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McBath v. State (02/18/2005) ap-1974
McBath v. State (02/18/2005) ap-1974
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
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD J. McBATH, )
) Court of Appeals No.
A-8570
Appellant, )
Trial Court No. 4FA-02-2254 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1974 February 18, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell
and Mark I. Wood, Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. W. H. Hawley Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The defendant in this case, Ronald J. McBath, was
subjected to an arguably illegal investigative stop. During the
course of this stop, the police learned McBaths identity and also
learned that there were two pre-existing unserved warrants for
his arrest. The police arrested McBath on these warrants and,
during a search incident to this arrest, the police discovered
that McBath was carrying methamphetamine a discovery that
ultimately led to McBaths conviction for fourth-degree controlled
substance misconduct.
In this appeal, McBath argues that the initial
investigative stop was illegal and that any evidence discovered
as a consequence of that stop must be suppressed. We hold that,
regardless of the potential illegality of the investigative stop,
the pre-existing arrest warrant was an independent, untainted
ground for McBaths arrest. Therefore, the methamphetamine
discovered during McBaths arrest was obtained lawfully.
Underlying facts, and the litigation in the superior
court
Ronald McBath was a passenger in a truck that
was stopped for having an expired license plate. The
traffic stop evolved into an arrest when the police
discovered that the driver of the truck was
intoxicated. The police arrested the driver and then
made arrangements to have the truck towed away for
impoundment.
The officers informed McBath that the driver
of the truck was under arrest but that he (McBath) was
free to go. In fact, the police offered to get a cab
for McBath. But at this juncture, McBath called out to
the driver of the truck, asking him if there was
anything that McBath should remove from the truck
before the vehicle was towed away. The driver told
McBath to remove a toolbox and an unopened twelve-pack
of beer from the back of the truck.
The police were willing to let McBath remove
these items from the truck. However, to forestall any
later claim that property was unaccountably missing
from the truck, the police asked McBath to tell them
his name (so that the police could find him again if
any dispute arose concerning the toolbox or its
contents).
At first, McBath refused to say what his name
was. At length, he told the police his first name,
Ron. When the police pressed McBath for his last name,
he finally answered McGoo. At this point, the officers
suspected that McBath was not being truthful with them.
Their suspicions intensified when they ran the name Ron
McGoo through their computer and found no matching
record.
At this point, the police decided to detain
McBath until they could find out who he was. They
seized McBath and handcuffed him. Soon afterward,
McBath divulged his real name. A renewed computer
search revealed that there were two outstanding
warrants for McBaths arrest. And a search incident to
arrest revealed that McBath was carrying
methamphetamine a discovery that led to McBaths
indictment and ensuing conviction for fourth-degree
controlled substance misconduct.1
Following his indictment, McBath asked the
superior court to suppress the methamphetamine found on
his person. McBath argued that he had been subjected
to an unlawful investigative stop.
McBath acknowledged that the police had a
valid administrative interest in avoiding, or being
able to defend against, any future claim by the driver
that the police had lost his property. However, McBath
argued that the police had their defense without
needing to know McBaths identity because the police
could easily prove (1) that the arrested driver had
knowingly entrusted the property to a friend of his
(even if the identity of this friend remained unknown),
and (2) that the two containers of property (the tool
box and the 12-pack of beer) left the scene of the
arrest intact.
McBath also argued that, even if the police
could validly ask McBath to reveal his identity, the
police had no authority to detain him when he declined
to furnish this information because the police wanted
this information for an administrative purpose rather
than a law enforcement purpose.
The State responded that the police had a
valid administrative need to ascertain McBaths
identity, and that the investigative stop was justified
when McBath refused to disclose this information. But
the State also argued, in the alternative, that the
outstanding warrants for McBaths arrest constituted an
independent, untainted reason to seize McBath and to
search his person. The State contended that even if
the initial investigative stop was improper, the
ensuing discovery of the methamphetamine should be
deemed the fruit of the arrest warrants rather than the
fruit of the investigative stop.
