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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CLAUDE J. JOSEPH, | ) |
| ) Court of Appeals No. A-8939 | |
| Appellant, | ) Trial Court No. 3AN-03-5040 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2067 October 13, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Claude J. Joseph was convicted of third-degree
controlled substance misconduct (possession of cocaine with
intent to distribute it).1 The police obtained the primary
evidence against Joseph (i.e., the cocaine) when the police
chased, caught, and detained Joseph in connection with their
investigation of another offense: use of marijuana in a public
place.2
This appeal presents two main questions.
First, did the police have lawful grounds for chasing
Joseph that is, lawful grounds for attempting to subject Joseph
to an investigative stop? Under the Alaska Constitution, as
construed by our supreme court in Coleman v. State, 553 P.2d 40
(Alaska 1976), the police may conduct an investigative stop if
they have a reasonable suspicion that the person being stopped is
committing, or has just committed, a crime involving imminent
public danger or recent serious harm to persons or property. Did
the facts known to the police when they commenced their efforts
to detain Joseph satisfy the Coleman test?
Second, if the police did not have lawful grounds for
chasing Joseph, should this Court apply the exclusionary rule to
suppress the fruits of that unlawful chase?
In California v. Hodari D., 499 U.S. 621, 111 S.Ct.
1547, 113 L.Ed.2d 690 (1991), the Supreme Court held that the
exclusionary rule does not apply to evidence that the police
obtain while a person is fleeing from an impending unlawful
police detention. The Supreme Court held that the exclusionary
rule only applies to evidence that the police obtain after they
succeed in unlawfully seizing a person. Because Joseph tossed
the cocaine to the ground in the sight of the police while the
police were chasing him, before the police actually caught and
subdued him, we must decide whether to adopt the interpretation
of the exclusionary rule espoused by the Supreme Court in Hodari
D., or instead join the dozen states that have rejected Hodari D.
on state law grounds.
For the reasons explained here, we conclude that the
police, when they began to chase Joseph, did not have grounds for
subjecting him to an investigative stop. We further conclude
that we should reject California v. Hodari D. as a matter of
state constitutional law. We therefore conclude that Joseph is
entitled to suppression of the evidence that the police obtained
as a result of chasing him.
Underlying facts
In the early evening of May 16, 2003, a
person called 911 in Anchorage to report that two men
were walking down the street, smoking a joint (i.e., a
marijuana cigarette). The caller said that the two men
were black, that they were wearing dark clothing, and
that they were walking near the intersection of
Thompson Avenue and Taylor Street in Mountain View.
Anchorage Police Officer Charles Reynolds was
on patrol about four blocks away, and he received a
dispatch to investigate this report. Driving westbound
on Thompson Avenue, Officer Reynolds observed two black
men, both wearing dark clothing, standing at the
intersection of Schodde Street and Tarwater Avenue.
(This location is one block south and one block west of
the intersection of Taylor Street and Thompson Avenue.)
The two men were standing next to a Ford minivan, and
they were chatting with two women.
Reynolds stopped his patrol car about fifteen
feet from the Ford van. He intended to obtain the two
mens identities and then issue them citations for
public use of marijuana (a class B misdemeanor).3
When Reynolds got out of his vehicle, he did
not see any of the four people holding a marijuana
cigarette. Nevertheless, Reynolds directed the man
closest to him to approach the patrol car. As this man
began to move toward him, Reynolds smelled a strong
odor of marijuana coming from the area where the four
people were standing, although it was impossible to
tell whether this odor was emanating from any
particular person.
When the man got close to him, Reynolds
informed the man that he was investigating a complaint
that two men were smoking marijuana in that area. The
man did not physically resist Reynolds but, according
to Reynolds, the man was on the verge of becoming
verbally ... non-compliant, so Reynolds decided to
place the man in handcuffs for purposes of officer
safety.
While Reynolds was placing this first man in
handcuffs, the second man Claude Joseph began walking
away. Reynolds called out for Joseph to stop, but
Joseph continued walking away. Joseph had his hands in
his pockets as he walked away, and Reynolds directed
Joseph to take his hands out of his pockets, but Joseph
continued to walk away with his hands in his pockets.
