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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| SUSAN S. BROWN, | ) |
| ) Court of Appeals No. A-9529 | |
| Appellant, | ) Trial Court No. 4FA-04-4084 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2157 April 18, 2008 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Douglas L.
Blankenship and Charles R. Pengilly, Judges.
Appearances: Sharon Barr, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
The defendant in this case, Susan S. Brown, was stopped
by a state trooper for a traffic infraction (insufficient
illumination of her rear license plate). However, Brown was not
informed of the reason for the stop. The trooper asked Brown to
produce her drivers license, and then he took the drivers license
back to his patrol car to see if the license was valid and if
there were any outstanding warrants for Browns arrest. After
assuring himself that Brown was validly licensed and that there
were no warrants for her arrest, the trooper decided to simply
issue a warning to Brown. The trooper then returned to Browns
car.
But rather than explaining the reason for the stop, and
announcing his decision to let Brown off with a warning, the
trooper instead asked Brown for permission to search her person
and her vehicle for weapons and drugs. Brown gave permission,
the search was conducted, and the trooper found a crack cocaine
pipe in the lining of Browns coat.
In this appeal, Brown concedes that she was properly
stopped for the traffic infraction. However, she asserts that
the circumstances surrounding her encounter with the trooper were
implicitly coercive, and that her consent to the search was
therefore not valid.
The United States Supreme Court has declared that, even
when a traffic stop is supported by probable cause, routine
traffic stops should be viewed as a species of investigative stop
rather than a formal arrest. Berkemer v. McCarty, 468 U.S. 420,
440-41 & n. 29; 104 S.Ct. 3138, 3150 & n. 29; 82 L.Ed.2d 317
(1984). For this reason, traffic stops are governed by the
principles expounded in Terry v. Ohio1 limiting the scope and
duration of investigative stops. Id.
(See Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142
L.Ed.2d 492 (1998), where the Supreme Court held that, even when
an officer might lawfully subject a motorist to a full custodial
arrest for a traffic offense, the officer can not lawfully
conduct the kinds of searches incident to arrest that would be
authorized under the Fourth Amendment unless the officer actually
performs a full custodial arrest. If the officer instead decides
to conduct a routine traffic stop, then the officers authority to
search is limited by the rule of Terry v. Ohio. Knowles, 525
U.S. at 114, 118-19; 119 S.Ct. at 486, 488.)
Applying the principles of Terry, a traffic stop must
be temporary and [must] last no longer than is necessary to
effectuate the purpose of the stop. Florida v. Royer, 460 U.S.
491, 500; 103 S.Ct. 1319, 1325-26; 75 L.Ed.2d 229 (1983)
(plurality opinion). Moreover, a police officers conduct during
the stop must be reasonably related in scope to the circumstances
that justified the stop in the first place. United States v.
Brignoni-Ponce, 422 U.S. 873, 881; 95 S.Ct. 2574, 2580; 45
L.Ed.2d 607 (1975) (quoting Terry, 392 U.S. at 29, 88 S.Ct. at
1884). The stop becomes unreasonable and thus constitutionally
invalid if the duration, manner, or scope of the investigation
exceeds these boundaries. Royer, 460 U.S. at 500, 103 S.Ct. at
1325-26.
But federal and state courts have reached different
conclusions regarding how these principles apply when an officer
asks a motorists permission to conduct a search for controlled
substances or other contraband during a traffic stop.
As we explain in more detail below, many courts have
reasoned that the mere asking of questions even a question such
as, May I search you and your vehicle for drugs? does not alter
the duration or scope of the intrusion upon a motorists freedom
and privacy that normally accompanies a traffic stop. According
to these courts, even when there is no reason to suspect that the
motorist is carrying drugs, it is nevertheless proper for the
officer to question the motorist about drugs, and to request the
motorists permission to conduct a drug search, so long as the
officers questioning does not extend the duration of the traffic
stop beyond what would normally be required to investigate and
respond to the observed traffic infraction.
Moreover, when these courts assess the validity of the
motorists ensuing consent, they employ the totality of the
[objective] circumstances test enunciated in Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973),
and Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d
347 (1996). This means that, absent specific coercive
circumstances beyond those that normally attend a traffic stop,
the motorists ensuing consent to search will be deemed voluntary.
Other courts, still working within the framework of
federal law, have tried to clarify the application of the Terry
principles to traffic stops by placing more specific limitations
on a police officers authority to request permission to search.
For example, the Tenth Circuit follows the bright-line rule that
forbids officers from requesting consent to search until the
officer has returned the motorists license and registration (thus
impliedly alerting the motorist that the stop is nearing an end,
and that the motorist will soon be free to go).2 In a similar
vein, the Ohio Supreme Court attempted to regulate these requests
by requiring the officer to first expressly advise the motorist
that they would be free to go even if they did not consent to the
search.3 However, on petition for writ of certiorari, the United
States Supreme Court held that the Fourth Amendment did not
require this type of advisement.4
Finally, some state courts have turned to their own
state law to regulate these situations either forbidding
outright any request for permission to search unless there is
reasonable suspicion to support the request, or else restricting
the circumstances in which such requests can be made without
reasonable suspicion.