The superior court adopted both of the States
rationales. Superior Court Judge Mark I. Wood
concluded that the police had a valid reason to detain
McBath after he declined to furnish his identity. And
in the alternative, Judge Wood ruled that even if this
investigative stop was improper, the existence of the
warrants for McBaths arrest attenuated the taint of
that initial illegality and provided an independent
basis for searching McBaths person and seizing the
methamphetamine he was carrying. On these two bases,
Judge Wood denied McBaths suppression motion.
The issues presented in this appeal
On appeal, McBath renews both of his attacks
on the investigative stop. First, McBath argues that
the police had no real need to ascertain his identity.
Next, McBath argues that even if the police did have a
valid need to ascertain his identity, they had no
authority to detain him when he declined to reveal his
identity, since this information was being sought for
an administrative purpose rather than a law enforcement
purpose. Finally, McBath asks us to reject the
superior courts alternative rationale the superior
courts conclusion that the outstanding warrants for
McBaths arrest provided an independent, untainted
justification for searching McBaths person, and that
the discovery of the methamphetamine should be deemed
the fruit of that search incident to McBaths arrest
rather than the fruit of the initial investigative
stop.
For the reasons explained here, we agree with
the superior courts attenuation of taint theory. Even
if we assume that the initial investigative stop was
improper, the facts of the encounter demonstrate that
the methamphetamine found on McBaths person was not the
fruit of that investigative stop. The police searched
McBath only after they discovered the pre-existing
warrants for his arrest, and their search was conducted
under the authority of those warrants. Under these
facts, the pre-existing arrest warrants sufficiently
attenuated the connection between the initial
investigative stop and the later discovery of the
methamphetamine.
Because we reach this conclusion, we need not
decide the legality of the initial investigative stop.
Case law dealing with situations where, during an
improper investigative stop or arrest, the police
discover an outstanding warrant for the defendants
arrest
From time to time, courts are confronted with
suppression motions involving situations in which the
police conduct an illegal investigative stop or arrest
and then, during this illegal detention, the police
discover the defendants identity and also discover that
there is pre-existing warrant for the defendants
arrest. The question is whether the pre-existing
arrest warrant constitutes an independent basis for
taking the defendant into custody and searching the
defendants person, thus dissipating the taint from the
illegal initial detention.
The leading federal case on this issue is
United States v. Green, 111 F.3d 515 (7th Cir. 1997).
In Green, the police subjected the defendant and his
companions to an illegal traffic stop. During this
stop, the police ascertained the identities of Green
and his companions, and then the police ran a computer
check on their names a search which revealed that
there was an outstanding arrest warrant for one of
Greens companions. In conducting this arrest, the
police searched the car and discovered cocaine and a
gun.2 This evidence later formed the basis of several
criminal charges against Green.3
Green argued that the evidence found in the
car was the tainted fruit of the initial illegal
investigative stop. The Seventh Circuit conceded that
the evidence against Green would not have been
discovered but for the initial illegal stop. However,
the court noted that the United States Supreme Court,
in defining the scope of the exclusionary rule, has
rejected a but for test:
Wong Sun [v. United States]4 ... [does]
not hold that all evidence is fruit of the
poisonous tree simply because it would not
have come to light but for the illegal
actions of the police. ... [E]ven in
situations where the exclusionary rule is
plainly applicable, [the Supreme Court has]
declined to adopt a per se or but for rule
that would make inadmissible any evidence,
whether tangible or live-witness testimony,
which somehow came to light through a chain
of causation that began with an illegal
arrest. United States v. Ceccolini5 ... .
Rather, the more apt question in such a case
is whether, granting [proof] of the [initial]
illegality, the evidence [at issue was
derived] by exploitation of that illegality
or instead by means sufficiently
distinguishable to be purged of the primary
taint. Wong Sun, 371 U.S. at 488, 83 S.Ct.
at 417 ... .
Green, 111 F.3d at 520-21 (internal
quotations omitted).
The Seventh Circuit then analyzed
the facts of Greens case using the three-part
analysis adopted by the Supreme Court in
Brown v. Illinois6 for determining whether a
confession is tainted by a preceding illegal
arrest.