At that same time, a member of the Mountain
View Community Patrol arrived on the scene and offered
to watch the first man while Officer Reynolds pursued
Joseph. Freed from the task of supervising the first
man, Reynolds again called out to Joseph, directing him
to stop. In response, Joseph began to run. Reynolds
gave chase, continuing to yell for Joseph to stop.
Reynolds began to gain on Joseph. When
Reynolds was almost within arms reach, Joseph reached
into his pocket and tossed away a plastic baggie
containing a white chalky substance, about the size of
a golf ball. The baggie landed on a patch of grass.
Joseph continued to run, and Reynold continued to chase
Joseph. Eventually, Joseph doubled back to the area
where he had discarded the baggie, and there he stopped
running. Reynolds caught Joseph, handcuffed him, and
placed him under arrest.
While all of this was going on, the first man
(the one who had been left in the custody of the
Community Patrol) fled the scene. This man was never
identified.
The baggie that Joseph had tossed away was
found to contain twenty individually wrapped rocks of
cocaine weighing a total of approximately thirteen
grams. Based on this evidence, Joseph was indicted for
third-degree controlled substance misconduct.
Following his indictment, Joseph asked the
superior court to suppress the cocaine found in the
plastic baggie. He argued that this evidence was the
fruit of an unlawful seizure of his person.
Superior Court Judge Larry D. Card concluded
that, given the circumstances of Josephs case, Officer
Reynolds had a reasonable suspicion that Joseph had
just been smoking marijuana in public. Judge Card
further concluded that the use of marijuana in a public
place constituted an imminent public danger thus
justifying an investigative stop under the rule
announced by the Alaska Supreme Court in Coleman v.
State, 553 P.2d 40, 43 (Alaska 1976).
Even though Officer Reynolds may have had a reasonable
suspicion that Joseph had just been smoking marijuana
in public, the public use of marijuana is not an
imminent public danger for purposes of the Coleman rule
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), the United States Supreme Court
held that, consistent with the Fourth Amendment to the
United States Constitution, police officers may briefly
detain people to investigate a potential crime even
though the officers do not have probable cause to make
an arrest. The Supreme Court held that a brief
investigative detention is justified if the police have
an objectively reasonable suspicion of criminal
activity that is, if the police can point to specific
and articulable facts which, taken together with
rational inferences from those facts, reasonably
warrant th[e] intrusion.4
In two decisions that pre-dated Terry, the
Alaska Supreme Court had upheld brief investigative
detentions, based on less than probable cause, in
situations where the police had reasonable suspicion
that imminent public danger exist[ed] or that the
person being detained had recently [caused] serious
harm.5 And in Coleman, when the Alaska Supreme Court
was asked to re-assess the legality of investigative
stops in light of the United States Supreme Courts
decision in Terry, the Alaska Supreme Court re-affirmed
this limitation on investigative stops.
Under Coleman, reasonable suspicion that a
person is committing or has committed a crime is not
enough, by itself, to justify an investigative stop.
Rather, the suspected crime must create an imminent
danger to the public, or it must involve recent serious
harm to persons or property. Coleman, 553 P.2d at 46.
In footnote 17 of the Coleman opinion (553
P.2d at 45), the supreme court expressed its concern
that an open-ended rule for investigative stops would
pose a danger of serious and unintended erosion of the
constitutional protection against unreasonable searches
and seizures. Based on this concern, our supreme court
declared that the doctrine of stop and frisk enunciated
in Terry should not be extended beyond situations
requiring immediate police response to protect the
public in serious cases where there is a likelihood of
imminent danger about to occur or where serious harm
has recently been perpetrated [on] persons or property.
In Josephs case, Officer Reynolds had a
reasonable suspicion that Joseph and his companion had
been smoking a marijuana cigarette just before Reynolds
arrived on the scene. It is also possible (although we
do not decide this) that Reynolds had a reasonable
suspicion that one of these two men might still be
carrying marijuana on his person. But Coleman requires
that the suspected criminal activity pose an imminent
danger to the public safety or that it involve recent
serious harm to persons or property. The use or
possession of a marijuana cigarette on a public street
does not meet this test.
