3d 928, 933 (9th Cir. 1994).
Footnote 20:
See Burnett v. Municipality of Anchorage, 678 P.2d 1364, 1368
(Alaska App. 1984); Burnett v. Municipality of Anchorage, 806 F.2d
1447, 1449 (9th Cir. 1986).
Footnote 21:
711 P.2d 575 (Alaska App. 1986).
Footnote 22:
Id. at 577.
Footnote 23:
AS 28.35.031(b).
Footnote 24:
See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,
619 (1989) (quotations and citations omitted).
Footnote 25:
Id.
Footnote 26:
Id. at 608-13.
Footnote 27:
Id. at 624.
Footnote 28:
Id. at 628.
Footnote 29:
See National Treasury Employees Union v. Von Raab, 489 U. S.
656, 665-66 (1989).
Footnote 30:
Id.
Footnote 31:
Id. at 660-65.
Footnote 32:
Id. at 679.
Footnote 33:
Id.
Footnote 34:
515 U.S. 646 (1995).
Footnote 35:
Id. at 664-666.
Footnote 36:
Id. at 649.
Footnote 37:
Id. at 661.
Footnote 38:
Id. at 656-57.
Footnote 39:
Id. at 654-57.
Footnote 40:
Id. at 658-60.
Footnote 41:
Id. at 660-64.
Footnote 42:
Id. at 664-66.
Footnote 43:
1994 House Journal 2262-64.
Footnote 44:
See Skinner, 489 U.S. at 619; Von Raab, 489 U.S. at 665;
Vernonia, 515 U.S. at 653; Chandler v. Miller, 520 U.S. 305, 313-
14 (1977).
Footnote 45:
Chandler, 520 U.S. at 314.
Footnote 46:
Skinner, 489 U.S. at 624.
Footnote 47:
See Woods & Rohde, Inc. v. Alaska Dep't of Labor, 565 P.2d
138, 150-52 (Alaska 1977) (striking down a statute that authorized
warrantless inspections of workplaces because it violated article
I, section 14 of the Alaska Constitution).
Footnote 48:
See State v. Ricks, 816 P.2d 125, 127 (Alaska 1991); Rohde,
565 P.2d at 150-51.
Footnote 49:
See Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807
P.2d 487, 498 (Alaska 1991).
Footnote 50:
535 P.2d 1043 (Alaska 1975), overruled on other grounds by
Anchorage v. Geber, 592 P.2d 1187, 1191-92 & n.8 (Alaska 1979).
Footnote 51:
Layland, 535 P.2d at 1044-45 & 1050.
Footnote 52:
384 U.S. 757 (1966).
Footnote 53:
Id. at 771-72.
Footnote 54:
Id. at 770-71.
Footnote 55:
See Layland, 535 P.2d at 1045, 1048-49.
Footnote 56:
412 U.S. 291 (1973).
Footnote 57:
Id. at 296.
Footnote 58:
470 U.S. 753 (1985).
Footnote 59:
Id. at 759.
Footnote 60:
55 F.3d 1416 (9th Cir. 1995).
Footnote 61:
See id. at 1418-19.
Footnote 62:
See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment, sec. 5.4(b), at 155-63 (3d ed. 1996).
Footnote 63:
Id. at 160-61 (footnotes omitted).
Footnote 64:
See Layland, 535 P.2d at 1048-50; Municipality of Anchorage v.
Ray, 854 P.2d 740, 749-50 (Alaska App. 1993).
Footnote 65:
Layland, 535 P.2d at 1049.
Footnote 66:
3 Wayne R. LaFave, Search and Seizure, sec. 5.4(b), at 162.
Footnote 67:
Layland, 535 P.2d at 1050.
Footnote 68:
See Harrison v. State, 791 P.2d 359, 363 (Alaska App. 1990).
Footnote 69:
See Illinois v. Krull, 480 U.S. 340, 350 (1987).
Footnote 70:
See AS 28.35.031(g).
FOOTNOTES (Dissent)
Footnote 1:
535 P.2d 1043, 1047-49 (Alaska 1975).
Footnote 2:
384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
Footnote 3:
See AS 11.81.900(a)(2), which allows the State to prove the
culpable mental state of "knowingly" by proving that the defendant
would have known of the relevant circumstance but for the
defendant's intoxication.
Footnote 4:
See Love v. State, 457 P.2d 622, 629-631 (Alaska 1969) (the
improper admission of evidence at a criminal trial does not require
reversal of a conviction unless the evidence substantially
influenced the jury's decision).