In Brown v. Illinois, ... the Supreme
Court set forth three factors for determining
whether the causal chain has been
sufficiently attenuated to dissipate the
taint of the illegal conduct: (1) the time
elapsed between the illegality and the
acquisition of the evidence; (2) the presence
of intervening circumstances; and (3) the
purpose and flagrancy of the official
misconduct. In the final analysis, however,
the question is still whether the evidence
came from the exploitation of that illegality
or instead by means sufficiently
distinguishable to be purged of the primary
taint. Wong Sun, 371 U.S. at 488, 83 S.Ct.
at 417.
Green, 111 F.3d at 521.
The Seventh Circuit acknowledged
that only about five minutes elapsed between
the illegal stop ... and the search of the
car.7 However, the court noted that this
short time span was not dispositive of the
question of taint.8
The court then analyzed the nature
and degree of the police illegality; the
court concluded that the police had not
engaged in flagrant official misconduct.9
Finally, the court suggested th
at a decision suppressing the evidence in
Greens case would be inconsistent with the
policies underlying the exclusionary rule:
It would be startling to suggest that
because the police illegally stopped an
automobile, they cannot arrest an occupant
who is found to be wanted on a warrant in a
sense requiring an official call of Olly,
Olly, Oxen Free. Because the arrest is
lawful, a search incident to the arrest is
also lawful. The lawful arrest of [Greens
companion] constituted an intervening
circumstance sufficient to dissipate any
taint caused by the illegal automobile stop.
Green, 111 F.3d at 521.
When the Seventh Circuit decided
Green in 1997, they declared that there was
no [prior] case law directly on point.10
This may have been true with regard to
federal decisions, but several state courts
had already reached the same legal conclusion
on analogous facts. See (in chronological
order, from 1968 to 1991) the Washington
Supreme Courts decision in State v. Rothen
berger,11 the Florida Court of Appeals
decision in State v. Foust,12 the Colorado
Supreme Courts decision in People v.
Hillyard,13 the Missouri Court of Appeals
decision in State v. Lamaster,14 the Nebraska
Supreme Courts decision in State v.
Thompson,15 the Georgia Court of Appeals
decision in Ruffin v. State,16 and
the Texas Court of Appeals decision in Reed
v. State.17
(See also the Texas Court of
Appeals decision in Neese v. State:18
the court held that, despite an
initial illegal stop, the defendants arrest
was legal because of a pre-existing arrest
warrant, but the court nevertheless
suppressed the disputed evidence because the
court concluded that the police had exploited
the initial illegality in ways other than
simply learning the defendants identity.)
Moreover, since 1997, several other
state courts have adopted this same approach
to the issue.
For example, in State v. Hill, 725
So.2d 1282 (La. 1998), the Louisiana Supreme
Court confronted facts similar to the facts
presented in McBaths case: The police
conducted an illegal investigative stop and,
during this stop, they discovered the
defendants name. Using this name, the police
ran a computer check and discovered two
outstanding warrants for the defendants
arrest. The police then arrested the
defendant, conducted a search of his person,
and found illegal drugs.19
According to the Louisiana court,
there was nothing in the record [to indicate]
that any significant time lapse occurred
between the initial stop and the subsequent
search incident to the [defendants] arrest.20
Thus, for purposes of assessing the first
factor listed in Brown v. Illinois (the
temporal proximity of the illegal police
conduct and the discovery or acquisition of
the disputed evidence), the Louisiana court
assumed that any time lapse was negligible.21
Nevertheless, after applying the
complete attenuation of taint analysis
announced in Brown, the Louisiana court
concluded that the connection between the
initial illegality (i.e., the improper
investigative stop) and the discovery of the
pre-existing arrest warrant was sufficiently
attenuated to insulate the evidence from the
taint of the improper stop. The court found
that the improper investigative stop was not
flagrant police misconduct not particularly
egregious, nor done with the purpose of
violating the defendants rights.22 The court
therefore held that [the] probable cause
provided by the outstanding arrest warrants
constituted an intervening circumstance under
Brown which dissipate[d] the taint of [the]
initial impermissible encounter.23
The Louisiana court recognized that
the defendants strongest argument was that
the police never would have learned his name
(and thus discovered the pre-existing arrest
warrants) if the police had not conducted the
illegal investigative stop. But the court
held that this connection, by itself, was not
sufficient to taint the ensuing arrest and
search of Hills person:
Undoubtedly, had the officers not
learned the defendants name due to the
initial stop, they would not have discovered
the outstanding arrest warrants. However,
this information is the only link between the
initial [investigative] stop and the
ultimate discovery of the disputed evidence.