The State points out that this Court upheld
an investigative stop in Pooley v. State, 705 P.2d 1293
(Alaska App. 1985), when the suspected crime was
possession of marijuana for purposes of distribution or
sale. But as we carefully pointed out in Pooley, the
Coleman test was met because the police had an amply
support[ed] suspicion that Pooley had [just]
transported substantial quantities of illegal drugs a
long distance for commercial purposes, not just that he
possessed small quantities of illegal drugs for
personal use. Pooley, 705 P.2d at 1307.
We then explained why we concluded that the
transportation of controlled substances for the purpose
of unlawful commercial distribution met the Coleman
requirements for an investigative stop:
The illegal trafficking of controlled
substances is a major problem in Alaska. The
lucrative profits to be made from illegal
drug sales have attracted an increasingly
high level of criminal activity, and
widespread distribution of illegal drugs
poses a serious danger to the health and
safety of many potential users, especially
among school-age children. Most controlled
substances sold illegally in Alaska are
imported from outside the state, often by
persons acting as drug couriers. We believe
the public, as well as the police, have a
vital interest in assuring that illegal drug
traffic is detected and curtailed before
illicit drugs are actually placed into
distribution in Alaska. Compare Hubert v.
State, 638 P.2d 677, 685-86 (Alaska App.
1981) (even though crime actually being
investigated was relatively minor felony of
receiving and concealing stolen property,
connection of the stolen property with recent
burglary, coupled with high police interest
in recovering proceeds of a theft before they
are placed in the chain of illegal
distribution and dispersed, justifies
conclusion that Coleman standard was met).
Pooley, 705 P.2d at 1307.
Based on this analysis, we
concluded that if the police had a reasonable
suspicion that Pooley was a commercial drug
courier, this was tantamount to reasonable
suspicion that his conduct posed an imminent
danger to public safety and, therefore, the
investigative stop satisfied the Coleman
test. Id.
But in an accompanying footnote
(footnote 9), we echoed the supreme courts
concern that, unless limits were placed on
law enforcements authority to conduct
investigative stops based on reasonable
suspicion, the doctrine of investigative
stops might become [a] vehicle for serious
and unintended erosion of the constitutional
protections against unlawful searches and
seizures. Pooley, 705 P.2d at 1307 n. 9. In
particular, we warned that our decision in
Pooley should not be viewed as authorizing
investigative stops based on the suspicion
that a person is in possession of a small
quantity of a controlled substance in a non-
commercial context:
A situation in which [the] police have a
reasonable suspicion that a person is
transporting illegal drugs for eventual
distribution in [this] state is clearly
distinguishable from a situation in which
[the] police suspect that an individual is in
possession of a small quantity of an illegal
drug or have no reason to believe that
distribution is contemplated. The latter
situation raises the spectre of routine stop-
and-frisk procedures [whose primary object is
to conduct a search].
Id.
Josephs case presents the latter
situation described in Pooley: the
possession of small quantities of illegal
drugs in a non-commercial context. Officer
Reynolds suspected Joseph of using a small
amount of marijuana in a public place and,
conceivably, possessing a small amount of
marijuana in a public place for personal use.
Our decision in Pooley does not support an
investigative stop under these circumstances.
Rather, Pooley strongly suggests that the
investigative stop in Josephs case does not
meet the Coleman test for imminent public
danger.
The State also relies on our
decision in State v. G.B., 769 P.2d 452
(Alaska App. 1989), where we adopted and
applied a flexible approach to the Coleman
requirement of recent serious harm to persons
or property.
The issue in G.B. was whether a
state trooper was justified in briefly
detaining a juvenile suspected of shoplifting
a videotape minutes before. On appeal, the
juvenile argued that, as a matter of law, the
theft of a single videotape did not qualify
as recent serious harm to property. This
Court disagreed; we ruled that, depending on
the circumstances, a brief detention might be
justified to investigate even a minor theft.