For the reasons explained in this opinion, we join the
state courts that have decided that their state constitutions
require greater restrictions on police authority in this
situation than the restrictions imposed by the Fourth Amendment
to the United States Constitution.
We reject the notion that, as long as a police officers
questions do not extend the expected temporal duration of a
traffic stop, the legal nature of the stop remains unaltered even
when an officer questions a motorist about other potential crimes
and seeks permission to search the motorist and/or the vehicle.
As shown by the facts of the present case, and as shown by the
experiences of other states, motorists who have been stopped for
traffic infractions do not act from a position of psychological
independence when they decide how to respond to a police officers
request for a search. Because of the psychological pressures
inherent in the stop, and often because of the motorists
ignorance of their rights, large numbers of motorists guilty and
innocent alike accede to these requests.
Moreover, because traffic regulations are so numerous
and detailed, most motorists will violate these regulations from
time to time. In the present case, for instance, the defendant
was stopped because the light illuminating her rear license plate
was dirty.
Because the violation of traffic regulations is so
frequent, and because motorists who are stopped for traffic
infractions often accede to a police officers request for
permission to search, the Fourth Amendment rules governing
traffic stops create the potential risk that law enforcement
officers will compromise the privacy of many citizens. These
Fourth Amendment rules potentially allow Alaska law enforcement
officers to search dozens, and perhaps hundreds, of people and
vehicles each day even though the officers lack any grounds to
justify these searches.
For these reasons, we hold that the Alaska Constitution
imposes greater restrictions on a police officers authority to
request a motorists permission to conduct a search during a
routine traffic stop. We conclude that an officers questions
about other potential crimes, and an officers requests for
permission to conduct a search, are significant events under the
search and seizure provision of the Alaska Constitution, Article
I, Section 14. More specifically, we conclude that, under the
circumstances presented in this case, the officer conducting the
traffic stop was prohibited from requesting Browns permission to
conduct a search that was (1) unrelated to the basis for the stop
and (2) not otherwise supported by a reasonable suspicion of
criminality.
The facts of the traffic stop in this case
At about 3:00 a.m. on November 24, 2004,
State Trooper Maurizio Salinas stopped the vehicle
driven by Susan S. Brown because the trooper observed
that the vehicles rear license plate was not properly
illuminated.5 Traffic at that time of the morning was
sparse; in fact, Salinass vehicle and Browns vehicle
were the only cars on the road.
Salinas informed Brown who he was, and he
asked Brown for her drivers license. However, Salinas
did not tell Brown why he had stopped her.
Salinas then asked Brown if she was carrying
any weapons or drugs in her car. Brown responded that
she did not have any such items in her car.
Carrying Browns drivers license, Salinas
walked back to his patrol car. He ran a check on the
validity of Browns drivers license, and he also checked
to see if there were any outstanding warrants for her
arrest. These checks showed that Brown was properly
licensed and that there were no warrants for her
arrest.
Having performed these checks, Salinas
decided that he would simply give Brown a warning
rather than issuing her a citation for the license-
plate-illumination violation (of which Brown was still
assumedly ignorant).
Salinas walked back to Browns vehicle, but he
still did not inform her of his reason for stopping her
car, or of his decision to let her off with a warning.
(Indeed, it is not apparent, from either the audio
recording of the encounter or Salinass later testimony
at the evidentiary hearing, that Salinas handed Browns
drivers license back to her.) Instead, Salinas asked
Brown where she was headed, and then he again asked
Brown if she had any weapons or drugs. When Brown
again denied possessing either weapons or drugs,
Salinas asked her if she would mind if he performed a
search for these items. Brown consented to this search.
Salinas directed Brown to step out of her
vehicle, and then he conducted a search of Browns
person. Inside the lining of Browns coat, Salinas
found a crack pipe. Salinas then arrested Brown and,
incident to this arrest, he searched Browns purse
(which was sitting on the passenger seat of her car).
Inside the purse, Salinas found cocaine in a cigarette
box.
The entire duration of Salinass encounter
with Brown, from the time he stopped her car to the
time she consented to the search, was less than two and
a half minutes. (Of course, the encounter became
longer after Brown consented to be searched.)
During the court proceedings in this case,
Salinas testified that he worked traffic patrol from
11:00 p.m. to 7:00 a.m., and that it was his practice
to try to conduct a few consent searches each night
during traffic stops. In other words, when Salinas
conducted traffic stops, he would randomly ask drivers
for permission to search for drugs and/or weapons.