To rely on this causal link [as the basis
for] suppress[ing] evidence would be directly
contrary to the dictates of the United States
Supreme Court [because the Courts decisions
in Brown, United States v. Ceccolini,24 and
Wong Sun v. United States25
all reject] a per se but for
causation test ... as a basis for a decision
to suppress evidence. ... Rather, properly
focusing on the dictates of Brown, we find
that the officers discovery of the
outstanding warrants was a significant
intervening event. The defendants arrest was
based upon probable cause not derived from
the initial stop and frisk. Therefore, the
search incident thereto that uncovered the
crack pipe was permissible.
Hill, 725 So.2d at 1287.
Several other post-1997 decisions
have endorsed this same approach. That is,
these courts have held that, despite the
unlawfulness of an initial investigative
stop, if the only connection between that
initial illegality and later-discovered
evidence is the disclosure of the defendants
identity and the discovery of a pre-existing
warrant for the defendants arrest, the arrest
warrant will be deemed an intervening,
untainted justification for an ensuing arrest
and search and, thus, any evidence
discovered incident to that arrest will be
admissible against the defendant.
See (in chronological order) the
Illinois Court of Appeals decision in People
v. Murray,26 the Kansas Supreme Courts
decision in State v. Jones,27
the Texas Court of Appeals decision
in Fletcher v. State,28 the Indiana Court of
Appeals decision in Quinn v. State,29 and the
Kentucky Court of Appeals decision in Hardy
v. Commonwealth.30
(There is some contrary authority.
A different panel of the Indiana Court of
Appeals disagreed with the decision in Quinn
v. State and issued a contrary ruling in
S nchez v. State, 803 N.E.2d 215, 222-23
(Ind. App. 2004). The Indiana Supreme Court
declined to resolve this conflict.31 And a
different panel of the Florida Court of
Appeals disagreed with the decision in Foust
v. State and issued a contrary ruling in
Frierson v. State, 851 So.2d 293, 300 (Fla.
App. 2003). The Frierson court certified
that its decision was in conflict with Foust,
and the Florida Supreme Court has granted
review: 870 So.2d 823 (Fla., February 26,
2004).)
Our decision in Martin v. State, and why we now adopt
this different rule of law
Nearly fifteen years ago, we confronted this
same issue in Martin v. State, 797 P.2d 1209
(Alaska App. 1990). The defendant in Martin was
subjected either to an investigative stop or an
arrest. (The superior court left this issue
unresolved.)32 During this investigative stop or
arrest, the police frisked Martin and discovered,
on his person, a checkbook and credit cards that
ultimately proved to be stolen.33 A few minutes
later, the police ascertained Martins identity,
and then they discovered that there was an
outstanding warrant for Martins arrest on parole
violations. The police formally arrested Martin
on this parole warrant.34
Following his indictment, Martin asked the
superior court to suppress the evidence discovered on
his person. The superior court ruled that the search
was lawful because, even if the officers had lacked
proper justification for stopping Martin in the first
place, the outstanding arrest warrant provided an
independent justification for the arrest and subsequent
search.35
We reversed the superior courts ruling,
holding that the legality of the initial investigative
stop or arrest had to be judged solely on the objective
information known to the officers at the time.36 We
concluded that since the police had not known about the
arrest warrant when they initially seized Martin, they
could not rely on the after-discovered warrant to
justify their actions.37
Thus, our decision in Martin appears to be
contrary to the authorities we have just discussed.
However, this issue of law the theory that police
reliance on an outstanding arrest warrant can attenuate
the taint of a prior illegal stop does not appear to
have been actively litigated in Martin. Our published
decision contains no discussion of, or even recognition
of, the contrary case law on this point of law.38
Indeed, as we noted in Martin, the States attorney
apparently conceded at oral argument that the
government should lose this issue.39
In the present case, the State has actively
litigated this attenuation of taint theory, and the
superior court relied on this theory when the court
upheld the search of McBaths person.