We declared that, [w]hile the theoretical
seriousness of the [suspected] crime ... is a
significant factor ... , it is not in itself
determinative:
Coleman speaks in terms of imminent
threats to public safety and recently
committed serious harm. In so doing, Coleman
recognizes that the extent of danger
threatened by a potential crime or the
seriousness of harm resulting from a crime
that has already been committed cannot be
evaluated in the abstract. Rather, a threat
to public safety must be considered in
conjunction with the imminence of that
threat. A given threat to public safety
might not justify an investigative stop when
the danger threatened is not immediate and
when circumstances would permit additional
efforts to obtain probable cause. As the
danger becomes more immediate and the
opportunity for additional investigation
diminishes, the same threat might justify a
stop based on reasonable suspicion alone.
Likewise, once a crime has been committed,
the seriousness of the resulting harm must be
considered in connection with the recency of
the crime. The less recent the crime, the
more serious the offense must be before an
investigative stop based on reasonable
suspicion alone will be justified.
These factors must in turn be balanced
against the strength of an officers
reasonable suspicion and the actual
intrusiveness of the investigative stop. The
seriousness of harm necessary to support an
investigative stop will thus increase or
diminish in any given case depending on the
totality of the circumstances surrounding the
stop itself. A minimally intrusive stop
based on solid information indicating that a
crime is actually in progress or has just
been completed may be justified under Coleman
even when the crime itself is not a felony
and involves harm that in other contexts
might not seem particularly serious.
G.B., 769 P.2d at 455-56.
In Gibson v. State, 789 P.2d 383,
384 (Alaska App. 1990), applying this
flexible approach to Colemans recent serious
harm to property test, we upheld the brief
investigative detention of a person suspected
of vandalizing a pay telephone minutes
before.
Based on our decisions in G.B. and
Gibson, the State argues that Officer
Reynolds could justifiably conduct an
investigative stop of Joseph even though
Josephs suspected offense was de minimis. We
conclude that this would be an improper
expansion of G.B.s flexible approach to
Coleman.
True, G.B. and Gibson stand for the
proposition that the phrase recent serious
harm to property should be interpreted
flexibly, so as to allow a brief detention to
investigate a relatively minor property
offense if the offense is recent enough, the
need for immediate police action is apparent,
and the detention is sufficiently limited.
But G.B. and Gibson both involved
real (albeit relatively minor) harm to
someones property. In G.B., it was theft of
a videotape; in Gibson, vandalism of a pay
telephone. These cases do not stand for the
proposition that Colemans requirement of
recent serious harm to persons or property
can be interpreted so flexibly as to
completely eliminate the words harm to
persons or property.
Officer Reynolds had no reason to
suspect that Joseph posed an imminent danger
to anyones safety, and no reason to suspect
that Joseph had recently caused harm to any
person or property. Thus, our decisions in
G.B. and Gibson do not support the
investigative stop in Josephs case.
For these reasons, we hold that the
investigative stop in this case violated the
Alaska Constitution as interpreted in
Coleman.
At two places in the States brief
(pages 9 and 20), the State mentions in
passing that Officer Reynolds may have had
probable cause to arrest Joseph for smoking
marijuana in public. If Reynolds had lawful
justification for arresting Joseph when he
began to chase him, this would allow the
State to escape the Coleman strictures on
investigative stops.
It is unclear whether the State is
seriously advancing this argument because,
at yet another place in the States brief
(page 22), the State suggests that there was
no probable cause to arrest Joseph until he
tossed away the baggie of cocaine. However,
even assuming that the State is offering this
as an alternative rationale for upholding the
trial courts ruling, we reject the States
argument.
Reynolds arguably had probable
cause to believe that Joseph had just been
smoking a marijuana cigarette in public.
Joseph fit the description given by the 911
caller, Joseph was in the location described
by the caller, and Reynolds could smell the
odor of burning marijuana coming from the
area where Joseph, the other man, and the two
women were standing. But under Alaska law
(with certain exceptions that are not
pertinent here), even though a police officer
has probable cause to believe that a person
has committed a misdemeanor offense, the
officer is prohibited from arresting the
person for that offense unless (a) the
officer has an arrest warrant or (b) the
misdemeanor is committed in the officers
presence. AS 12.25.030 12.25.035.
Reynolds had no warrant to arrest
Joseph, so the validity of any arrest hinged
on whether Josephs act of smoking marijuana
in public occurred in Reynoldss presence.
