Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go«, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


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

Sánchez  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-ů-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.