When Salinas asked Brown for permission to
conduct the search in this case, he was simply
following this practice of randomly seeking permission
to search. Salinas had no grounds for suspecting that
Brown was carrying drugs on her person or in her car.
Brown asked the superior court to suppress
the fruits of the two searches (the search of her
person and the search of her purse). After the
superior court upheld these searches, Brown and the
State reached a plea agreement under Cooksey v. State:6
Brown pleaded no contest to fourth-degree
controlled substance misconduct (possession of
cocaine), upon the understanding that she would be able
to appeal the superior courts ruling on her suppression
motion.
The States position in this appeal
The State acknowledges that traffic stops are
governed by the same Terry principles that limit the
duration and scope of investigative stops. That is,
the State acknowledges that a traffic stop may last no
longer than necessary to accomplish its purpose and
must be conducted by the least intrusive means
[available] to accomplish its purpose.
Based on these principles, the State contends
that the underlying issue in this case is not whether
Trooper Salinass questions about drugs, and his request
for permission to conduct a drug search, were related
to the reason for the traffic stop. Instead, the State
argues, the issue is whether Salinass questions and his
request for permission to conduct a search unreasonably
extended the stop. The State contends that the answer
to this question is no for three reasons.
First, according to the State, the traffic
stop had not yet ended for although Salinas had
completed his investigation concerning the unlawful
dimness of Browns license plate light, and although
Salinas had verified that Brown was properly licensed
and did not have any warrants for her arrest, Salinas
had not yet informed Brown of the reason he had stopped
her, nor had Salinas issued either a citation or a
warning to Brown.
Second, according to the State, Salinass
decision to seek Browns permission for a drug search
did not unreasonably extend the temporal duration of
the stop. Obviously, any question that the trooper
asked would extend the duration of the stop by a few
seconds; here, for instance, the record indicates that
Salinass question and Browns response consumed
approximately twelve seconds. But the State asserts
that the test under Fourth Amendment law is whether the
troopers questions extended the duration of the traffic
stop to an unreasonable degree and there are plenty of
federal and state cases to support the States position
that a brief extension of a traffic stop does not make
the stop unreasonable, so long as the total length of
the stop does not exceed the amount of time reasonably
needed to accomplish its purpose.7
Third, the State contends that Salinass
questions to Brown about drugs, and his requests for
permission to conduct a search, did not significantly
alter the scope or intensity of the traffic stop. The
State relies on cases such as Muehler v. Mena, 544 U.S.
93, 100-01; 125 S.Ct. 1465, 1472; 161 L.Ed.2d 299
(2005), and United States v. Childs, 277 F.3d 947, 949
(7th Cir. 2002) (en banc), for the proposition that
questions [by themselves] are neither searches nor
seizures8 and that, for this reason, a police officers
act of engaging a motorist in brief questioning on
other subjects and requesting permission to conduct a
search does not alter the reasonableness (i.e., the
lawfulness) of a traffic stop.9
Under the States analysis (i.e., under the
assumption that the troopers questions about weapons
and drugs, and his request for permission to search,
did not unlawfully alter the scope or duration of the
traffic stop), the final question is whether Browns
consent to the search was voluntary.
Under the Fourth Amendment, the voluntariness
of a persons consent to search is assessed using the
totality of the [objective] circumstances test
enunciated in Schneckloth v. Bustamonte, 412 U.S. 218,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Alaska
Supreme Court adopted this test in Frink v. State, 597
P.2d 154, 167 (Alaska 1979).
In the present case, when Trooper Salinas
requested permission to perform a drug search, Brown
had not been told the reason for the traffic stop, nor
had she been informed of Salinass decision to let her
go with a warning. Indeed, it is not clear if the
trooper had even returned Browns drivers license. The
State nevertheless maintains that the record
demonstrates Browns voluntary consent to the search.
The State notes that the entire encounter
between Salinas and Brown was quite short, and that
Salinas was cordial and polite throughout. The State
further notes that, in Frink, the Alaska Supreme Court
held that a persons consent to search can be valid even
though the police do not inform the person of their
right to refuse consent. Finally, the State notes that
in Robinette, 519 U.S. at 39-40; 117 S.Ct. at 421, the
United States Supreme Court ruled that a motorist
temporarily detained for a traffic stop can validly
consent to a search even though the police never inform
the motorist that they will be free to leave even if
they refuse to consent.
For all of these reasons, the State contends
that the traffic stop was lawful and that Browns
consent to search was voluntary.
The States position is eminently defensible
under federal law. But for the reasons explained in
the next section of this opinion, we conclude that
federal law does not afford sufficient protection to
motorists who are asked to consent to a search of their
person, their vehicle, or their belongings during a
traffic stop.