Although the evidence in this case may have
strongly suggested that Joseph had been
smoking a marijuana cigarette in public just
prior to Reynoldss arrival on the scene,
there was no evidence that Joseph continued
to commit this offense in the officers
presence. Accordingly, Reynolds had no
authority to arrest Joseph for this suspected
offense.
This point of law is explained in
Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (4th ed.
2004), 5.1(c), Vol. 3, pp. 30-32:
[Although it] is generally accepted that
an officer may utilize all of his senses in
determining whether a misdemeanor is
occurring[,] ... [i]t must be emphasized ...
that it is not enough that the officer relies
upon his own senses in determining that an
offense has occurred; the offense must be
occurring while the policeman is on the
scene. Thus, an officer may not make [a
warrantless] arrest for a misdemeanor battery
merely because he has been told by the victim
that the defendant, [who is] still present,
struck her prior to the arrival of the
police, and this is so even though [the
victims] story is largely corroborated by the
officers observation of her [physical]
condition. Likewise, [a warrantless] arrest
may not be made for the misdemeanor of
driving under the influence of intoxicating
liquor when an officer comes on the scene of
an auto accident and finds the defendant
there, even though the defendant is obviously
intoxicated and admits that he had been
driving the vehicle.
As we explained earlier, the States
argument of this point consists of a couple
of isolated and conclusory assertions about
the existence of probable cause. Given the
evidence in this case, and given the
established law on this point, it appears
that the States argument is meritless.
The Alaska Constitution requires suppression of
evidence obtained by the police as a result of an
attempt to conduct an unjustified investigative
stop
While the police were chasing him, Joseph
took out the plastic baggie containing the cocaine
and threw it to the ground. This action might be
viewed as an abandonment of the cocaine. However,
as this Court noted in Young v. State, 72 P.3d
1250, 1255 (Alaska App. 2003), [a]cts of
abandonment prompted by unlawful police conduct
are generally considered the tainted fruit of the
illegality.6 Thus, because Joseph threw away the
cocaine in response to police efforts to
unlawfully seize him (that is, police efforts to
subject him to an unlawful investigative stop),
the cocaine would be viewed as the tainted fruit
of the police misconduct.
But, as we pointed out at the beginning of
this opinion, the United States Supreme Court has ruled
that the exclusionary rule does not apply to situations
like the one in Josephs case situations where a
suspect throws away or otherwise reveals physical
evidence while the police are attempting to unlawfully
seize the suspect, before the police actually
accomplish the unlawful seizure. California v. Hodari
D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690
(1991).
The facts of Hodari D. are quite similar to
the facts of Josephs case. A pair of police officers
on patrol saw a group of four or five youths huddled
around a car that was parked at the curb of a street.
As the police car approached, the youths began to run
away. Believing that the youths behavior was
suspicious, the two officers gave chase one in the
patrol car, and one on foot. The police officer on
foot began running after Hodari D.. When the officer
was almost upon him, Hodari D. tossed away what
appeared to be small rock. Moments later, the officer
tackled Hodari D. and handcuffed him. The small rock
proved to be crack cocaine.7
The California Court of Appeal ruled that the
police had no justification for chasing Hodari D., and
the court further ruled that Hodari D. had been seized
when the police officer gave chase. Thus, the court
concluded, the exclusionary rule required suppression
of the cocaine that Hodari D. threw away during the
chase.8
The United States Supreme Court accepted the
California courts ruling that the police had no
justification for chasing Hodari D.. Nevertheless, the
Supreme Court declared that the California court had
committed error when it suppressed the cocaine because
the Fourth Amendment protects only against unreasonable
seizures, and Hodari D. had not been seized until after
he threw away the cocaine in the sight of the police.
Justice Scalia, writing for the majority, explained:
[T]he Fourth Amendments protection
against unreasonable ... seizures includes
seizure of the person. [But from] the time
of the founding [of this country] to the
present, the word seizure has meant a taking
possession [citations to various dictionaries
omitted]. For most purposes at common law,
the word connoted not merely grasping, or
applying physical force to, the [person or]
object in question, but actually bringing it
within physical control.
. . .
The narrow question before us is whether,
with respect to a show of authority [by the
police], a seizure occurs even though the
subject does not yield. We hold that it does
not.
. . .