More important, however, is the fact that
Martin might well have been decided the same way even
if we had applied the rule of law discussed in the
preceding section of this opinion. As we have
explained, Martin was stopped, and then he was searched
(a search that yielded the stolen checks and credit
cards), and then the police discovered Martins identity
and the existence of the outstanding arrest warrant.
In other words, the police did not rely on the arrest
warrant to conduct the search because they did not
know about the warrant until after the search was
completed. This sequence of events distinguishes
Martin from the cases we have been discussing cases in
which the sole fruit of the initial unlawful stop is
the discovery of the defendants name, which then leads
to the discovery of an outstanding arrest warrant,
which then leads to a formal arrest and an ensuing
search incident to arrest.
For these reasons, we now re-examine the
question of whether the existence of an outstanding
arrest warrant can attenuate the taint of a prior
illegal investigative stop or arrest.
When a defendant seeks exclusion of evidence
because of police misconduct, the first element of the
defendants proof is to establish a causal connection
between the disputed evidence and the complained-of
misconduct. Our prior cases declare that there must be
a connection between the right violated and the
evidence [to be] excluded.40
But the exclusionary rule demands more than
simply a causal connection. As we noted in Halberg v.
State,41 it is error to employ a but for test when
deciding whether evidence is tainted by prior police
misconduct.42 Rather, the law requires a more probing
analysis of the precise relationship between the police
misconduct and the challenged evidence.
In Brown v. Illinois, the Supreme Court set
out four factors to guide this analysis. The four
Brown factors are: (1) the temporal proximity of the
illegal police conduct and the discovery or acquisition
of the disputed evidence; (2) the presence or absence
of intervening circumstances; (3) the purpose or
flagrancy of the illegal police conduct; and (4) an
evaluation of these three preceding factors in light of
the policies underlying the Fourth Amendment and the
exclusionary rule.43
In McBaths case, as in essentially every case
in this area, there is little elapsed time between the
illegal investigative stop and the discovery of the
outstanding arrest warrant. Thus, this first Brown
factor will almost always favor suppression. But the
courts that have considered this question have all but
unanimously concluded that, in this kind of situation,
this first Brown factor is outweighed by the others.
As explained in the preceding section of this
opinion, court decisions in this area focus on two main
points: (1) what evidence did the police obtain from
the initial illegal stop before they discovered the
outstanding arrest warrant, and (2) whether that
initial illegal stop was a manifestation of flagrant
police misconduct i.e., conduct that was obviously
illegal, or that was particularly egregious, or that
was done for the purpose of abridging the defendants
rights.
The following rule emerges from these cases:
If, during a non-flagrant but illegal stop, the police
learn the defendants name, and the disclosure of that
name leads to the discovery of an outstanding warrant
for the defendants arrest, and the execution of that
warrant leads to the discovery of evidence, the
existence of the arrest warrant will be deemed an
independent intervening circumstance that dissipates
the taint of the initial illegal stop vis-…-vis the
evidence discovered as a consequence of a search
incident to the execution of the arrest warrant.
In any case where we are required to decide
whether the taint of a Fourth Amendment violation has
been dissipated or has been attenuated by later events,
our primary consideration must be our duty to enforce
the policy of the exclusionary rule the policy of
deterring the police from engaging in misconduct by
imposing a meaningful penalty for that misconduct. As
explained by Professor LaFave in his work on search and
seizure,
The notion of the dissipation of the taint
attempts to [mark] the point at which the
detrimental consequences of illegal police
action become so attenuated that the
deterrent effect of the exclusionary rule no
longer justifies its cost ... [,] to mark the
point of diminishing returns of the
deterrence principle.
Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (4th ed.
2004), 11.4(a), Vol. 6, p. 259 (internal
quotation marks omitted). 44
As Professor LaFave also notes, the
question of attenuation inevitably is largely
a matter of degree, a question that turns on
the particular facts of each case.45
Thus, for example, in Neese v.