Why we conclude that federal law does not adequately
protect motorists
In times past, a routine traffic stop for an
equipment violation (such as the one in this case)
would normally include an investigation of the vehicle
and/or questioning of the motorist to verify that the
suspected equipment violation in fact existed. It
would also generally include a request for the
motorists drivers license, registration, and proof of
insurance; a computer or radio check to verify the
validity of these documents; and the issuance of an
appropriate citation or warning. Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment
(4th ed. 2004), 9.3(c), Vol. 4, p. 378. To this list
of routine investigative measures might be added a
computer or radio check for outstanding warrants for
the arrest of the motorist, as long as this check was
done expeditiously, so as not to significantly extend
the duration of the stop. Id. at pp. 381-82.
Questions concerning the drivers potential
possession of drugs, or requests for permission to
search either the drivers person or the vehicle for
drugs, were not traditionally part of an equipment
violation traffic stop. But as part of the war on
drugs, police officers have been encouraged to include
such questions and requests as a routine component of
traffic stops. As Professor LaFave explains,
In recent years[,] more Fourth Amendment
battles have been fought about police
activities incident to [investigative stops]
for a traffic infraction, what courts call a
routine traffic stop, than in any other
context. There is a reason why this is so,
and it is not that police have taken an
intense interest in such matters as burned-
out taillights and unsignaled lane changes
per se. Rather, the renewed interest of the
police in traffic enforcement is attributable
to a federally-sponsored initiative related
to the war on drugs.
LaFave, 9.3, Vol. 4, pp. 358-59 (emphasis in
the original) (footnotes omitted).
Professor LaFaves observation is
confirmed by the testimony in the present
case. Trooper Salinas testified that, every
night he was on traffic patrol, he would
randomly ask motorists if they were carrying
weapons or drugs, and if they would consent
to a search.
Cases from other states show that
this police practice is not an isolated
phenomenon. See State v. Ready, 565 N.W.2d
728, 731 (Neb. 1997) (an officer testified
that he routinely asked for a consent to
search when he made a traffic stop); United
States v. Lattimore, 87 F.3d 647, 649 (4th
Cir. 1996) (an officer stated that he
requests and obtains permission to search
97 percent of the cars [he] stop[s]); State
v. Retherford, 639 N.E.2d 498, 502-03 (Ohio
App. 1994) (an officer testified that he
requested to search 786 vehicles involved in
traffic stops in a single year; the Ohio
court, extrapolating from this officers
testimony, expressed concern over the
staggering numbers of Ohio citizens who must
be affected by this police practice.)
As LaFave summarizes, [c]onsent
searches are no longer an occasional event in
which people who are actively suspected of a
crime may advise the police of their
willingness to submit to a search. Instead,
consent searches are now a wholesale activity
accompanying a great many traffic stops.
LaFave, 9.3(e), Vol. 4, p. 397.
These searches result in a
substantial interruption of motorists
travels. Because drugs are easily concealed
in crevices, behind paneling, and under seats
and carpeting, a search for drugs can be a
painstaking business. Motorists often wait
by the roadside [while] their vehicles are
ransacked a process that typically takes
twenty to forty minutes. Id. at p. 397 &
n. 214.
In all but exceptional cases, these
consent searches are held to be valid under
the Fourth Amendment. The federal law in
this area is premised on the assumption that,
all things being equal, a motorist who does
not wish to be subjected to a search will
refuse consent when the officer seeks
permission to conduct a search. But
experience has shown that this assumption is
wrong.
Studies reveal that the vast
majority of motorists who are subjected to
this type of request will accede to the
officer and allow the search. As Professor
LaFave notes, [G]uilty or innocent, most
motorists [who are] stopped and asked by
[the] police for consent to search their
vehicles will expressly give permission to
search. Id. at p. 395.
One study showed that consent was
given 90 percent of the time. See Illya D.
Lichtenberg, Voluntary Consent or Obedience
to Authority: An Inquiry Into the Consensual
Police-Citizen Encounter (1999), cited in
LaFave, 9.3(e), Vol. 4, p. 395, n. 200.10
In State v. Carty, 790 A.2d 903, 910-11 (N.J.
2002), the New Jersey Supreme Court cited
empirical studies showing that 95 percent of
motorists consented to searches and that 80
percent of these motorists were innocent of
any wrongdoing (other than the traffic
infraction that led to the stop).
The result is that thousands upon
thousands of motor vehicle searches of
innocent travelers [are conducted] each year.
LaFave, 9.3(e), Vol. 4, p. 395 & n. 201,
citing Robert H. Whorf, Consent Searches
Following Routine Traffic Stops: The
Troubled Jurisprudence of a Doomed Drug
Interdiction Technique, 28 Ohio Northern
Univ. L. Rev. 1, 2 (2001). As the Ohio Court
of Appeals noted in Retherford, 639 N.E.2d at
503, these motorists are being routinely
delayed in their travels and asked to
relinquish ... their right to privacy in
their automobiles and luggage[.]
How are we to explain the
willingness of thousands of motorists to
agree to searches of their persons and their
vehicles at the request of a police officer?