[When] a policeman yell[s] Stop, in the name
of the law! at a fleeing [person who]
continues to flee[, there] is no seizure.
Hodari D., 499 U.S. at 624, 626; 111 S.Ct. at 1549-1550.
Justice Scalia then declared that this result was fully
consistent with the policy of the exclusionary rule
that is, the policy of deterring police misconduct by
depriving the government of the evidence obtained
through that misconduct:
[Public] compliance with police orders to
stop should ... be encouraged. Only of a few
of those orders, we must presume, will be
without adequate basis ... . [Moreover,
unlawful] orders will not be deterred ... by
[applying] the exclusionary rule [to] those
of them that are not obeyed. Since policemen
do not command Stop! expecting to be ignored,
or give chase hoping to be outrun, it fully
suffices to apply the deterrent [of the
exclusionary rule solely] to ... successful
seizures.
Hodari D., 499 U.S. at 627, 111 S.Ct. at 1551.
Based on Hodari D., the State asserts that no Fourth
Amendment violation occurred in Josephs case because (1) there
was no seizure of Josephs person until the police actually
succeeded in subduing him, and (2) by that time, the police had
probable cause to arrest Joseph because Joseph had thrown the
baggie of cocaine to the ground in Officer Reynoldss sight. In
other words, the State argues that no Fourth Amendment violation
preceded Josephs act of throwing the cocaine to the ground, and
thus the cocaine should be deemed abandoned property (i.e.,
admissible evidence) rather than the fruit of police illegality.
The State acknowledges that Hodari D. was decided on
federal law grounds and that, [t]o date, [the] Alaska courts have
not yet [expressly] ruled on whether the Hodari [D.] standard
will apply under the Alaska Constitution. However, the State
contends that this Court implicitly endorsed Hodari D. when we
decided Castle v. State, 999 P.2d 169 (Alaska App. 2000).
In Castle, the defendant walked away from a police
officer after the officer unjustifiably ordered the defendant to
remain at the scene of a traffic stop and wait to be interviewed.
The officer chased Castle, and he eventually caught Castle and
subdued him. A subsequent search of Castles pockets yielded
several small bags of cocaine.9
In our analysis of these facts, we concluded that the
police officers request for Castle to stop and be interviewed
was, in fact, a directive a show of authority: a reasonable
person in Castles position would believe that the officer was
ordering him to stop and submit to questioning.10 We then
declared:
At that point, a seizure occurred or,
more precisely, a seizure would have occurred
had Castle followed the officers instruction.
As it happened, Castle ignored the officers
order. The actual seizure occurred a few
moments later when [the officer] chased after
Castle, blocked his path with the patrol
vehicle, and wrestled him to the ground.
Castle, 999 P.2d at 172.
The State points out that our
analysis of this point i.e., our analysis of
what constitutes a seizure is the same
analysis that the United States Supreme Court
adopted in Hodari D.. This is true.
However, despite our agreement with the
Supreme Court about what constitutes a
seizure, we differed with the Supreme Court
on the key issue in the case: whether the
exclusionary rule should apply to this
situation.
In Castle, the State argued that
even if the police initially had no
justification for ordering Castle to remain
at the scene and be interviewed, Castles
later actions gave the police grounds to
arrest him because, while Castle was fleeing
from the police, he violated municipal law by
running in the middle of a street.11 We held
that even if this was true, the exclusionary
rule precluded the State from relying on
Castles violation of municipal law as a
ground for arresting him because Castles
action was a direct response to the officers
attempt to unlawfully detain Castle:
[T]o evaluate the States argument, we
must examine and clarify a particular aspect
of the exclusionary rule: When the police
violate the Fourth Amendment by unlawfully
seizing or unlawfully attempting to seize a
person, and the person responds by committing
a crime, may the person be prosecuted for
this crime notwithstanding the prior
illegality? Or is the crime to be deemed a
fruit of the police illegality, so that
evidence of this crime must be suppressed?
This issue is discussed by Professors
LaFave, Israel, and King in their treatise on
criminal procedure.[12] According to LaFave,
... the answer [lies] in the underlying
deterrent purpose of the exclusionary rule:
Incriminating admissions and attempts to
dispose of incriminating objects are
common and predictable consequences of
illegal arrests and searches, and thus
to admit such evidence would encourage
such Fourth Amendment violations in
future cases. ...