State,46 the Texas Court of Appeals
concluded that even though there was a pre-
existing warrant for the defendants arrest,
the existence of this warrant was not
sufficient to dissipate the taint of a prior
illegal stop because the police exploited
the initial illegality in ways other than
simply learning the defendants identity and
running a warrants check.
Similarly, in People v. Jones,47
the Colorado Supreme Court (a court that
likewise had already adopted the principle
that an outstanding arrest warrant can
dissipate the taint of a prior illegal stop48
) held that the evidence against the
defendant should be suppressed because the
police were not acting in reliance on that
arrest warrant when they obtained the
contested evidence, but rather were
exploiting the initial illegality. (As we
observed earlier, this same analysis might be
used to justify our decision in Martin.)
And the Seventh Circuit the
circuit that issued United States v. Green,
a decision that we discussed at length in the
preceding section of this opinion has
likewise limited its holding that a pre-
existing arrest warrant can dissipate the
taint of a prior illegal stop. See United
States v. Ienco, 182 F.3d 517 (7th Cir.
1999), where the Seventh Circuit explained
and restricted Green to instances where the
intervening discovery of an arrest warrant
truly attenuates the link between the initial
illegality and the discovery of the
incriminating evidence.
In Ienco, the defendant was
subjected to an illegal stop and forced to
sit in a police vehicle for some thirty
minutes before the police discovered that
there was pre-existing warrant for his
arrest.49 Later, an incriminating key was
found in the police vehicle. The Seventh
Circuit held that the existence of the arrest
warrant did not dissipate the taint of the
illegal stop:
We [will not apply Green] to the
circumstances here, where the intervening
event, the formal arrest, did not sever the
causal connection between the initial
illegality and the polices discovery of
evidence in the van. As noted above, because
the key could easily have been left in the
police car during the initial illegal
detention, the subsequent legal arrest cannot
presumptively serve to break the link.
Ienco, 182 F.3d at 528.
Moreover, even in cases where the disputed evidence was
clearly obtained while the police were executing an
outstanding arrest warrant, the flagrance of the police
misconduct may still require suppression of the
evidence as, for example, where the police conducted
an unjustifiable dragnet investigative stop of many
people, hoping to find some for whom there were
outstanding arrest warrants.
With these caveats, we now adopt the rule that a pre-
existing arrest warrant can (depending on the
circumstances) dissipate or attenuate the taint of a
prior illegal stop. Whether the arrest warrant has
indeed dissipated the taint of the illegal stop will
depend on the facts of the individual case. But in
McBaths case, we agree with the superior court that any
taint flowing from the polices arguably illegal initial
detention of McBath was dissipated by the officers
discovery of the warrant for McBaths arrest.
We reach this conclusion for two main reasons. First,
even if the police acted illegally in detaining McBath
until he identified himself, this was not flagrant or
egregious misconduct under the circumstances. The
police had a valid reason for wishing to know McBaths
name (or other information that would allow the police
to contact him in the future) before McBath walked off
with the arrestees property. Even assuming that the
police had no authority to pursue this aim by
temporarily detaining McBath, there is no indication
that the officers knowingly overstepped their authority
or that their conduct was an egregious misuse of
authority.
Second, the only link between this arguably unlawful
stop and the eventual discovery of the methamphetamine in McBaths
possession was the fact that, during the stop, McBath eventually
revealed his name (thus allowing the police to run a warrants
check on him). The methamphetamine was discovered only after the
police found out about the arrest warrant, executed this warrant,
and then conducted a search incident to arrest.
Under these circumstances, we hold that any taint
flowing from the arguably illegal investigative stop was too
attenuated to affect the admissibility of the methamphetamine.
Conclusion
We do not resolve the question of whether the
police were authorized to detain McBath temporarily
when he would not reveal his name before leaving the
scene with the arrestees property. However, even
assuming that the police acted illegally in detaining
McBath under these circumstances, the officers
discovery of the outstanding warrant for McBaths arrest
dissipated the taint of that illegal stop with regard
to the methamphetamine found on McBaths person during
the ensuing search incident to arrest.
The judgement of the superior court is
therefore AFFIRMED.