One explanation was offered by Justice
Stevens in his dissenting opinion in
Robinette:
Most people believe that they are validly in
a police officers custody as long as the
officer continues to interrogate them. The
police officer retains the upper hand and the
accouterments of authority. That the officer
lacks legal license to continue to detain
them is unknown to most citizens, and a
reasonable person would not feel free to walk
away [while] the officer continues to address
him.
519 U.S. at 47, 117 S.Ct. at 425 (quoting the
Ohio Supreme Court in State v. Robinette, 653
N.E.2d 695, 698 (Ohio 1995)).
This helps to explain the seemingly
inexplicable behavior of those motorists who
agree to a search of their persons or their
vehicles when they know that they are
carrying drugs. But it also helps to explain
why innocent motorists who comprise the
great majority of those searched also agree
to have their persons and/or their vehicles
searched, even though this will entail a
delay of twenty to forty minutes. As Justice
Stevens noted in his dissent,
[I]t is fair to presume that most
drivers who have been stopped for [a traffic
infraction] are in a hurry to get to their
destinations; such drivers have no interest
in prolonging the delay occasioned by the
stop just to engage in idle conversation with
an officer, much less to allow a potentially
lengthy search. I also assume that motorists
even those who are not carrying contraband
have an interest in preserving the privacy of
their vehicles and possessions from the
prying eyes of a curious stranger. The fact
that [the] officer [in a companion case]
successfully used [this] method of obtaining
consent to search roughly 786 [vehicles] in
one year, State v. Retherford, ... 639 N.E.2d
498, 502 ([Ohio App.] 1994), indicates that
motorists generally respond in a manner that
is contrary to their self-interest. Repeated
decisions by ordinary citizens to surrender
that interest cannot satisfactorily be
explained on any hypothesis other than an
assumption that they believed they had a
legal duty to do so.
Robinette, 519 U.S. at 47-48, 117 S.Ct. at
425 (footnote omitted).
A second reason why motorists might
agree to be searched is that, even when
motorists know their constitutional rights,
they still have a strong interest in catering
to the officers wishes until the officer
announces their decision whether to issue a
citation or only a warning. As the New
Jersey Supreme Court noted in Carty, 790 A.2d
at 908, it is virtually impossible to drive a
motor vehicle in this country and not
unwittingly commit some infraction of the
motor vehicle laws. Thus, a substantial
number of drivers are at risk of being pulled
over and, during these traffic stops, being
asked to allow police officers to search
their persons or their vehicles. In these
circumstances, motorists may decide to
sacrifice their right to privacy and grant
consent to the requested searches in order to
escape with only a warning.
This type of psychological pressure
would only be accentuated in situations like
Browns case. Brown was never informed of the
reason why Trooper Salinas pulled her over.
In other words, Brown was never told that she
was the subject of a routine traffic stop
(rather than the target of a more serious
criminal investigation). For all that Brown
knew, Salinas requested her license so that
he could verify her identity before making a
full custodial arrest. Moreover, because
Salinas never apprised Brown of the reason
for the stop, Brown had no idea when, or if,
she would be free to leave.
Whatever the exact reasons for
motorists willingness to accede to the
requests of law enforcement officers, it is
clear that large numbers of motorists are
consenting to be searched each year indeed,
each month, and each week. Motorists are
giving consent in such large numbers that it
is no longer reasonable to believe that they
are making the kind of independent decision
that lawyers and judges typically have in
mind when they use the phrase consent search.
On November 23, 1880, at Harvard
Law School, future Supreme Court Justice
Oliver Wendell Holmes Jr. delivered a lecture
in which he proclaimed:
The life of the law has not been logic;
it has been experience. The felt necessities
of the time ... have had a good deal more to
do than the syllogism in determining the
rules by which men should be governed. The
law embodies the story of a nations
development through many centuries, and it
cannot be dealt with as if it contained only
the axioms and corollaries of a book of
mathematics.
(Later published as The Common Law, Lecture
I, Early Forms of Liability, first
paragraph.)11
Holmess observation rings most true
at those times when it becomes obvious that
legal rules developed in former years, and in
former circumstances, no longer strike their
intended balance of competing interests.
This is one of those times.
The traffic stop was intended to be
a seizure of limited duration and scope for a
limited purpose. Instead, because most
people need to travel by car, and because of
the near-inevitability that people will
commit traffic infractions, the routine
traffic stop has become the doorway to
widespread and probing searches of persons,
vehicles, and luggage.
The Fourth Amendment, as
interpreted by the United States Supreme
Court, and as applied by various federal
circuit courts and state courts, offers
little protection to motorists in this
situation. Indeed, legal commentators have
been widely critical of the United States
Supreme Courts consent-search jurisprudence.