LaFave, 9.4(f), Vol. 3, pp. 380-81.
Castle, 999 P.2d at 175.
We then discussed three cases from
other states State v. Alexander, 595 A.2d
282 (Vt. 1991); People v. Felton, 581 N.E.2d
1344, 576 N.Y.S.2d 89 (N.Y. 1991); and People
v. Cantor, 324 N.E.2d 872, 365 N.Y.S.2d 509
(N.Y. 1975) in which courts applied the
exclusionary rule to suppress evidence that
was the fruit of unlawful police attempts to
detain the defendant.13
Following our discussion of these
three cases, we stated:
[Although] we do not necessarily endorse the
results in [these] cases, ... we do endorse
the principle espoused by LaFave and employed
by the courts in Alexander, Felton, and
Cantor. When a defendant commits a crime in
response to an illegal search or seizure, the
policy of the exclusionary rule societys
interest in deterring police misconduct must
govern any decision whether to admit or
suppress evidence of the defendants crime.
Castle, 999 P.2d at 177.
We then explained why suppression
of evidence in cases like Castle that is,
suppression of evidence obtained by the
police as the result of their unlawful
attempt to detain a citizen served the
underlying goals of the exclusionary rule:
One of the major aims of the
exclusionary rule is to deter the police from
engaging in the unlawful detention or
restraint of our citizens. Societys interest
in deterring unlawful arrests and
investigative stops would be ill-served if
the police could unlawfully seize (or try to
seize) someone, only to later justify
themselves by proving that the victim of this
unlawful seizure ran into the street, or
crossed against a red light, or jaywalked, or
trespassed by running across municipal park
land when it was closed, or littered by
throwing contraband to the ground. In such
instances, [the] defensive action by the
victim can fairly be characterized as having
been brought about by exploitation [of the
illegal conduct]. [LaFave, 9.4(f), Vol. 3,
p. 381.] This being so, courts should apply
the exclusionary rule to deter the police
from future similar misconduct.
In Castles case, we conclude that even
if Castle broke the law by running into the
middle of the street, his conduct was the
direct result of [the officers] unjustified
attempt to seize him. We further conclude
that the policy of the exclusionary rule
would be undermined if we allowed Castles
conduct to form the justification for his
ensuing arrest and the search of his person.
Castle, 999 P.2d at 177 (text of accompanying
footnote inserted in brackets).
Our decision in Castle can rightly
be criticized in one respect: we
consistently referred to Castles rights under
the Fourth Amendment, but we never
acknowledged the United States Supreme Courts
decision in Hodari D.. That is, we never
acknowledged the fact that the Supreme Court
had already ruled that the Fourth Amendment
is not violated under the circumstances
presented in Castle.
If we are to continue to follow the
rule that we announced in Castle that is, if
we are to continue to apply the exclusionary
rule to suppress the fruits of unlawful
police attempts to detain citizens then we
must do so as a matter of state law.
In this, we would not be alone.
Courts in more than a dozen states have
already expressly rejected Hodari D. as a
matter of state law:
See State v. Oquendo, 613 A.2d
1300, 1309-1310 (Conn. 1992); Flonnory v.
State, 805 A.2d 854, 857 (Del. 2001); State
v. Quino, 840 P.2d 358, 362 (Hawaii 1992);
Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky.
1999); State v. Tucker, 626 So.2d 707, 712
(La. 1993); Commonwealth v. Stoute, 665
N.E.2d 93, 96 (Mass. 1996); Matter of Welfare
of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993);
State v. Clayton, 45 P.3d 30, 34 (Mont.
2002); State v. Beauchesne, 868 A.2d 972, 978-
981 (N.H. 2005); State v. Tucker, 642 A.2d
401, 405 (N.J. 1994); People v. Hollman, 590
N.E.2d 204, 211-12; 581 N.Y.S.2d 619, 626-27
(N.Y. 1992); State v. Puffenbarger, 998 P.2d
788, 792-94 (Or. App. 2000); Commonwealth v.