_______________________________
1 AS 11.71.040(a).
2 Green, 111 F.3d at 517, 520.
3 Id.
4 371 U.S. 471, 487-88; 83 S.Ct. 407, 417-18; 9 L.Ed.2d 441,
455 (1963).
5 435 U.S. 268, 276; 98 S.Ct. 1054, 1060; 55 L.Ed.2d 268
(1978).
6 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
7 Green, 111 F.3d at 521.
8 Id., quoting United States v. Fazio, 914 F.2d 950, 958
(7th Cir.1990).
9 Id. at 521.
10Id.
11440 P.2d 184, 186 (Wash. 1968).
12262 So.2d 686, 687-88 (Fla. App. 1972).
13589 P.2d 939, 941 (Colo. 1979).
14652 S.W.2d 885, 886-87 (Mo. App. 1983).
15438 N.W.2d 131, 137 (Neb. 1989).
16412 S.E.2d 850, 852-53 (Ga. App. 1991).
17809 S.W.2d 940, 947 (Tex. App. 1991).
18930 S.W.2d 792, 801-03 (Tex. App. 1996).
19Hill, 725 So.2d at 1283.
20Id. at 1284.
21Id.
22Id. at 1287.
23Id. at 1285.
24435 U.S. 268, 276; 98 S.Ct. 1054, 1060; 55 L.Ed. 2d 268,
277 (1978).
25371 U.S. 471, 487; 83 S.Ct. 407, 417; 9 L.Ed.2d 441, 455
(1963).
26728 N.E.2d 512, 516-17 (Ill. App. 2000).
2717 P.3d 359, 360-61 (Kan. 2001).
2890 S.W.3d 419, 420-21 (Tex. App. 2002).
29792 N.E.2d 597, 601-02 (Ind. App. 2003).
30149 S.W.3d 433, 435 (Ky. App. 2004).
31812 N.E.2d 804 (Ind. 2004).
32Martin, 797 P.2d at 1211-12, 1214.
33Id. at 1212.
34Id.
35 Id. at 1212, 1214.
36 Id. at 1214.
37 Id.
38 In August 1990, when we issued our decision in Martin,
the supreme courts of Colorado, Nebraska, and Washington, as
well as the courts of appeal of Florida, Missouri, and
Texas, had already ruled that the taint of an initial
illegal stop could be dissipated by an outstanding arrest
warrant. See the court decisions listed on pages 8-9 of
this opinion.
39 797 P.2d at 1214.
40 Winfrey v. State, 78 P.3d 725, 729 (Alaska App. 2003),
citing Smith v. State, 948 P.2d 473, 477 (Alaska 1997),
quoting Erickson v. State, 507 P.2d 508, 516 (Alaska 1973):
Once a causal connection is established between the
proffered evidence and the primary illegality, the evidence
must be excluded unless [it] falls within [some exception to
the exclusionary rule].
41 903 P.2d 1090 (Alaska App. 1995).
42 Id. at 1097, citing Brown v. Illinois, 422 U.S. at 603,
95 S.Ct. at 2261, and Hutto v. Ross, 429 U.S. 28, 30; 97
S.Ct. 202, 203-04; 50 L.Ed.2d 194 (1976).
43 See Brown v. Illinois, 422 U.S. 590, 603; 95 S.Ct.
2254, 2261-62; 45 L.Ed.2d 416, 427 (1975).
44 Quoting the concurring opinion of Justice Powell in
Brown v. Illinois, 422 U.S. at 609, 95 S.Ct. at 2264, and
Professor Anthony Amsterdam, Search, Seizure, and Section
2255: A Comment, 112 Univ.Pa.L.Rev. 378, 389 (1964).
45LaFave, 11.4(a), Vol. 6, p. 259, again quoting the
concurring opinion of Justice Powell in Brown v.
Illinois, 422 U.S. at 609, 95 S.Ct. at 2264.
46930 S.W.2d 792, 801-03 (Tex. App. 1996).
47828 P.2d 797, 799-801 (Colo. 1992).
48See People v. Hillyard, 589 P.2d 939, 941 (Colo. 1979).
49182 F.3d at 528 n. 9.