See, e.g., Daniel R. Williams,
Misplaced Angst: Another Look At Consent-
Search Jurisprudence, 82 Ind. L. Jrnl. 69,
69-71 (2007) (No one seems to have a good
word to say about consent-search
jurisprudence; it is a problematic realm of
Fourth Amendment law.); Note, The Fourth
Amendment and Antidilution: Confronting the
Overlooked Function of the Consent Search
Doctrine, 119 Harv. L. Rev. 2187, 2188 (2006)
(Most commentators agree that the Courts
current approach is flawed, and even those
commentators who defend the Courts holdings
criticize its reasoning.); Ric Simmons, Not
Voluntary But Still Reasonable: A New
Paradigm for Understanding the Consent
Searches Doctrine, 80 Ind. L. Jrnl. 773, 773
(2005) (consent-search paradigm is a triple
inconsistency: the Court claims to be
applying one test, but in reality is applying
a different test and neither test fully
comports with the real-life confrontations);
Erica Flores, Comment, People, Not Places:
The Fiction of Consent, The Force of the
Public Interest, and the Fallacy of
Objectivity in Police Encounters with
Passengers During Traffic Stops, 7 U. Pa.
Jrnl. Const. L. 1071, 1095 (2005) (because
[t]here is no such thing as a consensual
encounter during a traffic stop, the author
argues that courts need a new standard);
Wayne R. LaFave, The Routine Traffic Stop
from Start to Finish: Too Much Routine, Not
Enough Fourth Amendment, 102 Mich. L. Rev.
1843, 1898 (2004) (arguing that, under
federal precedent, officers can obviate any
and all time and scope limitations by
performing the well-known Lt. Columbo gambit
[of asking one more thing ...], with the
courts adjudging any ensuing consent to
search to be voluntary despite the reality
that any person who has been detained for a
traffic violation is unlikely to so perceive
the situation); David A. Harris, Car Wars:
The Fourth Amendments Death on the Highway,
66 Geo. Wash. L. Rev. 556 (1998); Ian D.
Midgley, Comment, Just One Question Before We
Get To Ohio v. Robinette: Are You Carrying
Any Contraband ... Weapons, Drugs,
Constitutional Protections ... Anything Like
That? 48 Case Western Res. L. Rev. 173
(1997); Steven L. Chanenson, Get the Facts,
Jack! Empirical Research and the Changing
Constitutional Landscape of Consent Searches,
71 Tenn. L. Rev. 399, 402 (2004) ([A]lthough
scholars have criticized the consent search
doctrine for years, the Supreme Court has
steadfastly defended it and sided with a
pro-law enforcement approach.); Robert H.
Whorf, Consent Searches Following Routine
Traffic Stops: The Troubled Jurisprudence of
a Doomed Drug Interdiction Technique, 28 Ohio
Northern U. L. Rev. 1, 7 (2001) (the coercion
inherent in consent searches after routine
traffic stops must be addressed in some way).
To remedy this problem, some state
courts have begun to apply the Fourth
Amendment in a stricter fashion abandoning a
primary emphasis on the temporal duration of
the stop, and acknowledging that, even though
the act of asking a question may not be a
seizure in the traditional sense, some
questions and requests can alter the
fundamental nature of the interaction between
officer and motorist.
For instance, the court in Charity
v. State, 753 A.2d 556 (Md. App. 2000), held
that even when the total length of a traffic
stop does not exceed the amount of time that
would normally be required, the purpose of
the justifying traffic stop may not be
conveniently or cynically forgotten and not
taken up again until after an intervening
narcotics investigation has been completed or
has run a substantial course. Id. at 565.
The Maryland court declared that an officers
authority to stop a vehicle for an observed
violation of the traffic laws does not confer
the right to abandon or never begin to take
action related to the traffic laws and,
instead, to attempt to secure a waiver of
Fourth Amendment rights. Id. at 572.12
Accord, Caldwell v. State, 780 A.2d 1037,
1048 (Del. 2001) (the legitimating raison
detre of [a traffic] stop may evaporate if
its pursuit is unreasonably attenuated or
allowed to lapse into a state of suspended
animation to pursue a drug investigation).
However, many state courts have
abandoned any reliance on the Fourth
Amendment and have looked instead to their
own state law to provide greater restrictions
on police activity during traffic stops.
Some state courts have interpreted
their state constitutions to flatly forbid
the police from posing any question or
request that is unrelated to the underlying
reason(s) for the traffic stop, unless the
question or request is supported by
particularized reasonable suspicion to
believe that the motorist has committed or is
committing some other crime. See State v.
Washington, 875 N.E.2d 278, 282-83 (Ind. App.
2007); State v. Fort, 660 N.W.2d 415, 418-19
(Minn. 2003), and State v. Wiegand, 645
N.W.2d 125, 135 (Minn. 2002); State v.
Elders, 927 A.2d 1250, 1260-61 (N.J. 2007),
and State v. Carty, 790 A.2d 903, 912 (N.J.