Matos, 672 A.2d 769, 775 (Pa. 1996); State v.
Randolph, 74 S.W.3d 330, 336-37 (Tenn. 2002);
State v. Young, 957 P.2d 681, 687 (Wash.
1998).
See also Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth
Amendment (4th ed. 2004), 9.4(d), Vol. 4, p.
456, where the author declares that the
result reached in Hodari D. is incorrect, and
that the decision in Hodari D. is aptly
characterized ... as [a] manifestation of the
[Supreme] Courts surreal and Orwellian view
of personal security in contemporary
America.14
We agree with these other states
that the United States Supreme Court has
adopted an interpretation of the Fourth
Amendment and the exclusionary rule that
fails to adequately safeguard our citizens
right to privacy, that fails to adequately
protect citizens from unwarranted government
intrusion, and that unjustifiably reduces the
incentive of police officers to honor
citizens constitutional rights. As we stated
in Castle, when the police, whether by
physical force or by show of authority,
undertake to restrain the freedom of a
citizen, the principles of the exclusionary
rule apply equally regardless of whether the
police succeed in unlawfully seizing the
person or merely attempt to do so.
We therefore reject the decision in
Hodari D. as inconsistent with Article I,
Section 14 of the Alaska Constitution the
provision that guarantees [t]he right of the
people to be secure in their persons ... and
property ... against unreasonable searches
and seizures.
Conclusion
We conclude that Officer Reynolds acted
illegally when he attempted to detain Joseph at
the scene by a show of authority, and when he
chased Joseph after Joseph fled rather than
obeying the officers command to stay. We further
conclude that, under the Alaska Constitution,
Josephs act of tossing away the baggie of cocaine
is the fruit of this illegality, and the cocaine
must be suppressed.
We acknowledge that our decision means that
Joseph will escape criminal liability for his
conduct his possession of a significant quantity
of cocaine that was divided into some twenty
smaller packages, apparently for sale. But as the
Wyoming Supreme Court noted in Damato v. State, 64
P.3d 700, 710 (Wyo. 2003), few decisions involving
the law of search and seizure vindicate the rights
of innocent people.
As Justice Felix Frankfurter said, the
safeguards of liberty have frequently been forged in
controversies involving not very nice people. United
States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430,
436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).
When we perform our duty to interpret the search and
seizure clause of our state constitution, and to
enforce the exclusionary rule, we are obliged to ignore
Josephs apparent guilt and to focus, instead, on the
legality or illegality of the police actions that led
to the discovery of the evidence.
The judgement of the superior court is
REVERSED.
_______________________________
1AS 11.71.030(a)(1).
2AS 11.71.060(a)(1), as limited by Noy v. State, 83 P.3d
538, 543 (Alaska App. 2003), rehearing denied 83 P.3d 545 (Alaska
App. 2003).
3AS 11.71.060(b).
4Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880.
5See Goss v. State, 390 P.2d 220 (Alaska 1964), and Maze v.
State, 425 P.2d 235 (Alaska 1967).
6Citing Cox v. State, 586 So.2d 1321, 1322 (Fla. App. 1991)
(holding that when the defendants act of abandoning or
dropping a package of marijuana was prompted by or was
the result of an illegal stop, the purported
abandonment could not be used to justify a warrantless
search); State v. Belton, 441 So.2d 1195, 1199 (La.
1983) (When police officers make an investigatory stop
without the legal right to do so, property abandoned or
otherwise disposed of as a result thereof cannot be
legally seized.); Comer v. State, 754 S.W.2d 656, 659
(Tex. App. 1986) (abandonment must occur independent of
any police misconduct).
7Hodari D., 499 U.S. at 623, 111 S.Ct. at 1549.
8Id.
9Castle, 999 P.2d at 170-71.
10Id. at 172.
11Id. at 174-75.
12Wayne R. LaFave, Jerold H. Israel, and Nancy J. King,
Criminal Procedure (2nd ed. 1999), 9.4(f), Vol. 3, pp.
380-81.
13A detailed explanation of these three cases is contained
in Castle, 999 P.2d at 176-77.
14Quoting Ronald J. Bacigal, The Right of the People to be
Secure, 82 Ky. L. J. 145, 146 (1993).
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