2002); State v. McClendon, 517 S.E.2d 128,
132 (N.C. 1999), and State v. Parker, 644
S.E.2d 235, 241-42 (N.C. App. 2007). See
also State v. Quino, 840 P.2d 358, 363-64
(Haw. 1992) (applying a similar rule to a non-
motor vehicle investigative stop).
Another state has interpreted its
constitution to allow officers to engage in
some degree of unrelated questioning, even in
the absence of articulable suspicion, but not
if the officers questions or requests
change[] the fundamental nature of the stop.
State v. McKinnon-Andrews, 846 A.2d 1198,
1203 (N.H. 2004).
And New York has imposed a similar
requirement as a matter of state common law.
See People v. Hollman, 590 N.E.2d 204, 581
N.Y.S.2d 619 (N.Y. 1992) (holding that
reasonable suspicion was required before
narcotics officers could approach a passenger
in a bus terminal and ask for permission to
search the persons bag).
The Alaska Supreme Court has long
recognized that the search and seizure
provision of our state constitution (Article
I, Section 14) contains an even broader
guarantee against unreasonable searches and
seizures than is found in its federal
counterpart. Woods & Rohde, Inc. v. Alaska
Dept. of Labor, 565 P.2d 138, 150-51 (Alaska
1977). As the supreme court explained in
Woods & Rohde, this broader interpretation of
our state constitution is based on the
wording of Article I, Section 14 (which
differs from the Fourth Amendment in that it
includes the additional phrase and other
property), and also on the fact that the
citizens of Alaska have amended our
constitution to include an express guarantee
of privacy (Article I, Section 22). Id.;
see also Anchorage Police Department
Employees Assn v. Municipality of Anchorage,
24 P.3d 547, 550 (Alaska 2001).
Both the Alaska Supreme Court and
this Court have repeatedly interpreted
Article I, Section 14 to provide greater
protection to the citizens of this State than
they would otherwise have under the Fourth
Amendment.13 We have exercised this
authority when we were convinced that the
United States Supreme Courts interpretation
of the Fourth Amendment fails to adequately
safeguard our citizens right to privacy, ...
fails to adequately protect citizens from
unwarranted government intrusion, and ...
unjustifiably reduces the incentive of police
officers to honor citizens constitutional
rights. Joseph v. State, 145 P.3d 595, 605
(Alaska App. 2006).
The facts of this case present an
example of an apparently ongoing and
unjustified infringement of the privacy
rights of Alaska citizens. And, as we have
explained here, it is uncertain whether the
Fourth Amendment to the United States
Constitution offers any remedy. We therefore
conclude that Article I, Section 14 of the
Alaska Constitution must be interpreted to
grant broader protections than its federal
counterpart in situations like this.
To resolve Browns case, we need not
decide whether Article I, Section 14 should
be interpreted to completely preclude
requests for searches during a routine
traffic stop unless the search is related to
the ground for the stop or is otherwise
supported by a reasonable suspicion of
criminality. We leave that question for
another day. Because Browns case presents a
particularly egregious example of this police
practice, our holding in Browns case can be
more narrow.
Browns case does, indeed, involve a
request for a search during a traffic stop
where the requested search was unrelated to
the ground for the stop, and where the
requested search was not supported by any
other reasonable suspicion of criminality.
But Browns case involves additional facts
that distinguish it from the run-of-the-mill
traffic stop.
Brown was stopped for an equipment
violation, but she was never informed of the
reason for the stop. Brown did not know if
she was suspected of a minor traffic
infraction or a more serious crime. Without
explanation, the trooper demanded Browns
drivers license, and then he went back to his
patrol vehicle. For all that Brown knew, the
trooper might be verifying her identity in
preparation for arresting her.
When the trooper returned to Browns
car, he still refrained from telling Brown
the reason for the stop. Moreover, even
though the trooper had decided to let Brown
off with a warning, the trooper gave Brown no
indication that she was free to go (or would
shortly be free to go). Instead, the trooper
asked Brown to consent to a search of her
person and her vehicle for drugs.
Because Brown remained ignorant of
the reason for the stop, she did not know the
basis for the troopers assertion of authority
over her. Consequently, even if Brown had
been fully conversant with search and seizure
law, Brown had no way of knowing if she had
the right to refuse the troopers request no
way of knowing if the troopers request to
conduct a search was indeed a request or was,
instead, simply a polite phrasing of a
command.
Given these circumstances, the fact
that the troopers request was made within two
and a half minutes of the stop (in other
words, within the amount of time that a
motorist would normally expect to be detained
for a routine traffic stop) is not sufficient
to establish the legality of the troopers
request. Under the facts of this case, we
hold that Article I, Section 14 of the Alaska
Constitution prohibited Trooper Salinas from
asking Brown for permission to search her
person and her vehicle for drugs.
The judgement of the superior court
is therefore REVERSED.
COATS, Chief Judge, concurring.
In order to prove voluntary
consent, [t]here must be clear and convincing
evidence that the consent was unequivocal,
specific, and intelligently given.1 In the
present case, as the majority opinion points
out, Brown was stopped at 3 a.m. for an
equipment violation because her cars rear
license plate was not properly illuminated.
Browns car and the troopers car were the only
cars on the road. The trooper never informed
Brown why he stopped her, and he took and
retained Browns drivers license. As the
majority opinion states:
When the trooper returned to Browns car,
he still refrained from telling Brown the
reason for the stop. Moreover, even though
the trooper had decided to let Brown off with
a warning, the trooper gave Brown no
indication that she was free to go (or would
shortly be free to go). Instead, the trooper
asked Brown to consent to a search of her
person and her vehicle for drugs.
Because Brown remained ignorant of the
reason for the stop, she did not know the
basis for the troopers assertion of authority
over her. Consequently, even if Brown had
been fully conversant with search and seizure
law, Brown had no way of knowing if she had
the right to refuse the troopers request no
way of knowing if the troopers request to
conduct a search was indeed a request or was,
instead, simply a polite phrasing of a
command.
Under these circumstances I would
hold that the State did not show by clear and
convincing evidence that Browns consent was
unequivocal, specific, and intelligently
given. Although I (like my colleagues) rely
on article, 1 section 14 of the Alaska
Constitution to conclude that the evidence in
this case must be suppressed, I reach this
decision by a slightly different route than
my colleagues have taken.
_______________________________
1 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
2 See United States v. Bradford, 423 F.3d 1149, 1158 (10th
Cir. 2005).
3 State v. Robinette, 653 N.E.2d 695, 699 (Ohio 1995).
4 Ohio v. Robinette, 519 U.S. at 38-40; 117 S.Ct. at 420-22.
5 Under 13 AAC 04.025(c), a vehicles rear license plate must
be illuminated by the taillight or some other white light
(whenever the vehicles headlights or auxiliary driving lights are
illuminated) so that it is clearly visible from a distance of 50
feet to the rear. Browns license plate light was working, but it
was dirty.
6 524 P.2d 1251, 1255-57 (Alaska 1974).
7 See the cases listed in footnote 9.
8 Childs, 277 F.3d at 949. See Florida v. Bostick, 501 U.S.
429, 434; 111 S.Ct. 2382, 2386; 115 L.Ed.2d 389 (1991) (mere
police questioning does not constitute a seizure).
9 Childs, 277 F.3d at 954; United States v. Purcell, 236 F.3d
1274, 1280 (11th Cir. 2001) (confirming a police officers
authority to question a motorist on topics unrelated to the
ground for the traffic stop, so long as the duration of the
stop is not significantly lengthened: only unrelated
questions which unreasonably prolong the detention are
unlawful); United States v. Shabazz, 993 F.2d 431, 436 (5th
Cir. 1993) ([W]e reject any notion that a police officers
questioning, even on a subject unrelated to the purpose of
the stop, is itself a Fourth Amendment violation. ...
[D]etention, not questioning, is the evil at which Terrys
second prong is aimed.).
10 Lichtenbergs work is an unpublished Ph.D. dissertation on
file with Rutgers University. This dissertation is
described in Steven L. Chanenson, Get the Facts, Jack!
Empirical Research and the Changing Constitutional
Landscape of Consent Searches, 71 Tenn. L. Rev. 399,
451, 455 (2004).
11 Available at
http://www.law.harvard.edu/library/collections/special/
online-collections/common_law/index.php)
12 Quoting Whitehead v. State, 698 A.2d 1115, 1120 (Md. App.
1997).
13 Anchorage Police Department Employees Assn, 24 P.3d at
550; State v. Malkin, 722 P.2d 943, 949 (Alaska 1986)
(Compton, J., dissenting); State v. Jones, 706 P.2d
317, 324 (Alaska 1985); State v. Daniel, 589 P.2d 408,
416 (Alaska 1979); State v. Glass, 583 P.2d 872, 878-79
(Alaska 1978); Roman v. State, 570 P.2d 1235, 1240
(Alaska 1977); Zehrung v. State, 569 P.2d 189, 199
(Alaska 1977), modified on rehrg., 573 P.2d 858 (Alaska
1978); Coleman v. State, 553 P.2d 40, 46 (Alaska 1976);
Daygee v. State, 514 P.2d 1159, 1165 (Alaska 1973);
Joseph v. State, 145 P.3d 595, 605 (Alaska App. 2006);
State v. Crocker, 97 P.3d 93, 94 (Alaska App. 2004);
Jackson v. State, 791 P.2d 1023, 1026 (Alaska App.
1990).
1 Gieffels v. State, 590 P.2d 55, 62 (Alaska 1979) (citing
Sleziak v. State, 454 P.2d 252, 257 (Alaska 1969)).
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